The Constitution is a monument to faith in our country’s potential for greatness – Twin Cities
Editor’s Note: Over the coming Sundays and months to come, Twin Cities law professors from diverse backgrounds and perspectives will write on topical constitutional ideas and issues. Learn more about this series.
In 1787, 55 Founding Fathers gathered in Philadelphia to draft a new charter for an independent nation. They expected other citizens to end up reading what they wrote. James Madison, more important in the drafting process than General George Washington, had read many philosophers, but he still had the good sense to write more clearly than they did. For its proposals to be ratified by nine out of 13 states, the Constitution could not be too long or too technical. If citizens were confused by provisions, they would assume the worst.
Madison knew that if the states did not ratify a new constitution, they would be left with the mess of their Articles of Confederation. These articles had governed since Great Britain’s Declaration of Independence in 1776. A fundamental flaw was that they hardly allowed a central power to resolve disputes between and among states.
Madison succeeded. Our Constitution, with less than 30 amendments, lasted more than two centuries. Modern citizens, however, have lost the urge to read it. Why should it be? My pocket version only covers 35 pages. The Constitution is special to me as the son of two Iranian immigrants who came to the United States in 1962 to pursue their American dreams. For citizens and newcomers alike, the Constitution, like the Statue of Liberty, is a monument to their faith in this country’s potential for greatness.
If you haven’t read it or if you want to revisit what you read years ago, what are the strengths? We might all wonder if the Constitution has lived up to what historian Joseph Ellis describes as a “political and economic success plan for the nation state in the modern world.” Does it have the merit of having transformed a “completely peripheral outpost of Western civilization” into a superpower?
Start with the preamble. He explains that the Constitution was established to form “a more perfect Union”. Note the phrase “We the people”. The states, of course, through their people, transferred the power of the Articles of Confederation. In 1819, the Chief Justice of the Supreme Court, John Marshall, in a famous case involving a national bank, argued that the foundation of constitutional power lay with the people, not the states – one of the many steps towards a increased federal control over our lives. The secondary aims of the Constitution are stated: justice, tranquility, common defense, general welfare and freedom. At the time, citizens expected much less from their government. They saw the government as a threat to their freedom as much as a way to strengthen their freedom. The founders’ Constitution did not promise health care, education, or subsidized meals.
After the preamble, look at the first five articles. They are a glimpse of how our government is supposed to operate. While the Constitution does not answer all questions, it provides a reasonable framework for answering these questions. A fundamental aspect of our “rule of law” is to resolve disputes through dialogue rather than violence.
The first three articles arrange the branches of the federal government in descending order of importance. They are based on the ideas of Montesquieu and Locke on the checks and balances of political power.
First, and most important, is the legislature, Congress. Next comes the executive branch or the presidency. Third, the judiciary or the Supreme Court.
By a grand compromise in Philadelphia, Congress was divided into two parts: the population-based House of Representatives favored the large states; and the Senate, ensuring two senators per state regardless of their population, favors small states. As a result, California today has the largest representation in the House while California and Wyoming still have an equal number of senators. Today, due to the stalemate and dysfunction, Congress has become relatively weaker. Citizens are therefore looking elsewhere for help to solve their problems.
Article two describes the presidency. Given the country’s need for decisive and unified action against various threats – pirates, terrorists or pandemics – presidential power has increased. Critics warn of an “imperial presidency,” a reminder that the founders rebelled against a king. Defenders of a strong presidency respond with the concept of a “unitary executive”. They see a parallel with the overall goal of a more perfect union.
The Supreme Court, covered by section three, has also grown in importance. The founders would be shocked to see how Americans today look to nine unelected judges to decide some of the most important questions of our lives. Fewer moral choices are thus left to state legislatures and ordinary citizens. More choices are presented as “rights” issues. Rights, of course, cannot be voted on and are protected by the courts against the excesses of the majority. Take non-separate education, a right guaranteed in 1954 in Brown v. Board of Education. Or the right to terminate a pregnancy at some point before the birth of a fetus (Roe v. Wade in 1974). Or the right to same-sex marriage (Obergefell v. Hodges in 2015).
Section three does not specify how many judges are to sit on the Supreme Court. It’s in Congress. Although the number of judges can be changed without amendment to the Constitution, there is a long tradition of nine judges; the last time there was a different court number was in the 19th century.
Take a look at section four. It breaks down barriers between states. The “full faith and credit” clause helps explain why a Minnesota driver’s license is accepted when we pass through Wisconsin. Or why a married couple in California doesn’t have to remarry when they move to Minnesota. And the “privileges and immunities” clause helps explain why Wisconsin cannot exclude Minnesota residents from employment in Wisconsin.
Look at article five. This is where we can get out of the Constitution, where we can go back on everything that has been decided. This article deals with the process of amending the Constitution.
By design, it is more difficult to amend the Constitution than it is for Congress to pass a law or statute. Precisely, the laws that come out of Congress are “ordinary” laws. The Constitution, on the other hand, is a superior or more fundamental law. The Supreme Court, through its judicial review, decides whether a contested law or other contested action is constitutional, which was established in the famous case of Marbury v. Madison in 1803.
Now that the Supreme Court has ruled that the Constitution grants a right to same-sex marriage, for example, those who say marriage should only be available to couples of different sexes have limited options for change. They may hope that a new group on the Supreme Court will “discover” or “overrule” this right. Or they can try to change the Constitution regarding marriage. For comparison, imagine how the “right” to drink alcoholic beverages was once banned by one amendment and then renewed by another amendment.
After the articles, hover over the first 10 amendments. These amendments, also known as the Bill of Rights, were necessary to ratify the Constitution. Madison first said that individual rights were already protected by the checks and balances built into the first three articles. He considered a bill of rights superfluous. Still, the always-pragmatic Madison caved in when he saw he didn’t have the votes for a simpler document in state-to-state votes on ratification.
The Ninth Amendment addresses a concern that Madison, in listing some rights, may have overlooked others: “The Constitution’s enumeration of certain rights should not be construed as a denial or denigration of others.” held by the people. The Constitution, in other words, includes these rights but is not limited to them.
The Tenth Amendment is almost as short as the Ninth: “Powers which are not delegated to the United States by the Constitution, nor prohibited by it to states, are reserved for the states, respectively, or the people.” The founders, through their paradoxical innovation of “federalism”, believed that they could offer more freedom to the people by providing two levels of government; state governments would control the federal government at the same time as the federal government controlled the states. In addition, this amendment specifies that the federal government does not have all the powers. There are some things that need to be left to the states. Citizens and politicians, to date, have discussed the appropriate balance between federal and state power. Think about mask mandates during the pandemic. Do we need a national standard? Or was it better to let states serve as “individual laboratories?
Of all the compromises at the foundation, nothing was more important than the dirty slavery deal. Slavery was not mentioned by name in the original constitution. Yet everyone in Philadelphia knew that was the price to pay for slave states to join the Union. The southern states struck a hard bargain. They protected their power through the undemocratic characteristics of the Senate as well as an “electoral college” for the selection of the president. Slaves, treated as property, still counted in the size of a state’s delegation to the House of Representatives. The southern states also made it clear that slavery could not be abolished by law or by amendment until 1808.
Some of the founders thought time was on their side. They hoped that slavery would soon disappear as an economic institution and no longer create disputes between citizens and states. This belief has proven to be incredibly optimistic. It took four years of civil war and 600,000 lives to end slavery in the United States.
The constitutional victory was enshrined in the Thirteenth, Fourteenth and Fifteenth Amendments, the most significant overhaul of the Constitution since its founding. These amendments are so important that someone, like me, who advocates an “originalist” interpretation of the Constitution, should ask why the proper reference is 1787 rather than 1870. Human beings could be abused and tortured as property in the expectation that “we the people” includes everyone, regardless of color or creed.
Afsheen John Radsan is a professor at the Mitchell Hamline School of Law. He is a former federal prosecutor as well as a former deputy general counsel at the Central Intelligence Agency.