Commentators on the Constitution

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The first important analysis of the Constitution appeared during the ratification contests of 1787 and 1788. alexander hamilton and james madison, who had participated in the constitutional convention, collaborated with john jay on the federalist (1788), a series of essays defending the proposed new plan of government. Appealing to the rationalistic temper of the eighteenth century, they justified the creation of a strong central government on logical and philosophical grounds, and developed a model of constitutionalism that relied upon structural checks and balances to promote harmony within the system. Ultimate sovereignty, they argued, inhered in the American people; the Constitution, as an instrument of the popular will, defined and limited the powers of both the national government and the states. The Federalist provided valuable insights into the thinking of the Founding Fathers and established the guidelines for further constitutional commentary down to the civil war.

Between 1789 and 1860 two major groups of commentators emerged in response to recurring political crises and sectional tensions. Legally trained publicists from New England and the middle states espoused a national will theory of government to justify the expansion of federal power, while southern lawyers and statesmen formed a state compact school of constitutional interpretation that championed decentralization and state sovereignty. Each group approached constitutional issues in a formal and mechanistic way, and relied upon close textual analysis to support its position.

The nationalists argued that the American people, acting in a collective national capacity, had divided sovereign power between the nation and the states and established the Constitution as the supreme law of the land. Under the resulting federal system, the states retained control of their internal affairs but were subordinate to the general government in all important national concerns, including taxation, interstate commerce, and foreign affairs. The Constitution, moreover, created a permanent union, whose basic features could be changed only by resort to a prescribed amending process. Although several nationalists conceded that the Constitution had originated in a compact of the people of the several states, they insisted that such a compact, once executed, was inviolate, and could not be modified thereafter by the parties. Such was the message of nathaniel chipman'sSketches of the Principles of Government (1793) and William Alexander Duer's Lectures on Constitutional Jurisprudence (1843).

Other advocates of national supremacy rejected contractual assumptions altogether, and moved toward an organic theory of the Union. Nathan Dane, in A General Abridgment and Digest of American Law (1829), contended that the states had never been truly sovereign, because they owed their independence from British rule to the actions of the continental congress, a national body that represented the American people. The people, not the states, had ratified the Constitution through the exercise of majority will; therefore, any state efforts to nullify federal law or to withdraw from the Union amounted to illegal and revolutionary acts. james kent'sCommentaries on American Law (1826–1830) and Timothy Walker's Introduction to American Law (1837) further noted that the Constitution provided for the peaceful resolution of federal-state disputes through the Supreme Court's power of judicial review.

In attacking the compact model of constitutionalism, these commentators stressed the noncontractual language of the preamble and the supremacy clause. a similar preoccupation with formal textual analysis characterized joseph story'sCommentaries on the Constitution of the United States (1833), the most influential and authoritative statement of the nationalist position. Story, an associate Justice of the Supreme Court, interpreted the Constitution on a line-by-line basis, in light of the nationalistic jurisprudence of john marshall. Like Marshall, he insisted that the powers of the federal government had to be construed broadly, as the Framers had intended. On both theoretical and pragmatic grounds, Story defended the power of the Supreme Court to strike down unconstitutional state laws. Yet he also emphasized the limits of national authority, noting that the states retained control over matters of internal police that affected the daily lives of their citizens. Although Congress alone could regulate interstate commerce, for example, state legislatures might pass health and safety measures that indirectly affected such commerce. By focusing upon questions of terminology and classification, Story sought to demonstrate the stability of the federal system and to place the Constitution above partisan politics.

Nationalist historians described the formation of the Union in similarly legalistic and reverential terms. george ticknor curtis'sHistory of the Origin, Formation, and Adoption of the Constitution of the United States (1854–1858), the first work to deal exclusively with a constitutional topic, quoted at length from the journals of the Continental Congress and other public records, but largely ignored surrounding political and economic circumstances. For Curtis and other romantic nationalists, the Founding Fathers were disinterested and divinely inspired patriots, who enjoyed the full confidence and support of the American people. Only richard hildreth'sHistory of the United States of America (1849–1852) presented a contrary view. Hildreth stressed the importance of conflicting economic groups in the new nation and pointed out that the Constitution had been ratified by conventions representing only a minority of American voters.

Although state compact theorists shared the prevailing belief in a fixed and beneficent Constitution, they deplored what they perceived as the aggrandizing tendencies of the national government. St. George Tucker's "View of the Constitution of the United States," appended to his edition of william blackstone ' s commentaries (1803), established the basic premises of the southern constitutional argument. The states and their respective citizens, Tucker contended, had entered into a compact—the Constitution—and had delegated some of their sovereign powers to the resulting federal government for specific and limited purposes. Because the Union remained subordinate to its creators, the states, and depended upon their cooperation for its continued existence, all positive grants of national power had to be construed strictly. If the federal government overstepped its constitutional powers, Tucker suggested that individuals might look to the state or federal courts for redress, while violations of states ' rights would be answered by appropriate action from the state legislatures.

Later commentators refined Tucker's ideas and fashioned new remedies for the protection of state rights. The Philadelphia lawyer william rawle introduced the possibility of peaceable secession through the action of state constitutional conventions in A View of the Constitution of the United States (1825). Rawle's reasoning was hypothetical: because the people of each state had agreed to form a permanent union of representative republics, they could withdraw from their compact only by adopting a new state constitution based upon nonrepublican principles. A more realistic assessment of the nature and consequences of secession appeared in henry st. george tucker'sLectures on Constitutional Law (1843). In Tucker's view, secession provided the only mode of resistance available to a state after a controversial federal law had been upheld by the judiciary. Secession was a revolutionary measure, however, because the Constitution had established the courts as the permanent umpires of federal-state relations.

Advocates of nullification proposed a more extreme version of the state sovereignty argument, whose origins went back to john taylor of Caroline's Construction Construed; and Constitutions Vindicated (1820) and New Views of the Constitution of the United States (1823). Unlike the southern moderates, Taylor insisted that sovereignty was indivisible and inhered exclusively in the states. Each "state nation" thus retained the power to construe the terms of the federal compact for itself, and to interpose its authority at any time to protect its citizens against the consolidating tendencies of the federal government. Whenever a federal law violated the Constitution, asserted Abel Parker Upshur in A Brief Inquiry into the Nature and Character of Our Federal Government (1840), a state might summon its citizens to a special convention and declare the act null and void within its borders.

As the influence of the slaveholding South continued to decline in national politics, some commentators sought to preserve the Union by adding still more checks and balances to the constitutional structure. In A Disquisition on Government and A Discourse on the Constitution and Government of the United States (1851), john c. calhoun called for amendments that would establish a dual executive and base representation upon broad interest groups, any one of which might block the enactment of undesirable congressional legislation. alexander h. stephens ' A Constitutional View of the Late War Between the States (1868–1870) and jefferson davis'sThe Rise and Fall of the Confederate Government (1881) confirmed the mechanistic cast of southern constitutional thought, as they summed up the case for secession in its final form. With the defeat of the Confederacy, the secessionist option ceased to exist, and later commentators treated the issue as a historical footnote. During the 1950s conservative Southerners tried unsuccessfully to circumvent federal civil rights policy by reviving the idea of interposition in such works as William Old's The Segregation Issue: Suggestions Regarding the Maintenance of State Autonomy (1955).

For Civil War Unionists the exercise of sweeping war powers by the President and Congress provoked vigorous constitutional debate. Conservative publicists, committed to a restrictive view of federal power, insisted that no departure from prewar constitutional norms was permissible, despite the wartime emergency. Former Supreme Court Justice benjamin r. curtis charged in Executive Power (1862) that President abraham lincoln had acted illegally in authorizing the military to arrest and imprison suspected disloyal civilians in areas removed from a war zone. Joel Parker's The War Powers of Congress, and of the President (1863) denounced the emancipation proclamation and related confiscation acts for impairing property rights and revolutionizing federal-state relations.

A rival group of Lincolnian pragmatists defended the actions of federal authorities by appealing to an organic theory of constitutional development. Evolving national values and practices had shaped the Constitution far more than abstract legal rules, asserted francis lieber in What Is Our Constitution—League, Pact, or Government? (1861). The Founding Fathers had not anticipated the problem of secession; therefore, the Lincoln administration might, in conformity with natural law principles, take whatever measures it deemed necessary to preserve the nation. Sidney George Fisher's The Trial of the Constitution (1862) discovered new sources of federal power in the doctrine of popular sovereignty and other unwritten democratic dogmas. Charging that adherence to the checks and balances of the formal Constitution had immobilized the government in practice, Fisher urged Congress to create a new constitutional tradition by transforming itself into an American parliament immediately responsive to the popular will. William Whiting, solicitor of the War Department, contended that existent constitutional provisions authorized the federal government to pursue almost any wartime policy it chose. In The War Powers of the President and the Legislative Powers of Congress in Relation to Rebellion, Treason, and Slavery (1862), Whiting looked to the general welfare clause and other statements of broad national purpose to legitimize controversial Union measures.

The leading commentators of the late nineteenth century carried forward an organic view of the Constitution, but linked it to a laissez-faire ideology that sharply restrained the exercise of governmental power at all levels. Influenced by the conservative Darwinism of Herbert Spencer and William Graham Sumner, these economic libertarians feared legislative innovation and called upon the judiciary to preserve the fundamental economic rights of the individual against arbitrary state action. In A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (1868), thomas mcintyre cooley argued that a libertarian tradition stretching back to magna carta protected private property from harmful regulation, even in the absence of specific constitutional guarantees. By appealing to these historic liberties, Cooley sought to broaden the scope of the due process clause, transforming it into a substantive restraint upon economic legislation. john forrest dillon'sA Treatise on Municipal Corporations (1872) discovered implied limits to the taxing power. Taxes could only be levied for a public purpose, Dillon maintained, and could not benefit one social class at the expense of another. christopher g. tiedeman took an equally restrictive view of state and federal police power in A Treatise on the Limitations of Police Power in the United States (1886), condemning usury laws and efforts to control wages and prices.

In the area of civil rights, commentators opposed "paternalistic" legislation and insisted that the Civil War had not destroyed the traditional division of power between the nation and the states. Amendments must conform to the general principles underlying the Constitution, asserted John Norton Pomeroy in An Introduction to the Constitutional Law of the United States (1868); and these principles included federalism, as defined by the Founding Fathers. Despite the broad language of the fourteenth amendment, therefore, Congress lacked power to remedy most civil rights violations, which remained subject to state control. john randolph tucker'sThe Constitution of the United States (1899) warned that federal attacks on customary racial practices in the South would undermine local institutions and create a dangerous centralization of power in the national government. The racist assumptions shared by most libertarians surfaced clearly in John Ordronaux's Constitutional Legislation in the United States (1891). Noting that national progress depended upon "race instincts," Ordronaux suggested that blacks, Orientals, and other non-Aryans were unfit for the full responsibilities of democratic citizenship.

Constitutional historians of the late nineteenth century used a Darwinian model of struggle and survival to explain the rise of the American nation. hermann von holst, the first scholar to make systematic use of the records of congressional debates, combined antislavery moralism with a laissez-faire attitude toward northern business in his ponderous Constitutional and Political History of the United States (1876–1892). Equally moralistic and libertarian was james schouler'sHistory of the United States under the Constitution (1880–1913). In the growth of republican institutions and the triumph of Union arms Schouler discerned the unfolding of a divine plan. From a Social Darwinist perspective, William A. Dunning's The Constitution of the United States in Civil War and Reconstruction, 1860–1867 (1885) and john w. burgess ' Reconstruction and the Constitution, 1866–1876 (1902) criticized federal policymakers for enfranchising blacks at the expense of their Anglo-Saxon superiors.

In its mature form libertarian theory created a twilight zone on the borders of the federal system, within which neither the national government not the states could act. While the tenth amendment prevented Congress from regulating local economic activities, state legislatures found their police powers circumscribed by the restrictive principles defined by Cooley and his associates. These extraconstitutional restraints also limited the federal government when it sought to exercise its express powers over taxation and commerce. Twentieth-century economic and racial conservatives have continued to defend the libertarian viewpoint and to protest the expansion of federal regulatory power. In Neither Purse Nor Sword (1936), James M. Beck and Merle Thorpe condemned early New Deal legislation for violating property rights and invading the reserved powers of the states. Charles J. Bloch's States' Rights—The Law of the Land (1958), written in the aftermath of the Brown decision, charged that the vinson court and warren court had subverted the meaning of the Fourteenth Amendment in civil rights cases, and called upon Congress to revitalize the Tenth Amendment, "the cornerstone of the Republic."

As the excesses of a period of industrial growth threatened the welfare of workers and consumers, however, other commentators condemned the laissez-faire model of constitutionalism as archaic and unsuited to the needs of a modern democracy. Impressed by the empiricism of the emerging social sciences, these democratic instrumentalists approached constitutional questions from a pragmatic and reformist perspective. Although they did not deny the existence of fundamental principles, they argued that these principles needed to be adapted to changing environmental conditions. Through intelligent social planning, they maintained, federal and state lawmakers might control an expanding economy in accordance with the popular will.

Mechanistic eighteenth-century concepts, such as separation of powers, impaired the efficiency of modern government, charged woodrow wilson in Congressional Government (1885) and Constitutional Government in the United States (1908). Constitutional grants of power to the national government established only "general lines of definition," he added, and should be broadly construed by the courts in response to developing societal needs. In a similar vein, westel w. willoughby'sThe Constitutional Law of the United States (1910) and frank j. goodnow'sSocial Reform and the Constitution (1911) criticized judges for obstructing progressive reforms through their continued adherence to laissez-faire idealism.

The advent of the welfare state in the 1930s magnified disagreements between libertarians and instrumentalists, and provoked a major confrontation between President franklin d. roosevelt and the Supreme Court. edward s. corwin, the most influential constitutional commentator of the time, applauded the programs of the early new deal for establishing a new cooperative federalism. In The Twilight of the Supreme Court (1934), Corwin urged the Justices to uphold legislative policymaking in economic matters, and pointed to the nationalistic decisions of John Marshall as appropriate precedents. When judicial intransigence persisted, according to Attorney General robert h. jackson in The Struggle for Judicial Supremacy (1941), the administration adopted a court-packing plan as the only apparent means of restoring the full constitutional powers of the national government. Although the plan failed, a majority of Justices began to redefine congressional power in more liberal terms. Corwin welcomed the Court's belated acceptance of sweeping federal regulation in Constitutional Revolution, Ltd. (1941), and correctly predicted that the Justices would thereafter focus their review power on protection of civil liberties and the rights of minorities.

Instrumentalist historians tended to seek the causes of constitutional change in underlying social and economic developments. charles a. beard's pathbreaking study, An Economic Interpretation of the Constitution of the United States (1913), encouraged Progressive reformers by demythologizing the work of the Philadelphia Convention. Using previously neglected Treasury and census records, Beard presented the Founding Fathers as a conspiratorial elite who had devised an undemocratic Constitution to protect their property from the attacks of popular legislative majorities. In American Constitutional Development(1943) carl brent swisher drew upon other nontraditional sources to explain, and justify, the emergence of the positive state. With comparable erudition william w. crosskey'sPolitics and the Constitution in the History of the United States (1953) used linguistic analysis to demonstrate the legitimacy of New Deal regulatory measures. After an exhaustive inquiry into the eighteenth-century meaning of "commerce" and other key words, Crosskey concluded that the Framers had intended to create a unitary, centralized system in which "the American people could, through Congress, deal with any subject they wished, on a simple, straightforward, nation-wide basis."

Although the instrumentalists emphasized the need to adapt the Constitution to changing socioeconomic conditions, they remained committed to the rule of law and acknowledged the binding force of constitutional norms. This moderate position failed to satisfy a small group of radical empiricists, who argued that written codes were meaningless in themselves and merely served to rationalize the political decisions of legislators and judges. "The language of the Constitution is immaterial since it represents current myths and folklore rather than rules," asserted thurman w. arnold in The Folklore of Capitalism (1937). "Out of it are spun the contradictory ideals of governmental morality." Howard L. McBain's The Living Constitution: A Consideration of the Realities and Legends of Our Fundamental Law (1927) similarly contended that law had no life of its own, but depended for its substance on the unpredictable actions of men. Because the American people believed the fiction of a government of law, they had grown politically apathetic, charged j. allen smith in The Growth and Decadence of Constitutional Government (1930). Although constitutionalism had been designed to limit arbitrary power, he noted, it protected an irresponsible governing elite from popular scrutiny and control.

The empiricists were more successful in diagnosing ills than in prescribing remedies. Because they stressed the determining influence of ideology and personality upon decision making, they could find no satisfactory way to limit the discretionary power of public officials. The scope of administrative discretion must necessarily broaden as society grows more complex, contended William B. Munro in The Invisible Government (1928). He welcomed the trend, which promised to give government agencies greater flexibility in dealing with contemporary problems. Yet unrestrained power might also encourage irresponsible behavior, such as judges so often displayed in reviewing legislative measures. Both louis b. boudin ' sGovernment by Judiciary (1932) and Fred Rodell's Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955 (1955) reduced jurisprudence to politics, and charged that judges wrote their conservative policy preferences into law under the guise of legal principles. The only remedy they could suggest, however, was the appointment to the bench of liberals who would promote the public welfare in a more enlightened, albeit equally subjective, fashion.

During the past quarter-century commentators, preeminently alexander m. bickel, have continued to debate the nature and scope of judicial review, in the context of the Supreme Court's enlarged role as guardian of individual and minority rights. The timely aspects of such recent studies attest to the constructive role that commentators have historically played in the shaping of American constitutional law. Responsive to changing trends in social and political thought, they have often helped to redefine and clarify the terms of constitutional discourse. As Corwin once quipped, "If judges make law, so do commentators."

Maxwell Bloomfield


Bauer, Elizabeth K. 1952 Commentaries on the Constitution, 1790–1860. New York: Columbia University Press.

Belz, Herman 1971 The Realist Critique of Constitutionalism in the Era of Reform. American Journal of Legal History 15: 288–306.

Hyman, Harold M. 1973 A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution. New York: Knopf.

Konefsky, Alfred S. 1981 Men of Great and Little Faith: Generations of Constitutional Scholars. Buffalo Law Review 30:365–384.

Larsen, Charles E. 1959 Nationalism and States' Rights in Commentaries on the Constitution after the Civil War. American Journal of Legal History 3:360–369.

Murphy, Paul L. 1963 Time to Reclaim: The Current Challenge of American Constitutional History. American Historical Review 69:64–79.

Newton, Robert E. 1965 Edward S. Corwin and American Constitutional Law. Journal of Public Law 14:198–212.

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Commentators on the Constitution

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