Constitutional Consolidation

Writing a constitution is easy.

Well . . . maybe not so easy. The Iraqis are finding it difficult. In a recent Los Angeles Times article (August 19, 2005), Joseph J. Ellis calls them "Baghdad's foundering fathers."

But the American Founding Fathers also discovered its difficulty. Our Constitutional Convention officially began on May 14, 1787 and lasted until September 17, 1787, but the Constitution wasn't fully ratified until May 29, 1790, and the Bill of Rights wasn't added until December 5, 1791.

Still, writing a constitution was the easy part.

It's said that upon exiting the Constitutional Convention, Benjamin Franklin was asked by several citizens what manner of government had resulted. His answer:

"A republic, if you can keep it."

That ability was long in doubt.

One significant aspect concerned the emerging attitude toward law -- the respect that might be shown for it. Or in the American case, the scofflaw attitude. Prior to the Revolutionary War, Americans had been inveterate scofflaws, ignoring the distant British government's rulings.

At the beginning of the new republic, therefore, Americans lacked the respect for the Supreme Court that they generally have for it today. Moreover, the first Chief Justice to the American Supreme Court, John Marshall, was not the sort of man whom one might expect to be up to the task of forging a court that would gain respect.

There's an anecdote told about him. He loved wine, had his own wine cellar, and made a rule of uncorking a bottle at court for himself and the other justices whenever they had to meet on a rainy day. One bright sunny morning, he popped a cork and started to pour the wine. Justice Joseph Story pointed out that the sky was blue. Marshall adopted his pose of Chief Justice and intoned:

"Such is the broad extent of our jurisdiction that by the doctrine of chances it must be raining somewhere." (McDougall, Freedom Just Around the Corner, 462).

Justice Story dropped his dissent.

Now, such a trait, this willful defiance of an accepted rule, might also characterize a scofflaw or a corrupt lawyer, but look carefully at what Justice Marshall was doing with those words -- justifying the right of the Supreme Court to respond to new circumstances by appealing to the extent of its legitimate jurisdiction based upon a reasonable interpretation of the power granted it by the Constitution.

In other words, he gave a legal ruling. He appealed to law.

Critics of Marshall argued that his court "arrogated to itself the power to interpret the Constitution and overrule state legislatures and courts" (McDougall, 462). This seems like an odd charge today, but largely because we have inherited a Supreme Court that bears Marshall's stamp.

Like Franklin, Marshall remembered that republics have a habit of degenerating and dying. Marshall's aim was to interpret and adjust the law to increase the American republic's chance of survival. Toward this aim, the Marshall Court invoked memory and the Constitutional Framers' original intent, using four strategies:

First, the justices pored over the Constitution like theologians or literary critics, teasing from words such as "contract"' and "commerce" legal principles of universal and timeless validity. Second, the Court rendered decisions in non-Constitutional cases with an eye to their implications for Constitutional ones. That way new social or economic disputes might be adjudicated so as to reinforce first principles. Third, Marshall established prerogatives and procedures the Supreme Court has employed ever since, including secret, collective deliberations, the quest for consensus, and opinions expressed in non-partisan language. Fourth, Marshall drew on eighteenth-century precedents to establish the novel American doctrine of judicial review. When overlapping legislative jurisdictions resulted in contradictory laws, whether among the thirteen colonies or between the states and the federal government, only the courts could decide which laws violated the Common Law and/or Constitution. In all things the Marshall Court's calling was to resist demagoguery, to tame the wild horses of social change with bridles of principle. In the early nineteenth century the wild horses were state governments, hence Marshall lectured Americans (fellow southerners most of all) that their federal polity was a compact of the people, not the states. (McDougall, 462-463)

Note that Marshall appealed to the Constitution's preamble in his emphasis upon the people's compact:

We the People of the United States, in Order to form a more perfect Union . . .

Marshall's overall stategy was one based upon the dual principles of legitimacy and legality, for by emphasizing the people, his Court drew upon the legitimacy conferred by a democratic republic and the legality conferred by a basic law.

Marshall didn't always succeed, for there were sometimes scofflaws in high office. When Marshall ruled in favor of the Cherokee against the Georgia state court in 1832, President Jackson (who supported a policy of Indian removal) is reputed to have said:

"John Marshall has made his decision; now let him enforce it!"

Whatever was actually said about enforcing the Supreme Court ruling, Jackson wouldn't, Marshall couldn't, and Georgia thought it shouldn't.

No system is perfect.