The Federal Constitution

If we were to view the American federal statutory system as a pyramid, then the Constitution of the United States will be its pinnacle. Furthermore, all legal rules of the land have to fit within the Constitution, as interpreted by the Supreme Court of the United States.

The Constitution is the highest law in our society because, although a very brief document, it spells out the structure of the federal government, and it regulates how our government works. Chiefly, it sets out the norms that govern the distribution of political powers among the branches of government.

The U.S. Constitution, whose binding authority does not include the Declaration of Independence of July 4, 1776, is more recent than the Constitutions of many of the American states, which started being adopted as soon as we declared our independence from the British Empire. The federal Constitution was signed by the delegates to the Constitutional Convention in September 1787. Then it was submitted to the Continental Congress and became effective upon its ratification by two-thirds of the states, in July 1788. The Documents from the Continental Congress and the Constitutional Convention, 1774-1789, available at [1][2].

There were a few constitutional innovations presented in the federal Constitution that no other similar act has ever envisioned. Although the act itself is very short, only a few pages—as we mentioned before, the [Constitution][3] delineates the structure of the new government. The first three articles identity the branches of the government: one for each branch, and enumerate each branch’s duties. In plain terms, it states that the federal government has limited powers. Article 1 of the Constitution limits the powers of the federal legislative body vis-à-vis the states of the Union. The principle of separation of powers was not new, Montesquieu described it in The Spirit of the Law (1751), but it had not been previously embedded in a written Constitution. The Constitution does not mention whether one branch will have the role of checking the use of power invested in the others, either. However, because the principles of separation of powers was so scrupulously translated into separate articles describing the functions of each branch of the government, the check-and-balance function of the branches was easily assumed and, furthermore, the judiciary easily appointed itself the branch that checks the exercise of powers by the other branches.

Originally the Constitution contained only seven articles, with the last one dedicated to the ratification procedures. Despite suggestions from various members to the 1787 Federal Convention in Philadelphia that the federal Constitution include a bill of rights that would secure some guarantees of personal liberty vis-à- vis the federal government, the Constitution did not include such a declaration of rights. It only mentioned some guarantees of what we consider today basic human rights-regarding access to courts and trial by jury (Art. III, § 2). In the end the well-spread suspicion of the federal government prevailed, and by 1789, ten additional provisions were added. Known as the Bill of Rights, they empowered individuals against the power of the federal government. In its new version the federal Constitution was (re-)sent to the states to be ratified.

Aside from these first ten amendments, the Constitution has known 17 more amendments.32 The 27th amendment became effective in 1992 and regards the compensation for services by senators and representatives.

The federal Constitution, like any piece of legislation is a dynamic document. Initially, it was mostly focused on the federal government and its powers vis-à-vis the states and the individuals. However, by incorporating the Bill of Rights, and especially after the adoption of the Reconstruction Era Amendments, 13th, 14th, and 15th Amendments in the years following the Civil War, the Constitution has become our main guarantor of individual freedoms and liberties. It imposes limits on both the federal and the state governments. For example, the Fourth Amendment guarantees our freedom from unwarranted searches and seizures, protecting us from unreasonable intrusion by both the federal and state governments.

Nevertheless, the Constitution is only the repository of our main individual freedoms. It is the duty of the U.S. Supreme Court, as the highest court in the country to give meaning to those rights and make sure that no statute or administrative rule violates our fundamental law. In other words, although the Constitution does not explicitly delegates that power to the courts, the judicial branch is the ultimate arbiter of constitutionality because it is the branch which applies the law, including the Constitution, to various cases and controversies. This is why we argue that it is not the Constitution itself, but the United States Supreme Court’s interpretation of it that establishes the standard of legality in our system. Consequently, the nomination of the United States Supreme Court Justices remains a highly important process of our democratic safeguards. Ultimately, those justices determine the limits of our individual and collective freedoms.