The History of Ideas program hosts a discussion about the U.S. Constitution in honor of the anniversary of its ratification
Students and faculty analyzed different sections of the Constitution.
The History of Ideas minor program hosted a discussion about the U.S. Constitution on Monday Sept. 13, four days before the Sept. 17 anniversary of the Constitution’s ratification. The event, “Just Read It! A Dialogue About the US Constitution,” featured a series of short lectures from four professor panelists and six students about sections or aspects of the Constitution that they found particularly striking. Prof. David Katz (HIST), director of the History of Ideas Program, moderated the discussion.
According to Kenneth Kersch, a professor of political science at Boston College, Article 1, Section 10 and section 1 of the 14th amendment are “enormously important to the trajectory of American history and American politics.” Article 1, Section 10 is intended to limit the powers of the states, but only in specific contexts such as entering into treaties or coining money. Kersch observed that the Founding Fathers were more concerned with restricting the power of the federal government, using the Bill of Rights to prevent the federal government from violating fundamental human rights. Nearly a century later, however, the Civil War forced the U.S. legislature to realize that “once you start thinking about slavery, it becomes obvious that states also might be a fundamental threat to rights,” Kersch said. The resulting 14th amendment prohibits states from making or enforcing laws that deny fundamental rights or privileges to U.S. citizens, which had a profound impact on Reconstruction and the civil rights era. Kersch argued that the influence of the 14th amendment prevails today over dividing issues such as abortion.
Joey Kornmann ’23 focused on Article 1, Section 7, which outlines the long and complex process by which a bill becomes a law. He found this section to be emblematic of how the system of checks and balances goes beyond a simple divide between the three branches of government, forcing cooperation in all processes of governance both between and within the branches. The struggles of the government to get anything done unless one party controls both the House and Senate “is a design feature and not a bug,” he argued, saying that the process of a bill becoming a law is “a long and winding road that requires teamwork and collaboration, and that’s just how it was meant to be from the beginning.”
Elijah Herenstein ’23 found himself “captivated and vexed” by section 2 of the 14th amendment, which he described as “an incredibly messy and poorly punctuated piece of writing” that nevertheless “subtly advances an important theory about [voter] representation.” The first clause introduces “apportionment,” which divides representatives among states according to their population. The second clause introduces a complex penalty for disenfranchisement that is connected to the apportionment process. Herenstein explained that there are two main interpretations of this clause: the elimination theory, in which the state will not receive representation for their disenfranchised population, and the proportion theory, a harsher penalty in which a state’s representation will be reduced by the percent of the population that is disenfranchised. However, states have never been penalized for disenfranchisement despite blatant displays from the Jim Crow era to recent Republican efforts, Herenstein said. He concluded that the existence of the penalty prompts the following question: “what other tools for democracy and justice would we have at our hands if we were willing to use them aggressively?”
Interim Chief Diversity Officer David M. Fryson offered a more personal view of the Constitution through a discussion of key ideas and concepts that were excluded from the document. This concept is known in constitutional law today as the “penumbra,” and it inspired several high profile case rulings including Roe v. Wade, Fryson explained. He noted that slavery was significantly left out of the Constitution, despite its highly institutionalized practice at the time. Fryson himself is not that far removed from slavery, he explained. His grandfather was born as a slave before the passage of the 13th and 14th amendments. His father was born in 1896, the year of the Plessy v. Ferguson case, which established the “separate but equal” doctrine justifying racial segregation. Finally, Fryson was born in 1954, the year that Brown v. Board of Education overturned the doctrine. He noted that over 150 years have passed since slavery was abolished, and while this may seem long in years, it is still rather short in terms of lives.
The Constitution was an unexpectedly easy read compared to the complexity of modern legal documents, Can Kazan ’22 observed. Kazan focused on Article 5, which outlines the process for establishing new amendments. He found this article important because the U.S. Constitution, at 233 years old, is one of the oldest constitutions in the modern world. Thus, the country's ability to add amendments to the Constitution has been vital for allowing the nation to adapt to modern times.
Renee Nakkab ’22 examined the preamble of the Constitution. She argued that the preamble provides a clear, effective and enticing summary for the rest of the document and for the framers’ ideals for the nation, emphasizing the unity of the states, an effective government that is managed by checks and balances and the establishment of due process and the protection of individual freedoms. She concluded that “the Constitution is a vital component of the U.S. narrative,” and the preamble’s “tone and diction reminds the present day reader that there are people behind the words with a purpose and willingness to fight for what they believe in.”
Prof. Michael Willrich (HIST) addressed the concept of originalism, which holds that legislatures and judges should follow the Constitution as it was intended at the time it was written. He argued that this conviction “dissolves into a mirage when you get into it.” Determining what the Constitution meant when it was ratified could be a fun historical exercise, requiring perusal through documents such as the Federalist and Anti-Federalist Papers and records of other debates held during the time, Willrich said. However, he argued that it is difficult to assign fixed interpretations of intent due to the wide variety of perspectives during the time of the constitution’s formation. In addition, originalism has controversial roots, Willrich said, as it first appeared during the 1840s as a justification of the Fugitive Slave Law. To emphasize his point, Willrich brought up the 10th amendment, which reserves powers not mentioned in the Constitution for the states or the people. He argued that this amendment reveals how the rule of law is not confined to the Constitution; it can also be expressed through common law traditions of local governance.
Alev Yorulmaz ’22 discussed how the legalization of marijuana pertains to the wider debate between the anti-commandeering doctrine of the 10th amendment, which delegates powers not mentioned in the Constitution to the states, and the supremacy clause in Article 6, Paragraph 2, in which the federal government takes precedence. To put this debate into focus, she brought up the 1970 Controlled Substances Act, which counted marijuna as a schedule I drug. Yorulmaz explained that this classification deemed marijuana as a drug with a high potential for abuse, thus preventing it from being legalized within states. However, it was a federal law that both the federal government and states were reluctant to enforce. While people may have theoretical opinions about whether the anti-commandeering doctrine or supremacy clause should take precedence, “the way it plays out in the real world does not give us a clear answer,” Yorulmaz concluded.
Violet Fearon ’21 provided a different perspective on the Constitution, noting that it was a tedious read: “My eyes would begin to drop somewhere around Article 2.” She found the Constitution’s dullness interesting, because based on the passion with which politicians in particular talk about it, one “would expect some bold moral document.” Instead, she found that the Constitution read more like an elaborate contract you might draw up with new roommates, instead of “the Constitution everyone seems so emotionally attached to.” She speculated that there were maybe two Constitutions, the dry legal document she read, and the “religious object of worship” that filled the “spiritual void” left by the mostly secular U.S. society.
Prof. Eva Bellin (POL) presented the last analysis of the Constitution. She offered a similar view to Fearon, presenting herself as “the resident crank.” As a specialist in authoritarian regimes, she said she did not see constitutions as “exercising constitutionalism.” She provided three reasons. First, a vast majority of countries in the world have constitutions regardless of regime type. In most countries, constitutions are used for reasons other than limiting power, such as asserting national sovereignty and independence and, particularly for those countries leaning towards authoritarianism, providing a way to justify actions. Second, even when constitutions are pious, there are countless loopholes established for a regime to work around constraints. For example, Egypt has been in a state of emergency since 1967 for the purpose of maintaining activation of the “emergency clause,” granting the government extra power. Third, constitutions can be amended in a way that changes the nature of the regime, such as in Hungary and Egypt. That being said, Bellin noted that she didn’t see constitutions as worthless. She said that it was an awe-inspiring process to watch Tunisia form a new constitution after the Arab Spring. She concluded that the character of the regime doesn’t depend on the constitution and called on everyone to “embrace constitutions but remain skeptical of their ability to deliver constitutionalism.”