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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
No single branch of the government can long evade the issue of accountability for interpreting the Constitution. The President fills vacancies on the Court, usually picking persons who reflect his constitutional views. In requiring the President to swear to “preserve, protect and defend the Constitution,” the public expects him to determine if and when it is being threatened. Some Presidents, like Lincoln, looked neither to Congress nor to the courts in times of crisis. Deciding that the Union was indissoluble, Lincoln explicitly assumed the authority and took on the full burden of maintaining the Union.
Nor can Congress escape responsibility, since it is charged by the Constitution with enacting regulations concerning the Supreme Court’s jurisdiction except when spelled out in Article III. Beginning with the Judiciary Act of 1789, Congress has set the parameters of the federal courts’ jurisdiction and within those constitutional limitations can enlarge or diminish the scope of litigation that may be brought to trial in the federal courts.
Finally, we the people have the power of defining the Constitution through the ballot box, albeit that power has seldom been used directly to affect judicial decisions. The most startling exception was in 1936, when, not long after the election, the Supreme Court in obvious response to public opinion began to yield to the President’s and Congress’s constitutional views. But that example was dramatic and virtually without parallel. Indeed, few citizens consciously or systematically utilize their ballots to register constitutional interpretations. This omission leaves officials to resolve most conflicts themselves, but senators, representatives, and Presidents do so subject to the disapproval of voters, whereas the Court is politically unaccountable.
True, the Constitution contains a provision for amendment by calling a convention, but the framers, having themselves violated their instructions by overthrowing rather than revising the Articles of Confederation, were loath to expose their great work to a second convention. And despite the number of states that in recent years have gone on record to call for such a second convention, the wording of the calls are varied and imprecise and the dangers to the durable structure of the nation seem too great to bear the risk.
In the landmark case of Cohens v. Virginia (1821), Chief Justice John Marshall spoke of a constitution as having been “framed for ages to come” and as being “designed to approach immortality as nearly as human institutions can approach it.” These are appropriate words for the Constitution’s bicentennial celebration. An issue-laden document, always a storm center of dissent, the Constitution is, paradoxically, still held in affection, even veneration, by the people of America.
In the century ahead it should continue to function so long as it can meet the objectives that were set forth in the Preamble in the name of “We the People”: to “insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. …” For two hundred complex years it has remained steadfast to these goals. No worthier aims can be set for the great charter as it moves into its third century.