Law Firm Articles

Constitution Day Thoughts

-- By Robert W. Munley, Esq,

Since its signing on September 17, 1787, the American people properly have shown great reverence for the Constitution, although often confusing its principles with the Declaration of Independence. While there is a difference, the connection is strong. John Quincy Adams explained, "The work of the American Revolution ...remained unfulfilled until the Constitution was ratified."

In a nation based on limitless personal liberty and a free economy, two forces that inherently breed conflict, the Constitution has held Americans together, earning the right never be considered with indifference. To be sure, Americans were better prepared to undertake the creation of a new frame of government than is generally realized, for during the entire 180-year colonial period each of the 13 colonies had drawn Constitution after Constitution.

Still, the miracle achieved by America's elite, the framers, was uniting a nation in face of its differences. Big states looked down on small states, free states distrusted slave states, and numerous other painful conflicts required resolution. Not only did they achieve compromise, but they invented a unique framework to meet the disparate needs of a fledgling nation. As the country grew and experienced problems and changes the framers could never have foreseen, the elasticity of the Constitution stretched to hold the nation together.

It is of significance that after the Bill of Rights, the term given to the first 10 Amendments, were adopted the Constitution has seldom been amended. It is also of great note that while prior to 1787 no country had ever developed a written Constitution, the American example preceded the adoption of a written Constitution in every emerging country since.

If the Constitution has any outstanding feature, it is the small amount of words used. Such a paucity of words itself indicated a need for interpretation. Most experts have come to agree that the Supreme Court and its interpretations appear to most Americans as the embodiment of a living Constitution. Chief Justice Harlan Fisk Stone wrote in 1938 that "It is difficult to believe that the framers of the Constitution with their intelligence ...did not expect some form of judicial review in Constitutional questions."

In truth, the business of the courts is controversy, with the Seventh Amendment preserving the right of civil jury trial to all. Within the variety and multitude of matters that have engaged the Court, two types of constitutional disagreements have always been with us B judicial review and strict construction.

Judicial review gives the Supreme Court the right to decree any act of Congress or state legislature unconstitutional. This doctrine of judicial review was first enunciated by Chief Justice John Marshall in the landmark case of Marbury v. Madison in 1803. While great consternation greeted Marshall's assertion of such a doctrine, it could hardly have been unforeseen since Article 3 of the Constitution gave powers and jurisdiction to the federal courts in cases arising under the Constitution, and the Judiciary Act of 1789 authorized appeals to the Supreme Court from state courts. Any Constitutional study reveals that the conflict over judicial review has usually been politically motivated, from the moment when Thomas Jefferson attacked the Marshall Court.

While judicial review generally has become accepted law and fact, the debate over strict or loose construction has ebbed and flowed, depending on the makeup of the Court. Historian John Bach McMaster wrote, "Before the Constitution was two years old, people were dividing into two great parties -- loose constructionist and strict constructionist.'' Antagonism over construction has been propounded by diverse persons. James Madison was the leader of the first strict constructionists and a strong advocate of state rights. Though Jefferson proclaimed this view, an issue over the Louisiana Purchase foreshadowed how far a President and the even Courts will deviate from this belief in the name of political pragmatism. Later both Theodore and Franklin Roosevelt chafed at Court interpretations, and the middle years of the 20th century eventually trended toward loose construction.

In recent years strict construction was viewed as again dominating the Court's thinking until the case of Bush v. Gore, when conservative members of the court abandoned both their strict construction and state rights positions to effectively appoint as President the man who lost the popular vote. This affirmed an observation of Archbald Cox who once noted, "The unworkability of strict construction is always demonstrated by the Court's inability to apply the strict constructionist's own rule with consistency."

Whether strict construction remains more of a philosophy, tone, or a reality remains to be seen. With an aggressive administration pushing to expand the power of the executive, for the foreseeable future members of the Court will have new opportunities to register their opinions on such Constitutional issues such separation of powers, and 4th, 5th and 6th Amendment rights.

Historically, revolutionary changes in our nations's social attitudes, economics, and technology have prevented strict construction from maintaining consistent results. Fortunately, the Constitution has lasted almost 220 years with its integrity intact, and that is on this anniversary day worth noting.