CHAPTER 02

The Founding and the

Constitution

© 2023 W. W. Norton & Co., Inc. 

The Founding and the Constitution

2
The First Founding: Interests and Conflicts
The story of the Founding generally emphasizes ideals such as equality, justice,
individual liberty, and the pursuit of happiness

Founders such as James Madison, Thomas Jefferson, and Alexander Hamilton

are revered for articulating American values and ideals

However, two additional practices are directly connected to crucial conflicts:

• Land removal from Native nations

• Enslavement of Africans

3
The First Founding: Native Nations and Colonial Life
Hundreds of Native nations existed when the first colonists arrived during the
sixteenth and seventeenth centuries.

First two successful colonies set up in Jamestown, Virginia (1607) and

Plymouth, Massachusetts (1620)

• Colonists brought desirable goods to trade, but also foreign diseases such
as smallpox
• Subsequent waves of English settlers rejected Native land ownership and
forcibly confiscated land

• Settler colonialism: a form of colonialism that seeks to remove Native

peoples from land and replace them with new settler population
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The First Founding: British Taxes and Colonial Interests, 1 of 2
During the first half of the 1700s, Britain ruled its American colonies with a
light hand.

This relationship changed when:

• The British government accumulated debt that was accrued during

the French and Indian War.

• Many colonists saw these taxes as detrimental to their livelihood and
autonomy.

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The First Founding: British Taxes and Colonial Interests, 2 of 2
Britain sought to impose new, aggressive commerce taxes on the colonists,
which included:

The Sugar Act of 1764

• Taxes on sugar, molasses, and other commodities

The Stamp Act of 1765

• Taxes on printed items such as licenses, newspapers, and playing cards

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The Boston Tea Party, 1 of 2
Disagreements between the British and the colonists over taxation continued.

In 1773, the British government again took action with the Tea Act.

• Granted the East India Trade Company a monopoly on imported tea.

On December 16, 1773, 50 colonists boarded three British ships.

• They threw an entire cargo of tea into Boston harbor.

• Set in motion a cycle of provocation and retaliation that in 1774 led to the
convening of the First Continental Congress.
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The Boston Tea Party, 2 of 2

8
The First Founding: Enslavement of Africans and Colonial Economy

Calls to end British rule were spurred by many factors, including economic
forces in the colonies.

Key issue was related to enslavement

• A system of slavery in which individuals are held as property for the

purpose of forced labor so that profit can be extracted.

Enslaved Africans had no legal rights and were considered “property” with
monetary value that could be insured, bought, and sold.

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The First Founding: The Declaration of Independence, 1 of 2
The Second Continental Congress in 1776 appointed a committee to draft a
statement of independence from British rule.

Thomas Jefferson of Virginia drafted the majority of the document with two
crucial sections:

• A statement on the principles of self governance

• A list of grievances against King George III
On July 4, 1776, the Second Continental Congress voted to accept the
document and declare independence.
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The First Founding: The Declaration of Independence, 2 of 2
The Declaration of Independence was remarkable because it focused on principles, goals,
and grievances to unite various groups.

The Declaration states the purpose of governments is to secure rights and that governments
derive “their just powers from the consent of the governed”

• Therefore, when governments violate these rights and no longer have support of the
people, the people have the right to overthrow the government.
• It also focuses on the 27 grievances against King George III, including maintaining a
standing army without consent and not providing appropriate representation rights.

While the Founders extolled the importance of freedom, they were also limiting sovereignty
of Native Nations.

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The First Founding: The Influence of the European Enlightenment

Thomas Jefferson drew heavily from philosophers associated with European

Enlightenment when describing expectations of government.

John Locke, Thomas Hobbes, and Baron de la Brède et de Montesquieu

• Locke was a British philosopher and advanced the principles of republican

government.

• Hobbes was another British philosopher who believed that governments should
have limits on the powers they exercised.

• Montesquieu was a French philosopher who argued that power needed to be

balanced by power as a bulwark against tyranny.
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The First Founding: The Articles of Confederation
After declaring independence, the Continental Congress adopted the Articles of
Confederation.

Articles of Confederation (1777–1789)

• This was the first written constitution of the United States.

• It was ratified by all states in 1781.

• The state governments retained “sovereignty, freedom, and independence”

(making them a confederation).
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The Articles of Confederation: Characteristics
Characteristics of the Articles of Confederation

Weak central government

• No president, only a legislature with limited powers

• Each state had one vote, regardless of population.

• All 13 states had to agree to make amendments.

Congress could declare war and make peace, negotiate treaties and alliances, regulate trade with Native
nations, and issue currency or borrow money.

Any laws passed by the national government could only be carried out by state governments and Congress
had no power to collect taxes.

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The Articles of Confederation: Concerns
Some people questioned the soundness of the Articles. Concerns focused on:

• Foreign affairs: under the Articles, they were unable to enforce treaties.

• Economic matters: currency inflation hurt business and land redistribution policies angered
property owners.

Opponents of the Articles meet in Annapolis, Maryland, in 1786.

• Delegates from five states attended the Annapolis Convention.

• They agreed to meet one year later in Philadelphia.

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The Second Founding: From Compromise to Constitution
Events in the 1780s highlighted the shortcomings of the Articles of Confederation
and led to the second founding.

• United States had difficulty conducting foreign affairs as there was no national
military and states competed against one another for foreign commerce.

• Power retained by states began to alarm well-to-do Americans when radical

forces gained power in a number of state legislatures.

• Annapolis Convention in the fall of 1786 established that a future

constitutional convention was needed to create a stronger central government.

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The Second Founding: Shays’ Rebellion, 1 of 2
Shays’ Rebellion in 1787 magnified concerns about the Articles of
Confederation.

Daniel Shays, a former army captain, led a mob of farmers in a rebellion against
the Massachusetts government.

• The goal of the rebellion was to prevent the foreclosures of lands by

keeping county courts from sitting until after the next election.

• Shays and his followers attempted to capture the federal arsenal in

Springfield but failed as the state government ultimately regained control.

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The Second Founding: Shays’ Rebellion, 2 of 2

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The Second Founding: The Constitutional Convention
Edmund Randolph of Virginia offered a resolution that proposed the “Virginia Plan.”

The Virginia Plan called for a system of representation based on:

• State population or proportion of each state’s revenue contribution to the national

government, or both

• Congress would be set up as a bicameral legislature or a legislative body composed of

two chambers

Opponents claimed the plan was biased in favor of large states.

• Under the New Jersey Plan, each state was to have equal representation and a
unicameral legislature or a legislative body with one chamber

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Independence Hall, Philadelphia

20
The Second Founding: The Great Compromise
The Connecticut Compromise, or Great Compromise, bridged differences
between the Virginia Plan and the New Jersey Plan.

The Great Compromise creates a bicameral legislature.

• House: representatives apportioned by population in state

• Senate: states with equal representation regardless of population

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Who Were the
Framers of the
Constitution?

22
The Delegates to the Constitutional Convention (1787) and the U.S. Population
(1790): Race

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The Delegates to the Constitutional Convention (1787) and the U.S. Population (1790): Slaveowners

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The Delegates to the Constitutional Convention (1787) and the U.S. Population (1790): Gender

25
The Delegates to the Constitutional Convention (1787) and the U.S. Population (1790): Occupation

26
For Critical Analysis: Who Were the Framers of the Constitution?

27
The Question of Slavery: The Three-Fifths Compromise

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The Second Founding: The Constitution and Slavery
While the institution of slavery was crucial to the colonial economy, attitudes toward the
acceptability of slavery was shifting by the late eighteenth century.

The pressure to end slavery also came from enslaved people themselves

• Enslaved Black people resisted their treatment through both obvious and subtle ways.

• More explicit forms of resistance included running away or armed uprisings while subtle
forms of resistance included learning how to read.

The discomfort around slavery became more pronounced with the Revolutionary War

• Many of the 13 colonies offered enslaved Black people their freedom if they fought in the
Continental army after a similar offer from the British

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The Second Founding: The Three-Fifths Compromise
To build support for the Constitution, slave and nonslave states needed to
reach a compromise.

Three-Fifths Compromise

• Seats in the House would be apportioned by “population,” which involved

counting five enslaved people as three free persons.

• Southern delegates would not agree to the new government if northerners

refused to bargain on this issue.

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The Second Founding: The Extension of the Slave Trade
After resolving the issue of representation, the next issue was how long the slave trade
would continue

While many delegates were appalled at the idea of accommodating an extension of the
slave trade in the new Constitution, others considered it key to their future economy.

• Ten states already had outlawed the importation of African enslaved people.

• South Carolina proposed a ban on the federal government from regulating the
importation enslaved Africans

• A compromise allowed the importation of enslaved Black people for another 20

years and the new federal government could tax the imported enslaved Africans.

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The Constitution: Goals
The framers sought several goals in creating the new government

Goals of the framers

• A central government strong enough to promote commerce and protect

property

• Prevention of “excessive democracy”

• Emphasis on ideas that would generate public support

• Restraint of the federal government from impinging on liberties

• Bicameral legislature
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The Constitution: Limiting Power
Constitutional limits on the national government’s power

Checks and balances: mechanism through which each branch of government is able to
participate and influence the activities of the other branches.

Bill of Rights: the first 10 amendments to the Constitutions, ratified in 1791; they ensure
certain rights and liberties to the people.

Separation of powers: the division of governmental power among several institutions that
must cooperate in decision-making.

Federalism: a system of government in which power is divided, by a constitution, between a

central government and regional governments.

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Articles of Confederation
Comparing versus the Constitution
the Articles of Confederation and the Constitution
Major Provisions Articles of Confederation
Executive branch None
Judiciary No federal court system. Judiciary
exists only at state level.
Legislature Unicameral legislature with equal
representation for each state.
Delegates to the Congress of the
Confederation were appointed by
the states.
Fiscal and economic powers The national government is
dependent upon the states to
collect taxes. The states are free
to coin their own money and print
paper money. The states are free
to sign commercial treaties with
foreign governments.
Military The national government is
dependent upon state militias and
cannot form an army during
peacetime.
Legal supremacy State constitutions and state law
are supreme.
Constitutional amendment Must be agreed upon by all
states.
Slavery No mention
Constitution
President of the United States
Federal judiciary headed by
Supreme Court
Bicameral legislature consisting of
Senate and House of
Representatives. Each state is
represented by two senators,
while apportionment in the
House is based on each state’s
population. Senators are chosen
by the state legislatures (changed
to direct popular election in 1913)
for six-year terms and members
of the House by popular election
for two-year terms
Congress given the power to levy
taxes, coin money, and regulate
international and interstate
commerce. States prohibited
from coining money or entering
into treaties with other nations.
The national government is
authorized to maintain an army
and navy.
National Constitution and
national law are supreme.
Must be agreed upon by three-
fourths of the states.
Enslaved people count as 3/5 of a
state’s total enslaved population,
and trade of enslaved people is
allowed for 20 years.
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The Constitution: The Preamble
The Constitution begins with a powerful, unifying preamble.

“We the people of the United States, in order to form a more perfect union,
establish Justice, insure domestic Tranquility, provide for the common defence,
promote the general Welfare, and secure the Blessing of Liberty to ourselves
and our posterity, do ordain and establish the Constitution of the United States
of America.”

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The Constitution: The Legislative Branch
Article I of the Constitution provided for a Congress of two chambers.

House of Representatives and Senate

• Different term lengths (2 years in the House, 6 years in the Senate)

• Senate designed to guard against “excessive democracy”

• Senate alone given power to ratify treaties and approve presidential

appointments

• House given sole power to originate revenue bills

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The Constitution The Constitution

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The Constitution: Expressed and Implied Powers
Expressed powers

• Specific powers granted by the Constitution to Congress (Article I, Section

8) and to the president (Article II)

Implied powers

• Also known as the necessary and proper clause or elastic clause

• Provides Congress with authority to make all laws that are “necessary and
proper” to carry out its enumerated powers
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The Constitution: Powers of Congress
Section 8 of Article I specifically give power to Congress to:

• Collect taxes

• Borrow money

• Regulate commerce

• Declare war

• Maintain an army and navy

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The Constitution: The Executive Branch
The Constitution provided for establishment of the presidency in Article II.

Executive branch powers

• The president can “recognize” other governments and negotiate treaties (with approval of
the Senate).

• The president can grant reprieves and pardons, except in cases of impeachment.

• The president appoints major departmental personnel.

• The president can veto congressional enactments.

• The president can convene Congress to a special session.

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The Constitution: The Judicial Branch
The Constitution provided for establishment of the judicial branch in Article III.

Judicial branch

• Includes the Supreme Court of United States

• Power to resolve conflicts between federal and state laws

• Has jurisdiction over citizen controversies from different states

• Judges given lifetime appointments

• The Supreme Court assumed the power of judicial review (the power of the courts to review actions
of the legislative and executive branches and, if necessary, declare them invalid or unconstitutional).

41
The Constitution: National Unity and Power
The U.S. Constitution unifies the nation with a common economy.

States were prohibited from discriminating against other states’ goods

or citizens.

The U.S. Constitution stands supreme over state laws, as specified in the
supremacy clause found in Article VI of the Constitution.

• The supremacy clause also binds all state and local as well as
federal officials to take an oath to support the national Constitution.

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The Constitution: Amending and Ratifying
The Constitution established procedures for its own revision in Article V.

Requirements to add amendments are very difficult and happen only rarely (just 17 times since
1791).

• Amendment: a change added to a bill, law, or constitution

The Constitution also lays out the rules for its ratification or adoption in Article VII.

• The Constitution required 9 of 13 states to ratify for it to go into effect.

• Even if all thirteen states did not ratify, it would take effect for all thirteen once the
threshold of nine states had been crossed.

43
Which were Chosen? An Analysis of the 27 Amendments
Most efforts to amend the Constitution have failed.

Successful attempts to amend the Constitution have focused on the structure or

composition of government rather than a specific public policy problem.

• This is consistent with the concept of a constitution as “higher law.”

• The purpose of a constitution is to establish a framework for the process of

governing and ordinary lawmaking.

• In some instances, ordinary citizens can influence the Constitution.

• Gregory Watson, an undergraduate at the University of Texas, launched a

student-led campaign that led to ratification of the 27th Amendment.
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Changing the Constitution

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The Constitution: Limits on National Government’s Power
The Constitution includes two key principles: separation of powers and
federalism.

• Separation of powers is not explicitly stated but is maintained by “checks

and balances.”

• Federalism was devised as a system of two sovereigns (the states and the
nation) in the hope that competition between them would limit the power
of each.

The Bill of Rights, or a list of citizens’ rights, are the first 10 amendments of the
Constitution.

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Separation of Powers

47
The Constitution: Checks and Balances

48
The Fight for Ratification
The struggle for ratification included 13 separate campaigns.

Federalists

• Favored a stronger national government

• Supported the Constitution

Antifederalists

• Favored the balance of power resting with the states and a weak national
government

• Divided over alternatives to the Constitution

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The Fight for Ratification: Federalists versus Antifederalists, 1 of 2
Empty cell Federalists
Who were they? Property owners, creditors,
merchants
What did they believe? Believed that elites were most
fit to govern; feared “excessive
democracy”
What system of government Favored strong national
did they favor? government; believed in
“filtration” so that only elites
would obtain governmental
power
Who were their leaders? Alexander Hamilton, James
Madison, George Washington
Antifederalists
Small farmers, frontiersmen,
debtors, shopkeepers, some
state government officials
Believed that government
should be closer to the people;
feared concentration of power
in hands of the elites
Favored retention of power by
state governments and
protection of individual rights
Patrick Henry, George Mason,
Elbridge Gerry, George Clinton
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The Fight for Ratification: Federalists versus Antifederalists, 2 of 2

Both sides presented essays, speeches, pamphlets, and letters for and against
ratification of the Constitution.

• The Federalist Papers were 85 articles published in the New York City
newspapers in support of ratification.

• Written by Alexander Hamilton, James Madison, and John Jay

• Antifederalists argued that the new Constitution betrayed the Revolution

and would lead back to a monarchy.

• Antifederalists included Patrick Henry and Richard Henry Lee

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The Fight for Ratification: Representation
The Antifederalists wanted representatives who were “a true picture of the
people.”

• They argued that this could only be achieved in small republics such as the
existing states.

Federalists argued that advantages of a representative government included

people choosing individuals with experience and talent to represent them.

52
The Fight for Ratification: Tyranny
Both the Federalists and Antifederalists feared tyranny or the unjust use of
power and authority by the government.

The Antifederalists were concerned government would be controlled by the

wealthy elite.

• Feared the tyranny of a few over the many

The Federalists feared tyranny of the many over the few.

• Feared a popular majority would “trample on the rules of justice”

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Ratifying the Constitution

54
The Fight for Ratification: Governmental Power
Limited government power: a government whose powers are defined and
limited by a constitution

• The Antifederalists wanted a weak central government with enumerated

powers and a Bill of Rights.

• The Federalists saw a need for strong central government and divided
governmental powers to prevent a tyranny of the majority.

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National Government’s Power

56
The Fight for Ratification: Compromise
The Federalist vision for America triumphed with the U.S. Constitution.

The Antifederalists did make a persuasive case for the inclusion of a bill of
rights:

• In December 1791 the states ratified the Bill of Rights

• Initially these rights only applied to the federal government

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Who Gained the Right
to Vote through
Amendments?

58
Adult Citizens Eligible to Vote in National Elections

59
Proportion of 2020 Electorate by Amendment

60
For Critical Analysis: Who Gained the Right to Vote Through Amendments?

61
Amendments to the Constitution
Amendment Purpose Year Proposed Year Adopted
First Congress is not to make any 1789 1791
law establishing a religion or
abridging free exercise of
religion, speech, press,
assembly, or petitioning the
government for redress of
grievances.

Second, Third, Fourth No branch of government 1789 1791

may infringe on the right of
people to keep arms
(Second), is not arbitrarily to
occupy homes for a militia
(Third), and is not to engage
in the search or seizure of
evidence without a court
warrant swearing to belief in
the probable existence of a
crime (Fourth).

Fifth, Sixth, Seventh, Eighth The courts (footnote, 1789 1791

asterisk) are not to hold
trials for serious offenses
without provision for a
grand jury (Fifth), a petit
(trial) jury (Seventh), a
speedy trial (Sixth),
presentation of charges
(Sixth), confrontation of
hostile witnesses (Sixth),
immunity from testimony
against oneself (Fifth), and
immunity from more than
one trial for the same
offense (Fifth). Neither bail
nor punishment can be
excessive (Eighth), and no
property can be taken
without just compensation
(Fifth).

Ninth, Tenth All rights and powers not 1789 1791

enumerated are reserved to
the states or the people.

Eleventh Limited jurisdiction of 1794 1795

federal courts over suits
involving the states.

Twelfth Provided separate ballot for 1803 1804

vice president in the
electoral college.

Thirteenth Eliminated slavery and 1865 1865

eliminated the right of states
to treat persons as property.

Fourteenth Asserted the principle of 1866 1868

national citizenship and
prohibited the states from
infringing upon the rights of
citizens of the nation, no
matter that they happened
to live in that state. Also
prohibited states from
denying voting rights to
male citizens over the age of
21. (Footnote, double
asterisk).

Fifteenth Extended voting rights to all 1869 1870

races.

Sixteenth Established national power 1909 1913

to tax incomes.

Seventeenth, (footnote, Provided for direct election 1912 1913

cross symbol) of senators. This diminished
the power of the state
legislatures and underscored
the idea of a direct
connection between
Americans and the
government of the United
States.

Nineteenth Extended voting rights to 1919 1920

women.

Twentieth Eliminated “lame-duck” 1932 1933

session of Congress.

Twenty-second Limited presidential term. 1947 1951

Twenty-third Extended voting rights to 1960 1961

residents of the District of
Columbia.

Twenty-fourth Extended voting rights to all 1962 1964

classes by abolition of poll
taxes.

Twenty-fifth Provided presidential 1965 1967

succession in case of
disability.

Twenty-sixth Extended voting rights to 1971 1971, (footnote,

citizens aged 18 and over. double cross
symbol)

Twenty-seventh Limited Congress’s power to 1789 1992

raise its own salary.

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Public Opinion Poll: Q1
Do you believe the U.S. Constitution (1787) was driven more by noble
principles or political self-interests?

a) primarily by noble principles

b) primarily by political self-interests
c) a mix of noble principles and political self-interests

63
Public Opinion Poll: Q2
The Federalists and the Antifederalists disagreed about what most influenced
elected officials and their policy choices. Which do you think has the most
influence on the kinds of laws elected officials support?

a) desire to get re-elected or hold higher office

b) personal wealth or economic class
c) personal opinions and feelings about issues

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Public Opinion Poll: Q3
Do you think we would have different kinds of laws if elected officials had the
same economic background as their average constituent, as the Antifederalists
believed?

a) Yes, our laws would be different if elected officials had the same income as
their constituents.

b) No, our laws would be the same no matter the income similarity or
difference between elected officials and those they represent.

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Public Opinion Poll: Q4
Small and large states compromised significantly on the structure of the
government. What do you think is the result of these compromises?

a) Small states have too much influence on government.

b) Large states have too much influence on government.
c) There is the proper balance in power between the small and large states.

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Public Opinion Poll: Q5
Considering the current number of amendments to the U.S. Constitution, the
number of amendments that have failed, and the stability of our Constitution,
do you believe the process for amending the U.S. Constitution is too difficult,
about right, or too easy?

a) too difficult
b) about right
c) too easy

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Additional
Additional Information
Information
Following this slide, you will find additional images, figures, and tables from
the textbook.

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Native Americans in North America, ca. 1500

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Declaration of Independence

70
Crispus Attucks

71
Comparing Systems of
America Side by Side Government

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The Founding and the Constitution

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