September 17, 2020
By Timothy Sandefur
September 17 is Constitution Day—a time to reflect on the importance of the U.S. Constitution and the many ways it secures the blessings of liberty. The day was chosen because that’s when delegates at the Constitutional Convention of 1787 signed the final document that they had worked on for nearly four months in Philadelphia. It was certainly an important day. Benjamin Franklin said that day that throughout the convention, he had often noticed a little carving of a sun on the chair in which George Washington sat. He had often wondered, he said, whether it was supposed to be setting or rising, “but now at length I have the happiness to know,” he told his colleagues, “that it is a rising, and not a setting sun.”
But of course, it wasn’t a Constitution yet. It was just a proposal that was then submitted to the American people for their approval. Over the next nine months, states held their own conventions to decide what they thought. These ratification conventions included another round of debates over the proposed constitution. Some were quite heated. At Pennsylvania’s convention, a mob threw rocks through the windows. And it wasn’t until June 21, 1788, upon New Hampshire’s ratification, that it officially became the Constitution of the United States.
That, however, wasn’t the Constitution we have today. For one thing, supporters had been forced to promise opponents to add a Bill of Rights, something they had feared because they did not want people to think the federal government had more power than it actually had. Anyone making a list of rights, they warned, would inevitably leave something out—and then people would later say you had no right to that thing. Nevertheless, support for a bill of rights was so strong that once Congress got underway in March 1789, it began drafting the first ten amendments. (One of these, the Ninth, addressed the incompleteness problem: It says that just because something isn’t specifically mentioned in the list of rights does not mean it’s not a right.) These amendments, like the Constitution itself, had to be ratified, too, so the Bill of Rights wasn’t officially adopted until December 15, 1791—four years and seven months after the Constitution was signed. By that time, there was a whole new state: Vermont, which had been admitted the previous March.
But that, too wasn’t the end of it. Many people, including James Madison, the “father of the Constitution,” weren’t satisfied with how the Constitution had come out. He was especially concerned that it included no protections against states violating religious freedom. The First Amendment prohibited the federal government from interfering in religious matters, but states remained free to force people to fund churches, or even to compel church attendance—and several states kept established churches. Massachusetts didn’t eliminate its official religion until 1833. That same year, the Supreme Court ruled that states were not required to follow the Bill of Rights—meaning states could still deprive people of liberty without due process, or take their property without just compensation, or censor their books and newspapers.
And, of course, states could enforce slavery. By the time Madison died in 1836, there were more than 2 million enslaved people in the country, and for the next 25 years, controversy over the legal status of slavery would push the country toward civil war. It wasn’t just about slavery itself, either: When pro-slavery politicians censored anti-slavery newspapers, or prohibited Congress from even reading petitions seeking the abolition of slavery, or demanded that the federal government declare war on Mexico to seize land for slavery to expand—in all these and other controversies, slavery restricted other freedoms, stretching and tearing at the fabric of the nation’s basic law.
The Constitution, after all, was supposed to “secure the blessings of liberty” to all of “the people of the United States,” as its opening sentence declared. Among other things, it promised that no “person” would be “deprived of liberty” without “due process.” Yet leading politicians and judges interpreted the Constitution in twisted ways to conclude that these words did not apply to whole classes of people. This trend degenerated to the point that in the Dred Scott case of 1857, Chief Justice Roger Taney declared that black Americans were not included in the Declaration of Independence’s reference to equality—notwithstanding the fact that it said “all men are created equal,” not just “some.”
Taney’s perversions of the Constitution’s text weren’t enough to protect slavery, so in 1861, its advocates declared themselves no longer part of the union, initiating a bloody Civil War that resulted not only in their own defeat, but in the eradication of slavery through the Thirteenth Amendment, ratified on December 6, 1865. It was followed on July 1868 by the Fourteenth Amendment, which provided new protections against state abuses—fixing the flaw Madison had regretted. Now the Bill of Rights did apply to the states.
Yet even this renovated and expanded Constitution left many things out. States remained free to deny voting rights to non-whites and to women, for example—an omission not fixed until August 1920, with the adoption of the Nineteenth Amendment.
In these and other stages of American history, the Constitution’s promise—to preserve the blessings of liberty against tyrannical, arbitrary, and unjust government, and to secure each person’s right to pursue his or her own happiness—has been expanded. Some have viewed this process as a transformation of the American ideal—in their view, the Constitution’s authors only intended to promote the special privileges of people like themselves. But it’s truer to say, as Abraham Lincoln did, that the Constitution was written in light of the principles of the American founding, and that our nation has shown its best self when it ensures those principles to all. When the Founders declared that all men are created equal, Lincoln said, they “meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence, and augmenting the happiness and value of life to all people of all colors everywhere.”
Like all human institutions, the Constitution is imperfect. Yet every day, and with every generation, we have an opportunity to learn and improve our country—to guarantee more broadly the individual rights to which all humanity is entitled—and to ensure that freedoms of speech, ownership, economic liberty, religious conscience, self-defense, and other elements of liberty are better protected. So while we celebrate Constitution Day on September 17, it’s worth remembering that every day is Constitution Day. Or can be.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.