from the Introduction In the United States, the Constitution—not the president, nor any elected leader—reigns supreme. Article VI declares succinctly: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof,…shall be the supreme Law of the Land.” Americans for more than two centuries have treated the primacy of the Constitution as gospel, and that is no small part of our endurance as a nation. “Regime change” in the United States proceeds peacefully. One president passes the torch to the next, even if the two belong to opposing political parties. Representatives and senators come and go, but the Constitution provides the framework under which they all must govern.
Yet the passage of time does present interpretive problems. We have agreed to abide by rules developed in a very different age. If we are to understand the historical Constitution and allow it to guide us today, we need to take account of the differences between then and now.
The framers’ concerns were not identical to ours. The Constitution stipulates that Congress has the authority to “grant Letters of Marque and Reprisal” and “punish Piracies and Felonies committed on the high seas,” but we worry more about terrorists on airplanes than pirates on the high seas. How can we balance airport security with privacy concerns? It would be odd to treat the framers as experts in such matters. We might look to basic principles that they espoused, but the devil is in the details and details are markedly absent.
Textual interpretation of the Constitution must account for the evolution of language. Article VI guarantees that the federal government will protect against “domestic Violence.” Today the term refers to spousal abuse, but back then it meant civil unrest. Constitutionese is not our native tongue.
To grasp the context in which our Constitution was drafted, imagine that it is the spring of 1787. Under the Articles of Confederation, Congress depends on the states for funds, but from October 1786 through March 1787, the states have paid a grand total of $663 into the federal treasury. To use a modern idiom, the federal government has shrunk to the size where it can drown in a bathtub. Penniless and powerless, Congress cannot even muster a quorum.
The state of Massachusetts has asked Congress to suppress a rebellion (“domestic Violence”) of indebted farmers who are closing the courts, but there is no federal army to speak of, only a few hundred soldiers stationed in western forts. Debtors are closing courts in South Carolina, Virginia, Maryland, and New Jersey as well. In Pennsylvania, farmers are preventing tax collectors from seizing their cattle. The Rhode Island legislature, under the sway of debtors, has just issued paper money. New York, North Carolina, and Georgia are now debating whether to follow Rhode Island’s lead. All of this is destroying public credit. With the value of money plummeting, neither Congress nor the states can find willing lenders.
What is to be done? Obviously, the Articles of Confederation—the nation’s existing constitution—need to be fixed. Twelve states (but not Rhode Island) send delegates to a convention in Philadelphia “for the sole and express purpose of revising the Articles of Confederation” to “render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” But will “revising” the Articles suffice? That document requires unanimous approval for any amendments, a hurdle that has proved impossible to clear. Two amendments granting Congress the power to lay imposts have already failed.
On the first day of deliberations, Virginia’s Edmund Randolph and Pennsylvania’s Gouverneur Morris move that instead of merely “correcting and enlarging” the Articles of Confederation, “a
national government ought to be established consisting of a
supreme legislative, executive & judiciary.” (James Madison’s meticulous notes on the convention emphasized the words “national” and “supreme.”) Would delegates vote for it despite their instructions only to revise the Articles of Confederation?
They did, and that was a defining moment. The framers wanted to create from scratch an “energetic” government with sufficient “vigor” (among their favorite words) to prevent the United States from collapsing as a nation. A writer in
The Pennsylvania Gazette put it this way: “The Year 1776 is celebrated for a revolution in favor of
Liberty. The year 1787, it is expected, will be celebrated with equal joy, for a revolution in favor of
Government.”
What would that government look like?
The framers wanted it to be robust yet not tyrannical. To balance strength and restraint, they created three distinct branches that could constrain one another. “Separation of powers” and “checks and balances” are often said to limit federal power, but in fact, they serve the opposite purpose. By distributing authority to different components
within the federal government, the framers gave that government
greater powers than it dared grant to a single body. As protections grew, they could add more powers—that was the framers’ basic strategy and crowning achievement.
Copyright © 2017 by Annotated by Ray Raphael. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
