U.S. Constitution has been tested time and again

Bland-Lee speaker explores the ongoing stressors to the republic

When the United States Constitution was written and signed in 1787, the new country had a population of about 3.2 to 3.5 million in 13 states along the Eastern seaboard. The document included a provision for a national census every 10 years to ensure Congress apportioned representation appropriately, at a rate of one representative for about 30,000 citizens (based on “free persons” and “three-fifths of other persons,” i.e., enslaved people).

The Reapportionment Act of 1929 — passed when the country included 35 additional states across the continent and the American population was approximately 122 million — permanently capped the number of representatives at 435. According to the 2020 Census, the U.S. population has nearly tripled in the ensuing 97 years, but the number of representatives has not changed — and the average district size is now well over 750,000 citizens.

How has the Constitution kept up with this massive geographic expansion and population growth? The better question might be whether it has kept up at all.

Mark Peterson, the Edmund S. Morgan Professor of History in Yale University’s Faculty of Arts and Sciences, doesn’t think it has. On Oct. 8, Peterson delivered the Clark University History Department’s annual Bland-Lee Lecture, “The Making and Breaking of the American Constitution: A Thousand-Year History.” The lecture was the first event sponsored by Clark’s School of Civic and Global Engagement.

The constitutional order created in the 18th century may have suited the needs of that time, but it no longer works for the America of 2026, he argues.

The Treaty of Paris that ended the American Revolution gave the nation claims to a huge amount of territory that the government urgently needed to figure out how to manage — the entire region west of the Appalachian Mountains, all the way to the Mississippi. However, Peterson explained, under the Articles of Confederation (the precursor to the Constitution), the national government had very limited power and capacity to control the new territory. It had no direct taxing power, no executive branch, and no one to oversee this vast stretch of land.

Revolutionary debt lingered, and “diplomats faced the challenge of representing a confederacy of states with enormously diverse interests,” Peterson said. “It’s fair to say that by 1786, some kind of major reform to the Articles was in the offing.”

During the Constitutional Convention of 1787, delegates debated how best to “meet the exigencies of the union,” which meant creating a way to manage and govern the immense territory between the original colonies and the Pacific Ocean. “Conflicting interests among individual states over who controlled the land reserves and who was responsible for removing its Indigenous owners would have made it nearly impossible to transform and control that land,” Peterson said, “but the consolidated United States national government produced by the Constitution that we know took to this task with alacrity.”

For the next century, he added, the national government’s principal function would be to transform the West. He described a rapidly developing system of military conquest and financial pressure on native nations, territorial organization, and the making of new states.

Peterson argues that the most significant change to the Constitution in the 19th century was the addition of more than 30 new states to the original 13, a quadrupling of the nation’s land area, and the increase of its population from four million in 1790 to 76 million in 1900. These changes did not alter the Constitution’s written text, but they “radically restructured the nation’s social fabric, economy, and politics,” he explained, impacting the constitutional relationship between the American people and the government.

“Once created by Congress, a state is a state forever. The right of a state to representation in Congress, two seats in the Senate, and therefore at least three electoral votes cannot be altered, not even by a constitutional amendment,” Peterson said.

Peterson argues that while the United States’ purpose in the 19th century was expansion, it shifted in the 20th century to industrialization and economic prosperity. But World War I, followed by the Great Depression — which evolved into an even more devastating world war — led to more government action beyond the powers granted in the written Constitution.

Franklin D. Roosevelt’s New Deal addressed crises in agriculture, industry, labor conditions, poverty, and more, by asserting federal powers beyond anything ever before exercised. As a result, the Supreme Court struck down many of these actions as unconstitutional. But after his 1936 landslide reelection, Roosevelt eschewed pursuing constitutional amendments, instead advancing legislation and reordering governmental functions through a campaign of pressure on the Supreme Court. The court ultimately upheld measures like the Social Security Act and the labor-relations Wagner Act.

“The formal process for amending the Constitution became obsolete in the era of permanent emergency, first heralded by the Depression and then sealed by the advent of the nuclear age,” Peterson said. “I argue that since the Cold War ended around 1990 at the close of the nation’s second century, the United States has been constitutionally adrift. The purpose that dominated its first century had been completed by 1890, when the Census Bureau declared the frontier to be closed.

“It’s plain that the garment of our written constitution no longer fits the body of the American land and people, and that this has been true for a very long time.”