Civics textbooks today are mistaken when they imply that the Constitutional Convention invented the separation of powers into executive, legislative and judicial. In fact, as we have discussed, the concept originates with Montesquieu and was well established at the time.
At the same time, the Constitutional Convention had other groundbreaking achievements that civics textbooks today overlook.
The most impressive was simply in establishing a stable popular government. Contemporary Europe had very little to offer as models -- tiny Switzerland was about all there was. The main examples of popular government contemporary Europeans had to look upon were in ancient Greece and Rome -- and these were examples that tore themselves apart with factional strife. Popular government was generally seen as dangerously unstable and prone to self-destruction.
Admittedly, the Founders had an advantage over contemporary Europeans. They had another role model to look to -- themselves. All the colonies had practices elective, popular government to some degree, though most were only partial, with a considerable amount of authority in hands of colonial officers appointed in Britain.* Upon declaring independence, the states threw off the colonial yoke and established their own governments. The Convention therefore had the guidance of a century of semi-popular colonial government and a decade of fully popular state government to use as role models.
This leads to another groundbreaking achievement -- the invention of a written constitution. The term "constitution" had long been in use to mean the general institutions and rules of government, but it differed from a "constitution" in the modern sense in not being written down anywhere so that no one could prove what the constitution really was. Written plans of government dated back at least to the Middle Ages, when the king could issue charters to cities, setting forth their forms of government. This system continued in the colonies, which also received charters laying out their forms of government. All these charters, however, were issues by the king and could be withdrawn by the king. The practice of a written plan of government, issued by the people to themselves is an American invention, invented by the states during the Revolutionary War, and adopted at the federal level in 1787. It is often said the the U.S. Constitution is the oldest written constitution in use. A few state constitutions can challenge its claim to the honor, but as a national constitution, the U.S. Constitution is necessarily the worlds oldest, because written constitutions had not been invented before.
Closely related to the concept of a written constitution is the idea of judicial review, i.e., that courts can declare acts of the legislature unconstitutional. This, in turn, grows out of the older English concept of common law -- that judges are law makers. In England dating back to the Middle Ages, courts had been required to follow precedent set down by higher courts. Precedents, in other words, carried the force of law, meaning that judges made binding law. (Requiring judges to follow the precedents set by appellate courts created a "common law" throughout England, thus the name common law). Common law precedents could be overturned by legislative enactments, i.e., statutes. But the English system made no distinction between constitution and ordinary legislation. The will of the legislature, as set forth in statutes, always trumped the will of the courts as set forth in common law.
This was not the case in the colonies, which had charters that were higher law than ordinary legislation. And over time, the colonists developed the concept of a "constitution" that stood above ordinary legislation. The question then arose as to who decided which legislation was and was not constitutional. The answer turned out to be the courts. Contrary to what civics textbooks, this power was not illegitimately usurped by the courts, but was part of the plan from the start. It had occasionally be practiced by state courts even before the U.S. Constitution was prepared, and was discussed in the Convention and in the Federalist Papers. And it is an American invention.
Finally, the Constitutional Convention invented federalism, as the concept exists today -- two levels of government, both with direct authority over individuals, and neither chartered by or dependent on the other. I will discuss this at length in my following essays on centralization.
There are three main ways one can look at the Constitutional Convention. One is a chronological look at the process of the Convention tracing events as they took place and seeing how they Constitution developed and took shape. Another is is to look at the Convention issue by issue, see what issues were raised, what positions were taken, and what compromises were reached. A third is to look at the delegates as individuals and try to determine what each one believed in and stood for.
The approach I intend to take is primarily the third approach, to look at the individual delegates (at least the ones who were major participants) and see what each one believed in and stood for. I will break it down by the three main issues at stake -- the degree of centralization of the new government, the degree of democracy it should have, and issues that divided northern and southern states. For each of these main issues, I will give an overview and then describe the speeches and actions of the delegates, individual by individual, on the subject.
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*Details of state governments will be discussed later. Connecticut and Rhode Island were unique in having fully autonomous and elective government, even in colonial times.
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