Prologue

The United States Constitution is the oldest continuous national republican document in existence today. It was not the first. Republics, or mixed regimes as they are also known, existed long before the Americans crafted theirs in 1787. Most did not last very long. In the ancient world, the Roman republic collapsed when it degenerated into empire. During the Renaissance, the Florentine republic in Italy survived a mere 14 years, from 1498 to 1512. It dissolved when the powerful Medici family, which had once ruled Florence, re-established a dictatorship. In the classical republican tradition, republics were fragile political organizations. The critical balance between the various branches of government could easily crumble when one or two dominated the others. The Americans modeled their constitution on the British government with its one-person executive and two-part legislature. For them, the British failed to create a true republic, because a hereditary monarch led the executive branch and hereditary aristocrats controlled the upper chamber, the unelected House of Lords. Meantime, large landowners controlled the House of Commons and only a few men possessed the right to vote. The Americans believed that after separating from the British Empire they could create a true republican structure where citizens participated in decision-making and enjoyed the peaceful transitions of power.

The Constitution created a democratic republic, not a democracy. In a democracy, citizens vote directly on government policies, while, in a republic, they elect representatives to develop policies on their behalf. Vestiges of democracy remain in America. They include the New England town meeting where residents directly vote on issues, such as whether the town should purchase a new police cruiser. The ballot initiative, also called the referendum, exists today in over forty states, allowing voters to make specific policies, such as whether a state should repeal its capital punishment law. Most laws in the United States today, however, are passed by representatives elected by the citizens. This system comprises the republic.

The Americans wanted their new government to represent every person, including those ineligible to vote such as women, making it a democratic republic. The Constitution addresses “persons,” not “citizens” or “voters” when it guarantees a structure, rights, and liberties. It reserves direct elections only for the House of Representatives because many delegates to the constitutional convention, including James Madison, believed that ordinary citizens failed to have the requisite education, intelligence, or common sense to decide who should be a senator or president. They initially devised a system of indirect election for those offices. The people elected state legislators who then chose United States senators, a procedure that changed only in 1913 when the states ratified the Seventeenth Amendment. In presidential elections, the people vote for a special group of people, known as Electors. They alone vote directly for the president. Today, Electors still choose the president, an increasingly controversial process.

Since the Constitution’s ratification over 235 years ago, Americans have formally added only 27 amendments. Congress still makes the laws, the president enforces them, and the courts interpret their constitutional validity. Formal changes to the document have typically occurred during or just after political or social crises. A few examples will suffice. The first 10 amendments, known collectively as the Bill of Rights, emerged in 1791 as a direct reaction to the Constitution’s ratification process. Many state ratifying conventions argued in favor of adding a bill of rights, which occurred within two years of ratification.

The Twelfth Amendment in 1804 resulted from the highly contested 1800 presidential election. The Constitution initially provided that candidates for president and vice president run separately for office. The candidate with the highest number of electoral votes became president, the second highest vice president. This arrangement worked in the first three elections, despite the outcome in 1796 when men from different parties became president, John Adams, a Federalist, and vice president, Thomas Jefferson, a Republican. However, when Jefferson ran for president in 1800 with Aaron Burr as his vice-presidential running mate, the electoral vote ended in a tie between the two candidates. To avoid this from reoccurring, the Twelfth Amendment allowed presidential and vice-presidential candidates to run together on the same ticket.

The most striking examples materialized during and after the Civil War when the Thirteenth in 1865 ended slavery, the Fourteenth in 1868 ensured the equal protection of the laws, and the Fifteenth in 1870 guaranteed the right to vote for the newly freed Black slaves. The Nineteenth Amendment in 1920 extended the vote to women in national elections, a consequence of many years of contentious advocacy for the right. With the adoption of the Twenty-Second Amendment in 1951, the states created a two-term limit for presidents after Franklin D. Roosevelt won four presidential elections from 1932 to 1944. Years later, in 1971, the war in Vietnam paved the way for lowering the national voting age to eighteen with the ratification of the Twenty-Sixth Amendment.

The Constitution is notoriously difficult to amend. Over the years, members of Congress have proposed tens of thousands of amendments, but few have passed the stringent requirements set out in Article V: two-thirds of both houses of Congress must approve an amendment or the same two-thirds could call a constitutional convention to propose one, and then three-fourths of the states must ratify it. Among the failed amendments are those guaranteeing equal rights to women, balanced federal budgets, term limits for members of Congress and allowing prayer in the public schools, outlawing abortion, and prohibiting flag desecration. While 27 amendments have altered several constitutional provisions, the document has really changed only 13 times since 1804.

The founders modified and tinkered with their work as the new government was becoming settled, first in New York City, then Philadelphia, and finally Washington, DC. The founding generation added the first 12 amendments within 15 years after the document was ratified: the Bill of Rights in 1791; the Eleventh Amendment in 1795, overruling a decision by the Supreme Court to forbid citizens of one state to sue another state; and the Twelfth Amendment in 1804. These are really part of the original document in that the same generation proposed and ratified them. Finally, two amendments, the Eighteenth (1919) prohibiting the manufacture, distribution, or transportation of alcoholic beverages and the Twenty-First (1933) repealing the Eighteenth, effectively canceled out each other.

While American constitutional history comprises the story of these formal alterations, it is even more an account of informal changes. This is where constitutional interpretation comes in. The wording of the document is often vague and imprecise. It demands that people interpret the meaning of its words, like due process of law, equal protection, and cruel and unusual punishments. The First Amendment declares that “Congress shall make no law … abridging the freedom of speech.” Was it left only to Congress to protect free speech? Did this mean the states could abolish it? What does “no law” mean: literally no law whatsoever, so that free speech is an absolute value that must be protected at all cost? What does “abridge” mean? No universal agreement has ever been reached when it comes to any provision – by the justices of the Supreme Court, the members of Congress, or the president.

This is why it is important to learn how the branches of government have interpreted the Constitution’s words and spirit. Numerous informal changes have transformed their meaning: some are due to a president’s decisions, especially in military affairs and national security, to Congress in the realm of lawmaking, or to the Supreme Court in deciding cases. Differing interpretative approaches have sometimes been a matter of partisan politics and political ideology, but more importantly it has been the result of competing values among liberals and conservatives in response to various events. When can the president act alone without congressional or judicial oversight? What is the appropriate relationship between the federal and state governments? What is the proper balance between liberty and security in a democratic order? What is the best way to pursue equality? How does religious faith figure in American society and government? These and other questions like them have faced all three branches since the Constitution’s ratification over the past 235 years plus.

The Supreme Court, the president, and Congress have all changed the Constitution’s meaning as they make public policy. Presidents issue executive orders, sign executive agreements, and claim unilateral authority, especially in matters of national security and military affairs. They have used “signing statements” to set forth their reasons for not enforcing a law even after they have signed it. While Congress may not delegate its authority to another branch of the government, it possesses the authority to change or repeal existing laws. Finally, Supreme Court justices have long held that precedent, known formally as the doctrine of stare decisis (“let the decision stand”), is an important principle to ensure legal continuity and stability. They have also...