An Introduction to the U.S. Constitution

Lee Epstein & Thomas J. Walker, An Introduction to the U.S. Constitution, in Constitutional Law for a Changing America: Institutional Powers and Constraints (2001), available in CQ Electronic Library, CQ Supreme Court Collection


Document Outline
The Road to the U.S. Constitution
Underlying Principles of the Constitution

According to President Franklin Roosevelt, “Like the Bible, it ought to be read again and again.” [1] Sen. Henry Clay said it “was made not merely for the generation that then existed, but for posterity—unlimited, undefined, endless, perpetual posterity.” [2] Justice Hugo Black carried one with him virtually all the time. The object of all this admiration? The U.S. Constitution. To be sure, the Constitution has its flaws and its share of detractors, but most Americans take great pride in their charter. And why not? It is, after all, the world's oldest written constitution.

In what follows, we provide a brief introduction to the document—in particular, the circumstances under which it was written, the basic principles underlying it, and some controversies surrounding it. This material may not be new to you, but, as the balance of this book is devoted to Supreme Court interpretation of the Constitution, we think it is worth reviewing.

The Road to the U.S. Constitution

While the fledgling United States was fighting for its independence from England, it was being run (and the war conducted) by the Continental Congress. Although this body had no formal authority, it met in session from 1774 through the end of the war in 1781, establishing itself as a “de facto” government. But it may have been something more than that. About a year into the Revolutionary War, Congress took steps toward nationhood. On July 2, 1776, it passed a resolution declaring the “United Colonies free and independent states.” Two days later, on July 4, it formalized this proclamation in the Declaration of Independence, in which the nation's Founders used the term United States of America for the first time. [3] But even before the adoption of the Declaration of Independence, the Continental Congress had selected a group of delegates to make recommendations for the formation of a national government. Composed of representatives of each of the thirteen colonies, this committee labored for several months to produce a proposal for a national charter, the Articles of Confederation. [4] Congress passed the proposal and submitted it to the states for ratification in November 1777. Ratification was achieved in March 1781, when Maryland—a two-year holdout—gave its approval.

Despite being the nation's first written charter, the Articles of Confederation changed the way the government operated very little: the articles merely institutionalized practices that had developed prior to 1774. For example, rather than provide for a compact between the people and the government, the 1781 charter institutionalized “a league of friendship” among the states, one that rested on strong notions of state sovereignty. This is not to suggest that the charter failed to provide for a central government. The articles created a national governing apparatus, however simple and weak. There was a one-house legislature but no formal federal executive or judiciary. And although the legislature had some power, most notably in the area of foreign affairs, it derived its authority from the states that had created it, not the people.

The condition of the United States under the Articles of Confederation was not entirely satisfactory. Analysts have pointed out weaknesses of the Articles of Confederation, including the following:

Because it allowed Congress only to requisition funds and not to tax, the federal government was virtually broke. Between 1781 and 1783 the national legislature requested $10 million from the states and received only $1.5 million. Given the foreign debts the United States had accumulated during the war, this problem was particularly troublesome.

Because Congress lacked any concrete way to regulate foreign commerce, treaties between the United States and other countries were of limited value. Some European nations (for example, England and Spain) took advantage by imposing restrictions on trade that made it difficult for America to export goods.

Because the government lacked coercive power over the states, mutual cooperation among them quickly dissipated. They engaged in trading practices that hurt one another economically. In short, the states acted more like thirteen separate countries than a union or even a confederation.

Because the exercise of most national authority required the approval of nine states and the passage of amendments required unanimity, the articles stymied Congress. Indeed, given the divisions among the states at the time, the approval of nine states for any action of substance was rare, and the required unanimity for amendment was never obtained.

Nevertheless, the government accomplished many notable objectives during the years the Articles of Confederation were in effect: it brought the Revolutionary War to a successful end and paved the way for the 1783 Treaty of Paris, which helped make the United States a presence on the international scene. Moreover, the charter served an important purpose. It prevented the states from going their separate ways until a better system could be put into place.

Still, the articles' shortcomings were becoming more and more apparent. By the mid-1780s, several dissidents, including James Madison of Virginia and Alexander Hamilton of New York, had held a series of meetings to arouse interest in revising the system of government. At one, held in Annapolis in September 1786, they urged the states to send delegations to another meeting scheduled for the following May in Philadelphia. Their plea could not have come at a more opportune time. Just the month before, in August 1786, a former Revolutionary War captain, Daniel Shays, had led disgruntled farmers in an armed rebellion in Massachusetts. They were protesting the poor state of the economy, particularly as it affected farmers.

Shays's Rebellion was suppressed by state forces, but it was seen as yet another sign that the Articles of Confederation needed amending. In February 1787 Congress issued a call for a convention to reevaluate the current national system. It was clear, however, that Congress did not want a new charter; in fact, it stated that the delegates were to meet “for the sole and express purpose of revising the Articles of Confederation.”

Despite these words, the fifty-five delegates who gathered in Philadelphia quickly realized that they would be doing more than “revising” the articles: they would be framing a new charter. We can attribute this change in purpose, at least in part, to the Virginia delegation. When the Virginians arrived in Philadelphia on May 14, the day the convention was supposed to start, only they and the Pennsylvania delegation were there. Although lacking a quorum, the Virginia contingent used the eleven-day delay to its advantage, crafting a series of proposals. The Virginians called for a wholly new government structure, composed of a strong three-branch national government empowered to lead the nation.

Known as the Virginia Plan, these proposals were formally introduced to the delegates May 29, just four days after the convention began. And, although it was the target of a counterproposal submitted by the New Jersey delegation, the Virginia Plan set the tone for the convention. It served as the basis for many of the ensuing debates and, as we shall see, for the Constitution itself.

The delegates had much to accomplish during the convention period. Arguments between large states and small states over the structure of the new government and its relationship to the states threatened to deadlock the meeting. Indeed, it is almost a miracle that the delegates were able to frame a new constitution, which they did in just four months. One can speculate that the Founders succeeded in part because they were able to close their meetings to the public, a feat almost inconceivable today. A contemporary convention of the states would be a media circus. Moreover, it is hard to imagine that delegates from fifty states could agree even to frame a new charter, much less do it in four months.

The difficulties facing such an enterprise bring up an important issue. A modern constitutional convention would be hard pressed to reach consensus because the delegates would bring with them diverse interests and aims. What about back in 1787? Who were the Framers and what were their motives? If, as had been recorded, they were such a fractious bunch, how could they have reached accord so rapidly?

These questions have been the subject of lively debates among scholars. Many agree with historian Melvin I. Urofsky, who wrote of the Constitutional Convention, “Few gatherings in the history of this or any other country could boast such a concentration of talent.” And, “despite [the Framers'] average age of forty-two [they] had extensive experience in government and were fully conversant with political theories of the Enlightenment.” [5]

The Framers were, to be sure, an impressive group. Thirty-three had served in the Revolutionary War, forty-two had attended the Continental Congress, and two had signed the Declaration of Independence; two would go on to serve as U.S. presidents, sixteen as governors, and two as chief justices of the United States.

Still, there are those who would take issue with Urofsky's statement. Because the Framers were a relatively homogeneous lot—all white men, many of whom had been educated at the country's best schools—some suggest that the document they produced was biased in various ways. For example, in 1987 Justice Thurgood Marshall said that the Constitution was “defective from the start,” that its first words—“We the People”—excluded “the majority of American citizens,” because it left out blacks and women. He further alleged that the Framers “could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave.” [6] Along the same lines is the point of view expressed by historian Charles Beard in his controversial work, An Economic Interpretation of the Constitution of the United States, which depicts the Framers as self-serving. Beard says the Constitution was an “economic document” devised to protect the “property interests” of those who wrote it.

Various scholars have refuted these allegations; Beard's work, in particular, has been largely negated by other studies. [7] Still, by today's standards it is impossible to deny that the original Constitution was a racist and sexist document or that the Framers wrote it in a way that benefited their class.

Given these charges, how has the Constitution survived for so long, particularly as the U.S. population has become increasingly heterogeneous? The answer lies in part with the Supreme Court, which generally has analyzed the document in light of its contemporary context. That is, some justices have viewed the Constitution as a living document and have sought to adapt it to the times. In addition, the Founders provided for an amending process to keep the document alive. That we can alter the Constitution to fit changing needs and expectations is obviously important. For example, the original document held a slave to be three-fifths of a person for the purposes of representation, and a slave had no rights of citizenship at all. In the aftermath of the Civil War, the country recognized the outrageousness of such a provision and added three amendments to alter the status of blacks and provide full equality under law.

This is not to suggest that controversies surrounding the Constitution no longer exist. To the contrary, charges abound that the document has retained an elitist or otherwise biased flavor. Some argue that the amending process is too cumbersome, that it is too slanted toward the will of the majority. Others point to the Supreme Court as the culprit, asserting that its interpretation of the document—particularly at certain points in history—has reinforced the biases of the Framers.

Underlying Principles of the Constitution

Separation of Powers/Checks and Balances

One of the fundamental weaknesses of the Articles of Confederation was its failure to establish a strong and authoritative federal government. It created a national legislature, but that body had few powers, and those it did have were kept in check by the states. The new Constitution overcame this deficiency by creating a national government with three branches—the legislature, the executive, and the judiciary—and by providing each with significant power and authority within its sphere. Moreover, the three newly devised institutions were constitutionally and politically independent from one another.

The specific powers that each branch was given are spelled out in Articles I, II, and III of the Constitution. Section 8 of Article I is especially explicit, empowering Congress to lay and collect taxes, to regulate commerce, and so forth. Nonetheless, many questions have arisen over the scope of these powers as they are wielded by all three institutions. Consider a few examples:

Article I provides Congress with various authority over the U.S. military, for example, to provide and maintain a navy, to raise and support armies. But it does not specifically empower Congress to initiate and operate a draft. Does that omission mean that Congress may not do so?

Article II provides the president with the power to “nominate, and by and with the Advice and Consent of the Senate, [to] appoint Officers of the United States,” but it does not specifically empower the president to fire such officers. May the president independently dismiss appointees, or is the “advice and consent” of the Senate also necessary?

Article III provides the federal courts with the authority to hear cases involving federal laws. But it does not specifically empower these courts to strike down such laws if they are incompatible with the Constitution. Does that mean federal courts lack the power of judicial review?

These examples illustrate just a handful of the questions involving institutional powers the U.S. Supreme Court has addressed.

But institutional powers are only one side of the coin. The other side—constraints on those powers—is also worthy of consideration. The Framers not only endowed each branch with distinct power and authority over its own sphere, but also provided explicit checks on the exercise of those powers such that each branch can impose limits on the primary functions of the others. The Framers also made the institutions responsible to different sets of constituencies. They took these steps—creating an intricate system of checks and balances—because they feared the concentration of powers in a single branch.

Although this system has worked successfully, it too has produced numerous constitutional questions, many of which become apparent when we have a politically divided government, such as a Democratic president and a Republican Congress, and one or the other is seeking to assert its authority. What is truly interesting about such cases is that they continue to appear at the Court's doorstep; despite the passage of more than two hundred years, the justices have yet to resolve all the “big” constitutional questions. During the past few decades the Court addressed many, including:

May Congress call for the creation of a commission, with members, including judges, to be appointed by the president, that would create mandatory sentencing guidelines for federal judges and that would be located within the judicial branch?

May Congress write into laws legislative veto provisions by which to nullify actions of the executive branch?

May Congress pass legislation requiring the attorney general to appoint an independent counsel to investigate allegations of wrongdoing within the executive branch?

Federalism

Another flaw in the Articles of Confederation was the way it envisioned the relationship between the federal government and the states. As already noted, the national legislature was not only weak, it was more or less an apparatus controlled by the states. They had set up the Articles of Confederation and, therefore, they empowered Congress.

The U.S. Constitution overcame this liability in two ways. First, it created three branches of government, all with significant authority. Second, it set out a plan of operation for the exercise of state and federal power. Called federalism, it works today under the following constitutional guidelines:

The Constitution grants certain legislative, executive, and judicial powers to the national government. Those not granted to the national government are reserved to the states.

The Constitution makes the national government supreme. The Constitution, all laws passed in pursuant to it, and treaties are the supreme law of the land. American citizens, most of whom are also state citizens, and state officials owe their primary allegiance to the national government.

The Constitution denies some powers to both national and state governments, some only to the national government, and still others only to the state governments.

By making the national government supreme in its spheres of authority, the Constitution corrected a defect in the Articles of Confederation. Nevertheless, and in spite of the best efforts of the Framers to spell out the nature of federal-state relations, the Constitution left open many questions. For example, the Constitution authorizes Congress to lay and collect taxes, but is unclear as to whether the states also may exercise powers that are reserved to the federal government. States are not expressly prohibited from collecting taxes. Therefore, may Congress and the states both operate taxing systems?

As you know, the answer to this question is yes. However, why that is the case is not explicitly answered by the Constitution. As a result, elected government bodies through legislation and courts through interpretation have defined the specifics of state-federal relations. The Supreme Court, in particular, by defining the boundaries of federal and state power, has helped shape the contours of American federalism.

Individual Rights and Liberties

For many of the Framers, the most important purpose of the new Constitution was to safeguard individual rights and liberties. They created a limited government that would wield only those powers delegated to it and that could be checked by its own component parts—the states and the people. The majority of the Founders felt it unnecessary to load the Constitution with specific individual rights, such as those later spelled out in the Bill of Rights. As Alexander Hamilton put it, “The Constitution is itself a Bill of Rights.” Under it, the government could exercise only those functions specifically bestowed upon it; all other rights remained with the people. He and others felt that a list of rights might even be dangerous because it would inevitably leave some out.

For this reason and possibly others—for example, some argue that the Framers were too exhausted to continue—the the Constitution was sent to the states without a bill of rights. That omission became the source of major controversy and served as the vehicle by which states exacted a compromise over the Constitution's ratification.

By January 1788, four states had ratified the Constitution, but then the pace began to slow. A movement opposed to ratification was growing in size and marshaling arguments to deter state convention delegates. What these opponents, the so-called Anti-Federalists, most feared was the Constitution's new balance of powers. They believed that strong state governments provided the best defense against the accumulation of too much power by the national government but that the Constitution tipped the scales the other way. These fears were countered by the self-labeled Federalists, who favored ratification of the Constitution.

Although the Federalists' arguments and writings took many forms, among the most important was a series of eighty-five articles published in New York newspapers under the pen name Publius. Written by John Jay, James Madison, and Alexander Hamilton, The Federalist Papers—as we shall see throughout this book—continue to provide great insight into the objectives and intent of the nation's Founders. [8]

Debates between the Federalists and their opponents were often highly philosophical, with emphasis on the appropriate roles and powers of national institutions. Yet, within the states, ratification drives were full of the stuff of ordinary politics—making deals. The Massachusetts ratifying convention provides a case in point. After three weeks of debate among delegates, Federalist leaders realized that they would achieve victory only if they could attain Gov. John Hancock's support. They called on Hancock at home and proposed that he endorse ratification on condition that a series of amendments be tacked on for consideration by Congress. The governor agreed so long as he would become president of the United States if Virginia failed to ratify or George Washington refused to serve. Or he would accept the vice presidency. With the deal cut, Hancock went to the convention to propose a compromise—the ratification of theConstitution with amendments. The delegates went along with the plan, making Massachusetts the sixth state to ratify. [9]

This compromise—the call for a bill of rights—caught on, and Madison began to advocate it whenever close votes were likely. As it turned out, he and other Federalists needed to mention the point quite often: of the nine states ratifying after January 1788, seven recommended that the new Congress consider amendments. New York and Virginia probably would not have agreed to the Constitution without such an addition, and Virginia called for a second constitutional convention for this purpose. Other states began revising their own wish lists of specific rights they wanted put into the document. [10]

The Federalists realized that if they did not accede to state demands, either the Constitution would not be ratified or a new constitutional convention would be necessary. Since neither alternative was particularly attractive, it was agreed to amend the document as soon as the new government came into power. And with that promise came the ratification of the Constitution by the requisite number of states just a year after it had been drafted.

The eventual ratification of the Bill of Rights, on December 15, 1791, quieted those who had voiced objections. But the guarantees it contained continue to serve as fodder for debate and, most relevant here, for Supreme Court litigation. Many of these debates involve the construction of specific guarantees, such as free speech and free exercise of religion, under which individuals seek relief when governments allegedly infringe upon their rights. They also involve clashes between the authority of the government to protect the safety, health, morals, and general welfare of citizens and the right of individuals not to be deprived of their liberty without due process of law. For example, may government force employers to pay their employees a certain wage, or does that requirement infringe on the employer's liberty? May government force homeowners to vacate their house if it needs the property to construct a road and is willing to pay the “fair market value” or does that interfere with a right contained in the Fifth Amendment? The answers to this question and others like it reveal the contours of government power in relation to individual rights.

[1.] Quoted in Michael Kammen, ed., The Origins of the American Constitution (New York: Penguin Books, 1986), vii.

[2.] Speech to the Senate, January 29, 1850.

[3.] The text of the Declaration of Independence is available at: www.constitution.org/usdeclar.htm.

[4.] For a full text of the Articles of Confederation, navigate to: www.yale.edu/lawweb/avalon/artconf.htm.

[5.] Melvin I. Urofsky, A March of Liberty (New York: Knopf, 1988), 89.

[6.] Quoted in the Washington Post, May 7, 1987.

[7.] See, for example, Robert E. Brown's Charles Beard and the Constitution (Princeton, N.J.: Princeton University Press, 1956). Brown concludes that “we would be doing a grave injustice to the political sagacity of the Founding Fathers if we assumed that property or personal gain was their only motive” (p. 198).

[8.] The Federalist Papers are now available on the World Wide Web at: www.iahushua.com/hist/federalist.html.

[9.] Joseph T. Keenan, The Constitution of the United States (Chicago: Dorsey Press, 1988), 32—33.

[10.] Alpheus T. Mason, The States Rights Debate, 2d ed. (New York: Oxford University Press, 1972), 92—93

 

CQ Press