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Rights Versus Duties - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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Rights Versus Duties
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans. Did they succeed? At the end of two centuries, the Constitution of the United States still functions adequately. Had Americans followed the French example of placing all their trust in a naked declaration of rights, without any supporting constitutional edifice to limit power and the claims of absolute liberty, it may be doubted whether liberty, order, or justice would have prevailed in the succeeding years. There cannot be better proof of the wisdom of the Framers than the endurance of the Constitution.
The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
Anti-Federalist dissent from the proposed Constitution is adequately represented by this document presented to the Pennsylvania Convention on December 18, 1787, by the minority (Anti-Federalists). Similar protests against ratification were made by Patrick Henry in Virginia and by able opponents in other States.
It was not until after the termination of the late glorious contest, which made the people of the United States an independent nation, that any defect was discovered in the present confederation. It was formed by some of the ablest patriots in America. It carried us successfully through the war, and the virtue and patriotism of the people, with their disposition to promote the common cause, supplied the want of power in Congress.
The requisition of Congress for the five per cent. impost was made before the peace, so early as the first of February, 1781, but was prevented taking effect by the refusal of one State; yet it is probable every State in the Union would have agreed to this measure at that period, had it not been for the extravagant terms in which it was demanded. The requisition was new molded in the year 1783, and accompanied with an additional demand of certain supplementary funds for twenty-five years. Peace had now taken place, and the United States found themselves laboring under a considerable foreign and domestic debt, incurred during the war. The requisition of 1783 was commensurate with the interest of the debt, as it was then calculated; but it has been more accurately ascertained since that time. The domestic debt has been found to fall several millions of dollars short of the calculation, and it has lately been considerably diminished by large sales of the Western lands. The States have been called on by Congress annually for supplies until the general system of finance proposed in 1783 should take place.
It was at this time that the want of an efficient federal government was first complained of, and the powers vested in Congress were found to be inadequate to the procuring of the benefits that should result from the union. The impost was granted by most of the States, but many refused the supplementary funds; the annual requisitions were set at naught by some of the States, while others complied with them by legislative acts, but were tardy in their payments, and Congress found themselves incapable of complying with their engagements and supporting the federal government. It was found that our national character was sinking in the opinion of foreign nations. The Congress could make treaties of commerce, but could not enforce the observance of them. We were suffering from the restrictions of foreign nations, who had suckled our commerce while we were unable to retaliate, and all now agreed that it would be advantageous to the union to enlarge the powers of Congress, that they should be enabled in the amplest manner to regulate commerce and to lay and collect duties on the imports throughout the United States. With this view, a convention was first proposed by Virginia, and finally recommended by Congress for the different States to appoint deputies to meet in convention, “for the purposes of revising and amending the present articles of confederation, so as to make them adequate to the exigencies of the union.” This recommendation the legislatures of twelve States complied with so hastily as not to consult their constituents on the subject; and though the different legislatures had no authority from their constituents for the purpose, they probably apprehended the necessity would justify the measure, and none of them extended their ideas at that time further than “revising and amending the present articles of confederation.” Pennsylvania, by the act appointing deputies, expressly confined their powers to this object, and though it is probable that some of the members of the assembly of this State had at that time in contemplation to annihilate the present confederation, as well as the constitution of Pennsylvania, yet the plan was not sufficiently matured to communicate it to the public.
The majority of the legislature of this commonwealth were at that time under the influence of the members from the city of Philadelphia. They agreed that the deputies sent by them to convention should have no compensation for their services, which determination was calculated to prevent the election of any member who resided at a distance from the city. It was in vain for the minority to attempt electing delegates to the convention who understood the circumstances, and the feelings of the people, and had a common interest with them. They found a disposition in the leaders of the majority of the house to choose themselves and some of their dependents. The minority attempted to prevent this by agreeing to vote for some of the leading members, who they knew had influence enough to be appointed at any rate, in hopes of carrying with them some respectable citizens of Philadelphia, in whose principles and integrity they could have more confidence, but even in this they were disappointed, except in one member: the eighth member was added at a subsequent session of the assembly.
The Continental Convention met in the city of Philadelphia at the time appointed. It was composed of some men of excellent character; of others who were more remarkable for their ambition and cunning than their patriotism, and of some who had been opponents to the independence of the United States. The delegates from Pennsylvania were, six of them, uniform and decided opponents to the Constitution of this commonwealth. The convention sat upwards of four months. The doors were kept shut, and the members brought under the most solemn engagements of secrecy. Some of those who opposed their going so far beyond their powers, retired, hopeless, from the convention; others had the firmness to refuse signing the plan altogether; and many who did sign it, did it not as a system they wholly approved, but as the best that could be then obtained, and notwithstanding the time spent on this subject, it is agreed on all hands to be a work of haste and accommodation.
Whilst the gilded chains were forging in the secret conclave, the meaner instruments of the despotism without were busily employed in alarming the fears of the people with dangers which did not exist, and exciting their hopes of greater advantages from the expected plan than even the best government on earth could produce. The proposed plan had not many hours issued forth from the womb of suspicious secrecy, until such as were prepared for the purpose, were carrying about petitions for people to sign, signifying their approbation of the system, and requesting the legislature to call a convention. While every measure was taken to intimidate the people against opposing it, the public papers teemed with the most violent threats against those who should dare to think for themselves, and tar and feathers were liberally promised to all those who would not immediately join in supporting the proposed government, be it what it would. Under such circumstances petitions in favor of calling a Convention were signed by great numbers in and about the city, before they had leisure to read and examine the system, many of whom—now they are better acquainted with it, and have had time to investigate its principles—are heartily opposed to it. The petitions were speedily handed in to the legislature.
Affairs were in this situation, when on the 28th of September last, a resolution was proposed to the assembly by a member of the house, who had been also a member of the federal convention, for calling a State convention to be elected within ten days for the purpose of examining and adopting the proposed Constitution of the United States, though at this time the house had not received it from Congress. This attempt was opposed by a minority, who after offering every argument in their power to prevent the precipitate measure, without effect, absented themselves from the house as the only alternative left them, to prevent the measures taking place previous to their constituents being acquainted with the business. That violence and outrage which had been so often threatened was now practiced; some of the members were seized the next day by a mob collected for the purpose, and forcibly dragged to the house, and there detained by force whilst the quorum of the legislature so formed, completed their resolution. We shall dwell no longer on this subject: the people of Pennsylvania have been already acquainted therewith. We would only further observe that every member of the legislature, previously to taking his seat, by solemn oath or affirmation, declares “that he will not do or consent to any act or thing whatever, that will have a tendency to lessen or abridge their rights and privileges, as declared in the constitution of this State.” And that constitution which they are so solemnly sworn to support, cannot legally be altered but by a recommendation of the council of censors, who alone are authorized to propose alterations and amendments, and even these must be published at least six months for the consideration of the people. The proposed system of government for the United States, if adopted, will alter and may annihilate the constitution of Pennsylvania; and therefore the legislature had no authority whatever to recommend the calling of a convention for that purpose. This proceeding could not be considered as binding on the people of this commonwealth. The house was formed by violence, some of the members composing it were detained there by force, which alone would have vitiated any proceedings to which they were otherwise competent; but had the legislature been legally formed, this business was absolutely without their power.
In this situation of affairs were the subscribers elected members of the Convention of Pennsylvania—a Convention called by a legislature in direct violation of their duty, and composed in part of members who were compelled to attend for the purpose, to consider a Constitution proposed by a Convention of the United States, who were not appointed for the purpose of framing a new form of government, but whose powers were expressly confined to altering and amending the present articles of confederation. Therefore the members of the continental Convention in proposing the plan acted as individuals, and not as deputies from Pennsylvania. The assembly who called the State Convention acted as individuals, and not as the legislature of Pennsylvania; nor could they or the Convention chosen on their recommendation have authority to do any act or thing that can alter or annihilate the Constitution of Pennsylvania (both of which will be done by the new Constitution), nor are their proceedings, in our opinion, at all binding on the people.
The election for members of the Convention was held at so early a period, and the want of information was so great, that some of us did not know of it until after it was over, and we have reason to believe that great numbers of the people of Pennsylvania have not yet had an opportunity of sufficiently examining the proposed Constitution. We apprehend that no change can take place that will affect the internal government or Constitution of this commonwealth, unless a majority of the people should evidence a wish for such a change; but on examining the number of votes given for members of the present State Convention, we find that of upwards of seventy thousand freemen who are entitled to vote in Pennsylvania, the whole convention has been elected by about thirteen thousand voters, and though two-thirds of the members of the Convention have thought proper to ratify the proposed Constitution, yet those two-thirds were elected by the votes of only six thousand and eight hundred freemen.
In the city of Philadelphia and some of the eastern counties there unto that took the lead in the business agreed to vote for none but such as would solemnly promise to adopt the system in toto, without exercising their judgment. In many of the counties the people did not attend the elections, as they had not an opportunity of judging of the plan. Others did not consider themselves bound by the call of a set of men who assembled at the State-house in Philadelphia and assumed the name of the legislature of Pennsylvania; and some were prevented from voting by the violence of the party who were determined at all events to force down the measure. To such lengths did the tools of despotism carry their outrage, that on the night of the election for members of convention, in the city of Philadelphia, several of the subscribers (being then in the city to transact your business) were grossly abused, ill-treated and insulted while they were quiet in their lodgings, though they did not interfere nor had anything to do with the said election, but, as they apprehend, because they were supposed to be adverse to the proposed constitution, and would not tamely surrender those sacred rights which you had committed to their charge.
The convention met, and the same disposition was soon manifested in considering the proposed constitution, that had been exhibited in every other stage of the business. We were prohibited by an express vote of the convention from taking any questions on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in toto. ’Tis true the majority permitted us to debate on each article, but restrained us from proposing amendments. They also determined not to permit us to enter on the minutes our reasons of dissent against any of the articles, nor even on the final question our reasons of dissent against the whole. Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention.
1. The right of conscience shall be held inviolable; and neither the legislative, executive or judicial powers of the United States shall have authority to alter, abrogate or infringe any part of the constitution of the several States, which provide for the preservation of liberty in matters of religion.
2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the Federal courts as in those of the several States.
3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the Federal courts as in those of the several States; to be heard by himself and his counsel; to be confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; and, that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
4. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places; or to seize any person or persons, his or their property not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the Federal government or others.
6. That the people have a right to the freedom of speech, of writing and publishing their sentiments; therefore the freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.
8. The inhabitants of the several States shall have liberty to fowl and hunt in seasonable time on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
9. That no law shall be passed to restrain the legislatures of the several States from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters, shall be levied by the authority of Congress.
10. That the House of Representatives be properly increased in number; that elections shall remain free; that the several States shall have power to regulate the elections for Senators and Representatives, without being controlled either directly or indirectly by any interference on the part of the Congress; and that the elections of Representatives be annual.
11. That the power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress), remain with the individual States, and that Congress shall not have authority to call or march any of the militia out of their own State, without the consent of such State, and for such length of time only as such State shall agree.
That the sovereignty, freedom and independence of the several States shall be retained, and every power, jurisdiction and right which is not by this Constitution expressly delegated to the United States in Congress assembled.
12. That the legislative, executive and judicial powers be kept separate; and to this end that a constitutional council be appointed to advise and assist the President, who shall be responsible for the advice they give—hereby the Senators would be relieved from almost constant attendance; and also that the judges be made completely independent.
13. That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made conformable to such treaty; neither shall any treaties be valid which are in contradiction to the Constitution of the United States, or the constitution of the several States.
14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls, to cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States—between a State and citizens of different States—between citizens claiming lands under grants of different States, and between a State or the citizens thereof and foreign States; and in criminal cases to such only as are expressly enumerated in the Constitution; and that the United States in Congress assembled shall not have power to enact laws which shall alter the laws of descent and distribution of the effects of deceased persons, the titles of lands or goods, or the regulation of contracts in the individual States.
After reading these propositions, we declared our willingness to agree to the plan, provided it was so amended as to meet those propositions or something similar to them, and finally moved the convention to adjourn, to give the people of Pennsylvania time to consider the subject and determine for themselves; but these were all rejected and the final vote taken, when our duty to you induced us to vote against the proposed plan and to decline signing the ratification of the same.
During the discussion we met with many insults and some personal abuse. We were not even treated with decency, during the sitting of the convention, by the persons in the gallery of the house. However, we flatter ourselves that in contending for the preservation of those invaluable rights you have thought proper to commit to our charge, we acted with a spirit becoming freemen; and being desirous that you might know the principles which actuated our conduct, and being prohibited from inserting our reasons of dissent on the minutes of the convention, we have subjoined them for your consideration, as to you alone we are accountable. It remains with you whether you will think those inestimable privileges,which you have so ably contended for, should be sacrificed at the shrine of despotism, or whether you mean to contend for them with the same spirit that has so often baffled the attempts of an aristocratic faction to rivet the shackles of slavery on you and your unborn posterity.
Our objections are comprised under three general heads of dissent, viz.:
We dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government, but united in the management of their general and foreign concerns.
If any doubt could have been entertained of the truth of the foregoing principle, it has been fully removed by the concession of Mr. Wilson, one of the majority on this question, and who was one of the deputies in the late general convention. In justice to him, we will give his own words; they are as follows, viz.: “The extent of country for which the new Constitution was required, produced another difficulty in the business of the Federal Convention. It is the opinion of some celebrated writers, that to a small territory, the democratical; to a middling territory (as Montesquieu has termed it), the monarchical; and to an extensive territory, the despotic form of government is best adapted. Regarding then the wide and almost unbounded jurisdiction of the United States, at first view, the hand of despotism seemed necessary to control, connect and protect it; and hence the chief embarrassment rose. For we know that although our constituents would cheerfully submit to the legislative restraints of a free government, they would spurn at every attempt to shackle them with despotic power.” And again, in another part of his speech, he continues: “Is it probable that the dissolution of the State governments, and the establishment of one consolidated empire would be eligible in its nature, and satisfactory to the people in its administration? I think not, as I have given reasons to show that so extensive a territory could not be governed, connected and preserved, but by the supremacy of despotic power. All the exertions of the most potent emperors of Rome were not capable of keeping that empire together, which in extent was far inferior to the dominion of America.”
We dissent, secondly, because the powers vested in Congress by this Constitution must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several States, and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government.
As the truth of this position is of such decisive importance, it ought to be fully investigated, and if it is founded to be clearly ascertained; for, should it be demonstrated that the powers vested by this Constitution in Congress will have such an effect as necessarily to produce one consolidated government, the question then will be reduced to this short issue, viz: whether satiated with the blessings of liberty, whether repenting of the folly of so recently asserting their unalienable rights against foreign despots at the expense of so much blood and treasure, and such painful and arduous struggles, the people of America are now willing to resign every privilege of freemen, and submit to the dominion of an absolute government that will embrace all America in one chain of despotism; or whether they will, with virtuous indignation, spurn at the shackles prepared for them, and confirm their liberties by a conduct becoming freemen.
That the new government will not be a confederacy of States, as it ought, but one consolidated government, founded upon the destruction of the several governments of the States, we shall now show.
The powers of Congress under the new Constitution are complete and unlimited over the purse and the sword, and are perfectly independent of and supreme over the State governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, Congress may command the whole or any part of the property of the people. They may impose what imposts upon commerce, they may impose what land taxes, poll taxes, excises, duties on all written instruments and duties on every other article, that they may judge proper; in short, every species of taxation, whether of an external or internal nature, is comprised in section the eighth of article the first, viz:
“The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States.”
As there is no one article of taxation reserved to the State governments, the Congress may monopolize every source of revenue, and thus indirectly demolish the State governments, for without funds they could not exist; the taxes, duties and excises imposed by Congress may be so high as to render it impracticable to levy farther sums on the same articles; but whether this should be the case or not, if the State governments should presume to impose taxes, duties or excises on the same articles with Congress, the latter may abrogate and repeal the laws whereby they are imposed, upon the allegation that they interfere with the due collection of their taxes, duties or excises, by virtue of the following clause, part of section eighth, article first, viz.:
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”
The Congress might gloss over this conduct by construing every purpose for which the State legislatures now lay taxes, to be for the “general welfare,” and therefore as of their jurisdiction.
And the supremacy of the laws of the United States is established by article sixth, viz.: “That this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.” It has been alleged that the words “pursuant to the Constitution,” are a restriction upon the authority of Congress; but when it is considered that by other sections they are invested with every efficient power of government, and which may be exercised to the absolute destruction of the State governments, without any violation of even the forms of the Constitution, this seeming restriction, as well as every other restriction in it, appears to us to be nugatory and delusive; and only introduced as a blind upon the real nature of the government. In our opinion, “pursuant to the Constitution” will be co-extensive with the will and pleasure of Congress, which, indeed, will be the only limitation of their powers.
We apprehend that two co-ordinate sovereignties would be a solecism in politics; that, therefore, as there is no line of distinction drawn between the general and State governments, as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things that both should exist together—one or the other would necessarily triumph in the fullness of dominion. However, the contest could not be of long continuance, as the State governments are divested of every means of defense, and will be obliged by “the supreme law of the land” to yield at discretion.
It has been objected to this total destruction of the State governments that the existence of their legislatures is made essential to the organization of Congress; that they must assemble for the appointment of the Senators and President-general of the United States. True, the State legislatures may be continued for some years, as boards of appointment merely, after they are divested of every other function; but the framers of the Constitution, foreseeing that the people will soon become disgusted with this solemn mockery of a government without power and usefulness, have made a provision for relieving them from the imposition in section fourth of article first, viz.: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators.”
As Congress have the control over the time of the appointment of the President-general, of the Senators and of the Representatives of the United States, they may prolong their existence in office for life by postponing the time of their election and appointment from period to period under various pretenses, such as an apprehension of invasion, the factious disposition of the people, or any other plausible pretence that the occasion may suggest; and having thus obtained life-estates in the government, they may fill up the vacancies themselves by their control over the mode of appointment; with this exception in regard to the Senators that as the place of appointment for them must, by the Constitution, be in the particular State, they may depute some body in the respective States, to fill up the vacancies in the Senate, occasioned by death, until they can venture to assume it themselves. In this manner may the only restriction in this clause be evaded. By virtue of the foregoing section, when the spirit of the people shall be gradually broken, when the general government shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may complete the system of despotism, in renouncing all dependence on the people by continuing themselves and children in the government.
The celebrated Montesquieu, in his Spirit of Laws, vol. i., page 12, says, “That in a democracy there can be no exercise of sovereignty, but by the suffrages of the people, which are their will; now the sovereign’s will is the sovereign himself—the laws, therefore, which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate in a republic in what manner, by whom, and concerning what suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern.” The time, mode and place of the election of Representatives, Senators and President-general of the United States, ought not to be under the control of Congress, but fundamentally ascertained and established.
The new Constitution, consistently with the plan of consolidation, contains no reservation of the rights and privileges of the State governments, which was made in the confederation of the year 1778, by article the 2d, viz.: “That each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled.”
The legislative power vested in Congress by the foregoing recited sections, is so unlimited in its nature, may be so comprehensive and boundless in its exercise, that this alone would be amply sufficient to annihilate the State governments, and swallow them up in the grand vortex of a general empire.
The judicial powers vested in Congress are also so various and extensive, that by legal ingenuity they may be extended to every case, and thus absorb the State judiciaries; and when we consider the decisive influence that a general judiciary would have over the civil polity of the several States, we do not hesitate to pronounce that this power, unaided by the legislative, would effect a consolidation of the States under one government.
The powers of a court of equity, vested by this Constitution in the tribunals of Congress—powers which do not exist in Pennsylvania, unless so far as they can be incorporated with jury trial—would, in this State, greatly contribute to this event. The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays, which a court of chancery, with the appellate powers of the Supreme Court in fact as well as law would furnish him with, and thus the poor man being plunged in the bottomless pit of legal discussion, would drop his demand in despair.
In short, consolidation pervades the whole Constitution. It begins with an annunciation that such was the intention. The main pillars of the fabric correspond with it, and the concluding paragraph is a confirmation of it. The preamble begins with the words, “We the people of the United States,” which is the style of a compact between individuals entering into a state of society, and not that of a confederation of States. The other features of consolidation we have before noticed.
Thus we have fully established the position, that the powers vested by this constitution in Congress will effect a consolidation of the States under one government, which even the advocates of this Constitution admit could not be done without the sacrifice of all liberty.
We dissent, thirdly, because if it were practicable to govern so extensive a territory as these United States include, on the plan of a consolidated government, consistent with the principles of liberty and the happiness of the people, yet the construction of this Constitution is not calculated to attain the object; for independent of the nature of the case, it would of itself necessarily produce a despotism, and that not by the usual gradations, but with the celerity that has hitherto only attended revolutions effected by the sword.
To establish the truth of this position, a cursory investigation of the principles and form of this Constitution will suffice.
The first consideration that this review suggests, is the omission of a BILL OF RIGHTS ascertaining and fundamentally establishing those unalienable and personal rights of men, without the full, free and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have the control—the principal of which are the rights of conscience, personal liberty by the clear and unequivocal establishment of the writ of habeas corpus, jury trial in criminal and civil cases, by an impartial jury of the vicinage or county, with the common law proceedings for the safety of the accused in criminal prosecutions; and the liberty of the press, that scourge of tyrants, and the grand bulwark of every other liberty and privilege. The stipulations heretofore made in favor of them in the State constitutions, are entirely superseded by this Constitution.
The legislature of a free country should be so formed as to have a competent knowledge of its constituents, and enjoy their confidence. To produce these essential requisites, the representation ought to be fair, equal and sufficiently numerous to possess the same interests, feelings, opinions, and views which the people themselves would possess, were they all assembled; and so numerous as to prevent bribery and undue influence, and so responsible to the people, by frequent and fair elections, as to prevent their neglecting or sacrificing the views and interests of their constituents to their own pursuits.
We will now bring the legislature under this Constitution to the test of the foregoing principles, which will demonstrate that it is deficient in every essential quality of a just and safe representation.
The House of Representatives is to consist of sixty-five members; that is one for about every 50,000 inhabitants, to be chosen every two years. Thirty-three members will form a quorum for doing business, and seventeen of these, being the majority, determine the sense of the house.
The Senate, the other constituent branch of the legislature, consists of twenty-six members, being two from each State, appointed by their legislatures every six years; fourteen senators make a quorum—the majority of whom, eight, determines the sense of that body, except in judging on impeachments, or in making treaties, or in expelling a member, when two-thirds of the Senators present must concur.
The President is to have the control over the enacting of laws, so far as to make the concurrence of two-thirds of the Representatives and Senators present necessary, if he should object to the laws.
Thus it appears that the liberties, happiness, interests, and great concerns of the whole United States, may be dependent upon the integrity, virtue, wisdom, and knowledge of twenty-five or twenty-six men. How inadequate and unsafe a representation! Inadequate, because the sense and views of three or four millions of people, diffuse over so extensive a territory, comprising such various climates, products, habits, interests, and opinions, cannot be collected in so small a body; and besides, it is not a fair and equal representation of the people even in proportion to its number, for the smallest State has as much weight in the Senate as the largest; and from the smallness of the number to be chosen for both branches of the legislature, and from the mode of election and appointment, which is under the control of Congress, and from the nature of the thing, men of the most elevated rank in life will alone be chosen. The other orders in the society, such as farmers, traders, and mechanics, who all ought to have a competent number of their best informed men in the legislature, shall be totally unrepresented.
The representation is unsafe, because in the exercise of such great powers and trusts, it is so exposed to corruption and undue influence, by the gift of the numerous places of honor and emolument at the disposal of the executive, by the arts and address of the great and designing, and by direct bribery.
The representation is moreover inadequate and unsafe, because of the long terms for which it is appointed, and the mode of its appointment, by which Congress may not only control the choice of the people, but may so manage as to divest the people of this fundamental right, and become self-elected.
The number of members in the House of Representatives may be increased to one for every 30,000 inhabitants. But when we consider that this cannot be done without the consent of the Senate, who from their share in the legislative, in the executive, and judicial departments, and permanency of appointment, will be the great efficient body in this government, and whose weight and predominance would be abridged by an increase of the representatives, we are persuaded that this is a circumstance that cannot be expected. On the contrary, the number of representatives will probably be continued at sixty-five, although the population of the country may swell to treble what it now is, unless a revolution should effect a change.
We have before noticed the judicial power as it would affect a consolidation of the States into one government; we will now examine it as it would affect the liberties and welfare of the people, supposing such a government were practicable and proper.
The judicial power, under the proposed Constitution, is founded on well-known principles of the civil law, by which the judge determines both on law and fact, and appeals are allowed from the inferior tribunals to the superior, upon the whole question; so that facts as well as law, would be reexamined, and even new facts brought forward in the court of appeals; and to use the words of a very eminent civilian—“The cause is many times another thing before the court of appeals, than what it was at the time of the first sentence.”
That this mode of proceeding is the one which must be adopted under this Constitution, is evident from the following circumstances: 1st. That the trial by jury, which is the grand characteristic of the common law, is secured by the Constitution only in criminal cases. 2d. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law and trials by jury. The only mode in which an appeal from law and fact can be established, is by adopting the principles and practice of the civil law, unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless. 3d. That the courts to be established would decide on all cases of law and equity, which is a well-known characteristic of the civil law, and these courts would have cognizance not only of the laws of the United States, and of treaties, and of cases affecting ambassadors, but of all cases of admiralty and maritime jurisdiction, which last are matters belonging exclusively to the civil law, in every nation in Christendom.
Not to enlarge upon the loss of the invaluable right of trial by an unbiased jury, so dear to every friend of liberty, the monstrous expense and inconveniences of the mode of proceeding to be adopted, are such as will prove intolerable to the people of this country. The lengthy proceedings of the civil law courts in the chancery of England, and in the courts of Scotland and France, are such that few men of moderate fortune can endure the expense of them; the poor man must therefore submit to the wealthy. Length of purse will too often prevail against right and justice. For instance, we are told by the learned Judge Blackstone, that a question only on the property of an ox, of the value of three guineas, originating under the civil law proceedings in Scotland, after many interlocutory orders and sentences below, was carried at length from the court of sessions, the highest court in that part of Great Britain, by way of appeal to the House of Lords, where the question of law and fact was finally determined. He adds that no pique or spirit could in the Court of King’s Bench or Common Pleas at Westminster have given continuance to such a cause for a tenth part of the time, nor have cost a twentieth part of the expense. Yet the costs in the Courts of King’s Bench and Common Pleas in England are infinitely greater than those which the people of this country have ever experienced. We abhor the idea of losing the transcendent privilege of trial by jury, with the loss of which, it is remarked by the same learned author, that in Sweden, the liberties of the commons were extinguished by an aristocratic Senate; and that trial by jury and the liberty of the people went out together. At the same time we regret the intolerable delay, the enormous expense, and infinite vexation, to which the people of this country will be exposed from the voluminous proceedings of the courts of civil law, and especially from the appellate jurisdiction, by means of which a man may be drawn from the utmost boundaries of this extensive country to the seat of the Supreme Court of the nation to contend, perhaps, with a wealthy and powerful adversary. The consequence of this establishment will be an absolute confirmation of the power of aristocratical influence in the courts of justice; for the common people will not be able to contend or struggle against it.
Trial by jury in criminal cases may also be excluded by declaring that the libeller for instance shall be liable to an action of debt for a specified sum, thus evading the common law prosecution by indictment and trial by jury. And the common course of proceeding against a ship for breach of revenue laws by informal (which will be classed among civil causes) will at the civil law be within the resort of a court, where no jury intervenes. Besides, the benefit of jury trial, in cases of a criminal nature, which cannot be evaded, will be rendered of little value, by calling the accused to answer far from home; there being no provision that the trial be by a jury of the neighborhood or county. Thus an inhabitant of Pittsburgh, on a charge of crime committed on the banks of the Ohio, may be obliged to defend himself at the side of the Delaware, and so vice versa. To conclude this head: we observe that the judges of the courts of Congress would not be independent, as they are not debarred from holding other offices, during the pleasure of the President and Senate, and as they may derive their support in part from fees, alterable by the legislature.
The next consideration that the Constitution presents is the undue and dangerous mixture of the powers of government; the same body possessing legislative, executive and judicial powers. The Senate is a constituent branch of the legislature, it has judicial power in judging on impeachments, and in this case unites in some measure the characters of judge and party, as all the principal officers are appointed by the President-general, with the concurrence of the Senate, and therefore they derive their offices in part from the Senate. This may bias the judgments of the Senators, and tend to screen great delinquents from punishment. And the Senate has, moreover, various and great executive powers, viz., in concurrence with the President-general, they form treaties with foreign nations, that may control and abrogate the constitutions and laws of the several States. Indeed, there is no power, privilege or liberty of the State governments, or of the people, but what may be affected by virtue of this power. For all treaties, made by them, are to be the “supreme law of the land; anything in the constitution or laws of any State, to the contrary notwithstanding.”
And this great power may be exercised by the President and ten Senators (being two-thirds of fourteen, which is a quorum of that body). What an inducement would this offer to the ministers of foreign powers to compass by bribery such concessions as could not otherwise be obtained. It is the unvaried usage of all free States, whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation. This became necessary, and was afforded by the Parliament of Great Britain, in consequence of the late commercial treaty between that kingdom and France. As the Senate judges on impeachments, who is to try the members of the Senate for the abuse of this power! And none of the great appointments to office can be made without the consent of the Senate.
Such various, extensive, and important powers combined in one body of men, are inconsistent with all freedom; the celebrated Montesquieu tells us, that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
“Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. There would be an end of everything, were the same man, or the same body of the nobles, or of the people, to exercise those three powers; that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”
The President general is dangerously connected with the Senate; his coincidence with the views of the ruling junto in that body, is made essential to his weight and importance in the government, which will destroy all independence and purity in the executive department; and having the power of pardoning without the concurrence of a council, he may screen from punishment the most treasonable attempts that may be made on the liberties of the people, when instigated by his coadjutors in the Senate. Instead of this dangerous and improper mixture of the executive with the legislative and judicial, the supreme executive powers ought to have been placed in the President, with a small independent council, made personally responsible for every appointment to office or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the President should not be capable of taking any step.
We have before considered internal taxation as it would effect the destruction of the State governments, and produce one consolidated government. We will now consider that subject as it affects the personal concerns of the people.
The power of direct taxation applies to every individual, as Congress, under this government, is expressly vested with the authority of laying a capitation or poll tax upon every person to any amount. This is a tax that, however oppressive in its nature, and unequal in its operation, is certain as to its produce and simple in its collection; it cannot be evaded like the objects of imposts or excise, and will be paid, because all that a man hath will he give for his head. This tax is so congenial to the nature of despotism, that it has ever been a favorite under such governments. Some of those who were in the late general convention from this State have labored to introduce a poll tax among us.
The power of direct taxation will further apply to every individual, as Congress may tax land, cattle, trades, occupations, etc., to any amount, and every object of internal taxation is of that nature; that however oppressive, the people will have but this alternative, either to pay the tax or let their property be taken, for all resistance will be vain. The standing army and select militia would enforce the collection.
For the moderate exercise of this power, there is no control left in the State governments, whose intervention is destroyed. No relief, or redress of grievances, can be extended as heretofore by them. There is not even a declaration of RIGHTS to which the people may appeal for the vindication of their wrongs in the court of justice. They must, therefore, implicitly obey the most arbitrary laws, as the most of them will be pursuant to the principles and form of the Constitution, and that strongest of all checks upon the conduct of administration, responsibility to the people, will not exist in this government. The permanency of the appointments of Senators and Representatives, and the control the Congress have over their election, will place them independent of the sentiments and resentment of the people, and the administration having a greater interest in the government than in the community, there will be no consideration to restrain them from oppression and tyranny. In the government of this State, under the old confederation, the members of the legislature are taken from among the people, and their interests and welfare are so inseparably connected with those of their constituents, that they can derive no advantage from oppressive laws and taxes; for they would suffer in common with their fellow-citizens, would participate in the burdens they impose on the community, as they must return to the common level, after a short period; and notwithstanding every exertion of influence, every means of corruption, a necessary rotation excludes them from permanency in the legislature.
This large State is to have but ten members in that Congress which is to have the liberty, property and dearest concerns of every individual in this vast country at absolute command, and even these ten persons, who are to be our only guardians, who are to supersede the legislature of Pennsylvania, will not be of the choice of the people, nor amenable to them. From the mode of their election and appointment they will consist of the lordly and high minded; of men who will have no congenial feelings with the people, but a perfect indifference for, and contempt of them; they will consist of those harpies of power that prey upon the very vitals, that riot on the miseries of the community. But we will suppose, although in all probability it may never be realized in fact, that our deputies in Congress have the welfare of their constituents at heart, and will exert themselves in their behalf, what security could even this afford? What relief could they extend to their oppressed constituents? To attain this, the majority of the deputies of the twelve other States in Congress must be alike well disposed; must alike forego the sweets of power, and relinquish the pursuits of ambition, which, from the nature of things, is not to be expected. If the people part with a responsible representation in the legislature, founded upon fair, certain and frequent elections, they have nothing left they can call their own. Miserable is the lot of that people whose every concern depends on the will and pleasure of their rulers. Our soldiers will become Janissaries, and our officers of government Bashaws; in short, the system of despotism will soon be completed.
From the foregoing investigation, it appears that the Congress under this Constitution will not possess the confidence of the people, which is an essential requisite in a good government; for unless the laws command the confidence and respect of the great body of the people, so as to induce them to support them when called on by the civil magistrate, they must be executed by the aid of a numerous standing army, which would be inconsistent with every idea of liberty; for the same force that may be employed to compel obedience to good laws, might and probably would be used to wrest from the people their constitutional liberties. The framers of this Constitution appear to have been aware of this great deficiency— to have been sensible that no dependence could be placed on the people for their support: but on the contrary, that the government must be executed by force. They have therefore made a provision for this purpose in a permanent standing army and a militia that may be objected to as strict discipline and government.
A standing army in the hands of a government placed so independent of the people may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil or religious nature.
First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.
Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the State. This is the more remarkable, because even when the distresses of the late war, and the evident disaffection of many citizens of that description, inflamed our passions, and when every person who was obliged to risk his own life, must have been exasperated against such as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conscience were held sacred.
At this momentous crisis, the framers of our State Constitution made the most express and decided declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those dearest rights of men are left insecure.
Thirdly, the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independence; but in so doing, although the magnanimity of their minds will be extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will be the ready and obedient instruments of despotism to enslave the others; and that with an irritated vengeance. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow-citizens, and on one another. This power can be exercised not only without violating the Constitution, but in strict conformity with it; it is calculated for this express purpose, and will doubtless be executed accordingly.
As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expensive and burdensome government. The standing army must be numerous, and as a further support, it will be the policy of this government to multiply officers in every department; judges, collectors, tax-gatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard earnings of the industrious—like the locusts of old, impoverishing and desolating all before them.
We have not noticed the smaller, nor many of the considerable blemishes, but have confined our objections to the great and essential defects, the main pillars of the Constitution; which we have shown to be inconsistent with the liberty and happiness of the people, as its establishment will annihilate the State governments, and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism.
In this investigation we have not confined our views to the interests or welfare of this State, in preference to the others. We have overlooked all local circumstances—we have considered this subject on the broad scale of the general good; we have asserted the cause of the present and future ages—the cause of liberty and mankind.
Northwest Ordinance (1787)
An ordinance for the Government of the Territory of the United States, north-west of the River Ohio be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district; subject, however, to be divided into two districts, as future circumstances may in the opinion of Congress, make it expedient.
Be it ordained by the authority aforesaid, That the estates, both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild, to take the share of their deceased parent in equal parts among them: And where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate, shall have in equal parts among them, their deceased parents’ share; and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate, her third part of the real estate for life, and one third part of the personal estate; and this law relative to descents and dower, shall remain in full force until altered by the legislature of the district.—And until the governor and judges shall adopt laws as herein after mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her, in whom the estate may be (being of full age) and attested by three witnesses;—and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery; saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskies, Saint Vincent’s, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.
Be it ordained by the authority aforesaid, That there shall be appointed from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein, in one thousand acres of land, while in the exercise of his office.
There shall be appointed from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein, in five hundred acres of land, while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every six months, to the secretary of Congress. There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behavior.
The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterwards the Legislature shall have authority to alter them as they shall think fit.
The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
Previous to the organization of the general assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.
For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof—and he shall proceed from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature.
So soon as there shall be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships, to represent them in the general assembly; Provided, That for every five hundred free male inhabitants, there shall be one representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives shall amount to twenty-five; after which, the number and proportion of representatives shall be regulated by the legislature: Provided that no person be eligible or qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and, in either case, shall likewise hold in his own right, in fee simple, two hundred acres of land within the same: Provided also, That a freehold in fifty acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the like freehold and two years residence in the district shall be necessary to qualify a man as an elector of a representative.
The representatives thus elected shall serve for the term of two years; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township, for which he was a member, to elect another in his stead, to serve for the residue of the term.
The general assembly or legislature shall consist of the Governor, Legislative Council, and House of Representatives. The Legislative Council shall consist of five members, to continue in office five years, unless sooner removed by Congress; any three of whom to be a quorum: and the members of the Council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the Governor shall appoint a time and place for them to meet together, and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid; and, whenever a vacancy shall happen in the council, by death or removal from office, the House of Representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of Council, the said House shall nominate ten persons, qualified as aforesaid, and return their names to Congress; five of whom Congress shall appoint and commission to serve as members of the Council five years, unless sooner removed. And the Governor, Legislative Council, and House of Representatives, shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills having passed by a majority in the House, and by a majority in the Council, shall be referred to the Governor for his assent; but no bill, or legislative Act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient.
The Governor, judges, Legislative Council, Secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, and of office; the Governor before the President of Congress, and all other officers before the Governor. As soon as a legislature shall be formed in the district, the Council and House assembled, in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting during this temporary government.
And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest:
It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States, and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit:
Article the first. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
Article the second. The inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.
Article the third. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
Article the fourth. The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the Acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory, shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be appointed on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.
Article the fifth. There shall be formed in the said territory, not less than three, nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: The western State in the said territory, shall be bounded by the Mississippi, the Ohio and Wabash rivers; a direct line drawn from the Wabash and Post Vincents due north to the territorial line between the United States and Canada; and by the said territorial line to the lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio; by the Ohio, by a direct line drawn due north from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The eastern States shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government: provided the constitution and government so to be formed, shall be republican, and in conformity with the principles contained in these articles; and so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand.
Article the sixth. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23rd of April, 1784, relative to the subject of this ordinance, be, and the same are hereby repealed and declared null and void.
Shall we imitate the example of those nations who have gone from a simple to a splendid Government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in obtaining such a Government—for the loss of their liberty? If we admit this Consolidated Government, it will be because we like a great splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things: When the American spirit was in its youth, the language of America was different: Liberty, Sir, was then the primary object.
Patrick Henry, in the Virginia Ratifying Convention (1788)
Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rul-ers, but in the people who are to choose them.
James Madison, in the Virginia Ratifying Convention (1788)
The Bill of Rights provides a fitting close to the parenthesis around the Constitution that the preamble opens. But the substance is a design of government with powers to act and a structure to make it act wisely and responsibly. It is in that design, not in its preamble or its epilogue, that the security of the American civil and political liberty lies.
Herbert J. Storing, “The Constitution and the Bill of Rights,” in M. Judd Harmon, ed., Essays on the Constitution (1978)
Interpreting and Preserving the Constitution
POINTS TO REMEMBER
1. Through self-imposed rules of interpretation, derived in part from ancient law, Roman law, and English law, American judges interpret the Constitution and all laws and treaties according to established principles of judicial construction.
2. The basic interpretive task is to determine the intent of the Constitution, laws, and treaties, and to construe all instruments according to the sense of the terms and the intentions of the parties.
3. In the interpretation of the Constitution, the first rule is to examine both the general structure and the component parts of the document, keeping in mind its overall objectives and scope of power.
4. The function of the judge is to interpret the law, not to ignore its provisions and make the law. Judges have a special duty to maintain the integrity of the American constitutional process, to see that the requirements of the law are uniformly followed, and to hold all public officials, including themselves, to the same standards.
5. The Supremacy Clause of the Constitution establishes a hierarchy of laws, with the Constitution itself standing at the apex of the system. All laws and treaties must conform to the Constitution, and those that do not may be declared null and void by the Supreme Court through the exercise of judicial review.
6. The Constitution embodies the constituent or “permanent will” of the American people, which gives it a republican basis. Through the proper exercise of judicial review, the Supreme Court preserves the Constitution and perpetuates the will of the people.
7. There are basically four types of judicial review: the power of the Supreme Court to declare unconstitutional an act of Congress, a State law or constitutional provision, or an executive action, and the power to overturn a State court decision that questioned the validity of a Fed eral law or treaty or rendered an interpretation of the Constitution that was challenged by one of the parties.
8. In practice, the Supreme Court is the final interpreter of the Constitution, unless the Court’s interpretation is changed by the people and the States through the amendment process. Congress may also alter the Court’s jurisdiction, thereby making the State courts and lower Federal courts the “court of last resort.” In neither theory nor practice, however, is the court the exclusive interpreter of the Constitution.
9. Historically, the advocates of State’s Rights have tended to favor a “strict” interpretation of the Constitution, and those favoring a more powerful, centralized regime have tended to support a “loose” construction of the Constitution.
10. Although Federal judges individually enjoy considerable independence, the independence of the judiciary itself is substantially limited by the separation of powers and checks and balances system.
11. The Federal judicial power is the power of a Federal court to decide and pronounce a judgment and carry it into effect between parties who bring a case before it. It is distinguishable from jurisdiction, which confers authority on a court to exercise the judicial power in a particular case.
12. The Constitution confers the judicial power on the Federal courts, but it is the Congress which confers jurisdiction; and without jurisdiction a Federal court cannot decide the case. The responsibility of limiting the power of the Federal judiciary and preventing abuses of the judicial power rests primarily with the Congress.
A constitution,” wrote Alexander Hamilton in Federalist No. 78, “is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” In carrying out this responsibility, what rules or principles of construction are the judges supposed to follow? The Constitution is silent on the question and thus offers no guidance. Congress is prohibited from imposing any rules of interpretation. It may regulate the jurisdiction of the Federal courts and tell the judges when they can decide a case, but it is prohibited by the separation of powers principle from instructing the judges on how they should interpret it; for the power to interpret the Constitution in a case or controversy is the essence of the judicial power, and thus beyond the reach of both Congress and President.
Accordingly, it is up to the judges themselves to develop and adopt their own rules of interpretation, just as members of Congress are free to adopt their own rules of legislative procedure (about which the Constitution is also silent).
It should not be concluded from this observation, however, that judges are given free rein under the Constitution to interpret it as they please. If this were the case, they might substitute their own intentions for those of the people, as expressed in the Constitution, and interpret the Constitution out of existence. A more accurate and reliable reading of the Constitution and the Convention debates suggests that the Framers assumed that the judges would interpret the Constitution according to established principles of Anglo-American law.
Principles of Statutory Construction
What are these established rules or principles of interpretation, and where might a judge turn for guidance? In 1789, when the Federal Judiciary was first organized, he would have first turned to the writings of the English jurists, especially Coke and Blackstone, and possibly also to the writings of the international law jurists of Europe, such as Jean Jacques Burlamaqui, Emerich Vattel, and Hugo Grotius. Over the centuries, the English jurists had developed coherent, well-defined principles of construction for interpreting acts of Parliament, and the international law jurists had likewise established rules for interpreting treaties among foreign nations. There was no body of legal literature to which American judges might turn for guidance for the interpretation of a constitution, however, because written constitutions were unprecedented. Hence the members of the new Federal judiciary, led by the Supreme Court, found it necessary to create their own rules of interpretation, based in part on principles adopted from the common law and the law of nations, and in part from the peculiar requirements of a popularly based written constitution that was declared to be the supreme law. In other words, it became readily apparent to them that certain principles useful for determining the meaning of a law or a treaty might also be applied for determining the meaning of a clause in the Constitution. In certain instances, however, new rules would have to be devised because a constitution is obviously different in many respects from a law or treaty and therefore raises unique interpretive problems.
A basic interpretive task common to all three is the task of determining intent. What was the intent of the lawmakers who made the law? Of the foreign ministers who drafted the treaty? Of the delegates who wrote the Constitution? In his Commentaries on the Laws of England, Blackstone noted that the first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and the intention of the parties. “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made,” wrote Blackstone, “by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.”
He went on to explain that words are generally to be understood according to their usual or popular usage. If they are ambiguous, then the next step is to try to establish their meaning from the context, or by comparing them with other words and sentences in the same instrument, or by comparing them with another law on the same subject. The law of England, for example, declares murder to be a felony “without benefit of clergy.” To learn what the “benefit of clergy” means, it is necessary to turn for guidance to other laws employing this term.
Failing here, the judge may find the intent of the law by observing the subject matter or the purpose of the law. Blackstone cites as an example an English law forbidding members of the clergy from purchasing “provisions” in Rome. This does not mean they are prohibited from buying food and grain, but from securing nominations to ecclesiastical office, which were called “provisions.” This is clearly what the statute intended because its purpose was to prevent the Pope in Rome from usurping the powers of the King, who is the head of the Church of England.
As for the effects and consequences, the rule, said Blackstone, is that where words seem to lead the court to absurd results, it is helpful to abandon their literal meaning and rely on common sense. A law, for example, stating that “whoever drew blood in the streets should be punished with the utmost severity” should “not extend to the surgeon who opened the vein of a person that fell down in the street with a fit.”
Finally, wrote Blackstone, judges should consider the reason and spirit of the law when the words are dubious and the alternative means of construction have failed to uncover the intent of the lawmakers. To illustrate the point, he cited a case from the Roman law put by Cicero, the great statesman and orator. There was a law for ancient mariners providing that anyone who abandoned ship in a storm forfeited all of his personal property on board. Those who stayed with the ship were entitled to keep both the ship and its cargo. The intent of the law, obviously, was to encourage seamen to remain with a stricken vessel by offering them an economic incentive and to reduce the loss of valuable ships. A terrible storm arose, and every sailor except one who was too sick to move left the ship in question. The ship miraculously survived the storm, and when it reached port the sick man claimed ownership of the ship and its contents. The Roman judges properly rejected his claim because a reward to him, though technically correct, would defeat the intent of the law.
This method of interpreting the law according to its reason arises from what we call equity, which, as we saw earlier, is an interpretive device used by judges to correct a law which, because of its generality and universality, may be deficient when applied. But equity jurisprudence, as Blackstone further explained, is potentially dangerous to rule of law and must be applied with utmost caution. This is so because equity depends essentially upon the particular circumstances of each individual case, and the established rules are not as definite as in the law. Carried to extremes, it would make the judges a law unto themselves. “The liberty of considering all cases in an equitable light,” he warned, “must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good than equity without law, which would make every judge a legislator, and introduce most infinite confusion; as there would be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.”
In 1803, the first American edition of Blackstone was published in Philadelphia by St. George Tucker, a professor of law at William and Mary College in Virginia. Later, as American law developed under the new State and Federal constitutions, American lawyers began writing legal treatises and publishing their own reports of cases, so that American law, though English in origin, became increasingly distinguishable from its parent system.
The most prolific and influential of the early legal writers was Joseph Story, an Associate Justice of the Supreme Court from 1811 to 1845. Story, who also lectured at the Harvard Law School for many years and was widely acclaimed as America’s foremost legal scholar, published nine major legal treatises while serving on the Court. The most famous of these was his three-volume classic, Commentaries on the Constitution, which was first published in 1833 but went through many subsequent editions. Included in the work was a complete analysis, based on The Federalist essays, of the origin, meaning, and purpose of every clause of the Constitution. This in itself was enormously helpful to judges and lawyers, who had little to go on except The Federalist and only limited access to the original founding documents that might be of assistance in determining the intent of particular provisions of the Constitution. James Madison’s Notes of the Debates in the Federal Convention of 1787 were not published until 1840. Jonathan Elliot did not publish his four-volume collection of Debates in the Several State Conventions on the Adoption of the Federal Constitution until 1830. In fact, debates in many State ratifying conventions were either fragmentary or nonexistent. Story’s Commentaries, plus The Federalist and a few shorter and less comprehensive works, thus served as the principal guides for interpreting the Constitution in the founding era.
What was especially valuable to members of the bench and bar in Story’s Commentaries, however, was the incorporation into the text of material on constitutional interpretation. Devoting a large portion of his treatise to “Rules of Interpretation,” Justice Story endeavored to explain, step-by-step, the process to be followed for the proper interpretation of the Constitution. This is the first and only time a member of the Supreme Court has ever attempted to expound at length on the principles and mechanics of construing the American Constitution. It was an innovative and timely addition to the existing literature. When we stop to consider the influence of Story and his Commentaries on constitutional development, this was also a significant contribution to understanding the role of the judge in the American political system.
Borrowing heavily from Blackstone, but finding support as well from such noted authorities as Bacon and Vattel, Story affirmed Blackstone’s first rule of interpretation: to construe the instrument “according to the sense of the terms and the intentions of the parties.” Continuing, Story laid out the rule as follows:
Mr. Justice Blackstone has remarked that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes which led to its enactment, are often the best exponents of the words, and limit their application.
From this it followed, said Story, that in many instances there is no problem of interpretation unless “there is some ambiguity or doubt” about the meaning of a particular word or phrase. “Where the words are plain and clear, and the sense distinct and perfect arising from them, there is generally no necessity to have recourse to other means of interpretation.” In this situation, the instrument in question, whether it be a contract, a will, a statute, or the Constitution, is said to interpret itself, and the judge has only to acknowledge and declare the obvious intent of the parties.
Applying these principles to the interpretation of the Constitution, Story asserted that the first rule is to examine both the general structure and the component parts of the Constitution, keeping in mind its overall objectives and scope of power. “Where the words are plain, clear, and determinate, they require no interpretation.” This is true of most provisions of the Constitution. Article I, Section 3, for example, states that “The Senate of the United States shall be composed of two Senators from each State.” This seems clear enough. Each State is entitled to two Senators, no more, no less.
In some instances, however, “the words admit of two senses, each of which is conformable to common usage.” In this situation, said Story, “that sense is to be adopted which, without departing from the literal import of the words, best harmonizes with the nature and objects, the scope and the design, of the instrument.” A good example of this sort of difficulty would be Article II, Section 1, which provides that, “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.” The clause making eligible persons who were citizens of the United States in 1787 was necessary, of course, since nobody old enough to become President in 1787, or for a long time afterward, was a “natural born” citizen of the United States. Every adult born in this country before 1776 had been born a British subject. (The first President born under the American flag was Martin Van Buren, who did not come into office until the elections of 1836.)
But what is a “natural born” citizen? An obvious interpretation of a “natural born” person would be a child born in the United States to American parents. Likewise, a “naturalized” citizen, that is a person born in a foreign country to foreign parents who later acquired American citizenship through naturalization, would not be eligible to serve as President because that person would not be a “natural born” citizen. What about a child born in a foreign country to American parents? This issue actually arose in 1967, when George Romney, Governor of Michigan, sought the presidency. Romney’s American parents were living in Mexico when he was born. Was he eligible for the office of President?
As Judge Story suggests, the proper way in which to interpret the eligibility clause under the circumstances would be to look at its original purpose, and to adopt that interpretation which “best harmonizes with the nature and objects, the scope and design, of the instrument.” Although the delegates to the Philadelphia Convention and the authors of The Federalist did not discuss at length the eligibility clause, we know from reason and experience, as Story explained, that “the great fundamental policy of all governments” is “to exclude foreign influence from their executive councils.” This, he observed, “cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe.” It was thought dangerous, in other words, to make the presidency available to a person who might have just recently come to the United States and might still feel an allegiance to a king, a czar, or a foreign government. In light of these considerations, a ruling that George Romney, born of American parents, was a “natural born” citizen would seem to be consistent with the basic purpose of the eligibility clause.
A more troublesome interpretive problem arises when, even though the words are clear of doubt, the constitutional provision in which they appear is not entirely free of ambiguity. Consider, for example, Article II, Section 2, which provides that the President shall have the power to appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the United States established by law. We know from Article III, Section 1 of the Constitution that judges of the Supreme Court shall hold their office “during good behavior,” and cannot be removed from office by the President. But what about an ambassador or a department head? The Constitution is silent on the question of whether the President may remove one of these officials from office. Yet it would seem to follow, as a matter of common sense, that if the President has the power to appoint an ambassador that he also has the power to remove him, and that the removal power is therefore incidental to the appointment power. This is precisely how the Supreme Court has resolved the question. The removal power may be said to be, in effect, an implied power of the President, and one that is essential if the President is to be able to carry out the executive functions. It hardly makes sense to deny the President this power and at the same time expect him to administer the laws and conduct the foreign relations of the country. Otherwise the President would be at the mercy of his own cabinet and foreign ambassadors.
Granted, then, that the President may remove these officers, might the Senate nevertheless limit the President’s removal power either by requiring its own consent or by specifying the causes for the removal? The Senate has in the past taken the position that, since the Senate must approve the appointment, it must also consent to the removal. It was precisely upon the basis of this claim that President Andrew Johnson was impeached and almost removed from office himself. Under the Tenure of Office Act of 1867, Congress prohibited the President from removing any department head without its consent. Judging the Act an unconstitutional interference with his executive powers, President Johnson ignored the statute and attempted to remove the Secretary of War on his own authority. The House of Representatives impeached Johnson, but the Senate failed to convict. Congress later repealed the statute and the issue was dropped.
In the famous case of Meyers v. United States (1926), the Supreme Court later ruled that the Senate may not restrict the power of the President to remove officers of the United States. In one of the longest and most elaborate opinions ever written for the Court, Chief Justice William Howard Taft, who had previously served as President, relied upon established practice and, more fundamentally, upon the separation of powers principle, in ruling that President Wilson had the right to remove a certain postmaster from office, notwithstanding an 1876 statute requiring senatorial approval. The President’s unrestricted removal power, reasoned Taft, stemmed from “the executive power” and the “faithful execution of the laws” clause. The President must rely upon subordinates to execute the laws, said Taft, and he cannot perform this function, or be held accountable, if he cannot select administrative officers of his own choosing.
Chief Justice Taft’s approach was essentially consistent with the rules of interpretation proposed by Judge Story almost a century earlier. When dealing with ambiguities of the Constitution, said Story, it is essential that all of the available sources of understanding be explored, including “the antecedent situation of the country and its institutions, the existence and operations of the State governments … contemporary history and contemporary interpretation. …” In the final analysis, he concluded, “the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties and rights, with all the lights and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.”
These general principles of interpretation articulated by Story and derived in part from ancient law, Roman law, and English law, have been acknowledged as binding on courts since the earliest days of the American republic. Throughout American history, judges have subscribed to the ancient maxim of Sir Francis Bacon, who admonished the judges of England “to remember that their office is jus dicere, and not jus dare—to interpret law, and not to make law, or give law.” This fundamental principle, as we noted earlier, is nowhere stated in the Constitution. Like federalism and separation of powers, it is nevertheless an implicit rule of the Constitution. It defines the judicial function, governs the behavior of judges, and is the essence of what is known as the doctrine of judicial self-restraint.
Because this rule is self-imposed and is not explicitly mandated by the Constitution, observance of it has not always been consistent. Judges, after all, are human beings, subject to the same temptations of power as any legislator or executive. Those who yield to such temptations are said to be judicial activists—judges who read their own bias into a law or the Constitution, in disregard of the lawmakers’ or Framers’ intent, in order to reach a decision they personally favor, or believe is convenient. The argument has even been made that judges have a special duty to promote “moral values” or that all citizens are entitled to certain undefined, philosophically based “natural rights,” and that judges are therefore at liberty to render any interpretation they please in order to secure those “values” or “rights.” Such practices may, however, produce judicial decisions that are in conflict with the Constitution. A judge, wrote Story in his Commentaries, should not “enlarge the construction of a given power beyond the fair scope of its terms merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing the evil lies with the people by an exercise of the power of amendment. If they do not choose to apply the remedy, it may fairly be presumed that the mischief is less than what would arise from a further extension of the power, or that it is the least of two evils.” Moreover, said Story, “it should not be lost sight of that the government of the United States is one of limited and enumerated powers, and that a departure from the true import and sense of its powers is pro tanto the establishment of a new constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the functions of a legislator and deserting those of an expounder of the law.”
Judges, then, have a special duty to maintain the integrity of the American constitutional process, to see that the rules are uniformly followed, and to hold all public officials, including themselves, to the same standards. This has meant that American judges have been especially concerned about procedure. By following the same procedure in every case, whether it be in the conduct of a trial or in the interpretation of a statute or provision of the Constitution, a judge may rightfully claim that his personal preferences did not intrude upon the dispute. Certainty in the law—an essential attribute of rule of law—is undermined when judges repeatedly change the rules, overturn established precedents, and arbitrarily reverse themselves. This has been recognized since the dawn of Western civilization. Thus the ancient Code of Hammurabi, written by the Babylonians in 2100 , declared that, “If a judge has tried a suit, given a decision, caused a sealed tablet to be executed, and thereafter varies his judgment … then they remove him from his place on the bench of judges in the assembly.”
Such rigorous adherence to procedure has also meant that the actual outcome or result of a case might not be what the judge privately favored. But this is a small price to pay for rule of law. Strict adherence to procedure may even at times produce an unjust result, as occasionally occurs when an innocent person is judged guilty or a guilty person is judged innocent by an errant jury. But in the long run, it is generally believed, justice will usually prevail if the proper procedures are uniformly observed. Deliberate attempts by the judges to reach out for “justice” in each case, irrespective of established norms and procedures, have traditionally been viewed in American law as an abuse of office and the equity power. Such arbitrariness puts the law in a state of turmoil and uncertainty, invites political interference in the judicial process, and endangers the independence of the judiciary by encouraging legislative retaliation.
The Doctrine of Judicial Review
Having examined a statute to determine the intent of the legislature, an English judge’s interpretive powers come to an end. He has only to apply the statute to the facts of the case and reach a decision. This is because the English courts, in spite of the claims once made by Lord Coke, do not have the power of judicial review. On rare occasions they may express an opinion on whether a particular act of Parliament conforms to the English Constitution, but Parliament is free to ignore it. In keeping with the principle of legislative supremacy, Parliament decides for itself whether its acts are constitutional. In fact, Great Britain does not even have a supreme court. The highest court of appeals in the British political system is actually the House of Lords, which, of course, is also the upper chamber of the legislature.
Under the American political system, a judicial inquiry into the legislature’s intent is merely the first step of the judicial process. Once the meaning and intent of the statute have been determined, the judge must then decide whether it conforms to the Constitution. If it is a State law, he must take yet another step to determine whether the law conforms to Federal laws and treaties. All of this is necessary because of the Supremacy Clause of Article VI. As noted earlier, this is the most distinctive feature of the American Constitution. It is a key provision which, more than any other, distinguishes the American Constitution from the English—and most other constitutions of the world.
In essence, the Supremacy Clause establishes a hierarchy of laws, with the Constitution itself as the highest law, followed by Federal laws and treaties, descending finally to State constitutions, State laws, and local ordinances. Article VI declares that, “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.”
It is important to study these words carefully. In the first place, there is no law higher than the Constitution. Political philosophers and even some judges have argued on occasion that there is a higher “natural law” governing American affairs, and that judges therefore have a higher duty not only to follow it, but to impose it if some provision of the Constitution or a law seems to conflict with it. Similar arguments have been made on behalf of “natural rights” and “moral values,” as we noted earlier, and some have also maintained that the principle of equality embodied in the Declaration of Independence authorizes judges to reach beyond the Constitution in order to implement and protect it. In their struggle to end slavery, some abolitionists argued, for example, that the Constitution embraced the Declaration of Independence, and that slavery was therefore unconstitutional.
Such arguments are persuasive. It may well be that we are all governed by a higher, unwritten natural law, emanating from God; that certain rights are by nature indelibly impressed upon the hearts and minds of all mankind; and that the spirit of ’76 is incorporated into our fundamental law. The problem is that these concepts, whatever their merit and value, are not provided for in the Constitution, and there is no evidence that the Framers ever intended them to be. This is not to say that the Framers rejected natural law ideas or that they opposed the principles of the Declaration of Independence—which they assuredly did not—but merely to state that the authors of the Constitution appreciated and understood the fact that any declaration to the effect that “The natural law” or “The natural rights of man” or “Moral values” or “The principles of the Declaration of Independence” of 1776 “shall be the supreme law of the land” would have produced not only widespread confusion, but the overthrow of the Constitution and the establishment of a judicial oligarchy as well. This is because there is considerable disagreement about the precise meaning of these concepts. Judges, after all, are trained in the law. They are not priests or philosopher kings, and no two judges are likely to agree on whether or why one right is “natural” and another is not. The practical effect of the Supremacy Clause, it should be kept in mind, is to expand the powers of the Supreme Court. It is the judges who must interpret the laws and decide whether they conform to the Constitution. To empower them also to decide whether the laws also conform to religious, moral, or philosophical doctrines would be an invitation to the exercise of arbitrary power. Taken to its logical conclusion, the assumption that there is a higher authority than the Constitution and that the judges may therefore invoke it at their pleasure would result in the death of the Constitution on the ground that perhaps it too violated some higher law.
In the second place, “the laws of the United States,” that is, Federal laws passed by Congress, also enjoy supremacy—not over the Constitution, of course, but over State laws. Thus, if a Federal law conflicts with a State law, the latter is void and may not be enforced. Federal laws are not automatically treated as the supreme law, however, for the Supremacy Clause stipulates that they “shall be made in pursuance” of the Constitution. This means that they must conform to the Constitution. It is the duty of the courts to decide whether any law, State or Federal, meets this test. If it does, the courts are obliged to apply it to the case at hand, even if the judges think it unwise or are personally opposed to the policy it establishes. In this sense, the American Constitution establishes a qualified legislative supremacy in Congress, the only higher authority being the Constitution itself.
Third, the Supremacy Clause declares that treaties made “under the authority of the United States,” shall also be supreme law of the land. Why, it may be asked, did the Framers not specify that treaties, like laws, must also be made “in pursuance of the Constitution”? Does this mean that treaties may ignore the Constitution? The wording of the clause seems uncertain on this point, and has aroused considerable debate over the years. The Framers were not careless draftsmen, however, and they chose their words carefully. Under the Articles of Confederation, the United States had entered into agreements with foreign powers, the Treaty of Peace of 1783 being a prime example. Had the Framers employed language that required all treaties to be made in pursuance of the Constitution, the legal status of such treaties would have been in doubt because the Constitution did not exist when they were made. By stating that all treaties would be regarded as the supreme law of the land if they were made “under the authority of the United States,” however, these earlier agreements were left intact. Although the Supreme Court has never overturned a treaty on the ground that it violated the Constitution, the principle seems well established that treaties, like the laws of Congress, must be constitutionally acceptable. “There is nothing in this language,” declared the Court in Reid v. Covert (1957), “which intimates that treaties do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result.”
The power of the Supreme Court to strike down an act of Congress on the ground that it conflicts with the Constitution, it should be emphasized, is not explicitly provided for in the Constitution. There is no mention of the power of judicial review anywhere in the document, and its legitimacy has therefore been questioned from time to time by some critics of the Court. Very early in our history, however, Chief Justice John Marshall established the doctrine of judicial review in the celebrated case of Marbury v. Madison (1803), and the Court has followed it ever since.
In Federalist Nos. 78 and 81, Alexander Hamilton probably spoke for most of the Framers when he implied that judicial review was an inherent power of the Court under the new Constitution. “The interpretation of the law,” he wrote, “is the proper and peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, and the intention of the people to the intention of their agents.”
That “the intention of the people” should be preferred “to the intention of their agents” is a phrase that strikes the modern reader as peculiar. Do not elected representatives, the agents of the people, speak for the people? Is not their intent the intent of the people? The founding generation did not equate the intent of the people with the intent of the legislature in every and all respects. Justice William Paterson, a delegate to the Philadelphia Convention who later served on the Supreme Court, put it this way in Van Horne’s Lessee v. Dorrance (1795): the Constitution “is the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. … [I]t contains the permanent will of the people and is the supreme law of the land.” It necessarily follows that there is nothing inherently undemocratic about judicial review in principle, in view of the magistrates’ obligation to support and defend the permanent, or constituent, will of the people, in preference to the temporary, or political, will of transient majorities. By “constituent” will, we mean the will of the people that is expressed when they create a government. The Framers understood the difference, in other words, between constituent assemblies, such as those which frame and ratify a constitution, and legislative assemblies, which simply make the laws. Judicial review, it has been argued, is “undemocratic” because it permits unelected judges to nullify the decisions of elected representatives. This would be true only if the nullified statute was clearly constitutional. But to insist that the exercise of judicial review, as such, is undemocratic is to ignore the democratic foundation of the Constitution itself, which speaks in the name of “We the People” and is meant by the people—past as well as present and future generations—to be preferred to the wishes of their agents, who are but a fleeting reflection of current opinion and in many instances may be speaking only for themselves.
Thus understood, the true and permanent will of the American people is expressed in the Constitution. This is an unwritten assumption, applicable to each generation of Americans, until they deliberately and consciously cast it aside or amend it. It is an everlasting commitment by the people to self-restraint and to the restraint of government. By the word “people,” then, Hamilton did not mean a collection of voters at any given time or place. He meant the American people in historical continuity. It is their will that they be governed by their Constitution which is written in their name and was adopted by their ancestors. This is not to say that they are to be ruled from the grave, but merely to observe that they have chosen to impose limitations on their autonomy, and to be governed ultimately not by politicians or judges, but by a higher law we call the Constitution of the United States of America. The practice of judicial review, it may thus be argued, runs counter to democratic principles when a judge ignores the Constitution or allows an unconstitutional statute to stand, not when he defends the Constitution against legislative assault.
In Marbury v. Madison, Chief Justice Marshall reasoned, in a brilliant display of deductive logic, that judicial review is a constitutional imperative. “The question, whether an act repugnant to the Constitution, can become the law of the land,” he stated, “is a question deeply interesting to the United States.” Marshall began by pointing out that certain fundamental principles of the constitutional system seem to warrant judicial review. The people had united to establish a government. They organized it into three departments and assigned certain powers to each, while at the same time setting limits to the exercise of those powers. These limits were expressed in a written constitution, which would be a useless document “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law,” it may not be changed by ordinary legislation. This means that “a legislative act contrary to the Constitution is not law.”
The question, continued Marshall, thus presents itself: “If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, said Marshall, is abundantly clear: No. The judges do not really have a choice in the matter. “It is emphatically the province and duty of the judicial department, to say what the law is.” But judges do not interpret the law in the dark; they interpret it in the light of the Constitution, which provides the rule of interpretation. “If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case.” To declare otherwise, Chief Justice Marshall asserted, would be to permit the legislature to surpass at will the limits imposed upon its powers by the Constitution. The very concept of a written constitution, in other words, justified judicial review.
But, Marshall further noted, the Framers did not leave the matter entirely to common sense and reason. They provided the Supremacy Clause, which gave the Constitution precedence over laws and treaties and specified that only laws “which shall be made in pursuance of the Constitution” are to be the supreme laws of the land. “Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”
The Supreme Court did not again render an act of Congress null and void through judicial review until 1857, when in the case of Dred Scott v. Sandford the Justices ruled that the Missouri Compromise of 1820, prohibiting slavery in the Territories, was unconstitutional. In general, the Court has been remarkably restrained in exercising judicial review over acts of Congress, and throughout much of American history has been rather reluctant to challenge the legislature. As indicated by the Court’s reluctance to impose limits on the commerce power since 1937, the court has, in fact, virtually abandoned judicial review in many areas of the law.
Such a hands-off policy is most emphatically not the case with regard to the application of judicial review against the States. Between 1789 and 1860, the Supreme Court held a State constitutional provision, law, or ordinance unconstitutional in 36 instances. This number was quickly matched in the period from 1861 to 1873; and from 1861 to 1937, the number climbed to 515, about a 1,400 percent increase. The Supreme Court under Chief Justice Earl Warren held 166 State constitutional provisions, laws, or ordinances invalid, and under Chief Justice Warren Burger the number rose to 310. Altogether, the Supreme Court overturned more than 1,140 State laws, ordinances, and constitutional provisions between 1789 and 1989. Considerably more than half of these decisions have been delivered in the past fifty years.
The leading case in this area of judicial review is Martin v. Hunter’s Lessee (1816). Under Section 25 of the Judiciary Act of 1789, Congress provided that final judgments in State supreme courts questioning the validity of any Federal law or treaty were subject to review by the Supreme Court. The Virginia high court challenged the constitutionality of this grant of power to the Supreme Court, however, arguing that it violated the reserved powers of the States. Conflicting views on the meaning of the Supremacy Clause and State sovereignty were at the heart of the controversy. The Virginia judges claimed that, while State judges were obliged under Article VI to obey the Constitution, laws, and treaties of the United States, they were not bound to obey the Supreme Court’s interpretations of them. In their view, State and Federal judges were officers of two separate sovereignties, and neither was required to obey the decisions of the other. Congress therefore had no authority to enact a law subjecting State court decisions to review by the Federal Judiciary.
In an opinion by Justice Story, the Supreme Court rejected these arguments. Story denied the claim that State sovereignty equaled national sovereignty. The Constitution is “crowded with provisions which restrain or annul the sovereignty of the States,” he pointed out, and the doctrine of absolute State sovereignty insisted upon by the Virginia judges ran counter to the whole theory of Federal supremacy.
Nowhere in the Constitution was it stated that the Supreme Court should exercise appellate jurisdiction over State courts. It did not follow from this, however, that the Supreme Court was prohibited from reviewing State court decisions. This is so, explained Story, because the appellate jurisdiction of the Supreme is not spelled out in the Constitution for any class of cases, and is left solely to the discretion of Congress. Article III of the Constitution provides that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The Constitution, in other words, gives Congress complete authority to establish and regulate the appellate jurisdiction of the Supreme Court. If the appellate power of the Supreme Court did not extend to cases decided in the State courts which were inconsistent with the Constitution or which challenged the validity of a Federal law or treaty, then Federal supremacy would be in jeopardy. It would also be impossible for the Supreme Court to carry out its function of protecting the supremacy of the Constitution and all Federal laws and treaties if it could not review these kinds of State court decisions. Accordingly, Section 25 of the Judiciary Act of 1789 was constitutional.
Very early in our history, it may thus be seen, judicial review of acts of Congress and judicial review of State court decisions became fixed principles of constitutional construction in the Supreme Court. Although the former rested on deductive reasoning and was understood as an inherent power implicit in the Constitution itself, and the latter was based on statute, both forms of judicial review drew their inspiration and legitimacy from the Supremacy Clause. That the Supreme Court also has the power to decide whether a State constitutional provision, law, or municipal ordinance conforms to the Constitution has never been seriously questioned. In Fletcher v. Peck (1810), the Supreme Court for the first time in its history held a State law void because it conflicted with a provision of the Constitution—the Contract Clause in Article I, Section 10. Previously, State laws had been held unconstitutional because they conflicted with Federal laws or treaties.
Under what is called the Doctrine of Preemption—a rule of interpretation that has been applied with increasing frequency in recent years and has been much criticized—the Court has also voided State laws not because they directly contravene a Federal law, but on the ground that Congress has “preempted the field.” As is often the case, especially in the matter of commerce, Federal statutes do not always specify whether all State and local regulations are suspended. The Court has adopted the rule of interpretation that in those instances where, in the opinion of the judges, the “scheme of Federal regulation is so pervasive as to reasonably infer that Congress has left no room for the States,” or where the interest of the national government is “so dominant that it precludes State action,” then the State law will be nullified even though it does not conflict with the Constitution or a Federal law.
Judicial review is thus an important power of the Supreme Court that comes in many forms. Basically, however, there are four types. The first is the power of the Supreme Court to declare acts of Congress unconstitutional. The second type is the power of the Court to declare invalid any State constitutional provision, State law, or other State action that infringes on the constitutional authority of the national government. A third type is the closely related power of the Court to overturn cases decided in State supreme courts where the validity of a Federal law or treaty was questioned or denied or where the construction of any clause in the Constitution was against a claim or right of either party. The fourth type is the power of the Court to review the actions of public officials exercising either delegated legislative or administrative powers, to determine whether they acted within their powers.
As a device for maintaining Federal supremacy, judicial review of State court decisions and State laws is the most frequently used and the most significant. Martin v. Hunter’s Lessee, in the view of constitutional historian Charles Warren, is “the keystone of the whole arch of Federal judicial power.” Justice Oliver Wendell Holmes, who served on the Court in the early part of the twentieth century, once remarked: “I do not think the United States would come to an end if we lost our power to declare an act of Congress void. I do think the Union would be imperilled if we could not make that declaration as to the laws of the several States.” To be sure, it seems certain that the relationship between the Federal government and the States would be considerably different from what it is today if Section 25 of the Judiciary Act of 1789 had been overturned or later repealed.
The Supreme Court as Final Interpreter
In the United States, the opinions of the Supreme Court are routinely reported in the news by hundreds of journalists. Countless lawyers and judges, and regiments of local, State, and Federal officials examine the Court’s rulings on a daily basis. Colleges, universities, and law schools devote many courses of study to constitutional law and constitution-related subjects. In no other country of the world is there such widespread interest in a nation’s fundamental law. Probably more books and articles on the Constitution or the Supreme Court’s interpretation of it are written in one year than all of the other countries of the world, writing about their constitutions, produce in a decade. We are indeed a constitution-minded people who take their constitution seriously.
This “constitutional colloquy” has persisted throughout our history and may be traced back to the founding period. It can almost be said that the debate in the Federal and State ratifying conventions of 1787–88 is a continuing debate. Much of this debate relates not only to disagreements over Supreme Court decisions, but more fundamentally over basic principles of the Constitution and its proper meaning and interpretation. But the word “interpretation,” as we noted earlier, does not appear in the Constitution. The Constitution does not instruct the judges how they are to interpret the Constitution, and the separation of powers forbids Congress and the President from telling them how to interpret it. To complicate matters, the Constitution is also silent on the question of who is the final interpreter, or whether Congress, the President, or the States may also offer their interpretations. Although these questions have not been fully resolved, constitutional practice and experience over the years has apparently settled a number of issues.
It may be taken as a general rule that the Supreme Court of the United States is the final interpreter of the Constitution in a particular case that is brought before it and decided. But the finality of the Court’s judgment is conditional because Congress, the several States, and the people thereof can take action to reverse the decision or render it inapplicable in future cases. Congress, for example, has the authority to withdraw the Court’s appellate jurisdiction, and if it wished it could pass a law making it impossible for the Court to rule in the type of case previously determined. Congress might even go further and remove the original jurisdiction of the lower Federal courts, thereby making the State supreme courts the final interpreters of the Constitution in those particular kinds of cases.
In examining this issue, it is important, however, to distinguish theory from practice. As a matter of constitutional theory, the Supreme Court is the final interpreter of the Constitution in a given situation because Congress permits it, not because it is required by the Constitution. As a matter of actual practice, Congress rarely exercises its power to restrict the Court’s jurisdiction, and the Supreme Court is almost always the final interpreter of the Constitution.
A Supreme Court decision can also be reversed by a constitutional amendment, and this is precisely what has happened in a few instances. In this sense, it is the States and the people thereof who act as the final interpreter of the Constitution. Again, however, we must distinguish theory from practice and recognize the fact that only a handful of Supreme Court decisions have been overturned by the amendment process. In other words, the Supreme Court is also the final interpreter because the States and the people thereof usually let the Court’s decisions stand.
Being the final interpreter does not mean that the Supreme Court is the exclusive interpreter. Members of Congress and the President, who also take an oath of office to support the Constitution, must necessarily interpret its provisions in order to carry out their responsibilities. Congress does not debate in a constitutional vacuum. When a proposed bill is under consideration, the members must look beyond its desirability as a matter of public policy to the larger question of whether it conforms to the Constitution. Sometimes, in fact, they never reach the merits of legislation because of constitutional objections raised by its opponents. The constitutionality of laws is first tested in Congress, which means that members of the House of Representatives and the Senate ought to have an informed understanding of the Constitution in order to interpret and apply its provisions to proposed laws.
Likewise, the President is frequently called upon to interpret the Constitution in carrying out his executive duties. In the first place, he must decide whether to sign proposed legislation into law or whether to veto it and send it back to Congress. Here the laws of the land undergo a second constitutional test. If, in the judgment of the President, the law conflicts with the Constitution, he will often veto it strictly on constitutional grounds, without addressing its political, social, military, or economic policy objectives. In the second place, the President must execute and enforce the existing laws he has inherited from his predecessors. This involves more than a routine administration of the laws, for he must interpret the law for his subordinates and, as is often the case nowadays, direct them in drafting regulations for its enforcement. Congress does not always find it necessary or practical to include administrative details in its laws, and not infrequently allows executive agencies as well as independent regulatory commissions to “fill in the details” with administrative regulations. In performing this task, the President has the ultimate responsibility of making certain that these regulations do not violate the Constitution.
These are only a few examples to illustrate the interpretive roles played by Congress and the President. In the early Republic, when Congress was establishing a new government and sailing on uncharted seas, there was a great deal of constitutional debate in both houses. As time wore on and more and more issues were settled, the frequency and quality of constitutional debate declined somewhat. Still, the practice continues, as it must, and the discussion of constitutional issues as reported in the Congressional Record or in the committee reports of Congress can be highly instructive.
Presidential involvement in constitutional interpretation and debate is less extensive and frequent than congressional involvement, but not necessarily any less heated. Some Presidents, notably Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt, and more recently Presidents Ronald Reagan and George Bush, have publicly and vigorously challenged Supreme Court interpretations of the Constitution, but no President has refused to enforce one of its decisions. Objecting to a decision of the Marshall Court involving the Cherokee Indians in Georgia, President Jackson was rumored to have said: “John Marshall has made his decision. Let him enforce it.” There is no evidence that Jackson ever made that statement, however, or intended not to carry out the Court’s ruling. Roger B. Taney, Jackson’s Attorney General who later was appointed Chief Justice of the Supreme Court, explained Jackson’s position in a letter that reflects a proper understanding of the President’s interpretive powers:
He [Jackson] has been charged with asserting that he, as an Executive Officer, had a right to judge for himself whether an act of Congress was constitutional or not, and was not bound to carry it into execution if he believed it to be unconstitutional, even if the Supreme Court decided otherwise; and this misrepresentation has been kept alive for particular purposes of personal ill-will, and has, I learn, been repeated in the Senate during its late session. Yet no intelligent man who reads the message can misunderstand the meaning of the President. He was speaking of his rights and duty, when acting as a part of the Legislative power, and not of his right or duty as an Executive officer. For when a bill is presented to him and he is to decide whether, by his approval, it shall become a law or not, his power or duty is as purely Legislative as that of a member of Congress, when he is called on to vote for or against a bill. If he has firmly made up his mind that the proposed law is not within the powers of the general government, he may and he ought to vote against it, notwithstanding [that] an opinion to the contrary has been pronounced by the Supreme Court. It is true that he may very probably yield up his preconceived opinions in deference to that of the Court, because it is the tribunal especially constituted to decide the questions in all cases wherein it may arise, and from its organization and character is peculiarly fitted for such inquiries. But if a member of Congress, or the President, when acting in his Legislative capacity, has, upon mature consideration, made up his mind that the proposed law is a violation of the Constitution he has sworn to support, and that the Supreme Court had in that respect fallen into error, it is not only his right but his duty to refuse to aid in the passage of the proposed law. And this is all the President has said, and there was nothing new in this. For that principle was asserted and acted upon [by Jefferson] in relation to the memorable Sedition Law. That Law had been held to be constitutional by every Justice of the Supreme Court before whom it had come at circuit, and several persons had been punished by fine and imprisonment for offending against it. Yet a majority in Congress refused to continue the law, avowedly upon the ground that they believed it unconstitutional, notwithstanding the opinion previously pronounced by the judicial tribunals. But General Jackson never expressed a doubt as to the duty and the obligation upon him in his Executive character to carry into execution any Act of Congress regularly passed, whatever his own opinion might be of the constitutional question.
The States as Final Interpreters
Among the three branches of the Federal government, therefore, it is generally the case that the Supreme Court acts as final interpreter of the Constitution. Does the Court’s dominance in constitutional interpretation apply with equal force of State supreme courts? To State legislatures? To State governors? These issues seem to be settled nowadays, but during the first one hundred years of constitutional government in the United States they were a continuing source of disagreement and debate. From 1787 down to the Civil War, the nation was preoccupied with questions of State sovereignty and the nature of the Union. State challenges to Federal power were the common order of the day, almost the theme song, it would seem, of American politics in the early Republic.
From a reading of the Convention documents, The Federalist, and the Constitution, it was by no means clear what kind of Union the Framers had designed. The Federalist party, favoring an expansive or nationalistic interpretation, pointed to the Preamble of the Constitution as proof that sovereignty resided in “We the People,” not “We the States.” The several States, said Federalist leaders such as John Marshall, had surrendered their sovereignty to the national government. The Jeffersonian Republican-Democrats, favoring a narrow or States’ Rights interpretation, argued that the Union was a compact of States, each of which had retained the essential attributes of sovereignty. The Preamble refers to the “People” rather than the “States,” they countered, because at the time of the Federal Convention it would have been premature to speak for all of the States. Rhode Island had not sent any delegates to the Convention, and there was considerable uncertainty at the time whether all of the States would ratify the Constitution. There were elements of truth to both sides of the argument, of course, because ultimate sovereignty had been reserved neither to the “people” as such nor to the States alone, but to those who ratified the Constitution—“the States and the people thereof.”
The sentiment for State sovereignty and States’ Rights was a powerful force throughout the Union, but as time wore on it became increasingly sectional—North against South. The “irrepressible conflict” over the issue of slavery contributed substantially to this polarization, but there were other differences—cultural and economic—which contributed significantly to sectional estrangement. The first major dispute actually involved freedom of speech and press when members of the Republican Party, led by Thomas Jefferson and James Madison, challenged the constitutionality of the Alien and Sedition Acts. Passed by a Federalist-controlled Congress in 1798, the Alien and Sedition Acts were designed to limit the influence of political radicals, particularly newspaper editors and pamphleteers, who were espousing French revolutionary doctrines and allegedly encouraging subversive activities. The Federalists, alarmed by the military aggression of revolutionary France and the atrocities committed in the name of “Liberty, Equality, and Fraternity,” hoped through this legislation to prevent the spread of French radicalism to American shores.
Known collectively as the Alien and Sedition Acts, these measures consisted of four laws. The first three, directed in reality against French citizens, sought to limit the right of aliens to acquire U.S. citizenship. They authorized the President to expel aliens suspected of “treasonable or secret machinations against the government” and to apprehend them in case of war. The fourth law, outlawing seditious libel, made it a Federal crime to utter or print “false, scandalous or malicious” statements against the Federal government, either house of Congress, or the President, or to bring them into disrepute, stir up sedition, excite against them “the hatred of the good people of the United States,” or encourage “any hostile designs of any foreign nation against the United States.”
In response to the Alien and Sedition Acts, the States of Virginia and Kentucky passed resolutions declaring the Acts unconstitutional. The Virginia Resolutions of 1798 were drafted by James Madison and introduced in the Virginia legislature by John Taylor of Caroline. The Kentucky Resolutions, written by Thomas Jefferson (also of Virginia), were introduced in the Kentucky legislature by John Breckinridge.
Madison and Jefferson objected to the Alien and Sedition Acts on the grounds that they usurped the reserved powers of the States. Congress had no delegated power, they argued, over aliens residing under the jurisdiction and protection of State laws. By authorizing the President to expel such persons “without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without defense, [and] without counsel,” this legislation also denied persons their liberty without due process of law and their procedural rights under the Fifth and Sixth Amendments.
Objections to the Sedition Act stemmed from the fact that the Congress had no authority under the First Amendment to regulate speech and press, and Federal tribunals therefore had no jurisdiction over cases involving “libels, falsehoods, [or] defamation.” The authors of the Kentucky and Virginia Resolutions did not challenge the constitutionality of the statute because it limited freedom of speech and press, therefore, but because it invaded the reserved powers of the States. It was the right of the States to determine the scope and meaning of these freedoms. As the Tenth Amendment made clear, the States had retained “to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom. …”
Taken together, the Kentucky and Virginia Resolutions served as the well-spring for the development of the State sovereignty theory of the Union, a theory that became the point of reference for political and legal debate until 1865, when it was officially put to rest with the defeat of the Confederacy. The doctrines of Interposition, Nullification, and Secession that southern writers, lawyers, and politicians employed to justify resistance to Federal laws were derived from the Resolutions of ’98.
The doctrine of Interposition, articulated by Madison in the Virginia Resolutions, suggested that State officials had the right to “interpose” themselves between the Federal government and the people to protect the latter, and that such interposition was necessary to prevent the enforcement of oppressive laws. “[I]n case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact,” wrote Madison, “the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil.”
Going a step further, Jefferson argued in the Kentucky Resolutions that nullification by the States was the proper remedy for unconstitutional acts of Congress. The Federal government, he said, cannot be the judge of its own powers. The States are “sovereign and independent,” and for this reason “have the unquestionable right” to determine whether Federal laws are constitutional. The “rightful remedy,” he concluded, is “a nullification … of all unauthorized acts done under the color” of the Constitution. Later generations, led by John C. Calhoun of South Carolina, took these arguments to the conclusion that any State could nullify Federal laws or secede from the Union if necessary, since the Union was a voluntary compact of States that had retained their individual sovereignty.
From time to time State legislatures may and do express their views on constitutional questions in the form of resolutions and petitions to Congress. Though strongly worded, the Kentucky and Virginia Resolutions amounted to no more than a formal protest, based on the claim that the States have a right to offer their own interpretations of the Constitution and Federal laws. Neither Kentucky nor Virginia interfered with the enforcement of the Alien and Sedition Acts. The Kentucky Resolution acknowledged, in fact, “That although this commonwealth, as a party to the Federal compact, will bow to the laws of the Union, yet it does at the same time declare, that it will not now, or ever hereafter, cease to oppose in a constitutional manner, every attempt … to violate that compact.” Like Congress and the President, the Kentucky and Virginia legislatures, therefore, were merely claiming that they too had a right to interpret the Constitution, not that they had the right to be its final interpreter.
In one memorable instance, as we noted, a State supreme court did challenge the Supreme Court of the United States on a question of constitutional interpretation. This was the case of Martin v. Hunter’s Lessee in which Spencer Roane, the Chief Justice of Virginia’s highest court, argued that his court was not necessarily bound by Supreme Court precedents. Roane did not argue, however, that State courts were the final interpreters of the Constitution.
States’ Rightists obeyed the decisions of the Supreme Court, but they continued to reject the Court’s theory of the nature of the Union all the way down to the spring of 1865, when General Robert E. Lee, leader of the Confederate Army, surrendered at Appomattox, Virginia, to General Ulysses S. Grant, head of the Union forces. Thus in the final phase of this lengthy constitutional debate the issue was resolved on the battlefield, against the States. In Texas v. White (1869), the Supreme Court later declared that the States never possessed the right to secede from the Union, which is “indissoluble,” and that the State of Texas, like the other States of the Confederacy, had, from a constitutional standpoint, never left the Union. Strictly speaking, concluded the Court, the Confederate States had been in a state of insurrection during the Civil War, and had not achieved sovereignty or independence in a legal sense.
Although the Interposition, Nullification, and Secessionist doctrines were southern in origin, it should not be overlooked that there were faithful adherents to these principles of interpretation throughout the Union. To be sure, the first serious political movement toward secession occurred in New England at the Hartford Convention of 1815. Prominent New England Federalists, representing Massachusetts, Connecticut, Rhode Island, Vermont, and New Hampshire, convened in the city of Hartford, Connecticut, to air their grievances and consider remedial action. The Report and Resolutions adopted by the Convention reflected deep dissatisfaction with the policies of the Jeffersonian Republicans, the administration of President Madison and the War of 1812, and the dominant influence of the southern States in national affairs. The Hartford delegates complained about patronage, the Judiciary Act of 1801 abolishing certain Federal district courts, “the easy admission of naturalized foreigners to places of trust, honor and profit,” the anti-British and pro-French stance of the Republican Party, and “the admission of new States into the Union … [that] has destroyed the balance of power which existed among the original States, and deeply affected their interest.” Above all, they objected to the wartime commercial policies of the Republicans, which were injurious, they believed, to New England needs and interests.
To correct these problems, they proposed the adoption of seven constitutional amendments. Failing in that, they were prepared to consider more drastic action, and hinted at a possible withdrawal from the Union. If, said the Report, they were unsuccessful in getting the changes they wanted, “it will, in the opinion of this Convention, be expedient for the legislatures of the several States to appoint delegates to another Convention to meet in Boston.” When commissioners of the Convention arrived in Washington to present their Resolutions, however, they decided to abandon their mission after learning that the War of 1812 was over. The Hartford Convention thus came to nothing, and the New England States thereafter became reconciled to the Union.
The several States, notwithstanding their claims, have thus never established themselves as final interpreters of the Constitution, even to the point of secession. Like Congress and the President, their primary interpretive role, once the Supreme Court has spoken on the issue, has been to offer their own interpretations as mere recommendations, objections, or expressions of opinion.
Strict Versus Loose Construction
In addition to arguing that the several States have a role to play in constitutional interpretation, many advocates of limited constitutional government have also insisted that there should be a rule of interpretation which favors the States in cases involving the scope of Federal power. Since the earliest days of the American republic, there has been considerable concern that the Federal government, through a broad interpretation of its powers, might swallow up the reserved powers of the States.
Many of the powers delegated by the States to Congress, for example, are expressed in general terms and are susceptible to conflicting interpretations, most especially when the implied or “necessary and proper” powers are added to expand the enumerated power. As we saw earlier, the power of Congress “to regulate commerce among the several States” is open to a wide variety of interpretations. Does the word “regulate” include the right to prohibit? Does the word “commerce” mean just the goods themselves, or does it include as well the environment in which commerce moves, such as waterways or the airspace above a State? Does “commerce” include manufacturing, mining, and other activities prior to the time the goods are shipped? Does it include agriculture before harvest? Does it include individuals traveling from one State to another to visit relatives? Is the commerce power an exclusive power, or may the States in the absence of Federal laws regulate commerce passing through their territory?
These are the kinds of difficult issues that have confronted the Supreme Court from the beginning, often requiring the judges to define the limits of power. If the powers are defined broadly, the Federal government tends to benefit. A narrow definition restricting the scope of a Federal power usually works to the advantage of the States. Very early in our history, States’ Rightists in the Republican-Democratic Party, led by Thomas Jefferson, accused Chief Justice Marshall and many of the Associate Justices serving on the Court with him of a federal bias. They favored “strict” construction of the Constitution, whereas Marshall and other Federalists advocated a “loose” construction. The proper rule of interpretation, wrote St. George Tucker of Virginia in his American edition of Blackstone, was to interpret the Constitution strictly: “it is to be construed strictly, in all cases, where the antecedent rights of a State may be drawn into question.” That is to say, although the Constitution should not necessarily be interpreted narrowly in all respects, it should be strictly construed in those instances where the rights of the States were at stake and a power previously exercised by the State governments was in danger of being usurped by the Federal government. His reasoning was that the Union was a compact or written agreement among the States. Like a contract between two or more parties, the Constitution established rights and obligations. The “loose” construction of its terms would defeat the intent of the parties and was inconsistent with State sovereignty.
Similarly, Thomas Jefferson laid down two rules for the interpretation of the Constitution. His first rule of interpretation was to reserve to the States authority over all matters that affected only their own citizens: “The capital and leading object of the Constitution was, to leave with the States all authorities which respected their own citizens only, and to transfer to the United States those which respected citizens of foreign or other States; to make us several to ourselves, but one as to all others. In the latter case, then, constructions should lean to the general jurisdiction, if the words will bear it; and in favor of the States in the former, if possible to be so construed.”
The second rule of interpretation, said Jefferson, was to construe the Constitution as the Founding Fathers would have construed it: “On every question of construction, we should carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
John Marshall and his brethren on the Supreme Court were in basic agreement with Jefferson that the original intent of the Framers ought to govern. What divided the “strict” constructionists from the “loose” constructionists, therefore, was not whether the original meaning of the Constitution should be followed, but what the Framers intended.
The “loose” constructionists, enjoying strong support on the Supreme Court through Marshall, Story, and other Justices, tended to prevail. In such major cases as McCulloch v. Maryland (1819) and Gibbons v. Ogden (1823), the Court broadly interpreted the powers of Congress. By 1835, when John Marshall was succeeded by Roger B. Taney as Chief Justice, the Court had built a strong array of judicial precedents that strengthened its own position in relation to the other two branches of the Federal government, and also laid the foundation for future expansions of national power.
It would be erroneous to conclude, however, that the nationalism of the Marshall Court reached into every nook and cranny of the Constitution, eclipsing the reserved powers of the States wherever it went. By today’s practices, it was very limited. The principal gains of the national government were related to the commercial life of the young Republic, and the States continued to function as powerful, independent entities in public affairs. In the broad area of civil rights, for example, the Federal government had no major role to play—and would not for another century. In keeping with the original purpose and meaning of the Bill of Rights, a unanimous court, speaking through Chief Justice Marshall, held in Barron v. Baltimore (1833) that the Bill of Rights was designed to limit only the Federal government and did not apply to the States. Not until the adoption of the Thirteenth, Fourteenth, and Fifteenth amendments, otherwise known as the Civil War or Reconstruction Amendments, did the Federal government acquire much jurisdiction over civil rights disputes in the States. Even then, the main thrust of its involvement was the protection of the newly emancipated slaves in the post–Civil War era of Reconstruction and not such matters as freedom of speech and religion.
The States’ Rightists, resisting the Marshall court, viewed judicial nationalism with great apprehension, fearing that the practice of loose construction would set dangerous precedents and weaken the States. Although States’ Rights would later become a convenient peg upon which to defend the institution of slavery, the doctrine was rooted in the Federal Convention. And in the early days of the Republic, before slavery became a burning issue, States’ Rights was a constitutional theory that cut across sectional lines between the North and South. One of the leading States’ Rightists in the Federal Convention, we are reminded, was Elbridge Gerry of Massachusetts. The States’ Rightist from Virginia, George Mason, spoke against slavery and vigorously opposed it. States’ Rightists did not share the Federalists’ vision of a great empire reaching from the Atlantic to the Pacific. They had strong attachments and loyalties to their States, and generally distrusted centralized political power. The constitutional theories they advanced in support of strict interpretation were almost fully developed by the time Thomas Jefferson was elected President.
These differing constitutional theories of interpretation between the Nationalists and the States’ Rightists dominated American politics during the first century of the Republic. The Civil War (or War Between the States, as the southerners preferred to call it) was the end result of this constitutional quarrel. To a very large extent, the great military conflict that erupted between the North and the South in 1861 was fought over this basic question: what is the correct interpretation of the Constitution respecting the powers of the States and the national government? The Civil War answered this question in part by laying to rest the doctrines of Nullification and Secession. But it did not put an end to federalism or change the rules of constitutional interpretation. The basic principle that the Constitution should be strictly construed to reflect the original meaning of the words and text has found considerable support on the Supreme Court since the Civil War, just as the principle that it should be loosely construed has also enjoyed considerable—if not majority—support.
In the final analysis, it must be remembered that the question of interpretation is inevitably affected by politics. Ideally, the Constitution should be given a consistent interpretation. But as the Founding Fathers understood well, the temptations of office are often too great to expect a uniform adherence to principle in all situations. Those who possess political power may be inclined to favor a broad interpretation of the Constitution in order to carry out their programs, whereas those who are out of power may be inclined to argue for a narrow interpretation in order to block those programs.
The task of the principled statesman and judge is to resist those temptations and consistently defend the proper interpretation of the Constitution—even when it results in the advancement of a particular social, economic, or political policy that he personally opposes. But perhaps too few public leaders are willing to put principle ahead of personal gain or partisanship. This is not to suggest that those who argue for a particular interpretation in any given situation may be insincere, but merely to put the student on notice that, in order to evaluate a constitutional interpretation fairly and honestly, he should judge it on its own merits and not by the policy it promotes. Principled constitutionalism is resisting the temptation to twist the meaning of the Constitution to suit a particular political goal, no matter how worthy, and letting the chips fall as they may.
The Independence of the Judiciary
Although we do not ordinarily associate judicial interpretation with judicial independence, the two practices are so closely related as to be made of the same cloth. The basic purpose of granting independence to any judicial body is to shield it from political interference and intrigue emanating from the legislative or the executive branch, so that it may reach a fair and impartial decision. By following intelligible, reasonable, and uniform rules of interpretation, the judiciary in turn assures the other branches that it is performing its function properly. To put it another way, there would be no justification for an independent judiciary if the judges habitually deferred to the legislature in every case or always bowed to the wishes of the executive.
Nor would their independence seem warranted if the judges ruled arbitrarily and continually fabricated new “rules” of interpretation to suit their personal policy preferences. If that were the case, they might just as well be elected to office and held directly accountable to the people for their actions. In many States today, judges are in fact elected to office. This practice of electing judges dates back to the Populist and Progressive movements of the late nineteenth and early twentieth centuries, when it was widely believed in certain States that too many judges had become corrupt, had ceased to be neutral administrators of justice, and had therefore forfeited the right to be independent. The practice of electing judges has not proved to be entirely satisfactory, however, owing to the fact judges running for office may be inclined to curry the favor of special interest groups in order to raise campaign funds, or may feel obliged to compromise principle and rule of law in order to satisfy a passionate majority and please the electorate.
Attempts to amend the Constitution to provide for the election of Federal judges have met with little or no success, and the independence of the Federal judiciary seems well established. It has not been immune from criticism, however, and throughout much of its history, especially in modern times, the Supreme Court has been accused of manipulating its own rules of interpretation and imposing upon the Constitution its own philosophy of government. This is the basis of allegations that the Court is engaged in “judicial activism,” the assumption being that the Court should exercise “judicial restraint” and adhere more closely to fixed rules of interpretation and the original meaning of the Constitution.