The American Constitutional experience literally musters its heart and soul from the parchment of great thinkers; their ideas only minimally transformed, set the stage to create the document that was ratified in 1791. While our constitutional principles were borrowed from the political ideals of the Enlightenment and the Ancient Greeks, James Madison documented a dramatic restructuring of government that took those principles farther than any government had ever gone before and truly reflected the shared American beliefs we had professed within our Declaration of Independence. Once the Constitution was ratified, the obvious concessions made for its passing immediately turned to disputes within the political arena. Consequently, John Marshall orchestrated a political balancing act that served as the prime example for the Supreme Court to take in order to protect the political process that the Constitution outlined. That process, which was judiciously exercised with the “Doctrine of Incorporation” ramifications of the 14th Amendment and the “Switch in Time Saves Nine” political transition, became more reflective of popular will and individual liberties. When exploring the American constitutional experience we can see that the Constitution continues to be interpreted in a manner that balances precedent with current social and political times while the checks and balances built into the document hold the political process secure from any lasting degradation.
Aristotle’s idea of the perfect union consisted of “a mixture of oligarchy and democracy.” (Aristotle 1998 p.115 4.8.1293b33-34) The mixture of governments in which he coined a term for was Aristocracy, naming the best regime after himself. He thought “of a just ruler as one who does not get more than his share. He does not assign to himself a larger share of what is intrinsically good, unless such a share is proportionate to his deserts. His labor is, therefore, for the benefit of others, and for this reason, justice is called another’s good.” (Aristotle 1962 p.130 5.6.1134b3-6) An aristocracy consisted of a state with a benevolent leader with a correct constitution. “Those constitutions that look to the common benefit turn out, according to what is unqualifiedly just, to be correct, whereas those which look only to the benefit of the rulers are mistaken and are deviations from the correct constitutions. For they are like rule by a master, whereas a city-state is a community of free people.” (Aristotle 1998 p.77 3.6. 1279a17–21) Aristotle’s writings gave access to such ideals as free people, rulers that stand as only equals to their people, and a correct constitution that benefits the whole. His definition of equal and free are far removed from what we have today but the principles still hold.
Coming quite a bit closer to the era of ratification, Thomas Hobbes, John Locke, Charles Montesquieu and Jean-Jacques Rousseau gave us varying viewpoints of two central constitutional principles, the appropriation of sovereign power and the natural rights of the individual. To begin with Hobbes, his take on these two principles revolve around the absolute sovereignty of one leader. “For the laws of nature, as justice, equity, modesty, mercy, and, in sum, doing to others as we would be done to, of them, without the terror of some power to cause them to be observed, are contrary to our natural passions that carry us to partiality, pride, revenge, and the like.” (Pojman 2003 p.70) The need to control the people through terror is very different from Locke’s version of natural rights of individuals that would limit that power.
“But though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property.” (Locke 2005 p.73 Chapter IX §131) Locke makes it very clear that he believes sovereignty should be based in the legislative, and that power should be used to preserve the natural rights of the people.
Montesquieu provides another structural version of government to the options available to our founders, one of a separation of sovereign powers between branches. “In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.” (Montesquieu 2002 p.151 Book XI §6) He articulates a set structure of government he mistakenly thought was already in use in England and even obliged future generations with an understanding of how liberty can be protected by government.
“The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” (Montesquieu 2002 p.151 Book XI §6) Furthering his clarification, he pinpoints not only that the separation of the bodies of government is essential but also the separation of peoples to safeguard the political process. “Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (Montesquieu 2002 p.152 Book XI §6)
Montesquieu obviously built his political viewpoint from those that came before as Madison came to do a century later and yet without Rousseau’s sovereignty of the people ideology the particular construction of the American Constitution would have never materialized. “I hold then that Sovereignty, being nothing less than the exercise of the general will, can never be alienated, and that the Sovereign, who is no less than a collective being, cannot be represented except by himself: the power indeed may be transmitted, but not the will.” (Rousseau 1987 P.153Book II §1) Rousseau believed that the people were the true sovereign and only the power to enforce that sovereignty could be transmitted and yet he took it a step further and made that power indivisible. “Sovereignty, for the same reason as makes it inalienable, is indivisible; for will either is, or is not, general; it is the will either of the body of the people, or only of a part of it. In the first case, the will, when declared, is an act of Sovereignty and constitutes law: in the second, it is merely a particular will, or act of magistracy — at the most a decree.” (Rousseau 1987 P.153Book II §1)
James Madison, in addition to the aforementioned principles that would have been introduced to him at Princeton in his college years, chose the study of other world governments during his political career and created his Notes on Ancient and Modern Confederacies in 1786. This philosophic body of knowledge resulted in him producing a detailed plan for his own country. Taking this plan into action, he advised the men gathered in Annapolis that September that the Articles of Confederation, as a whole, were fundamentally flawed. “To devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.” (Howard 1985 p.85) With his prompting, the Constitutional Convention got underway in 1787; his Virginia Plan became the working model, the constitutional blueprint for the convention. “The Virginia Plan proposed a National Executive, a National Judiciary, and a National Legislature consisting of two houses apportioned according to population and empowered to legislate in all cases to which the separate States are incompetent.” (Howard 1985 pp.85-86) This proposition lent to the Constitution the separation of powers principle and federalist foundation.
Madison wrote to George Washington during the convention, “the national Government should be armed with positive and complete authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization.” (Madison 1787) Unlike Hobbes, Madison balanced this supremacy with rights of the individual. “He explained to Jefferson, a Bill of Rights could serve two powerful objectives. First, “the political truths declared in that solemn manner” would “acquire by degrees the character of fundamental maxims of free Government.” Second, occasions might arise when the existence of a Bill of Rights could prove to be “a good ground for an appeal to the sense of community.” (Madison 1788) Obviously, Madison took guidance from the Declaration of Independence and showed a decent respect to the opinions of mankind, not by declaring the causes that impelled us to separate from England, but by creating a brilliant architecture of government with the utmost respect for the sovereignty of its people. (U.S. Declaration of Independence 1776 ¶ 1) Madison added his design to the works of the great thinkers that came before him, fine-tuning, organizing and documenting the principles they established, allowing for the replication of the Constitution to be spread throughout the world.
Within years of ratification, the ambitiousness of such a broadly written document met head on with an immature political process. Federalist Paper No. 1 gives a picture of what a sovereign people may choose as their concept of law in Marshall’s day. “It seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” (Hamilton 2009 p.12 Fed 1 §1) Chief Justice John Marshall chose a path that dealt with this reality. “Marshall wished to defend his conclusions against future critics, Marshall avoided precedent, “whose justice and appropriateness might always be challenged,” and relied instead on “‘safe and fundamental principles’ ” which, he hoped, would persuade more people.” (Eisgruber 1996 p.440)
Persuading people was the only true power the judiciary actually possessed. Although the vesting clause states that the Supreme Court has “the judicial Power of the United States” (U.S. Const. art III, § 1) and “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,” (U.S. Const. art III, § 2) without the powers of the purse or sword, the judiciary was left with persuasion. In Marbury v. Madison, it needed to be decided if courts had “the power to determine whether a particular statute is void. They must, said Mar- shall, because “it is emphatically the province and duty of the judicial department to say what the law is.” (Eisgruber 1996 p.453-4) The political conflict between the Federalists and Anti-federalists became a constitutional question for Marshall. The question, Marshall chose to answer with his ruling in Marbury v. Madison was whether the judiciary was a co-equal branch with that of the executive and legislative. The judicial review he constructed answered that question and gave the Constitution the interpretation it needed to equalize the majoritarian branches with the non-majoritarian judicial branch; situating the Supreme Court as a powerful part of the system of checks and balances required to protect the political process.
McCulloch v. Maryland was another landmark case in which Marshall played a political balancing act, this was perceived as a conflict between states but soon became a constitutional question for the Marshall Court. “The states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.” (McCulloch v. Maryland 17 US 159 (1819) 213) The Marshall Court flexed the Supremacy Clause in order to make a definite point to Maryland and all other states that may question the supremacy of the national government. “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” (U.S. Const. art VI, cl. 2)
National supremacy was furthered along when a case delivered the dispute over the Commerce Clause to the feet of the Marshall Court in 1824. “The word “among” means intermingled with. A thing, which is among others, is intermingled with them. Commerce among the States, cannot stop at the external boundary line of each State, but may be introduced into the interior.” (Gibbons v. Ogden, 22 U.S. 1 (1824) 194) Bestowing the national government’s supremacy into the interior of the state’s commerce was the crown jewel of Marshall’s federalism. Yet, after studying Marshall’s choice to elevate Judicial Review and National Supremacy above all else, Barron v. Baltimore offers a restriction on federal power in regards to the Bill of Rights. “Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention.” (Barron v. Baltimore 32 US 243(1833) 250)
Here Marshall defers to the framers, not the branches of government or the levels of government but in the power of precedent in the amendments to the Constitution. “Some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed.” (Barron v. Baltimore 32 US 243(1833) 249) Chief Justice Marshall secured three of the most significant constitutional principles that have guaranteed the legitimacy of the political process in which the Constitution was intended to protect, judicial review, national supremacy, and the power of the precedent set by the Amendments to the Constitution.
With a gap of sixty years between Amendments, the Fourteenth Amendment activated a movement toward applying the Bill of Rights to state governments. No state shall “deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const. Amend XIV, § 1 cl.4) This Amendment was brought forth due to the overwhelming pressure of the Civil War to have all of the citizens of the Union be equal before the law. Nevertheless, beginning with the Slaughterhouse Cases, the Supreme Court stuck with precedent and honored the political process that had come before. John Marshall’s words of the “safe and judicious course in framing the amendments” did not ring true for the justices of the day that saw the Civil War Amendments not worthy of regard. If this path had been the road most taken to date, then the political process would not have been well protected by the Constitution. Adding the 13th, 14th, and 15th Amendments adhered the original fundamental principles to a large group of people that never legally had access to them before. Since the Palko decision, the American people gained access to taking another course, one that included fundamental rights in that political process. Although Palko did not incorporate a right, Justice Cardozo defined fundamental rights in the opinion of the court “a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Palko v. Connecticut 302 U.S. 319 (1937) 325)
Another influential dicta, this from Justice Sanford, “[W]e may act to assume that freedom of speech and of the press … are among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.” (Gitlow v New York 268 US 652 (1925) 666) the court was open to determine what principles could be ranked as fundamental according to the people. Total Incorporation of the Fourteenth Amendment was not possible due to the rights that had already been dismissed as needing to be absorbed by the states. As an example, in 1875 the court removed the Second Amendment from incorporation with this opinion.
“The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence. The Second Amendment means no more than that it shall not be infringed by Congress, and has no other effect than to restrict the powers of the National Government.” (United States v. Cruikshank, 92 U.S. 542 (1875)542)
Rights had been absorbed by the states prior to Palko, freedom of speech in 1925 with Gitlow v. New York and freedom of the press in 1931 with Near v. Minnesota. The incorporation of “fundamental rights” brought about the absorption of most of the Bill of Rights over time, just as Justice White pointed out on the topic of trial by jury in criminal cases in the Duncan decision. “We believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee.” (Duncan v. Louisiana 391 U.S. 145 (1968)149)
The not-so-promising beginning to Selective Incorporation was occurring at the same time as the dramatic economic upheaval that affected every American home at the start of the 1930s. Eventually, that upheaval settled the country into the Great Depression, which had very little effect on the Supreme Court. The dissenting opinion in 1937 from West Coast v. Parrish that dealt with another minimum wage case, “urged that the question involved should now receive fresh consideration, among other reasons, because of “the economic conditions which have supervened”; but the meaning of the constitution does not change with the ebb and flow of economic events.” (West Coast Hotel Co. v. Parrish, 300 US 379 (1937) 402) Just weeks before the Parrish decision, the Court had consistently decided cases with that mindset.
“By 1936, the court position in relation to the cases involving the federal government could be summarized as being against the enhancement of presidential power, further legislative control over the economy, and the granting of discretion to administrative agencies.” (Carson 2002 p.303) The political process had come to a screeching halt and the Supreme Court had its hand on the brake until the Parrish decision. There are numerous arguments about why this switch occurred, which will not be delved into here, but the consequence of the 1937-1940 Supreme Court revolution was summarized very well by Edward S. Corwin.
“There are three casualties of this revolution and one general consequence, which spring from the nature of the casualties. The judicial doctrines, which can be listed as losses in the battle for judicial supremacy, are the laissez-faire theory of governmental functions, the theory of competitive federalism, and the doctrine of separation of powers as expressed in the Schechter opinion. The strategic consequence of these casualties is the decline in the scope and effectiveness of judicial review.” (Corwin 1941 p.1165)
Corwin’s interpretation of a multi-year political process wrapped up in one paragraph is hardly respectful of his work but it does illustrate simple, political truths. It is far from fantastic to understand that when the People, the President, and the Congress see the future of the country in an incredibly different light than the Supreme Court, that circumstance requires an about-face by that Court. The broadly written nature of the Constitution would have allowed the Supreme Court to decide on either side of the New Deal proposals without being revolutionary in any way. The reason the Supreme Court decisions regarding the New Deal before Palko could be construed as unconstitutional was that those decisions did not reflect the people’s will, which was blatantly being expressed by the Congress and the President.
A snap shot of this era gives us an opportunity to appreciate a picture of what the political process of the United States, was, is, and will be in the near future. Whether the focus lies on National Supremacy that can be easily seen in the decisions based on the Commerce Clause.
“That intrastate activities, by reason of close and intimate relation to interstate commerce, may fall within federal control is demonstrated in the case of carriers who are engaged in both interstate and intrastate transportation. There federal control has been found essential to secure the freedom of interstate traffic from interference or unjust discrimination and to promote the efficiency of the interstate service.”(NLRB v. Jones & Laughlin Steel Corp 301 US 1(1937)37-38) Then again, if the focus lies on the separation of powers required to engage the political process, then we can take for example the cases that deal with delegation of powers. “Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable for the rehabilitation and expansion of trade or industry.” (ALA Schechter Poultry Corp. v. United States, 295 US 495 (1935) 538)
Lastly, the political process protects individual rights when it is truly reflective of constitutional principles as can be seen in the decisions that best reflect the need for judicial review. “If ever there were justification for intrusive judicial review of constitutional provisions that protect “discreet and insular minorities” United States v. Carolene Products Co., 304 U.S. 144 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects.” (Obrien 2011 p.1093) As Obrien articulates in this statement, footnote 4, written in 1938 still personifies the will of the people in 2011.
Determining the five most significant individuals or events in American constitutional history has led me to believe that determined men and women have followed a fundamentally principled path. This path toward human enlightenment and an understanding of the correct structure of government perpetuated a cascade of events that has maintained the American political process through the adherence to those set principles and structure. From the beginning, the politically enlightened risked their reputations and sometimes their lives to document necessary political growth for mankind. I have credited Aristotle, Hobbes, Locke, Montesquieu and Rousseau for being the philosophers of their times who most significantly contributed to the making of our Constitution. James Madison is credited as an individual, for being the most significant person to encourage the process of making the Constitution, and put forth the most effort and analysis toward the structure of our government and to the Constitution itself, seeing the document through to ratification. In Madison’s words, “Should abuses creep into one part, they are reformed by those that remain sound.” (Hamilton 2009 p.199 Fed. 43 §6)
John Marshall, again credited as an individual, orchestrated a number of Supreme Court cases that fixed the heading of the political process of this country toward national supremacy, judicial review, and a belief that principle was above precedent, although not in regards to the Amendments from the People. This translated into the next significant event and that is the Fourteenth Amendment and its implications that took over a hundred years to be fully realized. Selective Incorporation gave the Bill of Rights nearly the same stature as the body of the Constitution itself; having the political process for the individual on equal terms with that of the People. However, Selective Incorporation could have never survived the Court of the mid 1930’s without the last event, the revolution that occurred with the Supreme Court itself. Whether this revolt from precedent and embracing of FDR’s New Deal programs occurred due to the President’s court-packing plan or not, the political process was protected once more be the principles of the Constitution. Chief Justice Evan Hughes concludes succinctly.
“But in the great enterprise of making democracy workable, we are all partners. One member of our body politic cannot say to another-“I have no need of thee.” We are all partners, and we work in successful cooperation by being true, each department to its own function, and all to the spirit, which pervades our institutions. Exalting the processes of reason, seeking by the very limitations of power, the wise exercise of power. Finding the ultimate security of life, liberty, and the pursuit of happiness and the promise of continued stability and a rational progress, in the good sense of the American people.” (Hughes 1939 p.87)
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Betty J. Craipo 