AM I A CONSTITUTIONALIST

 

I was asked the other day on Facebook if I’m a constitutionalist. My first response to that was to Google “what is a constitutionalist,” which was only marginally helpful. Basically, like the name implies, it’s someone who advocates for constitutional government or an existing constitution. The person who asked the question wasn’t specific, but it seems likely they were referring to the American Constitution. I don’t think it was meant to be that complicated of a question, but it’s difficult to give a complete answer without examining what the intent of the Constitution was? In this installment of View From Space I’m going to look at the issues that were on the minds of the first American citizens as they were trying to create a framework in which to govern themselves.

The Revolutionary war was fought over the ideas of self-government and no taxation without representation. For generations the colonists had become accustomed to mostly governing themselves. Of course, they were under the King and Parliament, but they hadn’t made any serious attempts to tax them in a long time and although they had royally appointed governors, for the most part governing was done by colonial legislatures and local governments with locally elected officials. This hands-off approach had been mutually beneficial as the colonies provided raw materials for English manufacturing and in turn provided a good market for the finished products from England.

However, after the Seven Years War (French Indian War) England had accumulated a large debt and the sentiment began to develop in Parliament that the colonies needed to pay more for their defense. The colonists, on the other hand, saw England had defended its own interest in the war and didn’t see the need to pay taxes to England. Also, many colonists became disenchanted with the mother country over their highhanded and often incompetent manner in which they prosecuted the war effort. So, yada, yada, yada, in 1775 the war for independence begins, the Declaration of Independence is signed in 1776, by 1781 the war had come to a stalemate with neither side being able to defeat the other. Finally, in 1783 the British public and parliament had become tired of bearing the cost of the ongoing war with no end in sight and England essentially gave up the fight and America achieved full independence.

The first attempt at a permanent form of self-government was the Articles of Confederation which was ratified in 1781. At this point there wasn’t really an accepted idea of America being a single country, it was much more like we think of the EU today. Thirteen independent countries bound together for economic and self-defense purposes. The word state has historically referred to an independent nation or a sovereign state, ex. the Italian state. If we were the American state, that would be an indication that we were a single country, however we were the United States of America indicating we were a confederation of sovereign states, hence the Articles of Confederation. And for the most part that’s the way people wanted it. There was a problem though, the Articles of Confederation were too weak of an organizational structure to effectively deal with the problem they faced. Each state had its own currency, foreign trade policy, military and defense policies. The newly formed U.S.A. were weak and divided, and were vulnerable to being overwhelmed by the European powers who were all eager to get their hands on American natural resources. As a result, it was agreed they needed to meet to make some adjustments to the Articles of Confederation to better meet the challenges they faced.

This is the context under which the delegates to the Constitutional Convention met in Philadelphia in the spring and summer of 1787. It wasn’t to write a new constitution, it was to make a few adjustments to the Articles of Confederation. This is where the psychological principle of minority influence comes into play. This psychological principle states that under certain circumstances, exposure to a consistent minority position over time can cause the majority to accept the views of the minority. Most people were happy with the current organization of the government, but many of the elected leaders had come to see its deficiencies and were open to making some adjustments. 

However, there was an energized minority that wanted to toss the Articles entirely and write an entirely new constitution that would fundamentally change the nature of America from a confederation of sovereign states to a new singular state with a strong central government and an elected chief executive. Those that only wanted a few reforms to the Articles of Confederation weren’t terribly excited at the prospect of the convention, some didn’t go and those that did, didn’t do much preparation ahead of time. Those in favor of a new constitution led by James Madison showed up early so they could lobby delegates as they showed up with a whole series of proposed provisions for a new system of government already worked out. These efforts helped to reframe the whole purpose of the convention from the outset to go well beyond what their legal mandate was. In fact, the Constitution that came out of the convention was a violation of the Articles of Confederation which required a unanimous vote to amend the Articles, however, the new Constitution lowered the bar to only three-quarters without having the authority to do that.

The product that came out of the Constitutional Convention was very controversial. Few delegates left the convention entirely happy with the document, most felt like they had given too much away in the negotiations. Many of the most prominent delegates refused to sign it including: George Mason (Father of the Bill of Rights), John Mercer (future Congressman and Governor of Maryland), Edmund Randolph (first Attorney General of the U.S.), Patrick Henry (of “Give me liberty or give me death!” fame), Richard Henry Lee (1st and 2nd Continental Congress and future Senator from Virginia and several others. If a national referendum had been held after the convention it almost certainly would have been defeated. 

Those that opposed the Constitution were troubled by the lack of a bill of rights and felt the creation of a strong central government violated the ideas they had fought so hard for during the Revolution. However, like at the convention, the pro-Constitutional side who labeled themselves the Federalist were more organized and more effective in their campaign to get the Constitution ratified. In several states that had a sizable anti-Constitution or Anti-Federalist movement, the Federalist quickly organized ratifying conventions before the Anti-Federalist could respond. Even with the efforts of the Federalist, the votes in many of the state conventions were close. Rhode Island was the only state to hold a public referendum and the Constitution was defeated by an overwhelming margin, Rhode Island didn’t ratify the Constitution until well into Washington’s first term as President. By the summer of 1788, with a promise of a future Bill of Rights, enough states had ratified the Constitution for it to take effect.

With the effective campaign by the Federalist the Constitution became the law of the land. The Constitution created a single country with a strong centralized government and a single executive in the President. Yet, this idea was not widely supported by the people or even many of the politicians who had voted to ratify it. There was great fear that states would lose their sovereignty and the President would become a king like figure, which I think you can argue is essentially what eventually happened. The fact that people continued to use plural verbs when discussing the United States and that presidents of the Revolutionary period continued to be weary of fully using the power granted them in the Constitution is a good indication that most Americans at the time didn’t fully support the reality of the government they had just created in the Constitution. It wasn’t really until the aftermath of the Civil War that most people began looking at America as a single country rather than a confederation of sovereign states.

So, with all that being said, what does it mean to be a constitutionalist? It could mean supporting the vision most Americans held for the country at the time the Constitution was written. It could mean supporting the words that were actually written in 1787 or it could mean the Constitution today with dozens of Amendments and over 200 years of case law defining the practical application of the Constitution. Or finally, it could simply mean supporting the concept of a written framework for a government that is always subject to alterations based on the needs of the people at the time. I think it was this last meaning of the term that most of the people who voted to ratify the Constitution believed. Most did not fully support its provisions, but also recognized the need for a foundational document and that the Constitution was at least marginally better than the Articles of Confederation. So in the end they supported it. It’s in this spirit that I think we should never stop re-examining how we govern ourselves and how to make the institutions of government more effective. So yeah, I guess I’m a constitutionalist.

Update, Am I an originalist? Here’s my response to a follow up question: How to interpret the Constitution over 230 years later is an ongoing question. The term originalism has its roots in the 1970s but really came into being in the 1980s and 90s. Generally, there are two branches of originalism, one that looks at the original intent of writers and/or the ratifiers of the Constitution, and one that only looks at the original meaning of the text of the Constitution. These are contrasted by the view of the Constitution as a living, breathing document that evolves over time to deal with situations the framers couldn’t have anticipated. None of these by themselves works as a satisfactory way of interpreting the Constitution in all situations. Only looking at the original meaning of the words has the potential to reach conclusions that are very different from what the framers intended. Ignoring the intent of the framers in trying to determine under what circumstances the police can force a suspect to unlock their cell phone is ridiculous. 

At the same time, it’s impossible in many cases to definitively conclude what the writers of the Constitution intended due to the fact we have incomplete records from the era and as I noted in the article, they often disagreed with each other. It should also be noted that even those who believe in a strict textual interpretation can disagree with each other, the idea of a static Constitution free of human interpretation is a fantasy. As a result, I think you have to start from a position of relying on the text, but you also can’t ignore what the intent was, at least when it can be determined with some clarity. You also can’t ignore the fact that the Constitution was written in a pre-industrial age with a limited scientific understanding of the world. It’s folly to believe that the Supreme Court can rule on cases involving technologies the Founding Fathers could not have conceived of without considering the changes that have occurred in the world over the last two centuries. So I probably would not call myself an originalist, but rather I believe you have to start from the original meaning of the text of the Constitution, while also considering the original intent of the framers and how that works on a practical level in the modern world.