Omar Bennett
The US Constitution, signed on September 17, 1787, was not an irrelevant document when proposed. It replaced the Articles of Confederation, which were considered too weak and inadequate, with a powerful central government. The Constitution has endured and evolved over the last 234 years, despite its inherent contradictions and exclusion of marginalized groups. It has been amended over time to address issues of inequality and the need for explicit fundamental economic rights. While originalism, or interpreting the Constitution as it was adopted, was once orthodoxy, the document has also been open to interpretation and change to accommodate future events and necessities.
| Characteristics | Values |
|---|---|
| Date proposed | September 17, 1787 |
| Replaced | Articles of Confederation |
| Promise of freedom for | Americans, excluding Black and indigenous people, women, and other marginalized groups |
| Brilliance | Articulated the idea of fundamental equality and that the government's power flows from the people |
| Flaws | Preserving and propping up slavery and excluding marginalized groups from the definition of "the people" |
| Amendments | The Constitution has been amended and improved over time |
| Interpretation | Originalism was once orthodoxy, but is now a minority view |
| Equality | The Equal Protection Clause was adopted after the Civil War, but did not include sex as a protected category until the 19th Amendment in 1920 |
| Previous constitution | Articles of Confederation, first proposed in 1777 |
| Problems with previous constitution | Congress lacked authority, had no enforcement powers, couldn't regulate commerce, and couldn't raise funds |
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What You'll Learn
The Articles of Confederation were too weak
The Articles of Confederation, the first American constitution, was ratified in 1777 and lasted only eight years. The document established the functions of the national government of the United States after it declared independence from Great Britain. However, the Articles of Confederation were considered too weak and inadequate for the nascent nation.
The Articles of Confederation established a weak central government, with very limited powers. The central government lacked the power to tax, to regulate foreign and interstate commerce, and to enforce acts passed by Congress. It also lacked an executive branch, a national court system, and a judicial branch. The Articles established "the United States of America" as a perpetual union formed to defend the states, but it provided few central powers beyond that.
The Articles of Confederation were also practically impossible to amend. Unanimous consent from all 13 states was required to make any changes to the document. This made it difficult to adapt the Articles to the changing needs of the nation after the war with Britain ended in 1783.
The weaknesses of the Articles of Confederation led to significant problems, including the inability of the central government to settle Revolutionary War-era debts and to put down internal rebellions, such as Shays' rebellion in 1786 and 1787. These issues alarmed the Founding Fathers, who realized that the problems would not be fixable under the current form of government.
In summary, the Articles of Confederation were considered too weak due to the limited powers of the central government, the difficulty of amending the document, and the significant problems that arose as a result of these weaknesses. These issues ultimately led to the adoption of the U.S. Constitution in 1787, which replaced the Articles of Confederation as the organizing document of the United States.
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The Constitution excluded marginalised groups
The Constitution of the United States, signed on September 17, 1787, was a landmark document that articulated the fundamental idea of human equality and the notion that the government's power flows from the people. However, it also excluded marginalised groups, including Black and Indigenous people, women, and non-property owners, from the definition of "the people". This exclusionary aspect of the Constitution has been a subject of critique by scholars and activists advocating for a more inclusive interpretation of the document.
Harvard Law School Professor Alan Jenkins has described the US Constitution as "both brilliant and highly flawed". While it beautifully articulated the notion of fundamental equality, it also preserved and propped up slavery and excluded marginalised groups from the political process. The Equal Protection Clause, adopted right after the Civil War, was meant to address discrimination and ensure equal protection under the law, but it did not initially include protections based on sex or gender. It took until 1920 for the 19th Amendment to be adopted, granting women the right to vote.
The US Constitution's treatment of race and marginalised communities has been a contentious issue. While it promised freedom and equality, it also excluded Black and Indigenous people from the political process and perpetuated racial inequality. The Constitution has been criticised for preserving and propping up slavery, which is inherently contradictory to the principle of equality. In recent decades, constitutional courts in the United States and other consolidated common-law liberal democracies have actively sought to improve the conditions of marginalised groups, with landmark cases defending the rights of vulnerable communities, such as refugees, homosexuals, and Indigenous peoples.
The role of courts in protecting the interests and rights of marginalised groups is crucial, and it has evolved over time. While courts typically restrict themselves to applying the law, there have been instances of judicial activism on behalf of permanent, insular minorities. This activism has led to the improvement of the political and social conditions of marginalised groups, even in the face of social hostility. The South African Constitution, for example, explicitly allows for laws aimed at advancing equity for historically disadvantaged groups, drawing from the country's experience with extreme racial discrimination.
The process of constitution-building is critical for peacebuilding and national reconciliation in societies transitioning from conflict to stable democracies. It raises questions about the participation and representation of marginalised groups in shaping the future of these societies. Social media and international involvement have also impacted the efforts of marginalised groups to secure constitutional protections during constitutional transitions.
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The Constitution preserved slavery
The Constitution of the United States has been described as both brilliant and highly flawed. While it articulates the idea of fundamental human equality and that "government’s power flows from the people", it also preserved and propped up slavery, excluded women, non-white people, indigenous people, and non-property owners from the definition of "the people". The Constitution was also criticised for not explicitly providing for certain fundamental economic rights, such as the right to housing, education, and basic economic survival.
The Constitution was drafted in 1787, and at the time, about 25 of the 55 delegates to the Constitutional Convention owned slaves. The delegates avoided using the word "slave" in the document, but slavery received important protections in the Constitution. For instance, the Three-Fifths Compromise (Article I, Section 2, Clause 3) provided that three-fifths of each state's enslaved population ("other persons") was to be added to its free population for the purposes of apportioning seats in the United States House of Representatives, its number of electoral votes, and direct taxes among the states. The Fugitive Slave Clause (Article IV, Section 2, Clause 3) also provided that slaves held under the laws of one state who escaped to another state did not become free, but remained slaves.
The delegates believed that concessions on slavery were necessary to gain the support of southern delegates for a strong central government. They were convinced that if the Constitution restricted the slave trade, states like South Carolina and Georgia would refuse to join the Union. However, by sidestepping the issue of slavery, the framers laid the foundation for future conflict. Luther Martin of Maryland, a slaveholder himself, argued that the slave trade should be subject to federal regulation and was contrary to America's republican ideals. On the other hand, John Rutledge of South Carolina insisted that unless the regulation of the slave trade was left to the states, the southern-most states "shall not be parties to the union".
While the Constitution strengthened slavery, it also created a central government powerful enough to eventually abolish the institution. Proposals to eliminate slavery by constitutional amendment were introduced as early as 1818, but failed to gain significant traction. The 13th Amendment to the Constitution, passed in 1865, abolished slavery and involuntary servitude, except as punishment for a crime.
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The Constitution lacked a bill of rights
The Constitution of the United States, signed on September 17, 1787, replaced the Articles of Confederation, which were considered too weak and inadequate. The new Constitution promised Americans freedom, but it excluded Black and indigenous people, women, and other marginalised groups.
The Anti-Federalists, on the other hand, wanted power to remain with state and local governments and strongly advocated for a bill of rights to safeguard individual liberty. They refused to support the Constitution without one. The Anti-Federalists' concerns were validated by the fact that, for 130 years after ratification, the courts largely failed to implement the Bill of Rights. By the beginning of the 20th century, racial segregation and sex discrimination were pervasive in American society, and workers were arrested for labour union activities.
James Madison, initially an opponent of the Bill of Rights, eventually introduced a list of amendments to the Constitution in 1789. He proposed rights-related amendments, ignoring suggestions that would have structurally changed the government. Madison recognised the importance voters attached to these protections, and he believed that enshrining them in the Constitution could educate people about their rights. The House passed a joint resolution containing 17 amendments, which the Senate changed to 12 amendments. By December 1791, three-fourths of the states had ratified 10 of these amendments, now known as the "Bill of Rights."
The Bill of Rights established fundamental rights, such as freedom of speech, freedom of religion, and protection from unreasonable government intrusion. While the Bill of Rights was a significant step forward, the Constitution has continued to evolve through amendments to address its original flaws and contradictions.
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The Constitution has evolved and improved over time
The US Constitution, written in 1787 and ratified by nine of the original 13 states a year later, is the world’s longest-surviving written constitution. The Founding Fathers intended the document to be flexible to accommodate the changing needs and circumstances of the country. Virginia delegate Edmund Randolph, one of the five men tasked with drafting the Constitution, stated that the goal was to “insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events.”.
The Constitution has been amended and improved over time through those amendments. The 15th Amendment, ratified in 1870, prohibited denying someone the right to vote based on race. It was the first of several amendments that broadened the franchise—the right to vote. The 19th Amendment, ratified in 1920, gave voting rights to all American women for the first time. The passage of the 16th Amendment in 1913 gave the government the power to collect income tax, a change that effectively reversed the prohibition against a “direct tax” included in Article I of the Constitution.
The Constitution has also evolved through judicial interpretation of existing laws, rather than the addition of new ones. For example, the Supreme Court's recognition of the flexibility and elasticity of the Constitution in McCulloch v. Maryland (1819) reduced the demand for new amendments. The Court affirmed the federal government’s right to take actions “necessary and proper” to meet the urgent needs of the nation. Over time, the federal government expanded and took an increasingly dominant role, with Federalism becoming the law of the land.
Despite the Constitution's evolution and improvements, some critics argue that it still contains fundamental contradictions. For example, while the Constitution brilliantly articulated the idea of fundamental equality, it also preserved and propped up slavery and excluded women, non-white people, indigenous people, and non-property owners from the definition of "the people.". In contrast, South Africa's constitution explicitly allows for laws aimed at advancing equity for historically disadvantaged groups.
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Frequently asked questions
No, the Constitution was not an irrelevant topic when proposed. The Constitution was proposed as a replacement for the Articles of Confederation, which many saw as too weak and inadequate. The Articles of Confederation gave the Confederation Congress the power to make rules and request funds from the states, but it lacked enforcement powers, could not regulate commerce, and could not print money. The Constitution was proposed to address these issues and create a more powerful central government.
The Articles of Confederation created a limited central government, while the Constitution established a more powerful central government with the ability to regulate commerce and print money. The Articles of Confederation also lacked enforcement powers, while the Constitution provided for a stronger federal government that could enforce its laws.
The Constitution was considered important at the time it was proposed because it was seen as a way to strengthen the federal government and address the issues that were threatening to tear the young country apart, such as states' disputes over territory, war pensions, taxation, and trade. The Constitution was also seen as a way to guarantee fundamental rights and freedoms for Americans, although it excluded marginalized groups such as Black and Indigenous people, women, and non-property owners.
