Wack: Constitution product of an unfinished process

I wrote recently about Associate Supreme Court Justice Robert Jackson’s statement regarding the Constitution that bears repeating: “The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

If it’s not a suicide pact, what is the Constitution?


Our founding agreement is the product of a process that began in 1787, and is arguably unfinished. It began with the failure of the Articles of Confederation, the country’s first constitution, a clumsy first attempt at national government. Those failures revolved mostly around money, the inability of the national government to tax, defaults on many of the new country’s debts from the Revolutionary War, and a lack of coherent foreign and trade policies which crippled the economic interests of the states.

The document that resulted from the deliberations of 1787 was an agreement between representatives of 12 of the 13 states, and required only ratification by nine to go in effect in those nine states, sidestepping unanimous consent and essentially forcing the decision for the stragglers.

It was an imperfect, incomplete work in progress, recognized as such even then. Of the 55 delegates to the Constitutional Convention, only 39 ended up signing, due to a variety of objections.

Ben Franklin, representing Pennsylvania at the convention, said of the final product: “There are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them.” He would accept the constitution, “because I expect no better and because I am not sure that it is not the best.” Hardly a ringing endorsement by one of the founding fathers.

At its very core, the agreement is a series of compromises, some of them fairly clumsy. In hindsight, some were loathsome. The balance of power between the branches was a compromise. The varying representation between the House and the Senate was a compromise. There were many others, including, notoriously, the three-fifths compromise, giving the slave states more advantageous representation and less burdensome taxation by counting “all other persons” as three-fifths of a person without allowing those persons to vote, all as an inducement for slave states to ratify the agreement.

Clearly, the U.S. Constitution is the work of imperfect human minds and hands — not scripture, not divine, not sacred. Nothing about it is absolute or irrevocable. Every word was haggled, discussed, contested, bartered, edited, amended, dickered over. None of it is final or permanent.

The reason this warrants discussion is that we may soon face significant constitutional challenges and crises. For example, what happens when the different branches are in open conflict, and there is no explicit guidance or precedent in the Constitution to resolve it? What happens when the legislature and the judiciary disagree, for example, about the scope of executive branch powers regarding presidential pardons? What if an attempt to exercise the powers of the 25th Amendment, specifically section 4, or the process of impeachment, goes poorly? Does anyone have any confidence how such a process might go in our current political environment?

Difficult times lay ahead and, if this country is to survive, we will have to emulate, and perhaps surpass, the founders’ example of difficult compromise to see the country through to the least unattractive solutions that hold the country together.

To paraphrase Abraham Lincoln, we are embarking on a struggle that will test whether a country conceived in liberty and dedicated to the proposition that all men are created equal can long endure. Pay attention, that test may not be too far off.

Robert Wack writes from Westminster, where he serves on the Common Council. He can be reached at