(From Grolier Multimedia Encyclopedia)

Constitution of the United States

Constitution of the United States, the fundamental law of the United States of America. Drafted by the Constitutional Convention in Philadelphia, Pa., between May 25 and Sept. 17, 1787, it is the world's oldest written constitution still in effect. The document presents a set of general principles out of which implementing statutes and codes have emerged. As such, it embodies the essence of constitutionality—that government must be confined by the rule of law.

The success of the framers of the U.S. Constitution in writing a document geared to serving the varied and changing needs of Americans has been complemented by an ability on the part of successive Congresses and courts to readapt it to these changing demands. The Constitution's 27 amendments, added over a period of 200 years, have in most cases plugged minor loopholes rather than changed the focus or the general structure of the document. As Pres. Franklin D. Roosevelt stated in his first inaugural address on March 4, 1933, "Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form. That is why our constitutional system has proved itself the most superbly enduring political mechanism the modern world has produced."

Basic Principles. The Constitution was a product of the thought of the 18th-century "Age of the Enlightenment." European and American philosophers, such as John Locke, Voltaire, Montesquieu, and Thomas Paine, attacked despotic government and advanced the following ideas: that government comes from below, not from above, and that it derives its powers from the consent of the governed; that individuals have certain natural, inalienable rights; that it is wise and feasible to distribute and balance powers within government, giving local powers to local governments, and general powers to the national government; that all persons are born equal and should be treated as equal before the law.

The framers of the U.S. Constitution sought to do what, as yet, Europeans had not tried: to make these Enlightenment ideas the governing principles of a nation. Hence, the document stressed that the people were forming the government and were themselves dividing power in such a way as to afford checks and balances on its use and potential abuse.

The allotting to the federal government of only those powers specifically delegated—a principle that was further bolstered by the addition of the 10th Amendment—made clear that the residual powers would remain with the local units of government. The creation of three separate branches within the federal structure, each in numerous ways dependent upon the others for its healthy functioning, afforded another way to ensure that federal power would not be used indiscriminately. The extensive powers of the president likewise were proscribed in a number of places by designated responsibilities. The judicial power, which the framers clearly intended to "extend to all cases, in law and equity, rising under this Constitution, the laws of the United States, and treaties made under their authority," was to be wielded by judges, "holding their offices during good behaviour"; explicit jurisdiction of the courts was subject to congressional definition and, by implication, redefinition.

Indeed, so impressed were certain of the framers with the viability of Montesquieu's concepts of separation and balance of power that John Adams counted eight explicit balancing mechanisms and proudly proclaimed them as evidence of the Constitution's republican virtue. These instances of government branches checking one another were as follows: (1) the states v. the central government, (2) the House v. the Senate, (3) the president v. Congress, (4) the courts v. Congress, (5) the Senate v. the president (with regard to appointments and treaties), (6) the people v. their representatives, (7) the state legislatures v. the Senate (in the original election of senators), and (8) the Electoral College v. the people.

Individual Liberties. No bill of rights was included in the original document. It was considered unnecessary by many of the framers because of the fact that Congress' powers were delegated and this precluded their being used to deprive man of his inalienable rights. However, a number of basic protections were spelled out. Such traditional guarantees of Anglo-Saxon liberty as habeas corpus and protection against ex post facto laws and bills of attainder were included, along with the assurance that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

As to the principle that men should have equal rights and opportunities so far as society can assure them, the Constitution was without specific mechanisms for their attainment. But its clear thrust—that men create government to secure their rights; that such a government should be a government of laws and not of men; and that when government fails to serve men well and equally it should be replaced—institutionalized a presumption of equality, which later generations found they could work for within the basic constitutional structure.

Historical Background

The Articles of Confederation, which had been framed when British armies were in America and hostility to centralized British tyranny was at its peak, had so implemented American anathema to strong national authority as to leave most effective governmental power in local hands. Upon ratification of the Articles in 1781, the problems inherent in the weak confederation structure became apparent. Change was essential.

Government Under the Articles. Lacking both a national executive and a national judiciary and with no effective power to raise and utilize national military forces, the central government was unable to enforce its laws. It could not impose its will on its own citizens directly and therefore could not prevent violations by a state of the rights of another, nor could it conduct effective relations with foreign powers. Further, the requirement of unanimous support of all 13 states for amendment of the Articles virtually precluded strengthening the central government through normal processes.

Critical developments in the Confederation period demonstrated the necessity for a sharply different approach to the solving of American governmental problems—the need for a "more perfect union." Obviously, American interests in international relations had to be protected. England had refused to advance diplomatic recognition and was exploiting American weaknesses in world trade and hindering westward settlement through intrigue with Indians. Spain was working to seize economic control of the lower Mississippi valley, even to the point of encouraging the secession of American communities there.

There also was a pressing need for powers that would enable the central government to promote economic development in an orderly manner. The credit of the new nation was precarious because of the inability of the central government to tax and to redeem its domestic and foreign obligations, and the domestic economy was throttled by a mass of prejudicial interstate commercial barriers and discriminations. Internal domestic antagonisms actually had burst into open revolt in defiance of federal authority, most notably in Shays' Rebellion in Massachusetts (1786–1787).

Revision Plans. Talk of revision had grown steadily. Alexander Hamilton, for one, had been dissatisfied with the Articles from the start. Several attempts to amend them failed, and state representatives met at Mount Vernon in 1785 and Annapolis in 1786 to consider various alternatives.

Following Annapolis, the Confederation Congress responded cautiously but favorably to a resolution for a special convention so long as the "sole and express purpose" was revising the Articles. Five states named delegates in 1786. Shays' Rebellion speeded the process in the others. By 1787, 12 states (all but Rhode Island) had named 73 delegates, 55 of whom came to the Philadelphia Convention and 39 of whom eventually signed the Constitution.

The Convention of 1787

The convention delegates agreed that a new constitution was needed. However, many controversies had to be resolved before one could be drafted. A basic issue was the extent of powers to be granted to the national government, and a major obstacle was the conflicting interests of large and small states.

The Framers of the Constitution. The activists who sought a new effective national structure were a singular group. Predominantly educated and respected men of affairs, some with considerable wealth, they had in many cases participated prominently in the unified national effort against the British in the Revolutionary years, therein sublimating their local interests to the broader national cause. George Washington (who presided over the convention), James Madison, Alexander Hamilton, James Wilson, John Jay, Rufus King, Edmund Randolph, Gouverneur Morris, and Benjamin Franklin all had served either in the army or as diplomats or key administrative officers of the Confederation government or members of its Congress. These Convention delegates were younger than such apprehensive localists as Samuel Adams, Patrick Henry, Richard Henry Lee, and George Clinton, who still feared the experience of centralized British rule, and whose minds could not embrace the concept of a national interest in which they themselves might share.

The future framers of the Constitution were not so transfixed by the specter of national authority as to feel that any departure from tight local political control would destroy local interests. Conscientious students of comparative government and of America's prior experience, they aimed to create a workable republican structure, strong enough to establish national supremacy and to control "the turbulence and follies of democracy" but limited enough to ensure individual self-determination within a structure of ordered liberty. Their differences lay primarily in means. Their common objectives were summarized by Madison as "the necessity of providing more effectively for the security of private rights and the steady dispensation of justice."

The Alternatives. Disregarding its mandate for amendment, the Convention began to consider plans for new governmental structures, developed in advance by various delegates. Edmund Randolph's Virginia Plan, a product of the Virginia delegation in which James Madison took a prominent part, proposed an all-powerful national state allowing only the most limited local authority. This proposal was disturbing to defenders of local interests, especially in the small states, who objected particularly to the failure to provide for state equality in at least one of the houses of the national legislature.

Although Madison and James Wilson of Pennsylvania argued that in a proportionate system the people as such, rather than the states, would be represented, and consequently the people of the small states would have the same representation in Congress as those of the large states, small-state delegates remained unconvinced. Their spokesman, William Paterson of New Jersey, proclaimed that his state would "rather submit to a monarch, to a despot, than to such a fate." Failing to achieve some provisions for representation by states within the context of the Virginia proposal, Paterson put forward a counterproposal. His New Jersey Plan tightened up some glaring weaknesses of the Articles but still made major concessions to state autonomy.

The Compromises. The basic issues of government structure and powers had to await settlement of pressing points of friction. First, small-state apprehensions were calmed by the Connecticut, or "Great," Compromise. Every state was conceded an equal vote in the Senate irrespective of its size, but representation in the House was to be on the basis of the "federal ratio"—an enumeration of the free population plus three fifths of the slaves. It was agreed that the same ratio would apply for determining state taxation, and the House was given the prerogative of introducing all money bills.

Other compromises were needed to smooth sectional and economic antagonisms. The merchant-minded North was assured full federal protection of trade and commerce, while the agrarian South was guaranteed permanent relief from export taxes and assurance that the importation of slaves into the United States would not be prohibited for at least 20 years. Similarly, earlier Northern attempts to trade to Spain Southern and Western territorial rights led to successful demands from those sections for a two-thirds Senate ratification of all treaties. The same 2/3 ratio was applied in defining both the proportion of senators necessary to approve executive appointments and that to override presidential vetoes of congressional legislation.

Basic Decisions. The settlement of such controversies permitted a return to the two central issues of federalism: (1) granting to the federal government sufficient power to enforce its will and (2) finding ways of limiting popular democracy. Working with the Randolph plan as a point of departure, the convention delegated various explicit powers to the federal government (Article I, section 8) and left the residue, with some exceptions (Article I, section 10), to the states; certain areas were to be open to concurrent authority. It created a three-branch government, both to implement the new grants of federal authority and to balance local interests when that necessity arose.

Reflecting the general fear of all the delegates of the potential "tyranny of the majority," the convention adopted what Madison called a "policy of refining the popular appointments by successive filtrations." Accordingly, it provided for the indirect election of the president through an electoral college, made senators elective by state legislatures, and assured that federal judgeships be appointive. Originally, only the House was to be elected by direct popular vote.

The new government was afforded what Oliver Ellsworth referred to as the "coercion of the law." It had the power to execute federal authority directly on the people, and all state officials were bound by oath to engage cooperatively in furthering the process (Article IV).

Other Conflicts. Many aspects of framing the Constitution produced bitter and detailed controversy, particularly the manner of election of the president and the nature of his office and powers and the proper role and function of the federal courts. A strong-executive party headed by Madison, Wilson, and Gouverneur Morris of New York argued that free government demanded independently constituted executive, legislative, and judicial branches and defeated a move to have the executive chosen by Congress. Thus the possibility of a parliamentary-cabinet form of government was precluded at the outset.

Luther Martin of Maryland, an eloquent champion of states' rights, afforded a way out of a lengthy controversy over the role of the judiciary in maintaining the supremacy of federal legislation by making the state courts an agency for enforcing federal law. This maneuver, however, later was converted into an instrument for nationalism, when state court actions were held to be subject to the surveillance of the U.S. Supreme Court.

The Document. On September 8 the rough document was entrusted to a committee on style, where Gouverneur Morris led in polishing the language. On September 17 the finished Constitution was engrossed and signed "By the unanimous consent of the States present." Few, if any, of the framers felt that they had created a perfect instrument of government. But they did feel that the new Constitution was something a majority of people could be persuaded to accept.

As time was to prove, the original document had many flaws. The precise limitations on national power over individual liberties, considered superfluous by the framers, soon had to be spelled out through the amendments constituting the federal Bill of Rights. The authority and power of the federal courts, both in regard to judicial review and in questions of their relations with state courts, was not well defined until a later series of strong rulings by Chief Justice John Marshall. The nature and extent of the implied powers of Congress produced two decades of controversy. The failure to define the precise locus of sovereignty left open a door for a vigorous states' rights movement and led ultimately to the Civil War. It took the same national emergency to clarify many of the powers of the presidency, especially in crises.

On the other hand, the document was remarkable in the boldness with which it sought to extend to the entire nation the heretofore limited and localized American experiment with republicanism. The framers of the Constitution envisaged the conduct of national affairs by all citizens and anticipated that such conduct would result in advancing the welfare of all citizens. This took both breadth of vision and a healthy confidence in the potential wisdom and responsibility of the electorate. It was the boldest step toward government of, by, and for all the people yet undertaken by Western man.

Ratification of the Constitution

The process of ratification of the new framework of government began immediately after the convention. The required approval of specially elected conventions in nine states was achieved on June 21, 1788, with the acceptance of New Hampshire. However, ratification was not completed for another two years (see table). The organization, enthusiasm, and energy of the Constitution's supporters were major assets in what proved to be a difficult campaign.

Ratification of the Constitution

State Date of ratification
Delaware Dec. 7, 1787
Pennsylvania Dec. 12, 1787
New Jersey Dec. 19, 1787
Georgia Jan. 2, 1788
Connecticut Jan. 9, 1788
Massachusetts Feb. 6, 1788
Maryland April 28, 1788
South Carolina May 23, 1788
New Hampshire June 21, 1788
Virginia June 25, 1788
New York July 26, 1788
North Carolina Nov. 21, 1789
Rhode Island May 29, 1790

The Opposition. Anti-Federalist opponents of the new Constitution were quick to raise objections to it and equally quick to play on apprehensions, particularly prevalent within the lower classes, that a remote and powerful central government would become an instrument for aristocratic tyranny. The self-proclaimed heirs of the true spirit of the Revolution were convinced that the republican principle, which they embraced locally, could not be extended to encompass all 13 states without the creation of a type of central authority that would suppress individual rights and local interests. The lack of a bill of rights to check such abuse seemed particularly unjustified and suspicious to them. Thus, they launched campaigns against the document, which were sufficiently aggressive to force its champions to produce elaborate defenses.

The Defense. Campaigning was especially vigorous in the crucial and pivotal states of Virginia and New York. In support, Virginian James Madison and New Yorkers Alexander Hamilton and John Jay published a series of propaganda pieces on the virtues of the new Constitution. These Federalist papers pointed out the reasons for the structure of the new government, the benefits to all Americans from its operations, and the functionalism of the Constitution's explicit solutions to small but perennial governmental problems. The Federalist papers accomplished their purpose in Virginia and New York, although they were, respectively, the 10th and 11th states to ratify. Furthermore, by stating the persuasive rationale for a balanced, representative, republican government operating on the federal principle, the Federalist papers became a classic treatise in political theory.

Historical Interpretation

The view held by Americans of the "Founding Fathers" and the framing and ratification of the Constitution has changed through history, reflecting the values and interests of different periods. During the 1800s, in an era of domestic insecurity and international self-consciousness, most Americans were committed to defending the virtue of their own gallant origins to an extent that virtually necessitated apotheosizing the framers. The Progressive era of the early 1900s, however, found many reformers impatient with a static legal structure operating, they felt, to serve only vested interests. Hoping to provide a new rationale for sweeping constitutional reform, they set out to question the boasted divinity of its origins.

In this spirit, Charles A. Beard's An Economic Interpretation of the Constitution (1913) recast the founding fathers as men with decided personal economic interests, framing the Constitution and pushing its ratification with an idea of personal advancement. Beard explored these men's economic status and maintained that their efforts had strongly undemocratic overtones in their desire to put forward an instrument of government under which they would benefit most. Such a view had wide support from liberals for more than three decades, especially in the economically conscious depression years of the 1930s.

Cold War tensions underlay the emergence of a generation of scholars in the 1950s and 1960s who, while not returning to the earlier veneration of the framers, sought to revive their unselfish reputation. Led by Robert E. Brown and Forrest McDonald, these critics questioned Beard's research and assumptions. They argued that there was no evidence to support the contention that supporters and opponents of the Constitution could be divided along lines of economic affluence or economic activity. They also questioned whether the successful ratification struggle represented a devious and undemocratic triumph over the wishes of a majority of the people.

In turn, Jackson T. Main challenged the assumptions and evidence of these men, and Stanley Elkins and Eric McKitrick raised questions as to whether the probing for economic evidence, which had occupied a half century of historical scholars, might not be missing the point. Elkins and McKitrick argued that the struggle for a new governmental framework "was not fought on economic grounds; it was not a matter of ideology; it was not, in the fullest and most fundamental sense, even a struggle between nationalism and localism. The key struggle was between inertia and energy; with inertia overcome, everything changed." The issue of the motivations of the framers of the constitution remains one of the central bones of contention in American historical scholarship.

The Amendments

In its first 200 years of operation, the Constitution proved remarkably flexible. The nature of the government of the United States changed greatly, but most changes evolved from new interpretations of the document. Formal amendment proved necessary in only 27 instances, and these occurred mainly in spurts, as during the Reconstruction and Progressive periods. However, many of the 27 amendments provided for fundamental social and procedural adjustments.

The Bill of Rights. During the struggle for ratification critics of the Constitution leaped on the omission of a bill of rights as a serious danger. Richard Henry Lee argued that the Constitution, if adopted unamended, would "put Civil Liberty and happiness of the people at the mercy of Rulers who may possess the great unguarded powers given." He demanded such amendments "as will give security to the just rights of human nature, and better secure from injury the discordant interests of the different parts of this union." When the first Congress convened, it was flooded with some 145 proposed amendments. This number was reduced to 12, which on Sept. 25, 1789, were sent to the states for consideration. Ten were finally ratified and went into effect on Dec. 15, 1791.

The 1st Amendment guaranteed protection of such substantive rights as freedom of speech, press, assembly, and petition, while providing complete religious freedom and separation of church and state. The 2d and 3d amendments guaranteed the citizen's right to bear arms and forbade the government to quarter soldiers in private homes. Amendments 4 through 8 contained basic procedural guarantees long common to Anglo-Saxon justice: freedom from unwarranted search and seizure (4th); guarantees against double jeopardy, self-incrimination, and the loss of liberty or property without due process of law (5th); right to a speedy and fair trial with adequate counsel (6th); trial by jury (7th); and protection against excessive bail and cruel and unusual punishment (8th). The 9th and 10th, dealing with rights held by the states and the people, were included primarily to calm the apprehensions of states' rights advocates who worried about the potential appropriation of reserve power by the national government. In later years, as the federal government did seek to assume more functions, the 10th became a major weapon of laissez-faire interests in their fight for "dual federalism" and against what they considered unwarranted national coercion; it also was cited frequently by opponents of racial desegregation.

Amendments 11 and 12. The 11th Amendment (proclaimed Jan. 8, 1798) was enacted to override a Supreme Court decision (Chisholm v. Georgia, 1793). The product of states' rights protests, it was designed to keep suits between states and their citizens out of federal courts.

The 12th completed the first cycle of revision by amendment. Proclaimed Sept. 25, 1804, in time for the presidential election of that year, it clarified the electoral procedure that had produced a hopelessly confused result in 1800, redefined the vice presidency in its relation to the presidency, and unofficially recognized the existence of political parties (which the framers had not anticipated).

Reconstruction Amendments. The 13th Amendment (proclaimed Dec. 18, 1865) represented the first attempt at broad-scale social reform through the amendment process. In abolishing slavery and involuntary servitude, it was the logical culmination of Lincoln's emancipation policies and the legal victory for which two generations of abolitionists had worked.

The 14th Amendment, which has produced more litigation and court interpretation than any other part of the Constitution, originally was enacted to protect freed slaves from the abrogation of their rights by the Southern states. By making blacks citizens and by making the federal government responsible for their privileges and immunities, it sought to build a wall of federal protection around them. It was proclaimed on July 28, 1868, after a bitter ratification contest in which Southern states that had formally been declared out of the Union were required to ratify the amendment as a condition for return. The amendment subsequently was modified by the Supreme Court in the famous Slaughterhouse cases in 1873. Although the issue at stake did not concern the rights of African Americans, the decision so diluted federal control over state police powers that the 14th Amendment became a virtual nullity as a protection of the rights of black citizens. On the other hand, its due process clause was turned into a legal protection for property—especially giant corporations—against state regulatory legislation in the years after 1880. After 1925 the 14th Amendment became the cornerstone of a growing movement to "nationalize" the Bill of Rights against state infringement, and its reinterpretation was the legal heart of the civil rights movement of the 1950s and 1960s.

Another aspect of the program for the newly freed African Americans, a federally protected franchise, was embodied in the 15th Amendment, which was proclaimed on March 30, 1870. Again, however, such federal protection was eliminated by judicial ruling, and only in later years did the federal government actually seek to enforce the amendment against a variety of forms of state disenfranchisement.

Progressive Era Amendments. Another spate of amendments grew out of the politically active Progressive period. A federal income tax was authorized by the 16th Amendment (proclaimed Feb. 25, 1913), providing an effective revenue source to meet an expanding federal budget. By 1912 many states were nominating senatorial candidates through direct primaries with pledges then obtained from state legislators to support such choices. The 17th Amendment (proclaimed May 31, 1913) made the direct, popular election of senators mandatory.

The 18th and 19th amendments reflected other manifestations of progressivism. With curtailment of alcoholic beverages demanded as part of the war effort in World War I and the moral fervor of the war widespread, temperance advocates succeeded in imposing a "noble experiment"—nationwide prohibition—through the amendment process. The 18th, or Prohibition, Amendment (proclaimed Jan. 29, 1919) proved to be abrasive and was defied openly; the federal government was relieved of the further necessity of enforcing it by the adoption of the 21st, or Repeal, Amendment on Dec. 5, 1933. The 19th Amendment (proclaimed Aug. 26, 1920) extended the suffrage to women.

Later Amendments. The 20th, or Lame Duck, Amendment was an important accommodation to modern needs. Proclaimed Feb. 6, 1933, it shortened the period between the election of the president and his inauguration, advancing the latter from March 4 to January 20. It also eliminated the session of Congress that had been held in the interim period and that often had resulted in questionable actions instituted by defeated lawmakers before they left office.

The 22d Amendment (proclaimed March 1, 1951) officially limited the president to two terms or not more than ten years in office. The 23d (proclaimed April 3, 1961) gave residents of the District of Columbia the right to vote for president and vice president. The 24th Amendment (proclaimed Jan. 24, 1964) invalidated the use of the poll tax or other taxes as a condition for voting in federal elections.

The crises caused by the illnesses of President Dwight D. Eisenhower and the assassination of President John F. Kennedy led to the enactment of the 25th Amendment (proclaimed Feb. 24, 1967), which provides for situations of presidential disability and ensures that any vacancy in the office of vice president is filled. By the 26th Amendment (proclaimed July 5, 1971), the legal voting age was dropped from 21 to 18 for all elections. The 27th Amendment, the so-called Madison amendment, first proposed in 1789 (proclaimed May 20, 1992), prohibits midterm changes in the salaries of members of Congress. In addition, to prevent centuries of delay from becoming precedent, Congress also passed a resolution that declared four other long-outstanding amendments invalid.

Judicial Interpretation

The precise role of the judiciary in interpreting the Constitution and the statutes enacted under it evolved slowly. Acceptance of the Supreme Court as the ultimate and single authority on the subject of constitutionality did not become fully established until the late 1860s. Subsequently, the court's role continued to grow, and judicial interpretation remains the chief means of keeping the Constitution in tune with modern life.

Judicial Review. In the early national period congressional debate, executive pronouncements, and even theories of influential statesmen were as significant sources of constitutional doctrine as were court rulings. Nonetheless, the principle of judicial review (the power of the Supreme Court to rule acts of Congress unconstitutional) was claimed for the court by Chief Justice John Marshall in Marbury v. Madison in 1803.

At the outset, conservatives such as Alexander Hamilton had argued that this power of the court was an essential limit on the elective branch of the government. Marshall enhanced the power and prestige of the court by utilizing fully its accepted function of statutory interpretation. Interpreting constitutional law through relevant state and federal statutes, the Marshall court gave explicit meanings to broad and frequently ambiguous provisions. This judicial practice has enabled justices throughout American history to adjust and adapt the law to the pressing and changing social and economic needs of American society.

Thus, while the theory often prevailed that judges merely interpreted the law, almost from the outset they had the further clear, if not specified, responsibility for assuring its viability. In the words of Woodrow Wilson, the court, in many ways, constituted a "permanent constitutional convention." Charles Evans Hughes once remarked: "We are under a Constitution but the Constitution is what the Judges say it is."

Such judicial prerogative is not unlimited, however. Court actions must have a feeling for contemporary reality, or ways will be found to undermine the further use of judicial power.

Changing Interpretations. Supreme Courts have been shaped philosophically by their members, particularly by the chief justice. To preserve the new constitutional experiment, the Marshall court sought protection for men of property who would give the nation stability and permanence. Many legal ways were found to virtually sanctify property rights and ensure federal supremacy. Article I, section 10's proscription of state violation of the obligation of contracts was interpreted to include everything from private contracts to state-granted charters of incorporation to private companies. Interstate commerce, which Congress constitutionally had authority to regulate, was interpreted to include almost every kind of commercial activity. Congress' power over it was complete in itself and could be exercised to its utmost extent, acknowledging no limitations other than those prescribed in the constitution.

In two other areas Marshall set patterns: the supremacy of federal over state courts was established clearly and permanently, and the so-called "necessary and proper" clause (the last of the powers delegated to Congress under Article I, section 8) was interpreted broadly as a positive authorization for Congress to find means to accomplish appropriate national ends.

Jacksonian Democracy placed new emphasis on freer economic competition. As it also placed a new generation of judges on the bench—headed by Roger B. Taney—the law quickly reflected this changed focus. Emphasizing, in his first opinion, that "while the rights of private property are sacredly guarded, we must not forget that the community also have rights," Chief Justice Taney went on to lay a legal basis for freedom of competition, both through encouraging local banking and commerce and by guaranteeing the right of corporations to do interstate business. Corporations were assured of access to federal courts and thereby given protection against the narrow legal localism often used to guard local vested rights. The Taney court also granted the states a new body of police power to better look after the health, safety, and welfare of the citizens. Yet the Taney era ended ingloriously because the dominantly Southern membership of the court sought, as in the Dred Scott decision, to cast the law so as to underwrite Southern assumptions about slavery when the nation was rejecting them.

Under Chief Justice Salmon P. Chase (1864–1873), the court preserved much of the Taney court's attitude toward legal localism, but at times it used the need to protect local sovereignty as an argument against national solutions. Although measures such as the liberal Granger laws of the early 1870s were upheld, much of the liberal Reconstruction legislation, geared toward finding national legal solutions for race relations, was struck down as infringements of local sovereignty.

The courts of the 1880s and 1890s, dominated by such champions of uninhibited property rights as Stephen Field, Joseph Bradley, and Melville Fuller, returned constitutional interpretation to the spirit of the rulings of John Marshall. State legislation was assailed on every side as either a violation of the due process clause of the 14th Amendment or as an improper local infringement on the federal government's commerce power. Federal legislation, such as the Interstate Commerce Act, the Sherman Antitrust Act, and a federal income tax law, similarly was destroyed as unwarranted assault on private property owners.

The Progressive era brought massive demands both for the utilization of government as a prime instrument for social and economic reform and the development of a new sociological jurisprudence that would accommodate the law to the new realities of an industrial, urban, and communal society. The court responded by developing new legal formulas that permitted the validation of broad federal regulatory programs, from the antitrust laws to those of the various new commissions, and evolving a unique body of federal police power through which federal action could be taken to complement the states in the area of health, safety, morals, and welfare. However, at the end of this period the court, confronting the exigencies of a wartime situation, was forced to evolve a new body of law to cope with governmental infringement on various of the guarantees of the Bill of Rights.

The court of the 1920s and early 1930s, while reflecting many of the dominant values of the "normalcy" of the time, seemed curiously out of tune with hard realities. Under Chief Justice William Howard Taft the law once again was restructured so as to give optimum protection to property rights. The "nine old men" of the years before 1937 set themselves the task of continuing such protection, now from the great explosion of New Deal legislation.

However, severely discredited by setting itself so deliberately at odds with the two elected governmental branches, the Court capitulated to presidential pressure in 1937 and charted an entirely new course. It abandoned its traditional role of protecting private property against governmental regulation and instead concerned itself with giving modern, precise meaning to the guarantees of personal liberty in the Bill of Rights and in the 14th and 15th amendments.

Such a role produced a new constituency for the court. Assuming that big government, big business, and big labor had access to the types of political power by which they could protect themselves, the justices sought to provide legal protection for those Americans without such resources. Hence the court sought to "nationalize" various of the guarantees of the Bill of Rights by making them enforceable against the states through the 14th Amendment and to develop new legal ways of guaranteeing civil rights for citizens subject to discriminatory laws and practices.

Many conservatives questioned this new role. One justice in the early 1960s vigorously attacked the view that "every major social ill in this country can find its cure in some constitutional principle, and that this Court should take the lead in promoting reform when other branches fail to act." Nonetheless, this seemed to be the path that the court was launched upon and would continue to follow until public pressure called for a new line of constitutional interpretation.

Paul L. Murphy
University of Minnesota

Bibliography

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Edwards, George C., III, and Walker, Wallace E., eds., National Security and the U.S. Constitution (Johns Hopkins Univ. Press 1988).

Grundman, Adolph M., The Embattled Constitution: Vital Framework or Convenient Symbol? (Krieger 1986).

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