The Framers’ Constitution

The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the new nation into an uncertain future.

The text of the Constitution reflects this vision. It defines our most fundamental freedoms in general terms: “freedom of speech,” “due process of law,” “free exercise” of religion, “equal protection of the laws,” “cruel and unusual punishment.” The Constitution sets forth governmental powers in similarly general terms: Congress may regulate “commerce… among the several states,” the president will “take care that the laws be faithfully executed,” the courts are authorized to decide “cases” and “controversies.”

These phrases are not self-defining. The Framers understood that they were entrusting to future generations the responsibility to draw upon their intelligence, judgment, and experience to give concrete meaning to these broad principles over time. As Chief Justice John Marshall observed almost two centuries ago, “we must never forget it is a Constitution we are expounding…intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”

Marshall’s interpretative understanding reflects an approach that is true to what we might call “The Framers’ Constitution.” It recognizes that the Constitution sets forth broad principles and that the central challenge of constitutional interpretation is to define and then give life and substance to those principles in an ever-changing society. The principles enshrined in the Constitution do not change over time. But the application of those principles must evolve as society changes and as experience informs our understanding.

American constitutional law has long followed the path set by Chief Justice Marshall. As technological means of surveillance became more sophisticated, for example, the meaning of “search” in the Fourth Amendment came to include invasions of privacy that do not involve a physical trespass. The provision granting Congress the power to maintain the nation’s “land and naval Forces” was eventually seen as authorizing an air force. The guarantee of “equal protection of the laws” in the Fourteenth Amendment was understood in later decades as prohibiting discrimination against not only African Americans but women and gays and lesbians as well. “Commerce…among the several states” came to be seen differently as the nation’s economy became more complex and integrated across state lines. The concept of “liberty” was recognized as encompassing not only freedom from physical restraint, but also freedom from undue government intrusion into such fundamental personal decisions as whether to bear or beget a child or how to raise and educate one’s children.

But how should we give concrete meaning to the open-textured provisions of the Constitution? The best answer, grounded in the vision of the Framers and in the wisdom of John Marshall, has a long and honorable tradition in American constitutional law. This answer has two elements. First, at the very core of the Framers’ Constitution is the recognition that, in a self-governing society, courts must generally defer to the preferences of the majority. Although courts may always review governmental action to guard against the arbitrary or unreasonable, the starting point must be a presumption of judicial modesty. This is an essential tenet of any theory of principled constitutionalism.

Second, respect for the Framers’ Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that in times of crisis people may panic and too readily sacrifice both fundamental freedoms and structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.

The Framers intended courts to play a central role in addressing these concerns. When proponents of the original Constitution argued in 1789 that a bill of rights would be pointless because political majorities would run roughshod over its guarantees, Thomas Jefferson responded that this argument ignored “the legal check” that could be exercised by the judiciary. When James Madison faced similar concerns when he introduced the Bill of Rights in the first Congress, he maintained that “independent tribunals of justice will consider themselves…the guardians of those rights [and]…will be naturally led to resist every encroachment” upon them. And in Federalist 78, Alexander Hamilton stated that constitutional protections and limitations could “be preserved in practice no other way than through the medium of courts of justice,” which must “guard the Constitution and the rights of individuals from the effects of those ill humours which…sometimes disseminate among the people themselves.”

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