Exploring the Constitution, Part 3: What Is It?

In the previous installment of this series, we discussed a little of the historical background of the Constitution. Before proceeding with our detailed examination of the Constitution itself, you might find it useful to know just what I think the document is. We will cover that in this column. Next time I will present the approach that I believe people should use when they read and interpret our fundamental law. After that, we will finally get into the actual text of the Constitution.

The thrust of the last column was that the Framers of the Constitution were not trying to bring about radical change. Instead, they wanted to set up a form of government that would guarantee the liberties that Americans had come to expect under the pre-George III British system. This view might lead one to conclude that there really was nothing unusual about our Constitution. If I left you with that impression, I hope to shatter it this week.

America’s English heritage left the people governed by thirteen sovereign republics: the original states, derived from the colonies. The citizens of those republics had not founded their governments; that was done by the British government. But the people had taken to heart the English tradition of legislative assemblies, and made those governments their own, both under the British colonial administration and under the new state administrations. Most people regarded themselves as citizens of an individual state, not of a larger national entity. Thus, the states were the focus of the political interests of the people, and the people were generally willing to be represented by the state governments.

There is only one way in such a context to establish a national government: write a contract to which the people, as represented by their state governments, can agree. I’m not talking about some abstract “social contract” here; but an actual, written, legally binding contract. That is how I see the Constitution. The people’s representatives met in 1787 and wrote a contract to which each state could subscribe, to specify which of their powers they would cede, and to what extent, to a federal government.

A written contract has enormous advantages over verbal agreements or other less formal arrangements. Properly written, the contract’s provisions should seldom if ever be in question. The precise words of a verbal agreement, on the other hand, fall into more doubt with every passing year. The commitment of the parties to obey a written contract is also in much less question: the signatures are there for all to see.

The British constitution, we noted earlier, was a model of liberty worthy of emulation. Yet it consisted of a collection of statute law, common law, court decisions, agreements, and mere traditions. It was not written down in a coherent fashion that could never be misinterpreted. The Framers of the U.S. Constitution wanted something more concrete: they produced a written contract.

In their contract, they placed formidable traps for those who might want to increase the power of the federal government. These traps, known as “checks and balances,” are ways of setting up the three branches of government (legislative, executive, judicial) in opposition to one another. Gouverneur Morris, one of the delegates, described the needed principle: “The checking branch must have a personal interest in checking the other branch...Vices as they exist must be turned against each other...” Thus, even if all of the branches of the government became corrupt, competition among them would make conspiracy against the prerogatives of the states and the liberties of the people more difficult.

Finally, and most striking of all, was the underlying assumption made by everyone involved: that the contract known as the Constitution would grant well-defined and limited powers to the government. All of these powers were derived from the people and the state governments, who retained all other rights and powers not so granted. Thus, the federal government could do what the Constitution authorized, but nothing more. This principle was merely assumed at first, then enshrined in writing in the Tenth Amendment when the Bill of Rights was adopted.

With all of these safeguards built into the Constitution, it is easy to see what Thomas Jefferson meant when he said, "In questions of power, then, let no more be said of confidence in man. But bind him down from mischief by the chains of the Constitution."