About 80% of the people in the United States and about 60% in Great Britain support the Constitution and monarchy, respectively. Both are unifying forces in their respective countries, but perhaps less so than in previous years.
Those who do support our Constitution often revere it, some even believe it was divinely inspired. Thomas Jefferson, however, wrote: “Some men look at constitutions with sanctimonious reverence … too sacred to be touched … We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.” (Letter to Samuel Kercheval, July 12, 1816). He believed in constitutional change every generation (19 years), but strict construction regarding any given constitution, as in a contract.
My thesis is that we have rejected Jefferson’s advice and believe in our old Constitution, whether liberal or conservative, in a common law approach to its interpretation, allowing in addition to textual interpretation, past practice, precedent, and consequences-oriented analysis.
In acknowledgment of Constitution Day, this Sept. 17, I’ll discuss: first, the big step to write our Constitution; and second, the Supreme Court as a wise preserver of our old Constitution.
First, it was a big and courageous step to write a new Constitution. In our first constitution, the Articles of Confederation, states had near complete sovereignty over domestic affairs; only in foreign affairs did the confederal government rule. States were equal in statutory lawmaking. Each state had one vote in the single-body Congress, whether a large or small state. There was no senate, nor any confederal judiciary; the judicial power was at the state level, except for disputes between states, which were handled by the Congress. There was a president of the Congress, which was weak, because he could serve only one year in any three-year period; no rise of personal, George Washington-style power here. There was, however, a supremacy clause for the confederal constitution and action, and a reference to divine power.
The new Constitution created a strong secular federalism, also with a supremacy clause for the federal Constitution and action. The people, not states, were sovereign. And the federal Congress had great powers: to tax people directly, to regulate interstate commerce, debt relief in bankruptcy, single currency, and to create a national military. It also had a strong president elected on his own independent of Congress, with a fixed four-year term (originally no limitation on reelection), and a federal judiciary to enforce the Constitution and federal law with one Supreme Court, and the power of Congress to create federal courts within the states. States retained equality in a new Senate, with two senators from each state regardless of size, but states could no longer recall representatives, since they became federal officers.
Of particular importance was the democracy created in the House of Representatives, whose members would be, “…chosen every second Year by the People of the several States.” (Article I, Section 2), not by the states equally. This was a revolutionary change.
Second, we have had the same Constitution for 233 years. I believe we can have an old Constitution because our common law legal tradition of our Supreme Court allows for flexibility in interpreting the document to keep up with the times. Even conservative justices show flexibility. Justice Elena Kagan writes in dissent in West Viriginia v. EPA (June 30, 2022): “The current Court is textualist only when it suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as getting-out-of-text-free cards.” The inherent wisdom of the court is a factor. The great Chief Justice Charles Evens Hughes once told a new Justice William O. Douglas, “…you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” (William O. Douglas, "The Court Years: 1939-1975," 1980).
In the long run, the Supreme Court reflects the people’s will, since the members are chosen by a democratically elected president and Senate, and it is organized by the Congress. We rely for much of our stability on its wisdom.
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at email@example.com.
This article originally appeared on The Daily Telegram: James Pfister: Constitution, monarchy unifying forces for US, UK