The future of the American Constitution

The framers who adopted the American Constitution in 1787, a mix of higher law, compromise, and pragmatism, hoped it would frame a nation that would last and prosper. Four years after its adoption they added the first 10 amendments, the Bill of Rights, to ensure individual liberty against an overly aggressive national government.

The nation did prosper under the Constitution. Despite civil war, world war, and internal strife, the document provided a touchstone and a refuge for our political system. If constitutional standards were met, constitutional legitimacy always seemed to hold our political and social system together—even in the face of considerable discord and conflict.

What manner of a Constitution is this? Why is it still revered by Americans from virtually every political persuasion?

Insight on this question might be found in the lectures of three remarkable students of the Constitution who spoke of the document at the University of Arkansas at Little Rock in the fall of 1987. The only still-living presenter, C. Peter MaGrath, now in his late 70s, continues to see duty as an interim university president because of his long and successful experience in higher education.

—————— Walter Murphy, the McCormick Professor of Jurisprudence at Princeton, presented the first lecture that fall. Prior to his time at Princeton, a 21-year-old Murphy commanded a platoon that took a hill in Korea with just 16 of his men surviving. He won the Distinguished Service Cross, and his unit won three battle stars for gallantry. In a sense, Murphy exemplified those constitutional provisions that provide for the common defense and the establishment of an army and navy.

Murphy spoke at UALR of constitutional values, conceptions and context. The words of the documents present values to ensure domestic tranquility and to provide for the common welfare, equal protection and due process. These are concepts that we are all bound by and that impose obligations upon us all, said Murphy, noting that we could all agree on equal protection of the laws, but how the “anti-discrimination norm” was applied had to be worked out through conflict and consensus. In consequence, blacks and women later were brought under the equal protection clauses of the 5th and 14th Amendments as our constitutional system reacted to change and growth.

But context cannot be ignored, said Murphy. During the Civil War, Lincoln over-stepped his constitutional authority several times, arguing that to follow a particular clause of the Constitution but lose the whole, and the Union with it, was a choice he could not make. By the time the Supreme Court got around to hearing whether his actions to block Southern ports was constitutional, the war was over.

Murphy was emphatic that the Supreme Court is not the single authoritative interpreter of the Constitution, noting that other judges, courts and lawyers, also interpreters, were not singularly authoritative either. Murphy said that the Constitution belongs to the people, because without their support and belief it is just a piece of parchment.

To illustrate, when Franklin Delano Roosevelt attempted to pack the Court to assure that New Deal laws would be judged constitutional, he was met with strong public opinion against his plan, although he was close to the height of his popularity. The American people at that time did not believe Roosevelt’s scheme to change the structure of the Supreme Court fell within the boundaries of the Constitution, and they told the president so.

Murphy reminded us that the Constitution might be greater than just a document, and that the Declaration of Independence with its iconic words, “all men are created equal,” is a constitutional concept that carries great force with Americans past and present.

—————— C. Peter Magrath was president of the Missouri University System at the time of his constitutional talk. He later went on to serve as the president of the Association of State Colleges and Land Grant Universities in Washington, D.C., the chief advocacy arm of higher education in the United States. He argued that the Supreme Court is a political institution that must interpret a Constitution that would adapt to changing circumstances. Magrath said the Court’s assumption of judicial review in Marbury v. Madison (1803) and Fletcher v. Peck (1810), the power to declare state actions unconstitutional, allowed the Court to become a key player and often balancer in the American political system. He pointed to Plessy v. Ferguson, which upheld the separate but equal doctrine, as a perversion of the equal-protection clause of the 14th Amendment in 1896.

A half century later, Chief Justice Earl Warren, speaking for a unanimous Court, corrected the Plessy interpretation in Brown v. Board of Education without the express support of the executive branch, Congress, and many state governments. While it was one of the Supreme Court’s finest moments, Magrath’s message at UALR reminded the audience that the Supreme Court was far from a perfect institution. The Court has also issued opinions like Dred Scott v. Sandford and Pollock v. Farmers’ Loan (an income tax case) as well as a number of New Deal cases that are often offered as examples of tortured constitutional interpretation. Magrath’s thesis was pretty simple: the Constitution lives and works, but its interpretation can change with the times. No one interpretation may be infallible.

—————— The final presenter was former Senator Thomas Eagleton, whom Magrath recommended after invitations to several renowned sitting senators, including Edward Kennedy, had gone unanswered. As it turned out, Eagleton was a great choice. While he was chiefly remembered for being forced off the 1972 presidential ticket as George McGovern’s vice president, Eagleton had played a major role in writing the War Powers Act limiting the power of the executive branch to commit the nation to military action unilaterally. That whole issue has been a constitutional enigma since the founding. Congress under the Constitution has the power to declare war, but the president has the authority to wage war, and the inherent power to respond to threats against the nation.

Eagleton’s remarks that night were eerily similar to the debate taking place now regarding American use of force against Syria. In the mid-1980s, the Middle East was also a seething cauldron. Two hundred and fifty Americans had been killed in a terrorist attack in Lebanon, and American arms were being sold in the region to finance more democratic forces in Central America. Eagleton’s argument was for shared congressional and executive power under the Constitution. He pointed out that all of the presidents he had worked with believed executive power trumped congressional power in foreign affairs, that the War Powers Act was unconstitutional, and that congressional interference in foreign affairs was an intrusion on presidential power.

Eagleton did not buy that argument. In his UALR presentation he pointed out many of the constitutional powers of Congress in foreign affairs, among them declaring war and establishing and financing an army and navy, regulating commerce among foreign nations, and providing advice and consent when the president appointed a policy team.

Then there is Congress’ passage of the War Powers Act over President Nixon’s veto. In that context President Reagan later compromised on the selling of Stinger missiles to Saudi Arabia, agreeing not to sell the missiles in exchange for congressional approval of the sale in general.

Eagleton’s argument for shared powers seemed to foreshadow how presidents could work with Congress in the future despite their view of the War Powers Act: Bush 41 and 43 sought congressional approval of actions in Iraq, and now Obama’s request that Congress pass a resolution granting limited authority to punish Assad despite Obama’s belief that he could act without congressional approval.

In 1987, we celebrated the founding document’s 200th birthday. That it has continued as our fundamental law would be no surprise to those distinguished presenters. The document lives along with all the imperfections of its human drafters, interpreters and representatives because We the People understand its checkered yet illustrious past, and support its aspirational future to achieve a more perfect union.