A Few Parchment Pages Two Hundred Years Later


How much weight did James Madison, often called the “father of the Constitution,” give to the original intent of the framers? Very little, it seems, if we can judge from his insistence in his later years that “as a guide to expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.” What counted in Madison’s eyes were precedents derived from “authoritative, deliberate and continued decisions.” Madison, who had originally phrased the Bill of Rights, sought to bind the states as well as Congress—a phrasing that mysteriously disappeared from the final product, which speaks only of Congress. He would have rejoiced at the modern Supreme Court’s interpretation of the truly revolutionary Fourteenth Amendment, ratified in 1868 during the Reconstruction Era and holding that the states as well as the federal government are bound by the Bill of Rights.


Indeed, what has contributed to the durability of the Constitution is its capacity to adapt to a society so different from that of the Founding Fathers. Shortly before the Constitutional Convention assembled, a mob put an alleged witch to death in Philadelphia, and just a few weeks later most of the delegates went down to the banks of the Delaware to see a demonstration of John Fitch’s steamboat—so incongruous were the boundaries of knowledge at that time. A First Amendment setting up a wall of separation between church and state and guaranteeing freedom of religion was adopted by a people who were already facing one of the great fundamentalist religious revivals of our history.

The Constitution made provision for such adjustments. Even though the word equality is missing in that seminal charter, in time amendments were adopted that, among other things, ended slavery (ratified in 1865), provided for “the equal protection of the laws” and “due process of law” for all persons (ratified 1868); conferred voting rights regardless of “race, color, or previous condition of servitude” (ratified 1870); required the direct election of senators (ratified 1913); gave women the suffrage (ratified 1920); ended the poll tax as a bar to voting in federal elections (ratified 1964); and extended the suffrage to eighteen-year-olds (ratified 1971).

The framers were loath to expose their great work to a second convention.

But not by amendments alone has the Constitution been reshaped. Actions of the three branches of government have broadened its text and applied its principles to specific situations only dimly perceived by the framers. As early as George Washington’s administration the principle of executive privilege was upheld, the rights of the President to dismiss appointees accepted, the cabinet—not mentioned in the Constitution—created, the right of the President to declare neutrality without consulting the Senate established, and the House of Representatives’ power to withhold appropriations for treaties it did not approve of overruled. Finally, there emerged a party system—a system that none of the Founding Fathers anticipated—that Washington deplored in his Farewell Address, and that was considered a cause of faction and divisiveness. Yet today political parties are accepted as the touchstone of a democratic society, and the repression of opposition parties as one of the most visible symptoms of a totalitarian state.

Despite these enlargements and glosses upon the original Constitution made by both the President and Congress over the past two centuries, it is the High Court that bears the brunt of criticism for straying from the intent of the framers. Critics charge the Supreme Court with practicing what amounts to judicial legislation to effect due process, achieve equal justice, assure voting equality, and maintain the right of privacy even in cases in which it is dubious that a majority of the nation’s citizens support some of its advanced positions.

In 1787 and 1788 and again today critics contend that judges, who are insulated from the electoral process, should not be entrusted with final interpretation of the laws. But no federal judge has ever been impeached and removed from the bench because his decisions have run counter to public opinion. Only on grounds of “high crimes or misdemeanors”—not deviation from prevailing political norms—is a federal judge liable to impeachment and removal. To Alexander Hamilton the independence of the judicial branch was essential if the courts were to maintain their role as guardian of the Constitution’s limits on power.

That independence is the central issue concerning the federal judiciary’s role today. The Supreme Court is increasingly preoccupied with cases that deal with social and moral issues—the death penalty, desegregation, school busing, prayer in schools, abortion, privacy —and litigants insist that the justices fill the vacuum created by the lack of direction on these subjects from the two other branches of government that, unlike the Court, are subject to the electoral process.