Our Progressive Constitution

Today is Constitution Day. It is a day to reflect, at least for a moment, on the American Constitution and how it has helped to shape our nation over more than two centuries. In simplest form, of course, the Constitution sets forth the rules of governance. It stipulates that there shall be one President, two Houses of Congress, the powers of the national government, limitations on the powers of the state and national governments, the minimum age of the President (35) and so on. In this simple sense, the Constitution establishes the rules of the game.

More fundamentally, however, the Constitution has served as the vehicle through which generations of Americans have made and remade their nation. When one steps back, as one should on Constitution Day, and considers the most profound changes in our society since 1789, it is easy to see that, by any reasonable measure, the Constitution has served in the long run as a progressive document that has enabled us to protect the rights, liberties and well-being of our people.

The original Constitution did not even have a Bill of Rights. That was added soon after ratification of the Constitution to ensure that the new national government would not abridge the freedom of speech or prohibit the free exercise of religion; that it would not engage in unreasonable searches and seizures or inflict cruel and unusual punishment; that it would not deprive people of life, liberty or property without due process of law or convict people of crimes without honoring their rights to a jury trial, to the assistance of counsel, and to present their own witnesses and to confront the witnesses against them.

Later, after a bloody Civil War, the American people again amended the Constitution, this time to forbid slavery; to guarantee that no State would deny any person due process of law, the equal protection of the laws, or the privileges or immunities of citizenship; and to grant blacks the right to vote.

Since then, the Constitution has been further amended to authorize the federal income tax so the national government would have sufficient resources to meet the demands of a changing society; to grant women the right to vote; to provide for the popular election of senators; to outlaw the poll tax; and to grant the right to vote to all persons over the age of eighteen.

Almost without exception, our constitutional amendments have been progressive in nature, expanding both individual freedoms and the opportunity for individual Americans to participate more fully in the political and economic life of the nation.

Even apart from the process of amendment, the Constitution has had sufficient flexibility in its often open-ended language to enable government to pursue important social and economic policies that might never have been envisioned by the framers. As understood by the American people, by our elected officials and by our Supreme Court, the Constitution has enabled the national government to enact laws that helped us through the devastation of the Great Depression; prohibited private discrimination on the basis of race, religion, gender, national origin and disability; promoted workplace safety and the environment; and provided a critical safety net for the aged, the infirm and the needy.

All of these laws, and many besides, were opposed by political conservatives who invoked a crabbed view of the Constitution to argue that the national government had no authority to "promote the general Welfare," but in the long run those arguments have never carried the day. If one takes the long view, it is clear that it was the progressive vision of the American Constitution, embraced by citizens, legislators, presidents and judges, that ultimately prevailed.

Finally, the Supreme Court has construed the individual liberties guaranteed by the Constitution in a way that preserves their strength and vitality in an always-changing world. The Court has held, for example, that wiretapping, which was unknown to the framers, is a "search" that must be undertaken "reasonably" if it is to be constitutional; that the guarantee of "equal protection of the laws" protects not only African Americans, but also women (even though conservatives once argued -- and some still argue -- that it does not) that persons accused of crime who cannot afford their own counsel have a constitutional right to have the government provide one for their defense; that the government cannot constitutionally ban speech merely because it offends others; and that the government cannot constitutionally endorse or promote particular religious beliefs.

Of course, the history of the American Constitution has been not exclusively progressive. The original Constitution acknowledged and did not forbid slavery; the Supreme Court upheld the constitutionality of racial segregation and held unconstitutional all sorts of progressive legislation in the early years of the twentieth century; the Constitution was amended as a result of the temperance movement to create Prohibition; the Supreme Court upheld the constitutionality of the internment of Americans of Japanese descent during World War II; and the Supreme Court held that citizens could be jailed for their criticisms of the government..

The interesting thing, though, is that conservative emendations and interpretations of the Constitution seem not to last. In the long run, the Constitution, in the hands of the American people, our elected representatives, and the Supreme Court, usually works itself back to more progressive positions. Of course, there is no guarantee that this will continue. The generally progressive drift of our Constitution, our laws, and our society over more than two centuries was surely not inevitable. But the design and intent of our Constitution made this progress possible, and it is that that we should celebrate on Constitution Day.