A Community Built on Words: The Constitution in History and Politics / Edition 2

by H. Jefferson Powell

Overview

H. Jefferson Powell offers a powerful new approach to one of the central issues in American constitutional thinking today: the problem of constitutional law's historicity, or the many ways in which constitutional arguments and outcomes are shaped both by historical circumstances and by the political goals and commitments of various actors, including judges. The presence of such influences is often considered highly problematic: if constitutional law is political and historical through and through, then what differentiates it from politics per se, and what gives it integrity and coherence? Powell argues that constitutional theory has as its (sometimes hidden) agenda the ambition of showing how constitutional law can escape from history and politics, while much constitutional history seeks to identify an historically true meaning of the constitutional text that, once uncovered, can serve as a corrective to subsequent deviations from that truth.

Combining history and theory, Powell analyzes a series of constitutional controversies from 1790 to 1944 to demonstrate that constitutional law from its very beginning has involved politically charged and ideologically divisive arguments. Nowhere in our past can one find the golden age of apolitical constitutional thinking that a great deal of contemporary scholarship seeks or presupposes. Viewed over time, American constitutional law is a history of political dispute couched in constitutional terms.

Powell then takes his conclusions one step further, claiming that it is precisely this historical tradition of argument that has given American constitutional law a remarkable coherence and integrity over time. No matter what the particular political disputes of the day might be, constitutional argument has provided a shared language through which our political community has been able to fight out its battles without ultimately fracturing.

A Community Built on Words will be must reading for any student of constitutional history, theory, or law.

Product Details

ISBN-13:	9780226677231
Publisher:	University of Chicago Press
Publication date:	09/15/2002
Edition description:	1
Pages:	261
Product dimensions:	6.00(w) x 9.00(h) x 0.80(d)

About the Author

H. Jefferson Powell is a professor of law at Duke University. He is the author of several books, including The President’s Authority over Foreign Affairs. He served as deputy assistant attorney general in the Clinton administration.

Read an Excerpt

A Community Built on Words: the Constitution in History and Politics

---

By Jefferson Powell

University of Chicago Press

Copyright © 2002 Jefferson Powell
All right reserved.
ISBN: 0226677230

---

PART ONE

Among the American founders, Gouverneur Morris had a special vantage point from which to think about the Constitution of the United States. A skilled lawyer and eloquent public speaker, Morris was one of the most active participants in the Philadelphia convention that framed the Constitution. Years later, Morris explained in correspondence that his immersion in the business of making the Constitution had precluded him from keeping a journal of the convention's debates. "My faculties were on the stretch to further our business, remove impediments, obviate objections, and conciliate jarring opinions." Morris's close involvement in the convention's work culminated in his designation as the final draftsman and stylist of the document, and he was convinced with evident pride that the convention's handiwork was as well crafted as humanly possible. "That instrument was written by the fingers, which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit." Even so, Morris entertained no illusions that textual clarity could avoid the necessity of interpretive debate. Soon after the Philadelphia convention reported the draft Constitution to the ConfederationCongress, Morris is reported to have been congratulated by a friend: "You have given us a good Constitution," which he accepted with a warning: "That depends on how it is construed."

Morris's intimation that drafting and even adopting the Constitution would begin rather than end the process of securing constitutional meaning was richly confirmed in the years immediately following ratification. The creation of written constitutions sharply distinguished the constitutionalism of the young Republic from that of the United Kingdom, but not in precisely the ways that a contemporary political theorist might advance on the basis of a priori reasoning. The authority of the constitutional text as a legal instrument, to be construed through the traditional tools of documentary interpretation, became at once an axiom of American political culture, but it by no means followed that the first interpreters of the new constitutional instruments were narrow literalists with regard to the text. Over the course of the federal Con-stitution's first decade, Thomas Jefferson acquired a reputation as a strong advocate of close attention to constitutional language, but Jefferson's first sustained exercises in constitutional interpretation exemplified the founding generation's recognition that a constitutionalism based on a text is not circumscribed within the four corners of that text. In 1790, and again in 1791, Jefferson presented President George Washington with advice on constitutional issues that unhesitatingly invoked arguments resting on premises beyond the text, not out of disloyalty to the Constitution but from a conviction that such arguments are a necessary part of a viable constitutional culture. Like his great rival in Washington's cabinet, Alexander Hamilton, Jefferson implicitly portrayed constitutional interpretation as an activity necessarily involving ideological and political commitments. In contrast to both Jefferson and Hamilton, Attorney General Edmund Randolph cast himself, and by implication the faithful constitutionalist, as an evenhanded and neutral interpreter of the fundamental law. (See sections I and II.)

In the long term, one of the most important institutional consequences of the American decision to commit the state and federal constitutions to paper was the occasion it created for courts to set their own judgments on matters of fundamental law against those of legislatures. Despite the fact that contemporaneous English legal orthodoxy denied the judiciary the authority to disregard the dictates of the sovereign Parliament, during the 1790s the practice of judicial review assumed its place as a regular feature of an American constitutional system. As the 1794 Virginia decision in Kamper v. Hawkins revealed, lawyers and judges disagreed over the scope and rationale of the practice more than they did over its existence in some form, which almost everyone granted. Their disagreements in this period, furthermore, like those of nonjudicial constitutionalists often revolved around the relationship between contentions based on text and constitutional arguments drawn in part or whole from other sources. In Kamper, Judges Spencer Roane and St. George Tucker linked a high view of the role of judicial review with vigorous resort to extra-textual fundamental principles. In their opinions of the previous year in Chisholm v. Georgia, federal Chief Justice John Jay and Justice James Wilson had argued against the legitimacy of importing the notion of state sovereignty into constitutional debate, but any apparent disagreement with Roane and Tucker was superficial: Jay and Wilson's ultimate purpose was not to commend literalism but to link the interpretation of the federal Constitution to a different and, in their judgment, more appropriate set of principles. (See sections III and IV.)

A decade after the Philadelphia convention adjourned, constitutional discussion in the United States on both state and federal levels was richly infused with moral, political, and prudential considerations, considerations that were treated as equally integral to the task of interpreting a constitution as reasoning from its text. This did not mean, however, that the constitutionalists of the 1790s had simply collapsed the distinction between constitutional and non-constitutional debates over principle. Respect for the axiomatic authority of the text structured and sometimes controlled constitutional reasoning. Justice William Paterson's opinion in the U.S. Supreme Court's decision in Calder v. Bull is a striking example of the role of technical legal construction in judicial interpretation of the Constitution. (See section V.)

I. 1790: Secretary Jefferson and the Foreign Affairs Power

The Constitution of the United States, like all American constitutions since the Revolution, is a document. Indeed, founding-era Americans congratulated themselves on having devised what Chief Justice John Marshall called "the greatest improvement on political institutions--a written constitution." It is the written Constitution, and nothing else, which is "the fundamental and paramount law of the nation." Constitutionalism in the American mode is defined by the text and by the text's identity as the Constitution. Albert Gallatin no doubt thought he was stating a truism when he told the House of Representatives in 1799 that Americans' "liberties are only protected by a parchment-- by words." The central aspiration of two centuries of American constitutionalism is this attempt to bind power by words, to govern government with a text, to prevent tyranny and ensure liberty through a written document.

Our identification of a specific and discrete text as the Constitution is so familiar that we can easily think it simple as well as obvious. And that is wrong. To be sure, the Constitution (and its amendments), and nothing else, is the specific and discrete text. Constitutional law therefore is--or ought to be-- law derived from the document and nowhere else. Many years ago Justice Owen Roberts described judicial review as involving "only one duty: to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former." Roberts is usually quoted in order that the writer may scoff at his simple-mindedness, but the mockery is misplaced: if the "fundamental and paramount law of the nation" is a written constitution, then constitutional law (whether enforced by courts or applied by other actors) must be in some sense an evaluation of what government is doing by what the constitutional text states. But there is nothing simple about this task of comparison and evaluation.

The complexities of making a specific document the nation's Constitution did not steal upon Americans unaware, nor are they the discovery of a (post)modernity more sophisticated than the Constitution's creators. The difficulty and ambiguity of equating constitutionalism with a text were well known in the founding era. In the speech quoted above, Gallatin immediately went on to warn the House that we need suffer no monarchist plot or military coup to lose our constitutional liberties: "they may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away." A written constitution, Gallatin and his contemporaries recognized, unavoidably brings with it the threat of its own destruction or subversion. The words on the parchment protect liberty and govern government only insofar as there are people who take the words seriously and act, intelligently and in good faith, to make their commands a reality. The central internal threat to the project of a written constitution stems from the fact that, as the founders universally expected, the Constitution must govern all sorts of issues that the letter of the text does not address in any direct sense. In order to apply the Constitution to matters not literally within its wording, we must construe it, and derive meanings from it that cannot be found simply by repeating the words on the parchment. But as Gallatin warned, construction of the Consti-tution's meaning, however necessary, poses the risk that its meaning will be "construed away," inadvertently or otherwise, and that the interpreter will substitute his or her own thoughts for the fundamental and paramount law. Constitutional law, in the sense we now use the term, originates in the felt need to demonstrate a relationship of fidelity between assertions of constitutional meaning and the meaning of the authoritative text.

Written constitutionalism, as the founders understood it, thus requires the creation of other texts, whether written or not, that connect the written Constitution with the propositions and commands attributed to it. The recurrent impulse throughout our nation's history to disavow the creation of these other texts in the name of allegiance to the Constitution alone is not in fact a return to the founders but a repudiation of their own practice. To see this point, let us turn to one of the earliest written interpretations of the Constitution as a governing document, a 1790 opinion by Secretary of State Thomas Jefferson. The opinion is of special interest not only because of its date but also because of its author. Jefferson was a highly skilled lawyer as well as a distinguished statesman; in a 1790 letter, his cousin John Marshall described him as one of "the ablest men & soundest lawyers in America." Marshall later changed his mind about Jefferson's soundness, but not about his ability, and well understood what modern lawyers often forget, that Jefferson's views on constitutional matters helped to define the boundaries within which subsequent constitutional debate would take place. Among those views was an emphasis on the threat to the Constitution posed by the interpretive process: "Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction."

Jefferson wrote his opinion for President George Washington on a question of great importance to the president. In his first annual address to Congress, Washington had asked the legislature to appropriate "a competent fund designated for defraying the expenses incident to the conduct of foreign affairs." He went on to indicate, however, that the task of conducting foreign affairs lay in other hands. "The interests of the United States require, that our intercourse with other nations should be facilitated by such provisions as will enable me to fulfil my duty in that respect, in the manner, which circumstances may render most conducive to the public good." Washington's reference to foreign relations being his duty and his suggestion that it included the authority to determine the manner of conducting those relations touched off a buzz of argument in the House of Representatives. A variety of issues and positions surfaced, including skepticism on the part of some about the need for permanent diplomatic relations of any sort. But as the debate developed, the central question to emerge was who has the authority to decide what level or grade of diplomatic representation the United States should employ in a given foreign state. The question was no mere nicety: in addition to its bearing on the cost of the diplomatic establishment (the higher the level minister the greater the expense), the power to choose among the grades of diplomat recognized at international law could in itself affect the options and objectives of American dealings with the foreign power.

Led by Washington's fellow Virginian Richard Bland Lee, one group of congressmen sought to include in the appropriations legislation a requirement that the president's determination of the level of diplomat to employ receive the approval of the Senate, which by the plain text of Article II would already be involved in approving the appointment of American diplomats. Lee and his allies expressly rejected Washington's clear suggestion that foreign affairs were uniquely the president's responsibility. United States representatives, Lee claimed, "were the joint servants of the president and senate."

[A]s no appointments can be made but by and with the advice of the Sen-ate--that no treaties can be formed without their concurrence, it appears incongruous that they should have no voice in determining the salaries of persons which they may appoint to make treaties, or to carry on the intercourse between the United States and foreign nations. This will give an undue influence to the President in forming treaties--and, superceding the interference of the Senate in a business to which they are equally competent, with the President, is contrary to the Constitution.

Lee's motion to require Senate approval was defeated, but its opponents were divided in their reasons and the question of the Senate's direct constitutional authority in the matter clearly was open when the House decided to delay adoption of a bill pending the arrival of Secretary Jefferson.

Jefferson had returned only the previous December from his post as U.S. minister to France, and some members of the House believed that his recent European experience would enable Congress to estimate with greater precision the sum needed to finance American diplomacy. Jefferson was not in New York (the temporary national capital); indeed, he did not even accept appointment as secretary of state until a couple of weeks after the House tabled the bill. When he did arrive, in late March, one of the president's first duties for him was to prod Congress into adopting a satisfactory foreign relations bill. Jefferson did so, informing a House committee that the president would be as economical as feasible while suggesting to a group of senators that the important issue was the adequacy of the funding (the amount of which all agreed was within congressional control) rather than the issue of constitutional authority that had split the House. At the same time Jefferson was attempting to soothe ruffled feathers, Washington was seeking reassurance that the Constitution safeguarded his power to "to fulfil [his] duty" as to foreign affairs. Washington had conversations with Chief Justice John Jay and Representative James Madison, who advised the president orally that the Senate had no constitutional authority to interfere with his decision about where and at what grade the United States should establish diplomatic missions, "their powers extending no farther than to an approbation or disapprobation of the person nominated." From Jefferson Washington requested a formal, written opinion "whether the Senate has a right to negative the grade he may think expedient to use in a foreign mission, as well as the person to be appointed." Jefferson's conclusion was the same as that of Jay and Madison. Our interest, however, is in how Jefferson arrived there.

Before turning to what Jefferson wrote, consider first what he had to work with. The Constitution's text is surprisingly vague about the allocation of authority over foreign affairs. There is no provision explicitly assigning the authority, in contrast to the related area of military matters, which receive considerable (if ambiguous) attention in Articles I and II. Indeed, only one provision has unequivocal bearing on the question Jefferson was asked, the appointments clause of Article II, section 2:

The President . . . shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The appointments clause makes it clear that the president's power to make the final appointment of "Ambassadors, other public Ministers [meaning diplomats below the grade of ambassador] and Consuls" depends on some form of Senate concurrence, presumably by simple majority rather than the two-thirds required for ratifying treaties. Taken literally and by themselves, however, the clause's words do not answer the question Washington posed but are capable of bearing several constructions: that the president selects the person, destination, and grade and the Senate's only role is to approve or disapprove the individual nominated (the view of Jay and Madison); that the Senate's authority extends to approving or perhaps even designating the diplomatic grade to which the individual is appointed (the view of Lee and his allies); that Congress may vest the authority through legislation in either the president or the president and Senate (a position suggested by John Laurance of New York in the House); or even that Congress as a whole must "establish by Law" a specific diplomatic office before the president and Senate can approve an individual to hold it (a view floated during the House debates by, among others, James Jackson of Georgia). The text by itself does not resolve which of these or perhaps other possible interpretations is correct.



Continues...

---

Excerpted from A Community Built on Words: the Constitution in History and Politics by Jefferson Powell Copyright © 2002 by Jefferson Powell. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

---

Table of Contents

Preface
Introduction
Part One
I. 1790: Secretary Jefferson and the Foreign Affairs Power
II. 1791: The National Bank and the Point of Interpretation
III. 1793: The Supreme Court and the Metaphysics of Sovereignty
IV. 1794: Kamper v. Hawkins and the Role of the Judiciary
V. 1798 (1): Justice Paterson and the Missing Fundamental Principle
Part Two
VI. 1798 (2): How to Think about the Sedition Act
VII. 1800: Marshall and the Role of the Political Branches
VIII. 1802: How Not to Think about the Judiciary Repeal Act
IX. 1804: Turpin v. Locket and the Place of Religion
X. 1806: Hudgins v. Wright and the Place of Slavery
XI. 1808-1809: A Forgotten Crossroads in Constitutional History
Part Three
XII. 1817: President Madison Vetoes His Own Bill
XIII. 1818: The Congress Thinks about Internal Improvements
XIV. 1821: The Attorney General and the Rule of Law
XV. 1829: Writing State v. Mann
Part Four
XVI. 1859: The Supreme Court and the Metaphysics of Supremacy
XVII. 1862: Four Attorneys General and the Meaning of Citizenship
XVIII. 1873: Slaughterhouse Revisited
XIX. 1904: Clay May, the Railroad, and Justice Holmes
XX. 1927: Justice Brandeis and the Final End of the State
XXI. 1944: Constitutional Injustice
Part Five
XXII. 2001: Common Ground after Two Centuries
Conclusion
Notes
Index