U.S. Constitution For Dummies

Part 1

Getting Started with the U.S. Constitution

IN THIS PART …

Uncover the ideas on which the Constitution was based.

Find out how the Constitution was originally ratified in 1788.

Gain insight into some of the more confusing aspects of the Constitution.

See how the Constitution has undergone some fundamental changes without formal amendment.

Chapter 1

Identifying the Main Principles and Controversies of the Constitution

IN THIS CHAPTER

check Understanding what a constitution is

check Finding out who created the U.S. Constitution, and why

check Breaking down the Constitution’s chief tenets

check Introducing some constitutional problems

Most of the stuff written about the Constitution is boring and hard to understand. But it doesn’t have to be. And frankly, it shouldn’t be, because the Constitution is pretty important — yes, important to you in your daily life.

In this book, I do my best to explain the Constitution in simple language. And in this chapter, I offer a broad introduction to the Constitution: what it is, who created it, the principles it does and doesn’t discuss, and the areas of controversy that keep it in the headlines even today.

Defining Constitution

First, what exactly is a constitution? Okay, here goes. A constitution is a sort of super-law that regulates the way a country or state is run. How helpful is that as a definition? Not very? So let’s be more specific, and this time let’s focus specifically on the Constitution of the United States.

The U.S. Constitution is the supreme law of the nation controlling the following main features (plus a few more):

The functions and powers of the different branches of the government: the President, the Congress, and the courts

The way in which the President and the Congress are elected and how federal judges are appointed

The way government officials — including the President and the judges — can be fired

The relationship between the federal government and the states

Your rights as a citizen or inhabitant of the United States

remember The word constitution can mean either the physical paper document or constitutional law as defined by the U.S. Supreme Court, which includes a number of features that don’t actually appear in the document, such as the rights to privacy, abortion, and gay marriage. These additional features are mainly a product of the so-called living constitution approach to the Constitution (as a document), which believes that the Constitution needs to be constantly reinterpreted to take account of changes in prevailing social, political, and moral values. On the other hand, strict constructionists, textualists, and originalists interpret the Constitution (as a document) sticking closely to the perceived original meaning of the words in question. I discuss the different approaches to constitutional interpretation in Chapter 3.

Knowing When and Why the Constitution Was Created

The Constitution emerged from a meeting called the Philadelphia Convention, which took place in 1787. (That meeting has since come to be known also as the Constitutional Convention.) The Convention was held because the Articles of Confederation — the document that had been serving as the country’s first governing constitution — were considered to be weak and problematic (see Chapter 2). The stated goal of the Convention was to revise the Articles of Confederation, but the outcome was much more than a mere revision: It was a new form of government. See Figure 1-1 for a look at a scene from the Convention.

Source: Howard Chandler — The Indian Reporter

FIGURE 1-1: George Washington presiding over the Constitutional Convention, 1787.

The 55 delegates to the Philadelphia Convention came to be known as the Framers of the Constitution. They represented 12 of the 13 states (Rhode Island didn’t send a delegate), and they included some familiar names, such as George Washington, Alexander Hamilton, and James Madison.

The Convention lasted from May 25 to September 17, 1787. In the end, only 39 of the 55 delegates actually signed the Constitution. Three delegates refused to sign it, and the rest had left the Convention before the signing took place.

For the Constitution to take effect, it had to be ratified — or confirmed — by nine states. Special conventions were summoned in each state, and the Delaware, New Jersey, and Georgia conventions ratified the Constitution unanimously. But some of the other states saw a pretty fierce battle for ratification. In New York, for example, the Constitution was ratified only by 30 votes to 27.

Ratification was achieved in 1788, and the Constitution took effect with the swearing in of President George Washington and Vice President John Adams on April 30, 1789.

DISTINGUISHING THE FOUNDERS FROM THE FRAMERS

The term Founding Fathers was (probably) coined by President Warren G. Harding about 100 years ago. Founding Fathers, or simply Founders, refers to the political leaders of the struggle for American independence against Britain. It includes the American leaders in the Revolutionary War, the signatories of the Declaration of Independence, and also the Framers of the Constitution (or simply, Framers).

The Founders include George Washington, Benjamin Franklin, Alexander Hamilton, John Jay, John Adams, Thomas Jefferson, James Madison, James Monroe, Patrick Henry, and Tom Paine.

The term Founding Fathers overlaps somewhat with the term Framers of the Constitution, but the two terms are not identical in meaning. The term Founders is much broader than the term Framers because it covers all the leaders in the fight for American independence, including all the delegates to the Philadelphia Convention who drafted the Constitution. So all the Framers were Founders, but not all the Founders were Framers!

Thomas Jefferson, for example, drafted the Declaration of Independence and was one of the leading Founders of the United States. But he was not involved in the drafting of the Constitution because he was on official business in France at the time. So Jefferson was a very prominent Founder, but he was not a Framer.

Summarizing the Main Principles of the Constitution

In broad strokes, here are the principles you find in the Constitution:

Liberty: The Framers of the Constitution aimed to establish a form of government that gave the people as much individual freedom as possible, by guaranteeing them

Religious freedom

Freedom of speech

Freedom to defend themselves with arms

Federalism: The United States started out as 13 separate British colonies, which banded together to throw off the British yoke. At first, in 1777, the colonies formed a loose alliance under the so-called Articles of Confederation (not to be confused with the similarly named Confederacy proclaimed by the seceding southern states in the 1860s). But the need for a stronger central government resulted in the drafting of the U.S. Constitution, which was ratified in its original, unamended form in 1788. The Constitution established a federal system of government, which gave the central or federal government certain clearly defined and limited powers, reserving the remaining powers to the states or to the people.

Separation of powers: The Framers of the Constitution were very anxious to prevent any one person or institution from becoming too powerful. So the Constitution keeps the three branches of government separate. These branches are the Executive (the President), Legislative (Congress), and Judicial (the law courts). But a system of checks and balances cuts across this separation. So, for example, Congress passes laws, but the President can veto them. Similarly, the President has the power to appoint Cabinet officers and federal judges, but his appointments are subject to the advice and consent of the Senate. And the Supreme Court can check any perceived abuse of the power of Congress by striking down laws that the Court rules are unconstitutional.

Due process: Due process of law is one of the main buzz phrases of the Constitution — according to the Supreme Court. You may assume that this phrase would refer simply to procedure, or how things should be done, like whether or not you are allowed a jury trial. But the Supreme Court has widened its interpretation of the phrase greatly to include substantive due process, or what rights the Constitution actually confers or protects. As a result, the Court has interpreted the Constitution as guaranteeing a bunch of controversial fundamental rights, including

An expansion of the rights of those suspected or accused of crimes

An expansion of minority rights

Privacy

Abortion

Here are some of the principles you may assume are addressed in the Constitution, but aren’t:

Democracy: The words democracy and democratic don’t figure anywhere in the text of the Constitution. In its original form, the Constitution was not democratic, and the House of Representatives was the only directly elected part of the federal government. The Constitution became democratic as a result of the rise of President Andrew Jackson’s Democratic Party in the 1830s (see Chapter 6).

Equality: Equality was also not one of the principles of the Constitution in its original form.

Slavery formed an integral part of the Constitution until the Civil War. For example, Article IV, Section 2, Clause 3 provided in its original, unamended form that runaway slaves who escaped from a slave state to a free state had to be delivered up to their original owners. The whole structure of the House of Representatives also depended on slavery. In its original form, Article I, Section 2 of the Constitution apportioned the representation of the various states according to the numbers of their free population — plus three-fifths of their slaves. This three-fifths rule cynically used the slave population (who of course didn’t have the right to vote) to give the slave states more representation in the House than they would otherwise have had.

Women didn’t have the right to vote in the U.S. as a whole until 1920, though some states had allowed women to vote before then.

To this day, the interpretation of the anti-discrimination (or equal treatment) amendments to the Constitution remains highly controversial. The most controversial amendment is the Fourteenth, which can be invoked either in support of affirmative action or in opposition to it. Those Supreme Court justices who support affirmative action see it as a necessary part of the anti-discriminatory thrust of the Due Process Clause of the Fourteenth Amendment, while those justices who oppose affirmative action see it as itself just another form of discrimination.

THE FEDERALIST PAPERS

When the U.S. Constitution emerged from the Philadelphia Convention after being signed by delegates from each of the 12 participating states, it still had to be ratified, or confirmed, by the states, each of which summoned a special convention for this purpose. Fierce controversy reigned.

In October 1787, Alexander Hamilton, a leading member of the Convention and a dedicated upholder of the Constitution, started publishing a series of articles explaining and justifying the Constitution. Hamilton got James Madison, another leading Convention delegate, to join him. John Jay, another Founding Father (although not a Convention delegate) also contributed some articles.

The series of articles was titled The Federalist and was described as a Collection of Essays written in favor of the New Constitution. Hamilton himself wrote 51 of the 85 articles, Madison contributed 27, and Jay wrote 5.

Although they were written before the Constitution took effect, these essays show tremendous insight into the problems of government and have been cited ever since as embodying an authoritative interpretation of the Constitution.

Identifying Some Areas of Controversy

The whole text of the Constitution takes up just a few pages of print; see the Appendix if you don’t believe me. So why do you need to read a book this long in order to understand it? The old-fashioned language of the Constitution sometimes needs to be explained. And there are a few — actually surprisingly few — genuine ambiguities in the text. But, for the most part, you can blame it on the lawyers and the judges — particularly the U.S. Supreme Court — who have made a major production out of a pretty simple, straightforward document.

How come there’s such major disagreement about what the Constitution means? There are essentially three reasons:

Old-fashioned language: The English language has changed since the horse-and-buggy era when most of the Constitution was written (but perhaps not as much as you may think). Consider the following examples:

Article III, Section 3 contains the phrase Aid and Comfort in connection with committing treason. Does this mean that you’ll go to jail if you give the enemy milk and cookies? Not quite. The phrase was lifted straight out of the old English Treason Act of 1351. The word comfort comes from a Latin root meaning to strengthen. So, giving the enemy Aid and Comfort means actively assisting the enemy and strengthening him, whether by means of arms, money, or intelligence.

The biggest changes have occurred in punctuation. So, for example, the Fifth Amendment ends with this prohibition: nor shall private property be taken for public use, without just compensation. Some commentators have claimed to notice a smudge in the original handwritten version of the Bill of Rights, which they take to be a comma between taken and for, making for public use a bracketed phrase. They conclude from this that the Constitution allows the government to take private property for purposes other than for public use.

inmyopinion Even if there’s meant to be an additional comma in there, this interpretation is plainly wrong. First, in the 18th century commas were strewn around much more liberally than today, without affecting the meaning. Second, the idea that the government can just take private property whenever it feels like it goes clean against the whole tone and tenor of the Constitution.

Ambiguity: There are a few passages in the Constitution where the meaning is genuinely in doubt. Here are two examples:

Do individuals have the right to keep and bear Arms? The Supreme Court says yes, but the wording of the Second Amendment is not at all clear. I discuss this important question in Chapters 12 and 15.

If the President dies, does the Vice President become President or only Acting President? Article II, Section 1 of the Constitution is genuinely ambiguous. The Twenty-Fifth Amendment, which came along only in 1967, says that in these circumstances the Veep does become President. But the problem was actually solved in practice by John Tyler, back in 1841. See Chapters 10 and 22 for all the details.

Interpretation: Many of the disputes about the meaning of the Constitution arise out of different approaches to constitutional interpretations by justices of the Supreme Court. Here are just a few of the most controversial constitutional issues:

controversy Can Congress pass any laws it likes? The Supreme Court says no. But some commentators disagree with this interpretation and read Article I, Section 8 of the Constitution very widely. In particular, they interpret the power of Congress to pay the Debts and provide for the common Defence and general Welfare of the United States as meaning that Congress can pass any laws it likes. This reading is almost certainly wrong, and James Madison said so himself. I tackle this question particularly in Chapter 9.

Does the President have the power to lock up enemy combatants and deny them access to the U.S. courts? In the 2008 case Boumediene v. Bush, by a majority of 5 to 4, the U.S. Supreme Court said no. However, in June 2012 the Court declined, without comment, to take up appeals filed on behalf of seven Guantanamo detainees who claimed that they had not had a meaningful opportunity to challenge their detention.

Is the death penalty kosher? Yes, but it does depend on the method used. Lethal injection is now the favored method — and the Supreme Court says it’s not cruel and unusual punishment. But the Supreme Court has also held that it’s unconstitutional to execute minors and the mentally ill. In Glossip v. Gross (2015), the Supreme Court held by a majority of 5 to 4 that the use of the drug midazolam was not unconstitutional. Justice Breyer used his dissent to launch an attack on the constitutionality of capital punishment of any kind. Welcome to Groundhog Day was Justice Scalia’s sarcastic response, referring to earlier attacks on capital punishment in cases such as Furman v. Georgia (1972), in which a 5–4 majority succeeded in temporarily banning the death penalty as unconstitutional. In April 2017, the Supreme Court was again confronted with a problem with midazolam, which its manufacturers were no longer prepared to supply for the purpose of execution. The state of Arkansas was anxious to execute a number of death-row inmates before its stock of midazolam reached its expiration date. Newly appointed Justice Neil Gorsuch formed part of the 5–4 majority allowing all but one of the executions to go ahead.

Can a school district assign students to public high schools on the basis of race alone? In 2007, by 5 votes to 4, the Supreme Court said no. Writing for the majority, Chief Justice John Roberts held that The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Why, then, we may ask, do school districts in a number of states still require parents to fill out a form asking What race(s) do you consider your child? The form often lists more than 50 races to choose from. The short answer to my question posed above is simply that the school districts concerned have not yet reached the goal of a color-blind educational policy.

Is gay marriage constitutional? Marriage doesn’t figure in the U.S. Constitution at all. It was considered to be a matter for individual states to decide. But in Obergefell v. Hodges (2015), by a majority of 5 to 4 the U.S. Supreme Court ruled that marriage is a fundamental right guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the Constitution. The ruling requires all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages solemnized in other jurisdictions. In his dissenting opinion, Justice Scalia scathingly characterized the majority opinion as lacking even a thin veneer of law and as descending to the mystical aphorisms of the fortune cookie. See Chapter 23 for more on this case.

Are states allowed to secede from the Union? The Supreme Court says no. The last time secession was tried, it took a civil war to end it. Since that time a number of groups have advocated the secession of a state, a city, or a tribe, but no serious attempt has been made. (One such group, the Alaskan Independence Party, hit the news during the 2008 election campaign because of alleged links with Sarah Palin, the Republican vice presidential candidate.)

This is just the tip of the iceberg when it comes to constitutional controversies, and I devote a good deal of space in this book to sifting through them and offering my own humble opinions of the Supreme Court’s interpretations. If the Constitution weren’t a source of so much debate within the halls of government, perhaps it wouldn’t be nearly as interesting to read and learn about. Luckily for you, that isn’t the case!

Chapter 2

Probing Underlying Concepts: Big Thinkers, Big Thoughts

IN THIS CHAPTER

check Recognizing the influence of Magna Carta

check Adhering to the rule of law

check Examining the central ideas that undergird the Declaration of Independence

check Writing republicanism into the founding documents

The United States started out as 13 British colonies that overthrew the British yoke — which was no joke at all! The American Revolution and the War of Independence led to the birth of a new nation and a new form of government enshrined in a written constitution — which, with a number of changes, has survived for more than 200 years.

Although the United States was born out of a bitter struggle with Britain, the leading citizens of the new nation — including the Framers of the Constitution (see Chapter 1) — were of British stock. They were educated men steeped in English law and familiar with British political institutions and philosophy.

No wonder, then, that the U.S. Constitution drew on these British sources — but no wonder either that it departed from British traditions in some major ways too, sometimes deliberately and sometimes accidentally.

In this chapter, I discuss some of the British constitutional documents, political writings, and doctrines that were most venerated by the Founders of the United States, including:

Magna Carta

Habeas corpus

The rule of law

Natural law

The consent of the governed

Republicanism

Building on Magna Carta

Magna Carta (Latin for Great Charter) is a document dating back to the year 1215 containing a number of concessions made by King John of England to his rebellious barons.

What relevance could this kind of document possibly have to the United States nearly eight centuries later? The Founding Fathers used Magna Carta as a justification for the Declaration of Independence and later as a precedent for some features of the U.S. Constitution.

Such is the veneration accorded this document in the United States that in 1957 the American Bar Association erected a memorial to Magna Carta in England. And a 1297 reissue of Magna Carta (sold at auction in 2007 for $21.3 million!) sits in a glass case in the National Archives rotunda in Washington, D.C. — right beside the original texts of the Declaration of Independence and the U.S. Constitution.

If you take the trouble to read Magna Carta, you’ll probably find it just about as riveting as a phonebook — even if you speak Latin at home, because that is the language in which Magna Carta is written.

The good bits of Magna Carta are few and far between. Here’s the most quoted provision:

No free man shall be arrested or imprisoned, or deprived of his rights or property, or outlawed or exiled … except by the lawful judgment of his equals or by the law of the land.

Here are a few examples of ways Magna Carta may have influenced the Founding Fathers, as evidenced in the Declaration of Independence and the U.S. Constitution:

remember Taxation without representation: Did Magna Carta prohibit taxation without representation? Clause 12 of the original promised no scutage or aid shall be imposed on our kingdom, except by the common council of our kingdom. Scutage and aid were two feudal taxes on knights and barons alone. But did this mean that a tax could be imposed only with the consent of those subject to it? Possibly. The American patriots sure thought so. When in 1765 the British Parliament passed the Stamp Act taxing everything from newspapers to playing cards and dice, the Massachusetts Assembly declared the act against the Magna Carta and the natural rights of Englishmen, and therefore … null and void. I discuss the concept of the consent of the governed in connection with the Declaration of Independence later in the chapter.

Trial by jury: Did Magna Carta — in particular the clause quoted earlier in this section — guarantee trial by jury? The clause supposedly guaranteed everyone the right to be tried by their equals, or fellow citizens. In fact, this right took a lot longer to be established in England — and it has now largely been lost there, except in cases of serious crime. But the right to a jury trial sure is alive and well in the United States and is enshrined in the Sixth and Seventh amendments to the Constitution, which I deal with in Chapter 18.

Habeas corpus: Did Magna Carta guarantee habeas corpus — the right to take legal action to end unlawful detention? Not exactly, but Magna Carta was a trailblazer for this later right. The passage from Magna Carta quoted earlier in this section promises that nobody is to be imprisoned except after a proper trial. But this right didn’t become available right away. As late as 1628, King Charles I had five knights imprisoned by his majesty’s special commandment. Habeas corpus became a major issue in the ensuing English Revolution, resulting in Charles I’s execution. Habeas corpus was eventually incorporated into statute in 1679.

This important privilege (not a right) is now enshrined in Article I, Section 9 of the U.S. Constitution: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. Habeas corpus became a hot-button issue in the final year of the Bush Administration with regard to detention in Guantanamo Bay: Boumediene v. Bush (2008).

Respecting the Rule of Law (or the Rule of Lawyers?)

The rule of law is commonly regarded as a fundamental principle of the Western world, and of the United States in particular. The phrase rule of law sounds impressive. But what exactly does it mean?

At its simplest, the rule of law just means that nobody is above the law. This principle was used as a stick to beat the old absolute monarchs of Europe — like King Louis XIV of France, who famously boasted, I am the state, or even the weak Louis XVI, who is reported as asserting, It’s legal because I wish it.

The counterblast to such exorbitant claims was put by the English political philosopher James Harrington as the empire of laws and not of men. John Adams adapted this concept slightly and introduced it into the Massachusetts Constitution of 1780 as A government of laws and not of men. In its most euphonious form, it became A government not of men but of laws. This high-sounding ideal was echoed by Chief Justice John Marshall in the leading case of Marbury v. Madison (see Chapter 23).

remember But how can law rule? Laws are just words on paper. They are therefore subject to interpretation — by courts, judges, and lawyers (who argue their interpretations of laws to the courts and hope that their interpretations will be accepted). An anonymous wag put his finger on this truth and retorted that what the Founding Fathers were really likely to establish was A government not of laws, but of lawyers.

This throwaway line has proved prophetic, and even some Supreme Court justices have admitted that the meaning of the U.S. Constitution changes in accordance with the changing views of the Court. In the words of Chief Justice Charles Evans Hughes, We are under a Constitution, but the Constitution is what the judges say it is.

inmyopinion This oft-quoted remark comes from a speech that Hughes gave as governor of New York in 1907, long before becoming a Supreme Court justice. But he was already pompous enough to add, and the judiciary is the safeguard of our liberty and our property under the Constitution. Susette Kelo, who nearly lost her lovely salmon-pink Victorian cottage because of a particularly unjust decision by the U.S. Supreme Court in 2005, would probably not agree with Hughes’s comment! (See my discussion of eminent domain in Chapter 17.)

The principle of the rule of law doesn’t figure in the U.S. Constitution in so many words. The closest thing to the rule of law that appears in the Constitution is the Supremacy Clause in Article VI, which reads as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

This clause clearly places federal law above state law, but does it give the U.S. Constitution higher status than the rest of federal law? Article V sure makes it difficult to amend the Constitution, but that in itself doesn’t prove that the Constitution trumps all other laws.

Chief Justice John Marshall, in the case of Marbury v. Madison, went to great lengths to show that the Constitution has higher status than any other law and that a law repugnant to the Constitution is void. This was a new judge-made principle and enabled the Supreme Court to arrogate to itself the power of judicial review — which was to become its strongest weapon against the other branches of the federal government. See Chapter 23 for a full discussion of Marbury v. Madison.

The power of the Supreme Court to strike down laws found to be unconstitutional is now taken for granted. But was that the intention of the Founding Fathers? Thomas Jefferson objected strongly to the way the Supreme Court usurped the right of exclusively explaining the Constitution, commenting that, The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

A more accurate prediction about the Constitution would be hard to find!

Analyzing the Concepts Underlying the Declaration of Independence

The American colonists had an ambivalent attitude toward the British Constitution. Their leaders steeped themselves in the traditions of the British Constitution and generally identified with the revolutionary spirit that had led to the execution of one king — Charles I in 1649 — and the expulsion of another — James II in 1689. They regarded themselves as entitled to the same rights as natural-born Englishmen but found themselves treated at best as second-class subjects.

At first they appealed to King George III for redress of their grievances. But when their heartfelt pleas fell on deaf ears, they decided to throw off the British yoke altogether and declare their independence.

But on what basis could they justify this revolutionary step? Although they felt excluded from the British Constitution — because they were denied a voice in the British Parliament — they invoked the principles underlying Britain’s embryonic democratic system, most notably the principles of No taxation without representation and Government by consent of the governed.

Thomas Jefferson took just 17 days to construct the case for American independence in the Declaration of Independence, whose rolling prose and unforgettable phrases were based on a blend of traditional British principles with some European ideas. See Figure 2-1 for a look at some who helped construct the Declaration of Independence.

Source: Jean Leon Gerome Ferris

FIGURE 2-1: An idealized reconstruction of Benjamin Franklin, John Adams, and Thomas Jefferson composing the Declaration of Independence. The Declaration was mainly the work of Jefferson.

The Declaration of Independence, adopted on July 4, 1776, by the Second Continental Congress, marks the birth of the United States as a new nation — or does it? Upon closer inspection, the Declaration actually announces the birth of not one but 13 new nations — each of the former colonies being a separate nation. See Chapter 7 for more on this aspect of the Declaration.

But, whether the Declaration announced one birth or a litter of 13, it was a document essentially justifying the throwing off of British colonial rule.

The Founding Fathers were not natural revolutionaries. They were educated, well-to-do men of property and pillars of society who wouldn’t normally have been mixed up in violence or war. So, what impelled these solid citizens to become involved in a bloody conflict that lasted six years?

remember The slogan that first rallied opposition to Britain was No taxation without representation. The American colonies had elected legislatures, but the British Parliament could override these colonial legislatures and pass laws without consulting them. The Stamp Act of 1765 was an example of this: It slapped a tax on everything from newspapers to playing cards and dice — without any consultation with the colonists. The high-handedness of this action rankled the colonists.

Did the colonists have a legal right to consent to decisions that affected them? Not under the British Constitution as understood at the time. So the colonists had to look elsewhere.

England had itself had a revolution — or two revolutions, to be precise — in the 17th century. The colonists naturally found themselves drawn to the rhetoric of those revolutionaries, who had relied a good deal on Magna Carta, to which they gave a very broad interpretation.

But Magna Carta wasn’t enough on its own to justify throwing off the British colonial yoke. Magna Carta belonged to a bygone feudal age. Most of the rights contained in Magna Carta were concessions made by King John to the barons and didn’t apply to ordinary people. During the English revolutions of the 17th century, the opponents of the Crown glamorized and reinterpreted Magna Carta in ways that were not always very convincing. The American Founders adopted the same expansive approach to Magna Carta, but they also used the following concepts that are reflected in the Declaration of Independence:

Natural law

[U]nalienable Rights

Consent of the governed

Republicanism

Invoking the law of nature

The Declaration of Independence opens with a claim on behalf of the American people to the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.

The concept of the law of nature (or natural law) goes back to ancient Greece and Rome, and it was commonly equated with the law of God (or divine law) and also with the law of nations.

remember Natural law theory said that man-made law — or positive law — was valid only if it conformed to the moral standards laid down by natural law, which was rational, universal, unchanging, and everlasting. The only problem with natural law was that there was no agreement about its content, as it was unwritten and existed only in the minds of its adherents. For example, was slavery in accordance with natural law? Some natural law advocates said yes, others no.

The Declaration of Independence claimed that the American states were entitled to independence from Britain on the basis of the supposed natural law principle that each nation, or people, has the right to national self-determination. That supposed principle formed no part of the British Constitution — and was not even recognized in international law (with major modifications) until the 20th century.

Securing unalienable Rights

Natural law was popular among educated Americans in the late 18th century. But the problem with natural law was that those who supported it could disagree violently about its content. So, although the Founders relied on natural law, it provided a pretty shaky foundation for American independence. The Declaration of Independence is on firmer ground when it declares that it’s the people’s right — and even their duty — to overthrow a despotic government and to replace it with a government that will protect their unalienable Rights.

This assertion is proclaimed in ringing tones:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

These are just about the most sacred words of any American founding documents, but we need to delve just a little beneath their surface. Let’s take a look at some of these rolling phrases:

We hold these truths to be self-evident: This is an admission that these truths can’t be proved.

All men are created equal: How could this statement be reconciled with slavery? Thomas Jefferson himself, the author of the Declaration of Independence, was a slave owner, as were many other Founding Fathers. Similar wording in the Massachusetts Constitution of 1780 led to a legal challenge to slavery in the state courts, which effectively ended slavery in that state. But slavery was legally abolished throughout the nation only with the ratification of the Thirteenth Amendment in 1865 (see Chapter 20).

controversy Creator: Does the appearance of this word — and the appeal to the Supreme Judge of the world later on in the Declaration of Independence — mean that the United States is based on acceptance of religious belief? The last verse of the U.S. national anthem, The Star-Spangled Banner, contains the words And this be our motto: ‘In God is our trust’. The motto In God We Trust has appeared on the penny since 1909, and since 1956 it has been the official national motto of the United States. But is this public display of religious belief in accordance with the First Amendment? I discuss this important subject in Chapter 14.

Unalienable Rights: The word unalienable — in modern English, inalienable — refers to something that can’t be taken away, or even given away. Inalienable rights are therefore fundamental rights that automatically belong to every human being. They can be seen as God-given rights or as rights conferred by natural law — similar therefore to what are commonly labeled natural rights. Not everybody believes that such rights actually exist. The British philosopher Jeremy Bentham famously declared, The idea of rights is nonsense and the idea of natural rights is nonsense upon stilts.

Life, Liberty and the pursuit of Happiness: This phrase is a variant on the phrase lives, liberty, and property that appeared in the Articles of Association of the First Continental Congress in 1774. The pursuit of Happiness is broader than property and harder to pin down. In the case of Loving v. Virginia, decided in 1967, the U.S. Supreme Court struck down a Virginia statute outlawing interracial marriage, on the ground that The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Even the term Liberty is hard to define. In Meyer v. Nebraska, the U.S. Supreme Court decided in 1923 that a Nebraska law banning the use of a foreign language as the medium of instruction to kids in grade school was unconstitutional and a denial of the liberty protected by the Due Process Clause of the Fourteenth Amendment. Justice Anthony Kennedy commented in 2000 that, had Meyer’s case been decided more recently, it probably would have been based not on the Fourteenth Amendment but rather on the First Amendment’s protection of freedom of speech, belief, and religion.

Deriving their just powers from the consent of the governed

The Declaration of Independence goes on like this:

[T]o secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

In other words:

remember The purpose of government is to safeguard the rights of the people.

The only legitimate type of government is one based on popular consent.

What exactly is meant by consent of the governed? By putting these words into the Declaration of Independence, Thomas Jefferson gave early notice that the government of the new United States was to be based on consent. New state constitutions soon followed suit, with elected governors and legislatures. And the government of the United States itself was designed on the same pattern, although it was at first confined, under the Articles of Confederation, to a Congress made up of delegates appointed by the state legislatures. (I discuss the Articles of Confederation later in this chapter.)

But how genuine was the claim that the governments set up by the American patriots did, indeed, govern by consent of the governed? It doesn’t take much scrutiny to see that the American Revolution was not a democratic revolution. Instead, it was the overthrow of a colonial power by a wealthy elite, who then naturally stepped into the shoes of their former colonial masters.

In fact, the Framers never claimed to be democrats, and the word democracy doesn’t appear anywhere in the U.S. Constitution (see Chapter 1). In establishment circles in the American colonies — as in England — democracy was a dirty word:

John Adams, the future president, attacked the proposals of the radical Thomas Paine as so democratical, without any restraint or even an attempt at equilibrium or counterpoise, that it must produce confusion and every evil work.

James Madison, often described as Father of the Constitution and also a future president, was no fan of democracy either. Indeed, he attacked it in even stronger terms than the more conservative Adams. Here’s what Madison said about democracy:

Democracy is the most vile form of government … democracies have ever been spectacles of turbulence and contention: have ever been found incompatible with personal security or the rights of property: and have in general been as short in their lives as they have been violent in their deaths.

The Founders just didn’t trust the ordinary people and deliberately kept them at arm’s length, as can be seen from the way they drafted the Articles of Confederation and then the U.S. Constitution. Keep reading to see what I mean.

Establishing a Republic

The Founding Fathers weren’t democrats, so what were they? The concept that they embraced was republicanism. John Adams — the same John Adams who attacked democracy — waxed lyrical in his praise of republicanism. Here’s how Adams defined it:

A government, in which all men, rich and poor, magistrates and subjects, officers and people, masters and servants, the first citizen and the last, are equally subject to the laws.

As you start reading this definition, you get the impression that it’s going to be egalitarian — based on the equality of all people. But the last phrase gives the game away. Republicanism, according to this definition, isn’t about any power that the people have but about a power that they are under. In a republic, says Adams, everybody is equally under the law.

This definition of republicanism ties in with Adams’s better-known statement of the goal aimed at by the newly independent states. As I note earlier in the chapter, this objective was so fundamental to Adams that he incorporated it into the Massachusetts state constitution: A government of laws and not of men.

remember Adams’s ideal was not one of people power at all. Rather, his ideal was one in which the people were subservient to laws made by an elite group (of which he was a prominent member) — with the last word on the interpretation of those laws going to judges drawn from the same elite group.

Democracy doesn’t figure in the U.S. Constitution at all — but republicanism sure does. Article IV, Section 4 says:

The United States shall guarantee to every State in this Union a Republican Form of Government.

There is no precise definition of Republican, but Adams’s views on the subject are a reflection of the Framers’ thinking (although Adams himself didn’t attend the Constitutional Convention, as he was serving as U.S. ambassador to Britain at the time).

Getting rid of the king

The absence of a king is an important aspect of republicanism. The main body of the Declaration of Independence is taken up with a long list of grievances against King George III. Most of these grievances start with the word He, referring to the King in person.

The truth is that King George did not call all the shots personally. He delegated a lot of his power to his ministers, and he just didn’t have a great deal of power. (Later in life, after the American Revolutionary War, the poor guy was replaced by his son as Regent because King George suffered from serious mental illness.)

As a result, the King was in reality no longer head of government but only head of state — an increasingly purely ceremonial position in which the King represented the nation but was under pressure to become politically neutral.

This British model of government in which the head of state is separate from the head of government has