Table of Contents
Constitution
A constitution is a foundational legal instrument that establishes the structure of government, allocates authority among its branches or levels, and defines the relationship between the state and the individuals subject to it. The United States Constitution, ratified in 1788 and operative since 4 March 1789, is the specific document most often at issue in American political and legal discourse. What a constitution means - whether it is a fixed text, a living framework, or something in between - is itself a matter of ongoing dispute. See constitution-originalism-viewpoint and constitution-living-constitutionalism-viewpoint.
Current State of Knowledge and Debate
The U.S. Constitution established a federal republic in which sovereignty is divided between a national government and the states. Its seven original articles define the legislative, executive, and judicial branches; set the terms of federalism; and specify amendment procedures. Twenty-seven amendments have been ratified, the first ten - the Bill of Rights - adopted in 1791.
Several structural features remain subjects of active legal and political debate:
Separation of powers. The Constitution distributes legislative, executive, and judicial functions across three branches with overlapping checks. The precise boundary of each branch's authority - particularly executive power and the scope of judicial review - is contested in both doctrine and scholarship. See constitution-separation-of-powers-debate.
Federalism. The Tenth Amendment reserves to the states or the people powers not delegated to the federal government, but the scope of federal authority under the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause has expanded substantially through legislation and case law since the New Deal era. Conditional federal grants have operated as an additional mechanism of federal influence over state policy. Where that boundary properly lies is disputed. See constitution-federalism-debate.
The Electoral College. Article II and the Twelfth Amendment establish an indirect mechanism for presidential election. Whether this system reflects sound federalist design or produces distorted democratic outcomes is one of the most frequently litigated political questions surrounding the Constitution. See Electoral College - Retention Debate.
Judicial review. The power of federal courts to invalidate legislation as unconstitutional is not explicitly granted by the text; it was established by practice beginning with Marbury v. Madison (1803). Its legitimacy, scope, and proper exercise remain contested. See constitution-judicial-review-debate.
Amendment difficulty. Article V requires supermajority approval by Congress and ratification by three-fourths of state legislatures, a threshold critics argue is too high and defenders argue appropriately limits hasty revision.
Viewpoints
Originalism. The Constitution should be interpreted according to the meaning its text held at ratification, or the original public meaning of the words as understood by a reasonable reader at the time. Proponents argue this constrains judicial discretion and preserves democratic legitimacy. See constitution-originalism-viewpoint.
Living constitutionalism. Constitutional meaning evolves with changing social conditions and values. Courts and institutions should adapt interpretation to contemporary circumstances rather than being bound by eighteenth-century understandings. See constitution-living-constitutionalism-viewpoint.
Popular constitutionalism. Constitutional meaning is not the exclusive province of courts. The people, through political actors and democratic contestation, are legitimate participants in constitutional interpretation. See constitution-popular-constitutionalism-viewpoint.
Departmentalism. Each branch of the federal government has independent authority and responsibility to interpret the Constitution for itself; judicial supremacy in constitutional interpretation is not required by the text. See constitution-departmentalism-viewpoint.
Abolitionist and reconstructionist traditions. Some scholars and advocates have argued, historically and in the present, that the original Constitution was fundamentally compromised by its accommodation of slavery, and that the Reconstruction Amendments (Thirteenth, Fourteenth, Fifteenth) represent a second founding that should anchor modern interpretation. See constitution-reconstruction-amendments-viewpoint.
Anti-federalist skepticism. At ratification, Anti-Federalists argued the Constitution concentrated too much power at the national level, threatened state sovereignty, and lacked adequate protections for individual liberty. This tradition informs contemporary arguments for strict limits on federal power. See constitution-anti-federalist-viewpoint.
Controversies
Electoral College legitimacy. The 2000 and 2016 presidential elections, in which the winner of the Electoral College did not win the national popular vote, intensified debate over whether the system is compatible with democratic principles. See electoral-college-controversy.
Slavery and the original Constitution. The Three-Fifths Compromise, the fugitive slave clause, and the protection of the slave trade until 1808 are documented accommodations of slavery in the original text. Their weight in assessing the Constitution's founding legitimacy is disputed among historians and legal scholars. See constitution-slavery-original-text-controversy.
Expansion of executive power. Post-September 11 claims of broad executive authority - warrantless surveillance, indefinite detention, and expansive use of executive orders - generated documented legal and political disputes over constitutional limits. See constitution-executive-power-expansion-controversy.
New Deal constitutional revolution. The Supreme Court's shift in 1937 toward upholding expansive federal economic regulation, following political pressure from the Roosevelt administration, is a documented controversy over whether constitutional doctrine was altered by political rather than legal means. See constitution-new-deal-revolution-controversy.
Related Pages
Footnotes
1. U.S. Constitution, Art. I-VII (1788); ratification completed 21 June 1788; effective 4 March 1789. 2. U.S. Constitution, Amends. I-X (Bill of Rights), ratified 15 December 1791. 3. U.S. Constitution, Amend. X: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 4. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 5. U.S. Constitution, Art. V (amendment procedure). 6. U.S. Constitution, Art. I, § 8, cl. 1 (Spending Clause); South Dakota v. Dole, 483 U.S. 203 (1987). 7. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997). 8. David A. Strauss, The Living Constitution (New York: Oxford University Press, 2010). 9. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004). 10. Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999). 11. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W. W. Norton, 2019). 12. Herbert J. Storing, ed., The Complete Anti-Federalist, 7 vols. (Chicago: University of Chicago Press, 1981). 13. U.S. Constitution, Art. I, § 2, cl. 3 (Three-Fifths Compromise); Art. I, § 9, cl. 1 (slave trade); Art. IV, § 2, cl. 3 (fugitive slave clause). 14. Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: W. W. Norton, 2010).