The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the new nation into an uncertain future.
The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce… among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”
These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, “we must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”
Marshall’s interpretative understanding reflects an approach that is true to what we might call “The Framers’ Constitution.” It recognizes that the Constitution sets forth broad principles and that the central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.
American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of “search” in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation’s “land and naval Forces” was eventually seen as authorizing an air force. The guarantee of “equal protection of the laws” in the Fourteenth Amendment was understood in later decades as prohibiting discrimination against not only African Americans but women and gays and lesbians as well. “Commerce…among the several states” came to be seen differently as the nation’s economy became more complex and integrated across state lines. The concept of “liberty” was recognized as encompassing not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one’s children.
But how should we give concrete meaning to the open-textured provisions of the Constitution? The best answer, grounded in the vision of the Framers and in the wisdom of John Marshall, has a long and honorable tradition in American constitutional law. This answer has two elements. First, at the very core of the Framers’ Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against the arbitrary or unreasonable, the starting point must be a presumption of judicial modesty. This is an essential tenet of any theory of principled constitutionalism.
Second, respect for the Framers’ Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that in times of crisis people may panic and too readily sacrifice both fundamental freedoms and structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.
The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1789 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored “the legal check” that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that “independent tribunals of justice will consider themselves…the guardians of those rights [and]…will be naturally led to resist every encroachment” upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could “be preserved in practice no other way than through the medium of courts of justice,” which must “guard the Constitution and the rights of individuals from the effects of those ill humours which…sometimes disseminate among the people themselves.”
This understanding of the Framers’ Constitution found expression in the modern era in a series of Supreme Court opinions in the 1930s and ’40s. In the Court’s famous footnote four in Carolene Products (1938), for example, the Court suggested that there are some circumstances in which there may be “narrower scope” for the usual “presumption of constitutionality.” Specifically, the Court noted that “more exacting judicial scrutiny” may be appropriate when legislation “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and when laws disadvantage groups like “religious” or “racial minorities,” because “prejudice” against such groups “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect” them. Put simply, the majority recognized in Carolene Products that courts should not be so quick to defer to the outcome of the political process when there is good reason to believe that that process itself may have been tainted. The Court added another element to this understanding in Skinner v. Oklahoma (1942), in which the Court invalidated a law authorizing compelled sterilization. Noting that the right to procreate is one of “the basic civil rights of man,” the Court held that government action that substantially restricts the exercise of such a right must be subjected to heightened scrutiny to ensure that the limitation on the right is truly necessary.
Following this approach, the Supreme Court has properly departed from the presumption of judicial restraint when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when they substantially restrict the exercise of constitutionally protected rights. In such circumstances it is necessary and proper for courts—Madison’s “independent tribunals of justice”—to exercise a “more exacting judicial scrutiny” in order to protect our most fundamental freedoms and guard against those malfunctions of majority governance that most concerned the Framers. This, too, is an essential tenet of principled constitutionalism.
Invoking this understanding of judicial responsibility, the Supreme Court has issued a series of landmark decisions that faithfully interpret and apply the Framers’ Constitution. These decisions ended de jure racial segregation, recognized the principle of “one person, one vote,” forbade government suppression of political dissenters, established an effective right to counsel for persons accused of crime, struck down government discrimination against women, limited the authority of government to interfere with women’s reproductive choices, and upheld the right of “enemy combatants” to due process of law, to cite just a few examples. These decisions animate the most fundamental aspirations of our Constitution in circumstances in which judicial intervention is both necessary and proper.
For the past half-century, however, conservatives have argued that the Supreme Court has gone too far in its efforts to preserve the vitality of self-governance and protect the rights of those most in need of judicial attention. In the 1960s, they condemned what they derided as “judicial activism” and demanded the appointment of judges committed to a more capacious form of judicial restraint. But although judicial restraint in appropriate circumstances is essential to principled constitutionalism, its sweeping, reflexive invocation by conservatives would abdicate a fundamental responsibility that the Framers entrusted to the judiciary and would therefore undermine a critical element of the American constitutional system. It is no more appropriate for judges to refuse to enforce the Constitution against intolerant or overreaching majorities than it is for the president to refuse to defend the nation against enemy invasion.
Perhaps recognizing that a theory of unbounded judicial restraint is constitutionally irresponsible, political conservatives next came up with the theory of “originalism.” First popularized by Robert Bork, Edwin Meese, and Antonin Scalia in the 1980s, originalism presumes that courts should exercise judicial restraint unless the “original meaning” of the text clearly mandates a more activist approach. Under this theory, for example, it is appropriate for courts to invoke the Equal Protection Clause to invalidate laws that deny African Americans the right to serve on juries, but not to invalidate laws that deny women that same right, because that was not the “original meaning” of the clause.
Originalism, however, is fundamentally flawed. First, because those who enacted the broad foundational provisions of our Constitution often did not have any precise and agreed-upon understanding of the specific meaning of “freedom of speech” or “due process of law” or “regulate Commerce…among the several States” or “privileges or immunities” or “equal protection of the laws,” it is exceedingly difficult to know with any certainty what they did or did not think about concrete constitutional issues. As a consequence, judges purporting to engage in originalist analysis often project onto the Framers their own personal and political preferences. The result is an unprincipled and often patently disingenuous jurisprudence. There is no evidence for the claims advanced by originalists, for example, that the original meaning of the Equal Protection Clause prohibited affirmative action or that the original meaning of the First Amendment included the notion that corporations (which were both strongly regulated and highly distrusted at the time) had a constitutional right to spend unlimited capital to influence political elections. Both of these claims, however, are central to today’s conservative legal agenda.
The second problem with originalism is even more disqualifying, for it reveals the theory to be internally incoherent. Originalism asserts that those who crafted and ratified our Constitution intended the meaning and effect of their handiwork to be limited to the specific understandings of their time. But this view erroneously attributes to the Framers a narrow-mindedness and shortsightedness that belies their true spirit. As Justice Louis Brandeis observed more than 80 years ago, the Framers believed “courage to be the secret of liberty.” They were not timid men. Moreover, originalism ignores that those who framed our Constitution were steeped in a common-law tradition that presumed that just as reason, observation, and experience permit us to gain greater insight over time into questions of biology, physics, economics, and human nature, so too would they enable us to learn more over time about the content and meaning of the principles they enshrined in our Constitution. Indeed, the notion that any particular moment’s understanding of the Constitution’s provisions should be locked into place and taken as constitutionally definitive would have seemed completely wrong-headed to the Framers, who held a much bolder and more confident conception of their own achievements and aspirations.
For these reasons, the conservative doctrine of “originalism” has been largely discredited as a serious method of constitutional interpretation. This is not to say, however, that the views of the Framers are irrelevant. To the contrary, their values, concerns, and purposes, as reflected in the text of the Constitution, must inform and guide the process of constitutional interpretation, but in a principled and realistic manner. They must be considered as the Framers themselves understood them—as a set of general principles and aspirations, rather than as a collection of specific and shortsighted “rules.” To be true to the Framers’ Constitution, we must strive to implement faithfully the Framers’ often farsighted goals in an ever-changing society. That is central to any theory of principled constitutionalism.
We have now entered a new and even more troubling phase of conservative constitutional jurisprudence. It is best characterized as “conservative activism.” Justices who readily dismiss constitutional claims by women, political dissenters, and racial, ethnic, and religious minorities, but at the same time aggressively strike down affirmative action programs, restrictions on corporate political expenditures, regulations of commercial advertising, federal civil rights laws prohibiting age discrimination and domestic violence, and the laws of the state of Florida in the 2000 presidential election, are unmistakably using the power of judicial review in a highly selective and politicized manner that cannot credibly be justified by any principled theory of constitutional interpretation. Despite all of the conservative rhetoric about originalism, “strict construction,” “judicial restraint,” “applying rather than making the law,” and “calling balls and strikes,” this pattern of decisions raises grave questions about the considerations that actually drive the jurisprudence of our conservative justices.
Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage. Above all, it requires recognition of the judiciary’s unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation’s most fundamental constitutional aspirations and how we hope to achieve them.
It is time for a new era of principled constitutionalism. It is time to return to the Framers’ Constitution.
The Constitution of the United States is the central instrument of American government and the supreme law of the land. For 200 years it has guided the evolution of governmental institutions and has provided the basis for political stability, individual freedom, economic growth, and social progress.
The American Constitution is the world's oldest written constitution in force, one that has served as the model for a number of other constitutions around the world. The Constitution owes its staying power to its simplicity and flexibility. Originally designed in the late 18th century to provide a framework for governing 4 million people in 13 very different states along America's Atlantic coast, its basic provisions were so soundly conceived that, with only 27 amendments, it now serves the needs of more than 260 million Americans in 50 even more diverse states that stretch from the Atlantic Ocean to the Pacific.
The path to the Constitution was neither straight nor easy. A draft document emerged in 1787, but only after intense debate and six years of experience with an earlier federal union. The 13 British colonies in America declared their independence from their motherland in 1776. A year before, war had broken out between the colonies and Britain, a war for independence that lasted for six bitter years. While still at war, the colonies � now calling themselves the United States of America � drafted a compact that bound them together as a nation. The compact, designated the "Articles of Confederation and Perpetual Union," was adopted by a congress of the states in 1777 and formally signed in July 1778. The Articles became binding when they were ratified by the 13th state, Maryland, in March 1781.
The Articles of Confederation devised a loose association among the states and set up a federal government with very limited powers. In such critical matters as defense, public finance, and trade, the federal government was at the mercy of the state legislatures. It was not an arrangement conducive to stability or strength. Within a short time the weakness of the confederation was apparent to all. Politically and economically, the new nation was close to chaos. In the words of George Washington, who would become the first president of the United States in 1789, the 13 states were united only "by a rope of sand."
It was under these inauspicious circumstances that the Constitution of the United States was drawn up. In February 1787 the Continental Congress, the legislative body of the republic, issued a call for the states to send delegates to Philadelphia, in the state of Pennsylvania, to revise the Articles. The Constitutional Convention convened on May 25, 1787, in Independence Hall, where the Declaration of Independence had been adopted 11 years earlier, on July 4, 1776. Although the delegates had been authorized only to amend the Articles of Confederation, they pushed aside the Articles and proceeded to construct a charter for a wholly new, more centralized form of government. The new document, the Constitution, was completed September 17, 1787, and was officially adopted March 4, 1789.
The 55 delegates who drafted the Constitution included most of the outstanding leaders, or Founding Fathers, of the new nation. They represented a wide range of interests, backgrounds, and stations in life. All agreed, however, on the central objectives expressed in the preamble to the Constitution: "We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
UNITING A DIVERSE PEOPLE
The primary aim of the Constitution was to create a strong elected government, directly responsive to the will of the people. The concept of self-government did not originate with the Americans; indeed, a measure of self-government existed in England at the time. But the degree to which the Constitution committed the United States to rule by the people was unique, even revolutionary, in comparison with other governments around the world. By the time the Constitution was adopted, Americans had considerable expertise in the art of self-government. Long before independence was declared, the colonies were functioning governmental units, controlled by the people. And after the Revolution had begun � between January 1, 1776, and April 20, 1777 � 10 of the 13 states had adopted their own constitutions. Most states had a governor elected by the state legislature. The legislature itself was elected by popular vote.
The Articles of Confederation had tried to unite these self-governing states. The Constitution, by contrast, established a strong central, or federal, government with broad powers to regulate relations between the states and with sole responsibility in such areas as foreign affairs and defense.
Centralization proved difficult for many people to accept. America had been settled in large part by Europeans who had left their homelands to escape religious or political oppression, as well as the rigid economic patterns of the Old World that locked individuals into a particular station in life regardless of their skill or energy. These settlers highly prized personal freedom, and they were wary of any power � especially that of government � that might curtail individual liberties.
The diversity of the new nation was also a formidable obstacle to unity. The people who were empowered by the Constitution in the 18th century to elect and control their central government represented different origins, beliefs, and interests. Most had come from England, but Sweden, Norway, France, Holland, Prussia, Poland, and many other countries also sent immigrants to the New World. Their religious beliefs were varied and, in most cases, strongly held. There were Anglicans, Roman Catholics, Calvinists, Huguenots, Lutherans, Quakers, Jews. Economically and socially, Americans ranged from the landed aristocracy to slaves from Africa and indentured servants working off debts. But the backbone of the country was the middle class � farmers, tradespeople, mechanics, sailors, shipwrights, weavers, carpenters, and a host of others.
Americans then, as now, had widely differing opinions on virtually all issues, including the wisdom of breaking free of the British Crown. During the American Revolution a large number of British loyalists � known as Tories � had fled the country, settling mostly in eastern Canada. Those who stayed behind formed a substantial opposition bloc, although they differed among themselves on the reasons for opposing the Revolution and on what accommodation should be made with the new American republic.
In the past two centuries, the diversity of the American people has increased, and yet the essential unity of the nation has grown stronger. Throughout the 19th century and on into the 20th, an endless stream of immigrants contributed their skills and their cultural heritages to the growing nation. Pioneers crossed the Appalachian Mountains in the east, settled the Mississippi Valley and the Great Plains in the center of the continent, then crossed the Rocky Mountains and reached the shores of the Pacific Ocean � 4,500 kilometers west of the Atlantic coastal areas settled by the first colonists. And as the nation expanded, its vast storehouse of natural resources became apparent to all: great stands of virgin timber; huge deposits of coal, copper, iron, and oil; abundant water power; and fertile soil.
The wealth of the new nation generated its own kind of diversity. Special regional and commercial interest groups sprang up. East Coast shipowners advocated free trade. Midwest manufacturers argued for import duties to protect their positions in the growing U.S. market. Farmers wanted low freight rates and high commodity prices; millers and bakers sought low grain prices; railroad operators wanted the highest freight rates they could get. New York bankers, southern cotton growers, Texas cattle ranchers, and Oregon lumbermen all had different views on the economy and the government's role in regulating it.
It was the continuing job of the Constitution and the government it had created to draw these disparate interests together, to create a common ground and, at the same time, to protect the fundamental rights of all the people.
Compared with the complexities of contemporary government, the problems of governing 4 million people in much less developed economic conditions seem small indeed. But the authors of the Constitution were building for the future as well as the present. They were keenly aware of the need for a structure of government that would work not only in their lifetime but for generations to come. Hence, they included in the Constitution a provision for amending the document when social, economic, or political conditions demanded it. Twenty-seven amendments have been passed since ratification, and the flexibility of the Constitution has proven to be one of its greatest strengths. Without such flexibility, it is inconceivable that a document drafted more than 200 years ago could effectively serve the needs of 260 million people and thousands of governmental units at all levels in the United States today. Nor could it have applied with equal force and precision to the problems of small towns and big cities.
The Constitution and the federal government stand at the peak of a governmental pyramid that includes local and state jurisdictions. In the U.S. system each level of government has a large degree of autonomy with certain powers reserved particularly to itself. Disputes between different jurisdictions are resolved by the courts. However, there are questions involving the national interest that require the cooperation of all levels of government simultaneously, and the Constitution makes provision for this as well. American public schools, for example, are largely administered by local jurisdictions, adhering to statewide standards. But the federal government also aids the schools, since literacy and educational attainment are matters of vital national interest, and it enforces uniform standards designed to further equal educational opportunity. In other areas, such as housing, health, and welfare, there is a similar partnership between the various levels of government.
No product of human society is perfect. Despite its amendments, the Constitution of the United States probably still contains flaws that will become evident in future periods of stress. But two centuries of growth and unrivaled prosperity have proven the foresight of the 55 men who worked through the summer of 1787 to lay the foundation of American government. In the words of Archibald Cox, former solicitor general of the United States, "The original Constitution still serves us well despite the tremendous changes in every aspect of American life because the framers had the genius to say enough but not too much.... As the plan outlined in the Constitutional Convention succeeded, as the country grew and prospered both materially and in the realization of its ideals, the Constitution gained majesty and authority far greater than that of any individual or body of men."
DRAFTING THE CONSTITUTION
The period between the adoption of the Articles of Confederation in 1781 and the drafting of the Constitution in 1787 was one of weakness, dissension, and turmoil. Under the Articles of Confederation, no provisions were made for an executive branch to enforce the laws or for a national court system to interpret them. A legislative congress was the sole organ of the national government, but it had no power to force the states to do anything against their will. It could � theoretically � declare war and raise an army, but it could not force any state to meet its assigned quota for troops or for the arms and equipment needed to support them. It looked to the states for the income needed to finance its activities, but it could not punish a state for not contributing its share of the federal budget. Control of taxation and tariffs was left to the states, and each state could issue its own currency. In disputes between states � and there were many unsettled quarrels over state boundaries � Congress played the role of mediator and judge but could not require states to accept its decisions.
The result was virtual chaos. Without the power to collect taxes, the federal government plunged into debt. Seven of the 13 states printed large quantities of paper money � high in face value but low in real purchasing power � in order to pay Revolutionary War veterans and a variety of creditors and to settle debts between small farmers and large plantation owners.
By contrast, the Massachusetts legislature imposed a tightly limited currency and high taxes, triggering formation of a small army of farmers led by Daniel Shays, a former Revolutionary War army captain. In a bid to take over the Massachusetts statehouse, Shays and others demanded that foreclosures and unfair mortgages be dropped. Troops were called out to suppress the rebellion, but the federal government took notice.
Absence of a uniform, stable currency also disrupted trade among the states and with other countries. Not only did the value of paper currency vary from state to state, but some states (like New York and Virginia) levied duties on products entering their ports from other states, thereby provoking retaliatory actions. The states could say, as had the federal superintendent of finance, that "our public credit is gone." To compound their problems, these newly independent states, having separated violently from England, no longer received favored treatment at British ports. When U.S. Ambassador John Adams tried to negotiate a commercial treaty in 1785, the British refused on the grounds that the individual states would not be bound by it.
A weak central government, without the power to back its policies with military strength, was inevitably handicapped in foreign affairs as well. The British refused to withdraw their troops from the forts and trading posts in the new nation's Northwest Territory, as they had agreed to do in the peace treaty of 1783 that marked the end of the Revolutionary War. To make matters worse, British officers on the northern boundaries and Spanish officers to the south supplied arms to various Indian tribes and encouraged them to attack American settlers. The Spanish, who controlled Florida and Louisiana as well as all territory west of the Mississippi River, also refused to allow western farmers to use the port of New Orleans to ship their produce.
Although there were signs of returning prosperity in some areas of the fledgling nation, domestic and foreign problems continued to grow. It became increasingly clear that the confederation's central government was not strong enough to establish a sound financial system, to regulate trade, to enforce treaties, or to exert military force against foreign antagonists when needed. Internal divisions between farmers and merchants, debtors and creditors, and among the states themselves were growing more severe. With Shays' Rebellion of desperate farmers in 1786 vividly in mind, George Washington warned: "There are combustibles in every state which a spark might set fire to."
This sense of potential disaster and the need for drastic change pervaded the Constitutional Convention that began its deliberations on May 25, 1787. All of the delegates were convinced that an effective central government with a wide range of enforceable powers must replace the impotent congress established by the Articles of Confederation. Early in the proceedings the delegates agreed that the new government would be composed of three separate branches � legislative, judicial, and executive � each with distinct powers to balance those of the other two branches. It was also agreed that the legislative branch � like the British Parliament � should consist of two houses.
Beyond this point, however, there were sharp differences of opinion that threatened at times to disrupt the convention and cut short its proceedings before a constitution was drafted. The larger states argued in favor of proportional representation in the legislature � each state should have voting power according to its population. The smaller states, fearing domination by the larger ones, insisted on equal representation for all states. The issue was settled by the "Great Compromise," a measure giving every state equal representation in one house of Congress and proportional representation in the other. In the Senate, every state would have two seats. In the House of Representatives, the number of seats would depend on population. Because it was considered more responsive to majority sentiment, the House of Representatives was given the power to originate all legislation dealing with the federal budget and revenues.
The Great Compromise ended the rift between the large and small states, but throughout the long summer the delegates worked out numerous other compromises. Some delegates, fearful of giving too much power to the people, argued for indirect election of all federal officials; others wanted as broad an electoral base as possible. Some wanted to exclude the western territories from eventual statehood; others saw the future strength of the nation in the virgin lands beyond the Appalachians. There were sectional interests to be balanced; differing views to be reconciled on the term, powers, and method of selection of the president; and conflicting ideas on the role of the federal judiciary.
The high quality of the delegates to the convention eased the way to compromise. Only a few of the great leaders of the American Revolution were absent: Thomas Jefferson and John Adams � both future presidents � were serving as America's envoys to France and England; John Jay was busy as secretary of foreign affairs of the confederation. A handful of others, including Samuel Adams and Patrick Henry, chose not to participate, believing that the existing governmental structure was sound. Of those in attendance, the best known by far was George Washington, commander of American troops and hero of the Revolution, who presided over the convention. Benjamin Franklin, the wise old scientist, scholar, and diplomat, was also there. So, too, were such outstanding men as James Madison of Virginia, Gouverneur Morris of Pennsylvania, and Alexander Hamilton, the brilliant young lawyer from New York.
Even the youngest delegates, still in their twenties and thirties, had already displayed political and intellectual gifts. As Thomas Jefferson in Paris wrote to John Adams in London, "It really is an assembly of demigods."
Some of the ideas embodied in the Constitution were new, but many were drawn from British governmental tradition and from the practical experience in self-government of the 13 states. The Declaration of Independence was an important guide, keeping the minds of the delegates fixed on the ideas of self-government and preservation of fundamental human rights. The writings of such European political philosophers as Montesquieu and John Locke were also influential.
In late July the convention appointed a committee to draft a document based on the agreements that had been reached. After another month of discussion and refinement, a second committee, headed by Gouverneur Morris, produced the final version, which was submitted for signing on September 17. Not all the delegates were pleased with the results; some left before the ceremony, and three of those remaining refused to sign: Edmund Randolph and George Mason of Virginia, and Elbridge Gerry of Massachusetts. Of the 39 who did sign, probably no one was completely satisfied, and their views were ably summed up by Benjamin Franklin, who said, "There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them." He would accept the Constitution, however, "because I expect no better and because I am not sure that it is not the best."
RATIFICATION: A NEW BEGINNING
The way was now set for the arduous process of ratification, that is, acceptance of the Constitution by at least nine states. Delaware was the first to act, followed swiftly by New Jersey and Georgia. Approval was given by comfortable majorities in Pennsylvania and Connecticut. A bitter debate occurred in Massachusetts. That state finally conditioned its ratification on the addition of 10 amendments guaranteeing certain fundamental rights, including freedom of religion, speech, press, and assembly; the right to trial by jury; and the prohibition of unreasonable searches or arrests. A number of other states added similar provisos, and the 10 amendments � now known as the Bill of Rights � were incorporated into the Constitution in 1791.
By late June 1788, Maryland, South Carolina, and New Hampshire had given their assent, satisfying the requirement for ratification by nine states. Legally, the Constitution was in force. But two powerful and pivotal states � New York and Virginia � remained undecided, as did the two smaller states of North Carolina and Rhode Island. It was clear that without the consent of New York and Virginia, the Constitution would stand on shaky ground.
Virginia was sharply divided, but the influence of George Washington, arguing for ratification, carried the state legislature by a narrow margin on June 26, 1788. In New York, Alexander Hamilton, James Madison, and John Jay combined to produce a remarkable series of written arguments for the Constitution � The Federalist Papers � and won a narrow vote for approval on July 26. In November, North Carolina added its approval. Rhode Island held out until 1790, when its position as a small and weak state hedged in by a large and powerful republic became untenable.
The process of organizing the government began soon after ratification by Virginia and New York. On September 13, 1788, Congress fixed the city of New York as the seat of the new government. (The capital was moved to Philadelphia in 1790 and to Washington, D.C., in 1800.) It set the first Wednesday in January 1789 as the day for choosing presidential electors, the first Wednesday of February for the meeting of the electors to select a president, and the first Wednesday of March for the opening session of the new Congress.
Under the Constitution, each state legislature had the power to decide how presidential electors, as well as representatives and senators, would be chosen. Some states opted for direct elections by the people, others for election by the legislature, and a few for a combination of the two. Rivalries were intense; delays in setting up the first elections under the new Constitution were inevitable. New Jersey, for example, chose direct elections but neglected to set a time for closing the polls, which stayed open for three weeks.
The full and final implementation of the Constitution was set for March 4, 1789. But by that time, only 13 of the 59 representatives and 8 of the 22 senators had arrived in New York City. (Seats allotted to North Carolina and Rhode Island were not filled until those states ratified the Constitution.) A quorum was finally attained in the House on April 1 and in the Senate on April 6. The two houses then met jointly to count the electoral vote.
To no one's surprise, George Washington was unanimously elected the first president, and John Adams of Massachusetts, the vice president. Adams arrived in New York on April 21, and Washington on April 23. They were sworn into office on April 30, 1789. The business of setting up the new government was completed. The job of maintaining the world's first republic had just begun.
THE CONSTITUTION AS SUPREME LAW
The U.S. Constitution calls itself the "supreme law of the land." Courts have interpreted this clause to mean that when state constitutions or laws passed by state legislatures or by the national Congress are found to conflict with the federal Constitution, these laws have no force. Decisions handed down by the Supreme Court over the course of two centuries have confirmed and strengthened this doctrine of constitutional supremacy.
Final authority is vested in the American people, who can change the fundamental law, if they wish, by amending the Constitution or � in theory, at least � drafting a new one. The people do not exercise their authority directly, however. They delegate the day-to-day business of government to public officials, both elected and appointed.
The power of public officials is limited under the Constitution. Their public actions must conform to the Constitution and to the laws made in accordance with the Constitution. Elected officials must stand for re-election at periodic intervals, when their records are subject to intensive public scrutiny. Appointed officials serve at the pleasure of the person or authority who appointed them and may be removed at any time. The exception to this practice is the lifetime appointment by the president of justices of the Supreme Court and other federal judges, so that they may be free of political obligations or influence.
Most commonly, the American people express their will through the ballot box. The Constitution, however, does make provision for the removal of a public official from office, in cases of extreme misconduct or malfeasance, by the process of impeachment. Article II, Section 4 reads: "The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."
Impeachment is a charge of misconduct brought against a government official by a legislative body; it does not, as is commonly thought, refer to conviction on such charges. As set forth in the Constitution, the House of Representatives must bring charges of misconduct by voting a bill of impeachment. The accused official is then tried in the Senate, with the chief justice of the Supreme Court presiding at the trial.
Impeachment is considered a drastic measure, one that has been used on only rare occasions in the United States. Since 1797 the House of Representatives has voted articles of impeachment against 16 federal officials � two presidents, one cabinet member, one senator, one justice of the Supreme Court, and 11 federal judges. Of those impeached, the Senate has convicted seven, all of them judges.
In 1868 President Andrew Johnson was impeached over issues relating to the proper treatment of the defeated Confederate states following the American Civil War. The Senate, however, fell one vote short of the two-thirds majority necessary for conviction, and Johnson completed his full term in office. In 1974, as a result of the Watergate affair, President Richard Nixon resigned from office after the Judiciary Committee of the House recommended impeachment, but before the full House of Representatives could vote on a bill of impeachment.
As recently as 1998, President Bill Clinton was impeached by the House of Representatives on charges of perjury and obstruction of justice. After a trial, the Senate acquitted the president on both charges, voting not guilty on perjury by a margin of 55-45 and dividing evenly at 50-50 on obstruction of justice. To remove the president from office would have required a guilty verdict by a majority of 67 votes on either charge.
The Principles of Government
Although the Constitution has changed in many aspects since it was first adopted, its basic principles remain the same now as in 1789:
� The three main branches of government � executive, legislative, judicial � are separate and distinct from one another. The powers given to each are delicately balanced by the powers of the other two. Each branch serves as a check on potential excesses of the others.
� The Constitution, together with laws passed according to its provisions and treaties entered into by the president and approved by the Senate, stands above all other laws, executive acts, and regulations.
� All persons are equal before the law and are equally entitled to its protection. All states are equal, and none can receive special treatment from the federal government. Within the limits of the Constitution, each state must recognize and respect the laws of the others. State governments, like the federal government, must be democratic in form, with final authority resting with the people.
� The people have the right to change their form of national government by legal means defined in the Constitution itself.
Provisions for Amendment
The authors of the Constitution were keenly aware that changes would be needed from time to time if the Constitution was to endure and keep pace with the growth of the nation. They were also conscious that the process of change should not be facile, permitting ill-conceived and hastily passed amendments. By the same token, they wanted to ensure that a minority could not block action desired by most of the people. Their solution was to devise a dual process by which the Constitution could be revised.
The Congress, by a two-thirds vote in each house, may initiate an amendment. Alternatively, the legislatures of two-thirds of the states may ask Congress to call a national convention to discuss and draft amendments. In either case, amendments must have the approval of three-fourths of the states before they enter into force.
Aside from the direct process of changing the Constitution, the effect of its provisions may be changed by judicial interpretation. Early in the history of the republic, in the 1803 case of Marbury v. Madison, the Supreme Court established the doctrine of judicial review, which is the power of the Court to interpret acts of Congress and decide their constitutionality. The doctrine also embraces the power of the Court to explain the meaning of various sections of the Constitution as they apply to changing legal, political, economic, and social conditions. Over the years, a series of Court decisions, on issues ranging from governmental regulation of radio and television to the rights of the accused in criminal cases, has had the effect of bringing up to date the thrust of constitutional law, with no substantive change in the Constitution itself.
Congressional legislation, passed to implement provisions of the basic law or to adapt it to changing conditions, also broadens and, in subtle ways, changes the meaning of the Constitution. Up to a point, the rules and regulations of the many agencies of the federal government may have a similar effect. The acid test in both cases is whether, in the opinion of the courts, such legislation and rules conform with the intent of the Constitution.
The Bill of Rights
The Constitution has been amended 27 times since 1789, and it is likely to be further revised in the future. The most sweeping changes occurred within two years of its adoption. In that period, the first 10 amendments, known collectively as the Bill of Rights, were added. Congress approved these amendments as a block in September 1789, and 11 states had ratified them by the end of 1791.
Much of the initial resistance to the Constitution came not from those opposed to strengthening the federal union but from statesmen who felt that the rights of individuals must be specifically spelled out. One of these was George Mason, author of the Declaration of Rights of Virginia, which was a forerunner of the Bill of Rights. As a delegate to the Constitutional Convention, Mason refused to sign the document because he felt it did not protect individual rights sufficiently. Indeed, Mason's opposition nearly blocked ratification by Virginia. Because of similar feelings in Massachusetts, that state conditioned its ratification on the addition of specific guarantees of individual rights. By the time the First Congress convened, sentiment for adoption of such amendments was nearly unanimous, and the Congress lost little time in drafting them.
These amendments remain intact today, as they were written two centuries ago. The first guarantees freedom of worship, speech, and press; the right of peaceful assembly; and the right to petition the government to correct wrongs. The second guarantees the right of citizens to bear arms. The third provides that troops may not be quartered in private homes without the owner's consent. The fourth guards against unreasonable searches, arrests, and seizures of property.
The next four amendments deal with the system of justice. The fifth forbids trial for a major crime except after indictment by a grand jury. It prohibits repeated trials for the same offense, forbids punishment without due process of law, and provides that an accused person may not be compelled to testify against himself. The sixth guarantees a speedy public trial for criminal offenses. It requires trial by an unbiased jury, guarantees the right to legal counsel for the accused, and provides that witnesses shall be compelled to attend the trial and testify in the presence of the accused. The seventh assures trial by jury in civil cases involving anything valued at more than 20 U.S. dollars. The eighth forbids excessive bail or fines, and cruel or unusual punishment.
The last two of the 10 amendments contain very broad statements of constitutional authority. The ninth declares that the listing of individual rights is not meant to be comprehensive; that the people have other rights not specifically mentioned in the Constitution. The tenth provides that powers not delegated by the Constitution to the federal government nor prohibited by it to the states are reserved to the states or the people.
Vital Protection for Individual Liberties
The genius of the Constitution in organizing the federal government has given the United States extraordinary stability over the course of two centuries. And the Bill of Rights and subsequent amendments have placed fundamental human rights at the center of the U.S. legal system.
In moments of national crisis, it has been tempting for governments to attempt to suspend these rights in the interest of national security, but in the United States such steps have always been taken reluctantly and under the most scrupulous safeguards. During wartime, for example, military authorities censored mail between the United States and foreign countries, and especially from the battlefronts to families back home. But not even in wartime has the constitutional right to a fair trial been abrogated. Persons accused of crimes � and these include enemy nationals accused of spying, subversion, and other dangerous activities � are given the right to defend themselves and, under the American system, are presumed innocent until proven guilty.
Amendments to the Constitution subsequent to the Bill of Rights cover a wide range of subjects. One of the most far-reaching is the fourteenth, ratified in 1868, which establishes a clear and simple definition of citizenship and guarantees equal treatment under the law. In essence, the Fourteenth Amendment required the states to abide by the protections of the Bill of Rights. Other amendments have limited the judicial power of the national government; changed the method of electing the president; forbidden slavery; protected the right to vote against denial because of race, color, sex, or previous condition of servitude; extended the congressional power to levy taxes to individual incomes; and instituted the election of U.S. senators by popular vote.
The most recent amendments include the twenty-second, limiting the president to two terms in office; the twenty-third, granting citizens of the District of Columbia the right to vote; the twenty-fourth, giving citizens the right to vote regardless of failure to pay a poll tax; the twenty-fifth, providing for filling the office of vice president when it becomes vacant in midterm; the twenty-sixth, lowering the voting age to 18; and the twenty-seventh, concerning the compensation of U.S. senators and representatives.
It is of significance that a majority of the 27 amendments stem from continued efforts to expand individual civil or political liberties, while only a few are concerned with amplifying the basic governmental structure drafted in Philadelphia in 1787.
THE FEDERAL SYSTEM
The framers of the Constitution had several clear-cut objectives in mind. They set these down with remarkable clarity in a 52-word, six-point preamble to the principal document.
The problem of building a "more perfect Union" was the obvious issue facing the 13 states in 1787. It was quite clear that almost any union would be more nearly perfect than that which existed under the Articles of Confederation. But devising another structure to replace it involved critical choices.
"... To Form a More Perfect Union"
All the states were covetous of the sovereign power they had exercised since the break with England 11 years earlier. Balancing states' rights with the needs of a central government was no easy task. The makers of the Constitution accomplished this by letting the states keep all the powers necessary to regulate the daily lives of their citizens, provided that these powers did not conflict with the needs and welfare of the nation as a whole. This division of authority, which is termed federalism, is essentially the same today. The power of each state over local affairs � in matters such as education, public health, business organization, work conditions, marriage and divorce, local taxation, and ordinary police powers � is so fully recognized and accepted that two neighboring states frequently have widely differing laws on the same subject.
Ingenious though the constitutional arrangement was, the controversy over states' rights continued to fester until, three-quarters of a century later, in 1861, a four-year war broke out between the states of the North and those of the South. The war was known as the Civil War, or the War Between the States, and the underlying issue was the right of the federal government to regulate slavery in the newer states of the Union. Northerners insisted that the federal government had such a right, while southerners held that slavery was a matter for each state to decide on its own. When a group of southern states attempted to secede from the Union, war broke out and was fought on the principle of the preservation of the republic. With the defeat of the southern states and their reentry into the Union, federal supremacy was reaffirmed and slavery abolished.
"... To Establish Justice"
The essence of American democracy is contained in the Declaration of Independence, with its ringing phrase, "All men are created equal," and the follow-up statements "that they are endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness."
The Constitution makes no distinction as to the wealth or status of persons; all are equal before the law, and all are equally subject to judgment and punishment when they violate the law. The same holds true for civil disputes involving property, legal agreements, and business arrangements. Open access to the courts is one of the vital guarantees written into the Bill of Rights.
"... To Insure Domestic Tranquility"
The stormy birth of the United States and the unsettled conditions along the American western frontier convinced Americans of the need for internal stability to permit the new nation to grow and prosper. The federal government created by the Constitution had to be strong enough to protect the states against invasion from the outside and from strife and violence at home. No part of the continental United States has been invaded by a foreign nation since 1815. The state governments have generally been strong enough to maintain order within their own borders. But behind them stands the awesome power of the federal government, which is constitutionally empowered to take the necessary steps to preserve the peace.
"... To Provide for the Common Defense"
Even with its independence secured, the new nation faced very real dangers on many sides in the late 18th century. On the western frontier, settlers faced a constant threat from hostile Indian tribes. To the north, the British still owned Canada, whose eastern provinces were jammed with vengeful American Tories, who had remained loyal to the British Crown during the Revolutionary War. The French owned the vast Louisiana Territory in the continental midwest. To the south, the Spanish held Florida, Texas, and Mexico. All three European powers had colonies in the Caribbean Sea, within striking distance of the American coast. Moreover, the nations of Europe were embroiled in a series of wars that spilled over into the New World.
In the early years, the constitutional objective of providing a "common defense" focused on opening up the territory immediately beyond the Appalachian Mountains and negotiating a peace with the Native American tribes who inhabited the area. Within a short time, however, the outbreak of war with England in 1812, skirmishes with the Spanish in Florida, and war with Mexico in 1846 underscored the importance of military strength.
As America's economic and political power increased, its defensive strength grew. The Constitution divides the defense responsibility between the legislative and executive branches: Congress alone has the power to declare war and to appropriate funds for defense, while the president is commander-in-chief of the armed forces and bears primary responsibility for the defense of the country.
"... To Promote the General Welfare"
At the end of the Revolution, the United States was in a difficult economic position. Its resources were drained, its credit shaky, and its paper money was all but worthless. Commerce and industry had come to a virtual halt, and the states and the government of the confederation were deeply in debt. While the people were not in imminent danger of starving, the prospects for economic development were slim indeed.
One of the first tasks the new national government faced was to put the economy on a sound footing. The first article of the Constitution provided that: "The Congress shall have power to lay and collect taxes ... to pay the debts and provide for the ... general welfare of the United States."
The tax power enabled the government to finance its war debts and to put the currency on a firmer basis. A secretary of the treasury was appointed to look after the fiscal affairs of the nation, and a secretary of state to handle relations with other nations. Also appointed were a secretary of war to be responsible for the nation's military security, and an attorney general to act as the chief law officer of the federal government. Later, as the country expanded and the economy became more complex, the well-being of the people necessitated the creation of additional executive departments.
"... To Secure the Blessings of Liberty to Ourselves and Our Posterity"
The emphasis on personal liberty was one of the salient features of the new American republic. Coming, as many of them had, from a background of political or religious suppression, Americans were determined to preserve freedom in the New World. The framers of the Constitution, in giving authority to the federal government, were careful to protect the rights of all persons by limiting the powers of both the national and state governments. As a result, Americans are free to move from place to place; make their own decisions about jobs, religion, and political beliefs; and go to the courts for justice and protection when they feel these rights are being infringed upon.
Source: U.S. Department of State