The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

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:

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)

PART 7

Changing the Constitution—Together with an Explanation of the Amendments Added Since 1791

POINTS TO REMEMBER

1. The Constitution may be changed formally by amendment, but it also changes as a result of custom, practice, and judicial decisions.

2. Not all constitutional change has the same impact on the distribution of power. Some changes are supplementary in nature and merely refine or clarify a particular provision of the Constitution, while other changes are revisionary and truly alter the basic design of the system.

3. The difficulty of the amendment process assures evolutionary change; the extraordinary or “super majority” requirement assures democratic change that protects the States and sectional interests; the amendment procedure strengthens federalism by giving the States the final say as to whether an amendment should pass or fail. Ironically, most amendments added since 1791 have reduced the power of the States. One of the most far-reaching constitutional changes effected without a clearly authorizing amendment has been the nationalization of the Bill of Rights through the Doctrine of Incorporation.

4. The amendment process recognizes the sovereign right of the American people and the States to change their Constitution or even their form of government. A large share of the amendments that have been introduced over the years have sought to constitutionalize mere legislation and are otherwise inappropriate. There are many inherent limitations to the amendment power.

Though its flow is continuous, the Mississippi River has often changed direction. Its main channel of movement has shifted at times. Its current may be fast or sluggish. Precisely similar are the dynamics of the American Constitution. Throughout its history, the Constitution, as interpreted and applied by each generation, has changed almost without interruption. The Constitution today is different in many respects from the Constitution of 1787. A mere reading of the document itself, without consulting Supreme Court opinions, the history books, legal treatises, and other extrinsic aids, would give the student not only a meager understanding of what the Constitution meant in 1787 but in many ways a misunderstanding of what it means today.

Why, it may be asked, should the Constitution change at all? Does it not prescribe a fixed code of conduct for public officials? Does it not represent the “permanent will” of the American people? These questions may be answered in the affirmative, but our response requires some elaboration. It must be borne in mind that political societies, especially in advanced countries like the United States, are not static. Change is inevitable. Society must change—and slow change, we might add, is the means of its preservation, like the human body’s perpetual renewal. If society changes, so too must its constitution, lest it fall by the wayside as an outmoded relic of the past. The Framers of the American Constitution understood this. That is why they wrote Article V into the Constitution, which sets forth the procedure to be followed for amending the Constitution.

Our Living Constitution

Formal amendments to the Constitution, however, are only one method of change. Constitutions may also change by subtle and informal means, as a result of changing political practices, new technology, and other forces. Most changes of this nature are supplementary rather than revisionary, and may be seen as additions to, or refinements of, a particular provision of the Constitution, not as alterations of the structure itself. Thus, as a result of political experience, presidential electors, as we saw earlier, no longer function as the Framers imagined they would; yet in other respects the Electoral College still functions as intended. Although the Constitution is silent on the qualifications for office of Supreme Court Justices, all members appointed to the Court have, by custom, been lawyers. Likewise, political parties were not anticipated by the Framers and no provision was made for them in the Constitution. Since the earliest days of the American republic, however, political parties have played a fundamental role in our political system, so fundamental, in fact, that it might be said they are an integral part of our constitutional system because it is through our party system that political power is organized, exercised, and transferred from one election to the next. The Constitution has nevertheless accommodated political parties without amendment. The same can be said of the President’s cabinet, which is almost entirely the result of custom.

Similarly, the authors of the First Amendment did not foresee motion pictures, radio, or television. They knew only direct verbal communication and the printed word. The extension of the right of freedom of speech and press to a radio news broadcast has not altered the meaning of these freedoms, however, or required a revision of the First Amendment. It has merely changed the scope of the Amendment. The principle of free speech remains the same.

Legislation passed by Congress may also be of such a basic nature as to supplement the Constitution and give added meaning to its provisions. We have already noted the significance of the Judiciary Act of 1789, which has become virtually a permanent fixture of the American political system. The Constitution authorizes Congress to determine who shall be President in the event that both the President and the Vice President should be removed from office or be unable to serve because of death, incapacity, or resignation. By the Presidential Succession Act of 1947 Congress has provided that first the Speaker of the House, then the President Pro Tem of the Senate, and then cabinet heads should become President, in that order, if such a contingency should arise. Also, the Constitution nowhere prescribes the precise manner by which inferior officers are to be selected. Article II, Section 2 merely states that their appointment may be vested in the President alone, in the courts of law, or in the heads of departments. In 1883, however, Congress passed the Pendleton Act, which provided for the establishment of a Civil Service Commission and the recruitment and hiring of thousands of Federal employees on the basis of ratings derived from competitive examinations. That civil service system is still in place, influencing the manner in which the Federal government functions. But no amendment was needed to establish it.

Judicial opinions of the Supreme Court provide still another means for embellishing the original text of the Constitution—Article II, Section 3 provides, for example, that the President “shall take care that the laws be faithfully executed.” Does this mean that the President’s duty is limited to the enforcement of acts of Congress according to their express terms? The Supreme Court was called upon to provide an answer to this question in the bizarre case of In Re Neagle (1890). The case grew out of a dispute between Justice Stephen J. Field, a member of the Supreme Court, and David Terry, who had once been Chief Justice of the California Supreme Court. While presiding over a Federal circuit court in California in a suit involving Terry’s wife, Justice Field criticized the lady’s moral character during the course of the trial. Mrs. Terry began screaming insults, and Field ordered her removal from the courtroom. David Terry, her lawyer as well as her husband, became so enraged that he felled with one blow the deputy who was trying to carry out Field’s order, knocking him unconscious.

Field later returned to Washington, and Terry began a campaign of vilification against Field, threatening to kill him. A headstrong southern gentleman who had once killed a friend of Field’s in a duel over a question of honor, Terry had a reputation for violence. He often wore a six-shooter on his hip, and Mrs. Terry also frequently carried a pistol. Alarmed by these events, the Attorney General of the United States assigned a deputy marshal named David Neagle to protect Justice Field while out west on circuit duties. By coincidence, Field and Neagle ran into Terry in a railroad restaurant in a small town. Upon sight of Field, Terry leaped from his table and struck Field twice. Believing Terry was reaching for a gun, Neagle drew his own weapon and shot Terry dead. There was strong local sentiment for Terry, and Neagle was arrested by State authorities on a charge of murder.

A Federal circuit court issued a writ of habeas corpus for Neagle’s release under a Federal statute which made the writ available to one “in custody for an act done or omitted in pursuance of a law of the United States.” The problem was that Congress had not enacted any law authorizing the President or his Attorney General to assign marshals as bodyguards to Federal judges. The Supreme Court ruled nevertheless in favor of Neagle, arguing that no statute was necessary. “In the view we take of the Constitution,” said the Court, “any obligation fairly and properly inferrible from that instrument, or any duty of the marshal to be derived from the general scope of his duties under the laws of the United States, is a ‘law’ within the meaning of this phrase.” There is “a peace of the United States,” the Court went on, and the President is necessarily the principal protector of the peace. His duty to see that the laws are faithfully executed is not limited to enforcing Congressional statutes and includes as well “the rights, duties and obligations growing out of the Constitution itself.” The President’s power to execute the laws, in other words, was a self-executing power to enforce the laws generally, and did not depend for its existence upon a specific act of Congress. The Neagle case, it may thus be seen, gave added meaning to the separation of powers and the President’s law enforcement powers, without substantially altering them. Had the Court ruled against Neagle, the President’s power would have been severely restricted and entirely at the mercy of Congress.

There are many Supreme Court decisions comparable to the Neagle case in which the Justices have found it necessary to add meaning to general provisions of the Constitution when applying them to specific facts. Ordinarily, such decisions arouse little controversy. The Constitution, after all, is based upon general principles as well as concrete rules, and it would be impossible for the judges to interpret and apply these principles without specifying their metes and bounds. Unlike the draftsmen of many tedious State constitutions that go on for pages and attempt to anticipate every possible contingency, the Framers wisely understood that a constitution is not an elaborate code of law and that it would soon be unwieldy and might go out of date if the principles of government embodied within it were burdened with countless details. A constitution must be adaptable to the changing needs and conditions of society. As Chief Justice John Marshall explained in the famous case of McCulloch v. Maryland (1819), in which the Court rendered a definitive interpretation of the Necessary and Proper Clause, “a constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. … [I]t may with great reason be contended, that a government entrusted with such ample powers … must also be entrusted with ample means for their execution. The power being given, it is in the interest of the nation to facilitate its execution.”