The Constitution and Public Policy in U.S. History

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Editor’s Preface

The United States Constitution, drafted by the fifty-five delegates to the Constitutional Convention in Philadelphia in the summer of 1787, was the first written constitution in modern history. The delegates who came to Philadelphia believed that a comprehensive written constitution was essential to the full expression of the belief that government was an instrument of a sovereign people. Thomas Jefferson expressed this innovative principle, deeply rooted in the habits and style of Anglo-American legal thought, when he declared, “Our peculiar security is the possession of a written constitution.”

Jefferson, who was unable to attend the Philadelphia Convention, shared the belief with those drafters of the Constitution that a written constitution was fundamental to the prevention of tyranny and the preservation of rights and liberty of a free people. As such, the Constitution sought to establish a federal government with the necessary power to realize the nation’s shared purpose, while so structured in careful balance in its branches and distribution of federal and state powers that it would prevent oppression. The Constitution established the primary rules for the conduct of impartial government against the demands of political faction, popular passion, and personal ambition.

An extraordinary feature of the Constitution was that it allowed the three branches of government to apply and interpret its provisions in conducting the people’s business. A system of checks restrained each of three branches of government, the executive, legislative, and judiciary, from overstepping their powers.

From the eighteenth century through the mid-twentieth century, constitutional interpretation primarily revolved around the doctrine of limited government. The most fundamental and vexing constitutional issue confronting Americans in the early nineteenth century was the relationship and the definition of powers between the federal government and the states. The issue of slavery embodied this question in its most heated form and would only be resolved in a tragic civil war.

The Civil War did not fully resolve, however, fundamental constitutional questions concerning the federal government’s power to tax, the regulation of commerce, the definition of marriage and religious freedom, safeguards for female and child laborers, and the protection of entrepreneurial liberty and property. At the same time, a sign of a more broadly construed legal environment for government was evident in domestic regulatory law and federal voting rights legislation. The rise of progressive reform in the late nineteenth century encouraged political sentiment for a more activist federal government operating within a less restrained legal environment.

By the mid-twentieth century, constitutional questions became central to American politics as the courts addressed a range of issues, including racial segregation, presidential powers, abortion, prayer in public schools, and voting rights. Within a highly politicized environment and the seeming breakup of a cultural consensus, the courts became the focus of political debate, addressing fundamental questions about the role of the courts and judges within an American democracy raised by activists, public officials, and scholars.

The eighteenth-century political philosopher Lord Bolingbroke defined the English constitution as “that assemblage of laws, institutions, and customs, derived from certain fixed principles of reason, directed to certain fixed objects of public good” within a system by which the community has agreed to be governed. Bolingbroke’s definition assumes that fixed principles of reason and fixed objects of public good can be agreed upon within a polity. What happens, however, when these basic standards of reasoning are called into question by scholars? And what is the result when the ultimate goals of government cannot be agreed upon by a citizenry?

The essays in this volume show that legal and constitutional debate over matters of policy has a long history in America. These essays reveal that such debate is perennial to a democracy, and while political conflicts over the meaning of the Constitution and specific policies are not easily resolved, even more difficult are the lessons of learning how to balance order and freedom, individual rights and community responsibilities, and liberty and democracy in this fragile entity we call the American republic.

Donald T. Critchlow

General Editor

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