Front Page Titles (by Subject) Our Living Constitution - Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government
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Our Living Constitution - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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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.”
Our Changing Constitution
The accumulation of customs and usages that impinge upon the Constitution, and the actions of Congress, the President, and the Supreme Court that give meaning and substance to the powers that are granted and denied, form the basis of American constitutional law. In essence, such developments do not so much change the Constitution as they apply and refine it. The line between actual change and mere implementation cannot always be clearly drawn, of course, but we may take it as a general proposition that a grant of power carries with it, as Marshall contended, the means for its execution. Thus in Gibbons v. Ogden (1824), the great steamboat monopoly case involving the scope of the commerce power, Marshall argued persuasively that, inasmuch as Congress was authorized to regulate commerce, it followed that Congress must also be permitted to control the means, or the environment in which commerce moved, including navigation, “so far as that navigation may be, in any manner, connected with ‘commerce with foreign nations, or among the several States, or with Indian tribes.’ ”
More troublesome and difficult to justify, however, are actions of the Federal and State governments that actually create power, alter the distribution or division of power, or otherwise redefine the general principles or specific provisions of the Constitution. Such changes, in the absence of an authorizing amendment to the Constitution, raise serious questions of legitimacy because they change the “rules of the game” and the basic structure of government. Because they also conflict with the “permanent will” of the American people, they play havoc with the underlying republican principle of the Constitution and the democratic foundation upon which it rests.
Examples of these substantive constitutional changes abound, and no branch of the Federal government is entirely innocent of the charge of over-reaching. Broad delegations of legislative power to executive agencies and independent regulatory commissions, as we previously saw, tend to undermine the separation of powers and democratic accountability. The unrestricted extension of the commerce clause into purely local affairs has changed the meaning of federalism. This is amply demonstrated by U.S. v. Appalachian Electric Power Co. (1940). In this case, the Supreme Court held that Congress’s commerce power extended not only to navigable streams, but also to the whitewater rapids of the New River in West Virginia, on the theory that the river was navigable because it was capable of being made navigable at some future date. By means of this decision, much State power over local waterways, flood control, hydroelectric power, and watershed projects has been transferred to the Federal government. This represents an expansion of Federal power, not simply an application of a general power to regulate commerce among the States.
The expanded use of executive agreements since the 1930s, substantially increasing the power of the President in foreign affairs, represents yet another extension of power. Instead of making treaties, which require Senate approval, modern Presidents have relied increasingly on privately negotiated settlements with foreign governments, known as executive agreements. Although the Senate is bypassed and is thus denied an opportunity to fulfill its “advice and consent” obligations under Article II, Section 2, executive agreements are nevertheless regarded as having the same force of law as formal treaties. The conclusion seems unavoidable that the widespread use of these executive devices has resulted in a transformation of the Senate’s role in foreign affairs.
Among the various constitutional changes that have occurred as a result of Supreme Court rulings, the Court’s rule of interpretation known as the Doctrine of Incorporation has probably produced the most far-reaching reallocations of power. In our earlier discussion of the Bill of Rights, we noted that one of its principal objectives was to preserve intact State bills of rights under the new Constitution, and to protect the right of the States to define the scope and content of civil liberties in disputes between a State and its citizens. In Barron v. Baltimore (1833), a unanimous Supreme Court, speaking through Chief Justice Marshall, held that no provision of the Bill of Rights applied to the States.
Beginning in 1925 in the case of Gitlow v. New York, however, the Court initiated a series of decisions that resulted in the nationalization of the Bill of Rights. By 1947, every provision of the First Amendment had been made applicable to the States, and in the 1960s most provisions of the Bill of Rights protecting Federal criminal defendants were also applied to State proceedings. The vehicle used to accomplish this result was the Due Process Clause of the Fourteenth Amendment, which provides that, “No State shall deny any person life, liberty or property without due process of law.” Focusing on the word “liberty” in the clause, the Supreme Court expanded it to include various provisions of the Bill of Rights, thereby making the restrictions against the Federal government in the Bill of Rights applicable to the States through the Fourteenth Amendment. In this way, for example, freedom of the press was incorporated into the word “liberty” of the Fourteenth Amendment, thereby giving the Federal judiciary the final say on the scope and meaning of this freedom at both the State and Federal level through its power of judicial review.
Aside from the fact that the Doctrine of Incorporation has considerably enhanced the power of the Supreme Court and brought about a significant shift of power from the State to the national courts, this interpretive device has also resulted in extensive changes of the liberties themselves. Thus before the Supreme Court first applied the Establishment Clause of the First Amendment to the States in the landmark case of Everson v. Board of Education (1947), it was a common practice in many States to encourage religion and promote religious morality. Since 1947, however, the Supreme Court has held that almost any aid of any kind to religion constitutes an unconstitutional establishment of religion. This includes voluntary, nondenominational prayers in the public schools, which have been outlawed since 1962 as a result of Engel v. Vitale (the New York Prayer Case).
Many constitutional scholars question whether the Framers and backers of the Fourteenth Amendment intended by its provisions to abolish the federalism of the Bill of Rights and overturn Barron v. Baltimore, and the Doctrine of Incorporation has therefore engendered widespread criticism, even among members of the Federal Judiciary. Whatever its merits, the Doctrine of Incorporation represents a drastic transformation of power that serves to illustrate one of the ways in which the Constitution is changed without a clear mandate from the people and the States through the amendment process.
In his Commentaries on the Constitution, Joseph Story condemned judge-made law and cautioned against the use of interpretive techniques that change the meaning of the Constitution. The two greatest excesses of constitutional construction to be avoided, he advised, are excessively narrow and excessively broad interpretations, either of which can distort the intent of the Framers and rob the people of their Constitution. Taken to extremes, restrictions on the powers of government can make it difficult or impossible for government to function. Moreover, a power of government should not be restricted solely because it is susceptible of abuse. “Every power,” he observed, “however limited, as well as broad, is in its own nature susceptible of abuse. No Constitution can provide safeguards against it. Confidence must be reposed somewhere, and in free governments the ordinary securities against abuse are found in the responsibility of the rulers to the people, and in the just exercise of their elective franchise, and ultimately in the sovereign power of change.”
No less injurious to the public good are free and uninhibited interpretations in the name of expediency. Judges, wrote Story, 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. … Arguments drawn from impolicy or inconvenience ought here to have no weight. … Men on such subjects complexionally differ from each other. The same men differ from themselves at different times. Temporary delusions, prejudices, excitements, and objects have irresistible influence in mere questions of policy. And the policy of one age may ill suit the wishes or policy of another. The Constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction. It should be, so far at least as human infirmity will allow, not dependent upon the passions or parties of particular times, but the same yesterday, today, and forever.” That we have not fully lived up to these high standards and ideals of constitutional interpretation does not compel us to renounce them as unrealistic or false, but to recognize the frailty of constitutional government, the need for constant vigilance, and the primacy of the amending process as a device for protecting the constitution from unauthorized, illegitimate alterations of the basic design.