Constitution Day

On September 17, 1787, forty white men met in Philadelphia to sign a document which they had argued over in secret for four months. (A total of 55 delegates had been meeting since May 14). It was the United States Constitution, and since September 17 falls on a Saturday this year, the US has temporarily set the celebration date for September 16, a Friday.

The question is what Americans should be celebrating here. For some, the Constitution is an idol made of pen and paper instead of gold and jewels. It is something fixed and eternal. Its meaning was established once and for all by those 40 (or 55?) white men. Some people think that we can ascertain one meaning from those 40 (or 55?) white men; and, moreover, that that one meaning from 1787 should be applied today.

For others, the Constitution is more a process. Thus Edmund Randolph, one of the five men charged with drafting the Constitution, observed that “In the draught of a fundamental constitution,” it was necessary to “insert essential principles only, lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events...” Constitution supporter John Marshall (who later led the Supreme Court) would write in a famous opinion that “[The Constitution is] intended to endure for ages to come, and, consequently, to be adapted to the various CRISES of human affairs.”

So in intention and reality, the Constitution is a process. The critical question is who gets to play in the game. Another Chief Justice of the Supreme Court (Charles Evan Hughes) claimed “We are under a Constitution, but the Constitution is what the judges say it is.” If you are a mandarin—or simply a plutocrat who believes that judges should serve the rich—then this constitutes a comfortable position.  History, however, proves this false. Jefferson and Madison (1789-1799) and the New England states (1814-1815) said state governments should have a say. President Jackson did not like this version of states rights, and when South Carolina suggested it he threatened to invade South Carolina with an army. At another point, in reaction to a Supreme Court decision, he said “John Marshall has made his decision, now let him enforce it.”

It is also fair to say that Union soldiers and discontented slaves had something to do with re-defining the Constitution in the 1860s. Rebellious farmers and workers forced the Supreme Court to change its position on political economy in 1937. (And in 1951 one of the justices (Owen Roberts) said as much, admitting that he changed his vote because he wanted to avoid “radical changes.”)

The Supreme Court takes a lot of credit for the impressive results of the mid-twentieth century US racial rights revolution. Yet southern whites ignored the Court until Blacks started sitting at lunch counters and marching in the streets in the 1960s. The American Black cause was helped because part of the USA white power elite worried about “coloured” people “going Communist” in Africa, Asia, and South America.

In my forthcoming book, U.S. Constitution for Beginners (For Beginners 2012), I have called the Constitution a “truce.” What should be celebrated about the Constitution Day is the degree to which ordinary people have a chance to define the ongoing terms of the truce. What is garbage about celebrating Constitution Day is the degree to which Ivy League mandarins and plutocrat puppets claim that ordinary people have no role in attempting to define the terms of the truce.

Certainly pundits and idol worshippers will be offended by this version of the Constitution. It smacks of mere power, things arbitrary, and opportunist compromise. Yet I can only read my Constitution and US history. How otherwise can a black slave be counted as 3/5 a person? How otherwise is segregation legal in 1896, and illegal in 1954? Or wage and hour regulation illegal in 1936, and legal again in 1937? How otherwise can some fictional entity be considered a human person for purposes of “free speech”? In the 1970s law professors discussed health care in terms of a constitutional right, now they question whether it has anything to do with the national economy.

On Constitution Day people should learn to see, and then do something about what their eyes and hearts tell them. Otherwise the mandarins, plutocrats and idolaters will do it for them.

-Steve Bachmann, author of U.S. Constitution For Beginners