Chapter 5: The Constitution Unfolds: Democracy Struggles with the Practical and the Ideal

The early history of the Constitution saw two poles develop about the issue of who was the guardian of the constitution. On the one hand the Federalists supported a strong federal government, including strong federal courts, with a Supreme Court that reviewed legislation and measured it against Constitutional constraints. They were supported by Hamilton, one of the writers of The Federalist. He wrote in Federalist Papers No. 78,

Limitations [on Congressional power] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . . No legislative act, therefore, contrary to the Constitution, can be valid. . . .

On the other side the Jefferson Republicans supported State rights. Obviously, one of their leaders was Jefferson. Another was Madison, who had co-authored The Federalist, but had since left the Federalist party. The Jeffersonians took the position that the state legislatures, not the Supreme Court, had the ultimate power to interpret the Constitution.

Judicial Review

The issue of judicial review, the right of the judiciary to interpret the constitution, and to determine whether or not legislation meets Constitutional muster, remained open until the elections of 1800 when Jefferson won the election, and President John Adams and his Federalists were defeated. Adams and his Federalist Congress sought to minimize the effect of Jefferson’s victory. Just five days before Jefferson was to take the oath of office, Congress created many new federal judicial posts, and Adams packed them. The Senate confirmed Adams= appointments on the last day of his term. John Marshall was the Secretary of State, and he had the duty to deliver the new commissions. Marshall was also appointed as the new Chief Justice and had been sworn in a month before. Marshall was unable to enter all of the new commissions of record and to deliver them by the end of the term.

Jefferson, angry at the last minute packing of the judiciary, treated the appointments as mere nullities. Later, in a show of moderation, he nonetheless appointed many of Adams= men to the same positions, except four, including William Marbury. Marbury brought suit in the Supreme Court to seek an order to require Madison to deliver the commission. Marshall was aware that the Supreme Court had no power to enforce any such order were it issued, and to fail to do so would support Jefferson’s claim that the Supreme Court had no authority to do so. On February 24, 1803 the Supreme Court delivered its opinion. It found that Marbury was entitled to his commission, it should have been delivered, and the Supreme Court had authority to order it done. But then the Court examined the authority under which the suit was brought before the court, and it found that Section 13 of the Judiciary Act gives the Supreme Court original jurisdiction in cases such as this, but that it conflicts with the grant of jurisdiction in Article III of the Constitution. What must the courts do when they are asked to enforce an unconstitutional law? Marshall, for the Court, reasoned that the Constitution is law, and judges, not legislators or executives, interpret the law:

What else can be implied by the existence of a written constitution that by its own terms is the supreme law of the land than that it, and not some legislative act, must bind a court when the two conflict?

Therefore, Marshall reasoned, judges interpret the Constitution. Having that duty, the Court ruled the act unconstitutional and therefore unenforceable. The Supreme Court ruled that Marbury was entitled to his commission, but gave no order to enforce it which could be ignored by Jefferson. In the process the Court established its power to interpret the Constitution.

So began the practice and history of judicial review, contrary to the British system. Because the framers had a vision of the possible in the actual, that vision was expressed in general, ideal terms. It must at times be interpreted, and the Supreme Court has become the recognized interpreter of that language. Through judicial interpretation, the constitution has grown and taken on new meanings in new contexts. Woodrow Wilson said, “The Supreme Court is a constitutional convention in continuous session.”

The ideal, seen as the seed of possibility in the soil of the actual develops with ever-changing circumstances. Therefore, when judges apply the law without regard to the plain provisions and the ideal possibilities that are our heritage, the life of the law suffers. On the other hand, we can only envision the future in the light of experience. Through judicial interpretation there has developed a dynamic relationship among the past, the present and the future.

Judicial review recognizes a higher authority in the law of the constitution, which itself arises from the milieu of the Natural Law. To be true to the constitution requires fidelity to both the positive law and Natural Law. To consider the Constitution without reference to these founding principles is to strip the Constitution of its vitality. This can be demonstrated in the Dred Scott ruling, which we will discuss later in this chapter.

Ralph Waldo Emerson

The American Revolution marked not only a change in politics. It was preceded by a weakening of the Puritanical hold on colonial life. It was followed by Unitarianism and by the Great Revival in America (and also in England), two new poles in the religious life of America. At one pole, Unitarianism struck at the traditional trinitarian foundation of Christianity, and it enlisted the freshness of intellectual inquiry into church and community life. Ralph Waldo Emerson, the great American poet, philosopher, and political theorist, was one of its preachers. At the other was a resurgence of “old time religion,” with its traditional values. It appealed to emotion through hymns based on popular songs and dance tunes.

Fifty years after its founding, the nation was gripped by a tension between preserving its heritage while yet living in circumstances and demands of a new age. In the spirit of the times, Emerson in the first part of the Nineteenth Century sought to take the heritage of America and to reframe it in the light of an expanding country, introducing new experiences. In his Introduction to his essays on Nature, he began,

Our age is retrospective. It builds the sepulchers of the fathers. It writes biographies, histories, and criticism. The foregoing generations beheld God and nature face to face; we, through their eyes. Why should not we also enjoy an original relation to the universe? Why should not we have a poetry and philosophy of insight and not of tradition, and a religion by revelation to us, and not the history of theirs? . . . The sun shines to-day also. There is more wool and flax in the fields. There are new lands, new men, new thoughts. Let us demand our own works and laws and worship.

Emerson built upon the foundation of Natural Rights, and elevated the position of humankind within it. For him the universe was composed of Nature and the Soul.

I am nothing; I see all; the currents of the Universal Being circulate through me; I am part or parcel of God.

Drawing on his religious upbringing, he concluded that Nature’s purpose was to serve man:

Nature, in its ministry to man, is not only the material, but is also the process and the result.

The stuff of Nature, he believed, was not substance, but phenomenon, pervaded with spirit. That spirit and the spirit of man were treated as nearly identical.

Emerson quoted Plato as the basis of his own notion of spirit and of idealism,

The problem of philosophy is for all that exists conditionally to find a ground unconditioned and absolute.”

Emerson continued,

It proceeds on the faith that a law determines all phenomena, which being known, the phenomena can be predicted. That law, when in the mind is an idea. Its beauty is infinite. The true philosopher and the true poet are one, and a beauty, which is truth, and a truth, which is beauty, is the aim of both. . . . It is in both cases, that a spiritual life has been imparted to nature; that the solid seeming block of matter has been pervaded and dissolved by a thought; that this feeble human being has penetrated the vast masses of nature with an informing soul, and recognized itself in their harmony, that is, seized their law. . . . Thus even in physics, the material is degraded before the spiritual.

Comprehension of these laws by mere grasp of the intellect could appropriate the laws as humanity’s own, he believed. Indeed, humanity’s rational nature unlocked the divine, and acquired divine powers:

And no man touches these divine natures, without becoming, in some degree, himself divine. Like a new soul, they renew the body.

That was not to say that humanity becomes God, but that humanity, by its rational being, partakes in the Nature of God, and by it comes to realize that Nature is not mere substance but phenomena, a process.

Nature is made to conspire with spirit to emancipate us.

When confronted with the great Ideas of Nature, he responded,

in their presence we feel that the outward circumstance is a dream and a shade. Whilst we wait in this Olympus of gods, we think of nature as an appendix to the soul. We ascend into their region, and know that these are the thoughts of the Supreme Being.

For Emerson, it was as though Nature was created in the image of man:

Nature is so pervaded with human life that there is something of humanity in all and in every particular.

Knowing the mind of God imparted power. That realization had dramatic possibilities for Emerson:

Who can set bounds to the possibilities of man? Once inhale the upper air, being admitted to behold the absolute natures of justice and truth, and we learn that man has access to the entire mind of the Creator, is himself the creator in the finite. . . .

And so we arrive at Transcendentalism. For Emerson, Transcendentalism was Plato revisited and made over in the light of the revelations of Nature. Rather than spirit above the world, as in Plato, Emerson believed Spirit pervaded Nature, in which humanity participates and imparts power, through understanding, reason and spirit.

Citing an unidentified poet, Emerson declared,

Nature is not fixed but fluid. Spirit alters, moulds, makes it. . . . What we are, that only can we see. . . . Build therefore your own world.

And so, Emerson announced the kingdom of man over nature through the influx of spirit.

With transcendental emphasis upon the responsibility of each individual to make his or her own life, even world, through the power of spirit, it is no wonder that Emerson concluded in the field of politics,

Every actual State is corrupt. Good men must not obey the laws too well.

But, in the matter of human affairs, it was a necessary evil.

Hence the less government we have the better – the fewer laws, and the less confided power. The antidote to this abuse of formal government is the influence of private character, the growth of the Individual.

Emerson went so far as to say,

The appearance of character makes the State unnecessary. The wise man is the State.

If every human being met the existential command, he believed, there would be no need for law to be imposed by the State.

Emerson was a theorist. His heritage was the Natural Law of the founding fathers. The positive aspects of his theory were the emphasis upon individual responsibility, upon idealism as the perception of the ground of being behind the temporal, and upon possibility within the actual. Emerson recognized the power of property within government, by which he meant that the State must be restrained to protect private property. In his essay on Politics, Second Series Volume III, published in 1844, he says,

Things have their laws, as well as men; and things refuse to be trifled with. Property will be protected. . . . Under any forms, persons and property must and will have their just sway.

But, that power of property came to mean something quite different as expressed by the Court in the Dred Scott case of 1856.

Henry David Thoreau

Henry David Thoreau was a contemporary of Emerson. He was a transcendentalist as was Emerson; and he was an individualist as was Emerson. But Emerson was a theorist of the ideal, whereas Thoreau was its practitioner. The classic report is that Thoreau was imprisoned for failure to pay his taxes, which supported, he believed, American slavery and an unjust Mexican War. Emerson visited Thoreau in prison and asked,

Thoreau, what are you doing here?” Thoreau responded, “What are you doing there?

Thoreau lived his ideals. In Walden he wrote,

There are nowadays professors of philosophy, but not philosophers. . . . To be a philosopher is not merely to have subtle thoughts, nor even to found a school, but to love wisdom as to live according to its dictates, a life of simplicity, independence, magnanimity, and trust. It is to solve some of the problems of life, not only theoretically, but practically. . . . The philosopher is in advance of his age even in the outward form of his life. He is not fed, sheltered, clothed, warmed, like his contemporaries. How can a man be a philosopher and not maintain his vital heat by better methods than other men?

Thoreau’s form of individualism was classically expressed in,

What a man thinks of himself, that it is which determines, or rather indicates, his fate.

On philanthropy, Thoreau was no less concrete,

Be sure that you give the poor the aid they most need, though it be your example which leaves them far behind. If you give money, spend yourself with it, and do not merely abandon it to them.

But, above all, as a true idealist Thoreau commanded,

Fix not thy heart on that which is transitory . . .

Thoreau opposed slavery. In so doing, he went beyond the mere institution to the dehumanization which it represented. He accused that the North was no more immune despite its opposition to the institution, attacking the common suppression of the divine within to which the masses fall prey:

I sometimes wonder that we can be so frivolous, I may almost say, as to attend to the gross but somewhat foreign form of servitude called Negro Slavery, there are so many keen and subtle masters that enslave both North and South. It is hard to have a Southern overseer; it is worse to have a Northern one; but worst of all when you are the slave-driver of yourself. Talk of a divinity in man!

Thoreau did not soar as did Emerson. Indeed the Idealism which he pursued at Walden Pond he pursued in much more practical terms which belie the depth of his thought, but demonstrate his conviction to its practice in the concrete.

My purpose in going to Walden Pond was not to live cheaply nor to live dearly there, but to transact some private business with the fewest obstacles; to be hindered from accomplishing which for want of a little common sense, a little enterprise and business talent, appeared not so sad as foolish.

And likewise, his reason for leaving Walden Pond was also Idealism incarnate:

I left the woods for as good a reason as I went there. Perhaps it seemed to me that I had several more lives to live, and could not spare any more time for that one. It is remarkable how easily and insensibly we fall into a particular route, and make a beaten track for ourselves. . . .

I learned this, at least, by my experiment: that if one advances confidently in the direction of his dreams, and endeavors to live the life which he has imagined, he will meet with a success unexpected in common hours. . . . If you have built castles in the air, your work need not be lost; that is where they should be. Now put the foundations under them. . . . . . . Things do not change; we change.

As to his political theory, it is remarkably like that of Emerson, with a more practical foundation. Thoreau begins his Essay On the Duty of Civil Disobedience,

I heartily accept the motto, – ‘That government is best which governs least;’ and I should like to see it acted up to more rapidly and systematically.

For him, government “is at best but an expedient.” It is merely the “mode which the people have chosen to execute their will, [but it] is equally liable to be abused and perverted before the people can act through it.” He did not demand that government be dispensed with, but that in a concrete sense, “at once” it become better.

The reason for majority rule is that the majority is, as a concerted mass, the strongest. But, Thoreau held, a government based merely upon the rule of the majority cannot be based upon justice.

Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? – in which majorities decide only those questions to which the rule of expediency is applicable? Must the citizen even for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume, is to do at any time what I think right.

Contrary to the Positivists who defined morality by the terms of the extant law, Thoreau writes,

Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice. . . .

The mass of men serve the State thus, not as men mainly, but as machines, with their bodies. . . . Others, as most legislators, politicians, lawyers, ministers, and officeholders serve the State chiefly with their heads; and, as they rarely make any moral distinctions, they are as likely to serve the devil, without intending it, as God. A very few, as heroes, patriots, martyrs, reformers in the great sense, and men, serve the State with their consciences also, and so necessarily resist it for the most part; and they are commonly treated by it as enemies.

Thoreau recognized the risk of total commitment to Ideals, the risk of appearing foolish:

He who gives himself entirely to his fellow-men appears to them useless and selfish; but he who gives himself partially to them is pronounced a benefactor and philanthropist.

Neither was Thoreau’s idealism impractical or unrealistic:

[A]ll machines have their friction; and possibly this does enough good to conterbalance the evil. At any rate, it is a great evil to make a stir about it. But when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer.

And now, Thoreau gets to the point of his own civil disobedience:

In other words, when a sixth of the population of a nation which has undertaken to be the refuge of liberty are slaves, and a whole country is unjustly overrun and conquered by a foreign army, and subjected to military law, I think that it is not too soon for honest men to rebel and revolutionize. What makes this duty the more urgent is the fact, that the country so overrun is not our own, but ours is the invading army. . . .

[A] people, as well as an individual, must do justice, cost what it may.

Thoreau was a man of action upon ideal conviction.

Even voting for the right is doing nothing for it.” But the minority, even the individual persuaded by conscience, is not powerless. It is only powerless while it conforms to the majority, “but it is irresistible when it clogs by its whole weight.” “Let your life be a counter friction to stop the machine.

Obedient to his own call to duty, Thoreau paid no poll-tax for six years, and as a result he was jailed once, for a night. Someone “interfered” and paid the tax for him so he could be released. But he was struck with the foolishness of the State in treating him as a body to be locked up. The brute strength of the State, its ability to lock one up, cannot subdue the spirit or the will.

They only can force me who obey a higher law than I.

But, those within the system, have allegiance not in service to the people that the system serves, but to the institution:

They are wont to forget that the world is not governed by policy and expediency. . . . [And t]he lawyer’s truth is not truth, but consistency, or a consistent expediency.

Thoreau concluded that the integrity of the State was dependent upon the integrity of the individual within the State. There can be no justice in a State in which people treat others unjustly. The individual is the basis of the State:

There will never be a really free and enlightened State, until the State comes to recognize the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly.

Slavery eroded that integrity. The institution of slavery robbed the black individual of the natural, unalienable rights to which he or she was born, and upon which the Declaration of Independence and the following Constitution were based.

The Fugitive Slave Act imprisoned those who would aid the escape of a slave from his institutional imprisonment of slavery. And for Thoreau, believing in the power of the individual, wrote,

If one HONEST man, in this State of Massachusetts, ceasing to hold slaves, were actually to withdraw from this copartnership, and be locked up in the county jail thereof, it would be the abolition of slavery in America. For it matters not how small the beginning may seem to be: what is once well done is done for ever. Under a government which imprisons any unjustly, the true place for just a man is also a prison.

The Issue of Slavery

The issue of slavery smoldered at the time of the framing of the Constitution. In the 1780’s the institution of slavery was dying in the Northern states. The North was not so distanced from its own advantage exacted of the institution. The population of the Northern states and the Southern states was approximately equal, and the issue was laid aside at that time for the sake of establishing a Union.

In 1787, the Confederation enacted the Northwest Ordinance which banned slavery in the Northern Territories. After the ratification of the Constitution, states were admitted alternately from above and below the Mason-Dixon line. But this arrangement became unsatisfactory, in part because of the Congressional provision that allowed the states representation on the basis of voters plus three-fifths of the slaves. This gave the South disproportionate representation, Northerners believed. When the question of Missouri’s admission to the union arose, it threatened to upset the balance, and threats of secession abounded. But in 1820 a compromise was struck. Missouri was admitted as a slave state, but slavery in all territory north of its southern boundary was forbidden. To balance Missouri’s admission, Maine was admitted.

Despite continuing moral debate in the North concerning the continuance of slavery within the Union, an occasional slave revolt, and the famous underground railway organized in the North, the Compromise was a workable political solution until the 1840’s when large new territories were acquired. A great debate then arose over whether the Mexican territory should be free or slave. By this time the North was far more populous, and far more wealthy, than the South. The North wanted California to be admitted free. The South exacted a price. The 1850 Fugitive Slave Act resulted. It provided for recapture of slaves, and heavy criminal penalties for harboring a fugitive slave.

In 1854, Senator Stephen A. Douglas proposed that a railroad be built through the center of the country rather than through the South. To obtain the South’s support for such a measure, he proposed that Congress take no position on slavery in the Nebraska Territory, even though it lay above the Mason-Dixon line. The people of that territory, he proposed, could themselves vote on the issue of slavery, a principle which he called “popular sovereignty.” In that year the Congress passed the Kansas-Nebraska Act which repealed the Missouri Compromise of 1820. It left the ultimate extension of slavery to the courts. But the Courts were bound to uphold the federal law, consistent with the Constitution, and the Fugitive Slave Act legislated that property in humans could be regained by severe acts. States in the North, in a wave, began to declare the Act void, and state courts began to defy the law.

Dred Scott

Dred Scott and his family became property of a Dr. John Emerson. He was ordered in 1834 to service in Illinois, a free state. He was then transferred two years later to the Wisconsin Territory, and the Missouri Compromise prohibited slavery there. Scott and his family remained on free soil five years when Emerson left; they later moved to the area of St. Louis where Scott hired out. In 1843 Mr. Emerson died and his property passed to his widow, Mrs. Irene Sanford Emerson. In 1846 Dred Scott filed suit in Missouri state court against the estate, claiming that he became irrevocably free when he accompanied his master north of the Mason-Dixon line. Slavery was a question for each state to decide, and the Missouri Court decided that when Dred Scott returned to Missouri, he lost his free status and either remained, or again became, a slave.

The Missouri decision was not appealable to the U.S. Supreme Court, and the decision should have settled the matter. But Mrs. Emerson married Massachusetts Congressman, Calvin Clifford Chaffee, who was opposed to slavery. Upon her marriage under state law she became ineligible to administer the estate, and its administration fell to her brother, John Sanford, of New York.

To test the constitutionality of the Fugitive Slave Act, Scott’s lawyers filed a suit in federal court, claiming that Sanford had assaulted him and members of his family when Sanford was visiting. Scott claimed to be a citizen of Missouri and claimed that the court had jurisdiction under diversity of citizenship. The issue of the suit revolved around whether Scott could be a citizen, having been born into slavery. Shortly after the suit was filed, Congress passed the Kansas-Nebraska Act which gave the territorial legislatures the sole power to decide the issue of slavery for that territory. The U.S. Circuit Court held that he was a citizen.

The matter was appealed to the U.S. Supreme Court. That Court reversed, holding that Scott remained a slave and was not a citizen. Chief Justice Taney wrote for the court, although the nine justices filed different opinions, and there was no consensus on the basis for the decision. Taney wrote that the language of the Declaration of Independence showed that slaves were not acknowledged as part of the people, and therefore they were not included within the meaning of the document.

They had for more than a century before been regarded as beings of an inferior order . . . ; that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. . . .

Taney concluded that even if the Missouri Compromise made Dred Scott a citizen, it could not make him a United States Citizen because a black is descended from slaves. He went on to declare the Missouri Compromise to be unconstitutional, only the second time in the history of the country that the Court had declared an act of Congress unconstitutional, and the first time since Marbury v. Madison. Taney wrote,

An act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who committed no offence against the laws, could hardly be dignified with the name of due process of law.

The Dred Scott case relied upon the historical context of the Declaration of Independence, in which the slavery issue was not addressed. But it ignored the founders’ fundamental reliance upon “the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” From this principle the framers concluded, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Led by men of deep insight the framers adopted these principles as the basis of their new government. To hold that some men are mere property and have no rights is to ignore this most basic principle of our government.

Moreover, while it was true that the framers believed that the primary purpose of government was the protection of private property, the notion of property at the time of the Declaration of Independence was not limited to the material possessions and material advantage that one acquires. Rather, as Locke said, property extended to “lives, liberty and estates.” As Locke expressed it:

Reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions.

Locke held that the moral law was not based upon, nor limited to, the positive law. Whereas the positive law tends toward self-preservation, the moral law is oriented to recognition of the value of each person as a creature of God.

Rather than focus upon the principles underlying the constitutional language which it interpreted, the Court focused upon the material advantage of the slaves to their owners. It therefore concluded that the means to that advantage was itself property. Having thus defined the issue to be one of property, they ignored the larger issue of how one can”own” a human life endowed by its Creator with unalienable Rights, including the rights to life and liberty?

Idealism is difficult to maintain. Our founding fathers experienced degradation and oppression, rejected it, and responded in ideal action for the possibilities their circumstances entailed. Principles then were high, although pragmatism also had its influence, such as their refusal to directly confront the issue of slavery in the interest of unity. But once independence and then the form of a new government were established, a new power structure emerged. Idealism and thought for the growth of possibilities in the actual began to dissipate. Systemic protection and pragmatism for those with power, became the new rule. Only a threat to the union, itself, would bring principled and idealistic thinking to the fore. That evolved in the service of Abraham Lincoln. (See my blog posting on Abraham Lincoln under Civil Disobedience.)


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