The Activist Read online

  James Wilson once more defended a council of revision. “The separation of the departments,” he insisted, “does not require that they should have separate objects but that they should act separately though on the same objects. It is necessary that the two branches of the Legislature should be separate and distinct, yet they are both to act precisely on the same object.”

  But Elbridge Gerry was having none of it. He would “rather give the Executive an absolute negative for its own defense than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance agst. the Legislature, and render the latter unwilling to enter into a contest with them.”

  Gouverneur Morris, who, unlike Gerry, Mason, and Luther Martin, endorsed the Constitution (and wrote the final draft), then presented a philosophy of separation of powers that is never quoted by advocates of judicial review. Morris was surprised that any provision securing the effectual separation of the branches of government should be considered an improper mixture of them, and offered an example: “Suppose that the three powers, were to be vested in three persons, by compact among themselves; that one was to have the power of making, another of executing, and a third of judging, the laws.” Morris asserted that nothing could be more natural than two parties in a tripartite agreement acting together to prevent domination by a third. “If three neighbours,” he noted, “had three distinct farms, a right in each to defend his farm agst. his neighbours, tended to blend the farms together.”

  Nathaniel Gorham of Massachusetts noted that “all agree that a check on the Legislature is necessary,” but he was firmly against “admitting the Judges to share in it.” Gorham was also speaking in the context of a council of revision. Absent is any affirmation of the right of judges to overturn legislative acts on their own.

  After John Rutledge, one of the most successful trial lawyers in the nation, “thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them,” Wilson’s motion for a revisionary council failed, although by an extremely close vote, 4–3, with Massachusetts, one of the two states generally cited as having incorporated judicial review into its own government, providing the margin of defeat. Immediately afterward, the vote to establish a qualified executive veto, requiring two thirds of each house of the legislature to override, passed unanimously. If the delegates wished to discuss a judicial role in the voiding of a law, this was the place to do it, but no delegate raised the issue.

  In the end, whether the delegates accepted judicial review as a principle cannot be discerned from the debates. Their discussions concerned not so much the power of the judiciary as the balance of power between the legislative and the executive. Lacking specific data to demonstrate that the delegates in Philadelphia considered judicial review an obvious and accepted power of the Supreme Court, no textualist can rightly extrapolate such an awesome and virtually unchecked power from Article III. Even if the power to “expound on the law” is taken to mean that a court might refuse to enforce a law that it deemed contrary to the Constitution, it would be a mistake to assume that, for the delegates, it meant the same thing as “striking it down.” Many of the very same delegates who asserted the right of exposition for the courts were equally firm on the need to prevent the judiciary from establishing preeminent power over the legislature. And, since the primary aim of a council of revision seemed to be to prevent one branch, the legislature, from encroaching on the power of another, the executive, it is unlikely that the delegates had then favored a principle that would allow the judiciary to encroach on the power of the legislature.

  If anything, the evidence that judicial review was specifically omitted from Article III has more weight. As one scholar put it, “the Framers did not mean for the Supreme Court to have the authority to void acts of Congress.”27

  At the close of debate on September 8, the Convention appointed a committee whose task was to “revise the stile of and arrange the articles which had been agreed to by the House.” Although the delegates elected an elite group—Madison, Gouverneur Morris, Alexander Hamilton, William Samuel Johnson of Connecticut, and Rufus King—to complete this final draft, the committee immediately delegated the task to Morris, considered the most accomplished writer among them. Four days later, Morris’s draft was circulated to the delegates.

  He did not disappoint, producing a document that has not only endured as a profound testament to democracy and self-rule, but also one whose flowing and dynamic prose has echoed for more than two centuries. Perhaps the most famous passage in the entire document is the first: “We the people of the United States.” Powerful and succinct, nothing captures the very spirit of the Constitution and the roots of its legitimacy more than those seven words.

  But in his zeal to create an elegant product, Morris had altered the words of the working document that the Committee of Style had been given as the basis for their work. The Committee of Detail, which created the prototype Constitution in July and early August, had drafted the preamble as, “We the People of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina, and Georgia, do ordain, declare and establish the following Constitution for the Government of Ourselves and our Posterity.”28 This wording was accepted without dissent or debate by the delegates and remained when the draft was given to the Committee of Style. The preamble that emerged in Morris’s version was the elegantly crafted “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”29 This new wording was also accepted by the delegates without dissent or debate.

  Morris, of course, was one of the more intense nationalists in Philadelphia, but whether he changed the prologue for political as well as stylistic reasons will never be known.30 The political impact, however, was unmistakable. As became clear during the Pennsylvania ratifying convention two months later, removing the names of the individual states had altered the very source of legitimacy for the new government, or at least the perception of it. Rather than drawing legitimacy from states, as had been true under the Articles of Confederation, the national government would now draw legitimacy directly from the people, bypassing state governments entirely.

  Gouverneur Morris

  In the Pennsylvania ratifying convention, James Wilson asserted that the United States “is not a government founded upon compact [between states]; it is founded upon the power of the people. They express in their name and their authority, ‘We the People do ordain and establish,’ &c., from their ratification, and their ratification alone it is to take its constitutional authenticity . . . I know very well all the common-place rant of State sovereignties, and that government is founded in original compact. If that position was examined, it will be found not to accede very well with the true principle of free government. It does not suit the language or genius of the system before us. I think it does not accord with experience, so far as I have been able to obtain information from history.”*

  Morris’s changes would almost certainly not have gone unchallenged if Luther Martin of Maryland had not left the convention in late August. In early 1788, he published a tract, tersely titled “The Genuine Information, delivered to the Legislature of the State of Maryland, relative to the Proceedings of the General Convention, held at Philadelphia, in 1787, by Luther Martin, Esq., Attorney-General of Maryland, and one of the Delegates in the said Convention,” in which he detailed his objections to the new Constitution clause by clause. Martin never said or wrote something in one sentence when thirty would do, and Genuine Information is a typically long-winded and rambling treatise. Incurable lack of focus was one
reason that Martin has been diminished by both peers and historians (incurable drunkenness was another), but volubility should not deter from a first-rate, incisive intellect and an ability to analyze issues more clearly than he wrote or spoke about them.

  Martin saw quite clearly that the United States under the new Constitution

  was not in reality a federal but a national government, not founded on the principles of the preservation, but the abolition or consolidation of all State governments . . . we appeared totally to have forgot the business for which we were sent, and the situation of the country for which we were preparing our system—that we had not been sent to form a government over the inhabitants of America, considered as individuals . . . the system of government we were entrusted to prepare, was a government over these thirteen States; but that in our proceedings, we adopted principles which would be right and proper, only on the supposition that there were no State governments at all, but that all the inhabitants of this extensive continent were in their individual capacity, without government, and in a state of nature.31

  Another defender of states’ rights who would certainly have challenged Morris’s preamble had he been present in Philadelphia was Patrick Henry. In the Virginia ratifying convention, he also left no doubt that the essential nature of the United States would change if the Constitution was adopted. “That this is a consolidated government is demonstrably clear,” Henry said, “and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say. We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states.”32

  The source of legitimacy would be fiercely debated throughout the ratification process and beyond. In once again leaving ambiguous what those who would come later needed made specific, the Convention delegates encouraged the very rifts that a new Constitution was meant to close. On the broad scale, by an unwillingness to describe unequivocally from whence the new government would draw legitimacy, the delegates might certainly be said to have enabled the future Civil War. As to judicial review, Marshall would use the preamble, or at least what he considered to be its understood meaning, as a prime justification for postulating the implicit power of the Supreme Court to interpret the Constitution.

  * Madison attended every day, but the two delegates from New Hampshire did not arrive until late July. Two of the three delegates from New York walked out in early July and the third, Alexander Hamilton, was absent for more than half of the meetings. With voting by state, for much of the convention, that left only ten states available to pass on the most important issues facing the new nation. In addition, George Wythe, a highly respected delegate from Virginia, left almost immediately, and John Dickinson of Delaware was absent for much of the Convention. Most of the other delegates came and went regularly.

  † Some of the supporters were not present for the signing but subsequently supported ratification in their home states.

  * The Virginia Plan, presented on May 28 by Edmund Randolph but written almost entirely by James Madison, has also been called the “large states plan,” in that apportionment in the legislature was by population and therefore favored the more populous states. The New Jersey Plan, written and presented by William Paterson on June 15, has also been called the “small states plan,” in that apportionment in the legislature was by state, as then existed under the Articles of Confederation, and therefore favored the less populous states. Charles Pinckney of South Carolina and Alexander Hamilton of New York also presented detailed plans of government, but neither was debated by the delegates.

  * This latter argument was to resurface in the ratifying debates.

  * Unlike businessmen Gerry and King, Wilson was a lawyer himself and always envisioned a larger role for judges than many of his colleagues. He would eventually serve on the Supreme Court.

  * Italics added.

  * As the proceedings of the Convention had been kept secret, Wilson was free to pretend that “We the people,” rather than “We the people of the states,” had been an intentional choice.

  THREE

  TO THE STATES: THE STRUGGLE

  TO RATIFY BEGINS

  ALMOST FROM THE MOMENT the Constitutional Convention adjourned on September 17, the struggle for ratification began and, with it, the first exercise in constitutional interpretation. The ratification process, therefore, might well be thought of as a sort of “re-convention,” albeit spread among the thirteen states that were to decide whether or not they wished to live under this new set of laws. Since records of the Convention itself had been kept secret, members of state conventions would be forced to decide what the delegates had meant in producing the finished document, no simple task since much of the wording was ambiguous.

  According to Article VII of the new Constitution, “Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” The simple act of requiring approval of only nine rather than all thirteen states, as would have been mandatory under the Articles of Confederation, signaled how radical a departure would be this new system. Proponents—dubbed “Federalists”— saw the Constitution as strengthening a fragmented nation whose government had been rendered impotent by the limitations of the Articles, while opponents—“Anti-Federalists”—were convinced that granting a centralized authority broad, undefined, and possibly uncontrollable powers was the first step on an inexorable road to tyranny.

  Most Americans fell between these two extremes. Despite dissatisfaction with the status quo, they found the risks inherent in switching to a sweeping and untried new Constitution more than a little troubling. As no government had ever existed that could provide insight on how constitutional democracy might work, it fell to theorists and zealots on either side to persuade the undecided to either take or eschew a leap of faith.

  Inertia being the powerful force that it is, those in favor of the Constitution faced the more daunting challenge. In a number of state legislatures, that a ratifying convention would even be authorized was in no way certain, and Federalists occasionally resorted to some decidedly undemocratic means to move the process along. Two members of the Pennsylvania state legislature known to oppose the Constitution were dragged bodily through the streets and deposited on the floor of the assembly to provide a quorum so that those in favor could vote to approve a ratifying convention. In New Hampshire, opponents were allegedly plied with drink at lunch in order that they not be able to appear at an afternoon convention session and vote against the plan.1

  To assuage the fears of the populace—or stoke them—Federalists and Anti-Federalists engaged in a massive campaign of either education or disinformation, depending on to which point of view one subscribed: Pamphleteering, public meetings, and debates, both in and out of government facilities, proliferated throughout the thirteen states. By January 9, 1788, five states—Delaware, Pennsylvania, Georgia, Connecticut, and New Jersey— had ratified the Constitution.2 In none of these states did delegates explicitly assert a power of judicial review in their votes to approve the plan. Massachusetts, where ratification had been in doubt, followed in February after Federalists convinced the vain and pompous John Hancock, an erstwhile opponent, that he was in line to be Washington’s vice president, or even president if Washington declined to serve. Once again, judicial review, already an ambiguous concept in the Commonwealth, was not enunciated as a power mandated in the document.

  Ratification was expected in South Carolina, but resistance to the Constitution seemed insurmountable in New Hampshire, Maryland, Rhode Island, and perhaps North Carolina. That left New York and Virginia as the
keys to the new government—both were thought to be needed to get to the nine-state minimum—and hostility to the plan in both states was intense. To the delight of Federalists, Maryland ratified with unexpected ease on April 28 and South Carolina followed on May 23, leaving Federalists technically only one state short.

  In fact, however, Maryland’s surprising turnabout in no way lessened the need for both New York and Virginia to join the Union. If anything, their mutual ratification became only more vital. Even if New Hampshire, Rhode Island, and North Carolina all eventually decided to ratify, the loss of either New York or Virginia would cleave the nation in two, and into thirds if both declined to join. Without New York, land routes from New England to the remainder of the country would be cut; if Virginia opted for independence, Georgia and the Carolinas would be severed from the North.* Virginia also happened to be the home of not just Washington, but Madison, Jefferson, James Monroe, and a host of other national figures.3

  As approval of the plan became more likely, therefore, Federalist intensity in both New York and Virginia increased. In each state, the Anti-Federalist forces were led by a powerful governor, George Clinton of New York and Virginia’s redoubtable Patrick Henry. In order to defeat ratification, Clintonians would have to best Alexander Hamilton, and Henry, a powerhouse but more of a one-man show, needed to outmaneuver the wily James Madison. With the stakes so high and the players so august, debate on every aspect of constitutional interpretation would be thorough indeed. Thus, the explicit powers of the judiciary could be expected to be placed under the closest scrutiny and, if judicial review was tacitly assumed to be an implicit constitutional power, debates in these two states would likely make that understanding clear.