As we celebrate Constitution Day this week, a simple question suggests itself: What exactly does the Constitution constitute?  Or, with respect to the Framers: What were these men trying to do?

The Constitution cannot have constituted the American people.  The Preamble begins, famously, “We the People…”  The American people already existed.  They didn’t need a constitution to call them into existence.  On the contrary, they called it into existence.

Although clearly labeled “The Constitution of the United States,” the Constitution didn’t constitute the United States, either.  Eleven years earlier, the Declaration of Independence had already described itself as “The Unanimous Declaration of the Thirteen United States of America”.  We the People (the People tell us) ordain and establish “this Constitution for the United States of America.”

The Constitution constitutes not the people, not the states, and not the union of the states, but the federal government of these United States.   With characteristic bluntness, the Framers identify their constitution as a framework for ruling.  Each of the three sentences introducing what we call the “branches” of the new government forthrightly speak of “powers”: “all legislative powers herein granted shall be vested in a Congress of the United States”; “the executive Power shall be vested in a President of the United States”; “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress shall from time to time ordain and establish.”  The American people “grant” their government some of their powers—amendable, even revocable at pleasure by a sizeable majority following lawful procedures, to be sure—but ruling powers nonetheless.

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Geoffrey R. Stone, professor of law at the University of Chicago and editor of The Supreme Court Review, has a pertinent suggestion: the retirement of Judge Stevens and the impending nomination of his successor should spark “a frank discussion” of “the proper role of judges in our constitutional system” [“Our Fill-in-the Blank Constitution,” The New York Times, April 14]. True to his promise of frankness, he charges “conservative” judges with advancing “disingenuous descriptions of what judges—liberal or conservative—actually do.”

Such men as Roberts and Scalia claim to seek the original meaning of the framers, to serve as umpires who call the plays as they see them, according to the rules. But, Professor Stone charges, they do no such thing.

Such Constitutional phrases as freedom of speech, due process of law, free exercise of religion, cruel and unusual punishment do not define themselves, he remarks; “they did not have clear meanings even to the people who drafted them.” Rather, the framers left such definition “to future generations.”

This conservatives all too eagerly have done. “Fueled by their own political and ideological convictions, they make value judgments, often in an often aggressively activist manner that goes well beyond anything the framers themselves envisioned.” The list of horrors proves long: examples include First Amendment protection for advertisers; prohibition of the regulation of guns; the right of the Boy Scouts to exclude gay scoutmasters. Meanwhile, liberal judges have upheld Madisonian principle by striking down laws prohibiting interracial marriage, forbidding forced sterilization, protecting the rights of political dissenters and of minority religious denomination, and similarly handsome things. Bad conservatives. Good liberals.

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`Left’ and `Right,’ Americans today call their political life out of joint, and therefore
painful. A news cycle cannot go by without another show of genteel hand-wringing over Tea-Party activists and radio-show callers—their rage, their seemingly endless array of `phobias,’ the menace they pose to decent people everywhere. Complementarily, Americans on the `Right’ are outraged or, more precisely, morally indignant. This has nothing to do with the thought-crimes and sentiment-felonies of racism, sexism, homophobia; rather, as seen in the recent passage of health-care legislation in the face of public opposition,, conservatives see a representative form of government that no longer, well, represents the majority of Americans.

Both sides feel a dislocation in America, a dislocation of public opinion from government.

In our Constitution “we the people” announce that we rule ourselves, through our elected representatives. But our eyes and ears tell us that our elected representatives listen not to us but to party leaders and other purveyors of elite or `advanced’ opinion, `expert’ opinion, `academic’ opinion. The Right deplores this; the Left says, `Thank God!’—or it would, if the Left did not now insist on a chaste separation of religiosity from state.

If public opinion in some form rules and thus preoccupies republican regimes, how should it rule? What is the proper relationship between citizens, their opinions, and their government?

As the designers of what Madison called the first “purely republican” regime in the modern world the American founders thought carefully about the role of public opinion in popular self-government. None thought more clearly than did Madison himself. And today, no one thinks more clearly about Madison than the Villanova University scholar, Colleen Sheehan. In her recent book, James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009) Sheehan she explains how Madison understood both the promise and the perils of American political life, particularly as they center on the question of public opinion.

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As he prepared “Notes on Government” for publication in 1791, Congressman James Madison wrote a note to himself. “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact. The power lies in a part [of the people] instead of the whole, in the hands of property, not of numbers.” He drew a telling conclusion: “The Southern States of America,” very much including his native Virginia, “are on the same principle aristocracies.”

As an architect of the new Constitution, Madison knew that Article IV, Section 4 says, “The United States shall guarantee to every State in this Union a Republican Form of Government.” He knew, therefore, that the American regime contained a self-contradiction. With most Americans of his generation, he hoped that the eventual removal of slavery would remove this potentially fatal flaw. In fact many states did abolish slavery in that first, founding generation. But his “Southern States” did not. It took civil war and Abraham Lincoln’s Emancipation Proclamation to continue the liberation that the founders had begun.

Lincoln came to the battlefield cemetery at Gettysburg to say in public what Madison in prudence could not say some seventy years before. In declaring their independence, their self-government, in 1776, “our fathers,” the founders, “brought forth on this continent, a new nation, conceived in Liberty and dedicated to the proposition that all men are created equal.” Conceived, brought forth: this is the language of fertility, of childbirth. It is a paradoxical conception and childbirth—the work of fathers not of mothers. Somehow the signers of the Declaration of Independence were fathers and mothers, men who conceived and gave birth.

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