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Prefacelocked

  • David J. Bodenhamer

The US Constitution is the world’s oldest written constitution, but its impact is as recent as today’s news. Claims and counterclaims about the constitutionality of governmental actions are a habit of American politics. Americans repeatedly invoke the Constitution to promote actions they favor and to block actions they oppose. This practice has long roots. Alexis de Tocqueville famously observed in the 1830s that in the United States virtually all political questions ultimately become legal questions. One reason lies in the Constitution itself. This document, which its framers designed to restrain power, often has made political conflict inevitable. It also has accommodated and legitimized the inevitable political and social changes of a vibrant, powerful democratic nation.

The Constitution is notably short—4,400 words in its original version, briefer than any other written constitution. In only seven articles, it established a framework for a national government. It allocated carefully prescribed powers among its branches and between national and preexisting state governments, foresaw the addition of new states, and identified a process for amending its terms. Drafted when the United States was a third-rate nation of 4 million residents, the Constitution now serves as a hallowed touchstone for the world’s preeminent economic and military power, with a population of 350 million citizens drawn from all corners of the globe.

Veneration of the Constitution began early. Thomas Jefferson, who in 1787 expressed reservations about the document, hailed it two years later as “unquestionably the wisest ever yet presented to men.” Textbooks from the early national period claimed divine inspiration for the framers and praised their work as “sacred.” Not everyone agreed: abolitionist William Lloyd Garrison called the Constitution a pact with the devil because it countenanced slavery. Yet from its adoption most citizens have echoed the triumphant note voiced by President Calvin Coolidge in the 1920s, “To live under the American Constitution is the greatest political privilege ever given to the human race.”

Such praise obscures the profound disagreements we have had about what the Constitution means. It rarely has been out of the teeth of controversy, and disputes about the text surfaced almost immediately. By the early 1790s two leaders of the Revolution, Thomas Jefferson and Alexander Hamilton, both members of President George Washington’s cabinet, were quarreling bitterly about the definition of the necessary and proper clause of Article I that grants Congress incidental authority to carry out its delegated powers. Must its meaning be limited to the plain sense of its terms, as Jefferson insisted, to act as a restraint on power? Or could the clause be read expansively, unless limited elsewhere in the text, to allow the new government to act energetically to protect liberty, as Hamilton desired? Such sharp differences led a tavern keeper to complain in 1798 that the Constitution “is made like a Fiddle, with but few Strings, so that the ruling majority could play any tune upon it as they pleased.”

Which Constitution—and how well do we know it?

We have had numerous versions of the Constitution. The first one emerged in four distinct stages from 1787 to the early 1790s—the document produced in Philadelphia, the Constitution ratified by voters in 1788, the one amended in 1791, and the Constitution-in-practice, as the newly formed national government decided what powers the Constitution allowed it to exercise. The Reconstruction amendments created what scholars have deemed the second American Constitution. In fact, each generation has produced a different Constitution, at least interpretively, as the nation responded to changing circumstances.

Even if we did agree on what the document means or on which Constitution Americans venerate, it should not obscure the many attempts to change it. Since its adoption, there have been more than 10,000 efforts to amend the Constitution, and by 2017, twenty-eight states (out of a required thirty-four) had passed resolutions calling for a new constitutional convention. It appears that Americans do not view the document to be as sacrosanct as their rhetoric about it suggests.

Citizens often do not know what the Constitution says, a problem shared by all texts deemed sacred. Surveys have consistently revealed that Americans lack basic knowledge about the nation’s fundamental law and even disagree with some of its central tenets, especially when these principles are presented separately. A national poll in 2014 reported that 29 percent of respondents could not name any one of the five guarantees of the First Amendment; other recent polls found that 51 percent erroneously believed the Constitution established a Christian nation and that 22 percent believed that freedom of religion should not apply to extremist groups. In brief, Americans revere a document that many have not read and that they may not endorse in its separate provisions.

Conflicting interpretations

How then should we understand the Constitution? The US Supreme Court asserts that we must accept its interpretation. A 1958 Little Rock desegregation case unanimously declared that its decisions were the “supreme law of the land.” Yet this demand at times seems more rhetorical than real. Efforts to blunt or evade civil rights decisions, mostly in southern states, were common in the 1950s and 1960s. Campaigns to repeal or restrict Roe v. Wade (1972), the landmark case that affirmed a woman’s right to abortion, are continuous. More recently, perceived threats to religious liberty have brought similar challenges, with a presidential candidate in 2016 vowing that the Supreme Court “isn’t the Supreme Being.” In response to the Court’s gay marriage decision in 2015, a US senator argued, “There is no obligation on others in government to accept the court as the final arbiter of every constitutional question.”

Accepting the Court as the ultimate arbiter does not resolve the dilemma because sharp divisions exist among the justices themselves about standards of interpretation. In a closely divided Court, a shift by one or two justices often holds the potential for changing what the Constitution requires on any given issue. Today this debate centers on whether ratification fixed the meaning of constitutional text or whether judges can use its principles to fit the document to modern circumstances.

For decades, the terms strict construction or loose construction described the poles of constitutional interpretation. Today we use originalism or the living constitution. Originalism seeks to settle all constitutional questions by reference to the common meaning the text had when ratified. Closely allied to originalism is textualism, initially applied to statutory interpretation, which expects judges to read words in their most ordinary way, without reference to other sources. A popular version of originalism, sometimes called original intent, focuses more on the aims of the framers; the 2010 Pledge to America, a Republican campaign document, promised “to honor the Constitution as constructed by its framers and honor the original intent of those precepts.” These views project the belief that judges must reflect the meaning the document had for those who ratified it; under this standard, ratification is the only legitimate expression of the people’s will, the trump card in any constitutional matter. Most notably associated with Justice Antonin Scalia (served 1986–2016), originalism insists on strict construction to restrain unelected judges from writing their own views into the Constitution.

The “living Constitution” holds that judges are obligated to reach decisions in line with the values and principles embraced by the document. They are not free to substitute their own judgment on matters before them but rather are to weigh carefully what outcome is most consistent with the Constitution. In this sense, the document’s meaning evolves in a manner analogous to the common law—slowly and incrementally, using precedent to guide the application of constitutional values to new situations. Or as Justice William Brennan (served 1956–1990) wrote, “The ultimate question must be: what do the words of the text mean for our time.”

Public opinion on how to interpret the Constitution is evenly divided. A poll in 2014 found that about half of the public (49 percent) believe the Supreme Court should be based on what the Constitution “means in current times,” while roughly as many (46 percent) say decisions should be based on what the Constitution “meant as it was originally written.” In our hyper-partisan age, Republicans and Democrats have sharply different views on this question. Almost 70 percent of Republicans want the justices to hew to the original meaning, while the same percentage of Democrats favor decisions that adapt the Constitution to modern times.

An appeal to the historical record cannot resolve this debate. Evidence from the Constitutional Convention is too limited—and from the ratification debates too contradictory—to provide convincing proof of a given reading. A surer standard is to recognize the problems the framers were trying to solve, as well as the values and ideas that influenced their choices. Here the record is more complete; we have ample evidence of the circumstances that gave rise to the Constitution, which came at a point when revolutionary leaders had become anxious about whether the nation they had created could survive. Understanding the Constitution requires that we understand how and why it was created. Only then will we be able to explore how the founders’ vision has played out across the course of American history.