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PART 6: Interpreting and Preserving the Constitution - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


PART 6

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.

A.

ORIGINS OF JUDICIAL INDEPENDENCE

Although the judiciary was clearly a separate branch of government in England by the Middle Ages, it was not until the latter part of the seventeenth century that it achieved lasting independence. Much of the credit for the establishment of an independent judiciary (and Parliament) goes to Sir Edward Coke, or Lord Coke as he was known by his contemporaries. Coke, we will recall, was Queen Elizabeth’s Attorney General and Chief Justice of both the Court of Common Pleas and the Court of King’s Bench under James, first Stuart King of England.

A handsome country gentleman with considerable wealth, Coke was the personification of English law. On the courtroom floor, he could be raucous, witty, and ruthless. As Judge and as Speaker of the House of Commons, he risked his life for principles that are now embodied in our Constitution: a prisoner’s right to public trial and the writ of habeas corpus, the right of the accused against self-incrimination in a court of law, and the right not to be jailed without cause shown. When Coke was seventy, James I imprisoned him in the Tower of London for championing these rights, complaining that “he had become an oracle amongst the people.” In 1628, at the age of seventy-six, Coke led the fight in Parliament for the Petition of Right. “Sir Edward Coke never set foot on American soil,” observed Catherine Drinker Bowen in her biography of this legal giant. “Yet no United States citizen can read his story without a sense of immediate recognition. In these parliamentary struggles, knights, citizens and burgesses fought not for themselves alone but for States as yet unformed: Pennsylvania, Virginia, California. In Westminster courtroom battles over procedure, jurisdiction, ‘right reason and the common law,’ constitutional government found its way to birth. When the time came we changed the face of this English constitution; amid the sound of guns we repudiated what we hated, adapted what we liked. Yet the heritage endured.”

The famous Case of Commendams, a jurisdictional dispute involving the power of the King to grant ecclesiastical offices, illustrates the courage of Lord Coke in defending the principle of judicial independence. In June of 1616, King James I summoned the common law judges to his Whitehall palace (now the headquarters of the British bureaucracy). He was angry with them because, in defiance of his command to halt the proceedings of the case, the judges had refused. In a letter to the King, drafted by Coke, the judges had explained that their oaths of office compelled them to go ahead with the trial. They now stood before the King, trembling in fear of their lives. With a violent gesture, James ripped the letter in half. All twelve judges fell on their knees and begged humble pardon. The “form” of their letter, they confessed, had been wrong.

But Chief Justice Coke remained true to his convictions. Still on his knees, he raised his face to the King. “The stay required by your Majesty,” he said, “was a delay of justice and therefore contrary to law and the Judges’ oath.” “Mere sophistry,” bellowed the King. As the Judges cowered at his feet, James asked each Judge what he would do if the King ever again told the Court to stay proceedings. Each replied that he would do “as His Majesty commanded.”

When at last the King turned to Coke and asked him what he would do, the Chief Justice answered: “He would do that should be fit for a Judge to do.” It was a statement never to be forgotten, and because of it, Coke was removed from office. It was ambiguous enough to save his head, however, and in time he was vindicated. By the end of the seventeenth century, the judges had achieved full independence, and the English Judiciary today, though considerably less powerful than its American counterpart, is no less independent.

It was often difficult for early American judges to retain their independence also, especially in the period immediately following the American Revolution. Violations of judicial independence occurred not at the national level, for there were no national courts under the Articles of Confederation. Rather, they occurred under the new State constitutions first adopted in 1776, which were influenced in varying degrees by the principle of legislative supremacy. What early State court judges often feared was not the encroachment of the executive branch, for the office of governor was usually weak. The principal threat to judicial independence was the powerful legislative assembly.

Ignoring the concept of separation of powers, State legislatures sometimes treated State courts as mere agencies of the legislature, as if they were personally accountable to the legislators. Committees of the legislature might summon judges and interrogate them. Occasionally, legislatures actually interfered with court proceedings, reversed court decisions, reduced the judges’ salaries, and removed judges arbitrarily from office because of disagreement with their views. As late as 1808–1809, in Ohio, three supreme court justices, three presiding judges of the Court of Common Pleas, all of the associate justices of the courts of Common Pleas (more than 100 in number), and all of the justices of the peace were removed from their offices by a single resolution of the legislature.

Much of this was attributable to democratic excesses. The will of the people in many instances was considered omnipotent, and the legislature was simply carrying out the popular will. Hence, a number of early State legislatures did not hesitate to interfere with the traditional functions of the courts. During Shays’ Rebellion in 1786, people in Massachusetts prevented the courts from functioning and demanded that all inferior courts be abolished. Similar notions were advanced in New Hampshire in the early Republic. In Vermont, courthouses were set afire; and in New Jersey debtors nailed up the doors of courthouses and irate mobs attacked lawyers and judges in the streets.

The Framers of the Federal Constitution, profoundly alarmed by these developments, endeavored to provide the nation with a truly independent judiciary at the Federal level. But we may ask: independent of whom? The answer is not as easy as it might appear, for the independence of the Federal courts is not absolute. The Federal Judiciary, like Congress and the President, is a part of our separation of powers and checks and balances system. Congress and the President not only have certain powers to “check” the Judiciary, but also share with the Supreme Court the right and the duty to interpret the Constitution. The arrangement carefully constructed by the Framers is a complicated one, often misunderstood and in need of careful examination if we are to understand the role of the courts in our political system.

In general, Federal judges are independent of Congress, the President, the States, and the people. Strictly speaking, however, their independence is limited. They are not self-appointed, and most of the power they exercise is conferred by Congress. Article II, Section 2 of the Constitution authorizes the President, by and with the consent of the Senate, to appoint “Judges of the Supreme Court and all other officers of the United States.” Members of the Supreme Court and all Federal judges who sit on a lower Federal court that exercises the judicial power under Article III of the Constitution are thus classified as “Officers of the United States.” They are informally known as “Article III” judges and the courts upon which they sit are called “constitutional” courts because they deal with issues arising under the Constitution.

These distinctions are necessary to avoid confusion with other kinds of Federal judges who serve on other kinds of Federal courts. Referring back to Article I, Section 8 of the Constitution, which enumerates the delegated powers of Congress, we note that Clause 9 authorizes Congress “To constitute Tribunals inferior to the Supreme Court.” Congress has frequently exercised this power to create “legislative” courts, such as territorial courts and the U.S. Court of Military Appeals. The President appoints the judges to these courts, but Senate confirmation is not mandatory and the judges do not enjoy the same degree of independence as Article III judges. Instead of serving “during good behavior,” for example, they serve for specified terms and then must leave office when their term expires. Their responsibility is to carry out the will of Congress, not to exercise the judicial power.

It may thus be seen that both the President and one branch of the legislature decide who shall sit on a constitutional court. Once the appointment has been agreed to by the Senate, however, the President ceases to have any direct control over the personnel of the Judiciary.

Whereas judicial independence of the executive is considerable, we find that the Federal Courts are potentially at the mercy of Congress. Primary control of the Judiciary rests with Congress, and its powers over the Courts are far-reaching. We noted earlier that if Congress had the will to do so, it could constitutionally reduce the entire Federal Judiciary down to one judge—the Chief Justice of the Supreme Court—leaving the Supreme Court virtually powerless. This has never happened, of course, but it should be borne in mind that the Framers of the Constitution gave Congress sufficient power to check an arrogant judiciary.

In the first place, it is Congress, not the Constitution, which creates the Federal Judiciary. Article III, Section 1 provides simply that “The Judicial power of the United States shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” By these words, the Supreme Court is the only Federal Court that is required by the Constitution. Congress is free to create whatever lower Federal courts it pleases, and it may even abolish those already in existence. This first occurred in 1801, when the Jeffersonian Republicans abolished a number of Federal district courts that the administration of John Adams had established and packed with loyal Federalist party members.

Having once created the courts, Congress decides how many courts and judges there shall be, where they shall be located, what their salaries and administrative expenses shall be, what their duties shall be, and most importantly, what powers they shall exercise. Congress even has a voice in who shall be appointed to these courts and has sole authority in deciding who shall be removed.

With respect to the number of Federal judges we shall have, and what their qualifications shall be, the Constitution is silent. We know only that there must be a Supreme Court, because it is named in Article III, and that we must have a Chief Justice, because he is specifically mentioned in Article I, Section 3 as the officer who must preside over the impeachment trial of the President. During the course of American history, Congress has authorized as few as five and as many as ten Justices of the Supreme Court. For more than a century the number has remained constant at nine, including the Chief Justice. Today, the number of inferior Federal judges, also determined by statute, exceeds 700.

To protect the independence of the judges, Article III, Section 1 further provides that they shall serve during good behavior, and that Congress may not reduce their salaries while they are in office. The term “good behavior,” inherited from the English Constitution, means—in practical terms—for life or as long as the judge wishes to serve since Federal judges have been removed from office only through the impeachment process. Although a number of inferior Federal judges have been impeached and convicted—the most recent being in 1986—no member of the Supreme Court has ever been removed by this method. Justice Samuel Chase was impeached in 1805, but the Senate failed to convict. However, at least one member of the Supreme Court—Justice Abe Fortas—resigned rather than face impeachment proceedings.

On what grounds may a Federal judge be impeached? The Constitution is not clear on this point. On the one hand, Article II, Section 4 states that “all civil officers” may be removed if they are impeached and convicted of treason, bribery, or other high crimes and misdemeanors. Since Federal judges are civil officers, it would seem to follow that the impeachment clause applies to them. The term “high crimes and misdemeanors” is also vague and undefined. In England, it comprehended criminal conduct as well as that not constituting an indictable offense, such as maladministration or abuse of office. The Senate apparently followed this interpretation during the trials of two Federal judges in this century who were convicted on articles of impeachment which charged them with misconduct that did not amount to a violation of a criminal statute. The argument has been made in other impeachment trials, however, that to be impeachable, the conduct complained of must constitute an indictable offense.

On the other hand, it has also been argued that Federal judges may be removed by means other than impeachment. They serve only during “good behavior,” and it is therefore open to Congress to define “good behavior” and establish a mechanism by which judges may be removed. By this reasoning, Congress could remove Federal judges either by impeachment (for high crimes and misdemeanors) or by some other method (for “bad” behavior). Legislation has frequently been introduced to effect this idea since the 1930s, but it has never passed. All the same, Congress has adopted legislation which authorizes a judicial conference to discipline and incapacitate inferior Federal judges. The Supreme Court has declined to rule on the constitutionality of this procedure, which allegedly conflicts with the separation of powers. Whether Federal judges may be removed by a non-impeachment method is indeed a question of considerable interest that could ultimately place the Supreme Court in the awkward position of having to rule on its own tenure.

By prohibiting Congress from reducing the salaries of Federal judges, the Framers sought to protect them from retribution and revenge for handing down unpopular opinions, and to discourage legislative interference while a case was in progress. An angry Congress bent upon punishing a judge or group of judges financially can at best freeze the salaries of all the judges—an unsatisfactory and indiscriminate means of judicial control that has rarely been advocated. Designed to secure the independence of the judges, the prohibition against the diminution of judicial salaries has presented little controversy or litigation. Congress is also prohibited from reducing the salary of the President while he is in office, but unlike the Judiciary, Congress cannot increase it either.

B.

THE JUDICIAL POWER

The independence of the Judiciary with respect to the powers it exercises is substantially limited, however, by federalism and the check and balance system of the Constitution. Section 1 of Article III states that the “judicial power” of the Federal government shall be vested in the Federal courts, and Section 2 of Article III lists the kinds of cases or controversies in which this power may be exercised. There are nine such classes of cases: (1) Cases arising under the Constitution, under a Federal law, or under a treaty; (2) cases affecting ambassadors, other public ministers, and consuls; (3) cases of admiralty and maritime jurisdiction; (4) controversies between two or more States; (5) controversies between a State and citizens of another State; (6) controversies between citizens of different States; (7) controversies between citizens of the same State claiming land under grants of different States; (8) controversies between a State and a foreign citizen; and (9) controversies between an American citizen and a foreign citizen. Taken literally, Section 2 would seem to say that the judicial power also extends to controversies between a State or citizen thereof and a foreign State. Under established principles of sovereignty and the law of nations, however, a foreign State cannot be sued without its consent. Thus, Mexico would be immune from a suit filed by the State of Texas or a citizen thereof. As a result of the Eleventh Amendment, which shall be examined later, this immunity also works in reverse, and the State of Texas would be immune from a suit filed by a citizen of Mexico.

Another way of understanding what kinds of cases the Federal courts are empowered to hear is to divide them into two categories: (1) the nature of the dispute; (2) the parties to the dispute. Under this first category fall cases arising under the Constitution, a Federal law or treaty, cases arising under admiralty and maritime jurisdiction, and cases involving title to land that is claimed because of land grants of two or more States. The second category, based on the parties to the dispute, covers cases in which the United States government is a party, cases in which a State is a party, cases in which the parties are citizens of different States, and cases that affect foreign ambassadors, ministers, and consuls.

The Constitution speaks of the “judicial power,” but the term is nowhere defined. What did the Framers mean when they conferred the “judicial power” of the United States on the Federal courts? In answering this question, it is important to understand the difference between authority and power. In general, the authority to act is the right to act, whereas the power to act is the capacity to do so. Thus a policeman may have the power or capacity to conduct a search,but whether he has the authority or right to take such action often depends upon whether he has obtained a valid search warrant.

The judicial power, as explained by the Supreme Court, is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” It should not be confused with the “jurisdiction” of a court, which is the authority of a court to exercise “judicial power” in a particular case. If a court lacks jurisdiction over a case, then it cannot exercise judicial power and decide the case. In other words, the scope of the judicial power is limited by the jurisdictional requirement.

A careful reading of Article III of the Constitution reveals that the judicial power is limited in a number of ways. First, it is limited by federalism. The Federal judicial power can be exercised only in certain kinds of cases, not in every conceivable type of dispute that may come before a tribunal. If, for example, one citizen of Kentucky sues another citizen of Kentucky for wrongful injury (tort), the aggrieved party can bring an action to require the other party to pay damages. He would be required to sue in a Kentucky State court, however, because the Federal judicial power does not extend to controversies between citizens of the same State where the dispute involves negligent conduct. As a general rule, therefore, private disputes between citizens of the same State are reserved to the State courts. This is one reason why most cases are decided in the State rather than the Federal courts.

Bearing in mind that there were no national courts under the Articles of Confederation, the Framers were careful to extend the Federal judicial power only to those kinds of cases in which the national interest was at stake, or in those where the States had delegated their powers to the Federal government. These would include cases where a State court decision might interfere with a treaty or the conduct of foreign relations, where it might produce hostility or even armed conflict among the States and disrupt the Union, where uniform rules were needed to facilitate trade and commerce, where the States were unable to act, and where a Federal forum was needed for the convenience of the parties or a just resolution of the dispute. At the risk of oversimplification of these complex matters, it may be said that the judicial power reserved to the States under Article III corresponds roughly to the power reserved to the States elsewhere in the Constitution, and that the Federal judicial power, which is designed to protect the national interest, is derived from and closely relates to the delegated powers of Congress and the powers of the President.

The principle of federalism also serves to limit the Federal judicial power in another way. The fact that the Constitution grants power to the Federal courts in certain types of cases does not, of itself, exclude State courts from exercising concurrent jurisdiction. Congress, as we shall see, is free to make the jurisdiction exclusive or concurrent. Under present law, for example, the Federal courts have exclusive jurisdiction in cases involving patent and copyright laws; but their jurisdiction is concurrent in cases where the parties are citizens of different States. We noted earlier that the State courts would have exclusive jurisdiction in a dispute between two citizens of Kentucky over a case involving personal injury. What is the rule if one of the parties is a citizen of Kentucky and the other party is a citizen of Indiana, in light of the provision in Article III stating that the judicial power shall extend to cases in which the parties are citizens of different States? Congress has decided, by statute, that in diversity of citizenship cases, the case may be decided by the Federal courts or the State courts if the dispute involves more than $10,000, and that if the sum is less, it shall be tried in the State courts.

The power of Congress to regulate and control the Federal courts, it may thus be seen, is formidable. The judicial power is not self-executing and generally may not be exercised unless Congress has enacted a law authorizing Federal courts to take jurisdiction. 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. In brief, the responsibility of limiting the power of the Federal Judiciary under our checks and balances system rests primarily with the Congress; and this is accomplished by the second clause of Article III, Section 2, which authorizes Congress to regulate the jurisdiction of the Federal courts.

C.

JURISDICTION

Whereas the first clause of Section 2 in Article III speaks of the judicial power, the second clause refers to jurisdiction: “In all cases affecting Ambassadors, other Public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have Original Jurisdiction. In all other cases before mentioned, 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.”

This is an important provision of the Constitution deserving careful study. It may be observed at the outset that the Supreme Court shall have two kinds of jurisdiction: original and appellate. Original jurisdiction is the power to hear and decide a case in the first instance. Unlike appellate jurisdiction, it flows directly from the Constitution, is self-executing, and does not depend upon an act of Congress. The Supreme Court’s original jurisdiction is not significant. It applies to only two classes of cases, and it is not exclusive. Since 1789, inferior Federal courts have had concurrent jurisdiction in some instances under these two classes of cases. But Congress cannot increase or decrease the original jurisdiction of the Supreme Court.

The appellate jurisdiction of the Supreme Court, applying to the other classes of cases, authorizes the Court to hear cases on appeal. By statute, the Court has been authorized since 1789 to hear appeals from lower Federal courts and from the highest State courts. The Supreme Court’s appellate jurisdiction is subject to “exceptions and regulations” prescribed by Congress. Noting that this power is complete and unqualified, the Supreme Court has always taken it for granted that Congress could, if it so desired, withhold all appellate jurisdiction, thereby making lower Federal courts or the State supreme courts the courts of last resort. “By the Constitution of the United States,” said the Court in one opinion, “the Supreme Court possesses no appellate power in any case, unless conferred upon it by act of Congress.” In order for a case to come within its appellate jurisdiction, the Court has stated, “two things must concur: the Constitution must give the capacity to take it, and an act of Congress must supply the requisite authority.” Moreover, “it is for Congress to determine how far, within the limits of the capacity of this Court to take, appellate jurisdiction shall be given, and when conferred, it can be exercised only to the extent and in the manner prescribed by law. In these respects it is wholly the creature of legislation.”

The power of Congress to regulate the appellate jurisdiction of the Supreme Court is so broad that in one instance—the case of Ex parte McCardle (1868)—the Congress actually repealed the act which authorized the appeal in the case, thereby withdrawing jurisdiction while the case was being decided. Numerous restrictions on the Court’s appellate jurisdiction have been upheld since the earliest days of the Republic. For a hundred years, for example, Congress refused to provide for a right of appeal to the Supreme Court in Federal criminal cases, except upon a certification of division by the circuit court. By and large, however, the Congress has been extremely reluctant to limit the Court’s jurisdiction, and the general pattern of legislation over the years has reflected a desire to expand rather than decrease it.

Hence, much of the power presently enjoyed by the Supreme Court may be attributed to a friendly Congress. Efforts in Congress, particularly since the Second World War, to withdraw the Court’s jurisdiction in cases involving such controversial issues as abortion and prayer in the public schools have failed to gain majority support. Though Congress has the power, therefore, to strip the Court of all of its appellate jurisdiction, it has never withdrawn a meaningful portion of it. The tendency has been to give the Court almost all of the appellate jurisdiction it can take, and to let the Court retain it once it has been granted. Congressional control of the Federal Judiciary, in other words, is more a question of theory than of practice.

This brings us finally to the jurisdiction of the lower Federal courts. The second clause of Article III, Section 2 refers to the original and appellate jurisdiction of the Supreme Court, but makes no mention of inferior Federal courts. What type of jurisdiction may they possess, and to what extent may Congress regulate their jurisdiction? The answer to these questions lies in the first clause of Article III, Section 2, which authorizes Congress to create such courts. The thought that it would not be necessary to create any inferior courts was expressed in the Philadelphia Convention. Since State judges were bound under Article VI to uphold the supremacy of the Constitution, Federal laws and treaties—irrespective of what their State constitutions might require—the possibility was raised of letting the State courts handle all Federal cases. The first Congress rejected this option, however, in the Judiciary Act of 1789. This legislation organizing the Federal Judiciary, it should be noted, is one of the most important statutes ever enacted by Congress, and provides to this day much of the basic organizational and procedural structure of the Federal judicial system.

The power to create includes the power to destroy, and Congress has always acted under the assumption that it therefore has the lesser power of shaping the jurisdiction of all inferior courts as it sees fit. The Supreme Court has generally sustained this view, and Congress may confer or withhold both original and appellate jurisdiction in the lower Federal courts at its discretion. As the Supreme Court explained in Cary v. Curtis (1845), “the judicial power of the United States, although it has its origin in the Constitution, is (except in enumerated instances applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, which possesses sole power of creating tribunals (inferior to the Supreme Court), for the exercise of the judicial power, and of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.”

Over the years, the Congress has determined the times and places for holding court (including the Supreme Court), times of adjournment, appointment of officers, issuance of writs and methods of appeal, and other matters relating to the administration of justice. Congress has also organized the nation into various judicial districts, or circuits as they are called, and today there are eleven such circuits, each encompassing a group of States in a particular region, plus the District of Columbia. Within these circuits are numerous Federal district courts. These are trial courts of original jurisdiction, where juries are used. An appellate court stands at the head of each circuit. Formerly called circuit courts, they are now known as U.S. Courts of Appeal. Most appeals to these courts come from the U.S. district courts. Most appeals to the Supreme Court emanate from the U.S. Courts of Appeal and the State supreme courts.

On the basis of the foregoing discussion, it would seem that the principle of judicial independence under the Constitution applies more to the individual judges than to the judicial branch as such. Members of the Federal bench, in terms of salary and tenure, are virtually immune from legislative or executive control; but the Judiciary itself is subject to far-reaching regulations of the Congress. Thus, the independence of the Judiciary, like the independence of the Congress and the independence of the President, is far from absolute and is generally understood to exist within the separation of powers and checks and balances framework.

In the final analysis, it may be seen that the idea of an independent judiciary went hand-in-hand with the idea of a written Constitution. Federal judges, sworn to uphold the supremacy of the Constitution rather than the supremacy of the legislature, would serve as guardians of the Constitution, protecting it from subversion by the political branches. This they would do through their inherent power, as judges, to interpret and apply laws adopted by Congress and the States. As interpreters, their task was simply to interpret the laws in the light of the Constitution. Although judicial precedents might later serve as a guide to correct interpretation, their ultimate standard, particularly in the early years, was the Constitution itself—its underlying principles, wording, and text.

By this mode of reasoning, Federal judges would have very little discretionary authority. It was not their responsibility to make the law, as that would be done by State and Federal legislatures. It was not their job to execute and enforce the law, for that function would be performed by the Chief Executive. Their sole task was to interpret the laws in cases or controversies presented to them for resolution, to determine the intent and meaning of the laws and weigh them against the intent and meaning of the governing constitutional provisions applicable to the situation. It was to be almost a mechanical function—to “discover” the law of the case, not to make it.

To do this fairly and objectively, it would be necessary to remove the judges from politics and give them independence of action. Through the judges, it was said, the voice of the people sober would speak to the warring factions drunk with power.

Such was the limited role of the Supreme Court envisioned by the Framers. Americans had little to fear, Hamilton assured the nation in The Federalist, from so weak an institution. The members of the Supreme Court would not be free, as the Anti-Federalists charged, to roam at will, invoking their personal biases and secret preferences in the name of some vaguely conceived “spirit” of the Constitution. Nor would they subvert the “common sense” of the Constitution by masking their interpretations in hypertechnicalities. “[T]he natural and obvious sense of its provisions, apart from any technical rules,” said Hamilton, “is the true criterion of construction.”

Writing in Federalist No. 81, Hamilton asserted that “there is not a syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect, than may be claimed by courts of every State.” It was clearly understood “that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution. But this doctrine is not deducible from any circumstance peculiar to the plan of the convention, but from the general theory of a limited constitution.” It would thus seem, he concluded, “that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.” Should the judges get out of hand, there were ample means through the checks and balances system to restore constitutional government. In the first place, judges could be removed by “the important constitutional check” of impeachment. And in the second place, the Supreme Court’s appellate jurisdiction was subject to legislative control, and “this will enable the government to modify it in such a manner as will best answer the ends of public justice and security.”

SUGGESTED READING

  • Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1980).
  • Elizabeth K. Bauer, Commentaries on the Constitution, 1790–1860 (New York: Russell and Russell, 1952).
  • Raoul Berger, Government by Judiciary. 2nd ed. (Indianapolis: Liberty Fund, 1997).
  • James E. Bond, The Art of Judging (New Brunswick, N. J.: Transaction Books, 1986).
  • Robert K. Faulkner, The Jurisprudence of John Marshall (Princeton: Princeton University Press, 1968).
  • Charles Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: University Press of Kansas, 1996).
  • Charles Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963).
  • Charles Hyneman and George W. Carey, A Second Federalist: Congress Creates a Government (Columbia: University of South Carolina Press, 1967).
  • David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville: University of Virginia Press, 1994).
  • James McClellan, Joseph Story and the American Constitution (Norman: University of Oklahoma Press, 1971, 1990).
  • Gary McDowell, The Constitution and Contemporary Constitutional Theory (Cumberland, Va.: Center for Judicial Studies, 1985).
  • Gary McDowell, Curbing the Courts (Baton Rouge: Louisiana State University Press, 1988).
  • Gary McDowell, Equity and the Constitution (Chicago: University of Chicago Press, 1982).
  • James Madison, The Virginia Report of 1799–1800 (New York: DaCapo Press, 1970).
  • R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985).
  • Clinton Rossiter, Alexander Hamilton and the Constitution (New York: Harcourt, Brace & World, 1964).
  • Ralph Rossum, Congressional Control of the Judiciary: The Article III Option (Cumberland, Va.: Center for Judicial Studies, 1988).
  • Joseph Story, Commentaries on the Constitution. 3 vols. (Boston: Hilliard, Gray & Co., 1833). See also Story’s one-volume abridgment of this work, designed for classroom use, entitled A Familiar Exposition of the Constitution of the United States (Washington, D.C.: Regnery Gateway, 1986).
  • John Taylor of Caroline, Construction Construed and Constitutions Vindicated (New York: DaCapo Press, 1970).
  • Abel P. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (New York: DaCapo Press, 1971).
  • Christopher Wolfe, The Rise of Modern Judicial Review (New York: Basic Books, 1986).

APPENDIX A

Marbury v. Madison

1 Cranch 137 (1803)

The elections of 1800 brought a defeat to the Federalists from which they never recovered. President Adams, however, did not leave office until March 1801. In a last-minute attempt to retain influence in the Judiciary after leaving office, the Federalists passed the Judiciary Act of February 13, 1801, which created six new circuit courts with 16 new judgeships. The Act also reduced the size of the Supreme Court from six to five in the hope that Thomas Jefferson, the incoming President, would be denied the opportunity to appoint a loyal Republican to the high bench. Two weeks later Congress passed another act to allow President Adams to appoint for the District of Columbia for five-year terms as many justices of the peace as he thought necessary.

Working right up until midnight of March 3, the day before Jefferson was to be inaugurated, Adams endeavored to fill the newly created vacancies before the clock struck twelve. Among the judicial appointments he made during the closing weeks of his administration was that of John Marshall to be Chief Justice of the United States. Marbury was one of those whom Adams had appointed to the office of justice of the peace, but time ran out before Marbury’s commission could be delivered. The individual responsible for delivering the commission was John Marshall himself, who, notwithstanding the separation of powers principle, was still serving as Secretary of State (in spite of his judicial appointment).

Upon taking office, President Jefferson promptly took steps to gain the repeal of the Judiciary Act of 1801, which he accomplished on March 8, 1802. As for Marbury, Jefferson simply instructed his new Secretary of State, James Madison, to withhold Marbury’s commission. Thereupon Marbury filed suit asking the Supreme Court, under its original jurisdiction, to issue a writ of mandamus (an order commanding performance of a specific duty) to compel Madison to give him his commission.

Mr. Chief Justice Marshall delivered the opinion of the Court, saying in part:

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st. Has the applicant a right to the commission he demands? … [The Court finds that he has.]

2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? … [The Court finds that they do.]

3rd. If they do afford him a remedy, is it a mandamus issuing from this court? …

This, then, is a plain case of a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the Supreme Court “to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

The Secretary of State, being a person holding an office under the authority of the United States, is precisely within the letter of the description, and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

The Constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as Congress shall, from time to time, ordain and establish. …

In the distribution of this power it is declared that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” …

If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, … the distribution of jurisdiction, made in the Constitution, is form without substance. …

It cannot be presumed that any clause in the Constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it. …

To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. …

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court, by the Act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the Constitution; and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.

The question, whether an Act repugnant to the Constitution can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative Act repugnant to it; or, that the legislature may alter the Constitution by an ordinary Act.

Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative Acts, and, like other Acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative Act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an Act of the Legislature, repugnant to the Constitution, is void.

This theory is essentially attached to a written Constitution, and, is consequently, to be considered, by this court, as one of the fundamental principles of our society. It is not therefore to be lost sight of in the further consideration of this subject.

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? Or, in other words, though it be now law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

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 which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written constitutions. It would declare that an Act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislatures shall do what is expressly forbidden, such Act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.

The judicial power of the United States is extended to all cases arising under the Constitution.

Could it be the intention of those who gave this power, to say that in using it the Constitution should not be looked into? That a case arising under the Constitution should be decided without examining the instrument under which it arises?

This is too extravagant to be maintained.

In some cases, then, the Constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey?

There are many other parts of the Constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any State.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the Constitution, and only see the law?

The Constitution declares “that no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve?

“No person,” says the Constitution, “shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

Here the language of the Constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative Act?

From these, and many other selections which might be made, it is apparent, that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as—, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.”

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that Constitution forms no rule for his government—if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

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 rule must be discharged.

APPENDIX B

Martin v. Hunter’s Lessee

1 Wheaton 304 (1816)

Lord Fairfax, a Loyalist residing in Virginia who fled to England during the American Revolution, died in 1781. He willed a vast tract of land in northern Virginia to his nephew, Denny Martin, a British subject. Virginia confiscated the property under a special law passed after the death of Fairfax; and the common law of Virginia also forbade enemy aliens to inherit land.

Virginia thereupon sold part of the land to David Hunter in 1789. Litigation began in 1791 for the recovery of the property, and finally in 1810 the Virginia court of appeals sustained Hunter’s title to the land. In 1813, however, the Supreme Court reviewed the case and held that, under the Treaty of 1794 with England, all British-owned property in the United States, including Denny Martin’s, was protected from confiscation. In open defiance, the Virginia court of appeals declared that Section 25 of the Judiciary Act of 1789, which authorized the Supreme Court to review State court decisions, was unconstitutional.

Mr. Justice Story delivered the opinion of the Court, saying in part:

This is a writ of error from the Court of Appeals of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this very cause, at February Term, 1813, to be carried into due execution. The following is the judgment of the Court of Appeals rendered on the mandate: “The court is unanimously of opinion, that the appellate power of the Supreme Court of the United States does not extend to this court, under a sound construction of the Constitution of the United States; that so much of the 25th section of the Act of Congress to establish the Judicial Courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in pursuance of the Constitution of the United States; that the writ of error in this cause was improvidently allowed under the authority of that Act; that the proceedings thereon in the Supreme Court were coram non judice, in relation to this court, and that obedience to its mandate be declined by the court.”

The questions involved in this judgment are of great importance and delicacy. Perhaps it is not too much to affirm that, upon their right decision, rest some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution itself. …

Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the Bar.

The Constitution of the United States was ordained and established, not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the people of the United States.” There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the State governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The Constitution was not, therefore, necessarily carved out of existing State sovereignties, nor a surrender of powers already existing in State institutions, for the powers of the States depend upon their own constitutions; and the people of every State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the State governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.

These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles in amendment of the Constitution, which declares, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

The government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not to be restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.

The Constitution, unavoidably, deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interest should require.

With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the Constitution, so far as regards the great points in controversy.

The third article of the Constitution is that which must principally attract our attention. …

This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the Constitution to the Supreme Court in all cases where it has not original jurisdiction, subject, however, to such exceptions and regulations as Congress may prescribe. It is, therefore, capable of embracing every case enumerated in the Constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the Constitution, to the Supreme Court. There can be no doubt that Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. …

As, then, by the terms of the Constitution, the appellate jurisdiction is not limited as to the Supreme Court, and as to this court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over State tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, “the judicial power (which includes appellate power) shall extend to all cases,” &c., and “in all other cases before mentioned the Supreme Court shall have appellate jurisdiction.” It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the Constitution for any qualification as to the tribunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the inference be irresistible. …

But it is plain that the framers of the Constitution did contemplate that cases within the judicial cognizance of the United States not only might but would arise in the State courts, in the exercise of their ordinary jurisdiction. With this view the sixth article 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, anything in the Constitution, or laws of any State to the contrary notwithstanding.” It is obvious, that this obligation is imperative upon the State judges in their official, and not merely in their private, capacities. From the very nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the Constitution, laws, and treaties of the United States, “the supreme law of the land.” . …

It must, therefore, be conceded that the Constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before State tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, State courts would incidentally take cognizance of cases arising under the Constitution, the laws and treaties of the United States. Yet to all these cases the judicial power, by the very terms of the Constitution, is to extend. It cannot extend by original jurisdiction if that was already rightfully and exclusively attached in the State courts, which (as has been already shown) may occur; it must therefore extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to State tribunals; and if in such cases, there is no reason why it should not equally attach upon all others within the purview of the Constitution.

It has been argued that such an appellate jurisdiction over State courts is inconsistent with the genius of our governments, and the spirit of the Constitution. That the latter was never designed to act upon State sovereignties, but only upon the people, and that, if the power exists, it will materially impair the sovereignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to which we do not yield our assent.

It is a mistake that the Constitution was not designed to operate upon States, in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives. The tenth section of the first article contains a long list of disabilities and prohibitions imposed upon the States. Surely, when such essential portions of State sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the Constitution does not act upon the States. The language of the Constitution is also imperative upon the States, as to the performance of many duties. It is imperative upon the State legislatures to make laws prescribing the time, places, and manner of holding elections for Senators and Representatives, and for electors of President and Vice-President. And in these, as well as in some other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by State legislatures. When, therefore, the States are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the States are, in some respects, under the control of Congress, and in every case are, under the Constitution, bound by the paramount authority of the United States, it is certainly difficult to support the argument that the appellate power over the decisions of State courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the States, and if they are found to be contrary to the Constitution, may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power.

Nor can such a right be deemed to impair the independence of State judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the Constitution; and if they should unintentionally transcend their authority, or misconstrue the Constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other coordinate departments of State sovereignty.

The argument urged from the possibility of the abuse of the revising power, is equally unsatisfactory. It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argument, to engraft upon a general power, a restriction which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere—wherever it may be vested it is susceptible of abuse. In all questions of jurisdiction the inferior or appellate court must pronounce the final judgment; and common-sense, as well as legal reasoning, has conferred it upon the latter. …

This is not all. A motive of another kind, perfectly compatible with the most sincere respect for State tribunals, might induce the grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the Constitution. Judges of equal learning and integrity, in different States, might differently interpret a statute, or a treaty of the United States, or even the Constitution itself. If there were no revising authority to control these jarring and discordant judgments, and harmonize them into uniformity, the laws, the treaties, and the Constitution of the United States would be different in different States, and might perhaps never have precisely the same construction, obligation, or efficacy, in any two States. The public mischiefs that would attend such a state of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the Constitution. What, indeed, might then have been only prophecy has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils. …

It is the opinion of the whole court, that the judgment of the Court of Appeals of Virginia, rendered on the mandate in this cause, be reversed, and the judgment of the District Court, held at Winchester, be, and the same is hereby affirmed.

Mr. Justice Johnson delivered a concurring opinion.

APPENDIX C

Washington’s Farewell Address (1796)

Friends and fellow-citizens. The period for a new election of a citizen, to administer the executive government of the United States, being not far distant, and the time actually arrived, when your thoughts must be employed in designating the person who is to be clothed with that important trust, it appears to me proper, especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed, to decline being considered among the number of those out of whom a choice is to be made.

I beg you, at the same time, to do me the justice to be assured, that this resolution has not been taken without a strict regard to all the considerations appertaining to the relation which binds a dutiful citizen to his country; and that, in withdrawing the tender of service, which silence in my situation might imply, I am influenced by no diminution of zeal for your future interest; no deficiency of grateful respect for your past kindness; but am supported by a full conviction that the step is compatible with both.

The acceptance of, and continuance hitherto in, the office to which your suffrages have twice called me, have been a uniform sacrifice of inclination to the opinion of duty, and to a deference for what appeared to be your desire. I constantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty to disregard, to return to that retirement from which I had been reluctantly drawn. The strength of my inclination to do this, previous to the last election, had even led to the preparation of an address to declare it to you; but mature reflection on the then perplexed and critical posture of our affairs with foreign nations, and the unanimous advice of persons entitled to my confidence, impelled me to abandon the idea.—

I rejoice that the state of your concerns, external as well as internal, no longer renders the pursuit of inclination incompatible with the sentiment of duty or propriety; and am persuaded, whatever partiality may be retained for my services, that, in the present circumstances of our country, you will not disapprove my determination to retire.

The impressions, with which I first undertook the arduous trust, were explained on the proper occasion. In the discharge of this trust, I will only say, that I have, with good intentions, contributed towards the organization and administration of the Government the best exertions of which a very fallible judgment was capable. Not unconscious, in the outset, of the inferiority of my qualifications, experience in my own eyes, perhaps still more in the eyes of others, has strengthened the motives to diffidence of myself; and every day the increasing weight of years admonishes me more and more, that the shade of retirement is as necessary to me as it will be welcome. Satisfied, that, if any circumstances have given peculiar value to my services, they were temporary, I have the consolation to believe that, while choice and prudence invite me to quit the political scene, patriotism does not forbid it.

In looking forward to the moment which is intended to terminate the career of my public life, my feelings do not permit me to suspend the deep acknowledgment of that debt of gratitude which I owe to my beloved country, for the many honors it has conferred upon me; still more for the steadfast confidence with which it has supported me; and for the opportunities I have thence enjoyed of manifesting my inviolable attachment, by services faithful and persevering, though in usefulness unequal to my zeal. If benefits have resulted to our country from these services, let it always be remembered to your praise, and as an instructive example in our annals, that under circumstances in which the passions, agitated in every direction, were liable to mislead, amidst appearances sometimes dubious, vicissitudes of fortune often discouraging, in situations in which not infrequently want of success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were effected. Profoundly penetrated with this idea, I shall carry it with me to the grave, as a strong incitement to unceasing vows that Heaven may continue to you the choicest tokens of its beneficence; that your union and brotherly affection may be perpetual that the free constitution, which is the work of your hands, may be sacredly maintained that its administration in every department may be stamped with wisdom and virtue that, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete, by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it.

Here, perhaps, I ought to stop. But a solicitude for your welfare, which cannot end but with my life, and the apprehension of danger, natural to that solicitude, urge me on an occasion like the present, to offer to your solemn contemplation, and to recommend to your frequent review, some sentiments, which are the result of much reflection, of no inconsiderable observation, and which appear to me all-important to the permanency of your felicity as a people. These will be offered to you with the more freedom, as you can only see in them the disinterested warnings of a parting friend, who can possibly have no personal motive to bias his counsel.— Nor can I forget, as an encouragement to it, your indulgent reception of my sentiments on a former and not dissimilar occasion.

Interwoven as is the love of liberty with every ligament of your hearts, no recommendation of mine is necessary to fortify or confirm the attachment.—

The unity of government, which constitutes you one people, is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize. But as it is easy to foresee, that, from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and (though often covertly and insidiously) directed, it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.

For this you have every inducement of sympathy and interest. Citizens, by birth or choice, of a common country, that country has a right to concentrate your affections. The name of american, which belongs to you, in your national capacity, must always exalt the just pride of patriotism, more than any appellation derived from local discriminations. With slight shades of difference you have the same religion, manners, habits, and political principles. You have in common cause fought and triumphed together; the independence and liberty you possess are the work of joint counsels and joint efforts, of common dangers, sufferings, and successes.

But these considerations, however powerfully they address themselves to your sensibility, are greatly outweighed by those, which apply more immediately to your interest. Here every portion of our country finds the most commanding motives for carefully guarding and preserving the union of the whole.

The North, in an unrestrained intercourse with the South, protected by the equal laws of a common Government, finds in the productions of the latter great additional resources of maritime and commercial enterprise and precious materials of manufacturing industry. The South, in the same intercourse, benefiting by the agency of the North, sees its agriculture grow and its commerce expand. Turning partly into its own channels the seamen of the North, it finds its particular navigation invigorated; and, while it contributes, in different ways, to nourish and increase the general mass of the national navigation, it looks forward to the protection of a maritime strength to which itself is unequally adapted. The East, in a like intercourse with the West, already finds, and in the progressive improvement of interior communications, by land and water, will more and more find, a valuable vent for the commodities which it brings from abroad, or manufactures at home. The West derives from the East supplies requisite to its growth and comfort, and, what is perhaps of still greater consequence, it must of necessity owe the secure enjoyment of indispensable outlets for its own productions to the weight, influence, and the future maritime strength of the Atlantic side of the Union, directed by an indissoluble community of interest as one Nation.—Any other tenure by which the West can hold this essential advantage, whether derived from its own separate strength, or from an apostate and unnatural connection with any foreign Power, must be intrinsically precarious.

While, then, every part of our country thus feels an immediate and particular interest in union, all the parts combined cannot fail to find in the united mass of means and efforts greater strength, greater resource, proportionably greater security from external danger, a less frequent interruption of their peace by foreign nations; and, what is of inestimable value, they must derive from union an exemption from those broils and wars between themselves, which so frequently afflict neighboring countries not tied together by the same governments, which their own rival ships alone would be sufficient to produce, but which opposite foreign alliances, attachments, and intrigues would stimulate and embitter. Hence, likewise, they will avoid the necessity of those overgrown military establishments, which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to Republican liberty. In this sense it is, that your union ought to be considered as a main prop of your liberty, and that the love of the one ought to endear to you the preservation of the other.

These considerations speak a persuasive language to every reflecting and virtuous mind, and exhibit the continuance of the union as a primary object of patriotic desire. Is there a doubt whether a common government can embrace so large a sphere? Let experience solve it. To listen to mere speculation in such a case were criminal. We are authorized to hope that a proper organization of the whole, with the auxiliary agency of governments for the respective subdivisions, will afford a happy issue to the experiment. ’Tis well worth a fair and full experiment.

With such powerful and obvious motives to union, affecting all parts of our country, while experience shall not have demonstrated its impracticability, there will always be reason to distrust the patriotism of those who in any quarter may endeavour to weaken its bands.

In contemplating the causes which may disturb our Union, it occurs as a matter of serious concern that any ground should have been furnished for characterizing parties by geographical discriminations, Northern and Southern,—Atlantic and Western; whence designing men may endeavour to excite a belief that there is a real difference of local interests and views. One of the expedients of party to acquire influence, within particular districts, is to misrepresent the opinions and aims of other districts. You cannot shield yourselves too much against the jealousies and heart-burnings which spring from these misrepresentations; they tend to render alien to each other those who ought to be bound together by fraternal affection. The inhabitants of our Western country have lately had a useful lesson on this head; they have seen, in the negotiation by the Executive, and in the unanimous ratification by the Senate, of the treaty with Spain, and in the universal satisfaction at that event throughout the United States, a decisive proof how unfounded were the suspicions propagated among them of a policy in the general government and in the Atlantic States unfriendly to their interests in regard to the mississippi; they have been witnesses to the formation of two treaties, that with Great Britain and that with Spain, which secure to them everything they could desire, in respect to our foreign relations, towards confirming their prosperity. Will it not be their wisdom to rely for the preservation of theses advantages on the union by which they were procured? Will they not henceforth be deaf to those advisers, if such there are, who would sever them from their brethren and connect them with aliens?

To the efficacy and permanency of your union, a Government for the whole is indispensable. No alliances however strict between the parts can be an adequate substitute. They must inevitably experience the infractions and interruptions which all alliances in all times have experienced. Sensible of this momentous truth, you have improved upon your first essay, by the adoption of a Constitution of Government better calculated than your former for an intimate union, and for the efficacious management of your common concerns. This Government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribution of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has a just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established Government.

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of fashion, rather than the organ of consistent and wholesome plans digested by common councils, and modified by mutual interests.

However combinations or associations of the above descriptions may now and then answer popular ends, they are likely, in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reins of government; destroying afterwards the very engines which have lifted them to unjust dominion.—

Toward the preservation of your Government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations, which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing Constitution of a country— that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual change, from the endless variety of hypothesis and opinion: and remember, especially, that for the efficient management of your common interests, in a country so extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprise of faction, to confine each member of the society within the limits prescribed by the laws, and to maintain all in the secure and tranquil enjoyment of the rights of person and property.

I have already intimated to you the danger of parties in the state, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.—

The alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight) the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

It serves always to distract the public councils, and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the doors to foreign influence and corruption, which find a facilitated access to the Government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

There is an opinion that parties in free countries are useful checks upon the administration of the Government, and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And, there being constant danger of excess, the effort ought to be, by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for, though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.;em

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness, these firmest props of the duties of Men and Citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true, that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who, that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?

Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge. In proportion as the structure of a government gives force to public opinion, it is essential that public opinion should be enlightened.

As a very important source of strength and security, cherish public credit. One method of preserving it is to use it as sparingly as possible; avoiding occasions of expense by cultivating peace, but remembering also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it; avoiding likewise the accumulation of debt, not only by shunning occasions of expense, but by vigorous exertions in time of peace to discharge the debts, which unavoidable wars may have occasioned, not ungenerously throwing upon posterity the burden which we ourselves ought to bear. The execution of these maxims belongs to your representatives, but it is necessary that public opinion should cooperate. To facilitate to them the performance of their duty, it is essential that you should practically bear in mind, that towards the payment of debts there must be revenue; that to have revenue there must be taxes; that no taxes can be devised which are not more or less inconvenient and unpleasant; that the intrinsic embarrassment, inseparable from the selection of the proper objects (which is always a choice of difficulties), ought to be a decisive motive for a candid construction of the conduct of the Government in making it, and for a spirit of acquiescence in the measures for obtaining revenue which the public exigencies may at any time dictate.

Observe good faith and justice towards all nations; cultivate peace and harmony with all. Religion and morality enjoin this conduct; and can it be, that good policy does not equally enjoin it? It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence. Who can doubt, that, in the course of time and things, the fruits of such a plan would richly repay any temporary advantages, which might be lost by a steady adherence to it? Can it be, that Providence has not connected the permanent felicity of a nation with its virtue? The experiment, at least, is recommended by every sentiment which ennobles human nature. Alas! is it rendered impossible by its vices?

In the execution of such a plan, nothing is more essential than that permanent, inveterate antipathies against particular nations, and passionate attachments for others, should be excluded; and that, in place of them, just and amicable feelings towards all should be cultivated. The nation which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest. Antipathy in one nation against another disposes each more readily to offer insult and injury, to lay hold of slight causes of umbrage, and to be haughty and intractable, when accidental or trifling occasions of dispute occur. Hence, frequent collisions, obstinate, envenomed and bloody contests. The nation, prompted by ill-will and resentment, sometimes impels to war the Government, contrary to the best calculations of policy. The Government sometimes participates in the national propensity, and adopts through passion what reason would reject; at other times, it makes the animosity of the nation subservient to projects of hostility instigated by pride, ambition, and other sinister and pernicious motives. The peace often, sometimes perhaps the liberty, of nations has been the victim.—

So likewise, a passionate attachment of one nation for another produces a variety of evils. Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation of privileges denied to others, which is apt doubly to injure the nation making the concessions, by unnecessarily parting with what ought to have been retained, and by exciting jealousy, ill-will, and a disposition to retaliate in the parties from whom equal privileges are withheld. And it gives to ambitious, corrupted, or deluded citizens (who devote themselves to the favored nation), facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding with the appearances of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base of foolish compliances of ambition, corruption, or infatuation.

As avenues to foreign influence in innumerable ways, such attachments are particularly alarming to the truly enlightened and independent patriot. How many opportunities do they afford to tamper with domestic factions, to practice the arts of seduction, to mislead public opinion, to influence or awe the public councils! Such an attachment of a small or weak, towards a great and powerful nation, dooms the former to be the satellite of the latter.

Against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of Republican Government. But that jealousy, to be useful, must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defence against it. Excessive partiality for one foreign nation, and excessive dislike of another, cause those whom they actuate to see danger only on one side, and serve to veil and even second the arts of influence on the other. Real patriots, who may resist the intrigues of the favorite, are liable to become suspected and odious; while its tools and dupes usurp the applause and confidence of the people, to surrender their interests.

The great rule of conduct for us, in regard to foreign nations is, in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop.

Europe has a set of primary interests, which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves, by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

Our detached and distant situation invites and enables us to pursue a different course. If we remain one people, under an efficient government, the period is not far off, when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon, to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not likely hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel.

Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice?

It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. I hold the maxim no less applicable to public than to private affairs, that honesty is always the best policy. I repeat it, therefore, let those engagements be observed in their genuine sense. But, in my opinion, it is unnecessary and would be unwise to extend them.

Taking care always to keep ourselves, by suitable establishments, on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.

Harmony, liberal intercourse with all nations, are recommended by policy, humanity, and interest. But even our commercial policy should hold an equal and impartial hand; neither seeking nor granting exclusive favors or preferences; consulting the natural course of things; diffusing and diversifying by gentle means the streams of commerce, but forcing nothing; establishing, with powers so disposed, in order to give trade a stable course, to define the rights of our merchants, and to enable the government to support them, conventional rules of intercourse, the best that present circumstances and mutual opinion will permit, but temporary, and liable to be from time to time abandoned or varied, as experience and circumstances shall dictate; constantly keeping in view, that it is folly in one nation to look for disinterested favors from another; that it must pay with a portion of its dependence for whatever it may accept under that character; that, by such acceptance, it may place itself in the condition of having given equivalents for nominal favors, and yet of being reproached with ingratitude for not giving more. There can be no greater error than to expect or calculate upon real favors from nation to nation. It is an illusion, which experience must cure, which a just pride ought to discard.

In offering to you, my countrymen, these counsels of an old and affectionate friend, I dare not hope they will make the strong and lasting impression I could wish; that they will control the usual current of the passions, or prevent our nation from running the course, which has hitherto marked the destiny of nations. But, if I may even flatter myself, that they may be productive of some partial benefit, some occasional good; that they may now and then recur to moderate the fury of party spirit, to warn against the mischiefs of foreign intrigue, to guard against the impostures of pretended patriotism; this hope will be a full recompense for the solicitude for your welfare, by which they have been dictated.

How far in the discharge of my official duties I have been guided by the principles which have been delineated, the public records and other evidences of my conduct must witness to you and to the world. To myself, the assurance of my own conscience is, that I have at least believed myself to be guided by them.

In relation to the still subsisting war in Europe, my Proclamation of the 22nd of April 1793 is the index to my plan. Sanctioned by your approving voice, and by that of your representatives in both Houses of Congress, the spirit of that measure has continually governed me, uninfluenced by any attempts to deter or divert me from it.

After deliberate examination, with the aid of the best lights I could obtain, I was well satisfied that our country, under all the circumstances of the case, had a right to take, and was bound in duty and interest to take, a neutral position. Having taken it, I determined, as far as should depend upon me, to maintain it, with moderation, perseverance, and firmness.

The considerations which respect the right to hold this conduct, it is not necessary on this occasion to detail. I will only observe, that, according to my understanding of the matter, that right, so far from being denied by any of the belligerent powers, has been virtually admitted by all.

The duty of holding a neutral conduct may be inferred, without anything more, from the obligation which justice and humanity impose on every nation, in cases in which it is free to act, to maintain inviolate the relations of peace and amity towards other nations.

The inducements of interest for observing that conduct will best be referred to your own reflections and experience. With me, a predominant motive has been to endeavour to gain time to our country to settle and mature its yet recent institutions, and to progress without interruption to that degree of strength and consistency which is necessary to give it, humanly speaking, the command of its own fortunes.

Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. I shall also carry with me the hope, that my country will never cease to view them with indulgence; and that, after forty-five years of my life dedicated to its service with an upright zeal, the faults of incompetent abilities will be consigned to oblivion, as myself must soon be to the mansions of rest.

Relying on its kindness in this as in other things, and actuated by that fervent love towards it, which is so natural to a man who views in it the native soil of himself and his progenitors for several generations, I anticipate with pleasing expectation that retreat, in which I promise myself to realize, without alloy, the sweet enjoyment of partaking, in the midst of my fellow-citizens, the benign influence of good laws under a free government, the ever favorite object of my heart, and the happy reward, as I trust, of our mutual cares, labors, and dangers.

george washington.

Gazette of the United States, September 17th, 1796.

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guarantees of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject—such as his ancestors had inherited and defended since the days of Magna Carta.

Justice Henry Brown of the Supreme Court, in Mattox v. U.S. (1894)