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Summary & Analysis

The English Precedent

England, a center of seventeenth-century absolutist power, produced philosophers such as Thomas Hobbes and Francis Bacon who propounded the divine right of kings. Yet the work of John Locke and others reveal that England was also the birthplace for notions that ran contrary to such concepts of unquestionable and divinely ordained authority. This was in no small part because revolutions and internal struggles among the royals revealed imperfections in the system. These internal conflicts also produced settlements between the nobles and the king, or Parliament and the king, that established precedents for a basic set of rights to be given all Englishmen. This process dated back to 1215, when English barons successfully demanded a statement of privileges from King John known as the Magna Carta. The document provided implicit evidence that not only nobles but the people at large possessed certain powers that even a king could not defy. The Magna Carta established a precedent—though often violated in the centuries to follow—that all future monarchs were in fact subject to the rule of law. English common law itself derived from the Magna Carta, and it was English common law which the founding fathers relied upon to guide their own endeavors with the U.S. Constitution.

Just as subsequent English laws could not abridge or erase the rights granted by Magna Carta, so the founders designed the American Constitution to become "the Supreme Law of the Land." The Constitution's debt to the Magna Carta can be clearly seen in the Fifth Amendment of the Bill of Rights, which declares: "No person shall...be deprived of life, liberty, or property, without due process of law." Written 575 years earlier, the Magna Carta ensured a similar right, that "No freeman shall be taken, imprisoned,...or in any other way destroyed...except by the lawful judgment of his peers, or by the law of the land. To no one will we sell, to none will we deny or delay, right or justice."

Today in the National Archives, visitors can view a later version of the Magna Carta, confirmed by Edward I in 1297, presented courtesy of the Perot Foundation (of Ross Perot, the independent presidential candidate in 1992 and 1996), and by subsequent purchaser David M. Rubenstein. One of very few Magna Carta manuscripts to leave Britain, it is on display alongside the Declaration of Independence and the U.S. Constitution in the rotunda of the National Archives Building in Washington, D.C. (admission is free!).

Yet the Constitution, for all its precedents, was nonetheless a revolutionary document, for it created a government by and for the people, whereas predecessors like the Magna Carta had relied upon a monarch to guarantee certain rights to his subjects.

Legislative Branch

In his Second Treatise on Government—written in 1681, published in 1690—English philosopher John Locke described in theory the three branches of government that would become reality under the United States Constitution: the executive, legislative, and judicial. The legislative branch was, according to Locke and American founding fathers who were influenced by his philosophy, the most important branch of the three, since it controlled the purse strings and crafted the laws that governed society. Though Congress was the most important of the three, each branch possessed checks and balances in relation to the other two; the president could veto congressional legislation, Congress could override the veto with a two-thirds majority, the Supreme Court could declare laws unconstitutional, and so on.

The founders understandably feared the greed and lust for power that exists—to varying degrees—within most humans. Additionally, because monarchies were the dominant form of government in the Western world, the founders sought to design an infrastructure that would thwart any attempts at establishing an autocracy or a military dictatorship (which is exactly what happened in post-revolutionary France under Napoleon).

Congressional Representation

Among Constitutional Convention delegates, Alexander Hamilton of New York and James Madison of Virginia were two of the most nationalistic. Proportional representation in Congress—that is, representation based on population—was of critical importance to nationalists, as it embodied the principle of government by and for the people, unmediated by the states. This would provide a democratic process of selecting congressmen but it would also strengthen federal power at the expense of the states, who—in this scenario—would be cut out of the election process for the legislative branch. Of course, such a plan would prove most advantageous for the large and populous states...like New York and Virginia. Other nationalists—John Dickinson of Delaware, William Patterson of New Jersey, and George Read of Delaware—sought to give all states an equal say in the legislature, so as to build a central government strong enough to prevent one state from wielding undue influence over another. One group wanted each citizen to be represented equally in Congress; the other wanted each state to be represented equally.

New Jersey Plan

On 11 June 1787, the committee of the whole voted for proportional representation in both houses of Congress, but four days later, William Paterson of New Jersey introduced an alternative—the New Jersey Plan—that would have created a small-state-friendly unicameral legislature, like that of the Confederation government, with one vote for each state. But instead of the Confederation's executive committee or the independent executive branch proposed in the Virginia Plan, Paterson proposed an executive board to be elected by the legislature and removable by a majority vote from state governors.

The Debate

The larger states—Virginia, Massachusetts, Pennsylvania, Georgia, South Carolina, and North Carolina—threatened to withdraw from the convention and form their own nation if their plan for proportional representation did not hold in the Senate, although that threat seemed somewhat untenable given the geographic isolation of the southern states and the fact that New York would not go along with such an idea. Yet other delegates recognized the danger in pushing too hard for Madison's goals for a strong national government with proportional representation in both houses. Roger Sherman of Connecticut worked with Paterson and the Delaware delegation and devised the governmental structure that exists today: a lower House of Representatives with representation based on population and an upper house—the Senate—with equal representation for each state.

Still, this "Great Compromise" did not satisfy everyone. Members of the elite such as Madison (though he would go on to defend the institution in Federalist #10) balked at so obvious a recognition of their privileged social and economic status. Madison and like-minded delegates realized that they were part of a privileged sub-set of society, but they were nervous about creating an institution that resembled an aristocratic branch; this went against their revolutionary ideology and their commitment to democratic principles. America was not supposed to be stratified by hierarchies of wealth and status, even if that was the case in the late-eighteenth-century; it was supposed to be a new country with a future apart from the old stratified regimes of Europe. The delegates therefore worried about the composition of the Senate; they did not want it to become an Americanized House of Lords, in which American money and property took the place of English blood titles in sustaining undue hereditary privilege.

Despite these concerns, the compromise offered the best path forward for the Constitutional Convention and became final after more than a month of debate and negotiation. This was in no small part because of the southern states. Normally they would have sided with fellow large states in return for protections of slavery against the hostile New England states that had already concluded or commenced their own emancipation measures. Yet the southern states were equally (or even more) threatened by attacks from local Indian tribes and their Spanish allies, so they needed a strong central government to provide diplomatic and military protection. Delegations such as Georgia's canceled out their influence by splitting their votes.

The Executive

By mid-July 1787, the delegates in Philadelphia had been confined to the same stifling room for more than a month hammering out their Great Compromise, and they still hadn't even addressed the critical issue of the executive branch. Many missed their wives and families, and hoped to leave the sweltering city as soon as possible. But the question of the presidency was of central importance if the republic would prove able to thwart any attempts at military dictatorship or oligarchy. Initially the delegates imagined a presidency consisting of one person holding office for a term of seven years, with no possibility of reelection, to be selected by a majority vote in both houses of Congress. This somewhat unsatisfying blueprint remained in place for over three months of debate before the delegates adopted the now-familiar four-year term, with possibility of reelection. Before Franklin Delano Roosevelt served a record four terms in office during the Great Depression and World War II, there were no term limits on the presidency; but then Congress passed the Twenty-second Amendment in 1951, which limited presidents to two terms in office (this was the standard term in office during the previous administrations, because it was the precedent set by George Washington when he voluntarily stepped down in 1792).

By September, the convention agreed that the president must be a natural-born citizen (or a citizen of the United States at the time of adoption of the Constitution), at least thirty-five years of age, who must have lived within the country for fourteen years or more. Mindful of the executive abuses of King George, the convention made sure to grant Congress the power to remove a despotic president through impeachment (by the House) and removal (by the Senate). Initially the delegates listed only "treason and bribery" as specific grounds for impeachment of the president. Later, at the suggestion of Virginia's George Mason, the convention expanded its definition of impeachable offenses to include "high crimes and misdemeanors"—a much broader, and more ambiguous, standard for removing the president.

The president was also delegated the power to make treaties with the advice and consent of two-thirds of the Senate. He or she (the language describing the actual qualifications for the presidency in Article II is surprisingly gender-neutral) actually held several powers that exceeded the British kings; the president could veto congressional laws, although a two-thirds majority in Congress could override that veto. The president ranked at the top of the military hierarchy as the Commander In Chief of the Armed Forces. He or she was responsible for executing the laws of the land. The president could appoint judges, diplomats, and others but only with a Senate majority approval. Yet the president could not declare war or make peace. And the president, unlike the English monarchy, could be removed by a vote of two-thirds in the Senate after conviction for impeachment in the House of Representatives.

The Electoral College

The electoral college, one of the most controversial institutions created by the Constitution, was largely a product of its eighteenth-century context. The convention delegates were not necessarily elitists in their opposition to the concept of presidential election by direct popular vote (some certainly were, but let's get past that point for the moment). The others were, instead, dubious of any candidate's ability, in an age of pre-modern transportation systems, to traverse the vast land area of the new nation to gain a national reputation before an election. People traveled by horseback or carriage along dilapidated pathways and dirt roads; the few newspapers in the country at the time were primarily expensive merchant sheets that contained plenty of misinformation and traveled even more slowly. Voters in any given state would therefore have little knowledge of the character, reputation, or platform of candidates hailing from distant regions. Additionally, eighteenth-century cultural custom deemed it inappropriate for a man of honor to actively and directly campaign for votes on his own behalf. The Constitution's framers feared that voters would thus simply select candidates who came from their home state or region, rather than using more discerning criteria to choose a candidate. And all of the problems above with communication and transportation would have made the organization and uniform regulation of a national election almost unimaginable.

Maryland delegate Daniel Carroll nonetheless repeatedly moved for the popular election of the president, only to be voted down each time. Despite their apparent opposition to direct election of the president, Carroll's colleagues were also concerned about a possible excess of legislative power and wanted some means of countering or balancing that out with the powers delegated to the executive branch. Therefore a Committee on Postponed Matters was formed with an impressive array of talented delegates from a variety of states and ideological perspectives. On 4 September, the Committee reported back to the group after a week of discussion. They didn't want to endorse popular election since it had so clearly been defeated several times before, so instead they devised the electoral college as a compromise.

Under this plan, each state would appoint a number of electors equal to the total number of its senators and representatives. The electors would meet in their own state (not as a collective body), and would vote by ballot for two candidates. One of the two could not live in the elector's state. Each state's list of candidates was chosen and their vote tallies would be signed, certified, and sent to the president of the Senate, who would open them and supervise the vote tally. If one person received a majority, he became president, and the person with the second-most votes became vice president (a new concept of its own). If no one had a majority, the Senate would choose from among the top five vote recipients. If two people tied for the vice presidency, the Senate would select between them by another vote.

This plan would leave most elections up to the Senate, since the nationwide electors were unlikely to give any one candidate a clear majority. James Wilson proposed that the election be sent to the House instead, since its membership changed more frequently and factions would therefore be less likely. Roger Sherman, champion of the small states, revised the proposal so that representatives would cast only one vote each to elect the president in the event of close calls; therefore larger states would not hold an advantage. Thus, through a series of difficult compromises, the electoral college took the form it still holds today.

There was just one catch: the Convention decided to let state legislatures decide how the electors were chosen. It wasn't long before almost all states chose their electors by popular vote. The electors became partisan representatives who acted on behalf of their political party, so their votes were predetermined based on party affiliation even before the election had taken place. There were no political parties yet in 1787, so this outcome wasn't anticipated. Instead of independent electors who made their own choices, the people elected electors who essentially served as party delegates.

Presidential Powers

James Madison joked in his record of the constitutional proceedings that if the vice president were not made President of the Senate, "he would be without employment." Indeed, the office was something of a tolerated after-thought proposed by the Committee on Postponed Matters; the only time the vice president would be allowed to cast a vote was in the case of a tie. If the president were to be impeached, the vice president would step down so that the Chief Justice could preside over the Senate trial. The Chief Executive could direct the military operations during wartime and send diplomats to negotiate treaties to prevent a war.

Yet even amidst such exceptional circumstances, the delegates assigned the legislature with a substantial role. Congress had to approve all treaties, whether diplomatic or commercial. The president's power to appoint Supreme Court justices had not yet assumed modern-day importance, because the Court itself had not yet established the shape and content of its role. Presidential appointments became much more significant over ensuing generations as the country amassed more economic dominance and political power on a global scale. Plus, the initial bureaucracy was not nearly so powerful; at first it was pretty much just the post office, so there weren't so many important appointments to make.

Original Meanings

Many scholars point to such contextually specific circumstances in their efforts to explain why the entire notion of "original intent" or "original meanings" is extremely dubious at best; reading the past through the lens of the present is always an extremely tricky and precarious business. Colonial historian Jack Rakove was one of the most prominent scholars to do so in his appropriately titled and Pulitzer-Prize-winning work, Original Meanings. In that book, Rakove used the history of the Constitutional Convention to demonstrate why the very concept of "original meanings" as we now understand it did not exist back in 1787 and so could not have governed the Founder's intentions for the document they created.

Yet this turns into an extremely drawn-out and complicated debate within the legal field. A "doctrine of original intent" school (also known as the jurisprudence of "originalism") emerged in reaction to desegregation and the other reformist decisions passed by the Supreme Court under Chief Justice Earl Warren in the 1950s and 60s. This conservative reaction argued that justices ought to interpret the Constitution according to the intent of the framers who wrote it (or the legislators who drafted the subsequent amendments). Original intent theory became the guiding standard of certain Justices or administrations, such as the Department of Justice under Attorney General Edwin Meese III during the Regan administration in the 1980s.

But how do you pretend to know the framers' exact intentions 220 years ago? The debate will probably continue for some time. In 2005, Supreme Court Justice Stephen Breyer authored a book entitled Active Liberty: Interpreting Our Democratic Constitution, in which he argued against some of his colleagues on the court—such as Antonin Scalia and Clarence Thomas—who claimed to follow the original intent theory. Breyer instead argued that the Founders' intent was to promote active democracy, and he wrote that "originalist" decisions could have the opposite result. He felt the Constitution was established to set up institutions where individual citizens could participate in their government. That was the bulwark of American democracy, and all the rest—including the Bill of Rights—specified the parameters and limitations of that democracy.

Justice Antonin Scalia instead claimed that the Constitution does have a fixed meaning that does not change over time; if the Supreme Court was to interpret its meaning for each new generation, Scalia believed, it would become a very political institution. On the contrary, Breyer thought that the Founders used broad terms exactly because they designed the Constitution to evolve over time, and that the emphasis for judicial interpretation ought to be placed on its purpose: "fostering democratic participation to achieve democratic rule." Conservative courts following original intent theory are more likely to invalidate congressional laws. More liberal courts—or individual justices, such as Breyer—are likely to uphold those laws as a deferral to Congress, and to hold the elected branches of government most accountable to the people (for better or for worse). Yet this is not a hard and fast rule; liberal justices like Breyer have also voted to strike down—for example—state limitations on abortion, on the grounds that such laws unconstitutionally limit a woman's right to make her own decisions about child-bearing.11

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