The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally including seven articles, the Constitution defined the foundational structure of the federal government.
The drafting of the Constitution by many of the nation's Founding Fathers, often referred to as its framing, was completed at the Constitutional Convention, which assembled at Independence Hall in Philadelphia between May 25 and September 17, 1787. Influenced by English common law and the Enlightenment liberalism of philosophers like John Locke and Montesquieu, the Constitution's first three articles embody the doctrine of the separation of powers, in which the federal government is divided into the legislative, bicameral Congress; the executive, led by the president; and the judiciary, within which the Supreme Court has apex jurisdiction. Articles IV, V, and VI embody concepts of federalism, describing the rights and responsibilities of state governments, the states in relationship to the federal government, and the process of constitutional amendment. Article VII establishes the procedure used to ratify the constitution.
Since the Constitution became operational in 1789, it has been amended 27 times. The first ten amendments, known collectively as the Bill of Rights, offer specific protections of individual liberty and justice and place restrictions on the powers of government within the U.S. states. Amendments 13–15 are known as the Reconstruction Amendments. The majority of the later amendments expand individual civil rights protections, with some addressing issues related to federal authority or modifying government processes and procedures. Amendments to the United States Constitution, unlike ones made to many constitutions worldwide, are appended to the document.
The Constitution of the United States is the oldest and longest-standing written and codified national constitution in force in the world. The first permanent constitution, it has been interpreted, supplemented, and implemented by a large body of federal constitutional law and has influenced the constitutions of other nations.
History
Background
From September 5, 1774, to March 1, 1781, the Second Continental Congress, convened in Philadelphia in what is now Independence Hall, functioned as the provisional government of the United States. Delegates to the First Continental Congress in 1774 and then the Second Continental Congress from 1775 to 1781 were chosen largely from the revolutionary committees of correspondence in various colonies rather than through the colonial governments of the Thirteen Colonies.
The Articles of Confederation and Perpetual Union was the first constitution of the United States. The document was drafted by a committee appointed by the Second Continental Congress in mid-June 1777 and was adopted by the full Congress in mid-November of that year. Ratification by the 13 colonies took more than three years and was completed March 1, 1781. The Articles gave little power to the central government. While the Confederation Congress had some decision-making abilities, it lacked enforcement powers. The implementation of most decisions, including amendments to the Articles, required legislative approval by all 13 of the newly formed states.
Despite these limitations, based on the Congressional authority granted in Article 9, the league of states was considered as strong as any similar republican confederation ever formed. The chief problem was, in the words of George Washington, "no money". The Confederated Congress could print money, but it was worthless, and while the Congress could borrow money, it could not pay it back. No state paid its share of taxes to support the government, and some paid nothing. A few states met the interest payments toward the national debt owed by their citizens, but nothing greater, and no interest was paid on debts owed to foreign governments. By 1786, the United States was facing default on its outstanding debts.
Under the Articles, the United States had little ability to defend its sovereignty. Most of the troops in the nation's 625-man army were deployed facing non-threatening British forts on American soil. Soldiers were not being paid, some were deserting, and others were threatening mutiny. Spain closed New Orleans to American commerce, despite the protests of U.S. officials. When Barbary pirates began seizing American ships of commerce, the Treasury had no funds to pay toward ransom. If a military crisis required action, the Congress had no credit or taxing power to finance a response.
Domestically, the Articles of Confederation was failing to bring unity to the diverse sentiments and interests of the various states. Although the Treaty of Paris in 1783 was signed between Britain and the U.S., and named each of the American states, various states proceeded to violate it. New York and South Carolina repeatedly prosecuted Loyalists for wartime activity and redistributed their lands. Individual state legislatures independently laid embargoes, negotiated directly with foreign authorities, raised armies, and made war, all violating the letter and the spirit of the Articles.
In September 1786, during the inter–state Annapolis convention to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected, James Madison questioned whether the Articles of Confederation was a binding compact or even a viable government. Connecticut paid nothing and "positively refused" to pay U.S. assessments for two years. A rumor at the time was that a seditious party of New York legislators had opened a conversation with the Viceroy of Canada. To the south, the British were said to be openly funding Creek Indian raids on Georgia, and the state was under martial law. Additionally, during Shays' Rebellion (August 1786 – June 1787) in Massachusetts, Congress could provide no money to support an endangered constituent state. General Benjamin Lincoln was obliged to raise funds from Boston merchants to pay for a volunteer army.
Congress could do nothing significant without nine states, and some legislation required all 13. When a state produced only one member in attendance, its vote was not counted. If a state's delegation was evenly divided, its vote could not be counted towards the nine-count requirement. The Congress of the Confederation had "virtually ceased trying to govern". The vision of a respectable nation among nations seemed to be fading in the eyes of revolutionaries such as George Washington, Benjamin Franklin, and Rufus King. Their dream of a republic, a nation without hereditary rulers, with power derived from the people in frequent elections, was in doubt.
On February 21, 1787, the Confederation Congress called a convention of state delegates in Philadelphia to propose revisions to the Articles. Unlike earlier attempts, the convention was not meant for new laws or piecemeal alterations, but for the "sole and express purpose of revising the Articles of Confederation". The convention was not limited to commerce but intended to "render the federal constitution adequate to the exigencies of government and the preservation of the Union".
1787 drafting
On the appointed day, May 14, 1787, only the Virginia and Pennsylvania delegations were present, and the convention's opening meeting was postponed for lack of a quorum. A quorum of seven states met on May 25, and deliberations began. Eventually 12 states were represented, with Rhode Island refusing to participate. Of the 74 delegates appointed by the states, 55 attended. The convention's initial mandate was limited to amending the Articles of Confederation, which had proven highly ineffective in meeting the young nation's needs. Almost immediately, however, the delegates began considering measures to replace the Articles of Confederation.
Two plans for structuring the federal government arose shortly after the convention's outset:
The first proposal discussed, introduced by delegates from Virginia, was known as the Virginia Plan, Large State Plan, or the Randolph Plan. It called for a bicameral Congress that was to be elected on a proportional basis based on state population, an elected chief executive, and an appointed judicial branch. Generally favoring the most highly populated states, it used the philosophy of John Locke to rely on consent of the governed, Montesquieu for divided government, and Edward Coke to emphasize civil liberties.
The alternative to the Virginia Plan, known as the New Jersey Plan, also called for an elected executive but retained the legislative structure created by the Articles, a unicameral Congress where all states had one vote. Generally favoring the less-populous states, it used the philosophy of English Whigs, such as Edmund Burke, to rely on received procedure and the jurist William Blackstone to emphasize sovereignty of the legislature. This position reflected the belief that the states were independent entities and, as they entered the United States of America freely and individually, remained so.
On May 31, the Convention devolved into the Committee of the Whole, charged with considering the Virginia Plan. On June 13, the Virginia resolutions in amended form were reported out of committee. The New Jersey Plan was put forward in response to the Virginia Plan.
On June 19, 1787, delegates rejected the New Jersey Plan with three states voting in favor, seven against, and one divided. The plan's defeat led to a series of compromises centering primarily on two issues: slavery and proportional representation.
Scope of judicial power
Proposals by Madison (Virginia) and Wilson (Pennsylvania) called for a supreme court veto over national legislation. This proposal resembled the system in New York, where the Constitution of 1777 called for a "Council of Revision" by the governor and justices of the state supreme court, which council would review and veto any passed legislation. Madison's proposal was defeated three times and replaced by a presidential veto with congressional override.
The justification for judicial review is to be explicitly found in the open ratifications held in the states and reported in their newspapers. John Marshall in Virginia, James Wilson in Pennsylvania and Oliver Ellsworth of Connecticut all argued for Supreme Court judicial review of acts of state legislature. In Federalist No. 78, Alexander Hamilton advocated the doctrine of a written document held as a superior enactment of the people. "A limited constitution can be preserved in practice no other way" than through courts which can declare void any legislation contrary to the Constitution. The preservation of the people's authority over legislatures rests "particularly with judges."
Connecticut and Three-Fifths Compromise
The issue of proportional representation was of concern to less populous states, which under the Articles had the same power as larger states. From July 2 to 16, a Committee of Eleven, including one delegate from each state represented, met to work out a compromise on the issue of representation in the federal legislature. All agreed to a republican form of government grounded in representing the people in the states. For the legislature, two issues were to be decided: (i) how the votes were to be allocated among the states in the Congress, and (ii) how the representatives should be elected. In its report, now known as the Connecticut Compromise (or "Great Compromise"), the committee proposed proportional representation for seats in the House of Representatives based on population (with the people voting for representatives), equal representation for each state in the Senate (with each state's legislators generally choosing their respective senators), and that all money bills would originate in the House.
The Great Compromise ended the stalemate between patriots and nationalists, leading to numerous other compromises in a spirit of accommodation. The issue of slavery pitted Northern states, where slavery was slowly being abolished, against Southern states, whose agricultural economies depended on slave labor. To satisfy interests in the South, the delegates agreed to protect the slave trade for 20 years. Slavery was protected further by the Three-Fifths Compromise, which allowed states to count three-fifths of their slaves as part of their populations, for the purpose of representation in the federal government, and by requiring the return of escaped slaves to their owners, even if captured in states where slavery had been abolished. Further compromises were also made on presidential term, powers, and method of selection, as well as the jurisdiction of the federal judiciary.
While these compromises held the Union together and aided the Constitution's ratification, slavery continued for eight more decades, and less populous states continue to have disproportional representation in the U.S. Senate and Electoral College.
Drafting and signature
On July 24, a Committee of Detail, including John Rutledge (South Carolina), Edmund Randolph (Virginia), Nathaniel Gorham (Massachusetts), Oliver Ellsworth (Connecticut), and James Wilson (Pennsylvania), was elected to draft a detailed constitution reflective of the resolutions passed by the convention up to that point. The Convention recessed from July 26 to August 6 to await the report of this "Committee of Detail". Overall, the report of the committee conformed to the resolutions adopted by the convention, adding some elements. A twenty-three article (plus preamble) constitution was presented.
From August 6 to September 10, the report of the committee of detail was discussed, section by section and clause by clause. Details were attended to, and further compromises were effected. Toward the close of these discussions, on September 8, a Committee of Style and Arrangement, including Alexander Hamilton from New York, William Samuel Johnson from Connecticut, Rufus King from Massachusetts, James Madison from Virginia, and Gouverneur Morris from Pennsylvania, was appointed to distill a final draft constitution from the 23 approved articles. The final draft, presented to the convention on September 12, contained seven articles, a preamble and a closing endorsement, of which Morris was the primary author. The committee also presented a proposed letter to accompany the constitution when delivered to Congress.
The original U.S. Constitution was handwritten on five pages of parchment by Jacob Shallus. The final document was taken up on Monday, September 17, at the convention's final session. Several of the delegates were disappointed in the result, a makeshift series of unfortunate compromises. Some delegates left before the ceremony and three others refused to sign. Of the thirty-nine signers, Benjamin Franklin summed up, addressing the convention: "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, "because I expect no better and because I am not sure that it is not the best".
The advocates of the Constitution were anxious to obtain unanimous support of all twelve states represented in the convention. Their accepted formula for the closing endorsement was "Done in Convention, by the unanimous consent of the States present". At the end of the convention, the proposal was agreed to by eleven state delegations and the lone remaining delegate from New York, Alexander Hamilton.
Ratification by the states
Within three days of its signing on September 17, 1787, the Constitution was submitted to the Congress of the Confederation, then sitting in New York City, the nation's temporary capital. The document, originally intended as a revision of the Articles of Confederation, instead introduced a completely new form of government. While members of Congress had the power to reject it, they voted unanimously on September 28 to forward the proposal to the thirteen states for their ratification. Under the process outlined in Article VII of the proposed Constitution, the state legislatures were tasked with organizing "Federal Conventions" to ratify the document. This process ignored the amendment provision of the Articles of Confederation which required unanimous approval of all the states. Instead, Article VII called for ratification by just nine of the 13 states—a two-thirds majority.
Two factions soon emerged, one supporting the Constitution, the Federalists, and the other opposing it, the so-called Anti-Federalists. Over the ensuing months, the proposal was debated, criticized, and expounded upon clause by clause. In the state of New York, at the time a hotbed of anti-Federalism, three delegates from the Philadelphia Convention who were also members of the Congress—Hamilton, Madison, and Jay—published a series of commentaries, now known as The Federalist Papers, in support of ratification.
Before year's end, three state legislatures voted in favor of ratification. Delaware was first, voting unanimously 30–0; Pennsylvania second, approving the measure 46–23; and New Jersey third, also recording a unanimous vote. As 1788 began, Connecticut and Georgia followed Delaware's lead with almost unanimous votes, but the outcome became less certain as leaders in key states such as Virginia, New York, and Massachusetts expressed concerns over the lack of protections for people's rights. Fearing the prospect of defeat, the Federalists relented, promising that if the Constitution was adopted, amendments would be added to secure individual liberties. With that, the anti-Federalists' position collapsed.
On June 21, 1788, New Hampshire became the ninth state to ratify. Three months later, on September 17, the Congress of the Confederation certified the ratification of eleven states, and passed resolutions setting dates for choosing the first senators and representatives, the first Wednesday of January (January 7, 1789); electing the first president, the first Wednesday of February (February 4); and officially starting the new government, the first Wednesday of March (March 4), when the first Congress would convene in New York City. As its final act, the Congress of Confederation agreed to acquire 100 square miles of land from Maryland and Virginia for establishing a permanent capital.
North Carolina waited to ratify the Constitution until after the Bill of Rights was passed by the new Congress, and Rhode Island's ratification would only come after a threatened trade embargo.
Aftermath
Federal judiciary
The Supreme Court was initially made up of jurists who had been intimately connected with the framing of the Constitution and the establishment of its government as law. John Jay (New York), a co-author of The Federalist Papers, served as chief justice for the first six years. The second chief justice, John Rutledge (South Carolina), was appointed by Washington in 1795 as a recess appointment, but was not confirmed by the Senate. Resigning later that year, he was succeeded in 1796 by the third chief justice, Oliver Ellsworth (Connecticut). Both Rutledge and Ellsworth were delegates to the Constitutional Convention. John Marshall (Virginia), the fourth chief justice, had served in the Virginia Ratification Convention in 1788. His 34 years of service on the Court would see some of the most important rulings to help establish the nation the Constitution had begun. Other early members of the Supreme Court who had been delegates to the Constitutional Convention included James Wilson (Pennsylvania) for ten years, and John Blair Jr. (Virginia) for five years.
Section 1, Article 3 provides that Congress can create lower (or "inferior") courts. The Judiciary Act of 1789 saw Congress's first exercise of such power. Currently, Title 28 of the U.S. Code describes judicial powers and administration. As of the First Congress, the Supreme Court justices rode circuit to sit as panels to hear appeals from the district courts. In 1891, Congress enacted a new system, where district courts would have original jurisdiction; intermediate appellate circuit courts with exclusive jurisdiction heard regional appeals before consideration by the Supreme Court; and the Supreme Court holds discretionary jurisdiction.
No part of the Constitution expressly authorizes judicial review, but the framers did contemplate the idea, and precedent has since established that the courts could exercise judicial review over the actions of Congress or the executive branch. To establish a federal system of national law, considerable effort goes into developing a spirit of comity between federal government and states. By the doctrine of res judicata, federal courts give "full faith and credit" to State Courts. The Supreme Court will decide Constitutional issues of state law only on a case-by-case basis, and only by strict Constitutional necessity, independent of state legislators' motives, their policy outcomes or its national wisdom. Two conflicting federal laws are under "pendent" jurisdiction if one presents a strict constitutional issue. Federal court jurisdiction is rare when a state legislature enacts something as under federal jurisdiction.
Amendments
Clauses 4 and 9 of Article One, Section 9 were explicitly shielded from Constitutional amendment prior to 1808. On January 1, 1808, the first day it was permitted to do so, Congress approved legislation prohibiting the importation of slaves into the country. On February 3, 1913, with ratification of the Sixteenth Amendment, Congress gained the authority to levy an income tax without apportioning it among the states or basing it on the United States Census.
Influences
The U.S. Constitution was a federal one and was greatly influenced by the study of Magna Carta and other federations, both ancient and extant. The Due Process Clause of the Constitution was partly based on common law and on Magna Carta (1215), which had become a foundation of English liberty against arbitrary power wielded by a ruler. The idea of Separation of Powers inherent in the Constitution was largely inspired by eighteenth-century Enlightenment philosophers, such as Montesquieu and John Locke.
The influence of Montesquieu, Locke, Edward Coke and William Blackstone were evident at the Constitutional Convention. Prior to and during the framing and signing of the Constitution, Blackstone, Hume, Locke and Montesquieu were among the political philosophers most frequently referred to. James Madison, for example made frequent reference to Blackstone, Locke, and Montesquieu, who were among the most prominent political theorists of the late eighteenth century.
While the ideas of unalienable rights, the separation of powers and the structure of the Constitution were largely influenced by the European Enlightenment thinkers, like Montesquieu, John Locke and others, Benjamin Franklin and Thomas Jefferson still had reservations about the existing forms of government in Europe. In a speech at the Constitutional Convention Franklin stated, "We have gone back to ancient history for models of Government, and examined different forms of those Republics ... And we have viewed modern States all round Europe but find none of their Constitutions suitable to our circumstances." Jefferson maintained, that most European governments were autocratic monarchies and not compatible with the egalitarian character of the American people.
English law
Historian Jack P. Greene maintains that by 1776 the founders drew heavily upon Magna Carta and the later writings of "Enlightenment rationalism" and English common law.
In his Institutes of the Lawes of England, Coke interpreted Magna Carta protections and rights to apply not just to nobles, but to all British subjects. In writing the Virginia Charter of 1606, he enabled the King in Parliament to give those to be born in the colonies all rights and liberties as though they were born in England. William Blackstone's Commentaries on the Laws of England are considered the most influential books on law in the new republic.
The English Bill of Rights (1689) was an inspiration for the American Bill of Rights. Both require jury trials, contain a right to keep and bear arms, prohibit excessive bail and forbid "cruel and unusual punishments". Many liberties protected by state constitutions and the Virginia Declaration of Rights were incorporated into the Bill of Rights. Upon the arrival of the American Revolution, many of the rights guaranteed by the Federal Bill of Rights were recognized as being inspired by English law. A substantial body of thought had been developed from the literature of republicanism in the United States, typically demonstrated by the works of John Adams, who often quoted Blackstone and Montesquieu verbatim, and applied to the creation of state constitutions.
Enlightenment philosophy
Historian Herbert W. Schneider held that the Scottish Enlightenment was "probably the most potent single tradition in the American Enlightenment" and the advancement of personal liberties. Historian Daniel Walker Howe notes that Benjamin Franklin greatly admired David Hume, an eighteenth-century Scottish philosopher, and had studied many of his works while at Edinburgh in 1760. Both embraced the idea that high-ranking public officials should receive no salary and that the lower class was a better judge of character when it came to choosing their representatives.
Following the Glorious Revolution of 1688, British political philosopher John Locke was a major influence, expanding on the contract theory of government advanced by Thomas Hobbes, his contemporary. Locke advanced the principle of consent of the governed in his Two Treatises of Government. Government's duty under a social contract among the sovereign people was to serve the people by protecting their rights. These basic rights were life, liberty, and property.
Montesquieu's influence on the framers is evident in Madison's Federalist No. 47 and Hamilton's Federalist No. 78. Thomas Jefferson, Adams, and Mason were known to read Montesquieu. Montesquieu emphasized the need for balanced forces pushing against each other to prevent tyranny (reflecting the influence of Polybius's 2nd century BC treatise on the checks and balances of the Roman Republic). In his The Spirit of Law, Montesquieu maintained that the separation of state powers should be by its service to the people's liberty: legislative, executive and judicial, while also emphasizing that the idea of separation had for its purpose the even distribution of authority among the several branches of government.
Supreme Court Justices, the ultimate interpreters of the constitution, have also cited Montesquieu throughout the Court's history. (See, e.g., Green v. Biddle, 21 U.S. 1, 1, 36 (1823). United States v. Wood, 39 U.S. 430, 438 (1840). Myers v. United States, 272 U.S. 52, 116 (1926). Nixon v. Administrator of General Services, 433 U.S. 425, 442 (1977). Bank Markazi v. Peterson, 136 U.S. 1310, 1330 (2016).)
Iroquois
American Indian history scholars Donald Grinde and Bruce Johansen claim there is "overwhelming evidence" that Iroquois Confederacy political concepts and ideas influenced the U.S. Constitution, and are considered to be the most outspoken supporters of the Iroquois thesis. The idea as to the extent of that influence on the founding, however, varies among historians and has been questioned or criticized by various historians, including Samuel Payne, William Starna, George Hamell, and historian and archaeologist Philip Levy, who claims the evidence is largely coincidental and circumstantial. The most outspoken critic, anthropologist Elisabeth Tooker, claimed the Iroquois influence thesis is largely the product of "white interpretations of Indians" and "scholarly misapprehension".