Background:
In May of 1787 delegates from all of the states of the newly-formed nation, except Rhode Island, met in Philadelphia to revise the Articles of Confederation, the first governing document of the new nation. Instead of revising the Articles of Confederation, they thought it necessary to create an entirely new frame of government. The delegates saw the need to grant the national government more power, especially in national defense and commerce, but all were, to varying degrees, intent on limiting its power. As they feared that a strong central government could lead to tyranny, they sought to break up that power among the several branches (Separation of Powers): the Senate, House of Representatives, the President, as well as the judiciary each served as a check on the other branches. Perhaps the most dominant issue, and still related to preventing tyranny, was the relationship of the national government to the states (Federalism). Each state could protect its citizens by serving as a bulwark against the power of the central government. The issue of small and less populous states versus the larger, more powerful states was a contentious issue. Slavery was also central, especially to the southern states. Finally, after months of deliberation, on September 17, 1787, the delegates signed a Constitution for the young nation.
The document now had to be ratified by two thirds of the states. One major objection was its lack of protection of individual rights. The debate over the Constitution was heated in Massachusetts, where the issue of inclusion of a bill of rights was prominent. Massachusetts, in early 1788, voted to ratify. The state of New Hampshire, later in 1788, provided the ninth vote for ratification, and now the requisite two thirds (nine out of thirteen states) had been achieved. Nonetheless, in practical terms, victory had not yet been realized as two of the most important states, Virginia and New York, had not yet ratified. Alexander Hamilton of New York and James Madison of Virginia, although of opposing political parties, joined together to pen the Federalist Papers, in which they argued persuasively and elegantly in favor of ratification. In response to concern over lack of protection of individual liberties, Madison orally committed to passing a bill of rights in the national legislature at the earliest opportunity after the Constitution was ratified. Virginia then ratified, and New York also did so soon after.
One of the first acts of Congress was to pass a bill of rights. Madison had kept his word. The Bill of Rights, the first ten amendments to the Constitution, was ratified by the states in 1791. It guaranteed such rights as freedom of speech and of the press, as well as the right to assemble peaceably; freedom of religion; the right to bear arms; the right to be free from unreasonable searches and seizures; the right to a jury trial in criminal cases, the right to confront witnesses against the accused, and other protections to ensure a fair trial; and the prohibition of “cruel and unusual punishments.”
It comes as a surprise to many, but the Bill of Rights did not apply to the states; it protected individuals from infringement of important civil liberties by the central government, but not against actions of state governments. It would only be with the passage of the Civil War Amendments — most importantly the Fourteenth Amendment in 1868 — that the notion of protection of rights against encroachment by the states was addressed. In addition to providing that all persons born in the United States are citizens, it importantly added: “No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person … the equal protection of the laws.”
After a very slow start, the equal protection clause of the Fourteenth Amendment has become central to our democracy, protecting individuals from discrimination based on race, gender, and other grounds. The due process clause has been interpreted to have a substantive component that protects, among other things, human dignity and, therefore, in the Supreme Court’s opinion, the right to same sex marriage. And almost all of the Bill of Rights’ protections, the Court has determined, have been “incorporated” through the due process clause of the Fourteenth Amendment and now also apply against the states. The Bill of Rights and the Civil War Amendments are now at the heart of our democracy.
We at MassArt celebrate Constitution Day, along with other schools, colleges, and universities in the United States, and it is appropriate that we do so since we are the beneficiaries of the freedoms ensured by the Constitution. As artists, designers, and educators our work in this world, our expression and creativity, our aspirations for the public good, are aided by the ideals enshrined in this document, especially when read with the Declaration of Independence in mind and infused with the values of the Declaration.
There will be a discussion of the Constitution led by President Nelson and Professor Alan Gluck — as well as pizza and copies of the Constitution — on Monday, September 18th, 2017, 12:30-2:00 in Kennedy 280.