During the convention, there was considerable attention given to the process for adoption of the Constitution. Initially, the issue revolved around whether the Constitution should be sent to the Congress to be ratified as was the Articles of Confederation (and thereby treated as no more than an amendment to that document). The founders were of the view that the transformation of the government into a supreme national government required a different ratification process. They felt the document needed to be ratified in some way by the people themselves and not by the states, which would establish the sovereignty of the new government within its sphere of responsibility.

A second procedural question revolved around how many states would be required to institute the new government. This was an important question, for all states were required to adopt the new Constitution it would surely fail, but if too few states joined, it might also fail. In the end, Article VII provided that if nine of the thirteen states were to ratify the Constitution, it would be sufficient to create the new government among the states so ratifying the document. [1]

Ratification

As mentioned above, Article 7 provided that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” [2] Notice that Article VII establishes a procedure by which each state would have a convention made up of representatives of the people who would ratify or fail to ratify the Constitution. This particular provision was not without controversy at the time because the Articles of Confederation provided that it would take a unanimous agreement of all states to amend the document. [3]

In Federalist No. 40, Madison defended the action of the Convection as warranted because this was not merely an amendment of the Articles of Confederation but a fundamental change of the form of government to which the people ought to consent. Thus, Madison wrote in The Federalist No. 40 that, “in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” [4] In other words, from a practical point of view, ratification by the people was the best means, since a substantial change in the form of the national government was to be effected.

From a practical point of view, the process was necessary to remedy in practice a defect of the Articles of Incorporation: it required unanimous consent for amendments, which was too high a bar for effective government. The founders were practical people. They wished to create a process that would ensure that changes were not made for purely political or passing reasons, but which would enable the document to be modified when necessary. The founders, and especially Hamilton did not consider that they were omniscient or had created a perfect document, and they wanted to provide a reasonable chance for change. [5]

On June 21, 1788, not a year after the proposal was sent to the states, New Hampshire became the nineth state to ratify, and the Constitution became the supreme law of the land. It is notable that after New Hampshire, two of the most powerful states, New York and Virginia ratified the document, indicating their desire not to be “left behind” in the establishment of the new nation and disadvantaged by the new union. [6]

Need for the Initial Bill of Rights

The single greatest objection to ratification of the Constitution was the absence of a Bill of Rights. In the end, the first ten amendments were added to the document to satisfy those who opposed the Constitution on this basis. During the Constitutional Convention, it was understood that the absence of a Bill of Rights could be a barrier to adoption of the Constitution. On September 12, 1787, George Mason of Virginia made a motion to the Convention to create a Bill of Rights. Elbridge Gerry of Massachusetts seconded the motion. Since both were opposed to the new form of government, they might not have been the best persons to make the motion, and Mason’s motion failed. However, their motion was an indication of the importance a Bill of Rights might be in the ratification process.

This was not the end of the matter. Thus far, I have been quoting the Federalist Papers, but the Federalist Papers were not the only papers prepared. The antifederalists had their own intellectual army. Robert Yates, writing under the pseudonym of Brutus, wrote the following:

Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage. [7]

The situation in Massachusetts was especially violent and a warning to the Federalists of problems in securing the ratification of the document in certain states. By this time, the need for a Bill of rights was obvious and during the first Congress, James Madison, now a Congressman from Virginia, went about the business of creating one. He made an examination of various potential amendments and made a proposal, ten of which were enacted as the first ten amendments to the Constitution in 1791.

Bill of Rights as Adopted

Set out below is a brief description of the Bill of Rights:

• The First Amendment: Five Freedoms. The First Amendment protects five basic liberties. They are (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to right wrongs. These were the guarantees that the Anti-Federalists complained were importantly missing in the new Constitution.
  • Freedom of Religion means that the government may not force you to accept one set of religious beliefs nor may it interfere with the way you worship. [8]
  • Freedom of Speech entitles American citizens to say what they think, provided they do not intentionally hurt someone else’s reputation by making false accusations. Neither may they make irresponsible statements deliberately harmful to others, such as yelling, “Fire!” in a crowded theater when there is no fire. There are many issues about which Americans disagree, from child-rearing practices to baseball teams to Presidential candidates. Freedom of speech enables people to state their opinions openly to try to convince others to change their minds.
  • Freedom of the Press makes it possible for Americans to keep informed about what is going on in government. It helps them to be responsible citizens. Reporters and editors can criticize the government without the risk of punishment, provided they do not deliberately tell lies. Newspapers, magazines, and books, as well as television and movie scripts, do not have to be submitted for government inspection before they are published. This censorship would violate the First Amendment.
  • Freedom of Assembly makes it possible for Americans to join clubs or political parties, even if those groups represent unpopular views.
  • Freedom to Petition allows people to tell the government what they think is needed. They can try to prevent the government from acting in a certain way. They can complain to the government without fear of penalty when things aren’t going the way they should.
  • The Second Amendment: The Right to Bear Arms. The Second Amendment both recognizes that individual have the right to maintain “a well-regulated militia,” and that citizens have the right to “keep and bear arms.” [9]
  • The Third Amendment: Housing Troops. The Third Amendment pledges that in peacetime citizens will never have to keep soldiers in their homes without consent.
  • The Fourth Amendment: Searches and Seizure. The Fourth through Eighth Amendments concern the rights of people suspected of a crime. The Fourth Amendment protects citizens from improper searches of their bodies, possessions, or homes. It requires that a detailed warrant be issued by a judge listing what can be searched. There has to be a good reason for the search.
  • The Fifth Amendment: Rights of the Accused, Due Process of the Law, and Eminent Domain. The Fifth Amendment protects the rights of anyone accused of a crime. It assumes that everyone is innocent until proven guilty.
    • Grand Jury. When a person is accused of infamous crime, including especially one for which the punishment could be death, the Fifth Amendment requires that a “grand jury” look at the charges before that person can be brought trial. A grand jury is a group of citizens who decide if there is enough evidence to try a person. It is intended to prevent people from being falsely accused of a serious crime
    • Multiple Trials. The Fifth Amendment states that the person cannot be tried twice for the same crime, prohibiting so-called “Double Jeopardy.”
    • Self-Incrimination. The Fifth Amendment guarantees citizens freedom from against “self-incrimination.” This means people cannot be forced to testify against themselves. Under the Fifth Amendment, law enforcement officials must produce the evidence necessary to convict a person of a crime. The accused person cannot be made to provide it. The guarantee against self-incrimination makes sure that unfair pressure cannot be used to make a person confess.
    • Due Process of the Law.Another section of the Fifth Amendment holds that “no one can be deprived of life, liberty, or property without due process of law.” In other words, the government must follow certain legal procedures before deciding on a penalty. It can’t jail a person because it suspects that the person committed a crime. It must prove the accusation by following certain rules and methods.
    • Eminent Domain.Finally, the Fifth Amendment requires the government to pay citizens when it takes over their property for a public use. The government’s right to take this property is called “eminent domain.” Suppose the state wanted to build a highway which would run right through your residence. It would have to pay the owners a reasonable price for the property. The government could force you to move, but at least it would have to provide you with the money to relocate.
  • The Sixth Amendment: Fair and Speedy Trials. The Sixth Amendment provides more requirements for a fair trial in criminal cases. It guarantees a speedy, public trial by an impartial jury in the area where the crime was committed. The defendant must be able to question the accusers and to force favorable witnesses to testify. The accused has a right to a lawyer.
  • The Seventh Amendment: Jury Trials. The Seventh Amendment guarantees that Americans will receive a jury trial in civil (as opposed to criminal) cases involving property worth more than $20 and no fact can be retried without a jury making findings of fact.
  • The Eighth Amendment: Bails, Fines, and Punishments. The Eighth Amendment protects people from having to pay unreasonably high “bail” in order to be released from prison before they go to trial. Bail is money given to pledge that a person accused of a crime will appear for trial. The Eighth Amendment also protects people from unreasonably high fines. Finally, it outlaws cruel and unusual punishment. This requirement, as well as the Fifth Amendment’s guarantee against self-incrimination, protects citizens from the use of torture. [10]
  • The Ninth and Tenth Amendments: Reserved Powers. The last two amendments address the liberties of citizens and the rights of states. The Ninth Amendment states that the Constitution and the Bill of Rights do not define all of the fundamental rights people have. Such rights exist whether or not they are defined. The Tenth Amendment makes a similar claim concerning the rights of the states. It holds that the states and the people have powers that are set aside and not listed item by item. These powers are called “reserved powers.” They can be contrasted with “express powers,” which are specifically defined in the Constitution.

With the adoption of the Bill of Rights, the Constitution as it was initially created was complete.

Conclusion

The Bill of Rights is important for a number of reasons, and much Constitutional Law revolves around application of its provisions. The Bill of Rights is initially important for by forcing its adoption and experiencing the ratification process, the United States of America put into effect the amendment process, and showed that a free people could be trusted to amend their fundamental charter. The elites of the nation, and especially Hamilton, did not think that a Bill of Rights was either necessary or desirable. The people disagreed and it was the will of the people which prevailed. In the beginning more than ten amendments were proposed, but ten were finally chosen. Today, one can hardly imagine the United States Constitution without the Bill of Rights. Its importance to the nation and to human liberty cannot be over-estimated.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Article VII.

[2] Id.

[3] Articles of Confederation, Article XIII.

[4] Federalist Papers, No. 40 (Madison).

[5] As an aside, I doubt that the Constitution could have been adopted in its original form had the convention process with a nine-state minimum not been devised for ratification. Patrick Henry, of Virginia, was a leader of the group opposing ratification.

[6] The states ratifying the document and dates are: Delaware – December 7, 1787, Pennsylvania – December 12, 1787, New Jersey – December 18, 1787, Georgia – January 2, 1788, Connecticut – January 9, 1788, Massachusetts – February 6, 1788. Maryland – April 28, 1788, South Carolina – May 23, 1788, New Hampshire – June 21, 1788, Virginia – June 25, 1788, New York – July 26, 1788, North Carolina – November 21, 1789, Rhode Island – May 29, 1790. Vermont was not a state at the time the Articles of Confederation were adopted and did not participate in the Convention or ratification.

[7] See, “Brutus,” Essays I, VI, X-XII, and XV (Oct.18 and Dec.27, 1787; Jan. 24 and 31, Feb. 7 and March 20, 1788) for a full series of the antifederalist arguments.

[8] I intend to do a separate blog on this particular amendment, since it is important to the reason for these blogs.

[9] Because criminals often used unlicensed weapons to hurt others, some people have urged the national government to control the sale of guns. Other people have argued that gun control is a violation of the Second Amendment. The wording of the document would seem to indicate that to attempt to regulate this would interfere with a fundamentally state right.

[10] Currently, the most important cases involving this amendment concern whether the death penalty is a form of cruel and unusual punishment.

Article VI of the Constitution provides for the assumption by the new government of the debts of the United States as it existed under the Articles of Confederation, that the US Constitution, and all laws made from it are the Supreme Law of the Land (the so-called “Supremacy Clause”), and all that officials, whether members of the state legislatures, Congress, judiciary or the Executive have to swear an oath to the Constitution, with the limitation that no religious test can ever be made for holding of public office.

Assumption of Debts

As indicated previously, one of the most vexing problems under the Constitution involved payment of the national debt, most of which was incurred during the Revolutionary War, and the payment of which was made impossible by the lack of a taxing authority in Congress under the Articles of Confederation. The inability of the national government to make full payment on this debt was both an embarrassment and a source of difficulty in securing the new nation a position among the nations of the world, and particularly those, like France, who had assisted the new nation during the war. One of the most important goals of those who supported a stronger national government was to provide for the payment of these debts.

Under international law, it was possible that the debts of the nation might be avoided due to the radical change in form the Constitution would envision. The first clause of Article VI was inserted with the intention of avoiding the inference that this was the case and to assure the creditors of the nation that the new government would pay the debts of the old. [1] Madison thought the provision declaratory of the intention not to attempt to avoid the debts created under the Articles of Confederation by a legal devise, but to meet the economic obligations of created under the former form of government. [2]

Supremacy Clause

The Supremacy Clause provides that the laws of the United States, laws enacted by Congress, and valid treaties made according to the process set out in the Constitution are the supreme law of the land, binding on both state and federal officials. Neither other provisions of the Constitution nor any state laws may allow or create a contrary result. Today, Americans take the supremacy of the national government for granted. However, it is important to remember that this was not the case in 1787. The danger at the formation was not of a federal power capable of rendering state sovereignty illusory, but of states that rendered the national sovereignty illusory.

Under the Articles of Confederation, state courts had the power to interpret the Articles of Confederation and any enactments of Congress under the prevailing doctrinal fact that the national government was not supreme, but only the organ of a confederacy of independent states. This meant that the thirteen states could end up with thirteen different interpretations of federal law. The result was chaos.

The framers were creating a form of government in which there would be dual sovereignty: the states supreme with respect to the matters entrusted to their control and the national government supreme as to matters entrusted to its control.

Hamilton defended this dual sovereignty in Federalist 27, saying:

It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS; and will be rendered auxiliary to the enforcement of its laws. [3]

The phrases put in capital letters gives Hamilton’s view of the situation. The Federal Government’s supremacy extended to its enactment and enforcement of laws pursuant to its “legitimate, enumerated powers.” Federal and state magistrates, legislatures and courts are bound by such enactments as far as the just and constitutional authority extends.

It was not long, however, before the rather narrow boundaries set by Hamilton were extended by the courts. Chief Justice Marshall, speaking for the Court, stated that ‘‘the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government.” [4]  In the court’s view, their decision was “the unavoidable consequence of that supremacy which the Constitution has declared,” a position that the Court has not changed in the intervening period. [5]

Oaths and Religious Tests

Under the third clause of Article VI, Senators, Representatives, Members of the state legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by oath to support the Constitution; however, no religious test can be required as a qualification to any office or public. This provision has two distinct features:

1. Both state and national officers must take an oath of loyalty to the Constitution.
2. While Congress can designate a form for such and oath, no such oath can involve a “religious test.”

From the beginning, it was envisioned that both state and national officers would need to pledge loyalty to the system of government that the Constitution established. As Madison notes in the Federalist Papers, various provisions contained in the Constitution require the cooperation of state officials to bring to fruition, matters such as the election of Senators and Congressman, and electors for the office of President. [6] While not without controversy, it is clear that, for the national government to be supreme within its sphere of influence, it would be necessary for state officials to support and defend the Constitution as well as faithfully execute their offices where constitutional matters were concerned. The reverse was not felt to be true, because state governments were sovereign already and the functions of the state government were not similarly intertwined.

A bit of history helps one to understand the prohibition on religious tests. The founders were aware that, at various times, religious tests for office had been a feature of British law, used to force compliance with the religious views of a king or queen. These laws were used during the instability surrounding the period from Henry VIII to the Glorious Revolution in such a way that Catholics and Protestants were impacted. The founders wished to avoid the recurrence of this kind of religious persecution on American soil.

Conclusion

By and by large, the success of Article VI is demonstrated by the relative lack of controversy that it has engendered in recent times. The responsibility of the United States government for the debts incurred under the Articles of Confederation is a problem long solved. Today, the greater problem is the seemingly endless amount of debt the federal government incurs.

In the beginning, it was necessary to work out the implications of the Supremacy Clause, for some if not all of the states were impacted by this provision and it was natural that its scope would have to be defined. Today, the greater difficulty might be in defining the limits of the Supremacy Clause, for today the scope of federal power and responsibility is much greater than at the time of adoption of the Constitution. Consistent with the relational and organic position of these blogs, my view is that the Supremacy Clause is not a warrant for the federal government to ignore the sovereign rights of the states. In a state of dual sovereignty, it is the duty of the greater power to not interfere with the lesser powers without due cause.

The oath of office controversy was substantially a controversy that impacted the adoption of the Constitution and the operation of the government in the early years when fidelity to the Constitution could not necessarily be assumed. Today, the greater issue is the effectiveness of oaths in a world in which oaths and moral commitments are often not seen to be binding.

A particular continuing item of importance is the prohibition on religious oaths. Various more liberal members of Congress have from time to time voiced the opinion that Christians, perhaps especially more conservative Christians, should not be able to serve in certain offices. When the religious tests provision was included in the Constitution, the obvious concern was to prevent a dominant group, probably Protestants, from requiring an oath that would prevent minority religious groups, probably Catholics, from holding office. This was a problem that they clearly recognized as a feature of English history to be avoided. Today, what might be called “secularism” functions as a religion for many people, especially among political and economic elites. The religious tests provision provides (or should provide) a barrier against religious discrimination of exactly the kind the founders sought to avoid.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved 

[1] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961) No. 43 (Madison), found at 278. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[2] It is most interesting that Madison believed the debt to be a moral obligation that should not be avoided by recourse to international law. Id.

[3] Federalist Papers No. 27 (Hamilton)

[4] McCulloch v. Maryland 17 U.S. 436 (1819).

[5] Id.

[6] Federalist Papers, No.44 (Madison).

This week, I intended to write the final blog on the original Constitution, leading to a review of the ratification and Bill of Rights. Then, I took time to read a book, Bonhoeffer’s Seminary Vision, for another project in which I am involved. ^[1] The book made such an impression, and was so important for the project, that I am doing a blog on Bonhoeffer’s vision for theological education. This undertaking is not wholly unconcerned with the larger issue of political theology, because Bonhoeffer wrote much related to political theology and his life is a testament to faithful Christian political involvement in difficult times. Near the end of this series of blogs, we will again consider the life and thought of Dietrich Bonhoeffer. It seems to me that he is the most important figure of the Twentieth Century for those who wish to ponder the role of faith in political life.

Bonhoeffer’s Life and Seminary Experience

Briefly, Dietrich Bonhoeffer was born in February 1906 to Karl and Paula Bonhoeffer. His father was a psychiatrist and not religious. His mother came from a family which included notable German pastors and was deeply religious. There is no question but what his mother’s faith impacted Dietrich. Shortly after an elder brother was killed in World War I, young Dietrich announced to the family that he would be a pastor.

At eighteen, Bonhoeffer entered the University of Berlin. There Bonhoeffer first read and was influenced by the work of Karl Barth. He became a Biblical theologian deeply influenced by Barth’s neo-orthodoxy. He finished his doctoral dissertation, entitled, The Communion of Saints: A Theological Study of the Sociology of the Church at the age of twenty-one. [2] By his late twenties, Bonhoeffer was teaching theology and making a name for himself as a theologian. His interest in theology and church practice continued for the rest of his life.

In 1930, after a brief pastorate in Barcelona, Spain and finishing post-doctoral work in Germany, Bonhoeffer had the chance to visit the United States to do post-graduate work at Union Theological Seminary in New York. There, he had a spiritual awakening, largely as a result of his experience with the black community and their congregations. For the rest of his life, he was dedicated to putting faith to work in life, first and foremost in his own life.

When Hitler came to power in 1933, Bonhoeffer immediately opposed his rule, and was known as an adversary of the Nazi regime from its inception. When the German Church movement began, instituting both Nazi control of the German church and Nazi ideology within its confessional life, Bonhoeffer opposed Hitler and the Nazi party and joined the Confessing Church movement. When the Confessing Church movement needed a person to lead its efforts at theological education, it naturally turned to Bonhoeffer, and so in 1935 he became head of the seminary of the Confessing Church. [3] He served in this position until 1940 when the seminary was closed. Shortly after the closing, he became involved with the German resistance to Hitler in a different way. He was arrested in 1943 after an unsuccessful attempt was made on Hitler’s life. He spent the rest of his life in custody, and was executed in April 1945.

During his years as leader of the Confessing Church seminary, Bonhoeffer wrote two of his most important books, Cost of Discipleship and Life Together. ^[4] Both books emerged from, and drew upon, his experience as a seminary leader and instructor, his already well-developed theology of the church, and his experience as a leader of the Confessing Church, who was concerned for the faithfulness of the church within a hostile political and cultural environment.

Cost of Discipleship grew out of lectures on the Sermon of the Mount that Bonhoeffer gave at the seminary. Its concern was to warn the pastors in training about the danger of “Cheap Grace” and to empower them to model discipleship in their ministries. The original German title best translates, “Following.” His concern was that German Protestantism had become too much a matter of intellectual subscription to a creed and attendance at worship and too little concerned with hearing the call to “Follow me” as a disciple willing to live and experience life just as did Jesus Christ. In the book, he describes Cheap Grace as, “the preaching of forgiveness without requiring repentance, baptism without church discipline, Communion without confession, absolution without personal confession. Cheap grace is grace without discipleship, grace without the cross, grace without Jesus Christ, living and incarnate.” [5] His belief was that the Protestantism of his day in Germany had been guilty of this offense against the Gospel.

The most distinguishing characteristic of the Confessing Church seminary was the integration of spiritual disciplines and theological education. Life Together is a theological reflection drawn from the “Rule of Life” by which the seminary lived, which included, in addition to academics, prayer, Bible Study, meditation, common worship, and confession. The daily times of worship included singing, scripture, prayer, and sermons, often given by Bonhoeffer. Bonhoeffer lived in the community except on the occasions when his other duties for the Confessing Church took him away. In particular, he was the first to confess in the community when present to set an example for the students. Not all of the students appreciated Bonhoeffer’s approach but those who did were profoundly changed by the experience.

Application of Bonhoeffer’s Seminary Vision

Bonhoeffer’s Seminary Vision outlines the implications of Bonhoeffer’s life and thought for modern seminary education. For the most part, the book draws Life Together and the Cost of Discipleship in making its case.  In so doing, House develops a consistent, Biblical, and historical challenge to much of contemporary theological education on all sides of the denominational and theological spectrum. The book is so well-written and theologically and biblically deep that I will not even try to give a detailed account of his argument, but will be content to summarize House’s conclusions. I do encourage anyone interested to read the book. With this background, here is a summary of House’s conclusions:

1. Seminaries Need to Educate Committed Students to be Committed Pastors. As anyone remotely interested in education knows, seminaries have been profoundly impacted by changes in American society and by the implications of certain policies for education generally. In particular, some students attend seminary not out of a call to ministry, but out of a desire to explore Christian faith. Student loan programs have made it possible for many more people to attend seminary than would attend without generous scholarships, federally-insured loans, and admission committees willing to admit nearly anyone who can find a way to pay the cost of the education. The result has been a decline in the pastoral quality, and perhaps particularly in the spiritual qualities, of students. Students who attend seminary with an immature faith, poorly-formed spiritual habits, and little commitment to a “Costly Discipleship,” often do not find in seminary the kind of spiritual formation they need for pastoral ministry. The need to focus on recruiting pastors who are committed to emulating Christ and doing the kinds of things Christ did in his earthly ministry means seminaries must be smaller and almost certainly connected to local congregations in some real way.
2. Seminaries Need Committed Faculties, with Significant Pastoral Experience. Given that students today need more pastoral formation than students in the past, faculties primarily made up of scholars with limited pastoral experience are not able to give students the formation experience they need. This need cannot be met by having a limited number of pastor/teachers on a faculty, often part-time. The need is too great. The movement to electronic classrooms, made worse by Covid¹⁹, is an additional threat to effective pastoral formation. Just as Jesus came in the flesh and had a personal, concrete, physical relationship with his disciples, so also contemporary seminaries need to provide that experience for their students. To paraphrase a line from the book, “Jesus did not send an email or text message. He came in the flesh to disciple his followers.” [6] Pastors must be willing to do this, and seminaries need to find ways to model this for students. Bonhoeffer lived in common life (a “life together”) with his students, modeled a pastoral devotional life, and sacrificed himself for Christ in the presence and in personal relationship with his students.
3. Seminaries must focus on developing pastors with the skills to disciple people, build congregations, and serve their congregations with the same commitment that took Christ to the Cross. This is particularly important. When I went to seminary, we got a good education in Biblical studies, theology, and even preaching and some pastoral care. However, few students got any education in the hard jobs of evangelism, discipleship training, small group formation, and other skills that not only are necessary today, but are likely to become even more important in the future. Bonhoeffer saw that the spiritual condition of Germany and the loss of faith in society would demand a new kind of seminary. The same is true in America today. The emerging post-modern, post-Christian American society requires a different set of skills for future pastors, a set of skills and character more in line with Bonhoeffer’s vision.

Discipleship and Seminary Education

House’s purpose in writing Bonhoeffer’s Seminary Vision was to inform the community of those interested in seminary education. In reading the book, and in reflecting on Cost of Discipleship, it struck me that discipleship is not unconnected with seminary education and both lay persons and professionals will be helped by the message of the book. We often think of discipleship and professional training as two different things. This is not strictly true. Seminary is actually one part of the life of discipleship for those called into seminary training to become full-time pastors. Ideally, a person attending seminary is already a disciple of Christ, already known to have spiritual and natural gifts for ministry, but needs the kind of specialized training that pastors need to meet the needs of their congregations. As such, seminary should be an extension of the normal life of a disciple.

By the same token, congregational discipleship programs are not “little seminaries” but experiences designed to assist laypersons in living out their vocations as disciples of Christ. The two cannot be completely divided, though they will in some ways be different. Both involve active learning to be a better disciple of Christ in a specific situation. In both, the role of life together under the word of God cannot be ignored. If seminaries need committed students and committed faculty, churches need committed disciples and committed pastors, which is why Bonhoeffer designed the program for the Confessing Church seminary the way he did.

Conclusion

Before attending seminary, I was an active layperson for over fifteen years, during which time I was a deacon, elder, Sunday school class teacher, and lay preacher. Our church helped send us to seminary, and there was little doubt but which I would be able to pastor some church somewhere, someday. While I have never regretted the fine theological and Biblical education I received, a good bit of what made the difference was a personal devotional life that had already weathered storms before seminary, experience in the leadership of a church for a considerable period, prior activity in small groups, and a host of other discipleship skills learned before seminary and only much improved by seminary experience. As mentioned above, seminary was simply a continuation and extension of an already existing discipleship path.

It is common for churches to complain that they cannot find a pastor and for pastors to complain that it is difficult to attract associate pastors, especially to smaller and less appealing congregations. I believe that the final resolution of these needs will involve something like the vision Bonhoeffer’s Seminary Vision has for seminary education: a form of education that is smaller, more congregational, interested in pastoral character and formation as well as skills and Biblical and Theological knowledge, intentionally designed for the culture in which contemporary pastors must minister. It will focus on creating shepherd/servant pastors who can create the kind of community and discipleship Bonhoeffer tried to create for the Confessing Church.

Pastors and Church leaders will want to read Bonhoeffer’s Seminary Vision, and they will not be personally or institutionally disappointed by what they learn.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] Paul House, Bonhoeffer’s Seminary Vision: A Case for Costly Discipleship and Life Together (Wheaton, IL: Crossways, 2015), hereinafter “BSV”.

[2] Dietrich Bonhoeffer, Sactorum Communio: A Theological Study of the Sociology of the Church Collected Works, Vol. 1 (Minneapolis, MN: Fortress Press, 1998).

[3] Although there were actually three locations for the seminary, it is often referred to as the “Finkenwalde seminary” even by scholars. House treat it as such, though the situations resulted in slightly different seminary experiences for the students. House is careful to delineate the differences

[4] Dietrich Bonhoeffer, Life Together (New York, NY: Harper One, 1954) and Cost of Discipleship (New York, Macmillan, 1960). Both of these books are available on the internet and often in bookstores in various editions.

[5] Cost of Discipleship, at 47.

[6] The exact quote from Bonhoeffer is, “God sent witnesses, not a recording.” See, BSV at 99.

A fundamental dispute prevalent in Constitutional theory is between those who see the Constitution as a “living and to be interpreted in light of the times” and those who see the Constitution in a more stable light, as a fundamental document of democracy which is to be interpreted in light of the original intention of the framers. [1] The one group is dominated by an evolutionary, progressive notion of history, the other by a respect for tradition and the past. As will become evident as time goes on, both views contain both truth and challenges, and the dispute cannot be resolved within the framework of the world views that produced the theories.

This blog argues that the framers did believe in a living constitution, but its living nature was not dependent upon the courts, but the people, the states, and their leaders into whose hands the process of amendment was deposited by the terms of Article V. The living nature of the Constitution was to be guaranteed by the wisdom of the people and the states. In addition, the organic nature of the union sought by the founders is evident in the process that was created for amending the Constitution.

Process of Amendment

As often mentioned, the founders were practical people trying to make practical adjustments in the form of government established under the Articles of Confederation. Their goal was to create a “more perfect union.” They were not deluded enough, as modern people so often are, to believe that they could create a perfect society, just a better form of government that could meet the challenges of their day. Because the understood that the document might need change, they provided a means by which future generations could amend the Constitution.

According to Article V, both states and Congress may initiate the amendment process.  Amendments may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by resolutions to call such a convention adopted by two-thirds of the State legislatures. No existing amendment to the Constitution resulted from a constitutional convention, though proposals have been made for such a convention. [2]

In the case of a nationally proposed amendment, Congress proposes an amendment in the form of a joint resolution passed by a two-thirds majority of both houses. Interestingly, the President has no role in the amendment process, perhaps because it was felt that this was an area in which Congress and the States should work without interference from the executive. In a government of the people formed by their state governments, it was thought that the executive should not interfere with the prerogatives of the elected representatives of the people.

In any case, the amendment process contains its own checks and balances because of the process of recommendation and ratification. By whatever means an amendment is proposed, it is made part of the Constitution when ratified by the legislatures of a super-majority of the states. A simple majority cannot amend the Constitution. It requires two thirds of the legislatures and/or Congress to propose amendments and a vote of three-fourths (75%) of the states to adopt amendments. This process is a significant barrier to unwise changes in the constitutional structure of the nation.

Administration of Amendment Process

Subsequent to Congress proposing an amendment, the Archivist of the United States, who heads the National Archives and Records Administration (NARA), is charged with responsibility for administering the ratification process under the provisions of 1 USC 106b. [3] The original document is forwarded directly to NARA’s Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes. The OFR also assembles an information package for the States which includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format, and the statutory procedure for ratification under 1 U.S.C. 106b.

The Archivist then submits the proposed amendment to the States for consideration by sending a letter of notification to each Governor along with the informational material prepared by the OFR. The Governors then formally submit the amendment to their respective legislatures or the state calls a convention, depending on what Congress has specified in its adopting resolution. In the past, some State legislatures have not waited to receive official notice before taking action on a proposed amendment. Each state then notifies the Archivist of its action on the proposed amendment, and when and if the required number of states have adopted the amendment, official notice is given to the Congress that the amendment process has been completed. [4]

The Intent of the Founders

Madison’s notes recording the actions and debates of the Convention of 1787 reflect the views, especially of Hamilton, that the method of amendment under the terms of the Articles of Confederation were manifestly inadequate. [5]Under the Articles of Confederation, it required a unanimous agreement of the states to amend its terms, giving any state a veto over change. The Articles of Confederation were simply unable to adapt or confront the various differences among the states and the need for a stronger national government. In response to this experience, the founders realized there needed to be a means to amend the Constitution to remedy “probable defects” in the document. [6] It is almost certain that Hamilton and others intended to include provisions regarding slavery in the category of defects to be remedied at a later date.

In view of the experience with the Articles of Confederation, why was it necessary to have an amendment process that, quite obviously, would take much time to conclude, especially as more states were added to the union? The answer is to be found in the nature of the government the founders were instituting. The Constitution was to be founded on the consent and ratification of the people of the United States. This ratification was to be accomplished by the people through delegates elected by them in each state. The very ratification of the Constitution was done on a federal basis, and the union to be formed was a federal union founded on the consent of the people. [7] The amendment process enshrines the federal, republican nature of the Constitution in an amendment process over which the people and the states have ultimate authority.

The goal of the founders was to strike a balance between a constitution that could not be amended, freezing the nation in a form that could never change, and a constitution that was too easily amended, and which was therefore unstable and subject to constant change. Thus, Madison, in defending the Constitution observes as follows:

That useful alterations will be suggested by experience could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty which might perpetuate its discovered faults. [8]

The humility and wisdom of the founders, and the practical wisdom with which they accomplished the task of recommending the Constitution to the nation are nowhere more evident than in this quotation. They were aware that they were not omniscient and that defects would be found in the document. They were aware that changing circumstances would require adjustments. What they intended was a system of change that would protect the freedom of the people and the sovereign rights of the states in the “more perfect union” which they were attempting to create.

Conclusion

For most of the 20^th Century, the greatest changes to the Constitution were not established by the people, but by the unelected courts of the nation, as both congress and the states abrogated their responsibility to create consensus on fundamental changes. The result has been a loss of faith in the Constitution and social conflict. It is not a strength of our system of government but a weakness that those who were originally given the power of amendment have found it more convenient to allow the courts to undertake what the people and their representatives should do. In the long, slow process of convincing the people of the need for a change is the opportunity for the development of collective wisdom in a way that nine Supreme Court justices can never achieve.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] The actual dispute is more complex for many in both camps see the wisdom and necessity in the views of the other. I hope to deal with this precise dispute as seen from an organic view of nature in a later blog.

[2] In recent years, however, there have been calls for a convention of the states, generally by conservatives concerned about federal spending and related matters. For the views of those who would call such a convention, see https://conventionofstates.com/ (downloaded August 5, 2021).

[3] This analysis is from the Federal Register and can be found at https://www.archives.gov/federal-register/constitution (downloaded August 5, 2021).

[4] Id.

[5] Id. Because the institution of slavery was tacitly acknowledged by the convention, many contemporary people have thought that the entire document is tainted. The only adequate response to this is to note that the government could never have been formed unless the issue of slavery were deferred to a later time. Washington, Madison, Hamilton, and many others at the Convention were of the view that the institution of slavery was inconsistent with a free, republican government. The issue came up with respect to the amendment process for the slave states would not agree to the Constitution if it could be amended to eliminate slavery. A compromise was reached that provided that no amendment to the provisions impacting slavery could be made prior to 1808.

[6] See, James Madison, “Notes of the Constitutional Convention” (September 10, 1787). https://www.consource.org/document/james-madisons-notes-of-the-constitutional-convention-1787-9-10/ (downloaded August 5, 2021). It is revealing to see that Hamilton was under no illusions as to the ability of the founders to create a perfect system of government. He expected changes and a means was needed to provide for them.

[7] The Federalist Papers Clinton Rossiter ed.  (New York, NY: Mentor Books, 1961) No. 39 (Madison), found at 243. All references to the Federalist Papers are to this edition and cited, “Federalist Papers Number, and Author.”

[8] Federalist Papers, 43 (Madison), at 278.