Part 2 – How did the U.S. Constitution become the U.S. Constitution?

The American Revolution was fought in the courts long before military actions took place at the battles of Lexington and Concord in 1775.(25) There are many notable events in the courts before military action occurred including the enactment of what the colonists called the “Intolerable Acts”.(26) The series of punitive laws passed by the British Parliament in 1774 in response to the Boston Tea Party are known as the Stamp Act and Townsend Act.(27) Prior to this the British had already passed the Declatory Act, which the king probably thought he was doing the colonists a favor by enacting “Positive Rights” to the colonists; but the reality is they were only ‘Positive’ for the King and his parliament to exercise power.(28)

The 1766 Declatory Act specifically was the British Parliament’s adherence to the position that it had the right to legislate law over the colonies in all cases whatsoever.(29) The British during this time period also approved a legal instrument called “Writs of Assistance”.(30)  This legal instrument enabled British Customs house officials the ability to search people, homes, and businesses with zero probable cause except a reasonable articulated suspicion that taxes were not being paid.(31) James Otis, a Harvard educated attorney, persuasively argued against “Writs of Assistance” in the British Courts and the basis of his arguments became what we know today as the Fourth Amendment of the U.S. Constitution.(32) I will explore James Otis’s contributions and discuss whether they are still relevant to modern times in more detail in another post in Part 2.

From 1774 to 1789 a convention of delegates was called together from the Thirteen Colonies and became the governing body of the United States during the American Revolution.(33) This convention of delegates is known as the First Continental Congress. This convention was initially called over issues related to the enactment of the Intolerable Acts against Massachusetts.(34) The main thrust of the first convention was not to break from British power but to convince the King and Parliament to act in a way the convention considered fairer in its nature.(35) They also organized an economic boycott of British imports and petitioned the King for a redress of grievances.(36) Ultimately the exercise did not persuade the King or Parliament to change their minds; in fact the King condemned the actions of Massachusetts.(37) It was readily apparent that a Second Continental Congress would need to convene to respond to what was tantamount to British tyranny.(38)

The Second Continental Congress convened in 1775 in Philadelphia and unanimously passed the “Declaration of Independence” on July 2nd 1776.(39) During the American Revolution, the Second Continental Congress continued meeting until it became the Congress of the Confederation when the Articles of Confederation were ratified on March 1, 1781.(40)

At the end of the revolution the colonies had the difficult task of defining what type of governance structure they wanted to live under. Due to their experience living under the tyranny of the British crown, they arguably knew more about what they did not want their governance structure to be more than what it should be.(41)

Their focus was on the rights of man and what people had the power to do, not what the King or State had power to do.(42) A public debate ensued and was aided by the publishing of the “The Federalist Papers” in the New York press from October 1787 to August 1788.(43) The Federalist Papers through 85 published articles and essays persuasively argued for the approval of the document we know today as the U.S. Constitution.(44) Thomas Jefferson called The Federalist Papers the best commentary ever written regarding the principles of government.(45) They also remain as a primary resource for interpretation of the U.S. Constitution, as the essays outline a lucid and compelling version of the philosophy and motivation of the proposed system of government.(46) Lets now explore The Federalist Papers in more detail.

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