American Constitutional History

A Brief Introduction

Jack Fruchtman

• Publisher: Wiley-Blackwell
• Year: 2022
• ISBN:
  9781119734291
• Edition: 2
• Topic: Historia
• Subtopic: Historia de Norteamérica

Reveals how the Constitution has evolved over the past 235 years, featuring updated coverage of the 2020 presidential election and constitutional changes made by the Supreme Court up to June 2021

American Constitutional History: A Brief Introduction, Second Edition presents a concise and accessible history of the 235-year development of the Constitution since its ratification. The book is organized around five distinct periods in U.S. history—the New Republic, the Slave Republic, the Free-Market Republic, the Social Welfare Republic, and the Contemporary Republic—to demonstrate the evolution of the American republic and its founding document over time. With an engaging narrative approach, author Jack Fruchtman describes how constitutional changes have occurred through both formal amendments and informal decisions by the president, Congress, and the Supreme Court.

Updated to cover the period from 2015 to 2021, the second edition examines the controversial presidential election of 2020 in which Donald Trump, despite losing the electoral and popular vote, claimed victory and espoused charges of widespread election fraud. New coverage of the addition of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to the Supreme Court is complemented by discussion of important decisions made after 2015, including affirming same-sex marriage, a woman's right to abortion under certain circumstances, the right to own and carry a firearm, and the central place of religious liberty in American society. This book also:

• Highlights the Constitution's evolution through government regulation of the economy, individual and civil rights, and executive power
• Reflects the evolution of constitutional changes made by the Supreme Court up to June 2021
• Discusses topics such as the ideological origins of the U.S Constitution, the Civil War and Reconstruction, the civil rights movement, and growth of executive power
• Includes chapter overviews, summaries, and descriptions of formal constitutional amendments ratified by the states

American Constitutional History: A Brief Introduction, Second Edition is an excellent introductory textbook for upper-level undergraduate and graduate courses in American history and political science and a must-read for general readers seeking insights into the origins and evolution of the U.S. Constitution.

Part 1
The New Republic, 1781–1828

The Constitution’s first three articles set forth the structure of the new government with three separate and coequal branches: a Congress, divided into two houses, to make laws; a president to enforce them; and a Supreme Court to interpret them. The structure reflected the classical republican tradition, which envisioned a mixed regime where power was divided to avoid tyranny and to promote a public spirit among the people.

The Classical Republican Tradition

The framers’ vision of a republic hearkened back to ancient Greek ideas about political organization. In one of his most celebrated works, The Politics, Aristotle, the fourth-century BCE philosopher, was concerned with the most practicable rather than the ideal state. He observed that society was naturally divided into three social classes: royalty, nobility, and the common people. In terms of governmental decision-making, this division falls into the categories of the one, the few, and the many. Only one ruler, a king or prince, comes from the royal class, a few from the aristocracy, and many from the people. In government, each class corresponds to a political body organized along these lines:

	Rule by the One	Rule by the Few	Rule by the Many
Society:	Royalty	Nobility	Common People
Government:	Monarchy	Aristocracy	Democracy

To ensure that government represents all three classes, the political structure must guarantee that each has a role in making decisions and setting policy. The mixed regime, or republic, balances the three elements to ensure that citizens participate in decision-making, if only indirectly through representatives.

Early republics defined citizens as only male property owners and excluded all others. Landowning citizens possessed a stake in society; they were public spirited and had the desire and qualifications to participate in decision-making. No one held office for a long period of time, because when citizens rotate in and out of office they avoid corrupting influences. The great Renaissance theorist Niccolo Machiavelli argued in his Discourses on Livy that this public spiritedness promoted virtue (virtú), the highest ideal a republican citizen could achieve. Rooted in the Latin res publica, the term republic literally means the “public thing.” In the eighteenth century, the framers used the word republic, or res publica, to refer to the “common good,” the “public good,” or the “good of all.” Three examples from history illustrate how the republic and the balance of the mixed regime work in practice: ancient Rome; Renaissance Florence; early modern England. In each, the mixed regime combined all three forms of government. They supplied the republic with what Aristotle and Machiavelli thought was the most practicable way to achieve the common good. The structure followed this scheme:

	The One	The Few	The Many
Rome:	The Consuls	The Senate	The Council
Florence:	Consigliere de justicia	The Senate	The Great Council
England:	The King	House of Lords	House of Commons

While Americans believed that this pattern provided a model, many of them also thought that Britain did not have a true republic because of its hereditary king and nobility. Six months before the formal break with Britain in 1776, pamphleteer Thomas Paine wrote that its two remaining ancient tyrannies, the king and the Lords, dominated the “new republican materials” in the Commons. “The two first, by being hereditary,” he contended, “are independent of the people; wherefore in a constitutional sense they contribute nothing towards the freedom of the state.”

The Americans’ first constitution, the Articles of Confederation (1781–1788), did not follow the historic pattern of the classical republic (Box 1). Only one branch existed, a Congress, which had no authority to raise revenue.

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Box 1 The Articles of Confederation, Agreed to by Congress November 15, 1777; ratified and in force, March 1, 1781, excerpts

Preamble

To all to whom these Presents shall come, we the undersigned Delegates of the States affixed to our Names send greeting.

Whereas the Delegates of the United States of America in Congress assembled did on the fifteenth day of November in the Year of our Lord One Thousand Seven Hundred and Seventy seven, and in the Second Year of the Independence of America, agree to certain articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, in the words following, viz:

Articles of Confederation and perpetual Union between the States of New Hampshire, Massachusetts-bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia.

Article I. The Stile of this Confederacy shall be “The United States of America.”

Article II. Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.

Article III. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The Articles of Confederation 1777 / Independence Hall Association / Public domain

The government also lacked an independent judiciary. After some Americans saw its shortcomings, they reconsidered the structure of their republic. After a rancorous debate, they ratified the Constitution in 1788, paralleling the ancient Roman Republic and its political heirs:

	The One	The Few	The Many
United States:	The President	The Senate	The House of Representatives

The Congress, with its bicameral legislature, and the president had links to the people through the electoral process, though mostly indirectly. The framers also created an unelected, unaccountable judiciary independent of the other two branches. The judges served terms “during good behavior,” which means they remained in office until they retired, resigned, died, or were removed by Congress through impeachment. Congress could never lower the judges’ compensation to influence their decisions. Americans thus engaged in a political experiment in ratifying a constitution that they hoped would achieve the good of all.

The framers divided power horizontally between the executive, legislative, and judicial branches of the national government in a scheme called the separation of powers. While classical republicanism promoted the separation of powers, the eighteenth-century French theorist, Baron de Montesquieu (1689–1755), strongly advocated it in The Spirit of the Laws. The framers were as familiar with Montesquieu’s work as they were with Aristotelian and Machiavellian republican ideas. In Federalist 47, one of the essays designed to inspire the ratification of the new Constitution, James Madison noted that “the oracle who is always consulted and cited on this subject, is the celebrated Montesquieu.”

The new American republic also divided power vertically between the states and the national government in a structure known as federalism. The states retained the authority to make laws regulating behavior within their own geographic territory. The delegates who signed the Constitution on September 17, 1787, were certain that no one branch of government and no state or federal entity could dominate the others. They thought that divided power ensured that just and fair laws would pass, the president would sign them, and the courts would ensure their constitutionality. It has not always worked out that way: presidents often take unilateral steps beyond their constitutional authority; Congress sometimes passes unconstitutional laws; and the Supreme Court decisions are final unless overturned by an amendment or overruled by a future Court opinion.

John Locke, Deism, and Religious Liberty

The classical republican tradition and Montesquieu’s doctrine of the separation of powers formed part of the principles of the American republic. The influential ideas of John Locke (1632–1704) also contributed to the framers’ understanding of government. Locke, an English political philosopher and statesman, provided the rationale for the overthrow of the Stuart monarchy in England in 1688 and the rise of parliamentary supremacy. While very few copies of his Second Treatise of Government (1689) turned up in America in the eighteenth century, his views were important to the development of Anglo-American political thought.

Locke posited a genial, pre-government state of nature when human beings mostly lived in peace. The few who failed to understand the needs and desires of their fellow human beings lived beyond the law of nature as outlaws. Men’s responsibility was to destroy those who violated the peaceful state of nature, but this was an inconvenient duty. To overcome these inconveniences, the people entered into a social contract and gave up some of their natural rights in exchange for the security that government offered them. A legitimate government protected the people’s possessions and their rights of life, liberty, health, and happiness. Natural rights were thus transformed into civil rights and civil liberties. Locke especially wanted to protect property rights. He developed an early form of the labor theory of value, which maintained that a person had the right to enjoy the fruits of his own labor. Government based on these principles was good.

Locke also set forth a theory concerning revolution. When government became oppressive and deprived its citizens of their civil rights and liberties, it broke the social contract. The people, in turn, have a right to change it, even by force, to create a new contract. The opening lines of the Declaration of Independence reflected this Lockean view of revolution: “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Jefferson, the principal author of the document, pointed to three of the four rights that Locke had addressed: life, liberty, and the pursuit of happiness. Some commentators have assumed that the latter was a euphemism for “property” or wealth, or at least its pursuit.

The reference to the laws of nature and nature’s God in the Declaration reveals Jefferson’s religious views. He did not believe in a personal God to whom he could pray for salvation, health, or riches. Like many of the American founders, he was a deist, who believed in Enlightenment reason and science. Deism holds that God exists only as a creator who had instilled free will in human beings. After he created the universe, God relied on human beings to improve or destroy it. Benjamin Franklin, George Washington, James Madison, and Alexander Hamilton were deists. John Adams was more orthodox in his Christianity.

The idea that God instilled in human beings a longing for freedom was rooted in early American history. It was embodied in the idea that freedom is as much a spiritual condition as it is a political and social one. The Puritan impact on New England colonies was profound. Obedience to state authority, especially to the established church, ensured a moral and righteous citizenry. John Winthrop, the seventeenth-century Puritan minister and governor of Massachusetts Bay Colony, understood this when he was on board ship in 1630 headed to America, the “New Israel.” He famously sermonized that “we shall be as a City upon a Hill,” or else the Almighty would bring down His wrath. Fifteen years later, he told his flock that natural liberty differed from moral liberty. The former was the liberty “to do evil,” whereas the latter was liberty “to do only what is good.” To perform good deeds meant that the citizens had to adhere to the officially established church, its dogma, and teachings. Christian liberty demanded that citizens submit to the laws of the secular authority and, consequently, the will of God.

Not all religious leaders followed these precepts. Notably, Winthrop expelled Roger Williams from Massachusetts Bay in 1636 for heresy. Williams, a Baptist, believed in religious liberty. He moved south to found Rhode Island, a new colony, specifically underscoring the importance of the separation of church and state. William Penn, a Quaker who founded Pennsylvania as “a Holy Experiment” in 1681, mirrored Will...