Creating the U.S. Constitution

Written by Walter Coffey: In 1787, a convention was held to strengthen the Articles of Confederation that governed the new United States. However, the delegates instead seceded from the nation under the Articles and drafted what became the U.S. Constitution.

The new United States of America had been independent from Great Britain for just six years. The national laws were codified in the Articles of Confederation, which were created and executed by the Continental Congress.

The Congress consisted of one delegate from each state, and most votes required unanimous consent to pass. There was no executive leader and no national court system. This type of government was proving to be largely ineffective.

To strengthen the Articles of Confederation, a convention was called in May 1787. However as the convention progressed, it became clear that the Articles would be completely replaced by a new national constitution that remains the law of the land today.

The “Grand Convention at Philadelphia” formally convened on May 25, and eventually 55 of the 73 selected delegates attended. Of the 13 states, only Rhode Island refused to send a delegate. Others refusing to attend were Revolutionary War leaders Samuel Adams, Richard Henry Lee and Patrick Henry, who “smelt a rat in Philadelphia, tending toward the monarchy.”

The Constitutional Convention of 1787

Those unable to attend included John Adams (in England) and Thomas Jefferson (in France). Nevertheless, Jefferson called the convention an “Assembly of Demi-Gods.”

The oldest attendee was 81-year-old Benjamin Franklin. Other prominent attendees included James Madison, Alexander Hamilton, William Paterson, Edmund Randolph, and Roger Sherman. General George Washington was selected to preside over the convention.

The first vote resolved to keep the proceedings entirely secret from the press and the public. The delegates then began debating how to best revise the national government and laws.

Differing Viewpoints

While there were various opinions about how the national government should function, the delegates generally belonged to two factions:

  • The nationalists (later called the Federalists) were led by Hamilton. They believed the Articles of Confederation were too weak and sought a much stronger, centralized national government at the expense of state sovereignty.
  • The anti-nationalists (later called the Anti-Federalists, then the Democratic-Republicans) preferred to strengthen the Articles along with guarantees that states’ rights would not be overridden by a national entity.

The convention exposed sharp differences not only between nationalists and anti-nationalists, but also between farmers and merchants, slaveholders and non-slaveholders, and northerners and southerners.

Soon it was resolved that the Articles could not address these differences, and thus an entirely new government and constitution would be needed.

The Legislative Branch

One of the first debates was about how the national legislature would be assembled to make laws. Edmund Randolph proposed the “Virginia Plan” whereby a bicameral (i.e., two-chamber) legislature would feature one chamber’s members being elected by the people and one chamber’s members being elected by state assemblies. Both chambers would base membership on state population. Naturally, delegates from large states like Virginia favored this plan because they would enjoy the most representation.

In contrast, William Paterson proposed the “New Jersey Plan” whereby a unicameral (i.e., one-chamber) legislature would have the same number of members for each state. Naturally, delegates from smaller states like New Jersey favored this plan because they would have equal input in the legislature with the larger states.

To bring the plans together, Roger Sherman proposed the “Connecticut Compromise” whereby there would be a bicameral legislature:

  • The lower chamber (the House of Representatives) would contain members elected by the people every two years, and membership would be based on state population.
  • The upper chamber (the Senate) would contain members elected by state assemblies every six years, and there would be an equal number of members for each state.

Once the compromise was reached, more legislative facets were adopted:

  • Since House members were directly elected by the people, all matters of taxation and revenue would originate in that chamber.
  • Since the Senate was to be the more deliberative body, the age requirement for senators was made higher than representatives.
  • The Senate was empowered to ratify all international treaties and approve all executive and judicial appointments.

These provisions were codified in Article I of the new constitution.

Separation of Powers

The delegates agreed that the government’s powers should be separated to moderate authority and thus better prevent tyranny. For example:

  • The legislative branch (Congress) would be empowered to make laws. 
  • The executive branch (the president and advisors) would be empowered to enforce laws.
  • The judicial branch (the Supreme Court and lower federal courts) would be empowered to interpret laws.

A series of checks and balances were also adopted to better ensure that one branch did not become dominant over the others. For example:

  • The legislature would make laws, but the executive could veto laws. 
  • The legislature could override executive vetoes with a two-thirds majority.
  • The executive would appoint the judiciary with the consent of the legislature.
  • The executive would command the military but the legislature would be empowered to declare war.
  • The legislature could impeach and remove executive and judicial officials if the need arose.
  • The judiciary could decide on the legality of laws, but the legislature would approve judicial appointments.

Separating powers and implementing checks and balances helped ensure that change would be deliberate and slow. The framers knew that the slower government moved, the more limited it became since issues would tend to resolve themselves without government intervention. And more limited government meant more liberty among the people.

Determining Population

Since members of the House of Representatives would be elected based on state population, a debate ensued over how the population would be counted. During this debate, the contentious issue of slavery took center stage.

Slaves comprised about 40 percent of the population in the southern states. Most southern delegates rejected any proposals to limit or outlaw slavery, and they wanted slaves to be counted as part of the general population because it would inflate their numbers and provide for more House representation.

Most northern delegates opposed counting slaves for population since they were not considered citizens and had no political rights. Also, counting slaves would artificially increase southern power in the House, thus perpetuating slavery.

James Wilson of Pennsylvania offered a compromise whereby each slave would be counted as three-fifths of a citizen in determining representation. In addition, the slave trade would be abolished within 20 years, and national taxes could be levied on slavery. To determine population, a census would be conducted in the first year of every decade.

This compromise favored the South by granting the southern states more population without taxation since slavery was never taxed. This strengthened the pro-slavery bloc in the federal government and converted slavery, which most delegates hoped would be temporary, into a permanent institution.

The Executive

Several delegates submitted proposals for how the executive should be organized. These proposals included:

  • An executive committee consisting of members appointed by the legislature.
  • A three-man executive committee consisting of one from the North, one from the South, and one from the middle states.
  • A one-man executive who would serve for life and have veto power over all federal and state laws. This was Hamilton’s idea, but many considered it too reminiscent of the British monarchy.

After 60 ballots, it was decided to create a single executive called the president; this was the first national executive in American history.

  • The president would be elected by an electoral college, which would shield against direct democracy and the potential dominance of large cities over states. (This worked exactly as intended in 2000 when Al Gore received the majority vote in most big cities while George W. Bush won more electoral votes in the states and thus won the election.) 
  • The president would be commander-in-chief of the national military. 
  • The president was empowered to appoint all executive and judicial officials.
  • The president was empowered to negotiate international treaties, thus becoming the nation’s foreign policy leader.

These provisions were codified in Article II of the new constitution.

The Judiciary

The first national judiciary in American history was created:

  • A Supreme Court would be established, and the legislature would establish how many judges would serve. 
  • The legislature would create circuit and appeals courts below the Supreme Court.
  • Federal judges would be appointed by the president and confirmed by the Senate.
  • The judges would have jurisdiction over all federal and interstate legal disputes. 
  • The judges would serve lifetime terms.

The judiciary was not empowered to cancel laws deemed illegal through what was later called “judicial review.” It was merely authorized to interpret laws and render opinions. However, judicial review was first invoked in the 19th century and it has since been extended to state as well as federal law, even though such a power was specifically rejected by the delegates at the convention.

The Final Document

On the constitution’s final draft, Gouverneur Morris of Pennsylvania reworded the preamble from “We the States” to “We the People of the United States.” Historians have maintained that this meant the federal government was supreme over the states. However, the rewording was done because it was still unclear if the states would approve the document. The final draft explicitly states that the federal government is supreme over the states only in the powers enumerated in the various articles.

On September 17, 1787, the final draft of the U.S. Constitution was signed by 39 of the 55 delegates at the State House (now Independence Hall). Some unsatisfied delegates refused to sign, while others demanded that a bill of rights be added to further limit federal power. Some signed with the understanding that a bill of rights would be added later.

The Continental Congress voted in favor of sending the new Constitution to the state conventions for ratification. To become law, the Constitution had to be approved by at least nine of the 13 states. In 1788, New Hampshire became the ninth state to ratify the Constitution, making it the supreme law of the land.

The U.S. Constitution continues to stand as a model of compromise in governance. And its unique system of separation of powers and checks and balances has served to attempt limiting government and upholding individual liberty for over 200 years.


Walter Coffey is an author of historical fiction and non-fiction whose several works have earned critical praise from the Quicy Writers' Guild and Foreward Magazine. He is also a member of the Houston Civil War Round Table and has been honored by the Sons of Confederate Veterans.

Walter was born in Joliet, Illinois and graduated from Loyola University of Chicago. He values the individual liberty guaranteed by the U.S. Constitution, and is a strong believer in free markets, fiscal responsibility, and personal accountability. Walter currently resides in Texas with his wife Gianna.

For more by Walter Coffey, visit WalterCoffey.com -- American History Uncut.

Click below to buy Walter's latest book, The Civil War Months:

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