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Understanding the Constitution of the United States

Presented to the Leadership Conference of the Office of Personnel Management
By The Hon. John Charles Thomas*

We are going to have some fun today talking about the Constitution of the United States. We will try to make you see that in your daily living as officers of the United States Government and as citizens of this nation, the Constitution is something worth thinking about. We will proceed as if we are in law school by going through the Constitution section by section to focus on salient provisions.

But before we delve into the Constitution, it is worth noting that those of you assembled here are part of the very backbone of the United States Government. In large part, those of you in this room see administrations come and go. You see shifts in emphasis within the government based on election cycles, but you are constant in your service to our nation. Thus you have a long term view of governance.

In all that you do, it is crucial to keep in mind that your are part of a government under law. This fact makes you different from those who have served in most other forms of government ever created in the history of the world. And when we focus on what it means to serve in such a government, when we consider the law, when we consider the founding principles of our nation, we can become even more proud of what has been accomplished in America. This is so because we have a government that was created by practical people trying to solve practical problems to secure a better life in a fairly dangerous world; and they accomplished their mission.

It will help us to understand where we are today, as a government, if we focus on how we got from 13 ragtag colonies up and down the East Coast of North America to the great nation we have become; a nation that today stands tall and which, in many ways, is a colossus in the world in the 21st century. And so it is that today we will take a journey through history. I hope that when we are done you will have a deeper feeling for our government and a greater pride in what you do.

The very structure of the Constitution gives us profound insights about what the founders thought was important. Article I of the Constitution concerns the Legislative Branch. Article II concerns the Executive Branch. Article III concerns the Judicial Branch. One, two, three; I suggest to you that branches of government are discussed in that order in the Constitution on purpose. By this I mean, the Founders thought that the Legislative Branch was going to be the great branch of government; they thought that the executive had to be constrained and controlled; and they hardly gave any thought at all to the Judicial Branch. In so structuring the Constitution they were suggesting how the government should work. They knew that a revolution did not make a nation and so they set about to put down in writing a form of government that would foster the making of a nation.

The great sweep of their vision for America can be seen in these beautiful opening words of the Constitution:

We the people of the United States in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United States of America.

The Founders were hoping for justice. They were seeking tranquility. They were looking to defend this new land and they were looking towards the future. They were trying to build something that would endure.

But notice what the Preamble says about where the basic law of America comes from. Our Constitution is not handed down from some higher authority. It is not a situation where some royal person leans over a balcony and says to the people, “I give you these laws.”

Instead of being handed down to us, the words of our Constitution make clear that the Constitution comes up from the people. The Constitution declares that the people of America call the nation into being. Thus those in government and those who elect governments here in America do well to remember that the Constitution came from people like you and me; from regular folk, thoughtful folk, people who had been to war, people who had toiled on the land, people who knew the needs of their neighbors, people with common sense, people determined to create a government like none other.

Let us return now to what we can learn from the general structure of the Constitution. I have already said that, in my opinion, the One, Two, Three: Legislative, Executive, Judicial layout was meaningful. To check by theory I applied the word count and paragraph count options on my computer to the Constitution. Here is what I found:

- Article I on the Legislative Branch has 2,278 words, 53 paragraphs, 219 lines.
- Article II on the Executive Branch has 1,028 words, less than half, 13 paragraphs, 95 lines.
- And Article III on the Judicial Branch has only 377 words, 7 paragraphs, 37 lines.

I believe this outcome confirms my suggestion that the Legislative Branch was intended to be the most important while the Judicial Branch was an afterthought.

The Founders thought that the Legislative Branch would be the most powerful branch of government because it is closest to the people. In their view, the Legislative Branch would turn over quickest and would thus be most related to the concerns of the people. They thought the people would bring their problems to the Legislative Branch, that the Legislative Branch would debate these problems, and that the Legislative Branch would resolve these problems. That is why the Founders spent so much time discussing the qualifications of members of the legislature and the rules they would abide by: how old they had to be; where they could live; what issues were subject to their control; what procedures had to be followed; what it took to make a quorum; and more. The detail found in Article I is found nowhere else in the Constitution.

The Founders’ treatment of the Executive Branch shows that there was tension among them about the nature of the Executive. Some, like John Adams, argued for a strong Executive because he feared that only a strong leader could hold the new nation together; that if the Executive had limited powers the new nation might unravel. But others, like Thomas Jefferson, feared a strong Executive because they thought that such an Executive could become very much like the King that we had just gotten rid of. So those who thought like Jefferson asked, “Why are we going to create a government that imposes upon us another king?” The tension among the Founders about the nature of the Executive lead to the Executive Branch coming in second. The great detail that can be found in Article I is missing in Article II. To be sure, that Article says how old a President has to be and that he has to be a natural-born citizen of the United States and there is a description of powers and limitations on power. But the design of the Constitution was not for a strong Executive.

And then there is Article III, plainly pulling up the rear. That Article is notable for the many things that it does not say. For example, it does not say that a judge has to be a citizen of the United States; it does not say whether a judge has to be trained in the law; it does not say what age is required to be a judge. That Article simply does not pay much attention to the judges or to the Judicial Branch.

There is a reason that Article III is so threadbare. When the Constitution was drafted, it was not a given that a court would have the last word on what the Constitution meant. For example, In England, the parliament had the last word on interpreting the Constitution. Thus the Founders had no real reason to think that the courts they were creating would claim the power to “say what the law is.” They thought the courts would be fairly weak.

So again, the design of the Constitution was for a powerful Legislature, a well-controlled Executive, and a weak court system. But I think that is pretty clear, the government now differs from they way it was designed. If you were to ask most citizens today to name the most powerful branch of government, it is not likely that they would say the Legislative Branch.

By the same token, if you were to ask them to name the weakest branch of government, it is not likely that they would say the Judicial Branch. And, indeed, from the moment the U.S. Supreme Court held in Marbury v. Madison it had the power of judicial review it became the quite a powerful branch of government.

This is so because the power of judicial review means that the courts can say to the Congress and to the whole nation that conduct or enactments don’t measure up to the promise of the Constitution and those cannot be allowed to stand. That is an awesome power. It is a power that can change the course of the nation as is shown by the cases dealing with racial equality in America where, in the Dred Scott decision one Supreme Court upheld the principle of racial inequality by declaring that “a black man has no rights that a white man is bound to respect” and another Supreme Court many years later in Brown v. Board held that racial inequality violated the Constitution. And so we now have an America that looks like you here in this room: black and white, men and women, younger and older, from all parts of the nation. That came from the power of judicial review.

I repeat, that the fact the government has come to work in a manner not precisely envisioned by the Founders is not a mark against them. Rather I think it is fair proof that the Founders may have done better than even they had hoped in creating this government; for they created something that is self-correcting and still evolving. They created a government that tries to do what the Preamble says; a government that seeks a more perfect union. That’s the touchstone. Our government continually tries to come closer and closer to the ideal of the “more perfect union.”

We turn now to the specifics of the Constitution. Because we are at war in Iraq I will begin with a discussion of the war powers of the United States. Interestingly enough, war is mentioned all three of the Articles that establish the branches of government. It probably comes as no surprise that war would be mentioned with respect to the Legislative Branch and the Executive Branch. But why would war be mentioned with respect to the Judicial Branch. In due course, I will explain.

Article I, Section 8, sets forth the Congressional War power. It gives Congress the power “to declare war, grant letters of mark and reprisal and make rules concerning captures on land and sea, to raise and support armies” and it also provides that no appropriation of money for that use shall be for a longer term than two years. It also empowers Congress, to a Navy, to make rules for the government and regulation of the land and naval forces, and more.

Article II, Section 2, contains the “Commander-in-Chief” clause which is the source of the Presidential War power. That clause simply says that, “The President shall be commander-in-chief of the Army and Navy of the United States and of the militia of the several states when called into the actual service of the United States.”

The point I made earlier about the attention to detail that the Founders gave to matters concerning the Legislative Branch as opposed to the other Branches of government can be seen again regarding the Congressional War Power and the Presidential War Power. The Congressional War Power is in described in 240 words, while the Presidential War Power is described in only 38 words. Thus, on the face of it, the Founders intended the Congressional War Power to be, to choose a word, “larger.” Nevertheless, the Founders did split the war power between these two branches of government and that was on purpose. They were trying to find a way to bring the whole nation together in times of war. Congress has a portion of the war power because the members of Congress come from the several states and have close ties to all the people. The President has a portion of the war power because he has a national constituency. The idea was that by splitting up the war power, the country would not go to war unless both constituencies – meaning the whole country – supported war.

One of the points of scholarly debate concerning the War Power is who gets to declare war. To understand this debate you need to know that when the Constitution was written, a declaration of war was a meaningful event. The way nations dealt with each other changed based on whether troops were in a declared war or not. Over time, the importance of a declaration of war has diminished. But the debate about declaring war still goes on.

But there is no debate about what the Founders had in mind once the nation was at war. Once the nation was at war, the Founders wanted the President to have the power to move quickly. They wanted him as Hamilton said in the Federalist Papers, to have “unity in dispatch.” That phrase sounds dated as we sit here today. But the events following the September 11 attack show what that phrase means. In the aftermath of the attack the nation responded on many fronts, at many levels. The Founders understood that in times of peril, the Commander in Chief had to be able to call on the full resources of the nation: the military, the National Guard, the National Health Service, the Centers for Disease Control, the FAA, local authorities. And so it was that after the attack the President was able to call on the whole country in order to pull us all together at once.

With regard to the War Power, we see again that the Founders appear to have intended that the Legislative Branch would have the great power and that the Executive Branch would have a lesser power. But again, things have evolved differently. The 38 words of the Presidential War Power have come to cover a whole host of situations and to give the President vast powers.

We will now turn our attention to the discussion of war in Article III on the Judicial Branch. There we find the definition of treason which reads as follows: “Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort.” Treason is the only crime defined in the Constitution, but the placement of this definition suggests to me that the Founders had in mind freedom of speech and freedom of expression when they defined Treason.

Here is why I say that. Before the Revolution, it was treason to talk about freedom from England; it was treason to criticize the King; it was treason to write pamphlets about better forms of government; it was treason to complain of taxation without representation. Almost any word or any thought at odds with what the King was doing was treason. And so it seems to me that in Article III the Founders were basically saying, “Wait just a minute, we are not going to live like that anymore. We are going to say now, at the beginning of the new government, what treason is.” And so the point of the Founders in defining treason as they did was that, in America, you are free to think what you want; to write what you want; to publish what you want; to preach what you want; to read what you want; to criticize the government when you want. And none of that is treason like it was under the King; but you better not take up arms against the United States and give aid and comfort to people who would bring our nation down because that and that alone is treason. Thus, I contend, that even the definition of treason in Article III is meant to highlight the great freedoms we have in this land.

You may be interested in learning where the United States Civil Service is found in the Constitution. It is in Article II, Section 2 where it says that the President shall appoint all other officers of the United States whose appointments are not herein otherwise provided for and which shall be established by law, but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone . . . . Of course, none of you is inferior. It is just that the Founders liked that word. But never fear for you are in good company. The Founders wrote about the Supreme Court and the inferior courts of the United States. Perhaps in the 19th Century, “inferior” did not mean what it means today. Nevertheless, it must be reassuring to find that the great U. S. Civil Service is tucked away in the Constitution.

By the way, as you go about your duties as in the Civil Service you may want to know that scholars tell me that if they were writing the Constitution today they might pay a great deal more to the Civil Service than did the Founders. They say this because the Civil Service has evolved into what some see as a fourth branch of government, a secret power in government. Given what you have become, scholars say that they would not make just a mere reference to the Civil Service, they would flesh out the requirements and the limitations.

We turn now from the first three Articles of the Constitution which established the branches of the government to those Articles that say more about how the government works.

Article IV contains the “full faith and credit” clause. This Article helps to make one nation of the several states by providing that all states must honor the rulings of sister states. Without this Article, you might win a victory in court in North Carolina only to have that victory ignored by another state. If we had to live that way, it would be very likely that our citizens would wonder whether we really had a nation.

Article IV also contains the “privileges and immunities” clause. The point of this clause is that citizens of one state must not be treated as foreigners in the other states. Thus when you travel from Virginia to Maryland, you are not asked for a passport, or detained because you don’t come from Maryland. Because of this clause you can travel and live freely in any state. Wherever you are from you can move to another state and be treated like a citizen of that state. You will have the protection of the laws. Were it not for this clause, the United States might have been like Europe once was with borders and laws insuring that the movement of people and commerce was constrained.

Article IV has a great deal to do with the creation of the American marketplace. It actually promotes the movement of people and of ideas. It makes of America one nation instead of several states.

Article V, requires only a brief mention. It concerns how to amend the Constitution.

Article VI works in two ways to create one nation from the several states. First, it made the United States responsible for the wartime debts of the states. Surely, that led the states to believe that they were part of something big. Second -- and probably most important over the years since the nation was created – is the fact that Article VI makes the Federal Government supreme. As a former Justice of the Supreme Court of Virginia, I have seen the Supremacy Clause in action. Here is what it says:

“This Constitution and the laws of the United States which made in pursuance thereof and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby anything in the constitution or laws of any state to the contrary notwithstanding.”

This means that the United States is one nation and that no state can disregard the authority of the United States. We fought the Civil War to give meaning to this provision. This provision puts an end to any debate about who has the last word in our system of Federalism. To a state like my own, Virginia, this provision marked an enormous shift of power because my state was quite a big deal before the nation was created. In the beginning Virginia stretched from the Atlantic Ocean to the Mississippi. Kentucky and West Virginia were originally part of Virginia. Virginia had more money than any other state. And so, for Virginia to agree to the Supremacy clause meant a lot. With that we have he Articles of the Constitution.

But once the Founders finished the Constitution they did what seems to me a rather odd thing. They amended the Constitution that they had just written. This does not seem to make much sense. How often does someone build a new house and as soon as they finish building come back and put an addition on the house. People don’t normally act that way. But the Founders did. The question is why?

Here is what was going on. The main body of the Constitution concerns how government acts towards itself, how the federal government treats with the branches of the federal government and how the federal government treats with the states. If we were in law school, the professor would say that the main part of the Constitution deals how government acts inter se. But there was no mention of how the new government was to act in relation to its citizens, the people. That was the problem.

To be sure, the Constitution does talk of “a more perfect union” and of “domestic tranquility” and the like but it gives no details about the government vis a vis the people. This situation made some of the Founders nervous; they feared that if the Constitution did not describe the powers of the government vis-à-vis the people, than the government might crush the people, deprive them of freedom, crush them, roll all over them, and take their money.

The remedy was to proceed immediately to amend the Constitution which takes us to the first ten amendments, known as the Bill of Rights. The theme of these amendments – put in a colloquial manner -- is something like this: “Hey, government, we are the people of this new nation and you best not forget us. We have just been through a war with England where our houses were taken, our crops were taken, our animals were taken. We have just come out of time when we could not meet, we could not talk, we could not publish news. We are not going to take this from anybody anymore. So listen up government, we are going to tell you right now what we will not accept from you.”

The First Amendment said that there will be no state religion, that the people were free to exercise the religion of there choice, that they had freedom of speech, freedom of peaceable assembly, and the right to petition government for the redress of grievances.

The Second Amendment recognized the need for a militia to provide for the security of free states and the right to bear arms.

The Third Amendment provided that there be no quartering of troops in times of peace without permission or in times of war except by law.

The Fourth Amendment provided for freedom from unreasonable search and seizure; and that no warrants could issue without probable cause.

The Fifth Amendment protected citizens against double jeopardy and self-incrimination.

The Sixth Amendment set forth the right to a speedy trial.

The Seventh Amendment established the right to trial by jury.

The Eight Amendment protected against excessive bail and cruel and unusual punishment.

The Ninth Amendment provides that rights not stated does not mean those rights don’t exist.

The Tenth Amendment states that powers not given to the United States belong to the people.

It seems to me that the Bill of Rights was a statement of recently remembered wrongs. The right protected in the Bill of Rights had not long before been trampled upon by the British.

The Bill of Rights does at least one other thing. Most of you are familiar with the great words of the Declaration of Independence which says “we hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights and that among these are life, liberty and the pursuit of happiness.” But the Declaration of Independence is not part of the law of the United States. The Declaration of Independence states the aspirations of the United States. As it turns out, the Bill of Rights goes a long way towards turning the aspirations of the Declaration into law. This is so because if one has freedom of speech, freedom of assembly, freedom of religion, the right to petition the government in redress of grievances and so forth, one is well on the way to life, liberty and the pursuit of happiness. Thus the hope for what the nation can become is woven into the very fabric of government throughout the Constitution and the Bill of Rights.

And so in closing I want to say that we have done many things right in America. I believe our government has a structure that serves the ends of justice. I believe our government relies on principles of fair play, that’s what you do every day. That’s what merit is about. That’s what being non-political is about.

I believe our nation clings to moral restraint in the exercise of our military might, and I believe we have done so since the beginning of our nation. But now we must confront the future and ask whether a Constitution and Declaration drafted in the 18th century can sustain us in the 21st century? Did the founders achieve their hope of building something that will endure? We must the question Lincoln asked: “Can any nation so conceived and so dedicated long endure?” Can this diverse land built on the principles of freedom endure in the face of those who would fly airplanes into buildings, send anthrax through the mail and then run and hide in caves?

I believe the great history of our nation says that it can. Just remember that when George Washington was sworn in as President on April 30, 1789, there was an emperor ruling China. There was a Czarina ruling Russia. There was a Kaiser ruling Germany, a Shah in Iran, a Shogun in Japan and a Sultan in Egypt, and there were Kings in France and Spain, but today of all those regimes, only the presidency of the United States is still standing.

There is good reason that our nation has endured. It begins with the fact that we are based on principles of individual freedom, principles that accommodate the sounds of many voices at the table, principles that include even the pursuit of happiness. No other government in the world has as part of its founding creed, the pursuit of happiness.

I think we have endured because we have a system that allows us to grow and evolve and move closer step by step to a more perfect union; because our people know freedom and they will never give it up; because we have a special relationship with our armed forces, indeed, our armed forces are us; and because even though we have been attacked by those who think they can exploit the freedoms and openness of the United States, we as a people will resist such attacks.

And so to you, who have sworn an oath to uphold the Constitution, I say you hold something precious in your hands. Never forget that to many Americans, when they are in touch with you, they are in touch with the United States of America; when they hear your voice, they hear the voice of the United States of America.

As part of the leadership at OPM, you are part of bringing in others who would serve our nation, so you must be particularly vigilant so that those you bring to government will uphold the virtues of our nation.

As I close, I want you to know that I think America is worth preserving, that it’s worth keeping, that it’s worth defending, that it’s worth our best efforts and to drive this point home so you’ll never forget, I want you to understand you are listening to a black man born in the segregated South in 1950 who has seen the white only signs, who has know discrimination in my life and yet stands here and tells you I love America and I believe you do too. Our Constitution is a magnificent thing. The servants of government bring it to life. You are part of that. Keep it on.

* Mr. Thomas is a partner at Hunton and Williams, LLP where he is Chief of the Appellate Practice Group. He is a former Justice of the Supreme Court of Virginia; a former member of the Advisory Committee on the Federal Rules of Appellate Procedure; and a current member of the Court of Arbitration for Sport.