by Hugh Brogan
So the first and second characteristics of the Constitution are its essential democracy and the horizontal separation of powers between the federal and state governments. The third, and perhaps the most conspicuous characteristic, is the vertical separation of powers: Executive, Legislative, Judiciary – or, Presidency, Congress, Courts. This principle was, as we have seen, one of the first matters agreed by the convention. It had become a cliche in the writings of Montesquieu and a dozen other thinkers deriving from Locke. It corresponded very closely to the formal structure of colonial politics, though colonial practice, as in the case of Massachusetts, was rather different. The alternative doctrine, of the rights of a sovereign legislature, had been given a fair trial in the Continental Congress, to general dissatisfaction, and to the particular dissatisfaction of those, like Madison and Hamilton, who had tried to make Congress work. As we have seen, under the Articles there had already begun some evolution towards the separation of executive from legislature, though the new ministers were firmly subordinated to the Congress. All in all, this fundamental decision was quickly taken because it was so obvious. Yet with hindsight it is easy to see that of all the arrangements of the Founding Fathers it was the most revolutionary.
British readers may best understand what is involved by giving a moment’s thought to the constitution of their own country. It is built round a dogma of the absolute sovereignty of the King in Parliament, a dogma that emerged as a result of the civil wars of the seventeenth century and gave the sanction of immemorial tradition to the compromises that ended those wars. The myth of the King in Parliament has lasted for centuries, and is not quite done for yet. It cannot be defended on any grounds except that it happens to be the way that the British do things, yet all political transformations, all radical programmes, have had to adjust to it (at least until Britain entered the European Union). The American Constitution has had an even more overwhelming effect on American history. The Presidency, for example, the embodiment of the executive in one man, was invented partly for the reasons given, and partly because, in George Washington, the ideal President happened to exist. Had Washington died suddenly in the middle of the convention Wilson might have got his way and the United States have acquired a three- or four-man executive, like the five-member Directory in Revolutionary France. The convention had enormous difficulty in settling how to elect the President, and fixed on a method of indirect election, through an electoral college chosen by the voters, only after every other expedient had been considered at length. In the event the electoral college became a mere rubber-stamp for the people’s choice; and so this purely practical expedient could become the towering symbol without which no American can imagine his country. Thanks to the first, very distinguished men who occupied the Presidency (Washington, John Adams, Jefferson, Madison); thanks to President Andrew Jackson’s insistence on the overriding authority of his mandate from the voters; thanks to the Civil War and the martyrdom of Abraham Lincoln; thanks to the rabble-rousing of Theodore Roosevelt, the crusading zeal of Woodrow Wilson and, above all, the dynamic leadership of Franklin Roosevelt, the President is now a popularly elected monarch; even the scandals of a Grant, a Nixon or a Clinton cannot strip the office of the mystique that has slowly accrued to it since 1789. There are only two really sacred things in America: one is the flag, the other is the White House. Nothing about this state of affairs would have gratified the Founding Fathers, who had no intention of setting up a monarch of any kind. Yet the institution they actually created has proved too strong for their philosophy (which held that the executive ought to come a decided second to the legislature, and expressed itself by putting the President in the second Article of the Constitution, the Congress in the first); and its glamorous example has of late filled the world with imitations.
If the Founding Fathers did not anticipate the spectacular development of the Presidency and pooh-poohed the warnings of those who feared the worst, they did provide institutions to keep it in check. ‘Checks and balances’ was a notion particularly associated with John Adams and his book; but it very well expressed the universal assumption. Power was too tempting to fallen man; the exercise of power must never be free from question, debate, exposure, possible defeat. Indeed, it was too likely that any exercise of power would lead to evil: quite as much as Lord Acton did the Fathers believe that ‘power tends to corrupt’. So they piled check on balance, balance on check, until they arrived at what Richard Hofstadter so felicitously termed ‘a harmonious system of mutual frustration’.14 When Jefferson, back from France to be the first Secretary of State (foreign minister), asked Washington why the convention had thought a Senate necessary, the President in turn asked him why he tipped his coffee from his cup into his saucer. ‘To cool it.’ ‘Even so we pour legislation into the senatorial saucer to cool it.’ In practice the Senate has cooled the President: since every proposal he wants to get through the House of Representatives has also to pass the Senate. Two chambers make Presidential usurpation more than twice as difficult. The Constitutional convention expressly conferred the power to declare war on the Congress, and although the evolution of war in the industrial age has made this power increasingly nominal, the power of the purse, by which Congress alone can vote the money to pay for wars and armies, has meant that the President has always had to try to take Congress into partnership on foreign and military policy, or face calamitous consequences. And no treaty can come into effect until it has been ratified by two-thirds of the Senators present. Domestic legislation is peculiarly the province of Congress; and the power of Congressional investigation and review means that the executive always has to bear the views of Capitol Hill in mind. Since it is through their Representatives and Senators in Congress assembled that the views, ambitions, prejudices, passions and ideals of the ordinary American people most regularly make themselves felt in modern Washington, this is all to the good, as otherwise the President would tend to be over-impressed by the fact that he was elected to office by a large number of his fellow-citizens (not always, or even, of late years, often, a majority of those citizens who actually vote, and very seldom a majority of those citizens with the right to vote, since American voter turnout nowadays is low compared with that in other democracies).
The most impressive and original of the checks and balances is to be found elsewhere, in the courts, in the institutional doctrine known as ‘judicial supremacy’, or, in other words, the maxim that the Constitution is what the Supreme Court says it is. This was something entirely new.
Yet the legal tradition which the Constitution enshrines was the most English thing about the whole document; and intimations of judicial review – that is to say, of the role of the courts in deciding whether a given law or action is legal or constitutional – abounded in the earlier eighteenth century; the most famous English case being Camden’s finding in favour of Wilkes in the general warrants judgement, and the most famous American case, perhaps, being Thomas Hutchinson’s finding in the opposite sense in the matter of writs of assistance in 1761. The English-speaking world in the eighteenth century rang with appeals to the rights of men and Englishmen, and to the Anglo-Saxon Constitution; who but judges learned in the law could deal with such appeals in the last resort? The pre-eminence of statute law, though a thing accomplished, was not yet a thing generally acknowledged; indeed, the chief eighteenth-century legal monument is Blackstone’s Commentaries, a panegyric on the common law that was intensely popular in America; and the common law is essentially judge-determined law.
This was the background; but as usual the members of the convention had more practical concerns at the forefront of their minds. They were anxious to entrench the judiciary in the political process, seeing the judges, rightly, as pillars of the settled order of things; but in the end caution, common sense and their own disagreements led them to abandon the idea of setting up a Constitutional Council of Revision, in which the President and the Supreme Court together would have passed on the constitutionality of the laws propo
sed by Congress. Indeed, so cautious were they that although they clearly understood the idea of judicial review, they refrained from mentioning it in the Constitution; its inevitability and desirability were first brought out by Hamilton in The Federalist. The utmost the Founding Fathers did was to declare (Art. VI, sec. 2) that the Constitution and treaties made under its authority were ‘the supreme law of the land’. The wise might well infer that a law must be interpreted by judges, to be effected, and imposed by their decisions; the matter remained to be spelled out, the theory to be tested.
This was first done twelve years after the Constitution came into operation, in the case of Marbury v. Madison.
One of John Adams’s last actions as President was to appoint John Marshall Chief Justice of the United States; he also appointed members of his party to a dozen other judgeships that had just been created. The incoming Secretary of State, none other than James Madison, found these lesser judges’ appointment warrants waiting on his desk; he refused to deliver them (since the judges were all his political opponents) and so the judges could not take up their appointments. One of them, William Marbury, sued for his job; and the case eventually came up before the Supreme Court. The Court found in favour of Madison; and Chief Justice Marshall wrote the opinion explaining why. The law under which Marbury sued, he declared, was unconstitutional.
The politics of the problem need not concern us; what remains important about Marshall’s opinion in Marbury v. Madison is that he took the opportunity of laying down the principles of judicial review and judicial supremacy.
It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case… the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
He thus made the Supreme Court the umpire of the Constitution. President Jefferson and Secretary Madison, who were rather more radical in 1801 than they had been in 1787, greatly disliked this doctrine; but they could not very well fight it, since it was embodied in a decision in their own favour. So the Supreme Court got away with its claim, a claim that was reinforced by the line of further important decisions that Marshall wrote in the rest of his long tenure of the Chief Justiceship (1801–33).
The consequences of all this can hardly be overstated. Again and again the Supreme Court has used its power to change the course of American history. The results have not always been acceptable. For instance, next to Marbury, the most famous Supreme Court decision was that in the case of Dred Scott v. Sanford (1857) when the justices rashly declared, not only that the slave Dred Scott had not been freed by being taken through a free state, but that the Missouri Compromise of 1820 was unconstitutional.15 This enraged the North, and was one of the chief incidents which brought on the Civil War. Later in the nineteenth century the Court, by its decisions, hampered the struggle of labour against capital, legitimized racial segregation and disallowed a federal income tax. It made a cult of property, and showed a perverse ingenuity in twisting the meaning of the law to help the rich. It learned the error of its ways during the Presidency of Franklin Roosevelt, but during the years immediately following the Second World War it disgraced itself again by its acquiescence in the unjust, cruel and absurd anti-communist witch-hunt. However, under the leadership of Earl Warren (Chief Justice 1953–69) it reversed itself and became the most effective opponent of the witch-hunt.
On the whole the record since 1801 has been enormously impressive. ‘Checks and balances’ have been maintained and extended. Cynics have always been found to remark that ‘the Supreme Court follows the election returns’ (not necessarily a bad thing in a democracy) but they have usually exaggerated. The Supreme Court’s chief task, perhaps, like that of any such body, has been, acting as the place of last resort, to uphold and clarify the law and maintain the high standards of the legal profession; but in its heroic periods it has also acted as the chief guarantee that the ideals of the American Revolution should never be abandoned.
Those ideals, as George Mason tried to point out to the impatient Fathers, were not completely expressed in the original document. However, the anti-Federalists, as we have seen, made their case for a Bill of Rights; and one was duly added to the Constitution, in the form of ten amendments, during the first years of the new government. The amendments looked after the rights and interests of the individual, as the earlier parts of the Constitution protected those of the national government and the states. The individual had not been wholly neglected in the original Constitution; nor were the rights of the states neglected in the amendments (they were strongly reasserted in the ninth and tenth of the list); but on the whole the emphasis fell on such things as freedom of speech, freedom of worship, freedom from cruel and unusual punishment, freedom from unreasonable searches and seizures,16 freedom not to incriminate oneself. Like the main part of the Constitution these articles expressed a fundamental part of what the American Revolutionaries had fought for. They were not only democrats, in the sense that they believed in the rights of the people, as opposed to kings and nobles; they were liberals, in the sense that they believed in the inalienable rights proclaimed in the Declaration of Independence – and now these rights were spelled out. The right of revolution was tacitly dropped: the process of Constitutional amendment was supposed to remove the need for any such doctrine.17 No President since Jefferson has believed that a revolution every twenty years is a good thing; and it is not clear that even Jefferson was dissatisfied with revolution through the voting-booth. The right to individual property was so intrinsically part of eighteenth-century thought that it was not made explicit in the Constitution, or even in the Bill of Rights; but it is hard to see how it can be much endangered while the ten great amendments are enforced. For they are predicated on the assumption that the pursuit of happiness is effective only if the individual has the means to defend his interests through the press, the churches and the courts, as well as through the political process; and it is impossible to see how, in a society so organized, a citizen can lose the right to his economic independence (the power to maintain it is another matter) – which is what the eighteenth century really understood by property. In short, the Bill of Rights puts a sharp limit to the legitimate claims on the citizen of government, majority, minority and collectivity of any sort; given the immense conformist pressures that have from time to time built up in America, this has been just as well. True, the courts have not always interpreted and enforced the Bill of Rights as, today, we may think they should have done (a glaring case was the persecution of Japanese-American citizens during the Second World War); but there would have been far fewer victories for the ordinary man or woman without the Bill; and, at least since 1953, it has been the foundation for most of the solid advances towards greater liberty which American society has made. Given the grim record of so many other twentieth-century governments, of a world in which, for example, cruel punishments are so very usual, this is no small praise. The principle of checks and balances thus continues to flower; it continues to give us good reason to honour the men of the American Revolution; in a way, it defines what is politically best and most promising in the United States; what it means to be American.
The Constitution as it emerged between 1787 and 1791 crowned the American Revolution and provided a safe compass for the future. In theory, it settled all those problems – whether of taxation; of foreign relations; of collective duties and individual rights; of political and legal organization – which had proved so intractable that they had brought about the downfall of the old British Empire. It strongly resembled the old order to which Americans, as inheritors of English traditions and settlers in a wilderness, were accustomed; but it had eliminated from that order all those fea
tures which seemed obsolete or unjust in the New World. The political thought on which it was based was realistic, accepting that men were not angels, but that their aspirations were mostly legitimate, and it was the business of the political framework to give them scope. Liberty and law were its two inescapable guiding lights; as understood by the Founding Fathers they have served America pretty well. One thing the Constitution could not provide of itself: permanence. The world – not just America – was on the brink of an age of tumultuous change; of accelerated evolution. Madison was properly confident that the instrument which he and his colleagues had devised could ride any storm; but the will to work it had to be there, and the intelligence to supplement and amend it when necessary. During the next eighty years both will and intelligence were at times to falter; the vessel nearly foundered. Such is the process examined in the next book of this history. Yet even with that thought in mind it seems best to end this section by pointing once more to the astonishing fact that so wise and effective a settlement emerged from thirty years of revolution; and to the equal marvel of its adaptability. The new order has not gone the way of the old; the sun which Franklin hailed has not set. No other revolution, worthy of the name, has ended so happily.