Musings on the Constitution- XLXIV Narasimhan Vijayaraghavan

Musings on the Constitution- XLXIV
Narasimhan Vijayaraghavan

Now, there should be no difficulty to accept that just as the Constitution matters, the Debates too matter. Even in the USA, Judiciary did not readily embrace the debates or the history of the making of a Constitution, as a valid and valuable source for interpreting the Constitution. Unlike the Indian Constitution, which is the longest by far, in the world, with 395 Articles as originally enacted, the US Constitution is the shortest.

US Constitution Being Proposed at the Convention

The US Constitution was originally proposed on Sept,17, 1787 at the Constitutional Convention in Philadelphia, Pennsylvania. It was then ratified by Conventions in each State. It came into force since June,1788, when ratified initially by 9 of the 13 States. There have been 27 amendments to it, in all these 233 years and the first ten of them are part of Bill of Rights. The original document is on display at the National Archives and Records Administration, Washington D.C.

It has only 7 Articles. The Constitution has 4543 words in all, 7762, including amendments and the signatures of 39 of the 55 delegates who attended the Philadelphia Convention. It would have been contained in just 4 sheets of Paper. It has been pointed out that the delegates were all shit inside a ‘ smelly dungeon’, all windows closed to ward of eavesdroppers, and they wore the same woollen garments again and again, day after day, as most were from out of town. Most delegates ‘were short of funds’ and stayed in the same Boarding Houses and shared rooms among themselves.

Alexander Hamilton, James Madison and John Jay

In fact, the Federalist Papers written by Alexander Hamilton, James Madison and John Jay, 85 in number, are far longer in construct and content, than the very Constitution, it expatriates, expounds, eulogises and commends acceptance, when there was a fierce debate between the Federalists vs Anti Federalists. That debate has been hugely helpful and impactful to communicate to us, even after a couple of hundred years, as to why a word or a turn of phrase was used and not a possible other and what it was intended to mean and meant to convey. That they were clever craftsmen of huge intellect who told us so much in just so many words and that have outlasted them and shall outlast us and many more generations, is a colossal tribute we ought to pay be grateful for.

And when Benjamin Franklin the elder statesman among the Founders told a lady, ‘We have a Republic now. If we can keep it’, he captured it all as we need to know and be aware of fir all times to come”, as the late lamented Associate Justice Antonin Scalia, of the U S Supreme Court, said in one of his no so infrequent appearances on the idiot box. (It needs to be flagged that in the US there has always been a tradition of the US Judge not being so reticent and live in ivory towers, unlike ours.

Supreme Court Justices Stephen Breyer (left) and Antonin Scalia testify during a hearing before the Senate Judiciary Committee. The justices showed that while they are legal opposites, they are by no means opponents.

The Justices- Stephen Bryer and Antonin Scalia- never hold back their constitutional constructs in many an issue except those are before them for a decision. That is where you can glean the philosophy of these Justices and almost always be in a position to second guess their votes in matters heard by them. It is a cottage industry among the legal practitioners and academicians adding to the legal literature of immense value which has contributed not so little even to these Musings, as I would readily and shamelessly concede. Barring the quotes the words are mine and none of those authorities are responsible for the construct put on them by me. I would offer my profuse apologies for my two penny wisdom at play or even its absence.

Our Supreme Court had chosen to rely on the famed Doctrine of Exclusion to not to readily adopt the Debates in the Constituent Assembly. It makes sense therefore to dig into the SCOTUS example and experience or even House Of Lords, as to the distance we have travelled. It is such a fascinating historical and contextual read for these Musings on the Constitution.

Interestingly, the 55 delegates came to the Constitution Congress ‘not to write a new Constitution. They came to tweak the existing Articles of Federation. But, they ended up writing a new one’ says Prof.Akhil Amar, of Yale University, a foremost authority on the US Constitution. He adds, “It was economics that triggered it. In the wake of the American Revolutionary War on contemporaneously, the Central coffers were empty. Under the Articles of Confederation the States were under no obligation to fund the Federal Government. The financial necessity and compulsion became huge factors in the replacement of the Articles by a new Constitution”.

Philadelphia Constitutional Convention in Session

In the context of the financial implications, a major debate broke out among the Founders. As to the need for an armed force. It was argued by several that resources should not be stretched in the name of building an army. A few thousand forces should suffice as the core concerns of development needed to be addressed. These arguments were punctured by George Washington who was the General in command of the forces in the battle against the British. He sarcastically said, in one of his few interventions, as an Lawrence Tribe, a constitutional scholar said, “ I would readily with the suggestion for a few thousand forces, if it can stipulated that invading forces did not have more than 3000 armed militia”. These too were the ‘debates’ predating the US Constitution. That concluded the debate on this issue, and surely germinated in the humongous growth and advancements in US defence spending.

“May not the knowledge of this power of points be of use to mankind, in preserving houses, churches, ships, etc., from the stroke of lightning, by directing us to fix, on the highest parts of those edifices, upright rods of iron made sharp as a needle…Would not these pointed rods probably draw the electrical fire silently out of a cloud before it came nigh enough to strike, and thereby secure us from that most sudden and terrible mischief!”

One of the nuggets from the debate times was the role of Benjamin Franklin, the 81 year old founder, a multifaceted genius, who incidentally invented the lightning rod, and interacted with the French to get their support to throw out the British and wrote an autobiography which he called Memoirs, an unfinished work.

Franklin was suffering a serious affliction of Gout and had to be lifted to the Independence Hall, where the Convention was held, by four prisoners from the Wallnut Street Jain. He was ferried by ‘the palanquin bearers’ as a commentator put it, ‘seated on a sedan chair’.

His role in the framing of the US Constitution was legendary and ‘every time there was an impasse in the feverish and animated exchanges, the delegates looked to the elder statesman to soothe the nerves and provide a mediated line’, as Akhil Amar said.
(Author is practising advocate in the Madras High Court)