The United States Constitution defines the structure of the national government and dictates the scope and limitation of its powers. The Constitution is known as “the supreme Law of the Land” and all other laws are measured against it. The application of the articles and amendments of the Constitution comprise constitutional law.
In addition to the United States Constitution, each state has its own constitution and therefore, its own body of constitutional law as well. State constitutions resemble the federal Constitution in that they outline the state government’s structure of legislative, executive and judicial branches as well as contain a bill of rights.
But there are various ways state constitutions differ from the federal Constitution. Often, state constitutions are much longer and more detailed than the federal Constitution. State constitutions focus more on limiting rather than granting power since its general authority has already been established. As a result, the constitution of Alabama is six hundred pages long whereas the federal Constitution can be easily read in one sitting front to back.
The details in state constitutions are not particularly “constitutional” in nature. They often address topics unique to the state. The federal Constitution can only be amended through a lengthy process designed to limit changes to this fundamental document. As a result, it has only been amended seventeen times since the adoption of the Bill of Rights in 1791.
State constitutions are more open to amendments. Amendments can be proposed by legislature, a constitutional commission or citizens’ petition and can be accepted by referendum. For example. the constitution of Massachusetts has been amended one hundred and twenty times. The constitution of Georgia has even been replaced altogether as many as ten times.
[Originally aired September 2012]
225 years ago, on September 17, 1787, the delegates to the Constitutional Convention signed their names to the final draft of the United States Constitution. Less than a year later, on June 21, 1788, when New Hampshire became the 9th state to ratify it, it became, as it states in its own Article VI, the supreme law of the land.
All these years later, few of us realize how cantankerous were the arguments that brought this document into being-- a first for a nation, a charter that created a country. Well, actually, it’s the second version of the charter that created the United States. Call it USA version 2.0.
That’s because the country was actually created by the Articles of Confederation, ratified in 1781. By those articles, the thirteen British colonies-- now referring to themselves as “states” to signify their autonomy-- bound themselves in “perpetual union” with each other. The problem was, their confederation, which lacked a strong central government, didn’t function very well. So in the hot summer of 1787, in the Pennsylvania Statehouse in Philadelphia, delegates from all of the states gathered to formulate the second version of an operating system for their new country.
That’s what the Constitution really is-- an operating system. It lays out how the government will operate, and it leaves it to that government to run the country. One of the reasons it has worked-- surprisingly well for an experiment-- for over 200 years is because it is an operating system. The laws and regulations created under its authority are, well, apps. The founding fathers were way ahead of time in their mode of thinking.
There is only one crime defined in the Constitution, that of treason, and it is narrowly defined. Other crimes, and laws and regulations that tell us what must be in a product, or what a civil servant will be paid, or how old you must be to work in a factory, and customs that have been incorporated into law, such as what constitutes a marriage, an adoption, or a divorce, or that you must drive on the right side of the road or speak English in official matters -- all of these are applications passed by the government operating as prescribed in the Constitution.
Under Article VI, they become the law of the land, but they don’t become part of the Constitution. You don’t stick your apps into the operating system.
We tried that once, with Prohibition. It didn’t work, and was repealed.
What the US has done, over the 225 years since the Constitution was drafted, was de-bug it. They figured out early, for example, that the President and Vice president had to be on the same ballot. That resulted in the Twelfth Amendment.
They’ve done a rather small amount of debugging ever since. They’ve moved the inauguration day forward as transportation got faster; they’ve provided for presidential succession if there is no vice president, or if the president is incapacitated. They’ve made it possible for the people to elect their senators directly, rather than-- as had previously been the case-- by the state legislatures. The senators still represent the states as a whole, but the people have a more direct voice in their selection, and the senators are, for that reason, more responsive to the people.
About half the amendments to the Constitution de-bug it. The rest clarify and expand the rights of the people who make up the United States. That’s right-- except for the 18th Amendment, prohibition, those amendments that didn’t debug the system have expanded individual rights.
There had been a battle among the delegates to the Constitutional Convention as to whether there should be a bill of rights contained in it. In the end, the purity of its design as an O.S. prevailed, but with the proviso that a Bill of Rights, in the form of a series of amendments, would be passed immediately. And so they were, passed by the first Congress, and ratified quickly by the states.
These amendments guarantee, among other things, the right to freedom of speech and of the press, freedom of religion and freedom of assembly. They grant freedom from self-incrimination in court and the right to a trial by jury. They include the controversial second amendment, the right to keep and bear arms.
One of the greatest arguments against having a bill of rights was that some feared that if rights were enumerated, sooner or later some elected officials might come around and say, “That’s it, that’s all the rights you have.” For that reason, the ninth amendment is perhaps one of the most important, although people don’t really think about it. It reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” What that means is that just because a right isn’t listed doesn’t mean that it doesn’t exist.
The Tenth Amendment covers similar turf. It reads, “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.”
That’s how it is that rights that no one ever suspected, 225 years ago, might exist-- such as a right to privacy, perhaps even the right to marry whomever one chooses-- fall under these amendments.
After the Civil War, the country, in adopting the 14th Amendment, created what might be termed USA version 2.5. It prohibited the states from infringing the rights guaranteed by the Constitution. Again, an expansion of rights.
Over the years, Constitutional amendments have expanded rights to include the right to vote-- first extended to black males, then to all women, then to people between the ages of 18 and 21 who until then, had been eligible to serve in the armed forces, but not to vote on those who would send them to war. An Amendment made it illegal to charge a tax at the polls in order to vote. This expansion of rights is one of the things that makes America the country that it is.
How could a group of men so divergent in views-- southern plantation owners, northern manufacturers, city shop-keepers and farmers, the educated and the self-educated-- how did these men overcome their prejudices and self-interest to ratify this document-- principally drafted by James Madison-- into a Constitution that has lasted this long? Some of them became bitter enemies in the process, but they didn’t let it stop them from coming together to create this truly unique system of government.
In the end, the whole turned out to be greater than the sum of its parts, something for which we should all be grateful, and think about as we celebrate the fact that the US Constitution has been around now for 225 years.
[Originally aired September 2012]
Essayist Ellen Kozak on the 225th birthday of the U.S. Constitution