"We must never forget it is a Constitution we are expounding"- Chief Justice John Marshall Last week I discussed the controversy over the nomination of Sonia Sotomayor as Associate Justice of the United States Supreme Court, focusing on the standard for evaluating nominees. This week I will examine our Constitution, the basis for that standard.
Ours is a limited constitution, one that delegates powers to a federal government and denies certain powers to state governments which they had exercised to the detriment of our prosperity. It is necessary to recall these circumstances which originally gave rise to the Constitution in order to appreciate its authority and legitimacy today.
The Constitution did not come into being in a vacuum. What we now call the founding generation could not be sure that their nation would survive. Partly because of a suspicion of distant centralized authority and partly because of an attachment to their states, many Americans were far from assenting to a national government.
The Continental Congress (1774-81) and the Articles of Confederation (1781-89) were based on the good faith of the colonies until Independence (1776), and then the states which formed in that fragile union. Nothing of consequence could be accomplished without the approval of nine of the 13 states, and no independent and powerful national legislative, executive or judicial branches existed.
The major domestic threat to our nation was faction. The comparatively small size of the states which rendered them responsive to the wishes of their constituents also made them vulnerable to domination by majority factions determined to assert their rights but loathe to accept their responsibilities.
In the midst of a depression caused by the end of wartime production and the lack of access to continental and foreign markets, many Americans were broke and in debt. The war had been financed by an almost worthless Continental currency, made worse by the states' issuance of paper money as well. As debtors and their allies soon outnumbered their creditors, state after state passed laws which, in one way or another, repudiated debts.
Such legislative acts constituted more than an attack on the property rights of one class of people by another, as wrong as that was. They also sent a signal to nations from whom we borrowed money to finance the War that those debts were susceptible to repudiation too. After all, the same factions that controlled state governments dominated the weak Confederation Congress.
Reverence for the Constitution and the laws was not necessarily in the hearts of many of our ancestors at their moment of great crisis. How to counter this? As vital to the defense of our rights as a strong legislative and executive branch are, the courts have more immediate impact than either on the lives of our people. It is there that contracts are upheld and private property protected.
Thus, the Constitution, in Article III, provides for a supreme court, and "inferior courts" established by Congress, the judges of which hold their offices "during good behavior." When combined with Article VI, which declares the Constitution, federal laws and treaties to be "the supreme law of the land," binding every state judge, we gained a truly national judicial branch. This was soon to be the chief restraint on the states which, at that time, were coining or printing money, and passing bills of attainder, ex post facto laws, and "laws impairing the obligation of contracts."
It would be strange for the Constitution to permit at the federal level what had been curbed at the state level. Thus, the Fifth Amendment to the Constitution forbids the federal government from taking private property for public use without just compensation.
But since New Deal days, Congress has passed laws which have encroached on rather than merely regulated our trade and commerce. In other words, it has been doing what the states long ago had been restrained from doing by our Constitution. And just as it once took state judges of uncommon fortitude to resist what James Madison denounced as the states’ "rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project," so now it requires federal judges of equal fortitude to resist that same impulse in Congress.
For as Alexander Hamilton put it so forcefully, we must turn for the defense of our property and other rights to "courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void."