Original Intent: The Courts, the Constitution, and Religion

by David Barton

In testimony whereof I have caused the seal of the United States to be hereunto affixed, and signed the same with my hand. Done at the city of Washington, the 16th day of July, A. D. 1803, and in the twenty-eighth year of the Independence of the United States. By the President: THOMAS JEFFERSON6

  Given under my hand and the seal of the United States at the city of Washington, the 9th day of August, A. D. 1809, and of the Independence of the said United States the thirty-fourth. By the President: JAMES MADISON7

  Given under my hand, at the city of Washington, this 28th day of April, A. D. 1818, and of the Independence of the United States the forty-second. By the President: JAMES MONROE8

  Given under my hand, at the city of Washington, this 17th day of March, A. D. 1827, and the fifty-first year of the Independence of the United States. By the President: JOHN QUINCY ADAMS9

  Given under my hand, at the city of Washington, this 11th day of May, A. D. 1829, and the fifty-third of the Independence of the United States. By the President: ANDREW JACKSON10 &c.

  Additional evidence of the importance of the Declaration in our constitutional government is provided by the fact that the admission of territories as States into the United States was often predicated on an assurance by the State that its constitution would violate neither the Constitution nor the principles (i.e., the value system) of the Declaration. For example, notice these enabling acts granted by Congress for various States:

  [T]he constitution, when formed, shall be republican, and not repugnant to the Constitution of the United States and the principles of the Declaration of Independence. COLORADO11

  [T]he constitution, when formed, shall be republican, and not repugnant to the Constitution of the United States and the principles of the Declaration of Independence. NEVADA12

  The constitution, when formed, shall be republican, and not repugnant to the Constitution of the United States and the principles of the Declaration of Independence. NEBRASKA13

  The constitution shall be republican in form… and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence. OKLAHOMA14

  In the Declaration, the Founders established the foundation and the core values on which the Constitution was to operate; it was never to be interpreted apart from those values. This was made clear by John Quincy Adams in his famous oration, “The Jubilee of the Constitution.” Adams explained:

  [T]he virtue which had been infused into the Constitution of the United States … was no other than the concretion of those abstract principles which had been first proclaimed in the Declaration of Independence…. This was the platform upon which the Constitution of the United States had been erected. Its virtues, its republican character, consisted in its conformity to the principles proclaimed in the Declaration of Independence and as its administration … was to depend upon the … virtue, or in other words, of those principles proclaimed in the Declaration of Independence and embodied in the Constitution of the United States.15

  Generations later, President Abraham Lincoln reminded the nation of that same truth:

  These communities, by their representatives in old Independence Hall, said to the whole world of men: “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” …. They erected a beacon to guide their children, and their children’s children, and the countless myriads who should inhabit the earth in other ages…. [T]hey established these great self-evident truths that … their posterity might look up again to the Declaration of Independence and take courage to renew that battle which their fathers began, so that truth and justice and mercy and all the humane and Christian virtues might not be extinguished from the land…. Now, my countrymen, if you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence … let me entreat you to come back…. [C]ome back to the truths that are in the Declaration of Independence.16

  The interdependent relationship between these two documents was clear, and even the U. S. Supreme Court openly affirmed it. At the turn of the century (1897), the Court declared:

  The latter [Constitution] is but the body and the letter of which the former [Declaration of Independence] is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence.17

  The Constitution cannot be properly interpreted nor correctly applied apart from the principles set forth in the Declaration; the two documents must be used together. Furthermore, under America’s government as originally established, a violation of the principles of the Declaration was just as serious as a violation of the provisions of the Constitution.

  Nonetheless, Courts over the past half-century have steadily divorced the Constitution from the transcendent values of the Declaration, replacing them instead with their own contrivances. The results have been reprehensible – a series of vacillating and unpredictable standards incapable of providing national stability.

  ~15~

  Maintaining Constitutional Integrity:

  A Government of the People

  Just as the Founders defined the value system under which the government was to operate, they also defined the function of each of its three branches. And just as the Court has largely rejected the Founders’ value system, it has also rejected the roles they assigned each branch. A major factor allowing the Court to ignore its constitutionally designed boundaries is the failure of most citizens to study the Constitution for themselves and thus to understand the function and role of each branch.

  In a simple overview, Article I of the Constitution sets forth the responsibilities of the Legislative branch, dedicating 109 lines to describing its powers; Article II addresses the duties of the Executive branch in 47 lines; and Article III has a mere 17 lines in its description of the responsibilities of the Judiciary. The fact that the Legislative branch is listed first, coupled with the fact that nearly two-thirds of the lines describing the three branches of government are dedicated to the Congress, implies that our Founders believed it to be the most important and most powerful branch, with the Judiciary the least important and least powerful.

  This is further confirmed by the fact that the Constitution makes many of the functions and operations of the Judiciary subject to the control of the other two branches. For example, the Executive selects and the Legislature confirms the members of the Judiciary; Congress sets the salaries for judges, determines the size of the Judiciary, and establishes the scope of their jurisdiction and the type of cases which might come before them; and Congress is given the power to remove judges with whom it is dissatisfied. Quite clearly, the Constitution places many functions of the Judiciary under the oversight of the other branches – a power not granted reciprocally to the Judiciary.

  Additional indication of the overall lack of weight given the Judiciary is evident in the fact that the Founders, in their farsighted preparations and planning for the nation’s capitol in Washington, D. C., provided distinct buildings for the Executive and the Legislature but no building for the Judiciary. In fact, the Supreme Court was housed in the basement below the Senate chambers for almost fifty years and did not have its own separate building until 1935.1

  The clearest irrefutable proof concerning the ranking of the Judiciary is provided in the Federalist Papers. These papers were written by James Madison, Alexander Hamilton, and John Jay immediately following the Constitutional Convention to explain how the government would operate under the Constitution. How reliable is this work in establishing the Founders’ intent? According to Madison, whose notes on the Convention are considered the authority:

  The “Federalist” may fairly enough be regarded as the most authentic exposition of the heart of the federal Constitution as understood by the body which prepared and the authority which accepted it.2

  In establishing the relative weight assigned to each br
anch, Alexander Hamilton forcefully declared in Federalist #51:

  [T]he Legislative authority necessarily predominates.3 (emphasis added)

  Then, in Federalist #78, he declared:

  [T]he Judiciary is beyond comparison the weakest of the three departments of power…. [T]he general liberty of the people can never be endangered from that quarter.4 (emphasis added)

  As Hamilton explained:

  The judiciary … has no influence over either the sword or the purse – no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will.5 (emphasis added)

  That the Legislature was the superior force and the Judiciary the inferior is not surprising since the political theorists on whom the Founders relied taught the same. For example, John Locke declared:

  [T]he first and fundamental positive law of all commonwealths is the establishing of the Legislative power…. This Legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it; nor can any edict [decision or decree] of anybody else … have the force and obligation of a law which has not its sanction [approval] from that Legislative which the public has chosen.6

  Montesquieu, in discussing each of the three branches, declared:

  Of the three powers above mentioned [Executive, Legislative, Judicial], the Judiciary is in some measure, next to nothing.7

  Logic demanded that those officials elected by the people to make laws held a more important position than those unelected officials who interpreted them. In fact, the approbation of the people was so important to policy-making that our founding documents declare that policies are to be established by “the consent of the governed.” The Constitution defines what establishes that consent: usually a simple majority vote, although, on occasion, it can be two-thirds or three-fourths.

  This principle of citizen approval was fundamental to government at all levels, both federal and State. For example (emphasis added in each example):

  [A]ll power is inherent in the people and all free governments are founded on their authority.8 PENNSYLVANIA

  [A]ll power is originally vested in the people and all free governments are founded on their authority.9 SOUTH CAROLINA

  [N]o authority shall, on any pretense whatever, be exercised over the people or members of this State, but such as shall be derived from and granted by them [the people].10 NEW YORK

  [A]ll political power is vested in and derived from the people only.11 NORTH CAROLINA

  [P]ower is inherent in them [the people], and therefore all just authority in the institutions of political society is derived from the people.12 DELAWARE

  [A]ll power being originally inherent in, and consequently derived from the people, therefore all officers of government – whether Legislative or Executive – are their trustees and servants and, at all times in a legal way, accountable to them.13 VERMONT

  [A]ll power is vested in and consequently derived from the people.14 VIRGINIA

  [A]ll government of right originates from the people, is founded in consent, and instituted for the general good.15 NEW HAMPSHIRE

  All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether Legislative, Executive, or Judicial – are their substitutes and agents and are at all times accountable to them.16 MASSACHUSETTS

  [A]ll government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.17 MARYLAND

  Clearly, the will of the people is the fundamental principle of all sound government.† Therefore, it was the Legislature, not the Judiciary, which was the true guardian of the people’s liberties – and logically so, for that branch was most responsive to the people. As Alexander Hamilton explained:

  The members of the Legislative department … are numerous. They are distributed and dwell among the people at large. Their connections of blood, of friendship, and of acquaintance embrace a great proportion of the most influential part of the society…. they are more immediately the confidential guardians of their rights and liberties.20

  This did not mean that the Judiciary was powerless. It did provide a level of checks and balances on the other branches by reviewing laws and judging them against the Constitution – a process called “judicial review.”† Under its current application, however, this term is misleading, for today the term too often is synonymous with judicial activism and judicial revision.

  What, then, is the proper application of “judicial review”? The term was not used per se in early America; however, in its historic form, judicial review is protecting the Constitution through a judicial policing function whereby laws were judged against the clear meaning and original intentions of the Constitution.

  Hamilton affirmed this in his Federalist essays, declaring that the courts were “faithful guardians of the Constitution.”21 Numerous other Founders agreed. For example:

  A law violating a constitution established by the people themselves would be considered by the judges as null and void.22 JAMES MADISON

  [W]hen they [the judges] consider its [a law’s] principles and find it to be incompatible with the superior power of the Constitution, it is their duty to pronounce it void.23 JAMES WILSON, SIGNER OF THE CONSTITUTION, U. S. SUPREME COURT JUSTICE

  If they [the federal government] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard…. They [the judges] would declare it void.24 JOHN MARSHALL, REVOLUTIONARY OFFICER, SECRETARY OF STATE, CHIEF JUSTICE U. S. SUPREME COURT

  The Judicial power … [is the] proper and competent authority to decide whether any law made by Congress … is contrary to or in violation of the federal Constitution.25 SAMUEL CHASE, SIGNER OF THE DECLARATION, U. S. SUPREME COURT JUSTICE

  They [judges] could declare an unconstitutional law void.26 LUTHER MARTIN, DELEGATE TO THE CONSTITUTIONAL CONVENTION

  [The Judiciary’s] duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.27 ALEXANDER HAMILTON, SIGNER OF THE CONSTITUTION

  The Judicial department is the proper power in the government to determine whether a statute be or be not constitutional.28 JAMES KENT, “FATHER OF AMERICAN JURISPRUDENCE”

  The power of interpreting the laws involves necessarily the function to ascertain whether they are conformable to the Constitution or not; and if not so conformable, to declare them void and inoperative.29 JOSEPH STORY, U. S. SUPREME COURT JUSTICE

  However, the consent for judicial review was not unanimous; some Founders did express opposition to this process. For example, during the Constitutional Convention, delegate John Mercer objected to “the doctrine that the judges, as expositors of the Constitution, should have authority to declare a law void.”30 Others, including John Dickinson, agreed.31 Most, however, apparently supported it, for, as delegate Elbridge Gerry stated, this practice by the Judiciary had been accepted by the people “with general approbation.”32 In fact, one scholar documents that almost two-dozen of the fifty-five delegates to the Constitutional Convention expressly approved this function.33

  On the basis of such historical evidence, Justice Story declared in his Commentaries that it was “indisputable that the Constitution was adopted under a full knowledge of this exposition of its grant of power to the Judicial department.”34 Very simply, the Constitutional framers supported judicial review; the Federalist Papers explained it; the ratification debates described it; and legal scholars confirmed it.

  Yet, within judicial review, there were specific things which the Judiciary could not do. For example, laws were to be judged only against the specific, self-evident wording of the Constitution and nothing further. In other words, judicial review had a limited field of inquiry. Hamilton confirmed this in Federalist #81:

&nb
sp; [T]here is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution.35 (emphasis added)

  James Kent similarly explained that the Judiciary could compare a law only to “the true intent and meaning of the Constitution.”36

  According to Hamilton, the reason that the courts were not to construe the laws “according to the spirit of the Constitution” was that this would “enable the court to mold them [the laws] into whatever shape it may think proper” which was “as unprecedented as it was dangerous.”37 Very simply, if the Judiciary were allowed to place its own meaning on laws, or to strike down laws which did not necessarily violate the Constitution but with which it disagreed, then the Judiciary would become more powerful than the Legislature – a possibility repugnant to the Founders. As James Madison explained:

  [R]efusing or not refusing to execute a law, to stamp it with its final character…. makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.38 (emphasis added)

  The Founders understood that under a broad judicial review, the Judiciary might become policy-makers – something they explicitly forbade. As signer of the Constitution Rufus King warned, “the judges must interpret the laws; they ought not to be legislators.”39 Hamilton similarly declared that the Judiciary was forbidden to “substitute [its] own pleasure to the constitutional intentions of the Legislature.”40

  Samuel Adams also offered strong opinions on this subject† and explained why Legislative intentions, rather than Judicial intentions, must always prevail: