1.5 - Ratification of the United States Constitution
The Constitutional Convention (1787)
Representatives from twelve states met in the summer of 1787.
- Stated purpose: amend the Articles of Confederation.
- Actual purpose: led by people like James Madison, the delegates quickly started drafting an entirely new constitution.
- Key insight: a good compromise usually leaves nobody completely happy.
The Great (Connecticut) Compromise
This resolved the fight over representation in the new legislature.
Virginia Plan (large states): wanted a strong central government with a bicameral legislature, with both houses based on population, favoring big states.
New Jersey Plan (small states): wanted to just amend the Articles and keep a one house Congress with equal votes per state, favoring small states.
The compromise: a bicameral legislature.
- House of Representatives: based on population.
- Senate: two senators per state, equal representation.
To get large states on board with equal Senate representation, they agreed that all tax and revenue bills must start in the House, where large states had the population advantage.
The Electoral College
Some delegates wanted the people to directly elect the president, others wanted Congress to choose. The Electoral College blended both ideas: people vote for electors who represent their state and cast the actual vote for president.
Each state gets as many electors as it has members of Congress (its House seats plus its two senators), so the Electoral College also builds in the Great Compromise. Today there are 538 electors, including 3 for Washington, D.C., under the 23rd Amendment, and a candidate needs a majority (270) to win.
Compromises Over Slavery
Three-Fifths Compromise: settled whether enslaved people counted toward a state's population for representation. Every five enslaved people counted as three for representation purposes. This over-represented the South in the House and Electoral College, effectively protecting slavery until the Civil War.
The same three-fifths count was used for direct taxes, which were divided among the states by population. The national government rarely used direct taxes, though, so the representation side mattered far more.
Slave Trade Compromise: many delegates wanted to ban the slave trade, but South Carolina and Georgia threatened not to ratify the Constitution if it was banned outright. The compromise: Congress couldn't ban the importation of enslaved people until 1808, about 20 years later. Congress passed the ban in 1807, and it took effect on January 1, 1808, the first day it legally could. It ended the legal importation of enslaved people, but not slavery or the slave trade inside the United States.
The Bill of Rights Compromise
Anti-Federalists used the lack of a Bill of Rights to argue against ratifying the Constitution. Madison and Hamilton initially defended leaving it out, but eventually relented, and Madison introduced the amendments that became the Bill of Rights early in the first Congress.
Amending the Constitution
The Framers knew they hadn't gotten everything exactly right, so they built in a way to change it later. Article 5 lays out the process.
Primary method (most common):
- Two thirds of both houses of Congress propose an amendment.
- Three fourths of the states ratify it.
Alternate method (less common):
- Two thirds of state legislatures (34 of 50) ask Congress to call a national convention, which proposes amendments.
- Three fourths of the states ratify it.
Either way, ratification takes three fourths of the states (38 of 50), through their legislatures or through special state ratifying conventions. State conventions have been used only once, for the 21st Amendment (1933), which ended Prohibition. The national convention method has never been used, and only 27 amendments have ever been ratified.
Why it's hard on purpose: under the Articles, every state had to agree to any change, so reform was nearly impossible. The Framers wanted the people to be able to fix the Constitution, but only with broad, nationwide agreement, so a temporary majority couldn't rewrite the basic rules. Article V came out of those debates about self-government.
Unresolved Issues
The compromises that got the Constitution ratified left some big questions open, and many still drive debate today.
- Slavery: the Three-Fifths and slave trade compromises held the union together but left slavery in place, and it took the Civil War to settle the question.
- Emancipation Proclamation (1863): on January 1, 1863, Abraham Lincoln used his war powers as commander in chief to declare that enslaved people in the Confederate states "are, and henceforward shall be free." It didn't cover the slave states that stayed loyal to the Union or areas the Union army already controlled, but it made ending slavery a goal of the war and let Black men join the Union army and navy.
- The 13th Amendment (1865) then abolished slavery everywhere in the United States, and the 14th Amendment (1868) replaced the three-fifths count by counting every person in a state for representation.
- Why it matters: the Emancipation Proclamation began to undo the founding compromise on slavery and pushed the country closer to the Declaration's promise that "all men are created equal."
- Federal vs. state power: phrases like "necessary and proper" and commerce "among the several States" left room for interpretation, so the line between national and state power is still fought over (see 1.8).
- Representation: equal Senate seats mean Wyoming (under 600,000 people) has the same two senators as California (about 39 million). The Electoral College can also elect a president who lost the national popular vote, which happened most recently in 2000 and 2016.
- Voting rights: the original Constitution left most voting rules to the states, so later amendments (the 15th, 19th, 24th, and 26th) and laws like the Voting Rights Act of 1965 had to expand who could vote.
Debates That Continue Today
The 1787 argument over the role of the national government, the powers of the states, and the rights of individuals is still at the heart of constitutional fights. Two big examples:
- Government surveillance after 9/11: after the September 11, 2001, attacks, Congress passed the USA PATRIOT Act (2001), which expanded the federal government's power to monitor phone and internet communications to find terrorists.
- In 2013, Edward Snowden revealed that the National Security Agency (NSA) had been collecting the phone records of millions of Americans in bulk. Supporters said it kept the country safe, while critics said it violated the Fourth Amendment's protection against unreasonable searches.
- The USA FREEDOM Act (2015) ended the NSA's bulk collection of Americans' phone records and required the government to get a court order for specific records instead.
- The tension is old. In Schenck v. United States (1919), the Court upheld the conviction of a man who mailed flyers urging drafted men to oppose the World War I draft, ruling that speech creating a "clear and present danger" isn't protected. National security vs. individual rights keeps coming back.
- The role of government in public education: education is a reserved power, run mostly by states and local school districts, but the national government shapes it with money and rules.
- No Child Left Behind (2001) required states to test students in reading and math every year from grades 3 to 8 (and once in high school) in exchange for federal funding, and it set penalties for schools that didn't improve. States pushed back against the federal control, and the Every Student Succeeds Act (2015) handed much of it back to the states.
- Courts are part of this debate too. In United States v. Lopez (1995), the Court ruled Congress couldn't use the Commerce Clause to ban guns near schools, and in Tinker v. Des Moines (1969), it ruled that students keep their free speech rights at school.
Big picture
The Constitution isn't one clean statement, it's a stack of compromises between big and small states, and North and South. The Great Compromise balanced proportional representation (House) with equal representation (Senate). The Three-Fifths Compromise papered over the moral divide on slavery to hold the union together. The final compromise, the Bill of Rights, won over the Anti-Federalists by guaranteeing protections against federal power. Article 5 keeps the whole system flexible for the future.