Independence Hall in Philadelphia, Pennsylvania.
When Gouverneur Morris of Pennsylvania wrote the Preamble to the Constitution of the United States, only three words were appropriate to declare it a document worthy of a free country – “We the People.” The entirety of the Preamble reads as follows:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Thus, in simple and direct language, Morris conveyed what the fifty-six men in Philadelphia set out to accomplish in the summer of 1787. Their goal was to create a system of government that would create a more unified, secure, prosperous, and freedom-loving nation than had ever been established in world history.
To accomplish this, the Framers of the Constitution needed to limit the power of government, but not to such an extent that the country could not function properly. The Constitution’s Framers developed a system of three distinct branches of government that was meant to limit the responsibilities of our federal government to only those enumerated in the text of the Constitution. At the same time, the Framers needed to ensure that the federal branches were balanced with the interests of the individual states.
This was a task that almost proved too difficult. Thankfully, the men in Philadelphia worked through their differences and produced the world-changing document, the United States Constitution. While by no means comprehensive, the following are some basic facts every American should know regarding the Constitution and its three-branch system.
Legislative
On May 29, 1787, Edmund Randolph of Virginia presented a nineteen-point plan that came to be known as the Virginia Plan to the Convention delegates. Written primarily by fellow Virginian James Madison, the Virginia plan contained many aspects of the final Constitution that Americans are familiar with today, including its three-branch system.
Madison’s approach called for a two-branch legislature, a single executive, and a supreme court, with Congress able to establish lower federal courts. The number of legislators would be determined by the size of the populations of the respective states, meaning the larger states would have more representatives than the smaller states. This was true for both the House and the Senate.
But the Virginia Plan met with resistance almost immediately from so-called “small state” advocates. This group believed the Virginia Plan was too national in scope and that state sovereignty was not respected. On June 15, an alternative plan was proposed. It was called the New Jersey Plan because it was proposed by William Paterson of New Jersey. The fundamentals of this proposal proved to be far closer to the government created by the Articles of Confederation. There would be a single legislative body, each state would get one vote, regardless of size or population, and there would be more than one executive.
The New Jersey Plan had little chance of being accepted by a majority of the delegates at the Convention because it did not go far enough in establishing a cohesive government that addressed some of the concerns about the Articles of Confederation. However, it succeeded in establishing that delegates from states such as New Jersey and Maryland would not be part of a central government dominated by the delegates of larger states like Virginia and New York. There were passionate speeches in favor of and against the different approaches.
The debate over the size, power, length of terms, and, most importantly, how many legislators would be chosen from the various states became very contentious through the middle of July 1787. On July 10, Robert Yates and John Lansing of New York left the Convention, believing the Convention exceeded its mandate of reforming the Articles of Confederation and was in the process of destroying state sovereignty. Neither man returned to sign the final version of the Constitution.
While this period was likely the high watermark for tensions at the Convention, the delegates continued their work until a compromise was reached. On July 16, Roger Sherman of Connecticut proposed the “Great Compromise,” which became the structure that was adopted into the final version of the Constitution. The two houses of the legislature had two different sizes and ways to elect legislators. The House of Representatives would be elected directly by the people and would be held accountable through elections by the people every two years. State legislatures would elect senators for six-year terms. The Framers viewed the Senate as the direct representatives of the states, something that later changed with the passage of the 17th Amendment in 1913, which changed Senate elections to a direct vote by the people. Every state, regardless of size, would have two Senators.
Contrary to what many believe, the Constitution did not fix the number of representatives in the House at 435. The Constitution says that each Congressional district should have no more than one representative per 30,000 persons, and each state shall have at least one representative. The first House of Representatives in 1789 had 65 members. As the country grew, so did the number of representatives. The number 435 comes from the Permanent Apportionment Act of 1929, which set the number at 435, which was the number of representatives in Congress at that time. Not counting non-voting members from U.S. territories such as Guam and Puerto Rico and one non-voting member from Washington, D.C., it remains at 435 today.
How were slaves to be counted? It was to the southern states’ advantage to have slaves counted fully because this meant more representatives and, thus, more influence over the national discussion. Northern states, many of whom had already banned slavery or were already in the process of gradual emancipation, objected. James Wilson of Pennsylvania proposed the “three-fifths compromise,” which counted a slave as three-fifths of a non-slave for purposes of apportionment of representatives. It should be noted that free blacks were fully counted.
Executive
While the framework of the new Constitution was being debated, nothing led to more extended discussions and debates than the role of the executive or the individual who would later be called the president. In fact, a total of 60 votes were taken on the issue of how the executive should be elected, the most of any issue at the Convention. The second most discussed and debated issue at the Convention involved the impeachment of the executive, judges, and other government officials.
The Framers lived in the age of monarchies. To be called a “monarchist” or a supporter of monarchy was a charge that could end one’s political career. On June 18, 1787, before he became the first Secretary of the Treasury, before he co-authored the Federalist Papers, before he died in America’s most infamous duel, and long before musicals were written about him, Alexander Hamilton of New York addressed the Convention for most of the day. At the time, the Convention was struggling over how much national power the new government should have compared to power retained by the states. This was a difficult balance to obtain and has remained so ever since. Hamilton made it clear where he stood.
Almost more than any other Founder, Hamilton saw an America that was destined for greatness. He believed America would challenge Britain and France, the world powers of the day, for global supremacy. Hamilton proposed his own plan for the new government, rivaling the Virginia Plan and the New Jersey Plan.
Hamilton called for a single executive, chosen for life by electors and given the power of an absolute veto over every piece of legislation. Senators were to be elected for life and members of the House of Representatives would be elected by the people for three-year terms. Hamilton didn’t stop there. He also called for state governors to be appointed by the national government. All of this was loosely modeled after the British Parliamentary system. In Hamilton’s mind, a strong national government, compared to one that left much of the power to the states, was the best way to ensure a more powerful America at home and abroad.
Outside of possibly one or two other delegates at the Convention, Hamilton’s approach had no support, especially from those delegates from the smaller states. Hamilton left the Convention shortly thereafter but returned in September to sign the final version of the Constitution. While his Convention speech was used against him by his critics for the rest of his life, Hamilton became one of the most steadfast supporters of the Constitution in the ratification debate that was to follow.
Some delegates wanted the executive to be elected by Congress, while others wanted a direct election by the people. Other delegates argued state legislatures or governors should select the executive. As part of the “Great Compromise,” it was agreed that the executive would be elected to four-year terms by a majority of state “electors” equal to each state’s number of House members and Senators.
Given the realities of eighteenth-century communications, there was a concern that those in many parts of the country, primarily rural areas, would know little to nothing about those running for national office. The people were actually voting for electors who, in theory, knew more about the candidates. The Framers believed this system gave each individual state a say in the final outcome of presidential elections rather than simply having the population centers of larger states control the result. While the term “electoral college” does not appear in the Constitution, this is how the process of electing the executive has been known ever since.
Initially, electors voted for a first and second choice from the same group of presidential candidates, with the candidate with the most votes being declared the president and the candidate with the second most votes being declared the vice president. This changed with the passage of the 12th Amendment in 1804 when electors elected the president and vice president on separate ballots. Today, with limited exceptions, the winner of a state’s popular vote is rewarded with all of that state’s electoral votes.
The concept of impeachment was the second most debated issue at the Constitutional Convention. The president, federal judges, and some other executive branch officers are subject to impeachment. While there was discussion that these officials could be impeached for “maladministration,” meaning just doing a poor job, the final language states that impeachment can only be used in cases of “treason, bribery, or other high crimes and misdemeanors.” The Framers meant for “other high crimes and misdemeanors” to rise to the same level as treason and bribery. The concern was that the president, a judge, or other government officials would fall under the influence of a foreign power and not act in the country’s best interest.
The Framers knew that they needed a head of state to meet and engage with the leaders of foreign countries, and they also knew the importance of having civilian control of the military. This is why one of the most important powers given to the president is as Commander in Chief of the military. While a president cannot declare war without the consent of Congress nor unilaterally enter the country into a treaty with a foreign government without the consent of the Senate, the Framers meant for the executive to take a lead role in foreign affairs.
Finally, the executive was allowed to veto legislation proposed by Congress. It was not the absolute veto proposed by Alexander Hamilton but rather a presidential veto that a two-thirds vote of both bodies of the legislature could override.
Judicial
The Framers knew that a branch of government needed to be removed to a far greater degree than the other branches from the political passions of the moment. They established an independent federal judiciary that was to act as a referee of sorts amongst the other branches of government. While the Virginia Plan called for one supreme court and the establishment of other lower courts, the New Jersey Plan only wanted one supreme court with no lower federal courts. The final result was one far closer to the Virginia Plan.
It is important to know that the Constitution provides for what is known in the law as “original jurisdiction,” meaning that under a set of specific or enumerated circumstances, parties can file a case directly with the Supreme Court rather than in a lower federal court first, as is the case in the vast majority of cases the Supreme Court hears every year. One example is when one state brings a lawsuit against another.
The Framers also provided that Congress would establish the lower federal courts and that Congress would have control over the jurisdiction of those courts. The Framers believed this would act as a check on the judiciary’s power or abuse of power. The Constitution provides that all federal judges will serve during periods of “good behavior,” which has always been interpreted to mean lifetime appointments.
The Constitution states that federal judges shall adjudicate “cases and controversies” arising from federal criminal law and civil statutes. While I have written about the power of judicial review in a longer article (Supreme Decisions), the idea of who would decide the constitutionality of laws was not lost on the Framers. James Madison proposed a “Council of Revision” that included the president and some of the judges of the Supreme Court that would examine Congressional legislation and revise or reject it if it were not found to be Constitutional. This never occurred because many Framers, especially Elbridge Gerry of Massachusetts, believed that judges should not be involved in both the crafting of laws and determining the legality of the same law. This allowed judges to be involved directly with policy, a concept the Framers expressly rejected.
Contrary to common belief, the Constitution does not prescribe a fixed number of justices to serve on the Supreme Court. Shortly after the Constitution’s ratification, Congress passed the Judiciary Act of 1789, establishing the lower federal courts and setting the number of Supreme Court justices at five. The number of justices grew to as many as ten during a period of Abraham Lincoln’s term in the 1860s but was primarily set at seven until 1869 during the presidency of Ulysses S. Grant. This was the year Congress changed the number of Supreme Court justices to nine, which is where it remains today.
Other Constitutional Provisions
While too numerous to describe in detail, the Framers included other constitutional provisions meant to ensure individual liberty. A few examples include the guarantee of republican forms of state governments, the ability of Congress to coin money and regulate interstate commerce, the right of Americans to contract freely with each other, and prohibitions against bills of attainder and ex post facto laws, meaning individual Americans cannot be guilty of a crime, without trial, by an act of legislation or be charged with a crime that did not exist when committed. In fact, it is fascinating how many such issues are addressed within such a short document.
It is also essential for Americans to understand that the Framers explicitly left “police power” to state and local governments, not the federal government. These laws protect the public’s health, safety, and general welfare.
The Framers also knew that for society to remain stable and laws to be consistent, it could never be too easy to amend the Constitution. This would constantly risk the people’s liberties to whatever whims the very few wanted to implement at any given time. While there have been twenty-seven Amendments to the Constitution, the first ten constituting the Bill of Rights, the stability provided by the Constitution is an important factor in preventing tyranny. During more unstable times, government officials can claim power “for the good of the people” that is not theirs. The Framers wanted the rights of the people protected through all times, both good and bad.
After thirty-nine delegates signed the Constitution on September 17, 1787, the document was sent to the states for ratification. This was by no means assured. In fact, the ratification debate needs its own story.
Please Read: