Constitutional Convention
The Declaration of Independence emerged from grievance politics within the American colonies. In the southern colonies, the primary grievance was the British imperial government’s abolition of colonial slave statutes and hereditary slave laws through the Declaratory Act of 1766. Meanwhile, the northern colonies were mainly aggrieved by the British abandonment of their own traditions and its disrespect for the rule of law. However, a pivotal moment occurred on June 22, 1772, when Lord Chief Justice Mansfield of the Court of the King’s Bench of England delivered the Twelve Judges’ ruling in the case of James Somerset v. Charles Stewart. Mansfield declared that slavery was not “allowed or approved by the law of this Kingdom” and could only be legal in the Kingdom if it was enacted by “positive law,” a legislative power exclusive to England’s Parliament.
The Somerset decision announced a controlling precedent in colonial America, which invalidated colonial slave statutes and hereditary slave laws “for all purposes whatsoever” because it affirmed parliamentary sovereignty. Further, as the Somerset decision was self-executing, it restored enslaved black individuals to their rightful legal status under English law. Thus, black colonials living in the American colonies were not excluded from the Declaration of Independence as a matter of English law.
However, the Somerset decision created a common grievance once Massachusetts’ assembly enacted slave emancipation laws based upon this historic decision, only to have them vetoed by the governor of Massachusetts in 1773 and 1774. This conflict galvanized the thirteen American colonies.
Moreover, the gravity of the situation led Virginia’s colonial elites to propose forming a combined committee of all colonies to defend their interests. However, there were no established lines of communication between regional colonial governments, as the British imperial government discouraged such interactions. Serendipitously, the Virginians came to recognize the civil unrest in Massachusetts as an opportunity to establish a line of communication in the northern colonies.
Following the Declaration of Independence, America’s first constitution, the Articles of Confederation, was written in 1777 and ratified on March 1, 1781. Under the Articles, the States remained sovereign and independent, with Congress serving as the final authority for dispute resolution. Although the Articles granted the central government significant responsibilities, including ensuring “common defence [sic], the security of their liberties and their mutual and general welfare,” it withheld essential powers from the federal government, such as the powers necessary to carry out those responsibilities, including the power to tax and to regulate commerce among the independent states.
Furthermore, although the central government was the signatory of the Treaty of Paris of 1783, it lacked the power and authority to enforce its international commitments and legal obligations to the British, including the condition of assuring that all erstwhile English subjects living in the American colonies would be granted due process of law and “set at liberty” in accordance with the rule of law, once the treaty was ratified.
These limitations, along with the central government’s inability to prevent the British from continuing to export convicts to its former colonies—the lack of a standardized national currency—its inability to regulate commerce and trade, and the emphasis on state sovereignty over national unity, led a group of “nationalists” politicians to propose that the Continental Congress in New York call a “general convention.” Congress delayed it until February 21, 1787, when it reluctantly agreed to the proposal but restricted any changes to merely “revising” the existing Articles of Confederation.
James Madison and other delegates had meetings before the Convention formally began its business on May 25, 1787, as they had different ideas for the general convention and redirected the convention’s proceedings to a far more ambitious course. Known as the Virginia Plan, it went far beyond mere revisions. This shifted the focus from amending the Articles to drafting a new Constitution. Key features of the Virginia Plan were
(1) a Bicameral Legislature: The plan proposed a two-house legislature, where the lower House would be elected directly by the people, while the upper House would be chosen by the lower House from nominations submitted by state legislatures.
(2) Proportional Representation: Representation in both Houses of the legislature would be based on the population or the amount of financial contributions made by each state to the national government, favoring larger states.
(3) Strong National Government: The national government would have the authority to legislate in all areas where the states were incompetent to act and to veto state laws that conflicted with national laws.
(4) Three Branches of Government: The plan proposed a government divided into three branches; one, a legislative branch to make laws; two, an executive branch to enforce laws; and three, a judicial branch to interpret laws. This structure was aimed to create a system of checks and balances.
(5) Council of Revision: The executive and some members of the judiciary would form a council with the power to veto legislation passed by the national legislature, although a supermajority could override this veto.
(6) Supremacy of National Laws: National laws would take precedence over state laws, ensuring that the national government had the final say in disputes between the two.
(7) Amendments Process: The plan included a method for amending the Constitution, allowing for changes and adaptations over time.
The U.S. Constitution of 1787 purported to change the concept of constitutional government by introducing the principle of constitutional supremacy. Article VI declared that “This Constitution. . . Shall be the supreme law of the land.” Laws passed by Congress, though supreme in relation to State constitutions and State laws, were ranked below the Constitution.
Furthermore, Article VI clearly states that laws must conform to, and be enacted in accordance with the Constitution. Emphasizing the importance of the Supremacy Clause, Chief Justice John Marshall declared in the landmark case of Marbury v. Madison (1803) that any Act of Congress that contradicts the Constitution is not considered law. In this context, the rule of law, as envisioned by Marbury, transcends mere adherence to existing statutes—it embodies a doctrine of what the law should be, establishing a set of standards to which the laws must conform. Merely because a tyrant refers to his commands and arbitrary rulings as “laws: does not make them so.
However, Madison and the Framers compromised the Constitution by embedding racial bias in the document to preserve the fragile unity of the nascent nation in the late 1780s. The Constitution codified the enslavement of black colonists through the Fugitive Slave Act and the Three-Fifths Compromise. It sanctioned the denial of fundamental due process rights and legitimized claims of human ownership by white Americans, elevating certain white men above the law while subjugating black individuals beneath it. This document institutionalized racial repression and discrimination, embedding systemic injustice at the very core of the United States. Instead, the Constitution intended to unite, it entrenched a legacy of inequality and oppression, betraying its promise of liberty and justice for all.
Colonial slave laws were legal nullities during colonial times. The Framers of the U.S. Constitution knew it, and as colonial slavery could only be authorized by “positive law,” a power solely held by Parliament, which it never exercised—the slaveholding Patriots did not own black colonials. The Framers of the U.S. Constitution, fully aware of this, violated the rule of law by codifying slavery within the Constitution.
The Three-Fifths Compromise is the most glaring example of the moral and political miscalculations of the Framers of the Constitution during its drafting. Madison hailed it as a pragmatic solution to a highly contentious issue to prevent disunity by counting each pretended enslaved person as three-fifths of a free person for representation and taxation purposes, appeasing Northern and Southern States.
Moreover, the Framer’s creation of a “color-biased Constitution” is starkly evidenced by the Three-Fifths Compromise, which dehumanized black individuals by counting them, who were legally free under English law and entitled to U.S. citizenship as merely three-fifths of a person for representation and taxation purposes. This egregious compromise, coupled with the fact that the U.S. government and each State government were bound by English law and the Treaty of Paris of 1783 to “set at liberty” all black British subjects due to the Somerset decision and Parliament’s Declaratory Act—which nullified colonial slave laws “for all purposes whatsoever” reveals the legal fiction of U.S. slavery.
Thomas Paine wrote, “A constitution is not the act of a government, but of a people constituting a government, and a government without a constitution is power without right.” Building on this ideal, the thirteen States received the U.S. Constitution for ratification with the belief that only a constitution originating from and controlled by the people is legitimate. Thus, this Constitution was offered to the public as more than a body of substantive rules and principles.
The U.S. Constitution purported to uphold the principle that the government must be politically responsible to the States and the governed in all respects. However, the Framers’ approach was profoundly flawed, as they violated the rule of law by codifying the enslavement and exploitation of 500,000 legally free black colonials in the Constitution. This decision entrenched countless unsuspecting white Americans in the misanthropic practice of chattel slavery, making them complicit. Moreover, the Framers subjected black colonials and their descendants to enduring legal and moral injustices, institutionalizing their subjugation and exploitation within the nation’s foundational document. This was an actionable legal wrong.
Additionally, the U.S. Constitution was premised on the unassailable assumption that the rights and liberties of everyone would be protected according to the rule of law, and that a separate declaration of rights would therefore be an unnecessary and superfluous statement of apparent truth. Further, in this regard, the American public believed during the 1780s that black colonials were human chattel owned by wealthy Americans under the rule of law, and this established, and further racial discrimination reinforced.
This exposes the U.S. Constitution as a document designed to perpetuate an exploitative hierarchy, benefitting a privileged few at the expense of genuine progress toward a “more perfect union.” The implications to U.S. constitutionalism are profound, as the U.S. Constitution has enshrined systemic inequality under the rule of law, betraying the very ideals of liberty and justice it purported to uphold.
Thomas Cooley explained in his famous treatise Constitutional Limitations (1871), “there was none which would authorize or empower the government to deprive the citizen of any of those fundamental rights which it is the object and duty of government to protect and defend and to insure which is the sole purpose of a bill of rights, it was thought to be at least unimportant to insert negative clauses in that instrument, inhibiting the government from assuming any such powers, since the mere failure to confer them would leave all such powers beyond the sphere of its constitutional authority.”