This book is included in the US Government: Educational, Informational & Motivational section.
Preface
IN THIS BOOK we have attempted to present the reader with a general
picture of the growth and development of the American constitutional
system. It is an introductory work, in the sense that it
presupposes no extensive technical knowledge of constitutional
law or political theory on the part of prospective readers. The intellectual
problems encountered in constitutional history are often
complex, and the book makes no attempt at false oversimplification.
At the same time there has been every effort at proper emphasis
and clarity of presentation, so that the average undergraduate
student or general reader should be able to follow the narrative
successfully.
The work emphasizes strongly those aspects of constitutional
growth which relate closely to the fundamental structure of the
American government and social order. For example, it deals at
length with the emergence of limited government or "constitutionalism,"
with the growth of federalism and its concomitant
problems of sovereignty and state-federal relations, with the rise
of judicial review, and with the constitutional aspects of civil liberties.
Of necessity, it ignores or discusses briefly many aspects of
constitutional law and history which have not seemed essential or
important to an understanding of the fundamental nature of American
government and society.
The book devotes about equal attention to the periods before
and after 1860. The "traditional" epoch of American constitutional
history (1760-1876) is obviously of immense importance,
but it is equally true that a whole new era of constitutional development
has occurred since the close of Reconstruction, and it
no longer appears to be desirable or intelligent to write American
constitutional history as though nothing of consequence had occurred
since 1885. Accordingly, the book treats in considerable detail
the emergence of modern due process of law, the constitutional
aspects of modern commerce power and taxation, the development
of the modern executive, and the great constitutional crisis of the
New Deal.
Several persons have been of assistance in the preparation of the
work. Professor Benjamin F. Wright of Harvard University read
the entire manuscript with care and attention, and his scholarly
criticisms and suggestions have been of great value. In addition, he
generously allowed us to use certain statistics on judicial review
from his Growth of American Constitutional Law. Dr. Charles
Burton Marshall of Arlington, Virginia, also read the manuscript
in its early stages, and advanced numerous useful suggestions as to
both content and style. Mr. Addison Burnham of W. W. Norton
& Company has lent constant assistance and co-operation at every
stage of the book's preparation. Much of the typing was done by
our wives, while Mrs. Sylvia Goodman typed most of the final
manuscript. Our thanks are due to all these people for their encouragement
and assistance. The book is a better one for their attention;
its shortcomings are ours.
Alfred H. Kelly
Winifred A. Harbison
CONTENTS
Chapter I.
English & Colonial Origins
The Joint-Stock Company - Virginia & Massachusetts Bay - Government by
Compact: Plymouth, Providence, Connecticut and New Haven - The
Proprietary Colonies
Chapter II. A Century of Colonial Government
The Colonial Legislature - The Colonial Governor - Colonial Judicial and Legal Institutions - Development of Colonial Political Theory - The Influence of Sir Edward Coke - The Colonies in the Empire - Early Attempts at Imperial Reorganization - Need for Imperial Reorganization after 1750
Chapter III. The American Revolution
Grenville's Reforms: The Sugar and Stamp Acts - Repeal of the Stamp Act; The Declaratory Act - The Townshend
Acts; Colonial Opposition - The Period of Quiescence; Emergence of the Dominion Theory of Empire - The Crisis of
1774 and the Rise of Revolutionary Government - The First Continental Congress - The Coming of Independence
Chapter IV. The First State Constitutions and the Articles of Confederation
The First Stare Constitutions - The Articles of Confederation - Failure of the Confederation Government - The
Movement for Constitutional Reform
Chapter V. The Constitutional Convention
The Convention's Personnel and Organization - The Virginia Plan - The Problem of the Legislature - The New Jersey
Plan - Significance of the Great Compromise - The Executive Office - The Federal Problem and the Judiciary - The Locus of Sovereignty - The Constitution Completed
Chapter VI. Ratification of the Constitution
Economic and Class Division - The Debate over Ratification - Triumph of the Federalists - Reasons for Ratification -
The Veneration of the Constitution - The Constitution as a Product of Eighteenth-Century Political Ideas
Chapter VII. Establishing the New Government
Launching the New Government - Organization of the Executive Department - The Judiciary Act of 1789 - The Bill of Rights - The Hamiltonian Program - The Test of Federal Coercive Power - Executive Relations with Congress - Development of the Cabinet - Foreign Policy and Executive Prerogative - Federalist Judicial Interpretation - The Doctrine of Vested Rights - The Alien and Sedition Acts - The Federalist Fall from Power
Chapter VIII. The Rise of Jeffersonianism
The Origins of Jeffersonian Democracy - The Virginia and Kentucky Resolutions - Constitutional Recognition of Political Parties: The Twelfth Amendment - The Jeffersonian Constitutional Program - The Annexation of Louisiana
Chapter IX. The Triumph of Jeffersonian Republicanism
Repeal of the Judiciary Act of 1801 - Marbury v. Madison - Impeachment of Federal Judges - The Burr Trial and the
Definition of Treason - The Embargo and Northern Championship of States Rights - The War of 1812
Chapter X. Nationalism versus Sectionalism
Postwar Nationalism; The National Bank - The Internal Improvements Issue - The Missouri Controversy - The Constitutional Debate - Negro Citizenship and the Second Missouri Compromise
Chapter XI. John Marshall and Judicial Nationalism
Expansion of the Contract Clause - The Contract Clause and Bankruptcy Laws - The Controversy over Appellate Jurisdiction - Implied Powers and National Supremacy - The Power to Regulate Commerce - Failure and Success of Marshall's
Legal Nationalism
Chapter XII. The Nullification Controversy
Georgia's Defiance of the United States on the Indian Question - From Nationalism to Nullification in South Carolina - Calhoun's Theories on Sovereignty and the Union - The Attempt at Nullification
Chapter XIII. Democracy and Jacksonianism
Broadening the Base of State Government - The Growth of Direct Popular Control in State Government - Democracy and the Federal Constitutional System - The Role of Political Parties in the Development of Democracy - Political Parties and Congressional Powers - The Bank and the Triumph of Strict Construction - Andrew Jackson and the New Presidency - The Jacksonian Judiciary and Chief Justice Taney - The Contract Clause and Corporate Power - The Commerce Power and States' Rights
Chapter XIV. The Slavery Controversy and Sectional Conflict
The Renewal of Congressional Controversy - Slavery and Interstate Comity - The Proslavery Leaders Adopt State Sovereignty - The Wilmot Proviso and Revival of the Slavery-Extension Controversy - Constitutional Theories on Slavery
in the Territories Crisis and Compromise
Chapter XV. Crisis and Secession 1851-1861
The Fugitive Slave Law - Repeal of the Missouri Compromise: The Kansas-Nebraska Bill - The Dred Scott Case - The
Lincoln-Douglas Debates - The Election of 1860 - Secession - Attempts at Compromise - Formation of the Confederacy - Lincoln's Policy toward Secession - Lincoln's Responsibility for Secession and War
Chapter XVI. The Civil War
The Legal Nature of the War - Punishment of Treason - Confiscation - Federal Centralization of Authority - Compulsory Military Service - Lincoln's Presidential Domination - Congressional and Judicial Reactions - Presidential Ascendancy - Continued Emancipation - The Thirteenth Amendment - Impairment of Civil Rights - The Habeas Corpus Act and Immunity of Federal Officers - Martial Law and the Milligan Case - Constitutional Significance of the Civil War
Chapter XVII. Reconstruction: The Presidential Phase
Presidential Reconstruction: The First Phase - The Rise of the Radicals - Evolution of the Fourteenth Amendment - Report of the Joint Committee on Reconstruction
Chapter XVIII. Radical Congressional Reconstruction
The Military Reconstruction Acts of 1867 - Radical Reconstruction within the South - The Impeachment of Johnson - Reconstruction and the Court - The Court-Packing Charge - The Disintegration of Radical Reconstruction - The Disputed Election of 1876 - Aftermath of Reconstruction
Chapter XIX. The Revolution in Due Process of Law
Revival of the Doctrine of Vested Rights - The Fourteenth Amendment and the Slaughterhouse Cases - Munn v. Illinois:
The Granger Cases - The Growth of Substantive Due Process, 1877-1898 - Due Process and Freedom of Contract - Due Process and the Fifth Amendment
Chapter XX. The New Due Process and Judicial Review - 1890 1920
The Content of Due Process - Due Process and the Regulation of Hours of Labor - Due Process and Other Aspects of
Social Legislation - Due Process and Public Utility Rates - Due Process and Taxation - The Rule of Reason and Judicial Review
Chapter XXI. The First Era of National Economic Regulation
The Railroads and the Interstate Commerce Commission - The Commission and the Courts 1887-1900 - Passage of the Sherman Anti-Trust Act - The Sugar Trust Case: "Manufacturing Is Not Commerce" - In re Debs: The Pullman Strike - The First Income Tax Case - The Second Income Tax Case - The Failure of the First Movement for Nationalism
Chapter XXII. The Rise of Liberal Nationalism
The Doctrine of Liberal Nationalism - Theodore Roosevelt's Stewardship Theory - The Rise of a Federal Police Power:
The Lottery and Oleo Cases - Expansion of the Federal Police Power - Federal Police Power in the Courts - The Police Power and Railway Labor - Revival of Federal Trust Prosecutions: The Northern Securities Case - The Rule of Reason - The Revival of the Interstate Commerce Commission - The Commission in the Courts - The Interstate Commerce Commission and National Ascendancy
Chapter XXIII. The Progressive Revolt
The Income Tax Amendment - The Revolt against the Speaker - The Seventeenth Amendment - The Progressive Attack on the Judiciary - The Judicial Recall - The Judiciary Act of 1914 - Constitutional Reform in the States
Chapter XXIV. Woodrow Wilson and the New Freedom
Wilson's Conception of the President as a Prime Minister - The Growth of Executive Ordinance Power - The New Boards and Commissions - Wilson's Reform Program: The New Freedom - The Adamson Eight-Hour Law - Termination of Wilson's Reform Program
Chapter XXV. The Constitution and World War I
Federal Power in Wartime - Wilson's War Dictatorship - The War and the Bill of Rights - The Eighteenth Amendment - The Nineteenth Amendment - The Twilight of Liberal Nationalism - The End of an Era
Chapter XXVI. Reaction and Laissez Faire
The Revival of Dual Federalism: The Second Child Labor Case - Maintenance of the Tradition of National Supremacy - The Sherman and Clayton Acts in Labor Disputes - The Bureaucratic Monster - Federal Grants-in-Aid - The Apogee of Due Process of Law - Due Process and State Police Legislation - Due Process and Civil Rights in the Twenties - Due Process and the Concept of Public Interest - The Executive in the Twenties - Federal Administrative Commissions in the Twenties - The Constitution and the New Prosperity
Chapter XXVII. The New Deal
The First Days of the New Deal - The New Deal before the Court - The "Hot Oil" Cases - The Gold Cases - Schechter v. United States: The "Sick Chicken" Case - United States v. Butler: The Fall of the A.A.A. - Carter v. Carter Coal Company - The Rising Conservative Protest
Chapter XXVIII. The Constitutional Revolution in Federalism 1937-1947
The Election of 1936 - Roosevelt's Court Plan - The Court Accepts Liberal Nationalism - The New Constitutional Law:
Federal Regulation of Labor - Federal Regulation of Agriculture - The Commerce Power and Coal - The Commerce Power and Federal Regulation of Public Utilities - The Insurance Business and Interstate Commerce - The Commerce Power and Navigable Streams - The Spending Power and Public Works - State Tax Legislation and the Federal Commerce Power - Stare Police Power and the Federal Commerce Power - The Decline of Substantive Due Process of Law - Long-Range Implications of the New Era in Federalism
Chapter XXIX. A New Era in Civil Liberties
Freedom of Speech and the Right to Picket - The Fourteenth Amendment, Peaceable Assemblage, and Pamphlet Peddling - Separation of Church and State: Tax Support for Church Schools - Political Minorities - Revival of the Clear and Present Danger Doctrine - Free Speech and Editorial Comment v. Contempt of Court - The Flag-Salute Cases - Bills of Attainder and the Congressional Appropriations Power - The Japanese Minority and World War II - Military Government in Hawaii. Duncan v. Kahaiianwkn - Military Trial of Enemy War Criminals - The Future of Constitutional Democracy
Appendix 1
Appendix 2
Selected Readings
Table of Cases
Index
Introduction
WILLIAM GLADSTONE, the great British statesman and prime minister,
once described the American Constitution as "the most wonderful
work ever struck off at a given time by the brain and purpose
of man." Americans cannot but be pleased by this tribute, and
a historian may well accept it as having a large measure of truth.
The Philadelphia Convention of 1787 was one of the great creative
assemblages of the modern world. It did not, of course, depend
upon pure inspiration, for it had several centuries of English and
colonial constitutional growth to draw upon, and many of the
main principles of American government were already fairly well
established. Yet the creative role of the convention is undeniable.
It fashioned a frame of government embodying the most adequate
mechanism for a federal state ever achieved by man, and it produced
at the same time a brilliant compromise between the requirements
of adequate governmental authority and effective controls
upon the exercise of political power.
Certainly the American Constitution has withstood the most decisive
of all tests that of time. The Charter drafted at Philadelphia
in 1787 is now the oldest written constitution in the world. It has
survived the trials of practical politics, the holocaust of civil war,
and the immense and relentless tide of social and economic change
induced by the industrial revolution. Drafted for an eighteenth century
agrarian republic of less than four million people, the
Constitution now functions adequately as the fundamental law of a
great urban industrial democracy of some one hundred and forty
million souls.
The American Constitution would not have survived 160 years
had it not been an extraordinarily flexible instrument of government.
Flexibility is commonly achieved most readily in those governments
which function without the limitations of a supreme written
charter. But it has been the peculiar genius of the American
Constitution that while its provisions are sufficiently specific and
detailed to provide a necessary element of stability to government,
it has nonetheless proved to be broad and general enough in its
institutional arrangements and grants of power to allow for steady
growth of the ''living constitution" to meet the altered requirements
of a changing social order.
This implies that the American Constitution is something more
than a mere written document. And indeed, in all but the narrowest
sense this is true. A constitution might well be defined as the
fundamental supreme law by which the state is organized and governed.
But a written document, however important, can never contain
more than a very small proportion of the whole body of custom,
tradition, governmental practice, and statutory and judicial
interpretation that functions at any one time as the fundamental
law. Indeed, in the past most states managed to get along well
enough without a formal written charter, although since 1787 nation
after nation has adopted the American idea of committing at
least the bare outlines of its constitutional system to paper. Written
charters still occupy a position of peculiar sanctity and supremacy
in our constitutional system, but the United States is no exception
to the general rule that most of a "living constitution" at any one
time is to be found in contemporary governmental practice.
This fact sets the limits of inquiry and analysis for the study of
American constitutional history. Constitutional history necessarily
concerns itself with tracing the origin and development of all the
principal institutions, practices, customs, traditions, and fundamental
legal ideas that go to make up the whole body of the "living constitution"
today.
What are the forces in American history upon which the student
of constitutional history must turn his particular attention? In one
sense, of course, constitutional history is inextricably bound up with
the entire fabric of American social and economic development. It
is therefore frequently necessary to examine various important
phases of the nation's economic life or a political conflict which
may have altered the nation's entire destiny and the constitutional
system along with it.
In a more immediate sense, actual governmental practice has probably
been the greatest single force in shaping the evolution of the
American constitutional system. The first settlers along the Atlantic
seaboard brought with them a certain English political heritage, but
they began at once to evolve the unique institutions and ideas of
American constitutional government. Before the close of the colonial
era, governmental practice had produced the bicameral system, a
mass of legislative practices relating to procedure and prerogative,
the theory of the separation of powers, and the idea of a supreme
written constitution.
Since 1787 day-to-day governmental practice has been of no less
importance. The first Congress, for example, created the principal
executive departments of government, and turned the barren language
of Article I, Section 8, of the Constitution into the actual
assertion of national authority through the creation of a national
bank, an army and navy, and a nationalistic judicial system. President
Washington found it necessary to make several important decisions
about the nature of the executive office, decisions which
have had a permanent influence upon the scope and character of
presidential authority. The presidential cabinet made its appearance
in his administration, and executive ascendancy in the control of
foreign policy also began at this time. Needless to say, constitutional
growth through actual governmental practice is still going
on. Several of the major federal statutes adopted by Congress in the
"New Deal" era, for example, have apparently worked a more or
less permanent alteration in the scope of national power.
In the seven decades between 1790 and the Civil War, congressional
debate was a major source of constitutional doctrine. Supreme
Court dictum, although already important, was not then universally
accepted as the final word upon constitutional questions. Instead,
prevailing ideas about the constitutional system were in the main
derived from congressional politics. Henry Clay, John C. Calhoun,
Daniel Webster, Robert Y. Hayne, Thomas H. Benton, and the
other great sectional leaders of the day frequently engaged one
another ill great debates upon the nature of the Union and the powers
of the states and of the national government. After Webster's brilliant
oration, "Reply to Hayne," delivered in January 1830, during
the course of an epoch-making Senate debate on the nature of the
Union, most Northerners regarded Webster's forensic effort as the
most authoritative statement upon the sovereign character of the
national government. Southerners, on the other hand, usually relied
upon the constitutional arguments of Calhoun, Hayne, or Robert
Barnwell Rhett. Even today, congressional debate upon constitutional
matters is frequently significant, although it is rarely decisive
in deciding major constitutional issues, most of which are referred
to the courts.
In the last eighty years the Constitution has become more and
more, as Charles Evans Hughes put it in 1926, "what the Supreme
Court says it is." The Court has become the final arbiter of the
American constitutional system. Its opinions on the nature and
scope of federal and state power, on the functions of the various
departments of government, and on the meaning of the written
language of the Constitution have built up a great body of living
and growing constitutional law. Supreme Court opinions are almost
universally accepted as the final word on constitutional questions,
so that in a practical, everyday sense it is this body of constitutional
law rather than the document of 1787 which comprises the "living
constitution" today.
In spite of judicial supremacy, however, it is public opinion and
not the Court that has the last word on constitutional matters.
Although the justices hold office during good behavior and so are
protected against popular political resentment of a momentary or
sporadic nature, they cannot maintain a constitutional doctrine
against long-range, deep-seated majority popular conviction. Judges
are mortal and perforce must eventually die or resign. A constitutional
philosophy dominant for any great length of time in the nation
at large will eventually find expression through Congress and
the President. This in turn means the nomination and confirmation
of judges who accept the verdict of the election returns.
The greatest constitutional issue in all American history, however,
was not settled by the Court or in the halls of Congress but on
the battlefield. The whole nature and destiny of the American Union
was at stake in the Civil War. Lee's surrender to Grant at
Appomattox Court House settled once and for all that the United States
was a sovereign nation and not a mere loose confederation of sovereign
states. Until 1865 that question had been undecided; since
that time no one has questioned either national sovereignty or the
permanent nature of the Union.
American constitutional history falls into three fairly well-defined
periods. The first, from 1607 to 1789, covers the whole colonial
era, the break with Britain, and the achievement of national unity
under the Articles of Confederation and the Constitution. Most of
the principal institutions and ideas of the American constitutional
system made their appearance in this period of almost two centuries,
among them the idea of a supreme written constitution,
the doctrine of limited government, the concept of a federal state,
the separation of powers, bicameralism, and the main principles of
American legislative practice. The era closed with the ratification
of the Constitution, a document embodying the political experience
of the preceding two centuries.
The second period, from 1789 to 1865, began with the establishment
of the national government under the Constitution and ended
with the collapse and failure of the Confederacy's attempt to break
up the Union. The great constitutional issue of this entire period
was that of the ultimate nature of the Union. Had the Constitution
created a supreme sovereign central government or had it merely
brought into being a loose confederation or league of sovereign
states^ Closely correlated with this issue was the question of who
had the final power to interpret the Constitution. Secession finally
transferred both questions from the political arena to the battlefield,
where the "locus of sovereignty" was settled decisively in
favor of the national government.
The third great period in American constitutional history began
in 1865, and has extended to our own time. The era has been one of
large-scale industrialization and urbanization of American life, and
most of its constitutional problems have arisen from successive attempts
to adjust the constitutional system to the requirements of
modern urban industrial society. The powers delegated to the
national government in 1789 contemplated but little assertion of
federal authority beyond the general areas of defense, finance, foreign
policy, and commerce. No one in the Convention had any
knowledge of modern means of communication, railroads, holding
companies, labor unions, hydroelectric power, mass production, or
mechanized agriculture. Modern government has to deal with social
and economic problems arising from all these developments and
many more. The result is a body of modern constitutional law which
the delegates to Philadelphia would no doubt have some difficulty
in recognizing as their handiwork.
One grand theme runs through all three centuries of American
constitutional history. It is the idea of limited government, or what
Professor C. H. Mcllwain has called "constitutionalism." The doctrine
of limited government holds that government should proceed
within the authority of established institutions and laws, that governmental
authority should be limited and defined by law, and that
governmental officials should be responsible to law. A government
of this kind is often, somewhat loosely, described as one of laws
and not of men. Without doubt the evolution of limited government
constitutes one of the most significant chapters in the history of
human freedom. In the twentieth century, when free political institutions
are once again under powerful attack in the Western
world, the central thesis of American constitutionalism is that free
men can solve the problems of modern society under processes of law
and without resort to tyranny.
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