What is the Constitution?

Welcome to Level One of Constitutional Perspectives!

In today's lesson we'll be covering a simple question: what is this "Constitution" thing, anyway?

As I mentioned in the introduction to the series, Level One is geared for readers who have zero prior knowledge of American constitutional law, history, or tradition. We're truly starting from the ground up. And that means starting with this most basic of questions. This site, and this series in particular, is all about the American Constitution. But what is that?

There are, of course, many different ways to answer this question, some more philosophical, others more concrete. For now we are interested in the more concrete side.

So.

The Constitution of the United States is a document, consisting of a preamble, seven articles, and (depending on who you ask) twenty-seven amendments. All told it's about 4500 words. It's not very long. You can go read it right now, if you haven't before, for instance at the National Constitution Center.

What we call the "original" Constitution, the preamble and the seven articles, was written at the Constitutional Convention in Philadelphia during the summer of 1787, and was "ratified" by the thirteen original states over the course of the next two years, going into effect on March 4th, 1789. The first ten amendments, known as the "Bill of Rights," were proposed more or less immediately upon ratification and adopted in 1791. The remaining seventeen amendments have been adopted over the course of the ensuing two centuries.

This text, these 4500 words, are the organizing instrument of the American government. In other words, the American state as we know it today exists because the Constitution says so – or more precisely, because the American People say so, through their Constitution. The Constitution, thus, is the realization of the Declaration of Independence: it is the means by which the People "institute[d] new Government, laying its foundation on such principles and organizing its powers in such form, as shall to them seem most likely to effect their Safety and Happiness."

This language in the Declaration comes from the social contract tradition in political philosophy. Contract theory, particularly the version associated with John Locke (upon whom Jefferson, the Declaration's author, was most directly drawing), held that kings had no natural right to rule. Rather, people were naturally free and equal; everyone had the right, in the so-called "state of nature" (i.e. a hypothetical world without government), to govern themselves. The only legitimate foundation for any kind of government, then, is a "social contract" by which the People – now acting as a collective – grant a portion of their native sovereign authority over themselves to certain institutions.

The Constitution is our social contract. This can be seen in the preamble: "We, the People of the United States ... do ordain and establish this Constitution." It can also be seen in the opening lines of the first three Articles, the so-called "Vesting Clauses," by which power is conferred upon the institutions of government: legislative powers given to Congress, executive powers to the President, and judicial power to the federal courts. The theory of the Constitution, then, is that these powers belonged originally to the People. The various organs of government have a legitimate claim to exercise these powers only because the Constitution gives them that claim.

Typically, when the Constitution is in the news, it is because someone is claiming that some organ of government has "violated" its limits. Thus, it is easy to fall into the habit of seeing the Constitution as "the thing that limits government." And that isn't wrong, exactly, but it is incomplete. The Constitution is the thing that creates the government – constitutes it, one might even say. Indeed this is precisely why it is able to impose limits on government officials: because those officials have no authority whatsoever except what the Constitution gives them.

In principle, every time any government official takes any action, they must be able to trace their authority to take that action back to the Constitution. Of course, very few officials or institutions have authority that comes directly from the Constitution. In the vast majority of cases, the chain of authority will look rather more like "this Act of Congress says I have the power to do X, and the Constitution says that Congress had the power to pass that law." But the power still ultimately derives from the Constitution, from the original grant of power by the People to their government.

This is why we care so much about the Constitution. It is the foundation for the entire American state. It is, at least in theory, the link between the sovereignty of the People and their government. If the legitimacy of government rests upon the consent of the governed, as the Declaration says, then our government is legitimate only insofar as it operates according to the Constitution.

Of course, what it means to operate according to the Constitution is by no means always clear. Partly because it is so short, but also partly in the nature of the enterprise, the document itself is ambiguous and open-ended throughout. It leaves countless decisions unmade, to be resolved in the course of living under it. Those decision-points are the stuff of constitutional law, which will be covered starting in Level Two of this series. The goal of Level One is to bring the reader to the point where they can make sense of those discussions.

Join me next time for a lesson on where the Constitution comes from, the history of its creation and adoption.