Constitution Day Video Transcript

Ilia Sasich: Thank you, Professor Downs, for this discussion in honor of Constitution Day which is September 17th.

Professor Downs: It’s my pleasure to be here Ilia.

Ilia: Our first question: What is a Constitution?

Prof. Downs: Well, that’s a very interesting question to get things started. Let me first say the American constitution is a unique document in world history. It’s one of the first written constitutions, and even though other countries’ constitutions, which have proliferated in the second half of the twentieth century, resemble America’s constitution, they also differ in various respects, but the American constitution has served as sort of a fundamental model for other countries. It’s a remarkable document, and I think that people need to appreciate what we have with a constitution. Well, what is a constitution in general? A constitution is a… constitutes the fundamental law of any country. It’s the basic rules that pertain to the way that countries make public rules, and the way they amend public rules. So, in other words, it’s the fundamental law of any particular country. Constitutions tend to incorporate higher principles of justice, higher principles of governance, higher principles of individual rights, along with certain practical aspects that are based on historical circumstances, experiences, and necessities of the countries that the constitutions represent. So, constitutions tend to represent a combination of higher principles of governance and individual right with certain practical compromises and necessities. Constitutions also embody a fundamental tension, and, on the one hand, constitutions are designed to give government power; the necessary power in order to maintain order, to protect rights, to promote the social welfare. So, the first thing constitutions do is they bestow power on government and thereby legitimate that power. On the other hand, constitutions are set up to limit and restrict the power the government has, so government power doesn’t become abusive or abuse individual rights. So, there’s a fundamental tension. Constitutions are meant to empower. They are also meant to restrain that power. And, as James Madison, who is the father of the American Constitution, has written in Federalist 51 and other documents, constitutionalism is the remedy to the problem of government which is the first problem is to give government enough power to protect people, and the second hand, to provide checks so government isn’t too powerful in order to protect the rights of people. Constitutionalism is the way that that problem is resolved. Constitutions generally, throughout the world, at least the ones that are meaningful and work, are also based on the principle of rule of law, which is related to what I just said. Rule of law means government by laws based on the consent of the governed rather than the arbitrary will of rulers. So, constitutionalism is intimately tied up to the rule of law. Constitutions also can be written or non-written. The British Constitution until very recent times was an unwritten constitution. Our constitution, the American Constitution, which was ratified in 1787, was one of the first written constitutions, and so our rule of law concept, on the constitutional level, has always been a question of applying the written law and that means a lot of times the courts become very involved in forcing the constitution. The final point I should make is that there is a distinction between having a written constitution and having one that is really meaningful. The Soviet Union, for example, in the era of communism had a written constitution with a bill of rights, but it wasn’t enforceable because there was no judicial independence to check the state, there weren’t competing political parties, there weren’t free elections, so there weren’t institutions in place that help keep the constitution honest to its word. In the United States though, you know, there have been occasions of government abuse over the centuries. For the most part, our government has been constrained by the rule of law because you have strong courts that limit what the executive branch or what congress can do, you have political parties, and you have elections where public opinion and the populous can check the government.

Ilia: What exactly made the constitution necessary given that the system was already based on the Articles of the Confederation?

Prof. Downs: Now, that’s a good question. Well, you know, we went to war against Britain in the Revolutionary War in 1776, and during the war the Continental Congress was the main governing body and the Continental Congress created the Articles of the Confederation which were the basic constitutional scheme of the Revolutionary War and the few years right after the war was over. And, the Articles of Confederation were based primarily on the principle of state sovereignty, which means that states rights were preeminent, and states, for example, there was no national supreme court. The national executive was very weak. States had veto power over domestic policy. Congress could ask for money, but it didn’t really have the power of taxation, so debts within the United States, debts with foreign governments which had been accrued during the Revolutionary War were not paid. States had, I mentioned, veto power over national policy. Also, states had their own independent economic policies. You know, tariffs were set up to restrict the flow of goods; property rights were sometimes not very well protected. And, it was very difficult for the government also to conduct foreign affairs because it didn’t have the power of taxation, and there really wasn’t any strong central government. So, the foreign affairs of the country and the economic welfare of the country were jeopardized under the Articles of the Confederation. So, there was fairly widespread discontent with the Articles of Confederation, and the basic idea was: ‘we need a government that has more power at the central and national level.’ And, so, the Virginia Legislature called for a special meeting for the leading politicians to come together and consider amendments to the Articles of Confederation. And, this took place in a famous meeting in Annapolis in 1786. And, out of the Annapolis convention came a surprising call for a new constitutional convention which was to meet in Philadelphia in what became known as Freedom Hall, and that was the famous Constitutional Convention of 1787.

Ilia: What were some of the competing claims that the framers had to balance at the Constitutional Convention?

Prof. Downs: Well, there were two major conflicts that had to be resolved. One had to do with federalism—and that is the relationship between the states as sovereign entities and any new national government which would have its own kind of sovereignty. So, there were two competing notions of sovereignty. One is state sovereignty, that all laws in the end are legitimated because the states agree to them as entities versus popular sovereignty which is based on the term, you know, ‘We the people,’ which gave their consent to the national government which was independent of state governments. Those in favor of a stronger national government were called Federalists. Those who were in favor of maintaining sovereignty and power at the state level were Anti-federalists. And, so, that was the first major tension, and we’ll talk later about how those tensions were resolved. And then the second major conflict was over slavery. And, this was of course related to the federalism issues because the South was the area of the region where slavery operated, and the North didn’t have slavery. And, there were major conflicts over, you know, in the North and even parts of the South people that thought slavery was immoral, which of course it was, and had a different economic system in the South that was based on slavery. Slavery was some what of an agrarian, plantation oriented kind of society, whereas the North was becoming more industrialized, more capitalistic, and so, there were conflicts between two sort of economic theories which led to economic conflicts as well.

Ilia: How exactly did the framers solve these problems in the constitution as it was written in 1787?

Prof Downs: Well, the Constitutional Convention struck up four major balances or resolutions to these problems, and the first one first one in terms of Federalism. There were two plans presented at the Constitutional Convention. One was for a really strong national government, much stronger than the one that emerged, and that was based on what was called the Virginia Plan. And as a competitor there was the New Jersey Plan in which states would maintain predominant authority. And, out of that conflict came a compromise that there would be a strong national government that, within its domains of proper authority, would be unchallenged by the states and have plenary power—power to tax, power to conduct interstate commerce and foreign commerce, to raise armies, to coin money and have a national monetary system, but the national government would be limited to specific enumerated powers in the constitution. So it would be strong where it was authorized to act but it wouldn’t be able to act across the board. It had limited enumerated powers. Other powers were left to the states. So there’s kind of a balance between the nation and the states, between national sovereignty and state sovereignty. Another compromise was bicameralism, which did not exist in the Articles of Confederation, where you had a Senate which were elected, at the time actually by representatives of the state not by popular vote. That changed in the twentieth century. The senate would have two members from each state so there was equal state power in terms of representation. So that paid heed to the notion of state sovereignty. Then you had the national congress, the House of Representatives, which was based solely on population in terms of representation. And that gave more power to the bigger states as long as they acted in a cohesive kind of way which they don’t always do. So bicameralism sort of balanced nationalism and state sovereignty. Third, you had the separation of powers. And this is the theory that had been propounded by many political theorists from Montiscue from France being one of the more prominent ones, in which you have different branches of government that compete with one another in order to check power. And the constitution set up three branches. Article one of the constitution establishes the power of Congress and, you know, the House of Representatives and the Senate and enumerated powers to congress. Article two establishes the executive branch which includes the president and federal government or the executive branch of government. And article three established the Supreme Court and any lower court that congress wanted to establish on its own. So you have the three. Congress, Executive, Judiciary all established under the constitution. Separate powers doesn’t mean independent powers. For example, to pass a law, the law has to be passed by both houses of Congress and signed by the president. Appointments to the Supreme Court; the president appoints, the senate confirms. That creates a member of the courts and you have all three branches sort of working together there. Those are just two examples in which the powers are interdependent. The idea was that each branch would exercise its own power, look out for its own interests and be a watchdog over the other branches which would help limit the power of the federal government. And finally there was slavery. The big compromise made there was, in the South slaves would count as 3/5 of a vote for purposes of representation. And what this did was primarily to give the south a kind of disproportionate power in the congress which would prevent any major abolition movements against slavery. Morally it was an unfortunate compromise, but probably necessary for the original Constitution to be passed.

Ilia: So far we haven’t really mentioned the Bill of Rights but that’s what most people tend to think about when they think about the Constitution. So, what was the Bill of Rights and why haven’t we discussed it so far?

Prof Downs: Yeah. Well, the Bill of Rights was not part of the original Constitution. The constitutional convention was designed to establish the power of the national government. They were less concerned about its limitations and what happened however was that during the ratification process (the constitution establishes its own terms of ratification—nine states of the original thirteen had to ratify it) two states, Rhode Island and North Carolina refused to ratify because they said we created this new national government with this new national power, well what if that government violates individual rights? So we’re not going to authorize this thing unless there is a Bill of Rights which will specifically say what the national government cannot do or may not do in terms of violating individual rights. So three other states joined North Carolina and Rhode Island and called for a Bill of Rights to be passed and it went to Congress, the first Congress in 1789, there’s a lot of discussion, there were opponents like James Madison and James Wilson who said that a Bill of Rights could be a dangerous thing because it would imply that the people only had those rights and not others. But eventually a consensus rose that the Bill of Rights was necessary and the first Congress passed the Bill of Rights. There were debates over which ones to emphasize and it was finally ratified in 1791. It originally applied to the federal government not against the states or against local governments and it involved the first amendment which protects freedom of speech and press and religion, the second amendment the right to bear arms, the third amendment which protects against the courting of soldiers except in emergencies in individuals homes, the fourth amendment which protects against unreasonable search and seizure, the fifth amendment which protects due process, privilege against self incrimination, double jeopardy, and the taking of private property for public use without just compensation. The sixth amendment pertains to the right to a fair trial. I won’t mention the seventh amendment because it’s sort of minor. The eighth amendment protects against cruel and unusual punishment and the tenth amendment protects fundamental state rights. So those are the ten amendments that constitute the original Bill of Rights. Originally, as I said, the Bill of Rights only applied to the national government not to the states but over the course of the twentieth century, the Supreme Court began to apply the Bill of Rights against state governments and local governments as well and today virtually all of the Bill of Rights are enforceable against not only the national government but the states as well.

Ilia: So we’ve discussed the structure of the Constitution and some of the essential initial debates, but how has the document evolved over time?

Prof Downs: Yeah that’s a very good question and let me mention that there are also other amendments that came about that are very important as well. The thirteenth amendment abolished slavery after the Civil War. The fourteenth amendment protected due process and equal protection after the Civil War as well as privileges and immunities of citizens. The fifteenth amendment protected the national right to vote. The nineteenth amendment in 1920 gave women the right to vote and there were several other amendments after that involving presidential succession, the right to vote for eighteen year olds so the Constitution has been consistently amended which suggests that it does evolve over time. But in addition, there are a number of important Supreme Court decisions over the years that have been very controversial and that have changed the shape of the Constitution. And history has also represented periods of constitutional conflict over fundamental questions of constitutional law that were eventually resolved by Supreme Court decisions in reaction to historical and political events. There are three major periods, I think, in constitutional history where key constitutional questions had to be resolved and this involves Supreme Court decision making as well as political conflict. The first period, 1800 to 1865, the big issue which I’ve alluded to before was slavery and federalism. A number of Supreme Court decisions gave the federal government more power to regulate commerce and to play a role in our national life, but the slavery question was very difficult to resolve. Several political compromises were striven for but in the end the Supreme Court tried to resolve the slavery conflict in 1857 in the famous Dred Scott decision. But the Dred Scott decision only precipitated the Civil War and eventually the slavery problem was only resolved by war. And then you got the thirteenth and fourteenth and fifteenth amendments after the Civil War that were designed to give constitutional rights to the newly freed slaves and later others, but, to be honest, these amendments didn’t get enforced strongly until the 1950s and 1960s when you had the civil rights movements in the United States. So that raises an important point that sometimes Supreme Court decisions are not all that enforceable and don’t have that much of an impact and it takes a political will to back them up. The second big period was from the 1870s to the 1930s and involved the rise of big business and corporations and national and state regulation in reaction to that. The big question constitutionally was what is that constitutional status of the administrative state? For the most part, the Supreme Court sided with business and a laissez faire free market ideology and during the depression in the 1930s this led to a big standoff and big conflict because the Supreme Court kept striking down many provisions of Franklin Roosevelt’s New Deal which was designed to establish an administrative state to try to promote economic growth and Roosevelt was upset at the Supreme Court and developed what’s called the famous court packing scheme where he would be able to appoint a new Supreme Court Justice for everyone that was over the age of eighty, I think it was seventy-eight or eighty, and that would allow him to stack the court with justices that would favor his new deal programs and uphold them. Roosevelt failed because the Supreme Court had enough prestige that Congress didn’t go along but in reaction to the court packing scheme and threat the Supreme Court ended up backing down and upholding all of his new deal measures. And so coming out of the New Deal, Congress was given vast powers to regulate the economy. There is a famous case called Wicker vs. Feldbern in 1942 where a farmer had set aside a few acres of his own land to grow his own garden and yet he was also participating in the Agricultural Adjustment Act, which meant to support certain base prices for agricultural products and under this act you could not grow anything beyond a certain quota and his little garden exceeded the quota and he was fined by the national government and he sued and said wait a minute, Congress can’t have the power to tell me I can’t grow a little plot of garden here and the US Supreme Court unanimously upheld the power of Congress to do that. So that case shows the broad expansive government power that came out of the new deal crisis. The third major period of adjudication and controversy is the post World War Two period where civil liberties and civil rights adjudication became very prominent on the Supreme Court. You got an expanse of applying the Bill of Rights to the states, expanding the meaning of free speech, expanding the meaning of the fourth amendment, expanding the scope of the right to a fair trial referring to Miranda rulings and things like that. The right of privacy was developed which is an implied right because the right of privacy and the right to an abortion which is part of the right to privacy is not explicitly mentioned in the constitution but the Supreme Court in 1965 and 1973 ruled that there is a right to privacy which includes the right to an abortion. So several controversial cases have come out of this kind of adjudication such as the privacy and abortion as I’ve mentioned, the right to burn a flag is a form of protected speech, police having to read Miranda rights to criminal suspects that are under custodial interrogation, the Supreme Court has dealt with issues of virtual kiddy porn on the internet – I mean pornography that’s sort of manufactured by computer rather than having actual children in it, and cruel and unusual punishment adjudication has been very prominent. For example is capital punishment constitutional or is it not? What about giving capital punishment to minors or to the mentally retarded? These are just some of the many cases that have come up in this period of human rights adjudications - which I’m going to call it after World War Two - and we’re still dealing with those kinds of cases.

Ilia: So just how does the Supreme Court interpret the Constitution?

Prof Downs: Well, given what I’ve just said, it is clear that interpretation is not always an easy matter. There are several devices the court has come up with over the years, and I would say it sort of breaks down into two fundamental schools: those who think the Constitution has a sort of limited fixed meaning. And they tend to be what we call “textualists,” that you have to interpret the Constitution by what the words that it say or reasonably say, and those that believe in original intention. What is it that the framers actually intended, and you also look at what did the framers tolerate and not tolerate during their time, all right? So history becomes the main guide. The constitution shouldn’t grow so much as be more fixed in meaning. Another school of thought looks at the constitution as more of an evolving kind of document. And that its meaning can expand or restrict depending on historical necessity and circumstance. So it’s not a fixed constitution it’s an evolving constitution. And constitutional adjudication in the Supreme Court and elsewhere tends to follow one of those two tracks. Those who believe in a more evolving kind of constitution look at, tend to be more pragmatic in their jurisprudence. They look at various principles in the constitution and try to balance them. Or they believe that the constitution has a certain kind of aspirational aspect to it, that it points to certain higher principles that the court should be pushing the country toward. So those are the major kind of schools of thought when it comes to interpretation. I think that the constitution is, my view, is it’s sort of both. John Marshall, famous Supreme Court justice back in the famous case involving the commerce clause in 1819, said that the constitution is not a legal code, it’s meant to, you know, adapt to the ages. And that’s all true. But by the same token, the constitution is meant to shape social change as well. If it simply adapts to present circumstances without providing it’s own kind of compass, then it’s not a constitution. So I think the tension between fixed meaning and evolving meaning is itself and important aspect of constitutionalism. And both sides have something to be said for them and neither side should end up being completely, you know, preeminent.

Ilia: Do you have any concluding thoughts or points?

Prof Downs: … One could have a lot of concluding thoughts. But one thing to stress is that constitutional meaning is a combination of sort of higher principal, fixed meaning, politics, historical necessity, and also that the courts are not the only bodies that are there to interpret the constitution. The President interprets the constitution when he decides whether or not to sign a bill or veto a bill. Congress can say “we think this is constitutional” and the President can say, “no, I think it’s not I’m going to veto it.” So the other branches of government are thinking about the constitution as well. So are we the people. When the Supreme Court makes a decision, the Supreme Court is the most authoritative interpreter of the Constitution, but it isn’t the only one. And the Supreme Court can be subject to criticism. The Supreme Court can in theory make an unconstitutional decision because the Supreme Court is not the same thing as the Constitution. We need to have an institution that we rely on to be its most authoritative interpretator, there has to be due deference given to the Supreme Court, but to say the Supreme Court is the same thing as the Constitution is to, in a sense, presume that the Supreme Court is an infallible institution, which violates the very principles of separation of powers and constitutionalism in the first place. And finally, the process of constitutional interpretation can be very difficult. I mentioned earlier about textualism. If the text of the constitution is clear then that has to govern, because it is a written constitution. As John Marshall once said that the fact that it’s a written constitution makes it fundamental law. The President has to be thirty-five years old. All right? So you couldn’t be President. They also have to be a natural born citizen of the United States to be a President. I was born in Canada so I can’t be President to my chagrin, but probably to the Country’s benefit. So for a constitutional amendment to be ratified it’s gotta be passed by three quarters of the states. So when the constitution is explicit its will must prevail, but a lot of the clauses in the constitution are not. You know, “freedom of speech.” Does that mean “freedom to burn a flag”? Does it mean freedom to publish pornography? The constitution doesn’t say. Right to a fair trial. Well, we sure have a right to fair trials; they’re in the constitution, but what if the prosecutor comments to the jury that the defendant has not taken the stand in his or her own case, and therefore the jury may infer that the defendant’s guilty for doing that? Does that violate the right to a fair trial or doesn’t it? I mean that case went to the Supreme Court and the answer is that the prosecutor can’t do that. But the constitution doesn’t tell you clearly. So it always, constitutional interpretation always involves judgment. And judgment in the face of conflicting views and pressure, so it can often be a very difficult kind of exercise.

Ilia: Well thank you, Professor Downs. That was very interesting.

Professor Downs: Thank you.

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