Debates over the Constitution, then and since

Debates over the Constitution, then and since



Debates over ratification: Whether to adopt the Constitution in the first place

Why did so many people suspect the Constitution was “dangerous”? The alternative: Depending on “accident and force.” The charge that the Constitution was “illegal.” Responses to the “illegality” charge. Pro-Constitution strategy of speed. The issues they debated about. The “bill of rights”: The most important issue. Conclusion: We actually owe our freedom to both sides (and here's why).

Patrick Henry

The “Federalist Papers”: Frequently asked questions about them, and why they're important

Who wrote the Federalist Papers? (And why are they considered so authoritative?) When were they written? (And what was going on at that time?) Why were they written? (And did the authors have a specific goal in mind?) Did the Federalist Papers accomplish their intended goal of influencing the debates? Why are they called the “Federalist Papers”? Is it all one book, or more of a collection of articles? So what's in the “Federalist Papers”? Do they say anything important? So what was so wrong with the document that the Constitution replaced? (And why do the Federalist Papers spend so much time talking about it?) So what's the big deal about them? (And how have they been used in practice?) Why are they still relevant today?

John Jay

Who is “Publius”?: The secret pen name of the men who wrote the Federalist Papers

It was common at this time for Americans to write under pen names named after great Romans. Alexander Hamilton considered Gouverneur Morris and William Duer to write as “Publius.” The name “Publius” came from the Roman statesman Publius Valerius Poplicola (or Publicola). Why did these men choose “Publius” as their collective pen name for the Federalist Papers? We know Alexander Hamilton, James Madison, and John Jay wrote the “Federalist Papers,” but we don't always have good information about which one of the men wrote particular essays. Nonetheless, all of these essays are timeless classics, which remain fresh and relevant today.

Alexander Hamilton

Debates over checks & balances: Do they actually conflict with separation of powers?

Some accused the Constitution itself of violating the “separation of powers” doctrine. Why did they think this? Response from the Father of the Constitution. If the Constitution put too much power in any one place, that would indeed be fatal to it; but it didn't. British Constitution has checks & balances, too. So do the state constitutions. Total separation of powers not possible. Maintaining the separation of powers in practice … requires checks & balances. “Ambition must be made to counteract ambition.” Human nature is what makes this necessary. Checks & balances are the genius of our Constitution.

James Madison

The Bill of Rights: Important in the debates over ratification (adopted 1791)

The original Constitution didn't have a Bill of Rights. The controversy over the Bill of Rights. Who got to write the Bill of Rights? Getting through the amendment process. And the debates continue … The reality that words mean things; and specifically, the words of the Constitution have meanings.

United States Bill of Rights

The First Amendment: Debates over freedom of religion, and public “establishment” of religion

The most hotly debated sentence in American history. Establishment of religion, or “prohibiting the free exercise thereof.” Both clauses protect the rights of minority religions from government. The Declaration of Independence contained at least four references to God. “No religious test shall ever be required.” Conclusion: The Founding Fathers never intended for government to be “protected” from religion.

Thomas Jefferson

The First Amendment: Freedom of speech, freedom of the press, and peaceable assemblies

The first thing many people think of about the Constitution. Freedom of speech and freedom of the press, and right to “petition the government.” There are some legally recognized exceptions to this, from perjury to death threats. An un-free press is a dangerous monopoly. The right of the people “peaceably to assemble.” What are the “reasonable exceptions”? (The debate continues today … ) Conclusion: The right of free expression is the bedrock of American political life.

Martin Luther King, while giving his "I Have A Dream" speech

The Second Amendment: Constitutional debates on the people's right to keep and bear arms

Does the Second Amendment apply only to the “militia,” or to the whole “people”? What distinctions did the Founding Fathers make between the “militia” and the “people”? The Constitution actually distinguished between a “militia” and an “army.” The Founding Fathers feared “standing armies,” and made sure to limit their power. A group need not be “employed in the service of the United States” to qualify as a “militia.” Alexander Hamilton said that a “well-trained militia” protects against rogue standing armies. James Madison said that a “militia” is much larger than a “standing army,” and would be a full two-thirds of “the number able to bear arms.” James Madison thought it possible to shake off the “yoke” of tyranny with the aid of “arms” alone. Defining “the people” too narrowly jeopardizes other rights besides the right to “bear arms”; such as the right to vote, the right to protest, and the right not to be searched. The Second Amendment doesn't restrict gun rights to the “militia” anyway, and never did.

Infantry in the American Revolution

Rights to fair trial: Judicial restraints on the power of the police and the president

Although the president enforces the laws, they can't punish people without the courts … so the very existence of the court system is itself a check on the presidency. Jurisdiction of the supreme court vs. the inferior courts. Right to trial by jury for criminal cases, and even for some civil cases. Congress can't declare people guilty and punish them without a trial, or criminalize things that were legal when they were done. Police can't search people, confiscate things, or arrest people without the courts. Conclusion: An independent judiciary checks the power of the police.

United States Department of Justice

Rights of the accused: The balance between individual protections and criminal justice

People are innocent until proven guilty, and do not have to “prove” their innocence. William Blackstone thought it “better that ten guilty persons escape than one innocent suffer.” Fifth Amendment requires due process of law, without double jeopardy or forced confessions. Fifth Amendment explicitly authorizes the death penalty (in at least some cases), and the clause about “cruel and unusual punishments” actually isn't seen as a barrier to this. Just because a right isn't listed in the Bill of Rights, doesn't mean it's not a right. Fourteenth Amendment applies other amendments to states (and not just federal government). Conclusion: The Bill of Rights has some important protections for our basic rights.

John Adams

Congressional pay: The amendment that never made it into the Bill of Rights

The Bill of Rights was the first ten amendments to the Constitution, but the Congress actually passed twelve proposed amendments at that time. This one was never ratified, and so never made it into the Constitution  This one, however, did eventually get ratified; although it had to wait 200 years to do so. Specifically, it was ratified in 1992, and became the Twenty-Seventh Amendment.

The Twenty-Seventh Amendment, certification in the National Archives

Abolishing slavery: The things that led up to the famous antislavery amendment

Fugitive Slave Clause, which the antislavery movement hated. The meaning of the word “abolitionist” was kept secret from slaves, because it referred to the abolition of slavery. The abolitionist movement goes back to the American Revolution in the North. The unsung heroes of the abolitionist movement. The debate over the westward expansion of slavery. The Fugitive Slave Law of 1850. The infamous “Dred Scott” decision by the Supreme Court. The John Brown raid set the stage for the Civil War. Violence between the two sides started even before the Civil War had begun.

Frederick Douglass

Backup plans: Vacancy, disability, and presidential elections without a clear majority

The true test of a country is how it handles emergencies. If there are vacancies in the Senate and House of Representatives. If there are vacancies in the judicial branch, or various parts of the executive branch. If the president (or president elect) dies, or is not yet qualified to become president. If no presidential candidate has a majority in the elections. If the presidential candidates that the Congress can choose from have died. If there's a vacancy in the office of the Vice President. If the president wants to have someone else take over for him (or her) as Acting President. If the Cabinet wants someone to take over for the president against his (or her) wishes. If the president later wants to resume his (or her) office. Conclusion: The Constitution has a backup plan for virtually everything.

Lyndon B. Johnson taking the oath of office aboard Air Force One,

just hours after the Kennedy assassination (1963)

Voting rights: Some important amendments about who is allowed to vote in this country

Many Americans have historically been denied the vote in this country, and the changes in these policies were made somewhat gradually over a period of decades. Certain categories cannot be used as grounds for disenfranchisement, such as: Race, color, or “previous condition of servitude.” Sex (or in other words, “gender”). Age (for people “18 years of age or older”). Poll taxes (or any other kind of taxes). Right to vote can still be taken away as punishment for various other kinds of crimes. Right to vote in American elections can also be denied to people who are not American citizens. Disenfranchisement for insanity or illiteracy actually isn't mentioned in the Constitution. But most Americans can (and do) have the right to vote today, which is as it should be. Governments derive their just powers from “the consent of the governed,” and this consent can never be given without the legal right to vote.

Elizabeth Cady Stanton and Susan B. Anthony

Epilogue: Some thoughts about civics education

Quote from Lincoln about Constitution. Constitution not taught as it should be. Why are people so misinformed about it? The solution for our schools. The solution for our homes. Yes, we can do it – it's not too late. Miracle at Philadelphia. Benjamin Franklin quote about adopting the Constitution. And the miracle lives on …

Benjamin Franklin

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