Today college and universities across the country will mark Constitution Day. As has been mandated by federal law since 2004, each educational institution in receipt of federal funds must hold an educational event pertaining to the Constitution on September 17th. The tradition of pausing to reflect on the Constitution on this day stretches back over one hundred years, and the date has been federally recognized since a joint resolution in 1952 designated September 17th Citizenship Day and encouraged the judiciary to use naturalization ceremonies as opportunities “to address the newly naturalized citizen upon the form and genius of our Government and the privileges and responsibilities of citizenship.”
The choice of September 17th is an odd one for these lofty aims however. That date commemorates the signing of the Constitution by 39 delegates to the Philadelphia convention of 1787. That was a little over two-thirds of the delegates who had taken part in the convention, as some had already left and three refused to do so. Today’s celebration of the Constitution on September 17th suggests the date marks the completion of the constitutional project – that the signing represented the final step in making the Constitution. In actual fact, the signing of the Constitution was rather motivated by shoring up support in the face of the opposition to it that the delegates correctly anticipated would emerge. Alexander Hamilton urged his fellow delegates to sign, as “A few characters of consequence, by opposing or even refusing to sign the Constitution, might do infinite mischief” to its prospects.
Addressing this opposition was important, as the framers regarded their document as only provisional until the People, through the process of ratification, approved it. James Madison reminded New Yorkers in the Federalist Papers that “the powers [of the convention] were merely advisory and recommendatory” and that the resulting Constitution was “to be of no more consequence than the paper upon which it is written, unless it be stamped with the approbation of those to whom it is addressed.” Leading Federalist James Wilson told his fellow Pennsylvanians during the ratification debates that the Constitution received “its political existence from [the People’s] authority: they ordain and establish.” The legacy of the Constitution was far from assured in September 17th, 1787.
This is important to note, as the endurance of the Constitution has not been down to the work of 39 framers during the summer of 1787. That the Constitution has endured has been the result of the People’s capacity to reform it through processes of amendment and reinterpretation. The Constitution of 1787 recognized much of the population as only 3/5th of a person, and failed to recognize other parts of it entirely. It protected the institution of slavery, created an upper chamber that never faced popular election, and established an Electoral College that gives disproportionate power to sparsely populated States. Some of those injustices have been addressed – but it was not the framers that did so; citizens, and those not recognized as citizens by the framers’ constitution, have pushed for a more just constitution through extralegal actions, social movements, and legal strategies. When they have succeeded, and the Constitution made more just, democracy advanced. It is through such acts of “citizenship” that the form and “genius” of the American Government has advanced.
As I discuss in my forthcoming book, the association of the Constitution with that narrow group of framers was neither natural nor inevitable. The framers tight connection with the Constitution and their authority in its interpretation emerged in the mid-Antebellum period in response to the pressure of abolitionists to use the Constitution as basis to push back slavery and move towards a “more perfect union.” The aggrandizement of the framers was a conservative reaction to a growing social movement that sought a more democratic society. Marking 17th September is both a product of that historical conjuncture and a commemoration that extends that conservative impulse.
Celebrating September 17th obscures the work and legacy of those countless actors and activists who have fought – and continue to fight – to widen the definition of the People and the People’s authority. It reemphasizes the authority of a group of white, male framers who offered an imperfect constitution for consideration by an imperfect People. Surely it would be better to honor the Constitution’s capacity for change and the People’s capacity to make such change as the enduring legacy of the U.S. Constitution. To this end, we should forego September 17th as Constitution Day and instead mark July 9th – the anniversary of the ratification of the 14th Amendment – an Amendment that overturned the existing constitutional order and declared “All persons born or naturalized in the United States… citizens of the United States.” Indeed, in making such a change we would be enacting our own capacity to move beyond the framers.