capitalism

100 Constitutionalism
both houses of Congress had approved 12 amendments to
be sent to the states for ratification. Only after that time was
the Constitution ratified by North Carolina and Rhode
Island, the last of the original 13 states to do so.
By December 1791, 10 of the 12 amendments proposed
by Congress in 1789 had been ratified by the legislatures of
three fourths of the states, as Article V requires, and so
became the first 10 amendments, known popularly as the
Bill of Rights. The first eight protect various individual
rights, among them freedom of speech and press, religious
freedom, the right to keep and bear arms, protections
against unreasonable searches and seizures, property rights,
the right to a jury trial in both civil and criminal cases, and
various procedural safeguards for the rights of the accused.
The 9th and 10th Amendments provide general rules of
constitutional interpretation designed to solve the problems
Federalists maintained would arise from the addition of a
bill of rights to the Constitution: the 9th protects against the
loss of unenumerated rights, while the 10th explicitly limits
the national government to those powers enumerated in
the Constitution.
In the 210 years since the ratification of the Bill of
Rights, the Constitution has been amended only 17 times.
By far the most significant amendments were added after
the Civil War: the 13th Amendment, which abolished slavery;
and the 14th Amendment, which redefined U.S. citizenship
and imposed significant additional limits on state
governments to protect the “privileges or immunities” of
U.S. citizens, to ensure “the equal protection of the laws,”
and to prohibit the rights of “life, liberty, and property”
from being denied without “due process of law.” The most
recent amendment, the 27th, which limits congressional
salary increases, also is one of the oldest proposed, having
been among the original 12 amendments recommended by
the 1st Congress, and which finally was ratified in 1992 by
the requisite three-fourths of the states.
Since the U.S. Supreme Court first declared unconstitutional
an act of Congress in Marbury v. Madison (1803), the
Court has exercised the power of judicial review, that is, the
power to interpret the Constitution and to declare void any
laws or governmental acts in conflict with it. Before the
Civil War, that power was exercised sparingly. However,
following the war and especially during the 20th century,
the Court has sometimes aggressively used—and, in the
eyes of many critics, abused—its powers of judicial review.
The Supreme Court has had an uneven record in enforcing
the Constitution. Although the Court has expanded
its protection of certain rights, such as the 1st Amendment
protection of freedom of speech, the Court also has virtually
eviscerated other constitutional provisions, such as the
14th Amendment’s “privileges or immunities” clause.
Since the late 1930s, the Court has followed a double standard
of constitutional review under which it has given
greater protection to certain preferred personal rights, but
less protection to property rights and economic liberty.
Moreover, through its broad interpretations of congressional
powers to spend money and to regulate interstate
commerce, the Court in the late 20th century sanctioned the
enormous growth of the national government, far beyond
what the Constitution’s framers ever intended or imagined.
DNM
See also Bill of Rights, U.S.; Constitutionalism; Federalists Versus
Anti-Federalists; Freedom of Speech; Madison, James;
Separation of Church and State
Further Readings
Barnett, Randy E. Restoring the Lost Constitution: The Presumption
of Liberty. Princeton, NJ: Princeton University Press, 2004.
Cooke, Jacob E., ed. The Federalist. Middletown, CT: Wesleyan
University Press, 1961.
Ely, James W., Jr. The Guardian of Every Other Right: A
Constitutional History of Property Rights. New York:
Oxford University Press, 1992.
Farber, Daniel A., and Suzanna Sherry, eds. A History of the
American Constitution. 2nd ed. St. Paul, MN: West Group, 2005.
Farrand, Max, ed. The Records of the Federal Convention of 1787.
Rev. ed. 4 vols. New Haven, CT: Yale University Press, 1966.
Kelly, Alfred H., Winfred A. Harbison, and Herman Belz. The
American Constitution: Its Origins and Development. 7th ed.
2 vols. New York: W. W. Norton, 1991.
Kurland, Philip B., and Ralph Lerner. The Founders’ Constitution.
5 vols. Chicago: University of Chicago Press, 1987.
Levy, Leonard W., ed. Essays on the Making of the Constitution.
2nd ed. New York: Oxford University Press, 1987.
McDonald, Forrest. Novus Ordo Seclorum: The Ideological Origins
of the Constitution. Lawrence: University Press of Kansas, 1985.
Rutland, Robert Allen. The Birth of the Bill of Rights, 1776–1791.
Rev. ed. Boston: Northeastern University Press, 1983.
———. The Ordeal of the Constitution: The Antifederalists and the
Ratification Struggle of 1787–1788. Boston: Northeastern
University Press, 1966.
CONSTITUTIONALISM
Constitutionalism is the effort to impose a higher level
order on the actions of government so that officials are not
the judges of the limits of their own authority. Just as law is
a limitation on action, a constitution limits the government’s
actions and is therefore a “law for laws.” In the
absence of a constitution, a state’s ruling power is ultimately
arbitrary, and its decisions are matters of decree
rather than of well-settled and generally understood principles.
Such a society can provide little protection for individual
rights, economic prosperity, or the rule of law.
Although some writers have defined the term constitution
broadly enough to encompass any institution that helps