By 1786, Americans recognized that the Articles of Confederation, the foundation document for the new United States adopted in 1777, had to be substantially modified.  The Articles gave Congress virtually no power to regulate domestic affairs–no power to tax, no power to regulate commerce.  Without coercive power, Congress had to depend on financial contributions from the states, and they often time turned down requests.  Congress had neither the money to pay soldiers for their service in the Revolutionary War or to repay foreign loans granted to support the war effort.  In 1786, the United States was bankrupt.  Moreover, the young nation faced many other challenges and threats.  States engaged in an endless war of economic discrimination against commerce from other states.  Southern states battled northern states for economic advantage.  The country was ill-equipped to fight a war–and other nations wondered whether treaties with the United States were worth the paper they were written on.  On top of all else, Americans suffered from injured pride, as European nations dismissed the United States as “a third-rate republic.”

America’s creditor class had other worries.  In Rhode Island (called by elites “Rogue Island”), a state legislature dominated by the debtor class passed legislation essentially forgiving all debts as it considered a measure that would redistribute property every thirteen years.  The final straw for many came in western Massachusetts where angry farmers, led by Daniel Shays, took up arms and engaged in active rebellion in an effort to gain debt relief. 

Troubles with the existing Confederation of States finally convinced the Continental Congress, in February 1787, to call for a convention of delegates to meet in May in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.” 

Across the country, the cry “Liberty!” filled the air.  But what liberty? Few people claim to be anti-liberty, but the word “liberty” has many meanings.  Should the delegates be most concerned with protected liberty of conscience, liberty of contract (meaning, for many at the time, the right of creditors to collect debts owed under their contracts), or the liberty to hold property (debtors complained that this liberty was being taken by banks and other creditors)?  Moreover, the cry for liberty could mean two very different things with respect to the slave issue–for some, the liberty to own slaves needed protection,  while for others (those more able to see through black eyes), liberty meant ending the slavery.

Convention in Philadelphia

The room in Independence Hall (formerly the State House) in Philadelphia
where debates over the proposed Constitution took place (photo by Doug Linder)

On May 25, 1787, a week later than scheduled, delegates from the various states met in the Pennsylvania State House in Philadelphia.  Among the first orders of business was electing George Washington president of the Convention and establishing the rules–including complete secrecy concerning its deliberations–that would guide the proceedings.  (Several delegates, most notably James Madison, took extensive notes, but these were not published until decades later.)

The main business of the Convention began four days later when Governor Edmund Randolph of Virginia presented and defended a plan for new structure of government (called the “Virginia Plan”) that had been chiefly drafted by fellow Virginia delegate, James Madison.  The Virginia Plan called for a strong national government with both branches of the legislative branch apportioned by population.  The plan gave the national government the power to legislate “in all cases in which the separate States are incompetent” and even gave a proposed national Council of Revision a veto power over state legislatures. 

Delegates from smaller states, and states less sympathetic to broad federal powers, opposed many of the provisions in the Virginia Plan.  Charles Pinckney of South Carolina asked whether proponents of the plan “meant to abolish the State Governments altogether.”  On June 14, a competing plan, called the “New Jersey Plan,” was presented by delegate William Paterson of New Jersey.  The New Jersey Plan kept federal powers rather limited and created no new Congress.  Instead, the plan enlarged some of the powers then held by the Continental Congress.   Paterson made plain the adamant opposition of delegates from many of the smaller states to any new plan that would deprive them of equal voting power (“equal suffrage”) in the legislative branch. 

Over the course of the next three months, delegates worked out a series of compromises between the competing plans.  New powers were granted to Congress to regulate the economy, currency, and the national defense, but provisions which would give the national government  a veto power over new state laws was rejected.  At the insistence of delegates from southern states, Congress was denied the power to limit the slave trade for a minimum of twenty years and slaves–although denied the vote and not recognized as citizens by those states–were allowed to be counted as 3/5 persons for the purpose of apportioning representatives and determining electoral votes.  Most importantly, perhaps, delegates compromised on the thorny issue of apportioning members of Congress, an issue that had bitterly divided the larger and smaller states.  Under a plan put forward by delegate Roger Sherman of Connecticut (“the Connecticut Compromise”), representation in the House of Representatives would be based on population while each state would be guaranteed an equal two senators in the new Senate.

By September, the final compromises were made, the final clauses polished, and it came time to vote.  In the Convention, each state–regardless of its number of delegates– had one vote, so a state evenly split could not register a vote for adoption.  In the end, thirty-nine of the fifty-five delegates supported adoption of the new Constitution, barely enough to win support from each of the twelve attending state delegations. (Rhode Island, which had opposed the Convention, sent no delegation.)  Following a signing ceremony on September 17, most of the delegates repaired to the City Tavern on Second Street near Walnut where, according to George Washington, they “dined together and took cordial leave of each other.”

The  Supreme Court  takes its powers from Article III  of the Constitution.  Article III, §1  provides  that  “the  judicial power of the United States,  shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  In accordance with this provision, the Suprem Court of the United States was created by the authority of the Judiciary Act of 1789.  The Court met for the first time on February 2, 1790.

The Court currently consists of a chief justice and eight associate justices, each with equal voting power to the chief’s.  (The number of justices has varied, beginning with six, then increasing to seven in 1801, and finally to nine in 1869.) Each justice is nominated by the President, confirmed by the Senate, and serves for life.  The Senate confirmation process begins with hearings before the Judiciary Committee and ends with a vote of the full Senate.  A simple majority is required for confirmation.  Justices who commit “high crimes or misdemeanors” are subject to impeachment and removal from office. 

The Term of the Court begins, by law, on the first Monday and October.  In a typical year, decisions are announced in all the argued cases by the end of June.  An average of about 7,000 to 8,000 petitions are filed with the Court over the course of a single Term; of those only about 100 or so are set for full briefing and oral argument.  In addition to the petitions, another 1,200 or so applications (e.g., a request for an immediate stay of a decision below) are filed each year.  These applications can be acted upon by a single justice.

EQUAL JUSTICE UNDER LAW — These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.

The Supreme Court is “distinctly American in concept and function,” as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence.

“The representative system of government has been adopted in several states of Europe,” he remarked, “but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans . . . . A more imposing judicial power was never constituted by any people.”

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.

The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom.

To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations.

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of com-peting factions, political passion and partisan spirit.

Despite this background the Court’ s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’ s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the prov-ince of the judicial department to say what the law is,” he declared.

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a consti-tution that attempted to detail every aspect of its own application “would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.”

The Constitution limits the Court to dealing with “Cases” and “Controversies.” John Jay, the first Chief Justice, clarified this restraint early in the Court’ s history by decliningto advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.

The Justices must exercise considerable discretion in deciding which cases to hear, since more than 7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has “original jurisdiction” in a very small number of cases arising out of disputes between States or between a State and the Federal Government.

When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”

I find the study of constitutional law to be immensely interesting. It concerns some of the most fundamental questions about the nature of our government and our society. In its text and caselaw, constitutional law reveals the path of our history, from the drafting of the Constitution in 1787 through the adoption of the important 13th, 14th, and 15th amendments following the Civil War, through the desegregation battles of the 1950s and 1960s, to our confrontation of the perplexing issues of today such as regulation of the Internet and euthanasia. Constitutional law, it its baffling complexity, is a reflection of our deepest values, our political conflict, and our nation’s moral trajectory.

I understand, however, from years of teaching that constitutional law is not every student’s cup of tea. Some students become frustrated with its “fuzziness.” Yes, it is fuzzy–and one cannot take a clear picture of a fuzzy object. There are relatively few clear answers in constitutional law (and those that are clear–e.g., “Can a 27-year-old be elected President?”–tend not to be very significant to lawyers). The indefiniteness of constitutional law is a function of many things, including: (1) a text that is the product of long gone eras, (2) a text that in many cases (e.g, “due process of law,” “equal protection of the laws”) was intentionally vague to accomodate the needs of a changing society, and (3) important (and often emotional) issues that tend to bring the values and politics of judges into play more than in other areas of law, where judges are more likely to think of their judging as an intellectual exercise or puzzle.

To students looking for clear rules, I say, “Stop looking.” What is important is to understand is not so much answers as it is approaches and questions. Learn the sources that judges might rely upon to guide their constitutional interpretation (text of Constitution, intentions of framers, case precedent, policy consequences of alternative interpretations). Learn how judges are likely to weigh these various guides in various contexts. Understand historical trends and understand that judges are ultimately affected by the same economic and social forces as society as a whole. With a solid knowledge of these things, students will be able to make intelligent and potentially convincing arguments–and make reasonable predictions about the likelihood of their arguments being successful in an actual case involving the same issues.

History of the Constitution

No person played a greater role in that history than the man pictured above, James Madison. Madison not only prepared the draft that set the framework for debate at the 1787 Constitutional Convention in Philadelphia, but also became the principal drafter of the Bill of Rights. To read about the Constitution’s early history, jump to: History.