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We The People

By John W. Whitehead

The Constitution of the United States represents the classic solution to one of humankind’s greatest political problems—that is, how does a small group of states combine into a strong union without the states losing their individual powers and surrendering their control over local affairs?  The fifty-five delegates who convened in Philadelphia during the sweltering summer of 1787 answered this question with a document that called for a federal plan of government, a system of separation of powers with checks and balances, and a procedure for orderly change to meet the needs and exigencies of future generations.

In an ultimate sense, the Constitution confirmed the proposition that original power resided in the people—not, however, in the people as a whole but in their capacity as people of the several states.  To bring forth the requisite union, the people through the states would transfer some of their powers to the new federal government.  All powers not reserved by the people in explicit state constitutional limitations remained in the state governments.

In short, national or local governments, being the creatures of the states, could exercise only those powers explicitly or implicitly given them by the states; each state government could exercise all power unless it was forbidden from doing so by the people of the state.  Thus, the genius of federalism was in delineating central governmental power by spreading political power among various governmental units.

Adopted on September 17, 1787, the Constitution was ratified in June of 1788.


The Bill of Rights


A serious objection, however, arose to the new Constitution.  It concerned the lack of a “bill of rights.”

Determined to safeguard their hard-won rights, many Americans accepted the new government on the condition that provision be made for the protection of their fundamental rights or “first liberties” against usurpation by the newly created federal government.  It was commonly believed that if specific immunities from the federal government were not spelled out, the individual states would be in danger of losing their independence.

James Madison, Alexander Hamilton, and others all replied that no bill of rights was necessary because the new government was one of enumerated, or specified, powers.  Incursions by the federal government into freedoms of speech, press, religion and other liberties would be impossible, they argued, because no authority was given to the federal government to interfere with such things.  In addition, a partial enumeration of “rights” could be highly dangerous because it might create the presumption that rights omitted from the list were not secure from governmental interference.

Alexander Hamilton, for example, argued that a “bill of rights, in the sense and to the extent which they are contended for, are not only unnecessary, but would even be dangerous.  They would contain various exceptions to powers not granted; and, on this very account would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?”  However, the fear of the new federal government was so strong that a bill of rights was demanded and became an eventuality.

The Bill of Rights—the first ten amendments of the Constitution—is essentially a list of immunities from interference by the federal government.  Elbridge Gerry, a delegate from Massachusetts to the Constitutional Convention, observed: “This declaration of rights, I take it, is designed to secure the people against the maladministration of the [federal] Government.”

For example, the First Amendment was intended to ensure that the federal government would not interfere with the matters of religion, speech, press, assembly, and the like: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the rights of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The emphasis of the First Amendment was on “Congress” because if any branch would be tyrannical, the founders believed, it would be Congress.  Congress had control over the purse strings (or taxation) and could pass burdensome laws.  The framers did not, for instance, concern themselves in detail with the courts because Congress would control the courts under Article III of the Constitution.

What the framers did not foresee, though, was the increasing role of the courts—especially the power that evolved in the Supreme Court following Chief Justice John Marshall’s 1803 opinion in Marbury v. Madison.  This was the first court decision to declare an act of Congress unconstitutional.  After this decision, it would eventually be left to the courts to define what the Constitution meant to each generation, thus the concept of the “Living Constitution.”

The Bill of Rights was essentially a stance against statism—a clear rejection of centralized federal government.  As a result, the Ninth and Tenth Amendments were added to the list of rights.  The Ninth Amendment states: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  In other words, the Bill of Rights should not be used to deny to the people the rights which they already possess.

The Tenth Amendment is just as important.  It reads: “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.”  The Tenth Amendment is a product of federalism, wherein the states were guaranteed a substantial amount of sovereignty to deal with local affairs.  It was to be the province of these states, not the federal government, to deal with the issues of life, liberty and property of the people.  Government was not established to operate away from the people but was to be localized instead.  In commenting on the Tenth Amendment, Thomas Jefferson said that to “take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.”

On December 15, 1791, the first ten amendments to the Constitution were ratified.


If We Can Keep It


Since its inception, the Constitution has served as a model for many newly born nations.  Gradually, over the years, more amendments have been added and various Supreme Court cases were decided as political, economic, and social problems called for a solution.

There is little doubt that the United States Constitution is the greatest political document ever drafted and put into effect.  It has stood the test of time and even weathered the Civil War.  In the end, however, it is the vigilance of “we the people” that will keep the freedoms we hold so dear alive.  Justice Louis Brandeis, who believed that active involvement from the citizenry was essential to democratic government, wrote:

Those who won our independence believed...that the greatest menace to freedom is an inert people, that public discussion is a political duty and that this should be a fundamental principle of the American Government....They eschewed silence coerced by the law.

Indeed, as the delegates to the Constitutional Convention trudged out of Independence Hall on September 17, 1787, an anxious woman in the crowd waiting at the entrance inquired of Benjamin Franklin, “Well, Doctor, what have we got, a republic or a monarchy?”

“A republic,” Franklin replied, “if you can keep it.”