On September 17, 1787, over two centuries ago, just about two hundred and twenty-three years to be exact, 38 courageous men, all but three of the 41 Delegates to the Constitutional Convention, gathered in Philadelphia to sign the newly created Constitution of the United States. The signing followed the Constitution's ratification by nine of the then thirteen states. That day, September 17, is now celebrated as Constitution Day. Leading up to that celebration I would like in the next few weeks to engage in a discourse about our Constitution.
Unifying and yet controversial is how I would describe our Constitution and the law we call constitutional. The document is revered for its uniqueness and for its ability to hold our nation together through good times and bad. And yet, the Constitution also sparks more debate and controversy among Americans than just about any other document. Try to think of a controversial social or political issue in the past three decades that hasn't in one way or another involved someone brandishing the Constitution as a weapon or shield.
Never being one to shy away from debate and controversy, each of which can be healthy and mentally stimulating when engaged in fairly and with courtesy and respect, I believe that this will be a lot of fun. So here we go. Let's start with the nature and history of the Constitution.
George Washington said of the Constitution in his farewell address in 1796, that it “has a just claim to [our] confidence and respect” because it is “the offspring of our choice, uninfluenced, unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers uniting security with energy, and containing, within itself, a provision for its own amendment.“ Eighty years later, William Gladstone, four time British Prime Minister, echoed Washington’s sentiment when he described our Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.”
The greatness of our Constitution must be evaluated in context. The document came on the heels of our Declaration of Independence. Although the Declaration does not have any controlling impact upon constitutional law, it should be considered in any discussion about the enduring greatness of the Constitution. It has been said that “[t]he Declaration provided the philosophical basis for a government that exercises legitimate power by ‘the consent of the governed,’ and it defined the conditions of a free people, whose rights and liberty were derived from their Creator.”
Jefferson’s revered words, drawn from Lockean theory, set the stage for the creation of our Constitution: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men deriving their just powers from the consent of the governed.” The Declaration pronounced the canon of human liberty. The Constitution demarcated the structure and the rules of operation for a government founded upon that canon.
The Constitution is not just a set of suggestions, it is a binding agreement between the People, the Federal Government that it formed, and the States that exist within the Union. As Justice Joseph Story wrote in his 1840 “Familiar Exposition of the Constitution,” “[w]e shall treat [our Constitution], not as a mere compact, or league, or confederacy, existing at the mere will of any one or more of the States, during their good pleasure; but (as it purports on its face to be) as a Constitution of Government, framed and adopted by the people of the United States, and obligatory upon all the States, until it is altered, amended, or abolished by the people, in the manner pointed out in the instrument itself.” Story wrote these words during the early rising storm of the years that led to the Civil War.
On September 28, 1787, Congress sent the Constitution to the states for ratification by popular conventions. The first state to ratify the Constitution was Delaware on December 7, 1787. Rhode Island was the last of the original thirteen states to ratify the Constitution, two and one-half years later, on May 29, 1790. The original document did not contain a Bill of Rights. The lack of a Bill of Rights was a source of heated debate during the popular conventions and served as the rallying-cry of the Anti-Federalists who opposed the Constitution.
It was during the constitutional ratification debates in New York that James Madison, Alexander Hamilton, and John Jay wrote the collection of newspaper essays, now collected and known as the Federalist Papers. Successful ratification of the Constitution was won only after advocates of the document, led by Madison, agreed to add a Bill of Rights in the first following session of Congress.
As the Convention assembled on that great day, September 17, 1787, the finished document was read aloud to the delegates one last time. When the reading was finished, Benjamin Franklin, then eighty-one, rose and declared his support for the adoption of the Constitution “with all its faults, if they are such.”
Franklin commented further:
“I doubt too whether any other convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies . . . . Thus, I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.”
It was as the Delegates came forward to sign the completed document, one at a time, that Madison recorded Franklin’s final famous comment. Referring to the sun on the back of Washington’s chair, Franklin said that he had --
“often in the course of the Session, and the vicissitudes of of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting sun.”
And, for 223 years thereafter, the sun has risen and continues to rise on our great nation. I look forward to exploring and honoring our Constitution with you.