Understanding the History, Context & Interpretation of America's Constitution

Americans love to argue about the Constitution, especially about how it should be interpreted, but few citizens really know all that much about the document. For instance, in a national survey conducted in 2017 by Annenberg Public Policy Center only a quarter of Americans (26%) could name our three branches of government, legislative, executive and judicial. Fewer can explain more complex questions such as why we have an Electoral College, or the meaning of the Ninth Amendment or the significance of the 14th Amendment's Due Process Clause.

However, Americans revere their Constitution, as they should. It's a work of genius, although not for the reasons many believe. In it, the framers were able to correct the weaknesses of the Articles of Confederation, create the framework for a workable republic, maintain state sovereignty while empowering an effective national government, and protect against a tyrannical executive. What they couldn't tell us is how the document should be interpreted going forward, especially as technology, culture and science changed the world we live in. We still struggle with that at times, but generally the Supreme Court has done an exemplary job in keeping the document fresh and relevant to the challenges of the 21st century.

I've taught Constitutional Law for more than 30 years and it's always been a joy to help students understand the fascinating nuances of the document. Much of what they have heard about the Constitution is superficial, often political, and without much historical context. Below, I've tried to address that by providing a bit of the historical backdrop, some of the factors and conditions surrounding the creation of the document and its interpretation over the years.

1. The Constitution of 1787 was created to address the many inadequacies of our first constitution known as the Articles of Confederation. Because of widespread fear of a strong central government and the intense loyalty of citizens to their states, the Articles were written to create a weak federal government with strong, independent states. It certainly accomplished that but it was a rather spectacular failure for the nation.

Among its myriad weaknesses, the Articles didn't establish a judicial or executive branch, didn't permit federal taxation, had no way to enforce legislative enactments, required unanimity for changes, gave each state only one vote, and didn't allow the national government to regulate trade.

As a result, many states wouldn't financially support the new federal government, the states taxed each other's imports, we couldn't afford a federal army to fend off British or Spanish incursions into our territory, amendments were blocked by a single state, there was no one to execute the laws passed by the legislature, and there wasn't a court to settle disputes. Within a few years, nearly everyone understood that things needed to change, but there was still the nagging fear that a powerful tyrant would raise a national army to subjugate the states.

2. The delegates sent to the convention in Philadelphia in 1787 to represent the states were tasked with amending the Articles of Confederation, not to create an entirely new founding document. Most everyone understood the flaws in the Articles, but few state legislatures would have approved of completely rewriting our Constitution to empower a strong national government. So, the delegates were bound to secrecy as their deliberations progressed during the Summer of 1787.

3. The "framers," as we call the individuals who drafted the Constitution, created the framework for a workable republic that would pass muster with an apprehensive public. It is quite specific in places, but generally they heeded Alexander Hamilton's approach to drafting constitutions.

“Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things” ―Alexander Hamilton, speech to the New York ratification convention in June 1788

In other words, they created a document that was broad and flexible enough to change with the times and the needs of the nation, adapt with a changing culture, evolve along with science and technology.

4. Much of the Constitution directly addresses [fixes] the weaknesses of the Articles of Confederation. Congress was given the power to tax and raise an army, executive and judicial branches were added, amendments could be made by a two-thirds majority, and the Commerce Clause was approved to give the federal government the sole right to regulate interstate and international commerce.

5. The text of the Constitution represents the compromises the framers had to make to satisfy a variety of state interests and secure ratification. The three major compromises were the Great Compromise, the Three-Fifths Compromise, and the Electoral College. None of them have aged particularly well.

The Three-Fifths Compromise settled the question of how slaves would be counted for purposes of representation and taxation. The scheme was jettisoned after the Civil War, but it's still a national embarrassment.

The Great Compromise addressed state representation in the federal government; representation in the House is based on population, but each state has two US senators, regardless of size. So, in the Senate, Wyoming [pop: 600,000] has the same clout as California [pop:40 million]. The Great Compromise may have been necessary to ensure ratification by small states, but today it makes Congress much less representative of the peoples' wishes, skewing legislation toward the interests of a mostly rural group of voters in states like Wyoming, Montana, the Dakotas, Alaska and Idaho.

The Electoral College is another cringe-worthy compromise. While some delegates felt that the president should be popularly elected, others feared that voters wouldn't be informed enough or couldn't be trusted to make that decision. In the end, the two sides compromised with the creation of the Electoral College, which also favors states with small populations because each state's number of electors equals their number of representatives plus their two senators.

In both 2000 and 2016, the Electoral College system elected Presidents who lost the popular vote, George W. Bush and Donald Trump. It could certainly be argued that in both cases America would have been better off trusting the people to decide the outcome.

6. The brilliance of our Constitution is in how the framers balanced the interests of the state and federal governments, and built in mechanisms to prevent any branch of the federal government from becoming too powerful. After the delegates left Philadelphia, there were concerns about the added powers granted to the federal government, but the addition of the 10th amendment in 1791 satisfied most Americans that the states retained significant sovereignty.

10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Over the last two hundred years, the balance of power has slowly shifted from local and state governments to the federal government. There are a variety of reasons for this, but the growth and complexity of the economy is certainly a major factor. In 1787 most commerce was local but by the turn of the 20th century Americans were buying and selling goods and services across state borders and globally. Since the 1930s, Congress has used its constitutional authority under the Commerce Clause, to take on more responsibility for regulating interstate commerce and America's role in the global economy.

Generally, the separation of powers in the Constitution refers to the division of governmental responsibilities into distinct branches to prevent the concentration of power. But it's more complex than that. There is also a fusion of functions within the first three articles of the Constitution that make the branches [executive, legislative and judicial] interdependent so as to create checks and balances.

Examples of these checks and balances include the presidential veto, the impeachment power, the process for the ratification of treaties, and judicial review, although the last one was not obvious from the outset. The system isn't foolproof and sometimes seems slow and unwieldy, but it has stood the test of time.

7. The Constitution drafted in Philadelphia was controversial and several delegates refused to sign it. During the four months the delegates had spent putting the Constitution together, there were some strong disagreements. Some delegates abandoned the Convention and three refused to sign the final draft. Several were not sold on the need for a strong central government and felt the document violated states' rights.

George Mason of Virginia was one of the three delegates remaining until the end of the convention who refused to sign the document. He had a laundry list of complaints, some quite valid like the lack of a bill of rights and legislative selection of US senators instead of by popular vote.

After the other 39 delegates signed the proposed Constitution in September 1787, the document was sent to the states for ratification. The debate that then ensued led to America's first political parties. Across the country, Federalists, who favored ratification debated the Anti-federalists, who opposed the Constitution because it gave too much authority to the national government.

At first, it was not at all clear that the Federalists could get the required nine states to approve the document. Alexander Hamilton, James Madison, and John Jay wrote the "Federalist Papers" to convince the states to ratify and eventually their efforts were successful, but not without promising the addition of a bill of rights, as discussed below.

8. For various reasons, there was no bill of rights in the Constitution approved in Philadelphia. Near the end of the Convention, George Mason of Virginia proposed the addition of a list of individual liberties, but the state delegations rejected the proposal. Some delegates believed that it was impossible to list all our individual rights and that outlining certain liberties could be interpreted as meaning that those were the only rights reserved to the people.

After the Convention, the absence of a bill of rights emerged as a central element in the ratification debates. Anti-Federalists, who opposed ratification, viewed its absence as a fatal flaw, and several states only agreed to ratify the Constitution on the condition that a bill of rights would be added. To satisfy those concerns, James Madison drew up a list of individual liberties, much of which was approved by the first Congress in 1791.

Congress approved the Ninth Amendment as part of our Bill of Rights which states that, "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It clarifies that by listing some rights, Congress did not mean to suggest that they are the only ones protected from governmental interference. Those additional freedoms have become known as unenumerated rights, and include the right to vote and travel freely, among others.

9. Key provisions of the Constitution and its amendments are quite general, and some, quite ambiguous. Often that was intentional. The framers understood, like Hamilton and anyone who has ever attempted to write a statute, that it's impossible to draft a constitution considering any and all future scenarios. Moreover, they weren't drafting a statute that would have to be applied strictly; they were creating a flexible framework that would be fleshed out over time.

In 1819, Chief Justice John Marshall noted in McCulloch v. Maryland, that a constitution that attempted to explain all aspects of its future application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind."

For example, consider the First Amendment of the Bill of Rights. The free speech clause reads, "Congress shall make no law ... abridging the freedom of speech." Seven questions should make the point.

a. It only says "Congress," so did the framers intend that a president could "abridge the freedom of speech?"

b. Is all "speech" equal; political, commercial, fighting words, hate speech, profane speech? And if not, where do you draw lines between them?

c. Did the framers actually mean "no law," or did they believe that sometimes even political speech could be "abridged," in the case of libel or slander, for example.

d. Is a written protest sign or the words on a t-shirt "speech" protected by the First Amendment?

e. Can an act like burning your draft card ever be considered "speech?"

f. Should individuals be free to argue for the overthrow of the government?

g. Are campaign contributions protected "speech?"

The framers realized that many of these questions would arise, but left it to future generations to sort out the details. Their point was just that, as much as possible, we should allow the people to speak their minds freely about the issues of the day. And then, over time, case by case, we figured out the rest.

10. At first, it wasn't clear who should be the final arbiter of what the Constitution means. The framers didn't tell us who should decide if an act of the legislative or executive branches violated the Constitution. That question wasn't settled until 1803, when in the landmark case Marbury v. Madison the Supreme Court announced the principle of judicial review, the power of the federal courts to void acts of the legislative or executive branches when they conflict with the Constitution.

While judicial review is not explicitly provided for in the Constitution, it had been widely assumed, and state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the framers including Madison and Hamilton had expected the Supreme Court to assume this role so as to prevent Constitutional interpretation from becoming too political. Obviously, they weren't entirely successful in removing it from the political sphere, but things would be far worse if all three branches of government were interpreting the document independently and simultaneously, and often based on political considerations.

11. Since Marbury, the Supreme Court has fashioned a variety of rules to interpret the Constitution in an orderly fashion, with deference to the founders of our nation. At the same time, the Supreme Court has been quite cognizant of the cultural changes, social progress, and scientific and technological advances made since 1787 and has adapted the Constitution to address those developments. But, there is still controversy about how much the Constitution should "evolve" from the "original intent" of the framers or those that drafted the amendments.

Originalists and textualists believe that judges shouldn't try to update the Constitution and that changes should only be made by amending the document, an arduous and rarely successful process. However, they differ in how they should determine the historical meaning of the Constitution. Textualism emphasizes a reasonable interpretation of the words as understood by Americans living at the time. Originalists attempt to discern the intent of those that wrote or approved the text. To be fair, the differences are a bit more nuanced than that and there is some overlap. See here for a more thorough explanation.

Most jurists today view the Constitution as a living document which has been slowly and carefully adapted over the last 230 years to fit a radically different America than the one that existed in the late 18th century. Originalists bemoan that process, but it's what has allowed our Constitution to become the oldest in the world. The genius of the framers was that they understood what they could never know; the future. The General Welfare, Necessary and Proper, Establishment, Due Process and Commerce clauses, among so many others, are as vital today as when they were written because our Constitution is a living document, evolving with science, technology and culture.

Those that argue against a living Constitution say they fear that it allows unelected Justices of the Supreme Court to tamper with the fundamental principles of our republic, without proper guideposts, and without input from the people. But, that's not at all what has occurred over the last 230 years. The Supreme Court has always been mindful of its status as the unelected branch, and never got too far ahead of where public opinion would have it go in interpreting the Constitution.

Moreover, the Court has consistently embraced the moral and structural underpinnings of the Constitution such as equal protection, property rights, due process, and federalism, while balancing the intent of the framers, society’s need for order and an individual’s right to freedom. It has been a delicate balancing act, and there have been complaints along the way, but no other court in the world has done it as successfully.

A good example is the Sixth Amendment's right to counsel in criminal cases. The Amendment states that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." There is little doubt that the founders meant that a defendant could retain counsel if they could afford to pay for it themselves. A poor defendant was just out of luck. However, read broadly, it guarantees even an indigent the assistance of counsel. Either reading is compatible with the wording of the provision, but the first better captures the intent of the framers. However, should that be the end of our inquiry? Should we consider that criminal trials are much more complex today, that we put great stock in the notion of equality under the law, and that the states now have greater resources to provide counsel?

Originalists might argue that if we want to broaden the protection to include appointed counsel, we should do so with an amendment or statute, but what legislator is going to risk their career spending tax dollars to provide greater rights for accused criminals? That's generally not the way to win elections. So, after 160 years, the Supreme Court extended the right to poor defendants in state court felony cases in Gideon v. Wainwright in 1963. Judicial activism, some might say, but few would argue against the principal today.

Professor Richard Fallon of Harvard Law School describes the process that the Supreme Court has followed in deciding cases as melding "contemporary understandings and the framers’ general or abstract intent...." And, as David A. Strauss of the University of Chicago Law School explains, today when we interpret the Constitution, we "rely not just on the text but also on the elaborate body of law that has developed, mostly through judicial decisions, over the years," much like English Common Law. It's a slow process, some would argue too slow, but it has allowed the Court to keep the Constitution relevant while not offending too many traditionalists.

12. The 14th Amendment extended the protections of the Bill of Rights by making them applicable to the states. Although one of James Madison’s original amendments would have applied the Bill of Rights to the states, the Senate rejected it. So, the Bill of Rights approved by Congress only prohibited federal officials from violating your rights. However, that changed after the passage of the 14th Amendment in 1868.

The Amendment states, in part, that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Through a process known as selective incorporation, the Supreme Court has interpreted the Due Process Clause of the 14th Amendment to mean that state and local governments can't violate most of the protections outlined in the Bill of Rights.

Closing Comments: If you are interested in learning more about the Constitution and each section's interpretation over the years, you can find a wealth of information at the Constitution annotated.

One final thought regarding this remarkable document. Thomas Jefferson ridiculed the notion that our Constitution should be read with "sanctimonious reverence like the ark of the covenant, too sacred to be touched." His point is simple. The framers were brilliant, but they were just men, with all the same weaknesses and prejudices as people today, and without the power to see the future. Jefferson understood from the outset that our Constitution must adapt to a changing environment or it will become just ancient words on a page, without the power to guide and inspire future generations of Americans.

#law #constitution

By: Don Lam & Curated Content