Constitution Day: Right Idea, Wrong Date

Thurgood Marshall   That was the title of my Constitution Day address at Georgia Perimeter College last month. The talk centered around four basic propositions. First, We the People have good reason to celebrate (and read, study, analyze, assess, etc.) our Constitution. Second, our Constitution is much, much better than the Constitution signed on September 17th, 1787. Third, in fact, today’s Constitution is so much better than the original, I seriously doubt September 17th is the best date for We the People to celebrate our Constitution. Fourth, but even if we decide to symbolically privilege the founding-era Constitution over our vastly superior one, September 17th is still not the most appropriate date to honor the founding accomplishment.

I suggested about a dozen dates that I see as more deserving of symbolic remembrance, but here are what I think are the best contenders:

June 21: That was the date in 1788 that the New Hampshire convention became the ninth to ratify, thus enacting the Constitution (for the nine states that had ratified). I pointed out that, according to James Madison, the Constitution signed on September 17th, 1787 would be “of no more consequence than the paper on which it is written, unless it is stamped with the approbation of those to whom it is addressed. . . . [The proposal was] submitted to the people themselves, [and] the disapprobation of this supreme authority would destroy it forever…” This makes celebrating the Constitution on September 17th, the date that delegates in Philadelphia signed the Constitution, very different from celebrating Independence on July 4th, the date that delegates in Philadelphia signed the Declaration. The latter act was the decisive act, both politically and legally, whereas the former was, as Madison said, “of no … consequence” until, as the Preamble declares, “We the People” did “ordain and establish” the Constitution. Furthermore, the signatories in 1776 believed wholeheartedly in the essential truth and justness of what was written in the Declaration, whereas most of those who signed the Constitution thought it was significantly flawed and only worthy of their support because it was an improvement over the status quo and nothing better was likely to be established any time soon. Finally, echoing Akhil Amar, I suggested that the problem with focussing on the Philadelphia signing instead of the popular ordainment is that it makes us lose sight of the novelty and significance of the ratification struggle, which was a truly unprecedented act of large-scale deliberative democratic decision making–one which involved the most inclusive electorate in history up to that point. Thus, even if we choose to symbolically privilege the founding generation in our chosen date for nationally honoring our Constitution, June 21st seems much more appropriate than September 17th. And so does the next alternative.

December 15: That was the date in 1791 that the Bill of Rights was ratified. The Constitution signed on September 17th did not even survive the ratification process intact. One reason We the People do and should revere our Constitution today is because of the Bill of Rights. In fact, although there have long been criticisms of the specific structure of government created in Articles I-IV and VI (which were signed on September 17th), there are few who argue that the liberties protected by the Bill of Rights are fundamentally flawed. And, if my students are at all representative of the general population, it is one or more of the liberties protected by the Bill of Rights (albeit normally via the Fourteenth Amendment–more below) that most people think of first when asked to identify the most important part of the Constitution. Now, admittedly, one problem with celebrating Constitution Day on December 15th is that this is already designated Bill of Rights Day. Note, however, that this gives further support for June 21st. If we celebrate the Bill of Rights on the day of its ratification, why not celebrate the original Constitution on the day of its ratification?

One reasonable answer to this question is that we should not celebrate our Constitution in symbolic remembrance of the founding generation at all. Or, to be more precise, we should not privilege the so-called “First Founding” over the so-called “Second Founding” or other, more recent, constitutional developments. So, this brings me to a few other dates that would arguably be more appropriate ones for We the People to choose to celebrate  our Constitution.

February 6: That was the date in 1865 that the 13th Amendment was ratified and, consequently, the most reprehensible feature of the original Constitution signed on September 17th, 1787 and ratified on June 21st, 1788 (and preserved on December 15th, 1791) was eradicated from our (formal) constitutional order.  I pointed out that at least since William Lloyd Garrison publicly burned a copy of the Constitution (and declared it a “covenant with death” and an “agreement with Hell”), it has been understood that the founders secured their “Miracle in Philadelphia” only by providing extensive, and perhaps insurmountable (without civil war), protections for the institution of slavery. Indeed, Paul Finkleman has documented how the Constitution signed on September 17th, 1787 included five clauses that directly guarded slavery and another six that indirectly did so. Thus, in the spirit of Thurgood Marshall’s famous refusal to join in the celebration of the bicentennial of the “First Founding,” perhaps we should celebrate our Constitution on February 6, in symbolic remembrance of how the “Second Founding” made amends for the sins of the first. Surely the slavery-banning, as opposed to the slavery-protecting, Constitution is the one to which we ought to symbolically pay homage?

July 9: That was the date in 1868 that the 14th Amendment was ratified. It is difficult to overstate the centrality of this amendment to our present constitutional experience. Without it, much of what We the People revere about our Constitution would not exist. The first clause removed one of the worst legal doctrines of the pre-Civil War era: the notion, expressed in Dred Scott v. Sanford (1857), that no person of African descent could be a citizen of the United States. The Court had held (echoing many previous lower court holdings), essentially, that the Constitution was not merely slavery-protecting, but also entirely predicated upon white supremacy. The intention of the first clause of the 14th Amendment was to overrule this Dred Scott doctrine and consign the idea of citizenship as white privilege to the dustbin of history. Furthermore, most of our cherished civil liberties are protected by our Constitution, not by the Bill of Rights alone (as most people assume), but, rather, also (and often primarily) by the Due Process Clause of the 14th Amendment. No one has ever successfully challenged the Supreme Court’s legal holding in Barron v. Baltimore (1833) that the Bill of Rights applies only to actions taken by the U.S. Government (and, thus, does not apply to actions taken by state governments). The reason we now have U.S. Constitutional guarantees of freedom of speech and of the free exercise of religion (and of nearly all other freedoms listed in the Bill of Rights, as well as certain unenumerated liberties) against actions taken by state governments is that these freedoms and liberties are understood to be protected from state deprivation by the 14th Amendment’s command that no “state” shall “deprive any person of … liberty … without due process of law.” (Scholars used to doubt that the framers and ratifiers of the 14th Amendment intended to essentially overturn Barron and make most, if not all, of the rights and liberties of the federal constitution binding upon state government actions, but most now agree there is compelling evidence that they in fact did–albeit primarily through the Privileges and Immunities Clause, and not the Due Process Clause, of the 14th Amendment.) Finally, the 14th Amendment’s Equal Protection Clause is the basis of today’s understanding that state governments are constitutionally prohibited from discriminating based on race, religion, national origin, sex, etc. unless the discrimination meets a high standard of federal judicial scrutiny–e.g. that it is necessary for serving a compelling state interest.

August 18. That was the date in 1920 that the 19th Amendment was ratified, thus prohibiting denial of the right to vote based on sex. Whereas the 14th and 15th Amendments had each in their own way limited their extensions of rights to males only–thus realizing only half of their potential reach–the 19th Amendment finally constitutionalized the formal political equality of men and women. This ended what had always been the most extensive form of disenfranchisement, one impacting half the population, and thus made the single largest stride toward realizing today’s inclusive understanding of who counts as among “We the People.”

Of course, much of the promise of our civil rights amendments, especially the 14th and 15th, went essentially unrealized until the 20th century. No one knew this better than Thurgood Marshall, the man who led the effort to overturn the doctrine, established in Plessy v. Ferguson’s (1896), that racial discrimination by state governments–indeed, full-fledged state-mandated racial segregation–does not violate the 14th Amendment’s command that “no state shall … deny to any person within its jurisdiction the equal protection of the laws” because it is possible for facilities to be “separate but equal.” Marshall, a future U.S. Supreme Court justice, was the lead attorney in Brown v. Board of Education (1954), the case in which the Court declared all racially segregated public facilities to be “inherently unequal” and, thus, in violation of the 14th Amendment’s Equal Protection Clause. (In this sense, and many others, not only the Constitution’s text, but also consensus interpretations of the text, are much better today than they were in 1787 and, for that matter, 1953.)

I thus thought it was fitting to close my talk with Marshall’s closing words from his address, delivered in 1987, regarding the country’s celebration of the bicentennial of the first founding. For what he said during that year’s bicentennial celebration applies to our annual celebration of Constitution Day in symbolic remembrance of the same event in Philadelphia on September 17, 1787:

And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives….

Thus, in this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.

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