The Problems of the Convention
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cially in diplomatic and military affairs, yet limited in power so as not to
menace the legislative and judicial branches, had to be created.
E. A Federal judiciary had to be set up, one that would be firm and
just, competent to rule on cases transcending State boundaries and able
to guard the Constitution, while not usurping the functions of the State
courts or of the other branches of the Federal government.
F. Important political and legal institutions inherited from the Confederation, colonial governments, and the English constitution had to be
incorporated in the new constitution. In addition, the new constitution
would have to recognize and preserve longstanding rights that Americans had enjoyed under English law, such as trial by jury in criminal
cases.
G. The delegates had to come to grips with the fundamental problem
of politics, which is how to reconcile the need for order with the need for
freedom—or, to put the matter another way, the problem of how to provide for both the security of the commonwealth and the personal rights
of the citizen.
H. The delegates had to write a constitution that would be a practical
instrument of government, effectively limiting power, and not a mere
declaration of abstract goals. They would have to try to make the written
constitution permanent, yet subject to amendment when change might
become necessary.
Few of the delegates to Philadelphia had clearly in mind all of these
responsibilities when they were appointed to the Philadelphia Convention. But gradually most of them became aware of how much they had
undertaken, and how much the Articles of Confederation would have to
be altered. Then the question was raised among them, especially by delegates from Delaware and Maryland, as to whether their States had authorized them to write a new constitution.
Despite such doubts, however, the large majority of delegates moved
rather swiftly away from a proposed revision of the Articles toward the
framing of a new political system. This was one reason why they decided
to keep their proceedings secret. Word that a handful of men were preparing a political structure to supplant the Articles of Confederation presumably would have alarmed a large part of the population of every
State.