Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (10 page)

Edmund Randolph (1753-1813) played leading roles in both the Philadelphia
Convention and the Virginia Ratification Convention of 1788. Despite presenting
the Virginia Plan (which was largely the work of James Madison) at the Philadelphia Convention's outset, Randolph came by the Convention's end to insist that a federal, not a
national, constitution was what was needed, and he refused to sign the document. In Richmond,
Randolph laid out a states-rights, federalist (not nationalist) version of the Constitution for his fellow delegates, insisting that Virginia would be as one of thirteen parties to a compact in the newly
invigorated federal Union. His reassurances explain Virginia's narrow decision to ratify the Constitution. The first U.S. attorney general, Randolph sided with Jefferson in the cabinet's Bank Bill debate
in 1791.

On this issue of nationalism versus federalism, James Madison's contributions to The Federalist are similarly perplexing. In Federalist 39, in
particular, he decides that the proposed government is to be neither
national nor federal, but an amalgam. This is, alas, an impossibilityunless, like Hamilton, one assumes that "sovereignty" means "authority
in a given area."

On the issue of most moment-the procedure by which the Constitution
would be enacted-Madison says, "The constitution is to be founded on
the assent and ratification of the people of America, given by deputies
elected for the special purpose, not as individuals composing one entire
nation; but as composing the distinct and independent States to which they
respectively belong. It is to be the assent and ratification of the several
States, derived from the supreme authority in each State, the authority of the people themselves. The act therefore establishing the Constitution, will
not be a national but a federal act." (Madison's emphasis)

A Book You're Not
Supposed to Read

The Anti-Federalists: Selected Writings and
Speeches, edited by Bruce Frohnen with
foreword by Joseph Sobran; Washington, DC:
Regnery, 1999.

What does it mean that ratification was to be a federal, not a national,
act-the act of "independent states," not of a nation? As Madison goes on
to explain, "Were the people regarded in the transaction as forming one
nation, the will of the majority of the whole people of the United States,
would bind the minority; in the same manner as the majority in each
State must bind the minority." So, "Each State in ratifying the Constitution, is considered as a sovereign body independent of all others, and
only to be bound by its own voluntary act. In this relation then the new
Constitution will, if established, be a federal and not a national Constitution. "

Madison would have done well to leave off here. He goes on to state,
however, that the Congress will have one house apportioned by state and
another apportioned by population, which makes it, he says, partly
national and partly federal. He then notes that presidential elections are
to be through an electoral college whose apportionment is partly national
and partly federal, and makes several other confused and confusing statements of the same kind.

There was nothing in the Declaration of Independence, in the Articles
of Confederation, or in the ratification process of the federal Constitution
to enable an American people to create a national government. If the
states really were states, they would have had to cease to be so at some
time to have made themselves into a nation. When did they do that?
When did an "American people" ever assent to or ratify anything?

All of this talk about the Constitution making a "nation" must have
been very distasteful to the population of New York, good Patriots who
had vindicated their state's sovereignty in the Revolution. No wonder
they did not flock to support Hamilton's vision. Instead, two-thirds of the
delegates they elected to the state ratification convention opposed the
Constitution. It was only New York City's threat of secession, coupled with the real prospect of independence from the other twelve states, that
pushed an extremely hesitant New York into ratifying the unamended
Constitution.

hat does the Constitution say about the courts? Not much.
In describing the federal judiciary, Article III of the Constitution says, "The judicial Power of the United States shall
be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Article III also lists
several types of jurisdiction that Congress may choose to grant to inferior
federal courts and describes the Supreme Court's original jurisdiction. In
addition, it grants federal judges "good behavior" tenure.

In the Judiciary Act of 1789, the first federal Congress established the
three-tiered federal court system-with a supreme court at its apex, intermediate appellate courts, and federal district courts to conduct trialswith which Americans have had to contend ever since. This system
violated James Madison's pledge during the ratification debates that the
federal government would first try to get along without any federal trial
courts (leaving trials of federal issues entirely to the state courts). But it
proved uncontroversial in the first Congress, which was dominated by
Federalists of various stripes. (Virginia's two senators were alone in that
body in having opposed ratification of the unamended Constitution.)

Besides giving the federal judiciary a skeleton, the Judiciary Act
included two other sections ultimately destined for great significance.
In Section 25, the Act said that questions of federal law (including constitutional law) could be appealed from state supreme courts to the
federal Supreme Court. The constitutionality of this provision, dubious
then as now, would be hotly debated within a generation, and it would
be controversial repeatedly in American history.

Guess what?

-.' The concept of
state sovereigntyso dear to the
delegates at the
Philadelphia
Convention-was
effectively
dismissed by
judges only six
years later.

-sW The omnipotence
of today's Supreme
Court would have
surprised and
horrified the
founders-even
the Federalists.

-4W At least two
states considered
secession because
of the Alien and
Sedition Acts of
1798.

The Judiciary Act had another important provision. It concerned suits
where federal courts were involved as neutral arbiters because the plaintiffs hailed from different states. Congress decided that the law of the state
where the federal court sat would be the governing law. The congressmen
wanted to prevent federal courts from devising a federal common law;
the presumption was that state law should be applicable in everyday disputes. The creators of the federal government once again erred on the side
of federalism, leaving matters to state governments rather than transferring decision-making authority to the federal government.

President George Washington considered three criteria in appointing the
first men to the Supreme Court: prospective appointees must be eminent
in their states, they must have favored ratification of the Constitution, and
they must, taken together, be of diverse geographic backgrounds. He had
a chief justiceship and five associate justiceships to staff, and he made
good on his intention to fill them with able Federalists.

The first chief justice, John Jay of New York, was a surprising choice
for that post even to Washington himself. According to Jay family lore,
Washington offered Jay any position he wanted in the new government.
Washington wanted and expected Jay to take the senior cabinet position,
secretary of state. Instead, Jay chose the top judicial appointment. As in
New York during the Revolution, when he had opted for the top judicial
post rather than the governorship, Jay believed that his judicial experience fitted that job uniquely well. As the chief negotiator of the Treaty of
Paris, a former president of Congress (where he achieved such influence that a leading historian of the period, John
Kaminski, recently called him a "prime minister" in that post), the chief author of his
state's first republican constitution, and a
coauthor of The Federalist, Jay was a fine
choice for chief justice.

Jay's associates on the high court also
brought outstanding qualifications as statesmen of a kind not seen in Supreme Court
appointees today. Justices John Rutledge, James
Iredell, William Cushing, and James Wilson had played eminent roles in
writing the Constitution, ratifying it, or both. They were joined by John
Blair of Virginia, who had experience in that state's high courts and in the
Philadelphia Convention, and later replacements included William Paterson and Oliver Ellsworth, who had first been prominent in the Philadelphia Convention and then cooperated in writing the Judiciary Act of 1789.

The first significant constitutional case decided by the Supreme Court
concerned the extent of federal power. In Ware v. Hylton (1796), the Court
upheld the terms of the Treaty of Paris, which had ended the Revolutionary War. Thanks to John Jay's brilliant diplomacy, the Treaty of Paris had
brought the Revolution to a spectacularly successful conclusion, with the
United States gaining a western boundary not at the Appalachians-the
boundary of American settlement at the time-but at the Mississippi. Borders, however, weren't at issue in the case; the issue was how to handle
debts owed to the British. Specifically at issue was a Virginia law of 1777
intended to prevent British creditors from collecting on Virginia debtors.

As was his custom, the Virginians' attorney, John Marshall, had no
compunction in taking a case even though he had a substantial personal interest in the outcome-in this case, an interest adverse to his clients':
he was an investor in Virginia lands formerly owned by prominent Loyalists. Marshall argued that Virginia had acquired the status of an independent nation during the war, that independent nations had the right to
confiscate enemies' property, and that Virginia had thus been perfectly
within its rights to bar recovery of the debts in question. So far as the law
was concerned, "the defendant owed nothing to the plaintiff" at the time
of the Treaty of Paris in 1783. The Supreme Court disagreed. Justice
Samuel Chase held that the Supremacy Clause of Article VI, which says
that the federal government's treaties are the supreme law of the land,
resuscitated the debt at issue.