Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (11 page)

What a
Patriot Said

"A bill of rights is what
the people are entitled
to against every government."

Thomas Jefferson

Another 1796 case, Hylton v. United States, concerned the constitutionality of a federal carriage tax. The Constitution provided that direct
taxes (taxes levied directly on the consumer
or owner, in contrast to indirect taxes, like
tariffs, which are imposed on the importer)
must be apportioned equally among the
states. Carriages were far more common in
some states (notably Virginia, where many
Tidewater planters owned carriages) than in
others (particularly in Connecticut, where
only two carriages fell under the tax). The
Supreme Court held that the carriage tax
was not a direct tax, that it therefore did not
have to be apportioned equally among the
states, and that it thus was constitutional.

In Ware v. Hylton the Court had nullified a state statute. In Hylton v.
United States it refrained from nullifying a federal statute, but in the
process gave Congress greater discretion in levying taxes than the ratifiers
had intended.

Hamilton Splits the
Difference

According to Alexander Hamilton, there is
a difference between "necessary" and
"absolutely necessary." (This is a very
important point. Really.)

The limits on the Court's power to review statutes for constitutionality were at issue in the 1798 case of Calder v. Bull. The specifics of the
case are not so important (it involved whether the Connecticut legislature could grant a new hearing in a probate proceeding, enforcing a will).
But the opinions written by Justices Samuel Chase and James Iredell are
of great interest. In those early days of the Supreme Court, justices customarily delivered opinions seriatim (that is, each for himself) rather than
joining in a common decision. Here, Chase's statements about natural
law, and thus about the limitations on legislative power, drew a stinging
rebuke from Iredell.

Chase began by saying that while the federal government's powers
were strictly defined, the state governments retained all the power delegated to them by the people and not denied by the federal Constitution.
A former Republican turned Federalist, he then went further. State legislatures, he wrote, were not (as Parliament was under the British conception of sovereignty) "absolute and without controul," even when the
constitution of the state did not expressly limit their authority. Rather, he
said, "There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse
of legislative power; as to authorize manifest injustice by positive law; or
to take away that security for personal liberty, or private property, for the
protection whereof government was established. An act of the legislature
(for I cannot call it a law), contrary to the great first principles of the
social compact, cannot be considered a rightful exercise of legislative
authority. "

In other words, according to Chase, state statutes that violated the
"principles" of "free republican government" were not law at all. Such
statutes, he wrote, were against "the general principles of law and reason." Chase's opinion thus set the stage for federal judges to substitute
their individual understandings of the "principles" of "free republican government" for the judgments of state legislatures. The legislature might
legislate, Chase said, but not all its statutes could qualify as "law."

This has become, over time, the majority opinion of the Supreme
Court. But Justice Iredell leveled a blistering response to Chase's advocacy of judicial imperialism. The guard against untrammeled legislative
power, Iredell insisted, was not natural law, but the system of written
state and federal constitutions. "If any act of congress, or of the legislature of a state, violates ... constitutional provisions, it is unquestionably
void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the court will never resort to that authority, but in
a clear and urgent case."

If Congress or a state legislature should pass a statute consistent with
the power it had been granted, Iredell continued, no court may declare it
void (that is, strike it down as "unconstitutional") "merely because it is,
in their judgment, contrary to the principles of natural justice."

Iredell warned, "The ideas of natural justice are regulated by no fixed
standard; the ablest and purest men have differed upon the subject." And
if legislative power can be abused, "such is the tendency of every human
institution," but the American system offers a constitutional corrective:
legislative elections.

Surely the most controversial Supreme Court decision of the 1790s was
in the 1793 case of Chisholm v. Georgia. In this case the Court claimed
jurisdiction over a sovereign state, in apparent violation of Article III of
the Constitution.

The case involved a claim that Georgia owed money to the estate of a
dead South Carolinian for supplies provided during the Revolutionary War. Georgia refused to submit to the federal court adjudicating the case,
insisting through its counsel (who refused to say anything more) that it
enjoyed sovereign immunity as a state; it could not be sued without consenting to be sued.

The Supreme Court issued a default judgment against Georgia because
it had failed to appear. In their opinions, Chief Justice John Jay and Justice James Wilson denied that Georgia was sovereign in its relations with
the Union. The United States Constitution, they held, was the creation of
one American people. Justice Iredell, however, denied that the federal
court had jurisdiction over the case at all. Georgia did not allow such
suits in its own courts, and that meant that federal courts had no authority to hear such a case. Justice John Blair countered that when the states
ratified the Constitution, they agreed to be amenable to such suits in federal courts. And Justice William Cushing affirmed that in giving the federal courts jurisdiction over suits between states, the Constitution
assumed that states might be defendants in federal courts.

Justice Wilson went further. He mocked "the haughty notions of state
independence, state sovereignty and state supremacy." The American
people, he said, could subject the states to federal jurisdiction if they
chose to do so. The language of the Constitution's preamble referred to
the desires "to establish justice" and "to ensure domestic tranquility,"
which gave federal courts power to resolve such disputes.

Jay's opinion offered what one historian has called "a bit of handtailored history," which made Jay responsible for the "lamentable standards of American judicial historiography."' Jay said that when the
Crown's authority ceased in America, thirteen sovereignties succeeded,
but that the Americans thought of themselves "in a national point of view
as one people." The preamble to the Constitution showed that it represented the sovereignty of a single people. If one citizen might sue all the
shareholders of a corporation, and if one state might sue another, why would an individual's suit against a state be any different? The grant of
jurisdiction under consideration, said Jay, should be construed liberally,
because it was remedial. Such a reading, he concluded, would be both
wise and useful.

It would not, however, be what the Federalists had argued when the
Constitution was being debated. They had said then that federal courts
could hear such suits only when they were initiated by the states. Alexander Hamilton, in fact, had said that suits against states would prove
impractical because of the difficulty of executing judgments against them. Leading Federalist spokesmen like Edmund Randolph had
said that the federal courts' jurisdiction would
be read narrowly.

Virginia had refused to submit to a suit
when summoned to do so in 1792 in the case
of Grayson, et a]. v. Virginia. Massachusetts
soon joined Virginia and Georgia on the list of
affected states. In response, Congress proposed, and the states instantly ratified, the Eleventh Amendment, which
explicitly denies federal courts jurisdiction over lawsuits initiated
"against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

Modern judges and legal academics often argue that the Eleventh
Amendment is a narrow exception to Congress's broad power to create
federal courts. But we know from the amendment's history that its purpose was exactly the opposite: to limit the federal courts' jurisdiction to
the strict confines of Article III.

These early Supreme Court decisions, and the clamorous response to
Chisholm, must be read in the context of the political disputes of the
1790s. At issue was just how much authority had been granted to the federal government through the Constitution.

A Book You're Not
Supposed to Read

Reclaiming the American Revolution: The
Kentucky and Virginia Resolutions and Their
Legacy by William J. Watkins, Jr.; New York:
Palgrave Macmillan, 2004.

Republican opponents of ratification had not been persuaded by the Federalists' promises that the powers of federal congresses and courts would
extend only to areas expressly mentioned by the Constitution. In the end,
following the lead of Massachusetts Federalists, those in several other
states (notably New York and Virginia) vowed to seek amendments to the
Constitution in the first federal Congress.

When Congress met, James Madison overcame his colleagues' hesitance to spend time on so "insignificant" a task, and Congress referred
twelve proposed amendments (which ultimately became Amendments
I-X and XXVII) to the states for ratification. The first ten of them, known
as the Bill of Rights, were all about limiting the authority of the federal
government.

Madison, still a nationalist, had described the proposed amendments
as "safe, if not necessary, and politic, if not obligatory."' He had an
amendment of his own-which would have given federal courts power
to supervise state governments when it came to speech, the press, and
religion-but it was so unpopular that it wasn't even sent to the states.
Americans were looking to limit federal power, not expand it.

Of the first ten amendments actually adopted, by far the most important was the tenth. It made explicit what Edmund Randolph, James Wilson, Charles Cotesworth Pinckney, and other Federalists had promised
was already implicit: "The powers not delegated to the United States by
the Constitution, nor prohibited by it to the states, are reserved to the
states respectively, or to the people." This could be understood only as a
limitation on federal authority.

The same goes for what became the First Amendment, which says that
"Congress shall make no law" impairing the freedom of speech, the press,
or assembly; guarantees the right to petition; and establishes the right to
the free exercise of one's religion. The entire thrust of Republican argument was about restricting the power of the federal government. And
the Bill of Rights is framed, in the First and Tenth Amendments, with
both specific and sweeping restrictions on the power of Congress.