Worth Reading

The date we recognize the passage of the U.S. Constitution, Constitution Day, September 17, is very much the kid sibling to Independence Day. Unlike the Fourth of July, with its gigantic spectacle of fireworks and parades to celebrate that fateful day in the hot summer of 1776, Constitution Day (until 2005 known as Citizenship Day) is a time to learn about how the Founding Fathers drafted the Constitution, the challenges they faced and the solutions they came up with, as well as constitutional controversies that rage to this very day.

Historical Background

Though the thirteen colonies declared independence from Great Britain in 1776 and the Revolutionary War ended in American victory in 1783, the Constitution was not drafted until 1787, ratified until 1788, and George Washington did not become the first president of the United States until 1789. So how was the U.S. Governed between 1776 and 1787?

The answer is through the Continental Congress under the Articles of Confederation (which wasn't actually ratified until 1781, but was the governing principle under which the Continental Congress operated throughout its existence.) The Articles of Confederation provided a very loose form of national government -- which made sense. Both before and after the Declaration of Independence in 1776, most Americans didn't even think of themselves as Americans -- you first and foremost a Virginian or a Massachusettsian or a New Yorker or a Georgian, then you were a British subject, then you were an American, but only in the sense that you lived in British North America. Each state was effectively independent, but in association with each other. Under the Articles, there was no president, no Senate, nor was there even a firm assertion that the United States as such was a sovereign entity, instead describing a “firm league of friendship” between the states. The Articles were successful in the sense that they kept the colonies together until the war with Britain could be successfully finished, but they were unable to effectively govern the colonies in the peace that followed. For example, the Continental Congress had promised army veterans generous benefits after the war, benefits that they were unable to pay because Congress had no effective power to either levy taxes or regulate interstate trade. By 1787 an increasingly unstable economic and political situation demanded a fundamental revision of American government.

Throughout the spring and summer of 1787, delegates from the thirteen states debated in Philadelphia over the shape of the new government. The person most directly responsible for the actual writing of the Constitution was James Madison (later the fourth president), who largely wrote the first draft of the document under his Virginia Plan (named so because Madison was a member of Virginia's delegation). Drawing from influences such as Enlightenment thinkers like John Locke and Montesiqeu as well as from classical Greece and Rome, Madison's plan established most of the Constitution's basic principles: separation of powers between the executive, legislative, and judicial branches, as well as a system of checks and balances to prevent one branch from gaining too much power and governing tyrannically, as had been the case under British rule. For example, under the final draft Constitution, Congress has the power to declare war, but the president is the commander-in-chief of the military. The president nominates judges, but his/her appointees require Congressional approval. The Supreme Court can determine the constitutionality of a law (which is not actually a provision of the Constitution, but a power the Supreme Court gained as a result of the Marbury v. Madison decision in 1803), but justices are appointed by the president and confirmed by the Senate.

But we're getting a bit ahead of ourselves -- back to Madison in 1787! The biggest problem with Madison's plan was how it apportioned representatives to the Congress -- Madison envisioned two legislative bodies, one upper (the Senate), one lower (the House of Representatives). The Senate would be elected by the members of the House (who would be popularly elected by the voters of their respective states) and in both the Senate and House representation would be allocated proportionally, meaning that more populous states would received more representatives (Virginia was the largest state at this time). Representatives from smaller states naturally feared their states would lose political power in under this plan, and in what became known as the New Jersey Plan proposed a unicameral legislature, meaning a single house, that would have had each state receive one representative.

The states were deadlocked until the delegation from Connecticut proposed what became known as the Great Compromise, under which a bicameral legislature (two different houses, one upper, one lower, in Congress) was established. The lower House would consist of popularly-elected representatives allocated by population, while the upper Senate would consist of two senators per state selected by state legislatures. (After the passage of the Seventeenth Amendment in 1913, senators became directly elected by state populations -- one of the reasons for passage was that a Montana businessman literally bought a Senate seat from his state legislature in 1900.) Part of the Great Compromise was the so-called Three-Fifths Compromise -- Southern states wanted their slave populations counted when it came to allocating representation. A compromise was reached where a slave counted as three-fifths of a person for representation, but also for taxes. This was and remains one of the most infamous provisions of the Constitution, as it officially sanctioned slavery. Indeed, the seeds of the Civil War sixty-four years later were being sown at the Constitutional Convention.

The Convention also had to establish how to elect the president, eventually deciding to create an Electoral College in which each state would receive a certain number of electoral votes, the equivalent of their total House delegations plus their two senators (for example, today California has 55 electoral votes -- 53 electors for the state's House delegation, 2 electors for the Senators). It was up to the states how to select their electors, but today electors almost always vote for the presidential candidate who received the most votes in their states.

Another important part of the original draft of the Constitution were the various small clauses, or ideas, found deep within the text. Two of the most important are the commerce clause, which empowers Congress to regulate trade and business between states -- a clause which provides the legal foundation for laws as different as the New Deal in the 1930s to desegregated businesses in the 1960s to the health care law in the 2010s -- and the elastic clause, which empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States.” The elastic clause has been one of the most controversial, as different ideas about what the proper scope of the federal government have been debated throughout the years.

After the Constitution was publicly released on September 17, 1787, two camps quickly emerged. Federalists supported the proposed Constitution, while Anti-Federalists opposed it, fearing that it took too much power from the states and would create a tyrannical federal government. When the First Congress convened in 1789, one of the first orders of business was to pass ten amendments to the Constitution. These first ten amendments became known collectively as the Bill of Rights. They guarantee that Congress shall pass no law prohibiting the freedom of speech, freedom of the press, freedom of religion, freedom of public assembly, and freedom to petition Congress (First Amendment), the right to bear arms (Second Amendment), prohibiting the forcible quartering of soldiers during peacetime (Third Amendment), restrictions against unreasonable searches and seizures of property (Fourth Amendment), guarantees of due process under law (Fifth Amendment), guarantees of a “speedy and public trial” (Sixth Amendment) judged by a jury of one's peers (Seventh Amendment), prohibition of “cruel and unusual punishments” (Eighth Amendment), and delegates powers not otherwise specified to the people and the states (Ninth and Tenth Amendments). The Bill of Rights was ratified on December 15, 1791.

The Current Debate: What Conservatives Say

Modern conservatives tend to take a literal and restrictive view of the Constitution, arguing that the document was drafted primarily in order to limit the power of the federal government in order to protect the liberty of the states and the people. Strict constructionist readings of the Constitution emphasize that the Constitution means literally what it says -- you cannot and should not read beyond it. Originalists go even further -- original intentionalists argue that the Constitution needs to be interpreted with a spirit consistent with the intentions of the Founding Fathers; original meaning proponents go even further -- the interpretation of the Constitution should only be determined by what “reasonable people” at the time of its drafting thought it meant.

The Current Debate: What Liberals Say

Liberals generally interpret the Constitution much more broadly -- the Living Constitution doctrine, a favorite of liberals and progressives, argues that the Constitution was drafted not as the final word, but as an adaptable framework. The writers of the Constitution, proponents argue, could not foresee all of the changes in the world throughout the subsequent two hundred years and never intended solutions for the eighteenth century to be used uncritically in the twenty-first. Thus, by including things like the elastic clause, they gave the Constitution enough flexibility to be able to address, for example, the immense social and political changes of the Information Age.

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