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[Full Text]
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

On May 5, 1787, James Madison arrived in Philadelphia. He was the first of an august body of men to arrive in what was then the capitol of the young American republic. His purpose, and the purpose of those who were to gather in the days that were to follow, was to examine the government of the fledgling union as it then existed, and to correct its flaws and establish a new scheme of government that would “preserve the blessings of liberty” for generations to come.

Already, prior to this time, Madison had become convinced that the then existing Articles of Confederation, which governed the relationship of the several states and established a weak national government, were insufficient and inadequate. He documented his concerns about the manner in which the states and the existing governmental infrastructure were functioning in a short memorandum on “the vices of the political system of the United States.”

Among the vices Madison identified were problems inherent in lawmaking in the states and under the Articles of Confederation. With regard to the latter, he noted that the states regularly failed “to comply with the Constitutional requisitions.” This failure, which he termed an “evil,” resulted in Madison’s opinion “from the number and independent authority of the States.” So long as this remained unaddressed, a national government would be essentially useless. In fact, in the second point in his memo on the problems facing the young United States, he pointed out that state encroachments on federal authority were numerous already at that early date, and he pointed out examples, including “unlicensed compacts between Virginia and Maryland,” arrangements that may have proved harmful to other states.

As to the states themselves, they provided multiple examples of even greater problems. There were, Madison noted, a “multiplicity of laws in several states.” This had the tendency to result, he complained, in the much too rapid growth of laws, and he heaped a powerful dose of scorn and excoriation upon the practice:

As far as laws are necessary, to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion, which might be abused, their number is the price of liberty. As far as the laws exceed this limit, they are a nusance: a nusance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume.

Moreover, the laws passed by the several states with such rapidity were just as rapidly being amended or repealed, leading to confusion. “We daily see laws repealed or superseded, before any trial can have been made of their merits: and even before a knowledge of them can have reached the remoter districts within which they were to operate,” Madison noted. “In the regulations of trade this instability becomes a snare not only to our citizens but to foreigners also.”

These problems challenged the very notion that a republican form of government was even possible. Historian Jack N. Rakove of Stanford University summarized the problem in his biography of Madison:

The simple truth, Madison believed, was that incompetent legislators were passing too many laws, and these poorly drawn acts were being repealed or revised before anyone could discover how well they were actually working. Such proceedings brought the very concept of law into contempt. In a republic obedience to law rested neither on the efficiency of monarchy or on the influence of an able aristocracy but on the free compliance of citizens who believed that the laws were rightly made and fairly executed. Call that faith into question, Madison understood, and the willingness to abide by law would crumble. (Rakove, 47)

The solution would be to vest or bestow sufficient power in the hands of a national legislature and then to construct it in such a way as to ensure an optimal outcome that would ultimately serve the need to maintain a republican form of government for an indefinite period of time. No small task!

Fortunately, in May of 1787, Madison had what he believed to be the solution. When the remainder of the Virginia delegation arrived they began to construct a proposal that could then be submitted to the full convention. The resulting Virginia Plan went on to play a key role in structuring debate at the Convention and in large measure can be viewed as the “rough draft” of the Constitution that the Convention ultimately produced.

In the plan, Madison and the Virginia delegation proposed that “the National Legislature ought to consist of two branches.” The Virginia Plan also proposed that members of the first branch “ought to be elected by the people of the several States” and “that the members of the second branch ... ought to be elected by those of the first.” The power to make law, to legislate, would belong to both branches, or houses, jointly, as spelled out by point six of the plan:

Resolved that each branch ought to possess the right of originating Acts; that the national Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union, and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.

This was a stunning grant of power, and it was put into place in the Constitution ultimately created by the Convention and ratified by the states, and its major implementation, in the form of the “vesting clause,” appears in Article I, Section 1 of the Constitution.

It was made possible, only because Madison and other delegates believed that a single or unicameral legislature vested with such power would become a menace, prone to the same ills that Madison identified in the state governments and the Federal Congress as it operated under the Articles of Confederation. Only a double, or bicameral legislature, along with other checks and balances, could keep the legislative branch in check.

To that end, Madison’s plan called for the upper house of the legislature to be filled by persons who could “hold their offices for a term sufficient to ensure their independency” as a balance or counterweight against the possibility, or even probability, that electoral enthusiasms that would be likely to hold sway over the lower house would not carry the day in too many situations and lead to the rapid passage of legislation ill-conceived in the heat of the moment. Though it is derided today, Madison’s plan depended on the concept of gridlock.

Madison was not to get his way, entirely. In June, the states represented at the Convention voted to allow state legislatures to elect members of the upper house, the Senate (this would later be changed again to direct election by the 17th Amendment). Madison opposed the move, believing that the state legislatures had proven themselves unreliable in preceding years, but he also believed, according to historian Rakove, that “the upper house would lose its character as a small, highly select institution” that could adequately counterbalance the lower house. In practice, however, state legislative election of Senators was an important means of further balancing the power of the new government against the states themselves, and this “federalist” approach -- even though since modified and, arguably weakened -- has played an important role as one of the many “checks and balances” built into the Constitutional system.

[Full Text]
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 Posterity, do ordain and establish this Constitution for the United States of America.

At only 52 words in length, the Preamble to the U.S. Constitution is one of the most moving and eloquent statements about the nature and purpose of government ever written. At the time of its writing, the concept that government should be established by the people themselves had never before been tried in actual practice.

True, the idea, and much of the philosophical thought that undergirds it, dates far back into the deep recesses of history, but until 1787 it had not been explicitly put into practice.

The most revolutionary doctrine of all, that “We the people” are creating this charter of government, is at the very outset of the Preamble already a stunning departure from nearly all previous forms of political practice. One may search the vast catalog of human history almost in vain for another example of such an expression of the popular will as the generative force behind the creation of a government.

In almost all previous history, government was imposed by force. The Romans, for instance, expanded their empire through military conquest.

The conquered lands accepted the rule of Rome at the points of swords carried by Caesar’s legions. Later, when the barbarian invasions flooded the Roman world, and the Goth, Vandal, Hun and Lombard standards flew over the old Roman estates, the people submitted to the will of the Barbarian conquerors. They did so not because they chose their new masters, but because superior military and economic might compelled them.

“We the People of the United States” severed the long and unbroken chain of submission to force. It is a bold expression of individual sovereignty — the right of the individual to determine his or her own fate. It is an expression informed by and based upon the doctrine of natural law.

Thomas Jefferson clearly explained natural law in three phrases, when he wrote in the Declaration of Independence “that all men are created equal,” “that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness,” and “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” 

“We the People” codifies Jefferson's formula and makes it a concrete pillar of an actual functioning government. But the Preamble goes further, and actually gives voice to the means by which a group of sovereign individuals might come together and form a government that can exercise certain powers over an entire nation.

According to the Preamble, through the creation of the new government the people intended: “to establish Justice;” “insure domestic Tranquility;” “provide for the common defense;” and promote the general welfare. How “the people” have the ability to engage in this creative act of governance flows from their natural rights as identified by Jefferson.

Having the unalienable rights to life and liberty means that every person has the freedom to engage in all of the activities necessary to sustain one’s life. This encompasses what can be defined as economic activity — building shelter, making or acquiring clothing, growing food, defending oneself and family and property against theft or destruction, and many other activities. A large part of this activity requires cooperation between people, which points to another implied unalienable natural right: the right to associate with others.

If people have the right to form associations with others for the purpose of growing food, or building shelter or for other purposes intrinsic to the maintenance of life, then they likewise have the right to form an association to create a governing body of law suitable to the purpose of securing the “Blessings of Liberty.”

In the case of the Constitution, the Preamble gives voice to the idea that the people of the United States are choosing to exercise some of their unalienable rights in a collective fashion in order to ensure that Justice prevails in cases where someone’s rights have been unjustly violated, that the nation is made tranquil and suitable for the unhindered continuation and development of Life, that all are equally protected and defended in common from external threat and devastation.  In doing these things, the general welfare of the people as a whole is promoted.

To these noble ends, “We the People” for the first time in history, freely exercised their rights to shake off the chains of slavery and oppression and create something wholly new, the Constitution  of the United States of America.

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