Liberal Constitutional Construction

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The liberal attitude toward the Constitution—admitting a range of internal differences—centers on the proposition that the Framers, as talented a group of democratic politicians as ever lived, expected their descendants to be at least as experimental as they were. When the Framers gathered in Philadelphia, they were improvising a novus ordo seclorum without a blueprint. john adams, working feverishly in London compiling the history of attempts at republican government, tried to summarize the lessons of history. james madison had prepared himself by reading every relevant work that he and his mentor thomas jefferson, then in Paris, could lay their hands on. alexander hamilton was satisfied that Thomas Hobbes had provided the essentials.

But delegates to the constitutional convention of 1787 mainly brought with them their experience in running provincial, state, and Confederation government. Collectively they had well over a thousand years of experience in office, from governor and Chief Justice down to mayor and justice of the peace. Of the fifty-five chosen, forty-four were, or had been, members of the continental congress; at a time when being a lawyer was very different from emerging from a law school assembly line and vanishing into a vacuum-packed corporate enviroment, thirty-five had done their apprenticeships, and james wilson and george wythe were eminent professors and legists. The only outstanding absentees from the political class were john jay a secretary of foreign affairs under the Confederation; John Adams in London; Thomas Jefferson in Paris; and patrick henry who was elected but refused to attend as he "smelt a rat," that is, he thought Jefferson was masterminding the convention through Madison, as had been the case in the Virginia legislature with the virginia statue of religious liberty.

Although with the exception of Madison and perhaps Hamilton they had not arrived with specific plans, they clearly shared a sense of mission: The United States government under the articles of confederation had to be strengthened to prevent the infant nation from being eaten by the sharks that infested the international environment. Here the presence of george washington was of immense symbolic value because of his known dedication to the principles of a free republic and the respect he had from the people. Washington was unanimously elected president of the Convention.

The Framers were well aware that they were not free-floating Platonic "guardians" who could impose their concept of a "republic" upon an unresisting populace. Hence, when the final document was signed on September 17, its principal architects considered it the best they could get rather than the fulfillment of an ideal. George Washington put it well in a letter: "You will readily conceive … the difficulties which the Convention had to struggle against. The various and opposit [ sic ] interests which were to be subdued, the diversity of opinions and sentiments which were to be reconciled; and in fine, the sacrifices which were necessary to be made on all sides for the General Welfare, combined to make it work of so intricate and difficult a nature that I think it is much to be wondered at that any thing could have been produced with such unanimity."

Hamilton and Madison, disappointed by the convention's rebuff to their centralizing initiative, agreed that the Constitution was an improvement over the Articles and set to work to get it ratified. South Carolina's pierce butler probably spoke for most of his fellow Framers when he wrote, "View the system then as resulting from a spirit of Accommodation to different Interests, and not the most perfect one that the Deputies cou'd devise for a Country better adapted for the reception of it than America is at this day, or perhaps ever will be."

In the course of ratification of the constitution by the state conventions, questions inevitably arose on the meaning of various articles. When one reads the replies that were given—in a universe wholly lacking in modern communications techniques—it rapidly becomes clear that a number of the delegates often were not quite sure what they had approved. They knew that in general terms they had established a republic with strong legislative and executive branches—the judicial article received little attention either in the Convention or in ratification debates—and hoped that the new government would provide the United States with the authority and the funds that were so sorely lacking under the Articles.

To head off a potentially dangerous demagogic anticonstitutionalist attack—claiming in essence that Hobbes's Leviathan was being covertly imposed on unsuspecting citizens—the Framers promised a bill of rights. The Constitution was ratified, the states organized presidential and congressional elections for that fall, and the Founding Fathers set to work finding appropriate positions for themselves and their friends in the new administration. Now they had to make this experiment in republican government work.

To summarize, the Framers had not descended from Mount Sinai with the Law carved in stone; they had contrived a mechanism designed to establish law and, if necessary, change it. The first congress, for example, set up the Treasury Department as a dependency of Congress with the secretary reporting in person or in writing to the House and Senate. Alexander Hamilton's masterful recommendations on the public credit, the bank of the united states, and the encouragement of manufactures were in the form of reports to Congress. In practice, however, the secretary was responsible to the President, and the law was later changed to reflect this. The Constitution requires the President to get the advice and consent of the Senate to treaties; the advice provision vanished after Washington's one attempt to discuss pending Indian treaties with the Senate ended on such a chilly note that no President since has made the pilgrimage.

Indeed, there is a substantial body of evidence to suggest that the widely discussed "intent of the Framers" is a will-o'-the-wisp. We know their intention on structural matters—the division of powers between the executive, legislative, and judicial branches—but beyond that, things get murky. Once again the First Congress gives us a sense of the extent to which the Framers were not sure of their own objectives, for an intense debate arose over the question of the Senate's role in the President's dismissal power. In other words, if Senate approval is necessary for the appointment of, say, an ambassador, is Senate approval required to fire him? The consensus seemed to be that it was not, but the matter was not settled until myers v. united states in 1926, and even today there is some ambiguity on the status of members of so-called independent regulatory commissions.

Without going into further detail, it is obvious that early generations of politicians and jurists were more concerned with how a problem could be solved than with how the Framers would have dealt with it. abraham baldwin, one of the most intelligent men who was both a politician and jurist, put it thus to his House colleagues in March 1796:

It was not to disparage [the Constitution] to say that it had not definitely, and with precision, absolutely settled everything on which it had spoke. He had sufficient evidence to satisfy his own mind that it was not supposed by the makers of it at the time but that some subjects were left a little ambiguous and uncertain. It was a great thing to get so many difficult subjects definitely settled at once.… The few that were left a little unsettled might without any great risk be settled by practice or by amendments.… When he reflected on the immense difficulties and dangers of that trying occasion—the old Government prostrated and a chance whether a new one could be agreed on—the recollection recalled to him nothing but the most joyful sensations that so many things had been so well settled, and that experience had shown there was very little difficulty or danger in settling the rest.

This liberal spirit of experimentation was brilliantly exemplified by the Supreme Court under the leadership of Chief Justice john marshall. Marshall's enmity toward his cousin Thomas Jefferson was surely fortified by the latter's penchant (at least before and after he served as President) for strict construction of the Constitution. In the famous 1819 case mcculloch v. maryland, the Chief Justice, in the course of echoing Hamilton's 1791 defense of the constitutionality of the Bank of the United States, took some time out to condemn this unimaginative perception of the nature of the Constitution. Wrote Marshall:

A constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature therefore requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose these objects be deducted from the nature of the objects themselves.… To have prescribed the means by which government should in all future time execute its powers … would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can best be provided for as they occur.

Five years later in the steamboat case of gibbons v. ogden (1824) the Chief Justice really dispatched the narrow-minded critics of federal power: "Powerful and ingenious minds taking as postulates that the powers expressly granted to the government of the Union are to be contracted by construction into the narrowest possible compass, and that the original powers of the states be retained if any possible construction will retain them, may by a course of well-digested but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country and leave it a magnificent structure indeed to look at, but totally unfit for use." So much for metaphysicians and political philosophers.

In concrete terms Marshall's talent for improvisation to cope with pressing problems was spectacular. He invented the doctrine of political questions to provide the Court with a safe exit from risky enfilades in Foster v. Nielson (1829); in american insurance company v. canter (1828) he belatedly provided the constitutional rationale for acquiring new territories and, while he was at it, invented legislative courts, created under Article I and distinct from the constitutional courts of Article III; and, to mention only two more, he developed the original package doctrine in brown v. maryland (1827) and the status of Indian tribes as "dependent domestic nations" in Worcester v. Georgia (1831). One could argue that John Marshall, following in the footsteps of the Framers (and he had been a delegate to the Virginia ratifying convention), set the pattern of creative experimentation for liberal constitutionalism.

Rather than compiling a catalog of constitutional improvisations, many of which have been initiated by the executive (abraham lincoln moved the power to suspend the writ of habeas corpus into Article II, where it has since remained) and the legislature (Congress in 1871 conferred citizenship on corporations for federal jurisdictional purposes), it would be wise to narrow the inquiry to a few specific areas. For example, what do steamships and television waves have in common? The answer is that they are subject to regulation by the federal government under the commerce clause. The first stages in this triumph of fungibility were easy, for interstate water shipping, interstate railways, interstate trucking, and interstate telegraphs were tangible. The big jump took place in 1933 when the Supreme Court, in Federal Radio Commission v. Nelson Bros., held radio waves to be analogous to telegraph signals and subsequently widened this to include television. The principle applied was Marshall's, namely, that it did not make any difference whether a boat was propelled by sail or engine; the vital aspect was that something was going from one state to another.

The liberal approach to constitutionalism has infuriated a lot of individuals and groups of all political persuasions. The focus here is not on whether the experiments were successful but on the modus operandi. At some points the improvisations were considered politically "reactionary" (for example, when the Court in the yellow dog contract Case assumed that individual workers and industrial giants were bargaining-table equals and when it negated state minimum-wage laws). In other cases a howl went up that the Justices were "radical" (for example, when the Court protected criminal rights and when it legitimized abortion). Whatever the outcome, the result was founded on the experimental attitude. To put it differently, it would be extremely difficult to find a decision in which the majority view was buttressed by better probative evidence of the intention of the Framers than was the view of the dissenting minority.

To say that experimentation has been the only game in town since 1787 is a statement of historical fact, a fundament of the liberal tradition. Indeed, one could argue that the one area where stasis set in and experimentation became increasingly difficult and finally impossible was the mesh of slavery and states ' rights, leading to a ferocious Civil War in which roughly a million males out of a population of sixteen million ages fifteen to thirty-nine were killed or wounded. The Constitution of 1787 was a sanguinary failure.

If this is the liberal attitude toward the Constitution, what are the critical differences between it and the conservative view? In candor, it is hard to find substantial differences at the level of principle, for America's so-called conservatives have always found themselves carrying the intellectual baggage of that magnificent cadre of improvisers who founded the Republic. In Ireland in the 1690s many a big house had a portrait of the king over the mantelpiece mounted on pivots top and bottom. When the Jacobites came to town one pushed the picture around to display King James II; when the forces of William and Mary appeared, a similar push put their visages front and center. The problem with such a portrait in the context of the founding era is that the same portraits would appear on both sides: conservative constitutionalists have always endorsed experimentation sub silentio, but then denied that this in fact was their methodology. Presumably they have learned the technique at the feet of John Marshall.

For example, john c. calhoun has been described as a man of rigid conservative principles, the hero of the states' rights cause. Yet in 1817 Calhoun casually observed that the Constitution "was not intended as a thesis for the logician to exercise his ingenuity on it. It ought to be construed with plain good sense."

Similarly, Robert H. Bork has become an icon of contemporary conservative jurisprudence, but in his book The Tempting of America: The Political Seduction of the Law (1990) he provides us with an example of the liberal, experimental mode worthy of John Marshall himself. In discussing baker v. carr (1962)—which required states to establish election districts based on the formula one person, one vote—Bork excoriated the warren court not for the result ("There is no doubt in my mind … that plaintiffs [demanding the end of rigged districting] deserved to win") but because the Court based its decision on the equal protection clause of the fourteenth amendment.

As it happens, the authors of the Fourteenth Amendment, like the Framers, had a talent for ambiguity, so it is an exercise in soothsaying to attempt a reconstruction of the precise meaning of equal protection. Let us simply say that the jury is still out, and will doubtless remain out indefinitely, on the legal consequences the drafting Committee of Fifteen had in mind in 1866. What is interesting is Bork's solution to the inequities created by malapportionment and how he explicates the constitutional rationale that would enable those who "deserved to win" to win. Let no one deny his imaginative creativity: he indicates that the Court could have avoided the equal protection quagmire quite simply by using the provision in Article IV, section 4, that "the United States shall guarantee to every State in this Union a republican form of government."

This provision, launched by Madison in the virginia plan, was discussed on two occasions during the Convention. The weight of the evidence suggests it was designed to prevent any state from setting up, or having imposed upon it from without, a monarchical form of government. When it was invoked by the Dorrite rebels against the obsolete Rhode Island Charter in 1849, the Court said in luther v. borden that the legitimacy of Rhode Island's government was a "political question"; and when the clause was subsequently invoked in a desultory fashion in several other cases, the Justices echoed Chief Justice roger brooke taney's decision in Luther and held that the determination of republican governance was nonjusticiable.

Bork states that "for no very good reason" the Court held the proviso to be judicially unenforceable and suggests it should be overruled after 113 years as stare decisis. Actually, some supporters of the liberal, experimental approach who thought of this at the time of colegrove v. green (1946) (the first major assault on malapportionment) and hit a brick wall would cheer Bork on. However, the historical evidence for the use of the "guarantee clause" is tenuous, at least as flimsy as that underpinning the equal protection clause of the Fourteenth Amendment, for at the time of the ratification of the Constitution malapportionment was a major concern in a number of states. elbridge gerry, a Framer, refused to sign the document, but not because it forbade the gerrymander. It would seem that even Bork cannot resist temptation. As David Hume pointed out, creating a useful past is a delightful form of political entertainment. It is also a persistent highlight of American judicial behavior.

John P. oche

(see also: Bork Nomination; Cherokee Indian Cases; Conservatism; Justiciability; Original Intent; Political Philosophy of the Constitution; Pragmatism; Progressive Constitutional Thought; Progressivism.)


Bork, Robert H. 1990 The Tempting of America: The Political Seduction of the Law. New York: Free Press.

Jackson, Robert H. 1941 The Struggle for Judicial Supremacy. New York: Knopf.

Levy, Leonard W. 1988 Original Intent and the Framers' Constitution. New York: Macmillan.

Mc Donald, Forrest 1985 Novus Ordo Seclorum. Lawrence: University Press of Kansas.

Peterson, Merrill 1987 The Great Triumvirate. New York: Oxford University Press.

Roche John P. 1961 Courts and Rights. New York: Random House.

——1974 Shadow and Substance. New York: Macmillan.

Warren, Charles 1922 The Supreme Court in United States History, 2 vols. Boston: Little, Brown.

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Liberal Constitutional Construction

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