It is no surprise that the Constitution is a document that is greatly revered within the United States. All of the chips are stacked in its favor. Given the typical extent of education offered on the history of the colonial period, the era of the Articles of Confederation, and Constitutional ratification, and the rather limited set of opinions read from the period, few escape from their time in grade school without an admiration for it. The very powers and structures of every level of government that we interact with depend on its existence and authority and, as such, have a very vested interest. I certainly do not recall any systematic exposure to the words or writings of the anti-federalists or those that opposed it at any point in my childhood. And there are even entire groups of Americans in general and Christendom in particular that believe it to be in some way divinely inspired.
All of this undergirds what I think is a very prevalent opinion within patriotic or Constitutionalist circles that goes something like this:
“The Constitution began as a worthy document, perhaps the best plan for a government for its time, and it more or less succeeded in retaining its purity and effectiveness in restraining government for almost a hundred years until the progressive era. The founding generation were righteous and self-sacrificing people with pure motives and were united in the vision of One Nation, Under God. But in the 21st century, liberals began co-opting and re-interpreting the Constitution to fit their preferences and have changed the nation for the worse. If only we could restore America to the greatness it once possessed.”
The problem with this perception stems from a simple ignorance of history and fails to recognize a sad, sordid truth of American history: the Constitution was put forward by many for the purpose of centralizing power and control from the very beginning and it failed to live up to its intended purpose almost immediately. Here are three sordid episodes in history that show this to be the case.
1. Militia Act of 1792 and the Whiskey Rebellion
In a report to Congress from the Department of the Treasury, Alexander Hamilton, then Secretary of the Treasury under George Washington, recommended internal excise taxes as a revenue raising measure. It was decided that those taxes should fall on distilled liquor. But many southern states and agricultural regions, especially that of western Philadelphia would not bow to that demand so easily. In what is now referred to as the Whiskey Rebellion, Philadelphia farmers repeatedly harassed tax collectors and prevented collection of the taxes. Hamilton and others who did not value uppity farmers and their opposition to the new general government authority thought that the prudent course would be to send in the troops to quell their activities. President Washington long remained wise and reluctant to enforce the law at the end of a bayonet and even John Jay, now Chief Justice of the Supreme Court, normally an ally of Hamilton, “thought that the employment of a military force…would be as bad as anything that the Rioters had done—equally unconstitutional and illegal.”
Nevertheless, Washington slowly began seeking opinions and approval for military action and the Militia Act of 1792 offered a potential solution. The bill’s language allowed for the Executive to call up the militia in cases where opposition to the laws of the United States was too powerful to be dealt with in the ordinary course of judicial proceedings. However, the Constitution demanded otherwise. Article 1, Section 8 vested this power to Congress alone and no unauthorized act of Congress could change that fact. Washington’s 15,000 troops sent into Pennsylvania represented one of the first encroachments of the Executive and Legislative branches and set a dangerous precedent for further action. (I’m looking at you, Lincoln) And all this not 4-6 years into the life of the general government
2. Marbury v. Madison and Judicial Review
Fast forward to 1801. Washington’s two terms remained comparatively uneventful and rightly so. But his successor, John Adams, did not have the clout and respect that Washington demanded of post-war Americans. His debacle with the Alien and Sedition acts, directly infringing upon rights of speech and press for the purpose of reducing political criticism and backlash, demonstrated just how viciously divided the Union could become in less than ten years. But the petty partisanship was just beginning.
Just months before the newly elected Jefferson administration was to transition to power, Adams and his Congress passed an updated Judiciary Act, its enactments including the addition of several new federal judges, the appointments of those seats going to loyal Federalist judges, as well as the reduction of Supreme Court justice seats and it was accompanied by the appointment of John Marshall as chief justice. As much as early American founders can be praised for their political principles, this blatant power play shows just how petty politics has always been within the federal government halls.
But the most far reaching impact of this entire episode concerns a particular classic Supreme Court case. During the chaos of the Jefferson presidential transition, some of the newly minted appointments failed to be delivered in a timely manner and one in particular, that of William Marbury, was delayed by ten months. This resulted in his being pressured to request a writ of Mandamus against the Jefferson administration and, thus, the case of Marbury v. Madison was born.
While the majority decision, issued by Chief Justice Marshall himself, indeed held to some semblance of originalism in rejecting the Supreme Court’s ability to issue a writ of Mandamus, it was his departure into exposition of the purpose of the Supreme Court itself that was particularly harmful. In this classic opinion, he confidently declared that it was “the duty of the Judicial Department to say what the law is.” With so few words, Marshall had effectively put into effect the principle of Judicial Review, that is, the Judicial determination of the validity of law, into effect for federal legislation. The problems with this are numerous. While many states had already established Judicial Review for themselves, the power was discussed during the Philadelphia Convention but was not widely supported and was not included in the enumerated powers of the Judicial branch. So while many Americans would not be surprised to see this play out within the general government, “the power of judicial review was an assumed power of the court not expressly granted by the text of the document.” In the words of Jefferson,
“Nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them … The opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.”
As well, Madison was of the opinion that judicial review offered too much potential for abuse. In the description of McClanahan, “Madison and other members of the founding generation thought that the Supreme Court, as an appellate court, could only invalidate the decisions of lower federal courts in relation to law and fact, meaning it did not have the ability to interpret the constitutionality of the law, only whether the party in question violated the law or was given a fair trial.” The Supreme Court certainly doesn’t look anything like Madison’s vision today and we are undoubtedly worse off for it.
3. Fletcher v. Peck and the Further Extension of Judicial Review
If, indeed, Americans were not surprised or overly perturbed by Marshall’s establishment of Judicial Review in the federal sphere, what this practice led to soon afterward would most assuredly not be received in the same way.
The next episode begins in Georgia in 1795, with the sale of 35 million acres of Yazoo River country land, land that would eventually encompass Mississippi and Alabama. Sadly, you would not be surprised, at this point, to know that the vote to authorize that sale involved the bribery of several state legislators in exchange for their support. Georgians soon caught wind of this corruption and quickly replaced the politicians in power. They then repealed the legislation and declared the contracts null and void. Unfortunately, in the meantime, investors engaged in subsequent trades with other landowners and investors that resulted in several degrees of separation between the new “innocent” parties to the land sales and the original conspirators. While the entire ordeal languished in the courts and Congress for a number of years, by 1810 the noteworthy case between Robert Fletcher and John Peck finally arrived before the Supreme Court.
At first blush, the case at hand seemed to revolve around the Contract clause of the Constitution, contained in Article 1, Section 10, and whether Georgia had effectively passed an Ex Post Facto law via an illegal Bill of Attainder. And to the uninformed reader, this makes some sense. However, as in many other subsequent cases of creative misconstruction of problematic Constitutional clauses, this simply doesn’t follow. The Contracts clause of the Constitution was purposed to be a safeguard against fiat and paper currency, inflation, and state government default. This was true in virtually every case during the various ratification conventions. As well, it was dubious to assume, even if the Yazoo deal was included within the purview of the Contracts clause, that a pursuant contract was valid and obligatory in the case of fraud. As Gutzman points out in language contained within the contracts clause of the Northwest Ordinance, “the obligation of contracts was understood to be dependent on the absence of fraud (as well as coercion).”
But, more than anything else, the principle that the Supreme Court was entrusted and authorized with the ability to review the Constitutionality of state legislation was itself actively resisted during the ratification debates and Fletcher v. Peck represented the very first case of the Supreme Court doing just that. As McClanahan and others have pointed out, the jurisprudence contained within Fletcher v. Peck has been used as justification for invalidating state law nearly seventy-five times. Undoubtedly, in at least a few instances, the eventual outcomes of cases decided in this manner may have been more agreeable and certainly more inline with our 21st century sensibilities. But the damage done by the decision in subverting otherwise healthy checks and balances of the states against the general government has since emasculated the states as the most powerful check unto themselves and now forever changes the way in which we view their relationship.
These are just three examples and despite their simplicity the ramifications seen and felt throughout American history are unmistakable. Not a year goes by that the Supreme Court does not entertain some appeal from a lower state court regarding the Constitutionality of those decisions and the laws and conditions surrounding them. But given a proper understanding of Constitutional history, this should never have even been a possibility. And the routine politicization of all branches of government has led to much of the rampant polarization that we see within American politics today. While some remain hopeful that a restoration of some semblance of proper Constitutional originalism may heal some of the gaping wounds that we nurse, it is hard to imagine that such engrained jurisprudence could or would ever be overturned. And the fact that such corruptions and trends occurred so quickly in American Constitutional history shows that human nature and its tendency towards corruption under power has always been alive and well.