American Constitutional Law and History (original) (raw)
Related papers
1998
In 1803, Man did not think he was powerful enoup to g!ve orders to Conand. the Pre.ident. After the elections of 1800, with the Jeffersonians in con-Con the Pl'8lidency the Federalist Court was in no ~sition to dictate to the he •. Mal'8uif realized that he could not u~Jlola the eonstitu-ttonaUty of 13 or the Judiciary Act of 1789 and directSeeretary of State 20 James Madison to deliver the commissions to the disappointed would-be judges. President Thomas Jefferson and Madison would have ignored such an order. There is no reason to think that Marshal! believed that the Court was supreme on matters of constitutional interpretation. This conclusion is bome out by the impeachment hearings of Judge Pickering and Justice Chase. Marbury was decided on February 24, 1803. The House impeached Pickering on March 2, 1803 and the Senate convicted him on March 12, 1804. As soon as the House impeached Pickering, it tum.ed its guns on Chase. If that move succeeded, Marshall had reason to believe he was next in line. With these threats pressing upon the Court, Marshall wrote to Chase on January 23, 1804, suggesting that Members of Congress did not have to impeach judges because they objected to their judicial opinions. Instead, Congress could simply review and reverse objectionable decisions through the regular legislative process. Here is Marshall's language in the letter to Chase: I think. the modem doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than [would] a removal of the Judge who has rendered them unknowing of his fault. The meaning of Marbury is placed in proper perspective when we recall that Marshall never again struck down a congressional statute during his long tenure on the Bench, which lasted from 1801 to 1835. Instead, he pl~yed a consistently supportive role in upholding congressional interpretations of the Constitution. In the years following Marbury, Marshall upheld the power of Congress to exercise the commerce power, to create a U.S. Bank (even though no such power is expressly provided in the Constitution), and to discharge other constitutional responsibilities. The judicial"l'Junctioned as a yea-saying, not a negative, branch. The respect of the Court for congressional judgments is evident in some decisions in the 1850s. In 1852, the Supreme Court held that the height of a bridge in Pennsylvania made it "a nuisance.' Congress responded with legislation that declared the bridges at issue to be "lawful structures," and the Court then ruled that the bridges were no longer unlawful obstructions. l In the second decision, Justices McLean, Grier, and Wayne objected that Congress could not annul or vacate a court decree and that the congressional statute was an exercise of judicial, not legislative, power. Yet the Court has never adopted that position. As the Court noted in 1946: "whenever Congress' judgment has been uttered affirmatively to contradict the Court's previously expressed view that specific action taken by the states in Congress' silence was forbidden by the commerce clause, this body has accommodated its previous judgment to Congress' expressed approval." 2 Settling Constitutional Issues In the May 1997 issue of Harvard Law Review, Larry Alexander and Frederick Schauer argue that the Supreme Court should be the exclusive and authoritative interpreter of the Constitution. Although they caution that their study is not based on historical precedents, they conclude that the Court is best situated to decide and settle constitutional issues, particularly transcendent questions. They believe that vesting such power in the courts would contribute to political stability. Neal Devins and I talked about this article. We tried to recall a time when the Court ever "settled" a constitutional issue, transcendent or otherwise. Certainly the decision in Dred Scott did not settle the slavery issue. Judicial resistance, over a period of almost forty years, to the use of the commerce power by Congress did not settle the issue of national regulation. Eventually the Court gave way. Roe v. Wade did not settle the abortion issue. In 1992, the Court jettisoned the trimester standard that had drawn criticism from many quarters. The decision in Furman v. Georgia (1972) to strike down death-penalty statutes in Georgia and Texas as cruel and unusual did not settle that issue. Under heavy public pressure the Court later acknowledged that the death penalty, if accompamed by revised procedures, was constitutional.
Foreword: Symposium: The Federalist Constitution
Fordham Law Review, 2021
Over the past twenty years, constitutional law has taken a decidedly historical turn, both in academia and in the courts. The U.S. Supreme Court's constitutional decisions are increasingly filled with extended historical inquiries, and not just by self-described originalists. 1 Yet much of this historical inquiry is severely distorted. Twenty-first-century lawyers and judges enjoy improved and ever-widening access to a rich array of primary sources from the founding era and the early republic, but the ability of modern interpreters to make sense of these materials is pervasively affected by present biases. Many of these biases stem directly from long-standing received narratives of constitutional meaning. Every generation of constitutional interpreters since 1787 has indulged to some extent in the American penchant for linking present-day intuitions to the minds of the founders. 2 This does not necessarily make us "all originalists now," 3 but it
The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States
The American Journal of Comparative Law, 1994
7. Max Farrand, The Framing of the Constitution of the United States 156-7 (1913); see the participants' notes collected in, Jane Butzner (ed.) Constitutional Chaff 147-152 (1941). 8. For ratification: e.g., The Federalist No. 78, at 464 (Rossiter ed. 1961) (A. Hamilton); against ratification: "Brutus," in Herbert Storing (ed.), 2 The Complete Anti-Federalist 417 ff. (1981); see, e.g., Raoul Berger, Congress v. The Supreme Court 120 ff. (1969). 9. Strongest textual inferences are drawn from Art. III § 2 cl. 1, extending the judicial power of the U.S. to cases "arising under this Constitution", and Art. VI par. 2, the Supremacy Clause, quoted n. 3 above. 10. 5 U.S. (1 Cranch) 137 (1803). 11. This conception of judicial constitutional review as an integral element of the judicial law-finding process, and of the Constitution as supreme ordinary law, drew heavily on the English common law tradition. On the relevance of the common law tradition to the Framers' conception of judicial review see Powell, "The Original Understanding of Original Intent," 98 Harv. L. Rev. 885, 894 ff. (1985). For an argument that Marbury in this sense did indeed effect a major transformation of the earlier understanding, in that it called for routine application of a document originally expected and intended to be enforced only as a last resort against clear violation, see Sylvia Snowiss, Judicial Review and the Law of the Constitution (1990), critically reviewed by Newmyer in 9 Const. Comm. 126 (1992). Marbury is discussed further infra, text at notes 40 if. 12. The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Marbury v. Madison, 5 U.S. at 170.
Constitutionalism, Law & Politics II: American Constitutionalism Spring 2022
“Constitutionalism, Law & Politics II: American Constitutionalism” is the gateway course to the Constitutional Studies program at Notre Dame. It attempts to understand the nature of the American regime and her most important principles. It explores the American Constitution and the philosophical and political ideas that animated its creation and subsequent development. It proceeds by examining select statesmen and critical historical periods—specifically, the Founding era, Lincoln and the slavery crisis, and the Progressives.
American Constitutional History: Selected Bibliography
2010
The bibliography in The Theme Is Freedom by M. Stanton Evans is a good source of supporting material. Donald Lutz has written and edited several books that trace the political and documentary development of our constitutional tradition. The University of Szeged in Hungary has been sponsoring research on American historical documents. Recent bibliographies citing foundation documents and secondary literature may be found at