The Constitution of the United States of America

A Contextual Analysis

Mark Tushnet

• Publisher: Hart Publishing
• Year: 2008
• ISBN:
  9781847317063
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book provides a critical introduction to the history and current meaning of the United States' Constitution. It is organised around two themes: Firstly, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional 'interpretation', especially by the US Supreme Court, the primary mechanism for adapting the Constitution to ever-changing reality. Secondly, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today.

1

An Overview of the History of the US Constitution

When in the late nineteenth century scholars began to write constitutional histories of the United States, they went back to the forest of Germany and Magna Carta to identify the origins of US constitutionalism. For our purposes a more compressed time frame is appropriate. This Chapter surveys constitutional developments from the Revolutionary era through the early twenty-first century, to provide some orientation to the analytical account of US constitutional development that will occupy the remainder of the book. A single short chapter is obviously inadequate to provide more than the barest sense of the course of constitutional development; we will return to some of the episodes noted here in later chapters, which will also provide additional examples that retrospectively fill in some details omitted here.

FROM THE REVOLUTION TO THE BILL OF RIGHTS

The British colonies on the North American continent began to push for independence in the aftermath of the French and Indian Wars of the mid-eighteenth century. By the early 1770s a group of politically active colonists had become increasingly dissatisfied with the imposition on them of regulations adopted by the remote British Parliament in which they had no direct representation. They organized ‘committees of correspondence’ which began as local groups of independence-minded colonists who coordinated their efforts across colonies but which eventually became quasi-governments parallel to the colonial legislatures under British control.¹

Meeting in Philadelphia, the colonists declared independence in 1776. Organized as a ‘Continental Congress’ with representatives from each of the colonies, the rebels began to create something resembling a government for what they hoped would become a new and independent nation. That government was a loose confederation of the former colonies, now denominated ‘states’. Near the end of the decade the states decided to regularize their government by entering into a formal confederation. The Articles of Confederation were drafted in 1777 and became effective in 1781, during the Revolutionary War.

Experience under the Articles of Confederation, during the war and after the conflict ended in 1783, was not terribly satisfactory from the point of view of political elites who saw the possibility that the people of the American continent could play a large role in world affairs.² The Articles created a legislative body but no chief executive, which made conducting military and foreign affairs particularly cumbersome. Funding the national government’s operations—primarily its military ones—proved impossible. The national legislature had no power to impose taxes; all it could do was send requests to the states for contributions, and those ‘requisitions’ were universally disregarded by states themselves facing fiscal difficulty in the war’s aftermath. As members of a confederation, the states saw themselves as fully sovereign, which induced them to engage in economic policies that continental-minded elites thought unwise and damaging to other states. The national government had no power to enforce its international obligations against the states, which threatened to cause diplomatic embarrassment for the new ‘nation’.

By 1786 these difficulties led prominent politicians to call a convention in Annapolis, Maryland, to consider amending the Articles—a difficult task, because the Articles, understood as something like a treaty among sovereigns, expressly required that amendments be approved unanimously. When only a few states sent representatives to the convention, it adjourned after asking Congress to convene another convention. Congress responded by resolving to hold another convention in Philadelphia in the next year.

In 1787 enough states did send delegates to what became known as the Constitutional Convention, though some did so reluctantly, and some delegates and even delegations left when they saw the direction the Convention was moving. The Convention’s charge was to propose amendments to the Articles of Confederation, but almost from the start the delegates worked on a complete replacement for the Articles. They kept their deliberations secret, which, as Jon Elster has pointed out, allowed them to discuss their problems candidly and to make unprincipled compromises that would be hard to defend when seen as compromises but that could be presented to the public as based on deep principle.³

Reflecting what they believed they had learned from their experience as subjects of the British empire, the Convention’s members rapidly agreed that the new government they were designing should reflect Montesquieuan principles of separation of powers. Designing a judiciary was not terribly difficult, and—after the delegates toyed with the idea of a multi-member executive—neither was designing the executive branch, to be headed by a president. (Some problems were patched over by the universal recognition that the revered George Washington, who chaired the Convention in a nearly regal manner, would be the first president under the new Constitution.)

The real problem arose in designing the new legislature, which the delegates assumed would be the most important and powerful branch. The main concerns centered on reconciling the recognition that the new legislature would have to have substantial power, to be able to govern in ways that avoided the difficulties that confronted the Confederation, with concern that a powerful national government might reproduce the kind of imperial overreaching that had led to rebellion and independence. One way to deal with these concerns was to list the powers the new government would have, but that was not entirely satisfactory because the enumerated powers had to be expansive enough to accommodate all the important things the delegates thought the new government rally had to do.

The conflicting concerns were crystallized in two related conflicts. One placed smaller states at odds with larger ones; the other placed states in which slavery was an important economic institution at odds with states where it was not—roughly, the southern states against the northern ones. Smaller states were concerned that they would regularly be outvoted in a legislature in which representation was based on population. Slave states were concerned that a powerful national government might eventually become dominated by opponents of slavery. After long debates, the delegates addressed these problems through several devices. Creating two houses in the national legislature allowed the delegates to base representation in one, the House of Representatives, on population, and to give each state equal representation in the Senate.

Slavery was given some specific guarantees: The national government was barred from prohibiting the interstate trade in slaves for two decades; northern states were placed under an obligation to return slaves who escaped to freedom back to their owners. More important, the apportionment of seats in the House took slavery into account by giving slave states a bonus. It would be based on the free population plus three-fifths of the slave population. And, finally, the president would be chosen through a complex mechanism—not by direct popular election but through an ‘electoral college’ whose members would be elected in the states, with each state getting a number of electors equal to the number of Representatives it had plus two (justified as taking the state’s Senate representation into account, but also giving the small states disproportionate influence in the president’s selection, at least for the foreseeable future). These structural devices gave Southerners confidence that they would be able to protect their interests against congressional regulation through the ordinary operation of politics. That confidence was well-placed; until the system broke down in the middle of the nineteenth century, Southerners dominated the presidency and Congress.

Getting the proposed Constitution ratified proved difficult as well. The delegates sought to ease the task by abandoning the pretense that they were simply amending the Articles of Confederation, which would have required unanimous consent from all the states. Instead, they said that the Constitution would take effect when ratified by nine of the existing states. Even so, the campaign for ratification was hard-fought. Opponents of the new Constitution, called the anti-Federalists, raised a flurry of objections.⁴ The most important centered on the breadth of power the new government would have. The anti-Federalists were not reassured by the new Constitution’s defenders’ claims that Congress’s powers were actually limited. The anti-Federalists pointed to the final clause in the list of congressional powers, giving Congress the power ‘To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers’. The anti-Federalists, either out of principle or because it was a good political point, also pointed out that the proposed Constitution did not contain a Bill of Rights.

James Madison and Alexander Hamilton wrote a series of newspaper articles responding to these concerns, as part of the effort to obtain ratification in the crucial state of New York.⁵ These articles, later collected as The Federalist Papers, are one of the great documents in the Constitution’s history, less because of their direct impact on ratification than for the arguments they presented.

Madison articulated the political theory he thought grounded the Constitution in his defense of the separation of powers, which he argued involved balancing the power of one branch against that of the others. He then observed:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.⁶

Human imperfection, or ambition, made government necessary, but also made government a threat to liberty. How could constitutional designers deal with the latter problem? The popular solution, as Madison saw it, was to write down limitations in a constitution. But Madison was skeptical about the ability of ‘parchment barriers’ to control the impulses of ambitious politicians.⁷

Madison offered structural arrangements instead. In The Federalist no. 10 he gave his most extended analysis of the relation between human imperfection and constitutional design. The fundamental problem of government, for Madison, arose from the existence of what he called factions. These were groups of people ‘who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community’. Clearly it would be undesirable for factions to control government. But how could factions be controlled? For Madison, the ‘causes of faction are…sown in the nature of man’ and it was impossible to eliminate faction without restricting liberty, equally clearly undesirable. Statesmen might transcend faction, but ‘[e]nlightened statesmen will not always be at the helm’. The trick was to control faction’s effects, not its causes. Majority rule could control factions composed of a minority of the public, but that left the problem of a majority faction that would violate minority rights or otherwise fail to pursue the public interest.

For Madison, the solution was the creation of a large republic in which government was conducted by representatives elected by the people. Representation at least allowed for the possibility that the elected representatives would be able

to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.

Representation alone would not be enough. The representatives themselves might be corrupt, for example. Yet, Madison thought, corruption might occur in individual districts, but coordinating a cabal of corrupt officials elected from different districts would be difficult. He therefore argued that the very size of the new nation, which many at the time thought was a disadvantage, actually was a solution to the problem of faction and corruption. Looking to the people directly, Madison argued that a large republic would be less likely to be controlled by faction than a small one:

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.…

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State. In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government.

These basic presuppositions helped Madison and Hamilton explain the new Constitution’s details and defend it against the anti-Federalist attack. On the absence of a Bill of Rights, for example, Hamilton noted that the Constitution did contain some protections of individual rights, such as a ban on the adoption of ex post facto laws that imposed criminal penalties on activities lawful when undertaken, but went on to stress that that the enumeration of powers was effectively a bill of rights. Congress was to have the power to do only certain things—important things, no doubt—and it was not given the power to infringe on fundamental rights. This could not alleviate anti-Federalist concerns entirely, of course, because the anti-Federalists worried that Congress would do something plainly within one of the enumerated grants of power that would nonetheless violate fundamental rights. Hamilton devoted a footnote attempting but failing to refute that claim.

Madison addressed the same concern, but emphasized the way in which the new national government’s structure would protect against violations of rights. He pointed to federalism and the separation of powers as providing a ‘double security’ to the people:

[T]he power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.…The different governments will control each other, at the same time that each will be controlled by itself.⁸

The people and their state governments had little to fear from the national government. Even apart from the role that the enumeration of powers played, the people and the state would be able to control the national government. Most policies affecting ordinary people would be set at the state and local level, which would attach the people strongly to their states and less strongly to the national government. ‘The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments in times of peace and security.’⁹ If the national government did seem to get out of control, the states would be ‘alarmed,’ and a new rebellion would occur: ‘Every government would espouse the common cause. A...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Table of Cases
• Table of Legislation
• Introduction
• 1 An Overview of the History of the Us Constitution
• 2 The Constitutional Politics of the Legislative Branch
• 3 The Constitutional Politics of the Executive Branch
• 4 The Constitutional Politics of the Judicial Branch
• 5 Federalism and the Reach of National Power
• 6 Individual Rights Under the Constitution
• 7 The Processes of Constitutional Change
• Index