The Constitution of the United States

Table of Contents

1. Preface

2. Introduction

3. History
3.1 The Way to the Constitution
3.2 Growing Debates with England
3.3 The Articles of Confederation
3.4 The Constitutional Convention
3.5 Ideas Behind the Constitution

4. Outline of the Constitution
4.1 The Construction
4.2 The Three Principles of the Constitution

5. Interpreting the Constitution

6. Conclusion

References

Declaration of Authorship

Appendix

Diagram 1

Diagram 2

Diagram 3

The American Constitution

1. Preface

The following paper deals with the Constitution of the United States. I chose this topic because I have always been interested in history, particularly the effects of specific occurrences. The United States is also very fascinating. I appreciate the way of life and the mentality there. Due to this reason, I decided to write on the American Constitution. Considering my intention to study Law after school, this paper will probably be helpful, because the German Constitution is based on the American model and its ideals. I started to take a closer look at this topic, especially the process of creation and the ideas behind it.

I learned that the Constitution was an enormous step towards equality and democracy (according to our current definitions of the expressions). I admire the people who created this extraordinary masterpiece.

2. Introduction

America - the country of blue jeans, chewing gum, Hollywood and Donald Duck. For some people it is also connected with the Vietnam War or the Quakers, who supplied the German population with food contributions after the Second World War.

But we, the Germans, and Europeans in general, always think we are a little bit more “grown up” than the Americans - that we are superior in culture. We should know better. If we examine the situation closely, we might change our minds.

The foundation of the United States - the Constitution - was started in 1787. It is two years older than the French Revolution. Made by farmers, its substance is still untouched. For 215 years the Constitution has been the undisputed basis of a world power consisting of a quarter billion people. In 1848, when the revolution in Germany failed, the American democracy was already older than our present one.

Since 1789, a president has been elected every four years. There have been great and outstanding men in the top position, but there have also been incompetent ones. However, at no time, could a dictator, a felon or a war-monger seize power. Never in 200 years! Our first try at democracy failed after 13 years. The “civilised”, “grown-up” Germans had all in one - war- monger, dictator and felon. How clearly thought-out, how stabile, how safe the American system of checks and balances and the segregation of powers has been. 200 years later and it is still undamaged - even with one or two “weak” presidents.

A lot of people maintain that America has no history. Reality shows the opposite. Americans are fanatic about history. Their great presidents, like George Washington, Thomas Jefferson and Abraham Lincoln, were taken as models over and over again. Every pupil knows that Thomas Jefferson and John Adams created the Declaration of Independence and that John Hancock signed it on July 4th, 1776. Since then this date has been a national holiday. The original Constitution can be seen in the National Archives in Washington and millions of Americans have been there to see it. To understand America and its Constitution you have to understand its history.

3. History

3. 1. The Way to the Constitution

Beginning in the 16th century, settlers came to North America and founded colonies. All of them had the hope to find a better life in the “New World”. The hard and uncertain conditions in the “New World” could not stop them from leaving their home country. They saw possibilities to achieve their goals, like living in religious freedom, getting their own small part of land or political liberty. These settlers started to build villages in the unknown wilderness. Often they fought against the Native Americans.

More and more there was a manpower shortage. The farmland was cheap and the labour rare and expensive. As a result, many poor Europeans, who longed for a better life, got a free crossing over the ocean. In return these people had to work on farms until they had paid back their debts. Then they became free and often could create an existence with some starting capital like cash money or a small farm. The population grew fast as more and more people followed. A huge number of workers came from Africa. As of 1790, there were more Negroes than whites living in the colonies.

In only a few decades thirteen English colonies were created in North America. Each of them was independent and each of them had its own laws. The biggest differences were in connection to religion. In Massachusetts, for example, the laws of the church were enforced. Only members of the puritanical church had the right to vote. The state and the church were one and the same. But in other colonies religion did not play a huge role. Christians and Jews, and among others, lived next to each other and the government did not influence this. At the end of the 18th century about 4 million people from nearly all countries in Europe lived in the colonies: English, German, Irish, French, Scottish, Swiss, Italian. America brought them all together, but how and why? They all had the same aims, worries and illusions.

3. 2. Growing Debates with England

90% of the settlers were farmers in the English colonies. They were pressured into farming because the government wanted the colonies to fulfil their functions; the colonies produced and shipped raw material to Europe and bought finished products primarily from England. That is why England forbid secondary industry in North America. These laws lead to disturbances. After the long war against France, England tried to shift the dept onto the colonies. The “Stamp Act” was enacted. This tax was paid on all official papers and newspapers.

Most colonists were indignant. They relied on the principle of the English parliament “No taxation without representation!” No tax should be enacted without agreement of the nation. Parliament didn’t have the right to make new taxations for the colonies because there were no representatives of the American settlers in the parliament of London. The American businessmen boycotted the products from England. The refusal was so serious, that they cancelled the “Stamp Act”. Instead the duty was raised. England looked strictly after the ports in the colonies. Later most duties were also abolished. Tea was the only product with a duty. In Boston there was a group of settlers who called themselves “the Sons of Freedom”. They decided to stop the time of high duties from England. If anybody supported the arrival of tea from England, that person was seen as an enemy of the American settlers. One day there were some ships with tea in the port of Boston. The “Sons of Freedom” decided to show public resistance to England and the duties. Two hundred people, costumed as native Americans, threw the expensive tea into the water. This act became known as the Boston Tea Party. The port was closed and England sent more troops to control the situation. When it finally came to a fight between the settlers and the English Army, all thirteen colonies showed solidarity with the population of Boston, and all sent representatives to a congress in Philadelphia. They declared the independence of the thirteen colonies on July 4th, 1776. John Hancock, the president of the Congress, was the first one who signed with outsized letters the great Declaration of Independence. The other signers were kept in secret at first, in the case that the declaration would fail. They penned the Bill of Rights, which are rights that every human should have. The reaction of England was a declaration of war. They sent more troops to North America. The fight between “the United States of America” - the colonists chose the name for their new republic - and England lasted a long time and claimed a lot of victims from both sides. The colonists were often superior because they could use the terrain in their favour, but they could not make a decisive victory until the French government supported them. France sent “the enemy of their enemy” soldiers and war materials. In 1783 the war came to an end. England accepted the independence of the United States of America”.

3. 3. The Articles of Confederation

The thirteen colonies became thirteen states after the war and were only connected by the Congress. The single states disagreed on many points, but they all wanted a central government. In 1778 the Articles of Confederation were produced. This concept established a League of Friendship among the states, but not a political union. The states remained separate and sovereign. A one-chamber congress built the central government. Each state had a single vote, but Congress had only few powers and could even not impose taxes. There was no president and no central court.

As a result a lot of national problems could not be solved, for example, the repayment of debts raised from the American Revolution or the War of Independence. A depression followed and the threat of further rebellions spurred the states to call a convention to revise the Articles of Confederation.

3. 4. The Constitutional Convention

The Constitutional Convention began on May 25, 1787, in Philadelphia’s Independence Hall. All of the nation’s most prominent men turned up - George Washington, James Madison, Alexander Hamilton and Benjamin Franklin. In general 55 of the 74 delegates attended. They agreed in most issues, but four questions became difficult to resolve.

A. How are people represented in Congress?

One key question of representation in Congress resulted finally in a compromise. Two ideas were debated:

➔ The members of both houses of Congress are allocated according to the population of each state, and

➔ all states are given equal representation in a one-chamber Congress regardless of population.

In the end, the delegates decided to let the states have it both ways.

In the upper house, the Senate, the states got an equal voice and in the lower house, the House of Representatives, representation was apportioned by population. This agreement became known as the “Great Compromise”.

B. What to do about slavery?

The Great Compromise led to another problem. If the number of representatives depends on the population, should slaves also belong to the nation? Southern states would have an advantage because of their large slave number. Even though the words “slaves” and “slavery” do not appear in the Constitution, there is a clause in Article I that counted slaves as only three-fifths of a person.

C. What does the powers of the president and the procedures for election look like?

The role of the president also became interesting, because the delegates wanted to avoid a monarchy, but tried to elect a single person with power. The final shape emerged: “ A single leader, elected to a four-year term and eligible for re-election, with authority to veto bills enacted by Congress. The president was also given command of the military and the power to appoint federal officials, subjected to confirmation by the Senate”¹.

D. What are the powers and functions of the federal court?

The delegates agreed to create a single Supreme Court to veto laws by both Congress and state legislatures, in addition Congress was permitted to elect lower federal courts.

3. 5. Ideas Behind the Constitution

Some of the men who wrote the Constitution studied history and political philosophy. They referred to already existing theories. Two of them had a great influence in the creation of the Constitution, particularly the separation of power. John Locke, an important British political philosopher, wrote the Second Treatise of Government (1690). It maintains that people unite in order to keep their lives, liberties and property. So they delegate their power and accept a government. These leading positions are dependent of the law and the hand over of power. The authority elected by the nation is confronted with the ideals and concepts of the people. The French writer Baron de Montesquieu was the second major intellectual influence on the Constitution. The concept of federalism was copied from colonial charters such as the “Mayflower Compact”. It gave authority to the people to administer their own territories. Even today, the single states are permitted to rule themselves. Nevertheless the Constitution is above all these autonomous governmental powers. To show that the Constitution was a constitution for a new nation and no longer a compact between states, the framers adopted a preamble that began: “We, the people of the United States[…] “².

In 1789, the Constitution became effective. In the same year George Washington was elected as the first president of the United States. Within two years of the signing of the federal Constitution, ten amendments, collectively known as the Bill of Rights, were added to the Constitution to ensure guarantees of individual liberties.

4. Outline of the Constitution

4. 1. The Construction

The Constitution is also called the “Supreme Law” in the United States because neither a law nor the government is allowed to contradict it and everyone is a part of this “first law”. When the Constitution was written, nine states needed to sign before it was in force. But first there were only eight states: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland and South Dakota. One state was missing. Finally, New Hampshire showed the readiness to join. So the Constitution was able to become the future system of the United States. Before it was published in 1789, Virginia, New York , North Dakota and Rhode Island also followed.

In general the Constitution consists of two parts³:

The first part contains the original model of the Constitution, exactly how it was written. This part is also called the “Document”. The reasons for the creation and the main principles of the constitution are mentioned in this part.

Part two is the dynamic part. Here are all the amendments which were added or supplemented. This offers the Constitution the opportunity to adapt to the changing times and the given facts. Since 1789, there have been 27 amendments. The first ten are better known as the “Bill of Rights”. This Bill is a declaration guaranteeing fundamental rights of the U.S citizens.

4. 2. The Three Principles of the Constitution

The Constitution is based on three principles.

a) The rights that every American, also every one living in America, has. This first right was taken from the first sentences of the Declaration of Independence (“[…] all men are created equal […]”⁴ ). There is also the Right to Life, of Freedom, and of Pursuing Happiness. The Right of Religious Freedom, the Protection of Self, including the Right to Own and Carry a Gun, the Right to Speak Freely and the Right to a Fair Trial were derived later.
b) Democracy. The nation is the administrator. Each person has the right to vote and the possibility to run for election. This is a dynamic part. The Constitution adapts to new situations. With the choice of a representative, you can influence this adaptation, so each individual indirectly has an influence on the Constitution.
c) Segregation of Powers⁵. The Constitution divides the government into three branches, each separate and distinct from another.

1. There is an Executive Branch. It consists of the president and his/her cabinet (13 heads of department/ secretaries of state). The president is elected every 4 years and his/her presidency is limited to 2 terms. The prerequisites to become a candidate for president are:

- you have to be born an American citizen
- you have to have lived in the U.S. for at least 14 years
- you have to be over 35 years of age

The president has to manage many jobs, he/she is chief executive (budget, laws, federal policies, appoints federal officials), commander in chief (army, U.S. defence department), legislative leader (representative of the U.S.), foreign policy director (international activities) and leader of the nation (ceremonial duties, show American pride, awards).

2. The Legislative Branch consists of the Houses of Representatives (lower house) and the Senate. In the House of Representatives, there are 435 members (according to the number of states and proportionate to the population). The minimum age to serve is 25 years and there is a new election every 2 years. All bills dealing with taxes must begin here. The Senate consists of 100 members (2 from each state). Here, the minimum age is 30 and there is a six-year-term. The Senate introduces the bills and makes an approval for nominations for the president. As an executive ability, members of the Senate can sit in court to hear the case presented by the lower house.

3. The judiciary branch is represented by the Supreme Court. It is the highest court of appeal. Nine judges are appointed by the President for a lifetime.

The American Constitution has a system of checks and balances⁶.

The power given to each is delicately balanced by the power of the other two, and each branch serves as a check against potential excesses by the others. The government is not able to unilaterally enact laws. The parliament should only enact laws which correspond to the Constitution. The courts are independent.

4. A republican form of government, federalism, exists in every State, and the admission of new states as well as the government of territories is provided. There is an article which deals with the relations of the states. Full faith and credit shall be given in each state to the public arts, records and judiciary proceedings of every other state. Discrimination against citizens of other states is prohibited.

5. Interpreting the Constitution The success of the Constitution lies in flexibility. A lot of terms are not exactly defined. For example, the Constitution does not include the term “separation of power”. You have to combine the first three articles to justify the necessity of the legislative, executive and judiciary branches. Today people are still debating about the proper method of interpreting the Constitution. Different approaches can lead to different outcomes. That is why the states sometimes have their own laws and rules. The death penalty is one of the most discussed points, it exists in some states while others have already abolished this punishment. People tried to stay by the “so-called” original intent of the framers. The difficulty is that it is not clear what they meant by many constitutional phrases and the framers could not know or imagine our modern world. They would never have conceived of television or genetics. Often the meaning of the constitution changes with the times in order to solve new problems and to handle new situations.

6. Conclusion

For the first time in history, a constitution was based on human rights. It was the first modern state whose government was a democracy. (All male inhabitants had the right to vote.) There was no “king with God’s mercy”. Lincoln once said: The United States has something new under the sun, a system of government “of the people, by the people, for the people”⁷. The Americans have always been proud of their United States. In fact, the American Constitution became a model for a lot of other great constitutions, like the French and German ones.

But is the Constitution still up to date? Times have changed, life has changed, people have changed. Its strength is flexibility, and this is probably the only reason why it still exists. However, flexibility also includes risk. The words of the Constitution have always been interpreted. Someone could try to interpret it to his own benefit. The masses can easily be influenced. This danger of misusing the Constitution will hopefully not become a problem in future. However, the question of the death penalty is an example of how different interpretations of the Constitution exists: the Bill of Rights prohibits it in plain terms, even though some states try to justify this cruel ending of human life.

Arbitrariness seems to dominate in trials. An outcome is never in sight and often a result is dependent on public opinion. The public “mud bath” during the electoral battle for the presidency is escalating more and more. There is not an equal chance for everyone to run for presidency. Factors like private life, particularly private wealth, begin to play a role.

Perhaps the most noticeable drawback of the American Constitution is the absence of a social system. Social aspects have always been subordinated. For example, there is no general law for health insurance or social security.

The American Constitution is quite fascinating as it seem that no improvement is possible. But this is only a facade. In actual fact, people have to work on it year after year to adapt it to modern history and times. Since times are changing, and correspondingly the Constitution will always need to be updated, the perfect Constitution will never most likely exist..

References

I. Primary Sources:

1. The Constitution of the United States, Philadelphia, September 17, 1787, completed June 21,1788 (Current Through 1995) (for example: http://www.law.emory.edu/FEDERAL/usconst.html)
2. Lincoln, Abraham: The Gettysburg Address, Gettysburg, Pennsylvania, November 19, 1863
3. Declaration of the Representatives of the United States of America (Declaration of Independence) in general Congress assembled, July 4, 1776 (for example: http://homepages.compuserve.de/frickew/heine/decofind.htm)

II. Secondary Sources:

1. Herausgeber: Adams, Angela und Willi Paul Die Entstehung der Vereinigten Staaten und ihre Verfassung Münster, 1995
2. Herausgeber: Ballhausen, Hans-W; Birk, Gisela; Bemlochner, Ludwig Geschichte und Geschehen, Sekundarstufe II, Bd.1, Oberstufe, Ausgabe A Cornelsen, Stuttgart, 1997²
3. Herausgeber : Brünner, Christian; Mantl, Wolfgang; Welan, Manfried Studien zu Politik und Verwaltung, Francis H. Heller, USA Verfassung und Politik Böhlau-Verlag, Wien/Köln, 1987, Band 19
4. Herausgeber: Hug, Wolfgang Unsere Geschichte Wilfried Danner, Wolfgang Hug, Franz Bahl, Hejo Busley Vom Spätmittelalter bis zur Entstehung der USA, Verlag Moritz Diesterweg, Frankfurt am Main, 1987, Band 2
5. Neugebauer Woelk, Monika Revolution and Constitution Collo Quium Verlag, Berlin, 1989
6. Pacoch, J. The Ancient Constitution and the Feudal Law, Cambridge Verlag, Cambridge, 1957 (Eng.)
7. Herausgeber: WGZ- Bank Westdeutsche Genossenschafts-Zentralbank eG Klaus Jürgen Haller, Die unvernünftige Gesellschaft - Erfahrungen eines Deutschen in Amerika, Hörfunkredaktion beim Westdeutschen Rundfunk, Swissôtel Neuss, 19

III. Internetlinks:

1. http://encarta.msn.com/find/Concise.asp?z=1&pg=2&ti=761569008 Jethro K. Lieberman, B.A., J.D., Ph.D. Article: Constitution of the United States, Microsoft Corporation, 1993-2001, o.O
2. http://www.encyclopedia/com.articles/03100.html Article: Constitution of the United States The Columbia Electronic Encyclopaedia, Columbia Press., 2000, Sixth Edison, o.O, o.A.
3. http://www.magazinusa.com/lv2/hist/i_constitution.asp magazinUSA.com™, USA, 2000 / 2001 / 2002, o.O, o.A.

IV. Software:

1. Microsoft Encarta Enzyklopädie PLUS 2000 Microsoft Corporation, USA, o.O, o.J.

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¹ Constitution of the United States, Philadelphia, 1787

² Declaration of Independence, o.O., 1776

³ (see Diagram 1 in Appendix, Page 15)

⁴ Declaration of Independence, o.O., 1776

⁵ (see Diagram 2 in Appendix, Page 15)

⁶ (see Diagram 3 in Appendix, Page 16)

⁷ Lincoln, Abraham, Pennsylvania, 1863