Courting the Constitution

If the delegates to the Constitutional Convention were to awaken this sum­mer in Independence Hall from two centuries of sleep, they would undoubtedly enjoy an exciting session. George Washington as president of the convention, after persuading Ben Franklin to stop tinkering with his electric table light, would call the Convention to order.

Upon learning that the government devised by them had operated successfully for two hundred years, the dele­gates would be jubilant. To learn further that the nation operating with that govern­ment had developed into the greatest nation on earth would make them ecstatic. They would be pleased to learn that the three branches of govern­ment they devised continued to operate for two hundred years in the manner they intended – and with only mi­nor changes.

They might be shocked to see the reporters and camera­men clamoring at the meeting room’s door. If they had a television set showing a senate hearing with the horde of clerks placing notes before the senators and whispering in their ears, they would be amused. The delegates had created in absolute secrecy, without the aid of clerks or advisors, a government build upon their personal research, knowledge and experience.

In 1787, these fifty-five men struggled with creating the anomaly of a sovereign over sovereigns. However strange it may have seemed to the world then, two centuries of experience have demon­strated it can be made to work (although, admittedly, it did result in a Civil War and still creates endless arguments between the federal and state governments). Another prob­lem considered by the learned delegates – and they were indeed learned men – was how to compel officials to comply with a written constitution.

Eleven years earlier, Penn­sylvania had created a Council of Censors to compel compli­ance with its constitution. The council had power to pass public civil, order impeach­ment and recommend to the legislature the repealing of laws that violated the constitu­tion. The council proved impo­tent and was abandoned in the Constitution of 1790. The oath required of officials by the federal constitution was de­signed to compel compliance, but the delegates knew that men do not always comply with an oath, particularly when it constitutes a promise to do something in the future.

The power of the courts to enforce compliance has long been recognized. It has been termed “declaring acts uncon­stitutional.” The expression was not used by the founders, but the principle was recog­nized by many of the dele­gates. Rufus King of Massachusetts remarked at the convention that “when a case reached the Court they would not enforce an act repugnant to the Constitution.” Alexan­der Hamilton, of New York, was to argue the point in the Federalist Papers. Today, lawyers trace the principle to an opin­ion written in 1803 by Chief Justice Marshall in a case known as Marbury v. Madison. The chief justice used in his opinion the arguments and similar language that Hamilton had written in the Federalist Papers five years earlier.

Actually, the principle was generally recognized by both federal and state courts prior to 1803. During George Washington’s administration, con­gress passed a law directing federal courts to make ap­pointments to federal posi­tions which were not judicial offices. Several federal judges joined in a letter to President Washington, stating that they would not comply with the law because it violated the constitution. Congress promptly repealed it.

At the convention, the establishment of the judiciary did not involve the variety of problems that the legislative and the executive did. How­ever, it did cause debate, and several of the suggestions made at the Convention con­cerning the judiciary were rejected. The question of es­tablishing the Supreme Court as the only federal court was discussed, but it was decided to give congress the authority to establish additional courts.

Virginia’s James Madison acquired, primarily from Thomas Jefferson who was then in Paris, a library devoted to the history of the govern­ments of many ages and civili­zation. He worked diligently to prepare for the convention. He traveled to Philadelphia early, held conferences with leaders and prepared a sug­gested draft which, with the aid of Gov. Edward Randolph of Virginia and other dele­gates, was presented to the convention in the form of resolutions. Known as the Virginia Plan, the draft became the framework from which the convention – after much debate and many changes – was able to assemble the Constitution.

In the resolution concern­ing the judiciary there was a suggestion that the “Judiciary should be joined with the Executive to revise the laws” (or, in other words, have the right to veto). When this was proposed, Rufus King immedi­ately objected and, with a clear perception of future develop­ments, made his prophetic remark that the federal courts would stop the operation of laws which violated the Con­stitution. But he also added that judges should have no power in making the laws, not even the negative power of veto. John Dickinson, Dela­ware, a competent lawyer of recognized ability who had studied law at the English Inns of Courts, agreed with King. Madison, having been in­volved in drafting the pro­posal, naturally argued for its adoption. Elbridge Gerry of Massachusetts testily sug­gested in the presence of eight delegates who were state judges that the Executive should not be “seduced by the sophistry of the judges.”

The delegates, casting votes by states, voted ten to zero to remove the veto power from both the president and the courts. Later they reinstated the veto power of the presi­dent on the condition that it could be overridden by a two­-thirds vote in each House.

How judges were to be chosen finally centered on whether they should be ap­pointed by the president or chosen by the Congress. When this debate had grown bitter, Benjamin Franklin sug­gested facetiously that they might provide for election of judges by lawyers, as they would consistently choose the most talented lawyer in order to divide his clients. The Con­vention ultimately agreed to have the appointment of judges made for life by the president with confirmation by the senate.

Franklin, a most respected delegate, at age eighty-one, did not become involved in acrimonious debate, but had a knack of ending it by diverting the delegates’ attention from their partial and local interests. Once before he had done this. When the bitterness between the small and large states concerning the formation of the legislature came close to destroying all hopes of creat­ing a federal government, he noted the lack of progress they had made in the first five weeks. He believed the differ­ent sentiments indicated the imperfection of human under­standing, causing the dele­gates to grope in the dark for a solution.

“How is it then,” he said, “that we have not thought of humbly appealing to the Fa­ther of Light to illuminate our understanding?” He pointed out that during the war the Continental Congress asked God’s help and its prayers were answered. He then moved that the sessions of the convention be opened each morning by prayer. The mo­tion was opposed because the public might be led to believe that there was serious trouble at the convention and because no money was available to pay for a minister. Although the motion lost, the idea and re­mark that preceded the motion were not lost on the squab­bling delegates. At least the convention was lifted out of its lowest level and started toward compromises which settled the most disruptive disputes of the convention.

The jurisdiction of the fed­eral courts gave the delegates no difficult problems. The cases to be heard by federal courts seemed largely self­-evident: cases brought by and against the federal government and under its laws; cases be­tween states or citizens of different states; cases affecting ambassadors; and maritime cases and similar matters.

A development in govern­ment that would have surprised the awakened delegates would be the expansion of the federal government’s authority over state governments. Ham­ilton of New York and Gover­nor Randolph of Virginia would be cheering this domi­nance of the federal govern­ment for they, with little support from the other dele­gates, fought for a strong and dominant federal government. Nearly all of the other dele­gates tried to forge a federal government with Limited power. The delegates were sent to represent the citizens of their states who desired to give up only that power to a central government necessary to present a united front in international affairs, to estab­lish a monetary system and to settle problems between states, the most serious of which was the commerce between them.

The constitution submitted by the convention left no doubt that within the limits of the power delegated to Con­gress its laws were supreme. Article VI of the Constitution provided: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and that all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Law of any State to the Con­trary notwithstanding.”

During the confederation, if any state did not wish to com­ply with the rules of the Conti­nental Congress it disregarded them.

The dominance of federal authority over the states bur­geoned in this century with the blessing and encourage­ment of the Supreme Court, first by a more liberal construc­tion of the interstate commerce provision, thus extending the power of the federal govern­ment over the states and the people. For example, the court held that a local window washer of a locally-owned building was engaged in inter­state commerce because some of the occupants of some of the offices engaged in business out of state. This and similar rul­ings made practically all em­ployees subject to federal legislation. The court further extended the power of the federal government by new constructions of the Bill of Rights, particularly the Four­teenth Amendment.

The prominence of the Bill of Rights, which the Convention had rejected several times as unnecessary, would also surprise the delegates. Today the Supreme Court deals far more frequently with the Bill of Rights than it does with those provisions of the consti­tution presented by the Con­vention and known as the Frame of Government.

It was following adjourn­ment of the convention, the Constitution was ratified and the United States government was organized and functioning that Congress, on September 27, 1789, proposed the ten amendments that were ratified by the states and became effec­tive December 15, 1791. Years after the first ten amendments were adopted, the Fourteenth Amendment was ratified in 1868. Among other matters, it provided that no state shall “deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.”

The Pennsylvania Constitu­tion adopted in 1776 contained two separate sections, one headed the Declaration of Rights and the other, the Frame of Government. Al­though many lawyers seem to complicate any simple answer, the distinction between these two constitutional provisions is simple enough for any grammar school student to understand. The basic principle is that all power is in the people. Some of this power they assign to designated officials to do specified things in order to operate a govern­ment, such as to legislators the power to enact laws, to a presi­dent the power to perform certain enumerated executive functions, and to judges the power to perform judicial functions. The part of the Constitution which enumerates these powers is known as the Frame of Government. The people further reserve from all officials certain of their personal rights. This withholding is known as a Bill of Rights, or a Declaration of Rights. One is giving power to officials; the other is withholding power from them.

Although the 1776 Pennsyl­vania convention adopted both a Frame of Government and a Bill of Rights, the delegates to the federal convention decided to limit their presentation to a Frame of Government.

Certain provisions which had the effect of a Bill of Rights were contained in the Consti­tution as limits on the author­ity of federal government officials; for example, the pro­visions that the privilege of the Writ of Habeas Corpus shall not be suspended; that trials of crimes shall be by jury; that no Bill of Attainder or ex post facto laws shall be passed; that no title of nobility should be granted; and other similar provisions. These provisions were looked upon by the dele­gates as restrictions on the power given the officials.

As to adding a separate Bill of Rights, Alexander Hamilton argued that it was not necessary to limit authority of fed­eral officials that had not been given them, and others argued that the Bill of Rights which were contained in a majority of the state constitutions would adequately protect the rights of the people. An argument made against adoption of the Constitution was that “the federal judiciary would swal­low up and destroy the state courts.” That did not occur, but the dominance of the federal courts is quite evident today.

For nearly a century and a half, the Supreme Court did little to extend the power of the federal government over states, but in this century the Supreme Court extended the authority of the national gov­ernment to control state gov­ernments. This power grew, finally resulting in federal district judges often taking over from the states the opera­tion of their schools, mental institutions and correctional institutions. On even more occasions, both Congress and the federal courts directed the states how these institutions should be operated.

Beginning with Chief Jus­tice Marshall more than one hundred and fifty years ago, the Supreme Court of the United States argued that “the courts are the mere instru­ments of the law; can will nothing; make no laws; establish no policy; do not govern; neither approve nor condemn legislative policy.”

Courts always enjoyed “legislated” to some degree (all the while denying they were engaging in it), but the United States Supreme Court did not take on the role of the princi­pal national policymaker until the advent of the Warren Court. Since then it has been the Supreme Court of the United States – not Congress nor the president nor the state governments – that has changed the lives of the peo­ple, governed their actions and promulgated the rules of their conduct. Except for fiscal and foreign affairs, which, of course, are extremely important, the real power of this country is in the federal courts. The power is theirs because they had the power to take it; they keep the power because the citizens accept their right to maintain it. The Supreme Court justifies the power, particularly over the states, by taking four familiar words – “equal protection” and “due process” – giving them new meaning, and applying them in new ways to old situations.

The Supreme Court, in the legislative reapportionment case of Baker v. Carr and the cases expanding its holding, restructured state governments more extensively than did all the revisions of state constitu­tions in this century. All the acts of Congress and the state legislatures have not changed available reading material and motion pictures as did the obscenity cases. Congress never influenced our educa­tional system like the school segregation case of Brown v. Board of Education and its prog­eny. No statutes protected the people from governmental invasion of privacy like recent Supreme Court decisions. No statutes ever restricted police, nor protected and discharged the accused so extensively, nor granted such sexual freedom, nor limited the intermingling of government and religion as did the Supreme Court in the last thirty years.

Americans’ lifestyles have been dramatically altered by opinions of the Supreme Court. In every significant governmental change not directly related to economics during the last three decades, Congress followed and imple­mented rules and policies made by the Supreme Court in its opinions. The Court pointed the way and pro­nounced the policy, and the Congress and the states re­acted. To some individuals, the shift of power is marvelous; to others it is horrendous; for all Americans it is important to recognize the shift of power.

How did the Supreme Court get public acceptance of their growing exercise of politi­cal power? The failure of the other branches to deal with certain glaring inequities and injustices had much to do with it. Failure of state legislatures to deal with human rights and reapportionment left a political vacuum into which the courts entered, sometimes reluc­tantly, only because there was “no other relief available to the people.”

With an eye on political survival at the ever approach­ing next election, congressmen and legislators have an almost irresistible urge to ignore those issues upon which the voters are sharply divided. This has been the case on many issues such as reapportionment, race equality, obscenity, aid to parochial schools, abortion, the death penalty, school prayer and many others. On these issues justices rushed in where legislators feared to tread.

The dominant power the federal courts have obtained would probably be the greatest surprise to the delegates examining the results of their work after two centuries of use. If the delegates decided to reex­amine their work, would they race to Washington to see the Congress in action and take a weekend to travel to Lancaster, York, Harrisburg, Reading and communities with which many were familiar? Might they decide to suggest changes in the eighteenth century federal Constitution as Pennsylvania did after a century of experi­ence with its eighteenth-century Constitution? Might they adopt some of Pennsylva­nia’s changes, such as requir­ing members of Congress to vote publicly with each mem­ber’s vote recorded on the final passage of all laws, and to require all proposed laws to contain only one subject, and to forbid amendments and additions to a bill or resolution not germane to its subject? Might they require a balanced budget, and give the item veto to the president; or restrict the power of the Supreme Court? Or might they pass over the ideas of modern political scien­tists? Or would they return contentedly to their peaceful sleep, satisfied with the mira­cle they wrought two centuries ago in Philadelphia?

This article is the second in a special series commemorating the bicentennial of the United States Constitution.

For Further Reading

Bowen, Catherine. The Miracle at Philadelphia. Boston: Little, Brown and Company, 1986.

Farrand, Max, ed. The Records of the Federal Convention of 1787. New Haven: Yale Univer­sity Press, 1967.

Hyneman, Charles S. and Donald Lutz, eds. American Political Writings During the Founding Era, 1760-1805. Indianapolis: Liberty Fund, 1983.

Jesen, Merrell, ed. The Docu­mentary History of the Ratifi­cation of the Constitution. Madison: State Historical Society of Wisconsin, 1986.

Kelly, Alfred H., Winfred Harbi­son and Herman Belz. American Constitution Its Origins and Development. New York: Nor­ton, 1983.

Kurland, Phillip B. and Ralph Lerner, eds. The Founders’ Con­stitution. Chicago: University of Chicago Press, 1987.

Levy, Leonard, ed. The Ency­clopedia of the American Con­stitution. New York: Macmillan Publishing Company, 1986.

McDonald, Forrest. Novus Ordo Seclorum: The Intellectual Origins of the Constitution. Lawrence: University Press of Kansas, 1985.

McLaughlin, Andrew C. A Con­stitutional History of the United States. New York: N.P., 1935.

Rutland, Robert A. The Ordeal of the Constitution: The Anti­-Federalists and the Ratifica­tion Struggle of 1787-1788. Boston: Northeastern University Press, 1983.

Wood, Gordon, S. The Creation of the American Republic, 1776-1787. New York: Norton, 1942.

Robert E. Woodside, Jr., professor of Pennsylvania Constitutional Law for the past fifteen years at the Dickinson School of Law, Carlisle, served as chairman of the Pennsylvania Constitutional Revision Commission and as delegate to the Pennsylvania Constitutional Convention in 1967-1968. He also wrote a several hundred page law book on the Pennsylvania Constitution. A graduate and former trustee of Dickinson College and the Dickin­son School of Law, he was a mem­ber of the Pennsylvania House of Representatives for ten years, Attorney General of Pennsylvania for three years and Superior Court Judge for eleven years. In addition to serving as president of the board of trustees of the Pennsylva­nia Industrial School, Camp Hill, for ten years, he has served on numerous governmental and charitable boards and commis­sions. He has three children, all of whom are lawyers. One son serves as a federal bankruptcy judge, one as state deputy Attorney General, and a daughter as counsel for the state senate.