Commentators on the Constitution

Author:Maxwell Bloomfield

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The first important analysis of the Constitution appeared during the ratification contests of 1787 and 1788. ALEXANDER HAMILTON and JAMES MADISON, who had participated in the CONSTITUTIONAL CONVENTION, collaborated with JOHN JAY on THE FEDERALIST (1788), a series of essays defending the proposed new plan of government. Appealing to the rationalistic temper of the eighteenth century, they justified the creation of a strong central government on logical and philosophical grounds, and developed a model of CONSTITUTIONALISM that relied upon structural CHECKS AND BALANCES to promote harmony within the system. Ultimate SOVEREIGNTY, they argued, inhered in the American people; the Constitution, as an instrument of the popular will, defined and limited the powers of both the national government and the states. The Federalist provided valuable insights into the thinking of the Founding Fathers and established the guidelines for further constitutional commentary down to the CIVIL WAR.

Between 1789 and 1860 two major groups of commentators emerged in response to recurring political crises and sectional tensions. Legally trained publicists from New England and the middle states espoused a national will theory of government to justify the expansion of federal power, while southern lawyers and statesmen formed a state compact school of constitutional interpretation that championed decentralization and state sovereignty. Each group approached constitutional issues in a formal and mechanistic way, and relied upon close textual analysis to support its position.

The nationalists argued that the American people, acting in a collective national capacity, had divided sovereign power between the nation and the states and established the Constitution as the supreme LAW OF THE LAND. Under the resulting federal system, the states retained control of their internal affairs but were subordinate to the general government in all important national concerns, including taxation, INTERSTATE COMMERCE, and FOREIGN AFFAIRS. The Constitution, moreover, created a permanent union, whose basic features could be changed only by resort to a prescribed AMENDING PROCESS. Although several nationalists conceded that the Constitution had originated in a compact of the people of the several states, they insisted that such a compact, once executed, was inviolate, and could not be modified thereafter by the parties. Such was the message of NATHANIEL CHIPMAN'S Sketches of the Principles of Government (1793) and William Alexander Duer's Lectures on Constitutional Jurisprudence (1843).

Other advocates of national supremacy rejected contractual assumptions altogether, and moved toward an organic theory of the Union. Nathan Dane, in A General Abridgment and Digest of American Law (1829), contended that the states had never been truly sovereign, because they owed their independence from British rule to the actions of the CONTINENTAL CONGRESS, a national body that represented the American people. The people, not the states, had ratified the Constitution through the exercise

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of majority will; therefore, any state efforts to nullify federal law or to withdraw from the Union amounted to illegal and revolutionary acts. JAMES KENT'S Commentaries on American Law (1826?1830) and Timothy Walker's Introduction to American Law (1837) further noted that the Constitution provided for the peaceful resolution of federal-state disputes through the Supreme Court's power of JUDICIAL REVIEW.

In attacking the compact model of constitutionalism, these commentators stressed the noncontractual language of the PREAMBLE and the SUPREMACY CLAUSE. A similar preoccupation with formal textual analysis characterized JOSEPH STORY'S Commentaries on the Constitution of the United States (1833), the most influential and authoritative statement of the nationalist position. Story, an associate Justice of the Supreme Court, interpreted the Constitution on a line-by-line basis, in light of the nationalistic jurisprudence of JOHN MARSHALL. Like Marshall, he insisted that the powers of the federal government had to be construed broadly, as the Framers had intended. On both theoretical and pragmatic grounds, Story defended the power of the Supreme Court to strike down unconstitutional state laws. Yet he also emphasized the limits of national authority, noting that the states retained control over matters of internal police that affected the daily lives of their citizens. Although Congress alone could regulate interstate commerce, for example, state legislatures might pass health and safety measures that indirectly affected such commerce. By focusing upon questions of terminology and classification, Story sought to demonstrate the stability of the federal system and to place the Constitution above partisan politics.

Nationalist historians described the formation of the Union in similarly legalistic and reverential terms. GEORGE TICKNOR CURTIS'S History of the Origin, Formation, and Adoption of the Constitution of the United States (1854?1858), the first work to deal exclusively with a constitutional topic, quoted at length from the journals of the Continental Congress and other public records, but largely ignored surrounding political and economic circumstances. For Curtis and other romantic nationalists, the Founding Fathers were disinterested and divinely inspired patriots, who enjoyed the full confidence and support of the American people. Only RICHARD HILDRETH'S History of the United States of America (1849?1852) presented a contrary view. Hildreth stressed the importance of conflicting economic groups in the new nation and pointed out that the Constitution had been ratified by conventions representing only a minority of American voters.

Although state compact theorists shared the prevailing belief in a fixed and beneficent Constitution, they deplored what they perceived as the aggrandizing tendencies of the national government. St. George Tucker's "View of the Constitution of the United States," appended to his edition of WILLIAM BLACKSTONE ' S Commentaries (1803), established the basic premises of the southern constitutional argument. The states and their respective citizens, Tucker contended, had entered into a compact?the Constitution?and had delegated some of their sovereign powers to the resulting federal government for specific and limited purposes. Because the Union...

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