Why September 17 Is Neither the Only nor Necessarily the Best Day to Celebrate America’s True Constitutional Tradition

Posted in: Constitutional Law

Today, September 17, is known as “Constitution Day,” the day chosen by Congress to celebrate the U.S. Constitution, the charter under which we all live here in the United States. The September 17 date was selected because it was on that day in September of 1787 when a majority of the delegates (39 out of 55) to the Philadelphia Convention signed the proposed Constitution they had drafted and referred it to Congress to begin the process of ratification by the states.

There is much to celebrate in the work of the Philadelphia delegates. We cannot, of course, ignore the momentous flaws in the document that emerged—most notably its toleration of, indeed affirmative nod to and protection for, an evil system of race-based slavery in much of the nation. (More on that a bit later.) But even as we ought never to forget the ways in which slavery and invidious discrimination of other kinds (mis)shaped our founding document, neither should we forget the ways in which the original Constitution (and for these purposes we will include the Bill of Rights, since its rapid creation and proposal was part of the understanding of the Philadelphia delegates themselves) reflected a very progressive—indeed, radically progressive for the times—charter for self-governance. Among the visionary features of the original Constitution worth celebrating are: (1) its first words, “We the People,” which (as Chief Justice John Marshall would remind everyone three decades later in McCulloch v. Maryland) made clear the Constitution was an agreement among the people of the U.S., not among the independent state governments, and for that reason was written and structured so that ordinary people could understand its broad themes and objectives; (2) a ratification process that was remarkably democratic, including essentially direct popular ratification in at least some states; (3) the election of the House of Representatives directly by the people; (4) the (related) absence of any property qualifications to vote for members of the House; (5) the ban on titles of nobility and bills of attainder, which signal a modern notion of equality in which people should not be treated more than or less than others simply by virtue of characteristics with which they are born—a vision that, unfortunately, was muddled until the 13th Amendment eliminated slavery; (6) a guarantee of a Republican form of government in all the states, ensuring that narrow factions cannot systematically frustrate the democratic will of the majority; (7) the protection (in the First Amendment) of freedom of expression and the protection (in several other amendments) of the right to jury trials, so that the people of the nation would be able to consider how to change, and how to apply, our laws and even the Constitution itself. Regarding beneficial change, it bears noting (especially these days when many seem to have forgotten it) that many of the most righteous developments in U.S. history—abolition of slavery, the Civil Rights movement, the gender equality movement, the LGBTQ rights movement, etc.—could not have come about without robust freedom of expression.

But even as the 1780s and its leaders brought us many good ideas that have endured, we must ask: Is September 17 really the best day to celebrate America’s constitutional tradition? After some careful reflection, we think designating September 17 as Constitution Day in some ways wrongly elevates the work of the constitutional Convention over other achievements and episodes essential to our constitutional regime.

For starters, the Philadelphia Convention produced only a proposed Constitution, with no legal effect. The delegates fully understood that the success of their project depended upon ratification: while the preamble they wrote invoked the authority of “We the People,” the People had not yet acted.

And they would have no opportunity to do so unless Congress actually transmitted the Convention’s proposed Constitution to the states. When, on September 20, 1787, the document reached Congress, Congress did not immediately send it on to the states for their consideration but instead held debate on whether to censure the Convention delegates because their task had been only to amend the Articles of Confederation (the then-extant framework of government), not to prepare a whole new Constitution. Had Congress pushed the point, the draft might have died then and there. On September 28, however, Congress set aside its qualms and dispatched the proposed Constitution to the states. Perhaps, then, September 28 has a claim to Constitution Day because of Congress’s essential role. Still, what Congress sent remained just a proposal—also without legal effect.

Ratification milestones seem to us better candidates for Constitution Day; after all, it is adoption, and not drafting or submission, that gives the Constitution legal and normative force. But here, too there are choices. Article VII provided that the Constitution would take legal effect among ratifying states once nine states had ratified. Delaware was first: it ratified on December 7, 1787. Perhaps, then, as a reward for Delaware’s enthusiasm and foresight, Constitution Day should be December 7. One state, though, is not nine—and Delaware did not turn the proposal into law.

The ninth state did, however. And that was New Hampshire on June 21, 1788. At that point, the charter proposed by the Convention and transmitted by the Congress took legal effect in the name of the People. So June 21 is certainly a plausible candidate for celebration. But some might find that date a bit premature. The one outcome arguably worse than no Constitution would have been a Constitution approved by and applicable in some of the thirteen states. Thus, there is a case for recognizing the date when all thirteen states were in, and the prospect of a partial union alongside some non-ratifying independent states no longer existed. That occurred when Rhode Island, the holdout, in a very close state vote, and with the federal government already operational, ratified the Constitution on May 29, 1790. At that point the entire Union, with a single Constitution, was in place.

But even May 29 might not be the right day to pick, because (as we noted above) the original Constitution lacked many of the principles and provisions that (today) are most worth celebrating. Many Americans, asked about the importance of the Constitution to them, rightly think not about the founding at all but about the momentous changes that were made almost a full century later, during the 1860s.

In other words, perhaps the founding era isn’t the right place to look at all. In many crucial respects, our Constitution is not the Constitution of Madison, Washington, and Jefferson. It is instead the overhauled document that emerged from the period of Reconstruction after the Civil War. Indeed, many historians refer to that period as a Second Founding and think of the Reconstruction amendments as having ushered in Constitution 2.0. Hence, December 6 might be a better Constitution Day because that’s when, in 1865, the 13th Amendment—abolishing slavery—was ratified. (We note here that Congress would have done better recently to recognize December 6 as the federal holiday commemorating the end of slavery rather than, as it did, June 19, Juneteenth.) July 9 in 1868 is when the Fourteenth Amendment, a cornerstone of our contemporary constitutional system, was ratified. That day too seems a very strong candidate for Constitution Day.

A related but even more dynamic approach would focus on the adoption of subsequent amendments that fulfill the promise of the preamble’s invocation of We the People, by expanding the franchise: the Fifteenth Amendment (ratified February 3, 1870) eliminating racial discrimination in voting; the Nineteenth (August 18, 1920) eliminating sex discrimination in voting; the Twenty-Fourth Amendment (January 23, 1964) eliminating socio-economic discrimination in voting; or the Twenty-Sixth Amendment (July 1, 1971) eliminating age discrimination in voting. On this path, we might even celebrate instead—or as well—landmark statutes central to our modern system of constitutional government, such as the Voting Rights Act of August 6, 1965.

Congress has said September 17 is the date to recognize and reflect upon the Constitution. And as constitutional teachers and scholars, we are happy to spend today thinking about the role the Constitution has played and continues to play in American democracy. But we need be careful not to focus on the work of the drafters at the Philadelphia Convention in a way that obscures the grievous imperfections in their work product, or (more happily) the ways in which Americans have worked hard (and sacrificed so much) in the two centuries since to correct those imperfections, an enterprise that continues to this day.

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