The Role of the Constitution

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Revolution

After the long and bloody fight for independence from the British Empire, the Founding Fathers were keen on limiting the power of their new central government.

For a decade before the Constitution was ever created, the United States of America operated under a very different form of government. Watch the following video to learn more.

A system of government with the least centralization of authority as possible was the goal of the Founding Fathers; however, they realized a government like this did not work very well.

Without a unitary body, the separate states were more interested in furthering their regional interests than in the country's goals.

After realizing their dream government needed to be changed, the Founding Fathers created a new government that was no longer a confederation of states but a democratic republic.

The formative document of this new government, the Constitution, began with this Preamble:

"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. "

The Constitution and the Bill of Rights (created only a few years later) cemented the more centralized governmental authority.

Two Narratives

We can interpret the Founding Fathers' journey from independence to a republic in several ways. Two prevailing ways of interpretation are noted below.

1. The Founding Fathers crafted a Constitution that was designed to secure states' rights as much as possible without creating a dysfunctional nation like under the Articles of Confederation.

2. The Founding Fathers crafted a Constitution to embody the loftiest and most revolutionary goals of the Enlightenment. Although they may not have been able to lift the country to this standard in their time, the role of the Constitution is to guide the nation toward a more equitable society.

It is important to note that the first narrative is not an attempt to minimize equality and progress but rather emphasizes that the states themselves should be the agents of equality and not a commanding federal government.

Initial Argument

Thomas Jefferson debated the Constitution's importance, believing it should change and evolve with the nation. He feared that future leaders would hold the document in a "sanctimonious reverence" that placed greater weight on it as a symbol rather than a framework for government.

Conversely, his fellow Founding Father, James Madison, expressed great concern that without an unchangeable Constitution, the nation would too easily drift off course without the "requisite stability" that a nation so badly needs.

When these two Founding Fathers were debating the role of the Constitution, they were referring directly to Congress, the body that would be making laws based on this framework.

However, with the court case Marbury v. Madison in 1803, it became the Supreme Court's role to decide whether the actions of Congress or the president were constitutional.

Chief Justice Marshall decided Marbury v. Madison uniquely, wielding his power in the judicial branch in a way never before used in the United States.

While president, John Adams appointed William Marbury to a federal judgeship; however, it was not delivered before Adams left office. Newly elected president Thomas Jefferson ordered that the commission be withdrawn so he could appoint his own judge.

Marbury used the Judiciary Act, passed by Congress a decade earlier, to ask the Supreme Court to make the President of the United States give Marbury the appointment.

• So what did Chief Justice Marshall decide?

He knew he could not order Jefferson to do something because he would not listen, and this would make the judicial branch look weak. So, he crafted a ruling that would forever change the nature of the Supreme Court.

Marshall decided that the Judiciary Act of 1789, in which Congress gave the Supreme Court authority beyond the limits of the Constitution, was unconstitutional.

This ruling established the idea of judicial review, that it was the court's role to decide what was constitutional.

Marshall felt Jefferson should have delivered the appointment; however, by saying he never had the authority to decide the case in the first place, he strengthened this branch of government and established the role of the Supreme Court to decide whether actions and laws were unconstitutional.

Current Argument

Supreme Court Justices with this power to decide constitutionality generally interpret the Constitution in the same two ways as the Founding Fathers detailed above.

Similar to Jefferson's views, those who believe the Constitution is a living document are called activists.

Similar to Madison's view, those who believe the Constitution should be interpreted are called originalists.

Look at modern versions of these views to understand better the current state of Constitutional interpretation.

As you watch the C-SPAN clip below, pay attention to the differences in the arguments of Justice Antonin Scalia, an originalist, and Justice Stephen Breyer, an activist.

Scalia, as an originalist, used a rigid interpretation of the Constitution to ensure stability. In contrast, Breyer, an activist, used current subjective ideas on the words of the Constitution to ensure stability.

Now that you understand the difference between the two views, see how these two justices argued their views on a specific court case.

In the 2015 decision on Obergefell v. Hodges, the Supreme Court ruled 5-4 that the right to marry also applied to same-sex couples based on the Equal Protection Clause in the 14th Amendment, which says no state law may abridge the rights of citizens.

This Amendment was originally written about newly enfranchised Black men.

You may research more on this case; however, look at the majority opinion and Justice Scalia's dissenting opinion for this lesson.

Although Justice Breyer did not write the majority opinion, he signed his name to it, signaling that his views were properly enforced.

Majority Opinion

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

Scalia's Dissent

"Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. . . .

[W]e need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. . . .

[T]he Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasoned judgment,' thinks the Fourteenth Amendment ought to protect."

Summary

In these two arguments, you can very clearly see the evolution of Jefferson's and Madison's points of view.

For Scalia, if the Constitution can be used so loosely that five unelected justices have more authority than state governments, the interpretation is flawed.

For Breyer, if the Constitution is used too rigidly, it would be increasingly difficult to reform society uniformly across the country.

Before moving to the Got It? section, make sure you understand this distinction.