The Constitution of the United States

Overview

The Constitution is about forty-five hundred words in its original form, shorter than many of the essays written to defend it, and the whole thing plus every amendment fits in a pocket pamphlet. It is worth knowing how little of it there is, because the brevity is a choice. The document sets up offices, says how they are filled, lists what they may do, and stops. It does not explain itself, define most of its key terms, or say who decides when its provisions conflict.

Structurally it is a set of instructions. Seven articles, each divided into sections and clauses, followed by twenty-seven amendments printed in the order of their adoption. Citations look like Article I, Section 8, Clause 3, which is the commerce clause, or Amendment XIV, Section 1, which contains due process and equal protection. Learning to navigate by those coordinates is most of what reading the text well requires.

It has no author. Fifty-five delegates attended the Philadelphia Convention, thirty-nine signed, and the drafting committee’s stylist was Gouverneur Morris, who wrote the Preamble as we have it. Madison’s private notes are the main record of the debates, which were held in secret. The document that emerged is a bundle of compromises, and it reads like one: places where the language is precise are usually places where precision was cheap, and places where it is vague are usually where agreement was not available.

The argument

The case the document makes is structural rather than stated. Its premise, defended at length in the Federalist, is that people in power will pursue their own interest, and that the remedy is not better people but an arrangement in which ambition is set against ambition.

Article I builds the legislature and is by far the longest. Two chambers with different terms, sizes and constituencies must agree before anything becomes law. Section 8 enumerates the powers: taxation, borrowing, regulating commerce among the states, coining money, declaring war, raising armies, and at the end the authority to make all laws necessary and proper for carrying the rest into execution. Section 9 lists what Congress may not do, including passing bills of attainder or suspending habeas corpus except in emergency. It also forbade any ban on the slave trade before 1808.

Article II creates a single executive, chosen by electors rather than by Congress or by direct vote, with a four-year term and no original limit on re-election. The powers are sparse: command of the armed forces, appointment and treaty-making with Senate consent, a duty to see the laws faithfully executed. What a President may do beyond this has been contested since Washington.

Article III is the shortest and the most consequential for what it leaves out. It establishes one Supreme Court, allows Congress to create the rest, gives judges tenure during good behaviour, and defines the categories of case the federal courts may hear. It says nothing about striking down statutes. Judicial review is an inference the Court drew for itself in 1803, and whether the inference is sound is a live question.

Article IV governs the states: full faith and credit to each other’s records, privileges and immunities for citizens travelling between them, admission of new states, and, in language that avoids the word, the return of fugitive slaves. Article V sets the amendment procedure, requiring two thirds of both houses or of the states to propose and three quarters of the states to ratify, which is deliberately near-prohibitive. Article VI makes federal law supreme and bars religious tests for office. Article VII set ratification at nine states.

The Bill of Rights followed in 1791 because several states ratified on the understanding that it would. The first eight list individual protections, the Ninth says the enumeration does not exhaust rights, and the Tenth reserves undelegated powers to the states or the people. The Reconstruction amendments of 1865 to 1870 abolished slavery, made citizenship national and imposed due process and equal protection on the states, and barred racial exclusion from voting. Later amendments brought the income tax, direct election of senators, prohibition and its repeal, women’s suffrage, presidential term limits and the vote at eighteen.

How to read it

Read the whole thing straight through once. It takes half an hour and almost nobody does it, which is why so much argument about it proceeds from half-remembered summaries.

Then read Article I Section 8 and Article I Section 9 side by side, since together they are the map of federal power. Then Amendment XIV Section 1, which is the single most litigated sentence in American law. Then Article V, and ask yourself what the difficulty of amendment does to a country that cannot change its founding text and therefore changes its interpretation instead.

Notice the silences. There is no mention of political parties, of judicial review, of the cabinet, of the primary, of corporations, or of a right to vote stated positively. Much of the working constitution is convention built on top of the text.

Notice the euphemisms. The word slavery appears nowhere before the Thirteenth Amendment. The three-fifths clause says “three fifths of all other Persons”; the fugitive clause says “Person held to Service or Labour”. Reading those clauses in the original wording tells you something a summary cannot.

Pair it with something. The Declaration for the premises, the Federalist for the defence, the Anti-Federalist writings for the objections that produced the Bill of Rights. Reading it alone makes it look inevitable, which is the one thing it was not.

Questions it raises

• Article III never grants the power to void a statute. Where does judicial review come from, and should it exist?
• If amendment is nearly impossible, does interpretation become the real amendment process, and who is doing the amending?
• The Preamble says the People ordain the document, but ratification ran through state conventions. Who is the constituting authority?
• Can a founding text that protected slavery for seventy-four years be described as an instrument of liberty?
• The necessary and proper clause could authorise almost anything or almost nothing. What decides?
• What holds the system together when the branches simply refuse to check each other?