US Constitution and Its Framers

¶ … achievement of independence left the American statesmen in a serious institutional dilemma. The new state founded, what was to be its form of organization on the other hand, if decided on the federal organization, the statesmen obviously needed to decide both on the states' representation in the institutions, but also on what these institutions would be. James Madison's notes from May 30 are eloquent in describing the debates around these issues.

As it is suggested in the beginning of the note, there were generally three issues that needed to be addressed at Confederate level and upon deciding on the form of organization. These were "common defense, security of liberty & general welfare"

. On a scale describing the level of integration, one had to decide upon establishing a national government or leaving things at an inferior level of integration and achieving the three issues based on a common treaty between the states, somewhat similar to a treaty of mutual assistance.

We should analyze both solutions and compare the conclusions with the ideas that were noted by Madison. A common treaty between the states would have born much resemblance to the assistance NATO provides nowadays for its members. Indeed, according to Article 5 from the Treaty founding the North Atlantic Organization, an attack on one country is considered an attack on all the country in the organization, establishing thus the legal grounds for a common defense.

Similarly, a defense treaty between the member states in the Confederation would have probably stipulated the same common defense in case of attack. As Randolph suggested, "no treaty or treaties among the whole or part of the States, as individual Sovereignties, would be sufficient"

. I would complete this statement by pointing out that it would not necessarily be insufficient, but it would have certainly not created the necessary coagulating basis on which the new state could function. In this sense, we can point out that the signatory parts of a treaty can pull out at any moment they consider fit. As such, we may have been in a situation that only some of the signatory states would have agreed, at one time or another, to support the common defense policy.

The discussions around how to approach common policies of the new founded state led on naturally to references of the supreme institutions that would function in the new state: "a national Government ought to be established consisting of a supreme Legislative, Executive & Judiciary"

. In my opinion, such a statement is full of different consequences.

First of all, as Charles Pinkney pointed out, the notions of national and supreme would simply wipe out the concept of State Governments and would have transferred all three of these powers to a national level. In this case, we would have been exactly in the opposite situation to the one previously discussed: instead of a loose federation, with a common defense policy established through a treaty among the States, a national authority would have been created, integrating at a national level the three main functions, executive, legislative and judicial. As Gov. Morris pointed out, federalism refers to "a mere compact resting on the good faith of the parties," while the national and supreme would have "a complete and compulsive" meaning and direction.

The necessity of a national, supreme government is revealed in this argumentation or rather explanation of the two concepts. The Confederation lacked the necessary powers (institutionally speaking) to impose on the acts of the Member States. This is generally the case of international law, where treaties between states, albeit binding, are harder to impose because there is no authority, like the Supreme Court, for example, that would be able to impose them.

On the other hand, if the three main functions were reunited at national level, the State (in this case the higher authority) would be able to use its mechanisms in order to be able to impose decisions.

It was necessary, on the other hand, to give out some of the powers to each members States, based on the principle that some of the problems could be worked out faster and more efficiently at State level. Additionally, some of the powers were to be shared between the two concepts described.

If the choice would lean towards the creation of a national government, each State representation would be a key issue, directly linked to the rights of suffrage in the Legislative body. The statesmen argued for the rights to be "proportioned to the quotas of contribution, or to the number of free inhabitants"

. A ratio would be, in this sense, established for each state.

Of course, we need to point out towards the fact that the discussions only refer to and take into consideration the free inhabitants. Slaves are not included, not even in the debate. However, a few years later the quota was adjusted so as to include part of the African-American population as well. This did not mean, in any case, direct representation for them.

The text I have briefly discussed here above gives us relevant information about the initial debates about the creation of the United States and of the institutional bodies and principles that would govern them. In many ways, this is very much similar to the debates we see today around the European Union.