We the People... (I)

September 17 is Constitution Day.

Created by Congress only in 2004, the day commemorates the signing of the final draft of the U.S. Constitution by its framers on that date in 1787. Subsequently ratified by the required number of states in 1788, it became "the law of the land". It is the world's oldest written constitution…and the shortest.

There was a wide diversity of backgrounds among those framers: cultural, geographic, political and otherwise. They represented agricultural, industrial and commercial sectors of a young nation wherein slavery was legal in some parts and not in others.

Some of them (the anti-Federalists) wanted a government that was loosely organized (a confederation) whereas others – the Federalists -- wanted a strong, well-structured central government. The document which emerged from the Constitutional Convention of 1787 was – as a consequence -- the result of many compromises, including a series of 10 immediately subsequent amendments penned in 1789 by delegate James Madison of Virginia; later unofficially titled the "Bill of Rights".

Because of the many factors and factions influencing the "Founding Fathers" of our Constitution, its language in some instances is quite specific and detailed (such as in Article I establishing the legislative powers of Congress), but it can also be vague in assigning or prohibiting other constitutional powers.

Even with all the compromises included in a document that was approved by the states only after an arduous and contentious ratification process, there still existed strong conflicts among the representatives and the areas of the country they represented. In those southern states where slavery was an important element of a primarily agrarian economy, a weak federal government, and strong state governments were favored.

The primarily northern, slavery-free states, where manufacturing and other forms of commerce were prevalent, advocated a strong central government and weaker state governments.

This essential tension, coupled with some vagueness in the language related to the resolution of issues between the state and federal governments, and between the legislative and the executive branches, created the need for an independent agency to interpret language and rule accordingly.

It took more than a decade to determine that this agency was to be the Supreme Court.

The Supreme Court of the United States (or SCOTUS, as contemporary news media usage would have it) was created by Article III of the Constitution, which defines the federal judicial system. Few of the framers were lawyers and, while Article III reads to us laymen as a reasonably straightforward exposition of the judicial branch's powers, it is in fact a mosaic of legalistic generalities waiting to seduce the unwary as it threads its way between honoring ancient concepts of jurisprudence while creating a judiciary befitting a modern republic.

As Yale constitutional-law scholar Akhil Reed Amar notes in his excellent, highly readable, America's Constitution, "Most of the constitutional controversies that flared up in the republic's first dozen years never came before the…Supreme Court." In fact, America's first chief justice, John Jay, after serving for six years, declined subsequent reappointment because, in Jay's words, the judiciary "lacked the energy, weight and dignity which are essential to its affording due support to the national government". Jay, incidentally, went on to become Governor of New York.

He was succeeded by John Rutledge who served for only a year before being replaced by Oliver Ellsworth who sat until John Marshall took over the chair in 1801. Staunch Federalist Marshall, now hailed by history as "The Great Chief Justice", was the sitting Secretary of State when president John Adams appointed him to the court. He became the principal architect in consolidating and defining its powers and set the tone of constitutional law that prevails to this day.

In order that the court might speak in a far more authoritative single voice, Marshall encouraged his fellow justices to discontinue the then practice of writing seriatim (separate or individual) opinions.

But it was the court's unanimous striking down of an Act of Congress (the Judiciary Act of 1789) in Marbury v. Madison, on the grounds that it violated the Constitution, that established the now longstanding principal of Judicial Review, and made the Supreme Court the final arbiter of constitutionality.

The Court went on to adjudicate more constitutional issues during Marshall's extraordinary 34 years as its chief justice (e.g., McCulloch v. Maryland, Cohens v. Virginia) but we feel certain that the casual reader of this piece is no more interested in pursuing the intricate legal niceties of case law than we are qualified to discourse thereupon. For those interested in further exploring the subject, all libraries are (or should be) well stocked with pertinent books; in fact, there are so many that we can't even begin to fashion a bibliography. Those of you on – or with access to – the Internet, might start with the enormously helpful guide, Answers.com, which can be downloaded free of charge.

We conclude by quoting Marshall's political enemy Thomas Jefferson who lamented that the doctrine of Judicial Review "made the Constitution a mere thing of wax in the hands of the judiciary, which they may twist of shape into any form they please". Sound familiar? Accusations of "judicial activism" and "legislation from the bench" are no less prevalent in the early 21^st Century than they were in the early 19^th, or anywhere in between.

But, 220 years later, the Constitution lives on and is today accorded more respect – even reverence -- than when it was the brilliantly conceived, if initially somewhat shaky, cornerstone of a young and vigorous nation.

Happy Constitution Day!

This piece also ran in "The Barnstable Patriot"