The Constitution: A Debate For The Ages

The interpretation of the written Constitution has been a topic of great debate, with some arguing for a strict interpretation of the original intent and others suggesting that interpretation should be based on evolving moral philosophy and values. This debate centres around the question of whether the original meaning of the document is knowable or relevant, and how this affects the powers of judges and the courts in interpreting the Constitution. The debate was sparked by Attorney General Meese in 1985 and has continued to be a significant issue facing the country, with contributions from notable figures such as Judge Robert Bork, Supreme Court Justice Brennan, and President Ronald Reagan.

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Original intent vs evolving interpretation

The interpretation of the US Constitution has been a subject of great debate, with some arguing for "original intent" and others for an evolving interpretation. This debate centres on how decisions about important issues facing the nation should be made by the United States Supreme Court.

Those who argue for "original intent" contend that judicial power is legitimate only when judges impose constraints based on the limitations found in the written Constitution. This view, supported by Judge Robert Bork, suggests that judges should apply neutral principles in interpreting constitutional rights to preserve the Madisonian balance between majority rule and minority rights. President Thomas Jefferson also warned against turning the written Constitution into a blank slate through interpretation.

On the other hand, some legal scholars argue for an evolving interpretation, suggesting that the original meaning of the document as drafted by the founders is unknowable or irrelevant. Supreme Court Justice Brennan supported this view, pointing to the difficulties in ascertaining the original intention of those who drafted the Constitution. Instead, he called for a jurisprudence based on the notion of "human dignity," where courts apply the ever-evolving values of equality and individual rights rather than being constrained by the views of an earlier age.

This debate has significant implications for constitutional decision-making and the role of the judiciary in interpreting the Constitution. The "original intent" view emphasizes a strict interpretation of the written Constitution, while the evolving interpretation allows for more flexibility and adaptation to changing societal values and norms.

In conclusion, the debate between "original intent" and evolving interpretation reflects a fundamental disagreement about the nature of constitutional interpretation and the role of the judiciary in the United States. While the "original intent" view prioritizes a fixed understanding of the Constitution, the evolving interpretation allows for a more dynamic and adaptable approach that reflects contemporary values and interpretations.

Powers of the president

The powers of the president of the United States include those explicitly granted by Article II of the US Constitution, as well as those granted by Acts of Congress, implied powers, and soft power. The Constitution explicitly assigns the president the power to sign or veto legislation, command the armed forces, ask for the written opinion of their Cabinet, convene or adjourn Congress, grant reprieves and pardons, and receive ambassadors. The president can also appoint and remove executive officers, make treaties (subject to Senate approval), and conduct foreign policy.

The president is the commander-in-chief of the US Armed Forces and may exercise supreme operational command and control over them. This includes the power to launch, direct and supervise military operations, order or authorise the deployment of troops, and launch nuclear weapons. However, the power to declare war is vested in Congress, and the president must seek congressional approval for military action. The president's ability to withhold information from the public, Congress, and the courts in national security and diplomatic affairs is known as executive privilege.

The president is elected for a four-year term by electors chosen by state legislatures, and there are no restrictions on their eligibility for re-election. The delegates debated other options, including a single six-year term with term limits. The president can be impeached and removed from office for "treason, bribery, or other high crimes and misdemeanors".

There has been much debate over the exact degree of authority granted to the president by the Constitution, with Congress at times granting the president wide authority and at other times attempting to restrict it. Federalists maintain that the president is accountable to both the people and Congress and can be impeached if they commit crimes. Antifederalists, on the other hand, fear that the president will become an elected monarch and that the presidential veto power will be abused.

Electoral College

The Electoral College is a body established by Article II of the US Constitution in 1788 and revised by the Twelfth Amendment in 1804, the Fourteenth Amendment in 1868, and the Twenty-third Amendment in 1961. The College comprises 538 electors, with each state allocated electors based on the number of Representatives sent to the House of Representatives, plus the number of Senators sent to the Senate. The Electoral College was created as a compromise between electing the president via a vote in Congress or via popular vote.

The Founding Fathers established the Electoral College to balance the power of large and small states, ensuring that large states did not dominate small ones in presidential elections. The College's apportionment is based on total state population, not the number of eligible voters, which granted white Southern voters greater influence as enslaved people were counted as part of the population. The delegates at the Constitutional Convention also debated whether Congress or state legislatures should choose the chief executive. This resulted in a compromise where state legislatures would direct the appointment of electors.

The Electoral College has been criticised for its reflection of compromises between slave-holding and non-slave-holding states, tainting its legitimacy. The "winner-takes-all" approach adopted by most states and the District of Columbia (except Maine and Nebraska) has also been criticised for reducing the voting power of Black people in the South and making elections unfairly reliant on swing states. The Electoral College has resulted in candidates who lost the popular vote becoming president, as seen in 1824, 1876, 1888, 2000, and 2016.

Proponents of the Electoral College argue that it creates a clear winner, reducing pressure for runoff elections. The system also ensures that candidates campaign in swing states, preventing domination by large states. Opponents of the Electoral College suggest amending the Constitution, which would require significant consensus, with two-thirds affirmation from the House and Senate and approval from 38 out of 50 states.

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Slave trade

The issue of slavery was a highly contentious topic during the drafting of the US Constitution. Of the 55 delegates to the Constitutional Convention, about 25 owned slaves. Many of the framers harbored moral qualms about slavery. Some, including Benjamin Franklin (a former slaveholder) and Alexander Hamilton (who was born in a slave colony in the British West Indies), became members of anti-slavery societies.

The Three-Fifths Clause in Article I, Section 2, stated that slaves were considered less than fully human. It was a compromise when creating the Congress and determining how slaves were counted for representation and taxation purposes. Some argued that it gave greater power to the southern states, but Frederick Douglass believed it encouraged freedom as it gave "an increase of 'two-fifths' of political power to free over slave states".

The Importation Clause, or the "Importation of Persons Clause", in Article I, Section 9, did not mention exactly who the "persons" were who might be "imported". This clause permitted the taxation of the "importation of such persons" and passed with unanimous support from the state delegations. Congress was unable to ban the slave trade before 1808, but it could tax enslaved Africans as property.

The Fugitive Slave Clause required that escaped slaves be returned to their owners, even if they had fled to a state where slavery was illegal. This was part of the compromise that granted the federal government the power to regulate the importation of slaves for 20 years, after which the international slave trade would be prohibited.

There were debates over the representation of slave states in Congress, with Southern states wanting slaves to be counted as part of their population for representation purposes, despite slaves not being able to vote. Northern states objected to this as it would give the South an unfair advantage in Congress.

The controversy over the Atlantic slave trade was ultimately settled by compromise. In exchange for a 20-year ban on any restrictions on the trade, southern delegates agreed to remove a clause restricting the national government's power to enact laws requiring goods to be shipped on American vessels.

During the 20-year period between the adoption of the Constitution and 1808, popular support for the abolition of the slave trade and slavery itself increased in the US and internationally. The UK and other countries passed legislation restricting the slave trade, increasing international pressure on the US to curb the practice.

Bill of rights

The Bill of Rights was a highly contested issue during the debates over the ratification of the US Constitution. The supporters of the Constitution were known as Federalists, while those opposed to it were called Anti-Federalists. The Federalists argued that a bill of rights was unnecessary and potentially dangerous. They believed that the new federal government had limited powers and could not infringe on freedoms of the press or religion, as it was not granted any authority to regulate them. They also held that any listing of rights could be seen as exhaustive, and rights not mentioned could be considered as not retained. Federalists also pointed out that historical bills of rights had offered little protection against oppressive acts.

The Anti-Federalists, on the other hand, vehemently argued for the inclusion of a bill of rights in the Constitution. They believed that a bill of rights was essential to protect individual liberties and prevent the central government from becoming too powerful. Led by George Mason of Virginia and Elbridge Gerry of Massachusetts, they asserted that the liberties of Americans could not be secured without a bill of rights. The Anti-Federalists were concerned about the potential abuse of power by the government and wanted to ensure that the newly won freedoms of speech, press, and religion were protected, along with the right to be free from warrantless searches and seizures.

The debate over the Bill of Rights was intense and prolonged, lasting four years. Eventually, James Madison, an early opponent of a bill of rights, changed his stance and led the effort to develop one that would satisfy the Anti-Federalists. Madison initially proposed nine changes to the body of the Constitution rather than additional articles. However, the Federalists were reluctant to modify the recently ratified document. As a compromise, the House of Representatives agreed to place all amendments at the end of the Constitution.

On September 25, 1788, the House and Senate jointly agreed on twelve proposed Articles as additions to the Constitution and sent them to the states for approval. The inclusion of the Bill of Rights was a significant development in the history of the US Constitution, guaranteeing fundamental rights to the American people and addressing their concerns about governmental power. Thomas Jefferson, a strong advocate for the Bill of Rights, famously stated, "there is no safe depository of the ultimate powers of the society but the people themselves," reflecting the importance of individual rights and the responsibility to preserve them.

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