Posted on 09/23/2010 7:47:27 AM PDT by Publius
Brutus, likely Judge Robert Yates of New York, begins a two-part essay in which he examines the Judiciary branch and the consequences of the Preamble.
1 In my last, I showed that the judicial power of the United States under the first clause of the Second Section of Article Eight would be authorized to explain the Constitution, not only according to its letter, but according to its spirit and intention, and having this power, they would strongly incline to give it such a construction as to extend the powers of the general government as much as possible to the diminution, and finally to the destruction, of that of the respective states.
2 I shall now proceed to show how this power will operate in its exercise to effect these purposes.
3 In order to perceive the extent of its influence, I shall consider:
4 First: Let us enquire how the judicial power will effect an extension of the legislative authority.
5 Perhaps the judicial power will not be able by direct and positive decrees ever to direct the Legislature because it is not easy to conceive how a question can be brought before them in a course of legal discussion in which they can give a decision declaring that the Legislature have certain powers which they have not exercised and which in consequence of the determination of the judges they will be bound to exercise.
6 But it is easy to see that in their adjudications they may establish certain principles, which being received by the Legislature, will enlarge the sphere of their power beyond all bounds.
7 It is to be observed that the Supreme Court has the power in the last resort to determine all questions that may arise in the course of legal discussion on the meaning and construction of the Constitution.
8 This power they will hold under the Constitution and independent of the Legislature.
9 The latter can no more deprive the former of this right than either of them, or both of them together, can take from the President with the advice of the Senate the power of making treaties or appointing ambassadors.
10 In determining these questions, the Court must and will assume certain principles from which they will reason in forming their decisions.
11 These principles, whatever they may be, when they become fixed by a course of decisions will be adopted by the Legislature and will be the rule by which they will explain their own powers.
12 This appears evident from this consideration that if the Legislature pass laws which in the judgment of the Court they are not authorised to do by the Constitution, the Court will not take notice of them, for it will not be denied that the Constitution is the highest or supreme law.
13 And the courts are vested with the supreme and uncontrollable power to determine in all cases that come before them what the Constitution means; they cannot, therefore, execute a law which in their judgment opposes the Constitution unless we can suppose they can make a superior law give way to an inferior.
14 The Legislature, therefore, will not go over the limits by which the courts may adjudge they are confined.
15 And there is little room to doubt but that they will come up to those bounds as often as occasion and opportunity may offer, and they may judge it proper to do it.
16 For as on the one hand they will not readily pass laws which they know the courts will not execute, so on the other, we may be sure they will not scruple to pass such as they know they will give effect as often as they may judge it proper.
17 From these observations it appears that the judgment of the Judicial on the Constitution will become the rule to guide the Legislature in their construction of their powers.
18 What the principles are which the courts will adopt, it is impossible for us to say, but taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see that they may, and probably will, be very liberal ones.
19 We have seen that they will be authorized to give the Constitution a construction according to its spirit and reason and not to confine themselves to its letter.
20 To discover the spirit of the Constitution, it is of the first importance to attend to the principal ends and designs it has in view.
21 These are expressed in the Preamble in the following words, namely: “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution,” etc.
22 If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government.
23 The preservation of internal peace, the due administration of justice, and to provide for the defense of the community seems to include all the objects of government, but if they do not, they are certainly comprehended in the words, “to provide for the general welfare.”
24 If it be further considered that this Constitution, if it is ratified, will not be a compact entered into by states in their corporate capacities, but an agreement of the people of the United States as one great body politic, no doubt can remain but that the great end of the Constitution, if it is to be collected from the Preamble in which its end is declared, is to constitute a government which is to extend to every case for which any government is instituted, whether external or internal.
25 The courts, therefore, will establish this as a principle in expounding the Constitution and will give every part of it such an explanation as will give latitude to every department under it to take cognizance of every matter, not only that affects the general and national concerns of the Union, but also of such as relate to the administration of private justice and to regulating the internal and local affairs of the different parts.
26 Such a rule of exposition is not only consistent with the general spirit of the Preamble, but it will stand confirmed by considering more minutely the different clauses of it.
27 The first object declared to be in view is “to form a perfect union.”
28 It is to be observed it is not a union of states or bodies corporate; had this been the case the existence of the state governments might have been secured.
29 But it is a union of the people of the United States considered as one body who are to ratify this Constitution if it is adopted.
30 Now to make a union of this kind perfect, it is necessary to abolish all inferior governments and to give the general one complete legislative, executive and judicial powers to every purpose.
31 The courts, therefore, will establish it as a rule in explaining the Constitution to give it such a construction as will best tend to perfect the Union or take from the state governments every power of either making or executing laws.
32 The second object is “to establish justice.”
33 This must include not only the idea of instituting the rule of justice, or of making laws which shall be the measure or rule of right, but also of providing for the application of this rule or of administering justice under it.
34 And under this, the courts will in their decisions extend the power of the government to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the Constitution they should do: to wit, pass laws and provide for the execution of them for the general distribution of justice between man and man.
35 Another end declared is “to insure domestic tranquility.”
36 This comprehends a provision against all private breaches of the peace as well as against all public commotions or general insurrections, and to attain the object of this clause fully, the government must exercise the power of passing laws on these subjects as well as of appointing magistrates with authority to execute them.
37 And the courts will adopt these ideas in their expositions.
38 I might proceed to the other clause in the Preamble, and it would appear by a consideration of all of them separately, as it does by taking them together, that if the spirit of this system is to be known from its declared end and design in the Preamble, its spirit is to subvert and abolish all the powers of the state government and to embrace every object to which any government extends.
39 As it sets out in the Preamble with this declared intention, so it proceeds in the different parts with the same idea.
40 Any person who will peruse the 8th Section with attention, in which most of the powers are enumerated, will perceive that they either expressly or by implication extend to almost everything about which any legislative power can be employed.
41 But if this equitable mode of construction is applied to this part of the Constitution, nothing can stand before it.
42 This will certainly give the first clause in that article a construction which I confess I think the most natural and grammatical one: to authorize the Congress to do anything which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.
Brutus’ Critique
Hamilton has had his initial say and has temporarily surrendered the field to Madison, who has laid bare the thought behind the very bones of the Constitution. Now, in glorious counterpoint, Brutus returns with a blast that reminds the reader of Titans exchanging blows. His consideration is the Judiciary, Article III of the proposed Constitution – not the nonexistent Article VIII, possibly a misprint – and what he has to say about it and its relations with the other branches of government is both prescient and alarming. His analytical case consists of three parts.
3 In order to perceive the extent of its influence, I shall consider:
Brutus nods toward the separation of powers; for procedural reasons the Judiciary is unlikely to directly extend the power of the Legislative (5), but in the establishment of principle it may indirectly serve the same purpose (6). It is, after all, “the last resort of power in questions that surround the meaning and construction of the Constitution” (8). Marbury v Madison is yet some fifteen years away, and yet the reader sees at 12 Brutus’ anticipation of the principle of judicial review.
12 …if the Legislature pass laws which in the judgment of the Court they are not authorised to do by the Constitution, the Court will not take notice of them, for it will not be denied that the Constitution is the highest or supreme law.
Those limits will be tested, to be sure (15, 16), and it is clear that the Supreme Court will retain final say in the matter. But what will inform the decisions made in that regard? It is, as Brutus writes, yet unestablished, but there is within the Preamble of the Constitution a statement of principles through which the very government is formed. These were not, then or now, legal precedent, but they were in Brutus’ estimation the font from which the new nation’s jurisprudence will flow.
20 To discover the spirit of the Constitution, it is of the first importance to attend to the principal ends and designs it [the Preamble] has in view.
These are to be considered one at a time, and the reader may be forgiven a suspicion of reductio ad absurdum if Brutus prefers to take each to its logical conclusion, a suspicion better formed from two centuries of hindsight than from Brutus’ own contemporary viewpoint.
First, there is “to form a [more] perfect union”, which Brutus correctly takes to imply that the compact is between, not the federal government-to-be and its state constituents, but between the federal government directly with the citizen (29). This is one of Hamilton’s own main arguments in favor of the construction of the Constitution – that the status of states as immovable intermediaries has resulted in the current paralysis of government. It is a safeguard against the abuse of power as well. But Brutus has tactfully omitted the qualification “more” and so comes to the conclusion that this principle must imply the abolition of all inferior governments (31), inasmuch as no “perfect” union may contain them. Given the survival of the state governments even after eleven of them decided to depart the Union some three-quarters of a century hence, we cannot cede Brutus this point in application.
Nor is his second objection entirely satisfactory in the mirror of time. It is simply that “to establish justice” is, in fact, the charge of the government and its judgment in the keeping of the Supreme Court, but:
34 …the courts will in their decisions extend the power of the government to all cases they possibly can, or otherwise they will be restricted in doing what appears to be the intent of the Constitution they should do: to wit, pass laws and provide for the execution of them for the general distribution of justice between man and man.
It is the charge of the Legislative, of course, to pass laws, and of the Executive to execute them, and not of the Judicial to do either. Historically this has, in a number of cases, served to expand the power of the federal government just as Brutus predicts, but it has also served to limit it sharply on occasion as well. The reason for this is the checks and balances that appear to have eluded Brutus for the moment. Nevertheless, the notion that there is no appeal from a Supreme Court decision – save a succeeding Court, such as would be the case with Dred Scott – does serve to render a permanence to any decisions made that serve to expand the purview of the federal government, Roe v Wade coming to mind under this category.
But Brutus’ real objection to the seemingly unlimited power of the Supreme Court lies in its tendency to work against the sovereignty, and ultimately the very existence, of state government.
38 …if the spirit of this system is to be known from its declared end and design in the Preamble, its spirit is to subvert and abolish all the powers of the state government and to embrace every object to which any government extends.
This last point is related to Article I, Section 8, the Necessary and Proper Clause, which will, in Brutus’ estimation, lead to the Supreme Court granting the Legislative a blank check.
40 Any person who will peruse the 8th Section with attention, in which most of the powers are enumerated, will perceive that they either expressly or by implication extend to almost everything about which any legislative power can be employed.
Once in place and sanctioned by a Supreme Court decision, there is, as Brutus relentlessly points out, no appeal. It is a staggering amount of power viewed from a context devoid of legal precedent, and Brutus’ concern is that it might lead nearly anywhere with no check on it other than the integrity of the Court itself, made up of mere men with their inherent fallibilities and temptations.
There will be more on this theme in the second part of Brutus’ essay. Lest the reader become too comfortable in the assurance that some of Brutus’ dire predictions did not come to pass, it is left to contemplate how many of them did so in another form.
The Massachusetts Amendment Proposals
The day before Brutus put quill pen to hemp paper, the ratifying convention of Massachusetts gave its blessing to the Constitution, but with reservations. Unlike Pennsylvania, where Samuel Bryan had written a 10,000 word dissection of the perceived flaws of the Constitution, the Massachusetts convention strove for brevity.
A fresh volley of the fight over a bill of rights has just been fired. Ratification on the part of Massachusetts is now contingent upon the explicit recognition of certain inherent limitations to the powers of the federal government. It is decidedly not what Hamilton had in mind, for reasons he has already explained, but it is clear that suspicion of an unchecked government trumped that of a government slowly limiting the citizens’ rights to within the bounds delineated by a bill of rights. The conclusion on the part of Massachusetts was clearly that the imminent danger be addressed before the distant one.
It was the triumph of Virginia’s George Mason, to begin with, a man who had considered both sides of the matter and decided in favor of a bill of rights, refusing to sign the Constitution until such a thing were incorporated. The verbiage of the Massachusetts Amendments must make even the beginning student of the modern Constitution smile with familiarity.
There is, for example, the text of the 10th Amendment within the first clause, the 5th Amendment within the sixth. Within the last clause is a strengthening of Article I, Section 9, in which titles of nobility may not be granted by the federal government or any state, and also of an amendment proposed in 1810 that is yet unratified but still perfectly extant, known as the “Titles of Nobility Amendment”, under which any citizen of the United States accepting title or foreign office without the explicit consent of Congress may have his or her citizenship revoked, as well as be ineligible for any “office of trust or profit.”
There are difficulties with the notion of “conditional” ratification as Madison was later to point out. But the ratification of the Constitution was, at this point, enough in doubt to warrant a serious consideration of the matter, and by the fall of 1788 Madison himself was to change his mind. That may have been in part due to Jefferson’s stout insistence on a bill of rights; Jefferson did not attend the Constitutional Convention, where his influence might have tipped the balance toward its inclusion. Now the Titans would exchange blows over that matter. The battle is now joined.
The Opposing Constitutional Theologies
In States’ Rights and the Union, Forrest McDonald lays out the bases for the two competing theologies of the formation of the Union: Nationalist and Federalist.
The Declaration of Independence was based on John Locke’s Second Treatise of Civil Government. As Locke defined it, the compact that establishes a political society is between the governing body and the people, and if the governing body fails in its assigned mission, either by incompetence or design, sovereignty reverts to the people. By reverting to a state of nature, the people become free to create a new government.
The 13 colonies, however, had 13 separate agreements with the King. Thus, if the King abrogated the compact with the colonies, sovereignty devolved upon the people of those 13 colonies separately. The people continued to govern themselves under their old charters. In 1780, Massachusetts came up with a procedure that agreed with both Locke and Blackstone: the people assembled in town meetings, elected delegates to a constitutional convention, and the finished constitution was sent back to the people for ratification. Because no legislature had gone out of existence, a genuine state of nature, as defined by Locke, did not occur.
The Federalist position, argued by Calhoun, was that the Articles of Confederation, proposed in 1777 and finally ratified in 1781, were a compact between sovereign states and formed the Union. The Constitution was intended to be a compact of people of different political societies as people of different states. Both documents formed the Union, but in different modes.
Lincoln disagreed, arguing the Nationalist position: the Declaration of Independence formed the Union and converted the colonies to states; the Union predated the Articles and the Constitution; the Union created the states, not the other way around. The North was willing to fight a bloody civil war to preserve this principle.
A few historians agree with Lincoln’s interpretation. The Declaration was issued by the Second Continental Congress, spoke of Americans as “one people”, and Congress in May 1776 passed a resolution urging the colonies to adopt permanent governments.
However, modern constitutional scholarship holds that Lincoln’s argument is untenable.
With the Constitution, Madison intended to go beyond the Articles and form a compact of the whole people via their separate political societies. This was done by the Convention calling for ratification by state ratifying conventions, not the state legislatures.
The Bill of Rights contained the Ninth and Tenth Amendments, the two “declaratory amendments”. The Ninth was intended to establish a system of divided sovereignty, and by refusing to nationalize unenumerated rights, it left the protection of those rights to the states or the people of the states. The Tenth was to intended to make sure that the federal government would not assume powers not delegated to it. The word “expressly” was not present in the Tenth Amendment, but over the years, the proponents of the States’ Rights cause would argue as though the word were there.
The two theologies can be parsed as follows.
Nationalist
Federalist
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
14 Dec 1787, Federalist #22
18 Dec 1787, Federalist #23
18 Dec 1787, Address of the Pennsylvania Minority
19 Dec 1787, Federalist #24
21 Dec 1787, Federalist #25
22 Dec 1787, Federalist #26
25 Dec 1787, Federalist #27
26 Dec 1787, Federalist #28
27 Dec 1787, Brutus #6
28 Dec 1787, Federalist #30
1 Jan 1788, Federalist #31
3 Jan 1788, Federalist #32
3 Jan 1788, Federalist #33
3 Jan 1788, Cato #7
4 Jan 1788, Federalist #34
5 Jan 1788, Federalist #35
8 Jan 1788, Federalist #36
10 Jan 1788, Federalist #29
11 Jan 1788, Federalist #37
15 Jan 1788, Federalist #38
16 Jan 1788, Federalist #39
18 Jan 1788, Federalist #40
19 Jan 1788, Federalist #41
22 Jan 1788, Federalist #42
23 Jan 1788, Federalist #43
24 Jan 1788, Brutus #10
25 Jan 1788, Federalist #44
26 Jan 1788, Federalist #45
29 Jan 1788, Federalist #46
31 Jan 1788, Brutus #11
1 Feb 1788, Federalist #47
1 Feb 1788, Federalist #48
5 Feb 1788, Federalist #49
5 Feb 1788, Federalist #50
Thanks to both of you for all your hard work. Outstanding reference material.
Our goal is eventually to turn it into a textbook, maybe even the standard reference on the topic. But FReepers get it first.
Brutus at his absolute best. He correctly diagnosed Article 3 as a fatal flaw to any thought of this system providing “few and defined” powers. IMHO, this essay, and the others by Brutus on the same topic, are devestating. They demolish the pretentions of the “federalists”. It’s a sad thing to accept, but it’s plain and true.
This is a crucial point, from the Massachusetts amendment proposals. The framers--big government supporters all---intentionally chose NOT to "expressly delegate" powers in their new system. The Articles contained expressly delegated powers only, but the new system contained implied powers, a fact that came to light during the first Congress, in debates over the first national bank. It's another example of how Madison's "few and defined" powers claim was, in a word, rubbish.
This Mass. proposal also demonstrates, indirectly, why the 10th amendment is actually a completely worthless dead letter. Had the 10th amendment contained the words "expressly delegated", it would have meant something. As it is, it means absolutely nothing. It's a statement of sentiment with no force whatsoever.
What can one say about Brutus other than he was right on the money in all that he said?
By fully exercising their rights and no one else can do that for them!
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.