Our Remarkable Constitution
| Publication year | 1991 |
| Pages | 11 |
| Citation | Vol. 4 No. 6 Pg. 11 |
June, 1991.
Rex E. Lee, J.
Congress has officially designated the 15-year period from 1976 through the summer of 1991 as our bicentennial. Bicentennial! Over the past 15 years, this word has virtually acquired a secondary meaning. Viewed narrowly, it has been a ceremonial observance of the most remarkable period in the history of our nation, and perhaps in the history of the world. From a broader perspective, the bicentennial has symbolized patriotism and liberty, and has served as a valuable reminder that the unique blessings we enjoy as Americans are largely attributable to a document that has proven to be, notwithstanding some flaws, probably the most successful governmental undertaking in the history of civilized life on this planet.
The 200-year anniversary that we have been observing was a 15-year period that began with the Declaration of Independence and ended with the adoption of the Bill of Rights by the first Congress in the summer of 1791. The Constitution-making portions of that decade and a half lasted only four years, and consisted, in my view, of three basic phases. The first was the famous Philadelphia Convention in the summer of 1787. That story has been told several times and in several ways, but nowhere more interestingly nor more accurately than in Brigham Young University's film production, "A More Perfect Union." The convention was conducted in secret, and representing several struggles of epic I proportions among the delegates, ultimately resolved by a series of compromises. Someday someone should make another movie like "A More Perfect Union, " telling the story of the second and third phases, which were ratification and the adoption of the Bill of Rights. Chronologically, ratification and the Bill of Rights' adoption occurred in successive time periods, but they ended up being linked to each other. Their story is just as dramatic and the process came just as perilously close to failure as did the Constitutional Convention itself. Let me explain.
The crucial time period for ratification lasted from late 1787 through the events of the summer of 1788. Formally and technically, the number of states required was nine, but everyone knew that if the new Republic was to have a chance, the Constitution would have to be ratified by certain key states, including New York, Massachusetts and Virginia. Very quickly, national leaders divided into two camps, the Federalists who supported the new Constitution, and the anti-Federalists who opposed it. The anti-Federalists included such luminaries as George Mason, Patrick Henry and Richard Henry Lee of Virginia, Samuel Adams and Eldridge Gerry of Massachusetts; and Luther Martin of Maryland. They were distressed over the | fact that this secret convention, authorized only to modify the Articles of Confederation, had instead established an entirely new form of government. Worse yet, it was a national government—with some of the very centralizing features and powers that the Articles of Confederation just a few years before had been deliberately designed to avoid. Indeed, many felt that this new document would lead us back on a path to monarchy.
The Federalists' efforts to secure ratification were led principally by Madison and Hamilton, who, with some help from John Jay, published under the pseudonym "Publics, " a series of 85 essays titled "The Federalist." Those essays are today not only the most authoritative sources for determining the original intent of the Founding Fathers; they are also part of our national literary treasure store.
The anti-Federalists rather quickly focused their attack on the lack of a "Bill of Rights." For both sides, the Bill of Rights issue was more tactical than substantive. All assumed that if the anti-Federalists succeeded in sending the entire Constitution into a second convention to consider including a Bill of Rights, a second convention would not have the advantage of secrecy that the first had enjoyed, and the proponents of a new Constitution could, therefore, probably not duplicate the series of compromises on which their work of the summer 1787 had depended. In short, a new convention would mean no constitution at all, and both sides understood that the battle over a Bill of Rights was really a battle over the Constitution itself.
Once again, it was a compromise that carried the day, but this time a procedural one: Following the Massachusetts lead in early 1788, the crucial state conventions ratified the Constitution as it stood, but accompanied it with the addition of some proposed Bill of Rights amendments which Congress could consider after ratification. Given the closeness of the votes in Massachusetts, New York and Virginia, it is quite clear that without this ratification-now-Bill-of-Rights-later compromise, our Constitution would never have come into existence. And yet, when the first Congress convened in April 1789, most of its members were inclined to consider virtually any matter of business other than the Bill of Rights. If not for the constant pressure of one man, James Madison, then a member of the House of Representatives, the- first Congress might never have enacted a Bill of Rights. (Ironically, Madison had been defeated for the Senate by Richard Henry Lee, who had opposed the Constitution.) In all three phases of our constitution-making, therefore—drafting, ratification and adding the Bill of Rights— Madison was the central figure. He truly deserves his title, the Father of our Constitution.
What, then, is this Constitution, which Madison and Hamilton and others labored so diligently and precariously to bring about, and whose bicentennial we have been celebrating over the past four years? In the most elementary sense, the answer is that it is a part of our American body of laws, and laws are the rules by which we govern ourselves. But out of all the rules of conduct that rise to the level of law in our society, the Constitution is different in several respects. I will mention just two, and they are interrelated.
First, the Constitution is supreme over all other law. That means that in the event there is any inconsistency between the provisions of the Constitution and law that stems from any other source, the other law is invalid for that reason alone. That is what we mean when we say that laws are "unconstitutional."
The second distinction is one that is not often talked about but is very important and is related to the first. As compared to any other kind of law, including statutory, regulatory or judge-made common law, constitutional law (at least by the formal processes specified by the Constitution itself) is very difficult to make or change. Consider this: In 200 years, we have added only 26 amendments. The first 10, which include a large share of our most important constitutional provisions, were enacted in just a little over two years. But since that time, of the literally thousands of constitutional amendments that have been proposed, only 16—an average of eight per century—have actually become part of our constitutional law. And of those 16, two have cancelled each other out, the majority have dealt with relatively unimportant matters, and only one, the 14th, has an importance comparable to some of the provisions that were adopted between 1787 and 1791.
The central feature of the American Constitution is that with only one exception, its provisions are confined to limiting the powers of government. The single exception is the Thirteenth Amendment, which prohibits slavery and involuntary servitude, and therefore necessarily governs relationships between private, nongovernmental people and entities. With that single exception, the Constitution leaves untouched those vast bodies of other law which regulate the rights and obligations that individuals, groups and institutions owe to and enjoy from each other. I suspect that the great majority of Americans don't know that. It follows that when we speak of our constitutional rights, we are necessarily speaking of rights that we enjoy vis-a-vis government, either national, state or local. The Constitution is silent with respect to rights that we might enjoy vis-a-vis our employer, our neighbor, or any other non-governmental person or entity who infringes on our interests in any way other than the imposition of slavery or involuntary servitude, neither of which has been a terribly pressing issue over the past century and a quarter.
The Constitution is, in short, a limitation on government. It accomplishes its governmental-authority-confining mission in two basic ways, and with the exception of the Thirteenth Amendment, every provision of the Constitution, in my opinion, falls into either one or the other of these two categories of limitations on governmental power.
The first category is the obvious one. The Constitution contains some fairly obvious, though not always specific, prohibitions concerning what government— federal, state or local—can do to its citizens. Some of the most prominent are protection for the criminally accused, such as the privilege against self-incrimination, protection against unreasonable searches and seizures, the right to counsel and jury trial. The best known of the non-criminal protections are contained in the First Amendment, most of whose guarantees pertain to some form of free expression, and include freedom of speech and press, freedom of assembly and the free exercise of religion. (Interestingly enough, the only non-expression right contained in the First Amendment is a structural provision, the so-called establishment clause, which deals with relationships between governments and religious organizations.) And although the original Constitution was criticized by the anti-Federalists for its lack of a bill of rights, it actually contained several important limitations on government designed solely...
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