During a week when many groups and individuals are celebrating the signing of the U.S. Constitution -- September 17 is Constitution Day -- it is appropriate to take note of how far we have fallen short of fulfilling certain fundamental rights promised in our governing document.
As Dean Erwin Chemerinsky noted in this ACSblog post, we are not just celebrating the signing of a parchment, we are actually taking note of how the Constitution has "been interpreted and implemented over the course of American history."
There are examples of where the judiciary has misinterpreted the broad language of the Constitution or where states have faltered or failed in implementation of constitutional mandates, but let's take one example that provides a stark picture of a nation failing to live up to a promise of genuine equality before the law. Let's look at the Sixth Amendment's right to counsel.
Fifty years ago this year, in a landmark opinion, Gideon v. Wainwright, the U.S. Supreme Court ruled that the Sixth Amendment's right to counsel means that people in danger of losing liberty have a right to counsel, even if they cannot afford it. In his majority opinion, Justice Hugo Black observed, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."
Wanna know whom I feel sorry for? William Hill Brown, Sir William Herschel, and Father John Carroll. Each chalked up a noteworthy achievement, yet none receives the appropriate attention or accolades because of unfortunate timing. Students across this country – even students of history – would be hard-pressed to recognize any of these three gentlemen.
Brown published the first American novel, “Power of Sympathy," in January 1789. In August and September that same year, Herschel discovered Enceladus and Mimas, Saturn's respective moon and satellite. And Carroll, in November 1789, became the first Catholic bishop in the United States thanks to his appointment by Pope Pius VI.
But do we celebrate these fine achievements? Are we preparing to celebrate the anniversary of the first American novel, first Catholic bishop or discovery of Saturn’s orbits? No. Because 1789, in American books and minds, belongs to the U.S. Constitution. To the exclusion of other worldly events, 1789 is all Constitution, all the time. (Francophiles may note that French Revolution garners some worthy attention.) Thanks to the late Sen. Robert Byrd (D-W.Va.) we actually celebrate 1787 -- when the Constitution was written and adopted by the Constitutional Convention -- more so than 1789 -- when the Constitution took effect. So this year is big, what with it being the founding document’s bicenvicenquinquennial. Or is it the quinta-semicentury? Or maybe the sesquicentennial-semicentury-quarterquell? OK, let’s just stick with the 225th anniversary.
Over the past three decades, conservative legal commentators have promoted a narrative about our Constitution that puts our hallowed text at odds with the goals of liberals. The Constitution, this story goes, is a profoundly conservative document whose words and principles tilt favorably towards the policy goals of today’s Republican Party: Small government. Law and order. Hostile to gay rights. Opposed to campaign finance law and affirmative action. Favoring nearly unbridled executive power in matters of war and foreign policy. If only jurists stuck to history – by interpreting the text by way of original intent or, alternatively, original meaning, rather than the living constitutionalism favored by Warren Court liberals – we would see the Constitution in its true light.
There’s just one problem with this story. It’s not true.
The Constitution was designed by the Framers to be a radically progressive document. The founding generation was comprised of revolutionaries, people who sought to make a new system of government that broadened rights rather than limited them. Their handiwork was itself thoroughly reformed by another group of progressives: the radical Republicans who added the Reconstruction Amendments. Over and over again, the Constitution has been revised by people inspired by liberal ideas, from the populists who sought the direct elections of senators to woman rights proponents who fought for the right to vote. Taken as a whole, the Constitution is anything but a conservative document. And while its words and principles don’t favor any political party, many of its core ideas support the policy goals of modern-day liberals.
Take, for instance, the argument that the Constitution favors small government. It is undoubtedly true that the framers wanted to circumscribe the power of government; that’s why we have the separation of powers, federalism, and a Bill of Rights. Yet often ignored is that the Framers crafted the Constitution to expand the powers of government so that Congress could effectively solve national problems. The document the Constitution replaced – the Articles of Confederation – hobbled government too much and the men who met in Philadelphia sought to rectify that error.
September 17th is Constitution and Citizenship Day, marking the day 225 years ago when our Founding charter was signed in Philadelphia and presented to “We the People” for ratification. As Yale Law Professor Akhil Amar has eloquently explained, never before in world history had a government charter been ratified by the people themselves. Calling our constitutional moment in 1787 the hinge of modern democratic history, Prof. Amar notes that the Founding generation took important steps to increase the number of eligible voters in the ratification process, with many states waiving voting restrictions (such as property requirements) and some allowing African Americans to vote for convention delegates.
However advanced this expanded voting pool may have been during the 18th century; through a modern lens it is obviously profoundly flawed and restrictive. Fortunately, after declaring that “We the People” would be the ones to establish and ordain the Constitution, the preamble also boldly states our intention to “create a more perfect union.” The goal was not just to create something “more perfect” than what Americans had seen before -- whether it be the tyranny of the British crown or the dysfunction of the Articles of Confederation -- but to establish a Union that was itself perfectible across history. Article V, authorizing Amendments, made it clear that the 1787 Constitution was not an end, but a beginning. And perhaps nowhere is that arc of constitutional progress seen more plainly than in the story of suffrage.
By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law George Washington University Law School. This post is part of an ACSblog Constitution Day Symposium.
As Constitution Day approaches, there is much that will be and should be said in praise of the document that has successfully guided the United States for more than 220 years. But when there is some part of our governance system that is broken, it does not denigrate the Constitution to recognize that and to propose to do something about it. That is, after all, why the Framers included Article V that makes it difficult, but not impossible, to correct a flaw in the grand design.
Over 12 years ago, I signed on to a publication of The Constitution Project entitled "Great and Extraordinary Occasions: Developing Guidelines for Constitutional Change." The authors argued that constitutional amendments should not be used without a showing of great need for an important part of our system and the absence of any lesser means of solving a problem. I continue to hold that view, but have now concluded that those stringent criteria have been met and that only a constitutional amendment can fix the problem of uncontrolled spending in elections for public office. Some would disagree because they believe that elections awash with money from those with strong economic (and sometimes other) interests in the outcome are good for democracy (or for the interests that they support), and hence would oppose such an amendment on its merits. But for those who decry the current excesses in campaign contributions and expenditures, there is little choice other than to amend the Constitution.
Much of the discussion about this issue lays the blame solely on the Supreme Court’s decision in Citizens United. But as I have detailed elsewhere, “It’s Not Just Citizens United,” that decision is only one part of a much larger set of problems, going back to 1976 in Buckley v. Valeo, when the Court held that the First Amendment precluded the Government from limiting the amount of money that individuals could spend to support candidates via independent expenditures. In those days, that may have meant expenditures of at most tens of thousands of dollars, but in 2012 that has ballooned to tens of millions, significant portions of which go through organizations that collect money from multiple sources and whose independence is at least open to question. Citizens United permitted for-profit corporations from doing what individuals can do on the independent expenditure side – albeit with vastly greater resources than all but a very few individuals – and many observers think that the century old ban on direct contributions by corporations is set for a similar demise. Finally, in Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, the Court has put a serious crimp in the effort to create a public funding system by outlawing the effort to augment basic public funding to counter massive spending by an opponent that chooses not to be part of that system. Additional disclosure would be good (assuming that Congress can pass it), but alone it cannot be enough to overcome these major rulings. It is possible that the composition of the Court will change, but it is highly unlikely that all of these decisions will be overturned, which is pretty much what is needed.