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The document that emerged from the Philadelphia Convention of 1787 has become the longest-lived national constitution in the world, fulfilling Chief Justice John Marshall's vision that it was "meant to endure for ages to come, and to meet the various crises of human affairs" (McCulloch v. Maryland, 1819). It was the product of a sense of urgency and of mission, solid preparation, secret debate that allowed open-mindedness and compromise, and a body of delegates who in the aggregate possessed both a command of political philosophy and much practical experience under state constitutions and the Articles of Confederation.

Despite some serious deficiencies, revealed most notably in the crisis of the Civil War, the Constitution has served at once as a symbol of national unity and the continuity of basic ideals amid change, as a supple (but not mushy) framework of government, and as a binding code of supreme law. Its grant of powers and its constraints on power are addressed to governmental action, national and state, not to private conduct. The latter is reached by legislation enacted pursuant to the specific constitutional grants of power to Congress, together with the vital auxiliary "necessary and proper" clause. The design of the whole is to maintain a government that is effective, adaptable, and safe for the rights of its people. The principal features of the Constitution that contribute to this end may be set out under four heads.

1. Republican form of government. The Framers feared both the despotism of a monarch and the tyranny of a fixed popular majority. For the central problem of a republic, the design of the electoral process, they adopted a series of provisions calculated to filter the popular will through a screen of minds deemed virtuous and wise. Thus the president would be chosen by electors in the several states or, failing a majority, by the House of Representatives. Senators would be chosen by the state legislatures, and qualifications to vote for members of the House would parallel, state by state, their own prescribed qualifications for the suffrage.

All this has given way before the rise of political parties and a steady movement toward a more inclusive and direct electorate. Indeed, if there is any recurring theme in the constitutional amendments since the Bill of Rights of 1791, it is the enlargement of the franchise. The Seventeenth Amendment (1913) provided that members of the Senate be elected by popular vote. The Fifteenth Amendment (1870) enfranchised blacks; the Nineteenth (1920), women; and the Twenty-third (1961), residents of the District of Columbia in presidential elections. The Twenty-fourth (1964) outlawed the poll tax or other tax as a condition of voting, and the Twenty-sixth (1971) enfranchised eighteen-year-olds. In addition to access, the effectiveness of the ballot was increased by the Supreme Court's one-person-one-vote decision requiring electoral districts within a state to be approximately equal in population; this was based on the equal protection guarantee of the Fourteenth Amendment, which to then had not been thought to embrace political rights (Baker v. Carr, 1962). The reform of districting gave increased political weight to the growing suburban areas, and increased voter eligibility and registration enhanced the influence of black and other minority groups in the cities. James Madison's model of counterbalancing, moderating forces has been strengthened by these and other unforeseen developments, not least the sustained operation of a two-party system.

Despite Madison's strong warning against "factions" in the famous Tenth Federalist Paper, a two-party system has ironically served to mitigate further divisions: each party, to maximize its appeal, is a haven for a congeries of political and social interests. This pattern is only indirectly the result of constitutional provisions. A multitude of ideological parties is discouraged by the single-member districts for the House; proportional representation, which would foster such multiplicity, is incompatible with that model. Moreover, without any constitutional compulsion, the states have opted for the "unit rule" for presidential elections, whereby the total electoral vote allotted to the state is awarded to the winner, rather than apportioned by districts or by proportions of the popular vote. In thus maximizing its strength in the counting of electoral votes, each state contributes to the two-party pattern, which in turn avoids the multiple divisions in many democratic countries that typically require the formation of coalition governments. In the United States the coalitions are formed before the election.

2. Separation of powers. It is commonly said that the Constitution establishes a national government of three branches--legislative, executive, and judicial--whose separation is mandated to prevent an all-powerful consolidation of functions. From the beginning, however, there has been an admixture of powers--checks and balances--that serves the same end, the safeguarding of people's liberty. The president's veto power, congressional override, the president's nomination of federal judges, and the senatorial consent required for the appointment of the highest officials and for the ratification of treaties made by the president are all embedded in the document itself. As Justice Louis D. Brandeis explained, "The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency, but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy" (Myers v. United States, 1926).

The problems of coping with giant enterprise and with a multitude of complex commercial and financial practices, as well as the need for technical expertise and continuity of policy, prompted the creation of independent agencies, starting with the Interstate Commerce Commission in 1887 and proliferating ever since, most dramatically during the New Deal period under President Franklin D. Roosevelt. The danger of consolidated powers within these agencies is recognized in the effort to keep apart in an agency's bureaucracy the functions of rule making, enforcement, and adjudication.

In foreign affairs, the growing exercise of presidential power, particularly in times of crisis, from World War II to the Vietnam conflict, has provoked efforts to demarcate the spheres of executive authority, on the one hand, and legislative participation and oversight, on the other. The War Powers Act of 1973, passed over President Richard M. Nixon's veto, is the product of such efforts. The courts were drawn into the murky area of presidential war powers over the economy in wartime in the steel-seizure controversy during the Korean War, but whether they will accept arbitral authority in more direct foreign policy decisions or will regard these as "political" questions for resolution outside the courts remains an issue for the future. Perhaps for purposes of judicial control a line can be drawn between actions that affect primarily the prerogatives and sensibilities of the contesting branches of government, like a duty to consult when each side possesses political leverage, and those actions that directly affect the liberty and rights of individuals, like a call to military service abroad in an undeclared war.

3. Federal system. Like the separation of powers, the allocation of powers between the national and state governments was meant to be a safeguard against undue concentration in one sphere of authority. The Civil War and the postwar amendments augmented the national role; the amendments in effect nationalized the Bill of Rights. They altered, but did not obliterate the federal system. The development of the national-state distribution of powers, as with the separation of powers, has been marked by flexibility rather than an either-or ordering. The Constitution itself designates few powers as exclusively national: naturalization, bankruptcy laws, taxation of imports and exports. Others, by their nature, must be exclusive, like the borrowing of money on the credit of the United States. Nor is there a list of powers reserved to the states; these are residual, as declared by the Tenth Amendment. The demarcation of the great powers that are the engine of government, notably the regulation of commerce and the taxing and spending power, was left to be worked out by congressional and state legislative assertions of authority and by Supreme Court review in cases and controversies coming before it in ordinary litigation.

The expansion of national power over the economy, whether through acts of Congress or judicial denials of state power, was legitimized and shaped by the opinions of Chief Justice Marshall. This movement, interrupted by the Court a century after Marshall, resumed when President Roosevelt's Court reorganization plan of 1937 was proposed and the major New Deal legislation was finally upheld. In 1895 the Sherman Antitrust Act was held incapable of reaching a combination of sugar refiners that controlled 90 percent of production because production was deemed not to be commerce, and in 1918 a similar fate befell the federal law prohibiting the shipment of child-made goods. But federal regulation of agricultural production was sustained in 1942, as was the application of the Fair Labor Standards Act to the operations of a motel in 1964. If interstate commerce feels the pinch, as Justice Robert Jackson put it, it does not matter where the squeeze occurs.

Taxation, too, has had wide scope. The so-called Madisonian view would limit Congress to spending in support of powers expressly granted, whereas the Hamiltonian view placed no such limit on the power to tax and spend for the general welfare. Not until 1937, when the Social Security Act was sustained, did the Supreme Court explicitly put the issue at rest, in favor of the broader view. "General welfare" has become virtually a political, not a juridical, concept.

It should be remembered, however, that a political check does exist. The members of Congress represent states and localities, and although their perspective is not identical with that of local leaders, their caretaking function cannot be disregarded in the formation of policy. In part, at least, this dual loyalty is responsible for creative patterns of cooperative federalism, including direct relations between the national government and cities.

4. Safeguarding personal rights. The foregoing features of the Constitution represent an internal, structural, self-executing design to protect and preserve civil liberties. But the original Constitution, the Bill of Rights, and the post-Civil War amendments, in particular the Fourteenth (1868), contain express prohibitions on governmental action, federal or state, that ultimately depend on judicial interpretation and enforcement. These safeguards could be given a narrow reading, confined to the circumstances at the time of their adoption, but here too history has shown that though we are tethered to the words of the Constitution we are not shackled by them. Indeed, the evolving protection of individual rights and equality of treatment has become the central focus of constitutional law and the dominant subject of Supreme Court review. Throughout its history the Court has emphasized different aspects of the constitutional order at different periods. Before the Civil War the Court created a nationwide common market, largely through its view of the commerce power. Later it fostered the autonomous growth of business enterprise through its concept of economic "liberty" and a substantive, not simply procedural, reading of the due process clauses in the Fifth and Fourteenth Amendments.

At times the Court, giving a formal rather than realistic meaning to liberty, seemed to forget the old common-law maxim that a necessitous person is not a free person, as well as the homely truth that the freedom of the whale is the death of the minnow. The clash between the popular will and a majority of the Supreme Court became especially acute during the Progressive Era, and it came to a head, as noted, in the constitutional crisis of the New Deal. As the role of government in a welfare state has grown, so also has judicial scrutiny of the procedures, criminal, civil, and administrative, employed in governing. Now the cutting edge of constitutional law is at the line between individual autonomy (confusedly called a right of privacy) and the asserted need for social control.

Besides the judicial responses to the needs and aspirations of society, adaptation and change can be brought about by formal amendment. There have been remarkably few. Of the twenty-six that have been adopted through the difficult process required by Article V, the first ten are essentially part of the original document, since the ratification process produced a virtual commitment to draw up a set of prohibitions addressed to the new national government, and three, the Thirteenth, Fourteenth, and Fifteenth, marked the ending of the Civil War.

The remaining thirteen introduce predominantly structural changes. Note has already been taken of the successive enlargements of the voting franchise. Remarkable too is the paucity of amendments to override decisions of the Supreme Court: the Eleventh, to recognize sovereign immunity from suit in the federal courts, and the Sixteenth, to enable Congress to enact an income tax. The reluctance to add amendments is illustrated by several recent efforts. The failure to adopt the Equal Rights Amendment was mainly due to a perception that it was no longer essential, in light of the favorable decisions under the equal protection guarantee. The failure of a budget-balancing proposal evidently reflected a judgment that the subject was too complex to lend itself to a place in the Constitution. The failure of a flag-burning proposal to emerge from Congress reflected a sentiment that its object was too inconsequential practically and that symbolically it would send to later generations and to other nations a wrong message about tolerance of dissent.

New proposals for structural change are being discussed in response to the problem of collaborative government when the Congress and the executive branch are of different party allegiances. These ideas, which adapt certain features of parliamentary-cabinet government, include making members of Congress eligible for cabinet or subcabinet posts and four-year terms for members of the House, whose election would coincide with presidential elections. Action on such proposals, barring an intractable stalemate in government, will probably have to await the twenty-first century.

Bibliography:

Archibald Cox, The Court and the Constitution (1987); David P. Currie, The Constitution of the United States: A Primer for the People (1988); Leonard W. Levy and Kenneth Karst, eds., Encyclopedia of the American Constitution, 4 vols. (1986).

Author:

Paul A. Freund

See also Bill of Rights; Equal Rights Amendment; Federalist Papers; Freedom of Speech; Freedom of the Press; Judicial Review; Philadelphia Convention; Ratification of the Constitution; Supreme Court. (For the text of the Constitution, see appendix.)