Thursday, September 13, 2012

Happy Birthday, U.S. Constitution

by Conroy

In just a few days, September 17 to be exact, the U.S. Constitution turns 225-years-old1. It was on that date in 1787 that the Constitutional Convention adopted the document and passed it along to each of the then thirteen states for ratification. Within a year the Constitution became the law of the land. It was, at the time, a remarkable, original product, and it remains, two-and-a-quarter centuries later, one of man’s great documents.

Here’s the famous Preamble, whose language (misspellings and all) embodies what I term the pragmatic idealism of early America:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish the Constitution for the United States of America.” (sic)

That’s it, a brief 52 words, just one sentence, that announces the broad vision of American government.  At the time of its writing, these sentiments were the hopes for a new nation. And in an 18th century world of monarchies, rigid social hierarchies, and limited freedoms, it was revolutionary. Looking back from the present it reads like a promise largely fulfilled. And on this anniversary it’s worth thinking a little more about this cornerstone of American government and society.

A Short History of How the Constitution Came to Be
The Constitution was a desperately needed solution to a growing crisis. After the hard fight for independence was won, the United States was not really a country. Rather, it was a loosely bound confederation of thirteen separate states. The central government, as much as there was one, operated under the weak Articles of Confederation.

A quick refresher. The American colonies fought a long war of independence from Britain starting in 1775. A year later, after the Continental Congress formally declared American independence, the Revolution’s leaders realized that in order to prosecute the war effectively a national government of some sort was needed. The Articles of Confederation became the framework of this government. This initial “constitution” was meant as a wartime measure to bind the thirteen rebelling colonies together and create a government to act as an agent for advocating the American cause and soliciting international support. And considering that the U.S. won the war, and to a large extent that outcome was a result of maintaining an army in the field and recruiting the French (and Spanish) into the war on America’s side, the Articles worked. But it was ad hoc, and once the United States became a nation, utterly inadequate.

The Articles created a Congress, but it had difficulty raising money as it couldn’t tax and relied on financial contributions from each state. It could print money, but that soon became worthless. America was on the verge of defaulting on the huge debts incurred during the war. There was no President or Executive Branch. The government couldn’t exercise a coherent foreign policy, with each state pursuing its own goals vis-à-vis Great Britain and other nations. The country had virtually no military and was unable to protect itself against raiding pirates or even the British soldiers still occupying frontier forts. Shay’s Rebellion in Massachusetts revealed the inherent impotence of American government, national and state alike. Commercial rule and legal rights were haphazard. Just a few years after becoming a nation, the United States was headed toward dissolution.

The nation’s leaders, the famed Founding Fathers, recognized the growing crisis and convened the Constitutional Convention in Philadelphia during the warm summer of 1787. The Convention, one of the most important events in early American history, was led by George Washington2 and included such leading lights as Benjamin Franklin, Alexander Hamilton, and James Madison. In total, 55 men from twelve states3 took the next four months to outline the shape of a new national government.4

Making a Constitution
A depiction of the Constitutional Convention
What the Convention ultimately approved is known to every American schoolchild, an Executive Branch headed by a President with broad powers, a bicameral legislature divided into a House of Representatives (seats based on population) and Senate (two per state), and a separate judiciary and Supreme Court. That’s the basic structure, but what I appreciate most about the Constitution is how it’s written to “secure the Blessings of Liberty to ourselves and our Posterity.”

The men who wrote the Constitution were products of the Age of Reason, but they were also intelligent and savvy, and realistic about the nature of man. They understood that governmental powers, if unchecked, accrete and corrupt. The recent war had been fought against just that (as they believed5). And so the Constitution is based on the ideas of the consent of the governed (representative democracy), divided powers (separate Executive, Legislative, and Judicial branches with checks and balances on the powers of each), and civil liberties (most obviously embodied in the Bill of Rights).

And the Convention recognized the need for amendments, for the Constitution to evolve as events warranted. One of the key agreements that greatly aided ratification was that the ten amendments of the Bill of Rights would be added to the Constitution almost immediately. The Constitution was sent to the states for ratification, two-thirds needed to approve for it to become law (meaning nine states needed to ratify it). Delaware6, Pennsylvania, and New Jersey ratified it by the end of the year. Georgia, Connecticut, Massachusetts, Maryland, and South Carolina followed in the first five months of 1788, and when New Hampshire approved in June the Constitution became official. Virginia and New York approved that summer and stubborn holdouts North Carolina and Rhode Island, recognizing the futility of continued obstruction, followed in 1789 and 1790, respectively.

As defined in the Constitution, a President (Washington) was elected7, an embryonic Executive Branch was formed, a formal Congress took office, and a federal judiciary established. Government hasn’t grown into Hobbes’ Leviathan, but it has flourished since the experimental beginnings (into a needed social bulwark or bloated inefficiency, or something in between, depending on your own particular political views).

The Constitution was amended with the Bill of Rights in 1789, which guaranteed the civil liberties that so many wanted clearly defined. Since then 17 additional amendments (27 total) have been ratified, though the twenty-first amendment repealed the eighteenth (Prohibition). There hasn’t been a new amendment since 1992 (and that one about Congressional salaries seems rather picayune when compared to the Bill of Rights or abolition of slavery). Before that the last amendment was in 1971 (voting age of 18). The total number of amendments isn’t likely to grow anytime soon, there aren’t any floating around that appear to have the broad support needed for ratification.8

A Few Criticisms
The Constitution is a manmade creation, and as such, imperfect9. Criticisms of the Constitution are leveled at some of its concepts and in its vagueness in dealing with how powers are distributed. The former includes the Electoral College used to elect the President and the two-Senators-per-state make-up of the Senate. In both cases, critics argue, the will of the majority can be obstructed.10

It’s also vague on the actual division between federal power and state power. Ostensibly, all powers not explicitly granted to the federal government in the Constitution fall to the states. But in practice, the power of the federal government has grown over time and that of the states declined. This is part of the intellectual backdrop that led to the Civil War and continues in legal thinking (and political contention) over a strict reading of the Constitution (judicial constructionism) and a broader interpretive reading (judicial activism). This is a core aspect underpinning much of the modern political debate. Examples range from fights over Supreme Court Justices to the constitutionality of major legislation (e.g., Obama Care).

And of course the Constitution originally allowed for the continuance of slavery, which was one of those pragmatic realpolitik compromises needed to get the document approved, but was undeniably wrong and led ultimately to the greatest crisis in the nation’s history.

Some Thoughts on The Constitution’s
Adoption of the Constitution seemed to free up the United States to become the well-functioning, prosperous nation the Founders envisioned. By the early nineteenth century, America, on a per capita basis, was likely the richest country in the world; the land that Alexis de Tocqueville praised so lavishly. And portions of the American system, a workable federalism, republican democracy, bicameral legislature, powerful president, to name a few, have been emulated the world over. The U.S. Constitution may not be the exact model followed by many of the national constitutions drafted later, but the American system has had a strong influence on the global proliferation of democracy.

There’s a tendency in America to worship the Constitution (and Declaration of Independence) as a form of almost civil religion. This is true and reverence for the Constitution might get a little inflated at times (witness this post), but no one would deny that America’s stable, peaceful government, respect for the primacy of the law, and belief in justice have their grounding in the Constitution, and that these attitudes have served the nation very well indeed.



1. September 17 is officially observed as Constitution Day in the United States (though to my recollection I can’t remember anyone ever noting this in my day-to-day life or, thinking further back, my teachers telling us during Social Studies).

2. George Washington is rightly known as the “father of his country,” just consider his career: Delegate to the First and Second Continental Congresses, Commander-in-Chief of the Continental Army, President of the Constitutional Convention, and first President of the United States. This might be the most impressive resume of any public figure in history, and certainly of any American. And in each role he succeeded (to say the least). The precedents established during his presidency had a profound influence on the subsequent development of America. Just one example, back in the 18th century republican democracy on the scale established in the U.S. was new and a slide back toward monarchism was seen as a real possibility. With Washington this was never a possibility. As President he acted entirely within the powers granted by the Constitution (even if he interpreted the document more in the favor of his office than some, like Thomas Jefferson, liked) and left office – gave up power – freely (and happily) after two terms.

3. Rhode Island refused to send delegates or participate in any way. Rhode Island also refused to ratify the Constitution until 1790, the last of the original thirteen states to do so (see above).

4. Remarkably fast by modern standards. How long would the process take today? Years probably, and the result would be a document many many times longer than the relatively brief Constitution.

5. In truth, the U.S. was fortunate to be the product of Great Britain, where the ideas of democracy (though not republicanism), the rule of law, and a relatively open and free society were well established. This is one of the major reasons that the U.S. flourished under its new government while Latin America, which successfully rebelled against authoritarian and dogmatic Spain a generation later, stagnated under corrupt governments for generations.

6. “The First State.”

7. Although back then it wasn’t by popular vote, but by Electors from each state (a true Electoral College). This is how George Washington was unanimously elected, twice. A feat, needless to say, that won’t be repeated.

8. Like, say, a ban on burning the American flag or the abandoned Equal Rights Amendment.

9. This is admitted right in the Preamble, “to form a more perfect Union…,” not a perfect union. The Founders knew what everyone should take to heart, that the perfect is the enemy of the good.

10. And indeed, there have been four occasions in U.S. Presidential elections where the man receiving the most votes didn’t receive the most Electoral votes, most recently in 2000 when George Bush defeated Al Gore. (The other four instances date from the nineteenth century.) It also seems unfair that tiny state (by population) like Wyoming or Vermont has the same representation – and therefore the same power – in the Senate as huge states like California and Texas. (Though I will admit a personal bias in favor of these arrangements because it ensures that all states (and people) are considered in the national political discussion. A government ruled by just the popular vote would swing political focus to the largest population centers and biggest states, which, I think, on the whole would be undesirable.)

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