Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (26 page)

As candidates for public office at all levels found it necessary to take positions on the issues that divided Federalists and Republicans, popular awareness of national political issues increased. More and more frequently, the outcome of elections, particularly to Congress, turned not on traditional notions of who might be the wisest or most virtuous candidate but, rather, on the party identification of the candidates. With the retirement of President Washington in 1796 (his decision not to seek a third term would constitute yet another unofficial constitutional precedent, one that held sway until 1940, when President Franklin D. Roosevelt successfully sought a third term), partisan attention began to focus on the election of the president.

Beginning in 1796, but reaching a higher level of sophistication in 1800, leaders of the two parties aggressively recruited voters to cast their ballots for presidential electors pledged in advance to the respective standard-bearers of the two parties. This would have a profound effect on the way in which one provision of Article II, Section 1, pertaining to the way the electoral college was to select a president, worked. The Constitution stipulates that the individual states will determine the manner in which electors are selected. In the beginning, some were elected from individual electoral districts, some were selected by a statewide ballot, and still others were selected by the state legislatures. But whatever the mode of selection, the framers of the Constitution assumed that those voting for the presidential and vice-presidential electors would do so on the basis of the prospective elector’s standing in his state or local community, and that those elected to the position would then use their own independent judgment in casting their ballots in the electoral college. With the advent of political parties, candidates for elector now ran on the basis of their support for the presidential and vice-presidential nominees of the respective parties. In that fashion, the selection of the president and vice president, initially conceived as a process in which the people would be only indirectly involved, began to operate in a far more democratic fashion, with the two parties actively recruiting the voters to support their slates of electors.

In 1798, as the contest between the Republican and Federalist parties for control of the new government intensified during the administration of John Adams, the Federalist majority in Congress passed—and President Adams signed into law—the Alien and Sedition Acts, a set of acts aimed not only at seeking out and deporting dangerous aliens (who in the eyes of the Federalists were usually French), but also at punishing with fines and even imprisonment anyone who published or printed “false, scandalous, and malicious writing” against the government of the United States. In passing the law, the Federalists were defining their Republican opponents not as a “loyal opposition” but, rather, as enemies to the government. In an age where changes in government had traditionally come about only through illegal coups d’état or, as in the American case, by revolution, the Federalists, as the party in power, were simply not able to distinguish between honest differences of opinion over policy and treasonous behavior. Accordingly, they used the Alien and Sedition Acts to initiate criminal prosecutions against their political rivals.

The Alien and Sedition Acts, far from silencing the Republican opposition, only served to inflame it, with Republican pamphleteers and newspaper contributors becoming ever more vitriolic in their attacks on the Federalists, and the Federalists, in turn, becoming even more determined in their prosecution of their political opponents. This partisan warfare triggered the first constitutional crisis in the nation’s young history. The Virginia legislature, acting under the leadership of James Madison, and the Kentucky legislature, spurred on by Thomas Jefferson, passed sets of resolutions declaring the Alien and Sedition Acts unconstitutional, as violations not only of the First Amendment guarantees of free speech and freedom of the press but also of the guarantees of the Tenth Amendment, which, Jefferson argued in his draft of the Kentucky Resolutions, reserved to the states power “over the freedom of religion, freedom of speech, [and] freedom of the press.” What was truly novel about the Virginia and Kentucky Resolutions was their proposed remedy for this clash of constitutional interpretation between the states of Kentucky and Virginia, on the one hand, and the federal Congress on the other. The Virginia and Kentucky Resolutions asserted that since the federal Constitution was a compact among the individual states, it was the states themselves that had ultimate authority to determine the constitutionality of a federal law and, in the case of a federal law that threatened to interfere with the liberties of the people of the states, to “interpose” themselves as a means of “arresting the progress of evil.” Jefferson’s Kentucky Resolutions went even further, stating that since that state had found the Alien and Sedition Acts to be in violation of the U.S. Constitution, it had the right to declare the laws “altogether void and of no force.” In a final, provocative statement, the Kentucky Resolutions averred that if the federal government continued to exercise its power oppressively, those actions might “drive these States into revolution and blood.”

The Virginia and Kentucky Resolutions had ominous implications for the new union. By the reasoning of the resolutions, the individual states, not the Supreme Court of the United States, were the ultimate arbiters of the constitutionality of a federal law. Some thirty years later, John C. Calhoun of South Carolina would follow the logic of the Kentucky Resolutions in enunciating the doctrine of “nullification,” the right of a state to render “null and void” any statute that was in that state’s judgment unconstitutional. And by Calhoun’s logic—and later that of Confederate president Jefferson Davis—the ultimate recourse of the states, as original parties to the federal compact, was that of secession from the union itself. At the time that Jefferson and Madison wrote the Virginia and Kentucky Resolutions, the concept of “judicial review,” giving to the Supreme Court ultimate authority on issues relating to the interpretation of the Constitution, had not been fully established or accepted, although certainly many of the framers of the Constitution assumed that the Supreme Court might exercise such a function. That constitutional development lay in the future and would occur only after the constitutional crisis over the Alien and Sedition Acts was settled, not by courts or by force of arms but, rather, at the ballot box.

By the time of the presidential election of 1800, the Federalist and Republican parties had put into place more fully developed structures by which to recruit voters to their respective sides, and those advances in party organization, together with the overheated, partisan atmosphere created by disagreements over foreign policy and the Alien and Sedition Acts, made it one of the most vituperative and bitterly contested presidential elections in American history. The Federalists selected a slate consisting of the sitting president, John Adams, as their presidential candidate and Charles Cotesworth Pinckney of South Carolina as the vice-presidential candidate. The Republican ticket featured Thomas Jefferson as the presidential candidate and Aaron Burr of New York as the vice-presidential candidate. When the presidential electors had cast their ballots, the Republican slate received a majority of electoral votes, but party discipline among the Republican electors was so great that each of the electors cast each of their two ballots for Jefferson
and
Burr. Article II, Section 1, of the Constitution stipulates that each elector casts two ballots, and that the individual receiving the largest number of votes will be president and the individual receiving the second-highest number of votes will be vice president, but it does not differentiate between a presidential vote and a vice-presidential vote. Since Jefferson and Burr had received an equal number of electoral votes, there was no constitutional means by which to determine who was meant to be president and who vice president. So, again by the terms of Article II, Section 1, the election was thrown into the House of Representatives, where the state delegations in the House, with each state being given equal weight in the voting, would decide the outcome of the election. After a good deal of tumult and intrigue, in which the Federalists in the House seemed to be maneuvering to elect Burr rather than Jefferson (a scheme to which Burr did not seem to object!), the House, on the thirty-sixth ballot, finally elected Thomas Jefferson as the third president of the United States. But the whole affair demonstrated that the electoral college provision of the Constitution, as it was then constructed, was not well suited to an election process in which political parties were working diligently to organize the electorate behind both their presidential and vice-presidential candidates. The passage of the Twelfth Amendment in 1804, which stipulates that presidential and vice-presidential electoral ballots be separate and distinct, signaled a recognition of how the advent of political parties had changed the way the electoral college functioned, transforming it from an elitist institution into a democratic one. Of all of the events of the first twelve years of the new government’s operation, the emergence of political parties—a development unanticipated and unwanted by the Founding Fathers and operating wholly outside the formal political and constitutional structures of the new federal union—would be paramount in transforming the American republic into a democratic republic.

 

 

THE STORY OF THE EVOLUTION OF THE United States Constitution continues even today. During the two and a quarter centuries since the Constitution took effect, the operations of the federal, state, and local governments have undergone remarkable changes. With those changes, successive generations of Americans have found that their relationship with those governments has also changed. The framers of the Constitution provided one explicit mechanism by which to alter the way the federal government does its business: as spelled out in Article V, Congress or, upon application of two-thirds of the state legislature, a specially called convention, may propose constitutional amendments. Those proposed amendments must then be approved by three-quarters of the state legislatures or state conventions before being adopted. The framers did not believe that amending the Constitution should be a quick or easy task, nor has it proven to be such. Only twenty-seven amendments have been enacted since the Constitution was first adopted, and ten of those—the Bill of Rights—were added only two years after the new government was launched.

But amendments have not been the only mechanism for constitutional change. All three branches of the federal government—the Congress, the executive, and the federal judiciary—have themselves been agents of change. An important part of the job of America’s political leaders—elected and appointed—has been to respond to the extraordinary pace of social, economic, political, and cultural change that has marked the history of America since its first settlements. In responding to those changes, our political leaders have made decisions that have sometimes altered our understanding of the way the United States Constitution functions in serving “We the People.”

This final chapter is not intended to describe all the events that have shaped the U.S. Constitution. Instead, it offers brief summaries of a select number of Supreme Court decisions that have had a profound influence on our constitutional history. The selection of decisions, from among the several thousand rendered by the Supreme Court since the federal government commenced operation in 1789, is admittedly a subjective one. There are no doubt many decisions that constitutional scholars might prefer to some that I have chosen to summarize here. But my choices are not arbitrary; they have been informed by four important recurring issues and themes in American history:

MARBURY V. MADISON (1803).
ALTHOUGH MANY OF THE framers of the Constitution believed that the newly created Supreme Court might have the power to review the constitutionality of a federal law, the court’s power of “judicial review” is not explicitly spelled out in the Constitution. In March 1801, just before his term of office expired, Federalist president John Adams made a series of “midnight appointments” of federal judges in a last-minute attempt to ensure that the federal judiciary would be staffed with judges loyal to his political principles. Most of those appointed to the judgeships were subsequently installed in their new positions, but several of them, including William Marbury, who had been appointed justice of the peace in the District of Columbia, did not have their commissions delivered to them before Adams left office. When Thomas Jefferson, a member of the opposing Republican Party, assumed the presidency, he refused to issue Marbury his judicial commission. Marbury then petitioned the Supreme Court, whose chief justice was now Jefferson’s bitter political enemy John Marshall, asking the court to issue a writ of mandamus (an edict commanding a government official to perform a particular action) ordering James Madison, the secretary of state, to deliver his commission to him. Justice Marshall conceded to President Jefferson a small victory by refusing to order Madison to deliver Marbury’s commission, but much more was at stake in the ruling than poor Marbury’s position as justice of the peace.