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A Few Parchment Pages Two Hundred Years Later
The framers of the Constitution were proud of what they had done but might be astonished that their words still carry so much weight. A distinguished scholar tells us how the great charter has survived and flourished.
May/June 1987 | Volume 38, Issue 4
In this way was slavery acknowledged, though not by name in the Constitution, and confirmed in two other compromises: the three-fifths rule for representation to the House of Representatives and for direct taxes and the provision for the return to their owners of fugitive persons “held to Service or Labor....”
And the Philadelphia delegates continued to compromise. First, it was decided that the chief executive was to be a single person, not a committee or plural executive, as previously had been proposed. He would serve for four years (other proposals had ranged from a life term to a single seven-year term), and he was to be eligible for reelection. He would have a qualified veto (one that could be overridden by the legislative branch), not the absolute veto that some had urged. He would not be chosen by Congress, as the Virginia Plan had proposed, or selected directly by the people, as James Wilson would have preferred. Instead, the final decision, after countless proposals, was to have the President elected by electors who would be chosen in each state “in such Manner” as its legislators might “direct.” This plan, perhaps conceived to propitiate the states, proved instead a victory for both nationalism and democracy, for very shortly after 1789 nearly all the state legislators provided for the election of their states’ presidential electors by popular vote. If no candidate had a majority of the electoral vote, the ultimate choice would be made from the five highest candidates by the House of Representatives. However, in choosing the President, the House would vote by states, each state having one vote. Thus, the electoral college proved to be a compromise whereby the people, at least indirectly, would make the choice rather than the state legislatures.
Perhaps the ablest defense of all these compromises and concessions was made in The Federalist, in which Madison, while conceding that the Constitution was not a “faultless” document, admitted that the convention’s delegates “were either satisfactorily accommodated by the final act; or were induced to accede to it out of a deep conviction of the necessity of sacrificing private opinions and partial interests to the public good, and by a despair of seeing this necessity diminished by the delays or by new experiments.”
Finally, and certainly most important in terms of the safeguards for the people, the chief criticism leveled against the Constitution when it was finally submitted for ratification was the failure to incorporate a bill of rights. In ratifying the Constitution, a number of states included bills of rights among their recommendations. To ensure such compliance, New York even urged that a second convention be called. The prospect of another convention, which might very well undo the great work already accomplished, appalled James Madison. Once elected to the House of Representatives, the Virginian reduced more than two hundred proposed amendments to twelve, of which ten were ratified. The Bill of Rights, as those first ten amendments are called, proved to be the great concession that quieted public fears about the new government’s guarantees of civil liberties. This concession was Madison’s noblest heritage to the nation.
If there was controversy from the very start about the scope and intent of the Constitution, that controversy has continued down to the present day. In fact, it has heated up over the current insistence of the attorney general, Edwin Meese, that the Supreme Court in interpreting the Constitution is bound by the intent of the framers. This question, now being debated in many quarters, addresses the public’s conception of the Constitution: Is it a charter carved in stone or a malleable document that can be interpreted in response to rapidly changing moral and social values and economic and technological demands? When Hamilton described the Constitution as looking “forward to remote futurity,” how flexible did he consider it to be?
Are courts bound by the debates at the convention and the state ratifying conventions, or are they bound by the “express words” of the Constitution, and are we talking about the meaning of those words in 1787 or in the 1980s? Certainly the meaning that the drafters wished to communicate may differ from the meaning the reader is warranted to derive from the text.
What we do know, in studying the notes of debates of the framing of the Constitution, is that the framers’ expected the Constitution to be interpreted in accord with its express language. “Vague” or “indefinite” language was criticized, and there were debates then and to this day as to how much of the war-making power was given to the President and how much to Congress.