Constitutional Law

views updated

CONSTITUTIONAL LAW

The U.S. Constitution, written in 1787 and ratified in 1788, was—in its own words—the "supreme Law of the Land" and required that all judges, state and federal, abide by it. The Constitution created a system of government and explained how Congress and the president would be elected, how judges would be chosen, and what the powers of the national government would be. Article I listed both the powers of Congress and the limitations on Congress and the states. Article IV set out how the states were to interact with each other. In 1791, three years after the Constitution went into effect, the states ratified ten amendments, which became known as the Bill of Rights. Most of these placed limitations on the powers of Congress and the judiciary. At the time of its writing and ratification, most American saw the Constitution as creating a government of limited powers. As Charles Cotes-worth Pinckney told South Carolina's legislature, "it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states."

While limited, the powers the national government had were "the supreme law of the land." There was uncertainty as to what those powers were. In the modern period one thinks of the U.S. Supreme Court as being the institution to determine the powers of the national government. But in the first decade under the Constitution, Congress was also deeply involved in debating the meaning of the Constitution and how it should be implemented, interpreted, and understood.

congress and the executive branch

The first great constitutional debate in the United States concerned what would become the Bank of the United States. In 1791 Secretary of the Treasury Alexander Hamilton, who had been a delegate to the Constitutional Convention, proposed the chartering of a national bank to regulate the nation's finances and stimulate commerce. In Congress, Representative James Madison of Virginia opposed Hamilton's plan on constitutional grounds. Madison argued that the Constitution did not give Congress the power to create a bank or to charter any corporation. That was not one of the enumerated powers found in Article I, section 8 of the Constitution, and thus Madison said it was beyond the scope of congressional power. Congress, however, passed the bank bill over Madison's objections.

When the bill reached his desk, President George Washington was uncertain as to its constitutionality and asked for advice from his cabinet. This led to the first great debate over constitutional law in the nation. Secretary of State Thomas Jefferson asserted that "the incorporation of a bank, and the powers assumed by this bill, have not … been delegated to the United States, by the Constitution." He argued that such powers were not "specifically enumerated" and that they could not be construed from the general taxing power "for the purpose of providing for the general welfare." Jefferson cited the Tenth Amendment, which stated that "the powers not delegated to the United States … are reserved to the States respectively, or to the people." Banks, Jefferson believed, as well as any other incorporated enterprise, were the business of the states. Jefferson also denied that the bank was "necessary and proper" for conducting the business of the United States government, although he admitted it might be "convenient." Jefferson argued that the national government was free to use state-chartered banks for its financial operations.

Alexander Hamilton argued that the Constitution contained "implied powers" as well as "express ones." Hamilton believed that the bank was both necessary and proper. He pointed out that the existing state banks might disappear and that Congress would then have no banking institutions to use. Jefferson's view of "necessary" was too narrow, Hamilton said, and he claimed that "necessary often means no more than needful, requisite, incidental, useful, or conductive to." Surely, by this line of reasoning, the bank could be considered "necessary." Hamilton forcefully argued that the test of a federal law was whether its policy or program related to a power of Congress and not whether the Constitution specifically authorized the policy or program. "If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority."

Hamilton won out, and Washington signed the bank bill into law. The force of Hamilton's arguments became clearer twenty-five years later, when James Madison urged Congress to pass another law creating what became the Second Bank of the United States. Madison, who had once opposed the bank on constitutional grounds, now argued that the constitutional question was "precluded … by repeated circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches, of the Government … [and] a concurrence of the general will of the nation."

In 1803 Madison and Hamilton debated each other in the press over the power of the president to conduct foreign policy. Writing as "Pacificus," Hamilton argued that the Constitution gave the president authority to conduct foreign policy on his own. Hamilton outlined the powers of the president set out in Article II of the Constitution, including his role as "Commander in chief of the army and navy of the United States and of the militia of the several states when called into actual service of the United States." This led him to assert that the "Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in" the Constitution. This broad reading of presidential power in foreign policy dovetailed with Hamilton's expansive views of the power of Congress to pass laws to stimulate the economy, charter banks, and so on. Madison responded by arguing for separation of powers and equality between Congress and the president. Relying on the power of Congress "to declare War" found in Article I, section 8 of the Constitution and the requirement that the Senate ratify treaties, he asserted that the Constitution required that Congress be involved in all issues of war and peace. This debate over interpretation of the Constitution was not settled in 1793, and it has remained an issue ever since.

In 1798 Congress passed the Sedition Act after rancorous debates over its constitutionality. James Madison and Thomas Jefferson both argued against the constitutionality of the Sedition Act through the Virginia and Kentucky Resolutions (1798) that they authored. Their arguments centered on the powers of Congress and the residual powers of the states. Curiously, although they mentioned the First Amendment's protection of freedom of the press, both Madison and Jefferson focused most of their analysis on the lack of explicit congressional power to regulate the press in Article I, rather than on the prohibition in the Bill of Rights. Both Madison and Jefferson also stressed the Tenth Amendment, which reserved powers to the states, including, they believed, the power to punish seditious libel. In the end, neither the Federalists who supported the law nor the Democratic Republicans like Jefferson and Madison who opposed it, argued in favor of freedom of expression as a constitutional right.

constitutional interpretation

While leading politicians debated the powers of Congress and the executive branch, the Supreme Court began to build a body of case law to flesh out the meaning of the Constitution. The first major case, Chisholm v. Georgia (1793), involved a lawsuit against the state of Georgia by a citizen of South Carolina. The U.S. Constitution gave the federal courts jurisdiction in cases "between a State and Citizens of another State." The Court interpreted this to mean that citizens of one state could sue other states in federal courts. Georgia resisted this outcome, and most state and federal politicians rejected this interpretation of the Constitution. Congress quickly reversed the decision by sending to the states the Eleventh Amendment, which stated that the federal courts had no jurisdiction to hear suits against states that were initiated by private citizens.

In Marbury v. Madison (1803) the Court held a minor provision of the Judiciary Act of 1789 to be unconstitutional. The case involved William Marbury, an appointee of John Adams, who had been confirmed by the Senate but did not receive his official commission before Adams left office. When the Jefferson administration refused to give him the commission, Marbury asked the Supreme Court to issue a writ of mandamus requiring Secretary of State James Madison to give it to him. The Judiciary Act of 1789 had authorized the Supreme Court to issue writs of mandamus, but in Marbury, Chief Justice John Marshall ruled that Congress did not have the power to expand the original jurisdiction of the Court beyond the limited instances set out in the Constitution. In doing this, Marshall actually expanded the power of the Court by asserting its right to declare an act of Congress unconstitutional. But he accomplished this in such a way that neither the president nor Congress, which was controlled by Jefferson's supporters, could object, since the outcome of the case was what Jefferson wanted. While seen as a major development in constitutional law—because it set the precedent for judicial review of congressional statutes—the Court would not declare another act of Congress unconstitutional for more than half a century, when it decided in Dred Scott v. Sand-ford (1857) that Congress could not prohibit slavery from the federal territories.

In Ex parte Bollman (1807) the Court offered a strict interpretation of the treason clause. In doing so, he overruled the executive branch's use of the clause to incarcerate Dr. Justas Erik Bollman, a close associate of former Vice President Aaron Burr, who Jefferson believed was part of a treasonous conspiracy. Chief Justice Marshall ruled that the treason clause required evidence that "war" had "actually [been] levied against the United States." This would require "an actual assemblage of men" for the purpose of war. By interpreting the Constitution's clause on treason in this narrow way, Marshall prevented future misuse of the clause as a political tool.

In Fletcher v. Peck (1810) the Marshall Court overturned an important state statute on constitutional grounds. The case involved the famous Yazoo land fraud. In 1795 the Georgia legislature sold about thirty-five-million acres of state lands to a group of speculators at one and a half cents an acre. With one exception, every member of the legislature that passed this law had accepted a bribe from the speculators. In 1796 a new legislature declared the previous sale null and void, but it did not return the half million dollars the state had received for the land. By this time much of the land had been sold and even resold. Robert Fletcher had purchased land from Peck that had been sold twice before the legislature attempted to nullify the original sale. The Supreme Court ruled that the nullification of the sale violated the contracts clause of Article I, section 10 of the Constitution. That clause prohibited the states from "impairing the Obligation of Contracts." This was a significant development in constitutional law because it established the precedent that the Supreme Court could strike down acts of the states.

In United States v. Hudson and Goodwin (1812), the Court reaffirmed its power to overrule acts of the executive branch. In 1806 the U.S. attorney in Connecticut prosecuted Barzillai Hudson and George Goodwin, the editors of the Connecticut Courant, for their criticism of President Jefferson. Unlike the situation during the last years of the Adams administration, there was no sedition law in place. Thus, this prosecution was done under common law. It illustrated the fact that Jefferson's opposition to the Sedition Act was not based on support of a free press or a belief that the opposition party has a right to freedom of expression. However, in 1812 the U.S. Supreme Court ruled that there could be no common law of crimes at the federal level, and that therefore all prosecutions at the federal level had to be based on statutes. This was an important limitation on the executive branch, just as Marbury v. Madison was a limitation on Congress.

emergence of federal supremacy

In Fairfax's Devisee v. Hunter's Lessee (1813), the Marshall Court once again overturned a state law and asserted the supremacy of the national constitution. This decision marked the beginning of a ten-year period in which the Court strengthened its own powers and the powers of Congress at the expense of the states. By the end of this period, the Court had established the meaning of a number of clauses of the Constitution. Some of the cases decided in this period would remain viable precedents over the next two centuries.

Fairfax's Devisee involved land in Virginia owned by Thomas, Lord Fairfax, a Loyalist who fled to Britain when the Revolution began. Subsequently, Virginia seized some of the land and eventually sold it to David Hunter. Fairfax's heirs resisted the change of ownership, and Hunter sued to eject the tenants from the land. In 1810 the Virginia Court of Appeals upheld Hunter's claim, asserting that Virginia had legally confiscated the Fairfax lands. By this time much of the Fairfax land had been sold to investors who included John Marshall and his brother, James. Thus, when the case reached the U.S. Supreme Court, Chief Justice Marshall did not participate in it. In 1813 the Supreme Court reversed the decision. The Court's jurisdiction was based on section 25 of the Judiciary Act of 1789, which gave the Supreme Court jurisdiction to review cases from the highest court of a state if the case involved a federal statute, a provision of the U.S. Constitution, or—as it did in this case—a treaty. The Court held that under the Treaty of Paris (1783) ending the American Revolution and Jay's Treaty (1794), Virginia was obligated to return Loyalist lands seized during the Revolution. The Court held that the supremacy clause of the Constitution required that the states respect these treaty obligations. The U.S. Supreme Court then returned the case to the Virginia court to restore the land to the Fairfax heirs and those who had purchased land from the Fairfax estate. In 1815 the Virginia Court of Appeals declared that the U.S. Supreme Court had no jurisdiction to review this case or any other cases it decided. The Virginia court in effect declared section 25 of the Judiciary Act of 1789 to be unconstitutional.

Not surprisingly, the case came back to the U.S. Supreme Court in 1816, this time as Martin v. Hunter's Lessee. Here Justice Joseph Story wrote a powerful opinion supporting the supremacy clause and the power of the federal judiciary to review cases from the states involving the Constitution and federal law. Story asserted that "the absolute right of decision, in the last resort, must rest somewhere," and that "somewhere" had to be the U.S. Supreme Court. Martin was one of Story's most important opinions and a key case in the development of the federal judiciary. Since 1816 it has been cited more than 125 times by the U.S. Supreme Court and more than 575 times by other courts at the state and federal level. Despite its age, from 1990 to 2000 the Supreme Court cited the case eight times.

In 1819 the Court heard two cases of monumental importance. The first was McCulloch v. Maryland (1819), which—many scholars have argued—contains Chief Justice John Marshall's most powerful and important opinion. The case involved the constitutionality of the Bank of the United States, which Maryland tried to destroy by taxing its bank-notes. Reading more like a state paper than a legal opinion, Marshall set out why the states could not undermine federal law, where the federal government had power to legislate. The "great principle" of the Constitution, he explained, was "that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them." Because the "power to tax involves the power to destroy," no state could tax any federally created institution. Marshall also set out why the necessary and proper clause of the Constitution gave Congress enormous flexibility to pass laws on all sorts of matters not explicitly mentioned in the Constitution. Marshall rejected a narrow reading of the Constitution that limited congressional power to what was explicitly set out in the document. He denied that a constitution could "partake of the prolixity of a legal code" and noted that a constitution listing all the things that the Congress could do "could scarcely be embraced by the human mind." He reminded readers "that it is a constitution we are expounding" and as such it had to have open-ended language that would allow for flexibility and growth. This was true because it was "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

This powerful endorsement of congressional supremacy and the right of the Supreme Court to strike down state laws angered states' rights advocates, especially in Virginia. However, the case is perhaps the most important in Supreme Court history. Marshall's opinion has been cited by the Supreme Court more than 350 times and by other state and a federal courts more than 2,500 times. Between 1990 and 2000, the U.S. Supreme Court cited the case 30 times.

In Dartmouth College v. Woodward (1819) the Court interpreted, as it had in Fletcher v. Peck, the meaning of the contracts clause of Article I, section 10 of the Constitution. New Hampshire had revoked the charter of Dartmouth College and created a new institution, Dartmouth University, as a state-supported entity. The old trustees of Dartmouth College sued William Woodward to regain control of their college. Woodward had been an officer of the old Dartmouth College, but abandoned the college, and took its records, seal, and other materials with him when he agreed to serve the new Dartmouth University. In their suit the college trustees sought to recover these records as they gained control of the college. The Court held that the charter creating Dartmouth College was a contract between the government and the founders of the college, and as such the state could not simply take over the college. Another key opinion in the development of the Constitution, it has been cited more than one hundred times by the U.S. Supreme Court and more than fifteen hundred times by other courts.

In Cohens v. Virginia (1821) the Court reaffirmed its right, and power, to review the decisions of state courts, even as it upheld the state courts. The Cohen brothers had been convicted in Virginia of selling tickets for a Washington, D.C., lottery in violation of that state's antilottery laws. They argued that the lottery was created by Congress and thus was exempt from state law. The Virginia court upheld this conviction and Virginia argued that the U.S. Supreme Court had no jurisdiction to even hear the case because of the Eleventh Amendment, which prohibited the federal courts from hearing suits brought against the states by private citizens from other states. The Supreme Court did not accept this analysis. Instead, the Court held that if the state began a suit or prosecution, then the citizen defendant could appeal to the federal courts if there was a federal issue. Although emphatically asserting the right of the Supreme Court to hear the appeal, Marshall sided with the state of Virginia. The lottery ticket was not like the Bank of the United States, which Congress had chartered to operate in every state. Furthermore, there was no reason, under the necessary and proper clause, why lottery tickets for Washington, D.C., should be sold in Virginia. Virginia politicians and judges grumbled at the reaffirmation of the supremacy clause and the power of section 25 of the Judiciary Act, even as the Supreme Court upheld Virginia on the substantive issue. The Cohen brothers paid their fines, while the Supreme Court went on to cite the precedent more than 175 times in subsequent cases, while other courts cited it more than 1,500 times.

In Gibbons v. Ogden (1824) the Marshall Court issued its most popular opinion. In this case the court interpreted the commerce clause to ban New York's grant of a monopoly to operate steamboats in the state. The opinion led to increased competition in transportation, which improved commerce, trade, and travel. In reaching this decision, Chief Justice Marshall developed an expansive interpretation of the commerce clause and emphatically asserted the power of Congress in areas of law delegated to Congress. He wrote that "the sovereignty of Congress, though limited to specified objects, is plenary as to those objects."

After Gibbons the Court continued to develop and refine its jurisprudence on commerce, contracts, and other provisions of the Constitution. But by 1824 the Marshall Court's jurisprudential legacy on constitutional issues was for the most part clear. Marshall had strengthened Congress and the executive branch in their contests with the states. He had defined the powers of Congress and also forcefully asserted the right and duty of the Court to settle constitutional disputes between the states and the national government. Most importantly, he had made the Court into a coequal branch of the government, one that would be respected and usually obeyed.

bibliography

Baxter, Maurice G. The Steamboat Monopoly: Gibbons v. Ogden, 1824. New York: Knopf, 1972.

Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. Chapel Hill: University of North Carolina Press, 1985.

——. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.

Urofsky, Mel, and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2nd ed. New York: Oxford University Press, 2002.

White, G. Edward. The Marshall Court and Cultural Change, 1815–35. New York: Macmillan, 1988.

Paul Finkelman

Encyclopedia of the New American Nation