The Virginia and Kentucky Resolutions had ominous implications for the new union. By the reasoning of the resolutions, the individual states, not the Supreme Court of the United States, were the ultimate arbiters of the constitutionality of a federal law. Some thirty years later, John C. Calhoun of South Carolina would follow the logic of the Kentucky Resolutions in enunciating the doctrine of “nullification,” the right of a state to render “null and void” any statute that was in that state’s judgment unconstitutional. And by Calhoun’s logic—and later that of Confederate president Jefferson Davis—the ultimate recourse of the states, as original parties to the federal compact, was that of secession from the union itself. At the time that Jefferson and Madison wrote the Virginia and Kentucky Resolutions, the concept of “judicial review,” giving to the Supreme Court ultimate authority on issues relating to the interpretation of the Constitution, had not been fully established or accepted, although certainly many of the framers of the Constitution assumed that the Supreme Court might exercise such a function. That constitutional development lay in the future and would occur only after the constitutional crisis over the Alien and Sedition Acts was settled, not by courts or by force of arms but, rather, at the ballot box.
By the time of the presidential election of 1800, the Federalist and Republican parties had put into place more fully developed structures by which to recruit voters to their respective sides, and those advances in party organization, together with the overheated, partisan atmosphere created by disagreements over foreign policy and the Alien and Sedition Acts, made it one of the most vituperative and bitterly contested presidential elections in American history. The Federalists selected a slate consisting of the sitting president, John Adams, as their presidential candidate and Charles Cotesworth Pinckney of South Carolina as the vice-presidential candidate. The Republican ticket featured Thomas Jefferson as the presidential candidate and Aaron Burr of New York as the vice-presidential candidate. When the presidential electors had cast their ballots, the Republican slate received a majority of electoral votes, but party discipline among the Republican electors was so great that each of the electors cast each of their two ballots for Jefferson and Burr. Article II, Section 1, of the Constitution stipulates that each elector casts two ballots, and that the individual receiving the largest number of votes will be president and the individual receiving the second-highest number of votes will be vice president, but it does not differentiate between a presidential vote and a vice-presidential vote. Since Jefferson and Burr had received an equal number of electoral votes, there was no constitutional means by which to determine who was meant to be president and who vice president. So, again by the terms of Article II, Section 1, the election was thrown into the House of Representatives, where the state delegations in the House, with each state being given equal weight in the voting, would decide the outcome of the election. After a good deal of tumult and intrigue, in which the Federalists in the House seemed to be maneuvering to elect Burr rather than Jefferson (a scheme to which Burr did not seem to object!), the House, on the thirty-sixth ballot, finally elected Thomas Jefferson as the third president of the United States. But the whole affair demonstrated that the electoral college provision of the Constitution, as it was then constructed, was not well suited to an election process in which political parties were working diligently to organize the electorate behind both their presidential and vice-presidential candidates. The passage of the Twelfth Amendment in 1804, which stipulates that presidential and vice-presidential electoral ballots be separate and distinct, signaled a recognition of how the advent of political parties had changed the way the electoral college functioned, transforming it from an elitist institution into a democratic one. Of all of the events of the first twelve years of the new government’s operation, the emergence of political parties—a development unanticipated and unwanted by the Founding Fathers and operating wholly outside the formal political and constitutional structures of the new federal union—would be paramount in transforming the American republic into a democratic republic.
CHAPTER SIX
SUPREME COURT DECISIONS THAT HAVE SHAPED AMERICA’S CONSTITUTIONAL HISTORY
THE STORY OF THE EVOLUTION OF THE United States Constitution continues even today. During the two and a quarter centuries since the Constitution took effect, the operations of the federal, state, and local governments have undergone remarkable changes. With those changes, successive generations of Americans have found that their relationship with those governments has also changed. The framers of the Constitution provided one explicit mechanism by which to alter the way the federal government does its business: as spelled out in Article V, Congress or, upon application of two-thirds of the state legislature, a specially called convention, may propose constitutional amendments. Those proposed amendments must then be approved by three-quarters of the state legislatures or state conventions before being adopted. The framers did not believe that amending the Constitution should be a quick or easy task, nor has it proven to be such. Only twenty-seven amendments have been enacted since the Constitution was first adopted, and ten of those—the Bill of Rights—were added only two years after the new government was launched.
But amendments have not been the only mechanism for constitutional change. All three branches of the federal government—the Congress, the executive, and the federal judiciary—have themselves been agents of change. An important part of the job of America’s political leaders—elected and appointed—has been to respond to the extraordinary pace of social, economic, political, and cultural change that has marked the history of America since its first settlements. In responding to those changes, our political leaders have made decisions that have sometimes altered our understanding of the way the United States Constitution functions in serving “We the People.”
This final chapter is not intended to describe all the events that have shaped the U.S. Constitution. Instead, it offers brief summaries of a select number of Supreme Court decisions that have had a profound influence on our constitutional history. The selection of decisions, from among the several thousand rendered by the Supreme Court since the federal government commenced operation in 1789, is admittedly a subjective one. There are no doubt many decisions that constitutional scholars might prefer to some that I have chosen to summarize here. But my choices are not arbitrary; they have been informed by four important recurring issues and themes in American history:
1. The gradual acceptance of the principle of equality as a central value in American life.
2. The ever-changing debate within America over the meaning of federalism—the relationship between our national, state, and local governments.
3. The continuing debate within America over the appropriate division of power among the three branches of our federal government: the Congress, the president, and the judiciary.
4. The steady expansion of the application and interpretation of the rights granted to all American citizens by the federal Bill of Rights and by subsequent amendments to the Constitution.
MARBURY V. MADISON (1803). ALTHOUGH MANY OF THE framers of the Constitution believed that the newly created Supreme Court might have the power to review the constitutionality of a federal law, the court’s power of “judicial review” is not explicitly spelled out in the Constitution. In March 1801, just before his term of office expired, Federalist president John Adams made a series of “midnight appointments” of federal judges in a last-minute attempt to ensure that the federal judiciary would be staffed with judges loyal to his political principles. Most of those appointed to the judgeships were subsequently installed in their new positions, but several of them, including William Marbury, who had been appointed justice of the peace in the District of Columbia, did not have their commissions delivered to them before Adams left office. When Thomas Jefferson, a member of the opposing Republican Party, assumed the presidency, he refused to issue Marbury his judicial commission. Marbury then petitioned the Supreme Court, whose chief justice w
as now Jefferson’s bitter political enemy John Marshall, asking the court to issue a writ of mandamus (an edict commanding a government official to perform a particular action) ordering James Madison, the secretary of state, to deliver his commission to him. Justice Marshall conceded to President Jefferson a small victory by refusing to order Madison to deliver Marbury’s commission, but much more was at stake in the ruling than poor Marbury’s position as justice of the peace.
Although Marshall believed that Marbury had a legitimate right to his commission, he went on to conclude that the Supreme Court had no legal authority to force Secretary of State Madison to issue the commission to him. Although a portion of the Judiciary Act of 1789 had given the Court the right to issue writs of mandamus, Marshall and his fellow justices ruled that that portion of the act was “repugnant to the Constitution.” And then he made a bold leap, pronouncing:
It is emphatically the province and duty of the Judicial Department to say what the law is… . 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.
With that statement, the Supreme Court held the Judiciary Act of 1789 to be unconstitutional and, in the process, asserted the power of judicial review—the right of the Supreme Court to strike down an act it believes to be unconstitutional. In asserting that right, the Supreme Court set the judicial branch, which had been viewed by the framers of the Constitution as the least powerful and least consequential of the three branches of government, on a course to becoming a genuinely coequal branch of government.
The decision in Marbury v. Madison was carefully crafted so as not to appear to assert a sweeping power of judicial review over all pieces of congressional or state legislation, and because the specific issue involved was a relatively narrow one, Marshall’s ruling provoked little opposition. Indeed, the Supreme Court in subsequent years would only sparingly use its newly claimed power of judicial review over laws passed by Congress. It would not strike down another federal law until its ruling in the Dred Scott decision in 1857.
MCCULLOCH V. MARYLAND (1819). AS WE HAVE SEEN in chapter 5, the proposal by Secretary of the Treasury Alexander Hamilton to create a Bank of the United States, subsequently enacted by Congress and signed into law by President Washington, provoked two competing constitutional doctrines: the “strict constructionist” doctrine articulated by Thomas Jefferson and the “broad constructionist” doctrine favored by Hamilton.
In 1816 Congress reaffirmed the broad-constructionist principles underlying the creation of the First Bank of the United States by offering a new charter to a Second Bank of the United States. The state of Maryland attempted to challenge the constitutionality of the bank by imposing a tax on its Baltimore branch that would have effectively made it impossible for it to do its business. The Supreme Court, with John Marshall writing the decision, ruled that Maryland did not have the right to interfere with the bank’s operations and, more important, also affirmed the constitutionality of the bank by using a broad-constructionist reasoning that there were “implied powers” in addition to those explicitly enumerated in Article II of the Constitution.
The McCulloch case was just one of many cases in which rulings of the Marshall court served to promote the nation’s economic development while at the same time fashioning a new conception of federalism by strengthening the power of the federal government at the expense of the state governments. Among the most important of these cases are Fletcher v. Peck (1810), Dartmouth College v. Woodward (1819), and Gibbons v. Ogden (1824).
DRED SCOTT V. SANDFORD (1857). THE FRAMERS OF the Constitution in Philadelphia had conspicuously failed to deal with what historian Bernard DeVoto called the “paradox at the nation’s core”: the existence of the institution of chattel slavery in a nation founded on principles of liberty and equality. The consequences of that failure became all the more acute in the aftermath of America’s war with Mexico (1846-48). At the conclusion of that war, the ambitiously expanding nation found itself with vast quantities of new territory acquired from the vanquished Mexican government. The question facing the U.S. government was, what would be the status of slavery in these newly acquired territories? This was an issue that had divided North and South since 1819, when Missouri, a slaveholding territory, had applied for admission to the union. Although the United States Congress had fashioned some temporary compromises between the interests of North and South (the Missouri Compromise of 1820, the Compromise of 1850, and the Kansas-Nebraska Act of 1854), it was becoming increasingly clear that the issue of the status of slavery in the territories had put the two sections of the country on a collision course.
The Supreme Court’s ruling in the Dred Scott case may well be the worst decision in the history of the Court. It was a bad decision not merely because of its dubious constitutional logic (although there was some of that) but, more importantly, because it was rendered on the assumption that nine unelected judges could resolve an issue—that of slavery in the territories—that democratic majorities in the United States Congress had found themselves unable to resolve and that deeply divided the people of the country as a whole. Seven of the nine justices (five southern and two northern) ruled against the petition of Dred Scott, a Missouri slave who had been taken by his owner first into the free state of Illinois and then later into the free territory (under the terms of the Missouri Compromise) of Wisconsin. Scott claimed, therefore, that he should be considered a free man. The justices ruled that because Scott was legally a form of property, he had no right to sue in a federal court and therefore was not entitled to his freedom. That could have been the end of the case, and although it would have denied Scott the freedom he sought, it would not have shaken the very foundations of the American union. But the justices did not stop there. Abandoning long-held traditions of “judicial restraint” (the principle that justices should generally defer to the legislative branch in their rulings and that they should as much as possible base their decisions on existing legal precedents), the justices in the majority in the Dred Scott decision went on to rule that the part of the Missouri Compromise prohibiting slavery north of the 36°30’ latitude line violated Fifth Amendment protections of the ownership of property. By its expansive definition of the right to own slave property, the Dred Scott decision opened up the possibility that the right to own slaves could not be constitutionally prohibited in any territory of the United States. Any decision by the Supreme Court on an issue as explosive as that involving slavery in the territories would have been a controversial one, but the court, by abandoning principles of judicial restraint, made an already difficult situation even more so. The decision was hailed as a great victory by southern pro-slavery advocates, but it also served to heighten the sectional conflict between North and South and accelerated the course of the nation toward civil war.
PLESSY V. FERGUSON (1896). THE AMERICAN CIVIL WAR remains the most traumatic event in the nation’s history. It was the result at least in part of the failure of the Constitution to provide a workable mechanism for resolving the increasingly bitter divisions between North and South over the issue of slavery. But one consequence of that bloody war, in which nearly six hundred thousand Americans lost their lives, was the opportunity to eliminate that paradox at the nation’s core—the opportunity not only to abolish slavery but also to insert into the Constitution fundamental protections for the rights of freed slaves. The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments was an important step in transforming the egalitarian rhetoric of the preamble of the Declaration of Inde
pendence into binding constitutional law. The language of the Fourteenth Amendment in particular, with its stipulation that no state can deprive “any person of life, liberty, or property, without due process of law” and its guarantee of “equal protection of the laws” to all citizens, seemed to offer the promise of an America whose Constitution and laws would finally be in harmony with the egalitarian rhetoric that had justified the revolt against British rule.
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