One of the objectives of Mr. Jefferson's Challenge is to highlight political and legal issues that significantly impact the American People, yet may be poorly understood. Nowhere is this more evident than in our Constitution. A myriad of myths surrounding our Constitution, its Framers, and the Constitutional Convention have evolved during our 200-year history. We often teach our children key points about the Constitution that have little or nothing to do with the facts. Have you ever read the U.S. Constitution? Have you ever encouraged your children to do so?
We have dedicated this entire edition of the Mr. Jefferson's Challenge newsletter to exploring the U.S. Constitution. We begin here with ten questions designed to trigger public dialog.
The Constitution reflects both America's great strength and many of her recurring problems. Although honest public critique of the Constitution is considered taboo by many, we consider such examination a civic duty. We provided editorial comment in some cases to facilitate subsequent dialog. As always, your feedback is welcomed and appreciated.
True or False: Thomas Jefferson, author of the Declaration of Independence and outspoken champion for democratic principles, served as a Virginia delegate to the Constitutional Convention of 1787. At the Convention, Jefferson strongly influenced the debate, demanding broad political powers and rights for the American People.
False. In 1787, Thomas Jefferson was serving in Paris as American Ambassador. Although several Convention delegates corresponded with Jefferson during the Convention debate, the slow communications of the day prevented Jefferson from playing a significant role in framing the U.S. Constitution.
Thomas Jefferson's absence from the Convention was a great loss for the American People. Few of the Convention delegates shared Jefferson's faith in democratic ideals; most favored a more aristocratic government. These few democratic champions, including George Mason of Virginia and James Wilson of Pennsylvania, consistently lost key Convention debates and the corresponding delegate votes. These events are reflected in the final language of the U.S. Constitution. We can only wonder the degree to which Jefferson would have influenced these debates, and dream about the Constitution the American People might have had.
Due to the conflicting interests of the States at the Constitutional Convention, and the egos of the delegates, the Convention was on the verge of collapse more than once. The turning point came with general agreement on the so-called "Great Compromise." What was the Great Compromise, and how did it influence the final language of the U.S. Constitution?
The Great Compromise defined how the States would share power in the new Federal government. The compromise resolved conflicts between the lower- and higher-populated States. In addition, the Great Compromise addressed disagreements between the States about slavery.
The primary conflict focused on State representation in the new Congress. The States with greater population favored "proportional" representation (i.e., representation based on population). The smaller States favored "equal" or "disproportional" representation (i.e., one State -- one vote, regardless of population). Although disproportional representation may sound unfair to us today, it was the existing practice under the Articles of Confederation and Perpetual Union, the governing document of the United States before the Constitution. The Articles of Confederation created a weak central government serving thirteen virtually-sovereign States. Each State, regardless of population, shared power equally in the central government, and the States retained most governing authority.
The Great Compromise resulted in proportional representation for the States in the less-powerful House of Representatives, and disproportional representation in the Senate. To calculate State populations for House representation, each slave was counted as three-fifths of a free person (Article I, Section 2, third clause), which was the formula used in the Articles of Confederation for State taxes to the United States government.
The Great Compromise also resulted in disproportional powers, favoring the smaller States, in selecting the President. Most Americans today assume their vote for President is equal in strength to the vote of any other American. This is not true. We explain this further in Question 8.
Many historians believe the Great Compromise failed to resolve the longstanding rifts between the larger and smaller States, and between the slave States and free (or freer) States. If the Convention delegates had crafted a more permanent remedy for these conflicts between the States, perhaps the American Civil War itself could have been avoided 80 years later when these conflicts resurfaced.
The U.S. Constitution protected one commercial activity for over 20 years after ratification. What was this commercial activity?
The first clause of Article I, Section 9 prevents Congress from prohibiting the importation of slaves before the year 1808:
"The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress, prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."
George Mason, delegate of Virginia, wrote to Thomas Jefferson in Paris in May 1788 describing the debate surrounding this Constitutional provision as "a Compromise between the Eastern & the two Southern States, to permit the latter to continue the Importation of Slaves for twenty odd years; a more favourite Object with them, than the Liberty and Happiness of the People."
Another Constitutional protection for slaveholders (Article IV, Section, 2, third clause) prohibited any State from harboring or freeing slaves escaping from another State:
"No person held to service or labor in one State under the laws thereof, escaping into another shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."
Luther Martin, delegate from Maryland, passionately opposed any reference to slavery in the Constitution. He denounced the slave trade and other Convention delegates for permitting this language in the Constitution. "It was inconsistent with the principles of the revolution and dishonorable to the American character to have such a feature in the Constitution."
True or False: the delegates to the Constitutional Convention debated whether to include a Bill of Rights in the original Constitution, ultimately rejecting the proposal by unanimous vote.
True. This is why our Bill of Rights is a set of amendments to the Constitution. While a few delegates favored a Bill of Rights, a majority of each State delegation voted against the proposal. Most Convention delegates did not consider such protections necessary. Some argued these protections already existed in the State Charters; others saw no need to protect American citizens against their own government.
George Mason of Virginia objected that the Constitution lacked a Bill of Rights, allowed the importation of slaves for another twenty years, and provided Congress with the power to regulate commerce. He wrote on his copy of the final draft: "This government will set out a moderate aristocracy; it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other." Mason was one of three delegates who refused to sign the Constitution, declaring he "would sooner chop off his right hand than put it to the Constitution."
During the Virginia debate on ratification, Patrick Henry argued that basic liberties were at risk. "The rights of conscience, trial by jury, liberty of the press, all your communities and franchises, all pretentions to human rights and privileges, are rendered insecure, if not lost, by this change....Is this tame relinquishment of rights worthy of freemen?...It is said eight states have adopted this plan. I declare that if twelve states and a half had adopted it, I would with manly firmness, and in spite of an erring world, reject it....Liberty, greatest of all earthly blessings -- give us that precious jewel, and you may take every thing else!"
Unlike George Mason and Patrick Henry, Thomas Jefferson supported ratification. However, he advocated amending the Constitution quickly to include a Bill of Rights and a prohibition against Presidential re-election.
Yielding to the public pressure generated during the fight over ratification, the First Congress approved a Bill of Rights for the Constitution in 1789 for subsequent ratification by the States. Congress approved twelve amendments for ratification, but the States ratified only ten.
Why did the delegates to the Constitutional Convention choose the term "We, the people of the United States..." as the first words of the Constitution?
Gouverneur Morris of Pennsylvania ("Gouverneur" was his first name, not his title) and other delegates on the "Committee of Style" were asked to explain to the other delegates this new language in the Preamble. The existing Articles of Confederation had made no reference to the "People." Earlier drafts of the new Constitution had retained the emphasis on the States, while first referencing the People:
"We the people of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia..."
Gouverneur Morris explained that the new language, removing the names of the thirteen States, was unfortunately necessary. The new government would begin upon ratification by the first nine States. No one could predict which nine States might ratify the Constitution first; the other four would not be part of the United States until and unless they ratified. Therefore, a listing of all thirteen States was simply impractical.
Nevertheless, American politicians throughout our history have assigned more virtuous motives to the phrase, "We the People...," nurturing another American myth. Contrary to what we teach our children, most of the Framers of the Constitution emphasized the authority of the States, not the authority of the People.
During the debate over ratification in Virginia, Patrick Henry questioned the Convention delegates' right to employ the People's name in the Preamble. "[G]ive me leave to demand, what right had they to say, 'We the people?' My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, who authorized them to speak the language of 'We the people,' instead of, 'We the states?' States are the characteristics of the soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government, of the people of all the states....The people gave them no power to use their name...."
The U.S. Constitution can be amended upon ratification by three-fourths of the States. However, there is one provision of the U.S. Constitution that can never be legally changed without the approval of every State in the Union. What is this provision that can never be changed over the objections of any one State?
As part of the "Great Compromise," whereby the smaller States were given disproportional representation in the Federal government, the "equal" representation of all States in the U.S. Senate is protected for all time under Article V:
"...no State, without its consent, shall be deprived of its equal suffrage in the Senate."
True or False: under the U.S. Constitution the American People are guaranteed the right to elect the U.S. President.
False. See answer to Question 8.
True or False: under the U.S. Constitution the American People are guaranteed the right to elect the " Presidential Electors" (under the so-called "Electoral College System"), who then elect the U.S. President.
False. Nowhere in the Constitution are the People given the right to elect the U.S. President. The State Legislatures retain the power to select the "Presidential Electors" who then elect the President under the complicated Electoral College System. In all fifty States, the State Legislatures have delegated this Constitutional authority to the residents of their States. However, the State Legislatures have the power, under the U.S. Constitution (Article II, Section 1, second clause), to strip their residents of this delegated authority at any time, and select the Presidential Electors by any other means they choose:
"Each State shall appoint in such manner as the Legislature thereof may direct, a number of electors...."
Another American myth involving election of our President is that each American's vote carries equal weight. This is not the case. The number of Presidential Electors granted each State is simply the total of that State's Congressional representatives (the number of House Representatives, which is based on population, plus two Senators). Therefore, a low-populated State with only one House Representative has its "voice" in selecting the President tripled (increased 200%), since it is granted three Electoral Votes (one House Representative plus two Senators). A more populated State with 50 House Representatives has its relative "voice" in selecting the President increased only 4% to 52 Electoral Votes (50 House Representatives plus two Senators). Today, this formula creates voter inequality. For example, a Rhode Island resident's vote for President counts over twice that of a Californian, Texan, or New Yorker.
Is the Constitution clear regarding the President's authority to initiate military action?
Yes; the President has no authority whatsoever to initiate military action. The first clause of Article II, Section 2 establishes the President as "Commander-in-Chief of the Army and Navy of the United States." However, the eleventh and twelfth clauses of Article I, Section 8 clearly grant Congress absolute control over the military until and unless Congress passes a Declaration of War. Upon a Declaration of War by Congress, the President then assumes his role as Commander-in-Chief to wage that war authorized by Congress.
The delegates to the Constitutional Convention of 1787 were in total agreement on this issue: only Congress could commit the United States to military action. The delegates never anticipated a President committing American troops to battle without a Declaration of War by Congress. They would have considered such action treasonous. This responsibility to commit American troops to battle was one of the few powers already vested in Congress under the Articles of Confederation:
"No state shall engage in any war without the consent of the [U]nited [S]tates in congress assembled,...except it be after a declaration of war by the [U]nited [S]tates in congress assembled, and then only against the kingdom or state and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the [U]nited [S]tates in congress assembled..."
Every recent U.S. President and member of Congress knew that the Vietnam War, the Grenada and Panama invasions, and the Lebanon and Bosnian "peacekeeping missions," among others, were all illegal. In each of these cases, the President initiated military action with no Congressional Declaration of War. Congress feared its Constitutional responsibility and public criticism, and failed to challenge the Presidents' actions. Any President now knows he may initiate any military action, albeit illegal, with complete confidence that Congress will not interfere.
True or False: under the original Constitution, the American People were granted the power to elect their Congressional representatives, both in the House of Representatives and in the Senate.
False. Under our original Constitution, the People were given the power to elect members of the House of Representatives. However, the power to select members of the Senate was retained by the State Legislatures. Finally, Congress under pressure passed the 17th Amendment in 1912, with the States ratifying the following year, giving the American People the power to elect their Senators directly.
There were some champions of the People serving as delegates to the Constitutional Convention of 1787. Although he shared the minority view, James Wilson of Pennsylvania advocated election of both houses of Congress directly by the People. "Can we forget for whom we are forming a Government? Is it for men; or for the imaginary beings called States?"
The attitude of James Madison from Virginia was more typical of the Convention delegates, however. He believed minimizing the People's influence within the Senate was critical to offset this dangerous "popular" influence in the House of Representatives. Opposing a proposal to increase the number of Senators per State, Madison argued that the Senate ought "to consist in its proceedings with more coolness, with more system, & with more wisdom, than the popular branch. Enlarge their number and you communicate to them the vices which they are meant to correct."
Alexander Hamilton of New York rationalized that the American People really didn't want political power. "[T]he people are gradually ripening in their opinions of government -- they begin to be tired of an excess of democracy...."
Overall, few delegates to the Constitutional Convention trusted the American citizenry with real political power. Until the American Revolution twelve years earlier, America had been ruled by a King. Popular rule through Democracy was unknown and feared by many. Under the original Constitution, the election of members of the House of Representatives was the only direct political power given to the American People. Wherever the Electorate was granted influence, the delegates tried to provide some balance or stability to keep this "popular influence" in check.
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Revised: March 13, 1996
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