Making the Constitution

The making of the U.S. Constitution is perhaps one of the most crucial lessons in the powers of hindsight and the importance of contextualizing history. People often approach the history of the Constitution with a specific agenda in mind: they want to prove that the Founding Fathers would be on their side in any number of political or social debates. Yet most historians would warn you that to truly understand any given time period, you need to put yourself in the context of the people who were living at the time.

The framers of the Constitution had no idea that their experiment would work, that the document they drafted in Philadelphia in the summer of 1787 would endure for centuries, expanding federal powers without violating revolutionary principles. The Constitution was a bold and highly controversial experiment that provided a framework for an efficient and stable, if imperfect, national government. It stood the test of time, thanks in part to the compromises it embodied and in part to the subsequent amendments that resolved some of its most notable contradictions, slavery foremost among them.

Despite all of the good reasons below as to why you should care about the making of the Constitution, here is a recent and very direct example. In 2002, an eighteen-year-old high school student named Joseph Frederick in Juneau, Alaska, unfurled a fourteen-foot-long banner just outside school grounds amid the crowd that had gathered to watch the Olympic torch relay pass through town on its way to the Winter Games at Salt Lake City, Utah. The banner referred to marijuana use and read "Bong Hits for Jesus." Even though he was standing on a public sidewalk, the school suspended Frederick for ten days because they said he and other students were participating in a school-sponsored event. They had been let out of classes and were accompanied by their teachers. By refusing when the principal ordered him to take down the banner, Frederick was—according to school officials—violating a school policy by promoting illegal drug use (as the school board's lawyers noted in their Supreme Court appeal, "Bong is a slang term for drug paraphernalia"). Frederick sued the school board on the grounds that his First Amendment right to free speech was infringed upon. The 9th U.S. Circuit Court of Appeals in San Francisco, California, agreed with him. They concluded that the school could not show Frederick had disrupted the school's educational mission by displaying a banner off campus. The three-judge panel of the 9th Circuit relied on the precedent of the Supreme Court's famous 1969 "Tinker" case, in which two Iowa high students were allowed to continue wearing anti-Vietnam War armbands. The Juneau school board appealed the decision to the Supreme Court, and on 25 June 2007, the Court decided in five-to-four favor of the school board in the case of Morse v. Frederick. The majority—represented by Chief Justice John Roberts—argued that since "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use," the school did not violate Frederick's First Amendment rights by confiscating his banner and suspending him.

Dissenting Justice John Paul Stevens (who was joined by Stephen Breyer, Ruth Bader Ginsburg, and David Souter) instead wrote that "Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of whole cloth [essentially this means "out of thin air"] a special First Amendment rule permitting the censorship of any student speech that mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug message." Given the fact that the 9th Circuit and the Supreme Court disagreed, and that this case was decided by the closest possible majority on the Supreme Court itself, it demonstrates the ongoing debates—in the legal field and far beyond—over the meaning or means of interpreting the Constitution. There are often high stakes involved in these debates, as evidenced in the Frederick case.¹

Maybe you've heard the news or talk radio or your parents (or you and your friends!) discussing recent governmental issues. Maybe some of those conversations involve the concept of constitutionality. As in, is it constitutional for the president to secretly wiretap people's phone lines without a warrant? Or, is it constitutional for the country to go to war without a declaration from Congress? And just how much power is the executive branch supposed to have, anyway? For the answer to all these questions and more—including, what's the difference between the House and the Senate, why do we need both, what the hell is the electoral college, and what brought about the Constitution in the first place—you should read on. Because it's all here: the foundation of American government as we know it.

Just imagine trying to do this from scratch. Forget everything you know about the three branches of government, the term limits for the president and congressional representatives, the Supreme Court's right of judicial review, Congress's ability to override a presidential veto with a two-thirds majority, and so on. Now visualize yourself attempting to invent all of that. Amidst a great deal of domestic strife, because your current government is not working and you've got an empty Treasury, a broke, pissed off army to deal with, and broke, pissed off citizens who are waging armed insurrections because they are desperate. Sure, you've got some leads: the Magna Carta is a good beginning when it comes to guaranteeing all citizens certain fundamental rights, and doing it in writing.

You know that you want a republican government—but how far do you take that? Is it wise, or even feasible, to allow the white male voters to directly choose the president, the senators, and the representatives? How do you satisfy both the large and small states, the slaveholding states and the free states, and the conflicting claims that many of them hold on western territory? Who gets to become a citizen? How do you rework the government to make it more powerful and efficient, without leaving open the possibility that it will become too centralized and autocratic one day? What is necessary in order to ensure a balanced but effective government, now and forever? These are the dilemmas the framers faced.

They tried their best, and the matters they left undone were addressed using the blueprint they left for us. The Bill of Rights helped to assure suspicious citizens that their individual liberties would always be protected. The ratification process spelled out in Article V provided a means for Americans to revise or change this government blueprint as they saw fit; thus the Constitution would evolve over time along with the rest of the country, through the abolition of slavery to the enfranchisement of blacks, then women, and then everyone eighteen and over. It was not a perfect governmental structure, but then, what is? It was certainly an impressive achievement, and many of today's debates on current affairs invoke the Constitution because it remains the one standard which most Americans still want to respect and uphold.