Constitution of the United States

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Fundamental law of the U.S. federal system of government and a landmark document of the Western world. It is the oldest written national constitution in operation, completed in 1787 at the Constitutional Convention of 55 delegates who met in Philadelphia, ostensibly to amend the Articles of Confederation. The Constitution was ratified in June 1788, but because ratification in many states was contingent on the promised addition of a Bill of Rights, Congress proposed 12 amendments in September 1789; 10 were ratified by the states, and their adoption was certified on Dec. 15, 1791. The framers were especially concerned with limiting the power of the government and securing the liberty of citizens. The Constitution's separation of the legislative, executive, and judicial branches of government, the checks and balances of each branch against the other, and the explicit guarantees of individual liberty were all designed to strike a balance between authority and liberty. Article I vests all legislative powers in the Congress — the House of Representatives and the Senate. Article II vests executive power in the president. Article III places judicial power in the hands of the courts. Article IV deals, in part, with relations among the states and with the privileges of the citizens, Article V with amendment procedure, and Article VI with public debts and the supremacy of the Constitution. Article VII stipulates that the Constitution would become operational after being ratified by nine states. The 10th Amendment limits the national government's powers to those expressly listed in the Constitution; the states, unless otherwise restricted, possess all the remaining (or "residual") powers of government. Amendments to the Constitution may be proposed by a two-thirds vote of both houses of Congress or by a convention called by Congress on the application of the legislatures of two-thirds of the states. (All subsequent amendments have been initiated by Congress.) Amendments proposed by Congress must be ratified by three-fourths of the state legislatures or by conventions in as many states. Twenty-seven amendments have been added to the Constitution since 1789. In addition to the Bill of Rights, these include the 13th (1865), abolishing slavery; the 14th (1868), requiring due process and equal protection under the law; the 15th (1870), guaranteeing the right to vote regardless of race; the 17th (1913), providing for the direct election of U.S. senators; the 19th (1920), instituting women's suffrage, and the 22nd (1951), limiting the presidency to two terms. See also civil liberty; commerce clause; Equal Rights Amendment; establishment clause; freedom of speech; judiciary; states' rights.

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The basic and supreme law of the land is the Constitution of the United States of America. It consists of 7 articles, which were drafted by the Constitutional Convention of 1787 in Philadelphia, and 27 amendments. More than 200 years old, this document is the oldest written constitution of a national state in use anywhere in the world today. (The oldest written constitution of any sort in use today is the Massachusetts state constitution of 1780.) Most of the national constitutions around the world have existed only since about 1970.

Under the Constitution, ratified in 1788, Congress was divided into two houses and power was distributed among the legislative, executive, and judicial branches of the federal government and the states.

The two compromises critical to the success of the Constitutional Convention both involved Congress. In the Great Compromise, the states were assured equal representation in the Senate and proportional representation (representation in proportion to their population) in the House of Representatives. The Three-fifths Compromise, which allowed a slave to be counted as three-fifths of a person, satisfied the Southern states because it meant their slaves (called “other persons”) would be counted for purposes of taxation and representation in Congress.

Article 1, the longest part of the Constitution, deals exclusively with Congress. It grants the House and Senate together the power to collect taxes, borrow and coin money, raise and support an army and navy, declare war, set up a federal court system, establish rules for the naturalization of foreigners seeking citizenship, fix standard weights and measurements, establish post offices and post roads, make copyright and patent laws to protect authors and inventors, and pass legislation to govern the District of Columbia. The Constitution also authorizes Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Because this provision is so broad and sweeping, it is known as the “elastic clause.”

The Constitution placed some restrictions on congressional power. Congress could not stop the slave trade until 1808 nor could it restrict habeas corpus (the right of a person accused of a crime to know the charges against him), pass ex post facto laws (make something a crime after the fact), give preference to any port of commerce, or grant or allow any federal officeholder to accept a title of nobility. Nor could members of Congress serve simultaneously in any other civil office.

Like other national constitutions, the U.S. Constitution establishes a general framework for organizing and operating a government. It is not a detailed blueprint for governing on a day-to-day basis. The Constitution consists of only about 7,500 words. It does not attempt to consider the details of how to run the national government. Officials who run the government supply the details that fit the general framework.

As the government's framework, the Constitution must be interpreted as specific problems arise. For example, the 4th Amendment to the Constitution protects people against “unreasonable searches and seizures” by police or other government officials. But what does “unreasonable searches and seizures” mean? The automobile did not exist in 1787, when the Constitution was written. Does the 4th Amendment allow the police to stop and search a car? In the case of United States v. Ross (1982), the Supreme Court decided that they could.

The Supreme Court is often called upon to answer such questions. Its decisions help to update the Constitution to reflect changing times and circumstances. Decisions by judges who interpret and apply the Constitution to specific cases help to add substance to the general framework of government established by the Constitution. These judicial decisions formulate constitutional law.

In addition to the sections pertaining to Congress, several other parts of the Constitution assign duties and powers to the President and judiciary. For example, the President can dispatch military forces to put down civil disorder or rebellion or to enforce federal laws if necessary. The Constitution also places limits on the powers of officials such as the President, Supreme Court justices, and members of Congress.

Such limitations on the expressed powers granted to the government protect the liberties of the people. For example, although the U.S. Treasury Department collects taxes, an act of Congress must authorize any expenditure of that tax money. More generally, the first 10 amendments to the Constitution, known collectively as the Bill of Rights, protect the liberties of the people.

All government officials must follow the Constitution when carrying out their duties. For example, the Constitution (Article 6) says that “no religious test shall ever be required as a qualification to any office of public trust in the United States.” Thus the President may not require any employees of the executive branch of government to attend church services in order to keep their jobs.

The Constitution grants powers in the name of the people, and the government draws its power from the consent of the governed. The document assumes that government officials will use their powers in the interests of the people. The preamble to the Constitution says,“We the People of the United States … do ordain and establish this Constitution for the United States of America.”

Representatives of the people wrote and approved the Constitution of the United States. Granting certain powers to government in the name of the people gives legitimacy to the government because most of the people, viewing it as legal and proper, are likely to find it acceptable.

See also Amendments, constitutional; Bill of Rights; Constitutional democracy; Constitutionalism; Constitutional law

Sources

• George Anastaplo, The Constitution of 1787: A Commentary (Baltimore: Johns Hopkins University Press, 1989).
• Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little, Brown, 1966).
• David P. Currie, The Constitution of the United States: A Primer for the People (Chicago: University of Chicago Press, 1988).
• Donald A. Ritchie, The U.S. Constitution (New York: Chelsea House, 1989)

The Constitution, which has served since 1789 as the basic frame of government of the republic of the United States, was the work of a constitutional convention that sat at Philadelphia from late May 1787 until mid-September of that year. The convention had been called into being as the culminating event of a lengthy campaign for constitutional reform staged by a number of nationalistic political leaders, above all James Madison and Alexander Hamilton, both of whom had long been convinced that the Articles of Confederation were hopelessly deficient as a frame of government. By 1786, the growing somnolence of the Confederation Congress, the manifest incompetence of the Confederation government in foreign affairs, and the obvious state of national bankruptcy, together with the sense of panic and dismay occasioned by Shays'S Rebellion in Massachusetts, had at long last spurred the states into concerted action.

The Virginia legislature issued an invitation to its sister states to meet in convention in Philadelphia in May 1787. As one after another of the other states responded, the Confederation Congress reluctantly joined in the call.

Twelve states in all sent delegates to the convention at Philadelphia. Rhode Island alone, then in the grip of a paper-money faction fearful of federal monetary reform, boycotted the meeting. In all, the twelve participating states appointed seventy-four delegates, of whom fifty-five actually put in an appearance. Of these, some fifteen or twenty men were responsible for virtually all of the convention's work; the contribution of the others was inconsequential.

Dominating the convention's proceedings from the beginning was a group of delegates intent upon the creation of a genuinely national government possessed of powers adequate to promote the security, financial stability, commercial prosperity, and general well-being of all of the states. Prominent among them were George Washington, whom the delegates chose as their presiding officer; James Madison, whose leadership in the convention would one day earn him the well-deserved title of "Father of the Constitution"; James Wilson, congressman and legal scholar from Pennsylvania; Gouverneur Morris, a brilliant and conservative aristocrat of New York background, also present as a Pennsylvania delegate; Rufus King, a highly respected veteran congressman from Massachusetts; and Charles Cotesworth Pinckney and John Rutledge of South Carolina, representatives of that state's rice-planter aristocracy. In the nationalist camp also were the aged, garrulous, but vastly prestigious Benjamin Franklin of Pennsylvania; the pretentious but somewhat lightweight Edmund Randolph of Virginia; and Alexander Hamilton, whose extremist beliefs in centralized aristocratic government together with his inability to control the States' Rights majority in the New York delegation cast a shadow on his convention role.

The nationalists also could command on most occasions the support of a group of moderate delegates who accepted the necessity for strong central government but were willing to compromise substantially with the convention's states' rights bloc when that proved necessary. Prominent among these men were Elbridge Gerry of Massachusetts, Oliver Ellsworth and Roger Sherman of Connecticut, and Abraham Baldwin of Georgia.

A small, but significant, bloc of states' rights delegates was firmly opposed to the creation of a sovereign national government. Its leaders included William Paterson of New Jersey, the author of the New Jersey Plan; John Dickinson from Delaware; Gunning Bedford of Maryland; and John Lansing and Robert Yates of New York. These men recognized the necessity for constitutional reform but believed strongly that a confederation type of government ought to be retained and that by granting the Congress certain additional powers—above all the power to tax and to regulate commerce—the Articles of Confederation could be converted into an adequate frame of government.

Voting in the convention was by state, each state having one vote. On most occasions, the nationalist bloc controlled the votes of Massachusetts, Pennsylvania, Virginia, and the two Carolinas; on several critical decisions they proved able to muster the votes of Connecticut and Georgia as well. The states' rights party, by contrast, could count upon the votes of New York, New Jersey, Maryland, and Delaware, and occasionally Connecticut and Georgia. (New Hampshire was not yet represented in the convention.) Thus, the nationalist bloc in general controlled the convention. However, the states' rights delegates held one trump card—their implicit threat to break up the convention if they did not obtain certain concessions deemed by them to be fundamental to their cause.

The nationalist faction demonstrated its power at the very outset of the proceedings. Following organization for business, Edmund Randolph rose and in the name of his state presented what has since become known as the Virginia Plan—a proposal for a thoroughly nationalistic frame of government. Without debate the convention accepted the fifteen resolutions of the Virginia Plan as the basis for its further deliberations. The outstanding characteristic of this plan was its provision for a government that would exercise its authority directly upon individuals, in contrast to the Confederation government's dependence upon the states as agents to effect its will. The plan thus called for a genuinely national government rather than one based upon state sovereignty. The Virginia Plan's nationalism was also apparent in the broad sweep of legislative power it granted to Congress: to legislate in all cases in which the states were severally "incompetent." An ill-conceived provision would have empowered Congress to use force against any state derelict in its obligations to the Union, a procedure the nationalists soon recognized as unwise and unnecessary in a genuinely national government that would no longer use the states as agents to effect its will.

For the rest, the Virginia Plan provided for a two-house legislature, the lower house to be elected by the people of the several states and the upper to be elected by the lower out of nominations submitted by the state legislatures. A separately constituted executive officer was to be elected by Congress for an unspecified term and to be ineligible for reelection. There was also provision for a national judiciary, a portion of which, sitting with the executive, was to constitute a "council of revision," with an absolute veto over all legislation.

All this added up to a proposal to junk the Articles of Confederation outright, and to erect a powerful new national government, federal only in that it would still leave to the states a separate if unspecified area of sovereignty. Although several states' rights–oriented delegates objected that this would commit the convention to the establishment of an all-powerful central government, the Randolph-Morris resolution carried almost unanimously, Connecticut alone voting opposition.

The most serious conflict between the nationalist and states' rights factions came over the composition of the legislature. Here the nationalists, after intermittent debate lasting some seven weeks, were eventually forced to compromise, although without vital damage to the principle of nationalism. Madison, Wilson, Morris, and their fellow nationalists began the debate with the demand that both houses of Congress be apportioned according to representation and that the lower house, at least, be elected directly by the people of the several states. Only on the mode of election of the upper house did they show a disposition to compromise: here the convention early accepted unanimously a recommendation by Dickinson that senators be elected by state legislatures. But the states' rights faction, with some support from the moderates, early made it clear that they would accept nothing less than state equality in at least one house. In mid-June, to emphasize their point, they introduced the so-called New Jersey Plan, which called for a one-chamber legislature based upon state equality—that is, a continuation of the Confederation Congress. The New Jersey Plan met prompt defeat, but the impasse remained.

The ultimate solution was found in the so-called Great Compromise, reported early in July by a special Committee of Eleven, one delegate from each state. This provided that the lower house of Congress be apportioned according to population, that each state have one vote in the upper house, but that all bills for raising revenue originate in the lower house. A further resolution, offered by Elbridge Gerry, provided that senators were to vote as individuals and not as state delegations. After two weeks of further debate, the nationalists yielded and accepted the compromise.

The debate on the executive proved to be protracted and difficult, but it too yielded what amounted ultimately to a victory for a strong national government. The nationalists were determined to have a powerful, independently constituted executive, and to this end they soon decided that the provision in the Virginia Plan for election of the president by Congress was altogether unsatisfactory. But for a long time no adequate alternative appeared. Direct popular election, early proposed by Wilson, was rejected as too democratic; choice of the president by state legislatures conceded too much to states' rights.

At length, after protracted debate marked by vacillation and uncertainty rather than bitter dispute, the delegates accepted another idea originally advanced by Wilson: choice of the president by electors chosen by the several states. In early September, a second Committee of Eleven brought in a plan to allot to each state a number of electors equal to its whole number of senators and representatives. Each state was to be allowed to choose its representatives as it wished—thus reserving a role for the states but opening the door for eventual choice of electors by popular vote. The electors, assembled in their separate states, were to vote by ballot for two candidates for president. The candidate receiving the highest total vote among all the states, if this were a majority of the electors, was to be declared elected president, while that candidate receiving the second highest number of votes, if that were also a majority of the electors, was to be declared elected vice president. If no candidate received a majority, the Senate was to elect the president from the five leading candidates. The convention altered the committee proposal only to provide for election of the president by the House of Representatives, voting by states, instead of by the Senate, should no candidate receive an electoral majority. The Senate, in the amended plan, was to elect the vice president.

In practice, the convention's solution to the problem of electing the president was to prove a victory for the proponents of a strong president, for nationalism, and—in the long run—for democracy. The rise of political parties resulted in a situation in which the Electoral College, rather than the Congress, commonly chose the president—only one election, that of 1824, being settled in the House of Representatives for want of an electoral college majority for any candidate. The requirement for an electoral college majority also was to prove a powerful factor in encouraging intersectional political parties and the reconciliation of sectional differences, again an important element in the development of American nationalism. Finally, the fact that the finished Constitution allowed the states to choose their electors in any manner they wished opened the way, after 1789, for the selection of electors by direct popular election—a mode of election every state in the Union except South Carolina was to adopt by 1832. Adaptability of the Constitution to the growth of political democracy was to be a major factor in the new charter's remarkable durability.

Equally nationalistic in its long-range implications was the convention's resort to the judiciary to solve the difficult problem of guaranteeing federal sovereignty and national supremacy against incursion by the states. The convention early rejected coercion of derelict states as inconsistent with the prospective government's sovereign character. State coercion, the nationalists had come to realize, implied state sovereignty. A little later the delegates abandoned congressional disallowance of state legislation as also involving a wrong principle; exercise of a veto over unconstitutional legislation, they had concluded, was properly a judicial, rather than a legislative, function.

Quite surprisingly, the states' rights–oriented New Jersey Plan supplied the final solution. This plan carried a clause declaring the Constitution, treaties, and laws of the national government to be the "supreme law of the respective states" and binding the state courts to enforce them as such, anything in their own constitutions and laws to the contrary not withstanding. Following rejection of the congressional veto, the convention adopted the supremacy clause from the New Jersey Plan, at the same time altering its language to make the federal Constitution, treaties, and acts of Congress "the supreme law of the land."

Incorporation of the supremacy clause in the new Constitution was a tremendous victory in disguise for the nationalist cause. On the surface the clause made an agency of the states—the state courts—the final judge of the limits of both federal and state sovereignty, which explains why the states' rights faction acceded so readily to its adoption. But the convention, meanwhile, had also provided for the establishment of a national judiciary, with a Supreme Court and such lower courts as Congress should determine upon, and had vested in the federal courts jurisdiction over all cases arising under the Constitution, treaties, and laws of the United States. By implication, as the nationalists were shortly to realize, this gave the federal judiciary appellate power to review state court decisions involving federal constitutional questions. This in turn meant that the Supreme Court of the United States would possess the ultimate power to settle questions involving the respective spheres of state and federal sovereignty. The Judiciary Act of 1789, virtually an extension of the Constitution itself, was to write into federal law this system of appeals from state to federal courts on constitutional questions. And the Supreme Court in Martin v. Hunter'S Lessee (1816) and Cohens v. Virginia (1821) was to confirm the constitutionality of the Supreme Court's role as the final arbiter of the constitutional system.

Meanwhile, in a concession to the states' rights party, the convention had quietly dropped the sweeping delegation to Congress of power to legislate in all cases in which the states were severally "incompetent" and had resorted instead to a specific enumeration of the powers of Congress, as the Articles of Confederation provided. The new Constitution's enumeration, however, was far more impressive than that in the articles. In addition to the familiar authority to legislate upon matters of war, foreign affairs, the post office, currency, Indian affairs, and the like, Congress was also to possess the all-important powers of taxation and regulation of foreign and interstate commerce, as well as authority to enact naturalization, bankruptcy, and patent and copyright laws. Further, the convention in its final draft incorporated an important clause giving Congress the power to enact "necessary and proper" legislation in fulfillment of its delegated powers, and it accepted a vaguely drafted "general welfare clause" that, with the "necessary and proper" provisions, was to serve in the twentieth century as the basis for a tremendous expansion of federal power.

In mid-September 1787 the convention put its various resolutions and decisions into a finished draft and submitted the Constitution to the states for approval. The convention had provided for ratification of the Constitution by conventions in the several states, stipulating that ratification by any nine states would be sufficient to put the Constitution into effect. This mode of ratification gravely violated the provision in the Articles of Confederation for ratification of constitutional amendments by unanimous action of the several state legislatures; but it also gave the Constitution a reasonable chance for adoption, which it otherwise would not have had.

In fact, the Federalists, as the proponents of ratification of the Constitution soon became known, in the next ten months carried every state but two, failing only in Rhode Island and North Carolina. There were several reasons behind their impressive victory. Most important, the Federalists had a positive and imaginative remedy to offer for the country's grave constitutional ills. Their opponents, the Antifederalists, although they opposed the Constitution as a dangerous instrument of potential tyranny, could offer no constructive proposal of their own.

Very influential was the fact that most of the young republic's illustrious public figures—Washington, Franklin, Hamilton, Madison, Jay, Rutledge, King, Pinckney, and Wilson among them—favored ratification. It was a galaxy that quite outshone Antifederalists Patrick Henry, Richard Henry Lee, George Mason, and the vacillating Sam Adams. Such was his immense prestige that Washington's voice alone may well have been decisive in the ratification debate.

The distribution of delegates in the state ratifying conventions also helped the Federalist cause. Delegates to these bodies were in every instance elected from the existing districts of the various state legislatures, most of which had for many years been gerrymandered in favor of the tidewater regions. But it was precisely in these districts that the people generally were most keenly aware of the deficiencies of the Confederation government and that support for ratification was strongest.

The Federalists also won impressive early victories in several less populous states, where public sentiment was heavily influenced by the Constitution's provision for state equality in the Senate. Delaware and New Jersey, which ratified in December; Georgia and Connecticut, which ratified in January; and Maryland, which ratified in April, fell into this category. This initial ratification surge proved to be very favorable psychologically to the Federalist cause.

The Federalists' political strategy also was far superior to that of their opponents. In Pennsylvania, where public sentiment strongly favored ratification, the Federalists first defeated an attempt in the legislature to block the quorum necessary for a convention call. Under Wilson's masterful leadership, the Federalists in December then drove the Constitution through to ratification in the state convention. In South Carolina, the Federalists effectively thwarted an Antifederalist attempt to defeat a convention call. They controlled the subsequent convention without difficulty.

Federalist strategy was most impressive in Massachusetts, Virginia, and New York. In each instance, initial prospects for ratification had been dubious. In Massachusetts, where Antifederalist feeling was exacerbated by bitter memories of Shays's Rebellion, the Federalists first won over John Hancock and Sam Adams with hints of high national office. They then converted a number of marginal Antifederalists by freely accepting a variety of proposals for a federal bill of rights. Ratification followed in February by the narrow vote of 187 to 168. The Virginia convention, which assembled in June, witnessed a spectacular debate between Patrick Henry and Madison, in which the quiet and scholarly Madison used carefully reasoned analysis of the Constitution to refute Henry's impassioned assault. Again, ready Federalist acceptance of proposals for a bill of rights helped carry the day. The Federalists triumphed on the ratification vote (89 to 79). In New York, over two-thirds of the delegates to the June convention were declared Antifederalists, and the state's powerful landed aristocracy also opposed ratification, mainly because of the Constitution's potential impact on New York's revenue system. But the Constitution's supporters earlier had softened public opinion somewhat with a series of newspaper articles by Hamilton, Madison, and Jay, published eventually under the title of The Federalist, which still stands as one of the most brilliant analyses of the Constitution ever written. News that both New Hampshire and Virginia, the ninth and tenth states to ratify, had lately acted favorably and that the Constitution would in any event go into operation badly damaged Antifederalist morale. Again, conciliatory Federalist acceptance of proposed amendments, together with their support for a meaningless resolution calling for a second federal convention, proved decisive. On the final vote the Constitution was ratified (30 to 27).

The Rhode Island legislature, still controlled by hostile paper-money advocates, had refused even to call a convention. In the essentially frontier state of North Carolina, where public sentiment heavily opposed ratification, the state convention, meeting in July, was dominated by Anti-federalists. This body finally adjourned without any formal vote on ratification. At length, in November 1789, a second North Carolina convention, convening several months after the new government had gone into operation, ratified the Constitution without incident. In Rhode Island, a Federalist faction captured control of the state legislature in the spring of 1790. The new assembly promptly called a convention, which ratified the Constitution in May (34 to 32).

Both the drafting and ratification of the Constitution were triumphs for the framers' Enlightenment philosophy: faith in the essentially rational character of man and society, and belief in man's ability to define and solve social and political problems adequately. Indeed the Constitution itself is perhaps best understood as an Enlightenment document, embodying as it does in its preamble the objectives of justice, order, liberty, and the general welfare, and with its explicit and implicit commitments to the ideals of limited government, civil liberties, separation of church and state, the confinement of military power, and an open society.

The Constitution has sometimes been interpreted either as an antidemocratic document—as contrasted with the Declaration of Independence with its profession of faith in universal human equality—or as no more than an instrument of selfish class interests. Both views are superficial and essentially erroneous. The Constitution was adopted by a process far more democratic than was the Declaration of Independence, which was promulgated without any popular validation or consent whatever. At the time of its adoption, the Constitution also was by far the most popular and democratically oriented frame of national government in the world. It provided for a republican government when all others, with a few minor exceptions, were monarchical. Furthermore, in its provisions for a popularly based legislative house and for a president and Senate indirectly subject to democratic processes, in its sharp limitation upon the power of government to punish for treason, and in its general concern for limited government and civil liberties, it went a great deal further in the direction of modern democracy than any other national government then in existence. Moreover, the Constitution's open-ended character, which later made it possible to adapt its provisions to the steady growth of political democracy, was no accident. It expressed instead the self-conscious belief of the framers in the idea of flexibility and growth in government, rather than stifling rigidity.

Nor was the Constitution, viewed in the large, a product of selfish and exclusive class interests. In 1913 the historian Charles A. Beard published An Economic Interpretation of the Constitution of the United States, in which he asserted that the Constitution was the work of an economic elite whose wealth was concentrated in paper: land speculators, bondholders, moneyed merchants and lawyers, and the like. The Constitution, Beard asserted, reflected the interests of this class. In support of his argument, he pointed to the Constitution's provisions banning states from issuing paper money or impairing the obligations of contracts, guaranteeing the national government control over money and credit, and guaranteeing the national debt. But careful research in the 1950s and 1960s has shown that the framers as a group were not especially involved in bondholding and speculative operations and that they were drawn as much from planter, agrarian, and nonspeculative mercantile and legal interests as from any moneyed elite. The Constitution did indeed reflect the special concern of men of property, learning, position, and community standing for stable, well-ordered government. This was hardly narrow selfishness; rather it constituted enlightened patriotism.

Bibliography

Beard, Charles A. An Economic Interpretation of the Constitution of the United States. New York: Macmillan, 1961.

Bowen, Catherine Drinker. Miracle at Philadelphia: The Story of the Constitutional Convention. Boston: Little, Brown, 1966.

Kenyon, Cecelia. The Anti-Federalists. Boston: Northeastern University Press, 1985.

Main, Jackson Turner. The Anti-Federalists: Critics of the Constitution, 1781–1788. Chapel Hill: University of North Carolina Press, 1961.

McDonald, Forrest. We the People: The Economic Origins of the Constitution. Chicago: University of Chicago Press, 1958.

Rakove, Jack N. Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Knopf, 1996.

Rossiter, Clinton L. 1787: The Grand Convention. New York: Norton, 1987.

Wood, Gordon S. The Creation of the American Republic, 1776– 1787. Chapel Hill: University of North Carolina Press, 1969.

—Alfred H. Kelly/A. G.

There is no comprehensive grant of a foreign affairs authority in the U.S. Constitution. Rather, the constitutional text carefully enumerates and allocates to the three branches of government a series of specific foreign relations powers, responsibilities, and duties. The relatively lean text, and the fact that it omits mention of particular powers, has no doubt contributed to the constitutional tension, controversy, and occasional crises that have marked American foreign affairs. Nevertheless the Constitution vests in Congress the bulk of the nation's foreign policy powers, a design which assigns to Congress senior status in a partnership with the president for the formulation, management, and conduct of U.S. foreign policy. The constitutional blueprint for foreign relations reflects the Constitutional Convention's conspicuous penchant for collective decision making and its fear of unilateral executive power.

This arrangement, however, has been over-whelmed in the post–Cold War era by sweeping assertions of unilateral presidential power that have laid the basis for a presidential monopoly over foreign affairs and advanced a conception of executive authority so capacious that it has produced a wide gulf between constitutional principle and governmental practice. To understand the constitutional allocation of foreign relations powers, it is necessary to examine the Constitution—the text, its design, the intentions of its Framers, and its history.

Constitutional Text

The preference for collective, rather than individual, decision making runs throughout the constitutional provisions that govern foreign policy. In addition to its exclusive jurisdiction over legislation and appropriation, Congress derives broad authority from Article 1, Section 8, to "provide for the Common Defence," to "regulate Commerce with foreign Nations," "to define and punish Piracies and Felonies committed on the high seas … and offences against the Law of Nations," and make rules governing immigration and naturalization. Congress, alone, has the power to "declare War" and to "grant Letters of Marque and Reprisal" as well as to develop rules regarding "Captures on Land and Water." Congress also possesses the authority to raise, support, and maintain an army and navy, to "make Rules" for the regulation and government of the "land and naval Forces" and to call forth "the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions." It is also assigned the power and responsibility to organize, arm, discipline, and govern the militia.

As Article 2, Section 2, of the Constitution indicates, the president shares with the Senate the power to make treaties and appoint ambassadors. Specifically, the president is granted the authority, "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." Another provision, known as the "supremacy clause," in Article 6, makes treaties, along with the Constitution and acts of Congress, the "supreme Law of the land." The constitutional grant of authority to the president to "appoint Ambassadors, other public Ministers and Consuls" is subject to the advice and consent of the Senate.

The Constitution assigns to the president only two exclusive roles in foreign affairs. He is "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States," and he is enjoined by Article 2, Section 3, to perform two duties: "he shall receive Ambassadors, and other public Ministers," and "he shall take Care that the Laws be faithfully executed." This list exhausts the textual grant of authority to the president and Congress in foreign affairs. The president's constitutional powers are few and modest, and they pale in comparison with those vested in Congress.

The judiciary is assigned constitutional power that bears on the conduct of foreign policy. Article 3, Section 2, confers upon the Supreme Court original jurisdiction in "all Cases affecting Ambassadors, other public Ministers and Consuls," while it generally lodges in the federal courts jurisdiction in "controversies between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

The Constitution also imposes some significant and specific prohibitions, the effect of which is to ensure that control over foreign relations is vested in the national government. For purposes of foreign relations, federalism is virtually irrelevant. Bulked by the supremacy clause, federal acts are supreme and require the acquiescence of states. In United States v. Belmont (1937), the Supreme Court observed: "In respect of our foreign relations generally, state lines disappear. As to such purposes the State … does not exist." Thus, Article 1, Section 10, categorically forbids states from entering "into any Treaty, Alliance, or Confederation." Moreover, no state may, without the consent of Congress, "enter into any Agreement or Compact … with a foreign power, or engage in War, unless actually invaded," or in "imminent danger" of invasion. Other prohibitions touch upon the conduct of foreign affairs, although none of them in practice is very important. Thus, Article 1, Section 9, provides that no holder of any "Office of Profit or Trust" under the United States may "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign state," without the consent of Congress.

Some foreign affairs powers are not mentioned in the Constitution. For example, the Constitution is silent on the repository of authority to negotiate treaties, terminate treaties, recognize foreign governments and states, and make or declare peace. It may be plausibly argued that these powers are subsumed under enumerated grants of power or fairly inferred from the Framers' intentions or other constitutional provisions. This approach is faithful to the principle, articulated by the Court in Reid v. Covert (1957), that the government is "a creature of the Constitution. Its powers and authority have no other source." It has been asserted, however, that foreign relations constitute an exception to the principle that the federal government has only those powers expressly enumerated in the Constitution. In the controversial decision of United States v. Curtiss-Wright Export Corp. (1936), the Court announced that the president's powers over foreign affairs are not derived from the Constitution but are a direct inheritance from the Crown of England. That case involved the constitutionality of an embargo that President Franklin D. Roosevelt had imposed upon the export of arms to Bolivia and Paraguay during the Chaco War. Roosevelt had issued the embargo on the basis of authority delegated to him in a joint resolution passed by Congress.

In a bizarre opinion, Justice George Sutherland argued that federal power in the field of foreign affairs differed radically from that with respect to internal matters. He observed that the internal federal power had been carved from "the general mass of legislative powers then possessed by the states," but that this was not at all true of the control of foreign policy, which had never been in the possession of the states. Instead, he maintained, before the Revolution general power over foreign affairs had been lodged in the British Crown. But with the Declaration of Independence, "the power of external sovereignty had passed … to the colonies in their collective and corporate capacity as the United States." The power over foreign affairs was "older than the Constitution" and had been inherited by the newly formed "Union" from the Confederation. It did not depend upon any direct grant of authority from the Constitution, for it is a necessary attribute of nationhood and sovereignty. Not only did the foreign affairs power inhere in the union, but it belonged to the president, who would exercise "plenary" power in his capacity as "sole organ" of American foreign policy, although the opinion did not explain how such authority came to belong to the executive.

Justice Sutherland's opinion has been roundly criticized. Scholars have criticized his reading of Anglo-American legal history by demonstrating that in 1776 states were sovereign entities. They point to Article 2 of the Articles of Confederation which stated: "Each State retains its sovereignty, freedom, and independence, and every power … which is not … expressly delegated to the United States, in Congress assembled." As sovereign entities, and jealous of their sovereignty, states only delegated powers to the Continental Congress. Through Article 9, for example, states delegated the war and treaty powers. That grant alone undermines Sutherland's premise that these powers were derived from a source other than the states. Moreover, even if it were assumed that the power of external sovereignty had been by some method transferred directly from the Crown to the union, it remains to be explained why that power would be vested in the president. Justice Felix Frankfurter noted in Youngstown Sheet and Tube Company v. Sawyer (1952) that "the fact that power exists in the Government does not vest it in the President." Indeed, the Supreme Court has ruled on several occasions that the sovereign power in foreign affairs is held by Congress. There is nothing in Sutherland's theory that would explain the location of this power in the presidency.

The contention, moreover, that the conduct of foreign policy is not restricted by the Constitution is at odds with Madison's statement in Federalist No. 45 that "the powers delegated by the proposed Constitution to the federal government are few and defined … [they] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce." Thus the foreign affairs powers are strictly constitutional. Since Curtiss-Wright the Court has taken the position that foreign affairs powers are tethered to the Constitution. In Youngstown, Justice Hugo Black, speaking for the Court, delivered a weighty rebuke to the claim of "extra-constitutional" power. In the same case, Justice Robert Jackson dismissed Sutherland's claim of an extra-constitutional presidential power as mere "dictum." The theory of extra-constitutional authority is irreconcilable with the central premise of American constitutionalism: All powers of the government—expressed and implied—have been delegated by the sovereign. As a consequence of this constitutional principle, all governmental acts—executive, legislative, and judicial—must be grounded within the four corners of the Constitution.

Constitutional Convention

The Constitutional Convention was called for the purpose of correcting the deficiencies of the Articles of Confederation. Chief among the deficiencies were those that weakened the international position of the United States. Accordingly, few issues rivaled in importance the maintenance of national security and the conduct of foreign affairs, and thus the search for an efficient foreign policy design was a primary goal and an animating purpose of the convention.

There was broad agreement among American leaders that the foreign affairs flaws of the Articles of Confederation stemmed not from the absence of an independent executive but from the lack of authority granted to Congress. The Articles had created an ineffective national government that lacked coercive power over the states. Indeed, the outstanding characteristic of the Articles—state sovereignty—was reflected in theory by the fact that the governing document did not capitalize "united states," and in practice by the refusal of states to honor their federal obligations.

Contemporaries discussed three particular weaknesses. First, a depleted treasury undermined national defense and rendered the young Republic vulnerable to its enemies and adversaries. The Spanish in the South, British in the Northwest, and Indians throughout the land represented an ongoing threat. Second, without authority to regulate foreign commerce, Congress lacked bargaining power in its attempt to strike favorable trade agreements. Third, and most important, Congress had no power to prevent states from violating treaties negotiated in the name of the United States, which meant that individual states could undermine the reputation, integrity, and security of the nation. Indeed, the pervasive infidelity of the states to the international obligations and treaty agreements of the United States subverted the ability of the union to maintain its foreign credit and position as a sovereign nation. The frequent treaty violations, according to James Madison, justly known as the father of the Constitution for his role as its chief architect, constituted one of the principal "vices of the political system of the United States." They led Alexander Hamilton to lament in Federalist No. 22: "The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government?"

The inadequacies of the Articles—mainly the debilitating weakness of the national government—supplied a critical focal point for the Framers' deliberations. The convention's decision to create the supremacy clause was a pivotal move, for the declaration in Article 6 that, "This Constitution, and the Laws of the United States and all Treaties, … shall be the Supreme Law of the land, … any Thing in the Constitution or Laws of any State to the Contrary notwithstanding," signified the end of "state sovereignty" and enabled the federal government to wrest control of foreign policy from the recalcitrant states. While the supremacy clause certainly had profound implications for areas other than diplomacy, there is no exaggeration in the observation that it provided the sine qua non of a vital and vibrant national foreign policy.

The Articles of Confederation also supplied, in some key respects, a point of departure. The Articles had vested executive as well as legislative authority in Congress. Article 6 granted Congress control over the conduct of foreign policy, and Article 9 granted it "the sole and exclusive right and power of determining on peace and war." But the Philadelphia convention had embraced the principle of separation of powers, and now the delegates were forced to fashion a division of authority between the legislative and executive branches.

The Framers might have adopted the English model for reasons of familiarity, tradition, and simplicity; like other nations, Britain concentrated virtually unlimited authority over foreign policy in the hands of the executive. For the Framers were of course thoroughly familiar with the vast foreign affairs powers that inhered in the English Crown by virtue of the royal prerogative. Sir William Blackstone, the great eighteenth-century jurist, explained in his magisterial four-volume work Commentaries on the Laws of England (1765–1769) that the king exercised plenary authority over all matters relating to war and peace, diplomacy, treaties, and military command. Blackstone defined the king's prerogative as "those rights and capacities which the King enjoys alone." The monarch's prerogatives, "those which are 'rooted in and spring from the King's political person,'" include the authority to send and receive ambassadors and the power to make war or peace. The Crown, moreover, could negotiate "a treaty with a foreign state, which shall irrevocably bind the nation," and he could issue letters of marque and reprisal, which authorized private citizens to perform military actions on behalf of the nation. The king, according to Blackstone, was "the generalissimo, or the first in military command," and he possessed "the sole power of raising and regulating fleets and armies." In the exercise of this lawful prerogative, Blackstone explained, the king "is, and ought to be absolute; that is, so far absolute that there is no legal authority that can either delay or resist him" (vol. 2, pp. 238–250).

The Framers' rejection of the English model could not have been more emphatic. Their discussion of foreign affairs in Philadelphia began on 29 May 1787 with the introduction of the Virginia Plan, which provided for the creation of an executive that, in addition to "a general authority to execute the national laws … ought to enjoy the Executive rights vested in Congress by the Confederation." The apparent clarity of the proposal was illusory, however, since the Articles of Confederation had created only a single branch of government—Congress—and had not attempted to categorize powers as legislative, executive, or judicial. As a consequence the vague proposal allowed for the possibility that "Executive rights" might be interpreted to include the full panoply of foreign affairs and warmaking powers exercised by the English king—the authority to determine war and peace, and the powers of sending and receiving ambassadors and entering treaties and alliances, among others—all of which the Articles of Confederation had granted to Congress.

The prospect that the Virginia Plan might involve a transfer to the president of these broad powers provoked alarm in the convention barely a week into the proceedings, triggering a release of the Framers' deep-seated aversion to unilateral executive power in foreign affairs. In a critical debate on 1 June, Charles Pinckney of South Carolina stated that he favored a vigorous executive but feared that the Virginia Plan's proposal to place in a newly created executive the "Executive rights vested in Congress" might include its authority over decisions of war and peace, which, if delegated to a new executive, would make that office a "monarchy of the worst kind," an "elective one."

Pinckney's preference for congressional control over matters of war and peace was supported by his fellow South Carolinian John Rutledge, who argued against vesting such authority in the executive. James Wilson of Pennsylvania, second only to Madison as an architect of the Constitution and a future member of the U.S. Supreme Court, sought to assuage Pinckney's concerns by pointing out that "the prerogatives of the British Monarch" did not properly define the executive powers. Those prerogatives, he explained, included some powers that were of a legislative nature, among them war and peace. In fact, the only powers that Wilson considered to be "strictly executive" were enforcing the laws made by the legislature and the choice of officers not to be appointed by the legislature. Wilson agreed with Roger Sherman of Connecticut, who believed the executive was merely an agent of the legislature, which ought to retain authority over matters of war and peace. In the debate that day every speaker who addressed the issue shared that opinion, including Madison, who reminded the convention that as a matter of definition, executive powers did not include war and peace. Moreover, the delegates, filled with misgivings and apprehension, voted to delete the ambiguous proposal to vest in the president the "Executive rights vested in Congress by the Confederation." Later the Framers would embrace Madison's proposal to fix the extent of the executive powers through careful enumeration.

Wilson's reference to the "prerogatives of the British Monarch" captured the Framers' greatest fears about unilateral executive authority in foreign affairs. There was a deep worry in the convention's discussions about executive power, epitomized by Edmund Randolph's characterization of it as the "foetus of monarchy." The Framers' trepidations about executive power were greatly influenced by the constitutional crises and political convulsions of the seventeenth-century English Civil Wars. The absolutist claims of the Stuart Kings and the abuse of authority by manipulative ministers had hardened their view toward the executive. Their deep concern about executive abuse of power was not merely a reflection of their perceptive readings of history but also an out-growth of their own experience, for the fear of power resonated from the colonial period. These pervasive fears, doubts, and concerns about executive power, which conduced to preclude, in the minds of the Framers, any unilateral presidential power over foreign affairs, were summed up by Hamilton in Federalist No. 75: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the disposal of a magistrate created and circumstanced as would be a president of the United States."

Behind the Framers' emphatic rejection of the British model, rooted in a deep aversion to an unrestrained, unilateral executive power, lay an equally emphatic commitment to the republican principle of collective decision-making, grounded in the belief that the conjoined wisdom of the many is superior to that of one. The Framers perceived a broad equatorial divide between the hemispheres of monarchism and republicanism, between the values of the Old World and the those of the New World. The convention's deliberate fragmentation of powers relating to diplomacy, treaties, and war and peace, and the allocation of the various foreign affairs powers to different departments and agencies of government, reflected the Framers' determination to apply the doctrines of separation of powers and checks and balances, the principle of the rule of law, and the elements of constitutionalism to the realm of foreign relations as rigorously as they had been applied to the domestic domain.

This critical decision represented a bold departure from the prevailing wisdom of the day, which urged the unification and centralization of foreign relations powers in the executive and warned that the separation of those powers would invite chaos, disorder, and even disaster. But the Framers brought a fresh outlook, a new vision, to foreign policy, one that recognized that the conduct of foreign policy includes some elements that are primarily legislative in nature, others that are essentially executive, and still others characteristically judicial. In Federalist No. 47, Madison observed that "treaties with foreign sovereigns" assume, once they are made, "the force of legislative acts." The Constitution, moreover, characterizes the power to declare war as legislative, and the power to conduct it as executive. The supremacy clause imposes upon judges the duty to enforce treaties as the law of the land. The Constitutional Convention discarded the British model as obsolete and inapplicable to the republican manners of the United States.

The purpose of this new constitutional arrangement for foreign affairs, a distinctively American contribution to politics and political science, was to require and implement collective decision-making—joint participation, consultation, and concurrence—by the political branches in the formulation, conduct, and management of the nation's foreign policy. The Framers supposed that the infusion into the foreign policy process of checks and balances would maintain the constitutional allocation of powers and, therefore, prevent executive unilateralism, aggrandizement, and usurpation. They believed, moreover, that the structure of shared powers in the conduct of international affairs, bottomed on the premise and promise of legislative deliberation, would produce wise policies and, in the words of Wilson, "a security to the people," for it would afford in Congress an airing of the various political, economic, and military interests that were bound up in the nation's external relations.

But two centuries of history and practice have witnessed the virtual eclipse of the Framers' blueprint for foreign affairs. The premise of congressional primacy has given way to executive dominance, and the promise of joint participation has been subverted by presidential unilateralism. In the context of foreign affairs, the United States has been marching backward, for the president has largely secured the prerogatives of the English Crown that the Framers denied to him in the Constitutional Convention, and which the nation had roundly condemned since the writing of the Declaration of Independence. In truth, the rise of presidential hegemony, so ably captured by the title of Arthur Schlesinger Jr.'s influential book The Imperial Presidency, is the product of a regrettable mixture: one part usurpation and two parts acquiescence. Presidential aggrandizement of foreign affairs powers has been aided and abetted by a quiescent Congress, seemingly indifferent to the usurpation of its powers, and by a judiciary that has exhibited an attitude of deference to the executive, as reflected in its refusal to restrain presidential adventurism abroad.

The presidential monopoly of American foreign relations finds its justification not in constitutional norms but in the claims of necessity and national security, pleas that have flown high in the Cold War period and beyond, as the values of unity, speed, and dispatch have replaced the values of deliberation, concurrence, and consent. The growth of presidential power has been conspicuous in the aggrandizement of the war power and in the assumption of the authority to make international agreements, often in disregard of the principles and processes that govern the treaty power. It also has been reflected in the exercise of the president's duty to receive ambassadors, and in the executive's penchant for secrecy and the control of information.

The War Power

The Framers of the Constitution vested in Congress the sole and exclusive authority to initiate military hostilities, including full-blown, total war, as well as lesser acts of armed force, on behalf of the American people. The constitutional grant to Congress of the war power, which Justice William Paterson described in United States v. Smith (1806) as "the exclusive province of Congress to change a state of peace into a state of war," constituted a sharp break from the British model. The Framers were determined to deny to the president what Blackstone had assigned to the English King—"the sole prerogative of making war and peace." The president, in his role as commander in chief, was granted only the authority to repel invasions of the United States. But what the Framers sought to deny to the president has become a commonplace. Indeed, executive usurpation of the war power in the period since World War II has become a dominant characteristic of American foreign relations as presidents have routinely committed acts of war without congressional authorization.

The war clause of the Constitution provides: "The Congress shall have power … to declare War [and] grant Letters of Marque and Reprisal." On 29 May, in an early debate in the Constitutional Convention on the repository of the war power, a clear understanding developed among the delegates that the power of "war and peace"—the power to initiate war—did not belong to the executive but to the legislature. On 6 August the Committee of Detail circulated a draft constitution that granted Congress the power to "make" war. This bore sharp resemblance to the Articles of Confederation, which vested the "sole and exclusive right and power of determining on peace and war" to the Continental Congress. When the war clause was considered in debate on 17 August, the familiar voice from South Carolina, Charles Pinckney, was initially reluctant to place the power in the House of Representatives: "Its proceedings were too slow…. The Senate would be the best depository, being more acquainted with foreign affairs, and most capable of proper resolutions." Another South Carolinian, Pierce Butler, startled the convention when he announced that he "was for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the nation will support it." Butler's opinion shocked Elbridge Gerry of Massachusetts, who declared that he "never expected to hear in a republic a motion to empower the Executive alone to declare war." Butler stood alone in the convention. There was no support for his opinion and no second to his motion.

The proposal of the Committee of Detail to vest Congress with the power to "make" war proved unsatisfactory to Madison and Gerry. In what must be regarded as one of the most famous joint resolutions in American history, Madison and Gerry moved to substitute "declare" for "make," and they explained that the purpose of the motion was to allow the president "to repel sudden attacks." The meaning of the motion was clear. The power to initiate war was granted to Congress, with the reservation that the president need not await authorization from Congress to repel a sudden attack on the United States. There was no quarrel whatever with respect to the sudden-attack provision, but there was some question as to whether the substitution of "declare" for "make" would effect the intention of Madison and Gerry. Roger Sherman of Connecticut thought the joint motion "stood very well." He believed that it permitted the executive "to repel and not commence war." Virginia's George Mason announced that he "was against giving the power of war to the Executive, because not safel