Omar Bennett
The United States Constitution has been a subject of controversy and criticism since its inception. The original document, signed in 1787, replaced the Articles of Confederation, which were considered too weak and inadequate. The Constitution promised Americans freedom, but it also excluded and disenfranchised many marginalized groups, including Black and Indigenous people, women, and non-property owners. It also failed to address critical issues, such as the preservation and propping up of slavery, the international slave trade, and economic inequality. The Constitution's treatment of race and its failure to guarantee fundamental economic rights have been a source of ongoing debate and controversy, with some arguing for a more explicit articulation of these rights. The document's inherent contradictions and limitations have led to controversies and debates in various areas, including abortion, immigration, impeachment, birthright citizenship, and gun control.
| Characteristics | Values |
|---|---|
| Lack of authority to regulate commerce | Congress was unable to protect or standardize trade between foreign nations and states |
| Inability to address the national debt | States did not comply with Congress's suggestions for raising revenue |
| Preservation of slavery | Allowed importation of enslaved people from outside the US |
| Exclusion of marginalized groups | Excluded Black, Indigenous, and other marginalized groups |
| Lack of economic rights | Does not explicitly provide for rights to housing, education, and basic economic survival |
| Abortion | Tenuous nature of the right to choose |
| Immigration | Legal and political obstacles |
| Gun violence | Public health emergency |
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What You'll Learn
The Articles of Confederation lacked authority to regulate commerce
The Articles of Confederation, the first American constitution, was adopted by the Continental Congress on November 15, 1777. It formed a war-time confederation of states, with a weak and inadequate central government. The Articles lacked the authority to regulate commerce, which led to controversy and economic issues.
Under the Articles, the individual states competed against each other economically. They issued their own currencies and levied taxes on each other's goods when they crossed state lines. This led to economic disaster, as the central government had little power to settle disputes between states. The states retained considerable power, and the central government could not effectively tax or set commercial policy.
The Articles also gave Congress the power to regulate the alloy and value of coins, but it could not raise funds or regulate trade without the voluntary agreement of the states. This meant that Congress had little power to address the economic issues facing the young nation.
The weaknesses in the Articles of Confederation became apparent over time, and many delegates realized its limitations. Congress tried to strengthen the Articles, but problems persisted. The states often did not comply with Congress's suggestions, and the government was unable to act effectively.
The Articles of Confederation ultimately failed because it lacked the authority to regulate commerce and address the economic issues facing the nation. This led to controversy and instability, and the Articles were replaced by the U.S. Constitution in 1787.
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The Constitution's preservation of slavery
The US Constitution, signed on September 17, 1787, has been criticised for its preservation of slavery and exclusion of Black and Indigenous people, women, and other marginalised groups. Notably, Thurgood Marshall, the first African American to sit on the Supreme Court, described the Constitution as "defective from the start".
The Constitution did not explicitly mention slavery, but it implicitly recognised and protected the practice. One example is the Three-Fifths Clause, which counted three-fifths of each state's enslaved population as part of its total population for the purpose of allocating seats in the House of Representatives and determining the number of electoral votes and direct taxes. This gave Southern states with large slave populations greater representation in Congress and the Electoral College, thus preserving and strengthening slavery as an institution.
The framers of the Constitution believed that concessions on slavery were necessary to gain the support of Southern delegates for a strong central government. They were concerned that if the Constitution restricted the slave trade, Southern states like South Carolina and Georgia would refuse to join the Union. As a result, the issue of slavery was sidestepped, laying the groundwork for future conflict. Indeed, the preservation of slavery in the Constitution led to tensions between the North and the South, with proposals to eliminate slavery by constitutional amendment emerging as early as 1818.
The Constitution also allowed Congress to ban the importation of enslaved people from outside the United States after a period of 20 years. However, it was not until 1808 that the United States formally prohibited the international slave trade. It was not until the Thirteenth Amendment was passed in 1865, following the Civil War, that slavery was officially abolished in the United States, marking a final constitutional solution to the issue.
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Exclusion of women, non-white people, and indigenous people
The United States Constitution, signed on September 17, 1787, replaced the Articles of Confederation, which were seen as too weak for the nation. While the new Constitution offered Americans the promise of freedom, it also excluded Black and Indigenous people, women, and other marginalised groups. This exclusion was a fundamental flaw in the document, as it preserved and supported slavery and entrenched whiteness and maleness as the boundaries of political participation.
The Constitution's failure to address the rights of women, non-white people, and Indigenous people led to controversy and denial of basic human rights for these groups. Women were excluded from the definition of "the people" and relegated to a position of supposed subservience. They were denied the right to participate in politics and their voices were excluded from constitutional histories.
Non-white people, particularly Black Americans, were subjected to slavery and racial discrimination. The Constitution preserved and propped up slavery, allowing the importation of enslaved people and delaying the ban on the international slave trade. Racialised exclusion became entrenched in constitutional law, further marginalising non-white communities.
Indigenous people were also excluded from the political process and experienced Native dispossession. They resisted challenges to their diplomatic constitution and engaged in internal deliberations over the new Constitution. However, their protests were often brutally suppressed through state-sanctioned violence.
The exclusion of women, non-white people, and Indigenous people from the political process and the denial of their fundamental rights have been a source of controversy and injustice. These issues, not adequately addressed in the Constitution, have led to ongoing struggles for equality and the realisation of the promise of liberty and justice for all.
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Lack of explicit fundamental economic rights
Economic rights are not deemed "justiciable", which means there is significant controversy over whether independent judiciaries should remedy violations of economic rights through government action or inaction. This has led to debates about whether violations of economic rights should be deemed unconstitutional and whether they demand a legislative or executive response.
The United States, despite being one of the wealthiest countries in the world, has millions of people going hungry and facing poverty. Economic rights are often regarded as second-class, and this has led to controversy and debate. Economic liberty has become increasingly associated with First Amendment protections, and there are elements of free speech law that challenge wealth distribution. For example, the protection of contentious speakers during protests requires funds composed of allocated taxpayer dollars.
Constitutionalizing economic rights can help address issues of hunger, unemployment, and poverty that disproportionately affect low-income individuals and families. The Constitution should guarantee social rights and ensure that individuals' material needs are met. This can be achieved through constitutionalizing social rights, which relate to fundamental individual preoccupations. Judges have a commitment to positive legal ordering because if the Constitution does not guarantee social rights, it fails its moral purpose.
The Articles of Confederation, the first American Constitution, lacked the authority to regulate commerce and was unable to protect or standardize trade between foreign nations and the various states. This led to competition between the individual states, as they issued their own currencies and levied taxes on each other's goods. Delegates like Washington, Madison, and Hamilton believed that promoting the free flow of commerce across state lines and nationalizing the economy would make America an economic powerhouse.
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States' non-compliance with Congress's suggestions
The Articles of Confederation, the first American constitution, was submitted to 13 states for consideration in 1777. However, the states' delayed response and non-compliance with Congress's suggestions revealed the document's limitations. It took until February 1779 for 12 states to approve the Articles, indicating initial hesitation and a lack of unanimous support.
The Articles of Confederation had an extremely limited central government, and individual states enjoyed significant autonomy. They issued their own currencies, levied taxes on goods from other states, and competed economically. This led to concerns about the need for a stronger central government to promote economic unity and national interests.
One of the critical issues addressed in the Constitutional Convention of 1787 was the debate over the importation of enslaved people. While Congress was granted the power to ban the international slave trade, it took until 1808 for this to be formally prohibited, revealing a delay in addressing a pressing moral and human rights issue.
Additionally, the Articles of Confederation excluded Black and Indigenous people, women, and other marginalized groups from the definition of "the people." This exclusionary aspect of the constitution led to controversy and a need for a more inclusive and equitable framework.
The federal government's attempts to influence state behaviour and compliance with federal directives have also been a point of contention. While the federal government may be barred from conscripting state officials, it can employ incentives and conditions attached to federal funding to encourage states to adopt favoured policies. This has been a recurring topic of litigation and congressional interest, particularly regarding "sanctuary jurisdictions" and federal immigration enforcement.
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Frequently asked questions
The Articles of Confederation formed a wartime confederation of states and was the first US Constitution. It was too weak and inadequate as it lacked the authority to regulate commerce, making it unable to protect or standardize trade between foreign nations and the various states.
The US Constitution, which was signed on September 17, 1787, by delegates at the Philadelphia Convention.
The US Constitution excluded Black and Indigenous people, women, and other marginalized groups. It also preserved and propped up slavery.
Abortion, immigration, birthright citizenship, and impeachment.
Jenkins has stated that the US Constitution does not provide an explicit right to housing, education, or basic economic survival. He also believes that it would benefit from a more explicit articulation of fundamental economic rights.
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