CHAPTER FIVE:
Constitutional Convention
and Ratification
5.1
5.2
The Constitutional
Convention (Summer, 1787)
The Fight for Ratification –
The Federalist Papers (17871789)
5.3
5.4
The Anti-Federalists
Opposition
The Ratification of the
Constitution
KEY CONCEPTS AND VOCABULARY
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framers (no, NOT farmers!)
delegates
Federalist Papers
ratification
Federalist
Anti-Federalist
Virginia Plan
bicameral legislature
executive branch
judicial branch
federalism
New Jersey Plan
amendment
Connecticut Compromise
three-fifths compromise
enumerated powers
necessary and proper clause
clause
supremacy clause
ex post facto laws
advise and consent
appropriation power
override
veto
electoral college
judicial activism
status quo
factions
majority / super majority
agrarian
Bill of Rights
5.1 THE CONSTITUTIONAL
CONVENTION (Summer, 1787)
As a result of the problems
experienced under the Articles of
Confederation, a meeting of
representatives of all thirteen states was
called in 1786. Only five states showed
up. Congress and each state were asked,
then, to send representatives to a
meeting that was to be held in
Philadelphia in 1787. The purpose was to
change the Articles of Confederation and
to strengthen the national government.
Congress gave the state delegates
only the authority to develop a plan to
improve the Articles of Confederation. The
report would then be sent back to
Congress.
Fifty-five delegates attended the
meeting which later became known as the
Philadelphia Convention. From his
Ambassador position in Paris, Thomas
Jefferson wrote to John Adams that the
convention “really is an assembly of
demigods.” We now call these 55 men the
framers of the Constitution. Jefferson did
not take part in the drafting of the
Constitution.
The average age (excluding Ben
Franklin, who at 81 skewed the average)
was forty-two, relatively young for such
an important assembly. One delegate was
only twenty-six. Franklin, the oldest, and
most respected American throughout the
world, was carried to his post on the
convention floor by four local prisoners.
Most of the fifty-five delegates had
considerable political experience; many
had attended the Second Continental
Congress that created the Declaration of
Independence. Although none of the
framers were poor, and some of them
quite rich, they were all said by a French
diplomat to be “in easy circumstances.”
All were white and male. There were six
large plantation owners, eight important
businessmen, three doctors. About half
were college graduates – quite high for
that time. Seven were former governors
of their states; thirty-three were lawyers.
George Washington was the
acknowledged leader, even though he did
not want to attend, but gave in when he
was convinced any change would not
occur without his presence. He was
elected to preside over the convention.
He seldom spoke in debates.
Young (36 years old) James
Madison’s notes are considered the
“official” notes of the proceedings. They
were not published until 1836 – after his
death. At only 36, he was a driving force
at the convention, bringing the “Virginia
Plan” that set the tone for the debates
that followed. For his work he is often
referred to as “The Father of the
Constitution.”
The long, hot summer, the hall with
closed shutters (for secrecy), the
political intrigue and pressures – all of
these weighed heavily on those
attending the assembly. Even among
this “assembly of demigods” some of the
leaders stand apart.
It was Madison, along with Alexander
Hamilton and John Jay who wrote the
letters to newspapers called The
Federalist Papers. The letters helped
to explain the arguments in favor of
creating a new constitution. Madison,
Hamilton and Jay used their extensive
knowledge of ancient governments and
political theory to lead the debates in
both the convention and in their letters
to the newspapers.
Hamilton supported a strong national
government. (If he had had his way, we
would have a President who serves for
life with absolute power over every act
of the Congress.) He left the convention
in a huff, but returned to sign the final
document and argued brilliantly for its
passage.
Other major political figures were not
as supportive of a strong central
government. George Mason, who
authored the Virginia Bill of Rights, was
a strong supporter of the people’s rights
and of states’ rights. He opposed any
document that did not have a strong
statement of these rights and he fought
against the ratification, or passage of
the Constitution.
Along with Jefferson, other prominent
figures from the fight for independence
were not in attendance. Thomas Paine
was in France; John Adams in England;
Patrick Henry, who said he “smelled a rat
in Philadelphia,” refused in principal to
attend.
The First Steps and the Virginia Plan:
The Convention had a quorum –
enough people present to do business –
on May 25, 1787. Almost immediately the
framers agreed on a few things:
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They decided that the Articles were
so defective that they should start
from scratch and work on a new
Constitution.
They adopted a rule of secrecy, to
encourage free discussion, a
minimum of public turmoil, and to
enhance its likelihood of passage.
They also decided that each state,
regardless of delegation size,
should receive one vote when
voting on different aspects of the
creation of this new Constitution.
PROBLEM 5.1A
Evaluate the pros and cons of the two
crucial decisions made at the beginning of
the convention: abolishing the Articles,
and the rule of secrecy. If a new
convention were called today, would
these same rules be adopted? Why or
why not?
The creation of a new Constitution
began with a first session at which only
seven of the thirteen states had delegates
present. By the end of the convention
every state except Rhode Island was
represented. However, it was not easy:
remember, for many years these separate
ex-colonies-now states thought of
themselves as separate entities, separate
countries. To come together now, to
perhaps give some of their power up
(especially a small state like Rhode
Island) to an unknown entity, the national
government, was a scary prospect to say
the least.
Madison took the initiative early in the
convention and had Virginia Governor
Edmund Randolph bring forth the socalled Virginia Plan. The plan, contained in
fifteen resolutions, proposed a truly
national government.
Under this plan, there would be a
bicameral national legislature (twobranch, or two-house legislature). The
voters would choose the representatives
to one (lower) house directly. The other
(upper) house would be itself chosen by
the lower house from nominations from
the state legislatures. Representation
would be proportional to population
(thus, favoring the larger states…such as
Virginia), and it could void any state law.
In addition to the legislature, there
would be two other branches of
government under this plan. The
executive branch (a president) would
be elected by the legislative branch. The
judicial branch (judges, court system)
would be selected by the legislature.
There would be divided authority –
what we call today federalism – in that
a citizen of the United States would also
be a citizen of their specific state. This
“dual citizenship” concept survives
today.
The new national government would
have the power to collect its own taxes,
to make laws, and to enforce them in its
own courts. With the Articles of
Confederation, remember, the central
government could only request money,
for example, and only states had the
authority to raise that money by placing
taxes upon their citizens. This would no
longer be a problem under the Virginia
Plan.
There was considerable debate
among the framers over the Virginia
Plan. Most agreed that representation in
the House of Representatives (what the
lower house in the Virginia Plan was
called) should be based on population.
The main disagreement was about how
many representatives each state could
have in the Senate (the upper house).
The bigger and more populous states
wanted the Senate also to be based on
proportional representation. Larger
states would have more votes, and
hence, more power, than less populated
states.
The smaller and less populated states
wanted the Senate to be organized so
that each state, no matter how many
people lived in it, would have the same
number of representatives and votes.
Thus, at least in the Senate no state
would have more power than any other
state.
For more than two weeks the Virginia
Plan was debated. Finally, delegates from
New Jersey, a small state, came up with
what is called the New Jersey Plan.
The New Jersey Plan:
William Patterson, of New Jersey, on
June 15, proposed what amounted to an
amendment (a change that is added on)
to the Articles of Confederation. Under
this plan, there would be, as with the
Articles, a one-house legislature; each
state would get equal representation and
votes in that house, and it would have
increased authority. Congress (this onehouse legislature) could pass laws
affecting more than one state and other
countries. Its taxing powers were
increased, its laws and treaties would be
considered the supreme law of the
country, and no state could make laws
that were contrary to Congress’ laws.
PROBLEM 5.1B
Can you name any laws, or types of laws,
that are different from state to state?
How about any laws that are different
between state and federal government?
What might these differences mean?
In addition, the executive branch
would be a group of several people,
selected by Congress to carry out national
laws and appoint other necessary office
holders. Further, the members of this new
executive branch would appoint a
supreme court to handle conflicts about
treaties, inter-state or international trade,
and how taxes were to be dealt with.
Debate continued for another month.
There were still major issues that
underlay the debate between the two
plans. Without resolving these
fundamental issues, the convention would
soon fail. Delegates threatened to leave;
some did leave such as Hamilton. The
issues that remained to be resolved were:
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What powers should the
national government have?
How should the number of
representatives from each
state be determined?
The Critical Issue of Representation:
The issue of representation
threatened to split the convention and
send it home early. Against the wishes of
James Madison, a person from each
state formed a special committee to try
to resolve the issue. The result was the
so-called Great Compromise, also known
as the Connecticut Compromise. It
provided that:
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Each state would get equal
representation in the Senate.
State legislatures would choose
the two senators from each state.
Membership in the House of
Representatives would be based
on the population of that state –
proportionally.
Appropriation bills (proposals for
laws that would require
government spending of tax
money) would have to begin in
the House of Representatives.
Smaller states would benefit from
equal representation in the
Senate. The Senate would have
important responsibilities alone,
separate from the lower house,
such as treaty ratification and
appointment approval. The larger
states would be well-represented
in the House of Representatives.
Legislation would have to be
approved by both houses of
Congress. There would be, then, a
“check” on the power of each
branch of Congress by the other.
It should be understood, here,
that representation meant voting power.
The more representatives a state has,
the more power in votes in the Congress
that state has. It should also be noted
that when they spoke of, for instance,
the lower House being the source of
power in appropriating tax money, that
this referred to their understanding of the
concept of certain government bodies
being “closer to the people.” The House,
by virtue of having proportional
representation, represented the people
more “closely:” each delegate
represented less people than the two
senators who, numerically, at least,
represented half of their state’s
population. The House representatives,
therefore, were “closer to the people.”
And they wanted the government body
that was closer to the people to be in
charge of issues and laws that would
require the taking of taxes from the
people.
The Connecticut Compromise was
debated heatedly, especially by delegates
of the larger states such as Madison.
Some members left the convention in
disgust. In the end, it passed by only one
vote.
PROBLEM 5.1C
Create a chart that compares each of the
Plans mentioned above (the Virginia Plan,
the New Jersey Plan, and the Connecticut
Compromise plan). Compare the plans in
terms of what they each proposed about
the organization of government (how
many branches, what those branches
would do and how they were elected, and
what their make-up would be, etc.).
The Issue of Slavery:
Part of the Connecticut Compromise
was the so-called “Three-Fifths”
compromise.
Connecticut’s Roger Sherman dealt
with the thorny issue of whether slaves
should be fully counted in the census to
determine the number of representatives
in the House states would get. To do so
would give the slave states – all states,
except Massachusetts allowed slavery,
although the institution was concentrated
in the south – many more representatives
in the House of Representatives. The
northern states objected to this.
Sherman’s plan said that three-fifths (a
rounded-off fraction of a little bit more
than one-half) “of all other persons” –
meaning other persons besides white
Americans – be counted for
representation purposes.
Many delegates wanted slavery
banned altogether. Charles Pinckney of
South Carolina led the southern
opposition to a ban. In the end, to
ensure those states’ acceptance of the
Constitution, further compromise was
reached that forbade Congress from
touching the slave trade until at least
1808 – twenty years. Also, escaped
slaves were to be returned to owners in
slave states. All of this compromise was
fashioned without, as it turns out, even
mentioning the word “slavery” at all in
the actual Constitution!
Had the framers not compromised
and equivocated on the issue of slavery,
it is likely there would have been no
federal Constitution.
The Issue of a Congress:
It was important to the framers that
the new government be limited in its
power to only those powers specifically
given to it: these powers are called the
enumerated (or listed) powers. Powers
not specifically given to the government
in this “list” of powers would not be
powers that the government could
assume.
PROBLEM 5.1D
Why, do you think, this was so important
to the framers? What were they afraid
of? What was their experience telling
them?
In Article I, Section 8, of the
Constitution, it lists what Congress can
do. It includes such important matters as
the power to impose and collect taxes in
order to “pay the debts and provide for
the common defense and general welfare
of the United States….” It also included
the power to declare war and raise an
army and navy.
In addition to the powers the framers
specifically listed for Congress, they
added at the end of the list the power to
make all other laws that are “necessary
and proper” for carrying out the
enumerated powers. This is called the
necessary and proper clause, or
sometimes, the “elastic clause.”
PROBLEM 5.1E
Can you name some laws or powers that
might fall under the heading, “necessary
and proper for carrying out the
enumerated powers”?
The Issue of dealing with the States:
By now all of the framers agreed that
they had to create a national government
that had more power than it had under
the Articles of Confederation. However,
they did not agree about how much
power it should have over the state
governments and their citizens
(Remember two things: first, their history
of their allegiance to their own
colony/state; and second, that the
government that is “closer to the people,”
in this case, the state and local
governments versus the central, national
government, is better, and should have,
ideally, more power.). This area was
among the touchiest for these
representatives of the states.
The primary solution that was finally
adopted was the creation of a truly
national government with the authority to
act directly on the people. This meant
that the national government was no
longer dependent on the states for the
collection of the taxes it proposed or the
enforcement of the laws it passed. The
framers also included a number of
phrases or clauses in the Constitution
that set forth the powers of the national
government over the state governments
and the people. Some of the most
important of these are listed below:
1. Article VI contains the supremacy
clause. It states that the
Constitution and all the laws made
by Congress are the supreme law
of the land.
2. Article IV of the Constitution gives
the national government the
authority to guarantee each state
a republican form of government.
3. Article IV also requires the
national government to protect
the states from invasion or
domestic violence.
These protections signify a sense of
supremacy of the national government.
The idea of “guaranteeing a republican
form of government,” or “requiring the
national government to protect,” implies
a relationship between the national and
state government where the national is
dominant.
The Constitution also limited the
state governments in some more specific
ways:
1. Article I, Section 9 is, basically, a
list of the powers that state
governments are prohibited from
exercising; the state governments
cannot:
• create their own money
• pass laws that enable
people to violate contracts
such as those between
creditors and debtors
• make ex post fact laws –
laws that which make acts
crimes even though the acts
were legal at the time they
were committed
• make treaties with foreign
nations, declare war, or
grant titles of nobility
2. Article IV prohibits states from:
• unfairly discriminating
against citizens of other
states
• refusing to return fugitives
from justice to states from
which they have fled
The Great Compromise – some
historians call this really a “Sectional
Compromise” – had finally settled the
disagreement between the large and
small states over how many
representatives they could send to the
Senate and the House of
Representatives. But there were other
serious issues, still unresolved, among
the delegates to the Philadelphia
Convention.
Slavery in the Constitution:
Discussed above are the compromises
made in an effort to keep the southern
states in this new national union. The
framers took great pains to forge a union
of all the states, and to do this, it took a
realization that slavery could not be
abolished or restrained at this time. The
framers were willing to set that debate for
the future.
The powers of the executive and
judicial branches
Seeking the proper balance between
legislature and the executive branch took
much time and thought for the framers.
Still fresh in their memories were the
abuses by colonial governors and the
corruption of the King of England. More
recently, under the Articles of
Confederation, executive branches were
not able to check the powers of the state
legislatures.
The difficulty of organizing the
executive branch raised the thorny
questions of who should make up the
executive branch (such as having more
than one president), how long a term
should it/they serve, what powers should
the executive have, and how should the
executive be elected and re-elected.
The framers easily agreed that there
should be a single executive to avoid the
possible problem of conflict between two
leaders of equal power. Also, it would be
easier to keep an eye on just one
executive, so long as the powers were
checked.
Many lengths of terms were
considered, including a single term of
seven years, but the Constitution sets the
President’s term at four years. Given the
relatively short length of four years, no
limit was originally set as to the number
of terms a President may serve. Tradition
– and eventually a constitutional
amendment – has now set the maximum
number at two terms.
The executive branch, headed by the
President, was given the responsibility for
carrying out and enforcing the laws made
by Congress, negotiating treaties with
foreign nations, appointing various
officials, and conducting wars as
Commander-in-Chief.
The presidential powers were
checked and balanced in a number of
ways.
The president had the right to
nominate persons to fill executive and
judicial offices (such as the President’s
cabinet, and federal judges, including
the Supreme Court), but the Senate had
the right to approve or disapprove of the
persons the President nominated. This
power given to the Senate to check the
executive’s nominating powers, is called
the power to advise and consent.
The Senate has the power to approve
(with a two-thirds vote) a treaty entered
into by the President.
While the president is the
Commander-in-Chief, only Congress had
the power to declare war. Further,
Congress controls the money necessary
to wage a war. This is called the
“appropriation” power of Congress.
The president can veto a bill passed
by Congress, thus voiding the bill, but
Congress can vote (with a two-thirds
vote) to override the presidential veto.
Finally, Congress can impeach the
president. The House of Representatives
would bring charges of impeachment
(the term “impeach” means to “accuse”),
by a majority vote, and a trial would be
held in the Senate. It requires a twothirds vote by the Senate to remove a
president.
In spite of these details, if you look
closely at Article II (the section of the
Constitution that deals with the
executive branch of government) you
will see that it is short in comparison
with Article I (the section that deals with
the Legislative branch). It speaks of
“executive power” but it does not define
it. Section 3, of Article II, seems to give
the president power to suggest
legislation, which is not an executive
power. Executive departments (the
“cabinet”) are mentioned, but there is no
provision for creating them, deciding
how many there should be, or how they
should operate. This is left up to
Congress to decide as the nation evolves.
Selecting the President: The Electoral
College
Many procedures were debated at the
convention as to how to elect a president.
Although it was commonly felt that
George Washington would be the first
president, the specter of future presidents
caused the delegates much concern.
A convention committee was
delegated the job of weeding through the
different proposals. The committee
generally did not trust the judgment of
the people of America. The delegates felt
too few people would vote for the
common good, that loyalties closer to
home would prevail. Also, the new
country would be quite large, and most
people would not know much about some
of the candidates.
The compromise agreed upon created
a uniquely American organization called
the Electoral College which was given
the responsibility of electing the
president. The main parts of the plan
were:
1. Members of the Electoral College,
called electors, would be selected from all
of the states. A state’s number of electors
would be the total of its number of
representatives in Congress (its number
of representatives in the House of
Representatives, plus two – every state’s
number of Senators). The methods for
selecting electors would be decided upon
by each state legislature.
2. Each elector would vote for two
people, one of whom could not be a
resident of his state. )This would attempt
to force the state to vote for at least one
person who might not represent its
particular interests.)
3. The person who received a majority of
votes in the Electoral College would
become president, and the person with
the next largest number of votes would
become the vice president.
4. If no one received a majority of the
votes in the Electoral College, then the
House of Representatives would select the
president by a majority vote, with each
state having only one vote.
This compromise was quickly
approved by the framers. Many felt that
in almost all future elections for
president the final decision would be
made in the House of Representatives.
However, only twice has a presidential
election gone to the House – in 1800 and
in 1824. Today, the Electoral College is
still in existence, although it functions
quite differently from the way it did
then.
The Judicial Branch of Government
To complete the system of checks
and balances the framers had to plan the
judicial branch. They created the
Supreme Court, with the numbers of
justices who would sit on the Court left
up to Congress. The Supreme Court
would decide conflicts between state
governments and conflicts that involved
the national government (either with
other states, or with other nations).
The Supreme Court would hear cases
appealed to it (called, having appellate
jurisdiction), and a few rare cases which
would go directly to it. This is called
“original jurisdiction.”
An important concept to the framers
was “judicial independence.” Judges,
they felt, should be insulated from
politics, free to rule based on their best
judgment. To do this, they provided that
federal judges would be appointed, not
elected (and, to ensure a balance of
powers between the branches, these
appointments by the executive branch
had to be approved by the Senate in the
Legislative branch). Further, judges
would serve lifetime appointments,
“during good behavior,” subject only to
impeachment and removal from office
for “treason, bribery, or other crimes and
misdemeanors.”
The argument over “judicial
activism” continues to this day. How
independent are judges? Should they
listen to their constituents, or be
oblivious to the political issues of the
day?
The Final Document
The Constitution of the United States
was signed on September 17, 1787, by
thirty-nine of the original fifty-five
delegates. Three delegates refused to
sign the final document. In the final
analysis, what had been created could be
summarized as a document that:
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created a republican form of
government in which people chose
representatives to make political
decision for them;
created a limited government, with
written restrictions on power;
created a federal system in which
states kept certain rights;
separated national power into
branches, with checks and balances
among those branches; and
allowed for popular sovereignty
(individual citizens’ right to vote).
It was, in some respects, a series of
compromises, woven together to ensure
passage at the convention. But it was
more than that. It was a vision of how a
diverse people could live together. The
delegates went home knowing they had
not created a perfect document. They had
argued and dissected the pros and cons of
each word and idea in the Constitution;
they knew all of the arguments and were
in good position to argue for its passage.
The next job? Could they convince the
people at home?
5.2 THE FIGHT FOR RATIFICATION
(and The Federalist Papers)
James Madison convinced the framers
that the new Constitution should be
presented and debated at special ratifying
conventions to be help in each state. It
was universally felt that if the vote were
left up to the state legislatures – or to the
old Congress under the Articles of
Confederation – the new Constitution
would not be ratified. The delegates to
these state ratifying conventions would be
elected by popular vote of the people in
that state for the sole purpose of
approving the Constitution. The new
Constitution would then take effect when
it had been ratified by the conventions of
nine states. (Remember, though, how
the Independence convention felt about
ratification of important issues such as
going to war, or in this case, ratifying a
new Constitution….).
Supporters of the new Constitution
took the name Federalists. Those who
attended the Constitutional Convention
had an advantage, having been at the
Convention, having heard the arguments
and honed their own points of view.
They moved quickly, with their power
and prestige to become elected
delegates to the state ratifying
conventions.
The opponents of the new
government had to take the name “AntiFederalists,” with all of its negative
connotations and implications. They
downplayed any compromises that might
weaken their arguments. Because they
took so many different approaches to
their opposition to the Constitution, they
often appeared unorganized and
incoherent, sometimes contradictory.
But, they had the advantage of
advocating for the status quo. There
were many people fearful of a change,
especially brought about in secrecy
behind closed doors in Philadelphia.
The Anti-Federalists included some of
the most famous patriots of the
revolution. Samuel Adams, Patrick
Henry, George Mason, Elbridge Gerry,
Mercy Otis Warren and others argued
the view that liberty is best contained in
small societies (i.e., more local
governments, such as the states). A
large republic would not be practical, the
Anti-Federalists said. It would take away
liberty, not enhance it. The Constitution
said nothing about such liberties as
freedom of the press, religion, and
speech; freedoms that were cherished
by all Americans.
To combat the Anti-Federalist
arguments, Hamilton began writing
letters to three New York newspapers
that were widely reprinted elsewhere. He
took the pen-name name Caesar, but
later changed it to Publius, and received
support from James Madison and John
Jay. This defense of the Constitution in
the form of these letters is known today
as the Federalist Papers. It is eightyfive essays – fifty-one probably written by
Hamilton, twenty-nine by Madison – on
the nature of government and the
American political vision.
Hamilton’s essays interpreted the
specific provisions of the Constitution.
They explained the reasoning and the
practical implications of the terms in an
attempt to ease people’s fears. Madison
argued about the best way to organize
the new government and about how to
deal with the growth of special interest
groups – what he called factions around the new nation. The Federalist
Papers is the most important work ever
written by Americans on the basic
principles and ideas underlying the
philosophy of our Constitutional
government.
The Political Theory of the Federalist
Papers: or, the Federalist Argument
in Favor of the Constitution:
The importance of the Federalist
Papers is in the theory of government
they advocate. The essays themselves
were, at the time of the ratification, less
important in the ultimate passage of the
Constitution than was face-to-face debate
and deal-making in the state conventions.
However, copies of the essays were used
by the debaters at the ratifying
conventions around America.
Many people recognized the
significance of the Federalist Papers soon
after the essays were published. Thomas
Jefferson, for example, wrote to James
Madison and described the Federalist
Papers as “the best commentary on the
principles of government…ever written.”
The Constitution, after all, is a
relatively short, concise document. In
attempting to understand the meaning of
those few words, early constitutional
interpreters have looked at the “public”
intent of the framers – what they said in
public – to try to gain some wisdom about
the meaning of the document. The most
obvious interpretation would be that
given by the framers who wrote the
Federalist Papers. Thus, the early
Supreme Court supported looking at this
collection of essays to interpret the
Constitution:
“The opinion of the Federalist
[Papers] has always been
considered as of great authority….
These essays [were] published while
the constitution was before the
nation for adoption or rejection.”
(Cohens v. Virginia, 1821)
The lessons of the Federalist Papers
are best judges within the outline of
American history. They are central in the
ongoing debate about the purpose of
government, the extent to which
government itself is a good or bad thing,
and how to encourage the ultimate
achievement of liberty.
 The main arguments that the
Federalists made for their position – in
proposing this balanced, divided, and
limited government – were:
1. Basic rights cannot be protected
by “civic virtue” alone.
Philosophers have debated as to
whether the nature of humans is
basically good or basically evil. The
Federalists argued that there are great
dangers to the liberties of everyone
when a few people act totally out of their
own selfish interests at the expense of
those others. The framers believed that
it was unrealistic to expect people in a
large and diverse nation, living hundreds
of miles apart, to be willing to give up
their own interests for the benefit of
others.
This search for civic virtue, to act in
the interest of the common welfare
rather than out of selfishness is at least
as old as Plato’s Republic. Philosopher
Thomas Hobbes suggested that since
people were basically evil, proper
government should exist to keep people
from harming each other and the
restraint of liberty is most appropriate to
do this.
In Federalist #10 (the essays in The
Federalist Papers were numbered),
Madison goes into great detail describing
how factions – groups of people who have
a special interest in common – operate in
a government. Although Madison see the
possibility of the factions working against
national interest, he predicts that the new
government, which he calls the
“republican government,” will be so
constructed that no single faction could
gain control.
PROBLEM 5.2A
Read the selection given to you from
Federalist #10. See if you can find out
why Madison feels the republican form of
government will keep the evil influences
of factions to a minimum. Look for
provisions that try to keep any group of
men from gaining too much control. How
does he say a government can be
organized so it would not be dominated
by self-interested individuals or factions
at the expense of others?
2. Government can be properly
organized to protect basic human
rights.
The Federalists maintained that a
system of representation, checks and
balances, and separation of powers could
be devised that would protect the rights
of everyone. They argued that the new
Constitution was just such a document.
Senators and the President would be
elected not by the people directly, but
rather by the representative of the
people. This would ensure a higher
degree of wisdom in the choices of these
important political leaders.
At the same time the representatives
in the House of Representatives would be
chosen directly by the people, ensuring
their interests would be validated.
In these ways, no one faction or group
or individual could amass enough power
to manipulate its selfish interests away
from the common welfare.
At the same time that representation
is diffused (or dispersed, or separated) in
this manner, the various branches of
government would be able to check and
balance each other as well. No bill would
be accepted until it passed both houses
of Congress. Even then, the President
must sign it, or, if a veto occurs,
Congress still can pass the bill provided a
super-majority agrees.
The power of appointment to judicial
and executive offices, the power to make
treaties, as well as the power to make
laws are all shared and balanced
between the branches of government.
This allows for no one group wielding too
much power.
The Federalists also diffused the
power of factions through dividing the
power of the states. Now citizens would
serve two sovereigns: the state as well
as the national government. Each of
these two powers would have distinct,
enumerated powers, and yet they would
share some powers as well.
The large size of the nation, the
Federalists argued, would make it
particularly difficult for any one faction to
attain a majority, and thus dominate.
Since so many interests and factions
would be represented in the national
government, it would be less likely that
any one of them would prevail.
Any amendments to the basic
Constitution would have to be validated
by a super-majority (three-fourths) of
the individual states. Even a relatively
small interest group of states could veto
any change to the Constitution.
PROBLEM 5.2B
Read Federalist #39 and #51 in which
Madison talks of a “multiplicity of
interests” that characterize a free
society. He concludes that a federal
system of government is the best for “all
the sincere and considerate friends of
republican government.” Do you agree?
Explain.
3. The construction of the
government will allow for the
representation of different interests
to protect basic rights.
a. The Legislative Branch. The
House of Representatives would protect
the people’s local interests, since
representatives would be chosen from
small congressional districts, close to
home, and would be elected every two
years allowing for relatively quicj
replacement if the fail to properly
represent the local interests. Since money
bills (bills of appropriation) must start in
the House, these local financial interests
would be represented there. The Senate
would protect the people’s state interests,
since it would be elected by state
legislatures and not the people directly.
b. The Executive branch. The
President would protect the people’s
national interests, since he would be
elected by electors selecting him from
among nationally recognized leaders. This
is achieved by forcing electors to cast
some of their ballots for candidates from
outside their own state.
PROBLEM 5.2C
In Federalist #70, Hamilton discussed the
powers and duties of the President under
the Constitution. He argued for a strong
Chief Executive. What are his key points?
c. The Judicial branch. The
Supreme Court, with lifetime job security,
is designed to be independent of political
manipulation by factions.
5.3 THE ANTI-FEDERALIST
OPPOSITION
Anti-Federalists vehemently criticized
the Constitution of 1787 and urged its
rejection by the people. Some of them,
however, were willing to accept the
Constitution upon condition that a Bill of
Rights be added to it.
While the Federalist Papers appeared
as a collection a short time after the
publication of the essays in newspapers,
large collections of Anti-Federalist writings
did not appear until much later.
The Anti-Federalists feared that giving
so much power to a national government
might be a serious threat to their rights
and welfare. Most Americans were very
suspicious of government, but the AntiFederalists were especially mistrustful of
government in general and strong
national government in particular.
2. It did not include a bill of rights.
PROBLEM 5.3A
Recall the discussion of Madison’s
Federalist #10 about factions. Now read
the Anti-Federalist selection by
Melancton Smith on “Representation in
Government.” With whom do you agree?
Explain your reasoning.
PROBLEM 5.3C
Read Patrick Henry’s “Need for a Bill of
Rights,” and William Lenoir’s “The Need to
Limit Powers of Government.” Write a
short speech expressing the wishes of
these two Anti-Federalist writers.
Anti-Federalists, like the Federalists,
believed in the basic ideas of
republicanism and representative
government. The sheer size of the newly
constructed national government was a
concern to the Anti-Federalists. So was
the scope of the power of the new
national government.
In addition, it was widely believed
that people living in small agrarian
communities would be more likely to
possess the civic virtue required of
republican citizenship. Thomas Jefferson
would write, in his only book, Notes on
the State of Virginia, about the inherent
virtue of farmers as opposed to those
living in big cities. This has come to be
known as the “agrarian ideal.” It stated
many of the Anti-Federalist beliefs.
3. It should have been developed in
meetings whose proceedings were
open to the public.

Many Anti-Federalists agreed with
some, although not necessarily all, of the
following arguments against the
Constitution:
1. It gave too much power to the
national government at the expense
of the powers of the state
governments.
PROBLEM 5.3B
Read Anti-Federalist, George Clinton’s
“In Opposition to the Destruction of
State’s Rights.” Summarize the
argument made there in one paragraph
in your own words.
4. It “constitutionalized” slavery.
PROBLEM 5.3D
Read Joshua Atherton’s “We Become
Consenters to, and Partakers in, The Sin
and Guilt of this Abominable Traffic.” Do
you think his arguments were a universal
concern of all Anti-Federalists? Why or
why not?
5. The Constitution was developed by
an elite and privileged group to
create a national government for the
purposes of serving its own selfish
interests.
PROBLEM 5.3E
Create a chart that compares the
arguments between the Federalists and
the Anti-Federalists. You are merely
organizing the discussion in 5.2 and 5.3
into an easily-understood chart.
5.4 THE RATIFICATION OF THE
CONSTITUTION
Delaware was the first state to
ratify. Within another month, four
more states joined. Then, in a close,
bitter battle, Massachusetts ratified by
a vote of 187-168. By June, 1788,
nine states had voted to ratify the
Constitution. (New Hampshire was the
ninth.) But the important states of
Virginia and New York had not yet
ratified. Any union would be
incomplete without those large, key
states.
After much political dealing, the
ratification assemblies in New York
(30-27) and Virginia (89-79) voted in
favor of the Constitution. North
Carolina then reconsidered and
changed its vote (having originally
decided against ratification) and
finally, Rhode Island became the
thirteenth and final state to ratify.
It was only the promise of
including a Bill of Rights that
swayed key votes for ratification. The
Federalists argued that there was no
necessity for such a statement of
rights since the new government
actually contained limits on federal
power. However, in order to win over
key delegates the Federalists
promised that among the first actions
the new national government would
take would be to adopt a Bill of
Rights that would place specific limits
on the powers of the national
government and secure certain
freedoms from the clutches of the
new government. With that
concession enough Anti-Federalist
pressure disappeared to pass the
Constitution. A nation was born.
PROBLEM 5.4A
Using Chapter 5 as a source, answer the
questions on the Federalist/AntiFederalist handout.
HOT TOPIC IN THE NEWS
Has the Government exceeded its
valid authority over its citizens?
(People v. Williams, CA2001)
Facts: The U.S. Constitution has been
changed – amended - 27 times by
amendment. In addition, the meanings of its
words have been interpreted by courts, thus
making the Constitution a “living,” changing,
evolving document.
However, recently various groups have
risen to oppose what they feel are changes
from the original intent of the framers. The
objective of these so-called “constitutionalists”
is to control (or avoid) big government and
return to fundamental constitutional principles
of limited government, self-reliance and
enhanced personal freedoms. They practice
what they call “guerilla lawfare:” a leaderless
resistance to unconstitutional and nonconstitutional government, to institutionalized
injustice and judicial excess that are often
reported in the areas of family law, traffic
tickets, gun control, drug laws, and
immigration enforcement. The people of this
movement claim they are fed up, often angry,
but always convinced you can – and must –
fight “city hall.”
One example of this is the theory of
nullification – that a juror can choose to
ignore the judge’s instructions on the law if
the juror feels morally opposed to the law.
This case involves a charge of statutory rape
against an 18-year-old male and his former
girlfriend, a 16-year-old female. During
deliberations, one juror told the judge, “I’m
trying as best I can. I’m willing to follow all of
the rules on the rest of the charges, but on
that particular charge [statutory rape], I just
feel it duty-bound to object.”
Issue: Should a juror have the right to
disobey the judge’s instructions on the law if
the juror is morally opposed to the law?
Rule: The Court said “the basic rule is that
jurors are required to determine the facts and
render a verdict in accordance with those
facts and with the court’s instructions on the
law”. A juror who is unable or unwilling to do
so is “unable to perform his or her duty as a
juror and may be discharged.”
Do you agree with the court decision?
Is there any situation in which you
would not “follow the law” as the
judge instructs you?