In an earlier article, Editor-at-Large Clay Jenkinson described America’s three constitutions: The capital-c Constitution drafted in 1787; and the small-c constitution of norms and traditions not specified in the written Constitution and the ways the American people actually constitute themselves. In this third in a series, Jenkinson suggests that even — or especially — in our norm-busting times, a president’s bully pulpit has grown bigger, stuffed as it is with extra constitutional executive actions.
The capital-c Constitution has been in effect since 1788. It has been amended only 27 times in 234 years, with the Bill of Rights (the first 10 amendments) ratified just three years later, almost as an extension or appendix to the Constitution itself. The great debates from 1788-1860 involved three questions.
Constitutionally Speaking, What Is This?
The first question is whether the Constitution should be interpreted literally, narrowly and strictly, as a national restraining document (Thomas Jefferson’s view), or broadly and flexibly, a “living” constitution (Alexander Hamilton’s view) so that it could come to terms with new opportunities, challenges, technologies and issues. On the whole, and with the significant help of Chief Justice John Marshall, who served between 1801-1835, the Hamiltonians won that debate.
Second, whether the Constitution created a truly national government in which the states were clearly subordinate, or whether sovereign power was to be shared between a national government that did certain enumerated things while state governments handled most public affairs that were not truly national in scope. This was, in effect, the debate over the meaning and scope of the 10th Amendment, which seemed to envision a confederation of sovereign states with a modest, perhaps even minimalist national government. Here, again, thanks to the enormous power and influence of John Marshall, the nationalists won more debates than they lost. The Civil War settled the issue; with the ratification of the 14th Amendment (1868), the national government cast a long and increasingly dark shadow over state sovereignty.
And third, slavery. It didn’t take the 1619 Project to teach us that slavery and race have dominated American public life from the beginning and even when they do not appear to be on the table, they lurk in a distorting and destabilizing way just below the surface. The question was: does the national government have the authority to regulate or terminate slavery, if not for the whole country, at least in the new territories beyond the Appalachian Mountains? The Civil War began as a debate (war as politics by other means) over the extension of slavery into the trans-Missouri west, and ended, as we all know, with the formal legal end to slavery altogether.
The Aggrandizement of the Executive Branch
Today virtually everyone accepts broad construction of the Constitution, even if they grumble about it. Nobody declares that the National Science Foundation is unconstitutional, or the National Endowment for the Arts or the CIA. Jefferson loathed the idea that the Supreme Court would decide which laws were constitutional and which not, and the concept of judicial review is nowhere mentioned in the text of the Constitution, but virtually all Americans now accept that the Supreme Court should play this role. They only cry foul when the Court decides a case in what they regard as the wrong way. Neither party raises a fuss when the court rules in a way that suits its agenda, but they…