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[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Introduction to the 1992 Edition]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page xv]]

 
 
                             HISTORICAL NOTE

        In June 1774, the Virginia and Massachusetts assemblies 
independently proposed an intercolonial meeting of delegates from the 
several colonies to restore union and harmony between Great Britain and 
her American Colonies. Pursuant to these calls there met in Philadelphia 
in September of that year the first Continental Congress, composed of 
delegates from 12 colonies. On October 14, 1774, the assembly adopted 
what has become to be known as the Declaration and Resolves of the First 
Continental Congress. In that instrument, addressed to his Majesty and 
to the people of Great Britain, there was embodied a statement of rights 
and principles, many of which were later to be incorporated in the 
Declaration of Independence and the Federal Constitution.\1\
        \1\The colonists, for example, claimed the right ``to life, 
liberty, and property'', ``the rights, liberties, and immunities of free 
and natural-born subjects within the realm of England''; the right to 
participate in legislative councils; ``the great and inestimable 
privilege of being tried by their peers of the vicinage, according to 
the course of [the common law of England]''; ``the immunities and 
privileges granted and confirmed to them by royal charters, or secured 
by their several codes of provincial laws''; ``a right peaceably to 
assemble, consider of their grievances, and petition the king.'' They 
further declared that the keeping of a standing army in the colonies in 
time of peace without the consent of the colony in which the army was 
kept was ``against law''; that it was ``indispensably necessary to good 
government, and rendered essential by the English constitution, that the 
constituent branches of the legislature be independent of each other''; 
that certain acts of Parliament in contravention of the foregoing 
principles were ``infringement and violations of the rights of the 
colonists.'' Text in C. Tansill (ed.), Documents Illustrative of the 
Formation of the Union of the American States, H. Doc. No. 358, 69th 
Congress, 1st sess. (1927), 1. See also H. Commager (ed.), Documents of 
American History (New York; 8th ed. 1964), 82.
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        This Congress adjourned in October with a recommendation that 
another Congress be held in Philadelphia the following May. Before its 
successor met, the battle of Lexington had been fought. In Massachusetts 
the colonists had organized their own government in defiance of the 
royal governor and the Crown. Hence, by general necessity and by common 
consent, the second Continental Congress assumed control of the ``Twelve 
United Colonies'', soon to become the ``Thirteen United Colonies'' by 
the cooperation of Georgia. It became a de facto government; it called 
upon the other colonies to assist in the defense of Massachusetts; it 
issued bills of credit; it took steps to organize a military force, and 
appointed George Washington commander in chief of the Army.
        While the declaration of the causes and necessities of taking up 
arms of July 6, 1775,\2\ expressed a ``wish'' to see the union between 
Great Britain and the colonies ``restored'', sentiment for independence 
was growing. Finally, on May 15, 1776, Virginia instructed her delegates 
to the Continental Congress to have that body ``declare the united 
colonies free and independ

[[Page xvi]]
ent States.''\3\ Accordingly on June 7 a resolution was introduced in 
Congress declaring the union with Great Britain dissolved, proposing the 
formation of foreign alliances, and suggesting the drafting of a plan of 
confederation to be submitted to the respective colonies.\4\ Some 
delegates argued for confederation first and declaration afterwards. 
This counsel did not prevail. Independence was declared on July 4, 1776; 
the preparation of a plan of confederation was postponed. It was not 
until November 17, 1777, that the Congress was able to agree on a form 
of government which stood some chance of being approved by the separate 
States. The Articles of Confederation were then submitted to the several 
States, and on July 9, 1778, were finally approved by a sufficient 
number to become operative.
        \2\Text in Tansill, op. cit., 10.
        \3\Id., 19.
        \4\Id., 21.
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        Weaknesses inherent in the Articles of Confederation became 
apparent before the Revolution out of which that instrument was born had 
been concluded. Even before the thirteenth State (Maryland) 
conditionally joined the ``firm league of friendship'' on March 1, 1781, 
the need for a revenue amendment was widely conceded. Congress under the 
Articles lacked authority to levy taxes. She could only request the 
States to contribute their fair share to the common treasury, but the 
requested amounts were not forthcoming. To remedy this defect, Congress 
applied to the States for power to lay duties and secure the public 
debts. Twelve States agreed to such an amendment, but Rhode Island 
refused her consent, thereby defeating the proposal.
        Thus was emphasized a second weakness in the Articles of 
Confederation, namely, the liberum veto which each State possessed 
whenever amendments to that instrument were proposed. Not only did all 
amendments have to be ratified by each of the 13 States, but all 
important legislation needed the approval of 9 States. With several 
delegations often absent, one or two States were able to defeat 
legislative proposals of major importance.
        Other imperfections in the Articles of Confederation also proved 
embarrassing. Congress could, for example, negotiate treaties with 
foreign powers, but all treaties had to be ratified by the several 
States. Even when a treaty was approved, Congress lacked authority to 
secure obedience to its stipulations. Congress could not act directly 
upon the States or upon individuals. Under such circumstances foreign 
nations doubted the value of a treaty with the new Republic.
        Furthermore, Congress had no authority to regulate foreign or 
interstate commerce. Legislation in this field, subject to unimportant 
exceptions, was left to the individual States. Disputes between States 
with common interests in the navigation of certain rivers and bays were 
inevitable. Discriminatory regulations were followed by reprisals.
        Virginia, recognizing the need for an agreement with Maryland 
respecting the navigation and jurisdiction of the Potomac River, 
appointed in June

[[Page xvii]]
1784, four commissioners to ``frame such liberal and equitable 
regulations concerning the said river as may be mutually advantageous to 
the two States.'' Maryland in January 1785 responded to the Virginia 
resolution by appointing a like number of commissioners\5\ ``for the 
purpose of settling the navigation and jurisdiction over that part of 
the bay of Chesapeake which lies within the limits of Virginia, and over 
the rivers Potomac and Pocomoke'' with full power on behalf of Maryland 
``to adjudge and settle the jurisdiction to be exercised by the said 
State, respectively, over the waters and navigations of the same.''
        \5\George Mason, Edmund Randolph, James Madison, and Alexander 
Henderson were appointed commissioners for Virginia; Thomas Johnson, 
Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for 
Maryland.
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        At the invitation of Washington the commissioners met at Mount 
Vernon, in March 1785, and drafted a compact which, in many of its 
details relative to the navigation and jurisdiction of the Potomac, is 
still in force.\6\ What is more important, the commissioners submitted 
to their respective States a report in favor of a convention of all the 
States ``to take into consideration the trade and commerce'' of the 
Confederation. Virginia, in January 1786, advocated such a convention, 
authorizing its commissioners to meet with those of other States, at a 
time and place to be agreed on, ``to take into consideration the trade 
of the United States; to examine the relative situations and trade of 
the said State; to consider how far a uniform system in their commercial 
regulations may be necessary to their common interest and their 
permanent harmony; and to report to the several State, such an act 
relative to this great object, as when unanimously ratified by them, 
will enable the United States in Congress, effectually to provide for 
the same.''\7\
        \6\Text of the resolution and details of the compact may be 
found in Wheaton v. Wise, 153 U.S. 155 (1894).
        \7\Transill, op. cit., 38.
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        This proposal for a general trade convention seemingly met with 
general approval; nine States appointed commissioners. Under the 
leadership of the Virginia delegation, which included Randolph and 
Madison, Annapolis was accepted as the place and the first Monday in 
September 1786 as the time for the convention. The attendance at 
Annapolis proved disappointing. Only five States--Virginia, 
Pennsylvania, Delaware, New Jersey, and New York--were represented; 
delegates from Massachusetts, New Hampshire, North Carolina, and Rhode 
Island failed to attend. Because of the small representation, the 
Annapolis convention did not deem ``it advisable to proceed on the 
business of their mission.'' After an exchange of views, the Annapolis 
delegates unanimously submitted to their respective States a report in 
which they suggested that a convention of representatives from all the 
States meet at Philadelphia on the second Monday in May 1787 to examine 
the defects in the existing system of government and formulate ``a plan 
for supplying such defects as may be discovered.''\8\The Virginia 
legislature acted promptly upon this recommendation and appointed a 
delegation to go

[[Page xviii]]
to Philadelphia. Within a few weeks New Jersey, Pennsylvania, North 
Carolina, Delaware, and Georgia also made appointments. New York and 
several other States hesitated on the ground that, without the consent 
of the Continental Congress, the work of the convention would be extra-
legal; that Congress alone could propose amendments to the Articles of 
Confederation. Washington was quite unwilling to attend an irregular 
convention. Congressional approval of the proposed convention became, 
therefore, highly important. After some hesitancy Congress approved the 
suggestion for a convention at Philadelphia ``for the sole and express 
purpose of revising the Articles of Confederation and reporting to 
Congress and the several legislatures such alterations and provisions 
therein as shall when agreed to in Congress and confirmed by the States 
render the Federal Constitution adequate to the exigencies of Government 
and the preservation of the Union.''
        \8\Id., 39.
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        Thereupon, the remaining States, Rhode Island alone excepted, 
appointed in due course delegates to the Convention, and Washington 
accepted membership on the Virginia delegation.
        Although scheduled to convene on May 14, 1787, it was not until 
May 25 that enough delegates were present to proceed with the 
organization of the Convention. Washington was elected as presiding 
officer. It was agreed that the sessions were to be strictly secret.
        On May 29 Randolph, on behalf of the Virginia delegation, 
submitted to the convention 15 propositions as a plan of government. 
Despite the fact that the delegates were limited by their instructions 
to a revision of the Articles, Virginia had really recommended a new 
instrument of government. For example, provision was made in the 
Virginia plan for the separation of the three branches of government; 
under the Articles executive, legislative, and judicial powers were 
vested in the Congress. Furthermore the legislature was to consist of 
two houses rather than one.
        On May 30 the Convention went into a committee of the whole to 
consider the 15 propositions of the Virginia plan seriatim . These 
discussion continued until June 13, when the Virginia resolutions in 
amended form were reported out of committee. They provided for 
proportional representation in both houses. The small States were 
dissatisfied. Therefore, on June 14 when the Convention was ready to 
consider the report on the Virginia plan, Paterson of New Jersey 
requested an adjournment to allow certain delegations more time to 
prepare a substitute plan. The request was granted, and on the next day 
Paterson submitted nine resolutions embodying important changes in the 
Articles of Confederation, but strictly amendatory in nature. Vigorous 
debate followed. On June 19 the States rejected the New Jersey plan and 
voted to proceed with a discussion of the Virginia plan. The small 
States became more and more discontented; there were threats of 
withdrawal. On July 2, the Convention was deadlocked over giving each

[[Page xix]]
State an equal vote in the upper house--five States in the affirmative, 
five in the negative, one divided.\9\
        \9\The New Hampshire delegation did not arrive until July 23, 
1787.
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        The problem was referred to a committee of 11, there being 1 
delegate from each State, to effect a compromise. On July 5 the 
committee submitted its report, which became the basis for the ``great 
compromise'' of the Convention. It was recommended that in the upper 
house each State should have an equal vote, that in the lower branch 
each State should have one representative for every 40,000 inhabitants, 
counting three-fifths of the slaves, that money bills should originate 
in the lower house (not subject to amendment by the upper chamber). When 
on July 12 the motion of Gouverneur Morris of Pennsylvania that direct 
taxation should also be in proportion to representation was adopted, a 
crisis had been successfully surmounted. A compromise spirit began to 
prevail. The small States were not willing to support a strong national 
government.
        Debates on the Virginia resolutions continued. The 15 original 
resolutions had been expanded into 23. Since these resolutions were 
largely declarations of principles, on July 24 a committee of five\10\ 
was elected to draft a detailed constitution embodying the fundamental 
principles which had thus far been approved. The Convention adjourned 
from July 26 to August 6 to await the report of its committee of detail. 
This committee, in preparing its draft of a Constitution, turned for 
assistance to the State constitutions, to the Articles of Confederation, 
to the various plans which had been submitted to the Convention and 
other available material. On the whole the report of the committee 
conformed to the resolutions adopted by the Convention, though on many 
clauses the members of the committee left the imprint of their 
individual and collective judgments. In a few instances the committee 
avowedly exercised considerable discretion.
        \10\Rutledge of South Carolina, Randolph of Virginia, Gorham of 
Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania.
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        From August 6 to September 10 the report of the committee of 
detail was discussed, section by section, clause by clause. Details were 
attended to, further compromises were effected. Toward the close of 
these discussions, on September 8, another committee of five\11\ was 
appointed ``to revise the style of and arrange the articles which had 
been agreed to by the house.''
        \11\William Samuel Johnson of Connecticut, Alexander Hamilton of 
New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, 
and Rufus King of Massachusetts.
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        On Wednesday, September 12, the report of the committee of style 
was ordered printed for the convenience of the delegates. The Convention 
for 3 days compared this report with the proceedings of the Convention. 
The Constitution was ordered engrossed on Saturday, September 15.
        The Convention met on Monday, September 17, for its final 
session. Several of the delegates were disappointed in the result. A few 
deemed the new Constitution a mere makeshift, a series of unfortunate 
compromises. The advocates of the Constitution, realizing the impending 
difficulty of 

[[Page xx]]
obtaining the consent of the States to the new instrument of Government, 
were anxious to obtain the unanimous support of the delegations from 
each State. It was feared that many of the delegates would refuse to 
give their individual assent to the Constitution. Therefore, in order 
that the action of the Convention would appear to be unanimous, 
Gouverneur Morris devised the formula ``Done in Convention, by the 
unanimous consent of the States present the 17th of September...In 
witness whereof we have hereunto subscribed our names.'' Thirty-nine of 
the forty-two delegates present thereupon ``subscribed'' to the 
document.\12\
        \12\At least 65 persons had received appointments as delegates 
to the Convention; 55 actually attended at different times during the 
course of the proceedings; 39 signed the document. It has been estimated 
that generally fewer than 30 delegates attended the daily sessions.
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        The convention had been called to revise the Articles of 
Confederation. Instead, it reported to the Continental Congress a new 
Constitution. Furthermore, while the Articles specified that no 
amendments should be effective until approved by the legislatures of all 
the States, the Philadelphia Convention suggested that the new 
Constitution should supplant the Articles of Confederation when ratified 
by conventions in nine States. For these reasons, it was feared that the 
new Constitution might arouse opposition in Congress.
        Three members of the Convention--Madison, Gorham, and King--were 
also Members of Congress. They proceeded at once to New York, where 
Congress was in session, to placate the expected opposition. Aware of 
their vanishing authority, Congress on September 28, after some debate, 
decided to submit the Constitution to the States for action. It made no 
recommendation for or against adoption.
        Two parties soon developed, one in opposition and one in support 
of the Constitution, and the Constitution was debated, criticized, and 
expounded clause by clause. Hamilton, Madison, and Jay wrote a series of 
commentaries, now known as the Federalist Papers, in support of the new 
instrument of government.\13\ The closeness and bitterness of the 
struggle over ratification and the conferring of additional powers on 
the central government can scarcely be exaggerated. In some States 
ratification was effected only after a bitter struggle in the State 
convention itself.
        \13\These commentaries on the Constitution, written during the 
struggle for ratification, have been frequently cited by the Supreme 
Court as an authoritative contemporary interpretation of the meaning of 
its provisions.
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        Delaware, on December 7, 1787, became the first State to ratify 
the new Constitution, the vote being unanimous. Pennsylvania ratified on 
December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of 
the struggle which had taken place in that State. New Jersey ratified on 
December 19, 1787, and Georgia on January 2, 1788, the vote in both 
States being unanimous. Connecticut ratified on January 9, 1788; yeas 
128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of 
19 votes in a convention with a membership of 355, endorsed the new 
Constitution, but rec

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ommended that a bill of rights be added to protect the States from 
federal encroachment on individual liberties. Maryland ratified on April 
28, 1788; yeas 63, nays 11. South Carolina ratified on May 23, 1788; 
yeas 149, nays 73. On June 21, 1788, by a vote of 57 to 46, New 
Hampshire became the ninth State to ratify, but like Massachusetts she 
suggested a bill of rights.
        By the terms of the Constitution nine States were sufficient for 
its establishment among the States so ratifying. The advocates of the 
new Constitution realized, however, that the new Government could not 
succeed without the addition of New York and Virginia, neither of which 
had ratified. Madison, Marshall, and Randolph led the struggle for 
ratification in Virginia. On June 25, 1788, by a narrow margin of 10 
votes in a convention of 168 members, that State ratified over the 
objection of such delegates as George Mason and Patrick Henry. In New 
York an attempt to attach conditions to ratification almost succeeded. 
But on July 26, 1788, New York ratified, with a recommendation that a 
bill of rights be appended. The vote was close--yeas 30, nays 27.
        Eleven States having thus ratified the Constitution,\14\ the 
Continental Congress--which still functioned at irregular intervals--
passed a resolution on September 13, 1788, to put the new Constitution 
into operation. The first Wednesday of January 1789 was fixed as the day 
for choosing presidential electors, the first Wednesday of February for 
the meeting of electors, and the first Wednesday of March (i.e. March 4, 
1789) for the opening session of the new Congress. Owing to various 
delays, Congress was late in assembling, and it was not until April 30, 
1789, that George Washington was inaugurated as the first President of 
the United States.
        \14\North Carolina added her ratification on November 21, 1789; 
yeas 184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas 
34, nays 32.
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