ALA CV 102
La constitution américaine
1. The origins of the US Constitution
Widespread consensus as to the Constitution and the political system created by the Founding Fathers in 1787: the Constitution has become a sacred document.
Yet, at the time of its adoption, it was very controversial: we must look into its historical background, in order to better understand the causes that led the Founding Fathers to draft this document.
The Constitution was written by 55 delegates from 12 out of the 13 states who gathered at the Philadelphia Convention in 1787.
Who were the Founding Fathers? They were mostly middle and upper-middle class. They decided to meet in Philadelphia to revise the text called “The Articles of Confederation”, because of its many shortcomings, which led to a lot of social unrest (economic tensions). They finally decided to write an entirely new text.
What were the Articles of Confederation? They were adopted in 1781 – created a weak system of government, with a Continental Congress. Problem was: no executive power (no president) and no federal judiciary. + Congress could not tax or impose duties and tariffs on a national level.
(Note well: a tax, taxation = “un impôt”; a duty = “une taxe”; a tariff = “une barrière douanière”)
In short: no proper national government that could deal with situations of crisis. We can see traces of this in the preamble to the Constitution: “We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our prosperity, do ordain and establish this Constitution for the United States of America.”
The expression: “to insure domestic tranquility” is a reference to this context of social unrest. Therefore, one of the aims of the Founding Fathers was to restore order and stability and avoid anarchy.
But they understood that in order to achieve this, they had to build a stronger federal government to replace the loose confederation of states which had been the rule until then.
The fact that they use the phrase “We the people” at the beginning of the text shows that the Founding Fathers are trying to speak in the name of the nation as a whole, and to create a feeling of common identity – beyond the 12 distinct states.
Indeed, some Anti-federalists (opponents to the Constitution), like Patrick Henry protested and thought the text should have begun by the words: “We the states”.
=> Problems linked to the shift from a system leaving a certain degree of autonomy to the states, to a federation, which created a strong national government, by taking some power away from the states.
2. The Convention and the Ratification process
During the Convention, two plans were proposed:
• The Virginia Plan (Virginia = big state who wanted a strong federal government)
• The New Jersey Plan (New Jersey = small state who was trying to keep some autonomy by offering to just bring amendments to the Articles of Confederation)
Finally, the draft of the Constitution was a compromise between these two plans: it created a strong national government with 3 branches (executive, legislative and judicial), and it decided that the states would be represented according to their population in the House of Representatives => points that favor the big states.
But it also decided that the states would be equally represented in the Senate (2 senators per state) in order to reassure the small states.
Another compromise needed to be reached on the issue of slavery. The Constitution did not abolish slavery, it did not abolish the importation of slaves (slave trade), but it only allowed for another period of 20 years.
+ A problem: the population of slaves in the states. The delegates from state with a large number of slaves wanted to them to be counted in as part of the population (in order to get a larger representation in the House of Representatives) whereas the other states were opposed to that. Another compromise was found with the 3/5 clause.
Once the document was written, there was a lot of debate in the 13 states, with Federalists campaigning in favor of the new Constitution, and the Anti-Federalists against it.
The Anti-Federalists retaliated with their own propaganda, but in the end the Federalists won the battle and the Constitution was ratified by the 13 states.
Yet, in order to meet the demands of the defenders of states’ rights, 10 amendments (known as the Bill of Rights) were added to the original text in order to protect the rights of the people and the rights of the states. I: freedom of speech, II: right to keep and bear arms, IV: right of search and seizure regulated, VI: right to a speedy trial, witnesses, etc., VII: right to a trial by jury, VIII: no excessive bail or cruel punishment.
3. What the Constitution created
The Constitution created a political system based on federalism, the separation of powers and a system of checks and balances
• A federal system
The US is not as centralized as France. For each of the three branches of government (executive, legislative and judiciary), there is a two-tier system of government.
Each state has a governor, a Congress, and a Supreme Court.
Similarly, at the federal level, there is a president, the US Congress, and the US Supreme Court.
Therefore the powers of the federal government are limited (see the 10th amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”).
=> In the US, an important degree of local autonomy: the education and legal systems can be different from state to state (see the death penalty)
• The separation of powers
In order to avoid an excessive concentration of power that might lead to tyranny, power is divided into three branches that are independent: in the US, the president cannot be a member of Congress (whereas in Great Britain, there is no separation of powers since all power derives from the parliament, and the Prime Minister is a member of the Parliament).
• A system of checks and balances
Look at the chart. A system of checks and balances was built in the Constitution in order to limit the power of each branch. Each power is checked by the other two.
Two main consequences: it helps prevent tyranny (for instance, Congress can impeach a president for “treason, high crimes or other misdemeanors” – see the resignation of Nixon). But on the other hand, it also can create paralysis: if the President and Congress do not agree, no legislation can be adopted (this happened in 1995 under Clinton).
• The three branches
The powers of the three branches are enumerated in the first 3 articles of the Constitution. We can note that article 1 deals with Congress: until the 19th century, Congress was the dominant power. In the 20th century, the presidency took over this dominant role.
The executive power is represented by a single person: the president. He is elected for four years, and he can only be reelected once. A complicated indirect election procedure, with the election of an electoral college which then elects the president. This system was created to avoid “mob rule”: the Founding Fathers wanted a Republican system, not a democracy.
The legislative power is composed of 2 chambers: the House of Representatives, and the Senate. Representatives are elected for 2 years and represent the states according to their population. Senators are elected for 6 years (2 senators per state). Originally, the senators were not directly elected by the people – this changed in 1913. Again, trying to avoid the “excesses of democracy”.
The judicial system is composed of one US Supreme Court, and a number of federal Courts. The US Supreme Court is a very powerful institution. Since the 19th century, it has acquired the power of judicial review – that is, the power to review acts of Congress or State laws and to see if they conform to the principles of the Constitution. Their job is therefore to interpret the Constitution, and they are able to add amendments to the constitution, as was the case with the end of segregation in 1954 and the legalization of abortion in 1973 (threatened today).
An example of Federalists’ Arguments: James Madison
Taken from Publius, a review that published texts from those in favor of the Constitution, in order to convince the population to give its support to the project of Constitution.
We already see the role played by popular opinion, and the way that political debate rested on the persuasion of the people, through argumentation – such was not the case in practically the rest of the world. Also proof that the Americans had a high percentage of literacy, and an easy access to printed material. This manner of convincing through words and rhetoric persuasion in general reminds us of the principles of the Protestant practice of religion, which consisted in every individual making up his own mind.
What are the main arguments here? Up until line 28, Madison exposes the system of checks and balances to the public opinion, evoking line 2: “the necessary partition of power among the several departments”; or line 14-15: “It is equally evident that the members of each department should be as little dependent as possible on those of the others.”
But from line 28 to the end of the text, Madison, takes up a different type of principles guaranteed in the Constitution. From line 35 to 42, he explains both the separation of powers and the two-tier system, exposing them as a guarantee against tyranny.
The part from line 43 to 63 is a discussion not so much on the guarantees provided by the Constitution, but on the freedom principles that the first Republican system in the world (we are even allowed to see an implicit comparison with the British system here – the American system goes even further than the British one, and its allegedly fairer system of government from 1688 on). The problem is how “not only to guard the society against the oppression of its rulers; but to guard one part of the society against the injustice of the other part”, lines43-45. According to Madison, there are two methods in order to achieve that: one being “by creating a will in the community independent of the majority”, line 48, and the other “by comprehending in the society so many separate descriptions of citizens” lines 48-49. Madison makes the following remark on the “first method”: “The first method prevails in all government possessing an hereditary or self-appointed authority”. This is a direct reference to the British system were the House of Lords, based on hereditary nobility, still played the upper part in the government of the country. Against that model of government, Madison presents a principle which will be a guiding rule in the political tradition of America: “In a free government, the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects.” – lines 57-60.
Interesting to see that Madison chooses religious freedom as a model for political freedom – linking the two very closely.