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Home : Quarterly Archives : Volume 26 |
Tredyffrin Easttown Historical Society |
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Source: January 1988 Volume 26 Number 1, Pages 3–9 The Constitution : A Lawyer's Perspective When Peggy Halfpenny, the Executive Director of the Chester County Bar Association, requested that I be the speaker for the Tredyffrin Easttown History Club at your 51st annual dinner, I assented with some reluctance and trepidation, because I am not an historian. (This is not to say that I have not read my share of history, but when I was in college, Shakespeare, Keats, Byron, and yes, even Tennessee Williams and Norman Mailer, were the subjects of my concentration.) With that apologia, I will, in commemoration of this bicentennial year, endeavor to provide the historian with a lawyer's view, though abbreviated, of the United States Constitution. Constitutional law is one -- but only one -- of the many courses the aspiring lawyer must study in law school. With each passing year, the material to be covered in each course expands, especially so, it seems, in constitutional law. Since all of this must be covered, absorbed and remembered, at least until the final exam is successfully completed, it is no wonder that the majority of new lawyers are educated generalists, with only a few specialists. This seems especially to be the case for the majority of lawyers when it comes to a working knowledge of constitutional law. The material is extensive, the opinions often so erudite as to be profoundly tedious, and the cases never-ending. In short, few of us are expert in this area, save, perhaps, the nine justices who sit on the high court and a small cadre of law professors and legal historians. I am reminded of the admonition of C. V. Wedgwood, the biographer of William the Silent, who said that "History is lived forward, but is written in retrospect. We know the end before we consider the beginning, and we can never wholly recapture what it was to know the beginning only." In this bicentennial year, we have spent our time trying to get to know the "beginning only". "The most wonderful work ever struck off at a given time by the brain and purpose of man", as British Prime Minister William E. Gladstone described the Constitution in 1876, was actually a very practical legal document born of necessity, yet brilliantly conceived and executed. By the end of the Confederation, the fault line in the new nation between the possessors of considerable property and the common people was clearly drawn. People of property wrung their hands at the thought that the lower classes would eventually secure control of all state governments, as had by then already occurred in Rhode Island, with the anticipated result that property interests everywhere would suffer to the point of confiscation. Thus was born the central idea with which the Convention was approached in Philadelphia: that of a strong central government which would be independent of state control, and would possess the power and the purpose to protect individual property rights. Selection of the delegates to the Philadelphia Convention was made by the various state legislatures, most of which were, as noted, still controlled by men of property. A total of 73 men were elected -- Rhode Island refused to send any delegates -- but only 55 of them actually attended the Philadelphia Convention. Fortunately, it appears that the best men that could be found were those actually chosen to attend the Convention. It has been suggested that these men were anti-democratic, but in point of fact there were divergent political and philosophical opinions among them, even as there are among men today. There were, as you know, great debates at the Convention, during which two principal designs were proposed. The first was the Virginia Plan, which benefitted the large states; the second, the New Jersey Plan, was designed to protect the small states. Finally the "Great Compromise" was suggested by such men as Benjamin Franklin. An accord was reached, and the composition of the legislative branch that we know today was established. This was much to the credit of James Wilson of Pennsylvania, who insisted that "The majority of people, wherever found, ought in all questions to govern the minority". Acceptance of the final draft was, however, tentative on the part of all the delegates, with none completely happy about the result. With this grudging acceptance, the seeds of the great document's success had been planted. A compromise finally had been achieved that was acceptable to the forty-two delegates who stayed on in Philadelphia to sign it. Over the years that followed, an eclectic American society has adapted it to the pressures and complexities of a diverse people as readily as did our forefathers to theirs. Franklin D. Roosevelt, who could turn a phrase with the best of them, described so well this marvelously elastic political compact. Said he, "Our Constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis." Hammered out of political and philosophical debate and practical necessity during the spring and hot summer of 1787, some thought the Constitution would not survive 25 years, much less 200 years. William Petterson, a New Jersey delegate (and later a Supreme Court Justice from 1793 to 1806), bristled at the thought of a strong centralized national government when he shouted, during the debates, that "The people of America are sharp sighted and will not be deceived". Two centuries of legal and political history have proven Justice Patterson's observation to have been correct. John Quincy Adams, our sixth President, observed that the seven-thousand word compact which is the American Constitution had been "extorted from the grinding necessity of a reluctant nation". Yet he recognized as a fundamental American truth the Constitution's dependence upon "the good sense and attachment of the people". That attachment has endured through a tempestuous and exciting relationship. Indeed, American opinion about the wisdom and greatness of this document has not always and everywhere been unaminous among us. Even little James Madison (he was five feet four inches tall and weighed about 100 pounds), considered the principal architect of the Constitution (and later the fourth President), thought it would "neither sufficiently strengthen the national government nor prevent local mischief." Yet it was his towering intellect that went beyond the more common radical democratic philosophy of his day and recognized that a delicate balance of power must be struck between and within the national government and the states. Thus were born Articles I, II and III, which define and segregate the legislative, executive and judicial branches, for reasons now so well known to all of us. The success of this one idea is seen in its emulation by all fifty of the United States. To be sure, not everyone has been totally happy throughout. "A covenant with death and an agreement with hell" is what William L. Garrison of the Massachusetts Anti-Slavery Society called the American Constitution in 1843. Fortunately, the great document, and the nation with it, survived his condemnation, and shortly thereafter a great deal more. It is not merely the Constitution itself that has permitted that survival, but also our uncanny ability and fierce desire to work within its framework by, as Doctor Franklin described it, "close attendance and continual reasonings with each other". That, after all is said, is the beauty of the document. It allows for those close encounters and continual reasonings to occur just because it was an honestly conceived document, truly believed by its drafters, and perceived so to this day by all who live under it. In retrospect, what George Washington, president of the Convention, said proved to be the truth: "If to please the people we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair." During the last week of the Convention, George Mason of Virginia proposed that a Bill of Rights be appended to the drafted document prior to its adoption. This was not to occur, however, until Congress approved the first ten amendments and they were ratified by the states in 1791. We lawyers are especially and justly concerned with the protection and preservation of individual rights as expressed in these and the sixteen subsequently adopted amendments. A list of cases too long to repeat here echoes the truth of what Madison was later to predict. When it fell his chore to shepherd through the House of Representatives those first ten amendments, he argued in their favor that they would envelope the judges of American courts in the defense of individual rights. "If," he said, "they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." Whether or not Madison foresaw all that was to come within the framework of American jurisprudence in the exposition of these individual liberties, while an apt subject for historical scholarship, is less important than what those who followed found clearly, if somewhat and sometimes latently, to exist within the remarkable Constitution. The concept of "due process of law", for example, which finds expression in the Fifth Amendment, appears to have originated in the year 1355 in the twenty-eighth statute of Edward III: "No man of what state or condition he be, shall be put out of his lands or tenements, nor taken, nor imprisoned, nor disinherited, nor put to death, without he be brought to answer by due process of law." Originally conceived to cement a method of procedure to protect individual rights, less than eighty-five years after its adoption the Fifth Amendment had, by judicial interpretation, become a constitutional test of the substantive validity of legislative enactments which affect personal liberty. Strangely, there was precious little debate on the subject of the federal judiciary during the Convention. Article III, which established the judiciary, comprises only six paragraphs of text, while Articles I and II, which established the legislative and executive branches of government contain 53 and 13 such paragraphs, respectively -- most of which are much longer than those appearing in Article III. And curiously, the Constitution says nothing with regard to the power, which the judiciary soon assumed, of declaring invalid such laws as in its opinion were contrary to the Constitution. This, of course, is a power which has become the most characteristic feature of the American judiciary, the subject of acrimony, and a powerful weapon in the hands of the courts. Contrary to the assertions of some legal writers and historians, James Madison's handwritten notes of the Convention debates make clear that the delegates understood that a law in violation of the Constitution would clearly be considered as null and void by the Judges. There was a motion to give the Supreme Court a qualified veto over laws enacted by Congress; it was voted down because a majority of the delegates believed that this was an inherent authority which would be exercised by the Judges in any event. It seems clear, therefore, that the doctrine of judicial review can hardly be regarded as a "stolen" power which the delegates never intended the Judges to exercise. Perhaps, however, they did not think through the logical extension of what they had written. The Judiciary Act of 1789 was passed by Congress to designate the appellate jurisdiction of the Supreme Court, as well as to designate those legal writs which could be issued by it. This led to the case which established the "Doctrine of Judicial Review", Marbury v. Madison. The political battles at that time were between the Republicans and the Federalists. As the term of President John Adams was about to end in 1801 a flurry of appointments to fill the minor judicial posts by the Federalist Adams' administration resulted in the appointment of a Mr. Marbury to the office of District Justice for the District of Columbia. John Marshall was Adams' Secretary of State and for some reason Marbury's appointment was not consummated. The administration then changed hands, and Thomas Jefferson's first term as President began, with James Madison named Secretary of State. At this point, Marbury sought a writ of mandamus -- a writ which compels a public official to perform a ministerial act -- in the Supreme Court to force Madison to appoint him as District Justice. In 1803 John Marshall, by now Chief Justice Marshall, found in favor of Madison and against Marbury, in a now-famous, and hotly debated, decision which has never been reversed. The distinction which Marshall drew was a fine one. Basically, he said the Constitution gave the Supreme Court original jurisdiction in certain matters and appellate jurisdiction in others, that Congress did not have the authority to apportion the judicial power between the Supreme and the inferior courts according to its will, and that Congress was not at liberty to give the High Court appellate jurisdiction where the Constitution had declared that jurisdiction to be original, and vice versa. Accordingly, he declared that the Act authorizing the issuance of a writ of mandamus by the Supreme Court to a public official, such as Madison, was not authorized, and would be viewed by the Court as repugnant to the Constitution. Today the awesome power of the United States Supreme Court is an accepted fact of American life. It should come as no surprise, therefore, that appointments to the High Court often engender intense political and philosophical debate, as was recently the case in the Bork hearings. Regarding the issue of the preservation of individual rights and freedoms, no perspective of the Constitution would be complete without some mention of judicial interpretation under the Bill of Rights. Freedom of speech, freedom of the press, protection against unreasonable searches and seizures, the right to be confronted by your accusers in a criminal trial and the presumption of innocence are but a few of these guaranteed rights which invariably spark heated public debate. I regret that time does not permit me tonight to expand on this concept by exploring deeply what, for me, is one of the most interesting and elusive concepts, that of freedom of speech as it relates to what broadly has been categorized under the heading of "obscenity". Back in the last quarter of the 19th century, various "vice societies", such as the New York Society for the Suppression of Vice, led by one Anthony Comstock, lobbied for tighter censorship laws. (Among the targets of these societies were such writers as Stephen Crane, Walt Whitman, John Dos Passos, Theodore Dreiser, Aristophanes, Voltaire and Sigmund Freud.) Nevertheless, the constitutional status of obscenity did not reach the Supreme Court until 1948, and was not decided until 1957, in Roth v. the United States. Before the decision in this case was written by Justice Brennan, one of my favorite stories had already unfolded. Perhaps some of you are familiar with a wonderful compendium entitled Reading I Have Liked, edited by Clifton Fadiman, the first edition of which appeared in 1941. In that book appears the decision of the Honorable John M. Woolsey, a Judge on the United States District Court for the District of New York, ending a 12-year battle over the admission of James Joyce's novel, Ulysses, into the United States. Those of you who have read -- or have attempted to read -- Ulysses will perhaps understand why this turmoil existed. Mr. Fadiman found Judge Woolsey's decision to be a "declaration of historic importance, even though it only deals with a book most people will never read". He compared it with the Peter Zenger case, which at that time seemed unimportant but, in retrospect, became part of the charter of our liberties, establishing the principle of a free press. I particularly like Judge Woolsey's decision because he said what I thought when I read the book myself: "It is not an easy book to read. It is brilliant and dull, intelligible and obscure by turns. . . . But my considered opinion, after long reflection, is that while in many places the effect of Ulysses on the reader undoubtedly is somewhat emetic, nowhere does it tend to bean aphrodisiac." He completed by saying "Ulysses may. therefore, be admitted into the United States". By turns thereafter, the Supreme Court established varying tests by which to measure that which is obscene and that which is not. Even in the most objective, honest, knowledgeable and intelligent person -- one with impeccable credentials of the average Supreme Court Justice -- viewpoints tend to be molded by upbringing, environment, and the current mores of society. The Roth obscenity test of "appeal to prurient interests, patent offensiveness, and lack of redeeming social value" finally gave way in the now-famous Redrup decision in 1967 to the exasperating conclusion that obscenity could not be defined, and that nothing was obscene and outside the protection of the Constitution unless determined to be so by the subjective judgment of a majority of the Justices. Subsequently, the Court reversed more than two dozen obscenity convictions under the Redrup decision. However, between 1969 and 1971 President Richard Nixon appointed Warren Burger, Harry Blackmun, Lewis Powell and William Rehnquist, in that order, to the High Court. Thereafter, in 1971, Justice Burger wrote the opinion in Miller v. California, which was joined in by Justices White, Powell, Blackmun and Rehnquist, in which the majority emphasized that obscene material was not protected by the First Admendment, and an objective test was once again established. Just recently that test has been refined and strengthened by Justice White's decision in Pope v. Illinois. And so it goes. It is all part of an ebb and flow that has continued now for two hundred years.
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