The Articles of Confederation and Perpetual Union and the United States Constitution

Now that we understand how common and civil law developed, we can now discuss how these two legal systems, along with advances in political thought, would influence the form of government eventually adopted first by the U.S. and then by Mexico.  Both have implemented a federation and democratic republic form of government divided into three branches—legislative, executive, and judicial.  Despite this, however, the way each country developed their respective governments, coupled by the fact that each country’s history is magnificently different, although at points intertwined, has caused each country to cultivate a similar yet unique form of government.  The fact that each country employs a different legal system has also led to significant differences in how each country governs.

We will begin with the United States since it became an autonomous country before Mexico.  I am sure most if not all of us are aware from our elementary, junior high school, and high school history, civics, and other classes that the United States won its independence from England in 1783 with the Treaty of Paris (ratified by the Continental Congress a year later), whereby England officially recognized American independence.  The issues the Thirteen Colonies faced after a war that lasted eight long years did not cease with the signing of that treaty, however.  The Second Continental Congress, comprised of delegates from twelve of the thirteen colonies, had been established a provisional de facto form of government in 1775 for purposes of governing and facilitating commerce among the colonies after the American Colonies had declared their independence.

Once the war ended with the colonies winning their independence from Great Britain, constituents from the Second Continental Congress, after much debate, deliberations, and drafts, issued the Articles of Confederation and Perpetual Union (the “Articles”), which was ultimately ratified by all thirteen colonies between 1777 and 1781.  As the name suggests, the United States’ first form of government would be a confederation, i.e., an alliance of sovereign states.  The key issue in deciding on a confederation was that each of the original thirteen colonies thought of itself as an independent country and sought to partner with the others for commercial purposes.  While the Articles did establish a central government, none of the thirteen new states wished to cede any of its power or autonomy to this newly formed central government, thus rendering it pragmatically useless.  Historians have noted that the Articles had several key flaws that would ultimately lead to their repeal: 1) Congress had no power to tax the people or collect taxes from the states; 2) Each state had only one vote in Congress; 3) No executive or judicial branch; 4) The enactment of a new law required consent from nine of the thirteen states and any amendment to the Articles required acquiescence from all thirteen states; and 4) Congress lacked the power to draft men into the Continental Army.  Several attempts had been made by Congress to give it more power, but they were stymied each time.  In 1782, Rhode Island thwarted Congress’ attempt to earn revenue through the taxation of imports.  By 1785, no state was sending any resources to the central government, which meant Congress could not generate revenue or pay off any debt.  By 1787, it had become increasingly clear that a stronger central government was necessary.  In late 1786, delegates from each state were invited to Philadelphia for a convention to be held in 1787 under the guise of revising the Articles.  The reality was that these delegates had undertaken the arduous task of drafting a new document that would be the basis for a new form of government.  The result was the U.S. Constitution. 

Throughout the convention, delegates were divided into federalists and anti-federalists.  Federalists advocated for a stronger central government and favored the adoption of the new constitution.  Anti-federalists, in turn, favored a weak central government, fearing that a strong central government would infringe upon individual rights and the executive would eventually usurp power from the legislative and judicial branches and become king.  Arguments for and against a new federal government were expounded in a series of eighty-five essays written between 1787 and 1789 by Alexander Hamilton, John Jay, and James Madison—collectively known as the Federalist Papers. Ultimately, these two factions agreed to a compromise, which consisted in the promulgation of a new federal constitution along with a list of constitutionally protected individual rights.  The original Constitution, ratified in 1789, contained seven Articles, and the first ten amendments were added two years later in December 1791, which comprise the Bill of Rights.  The first three articles establish the three branches of government: Article one establishes a bicameral legislative branch or Congress, comprised of the Senate, whereby each state receives equal representation (two senators), and the House of Representatives, which provides state representation based on population.  Article One further enumerates the powers delegated to Congress, among which include the power to regulate commerce among the states, to declare war, regulate the money system and coinage, and “…make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers…”—referred to as the Necessary and Proper Clause. Article two establishes the duties and qualifications of the federal executive, or President, who is Commander in Chief (head of the armed forces and state militias) and chief diplomat.  Article three establishes the judicial branch, or the federal court system to hear and decide on “cases and controversies.”  The federal court system is to be spearheaded by the Supreme Court, which has original jurisdiction only in a very limited scope of circumstances, i.e., those involving “…ambassadors, other public ministers and consuls, and those in which a state shall be party…In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction.”  Article four describes the relationship among the states and with the federal government; Article five details the process for amending the Constitution, which is extremely difficult and why only 17 amendments have been passed since 1791.  Article six establishes that the Constitution, along with all federal laws and treaties made under the Constitution, are “…the supreme law of the land”—referred to as the Supremacy Clause. 

The Bill of Rights is a list of individual guarantees that imposes limits on government action.  The First Amendment guarantees freedoms of religion, expression, assembly, and to petition the government.  The Second Amendment guarantees the right to bear arms, and the Third prohibits the housing of soldiers during times of peace without the consent of the owner or times of war unless required by law.  The Fourth Amendment prohibits unreasonable searches and seizures; the Fifth establishes the right to a grand jury in a criminal proceeding, prohibits double jeopardy, protects against self-incrimination, provides for due process of law before any person may be deprived of life, liberty, or property, and compels just compensation when the government expropriates private property.  The Sixth Amendment guarantees rights of the accused, including the right to a speedy trial, to an attorney, to an impartial jury, to know the identity of his or her accusers, and the charges and evidence levied.  The Seventh Amendment establishes the right to a jury in federal civil cases; the Eighth forbids excessive bail and cruel and unusual punishment.  The Ninth Amendment declares that the rights provided in the Constitution and Bill of Rights are not exhaustive.  Finally, the Tenth Amendment limits the power of the federal government to those powers expressly incorporated in the Constitution and Bill of Rights.  All others are reserved to the states.