is the us constitution fit for purpose essay

Faculty Scholarship

‘our original constitution was both brilliant and highly flawed’.

Harvard Law Professor of Practice Alan Jenkins on the U.S. Constitution and its treatment of race, how to guarantee fundamental rights, and why lawyers should be better communicators

On September 17, 1787, delegates at the Philadelphia Convention signed what became the U.S. Constitution, replacing the previous organizing document, the Articles of Confederation, which many had come to see as too weak and inadequate for the nascent nation. At once offering Americans the promise of freedom, and excluding Black and indigenous people, women, and other marginalized groups, the new Constitution has nonetheless endured — and evolved — over the last 234 years.

In fact, despite the charter’s inherent contradictions, says Harvard Law School Professor of Practice Alan Jenkins ’89 , it “beautifully articulated the notion that government’s power flows from the people” — people including African Americans and many others who have continued to fight to realize its guarantee of liberty and equal justice for all.

This Constitution Day, Jenkins spoke with Harvard Law Today about his thoughts on the document’s genius and cruelty, the Supreme Court’s important role, and how we can best harness the Constitution’s power to “afford full equality and opportunity for everyone.”

Harvard Law Today: What did the Constitution say about race when it was first adopted, and how has that conception changed over time?

Alan Jenkins: Our original Constitution was both brilliant and highly flawed. It brilliantly articulated the idea of fundamental equality — human equality. It beautifully articulated the notion that government’s power flows from the people, and that government serves the people. But it was fundamentally flawed in preserving and propping up slavery, that ultimate form of inequality. And for excluding women, non-white people, indigenous people, non-property owners, from the definition of “the people.” From a racial justice standpoint, it was highly flawed, moreover, because it explicitly provided for the return of people who had escaped from slavery.

The Constitution has been amended, and in my view, improved over time through those amendments, but we are still living with some of those fundamental contradictions of our original Constitution.

HLT: In a prior interview , you mentioned that, in contrast to ours, South Africa’s constitution explicitly allows for laws aimed at advancing equity for historically disadvantaged groups. In your opinion, assuming that that amendment of the U.S. Constitution was politically possible, is that provision something you think we could benefit from? What other changes do you think would be beneficial?

Jenkins: The South African constitution is a remarkable document, in part because it draws from the wisdom of the world’s experiences as well as its own national experience with extreme racial discrimination and ways of overcoming it. It explicitly provides that race can be considered for the narrow purpose of addressing racial discrimination and its aftermath of inequity. It provides for an explicit right to housing, a right to education, a right to basic economic survival — things that our Constitution does not explicitly provide for.

In the U.S., during the Warren Court period, we saw the Supreme Court moving towards recognizing that an absolute deprivation of resources in a nation of plenty might, when it comes at the hands of the government, actually violate our own Constitution.

I do think that our Constitution would benefit from a more explicit articulation of fundamental economic rights. But I also think that there are other ways of accomplishing that. President Roosevelt, in his Four Freedoms speech, talked about “freedom from want” as a fundamental freedom. The international human rights system, which the United States helped to craft at the end of World War II and after the horrors of the Holocaust and depravation of the Great Depression, also provides explicitly for basic economic rights. We actually have the fundamental principles in place to recognize some of those economic, social, and cultural rights that the South African constitution recognizes explicitly. It’s just a question of political will and of implementation.

HLT: Do you think it should be easier to amend the U.S. Constitution, or do you think that would create a slippery slope problem?

Jenkins: I agree with the framers’ decision to make it difficult to change our Constitution. Our Constitution should not be changed based on political whim. It should be changed only when there is a broad societal agreement that an improvement or a change is needed. However, I also think that in moments like today, where society is seeing a mismatch between how the Constitution is interpreted and the real challenges we are facing as a nation, that this may be a time when a constitutional amendment is warranted.

HLT: You have also previously made the point that, in the recent past, the Supreme Court has very narrowly interpreted existing provisions in the Constitution to overturn laws like the Voting Rights Act. Can you say more about the ways in which you believe SCOTUS’s interpretation of the Constitution has had an impact?

Jenkins: Our Constitution, as it exists now, provides us with the tools and resources and principles to afford full equality and opportunity for everyone in our country. Yet there has been a trend for at least 40 years of presidents appointing justices specifically because of their restrictive interpretation of the Constitution and their likelihood of resisting full and equal justice and opportunity through our laws.

In my opinion, that is a much bigger barrier than the Constitution itself. I think our Constitution gives us most of what we need to enjoy equal justice and opportunity and the full range of human rights. But we see not only Supreme Court justices, but many courts around the country, that are either hesitant or actively opposed to making it so.

HLT: Given those barriers, do you think that reforms are needed to the process of appointing justices to the Supreme Court, as a presidential commission is currently studying?

Jenkins: I think the best solution is to build the political will to appoint and confirm justices who are committed to the full application of our Constitution to uphold human rights and equality. That is really what we should all be striving for.

I think we have seen specific efforts in the last couple of years to manipulate the system, and to put in place justices who are hostile to fundamental human rights, and who, at least based on historical practice, would not even have been considered previously for nomination. I think that is its own problem, and I think there are some good arguments for an immediate, one-time fix for that sort of manipulation of the system. But more broadly, I personally think the historical system that the framers chose for nominations and filling Supreme Court vacancies is probably a good one.

It’s worth noting that the size of U.S. Supreme Court has been changed multiple times. Two of those changes came right after the Civil War to ensure that the new constitutional amendments, the 13th, 14th, and 15th amendments abolishing slavery, ensuring due process and equal protection of the laws, and ensuring voting rights for Black men, would actually be applied and implemented by the federal courts and the Supreme Court. Again, that was a unique moment, because it was the end of the Civil War. It was a moment in which President Lincoln had been assassinated. And there was a new president, Andrew Johnson, who was hostile to those constitutional amendments. Congress saw fit to change the size and composition of the U.S. Supreme Court through legislation; note that they didn’t have to amend the Constitution, to make sure that those fundamental rights were respected. We may be in that kind of unique moment now.

HLT: There is a lot of ongoing debate in America today about Critical Race Theory, and sometimes it feels like people are arguing about different things. What is Critical Race Theory, and how is it applied in American law, if at all?

Jenkins: One of the godfathers of Critical Race Theory was Professor Derrick Bell, who was one of my professors at Harvard Law School when I was a student here. It really is about the idea that we can’t fully understand our Constitution and laws unless we understand their full history and development. And that we can’t understand that full history and development unless we study and understand the role that race and racial discrimination have played. Otherwise, it’s like going to see a movie and coming in at the middle of it, and expecting to understand everything that comes next. You just can’t do it, because you don’t have the context. Critical Race Theory is the idea that students of the law in particular should understand that full history, including aspects that sometimes make us uncomfortable, that sometimes haven’t been discussed in mainstream academia or textbooks, because they included uncomfortable truths.

The idea of Critical Race Theory has become a political shorthand for any kind of uncomfortable racial discussion. And most of the people who are speaking out against so called Critical Race Theory actually have no idea what it is. It has never been something that has been taught in elementary schools; it’s a relatively arcane set of legal theories that would be quite surprising to find in K-12 educational curricula. The argument is really over the fundamental principle: should we understand our entire history, including those things that may make us uncomfortable, that may cast historical figures in a more nuanced or controversial light? Or should we ignore, and in some cases, censor, that past, hide it from students?

HLT: You’re teaching a course this semester called Communication, Law and Social Justice. What is it about?

Jenkins: Before joining the Harvard Law School faculty, my most recent job was as co-founder and president of The Opportunity Agenda, an organization that uses strategic communications and cultural strategies to move hearts, minds, and policy towards greater and more equal opportunity.

My idea for this course is that you can win a lawsuit, but if you haven’t built public support for the outcomes, that legal result is going to be ignored, overturned, or forgotten. You can’t sustain victories for social justice unless you have built the public support that is needed. The primary tool for doing that is better communications and persuasive strategies. As lawyers, we are terrible at that. We learn in law school to speak a very rarefied language that only people with law degrees can understand – and that has its place. But it is exactly the wrong language for trying to explain and persuade general audiences that the policies that we seek are the right ones for our community, our nation, and our world. My course is about looking at and helping students to understand a variety of strategies, both historical and contemporary, for achieving and protecting legal outcomes through communications and cultural strategies.

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The first amendment, the declaration, the constitution, and the bill of rights.

by Jeffrey Rosen and David Rubenstein

At the National Constitution Center, you will find rare copies of the Declaration of Independence, the Constitution, and the Bill of Rights. These are the three most important documents in American history. But why are they important, and what are their similarities and differences? And how did each document, in turn, influence the next in America’s ongoing quest for liberty and equality?

There are some clear similarities among the three documents. All have preambles. All were drafted by people of similar backgrounds, generally educated white men of property. The Declaration and Constitution were drafted by a congress and a convention that met in the Pennsylvania State House in Philadelphia (now known as Independence Hall) in 1776 and 1787 respectively. The Bill of Rights was proposed by the Congress that met in Federal Hall in New York City in 1789. Thomas Jefferson was the principal drafter of the Declaration and James Madison of the Bill of Rights; Madison, along with Gouverneur Morris and James Wilson, was also one of the principal architects of the Constitution.

Most importantly, the Declaration, the Constitution, and the Bill of Rights are based on the idea that all people have certain fundamental rights that governments are created to protect. Those rights include common law rights, which come from British sources like the Magna Carta, or natural rights, which, the Founders believed, came from God. The Founders believed that natural rights are inherent in all people by virtue of their being human and that certain of these rights are unalienable, meaning they cannot be surrendered to government under any circumstances.

At the same time, the Declaration, the Constitution, and the Bill of Rights are different kinds of documents with different purposes. The Declaration was designed to justify breaking away from a government; the Constitution and Bill of Rights were designed to establish a government. The Declaration stands on its own—it has never been amended—while the Constitution has been amended 27 times. (The first ten amendments are called the Bill of Rights.) The Declaration and Bill of Rights set limitations on government; the Constitution was designed both to create an energetic government and also to constrain it. The Declaration and Bill of Rights reflect a fear of an overly centralized government imposing its will on the people of the states; the Constitution was designed to empower the central government to preserve the blessings of liberty for “We the People of the United States.” In this sense, the Declaration and Bill of Rights, on the one hand, and the Constitution, on the other, are mirror images of each other.

Despite these similarities and differences, the Declaration, the Constitution, and the Bill of Rights are, in many ways, fused together in the minds of Americans, because they represent what is best about America. They are symbols of the liberty that allows us to achieve success and of the equality that ensures that we are all equal in the eyes of the law. The Declaration of Independence made certain promises about which liberties were fundamental and inherent, but those liberties didn’t become legally enforceable until they were enumerated in the Constitution and the Bill of Rights. In other words, the fundamental freedoms of the American people were alluded to in the Declaration of Independence, implicit in the Constitution, and enumerated in the Bill of Rights. But it took the Civil War, which President Lincoln in the Gettysburg Address called “a new birth of freedom,” to vindicate the Declaration’s famous promise that “all men are created equal.” And it took the 14th Amendment to the Constitution, ratified in 1868 after the Civil War, to vindicate James Madison’s initial hope that not only the federal government but also the states would be constitutionally required to respect fundamental liberties guaranteed in the Bill of Rights—a process that continues today.

Why did Jefferson draft the Declaration of Independence?

When the Second Continental Congress convened in Philadelphia in 1775, it was far from clear that the delegates would pass a resolution to separate from Great Britain. To persuade them, someone needed to articulate why the Americans were breaking away. Congress formed a committee to do just that; members included John Adams from Massachusetts, Benjamin Franklin from Pennsylvania, Roger Sherman from Connecticut, Robert R. Livingston from New York, and Thomas Jefferson from Virginia, who at age 33 was one of the youngest delegates.

Although Jefferson disputed his account, John Adams later recalled that he had persuaded Jefferson to write the draft because Jefferson had the fewest enemies in Congress and was the best writer. (Jefferson would have gotten the job anyway—he was elected chair of the committee.) Jefferson had 17 days to produce the document and reportedly wrote a draft in a day or two. In a rented room not far from the State House, he wrote the Declaration with few books and pamphlets beside him, except for a copy of George Mason’s Virginia Declaration of Rights and the draft Virginia Constitution, which Jefferson had written himself.

The Declaration of Independence has three parts. It has a preamble, which later became the most famous part of the document but at the time was largely ignored. It has a second part that lists the sins of the King of Great Britain, and it has a third part that declares independence from Britain and that all political connections between the British Crown and the “Free and Independent States” of America should be totally dissolved.

The preamble to the Declaration of Independence contains the entire theory of American government in a single, inspiring passage:

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,—That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

When Jefferson wrote the preamble, it was largely an afterthought. Why is it so important today? It captured perfectly the essence of the ideals that would eventually define the United States. “We hold these truths to be self-evident, that all men are created equal,” Jefferson began, in one of the most famous sentences in the English language. How could Jefferson write this at a time that he and other Founders who signed the Declaration owned slaves? The document was an expression of an ideal. In his personal conduct, Jefferson violated it. But the ideal—“that all men are created equal”—came to take on a life of its own and is now considered the most perfect embodiment of the American creed.

When Lincoln delivered the Gettysburg Address during the Civil War in November 1863, several months after the Union Army defeated Confederate forces at the Battle of Gettysburg, he took Jefferson’s language and transformed it into constitutional poetry. “Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” Lincoln declared. “Four score and seven years ago” refers to the year 1776, making clear that Lincoln was referring not to the Constitution but to Jefferson’s Declaration. Lincoln believed that the “principles of Jefferson are the definitions and axioms of free society,” as he wrote shortly before the anniversary of Jefferson’s birthday in 1859. Three years later, on the anniversary of George Washington’s birthday in 1861, Lincoln said in a speech at what by that time was being called “Independence Hall,” “I would rather be assassinated on this spot than to surrender” the principles of the Declaration of Independence.

It took the Civil War, the bloodiest war in American history, for Lincoln to begin to make Jefferson’s vision of equality a constitutional reality. After the war, the Declaration’s vision was embodied in the 13th, 14th, and 15th Amendments to the Constitution, which formally ended slavery, guaranteed all persons the “equal protection of the laws,” and gave African-American men the right to vote. At the Seneca Falls Convention in 1848, when supporters of gaining greater rights for women met, they, too, used the Declaration of Independence as a guide for drafting their Declaration of Sentiments. (Their efforts to achieve equal suffrage culminated in 1920 in the ratification of the 19th Amendment, which granted women the right to vote.) And during the civil rights movement in the 1960s, Dr. Martin Luther King, Jr. said in his famous address at the Lincoln Memorial, “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men—yes, black men as well as white men—would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness.”

In addition to its promise of equality, Jefferson’s preamble is also a promise of liberty. Like the other Founders, he was steeped in the political philosophy of the Enlightenment, in philosophers such as John Locke, Jean-Jacques Burlamaqui, Francis Hutcheson, and Montesquieu. All of them believed that people have certain unalienable and inherent rights that come from God, not government, or come simply from being human. They also believed that when people form governments, they give those governments control over certain natural rights to ensure the safety and security of other rights. Jefferson, George Mason, and the other Founders frequently spoke of the same set of rights as being natural and unalienable. They included the right to worship God “according to the dictates of conscience,” the right of “enjoyment of life and liberty,” “the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety,” and, most important of all, the right of a majority of the people to “alter and abolish” their government whenever it threatened to invade natural rights rather than protect them.

In other words, when Jefferson wrote the Declaration of Independence and began to articulate some of the rights that were ultimately enumerated in the Bill of Rights, he wasn’t inventing these rights out of thin air. On the contrary, 10 American colonies between 1606 and 1701 were granted charters that included representative assemblies and promised the colonists the basic rights of Englishmen, including a version of the promise in the Magna Carta that no freeman could be imprisoned or destroyed “except by the lawful judgment of his peers or by the law of the land.” This legacy kindled the colonists’ hatred of arbitrary authority, which allowed the King to seize their bodies or property on his own say-so. In the revolutionary period, the galvanizing examples of government overreaching were the “general warrants” and “writs of assistance” that authorized the King’s agents to break into the homes of scores of innocent citizens in an indiscriminate search for the anonymous authors of pamphlets criticizing the King. Writs of assistance, for example, authorized customs officers “to break open doors, Chests, Trunks, and other Packages” in a search for stolen goods, without specifying either the goods to be seized or the houses to be searched. In a famous attack on the constitutionality of writs of assistance in 1761, prominent lawyer James Otis said, “It is a power that places the liberty of every man in the hands of every petty officer.”

As members of the Continental Congress contemplated independence in May and June of 1776, many colonies were dissolving their charters with England. As the actual vote on independence approached, a few colonies were issuing their own declarations of independence and bills of rights. The Virginia Declaration of Rights of 1776, written by George Mason, began by declaring that “all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.” 

When Jefferson wrote his famous preamble, he was restating, in more eloquent language, the philosophy of natural rights expressed in the Virginia Declaration that the Founders embraced. And when Jefferson said, in the first paragraph of the Declaration of Independence, that “[w]hen in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another,” he was recognizing the right of revolution that, the Founders believed, had to be exercised whenever a tyrannical government threatened natural rights. That’s what Jefferson meant when he said Americans had to assume “the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.”

The Declaration of Independence was a propaganda document rather than a legal one. It didn’t give any rights to anyone. It was an advertisement about why the colonists were breaking away from England. Although there was no legal reason to sign the Declaration, Jefferson and the other Founders signed it because they wanted to “mutually pledge” to each other that they were bound to support it with “our Lives, our Fortunes and our sacred Honor.” Their signatures were courageous because the signers realized they were committing treason: according to legend, after affixing his flamboyantly large signature John Hancock said that King George—or the British ministry—would be able to read his name without spectacles. But the courage of the signers shouldn’t be overstated: the names of the signers of the Declaration weren’t published until after General George Washington won crucial battles at Trenton and Princeton and it was clear that the war for independence was going well.

What is the relationship between the Declaration of Independence and the Constitution?

In the years between 1776 and 1787, most of the 13 states drafted constitutions that contained a declaration of rights within the body of the document or as a separate provision at the beginning, many of them listing the same natural rights that Jefferson had embraced in the Declaration. When it came time to form a central government in 1776, the Continental Congress began to create a weak union governed by the Articles of Confederation. (The Articles of Confederation was sent to the states for ratification in 1777; it was formally adopted in 1781.) The goal was to avoid a powerful federal government with the ability to invade rights and to threaten private property, as the King’s agents had done with the hated general warrants and writs of assistance. But the Articles of Confederation proved too weak for bringing together a fledgling nation that needed both to wage war and to manage the economy. Supporters of a stronger central government, like James Madison, lamented the inability of the government under the Articles to curb the excesses of economic populism that were afflicting the states, such as Shays’ Rebellion in Massachusetts, where farmers shut down the courts demanding debt relief. As a result, Madison and others gathered in Philadelphia in 1787 with the goal of creating a stronger, but still limited, federal government.

The Constitutional Convention was held in Philadelphia in the Pennsylvania State House, in the room where the Declaration of Independence was adopted. Jefferson, who was in France at the time, wasn’t among them. After four months of debate, the delegates produced a constitution.

During the final days of debate, delegates George Mason and Elbridge Gerry objected that the Constitution, too, should include a bill of rights to protect the fundamental liberties of the people against the newly empowered president and Congress. Their motion was swiftly—and unanimously—defeated; a debate over what rights to include could go on for weeks, and the delegates were tired and wanted to go home. The Constitution was approved by the Constitutional Convention and sent to the states for ratification without a bill of rights.

During the ratification process, which took around 10 months (the Constitution took effect when New Hampshire became the ninth state to ratify in late June 1788; the 13th state, Rhode Island, would not join the union until May 1790), many state ratifying conventions proposed amendments specifying the rights that Jefferson had recognized in the Declaration and that they protected in their own state constitutions. James Madison and other supporters of the Constitution initially resisted the need for a bill of rights as either unnecessary (because the federal government was granted no power to abridge individual liberty) or dangerous (since it implied that the federal government had the power to infringe liberty in the first place). In the face of a groundswell of popular demand for a bill of rights, Madison changed his mind and introduced a bill of rights in Congress on June 8, 1789.

Madison was least concerned by “abuse in the executive department,” which he predicted would be the weakest branch of government. He was more worried about abuse by Congress, because he viewed the legislative branch as “the most powerful, and most likely to be abused, because it is under the least control.” (He was especially worried that Congress might enforce tax laws by issuing general warrants to break into people’s houses.) But in his view “the great danger lies rather in the abuse of the community than in the legislative body”—in other words, local majorities who would take over state governments and threaten the fundamental rights of minorities, including creditors and property holders. For this reason, the proposed amendment that Madison considered “the most valuable amendment in the whole list” would have prohibited the state governments from abridging freedom of conscience, speech, and the press, as well as trial by jury in criminal cases. Madison’s favorite amendment was eliminated by the Senate and not resurrected until after the Civil War, when the 14th Amendment required state governments to respect basic civil and economic liberties.

In the end, by pulling from the amendments proposed by state ratifying conventions and Mason’s Virginia Declaration of Rights, Madison proposed 19 amendments to the Constitution. Congress approved 12 amendments to be sent to the states for ratification. Only 10 of the amendments were ultimately ratified in 1791 and became the Bill of Rights. The first of the two amendments that failed was intended to guarantee small congressional districts to ensure that representatives remained close to the people. The other would have prohibited senators and representatives from giving themselves a pay raise unless it went into effect at the start of the next Congress. (This latter amendment was finally ratified in 1992 and became the 27th Amendment.)

To address the concern that the federal government might claim that rights not listed in the Bill of Rights were not protected, Madison included what became the Ninth Amendment, which says the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” To ensure that Congress would be viewed as a government of limited rather than unlimited powers, he included the 10th Amendment, which says the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because of the first Congress’s focus on protecting people from the kinds of threats to liberty they had experienced at the hands of King George, the rights listed in the first eight amendments of the Bill of Rights apply only to the federal government, not to the states or to private companies. (One of the amendments submitted by the North Carolina ratifying convention but not included by Madison in his proposal to Congress would have prohibited Congress from establishing monopolies or companies with “exclusive advantages of commerce.”)

But the protections in the Bill of Rights—forbidding Congress from abridging free speech, for example, or conducting unreasonable searches and seizures—were largely ignored by the courts for the first 100 years after the Bill of Rights was ratified in 1791. Like the preamble to the Declaration, the Bill of Rights was largely a promissory note. It wasn’t until the 20th century, when the Supreme Court began vigorously to apply the Bill of Rights against the states, that the document became the centerpiece of contemporary struggles over liberty and equality. The Bill of Rights became a document that defends not only majorities of the people against an overreaching federal government but also minorities against overreaching state governments. Today, there are debates over whether the federal government has become too powerful in threatening fundamental liberties. There are also debates about how to protect the least powerful in society against the tyranny of local majorities.

What do we know about the documentary history of the rare copies of the Declaration of Independence, the Constitution, and the Bill of Rights on display at the National Constitution Center?

Generally, when people think about the original Declaration, they are referring to the official engrossed —or final—copy now in the National Archives. That is the one that John Hancock, Thomas Jefferson, and most of the other members of the Second Continental Congress signed, state by state, on August 2, 1776. John Dunlap, a Philadelphia printer, published the official printing of the Declaration ordered by Congress, known as the Dunlap Broadside, on the night of July 4th and the morning of July 5th. About 200 copies are believed to have been printed. At least 27 are known to survive.

The document on display at the National Constitution Center is known as a Stone Engraving, after the engraver William J. Stone, whom then Secretary of State John Quincy Adams commissioned in 1820 to create a precise facsimile of the original engrossed version of the Declaration. That manuscript had become faded and worn after nearly 45 years of travel with Congress between Philadelphia, New York City, and eventually Washington, D.C., among other places, including Leesburg, Virginia, where it was rolled up and hidden during the British invasion of the capital in 1814.

To ensure that future generations would have a clear image of the original Declaration, William Stone made copies of the document before it faded away entirely. Historians dispute how Stone rendered the facsimiles. He kept the original Declaration in his shop for up to three years and may have used a process that involved taking a wet cloth, putting it on the original document, and creating a perfect copy by taking off half the ink. He would have then put the ink on a copper plate to do the etching (though he might have, instead, traced the entire document by hand without making a press copy). Stone used the copper plate to print 200 first edition engravings as well as one copy for himself in 1823, selling the plate and the engravings to the State Department. John Quincy Adams sent copies to each of the living signers of the Declaration (there were three at the time), public officials like President James Monroe, Congress, other executive departments, governors and state legislatures, and official repositories such as universities. The Stone engravings give us the clearest idea of what the original engrossed Declaration looked like on the day it was signed.

The Constitution, too, has an original engrossed, handwritten version as well as a printing of the final document. John Dunlap, who also served as the official printer of the Declaration, and his partner David C. Claypoole, who worked with him to publish the Pennsylvania Packet and Daily Advertiser , America’s first successful daily newspaper founded by Dunlap in 1771, secretly printed copies of the convention’s committee reports for the delegates to review, debate, and make changes. At the end of the day on September 15, 1787, after all of the delegations present had approved the Constitution, the convention ordered it engrossed on parchment. Jacob Shallus, assistant clerk to the Pennsylvania legislature, spent the rest of the weekend preparing the engrossed copy (now in the National Archives), while Dunlap and Claypoole were ordered to print 500 copies of the final text for distribution to the delegates, Congress, and the states. The engrossed copy was signed on Monday, September 17th, which is now celebrated as Constitution Day.

The copy of the Constitution on display at the National Constitution Center was published in Dunlap and Claypoole’s Pennsylvania Packet newspaper on September 19, 1787. Because it was the first public printing of the document—the first time Americans saw the Constitution—scholars consider its constitutional significance to be especially profound. The publication of the Constitution in the Pennsylvania Packet was the first opportunity for “We the People of the United States” to read the Constitution that had been drafted and would later be ratified in their name.

The handwritten Constitution inspires awe, but the first public printing reminds us that it was only the ratification of the document by “We the People” that made the Constitution the supreme law of the land. As James Madison emphasized in The Federalist No. 40 in 1788, the delegates to the Constitutional Convention had “proposed a Constitution which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.” Only 25 copies of the Pennsylvania Packet Constitution are known to have survived.

Finally, there is the Bill of Rights. On October 2, 1789, Congress sent 12 proposed amendments to the Constitution to the states for ratification—including the 10 that would come to be known as the Bill of Rights. There were 14 original manuscript copies, including the one displayed at the National Constitution Center—one for the federal government and one for each of the 13 states.

Twelve of the 14 copies are known to have survived. Two copies —those of the federal government and Delaware — are in the National Archives. Eight states currently have their original documents; Georgia, Maryland, New York, and Pennsylvania do not. There are two existing unidentified copies, one held by the Library of Congress and one held by The New York Public Library. The copy on display at the National Constitution Center is from the collections of The New York Public Library and will be on display for several years through an agreement between the Library and the Commonwealth of Pennsylvania; the display coincides with the 225th anniversary of the proposal and ratification of the Bill of Rights.

The Declaration, the Constitution, and the Bill of Rights are the three most important documents in American history because they express the ideals that define “We the People of the United States” and inspire free people around the world.

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IS THE US CONSTITUTION NO LONGER FIT FOR PURPOSE?

• Created by: ToniLove1710
• Created on: 11-05-18 14:01

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• Constitutional frameworks of US government

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Background Essay: “A Glorious Liberty Document”

Background essay: “a glorious liberty document:” the u.s. constitution and its principles.

Guiding Questions: How are republican principles of limited government, separation of powers, and checks and balances reflected in the U.S. Constitution?

• I can identify the ways the Founders tried to limit the power of the government.
• I can explain how the principles of government in the Constitution limit the power of the government.
• I can explain how the Constitution protects liberty.

Essential Vocabulary

Introduction

In 1852, abolitionist Frederick Douglass gave a speech on the meaning of the Fourth of July. He addressed the inequalities and injustices for Black Americans that made them feel they did not belong and had no reason to celebrate the holiday. However, he also stated his belief that the Constitution was “a glorious liberty document.” Douglass believed that the document created a constitutional government with the central purpose of protecting liberty and a free society for all Americans.

The Founders of the Constitution wanted to build a new and enduring representative government based on the authority of the people. Important constitutional principles guided their work at the Constitutional Convention during the summer of 1787. The balancing act of including these principles was difficult but necessary to protect the liberties of the people. Given their assumptions about human nature, and always keeping in mind the ideals of the Declaration of Independence, the Founders created a Constitution rooted in sound principles of government.

Human Nature and Limited Government

The Founders’ understanding of human nature determined the kind of government they created. In Federalist No. 51, James Madison asked, “What is government itself, but the greatest of all reflections on human nature?” The Founders believed that humans were flawed but capable of virtue. Therefore, humans must be allowed to govern themselves, but that government had to be limited and controlled by the people, or liberty would be lost.

The Constitution defines the powers of the national government. Some powers are enumerated powers , or specifically listed. Others are implied powers or not explicitly listed. These are powers that relate to other powers and are therefore implied. For example, the power to raise an army for defense implicitly includes the power to raise an air force. The Founders wanted to strengthen the national government over what existed under the Articles of Confederation, but they also wanted to limit the powers of that government.

Republican Government and Popular Sovereignty

Based upon the Enlightenment ideas of John Locke, the Declaration asserted that just governments derive their powers from the consent of the governed and thus laid the basis for American self-government. This is the principle of popular sovereignty , which means the people hold ultimate authority. The authority of the people themselves is the greatest limit on the power of the government. In Federalist No. 39 , Madison defined a republic as a government that derives its powers from the people and is governed by representatives elected by the people to serve for a defined period.

The republican principle of self-government guided the Founders in creating the new constitutional government. The Preamble begins, “We the People,” and lists the guiding principles of government. The Constitution also provides for defined terms of office, including two years for the House of Representatives, four years for the president, and six years for the Senate. The most republican feature of the Constitution is the predominance of the legislative branch, which is closest to the people.

Separation of Powers

The Founders trusted the people and their representatives in the new government but created additional tools to prevent government from amassing too much power. Madison made it clear in Federalist No. 48 that the people cannot rely on mere “parchment barriers,” limits written on paper, to control government. Government is most effectively limited through well-founded institutions. The Founders chose to divide power as the best way to avoid tyranny and to ensure the rights of the people are protected. The Constitution contains many examples of the separation of powers . Each division of government exercises distinct powers to carry out its functions and to prevent the accumulation of power. The Congress is divided into two houses—a House of Representatives and a Senate—in a principle called bicameralism. The national government is divided into three branches with different powers and functions to prevent any one branch from becoming too powerful. A legislature makes the law, an executive enforces the law, and a judiciary interprets the law. Some specific constitutional examples are Congress’s power to declare war, the president’s power to make treaties, and the courts’ power to hear cases resulting from legal disputes. The government is also divided into different levels—national, state, and local—to separate power and limit government. This principle of different levels of government having their respective powers is called federalism .

Checks and Balances

Another central device limiting the power of the national government is the provision for the three branches to check and balance each other’s powers. The Constitution contains many such examples of checks and balances . Congress may pass a law, but the president has to sign or veto it. The president can make treaties, but the Senate has to ratify them. The Supreme Court can review a congressional law or an executive order. Another example is that the House can impeach a president and the Senate can remove a president from office if found guilty in a trial presided over by the chief justice of the Supreme Court. There are numerous other examples that would make a very long list.

The division of power among different levels of government is called federalism. As Madison described in Federalist No. 39 , the Constitution is a mixture of the national and the federal principles. In other words, sometimes the national government has exclusive power, and at other times, the national government shares power with the states. Some examples of federalism from the Constitution include the ratification process for the document itself. The people and their representatives had to decide whether to ratify, or approve, the Constitution in popular ratifying [approving] conventions in the states. The amendment process includes ratification by three-quarters of state legislatures or state conventions. Structuring these processes through the states ensures that approval of and changes to the national government are balanced among the states. Similarly, the Senate equally comprises two senators per state, who were originally elected by state legislatures. The Electoral College gives the states a voice in presidential elections through electors the states choose. These provisions also ensure that though the federal government is supreme, the states have a meaningful role in the system.

In the American federal system, both the national and state governments have sovereignty. In general, the national government is sovereign over national matters, such as national defense, foreign trade, and immigration, while states are sovereign over local matters, including basic rules of public order. As Madison noted in Federalist No. 45 , “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In the federal system, the ultimate power to make decisions for the entire nation rests exclusively with the national government, which, when operating under its proper jurisdiction,is supreme in its enumerated powers. Article VI of the Constitution states that the Constitution, all constitutional laws, and all treaties are the supreme law of the land. More generally, the Constitution empowers the national government to govern for the entire nation. It makes the laws for the country. It makes decisions related to war and peace and conducts relations with foreign nations. It regulates trade between the states and settles disputes among them.

Constitutional Government

American constitutional government is rooted in the ideas of limited government, popular sovereignty, separation of powers, checks and balances, and federalism. These ideas protect the liberties of the people and their right to govern themselves. The Constitution contains words and principles that have the flexibility to respond to centuries of social, economic, and technological change. While the text of the Constitution has words that should be adhered to closely, they are hardly etched in marble. Besides the amendment process that offers a constitutional means of change over time, the American people and their representatives breathe life into the meaning of their Founding documents. They have done so for more than two centuries, through civil dialogue, debate, and deliberation, to reason through the often contested meaning of the Constitution.

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Federalist Papers and the Constitution

During the late 1780s, the United States faced significant challenges with its initial governing framework, the Articles of Confederation. These issues prompted the creation of the Federalist Papers, a series of essays aimed at advocating for a stronger central government under the newly proposed Constitution. This article will examine the purpose, key arguments, and lasting impact of these influential writings.

Background and Purpose of the Federalist Papers

The Articles of Confederation, though a pioneer effort, left Congress without the power to tax or regulate interstate commerce, making it difficult to pay off Revolutionary War debts and curb internal squabbles among states.

In May 1787, America's brightest political minds convened in Philadelphia and created the Constitution—a document establishing a robust central government with legislative, executive, and judicial branches. However, before it could take effect, the Constitution needed ratification from nine of the thirteen states, facing opposition from critics known as Anti-Federalists.

The Federalist Papers, a series of 85 essays written by Alexander Hamilton , James Madison , and John Jay under the pseudonym "Publius," aimed to calm fears and win support for the Constitution. Hamilton initiated the project, recruiting Madison and Jay to contribute. Madison drafted substantial portions of the Constitution and provided detailed defenses, while Jay, despite health issues, also contributed essays.

The Federalist Papers systematically dismantled the opposition's arguments and explained the Constitution's provisions in detail. They gained national attention, were reprinted in newspapers across the country, and eventually collated into two volumes for broader distribution.

Hamilton emphasized the necessity of a central authority with the power to tax and enforce laws, citing specific failures under the Articles like the inability to generate revenue or maintain public order. Jay addressed the need for unity and the inadequacies of confederation in foreign diplomacy.

The Federalist Papers provided the framework needed to understand and eventually ratify the Constitution, remaining essential reading for anyone interested in the foundations of the American political system.

Key Arguments in the Federalist Papers

Among the key arguments presented in the Federalist Papers, three themes stand out:

• The need for a stronger central government
• The importance of checks and balances
• The dangers of factionalism

Federalist No. 23 , written by Alexander Hamilton, argued for a robust central government, citing the weaknesses of the Articles of Confederation. Hamilton contended that empowering the central government with the means to enforce laws and collect taxes was essential for the Union's survival and prosperity.

In Federalist No. 51 , James Madison addressed the principle of checks and balances, arguing that the structure of the new government would prevent any single branch from usurping unrestrained power. Each branch—executive, legislative, and judicial—would have the means and motivation to check the power of the others, safeguarding liberty.

Federalist No. 10 , also by Madison, delved into the dangers posed by factions—groups united by a common interest adverse to the rights of others or the interests of the community. Madison acknowledged that factions are inherent within any free society and cannot be eliminated without destroying liberty. He argued that a well-constructed Union would break and control the violence of faction by filtering their influence through a large republic.

Hamilton's Federalist No. 78 brought the concept of judicial review to the forefront, establishing the judiciary as a guardian of the Constitution and essential for interpreting laws and checking the actions of the legislature and executive branches. 1

The Federalist Papers meticulously dismantled Anti-Federalist criticisms and showcased how the proposed system would create a stable and balanced government capable of both governing effectively and protecting individual rights. These essays remain seminal works for understanding the underpinnings of the United States Constitution and the brilliance of the Founding Fathers.

Analysis of Federalist 10 and Federalist 51

Federalist 10 and Federalist 51 are two of the most influential essays within the Federalist Papers, elucidating fundamental principles that continue to support the American political system. They were carefully crafted to address the concerns of Anti-Federalists who feared that the new Constitution might pave the way for tyranny and undermine individual liberties.

In Federalist 10 , James Madison addresses the inherent dangers posed by factions. He argues that a large republic is the best defense against their menace, as it becomes increasingly challenging for any single faction to dominate in a sprawling and diverse nation. The proposed Constitution provides a systemic safeguard against factionalism by implementing a representative form of government, where elected representatives act as a filtering mechanism.

Federalist 51 further elaborates on how the structure of the new government ensures the protection of individual rights through a system of checks and balances. Madison supports the division of government into three coequal branches, each equipped with sufficient autonomy and authority to check the others. He asserts that ambition must be made to counteract ambition, emphasizing that the self-interest of individuals within each branch would serve as a natural check on the others. 2

Madison also delves into the need for a bicameral legislature, comprising the House of Representatives and the Senate. This dual structure aims to balance the demands of the majority with the necessity of protecting minority rights, thereby preventing majoritarian tyranny.

Together, Federalist 10 and Federalist 51 form a comprehensive blueprint for a resilient and balanced government. Madison's insights address both the internal and external mechanisms necessary to guard against tyranny and preserve individual liberties. These essays speak to the enduring principles that have guided the American republic since its inception, proving the timeless wisdom of the Founding Fathers and the genius of the American Constitution.

Impact and Legacy of the Federalist Papers

The Federalist Papers had an immediate and profound impact on the ratification debates, particularly in New York, where opposition to the Constitution was fierce and vocal. Alexander Hamilton, a native of New York, understood the weight of these objections and recognized that New York's support was crucial for the Constitution's success, given the state's economic influence and strategic location. The essays were carefully crafted to address New Yorkers' specific concerns and to persuade undecided delegates.

The comprehensive detail and logical rigor of the Federalist Papers succeeded in swaying public opinion. They systematically addressed Anti-Federalist critiques, such as the fear that a strong central government would trample individual liberties. Hamilton, Madison, and Jay argued for the necessity of a powerful, yet balanced federal system, capable of uniting the states and ensuring both national security and economic stability.

In New York, the Federalist essays began appearing in newspapers in late 1787 and continued into 1788. Despite opposition, especially from influential Anti-Federalists like Governor George Clinton, the arguments laid out by "Publius" played a critical role in turning the tide. They provided Federalists with a potent arsenal of arguments to counter Anti-Federalists at the state's ratification convention. When the time came to vote, the persuasive power of the essays contributed significantly to New York's eventual decision to ratify the Constitution by a narrow margin.

The impact of the Federalist Papers extends far beyond New York. They influenced debates across the fledgling nation, helping to build momentum towards the required nine-state ratification. Their detailed exposition of the Constitution's provisions and the philosophic principles underlying them offered critical insights for citizens and delegates in other states. The essays became indispensable tools in the broader national dialogue about what kind of government the United States should have, guiding the country towards ratification.

The long-term significance of the Federalist Papers in American political thought and constitutional interpretation is substantial. Over the centuries, they have become foundational texts for understanding the intentions of the Framers. Jurists, scholars, and lawmakers have turned to these essays for guidance on interpreting the Constitution's provisions, shaping American constitutional law. Judges, including the justices of the Supreme Court, have frequently cited these essays in landmark rulings to elucidate the Framers' intent.

The Federalist Papers have profoundly influenced the development of American political theory, contributing to discussions about federalism, republicanism, and the balance between liberty and order. Madison's arguments in Federalist No. 10 have become keystones in the study of pluralism and the mechanisms by which diverse interests can coexist within a unified political system.

The essays laid the groundwork for ongoing debates about the role of the federal government, the balance of power among its branches, and the preservation of individual liberties. They provided intellectual support for later expansions of constitutional rights through amendments and judicial interpretations.

Their legacy also includes a robust defense of judicial review and the judiciary's role as a guardian of the Constitution. Hamilton's Federalist No. 78 provided a compelling argument for judicial independence, which has been a cornerstone in maintaining the rule of law and protecting constitutional principles against transient political pressures.

The Federalist Papers were crucial in the ratification of the Constitution, particularly in the contentious atmosphere of New York's debates. Their immediate effect was to facilitate the acceptance of the new governing framework. In the long term, their meticulously argued positions have provided a lasting blueprint for constitutional interpretation, influencing American political thought and practical governance for over two centuries. The essays stand as a testament to the foresight and philosophical acumen of the Founding Fathers, continuing to illuminate the enduring principles of the United States Constitution.

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Constitution of the United States of America

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Constitution of the United States of America , the fundamental law of the U.S. federal system of government and a landmark document of the Western world. The oldest written national constitution in use, the Constitution defines the principal organs of government and their jurisdictions and the basic rights of citizens. (For a list of amendments to the U.S. Constitution, see below .)

Click here for the text of the Constitution of the United States of America .

The Constitution was written during the summer of 1787 in Philadelphia , Pennsylvania , by 55 delegates to a Constitutional Convention that was called ostensibly to amend the Articles of Confederation (1781–89), the country’s first written constitution. The Constitution was the product of political compromise after long and often rancorous debates over issues such as states’ rights , representation , and slavery . Delegates from small and large states disagreed over whether the number of representatives in the new federal legislature should be the same for each state—as was the case under the Articles of Confederation—or different depending on a state’s population ( see New Jersey Plan and Virginia Plan ). In addition, some delegates from Northern states sought to abolish slavery or, failing that, to make representation dependent on the size of a state’s free population. At the same time, some Southern delegates threatened to abandon the convention if their demands to keep slavery and the slave trade legal and to count slaves for representation purposes were not met. Eventually the framers resolved their disputes by adopting a proposal put forward by the Connecticut delegation. The Great Compromise , as it came to be known, created a bicameral legislature with a Senate , in which all states would be equally represented, and a House of Representatives , in which representation would be apportioned on the basis of a state’s free population plus three-fifths of its enslaved population. (The inclusion of the enslaved population was known separately as the three-fifths compromise .) A further compromise on slavery prohibited Congress from banning the importation of enslaved people until 1808 (Article I, Section 9). After all the disagreements were bridged, the new Constitution was signed by 39 delegates on September 17, 1787, and it was submitted for ratification to the 13 states on September 28.

In 1787–88, in an effort to persuade New York to ratify the Constitution, Alexander Hamilton , John Jay , and James Madison published a series of essays on the Constitution and republican government in New York newspapers. Their work, written under the pseudonym “Publius” and collected and published in book form as The Federalist (1788), became a classic exposition and defense of the Constitution. In June 1788, after the Constitution had been ratified by nine states (as required by Article VII), Congress set March 4, 1789, as the date for the new government to commence proceedings (the first elections under the Constitution were held late in 1788). Because ratification in many states was contingent on the promised addition of a Bill of Rights , Congress proposed 12 amendments in September 1789; 10 were ratified by the states, and their adoption was certified on December 15, 1791. (One of the original 12 proposed amendments, which prohibited midterm changes in compensation for members of Congress, was ratified in 1992 as the Twenty-seventh Amendment . The last one, concerning the ratio of citizens per member of the House of Representatives, has never been adopted.)

The authors of the Constitution were heavily influenced by the country’s experience under the Articles of Confederation, which had attempted to retain as much independence and sovereignty for the states as possible and to assign to the central government only those nationally important functions that the states could not handle individually. But the events of the years 1781 to 1787, including the national government’s inability to act during Shays’s Rebellion (1786–87) in Massachusetts , showed that the Articles were unworkable because they deprived the national government of many essential powers, including direct taxation and the ability to regulate interstate commerce . It was hoped that the new Constitution would remedy this problem.

The framers of the Constitution were especially concerned with limiting the power of government and securing the liberty of citizens. The doctrine of legislative, executive , and judicial separation of powers , the checks and balances of each branch against the others, and the explicit guarantees of individual liberty were all designed to strike a balance between authority and liberty—the central purpose of American constitutional law .

America's Founding Documents

The Constitution of the United States

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We the People  of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. --Preamble to the United States Constitution

All four pages of the document are on permanent display at the National Archives.

Read a Transcript 

The Constitution acted like a colossal merger, uniting a group of states with different interests, laws, and cultures. Under America’s first national  government, the Articles of Confederation, the states acted together only for specific purposes. The Constitution united its citizens as members of a whole, vesting the power of the union in the people. Without it, the American Experiment might have ended as quickly as it had begun.

Read Articles About the Constitution

• The article "A More Perfect Union" is an in-depth look at the Constitutional Convention and the ratification process.
• "Questions and Answers Pertaining to the Constitution" presents dozens of fascinating facts about the Constitution.
• "Errors in the Constitution—Typographical and Congressional" discusses discrepancies in various printed and handwritten versions of the document.

Amendments 1-10

Amendments 1-10 constitute what is known as the Bill of Rights

Amendments 11-27

Discover the other changes and additions that have been made to the Constitution over the past 200+ years.

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US Politics Example Essay: discuss the view that the US Constitution is inflexible

12th May 2016

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Nearly every country in the world has a constitution which outlines the political process of governance i n that country. The US Constitution is the world’s oldest codified constitution (written 1789) that is still in existence. Codified constitutions are often regarded as beneficial for effective governance because they allow stability (no easy-to-change constitutional statute law , for example) and are also the fundamental law of the country.

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Intro.1 The 2022 Edition

As the keystone of the United States, the Constitution informs federal and state law; delineates the distinct roles of the Executive, Legislative, and Judicial Branches of the U.S. Government; and demarcates the powers of the United States from those of the states. Supreme Court Justice Hugo Black memorably remarked that the United States is entirely a creature of the Constitution. Its power and authority have no other source. 1 Footnote Reid v. Covert , 354 U.S. 1, 5–6 (1957) (plurality opinion). Although it shapes nearly every aspect of domestic law, the Constitution, including its twenty-seven Amendments, comprises only roughly 7,500 words. As such, it provides more of a general outline than a detailed blueprint of government. While Chief Justice John Marshall established in Marbury v. Madison that the Constitution implicitly accords to the Judicial Branch authority to interpret the law and deem legislative acts contrary to the Constitution void 2 Footnote Marbury v. Madison , 5 U.S. 137, 176–80 (1803) . —the power of judicial review—the Legislative and Executive Branches’ duties necessarily require them to interpret the Constitution as well. Moreover, in matters specifically entrusted to those branches, or beyond the Judicial Branch’s competency to review, Legislative and Executive Branch interpretations are dispositive. 3 Footnote Baker v. Carr , 369 U.S. 186, 217 (1962) . Consequently, as Justice Felix Frankfurter observed: [T]o the legislature no less than courts is committed the guardianship of deeply cherished constitutional rights. 4 Footnote Minersville School Dist. v. Gobitis , 310 U.S. 586 (1940) .

Congress passed legislation in 1797 to provide a copy of the Constitution to every Member of Congress. 5 Footnote Act of Mar. 3, 1795, ch. 50, 1 Stat. 443 (1795); S.J. Res., 4th Cong., 1 Stat. 519 (Mar. 3, 1797). During the nineteenth century, these copies of the Constitution were enhanced with indexes and case citations. 6 Footnote See Constitution of the United States of America: Rules of the House of Representatives, Joint Rules of the Two Houses and Rules of the Senate with Jefferson’s Manual (House of Representatives, 1837); Constitution of the United States of America with the Amendments thereto; to Which Are Added Jefferson’s Manual of Parliamentary Practice, the Standing Rules and Orders for Conducting Business in the House of Representatives of the United States, the Joint Rules in Force at the Close of the 43rd Congress and a Digest (House of Representatives, 1880); Senate Manual Containing the Standing Rules and Orders of the United States Senate, The Constitution of the United States, Declaration of Independence, Articles of Confederation, The Ordinance of 1787, Jefferson’s Manual, Etc. (Senate Committee on Rules, 1896). As constitutional law grew more complex, the Senate adopted a resolution in 1921 to provide for copies of the Constitution to be printed with explanations of how the Supreme Court has interpreted its provisions—the Constitution of the United States of America, Analysis and Interpretation ( Constitution Annotated ). 7 Footnote S. Res. 151, 67th Cong., 62 Cong. Rec. 95 (1921). In 1938, the Library of Congress’s Congressional Research Service (CRS) (in the form of its predecessor, the Legislative Reference Service) began to prepare and update the Constitution Annotated . In 1970, Congress regularized publication of the Constitution Annotated , providing for the Librarian of Congress to prepare a new version of the volume every ten years and to issue supplements every two years. 8 Footnote Act of Dec. 24, 1970, Pub. L. No. 91-589, 84 Stat. 1585, 2 U.S.C. § 168 . In 2019, the Library of Congress launched https://constitution.congress.gov , making the Constitution Annotated available online to Members of Congress, congressional staff, and the public in a digital, easily-searchable format.

Mirroring the online Constitution Annotated , the 2022 edition of the Constitution Annotated features shorter, more specific essays to allow readers to locate relevant information more quickly. Detailed information on the placement of each essay within the Constitution’s framework is included in the headers. Each essay includes its online serial number so that readers can locate the corresponding essay in the online Constitution Annotated , which is regularly updated to reflect new Supreme Court developments.

The following CRS attorneys contributed content to the 2022 edition of the Constitution Annotated : Bryan L. Adkins, April J. Anderson, Christine J. Back, Milan N. Ball, Jimmy Balser, Peter G. Berris, Kate R. Bowers, Valerie C. Brannon, Craig W. Canetti, David H. Carpenter, Jared P. Cole, Michael D. Contino, Jeanne M. Dennis, Charles Doyle, Jennifer K. Elsea, Michael A. Foster, Jonathan M. Gaffney, Michael John Garcia, Todd Garvey, David Gunter, Kevin J. Hickey, Eric N. Holmes, Sanchitha Jayaram, Juria L. Jones, Victoria L. Killion, Joanna R. Lampe, Lauren K. LeBourgeois, Caitlain Devereaux Lewis, Chris D. Linebaugh, Edward C. Liu, Stephen P. Mulligan, Brandon J. Murrill, Whitney K. Novak, Alexander H. Pepper, Kelsey Y. Santamaria, Mainon A. Schwartz, Wen W. Shen, Jon O. Shimabukuro, Hillel R. Smith, Jennifer A. Staman, Sean M. Stiff, Jay B. Sykes, Adam Vann, Delilah T. Vasquez, Erin H. Ward, and L. Paige Whitaker. Georgia I. Gkoulgkountina, Meghan C. Totten, Ji Young Zoey Ryu, and Summer J. Norwood provided invaluable editorial, technical, and paralegal assistance. Special thanks to Deborah Strausser, Chris Leggett, Kenneth DeThomasis, and Sarah Wheeling of the Government Publishing Office, which provided extensive publication support.

•   Jump to essay-1 Reid v. Covert , 354 U.S. 1, 5–6 (1957) (plurality opinion).
•   Jump to essay-2 Marbury v. Madison , 5 U.S. 137, 176–80 (1803) .
•   Jump to essay-3 Baker v. Carr , 369 U.S. 186, 217 (1962) .
•   Jump to essay-4 Minersville School Dist. v. Gobitis , 310 U.S. 586 (1940) .
•   Jump to essay-5 Act of Mar. 3, 1795, ch. 50, 1 Stat. 443 (1795); S.J. Res., 4th Cong., 1 Stat. 519 (Mar. 3, 1797).
•   Jump to essay-6 See Constitution of the United States of America: Rules of the House of Representatives, Joint Rules of the Two Houses and Rules of the Senate with Jefferson’s Manual (House of Representatives, 1837); Constitution of the United States of America with the Amendments thereto; to Which Are Added Jefferson’s Manual of Parliamentary Practice, the Standing Rules and Orders for Conducting Business in the House of Representatives of the United States, the Joint Rules in Force at the Close of the 43rd Congress and a Digest (House of Representatives, 1880); Senate Manual Containing the Standing Rules and Orders of the United States Senate, The Constitution of the United States, Declaration of Independence, Articles of Confederation, The Ordinance of 1787, Jefferson’s Manual, Etc. (Senate Committee on Rules, 1896).
•   Jump to essay-7 S. Res. 151, 67th Cong., 62 Cong. Rec. 95 (1921).
•   Jump to essay-8 Act of Dec. 24, 1970, Pub. L. No. 91-589, 84 Stat. 1585, 2 U.S.C. § 168 .

State Constitutions? Why Would Each State Need Its Own Constitution? Part 1 – Guest Essayist: Marc Clauson

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State Constitutions ?  – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.” [1]   For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

Marc  A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]    See Second Treatise of Government (1690).

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Interesting and informative as always.. I actually did wonder why State constitutions are ridiculously long.. now I know.

I had the same reaction as Barb regarding the length of State Constitutions.

Another notable point for me was that while we know the Founders drew their ideas from the many forms of past Governments, they had to develop The Constitution from scratch. Rather impressive.

Last thought. While the Federal Constitution is very short, the accompanying laws and regulations of The Administrative branch is ridiculously long.

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