Constitution Day 2006

Our Self-Correcting Constitution

By William Woodward, Ph.D.
Professor of History
Seattle Pacific University

She had no clout, no cash, no advocate. Still she sought justice, but the judge ignored her plea. She kept coming back, and he finally ruled in her favor – just to get her off his back.

Jesus told this story. His point, according to Luke’s gospel account, was to pray persistently: If a heedless magistrate yields to repeated requests, how much more a just and loving God?

The story cuts two ways. Yes, it invites a closer relationship with God. But it also realistically acknowledges how hard it is for the powerless to get their due.

To try to fix that pervasive flaw in human societies, Americans look to their 219-year old Constitution. “We the people of the United States,” begins the great document, in order “to establish justice,” have created a rule of law for a federal republic to govern a diverse and ambitious people.

The key to securing justice is to balance two crucial principles: the rule of the many and the rights of the few. The first is democracy, the second a corrective to excesses of democracy. The American Constitution, especially as augmented by its first 10 amendments, the Bill of Rights, strives to strike that balance.

But as with most remedies, the cure can cause new problems. Where does an aggrieved American turn if theory fails in practice? What if the Constitution is unclear or improperly applied? And if the remedy turns out to need a remedy, what is that remedy?

The genius of the living American constitutional system as it has unfolded through American history is not only the sturdy document itself, not only its foundational precepts of majority rule and minority right, but also its own built-in mechanisms for on-the-fly redress.

Got a problem with your Constitution? You’ve got four ways to fix it.

1. FEDERALISM: the distribution of power

The first is the dispersal of power within the structure of government. Distinct yet overlapping authority is allocated to the different levels of government (state and federal). This is the principle of “federalism” discussed in last year’s essay. And within each level, the three functions or branches (legislative, executive, judicial) get separate responsibilities and prerogatives; that is, the structure builds in “checks and balances” due to the “separation of powers.”

So while the system confers power to govern on representatives elected by simple majority, no one center of governmental authority holds enough power to trample the people’s rights. The framers thus solved the structural problem they saw in the British constitutional system, in which Parliament and the King wielded power without accountability.

Or so the theory goes. But what if it doesn’t work out that way? That’s where the political process comes in.

2. POLITICAL PARTIES: the balancing of power

The two most influential framers were James Madison and Alexander Hamilton. Allies in the drafting and ratifying process, they became, in one of history’s great ironies, bitter enemies over how the charter should be applied. Hamilton saw it as a license for governing flexibly, by adapting to unfolding needs of security and the economy. Madison saw it as a constraint on governing arbitrarily, by checking the inevitable abuses that follow from the temptations of power.

The result of their intensely personal dispute was the first political party system. It happened early in George Washington’s administration. To counter Hamilton’s supposed unconstitutional overreach, Madison (with Thomas Jefferson) organized an opposition movement. To protect against Madison’s supposed self-interested obstructionism, Hamilton mobilized his own supporters. The American tradition of a two-party system was born. We’ve adjusted it several times (historians recognize at least three and often four or five “party systems”). But it has served well in compensating for perceived misapplications of policy and constitutional principle by providing an automatic counterbalance—a loyal opposition—to hold the party in power accountable. Political scientist James McGregor Burns has called the two-party system the “People’s Constitution.”

Today, “partisan” is a dirty word (as it was in fact for the framers). But political parties, because they channel and constrain popular desires and discontents, have usually stabilized the political process even while their rhetoric and campaign behavior has poisoned it!

Yet politics is not enough. What if one party achieves so decisive and comprehensive a majority that it can bend the Constitution to its own will? That’s where the unelected branch, the judiciary, steps in.

3. THE SUPREME COURT: speaking to power

In the pivotal presidential election of 1800, Thomas Jefferson and his “Democratic-Republicans” ousted John Adams and his Hamiltonian “Federalists.” But Adams played a trump card just before leaving the White House: he appointed fellow Federalist John Marshall as Supreme Court chief justice. Marshall initiated a political revolution as momentous as the invention of political parties. We call it “judicial review.” That means, as a later justice boldly proclaimed, that “the Constitution is what the Supreme Court says it is.”

So the Court can fix what politics cannot.

I tell my students that all Americans should know—by name, context, and significance—at least four landmark decisions handed down by the Court. The first, Marbury v Madison (1803), was Marshall’s. It made possible the rest: Dred Scott v Sanford (1857), Brown v Board of Education of Topeka (1954), and Roe v Wade (1973). What Marbury did was assert the right and role of the Court to interpret the Constitution in a way that could void an action of the other two branches.

The circumstances of Marbury are fascinating (not to say confusing)—and the results ironic. Outgoing President Adams named William Marbury to a judicial post, but incoming Secretary of State James Madison refused to deliver the certifying document, annulling the appointment. Marbury sued, going directly to the Supreme Court. In his decision, Marshall pulled a classic chess gambit, sacrificing a pawn, so to speak, to take the queen. He denied his Court had jurisdiction in order to establish the Court’s power! What he ruled was that the Act of Congress granting his Court the right to hear such cases violated the Constitution, thus the law was “unconstitutional” and therefore void, thus the court could not rule on the merits of the case, thus Marbury was out of luck. But, in ruling a law, even one that sought to empower the court, unconstitutional, Marshall established two crucial principles: first, that courts can pass judgment on the constitutionality of executive and legislative action, thereby asserting the power of the judiciary over the other two branches; second, that the national government can pass judgment on the constitutionality of state law (implicit in Marbury, made explicit soon after), thereby asserting national power over the states.

That’s judicial review. It’s been central to the American system ever since.

But what if the Supreme Court itself gets it wrong? That brings us to Brown v Board.

Back in 1895 the court had decreed that “Jim Crow,” the legalized segregation of African-Americans into “separate but equal” facilities, such as schools or public restrooms, was a constitutional practice. By the 1950s, this legacy of racism was under attack. An artfully orchestrated campaign of legal actions led to the decision that famously ruled that “separate” was inherently “unequal,” and therefore Jim Crow laws were unconstitutional. The Supreme Court had reversed itself, unanimously in fact, and legal segregation was no more. (Of course, eliminating “de facto” segregation and discrimination, to say nothing of the prejudice that feeds them and the social and economic injustices that they cause, remain at issue.)

But what if the Supreme Court—or the Congress, or the president—gets it wrong and never reverses its action? Then the most drastic of constitutional self-correcting remedies kicks in: changing the charter document itself through an amendment.

4. CONSTITUTIONAL AMENDMENTS: self-correcting power

A Maryland politico from a slaveowning family, Roger Taney, had succeeded John Marshall as chief justice back in the 1830s, just as sectional tensions over slavery were erupting. Taney, like Marshall, stressed in his rulings that economic opportunity flowed from guaranteed property rights. Taney softened some of Marshall’s more stringent defenses of such rights (“The community,” he declared in breaking up a monopoly, “also have rights”), but with slavery he was firm. For Taney, owning people was just one more example of the protected rights of private property.

The irony is obvious. Taney’s defense of the rights of a minority (in this case, Southern slaveowners and their right to property) came at the expense of another minority (African-Americans and their right to freedom).

In the 1850s, as the slavery issue neared an explosion, Taney figured he could defuse the impending crisis by a pre-emptive strike. In Dred Scott, he confronted a slave’s suit for freedom based on his sojourn with his owner in free territory. Taney’s solution to the case and to the whole slavery debate was absolute. A slave, being property, could never be a citizen, and could never sue. Indeed, even Congress couldn’t restrict slavery; any law limiting slavery in U.S. territories was overturned. Case dismissed. North-South confrontation ended.

Not so fast, said Abraham Lincoln and his fellow Northern Republicans. Civil War followed. And in the closing months of the war, the states that had not seceded from the Union ratified the 13th Amendment to the Constitution, ending once for all the institution of chattel slavery, property in human flesh.

The Dred Scott ruling itself was thus dismissed. The American people had overturned the Court. Indeed, two more amendments (the 14th, guaranteeing citizenship to former slaves, and the 15th, specifying their right to vote) followed, emphatically repudiating Taney’s opinion.


But what of the fourth momentous ruling, Roe v Wade? More than three decades after the decision, it remains contentious. So polarizing is it still that just to mention it risks offending a reader. Yet it’s one more worthy example of our focus on ways to fix constitutional flaws. The ruling—plus the ways its opponents seek to reverse and its supporters secure it—offers a further illustration of the four self-correcting means of adjustment.

Roe bears striking parallels to Dred Scott. In both cases, the Court sought to pre-empt the political process. But instead, both decisions became hotly debated issues within the political process.

Taney wanted to undercut two quite different northern viewpoints that offered ways to keep slavery from expanding out of the South into the West. “Popular sovereignty” proposed that the citizens of Western territories should decide for themselves if slavery should be admitted or banned. Its supporters hoped the tactic would make the debate local instead of national. “Free soil” sought to keep slavery out of the West altogether, confining it to the South where, again, its future could be determined locally rather than nationally. (Only a fraction of Northerners wanted “abolition” of slavery.) To the contrary, said Taney, slaves could not be banned from the territories by anyone.

Instead of settling the issue, Taney inflamed it. Southerners exulted, but Northerners reacted with dismay. Some suggested ways to evade the ruling. In his famous debates with Stephen Douglas in the 1858 Illinois Senate race, free soiler Lincoln deftly proposed a legal sleight-of-hand to circumvent it. Douglas supported the Court but tried to preserve popular sovereignty; he offered a clumsy and dubious counterproposal that alienated both North and South. In fact, as it turned out, their respective ideas so caught the attention of the nation that two years later Lincoln would beat Douglas for the presidency.

Somewhat analogously, Justice Harry Blackmun, writing for the seven-justice majority in Roe, found an implied right of privacy to justify taking the abortion question out of local politics. That pre-emptive move, far from de-politicizing the issue, arguably helped foster a political revolution by spurring a once-quiet bloc of conservatives into activism.

Opponents of Roe would take the parallel further by arguing that the ruling chose the rights of one group (pregnant women) over those of another (unborn children, according to “pro-life” vocabulary).

For such opponents, what is the recourse? And for supporters, how might their judicial victory be at risk?

Think about the four means of remedying perceived constitutional deficiencies. Most drastic, and least likely, would be a constitutional amendment, like the ones that dealt with slavery. More plausibly, legislative action could erode a pure “pro-choice” posture, especially if sustained by the court, much as the Taney Court modified Marshall’s rulings on individual property rights. This option becomes more likely if public opinion were to swing decisively to the “pro-life” side. (During the late 1930s, a shift in the leanings of the Supreme Court, apparently bending to the political winds, led to decisions upholding New Deal legislation.) A third possibility, a nightmare prospect for Roe-supporters and cherished hope of Roe-opponents, is a high court that, like the Warren Court in Brown, would find reasons to overturn Roe.

But here’s the ultimate irony. If Roe goes, the abortion question returns to the states. Far from becoming illegal, abortion would remain a protected procedure in places, including Washington state, where courts or legislatures have made it so. The self-correcting American constitutional system would once again revert to that brilliant invention: federalism.

Betraying just a bit of my personal position on Roe, I reject the simplistic polarities of slogans that belie the flexibility and nuance of the Constitution and its long and fruitful life. I suspect, against the prejudices of the extremes, that most “pro-choice” militants care as much about life, especially one free from outside interference, as liberty or happiness, and most “pro-lifers” prize free choice, sincerely wishing all women would voluntarily choose to carry fetuses to term, after which a variety of choices would be offered for the best possible life for mother and baby alike.

My distaste for slogans and regret for the stereotypes they sustain explain why I celebrate the genius of the framers on this Constitution Day 2006. In the steamy heat of a Philadelphia summer in 1787, they crafted a living document. Its genius arises from its balance of majority rule and minority right as a means to justice. Its dynamism stems in large measure from its openness to remedying its own defects or omissions—and then to remedying those remedies.