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Constituting popular sovereignty: Contests over institutional authority in the early American Republic

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CONSTITUTING POPULAR SOVEREIGNTY:
CONTESTS OVER INSTITUTIONAL AUTHORITY IN THE
EARLY AMERICAN REPUBLIC
Copyright 2002
by
Randa Carolyn Issa
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)
May 2002
Randa Carolyn Issa
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UMI Number: 3073799
Copyright 2002 by
Issa, Randa Carolyn
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UNIVERSITY OF SOUTHERN CALIFORNIA
The Graduate School
University Park
LOS ANGELES, CALIFORNIA 900894695
This d isserta tio n , w ritte n b y
Randa Carolyn Issa
U nder th e d irection o f hs*~. D issertation
0
C om m ittee, a n d a p p ro ved b y a ll its m em bers;
h as been p re sen ted to a n d a ccepted b y The
G raduate School, in p a rtia l fu lfillm en t o f
requirem ents fo r th e degree o f
DOCTOR O F PHILOSOPHY
Dean o f Graduate Studies
. D ate
May 10, 2002
DISSER TATIOMC&a
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Dedication
For my father, George, my brother, Michael, and in loving memory of my mother, Sarnia.
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Acknowledgements
I am very grateful for all the individuals who supported me throughout graduate
school and helped make the completion of this dissertation possible. I thank my dissertation
advisor, Dr. Howard Gillman who planted the idea in my head and guided me to carry it to
fruition. He is a wonderful mentor and I am a better scholar and teacher because of him. Dr.
Gillman, along with Drs. Mark Kann and Terry Seip (who served on my dissertation
committee) read drafts of my chapters, and provided valuable comments to strengthen my
argument and my contribution to the literature. Dr. Wayne Moore read an early chapter and
helped me understand the nature of the debate. Drs. Ann Crigler and Alison Dundes Renteln
have supported by academic endeavors since I was an undergraduate student at USC. A
number of graduate students shared ideas with me as colleagues, and also took the time off
from their busy lives to be my friends. They are: Paul Chen, Avi Davidi, Francene Engel,
Stephanie Hszieh, Sylvia Maier, Kati Mohammad-Zadeh, Nirella Sanfratello, Cheryl
Stewart-Lewis, and Linda Veazey.
I thank Maeva Marcus for inviting me to attend two seminars sponsored by the
Institute for Constitutional Studies in Washington D.C. Professors Akhil Amar, Dennis
Hutchinson (who came up with the idea for a title), Jack Rakove, and William Wiecek led
these seminars and offered valuable comments and suggestions on the dissertation.
This dissertation is dedicated to the most important people in my life. George Issa
has done so much for me and all he gets in return are bragging rights; somehow, however, I
do not think he minds. Michael Issa is a great editor, and I am more computer savvy
because of him. Sarnia Issa lives in my heart, and this dissertation is as much a product of
my own work as it is her enduring love and influence. Thank you.
iii
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Contents
Dedication
Acknowledgements
Abstract
Introduction
The Constitutional Politics o f Popular Sovereignty
Chapter 1
Popular Sovereignty as Creation:
The Explosion o f the People "Out-of-Doors”
Chapter 2
Popular Sovereignty as Interpretation:
Who Shall Interpret?
Chapter 3
Popular Sovereignty as Interpretation, Revisited:
State and Federal Interposition Against the United States Supreme Court
Chapter 4
Popular Sovereignty as Creation, Revisited:
The Re-Explosion o f the People “Out-of-Dorrs”
Conclusion
Constituting Popular Sovereignty: Lessons From the Past
Bibliography
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Abstract
The idea of popular sovereignty is a central concept in American constitutional
theory and a core justification for the rise of federal judicial authority in American political
development. Normative constitutional scholars have attempted to link the concept to
constitutional law either through arguments about the origins of the constitutional text or
through more innovative arguments about how "constitutional moments" lead to changes in
constitutional law. For more empirically-minded scholars, the idea of popular sovereignty
has been tied to Supreme Court politics and has been the basis for explanations about why
judicial review arose in the United States and not (for example) in Great Britain.
In this dissertation, I argue that debates about the meaning of popular sovereignty
provide insights into a wide-range of political practices in the development of the early
American Republic, and not just court- or law-centered practices. Drawing on a new
institutionalist literature that focuses on constitutional politics outside the courts, I examine
the ways in which efforts to institutionalize the idea of popular sovereignty were at the heart,
not just of judicial empowerment, but also of early American disagreements over a range of
institutional powers and relationships, including claims of judicial supremacy, executive
supremacy, legislative supremacy, departmental review, state interposition, the power of
conventions, nullification, and even secession.
Through these debates we can appreciate how the basic institutional design of
American politics remained dramatically unsettled all the way through the Civil War, despite
the apparently settled nature of these questions as expressed in the formal constitutional law
of the period. The eventual link between popular sovereignty and judicial power, therefore,
requires a political explanation rather than merely a legal, normative, or interpretive one.
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Introduction
The Constitutional Politics of Popular Sovereignty
Do not the people constitute the states? Are not the people the
fountain o f all power? & Whether this flow in 13 distinct streams,
or - in one larger stream, with thirteen branches, is not the
fountain still the same? And the majesty of the People
undiminished?
Timothy Pickering (1787)1
Preoccupation with the Supreme Court as the principal and final
arbiter of constitutional questions fosters a misleading
impression.... Judges share with the Legislature and the Executive
the duty of defining political values, resolving political conflict,
and protecting the integrity and effectiveness of the political
process. Constitutional law is a process that operates both inside
and outside the judicial arena, challenging the judgment and
conscience of all three political branches at the national level, the
state governments, and the public at large.
Louis Fisher (1988)2
Introduction
The history of American constitutionalism suffers from three distinct flaws, each of
which is an extension of the other. The usual story of American constitutionalism begins
with the written text of the federal Constitution. Second, the plot is filled with the Federalist
Papers, the correspondences of the Founding Fathers, and other related Federalist and Anti-
Federalists documents. Finally, the story concludes with a court - centered, John Marshall
model of constitutionalism that has its roots in Marbury v. Madison. The first flaw
overlooks a growing trend in the literature that recognizes that many constitutional practices
and changes occur outside the confines of the document (i.e., the rise of federal
government’s power since the New Deal). The obsession with the text also gives the
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judiciary automatic control over interpretation of the Constitution as a legally enforceable
document. With respect to the second flaw, the debates and the correspondences concerning
the nature of the American constitutional order began before the meeting at Philadelphia,
and continued after ratification. Finally, the third flaw overlooks the extent to which the
Federalist vision of constitutionalism was subject to an ongoing debate in the political
system. In addition, this flaw assumes a single authoritative constitutional interpreter (the
courts). Yet, the history of American constitutionalism is filled with examples of nonjudicial
contributions to the constitutional order.
This court-centered, text-obsessed conception of institutional authority has clouded
our understanding of the nature of the constitutional order. Indeed, the history of late
eighteenth and early nineteenth century constitutionalism is characterized by competing
conceptions of how constitutional controversies should be resolved. At the center of this
debate was one of the core concepts of American constitutionalism - popular sovereignty.
Be it in pamphlets, speeches, or newspapers, the framers of the early state and federal
constitutions insisted that the people were the foundation of all authority. No one could
dispute the Madisonian axiom that the people were the only “legitimate fountain of all
power.” However, this agreement over the theory of popular sovereignty did not translate
into an agreement on how it should be put into political practice. In fact, in the years
following the creation of the Republic, the political application of the idea of popular
sovereignty was mightily contested. This was due to the fact that sovereignty (which under
the traditional model was unified) was split among competing institutions, thereby allowing
for contests over its implementation.
The reason why there were so many different alternatives to the institutionalization
of popular sovereignty stems from fact that “the people” is a subjective term. One of the
most profound changes in the history of the constitutional order involved the transfer of
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sovereign authority from a single monarch to the people as a whole. Yet the actual
implementation of the idea of popular sovereignty was and continues to be the focus of
divisive contention and debate. Whereas sovereignty lodged in a single monarch was easily
identifiable, the same cannot be said about “the people.” Who is included among the
people? How is that determination made, and by whom?3 Indeed, for the theory of popular
sovereignty to have political meaning, the “people” need to be assigned some sort of
institutional expression. But as Donald Lutz once observed, “popular sovereignty covers a
multitude of institutional possibilities.”4
The debates over the institutionalization of popular sovereignty took place at two
levels - in the creation and interpretation of the state and federal constitutions. Disputes
over creation centered on the role of popular sovereignty in forging the governing structures
of the new nation and those over interpretation centered on the role of popular sovereignty in
resolving political disputes arising under the constitution. Constitutional creation was
premised upon the people acting independently of institutional arrangements to create or
change their government. Yet this was not always the case because there was a systematic
institutionalization of popular sovereignty. In the creation, recreation, and interpretation of
the early state and federal constitutions, attempts were made to limit the expression of
popular sovereignty (i.e., participation in conventions, restrictions on voting, representation,
and minimal debate) to institutions set up by the constitutions themselves.
This institutionalization of popular sovereignty continued in the battles over
interpretation and the common assumption among constitutional scholars was that the United
States Supreme Court was the sole answer to Walter Murphy’s famous question, “WHO
shall interpret?”5 Under the Federalist vision of popular sovereignty, the federal judiciary
was designated as the ultimate interpreter of the fundamental will of the people. Yet,
Marshall’s effort to equate constitutional authority and popular sovereignty with judicial
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review represented only one of many competing visions of how popular sovereignty should
be institutionalized. Indeed, beneath the smooth veneer of Marbury v. Madison, was the
tumult of an ongoing and divisive debate over the nature of constitutional politics.
In this dissertation, I examine some of the most divisive battles of the founding era
and the late eighteenth and early nineteenth centuries - the creation and amendment of early
constitutions as well as the struggle between the United States Supreme Court and other
institutions at the state and federal levels over interpretive authority. I show that embedded
within these debates was a more pressing issue - the nature and scope of judicial power over
the resolution of constitutional disputes. Were these constitutional disputes “legal” and
hence, amenable to final (federal) judicial resolution? Or were they “political” and more
fittingly resolved by the political branches? These questions produced multiple voices that
demanded to be heard, and from these debates, differing conceptions of the relationship
between popular sovereignty and institutional authority emerged.
As a result of the scholarly obsession with Marbury, traditional conceptions of
constitutional law and interpretation have focused on the judiciary as the sole authoritative
expositor of the Constitution. As John P. Cotton wrote, Marbury v. Madison was the
“beginning of the American system of constitutional law.”6 Frank Haymond called Marshall
the “expounder of the Constitution and the father of constitutional interpretation.” Marshall
“was the master builder of the superstructure of our constitutional form of government.”7
Edward Corwin wrote,
Marshall established judicial review; he imparted to an ancient
legal tradition a new significance; he made his Court one of the
great political forces of the country; he founded American
Constitutional Law; he formulated, more tellingly than anyone
else and for a people whose thought was permeated with legalism,
the principles on which the integrity and ordered growth of their
Nation have depended.8
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Many constitutional scholars accept Marbury as having established judicial
supremacy over constitutional interpretation, and this has structured the debate over what
role courts have in shaping constitutional meaning.9 In order to understand the nature and
scope of American constitutionalism, the study of constitutional law has been primarily
devoted to the study of courts, particularly the Supreme Court, and judicial opinions.1 0 This
scholarship, however, failed to recognize that the Marbury vision was mightily contested at
the time and in the process, “constitutional law” was created. Upon closer examination of
some of the most controversial controversies of the late eighteenth and early nineteenth
centuries, I show that constitutionalism was not simply the product of adjudication and court
opinions, but rather a product of an entire political system participating and contributing to
the constitutional order and to the resolution of constitutional disputes. These disputes were
not resolved in the courts, but in politics.
I argue that the systematic institutionalization of popular sovereignty began in 1688
with the Glorious Revolution in England where Parliament took over the reigns of power on
the basis of popular sovereignty and turned it into a claim of parliamentary sovereignty.
Colonial Americans decried this assertion of supremacy and insisted that the people had the
right to exercise power independently of existing institutions. Yet, during the creation of the
early state constitutions, power was consolidated and popular sovereignty was
institutionalized in conventions or legislatures to the detriment of popular control. In the
1830s and 1840s as older states changed their constitutions and new constitutions were
created, limitations on popular sovereignty became stronger and were found in existing
constitutions and institutions. At the federal level, this institutionalization began with the
ratifying conventions and continued after the creation of the Constitution with the assertion
of interpretive supremacy by courts and other institutions at the state and federal levels. By
dividing sovereignty, the Constitution set up a multitude of institutions that not only
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competed for the right to institutionalize popular sovereignty, but which also participated in
the limitation of it.
I draw upon two recent movements in the public law literature - the first is
emergence of efforts to equate the exercise of political power with popular sovereignty. This
began in 1991 with the publication of Bruce Ackerman’s book. We the People: Foundations,
which was an attempt to justify the exercise of judicial power in the twentieth century on the
basis of popular sovereignty. The second movement comes from the new institutionalist
literature that focuses on constitutional politics outside the courts. Here scholars examine
the ways in which politics, and not simply courts play an intricate part in determining
constitutional norms. I argue that in the early American Republic, the division of
sovereignty among a multitude of institutions at the state and federal levels allowed for a
rich debate over the meaning of constitutional politics. As a result of these competing
conceptions of popular sovereignty and institutional authority, constitutionalism was created
both inside and outside of the courts. Constitutional law, therefore, was not a product of the
courts, but politics.
Literature Review
The Court’s decision in Marbury v. Madison, which established the power of
judicial review, has become the focal point for traditional public law debates and its
emphasis on the role of courts, in particular the Supreme Court as the authoritative and final
interpreters of the Constitution. The scholarship has focused on the text of the Constitution
and the role of the judiciary in interpreting the text to enforce constitutional limitations on
the exercise of federal and state power. In the process of interpretation, “constitutional law”
is created. The strength of the existing literature is its focus on the role of the courts in
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enforcing constitutional limitations, and also in maintaining the stability of the regime. No
doubt, the practice of judicial review has contributed to the perpetuation of the judiciary as
the sole interpreter of the Constitution.
There are a number of problems with the focus on courts as bearers of constitutional
law. Traditional scholarship treats the Constitution as a “law” subject to the rules of judicial
interpretation. Viewing the Constitution as a legal document gives the judiciary control over
the Constitution since under a separation of powers scheme, courts interpret the law. Yet,
courts are not the only participants in the political regime. Furthermore, the judiciary
interprets the Constitution in the context of existing cases or controversies. But the
Constitution guides everyday political action, and not only limits authority, but also grants it.
The Constitution is not a fixed document with determinate meanings that can be
found by interpreting its provisions. Keith Whittington distinguishes between constitutional
interpretation and constitutional construction. Interpretation is a legal act - the technical
application of law to the case at hand. The problem with focusing on the judiciary as the
sole interpreter of the Constitution is that it treats the provisions of the Constitution as
legally (or judicially) discoverable. Yet, constitutional meaning does not exist in particular
constitutional provisions. Rather it is a product of “constitutional construction,” which is a
“method of elaborating constitutional meaning in the political realm.”" Construction
“employs the “imaginative vision” of politics rather than the “discerning wit” of judicial
judgment.”1 2 The Constitution is not a legal document (with fixed meanings), but as
Whittington argues, a political document with multiple and indeterminate meanings, and
therefore can be subject to multiple constructions. Hence, the “Constitution not only serves
as a judicially applicable rule but also guides and permeates political debate.” 1 3
The problem, however, is that for too long, constitutional scholarship has focused
upon John Marshall and his establishment of judicial review and judicial supremacy (or
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finality) over constitutional interpretation. Marshall’s assertion that “it is emphatically the
province and the duty of the judicial department to say what the law is” has become the focal
point for most of the scholarship surrounding the scope of judicial power. The essence of
judicial review, that is the authority of the courts to review the constitutionality of acts of the
other branches of government, lies in the idea of the Constitution as law, superior in status to
all other laws. According to Charles Black, “[i]t is the task of the court to determine what
the law is.”1 4 The finality of this determination results from the fact that the Supreme Court
is the highest court in the land, and therefore, has the final say over all questions of federal
constitution law. In the Federalist 78, Alexander Hamilton wrote,
The interpretation of the laws is the proper and peculiar province
of the courts. A constitution is, in fact, and must be regarded by
the judges as, a fundamental law. It therefore belongs to them to
ascertain its meaning as well as the meaning of any particular act
proceeding from the legislative body. If there should happen to be
an irreconcilable variance between the two, that which has the
superior obligation and validity ought, of course, to be preferred;
or, in other words, the Constitution ought to be preferred to the
statute, the intention of the people to the intention of their agents.1 5
Many scholars credit Marshall’s opinion in Marbury with instituting judicial
supremacy and finality over constitutional interpretation. Albert Beveridge insists that in
Marbury, “Marshall made the principle of judicial supremacy over legislation as much a
part of our fundamental law as if the Constitution contained these specific words: the
Supreme Court shall have the power to declare invalid any act of Congress which, in the
opinion of the court, is unconstitutional.”1 6 Charles Grove Haines suggested that Marshall
followed Sir Edward Coke’s theory of judicial supremacy by declaring that the Supreme
Court was the final interpreter and guardian of the Constitution.1 7 Robert Jackson’s
discussion of Marbury looked at Marshall’s strategy of preempting defiance and ensuring
finality. Jackson contended that by giving Jefferson the victory of not having to deliver the
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commission, Marshall also handed him a defeat. By siding with Jefferson, he effectively
prevented Jefferson from arousing the people against the doctrine by which they had won
their case. Accordingly, “Marshall had fixed in the law the doctrine of judicial supremacy,
and he had fixed it in a most sheltered position.”1 8 Robert McCloskey equated judicial
supremacy with “judicial sovereignty” to denote the “idea that a law may be held
unconstitutional if the Court thinks it is, even though the case is not plain, and the Court’s
opinion ... is binding on the other branches of government.”1 9 McCloskey also argued that
Marshall believed that “the more America was guided by judges the happier and more just
its system would be.” This entailed extending the Court’s authority to convert “judicial
review” into “judicial sovereignty,” which implied the finality of the Court’s decisions.2 0
A number of scholars have challenged conventional understandings of Marbury.
James O’Fallon suggests that Marshall’s primary objective in Marbury was not
establishment of judicial review, but a political reiteration of the party line views of the
Federalists that the people were their “own worst enemies” who needed to be protected from
themselves.2 1 This view is consistent with Edmund Morgan’s idea that popular sovereignty
is a “Fiction,” an invention to justify political authority.2 2 Robert Lowry Clinton praises
Marshall’s decision not as a political act, but one based on sound constitutional doctrine. He
argues that Marshall did not claim the authority to invalidate acts of the coordinate branches
of government. Rather, Clinton insists that Marshall sought to invalidate only those acts of a
“judicial nature,” which “violate[d] constitutional restrictions on judicial power, not on
legislative or executive power.”2 3 Sylvia Snowiss's work falls between that of O’ Fallon and
Clinton. She contends that before Marbury, interpretation was a “political act,” a “peaceful
substitute for revolution” and limited to only “concededly unconstitutional acts.” After
Marbury, interpretation became a “legal act” as Marshall transformed the Constitution from
“an explicit fundamental law” to its present status as a “supreme ordinary written law."2 4
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Similarly, Stephen Griffin argues that the judiciary has been able to justify its supremacy on
the grounds the Constitution is a “law.” Since the Constitution was construed not as a
political document, but a legal one, the judiciary had the means and the skills to interpret the
text. The fundamental law of the land became an ordinary legal document subject to the
rales of ordinary laws.2 5
This last point goes to the heart of the distinction between constitutions as legal and
political documents. Indeed, a number of scholars have sought to discover when and how
the switch from the legal to the political occurred. Christopher Wolfe differentiates between
two different kinds of judicial review practiced throughout American history. The
traditional view, which lasted from the founding era to the latter part of the nineteenth
century, was premised upon the idea that judging was distinct from legislating and confined
to interpretation. The modem view of judicial review, which took hold in 1937, saw judges
in the business of legislating and exercising judicial review more discriminately.2 6 More
recently, William Nelson argues that Marshall differentiated between legal and political
domains, “between those matters on which all Americans agreed and which therefore were
fixed and immutable and those which were subject to fluctuation and change through
democratic politics.”2 7 In Marbury, the Court ruled that the law afforded William Marbury a
remedy, hence his property right to a judicial commission. However, for the Court to order
the remedy would embroil it in the very same political and partisan controversy that brought
about the lawsuit itself.2 8 In the 1930s, the idea that judicial review protected legal rights as
opposed to adjudicating political controversies collapsed. The line between law and politics
was blurred as judges found themselves in the political arena.2 9 Based on the work of these
revisionist scholars, the modem practice of judicial review and its accompanying supremacy
did not begin with Marshall, but in the 1930s with the rise modem state.3 0
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Another line of inquiry that has filled pages of scholarship focuses on the origins of
judicial review and whether the framers of the Constitution intended courts to have this
power.3 1 Yet, after Marbury, the Court did not strike down a law of Congress until Dred
Scott v. Sanford (1857) and the term “judicial review” did not enter our parlance until
Corwin coined it in 1910.3 2 Judicial review was practiced at the state level well before the
Federal Convention, but as Gordon Wood observed, the “sources of something as significant
and forbidding as judicial review never could lie in the accumulation of a few sporadic
judicial precedents, or even in the decision of Marbury v. Madison, but had to flow from
fundamental changes taking place in the Americans’ ideas of government and law.” The
most critical change, according to Wood, “involved reducing the representative character of
the people’s agents in the legislatures and enhancing the representative character of
judges.”3 3 During the colonial era, judges were not highly regarded and were placed on the
same level as the distrusted royal governors. This distrust carried over into independence,
but during the 1780s, many Americans (primarily Federalists) had second thoughts about
their earlier confidence in popularly elected legislatures and reevaluated their hostility to
judicial power. Judges were redefined as agents of the sovereign people on an equal level
with legislators and executives. But this was not enough to create judicial review. Here is
where written constitutions, or fundamental laws emerged as limitations on institutional
authority, and the integral role of judges to enforce those limitations. Judges were also
bound by limitations, so judicial review had to be made less threatening. The key was to
make judicial review a normal part of the judicial activity. Judges, therefore, had to treat the
Constitution as an ordinary law, subject to the rules of statutory interpretation. The final step
in this process was forjudges to shed their magisterial political roles that had plagued them
in the colonial era and carve out a legal role devoid of partisan wrangling.3 4 True to its
word, during the 1790s, the Court turned down requests from the national government to get
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involved in foreign affairs by refusing to issue an opinion on Virginia’s opposition to the
federal assumption of state debts, or ruling on the constitutionality of pending legislative and
executive acts.3 5 As Nelson showed, Marshall in Marbury and in subsequent decisions
maintained this law/politics distinction.3 6
The American form of judicial review has it roots in the Revolutionary War, where a
radical change in the nature of American society took place. Americans adopted the “Old
Tory” system of government that was common to England before the constitutional
revolution of the seventeenth century. During sixteenth century Tudor England, single
institutions exercised many functions. Power and authority were equally divided and shared
among the institutions (the Parliament, the Crown, and the courts). Each performed a variety
of functions. The seventeenth and eighteenth centuries witnessed a movement toward the
consolidation and concentration of power and sovereignty. By contrast, Americans stayed
true to the old Tudor style in which sovereignty was divided and powers were separated.3 7
Early Americans were fearful of the concentration of power. The experiences with England
in the events leading up to the Revolutionary War taught the founding fathers that when all
the functions of the government were concentrated in one institution, tyranny was inevitable.
The practice of judicial review in America was predicated upon “separated institutions
sharing powers.”3 8 Judicial review represented a fusion of legislative and judicial functions.
American courts adopted the Tudor system of telling the legislature what the law cannot
be.3 9
This relationship between Marbury and the separation of powers has become the
focal point of debate over whether the Court can void the acts of the co-equal branches of
government, taking for granted federal judicial review over the states.4 0 Yet, the controversy
over the extent of judicial power throughout the first half of the nineteenth century focused
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not on the separation of powers, but on federalism and policing the boundaries between state
and federal governments. As Jack Rakove argues,
the American doctrine of judicial review was far more concerned
with federalism than with the separation of powers. If any one
case (or line of cases) deserves emphasis, it would not be the
Marbury decision of 1803, but the more controversial decisions of
the next decade—especially McCulloch v. Maryland — which gave
new depth to the principle of national judicial supremacy over
state legislative acts and judicial decisions.4 1
The controversy over the distribution of power between England and the colonies
and later between the national government and the states, begged the question, who would
police the boundaries of power? Herein lies another origin of judicial review-the American
Revolution and the need for what John Phillip Reid called, the “dernier judge.” During the
colonial era, American Whigs looked not to judicial review, but to the King to restrain
Parliament. While there is no direct evidence that it contributed to the American acceptance
of judicial review, it does reflect the “collective unconsciousness” of the framers to place a
“constitutional curb” on their legislators.4 2 Whether only judges would hold that post
remained a point of contention throughout early years of the Republic. Yet it points to the
need of scholars to do more than obsess over how Marbury established judicial review, and
more on how the Marbury vision was continually contested.
Marshall’s opinion in Marbury also set the stage for one of the major debates in
constitutional theory - how to reconcile judicial review with democracy 4 3 Is a group of non
elected individuals permitted to contradict the will of the majority that is expressed through
their elected representatives? In the words of Henry Steel Commager, judicial review has
been somewhat of a “drag upon democracy ...and upon good government.”4 4 Similarly,
James Bradley Thayer argued that judicial review is a “serious evil” and causes people to be
careless about whom they send to the legislature, confident that the “few wiser gentlemen on
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the bench are so ready to protect them against their more immediate representatives.”4 3 In
The Least Dangerous Branch, Alexander Bickel’s classic words continue to live on in the
countermajoritarian difficulty:
The root difficulty is that judicial review is a counter-majoritarian
force in our system....When the Supreme Court declares
unconstitutional a legislative act or the action of an elected
executive, it thwarts the will of representatives of the actual people
of the here and now; it exercises control not on behalf of the
prevailing majority, but against it. That ...is the reason the charge
can be made that judicial review is undemocratic.4 6
Eugene V. Rostow argues that judicial review is democratic since ultimately, the Supreme
Court must be accountable to the people. He extols judges as national educators and
suggests “given the possibility of constitutional amendment, there is nothing undemocratic
in having responsible and independent judges act as important constitutional mediators.”4 7
Most scholars seek to position themselves between Bickel and Rostow. Albert
Melone and George Mace argue that “judicial review is neither democratic nor
undemocratic; rather it is anti-democratic.” Yet, it is the very anti-democratic nature of
judicial review that makes representative democracy possible.4 8 Mace noted that democracy
is designed to be responsive to the interests of both the majority and the minority.4 9 When
one group becomes too tyrannical, the Court exercises judicial review to protect the interests
of the whole. Instead of arguing that judicial review is democratic, some scholars have
pointed to the “undemocratic” nature of the elected branches of government.3 0 Still others
emphasize that it is not a solid principle of American democracy that all decision- making be
by majoritarian means.3 1 The fact that the system was designed to allow minorities to thwart
the will of the majority indicates that the Framers distrusted (popular) majorities. John
Arthur offers a more theoretical justification for the protection of minorities. Drawing from
the work of John Rawls3 2 and Ronald Dworkin,3 3 Arthur’s theory of “democratic
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contractualism” suggests that those who criticize judicial review as antimajoritarian may one
day find themselves victims of an overzealous majority and in need of the Court’s help.3 4
At the other end of the spectrum is “democratic proceduralism” or the “process”
school of constitutional interpretation. John Hart Ely’s “participation-oriented,
representation-reinforcing approach to judicial review,” rejects the contention that life
tenured judges are better protectors of conventional values than elected officials. He argues
that judges should focus upon guaranteeing that political process is democratic. The
government is democratic when its leaders are selected through fair and open electoral
processes. Judicial review serves as a check on the tendency of legislators to pass laws to
protect their own interests at the expense of fair and open democratic procedures.3 3
A number of scholars have examined the role of the Supreme Court in the polity and
Mr. Dooley’s dictum that “th’ supreme court follows th ’diction returns.”3 6 Scholars have
examined the role of the Supreme Court during realigning elections.3 7 Advocating the
“ruling-coalitions theory,” Robert Dahl argues that irrespective of partisanship, the policy
views made by the Court are “never for long out of line with the policy views dominant
among lawmaking majorities of the United States.”3 8 Jonathan Casper argues that Dahl
underestimates the importance of the Supreme Court as a policy maker in the areas of
statutory interpretation and state and local cases. In addition, Casper takes issue with
judicial finality. He notes that under Dahl’s analysis, the Supreme Court’s significance is
dependent upon the whether or not Congress acts (within the time allotted by Dahl) to
override the Court’s decision.3 9 Charles Black suggests that when the Court upholds the
constitutionality of an act, it “legitimates” it.6 0 However, Loren Beth suggests that the Court
frequently exercises judicial review as a brake on the government when it ventures into new
and unprecedented policies.6 1 John Taylor demonstrates how the Supreme Court “voids
legislation that is part of the ordinary business of the dominant coalition to which it
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belongs.”6 2 Dahl set forth one in a series of models on Supreme Court decision-making
focusing primarily on the relationship between judges and the Constitution. Attitudinalists
argue that judges are policy makers and freely vote their political preferences.6 3 Advocates
of the strategic model view judges as constrained by the political environment.6 4 New
institutionalists view judges as actors shaped by the institution (i.e., its values and missions)
in which they are part of.6 S Institutions play a role in helping to shape constitutional norms,
and during the early Republic, different institutions (not just the courts) competed for the
right to interpret the Constitution.
Barry Friedman takes a historical approach to the countermajoritarian difficulty by
connecting it with the rise of judicial supremacy in the United States. He argues that the
countermajoritarian difficulty is likely to emerge when judicial decisions are “unpopular
with a group substantial enough to be able to claim to speak for the “people”... rendered at
time when public sentiment favors a relatively popular or direct form of democracy...
rendered [at a time where] there is relatively popular or direct form of democracy... and
rendered during a period of judicial supremacy.”6 6 With respect to the last condition, if
people believe that a decision binds only the parties to the case (i.e., they deny judicial
supremacy), then they are not likely to accuse the Court of acting in a countermajoritarian
manner. During the Federalist era, little judicial supremacy was asserted. There is evidence
to suggest that Marshall did not assert judicial supremacy in Marbury, as his decision was
based solely on the case before him.6 7 During the early Republic, people did not believe in
judicial supremacy, and this made it less likely that the countermajoritarian criticism would
be made. Instead, the people took advantage of a system in which multiple actors had
interpretive powers.
Michael Klarman takes a different approach to the countermajoritarian problem by
advocating “majoritarian judicial review” or the “anti-entrenchment theory.” Legislatures,
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he argues, engage in two kinds of entrenchment activities. The first, legislative
entrenchment, involves elected representatives discounting their constituents’ preferences to
further their own perpetuation in office. Whether it is term limits, redrawing district lines, or
ending gerrymandering, legislators who heed constituent preferences guarantee their eviction
from office.6 8 The second, cross-temporal entrenchment, involves present majorities
shackling the future to a view that is no longer in the majority. For example, if the present
majority passes a statute that is either unrepeatable or can be repealed by a supermajority
requirement, it has extended its power into the future and perpetuated the status quo.6 9
Judicial review, therefore, is designed to undermine acts of legislative and cross-temporal
entrenchment and uphold majoratarian (democratic) principles.7 0 In the early American
Republic, judicial review was not exercised to preserve majoritarian principles, but
supermajoritarian principles - protecting the fundamental will of whole people against
legislative aggression.
Bruce Ackerman’s theory of dualism attempts to justify the role of judicial review in
a democracy and solve the countermajoritarian difficulty. In We the People: Foundations,
he argues that there are two distinct lawmaking tracks - normal and higher lawmaking.
Legislation passed during periods of normal politics (in the here and now) does not represent
the voice of the sovereign people. Rather, it represents the voice of political agents
(representatives) who are selected during times when the people’s voice is dormant. These
political agents are “stand-ins” for the people. During periods of normal politics, the people
do not even exist. “... We the People are absent from the scene....” and political agents
cannot capture the true spirit of the people.7 1 However, rare moments will arise in which the
true sovereign will of the people is expressed. During these “constitutional moments,” the
sovereign people put forth fundamental principles and institute a number of non Article V
constitutional changes, all designed to serve as a guide during excessive periods of ordinary
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politics. During periods of normal politics, judges perform a preservationist function by
preserving the values and legal principles created during periods of higher lawmaking.
Judicial review “uphold[s] the integrity of earlier constitutional solutions against the pulling
and hauling of normal politics.”7 2 Judges, “preserve the achievements of popular
sovereignty during the long periods of our public existence when the citizenry is not
mobilized for greater constitutional achievements.”7 3 Judges also “synthesize” the values
from three periods of higher lawmaking (the Founding, Reconstruction, and the New Deal)
to come up with answers to contemporary problems.7 4 Hence, no countermajoritarian
difficulty exists because when judges invalidate laws based on the Constitution, they uphold
the expressions of the “people” engaged in higher lawmaking and constitutional change
against the forces of ordinary politics.
Ackerman’s theory of dualism and acts of higher lawmaking raised a number of
pressing issues. First, should constitutional change be confined to Article V of
Constitution?7 5 If not, can the distinction between ordinary law and constitutional law be
maintained? Or will the Constitution succumb to the forces of politics? Second, are judges
in the only position to perform a preservationist function? Ackerman’s call for courts to
preserve values against the usurpation of normal politics runs the risk of the court creating,
under the guise of preservation, constitutional values not mandated by the people.7 6 Third,
how much, if any, fidelity do we owe to the “dead hand of the past.”7 7 Scholars have put
forth various types of models of constitutional interpretation - from (non)interpretivism,7 8
textualism,7 9 neutral principles,8 0 and balancing.8 1 Yet one of the most enduring (and now
revived) debates focuses on the jurisprudence of original intent and its connection to
fidelity.8 2 Should the Constitution be interpreted in accordance with the intent of the framers
or is the Constitution a “living” document, one, that must be kept up with the times or in the
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words of John Marshall, one designed to “endure for ages to come” and adaptable to “the
various crisis of human affairs?”8 3
Barry Friedman and Scott Smith seek to reconcile fidelity to the past and a living
constitution. They argue that history is important to constitutional interpretation, but not just
the history of the Founding, but all of history. They view the Constitution as “sedimentary,”
in which institutions, decisions, practices, commitments, and values have been passed on
from one generation to the next and built up over time. Constitutional interpretation
involves understanding “deeper, long-standing commitments, and to reconcile those
commitments with present preferences.”8 4 Whereas Ackerman believes that those
commitments emerge during specific moments of higher lawmaking, Friedman and Smith
recognize that constitutional politics is an on-going process, and with it comes the
development of new commitments and constitutional changes.
Friedman and Smith’s work recognizes indeterminacy of constitutional meaning,
and with it, the possibility for multiple interpreters to engage the Constitution. Sanford
Levinson first alluded to the possibility of multiple (and political) constitutional interpreters
in an article in the Supreme Court Review}5 In Constitutional Faith, Levinson distinguished
between “Catholic” and “Protestant” conceptions of constitutional interpretation. Whereas
the former provides for a sole interpreter (the Supreme Court), the latter allows for an
individualized, nonhierarchical interpretation of the Constitution.8 6 Louis Fisher argued that
through the process of “coordinate construction,” all three branches of the government
engage in constitutional interpretation both before and after the Court issues its ruling.
“Ultimate interpreter” does not translate into “exclusive interpreter” since courts expect the
other branches to interpret the Constitution in their initial deliberations.8 7 The three branches
send signals to one another (some invited, others unwelcome) indicating who should
interpret the Constitution. As Mark Graber argues, on many occasions the political branches
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have been more than willing to allow the Court to decide controversial issues (i.e., slavery
and abortion) and take the credit and/or blame.8 8
Fisher’s work set the stage for a number of other scholars to explore departmental
constitutional interpretation as an alternative to judicial supremacy.8 9 Robert A. Burt
advocates a Lincolnian “egalitarian” conception of constitutional interpretation in which the
Court sees itself as an “equal, not supreme, authority on constitutional interpretation.”9 0 Burt
argues that the Court applied this principle in Brown v. Board o f Education.9 1 Here the
Court recognized that segregation violated equality, but it could go no further. It “could not
authoritatively impose a legitimate, reciprocal relationship of acknowledged equality. Such
a relationship would have to be worked out... in the give-and-take of congressional
debate.”9 2 Susan Burgess advocates departmentalism through six models of “constitutional
consciousness.” Each level represents the type of reaction to the dominant branches’
interpretation of the Constitution. These levels are nonparticipating, deferring, attacking,
and finally, the highest level of consciousness, the engaging level.9 3 It is this highest level
that deserves attention since it involves “dialogue,” a term that has become an integral
component of contemporary constitutional theory. Burgess writes,
To move to higher levels of constitutional consciousness, conflict
must be understood... as an opportunity to broaden the polity’s
shared understanding of what the Constitution means when it is
applied to difficult and controversial problems. If conflict is
viewed as an opportunity to foster a common constitutional
discussion, then constitutional consciousness will continue to
heighten and constitutional authority will continue to deepen. This
requires a consciousness that can at least consider the possibility
that the Constitution has meaning independent of any one
interpreter....9 4
Situated between the will of the Constitution-ratifying people and the will of elected
majorities, Leslie Friedman Goldstein identifies a third level of political authority comprised
of the “amorphous, fluid world of constitutional politics - the ongoing dialogue between the
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people and the Supreme Court about the meaning of their constitutional law. ”9 5 Paul R.
Diamond argues that judicial rulings must be understood, not as final judgments, but as
“provisional” rulings designed to “initiate an ongoing dialogue with the people” over the
meaning of the Constitution.9 6 Ronald Kahn shows that the Warren Court was engaged in a
dialogue with "the wider society and interpretive community" over "the nature of
governmental powers, the political process, and the judicial process."9 7 Barry Friedman
argues that the Constitution is spacious enough to accommodate the various constructions
offered by shifting constituencies participating in an elaborate dialogue of constitutional
interpretation. In particular, courts have a unique role since they often “facilitate and model
the national dialogue concerning the meaning of the Constitution....”9 8 The
“nationalization” of dialogue has important implications for citizen participation in the
polity. As EE Schattschneider argued, “one way to restrict conflict is to localize it, while
one way to expand it is to nationalize it.”9 9 “Nationalization” breaks up sectional factions
and local monopolies giving more people the opportunity to participate in the political
process. According to Friedman, “[t]he Constitution is not interpreted by aloof judges
imposing their will on the people. Rather, constitutional interpretation is an elaborate
discussion between judges and the body politics.”1 0 0 Indeed,
[b]ecause the Constitution is spacious, no single offered
interpretation of the text is likely to be accepted as correct now
and for all time. The Court is free to change its mind. The people
are free to disagree with the Court. The Court is free to disagree
with the people. The members of the Court are free to, and
usually do, disagree with one another. As disagreement occurs, the
document will take on new meanings.1 0 1
As a result of this "dialogue," there is evidence to suggest that political debate plays
an important role in shaping and changing constitutional norms. Judicial hegemony ignores
the extent to which American constitutionalism is an ongoing political (and not necessarily
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legal) dynamic. Under this conception, the executive and legislative branches, through the
course of ordinary politics, structure political, as well as constitutional values.1 0 2
Despite the move in the literature recognizing non-judicial contributions to
constitutionalism, judicial supremacy has not gone away. In 1994, Michael Stokes Paulsen
asked, “will nobody defend judicial supremacy anymore?”1 0 3 Larry Alexander and
Frederick Schauer heeded the call and offered an “unqualified” defense of judicial
supremacy on the basis of the settlement function of the law. They argue that nonjudicial
officers have an obligation to follow judicial interpretations because the function of the law
is to “settle authoritatively what is to be done.” To act on a constitutional interpretation that
is different from that of the Supreme Court, threatens the ability of law to coordinate
behavior as well as the stability of the regime. Without a “single authoritative
decisionmaker,” “interpretive anarchy” would ensue.1 0 4
This defense of judicial supremacy was met with criticism. Emily Sherwin argued
that Alexander and Schauer do not go far enough since they defended Abraham Lincoln’s
decision not to obey the decision of the Court in Dred Scott.1 0 5 The criticism was primarily
focused on Alexander and Schauer’s defense of a judicial lock on the Constitution. Robert
Nagel examined the possibility of “legislative supremacy,” maintaining the settlement
function of law in light of City ofBoeme v. Flores (1997), which struck down the Religious
Freedom Restoration Act on the grounds that Congress had exceeded its constitutional
powers under Section S of the Fourteenth Amendment.1 0 6 Alexander and Schauer admit that
Congress could be the single authoritative interpreter, but prefer the Court to Congress
because the settlement function requires stability “overtime as well as across institutions.”
The judiciary’s adherence to precedent makes it preferable to Congress. Yet, according to
Nagel, the Court’s constitutional doctrines, even those dealing with religious clauses, tend to
be confusing and indeterminate, which undermines the settlement function of judicial
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supremacy. Although Alexander and Schauer warned against “short-term majoritarian
control,” Congress is on average more “likely to reflect popular sentiments more faithfully
than the relatively isolated Court.” Nagel continues, “judicial isolation sometimes does
enable judges to resist... [political] pressures, but by separating constitutional meaning from
public understanding and aspiration, it also creates an inherently unstable situation.”1 0 7 This
is not to deny that public sentiment can fluctuate and thereby affect the settlement function
of the law via legislative supremacy. But the fact that the Court modifies or overturns its
own precedents suggests that the Court’s settlement function is equally fragile.1 0 8 Neal
Devins and Louis Fisher argue that “judicial exclusivity” does little to promote stability.
Rather, it “encourages acrimony, not cooperation. Democratic government, rather than
engage the Court in a constitutional dialogue, will give short shrift to the Court and the
Constitution.”1 0 9 Furthermore, Edward Hartnett argues that courts “do not sit to pronounce
the law, but rather to decide cases and controversies.” It is “the judgment, not the opinion,
that settles authoritatively what is to be done- and the only thing that the judgment settles
authoritatively is what is to be done about the particular case or controversy for which the
judgment was made.”1 1 0 Devins and Louis write:
The Supreme Court may be the ultimate interpreter in a particular
case, but not in the larger social issues of which that case is a
reflection. Indeed, it is difficult to locate in more than two
centuries of rulings from the Supreme Court a single decision that
ever finally settled a transcendent question of constitutional law.1 1 1
Alexander and Schauer defend their position by reiterating their claim that the Court
is the best institution to exercise settlement authority. They write, “without authoritative
settlement, most constitutional issues will remain open ... [and] any governmental actor who
disagrees with a Supreme Court constitutional decision will feel free, legally and morally
even if not always politically or prudentially, to ignore that decision.”1 1 2 Christopher
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Eisgruber offers a compromise position between judicial supremacy and coordinate
construction - “comparative institutional competence.” Interpretive authority is assigned to
the “most competent branch,” in which each branch is required to justify deference to the
other’s decisions (even those which are erroneous) by “identifying the purposes served by
the Constitution and then making a judgment about which institutions are best equipped to
pursue that purpose.” In some areas, the judiciary enjoys constitutional supremacy, but
competing institutions enjoy it in other areas.1 1 3 Scott Gant puts forth a model of “recast
judicial supremacy” that leaves room for a diffusion of interpretive responsibility among
nonjudicial actors. Under this model of judicial supremacy, the judiciary is the final, but the
nonexclusive interpreter of the Constitution. Courts are not insulated from politics, and their
decisions are as much a reflection of legal judgment as they are a reflection of the influence
of others, in particular, the other branches of government.1 1 4 Gant continued,
[njonjudicial involvement in interpretation assists courts in
rendering their authoritative judgments. Extra-judicial
interpretations inform other branches, and especially the courts, of
a particular branch’s assessments and dispositions. These
interpretations not only provide important and useful background
information, which courts need in order to have a well-developed
sense of what is at stake in the questions before them, but such
interpretive perspectives also may be useful for courts insofar as
they reveal something about the government actors’ activities and
views, which courts need in order to make their own decisions.1 IS
The obsession with courts has led many scholars to devote many pages to
prescribing how courts should interpret the Constitution. The growing recognition of
nonjudicial constitutional interpretation begs the question: how should the other branches of
government interpret the Constitution? Even assuming that Ackerman’s constitutional
moments exist, should not the President and Congress be guided by them? Or are the
President and Congress (unlike the courts) too influenced by politics? James Meemik and
Joseph Ignagni argue that Congress is more likely to engage in "coordinate construction"
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when there is strong public opposition to a controversial Supreme Court decision, when the
Court’ s decision involves a state law, when the executive branch is opposed to the Court’ s
ruling, or when the issue involves federal power."6
Neal Katyal offers a theory of congressional interpretation that seeks to reconcile the
living Constitution with the countermajoritarian difficulty. He believes that Congress is in a
better position to bridge the gap between ordinary and higher lawmaking “by inserting itself
into interpretive questions and self-consciously trying to find consensus on abstract values
and lessons of different constitutional moments.” Constitutional (and social) changes do not
occur during one Ackermanian moment, but over time, “below the radar screens of an
insulated Supreme Court, but they are precisely the kinds of things that Congress
understands.” Congress, which is “well-situated to understand the views of the people,” and
in particular, the Senate (through its advise and consent power), can impart the development
of values and principles over time and enhance inter-institutional dialogue."7
Michael Stokes Paulsen believes that executive officials are not obligated to defer to
judicial decisions they believe to be incorrect."8 Gary Lawson and Christopher Moore
examine how the Constitution permits the President the power to interpret. They argue that
the key to understanding constitutional interpretation is not whether the judiciary, the
executive, or the legislature has the right to interpret the Constitution. Rather, should these
institutions exercise their own judgment about the meaning of the Constitution or defer to
the constitutional views of other interpreters? Whereas Article m grants the judiciary the
power to hear cases and controversies, Article n grants the President a range of powers that
require interpretation. Just as “the federal courts’ power to resolve cases and controversies
within their jurisdiction includes the power to interpret the laws, the President’s power to
execute the laws necessarily includes the power to interpret them.”1 1 9 Yet, this is not a prima
facie case for independent presidential review since the President’s interpretive powers arise
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in many more contexts than those of the judiciary and in many cases they come after a
coordinate branch has exercised its own constitutionally based interpretive powers.1 2 0 In the
process of interpreting the Constitution, shall the President be bound (or constrained) by
prior legislative or judicial interpretations of the Constitution? This, the authors argue,
depends on a particular grant of power.
But does coordinate interpretation allow one branch to impose its interpretation of
the Constitution on the other? If Congress, acting within its vested authority, passes a law it
believes to be constitutional, but the Court, acting within its vested authority, says otherwise,
whose interpretive account stands? If Congress and the Court agree on the constitutionality
of a law, but the President refuses to enforce the law, why should his interpretation as a
member of a coordinate department count for less? In order to exercise the “executive
power,” an executive (like the members of the coordinate branches) must interpret the
Constitution.1 2 1 Could not the executive claim a superior right to interpret because he is
elected by the people of the entire nation and hence, can make claim to a larger
representational base? The idea that a president represents the people as a whole was
accompanied by a rise in presidential power at the turn of the twentieth century. Yet, the
beginnings of the “modem presidency” were evident in the nineteenth century as presidents
made repeated claims to interpretive authority on the basis of popular sovereignty.1 2 2
Institutional review begs the question — what role if any do the people have in the
creation, recreation, and interpretation of constitutions? Moreover, do the people have the
right to act independently of existing constitutions and institutions? According to Sanford
Levinson, one of the strongest criticisms against departmental (or coordinate) review is that
“it ignores those who are “outside” the structure but nonetheless within the reach of
constitutional command.” Yet, “it is the citizenry that play the most important structural role
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of all within the state by selecting, after due deliberation, those who only temporarily occupy
the office of governance.”1 2 3
A number of scholars have documented the virtues of popular contributions to the
constitutional order. In Constitutional Rights and Powers o f the People, Wayne Moore
advocates a bottom-up approach to constitutional politics and examines the "broader-based,
grass roots components of constitutional transformations.” He rejects the contention that the
Constitution is simply a written law and suggests a number of ways that the “people at large
may play a part in creating and sustaining constitutional norms - including “legal” norms
that do not fit readily within professional narrative.”1 2 4 Whether “through” or
“independently o f’ institutional arrangements, the people “unofficially” engage in
constitutional interpretation and contribute to the debate over constitutional meaning.
William Wiecek argued that the sources of antislavery constitutionalism in the years
leading up to the Civil War were “extrajudicial.” Radical Abolitionists supported their
political cause with legal arguments about why the Constitution did not sanction slavery.1 2 5
Frederick Douglass (who was originally in the Garrison camp of believers that the
Constitution was a proslavery document) joined this cause after Dred Scott.1 2 6 In 1850, he
declared that the “very terms of the Constitution are hostile to the idea of Slavery.” “The
plain language of the Constitution is against Slavery.” And when the Constitution is
“submitted to the legal rules of interpretation, [it will be] found to be against Slavery.”1 2 7
The key to Douglass’ argument was the “public understanding of the meaning of the text.”1 2 8
Moore argues that this understanding made it possible for Douglass to contribute to
constitutional discourse by politically and independently interpreting the Constitution
according to the ideals he believed it embodied. It also enabled him to endorse a range of
political activity and encourage others to act through their representative institutions to let
their views be known.1 2 9 According to Todd McDorman, since Douglass believed in the
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preservation of the theory of the Constitution, but all the while denying its present political
practice, he could reject the people as “constituted by the Court by reconstituting them under
the Constitution.”1 3 0
In Taking the Constitution Away from the Courts, Mark Tushnet develops a theory
of “populist constitutional law,” which is premised on the idea of a “thin Constitution,” one
that encompasses the Declaration of Independence and the Preamble. He contrasts this with
the “thick Constitution,” which contains detailed provisions about how the government is to
be organized. Tushnet cites Lincoln’s belief that the project of the Constitution “was the
vindication of the Declaration’s principle... [that] all people were created equal, the principle
that all had inalienable rights.” Furthermore, “the nation’s commitment to the thin
Constitution constitutes us as the people of the United States....1 3 1 Hence, populist
constitutional law “treats constitutional law not as something in the hands of lawyers and
judges, but in the hands of the people themselves. Constitutional law creates the people of
the United States as a people by providing a narrative that connects us to everyone who
preceded us.” Adherence to a thin Constitution means that courts do not have control over
the entire domain of politics; rather, “it leaves a wide range open for resolution through
principled political discussion....” Furthermore, since the Constitution (and not the courts)
constitutes us as a people, populist constitutional law “returns constitutional law to the
people, acting through politics.”1 3 2
Laura Fitzgerald suggests that constitutional power is based on representation, not
on a rigid separation of institutional power. Constitutional power is “kinetic,” one that
structures the People in a series of “nested political constituencies” channeling their energy
into the practice of politics. Under this theory, representation “does not mean that the
Sovereign People have ceded their power to governing institutions, which...make policy
decisions for the People, on the People’s behalf, and in the People’s best “interest.”” Rather,
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“institutions exist principally as a mechanism for the People to speak for themselves, and to
argue with themselves, using the Constitution’s structures for politics to do so.”1 3 3 The
Constitution organizes “We the People” into a system of four “nested constituencies” - one
in the House, two in the Senate, and a fourth in the President. These constituencies are
concentric since each citizen stands at the center of all three. They are also differentiated in
the sense that each constituency embraces a different community interest operating at
different times (i.e., election intervals). These constituencies provide a forum for national
political debate, where power is an exchange not between institutions, but “among the
People’s alternative selves, conducted overtime.”1 3 4 Under this logic, representation is not
about how institutions “re-represent” the people.1 3 5 Rather, it is about how people “re
present” themselves through institutions.
The rise of multiple-branch and popular interpretation leads to a question over the
definition of terms. Are these examples of “nonjudicial interpretation,” “extrajudicial
interpretation,” “judicial non-exclusivity,” or “non-deference” by nonjudicial officials? Is
nonjudicial interpretation taking place on the same par with the judiciary or is it in addition
to or a supplement to judicial interpretations? Is non-deference defiance of judicial
interpretations or an assertion of legislative or executive supremacy?1 3 6 Moreover, what
role, if any, does the public play in this process? The separation of powers requires that each
branch interpret the Constitution as a part of executing their powers. Constitutional
interpretation, however, does not take place in isolation. In a constitutional system based on
checks and balances, coordinate construction is not equivalent to coordinate supremacy.
When an institution interprets the Constitution, it not only takes into account the scope of its
own powers (as it should), it must also consider that other institutions have a constitutional
say in the matter. Furthermore, the role of constitutional politics in the interpretive process
cannot be ignored. Constitutional policymaking is dynamic and continual — it draws its
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source from the People constituting themselves in institutions. The stability of the system is
not dependent upon one authoritative interpreter, but upon multiple interpreters recognizing
the value of each other’s political contributions to the Constitution and how constitutional
politics (not just constitutional law) fosters exchange and dialogue. Devins and Fisher write,
[n]o single institution, including the judiciary, has the final word
on constitutional questions. It is this process of give and take and
mutual respect that permits the unelected Court to function in a
democratic society. By agreeing to an open exchange among the
branches, all three institutions are able to expose weaknesses, hold
excesses in check, and gradually forge a consensus on
constitutional values. By participating in this process, the pubic
has an opportunity to add legitimacy, vitality, and meaning to what
might otherwise be an alien and short-lived document. Therein
lies true stability.1 3 7
The recent scholarly recognition of nonjudicial constitutional interpretation lies at
the heart of this dissertation. Some of the most famous debates in the public law literature
(the intent of the framers and judicial review, the role of courts in a democracy, and the
countermajoritarian difficulty) focus on the role of the courts in the construction of
constitutional law. The Constitution is not simply a law subject to the rules of ordinary
construction. The emphasis on the Constitution as a legal document allows the courts to
justify their lock on it. The Constitution is a political document that sets forth constitutional
norms and ideas that require interpretation. The recent acceptance of the idea of
constitutional politics by scholars has made it possible for them to argue for a more
encompassing theory of constitutional interpretation, which includes courts, legislatures,
executives at the state and federal levels, and the people. The framers of the early state and
federal constitutions constituted political documents and the courts were one of many
institutions asserting interpretive authority. This allowed for a rich debate over the meaning
of constitutional politics. Constitutional norms were not simply created by courts, but by
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politics, but for too long, they have been ignored. Constitutional politics was at the heart of
the early American Republic. This study is premised upon recognizing that the debates over
the contested meaning of popular sovereignty were not simply a source of strife that
eventually led to the Civil War, but in the process, constitutional norms were created that
enriched our understanding of the meaning of constitutionalism.
The Outline of the Study
This work moves away from the court-centered model of constitutionalism to a
political model. I join a movement in the public law literature that focuses on constitutional
politics, or constitutional interpretation outside the courts. In the antebellum era, popular
sovereignty was invoked to support a wide range of political practices, not just judicial
review. The debates over the creation, recreation, and interpretation of the antebellum
constitutions show that constitutional disputes were fought out in politics, not in the courts.
Through these debates we can appreciate how the basic institutional design of
American politics remained dramatically unsettled all the way through the Civil War, despite
the apparently settled nature of these questions as expressed in the formal constitutional law
of the period. Constitutional controversies could not be solved by simply looking to the text
of the Constitution or the following judiciary’s (or Supreme Court’s) interpretation of it.
Rather, external political considerations entered the debate over constitutional meaning. It
was the impact of these constructions, and not the formal constitutional law of the period
that shaped political debate, and served as a guide for future actions under the Constitution.
Whittington writes,
Something external to the text - whether political principle, social
interest, or social consideration — must be alloyed with it in order
for the text to have a determinate or controlling meaning within a
given governing context. As a result, constitutional constructions
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are often made in the context of political debate, but to the degree
that they are successful they constrain future political debate.1 3 8
This is best demonstrated in the debates over creation and interpretation, where early
debates over constitutional meaning served as a guide for future political action. The
debates in the 1770s and 1780s over the role of conventions in creating the early state and
federal constitutions reemerged in the 1820s and 1830s to justify the power of conventions
in the creation of new constitutions and the recreation of existing ones. Similarly, the battles
over constitutional interpretation that emerged after constitutions were constructed played a
central role in later debates over constitutional interpretation. For example, the Kentucky
and Virginia Resolutions were invoked to support various forms of state interposition against
federal aggression.
In this dissertation, I take a top-down approach to constitutionalism.1 3 9 I examine
the ways in which institutions impose themselves on the people and how they battled with
each other for the right to institutionalize popular sovereignty in their respective
departments. I am not arguing against constitutional interpretation by the people. Nor do I
believe that constitutional development is confined to politicians, including judges. There is
evidence to suggest that the people can constitute their politics through and independently of
existing representative institutions, and participate in a dialogue and exchange over
constitutional meaning. Yet, one of the problems with departmentalism and inter-
institutional dialogue over the Constitution is that it leaves, little, if any room for popular
input over constitutional meaning. Indeed, this study is premised upon the systematic
institutionalization of popular sovereignty to the detriment of popular control. This battle
among multiple institutions over popular sovereignty in the late eighteenth and nineteenth
centuries left little, if any opportunity for the people to constitute and reconstitute their
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political system independently of existing governing institutions. Rather, the institutions
constituted the people.
This institutionalization began during the colonists’ struggle against the Crown and
continued as the new nation created political structures for the Union. The Federalists
advocated judicial control over constitutional meaning by linking judicial review to a
conception of the people constituted as a nation. Whereas traditional scholarship considers
this to be the dominant model of constitutionalism, I argue that the Marbury model was one
of five competing models that emerged in this era. The second model was similar to the
first as it applied to the relationship between state judges and state legislatures and
executives. Advocates of the third model viewed the people as constituted in their separate
states and argued that state courts should have the final say over the scope of federal and
state authority. Fourth, some viewed the people as constituted in their separate states, but
they denied that the judiciary (at both levels) should have the final say over constitutional
questions. Instead, such questions were to be resolved by the people of the states assembled
in either legislatures or in conventions. The final vision, departmentalism, was advocated at
the federal level in which each institution had a right to interpret the Constitution subject to
checks within the system.
The net effect of these competing visions is to illustrate that constitutionalism was
forged and contested in various institutional practices. Studies that focus upon the
judiciary's role in creating constitutional meaning, overlook the fact that constitutionalism is
an ongoing political process. The Constitution was a product of politics. The framers
argued, debated and compromised over how to structure a lasting political system. Placing
the Constitution in the hands of the judiciary ignores the extent to which politics has played
an integral role in sustaining the constitutional system. The process of constitutional
interpretation is also political and not necessarily confined to the judiciary. By examining
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the most divisive debates of the late eighteenth and early nineteenth, centuries, I show that
constitutional norms were created and restructured as each institution invoked various
conceptions of "We the People" to justify their distinctive practices. Not only were
constitutional norms created, they were also changed. More importantly, these changes left
the text of the Constitution unblemished. By moving away from the obsession with the text,
I challenge traditional conceptions of the judiciary as the sole expositor of the fundamental
“law.” However, I do not argue that the judiciary should not have the right to interpret the
Constitution. Rather, I am suggesting that courts (at both levels) are one of many “political”
institutions participating in the search for constitutional meaning. What is distinctive about
each of these interpretations is that they are not final judgments. Rather, they are indicative
of a continuous “dialogue” between the people, the courts, the states, and the federal
government over the meaning of constitutional values. By analyzing the various conceptions
of popular sovereignty, I show how each institution within the political system, including the
judiciary, engaged in constitutional interpretation, and by implication, constitutional change.
This dissertation is divided into the following chapters. Chapter 1 focuses on the
development of popular sovereignty in the 1770s and 1780s. I examine the theoretical
transformation of parliamentary/legislative sovereignty into popular sovereignty. I focus
upon the constitution -making process and the debate over which institution would create
constitutions, conventions or legislatures. The institutionalization of popular sovereignty
entered its first stage as arguments against the people acting independently of institutional
arrangements were put forth. Once constitutions were constructed, they had to be construed
and the institutionalization of popular sovereignty moved to the next level - the battle over
interpretation. In Chapter 2 ,1 examine five competing models of constitutional interpretation
that pitted federal and state institutions against each other. In Chapter 3 ,1 show how these
models became embroiled in some of the most divisive controversies leading up to the Civil
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War. As the nation edged towards Civil War, the politics of popular sovereignty became
more complicated as more persistent arguments about the institutionalization of popular
sovereignty took hold. In Chapter 4 ,1 examine how these arguments were invoked in the
1830s and 1840s to deny the people the right to constitute their politics in the
creation/recreation of constitutions independently of existing institutions. I conclude by
examining the decline of constitutional politics during the modem Court era and the rise of
judicial supremacy.
In this study, I integrate work of a variety of disciplines including political science,
law, and history. Traditionally political scientists and constitutional law scholars have
focused upon what judges, in particular federal judges, have to say about the Constitution.
In this study, however, I seek to expand our understanding of the constitutional order by
examining the contributions of other actors within the political system. The various
(political) contributions to the constitutional order cannot be divorced from the historical
context from which they emerged. Hence, in this study, I engage in historical interpretive
analysis of primary and secondary sources including, but not limited to federal appellate
court opinions. I do not deny that the judicial decisions of this period are insignificant. On
the contrary, there is a rich tradition of cases and judicial decisions that have had lasting
impact on the political system. Rather, I am suggesting that the judiciary’s contribution to
constitutional law is one of many competing visions that emerged in the early years of the
Republic.1 4 0 The Supreme Court was not the only institution passing judgment upon issues
of federal or state power. Other institutions within the political system were also defining
the scope of political and constitutional authority. Hence, in order to understand the type of
law that was made during this period, I focus upon the decisions of the state and federal
courts as well as the decisions, debates, laws, resolutions, vetoes, executive decisions,
speeches, etc. of other institutions located within the political system.
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In the end, my goal is not to discount the role of the judiciary in the constitutional
law-making process. Nor is it to advocate the banning of court decisions from constitutional
law texts. By examining the debates and outcomes of the constitutional issues of this era I
hope to enrich our understanding of how constitutional law and constitutionalism can be
more encompassing of the larger political system.
Conclusion
Why popular sovereignty? One of the problems with justifying institutional
authority on the basis of popular sovereignty is that it runs the risk of binding present and
future generations to the past. Stephen Griffin points to another flaw - popular sovereignty
cannot be implemented. How do people re-present themselves and channel their will
through institutions? How do people constitute their politics around the Constitution?
Griffin points to the inability of popular sovereignty to resolve the controversies over
nullification, secession, and states rights because there was "no institution the people as a
whole could use to settle disputes between the state and federal governments.” The
Constitution does not resolve the location of sovereignty between the states and the federal
government. Americans simply substituted parliamentary sovereignty with popular
sovereignty without considering the implications for political authority. The constitutional
convention was one way to implement popular sovereignty, but popular sovereignty was not
the answer for how to govern under the Constitution.1 4 1 Jack Rakove, who expressed a
“nagging desire to banish this word [popular sovereignty] from our political lexicon,”
presents similar arguments. He notes that after Independence, Americans rejected the
traditional model of a unitary sovereign and replaced it with a divided model of sovereignty,
“with sects and monuments of sovereignty cropping up all over the landscape.” Yet,
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federalism did not have an answer to whether there was “one sovereign people or thirteen (or
potentially more) sovereign peoples.”1 4 2 Moreover, sovereignty has survived not because it
“retained any analytical or descriptive power, but rather because it promised rhetorical and
political advantage to those who sought to use it.” Rakove terms this the theory of
“linguistic creep”- sovereignty is a trump card - “play that card successfully, and your
opponent either has to fold his hand or lose this round.”1 4 3
Griffin and Rakove’s criticism of popular sovereignty highlights the point of this
dissertation - the political implications of the idea of popular sovereignty were mightily
contested during the late eighteenth and early nineteenth centuries. Thus, it made it difficult
to implement popular sovereignty to the satisfaction of all parties in the system. The idea of
popular sovereignty is a central concept in American constitutional theory and a core
justification for the rise of federal judicial authority in American political development. This
narrow conception of institutional authority has clouded our vision of what constitutes
constitutionalism. Other institutions at both the state and federal levels latched on to the idea
of popular sovereignty to justify political authority.
Americans took the unitary theory of sovereignty and divided it at the state and
federal levels. With each controversy, the constitutional politics of popular sovereignty
became more complicated as more persistent arguments about the institutionalization (in
different institutions) of popular sovereignty were put forth. Popular sovereignty was
scattered among institutions and it became difficult to find a common ground when it came
to solving divisive constitutional issues. Different institutions at different times constituted
the people to suit political ends. The system was designed on the basis of divided
sovereignty, but it was clear that it could not survive under it. The division of sovereignty
made it difficult to implement and solve many controversial issues facing the nation. One
result was Civil War.
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Endnotes
1 Quoted in Bernard Bailyn, ed. The Debate on the Constitution: Federalist and Antifederalist
Speeches, Articles, and Letters During the Struggle Over Ratification. 2 vols. New
York: Literary Classics of the United States, 1993, II, p. 301.
2 Louis Fisher. Constitutional Dialogues: Interpretation as Political Process. Princeton: Princeton
University Press, 1988, p. 8.
3 For a discussion of the “indeterminacy” of popular sovereignty, see David G. Ritchie. “On the
Conception of Sovereignty.” Annals o f the American Academy o f Political and Social Science 1
(1891), pp. 385-411; John A. Jameson. “National Sovereignty.” Political Science Quarterly 5 (1890),
pp. 193-213.
4 Donald Lutz. Popular Consent and Popular Control: Whig Political Theory in Early State
Constitutions. Baton Rouge and London: Louisiana State Press, 1980, p. 38. See also Harold J. Laski.
“The Theory of Popular Sovereignty.” Michigan Law Review 17 (1919), pp. 201-215. But compare,
Charles A. Beard. “The Teutonic Origins of Representative Government.” American Political
Science Review 26 (1932), pp.28-44; Charles Beard and John D. Lewis. “Representative Government
in Evolution.” American Political Science Review 26 (1932), pp. 223- 240.
5 Walter F. Murphy. “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter.”
The Review o f Politics 48 (1986), pp. 401-423
6 Joseph P. Cotton, Jr. The Constitutional Decisions o f John Marshall. Vol. I. New York and London:
G.P. Putnam’s Sons, 1905, p. 3.
7 Frank C. Haymond. “John Marshall - His Influence on the Constitution and the Courts.” West
Virginia Law Quarterly 42 (1925), p. 28. See also Samuel R. Olken. “Chief Justice John Marshall
and the Course of American Constitutional History.” The John Marshall Law Review 33 (2000),
pp.743-779; R. Kent. Newmyer, “Chief Justice John Marshall in the Context of His Times.”
Washington and Lee Law Review 56 (1999), pp. 841-848. But compare, Lewis Henry LaRue. “How
Not to Imitate John Marshall.” Washington and Lee Law Review 56 (1999), pp. 819-839.
8 Edward S. Corwin. John Marshall and the Constitution: A Chronicle o f the Supreme Court. New
Haven: Yale University Press, 1919, pp. 230-231.
9 See Louis Fisher. “The Curious Belief in Judicial Supremacy.” Suffolk University Law Review 25
(1991), pp. 85-116.
1 0 Neal Devins. “How Constitutional Law Casebooks Perpetuate the Myth of Judicial Supremacy."
The Green Bag 3 (2000), pp. 259-265. Devins suggests, “one reason why the myth of judicial
supremacy persists is that academics... do not practice what they preach.” (p. 260). Indeed,
“constitutional law case books are a celebration of what law professors were trained to do (read cases
and write briefs) and what law professors do in their scholarship (write academic commentary - -
much of which assesses Supreme Court decisionmaking).” (p.264). But compare, Allan Ides. “Judicial
Supremacy and the Law of the Constitution.” UCLA Law Review 47 (1999), pp. 491-519. Ides
argues that laws have three characteristics - they regulate, enforce, and are authoritative and in order
for “constitutional law” to be law, it must have these characteristics. Congressional and executive
interpretations of the Constitution satisfy the enforceability and authoritative functions of law, but not
regulative function since clauses (and not the interpretation o f those clauses) are what regulate.
When the Court interprets, however, it satisfies all three functions.
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1 1 Keith E. Whittington. Constitutional Construction: Divided Powers and Constitutional Meaning.
Cambridge and London: Harvard University Press, 1999, p.l
1 2 Keith Whittington. Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial
Review. Lawrence: University Press of Kansas, 1999, p.5.
1 3 Ibid., p.9
1 4 Charles L. Black, Jr. The People and the Court: Judicial Review in a Democracy. Englewood
Cliffs: Prentice-Hall, Inc., 1960, p. 12; Edward S. Corwin. “Marbury v. Madison and the Doctrine of
Judicial Review.” Michigan Law Review 12 (1914), pp. 538-572.
1 5 Federalist 78. In Clinton Rossiter, ed. The Federalist Papers. New York: NAL Penguin Inc., 1961,
p. 467.
1 6 Albert J. Beveridge. The Life o f John Marshall. 4 vols. Boston and New York: Houghton Mifflin
Company, 1916, nip. 116.
1 7 Charles Grove Haines. The American Doctrine o f Judicial Supremacy. 2n d ed. Berkeley: University
of California Press, 1932.
1 8 Robert H. Jackson. The Struggle fo r Judicial Supremacy. New York: Vintage Books, 1941, p. 27.
1 9 Robert G. McCloskey. The American Supreme Court. 2n d ed. Revised by Sanford Levinson.
Chicago: University of Chicago Press, 1960, 1994, p. 19.
2 0 Ibid., p. 36.
2 1 James O’Fallon. “Marbury.” Stanford Law Review 44 (1992), pp. 219-260
2 2 Edmund S. Morgan. Inventing the People: The Rise of Popular Sovereignty in England and
America. New York and London: W.W. Norton and Company, 1988.
2 3 Robert Lowry Clinton. Marbury v. Madison and Judicial Review. Lawrence: The University of
Kansas Press, 1989, p. 1; J.M. Sosin. The Aristocracy o f the Long Robe: The Origins o f Judicial
Review in America. New York: Greenwood Press, 1989. The problem with this analysis is that
Marshall invoked judicial power in cases of a “nonjudicial nature” to uphold the constitutionality of
the acts of Congress. Examples of this include Gibbons v. Ogden, 9 Wheaton (U.S) 1 (1824);
McCulloch v. Maryland, 4 Wheaton 316 (1819); William Lasser. "Book Review: Marbury v.
Madison and Judicial Review." Journal o f Politics 53 (1991), pp. 258-260.
2 4 Sylvia Snowiss. Judicial Review and the Law o f the Constitution. New Haven and London: Yale
University Press, 1990.
2 5 Stephen M. Griffin. American Constitutionalism: From Theory to Politics. Princeton: Princeton
University Press, 1996, pp. 16-17.
2 6 Christopher Wolfe. “A Theory of U.S. Constitutional History.” The Journal o f Politics 43 (1981),
pp. 292-316; Christopher Wolfe. The Rise o f Modem Judicial Review: From Constitutional
Interpretation to Judge-Made Law. New York: Basic Books, 1986.
2 7 William E. Nelson. Marbury v. Madison: The Origins and Legacy o f Judicial Review. Lawrence:
University Press of Kansas, 2000, p.8.
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2 8 Ibid., pp. 62-63.
2 9 Ibid., 96-97. The famous phrase that led the Court into the foray of political controversies was
footnote 4 of Justice Harlan F. Stone’s opinion in United States v. Carotene Products (1938), which
reads in part:
It is unnecessary to consider now whether legislation which restricts
those political processes which can ordinarily be expected to bring about
repeal of undesirable legislation, is to be subjected to more exacting
judicial scrutiny under the general prohibitions of the Fourteenth
Amendment than are more other types of legislation....
Nor need we enquire whether similar considerations enter into the review
of statutes directed at particular religious, or national, or racial
minorities; whether prejudice against discrete and insular minorities may
be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect
minorities, and which may call for a correspondingly more searching
judicial inquiry.
United States v. Carotene Products 304 U.S. 144, 152 (1938).
3 0 Yet, in the words of Robert Harris, this “new” form of judicial review, as opposed to the “old” is
still “judicial supremacy.” Robert J. Harris. “Judicial Review: Vagaries and Varieties.” The Journal o f
Politics 38 (1976), p. 207.
3 1 Leonard W. Levy. “Judicial Review, History, and Democracy: An Introduction.” In Leonard W.
Levy, ed. Judicial Review and the Supreme Court: Selected Essays. New York: Harper and Row,
1967, pp. 1-12; Charles A. Beard, “The Supreme Court-Usurper or Grantee.” Political Science
Quarterly 27 (1912), pp. 1-35; Louis B. Boudin. “Government by the Judiciary.” Political Science
Quarterly 36 (1911), pp. 238-270; Horace A. Davis. “Annulment of Legislation by the Supreme
Court.” The American Political Science Review 7 (1913), pp. 541-587; Edward S. Corwin. “The
Establishment of Judicial Review.” Part I. Michigan Law Review 9 (1910), pp. 102-125; Edward S.
Corwin. “The Establishment of Judicial Review.” Part Q. Michigan Law Review 9 (1911), pp. 283-
316; Edward S. Corwin. “The Supreme Court and Unconstitutional Acts of Congress.” Michigan Law
Review 4 (1906), pp. 616-630.
3 2 Corwin, “The Establishment of Judicial Review, ” I, p. 103.
3 3 Gordon Wood. “The Origins of Judicial Review Revisited, or How the Marshall Court Made More
out of Less.” Washington and Lee Law Review 56 (1999), p. 793.
3 4 Ibid.
3 5 Ibid., pp. 803-805; See also Charles Warren. The Supreme Court in United States History: 1789-
1835 Boston: Little, Brown, and Company, 1926,1 , pp. 110-111.
3 6 Nelson, Marbury v. Madison; See also Charles F. Hobson. “The Origins of Judicial Review: A
Historian’s Explanation.” Washington and Lee Law Review 56 (1999), p 816.
3 7 Samuel P. Huntington. “Political Modernization: America vs. Europe.” World Politics 18 (1966),
pp. 392-395.
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3 8 Richard Neustadt. Presidential Power: The Politics o f Leadership from FDR to Carter. New York:
John Willey and Sons, Inc., 1960, p.33.
3 9 Huntington, “Political Modernization,” p. 394; Dudley Odell McGovney. “The British Origin of
Judicial Review of Legislation.” University o f Pennsylvania Law Review 93 (1944), pp. 1-49.
40 Learned Hand. The Bill o f Rights. Cambridge: Harvard University Press, 19S8, arguing that nothing
in the Constitution grants the judiciary the power to rule on the validity of activities of the other
departments; Cf: Black, The People and the Court.
4 1 Jack N. Rakove. “The Critical Use of History: The Origins of Judicial Review: A Plea for New
Contexts.” Stanford Law Review 49 (1997), p. 1034. Rakove shows that the debate over judicial
review in the Convention coincided with the defeat of Madison’s proposed negative on state laws and
the Supremacy Clause, which left the state and federal judiciaries with the task of maintaining the
superiority of national law and the boundaries of federalism.
4 2 John Phillip Reid. “Another Origin of Judicial Review: The Constitutional Crisis of 1776 and the
Need for a Dernier Judge.” New York University Law Review 64 (1989), pp. 987-989.
4 3 Barry Freidman. “The Counter-Majoritarian Problem and the Pathology of Constitutional
Scholarship.” Northwestern University Law Review 95 (2001), pp. 933-954, arguing that the legal
academy is “obsessed with trying to explain the seeming tension between judicial review and
democracy” (p. 935); See also Levy, “Judicial Review, History, and Democracy,” pp. 12-42.
4 4 Quoted in Levy, Judicial Review, p. 73.
4 5 James Bradley Thayer. John Marshall. Boston: Houghton Mifflin, 1901. pp. 103-107.
4 6 Alexander M. Bickel. The Least Dangerous Branch: The Supreme Court at the Bar o f Politics.
New York; Indianapolis: Bobbs-Merill Company, Inc., 1962, pp. 16-17.
4 7 Eugene V. Rostov. “The Democratic Character of Judicial Review.” Harvard Law Review 66
(1952), p. 213.
4 8 Albert P. Melone and George Mace. Judicial Review and American Democracy. Iowa: Iowa State
University Press, 1988, p. 236.
4 9 George Mace. “The Antidemocratic Character of Judicial Review.” California Law Review 60
(1972), pp. 1140-1160.
3 0 Jesse H. Chopper. “ The Supreme Court and the Political Branches: Democratic Theory and
Practice.” University o f Pennsylvania Law Review 122 (1974), pp. 810-858.
5 1 William R. Bishin. “Judicial Review in Democratic Theory.” Southern California Law Review 50
(1977): 1099-1137; See also Robert A. Dahl. A Preface to Democratic Theory. Chicago: University
of Chicago Press, 1956.
5 2 John. Rawls. A Theory o f Justice. Cambridge: Harvard University Press, 1971.
5 3 Ronald Dworkin. Taking Rights Seriously. Cambridge: Harvard University Press, 1977.
5 4 John Arthur. Words That Bind: Judicial Review and the Grounds of Modem Constitutional Theory.
Boulder, San Francisco, and Oxford: Westview Press, 1995.
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3 5 John Hart Ely. ‘Toward A Representation-Reinforcing Mode of Judicial Review.” Maryland Law
Review 37 (1978), pp. 451-487; John Hart Ely. Democracy and Distrust: A Theory o f Judicial Review.
Cambridge and London; Harvard University Press, 1980. Jesse H. Chopper. Judicial Review and the
National Political Process: A Functional Reconsideration o f the Role o f the Supreme Court. Chicago:
University of Chicago Press, 1980. See also Frederick Schauer. “Judicial Review of the Devices of
Democracy.” Columbia Law Review 94 (1994), pp. 1326-1347.
5 6 Quoted in David M. O’Brien. Storm Center: The Supreme Court in American Politics. New York
and London: WW Norton Company, 1986, p. 295.
3 7 David Adamany. “Legitimacy, Realigning Elections and the Supreme Court.” Wisconsin Law
Review 1973 (1973), pp. 790-846; David Adamany. “The Supreme Court’s Role in Critical
Elections." In Bruce Campbell and Richard J. Trilling, eds. Realignment in American Politics:
Toward A Theory. Austin and London: University of Texas Press, 1980, pp. 229-259; Richard
Funston. “The Supreme Court and Critical Elections.” American Political Science Review 69 (1975),
pp. 795-811; William Lasser. “The Supreme Court in Periods of Critical Realignment." The Journal
o f Politics 47 (1985), pp. 1174-1187. The classics on realigning elections are V.O. Key. “A Theory of
Critical Elections." The Journal o f Politics 17 (1955), pp. 3-18; Walter Dean Burnham. Critical
Elections and the Mainsprings o f American Politics. New York: W.W. Norton and Company, 1970.
3 8 Robert A. Dahl. “Decision-Making in a Democracy: The Supreme Court as a National Policy
Maker.” Journal o f Public Law 6 (1957), p. 285. See also Lucas A. Powe Jr. The Warren Court and
American Politics. Cambridge: Harvard University Press, 2000, arguing that the Warren Court was
not so much guided by Stone’s dictum in Footnote 4, but by supporting the ruling coalition. See also
Martin Shapiro. Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence.
New York: Free Press, 1964.
3 9 Jonathan D. Casper. “The Supreme Court and National Policy Making.” The American Political
Science Review 70 (1976), pp. 50-63.
6 0 Black, The People and the Court, p. 34.
6 1 Loren P. Beth. “The Supreme Court and the Future of Judicial Review.” Political Science
Quarterly 76 (1961), pp. 11-23.
6 2 John B. Taylor. “The Supreme Court and Political Eras: A Perspective on Judicial Power in a
Democratic Polity.” The Review o f Politics 54 (1992), p.363.
6 3 Jeffrey A. Segal and Harold J. Spaeth. The Supreme Court and the Attitudinal Model. New York:
Cambridge University Press, 1993.
6 4 Jack Knight and Lee Epstein. “On the Struggle for Judicial Supremacy.” Law and Society Review
30 (1996), pp. 87-120. Knight and Epstein argue that Marshall acted strategically in Marbury taking
into account Jefferson’s attitude towards the judiciary and talk of impeachment. Lee Epstein and Jack
Knight. The Choices Justices Make. Washington D.C.: Congressional Quarterly, Inc., 1998. Walter F.
Murphy. Elements o f Judicial Strategy. Chicago and London: University of Chicago Press, 1964.
6 3 Cornell W. Clayton and Howard Gillman, eds. Supreme Court Decision-Making: New
Institutionalist Approaches. Chicago and London: The University of Chicago Press, 1999. In 1988,
Rogers Smith suggested how new institutionalism could be applied to the study of courts. Rogers
Smith. “Political Institutionalism, the ‘New Institutionalism,’ and the Future of Public Law.”
American Political Science Review 82 (1988), pp. 89-108. See also Susan Low Bloch and Thomas G.
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Krattenmaker. Supreme Court Politics: The Institution and its Procedures. St. Paul: West Publishing
Co., 1994. For more on the role of organizations in politics, see James G. March and Johan P. Olsen.
Rediscovering Institutions: The Organizational Basis o/Politics. New York: The Free Press, 1989.
One famous example of these models of decisions making is the whether President Franklin Delano
Roosevelt’s “Court-Packing Plan” was responsible for the “switch in time,” or whether there were
internal forces acting on the Court. Compare e.g., William E. Leuchtenburg The Supreme Court
Reborn: The Constitutional Revolution in the Age o f Roosevelt. New York: Oxford University Press,
1995; Barry Cushman. Rethinking the New Deal Court: The Structure o f a Constitutional Revolution.
New York: Oxford University Press, 1998.
6 6 Barry Friedman. “The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial
Supremacy.” New York University Law Review 73 (1998), p. 342.
6 7 See e.g., David E. Engdahl. “John Marshall’s “Jeffersonian Concept of Judicial Review.” Duke
Law Journal 42 (1992), pp. 279-339; Francene Engel. “ The Myth of Judicial Supremacy:
Justiciability, Separation of Powers and Constitutional Politics in American Political Development.”
Ph.D. diss., University of Southern California, 2000.
6 8 Michael Klarman. “Majoritarian Judicial Review: The Entrenchment Problem.” Georgetown Law
Journal 85 (1997), pp. 497-498,503.
6 9 Ibid., pp. 498,506-507. Malapportionment and gerrymandering are types of cross-temporal
entrenchment.
7 0 Ibid., pp. 539-551. Anti-entrenchment review depends on three factors - the magnitude of the
entrenchment problem and if it is self -correcting, if it is judicially manageable, and if courts be
trusted to limit themselves to anti-entrenchment review.
7 1 Bruce Ackerman. We the People: Foundations. Cambridge and London: The Belknap Press of
Harvard University, 1991, p. 262.
7 2 Bruce Ackerman. “The Storrs Lectures: Discovering the Constitution.” The Yale Law Journal 93
(1984), p. 1031.
7 3 Ackerman, We the People, p. 139
7 4 Ibid., pp. 132-133, 159-162.
7 5 Compare David E. Kyvig. Explicit and Authentic Acts: Amending the Constitution, 1776-1995.
Lawrence: University of Kansas Press, 1996; Henry Paul Monaghan,. “We the People[s], Original
Understanding, and Constitutional Amendment.” Columbia Law Review 96 (1996), pp. 121-177;
Akhil Reed Amar. “The Consent of the Governed: Constitutional Amendment Outside of Article V.”
Columbia Law Review 94 (1994), pp. 457-508; Akhil Reed Amar. “Philadelphia Revisited:
Amending the Constitution Outside Article V.” University o f Chicago Law Review 5 (1988), pp.
1043-1104; Sanford Levinson. Responding to Imperfection: The Theory and Practice o f
Constitutional Amendment. Princeton: Princeton University Press, 1995; Stephen M. Griffin. “The
Nominee is... Article V.” Constitutional Commentary 12 (1995), pp. 171-173.
7 6 Michael J. Klarman. “Constitutional Fact/Constitutional Fiction" A Critique of Bruce Ackerman’s
Theory of Constitutional Moments.” Stanford Law Review 44 (1992), pp. 768-773.
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7 7 Compare Symposium. “Fidelity in Constitutional Theory.” Fordham Law Review 65 (1997), pp.
1247-1818; Michael J. Klarman. “Antifidelity.” Southern California Law Review 70 (1997), pp. 381-
415; Klarman, "Constitutional Moments,” p. 766, arguing that under Ackerman’s theory, “today’s
generation remains shackled by the constitutional restrictions of the pats until a mass popular
mobilizau'on... concedes to be the rigorous hurdles of the higher lawmaking track” (p. 766). See also
Michael Klarman. “What’s So Great About Constitutionalism?” Northwestern University Law Review
93 (1998), pp. 148-149, arguing that the agency conception of constitutionalism “exacerbates” the
dead hand of the past problem.
7 8 Compare Thomas C. Grey. “Do We Have and Unwritten Constitution ?” Stanford Law Review 27
(1975), pp. 843-893; Suzanna Sherry. “The Founders Unwritten Constitution." University o f Chicago
Law Review 54 (1987), pp. 1127- 1177; Robert H. Bork. “Neutral Principles and Some First
Amendment Problems.” Indiana Law Journal 47 (1971), pp. 1-35.
7 9 Compare Frederick Schauer. “Easy Cases.” Southern California Law Review 58 (1985), pp. 399-
440; Sanford Levinson. “Law and Literature.” Texas Law Review 60 (1982), pp. 373-403.
8 0 Compare, Herbert Wechsler. ‘Towards Neutral Principles of Constitutional Law.” Harvard Law
Review 79 (1959), pp. 1-35; MarkTushnet. “Following the Rules Laid Down: A Critique of
Interpretivism and Neutral Principles.” Harvard Law Review 96 (1983), pp. 781-827.
8 1 Alexander Aleinikoff. “Constitutional Law in the Age of Balancing.” Yale Law Journal 96 (1987),
pp. 943-1005.
8 2 Compare, H. Jefferson Powell. “The Original Understanding of Original Intent.” Harvard Law
Review 98 (1985), pp. 885-948; Paul Brest. “The Misconceived Quest for the Original
Understanding.” Boston University Law Review 60 (1980), pp. 204-238; Richard S. Kay. “Adherence
to the Original Intentions in Constitutional Adjudication; Three Objections and Responses.”
Northwestern University Law Review 82 (1988), pp 226-292; Jack Rakove. Original Meanings:
Politics and Ideas in the Making o f the Constitution. New York: Alfred A. Knopf, 1997
8 3 McCulloch v. Maryland-, William H. Rehnquist. “The Notion of a Living Constitudon.” Texas Law
Review 54 (1976), pp. 693-706. See generally, Howard Gillman. “The Collapse of Constitutional
Originalism and the Rise of the Notion of the “Living Constitution in the Course of American State-
Building.” Studies in American Political Development 11 (1997), pp. 191-247, arguing that from the
time of the founding, the Constitution was a fixed (Newtonian) document, or in the words of Michael
Kammen, “a machine that would go of itself’ that could be interpreted with the framers intent in
mind. But at the turn of the century the rise of industrial revolution, Progressives accused the Court
of not keeping up with the times. A new form of constitutionalism emerged, one based on Darwinian
notions of evolution - the Constitution was interpreted to adopt to changing circumstances. Michael
Kammen. A Machine That Would Go o f Itself New York: Alfred A. Knopf, 1986. See also G.
Edward White. “The “Constitutional Revolution” as a Crisis in Adaptivity.” Hastings Law Journal 48
(1997), pp. 867-912, adapting these new notions of constitutional interpretation to New Deal judges
and the rise of the “constitutional revolution.” For more on the Progressive critique of the
Constitution and the Court, see James Allen Smith. The Spirit o f American Government. Cambridge:
Belknap Press of Harvard University Press, 1907; James Allen Smith. The Growth and Decadence o f
Constitutional Government. New York: Harvard University Press, 1930; Walter E. Weyl. The New
Democracy: An Essay on Certain Political and Economic Tendencies in the United States. New York
and London: Harper and Row, 1912; William Allen White. The Old Order Changeth: A View o f
American Democracy. New York: The MacMillan Company, 1910.
8 4 Barry Friedman and Scott B. Smith. “The Sedimentary Constitution.” University o f Pennsylvania
Law Review 147 (1998), p. 77.
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8 5 Sanford Levinson. ““The Constitution” in American Civil Religion.” In Philip B. Kurland and
Gerhard Casper, eds. The Supreme Court Review. Chicago and London: The University of Chicago
Press, 1979, pp. 124-151.
8 6 Sanford Levinson. Constitutional Faith. Princeton: Princeton University Press. 1988.
8 7 Fisher, Constitutional Dialogues, p. 243,
8 8 Mark A. Graber. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies
in American Political Development 7 (1993), pp.35-73.
8 9 See e.g. Neal Devins. Shaping Constitutional Values: Elected Government, the Supreme Court,
and the Abortion Debate. Baltimore and London: The John Hopkins University Press, 1996.
9 0 Robert A. Burt. The Constitution in Conflict. Cambridge: Harvard University Press, 1992, p. 3.
9 1 Brown v. Board o f Education 347 U.S. 483 (1954).
9 2 Burt, Constitution in Conflict, p. 303. But compare, Michael Klarman. “How Brown Changed
Race Relations: The Backlash Thesis.” The Journal o f American History 81 (1994), pp. 81-118,
arguing that far from inspiring the civil rights movement, Brown crystallized southern resistance to
racial change and polarized the South. See also, Mary L. Dudziak. “Desegregation as a Cold War
Imperative.” Stanford Law Review 41 (1988), pp. 61-120; Mary L. Dudziak. “The Little Rock Crisis
and Foreign Affairs: Race, Resistance, and the Image of American Democracy.” Southern California
Law Review 70 (1997), pp.1641- 1716, arguing that the Eisenhower Administration’s support for
Brown was part of a “cold war imperative” designed to demonstrate to the world America’s
commitment to democracy and racial integration in its battle against Communism. See also Jack
Peltason. Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation. New York:
Harcourt, Brace & World, Inc., 1961.
9 3 Susan R. Burgess. Contests fo r Constitutional Authority: The Abortion and War Powers Debates.
Lawrence: University Press of Kansas, 1992, pp. 24-26.
9 4 Ibid., pp. 122-123.
9 3 Leslie F. Goldstein. By Consent of the Governed: Directions in Constitutional Theory.” In Lee
Epstein, ed. Contemplating Courts. Washington D.C.: Constitutional Quarterly Inc, 1995, p. 285.
9 6 Paul R. Diamond. The Supreme Court and Judicial Choice: The Role o f Provisional Review in a
Democracy. Ann Arbor: The University of Michigan Press, 1989, p. 4.
9 7 See also Ronald Kahn. The Supreme Court and Constitutional Theory: 1953-1993. Lawrence:
University of Kansas Press, 1994, p. 22.
9 8 Barry Friedman. “Dialogue and Judicial Review.” Michigan Law Review 91 (1993), p. 658.
9 9 E.E. Schattschneider, The Semisovereign People: A Realist’s View o f Democracy in America.
Florida: Harcourt Brace Jovanovich Publishers, 1975, pp. 10-11.
1 0 0 Friedman, “Dialogue and Judicial Review,” p. 653.
1 0 1 Ibid., p. 651.
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1 0 2 Griffin, American Constitutionalism. See also Keith Whittington. “The Road Not Taken: Dred
Scott, Judicial Authority, and Political Questions.” The Journal o f Politics 63 (2001), pp. 365-391,
arguing that although Dred Scott was as an assertion of judicial supremacy, Justice Curtis’s dissent
left open a sphere for constitutional politics in light of judicial review.
1 0 3 Michael Stokes Paulsen. “Protestantism and Comparative Competence: A Reply to Professors
Levinson and Eisgruber.” Georgetown Law Journal 83 (1994), p. 385.
1 ( M Larry Alexander and Frederick Schauer. “On Extrajudicial Constitutional Interpretation.” Harvard
Law Review 110 (1997), pp. 1359-1387.
1 0 5 Emily Sherwin. “Ducking Dred Scott: A Response to Alexander and Schauer.” Constitutional
Commentary 15 (1998), pp. 65-71.
1 0 6 CityofBoeme v. Flores 117 St. Ct. 2157 (1997). The Act (known as RFRA) was passed in
response to the Court’s decision in Employment Division v. Smith 494 U.S. 872 (1990), in which the
Court ruled that the Free Exercise Clause did not cover religious rituals.
1 0 7 Robert E. Nagel. “Reflections on City o f Boeme v. Flores: Judicial Supremacy and the Settlement
Function.” William and Mary Law Review 39 (1998), p. 859. But compare, Neal Devins. “Reflections
on City o f Boeme v. Flores: How Not to Challenge the Court." William and Mary Law Review 39
(1998), pp. 645-664, arguing that RFRA’s grant of power to Congress under Section 5 of the
Fourteenth Amendment was designed to preclude inter-branch dialogue between Congress and the
Court. “Rather than encourage dialogue over the meaning of the Constitution's religious liberty
protection, RFRA sought to silence the Supreme Court.” (p. 647).
1 0 8 MarkTushnet. Taking the Constitution Away From the Courts. Princeton: Princeton University
Press, 1999, p. 28.
1 0 9 Neal Devins and Louis Fisher. “Judicial Exclusivity and Political Instability.” Virginia Law Review
84(1998), p. 103.
1 1 0 Edward A. Harttnet. “A Matter of Judgment, Not a Matter of Opinion.” New York University Law
Review 74 (1999), p. 127.
1 1 1 Devins and Fisher, “Judicial Exclusivity,” p. 96.
1 1 2 Larry Alexander and Frederick Schauer. “Defending Judicial Supremacy: A Reply.” Constitutional
Commentary 17 (2000), p 475. The authors point to police officers violating the Fourth Amendment,
state legislatures imposing school prayer, and executives using their powers to discourage women
from having abortions.
1,3 Christopher L. Eisgruber. “The Most Competent Branches: A Response to Professor Paulsen.”
Georgetown Law Journal 83 (1994), p. 352. Eisgruber notes that his work was influenced by Jeffrey
Tulis’s The Rhetorical Presidency, in which he identified the distinct constitutional roles the federal
branches of government. Jeffrey Tulis. The Rhetorical Presidency. Princeton: Princeton University
Press, 1987.
1 1 4 Scott E. Gant. “Judicial Supremacy and Nonjudicial Interpretation of the Constitution.” Hastings
Constitutional Law Quarterly 24 (1997), p. 396.
us Ibid., p. 394. An interesting connection to this theory is Dahl’s ruling coalitions theory, which
suggestions that the Court’s policy decisions “are never far long out of line with the policy views
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dominant among the lawmaking majorities of the United States.” Dahl. “Decision-Making in a
Democracy,” p. 28S. Various forms of nonjudicial interpretation can help the Court come to a better
understanding of what those policy views are.
1 1 6 James Meemik and Joseph Ignagni. "Judicial Review and Coordinate Construction of the
Constitution." American Journal o f Political Science 41(1997), pp.447-467.
1 1 7 Neal Kummar Katyal. “Legislative Constitutional Interpretation.” Duke Law Journal SO (2001),
pp. 1350-1353. But compare, Abner J. Mikva. “How Well Does Congress Support and Defend the
Constitution?" North Carolina Law Review 61 (1983), p. 606, arguing that legislatures “are motivated
by a desire to enact any particular piece of legislation that fills the perceived needs of the moment.”
Congress is capable of “making constitutional judgments,” yet “both institutionally and politically, it
is designed to pass over the constitutional questions, leaving the hard decisions to the courts” (p. 609).
1 1 8 “The Most Dangerous Branch: Executive Power to Say What the Law Is.” Georgetown Law
Journal 83 (1994), pp. 217-345.
1 ,9 Gary Lawson and Christopher D. Moore. “The Executive Power of Constitutional Interpretation."
Iowa Law Review 81 (1996), p. 1286; Frank H. Easterbrook. “Presidential Review.” Case Western
Reserve Law Review 40 (1990), p. 905. Judge Easterbook wrote the following: “No one would take
seriously an assertion that the President may not interpret federal law. After all, the President must
carry out the law, and faithful execution is the application of law to facts. Before he can implement
he must interpret.”
1 2 0 Lawson and Moore, “Executive Power,” pp. 1287-1288.
1 2 1 For the account of executive legal review of the Constitution as a member of a coordinate
department, see Michael Stokes Paulsen. “The Most Dangerous Branch: Executive Power to Say
What the Law Is.” Georgetown Law Journal 83 (1994), pp. 217-345.
1 2 2 See e.g., Stephen Skowronek. The Politics Presidents Make: Leadership from John Adams to Bill
Clinton. Cambridge, MA and London: The Belknap Press of Harvard University Press, 1997. The
classic book on the modem presidency is Richard Neustadt. Presidential Power: The Politics o f
Leadership from FDR to Carter. New York: John Willey and Sons, Inc., 1960.
1 2 3 Sanford Levinson. “Constitutional Protestantism in Theory and Practice: Two Questions for
Michael Stokes Paulsen and One for his Critics.” Georgetown Law Journal 83 (1994), p. 375.
1 2 4 Wayne Moore. Constitutional Rights and Powers o f the People. Princeton: Princeton University
Press, 1996, pp. 11-12.
1 2 5 William Wiecek. The Sources o f Antislavery Constitutionalism in America, 1760-1848. Ithaca and
London: Cornell University Press, 1977.
1 2 6 Wayne D. Moore. Constitutional Rights, p. 43. Gregory T. Garvey. “Frederick Douglass’ Change
of Opinion on the United States Constitution: Abolitionism and the Elements of Moral Power.”
American Transcendental Quarterly 9 (1995), 230. Before Dred Scott, Douglass’ speeches and
writings reflected his disdain for the Constitution, which he believed sanctioned slavery. Like the
Garrisons, Douglass was committed to abolishing slavery on moral, as opposed to political or legal
grounds. All this changed after Dred Scott.
1 2 7 John W. Blassingame. ed. The Frederick Douglass Papers: Series One: Speeches, Debates, and
Interviews. Vol. U. New Haven and London: Yale University Press, 1982, p. 227.
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1 2 8 Garvey, “Frederick Douglas, p. 240
1 2 9 Moore, Constitutional Rights, pp. 46,51.
1 3 0 Todd F. McDorman. “Challenging Constitutional Authority: African American Responses to Scott
v. Sanford." The Quarterly Journal o f Speech 83 (1997), p. 203.
1 3 1 Tushnet, Taking the Constitution Away from the Courts, pp. 11 -12.
1 3 2 Ibid., pp. 182-187.
1 3 3 Laura S. Fitzgerald. “Cadenced Power: The Kinetic Constitution.” Duke Law Journal 46 (1997), p.
734.
1 3 4 Ibid., pp. 741-761.
1 3 5 One of the most authoritative figures on representative government is Hanna P. Pitkin. See Hanna
F. Pitkin. The Concept o f Representation. Berkeley and Los Angeles: University of California Press,
1967, p. 8. Representation means to re-present, or make present again.
1 3 6 See Bruce G. Peabody. “Nonjudicial Constitutional Interpretation, Authoritative Settlement, and a
New Agenda For Research.” Constitutional Commentary 16 (1999), pp. 78-79, 86.
1 3 7 Devins and Fisher, “Judicial Exclusivity,” p. 106.
1 3 8 Whittington, Constitutional Construction, p. 6
1 3 9 Gerald Rosenberg’s book, The Hollow Hope, set in motion a debate in the literature over whether
courts and law can bring about social change. Rosenberg argued in the negative. This court-centered,
top-down approach was criticized as one in which law and courts impose themselves on society.
Michael McCann advocates the dispute-centered, bottom-up approach that focuses on the
“constitutive” function of law, where law can be used as a catalyst in an interactive dialogue with the
courts. See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change!
Chicago: University of Chicago Press, 1991; Michael W. McCann. “Reform Litigation on Trial.” Law
and Social Inquiry 17 (1992), pp. 715-743; Malcolm Feeley. “Hollow Hopes, Flypaper, and
Metaphors.” Law and Social Inquiry 17 (1992), pp. 761-778; Gerald N. Rosenberg. “Hollow Hopes
and Other Aspirations: A Reply to Feeley and McCann." Law and Social Inquiry 17 (1992), pp. 761-
778. McCann develops his argument in Michael W. McCann. Rights at Work: Pay Equity Reform
and the Politics o f Legal Mobilization. Chicago: University of Chicago Press, 1994.
1 4 0 See David P. Currie. “The Constitution in the Supreme Court: 1789-1801.” The University o f
Chicago Law Review 48 (1981), pp. 819-885; David P. Currie. The Constitution in the Supreme
Court: The First Hundred Years 1789-1888. Chicago and London: University of Chicago Press,
1985; David P. Currie. The Constitution in Congress: The Federalist Period 1789-1801. Chicago
and London: University of Chicago Press, 1997.
1 4 1 Griffin, American Constitutionalism, p.23-25.
1 4 2 Jack Rakove. “Making a Hash of Sovereignty, Part I.” Green Bag 2 (1998), pp. 35,40.
1 4 3 Jack Rakove. “Making a Hash of Sovereignty, Part II.” Green Bag 2 (1999), p.58.
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Chapter 1
Popular Sovereignty as Creation:
The Explosion of the People “Out-of-Doors”
What the radicals did not see was that the conservative elements in
American society had learned a bitter lesson at the hands of the
radicals. They too could call conventions. They too could paint
dark pictures of the times and blame the supposed woes of the
country on the Articles of Confederation, as the radicals had
blamed the British government before 1776. They too could, and
did, adopt the radical theory of the sovereignty of the people; in
the name of the people they engineered a conservative
counterrevolution and erected a nationalistic government whose
purpose in part was to thwart the will of “the people” in whose
name they acted.
Merrill Jensen (1970)'
Introduction
One of the earliest battles over the institutionalization of popular sovereignty took
place between 1776 and 1787. At issue, what role would the people have in the creation of
constitutions to govern the newly independent states and the nation? In particular, would the
people participate in this process through legally constituted institutions (i.e., in legislatures)
or independently of them (i.e., in conventions)? After the Glorious Revolution, the will of
the people (including the will of the “virtually” represented colonists) became an expression
of the will of Parliament. Following the American Revolution, the newly independent states
equated popular sovereignty with legislative sovereignty. During the era of the Articles of
Confederation, popular sovereignty was defined as state sovereignty. Once the Philadelphia
Convention of 1787 produced the Constitution, popular sovereignty became national
sovereignty or popular sovereignty as Union.
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The rejection of parliamentary sovereignty, the early experiments with state
constitutions, the Articles of Confederation, and the federal and state ratifying conventions,
each contributed to the politics of sovereignty and the ongoing debate over how the will of
the people of the “united states” would be institutionally expressed. Moreover, it was during
this era that division of sovereignty took place and the problems of implementation ensued.
In this chapter, I examine the debates over the role of popular sovereignty in the
political disputes over the creation of the early state constitutions, the Articles of
Confederation, and the federal Constitution. I focus on the relationship between popular
sovereignty and constitutional conventions and the role of constitutional conventions in the
process of creation. I show that these debates over the creation of constitutions were part of
a larger debate over the location of sovereignty between the center and the peripheries. The
disagreement over the location of sovereignty led to the division of sovereignty, and with it
the controversy over how to institutionalize popular sovereignty in multiple institutions.
Redefining Sovereignty: From the Monarch to Parliament to the People
The Glorious Revolution represented a culmination of shift in the structure of
political authority. The government of sixteenth century Tudor England was one of fused
powers with each institution, including Parliament and the Crown, performing many
functions.2 During and after the Glorious Revolution, sovereignty was concentrated in one
institution - Parliament. The Crown’s authority was subordinate to Parliament. The King
was no longer separate from Parliament; rather, he became the “king- in - Parliament.”
Sovereignty, now lodged in the Parliament, was immutable.3 As Sir William Blackstone
noted in his Commentaries on the Laws o f England, “in every state, there is and must be a
supreme, irresistible, absolute, and uncontrolled authority, in which the rights of sovereignty,
reside.” Sovereignty in Parliament was single, undivided, and unlimited. Parliament
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represented the combination of the King, the Lords, and the Commons, whose actions “no
power on earth can undo.”4
Parliament was also the embodiment of the people, including the virtually
represented colonists. By embodying the will of the people in a legislative body, Parliament
proclaimed that it could give popular sovereignty its fullest institutional expression. But the
immediate objective of this transfer was not to magnify the power of the, but the power of
their representatives.3 Henry Parker, one of the earliest proponents of parliamentary
sovereignty admitted that although the power of the people was superior to that of the King,
the people had no direct role in governance. Accordingly, it was impossible to separate the
people from Parliament since the two were united as one.6
Parliament claimed that it was sovereign over the colonists. The colonists were
denied actual representation in Parliament, but as late as the early 1770s, some colonists
acknowledged their dependency on Great Britain. “The dependence of the colonies to Great
Britain hath been fully testified by a constant and ready obedience to all the commands of
his present Majesty and his royal predecessors,” Rhode Island Governor Stephen Hopkins
wrote.7 In 1764, James Otis, in the Rights o f the British Colonies, noted that Parliament had
the “undoubted power and lawful authority to make Acts for the general good,” and that the
colonies were “subordinate dominions.” Yet, he denied that the exercise of Parliament’s
power was absolute and arbitrary. “No parts of His Majesty’s dominions can be taxed with
their consent: that every part has a right to be represented in the supreme or some
subordinate legislature.”8 Although Parliament’s actions violated natural law, abridged
rights, and departed from the fundamental principles of the British constitution, Otis insisted
that the colonists were bound to obey Parliament.9 He believed that when convinced of its
own mistakes and the unconstitutionality of their acts, Parliament, on its own recognizance,
would correct itself.
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The colonists qualified their submission to Parliament when it came to taxation by
distinguishing it from legislation. Legislation was a function of sovereignty and as the
representative of the nation Parliament had the authority to legislate for the common good of
the empire. But taxes were a “free gift” from the people and could only levied by a body
that represented them.1 0 This distinction between taxation and legislation lay at the heart of
the debate over the location of sovereignty and the distribution of authority between the
Empire and the colonies.1 1 One institution was supreme on some, but not on all matters
pertaining to the territory it controlled. Other institutions exercised sovereign powers as
well, in particular colonial legislatures, whom the colonists believed had the authority to
handle internal matters such as taxation.1 2 This division of sovereign power also laid the
foundation for one of the essential features of American constitutionalism - the ability of the
people to divide sovereignty and distribute their authority to different institutions.1 3
The colonial experiences with England and their relationship with Parliament and
the King deteriorated to the point of rejecting parliamentary sovereignty.1 4 As John Phillip
Reid put it:
[n]o other legal or constitutional consideration contributed more to
the coming of the American Revolution than the realization that...
the doctrine of parliamentary supremacy was evolving into
parliamentary sovereignty, making the House of Lords, and the
House of Commons, not only supreme over the crown, but
potentially sovereign over the people, the constitution, and most
extreme of all, over the rule of law.1 3
In the place of parliamentary sovereignty, a new theory emerged - one that had
important implications for law, politics, and constitutionalism — the theory of popular
sovereignty. Yet, the consensus over the theory of popular sovereignty did not translate into
an agreement on its political practice when it came to setting up institutional structures for
the new nation
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Early State Constitutions: The People “Out of Doors”
In 1775, John Adams asked the Continental Congress “to recommend to the people
of every Colony to call such conventions immediately, and set up governments of their own,
under their own authority; for the people were the source of all authority and...all power.”1 6
On May 10, 1776, the Continental Congress recommended to the “respective Assemblies
and Conventions of the United Colonies... to adopt such a government as shall, in the
opinion of the representatives of the people, best conduce to the happiness and safety of their
constituents in particular, and America in general.” On May 15, a preamble was added that
called for the total suppression of authority under the Crown, and that “all powers of the
government exerted, under the authority of the people” as expressed in “full and free
representation.”1 7 Yet, this was a period of uncertainty since independence had not been
declared and the colonies were at war. Furthermore, the Continental Congress did not
specify what form (i.e., republican) the new governments should take. It was left to the
colonies (now states) to decide. How would they ensure that governments they founded
were based on the “authority of the people?” How would new constitutions be created, and
by whom?
The Continental Congress called upon both the “Assemblies and Conventions” to
entertain their motion. The convention being referred to in the request was likely one of the
various extra-legal institutions such as associations, conventions, congresses, and
committees that had formed during the colonial era. Americans have had a rich tradition of
expressing their will through extra-legislative means and extra-legal organizations,
committees, and associations.1 8 When the people could not find the proper institutions to
express their grievances, they resorted to the politics “out-of-doors,” that is, outside legal
representative institutions and inside committees and associations.1 9 During the colonial
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period, such institutions were designed to circumvent the assemblies that were under the
control of the royal governors. When the royal governors dissolved the colonial assemblies
or when they refused to call them into session, extra-legal provincial congresses and
committees emerged and exercised authority. Richard Brown describes the role of the
people in these extra-legal associations:
Participation demonstrated that the concept of the sovereignty of
the people to meet and act in their own towns according to their
own lights, independent of the wishes of the governor, possessed
not only broad acceptance but also immediate reality as the basis
for political conduct.... Participation measures the degree to which
imperial and constitutional issues were penetrating local affairs,
becoming matters appropriate for widespread public consideration,
not merely the concern of legislators.2 0
One of the meetings “out-of-doors” took place in constitutional conventions, which
have been defined as “a collection o f delegates appointed by the sovereign, through the
agency of one or more branches of the existing government, to perform certain determinate
duties in relation to the formation or revision of the fundamental law.”2 1 The idea of a
convention was not distinctly an American (colonial) creation. During the English Civil
War, Parliament resorted to a convention to gain supremacy over the Crown.2 2 The
convention was a body lacking the legality necessary to constitute a parliament. The King
did not convene this convention and it lacked his presence and acceptance.2 3 Other phrases
associated with conventions were “defective parliament,” “imperfect parliament,” and “lame
parliament.”2 4 Franklin Jameson traced the concept of a convention to Scotland where it
referred to a less formal parliament not requiring agreement by the Crown, but nonetheless
exercising various powers.2 5
Inextricably linked to a convention were the ideas of a supreme law and the
separation of constitutional law from statutory law. In the 1770s and early 1780s, this
separation was predicated upon three ideas. First, a written constitution that set the
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boundaries of legislative authority. Second, a separation between constitution-making and
law-making. Third, a procedure for amendment provided by the constitution.2 6
The idea of fundamental laws was nothing new to the colonists.2 7 They had
repeatedly invoked the higher authority of the British constitution as well as the colonial
charters to protest parliamentary aggression.2 8 The British constitution reflected the
evolution of British culture, custom, and other historical commitments. Although unwritten,
the constitution contained within it the idea that power must be constrained. These
limitations were embodied in an accumulated set of customary practices. Americans
continued to advocate limitations on the exercise of institutional authority, but instead of
relying on custom, they codified (through charters) the customary constitutional practices
and delineated the means by which power was exercised.2 9 As Parliament continued to pass
coercive measures and as the King acquiesced in those measures, the appeal to a higher law
in written colonial charters was augmented. After independence, constitutionalism was
placed on a textual footing, which meant that limitations on institutional authority flowed
from written constitutions created by the people in constitutional conventions. According to
William Morey, American constitutionalism developed within an “area of written law.’’3 0
For the colonists, the key was to link popular sovereignty and constitutional conventions to
the idea of a written constitution. Morey writes,
The very idea of a written constitution itself, which recognizes the
government as the legally established organ of sovereign power,
grew out of those peculiar circumstances in which thirteen
dependent colonies, deriving their political powers from expressed
grants of the sovereign crown, were transformed into thirteen
independent governments, deriving their powers from the
expressed will of the sovereign people. The sovereignty of the
people was substituted for the sovereignty of the crown; and a
written constitution took the place of a written charter as the
instrument which determined the powers of the government and
secured the rights of the subject.3 1
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The second phase was predicated upon separating constitutional conventions from
legislatures. The key to constitutional conventions was the distinction between legislative
power and the constituent power of the sovereign people.3 2 Conventions were linked to the
sovereignty of the people and the fundamental laws that embodied their will.3 3 Conventions
demonstrated the ability of the sovereign people to act independently of existing institutional
arrangements to create new constitutional orders.3 4 In order for this to take place, a clear
separation had to be made between legislative institutions and constitution-making bodies.3 5
Convention delegates were also to be chosen for the sole purpose of putting forth a plan of
government, not to execute it after it had been framed.3 6 In 1776, an anonymous orator
wrote, “legislative bodies of men have no more the power of suppressing the authority they
sit by, than they have of creating it, otherwise every legislative body would have the power
of suppressing a constitution at will.” “CONVENTIONS... are the only proper bodies to
form a Constitution, and Assemblies are the proper bodies to make Laws agreeable to that
constitution.”3 7
Historian Donald Lutz argues that conventions gave greater meaning to the idea of
direct popular consent. Constitutions that were written by legislatures were a form of
governmental consent. “The legislature consented to their own agency in writing the
document, and then gave governmental consent by adopting it themselves.”3 8 Constitutions
written by delegates in conventions and ratified by the people were a form of popular
consent. Lutz writes,
[T]he people at large gave direct consent to agents who were
chosen specifically to write a constitution and who then submitted
the document to the people for their direct approval. There is no
question that this represents a shift from an indirect form of
consent, whereby people elected legislators with no idea of what
they would subsequently write into the constitution, indeed with
no idea whether they would even write one, to a consistently direct
form of consent.3 9
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The framers of the early American constitutions appreciated the importance of
conventions, but they did not always practice what they preached. The early state
constitutions were written by legislatures (primarily provincial congresses that had taken
over the reigns of power), which blurred the distinction between constitutions and ordinary
laws. Constitutions written by legislatures could not limit the authority of legislatures.4 0
Many early commentators stressed the importance of the distinction between constitutional
and statutory law, yet, ironically, constitutional conventions did not play a leading role in the
creation of the state constitutions following the orders of the Continental Congress.4 1 The
idea that constitutions must be framed by conventions completely separate from legislatures
was not fully accepted by the colonists.4 2 Gordon Wood argues that during and after their
struggle with Parliament, Americans rejected parliamentary supremacy, but not legislative
supremacy, which partly explains why legislatures created the early constitutions.4 3
The idea that the constitution must be created only in specially elected conventions
was not widely supported. The colonists had two other options - the assemblies or the
provincial congresses. As the relationship between the colonies and Great Britain
deteriorated, so did the relations between the assemblies and the royal governors. This led to
the creation of extra legal committees and congresses exercising extraordinary powers. In
states where the provincial congress controlled political authority, that institution created the
constitution. In Pennsylvania where the relations between the Tory controlled Assembly and
the Whig controlled congress were sour, not only did they disagree over the proper
institution to form a constitution, they could not agree that a new constitution was even
necessary. Whether the constitution was created in an assembly or in an existing
provisional congress, the same institution performed three tasks - declared independence,
created a new constitution, and performed legislative duties.
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The adoption of state constitutions can be divided up into three “wave” periods. The
first wave was in immediate response to the Continental Congress’ order for the states to
draft new constitutions. Constitutions created in the first wave were usually drafted by
legislative bodies and were not unlike the colonial charters, except in so far as the executive
power was weakened. Included in this category were the New Hampshire, South Carolina,
Virginia, New Jersey, Maryland, Delaware, Rhode Island, Connecticut, Pennsylvania and
North Carolina Constitutions of 1776, and the Georgia Constitution of 1777. Constitutions
in the second wave had three distinguishing features. The first was a system of separated
powers and checks and balances. Next, these constitutions were the products of deliberation.
Lastly, they were created in specially elected bodies. Included in this category were the
constitutions of New York (1777), South Carolina (1778), Massachusetts (1780), New
Hampshire (1784) and Vermont (1786). The Georgia (1789), South Carolina and
Pennsylvania (1790), Delaware, Kentucky, New Hampshire (1792), Vermont (1793),
Tennessee (1796) and Georgia (1798) constitutions were part of the third wave. Also
included were three new states as well as seven revisions of existing constitutions.4 4
Four colonies formed new constitutions before the Declaration of Independence, two
of them (New Hampshire and South Carolina) formed their constitutions before Congress’
May, 1776 recommendation. When Virginia and South Carolina asked the Continental
Congress for advice on how to proceed, it recommended that a convention representing
people establish a government “during the continuance of the present dispute between Great
Britain and the Colonies.”4 5 The idea that the colonies should form new governments during
the dispute with Britain meant that independence was not a priority. Anti-British feeling was
high, yet many colonists resisted the idea of total separation.4 6 The constitutions of New
Hampshire and South Carolina were not expected to be permanent forms of government. In
both colonies conservatives expressed opposition to the new constitution because they feared
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that independence was imminent.4 7 Therefore both colonies hastily created constitutions that
were considered temporary until the controversy with Great Britain subsided. Whereas the
provincial congress of New Hampshire was elected with the power to dissolve itself into a
convention in addition to its regular powers, the provincial congress of South Carolina had
been elected solely to conduct regular business.4 8 In New Hampshire, several towns refused
to send representatives to the provincial congress because the new government was “not
agreeable to the minds of the people of this state, by an Assembly peculiarly chosen for that
purpose.”4 9 Despite these objections, on January 6, 1776, the provincial congress approved
the constitution the same way it voted on regular legislation.5 0
On February 8, 1776, the South Carolina provincial congress appointed a committee
to discuss the formation of a new constitution. A group of delegates argued that the
provincial congress was not the proper body to frame the constitution.5 1 Others objected to a
separate election for a convention since it suggested that the people did not vest the congress
with any power.5 2 Still others objected that there was not “full and free representation" in
the congress/convention since there was a disparity in representation.5 3 Once the committee
finished its work, the congress discussed each clause and handled the business of
government. On March 26, the congress passed (as it did all laws) the provincial
constitution and immediately convened under it.5 4
On May IS, 1776, the provincial congress of Virginia appointed a committee to draft
a constitution. There is some evidence to suggest that the people of Virginia expected the
provincial congress to form the constitution. Some towns called upon their delegates to vote
for independence and adopt a constitution.5 5 Yet, there were objections. When the
provisional congress proposed to enact a constitution, Thomas Jefferson wrote to Edmund
Randolph suggesting that a permanent constitution could not be formed until the people
elected delegates to a convention specifically chosen for that purpose.5 6 In response,
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Edmund Randolph rejected the distinction between the “power to declare independence and
its necessary consequence, the fencing of society by the institution of government.”5 7 In
congress, Patrick Henry and George Mason saw no distinction between the power to declare
independence and the power to form a government.5 8 The congress debated various
proposed plans and on June 29, 1776, it ratified the constitution (as it did ordinary
legislation) and exercised power under it.5 9
On June 10, 1776, New Jersey’s fourth provincial congress, in accordance with the
petitions sent from towns longing for independence, appointed a committee to create a
constitution.6 0 When the voters selected delegates to the fourth provincial congress, “they
were fully aware that they were voting on the question o f independence and the
establishment of a new form of government.”6 1 For example, as the election approached
relations between the Parliament and the King deterioated, the writings of such men as
Thomas Paine became more influential, and public meetings were held to discuss
independence 6 2 On July 2, 1776, the congress approved the constitution.
Delaware was the first state to create a constitution after the Declaration of
Independence. The Assembly (and not a provincial congress) held the reigns of power in the
months leading up to Independence. Members of the Assembly did not feel that they were
authorized by their constituents to form a new government. On July 27, 1776, the Delaware
House of Representatives recommended to the “Good people” of each county to choose
delegates to a convention to “ordain and declare the future Form of Government for this
State.”6 3 The Assembly called for a constitutional convention to form a new government by
limiting suffrage to those who took an oath supporting independence.6 4 Delaware became
the first state to create a constitution in a convention expressly chosen for that purpose,
hence recognizing the distinction between fundamental laws and ordinary legislation.6 5 The
Delaware convention was also the first to dissolve itself after its work was done, rather than
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act as a legislature as one of its members declared, “we are not vested with the legislative
power.”6 6 However, the convention stayed in session one day after adjournment and
engaged in legislative activities.6 7
In Pennsylvania the political fallout between the General Assembly and provincial
congress led to calls for a constitutional convention. Since the Tory controlled Assembly
was opposed to independence, the only way for the radical Whigs to gain power was to
abolish the existing charter and establish a new government.6 8 On May 20,1776, more than
four thousand people literally went “out of doors” and voted to call a provincial congress,
which would then call for the election of a constitutional convention.6 9 They proclaimed that
the present Assembly was not the proper institution to establish a new government. In 1776,
Demophilus suggested that every “article of the constitution or sett o f fundamental rules by
which even the supreme power of the state shall be governed, be formed by a convention of
the delegates of the people, appointed for that express purpose....” 7 0 The Assembly ignored
countless petitions and resolutions. Conservatives believed that the Assembly was
adequately functioning in Pennsylvania and change would bring political and fiscal
instability.7 1 Conservatives realized the precarious situation they were in competing against
extra-legal associations and they knew that a new government would mean a loss of power.
In June 1776, 108 delegates of the county committees of inspection met for a week long
“Provincial Conference of Committees of the Province of Pennsylvania.” Their job was to
make arrangements for the election of a “Provincial Convention.”7 2 To ensure that pro-
independence sentiment prevailed, the conference expanded the electorate and instituted test
oaths. This “widened the voting populace to include those who favored independence, then
narrowed it to exclude those who opposed it.”7 3
Given the rigidity of the oaths, only the most committed adherents of independence
were elected.7 4 Despite its “unrepresentative” nature, the convention proceeded with its first
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activity in direct defiance of the provincial conference - legislative business.7 5 Delegates
were so preoccupied with the execution of governmental functions that it took them more
than two months to write the constitution. The reasons for the delay go the heart of the
relationship between constitutional conventions and popular sovereignty. Since the
Assembly was not in session at the time, and was considered defunct by the May IS order of
the Continental Congress, the convention delegates considered themselves to be the only
representatives of the people. The convention was carrying on the work of the provincial
congress that had also taken over the normal operations of government. The Continental
Congress also recognized the legitimacy of the convention by ignoring the Assembly and
communicating directly with the convention recommending that it take all steps necessary
for the safety of the Colony.7 6 But there is also reason to believe that the radicals purposely
delayed the drafting of the constitution fearing the loss of power. A new constitution meant
a new election and the extremists were worried that this might result in a defeat for their
party.7 7 After all, they were not elected by a majority of the people of Pennsylvania.
“Planned delays” made it possible for those who originally claimed to be “legitimate”
representatives of the people to prevent the expression of popular will through an election
under the new constitution. This is also evident at the ratification stage. The convention
completed its work on the 5th of September, but copies of the document were not printed
until the 10th of that month. Because of problems of distance, the constitution did not appear
in the newspapers until the IS6 1 , but by the 16th , the convention had “resumed consideration “
of the document before finally adopting the final version on September 28.7 8
On July 3,1776, the Maryland provincial congress called for the election of a new
congress “for the express purpose of forming a new Government by the authority o f the
People only, and enacting and ordering all things for the preservation, safety, and general
weal of this Colony.”7 9 On the one hand, the resolutions suggest that the new provincial
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congress (constituted as a convention) had only one responsibility - creating a new form of
government. On the other hand, immediately following this order, the resolutions called
upon this convention to “enact and order” all that was necessary for the general welfare of
the new State. The new congress was not only expected to frame a government, but to
proceed with the business of legislation and to conduct War. On November 8,1776, the
“Convention of the Delegates of the freeman of Maryland," approved the constitution. The
constitution went into effect without approval by the people. Yet, two months before the
constitution was adopted, twelve copies of the proposed constitution and Bill of Rights were
distributed to each county. After the recess, the convention reconvened and took up the
documents and adopted them.8 0
On April 12, 1776, North Carolina’s provincial congress resolved that it had the
right to adopt a constitution and to make the laws for the colony. A committee charged with
drafting a new form of government adopted a temporary constitution establishing a council
of safety to run the government.8 1 This government did not satisfy North Carolina’s radicals,
and in the October 1776 election, they secured control, although their impact on the final
document remained questionable.8 2 This election was called after the provincial congress
“recommended to the good people” of North Carolina that a new provincial congress be
formed. The congress also resolved the following: “That it will be the Business of the
Delegates then Chosen not only to make Laws for the good of Government, but also to form
a Constitution for this State.”8 3 North Carolina went further than any other southern state at
the time in recognizing popular sovereignty since the people elected representatives for the
purpose of framing a fundamental law.8 4 The provincial congress adopted the constitution
on December 18, 1776.
On August 10, 1776, the President of Georgia’s provincial congress called for the
election of delegates of the “highest character” to a congress that would act as a convention
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and a legislature.8 3 Like most provincial congresses/conventions of this era the Georgia
convention was a result of an election and the resolutions make it clear that the convention
would be pulling double duty. In addition to forming the constitution, the convention was
also supposed to put the “State in a proper posture of defence” giving it practically unlimited
discretion to carry on the work of the legislature.8 6 The new constitution was approved on
February 5, 1777.
Between 1775 and 1777, New York’s provincial congresses conducted legislative
business and the War, and wrote a constitution.8 7 On July 10, 1776, the fourth provincial
congress transformed itself into a convention that had the power to draft a constitution, as
well as legislative responsibilities. When the convention met on August 9, drafting a new
constitution was not its first priority. Rather, the delegates were concerned with securing
independence and the War. The delegates voted to establish a committee based upon “the
free and uncontrolled choice of the inhabitants...” to draft a constitution and a Bill of
Rights.8 8 Yet, disputes arose over membership in the constitutional committee. City
committees were upset that the people were denied the right to choose the delegates to
represent them in the convention. The committee did not prioritize the forming of a new
government and over an eight-month period, it successfully dodged numerous deadlines. So
frustrated was the convention with the delays that on September 14, it ordered the committee
to report back “with all convenient speed.”8 9 The committee did not prevail on time. It was
not until April 1777 that a new constitution was approved without popular ratification. After
the constitution went into effect, the convention proceeded with the business that occupied
its time for the past year.
One of the reasons why New York acted so slowly was that it was not the right time
to form a constitution. Bernard Mason argues that the idea of a constitutional movement
was premature and it was thought to be safer to wait for more tranquil times and the
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opportunity for calm reflection and deliberation.9 0 Delegates were aware of the flaws
associated with constitutions of the previous years. Conservatives looked to Pennsylvania
and how the radical democrats took over the State. In New York, Robert Livingston
commented upon on how “well timed delays” prevented the occurrence of a similar
situation.9 1
Massachusetts was the first state to create a constitution in a specially elected
constitutional convention, which was then ratified by the people. Wood called the
Massachusetts Constitution of 1780 a model of the “perfect constitution,” one whose virtues
continue to be extolled.9 2 It was during the debate over the adoption of the Massachusetts
constitution that an attempt was made to separate statutory law from fundamental law.
On May 30, 1776, the House of Representatives appointed a committee to draft a
constitution. The towns called upon their representatives to “obtain equal Representation of
the People of this Colony” and to ensure that the legislative, judicial, and executive powers
of government were independent and separate from each other.9 3 On September 17, 1776,
the House issued a resolution calling upon the towns to consent to the proposed constitution,
but the towns refused. A majority of towns did not object to the constitution being written
by a legislative body. Many of them specifically stated that the constitution should be
created by the legislature, subject to popular approval. The returns from the town of
Littleton stated the following: “We do Consent that the Honorable Council and House of
Representatives of this State that they in one Body and equal Voice Shud Plan a Constitution
and form a Government for this State.” Yet, the constitution should be “Published and Sent
to the Several Townes for there Inspection and perusal and no Constatution of Government
be Ratified or Confermed without the Consent of the People, or the Mager Part of them.”9 4
Only a few towns objected to the legislature creating the constitution. The town of Norton
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noted: “the present House and Council was not Separately Elected by the people for that
Special purpose which we think it highly Reasonable they Should be.”9 5
In 1777, the legislature unsuccessfully tried to deal with three of the primary
objections put forth one year earlier. First, the legislature was not elected for the sole
purpose of forming a constitution. Second, the proposed constitution had to be ratified by the
people. Lastly, a specially elected convention had the sole authority to a draft constitution.
The House resolved that in the next election, the towns would choose representatives vested
with legislative authority, as well as the power to transform themselves into a convention to
draft a constitution subject to popular ratification.9 6 On June 17, 1777, the Council and the
House transformed themselves into a convention for the purposes of drafting the
Constitution of 1778.9 7 This plan satisfied the first two objections, but not the third since the
convention was still composed of members of the legislature. As a result of this dual role,
the same legislators who created the constitution in the convention would return to the
assembly to be bound by the limits (if any) they had placed on their own authority.
A specially elected convention assembled on September 1, 1779 to draft a third
constitution. The convention was completely separate from the existing legislative body, so
much so that the legislature could only recommend but not bind the convention to a certain
mode of ratification. The convention chose the rules from which it would proceed. It
derived all its authority from the people as a whole, and was not beholden to the
legislature.9 8 The Convention was limited to the sole function of proposing a constitution
and leaving it to the people to ratify it and to give it the force of law.9 9
Samuel Morison conducted a study of the town returns on the proposed constitution
and questioned the validity of how the two-thirds majority requirement for ratification was
reached. The Convention (and not the legislature) adopted the following rules outlining the
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ratification process: The people would discuss the constitution in their town meetings. Each
town would vote on the constitution clause by clause and not on the document as a whole.
The convention would then tabulate the vote on the constitution. If two-thirds of the towns
approved each clause, the convention would ratify the constitution and declare it operative.
For each clause that did not have the required two-thirds majority, the convention had the
authority to alter the constitution. However, once the convention revised particular clauses,
the constitution would not be re-submitted to the towns for their approval. Instead, the
convention would ratify those provisions and the constitution.1 0 0
The towns struggled with the convention since only a small percentage accepted the
constitution as a whole.1 0 1 Since the towns were blamed for making popular acceptance of
past constitutions impossible, efforts were made to limit popular participation in town
meetings. During the debates over the second proposed constitution, the election was open
to all adult male citizens. The result was a rejection of the constitution (9,972 to 2,083
votes). During the third attempt, fearing the onslaught of popular control and trying to hold
on to its own authority, suffrage was limited only to those who were “ duly qualified to vote
for their Representatives,” and the towns voted for the constitution in the affirmative.1 0 2
The ratification process complicated the task of approval because under the rules the
Convention set for itself, the Convention had the authority to revise, but not re-submit the
constitution for final approval. A moratorium was placed upon the towns - either they
accept the constitution “in the lump” or hand it over to the Convention to change and
approve of it as it saw fit. The Convention set up its own rules; the existing state
government did not bind it. The Convention also chose how the final document would be
ratified. The will of the Convention was the will of the people. By giving the people the
opportunity to discuss and even object to each article, the “[cjonvention not only flattened its
constituents, but supplied a safety valve for the airing of democratic prejudices and
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notions.”1 0 3 The purpose of a convention drafting a constitution was to ensure that
“legislatures [did not] become greater than the people who sent them.”1 0 4 As a result of the
Convention setting its own rules, the convention delegates had “become greater than the
people who sent them.” In the end, the Convention, not the people ratified the Constitution.
During the Revolutionary War, Vermont desired independence from New York and
unsuccessfully sought recognition as a state from the Continental Congress. The people of
Vermont believed that they had the natural right to constitute themselves into a body politic.
Central to this notion was the idea that the people were not connected to either New York or
New Hampshire (that also made claims), but to England.1 0 3 Lacking any recognition by
Congress as a state, Vermont instituted county committees to fill in the power vacuum.1 0 6
The Vermont Constitution of 1777 was framed in a convention that also carried out the
normal operations of government.1 0 7 It was later ratified in a referendum, although there is
disagreement among scholars as to whether this took place.1 0 8 What stands out as significant
in the formation of this government is the fact that during and after the War, Vermont was
not recognized as a “state.” The people of the thirteen “states” were already part of a state
and they formed new governments to replace the old ones. In Vermont before a constitution
could be drafted, the people had to first constitute themselves as a state. Given the absence
of legitimate means for this to be done, extra-legal institutions aided in the process.
At the core of the idea of a convention was the distinction between statutes and
constitutions. The previous discussion suggests that the framers of the first American
constitutions did not recognize this distinction. The same institution that declared
independence also framed the constitution and carried on the business of living according to
the constitution. But there is no reason to doubt the framers’ belief in the idea of a
fundamental constitution. After all, resort to the fundamental principles of British
constitutionalism was central to the colonist’s arguments against taxation.1 0 9 Given the
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exigencies of war, it was difficult for these institutions to confine themselves exclusively to
constitution-making, since “[a]ll these Constitution -making bodies were at times painfully
preoccupied with the exigent business of making laws, raising funds, levying war, and
carrying on the activities of the States. Not one was able to devote itself exclusively to the
drafting of fundamental laws.”1 1 0 Given the War, it is not so much that the framers failed to
follow perfect theoretical procedures, but that they so closely approached them.'1 1 Even if
Americans believed that the constitution should be framed in a body separate from the
legislature, such a system would have been impractical and hazardous given the uncertainty
of the current state of affairs. Walter F. Dodd writes,
The leaders of the people were already assembled in provincial
congresses, organizing for military defense, and in most of the
states both central and local organizations were busily engaged in
suppressing opposition to revolutionary measures. They
succeeded in many cases in suppressing opposition only by virtue
of their superior aggressiveness. To permit the creation of
independent conventions would be to risk the loss of much that
had been gained by united and aggressive action. Permanent
governments, if established at all, must be established by existing
provincial representative bodies."2
The same institution that declared independence, framed the constitution, and lived
by it, also had the power to amend it. Although the revolutionary preambles and bill of
rights recognized that the people had the inalienable right to abolish or amend their
government, many of these constitutions lacked provisions for amendment."3 Other
constitutions, such as those of Delaware and Maryland granted the legislature the authority
to amend their constitutions subject to the Constitution."4 Article 23 of the New Jersey
Constitution empowered the legislature to amend the Constitution, but unlike the Delaware
and Maryland constitutions, the New Jersey legislature could alter the constitution through
ordinary legislative means.1 1 5
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The Pennsylvania Constitution of 1776 included a provision for constitutional
revision through the Council of Censors."6 Section 47 of the Constitution provided for an
election of a Council every seven years to review the constitutionality of legislative acts. If
two-thirds of the members agreed, a constitutional convention would be formed to amend
the constitution. The Council was not supposed to be composed of ordinary politicians.
Rather, its composition rested upon the people at large. Citizens could run for the Council,
and assess the possibilities for revision."7 The purpose of the Council was to prevent the
legislature from altering the Constitution through ordinary legislation. As such, it reinforced
the “subservience of the legislature and all governmental activity to the fundamental law
contained in the constitution.”" 8
This distinction proved to be superficial as political disputes within the legislature
found their way into the Council. Immediately upon its inception, the Council became a
political tool for destroying opponents and eventually led to the demise of the Constitution
fourteen years later. Legislative turnover was high and too many members of the Council
were state legislators, who often took their political controversies to the Council. The
original battle between radicals and conservatives over the creation of the constitution
reemerged in the context of its revision. Opponents (republicans/“anticonstitutionalists”)
branded the Constitution as too democratic. They opposed everything from the structure of
the legislature to the Council. In 1783, the first Council met to call a convention to amend
the current constitution. The republicans could not gamer the two-thirds majority required
to call a convention."9 The Constitution’s defenders (constitutionalists) issued a report
blocking any possibility for amendments.1 2 0
If the purpose of the Council was to prevent the legislature from controlling the
extent of its own power, then the distinction between constitutions and ordinary laws was
maintained. But why should the will of the people be expressed in seven-year increments?
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Furthermore, what recourse did the people have if the legislature exceeded its authority in
the interim?1 2 1 Without a permanent institution, such as a court to oversee the
constitutionality of legislative acts, the distinction between the constitution and ordinary
laws, for at least seven years, was on shaky ground.1 2 2 The legislature, unfettered by checks
controlled the fate of its own constitutional authority. Indeed, as early as June of 1777, the
Pennsylvania legislature was already engaging in activity that violated the Constitution.1 2 3
From day one, the republicans wanted to rid of the Constitution, but they saw the
Council as an impediment. Ironically, they had to follow the Constitution and go through
the Council to rid of it. But to succeed in an environment flooded with the rhetoric of
popular sovereignty, the republicans could not come off as too aristocratic. In a section
titled “Whiggism Against Itself,” Wood argues that the language of the Whigs (popular
sovereignty) was turned upside down. Invoking popular sovereignty (which they feared),
the republicans branded the Council as a limitation on the power of the people since it forced
them to wait seven years before constitutional revision could be discussed.1 2 4 The
republicans referred to the people of Pennsylvania as sovereign and insisted that
constitutional amendments need not be confined to the procedures set forth in Article 47.1 2 5
In 1789, the republican dominated assembly called a convention to create a new
constitution. The Constitution of 1790 corrected the defects of the first Constitution,
including the elimination of the Council of Censors. Its demise can be traced back to the
Convention of 1776. The leveling spirit that dominated the convention did not carry over
into the general public, thereby forcing the convention to quickly modify provisions of its
original draft. Convention delegates found it in their best interest to reconvene after a short
period of public consideration of the constitution. To prevent more changes, the convention
made it difficult to call a convention for constitutional revision, by increasing the number of
votes required from one-half to two-thirds. This was significant since the “convention did
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not merely rush its proposal into effect, but actually made changes in the proposal that would
frustrate further efforts to change it.”1 2 6 In the end, the Council either represented the means
of getting “enough, but not too much popular sovereignty, or as a crass political move by the
drafters of the 1776 Constitution to ensure at least a seven - year reign.”1 2 7
The means by which the Pennsylvania Constitution of 1776 was created and the
procedures for its revision, ironically (and simultaneously) represented an expanded and
limited vision of popular sovereignty. On the one hand, the convention was elected for the
“express purpose” of drafting a constitution. But the convention exceeded those explicit
instructions by carrying out the normal operations of government. This can be viewed as
either the convention exercising power over the people, or a convention expressing the will
of the people absent the assembly. With respect to constitutional revision. Section 40 of the
Constitution required every officer to take the following oath:
I do swear (or affirm) that I will be true and faithful to the
commonwealth of Pennsylvania: And that I will not directly or
indirectly do any act or thing prejudicial or injurious to the
constitution or government thereof, as established by the
convention.
The oath can be interpreted as a limitation on the power of legislators preventing them from
violating the will of the sovereign people as expressed in the convention and established in
the constitution. This preserved the distinction between constitutional and statutory law that
was central (at least in theory) to the formation of the early state constitutions. Hence, the
only way in which the constitution could be revised was through the Council of Censors,
thereby inhibiting legislative alteration of the constitution. On the other hand, when placed
into its proper political context, there is reason to believe that this oath was designed to
prevent the people (acting through their elected legislative representatives) from amending
the constitution. Fearing the effects of a popular election once a constitution was adopted,
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the radicals in the convention delayed the formation of a new government and held onto the
reigns of power. After September 5, 1776, it was believed that many provisions of the
proposed constitution were not widely accepted. Instead of allowing for more debate, the
convention cut off public deliberation by quickly (after only 13 days) adopting the
constitution (with minor modifications). By making constitutional change more difficult and
by requiring the oath of allegiance, the convention effectively bound the people to what it
had produced confirming that the convention was sovereign over the people.
Specifying when and how constitutional creation and revision could take place
violated the fundamental principle of popular sovereignty since it placed limits on what
many of the framers of the early state constitutions believed was the inalienable right of the
people to alter their government as they pleased.1 2 9 The Declaration of Independence is the
most famous embodiment of this phenomenon: “... That whenever any Form of Government
becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to
institute a new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety and
Happiness.”1 3 0 It is too simplistic to assume that the only way in which popular sovereignty
could manifest itself during the revolutionary era was through constitutional conventions. If
this were the case, the expression of popular sovereignty would be limited and the people
would no longer be sovereign. The obsession with procedures ignores the extent to which
popular sovereignty formed the basis for legitimate political authority. As Christian Fritz
argues, it is the source of constitutions (the sovereign people) and not the manner
(conventions or legislatures) in which they were created that endows them with their
fundamental authority.1 3 1
Similarly, if the people were truly sovereign, then no amendment procedures would
be necessary since procedures were equivalent to limitations. Just as specifically elected
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conventions were not the only way in which constitutions could be created, there was no
reason why constitutional revision could take place only in conventions. Fritz suggests that
the omission of procedures for revision implied that “the people retained an inherent right to
revise their constitutions at will, thus making specific procedures unnecessary.’’1 3 2
Designating the constitutional convention as the sole mechanism by which the people
express their desire for constitutional change runs the risk of the convention wielding too
much authority. If only a convention embodied popular sovereignty, then an attempt on the
part of the legislature to dictate its activities would violate popular sovereignty. But if the
source of the constitution and not the means by which it is created or altered is of
importance, then the convention itself is bound by a higher law - the people.1 3 3 Indeed,
lacking specific provisions for revision did not prevent Americans from acknowledging (in
the declarations of rights) “fundamental principles” to preserve the blessings of liberty.1 3 4
The debates in the states over which institution (conventions or legislatures) would
create the first constitutions were only the beginning of a series of debates over the
institutionalization of popular sovereignty in an era of divided sovereignty. Although the
provincial congresses (acting as legislatures) seemed to be the most obvious embodiment of
popular sovereignty, debates over the proper role of conventions indicates that people were
not willing to accept them as the only way in which “We the People” were institutionally
configured. These controversies also demonstrated the contested role that popular
sovereignty had in political disputes (i.e., unresponsive assemblies and royal governors), and
in the creation (and revision) of institutional arrangements.
Popular sovereignty was also used for fighting political battles between
conservatives and radicals. Radicals believed that the “people” were not represented in
Parliament or in the colonial assemblies, so they formed extra-legal institutions as a means
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of expressing the “people’s will.” They insisted that the constituent power of the people was
separate from legislatures, and constitutions (the ultimate expression of the will of the
people) should be created in specially elected conventions chosen for that sole purpose. Yet,
with the exception of Massachusetts, the provincial congresses created and approved the
constitutions as if they were ordinary laws. Even when the radicals were in control of the
provincial congresses (acting as conventions), they took steps to limit popular sovereignty.
Indeed, the people did not ratify many of the constitutions and in cases where deliberation
took place it was controlled and limited. Conservatives also tried to hold onto power by first
insisting that a separate institution was not necessary to create a constitution and then
(ironically) invoking the language of popular sovereignty to limit the activities of the
conventions on the grounds that they violated popular sovereignty.
In states that did have elections for a provincial congress to draft a constitution and
perform regular legislative duties, suffrage was limited to property owners and pro-
independence sympathizers and claims of malapportionment were high. Only Massachusetts
widened the electorate for the election of its convention of 1780, but here, also, the role of
the people was limited at the ratification stage. These preliminary debates over
apportionment and suffrage later led to the demise of many of the early constitutions. In the
area of constitutional revision, legislative omnipotence was evident to ensure that the work
of the convention was not too easily altered by future generations. Although the framers of
these constitutions believed in popular authority, they produced relatively conservative
documents where power was not simply concentrated in the legislative branch,1 3 5 but control
of the branch itself was in the hands of powerful minority interests.
The roots of divided sovereignty began during the colonies’ struggle with
Parliament. At first, the colonists distinguished between taxation and legislation, arguing
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that the former was a prerogative of colonial legislatures, leaving to Parliament non-internal
matters. The colonies realized that this division of power was no longer feasible and sought
to concentrate all powers in the hands of colonial legislatures (or provincial congresses
acting as legislatures). However, the desire for conventions during the era of constitution
making suggested that sovereignty could be divided between legislatures and conventions
and the people could be constituted at multiple levels.
Popular Sovereignty: The Union and the States
The battle between conservatives and radicals soon found its way to the national
level as popular sovereignty became more prominent in the debates over the structure of the
Union. The debates over the creation and recreation of the early state constitutions suggest
that the institutionalization of popular sovereignty was continually contested. This debate
would resurface in the struggle over the creation and adoption of the federal constitution.
Conservatives (now Federalists) defied the existing mode of constitutional amendment and
resorted to conventions as a justification for ratification. Once again, the debate over the
role of conventions and legislatures in the process emerged. This time, conservatives (who
at the state level disdained conventions) were the strongest supporters of the convention as a
constitution-making mechanism. In the process, a new question emerged over the nature of
the American Union. Which “We the People” ordained and established the Constitution -
the people constituted as a nation or the people constituted as individual states?
The Federalists had two tasks at hand- first, to establish the validity of their
federal/state ratifying convention model, and second, to justify their decision to move the
locus of sovereignty from the states to the Union. In the following section, I examine the
process by which the federal convention and state ratifying convention models made the
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work of the federal convention authoritative. How did the Federalists justify their actions
when it was clear that they were breaking the rules (i.e., the mode of ratification in the
Articles of Confederation)? How did the federal Constitution become accepted as H.L.A.
Hart’s “rule of recognition,” the ultimate determinate of what counts as law?1 3 6
Compare Article X m of the Articles of Confederation with Article VII of the United
States Constitution:
the Union shall be perpetual; nor shall any alteration at any time hereafter be made
in any of them; unless such alteration be agreed to in a Congress of the United
States, and be afterwards confirmed by the Legislatures of every State.1 3 7
The Ratification of the Conventions of nine States, shall be sufficient for the
Establishment of this Constitution between the States so ratifying the Same.1 3 8
Article X m stipulates that the Union shall be perpetual, but under Article VQ, nine states
may secede from the Union. Article XHI requires that all changes to the Articles of
Confederation be agreed upon in the Continental Congress and affirmed by every state
legislature. Article VQ bypasses Congress and the state legislatures and directs that the
Constitution be ratified by constitutional conventions. Article VQ eliminates the unanimity
requirement for alteration and replaces it with a less stringent rule.
There is reason to believe that the constitution making process was illegal, first
because the convention exceeded its explicit instructions of revision from the Congress and
the states, and second, it ignored the method of revision provided for in the Articles of
Confederation.1 3 9 On February 21,1787, the Continental Congress passed a resolution
calling for a convention for “the sole and express purpose of revising the Articles of
Confederation and reporting to Congress and the several legislatures such alterations and
provisions therein as shall when agreed to in Congress and confirmed by the states render the
federal constitution adequate to the exigencies of Government & preservation of the
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Union.”1 4 0 Every state, except Rhode Island, that refused to send delegates, issued similar
orders.1 4 1
The federal convention bypassed the state legislatures by requiring that the
Constitution be ratified in state conventions of the people. The Convention represented an
alternate voice, one where the people could act independently of the government that was
being abolished.1 4 2 As Wood writes, the ratifying convention “was an extraordinary
invention, the most distinctive institutional contribution, it has been said, the American
Revolutionaries made to Western politics. It not only enabled the constitution to rest on an
authority different from the legislature’s, but it actually seemed to have legitimized
revolution.”1 4 3 Article XHI of the Articles limited only government officials to act by the
rules but left it to the people to alter the government, as they desired.1 4 4 Accordingly, the
people had the inalienable right to exercise their authority independently of the existing
government to formulate a new one that was most conducive to their happiness.
During and after the Federal Convention, many Federalists dispelled the notion that
the Convention had exceeded its authority. They repeatedly invoked popular sovereignty as
a justification for their “illegal” actions. They argued that the act of the Convention was a
mere proposal with no force other than what the people chose to give it.1 4 S During the
Pennsylvania Ratifying Convention, James Wilson suggested that the Constitution was to be
“laid before the citizens of the United States, unfettered by restraint...[and] [b]y their fiat, it
will become of value and authority.” Without approval by the people, the Constitution “will
never receive the character of authenticity and power.”1 4 6 Similarly, in North Carolina, Mr.
Davie argued that “whatever form of confederate government they [the Convention
delegates] might devise, or whatever powers they might propose to give this new
government, no part o f it was binding until the whole Constitution had received the solemn
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assent o f the people}*1 “By whatever means we found it.. noted Mr. McClaine of North
Carolina, “it is no more than a blank till it be adopted by the people.’’1 4 8 Popular ratification
of a proposal not only allowed the Federalists to dismiss the contention that the people did
not authorize the delegates to exceed those delegated powers, but it made it possible to argue
that the Constitution was an expression of We the People.1 4 9
As for ratification, Madison joined many of his colleagues denouncing the notion
that state legislatures ought to ratify the Constitution. The Federalists criticized state
legislatures for their hyper-democratic tendencies.1 3 0 Yet, it was the state legislatures from
the days of the provincial congresses that were considered the embodiment of the will of the
people. Indeed, in an era where conventions were not the sole embodiment of the will of the
people, invoking popular sovereignty could not easily be used to justify bypassing Congress
and state legislatures, since they, too, could equally claim the authority of the people.1 3 1 The
Federalists, fearing that the state legislatures would not accept a plan of government that
enhanced the power of the national government, sought to institutionalize popular
sovereignty in state conventions. “It is ... worthy of consideration,’’ John Randolph noted,
“that some States are averse to any change in their Constitution, and will not take the
requisite steps, unless expressly called upon to refer the question to the people.”1 3 2 James
Madison feared that if state legislatures were given the power to ratify, they would thwart
ratification.1 3 3 In the words of George Mason, legislative ratification of the Constitution
would place the national government on “the weak and tottering foundation of an Act of
Assembly.”1 3 4 Nathaniel Gorham of Massachusetts argued that “[m]en chosen by the people
for the particular purpose, will discuss the subject more candidly than members of the
Legislature who are to lose the power which is to be given up to the Genl. Govt.”1 3 3 For the
Federalists, conventions, as institutions separate from the existing government, were
essential to eliminating the old government and replacing it with a new one.
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The second phase of the Federalist’s quest to attain power via popular sovereignty
was by advocating the idea of people as members of a Union. They argued that “We the
People” of the nation (and not the separate states) created and controlled the exercise of
institutional authority. There was a major roadblock in the Federalist’s quest to sell their
idea of popular sovereignty as Union - the colonists may not have been a part of an
American nation. When the Declaration spoke of these “United Colonies” being “Free and
Independent States,” had the American Union come into being?1 5 6 To paraphrase Abraham
Lincoln, was the Union older than the States, or vice versa? The concept of the American
Union had its roots in the 1750s during the colonies’ struggle with England.1 5 7 Even though
they continued to identify themselves with the British Empire, Americans soon developed a
consciousness that they were a specially chosen and “different sort of Briton living in a
different ‘country.’”1 5 8 Once Americans realized that they were not reaping the rewards of
England’s “glorious constitution,” a sense of separateness emerged, and the movement
against parliamentary taxation gave them that edge.
Scholar Claude H. Van Tyne suggested that it is wrong to look at the First
Continental Congress as forming a national state. When the colonies sent delegates to the
Congress, they “no more coalesced into a national state by that act than did the colonies
which sent delegates to the Albany Congress or the Stamp Act Congress.” He argued that
throughout this period, reconciliation with Britain was a priority and the idea of loyalty to
Britain and the desire for an American nation were inconsistent with one another.1 5 9 In
response, Curtis Nettels argued that the Union originated on September 5, 1774 when
delegates of twelve of the thirteen colonies formed the Continental Congress. According to
Nettels, Congress derived its authority not from the states since none existed at the time, but
from the people of the thirteen united colonies. It was the same people of the colonies who
forged a Union in 1774 and transformed themselves into states. Once the united colonies
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became free and independent states, they still were part of a Union conducting a war.
Central to Nettles’ argument was the active role of Continental Congress. Congress did not
cease to exist after July 2, nor were any laws passed before that date dissolved. Congress
exercised the same powers it had derived from the people of the colonies both before and
after independence was declared.1 6 0
Nettels argued that the Declaration of Independence was the result of one people
coming together, and not the separate colonies (none of whom were individually mentioned)
assuming “the powers of the earth.”1 6 1 When Congress declared independence, it acted for
the people, rather than the thirteen states, since only four state governments (two of which
were designed as temporary) had been formed prior to its passage.1 6 2 Others argued that the
Declaration did not create a Union. It simply spoke of thirteen separate “countries” coming
together to sever ties with Britain. In fact it was not uncommon for the people of the
colonies/states to refer to themselves as members of their particular country.1 6 3 Yet, if the
states were really separate “countries,” then it would have been illogical for them to solicit
advice from the Congress on whether to draft a new constitution. In fact, no colony formed
a new government without congressional recommendation. Van Tyne warns about twisting
this fact into a command of Congress since Congress recommended the creation of new state
governments during the dispute between Great Britain and the colonies, which suggests that
Congress was not acting as a sovereign body.1 6 4
The Declaration of Independence and the end of the War did not solve the problem
of how to create a union. In fact, a new version of popular sovereignty emerged - popular
sovereignty as state sovereignty. When the states drafted their constitutions, they did not
examine a potential relationship with the national government and the Continental Congress.
Indeed, statehood for the original thirteen colonies involved the rejection of a higher
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authority and the assertion of local autonomy.1 6 5 As Jack Greene argued, the Revolution left
the organization of power in the United States in an ambiguous state thereby reviving the
debate over the location of sovereignty and forcing Americans to delineate the boundaries of
authority between the center and the peripheries.1 6 6 Was popular sovereignty constituted in
the Continental Congress, in the states, or was it shared? Article II of the Articles of
Confederation stated, “[ejach State retains its sovereignty, freedom and independence, and
every power, jurisdiction and right, which is not by this confederation expressly delegated to
the United States, in the Constitution in the Congress assembled.”1 6 7 Central to this Article
was the assumption that the states (or the people constituted as states) were sovereign since
they possessed sovereignty to retain after delegating express powers to the Congress.
However, this conception of sovereignty was only one of the contested visions about the
nature of authority that emerged after independence.
During the debates over the adoption of the Articles of Confederation, the struggle
between radicals and conservatives was revived, this time over the location of sovereignty.
The radicals, who had supported independence, insisted that power should be retained by the
states, while the conservatives desired the locus of authority in a central government.1 6 8 In
the debates over representation in Congress, delegates from large and small states quarreled
over whether representation should be by population. Merill Jensen notes that “[t]he
controversy over representation was of far more consequence than as evidence of a struggle
between large and small states. It also involved the question of sovereignty....”1 6 9
Delegates from the large states argued that members of Congress were representatives of the
people of the United States and not of the individual states. Delegates from the small states
noted that members of Congress were not the representatives of the people of the United
States, but of the states.1 7 0 Delegates from the large states threatened not to join the union if
their weight in Congress was not equal to the number of people per state. Similarly,
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delegates from small states insisted that they must retain an equal vote for the protection of
their rights. John Witherspoon argued that “[i]f an equal vote be refused, the smaller states
will become vassals to the larger....’’ He believed that the colonies should be treated as
individuals bargaining with one another and hence, each should have an equal vote.1 7 1 To
this John Adams responded by noting that the confederacy bargain will “make us one
individual only; it is to form us, like separate parcels of metal, into one common mass. We
shall no longer retain our separate individuality, but become a single individual....”1 7 2 James
Wilson invoked a nationalistic vision of popular sovereignty that was premised upon the idea
that “We the People” were constituted as a united nation. He denied that Congress was
representative of the states insisting that individuals must be represented. “Are not the states
made up of individuals? If so, how could a state of ten thousand individuals be allowed the
same vote of a forty thousand?” When Congress acts, Wilson concluded that “we are not so
many states; we are one large state.” We lay aside our individuality whenever we come
here.”1 7 3 The radicals won and popular sovereignty was equated with state sovereignty.
Conservatives (as Federalists) came back at the Federal Convention and turned to
the people as a justification for the newly strengthened union and its accompanying
structures. The dominant metaphor of the post-revolutionary era was that the “people were
the fountain of all power.”1 7 4 Although the Federalists continued to make reference to the
image of the “fountain,” in 1788, a new metaphor emerged, one designed to supplement a
consolidated, yet limited central government.1 7 5 During his speech at the Pennsylvania
Ratifying Convention, James Wilson compared a free government to a “pyramid” which
“laid on the broad basis of the people; its powers gradually rise, while they are confined, in
proportion as they ascend.”1 7 6 Under the metaphor of the pyramid, the “people at large”
divide and delegate their powers to various institutions. “[The people] can distribute one
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portion of power to the more contracted circle called State governments; they can also
furnish another proportion to the government of the United States.”1 7 7
Wilson believed that although the people delegated power, the indivisibility of
sovereignty meant that authority continued to reside in them at all times. Although the
people distributed their power between the two governments and their respective branches,
they could never part with their sovereignty. “[T]hey have only dispensed such portions of
power as were conceived necessary for public welfare.” Indeed, “[t]hey can delegate it in
such proportions to such bodies, on such terms and limitations, as they think proper.”1 7 8
Anti-Federalists feared that a consolidated national government would destroy the states.
Wilson responded by insisting that their fears were erroneously based upon the notion that
the federal government had taken this power from the states. But the federal government
was subordinate to the people and it could not take powers from either the people or the
states. Only the people could grant and remove powers. Wilson noted that the sovereign
people “may take from the subordinate governments powers with which they have hitherto
trusted them, and place those powers in the general government....” In short, the people
“can distribute one portion of power, to the more contracted circle, called state governments;
they can also furnish another proportion to the government of the United States.”1 7 9
With the shift to the “pyramid,” the power of the people was no longer
uncontrollably flowing from different streams and directions, a possible reference to the
democratic excesses of the state legislatures. Michael Kammen observes that while the
“fountain” represented that which was active, energetic, and continuous, a “pyramid of
power” embodied passivity, stability and a small concentration of mass at the apex. Under
the “pyramid,” the people remained the source of all authority, but the possibility for the
institutionalization of that power, was stabilized and confined through a balance of
federalism, the separation of powers, and checks and balances.1 8 0 Yet, no amount of
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stabilization could prevent the contests over the institutionalization of a divided popular
sovereignty.
Although fearful of popular power, the Federalists turned to the people as a
justification for the imposition of a new centralized government. Popular sovereignty went
hand in hand with institutional arrangements designed to place limits on popular power.
They did this by arguing that “We the People” did not mean the citizens of towns, counties,
and states. Rather it meant “We the People” of the United States.1 8 1 William Findley,
fearing the imposition of federal authority, noted that the Preamble read, “We the People,
and not We the States, which is a compact between individuals entering into society, and not
between separate States enjoying independent power, and delegating a portion of that power
for their common benefit.”1 8 2 The Federalists responded by noting that the federal
government would not derive its authority from the people of the several states, but from one
American people.1 8 3 According to Wilson, the “Genl. Govt, is not an assemblage of States,
but of individuals for certain political purposes - it is not meant for the States, but for the
individuals composing them.”1 8 4 Since the people as a nation created the government, it was
to act directly upon them without having to go through the states. Hence, the system was
structured to ensure that the people of one town or state could not impose their own
parochial interests on the nation in the name of “We the People” of the United States.
The Federalists also sought to transfer the attachment of the people from their
separate states to the Union. Doing so required the relocation of sovereignty from the states
to the nation.1 8 5 In a letter to Richard Henry Lee, Samuel Adams wrote that “if the several
States in the Union are to become one entire Nation, under one Legislature, [whose] Laws be
supreme and control the whole, the Idea of Sovereignty in these States must be lost.” 1 8 6 By
“nationalizing” the people, the Federalist linked the people directly to the national
government that exercised sovereign power on their behalf.1 8 7 In Federalist 16, Alexander
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Hamilton wrote that the “government of the Union must be able to address itself
immediately to the hopes and fears of individuals.” It must “possess all the means and have a
right to resort to all methods of executing [its] powers... .”1 8 8 But since the people were the
source of all authority, the next challenge was to ensure that localities, states, and even the
national government did not exceed their delegated authority and substitute (in the words of
Hamilton) “their own will for that of their constituents.”1 8 9
Such was the logic of judicial review. Some Federalists transformed the theory of
popular sovereignty into a defense of the institutional practice of judiciary. Under this
conception of popular sovereignty, judicial review was designed to protect the fundamental
will of the people as embodied in the Constitution. In Federalist 78, Hamilton pitted the
judiciary against the executive and legislative branches of government. The judiciary was
the “least dangerous branch” with no control over the sword or the purse, and “neither
FORCE nor WILL, but merely judgment.”1 9 0 He denied that the power of the judiciary to
void acts of the legislature presupposed the superiority of the judiciary over the legislature or
even the people.
Nor does this conclusion by any means suppose a superiority of
the judicial to the legislative power. It only supposes that the
power of the people is superior to both, and that where the will of
the legislature, declared in its statutes, stands in opposition to that
of the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to
regulate their decision by the fundamental laws rather than those
which are not fundamental.1 9 1
Herein began the institutionalization of popular sovereignty in the federal judiciary. Under
Hamilton’s logic, popular sovereignty was used to empower courts and the exercise of
judicial review. But the decision to divide sovereignty meant that multiple institutions at the
state and federal levels had ample opportunity to institutionalize popular sovereignty to
support the exercise of political power.
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Conclusion
The traditional story of American constitutionalism begins with the idea of the will
of the sovereign people embodied in a written constitution, and ends with the federal
judiciary, as the protector of that will. The struggle against the British pitted colonial
legislatures against Parliament, with the former arguing that as the true (and not virtual)
representatives of the people, they had the authority to legislate for the colonies. After
independence, the struggle for the institutionalization of popular sovereignty carried over
into a debate over whether legislatures or conventions were the proper institutions to create
constitutions. With the former tentatively winning out, state legislatures became the focal
point of authority at both the state and national levels. The struggle over the adoption of the
Constitution revived the debate over whether legislatures or conventions were the proper
institution to ratify the Constitution on behalf of the people. The Federalists won this battle
by invoking the authority of conventions to bypass the state legislatures.
In their attempt to protect the will of the people and maintain the distinction between
constitutional and statutory law, the framers of the various state constitutions devised
measures to prevent alteration through ordinary legislative acts. This, however, proved
unsuccessful since in many states, the legislature created the constitution, lived by it, and
even gave itself the power to alter it. Articles X m of the Articles of Confederation and
Article V of the Constitution were designed to have a similar effect. But the Framers of the
Constitution added what Madison called an “auxiliary” check on both state and federal
authority-the judiciary. Under the Federalist conception of popular sovereignty, judicial
review was designed to protect the fundamental will of the national people as embodied in
the Constitution. However, instead of solving the problem of determining how “We the
People” were institutionally configured, the Federalists merely put forth one of many
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different and competing conceptions of how the theory of popular sovereignty could be put
into political practice. During the founding and antebellum periods, the Federalist
conception of the relationship between popular sovereignty and institutional authority was
not the only one that developed. In the years following the creation of the Republic, the
political implications of the idea of popular sovereignty were mightily contested. These
disagreements and debates manifested themselves in state-federal conflicts, as well as in
conflicts between the state legislatures and the federal judiciary. Indeed, far from positing a
solution on how “We the People” should be institutionally configured, the Federalists added
to the ongoing debate over the contested nature of the idea of popular sovereignty.
The debates over the creation of the early constitutions demonstrate the contested
nature of the institutionalization of divided popular sovereignty and how easy it was to
switch sides to support a particular point of view. During the period of state constitution-
making, conservatives rejected the idea of a constitutional convention, preferring to maintain
control of the legislature. Radicals decried this exercise of political power claiming that it
circumvented popular control, but once the radicals attained power, they, too, defied popular
sovereignty. The conservatives came back at the federal level as Federalists, extolling the
virtues of constitutional conventions as an element of popular control, all the while denying
that state legislatures represented popular sovereignty. They also advocated a theory of
popular sovereignty as Union, yet at the same time, they divided sovereignty among an
elaborate set of distinct institutions. This, however, proved to be fatal as it only intensified
the struggle over the institutionalization of popular sovereignty.
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Endnotes
1 Merrill Jensen. The Articles o f Confederation: An Interpretation o f the Social-Constitutional History
o f the American Revolution, 1774-1781. Madison: The University of Wisconsin Press, 1970, p. 245.
2 Samuel Huntington.” Political Modernization: America vs. Europe.” World Politics 18 (1966), p.
392; Charles Howard Mcllwain. The High Court o f Parliament and its Supremacy. New Haven: Yale
University Press, 1910, p. xi.
3 Huntington, “Political Modernization,” p. 392.
4 Quoted in John Jezierski. “Parliament or People: James Wilson and Blackstone on the Nature and
Location of Sovereignty.” Journal o f the History o f Ideas 32 (1971), pp. 96- 97.
5 Edmund S. Morgan. Inventing the People: The Rise o f Popular sovereignty in England and America.
New York and London: W.W. Norton and Company, 1988, p. 58. See also Edmund S. Morgan. “The
Problem of Popular Sovereignty.” In George W. Comer, ed. Aspects o f American Liberty:
Philosophical, Historical, and Political. Independence Square: The American Philosophical Society,
1977, pp. 95-113.
6 Margaret Atwood Judson. “Henry Parker and the Theory of Parliamentary Sovereignty.” In , Carl
Witke, ed. Essays in History and Political Theory In Honor o f Charles Howard Mcllwain. New
York: Russell and Russell, 1936, pp. 138-167.
7 Stephen Hopkins. The Rights o f Colonies Examined. Reprinted in Charles S Hyneman and Donald
S. Lutz, eds. American Political Writing During the Founding Era: 1760-1805, 2 Vols. Indianapolis:
Liberty Press, 1983,1 p. 50.
8 James Otis. Rights o f the British Colonies. Reprinted in Samuel Elliot Morison, ed. Sources and
Documents Illustrating the American Revolution: 1764-1788 and the Formation o f the Federal
Constitution. 2n d ed. Oxford: Clarendon Press, 1929, pp. 8-9.
9 James R. Ferguson. “Reason in Madness: The Political Thought of James Otis.” William and Mary
Quarterly 36 (1979), p. 200; Bernard Bailyn. The Ideological Origins o f the American Revolution.
Cambridge: The Belknap Press of Harvard University Press, 1967, pp. 178-179; Richard R. Johnson.
““Parliamentary Egotisms:” The Clash of Legislatures in the Making of the American Revolution.”
The Journal o f American History 74 (1987), p. 354.
1 0 Edmund S. Morgan. Colonial Ideas of Parliamentary Power.” William and Mary Quarterly 5
(1948), p. 326;Gordon S. Wood. The Creation o f the American Republic, 1776-1787. New York and
London: W.W. Norton and Company, 1969, p. 346.
1 1 See generally, Jack P. Greene. Peripheries and Center: Constitutional Development in the Extended
Polities o f the British Empire and the United States, 1607-1788. Athens and London: The University
of Georgia Press, 1986.
1 2 Bailyn, Ideological Origins, pp. 216, 228; Johnson, ““Parliamentary Egotisms.”
1 3 Michael Kammen. Sovereignty and Liberty: Constitutional Discourse in American Culture.
Madison: University of Wisconsin Press, 1988, pp. 3-41; Horst Dippel “The Changing Idea of Popular
Sovereignty in Early American Constitutionalism: Breaking Away From European Patterns.” The
Journal o f the Early Republic 16 (1996), p. 40.
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1 4 Richard W. Van Alstyne. “Parliamentary Supremacy Versus Independence: Notes and Documents.”
Huntington Library Quarterly 26 (1963), pp. 201- 233. See also Faith Thompson. “Parliamentary
Confirmations of the Great Charter.” The American Historical Review 38 (1933), pp. 659-672.
1 5 John Philip Reid. Constitutional History o f the American Revolution, abridged. Madison: The
University of Wisconsin Press, 1995, p. 24.
1 6 “John Adams Gives the Background for State - Constitution Making, 1775.” In Robert J. Taylor,
ed. Massachusetts, Colony to Commonwealth: Documents on the Formation o f Its Constitution,
1775-1780. Chapel Hill, N.C.: The University of North Carolina Press, 1961, p. 8. Adams recounts
the various exchanges between members of Congress over the importance of the people in creating
constitutions. See generally, Frank W. Grinned. “The Government of Massachusetts Prior to the
Federal Constitution.” Massachusetts Law Quarterly 10 (1924), pp. 175-232
1 7 Morison, Sources and Documents, p. 148.
1 8 Wood, Creation, 319-328. Merrill Jensen. “The American People and the American Revolution.”
The Journal o f American History 57 (1970), pp. 5-35; Donald S. Lutz. “Political Participation in
Eighteenth-Century America.” Albany Law Review 53 (1989), pp. 327-355; Jackson Turner Main.
“Government by the People: The American Revolution and the Democratization of the Legislatures."
William and Mary Quarterly 23 (1966), pp. 391-407.
1 9 Wood , Creation, pp. 320-324, 363; Willi Paul Adams. The First American Constitutions:
Republican Ideology in the Making o f State Constitutions in the Revolutionary Era. Chapel Hill: The
University of North Carolina Press, 1980, pp. 27-62; Charles Washington Coleman. “The County
Committees of 1774-75 in Virginia." William and Mary Historical Quarterly Magazine 5 (1986), pp.
94-106; E.I. Miller. "The Virginia Committee of Correspondence of 1773-1775.” William and Mary
College Quarterly Historical Magazine 22 (1913), pp. 99-113; Charles Erdman R. Jr. The New Jersey
Constitution o f 1776. Princeton: Princeton University Press, 1929, pp. 1-24; John C. Miller “The
Massachusetts Convention 1768.” The New England Quarterly 7 (1934), pp. 445-474; David Curtis
Skaggs “Maryland’s Impulse Toward Social Revolution: 1750-1776.” Journal o f American History
54 (1968), p. 7801; Richard D. Brown. “The Massachusetts Convention of Towns, 1768.” William and
Mary Quarterly 26 (1969), pp. 94-104; Richard D. Brown. “Massachusetts Towns Reply to the
Boston Committee of Correspondence, 1773.” William and Mary Quarterly 25 (1968), pp. 22-39;
Larry Bowman. “The Virginia County Committees of Safety, 1774-1776.” The Virginia Magazine o f
History and Biography 79 (1971), pp. 322- 337; Pauline Maier. “Popular Uprisings and Civil
Authority in Eighteenth-Century America.” William and Mary Quarterly 27 (1970), pp. 3-35;
Michael J. Hogan and L Glenn Williams. “Defining the “Enemy” in Revolutionary America: From
the Rhetoric of Protest to the Rhetoric of War.” Southern Communication Journal 61 (1996), pp. 277-
288; Christian G. Fritz. “The American ConstituUonal Tradition Revisited: Preliminary Observations
on State Constitution-Making in the Nineteenth-Century West.” Rutgers Law Journal 25 (1994), pp.
945-998; Christian G. Fritz. “Popular Sovereignty, Vigilantism, and the Constitutional Right of
Revolution.” Pacific Historical Review 63 (1994), pp. 39-66.
2 0 Brown, “Massachusetts Conventions of Towns,” p. 102.
2 1 John A. Jameson. A Treatise on Constitutional Conventions: Their History, Powers, and Modes o f
Proceeding. 4th ed. Chicago: Callaghan and Company, 1887, p. 302.
2 2 George L. Cherry “The Role of the Convention Parliament (1688-89) in Parliamentary
Supremacy.” Journal o f the History o f Ideas 17 (1956), pp. 390-406.
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2 3 J. Franklin Jameson. “The Early Political Uses of the Word Convention.” The American Historical
Review 3 (1898), pp. 479,481.
2 4 Ibid., p. 483.
2 5 Ibid., p. 485.
2 6 Gerald Stourzh. “Fundamental Laws and Individual Rights in the 18th Century Constitution.” In J.
Jackson Barlow, Leonard W. Levy, and Ken Maugi, eds. The American Founding: Essays on the
Formation o f the Constitution. New York, Westport CT, & London: Greenwood Press, 1988, pp.
178-179.
2 7 Traditionally, fundamental laws have been associated with constitutional law. See Fred A. Baker.
The Fundamental Laws o f American Constitutions. Vol. I. Washington D.C.: John Byrne & Co.,
1916. See also Edward S. Corwin. “The Higher Law Background of American Constitutional Law,
I.” Harvard Law Review 42 (1928), pp. 149-185; Edward Corwin. “The Higher Law Background of
American Constitutional Law, II.” Harvard Law Review 42 (1929), pp. 365-409. Not all scholars,
however, take this position. See Martyn P. Thompson. “The History of Fundamental Law in Political
Thought from the French Wars of Religion to the American Revolution.” The American Historical
Review 91(1986), pp. 1103-1128. Thompson argues that contrary to popular belief, when the idea of
a fundamental law emerged in France, it was not associated with constitutional law. Rather it derived
from two sources - the metaphors of “foundation” in which “piety," “justice,” “religion” and
“economic power” were the foundations of political arrangements, and contract that emphasized
equity and natural law.
2 8 See generally, Charles F. Mullett. Fundamental Law and the American Revolution: 1760 -1776.
New York: Columbia University Press, 1933.
2 9 Andrew McLaughlin. Foundations o f American Constitutionalism. New York: The New York
University Press, 1932. See generally, Francis Newton Thorpe. The Federal and State Constitutions,
Colonial Charters, and Other Organic Laws o f the States, Territories, and Colonies, 7 Vols.
Washington D.C.: Government Printing Office, 1909.
3 0 William C. Morey. “The Genesis of a Written Constitution.” Annals o f the American Academy o f
Political and Social Science 1 (1891), p. 533; Benjamin F. Wright Jr., “The Early History of Written
Constitutions in America.” In Mcllwain, Carl Witke, ed. Essays in History and Political Theory In
Honor o f Charles Howard. New York: Russell and Russell, 1936, pp. 345-371; Thomas C. Grey.
“Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought.”
Stanford Law Review 30 (1978), pp. 843-893; Sun Hui Kim. “We (the Supermajority of) the People”:
The Development of a Rationale for Written Higher Law in North American Constitutions.”
Proceedings o f the American Philosophical Society 137 (1993), pp. 364-389; Joseph Arnold.
“Historic Roots of the Supremacy of the Constitution.” The Constitutional Review 11(1927), pp. 151-
160; Charles Borgeaud. “The Origins and Development of Written Constitutions.” Political Science
Quarterly 7 (1892), pp.613-632; Perry C. Patterson." The Evolution of Constitutionalism.” Minnesota
Law Review 32 (1948), pp. 427-457.
3 1 William C. Morey. “The First State Constitutions.” Annals o f the American Academy o f Political
and Social Science 4 (1893), p. 231.
3 2 Stourzh, “Fundamental Laws and Individual Rights,” p. 178. Although Stourzh admits that a few
years after 1776, there was a burst of legislative sovereignty, he characterizes the period of 1776-1790
as one devoted to the gradual “demotion” of legislative power. See also Marc W. Kruman. Between
Authority and Liberty: State Constitution Making in Revolutionary America. Chapel Hill, N.C. and
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London: The University of North Carolina Press, 1997. Kruman argues that given their experiences
with the Parliament, early state constitutional makers were intent on limiting all governmental
(including legislative) power. C.f. Wood, Creation, for the traditional argument that these
constitution makers were more concerned with limiting executive power and not legislative power,
hence the emphasis on legislative sovereignty. See also Robert F. Williams. “Evolving State
Legislative and Executive Power in the Founding Decade.” The Annals o f the American Academy o f
Political and Social Science 496 (1988), pp. 43-53.
3 3 See R.R. Palmer. “The American Revolution: The People as Constituent Power." In , Jack P.
Greene, ed. The Reinterpretation o f the American Revolution 1763-1789. New York, Evanston and
London: Harper and Row, Publishers, 1968, p. 340.
3 4 Wood, Creation, pp. 339-341; Oscar Handlin and Mary Handlin, eds. The Popular Sources o f
Political Authority: Documents on the Massachusetts Constitution o f 1780. Cambridge: The Belknap
Press of Harvard University, 1966, pp. 402-403; Dippel, “Changing Ideas of Popular Sovereignty,” p.
25.
3 5 Ibid., p. 28.
3 6 Wood, Creation, p. 338; Andrew C. McLaughlin. A Constitutional History o f the United States.
New York and London: D. Appleton-Century Company, 1935, p. 109.
3 7 Hyneman and Lutz, American Political Writings, I, pp. 322, 326
3 8 Donald Lutz. Popular Consent and Popular Control: Whig Political Theory in Early State
Constitutions. Baton Rouge and London: Louisiana State Press, 1980, p. 72.
3 9 Ibid., p. 73.
4 0 Ibid., p. 60.
4 1 Indeed, the rave over constitutional conventions did not manifest itself until after the Jacksonian era
when the idea of the people was expanded. As Daniel Rodgers writes, “the rise of the democratized,
open constitutional convention... yanked the notion of the people’s sovereignty out of the realm of
theory and gave it apparent substance.” Daniel T. Rodgers. Contested Truths: Keywords in American
Politics Since Independence. New York: Basic Books, 1987, p. 98. See also James Quayle Dealey.
“General Tendencies in State Constitutions.” American Political Science Review 1 (1907), pp. 200-
212, especially pp.206-207. Compare, Cynthia E. Browne and Richard H. Leach. State Constitutional
Conventions: From Independence to the Completion o f the Present Union, 1776-1959. Wesport and
London: Greenwood Press, 1973.
4 2 Walter Fairleigh. Dodd. The Revision and Amendment o f State Constitutions. Baltimore: The John
Hopkins Press, 1910, p, 22. A version of this chapter was originally published in Walter Fairleigh
Dodd. “The First State Constitutional Conventions, 1776-1783.” American Political Science Review 2
(1908), pp. 545-561. To avoid confusion, I refer to the former.
4 3 Wood, Creation, p. 352. See also Pauline Maier. American Scripture: Making the Declaration o f
Independence. New York: Vintage Books, 1997. Maier suggests that it was the state “declarations of
Independence” (many which were preambles to the constitutions) “offer the best opportunity to hear
the voice of the people from the spring of 1776 that we are likely to get.” Hence, it only seemed
logical that the institutions closest to the people express their will through a declaration of
independence (p. 49).
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4 4 Donald Lutz. The Origins o f American Constitutionalism. Baton Rouge: Louisiana State University,
1988, pp, 103-104. Rhode Island and Connecticut chose to keep their colonial charters substituting
the sovereignty of the King with popular sovereignty. See also E.D.L. Lewis. “The Adoption of State
Constitutions in the United States.” Virginia Law Register 8 (1902), pp. 9-13. Lewis divides the state
constitution making into three periods (1789-1830; 1830-1860; 1861-1902). Henry Black Campbell
“The Formation of the First State Constitutions.” The Constitutional Review 1 (1923), pp. 22-33;
Henry Black Campbell. “The Formation of the First State Constitutions, II.” The Constitutional
Review 7 (1923), pp. 99-109; Henry Black Campbell. “The Formation of the First State Constitutions,
HI.” The Constitutional Review 7 (1923), pp. 237-247; Gordon Wood. “Forward: State Constitution -
Making in the American Revolution.” Rutgers Law Journal 24 (1993), pp. 911-926.
4 5 Quoted in Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860:
A Study in Revolutionary Democracy. Chapel Hill: The University of North Carolina Press, 1930, p.
53.
4 6 See e.g., Herbert Friedenwald. “Draft of an Address of the Continental Congress to the People of
the United States, 1776." The American Historical Review 1 (1896), pp. 684-696.
4 7 Allan Nevins. The American States During and After the Revolution, 1775-1789. New York: The
MacMillan Company, p. 126; Dodd, Revision and Amendment, pp. 4-5; Adams, The First American
Constitutions, p. 69.
4 8 Green, Constitutional Development, p. 60; Dodd, Revision and Amendment, p. 4.
4 9 Dodd, Revision and Amendment, p. 5. The use of the word “assembly” instead of “congress” is
most interesting considering that the provincial congress framed the constitution. My best guess is
that that because many of these congresses exercised powers reserved to the assemblies, in essence,
they were the assemblies. For the purposes of this discussion, I am going to keep the two terms
separate.
5 0 Adams, The First American Constitutions, pp. 68-69.
5 1 Green, Constitutional Development, p. 61.
5 2 Edward McCrady. The History o f South Carolina in the Revolution, 1775-1780. New York: The
MacMillan Company, 1902, p. 108. There is evidence to suggest that this might be the case. The first
provincial congress that met on July 4, 1774 was merely a voluntary association of private citizens
who were not elected as a result of any election. Eventually, this body would order an election that
formed the new government (pp. 103-4).
5 3 Green, Constitutional Development, p. 61.
5 4 Adams, The First American Constitutions, p. 71.
5 5 Green, Constitutional Development, p. 62. The delegates from one town were instructed to “make a
total and final separation from Great Britain” and to draft a constitution. The people of one town were
so thrilled to hear that independence was adopted by the Convention that they took to the streets in
jubilation. Hugh Blair Grigsby. The Virginia Convention o f 1776. Richmond: J.W. Randolph, 1855,
pp. 18-19. But compare, Jameson, A Treatise on Constitutional Conventions, pp. 125-126.
Borrowing mostly from Jefferson’s argument, Jameson suggests that the Convention acted under its
own authority, not that of the people, and hence, it must be a “Revolutionary Convention” with no
legitimate basis to form a fundamental law.
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5 6 Worthington C. Ford “Jefferson’s Constitution for Virginia.” The Nation 51 (1890), p. 107.
5 7 Ford, “Jefferson’s Constitution,” p. 107.
3 8 Green, Constitutional Development, p. 62. Jefferson’s defeat did not prevent him from participating
in the process by submitting his plan, or as he called it, his “bill” for the constitution. His plan was
one of at least seven plans that were submitted to the convention. For example, Richard Henry Lee
submitted a draft strikingly similar to John Adam’s Thoughts on Government. See John E. Selby.
“Richard Henry Lee, John Adams, and the Virginia Constitution of 1776.” The Virginia Magazine o f
History and Biography 84 (1976), pp. 387-400. Jefferson however, did not make a copy for himself,
but it was eventually found and reprinted in the 1892 issue of the William and Mary College
Quarterly Historical Papers. Kate Mason Rowland. “A Lost Paper of Thomas Jefferson.” William
and Mary College Quarterly Historical Papers 1 (1892), pp. 34-45. See also Ford, “Jefferson’s
Constitution,” p. 108; D.R. Anderson. “Jefferson and the Virginia Constitution.” American Historical
Review 21 (1916), pp. 750-754.
5 9 For more on Virginia’s constitutional history, see Charles Henry Ambler. Sectionalism in Virginia
From 1776 to 1861. Chicago: University of Chicago Press, 1910; Robert P. Sutton. Revolution to
Secession: Constitution Making in the Old Dominion. Charlottesville: University Press of Virginia,
1989.
6 0 Nevins, The American States, p. 127; Adams, The First American Constitutions, p. 73.
6 1 Erdman, The New Jersey Constitution, 24, emphasis in the original. See also Jameson, A Treatise
on Constitutional Conventions, pp. 126-127.
6 2 Erdman, The New Jersey Constitution, pp. 22-24.
6 1 Claudia L. Bushman, Harold B. Hancock, and Elizabeth Moyne Hornsey. Proceedings o f the
Assembly o f the Lower Counties on Delaware 1770-1776, o f the Constitutional Convention o f 1776,
and o f the House o f Assembly o f the Delaware State 1776-1781. Newark: University of Delaware
Press, 1986, p. 201.
6 4 Ibid.; Adams, The First American Constitutions, p. 75.
6 5 Adams, The First American Constitutions, p. 75.
6 6 Quoted in Ibid., p. 76. See also H. Clay Reed. “The Delaware Constitution of 1776.” Delaware
Notes 6 (1930), p. 35. This quote is attributed to Thomas McKean. For more on McKean's role in
Delaware and Pennsylvania politics, see G.S. Rowe. “Thomas McKean and the Coming of the
Revolution.” Pennsylvania Magazine o f History and Biography 96 (1972), pp. 3-47.
6 7 Reed, The Delaware Constitution, p. 34.
6 8 J. Paul Selsam. The Pennsylvania Constitution o f 1776: A Study in Revolutionary Democracy. New
York: Octagon Books, 1971.
6 9 David. Hawke. In the Midst o f a Revolution. Philadelphia: University of Philadelphia Press,
1966,136. Selsam, Pennsylvania Constitution, p. 117-118.
7 0 Hyneman and Lutz, American Political Writing I, p. 341. The editors identify Demophilus as
probably George Bryan, a prominent Whig instrumental in the writing of the Pennsylvania
Constitution.
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7 1 Adams, The First American Constitutions, pp. 77-78.
7 2 Ibid., p. 78
7 3 Hawke, In the Midst o f a Revolution, p. 174; Selsam, Pennsylvania Constitution, pp. 138-140.
7 4 Selsam, Pennsylvania Constitution, p. 146. For more on the “representative” role of conventions,
see Robert S. Friedman and Sybil L. Stokes. “The Role of Constitution-Maker as Representative.”
Midwest Journal o f Political Science 9 (1965), pp. 148-166.
7 5 Selsam, Pennsylvania Constitution, p. 151; Paul Leicester Ford. “The Adoption of the
Pennsylvania Constitution of 1776.” Political Science Quarterly 10 (1895), p. 451.
7 6 Selsam, Pennsylvania Constitution, pp. 152-153.
7 7 Ford, pp. 451-452; Selsam, Pennsylvania Constitution, p. 161.
7 8 Selsam, Pennsylvania Constitution, p. 163. Compare, John Shaeffer. “Public Consideration of the
Pennsylvania Constitution of 1776.” The Pennsylvania Magazine o f History and Biography 98
(1974), pp. 415-437. Shaeffer notes that between the 5th and the 28*, “public consideration” of the
document took place and the convention (acting as a legislature) took into account nearly all
objections and made the appropriate modifications.
7 9 Quoted in Adams, The First American Constitutions, p. 80, emphasis added.
8 0 Green, Constitutional Development, p. 72. Green does not clarify what impact (if any) the counties
had on the convention’s discussion of both documents.
8 1 Adams, The First American Constitutions, p. 81. The word “temporary” was used since like in
most states, North Carolina did not give up hope on a resolution with England. Gary B. Nash. “The
Framing of Government in Pennsylvania: Ideas in Contact With Reality.” William and Mary
Quarterly 23 (1966), p. 11.
8 2 Robert L. Ganyard. “Radicals and Conservatives in Revolutionary North Carolina: A Point at
Issue, The October Election, 1776.” William and Mary Quarterly 24 (1976), pp. 568-587. See also
Gary B. Nash. “The North Carolina Constitution of 1776 and Its Makers.” The North Carolina
Historical Society 11 (1912), pp. 16-18.
8 3 Green, Constitutional Development, p. 66.
8 4 Ibid.
8 5 Adams, The First American Constitutions, p. 83; Green, Constitutional Development, pp. 72-73.
For more about the Georgia Constitution of 1776, see William W. Abbot. “The Structure of Georgia
Politics: 1782-1789.” William and Mary Quarterly 14 (1957), pp. 47-65; Walter. McElreath, A
Treatise on the Constitution o f Georgia. Atlanta: The Harrison, Company, 1912, pp. 63-77.
8 6 As cited in Jameson, A Treatise on Constitutional Conventions, pp. 135.
8 7 Bernard Mason. The Road to Independence: The Revolutionary Movement in New York, 1773-1777.
Lexington: University of Kentucky Press - Lexington, 1966, pp. 177-212.
8 8 Adams, The First American Constitutions, pp. 84-85.
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8 9 Ibid., pp. 219-220.
9 0 Mason, The Road to Independence, p. 230.
9 1 Ibid., p. 231. See generally, Robert F. Williams. “The State Constitutions of the Founding Decade:
Pennsylvania’s Radical 1776 Constitution and its Influences on American Constitutionalism.” Temple
Law Review 62 (1989), pp. S41-S8S. For a comparison of the Pennsylvania Constitution and the
French Constitution of 1793, see Horst Dippel. “Aux Origins Du Radicalisme Bourgeois: De la
constitution de Pennsylvanie de 1776 & la constitution jacobine de 1793.” Francia 16 (1989), pp. 61-
73.
92 Wood, Creation, 434; Andrew McLaughlin. “ American History and American Democracy.”
American Historical Review 20 (1915), pp. 255-276; Alexander). Celia. “The People of
Massachusetts, A New Republic, and the Constitution of 1780: The Evolution of Principles of Popular
Control of Political Authority 1774 - 1780.” Suffolk University Law Review 14 (1980), pp. 975-1006.
Celia notes that the entire constitutional -making process, from the deliberations to the ratification of
the final document was “a living testament to the constitutional changes wrought by the American
Revolution - the trump of the principles of popular control and political authority” (p. 1005). Edward
F. Hennessey. “The Extraordinary Massachusetts Constitution of 1780.” Suffolk University Law
Review 14 (1980), pp. 873- 886; Edward F. Hennessey. “Massachusetts Roots of the Constitution of
the United States.” Massachusetts Law Review 72 (1987), pp. 3-6; S.B. Benjamin. “The Significance
of the Massachusetts Constitution of 1780.” Temple Law Review 70 (1997), pp. 883-905; Paul C.
Reardon. “The Massachusetts Constitution Marks a Milestone.” Publius: The Journal o f Federalism
12 (1982), pp. 45-56; Ronald M. Peters Jr., The Massachusetts Constitution o f 1780: A Social
Compact. Amherst: The University of Massachusetts PTess, 1978; Robert J. Taylor. “Lawyer John
Adams and the Massachusetts Constitution.” Boston Bar Journal 24 (1980); pp. 21-27.
9 3 “Boston’s Instructions to Its Representatives, May 30, 1776.” Handlin and Handlin, Popular
Sources, p. 95.
9 1 Handlin and Handlin, Popular Sources, p. 105; Adams, The First American Constitutions, pp. 66-
68.
9 5 Handlin and Handlin, Popular Sources, p. 124. See also pp. 136 (Boston returns) and 153 (Concord
returns).
9 6 Ibid., pp. 174-175.
9 7 Ibid.., pp. 177-189, 191.
9 8 Samuel Elliot Morison. ‘The Struggle Over the Adoption of the Constitution of Massachusetts,
1780.” Proceedings o f the Massachusetts Historical Society 50 (1917), p. 356.
9 9 Jameson, A Treatise on Constitutional Conventions, p. 145.
1 0 0 Morison “Adoption of the Massachusetts Constitution,” p. 360.
1 0 1 Ibid., p. 367.
1 0 2 Adams, The First American Constitutions, pp. 91-92. See generally, Samuel E. Morrison. “The
Vote of Massachusetts on Summoning a Constitutional Convention, 1776-1916.” Proceedings o f the
Massachusetts Historical Society 1 (1916-1917), pp. 241-249.
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1 0 3 Morison, “Adoption of Massachusetts Constitution, p. 362.
I < M Hyneman and Lutz, American Political Writings I, p. 459.
1 0 5 Peter S. Onuf. “State-Making in Revolutionary America: Independent Vermont as a Case Study.”
The Journal o f American History 67 (1981), pp. 804-807.
1 0 6 Ibid., p. 813.
1 0 7 Jameson, A Treatise on Constitutional Conventions, pp. 140-141.
1 0 8 Compare Jameson and Dealey with Nathaniel Hendricks. “A New Look at the Ratification of the
Vermont Constitution of 1777.” Vermont Historical Society 34 (1966), pp. 136-140 (demonstrating
how the various towns in Vermont discussed and accepted the proposed constitution).
1 0 9 In his Considerations, James Wilson noted that it would be a violation of the “genius of the British
Constitution” if the colonists were forced to submit to parliamentary legislation (not simply taxation)
without adequate representation. Morison, Sources and Documents, p. 107. Stephen Hopkins, in The
Rights o f Colonies Examined, celebrated the virtues of England’s “glorious constitution.” The
colonies, he argued, had come out of a “kingdom renowned for liberty, from a constitution founded
upon a compact, from a people of all the sons of men the most tenacious freedom....” Thus, they
should be accorded all the rights and privileges associated with it. Hyneman and Lutz, American
Political Writings I, p. 49. Patrick Henry’s Stamp Act Resolves declared that self-taxation (or
taxation by representation) was one of the distinguishing characteristics of British freedom and
essential to the existence of the constitution itself. Ibid., p. 7.
1 1 0 Nevins, The American States, p. 136.
n> McLaughlin, Constitutional History o f the United States, p. 113.
1 1 2 Dodd, Revision o f State Constitutions, pp. 22-23.
1 1 3 James Wilford Gamer. “Amendment of State Constitutions.” The American Political Science
Review 1 (1907), p. 215.
1 1 4 Thorpe, Constitutions and Charters m , pp. 1690-1691, 1701. Article LIX of Maryland
Constitution reads in part as follows:
That this Form of Government, and the Declaration of Rights, and no
part thereof, shall be altered, changed, or abolished, unless a bill so to
alter, change or abolish the same shall pass the General
Assembly...provided that nothing in this form of government, which
relates to the eastern shore particularly, shall at any time hereafter be
altered, unless for the alteration and confirmation thereof at least two -
thirds of all the members of each branch of the General Assembly shall
concur.
Thorpe, Constitutions and Charters I, p. 568. Article 30 of the Delaware Constitution stipulates:
No article of the declaration of rights and fundamental rules of this State,
agreed to by this convention, nor the first, second, twenty-sixth, and
twenty- ninth articles of this constitution, ought to be violated on any
pretence whatever. No other part o f this constitution shall be altered,
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changed, diminished without the consent of five parts in seven of the
assembly, and seven members of the legislative council.
See also Ibid., pp. 562,567-568. For more on Delaware Declaration of Rights, see Max Farrand.
“The Delaware Bill of Rights of 1776.” The American Historical Review 3 (1898), pp. 641-649.
1 ,5 Erdman, The New Jersey Constitution, pp. 58-59 70, 150; Thorpe, Constitutions and Charters V, p.
2598. Article 23 requires legislators to take an oath affirming the following:
I will not assent to any law, vote or proceeding, which shall appear to me
injurious to the public welfare of said Colony, which establishes, that the
election of members of the Legislative Council and Assembly shall be
annual; nor that part of the twenty - second section in said Charter,
respecting the trial by jury, nor that shall annul, repeal, or alter any part
or parts of the eighteenth or nineteenth sections of the same.
1 1 6 Lewis Meader. ‘The Council of Censors.” The Pennsylvania Magazine o f History and Biography
22 (1898), pp. 265-300.
1 1 7 Lutz, Popular Consent and Popular Control, p. 130.
1 1 8 Ibid., p. 132. Shaeffer, “The 1776 Pennsylvania Constitution, p. 435.
1 1 9 Meader, “Council of Censors,” pp. 287-289.
1 2 0 Paul K. Conkin. Self-Evident Truths. Bloomington and London: Indiana University Press, 1974, p.
171.
1 2 1 Matthew J. Herrington. “Popular Sovereignty in Pennsylvania 1776-1791.” Temple Law Review 67
(1994), p. 592.
1 2 2 Gordon Wood. “The Origins of Judicial Review.” Suffolk University Law Review 22 (1988), p.
1303; Wood, Creation, pp. 453-463; Leslie Friedman Goldstein. “Popular Sovereignty, the Origins of
Judicial Review, and the Revival of Unwritten Law.” The Journal o f Politics 48 (1986), pp. 51-71;
William E. Nelson. “Changing Conceptions of Judicial Review: The EvoIuUon of Constitutional
Theory in the States, 1790-1860.” University o f Pennsylvania Law Review 20 (1972), pp. 1166-1185.
1 2 3 Nevins, The American States, p. 169.
1 2 4 Wood, Creation, pp. 438-446.
1 2 5 Charles Grove Haines. The American Doctrine o f Judicial Supremacy. 2n d ed. Berkeley: University
of California Press, 1932, p. 75.
1 2 6 Shaeffer, “The 1776 Constitution of Pennsylvania,” p. 437, emphasis added.
1 2 7 Herrington, “Popular Sovereignty in Pennsylvania,” p. 591.
1 2 8 Thorpe, Constitutions and Charters V, p. 3090.
1 2 9 Akhil Reed Amar. “Philadelphia Revisited: Amending the Constitution Outside Article V.”
University o f Chicago Law Review 5 (1988), p. 1050.
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1 3 0 Thorpe, Constitutions and Charters I, p. 4.
1 3 1 Christian G. Fritz. “Alternative Visions of American Constitutionalism: Popular Sovereignty and
the Early American Constitutional Debate.” Hastings Constitutional Law Quarterly 24 (1997), p. 290.
1 3 2 Fritz, “Alternative Visions of American Constitutionalism,” p. 325. See also Gamer, “Amendment
of State Constitutions,” p. 215 (arguing that the framers of the constitutions “fell back upon primary
truth, repeatedly announced in their bills of rights, that the people have a right to alter, amend or
supersede their constitutions whenever they wish....”). Gamer suggests another reason for the lack of
amendment provisions - many of the colonists still held out hope for reconciliation with Great
Britain.
1 3 3 Frank I. Michelman article “Always Under the Law?” Constitutional Commentary 12 (1995), pp.
227-247.
1 3 4 Adams, The First American Constitutions, p. 142.
1 3 5 William Clarence Webster. “Comparative Study of the State Constitutions of the American
Revolution.” Annals o f the American Academy o f Political and Social Science 9 (1897), pp. 380-420;
D.M. Graham. “The Early State Constitutions.” The Constitutional Review 9 (1925), pp. 222-230;
James Q. Dealey. Growth o f American State Constitutions. New York: DaCapo Press, 1972; Jackson
Turner Main. The Sovereign States, 1775-1783. New York: New Viewpoints, 1973 (especially
chapters 5 and 6); Ronald Hoffman and Peter J. Albert, eds. Sovereign States in an Age o f
Uncertainty. Charlottesville: University Press of Virginia, 1981; Donald S. Lutz. “The Theory of
Consent in the Early State Constitutions.” Publius: The Journal o f Federalism 9 (1979), pp. 11-42.
1 3 6 H.L.A. Hart. The Concept o f Law. New York and London: Oxford University Press, 1961. See
generally, Kent Greenawalt. “The Rule of Recognition and the Constitution.” Michigan Law Review
85 (1987), pp. 621-671.
1 3 7 Article XIII, Articles of Confederation. Thorpe, Constitutions and Charters I, p. 15.
1 3 8 Article VII, United States Constitution. Ibid., p. 27.
1 3 9 Richard S. Kay. “The Illegality of the Constitution.” Constitutional Commentary 4 (1987), pp. 57-
80. See also Bruce Ackerman. We the People: Foundations. Cambridge and London: The Belknap
Press of Harvard University Press, 1991, pp. 41-42, 173-179. Bruce Ackerman and Neal Katyal. “Our
Unconventional Founding.” University o f Chicago Law Review 62 (1995), pp. 484-573. See
generally, Edmund Cody Burnett. The Continental Congress: A Definite History o f the Continental
Congress From its Inception in 1774 to March, 1789. New York: W.W. Norton and Company, 1864.
1 4 0 Max Farrand, ed. The Records o f the Federal Convention o f 1787 4 Vols. New Haven and London:
Yale University Press, 1966 (originally published in 1911) m , p. 14. See also Max Farrand. “The
Federal Constitution and the Defects of the Confederation.” The American Political Science Review 2
(1988), pp. 532-544.
1 4 1 Merrill Jensen, ed. The Documentary History o f the Ratification o f the Constitution. 3 Vols.
Madison: State Historical Society of Wisconsin, 1976,1, pp. 191-229.
1 4 2 Kay, “The Illegality of the Constitution,” p. 72.
1 4 3 Wood, Creation, p. 342.
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1 4 4 Amar, “Philadelphia Revisited,” pp. 1054-1056.1 am working from Amar’s premise that Article V
of the federal Constitution limits only government officials, but the people have the right to act
independently of government by amending the Constitution outside the confines of Article V. For
Amar, a majority of the people should be permitted to amend the Constitution through a national vote.
See also Akhil Reed Amar. “The Consent of the Governed: Constitutional Amendment Outside of
Article V.” Columbia Law Review 94 (1994), pp. 457-508; Akhil Reed Amar. “Guaranteeing a
Republican Form of Government: The Central Meaning of Republican Government: Popular
Sovereignty, Majority Rule, and the Denominator Problem.” University o f Colorado Law Review 65
(1994), pp. 749-786.
1 4 5 Elliot, Ratification Debates IV, pp. 23, 206-7.
1 4 6 Ibid. O, pp. 469-470.
1 4 7 Ibid. IV, p. 16, emphasis added.
1 4 8 Ibid. IV, p. 25.
1 4 9 See debates in Ibid., pp. 15-16 and pp. 23-25. But see Jack N. Rakove. Original Meanings:
Politics and Ideas in the Making o f the Constitution. New York: Alfred Knopf., 1996, arguing that by
requiring the people to approve of the Constitution as a whole, the Federalists reduced ratification to a
legal, as opposed to a political act.
1 5 0 Charles F. Hobson. “The Negative on State Laws: James Madison, the Constitution, and the Crisis
of Republican Government.” William and Mary Quarterly 36 (1979), pp. 215-235. During the
Convention, Madison tried unsuccessfully to put forth a plan allowing the federal government to veto
state laws. See also Edwin S. Corwin. “The Progress of Constitutional Theory Between the
Declaration of Independence and the Meeting of the Philadelphia Convention.” American Historical
Review 30 (1925), pp. 511-536, arguing that omnipotent state legislatures contributed to the weakness
of the Articles of Confederation making judicial review more attractive.
1 5 1 Kay, “The Illegality of the Constitution,” p. 72.
1 3 2 Farrand, Records o f Federal Convention, II, p. 89 (John Randolph).
1 3 3 Ibid., p. 476 (James Madison).
1 3 4 Ibid., p. 88 (George Mason).
1 3 5 Ibid., p. 90.
1 3 6 The first time the name “United States of America” appeared was in the Declaration of
Independence. Edmund C. Burnett. “The Name “United States of America.”” The American
Historical Review 31 (1925), pp. 79-81.
1 3 7 See e.g., Alison Gilbert Olson. “The British Government and Colonial Union, 1754.” William and
Mary Quarterly 17 (1960), pp. 22-34; L.K. Matthews. “Benjamin Franklin’s Plan for a Colonial
Union, 1750-1775.” The American Political Science Review 8 (1914), pp. 393-412; Peter C. Hoffer
and N.E.H Hull. ‘“T o Determine on the Future of Government”: Robert Yates’s Plan of Union, 1774-
1775.” William and Mary Quarterly 34 (1977), pp. 298-306; Anthony M. Lewis. “Jefferson’s
Summary View as a Chart of Political Union.” William and Mary Quarterly 5 (1948), pp. 34-51;
Meriil Jensen. “The Idea of a National Government During the American Revolution.” Political
Science Quarterly 58 (1943), pp. 356-379.
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1 5 8 Max Savelle. “Nationalism and Other Loyalties in the American Revolution.” The American
Historical Review 67 (1962), pp. 904,908; John W. Blassingame. “American Nationalism and Other
Loyalties in the Southern Colonies, 1763-1775.” The Journal o f Southern History 34 (1968), pp. 50-
75; Richard Beeman, Stephen Botein, and Edward C. Carter II, eds. Beyond Confederation: Origins of
the Constitution and American National Identity. Chapel Hill and London: University of North
Carolina Press, 1987; Paul A. Varg. “The Advent of Nationalism, 1758-1776.” American Quarterly
16 (1964), pp. 169-181.
1 5 9 Claude H. Van Tyne. “Sovereignty in the American Revolution: An Historical Study.” The
American Historical Review 12 (1907), pp. 529-545.
1 6 0 Curtis P. Nettels, “The Origins of the Union and of the States.” Proceedings o f the Massachusetts
Historical Society 72 (1960), pp. 68-83. See also Jack N. Rakove. The Beginnings o f National
Politics: An Interpretive History o f the Continental Congress. New York: Alfred A. Knopf, 1979.
See also Richard B. Morris. “The Forging of the Union Reconsidered: A Historical Refutation of State
Sovereignty Over Seabeds.” Columbia Law Review 74 (1974), pp. 1056-1091. See also Joseph Story.
Commentaries on the Constitution o f the United States. Vol. I. Boston: Little, Brown, and Company,
1905 (Originally published in 1830). But compare, Kenneth M. Stampp. “The Concept of a Perpetual
Union.” The Journal o f American History 68 (1987), pp. 5-33. Stampp argues that the phrase “a more
perfect Union” was not equivalent to the idea of a “perpetual union” under the Articles.
1 6 1 Nettels, “Origins of Union,” p. 76.
1 6 2 Richard B. Morris, ““We the People of the United States”: The Bicentennial of a People’s
Revolution.” The American Historical Review 82 (1977), pp. 13-14.
1 6 3 Savelle, “Nationalism in the American Revolution,” p. 914.
1 6 4 Van Tyne, “Sovereignty in the American Revolution,” p. 556.
1 6 3 Peter S Onuf. “From Colony to Territory: Changing Concepts of Statehood in Revolutionary
America.” Political Science Quarterly 97 (1982), pp. 447-459.
1 6 6 Greene, Center and Peripheries, pp. 182-189.
1 6 7 Thorpe, Constitutions and Charters, I, p. 10.
1 6 8 Jensen. The Articles o f Confederation, pp. 163-164.
1 6 9 Merrill Jensen “The Articles of Confederation: A Re-interpretation.” In Kermit L. Hall, ed. The
Formation and Ratification o f the Constitution: Major Historical Interpretations. New York and
London: Garland Publishing, 1987), pp. 281-303. Originally published in The Pacific Historical
Review 6 (1937), pp. 120-142.
1 7 0 Jensen, The Articles o f Confederation, pp. 141-145.
1 7 1 Elliot, Ratification Debates I, p. 75.
1 7 2 Ibid., p. 76.
1 7 3 Ibid., p. 78.
1 7 4 Kammen, Sovereignty and Liberty, p. 27; Adams, The First American Constitutions, p. 126.
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1 7 5 Kammen, Sovereignty and Liberty, p. 27.
1 7 6 Bailyn, Debate on the Constitution, I, p. 863; Stephen A. Conrad. “Metaphor and Imagination in
James Wilson’s Theory of Federal Union.” Law and Social Inquiry 13 (1988), pp. 1-70; John
Marshall Harlan. “James Wilson and the Formation of the Constitution.” American Law Review 34
(1900), pp. 481-504; Andrew McLaughlin. “James Wilson in the Philadelphia Convention.” Political
Science Quarterly 12 (1897), pp. 1-20.
1 7 7 Bailyn, Debate on Constitution I, p. 821. Wood, Creation, pp. 529-531.
1 7 8 Quoted in Wood, Creation, p. 530.
1 7 9 Bailyn, Debate on Constitution I, pp. 820-821.
1 8 0 Kammen, Sovereignty and Liberty, p. 27-28.
1 8 1 Joshua Miller. “The Ghostly Body Politics: The Federalist Papers and Popular Sovereignty.”
Political Theory 16 (1988), p. 100.
1 8 2 Bailyn, Debate on Constitution I, p. 818, original emphasis. For Wilson’s response, see pp. 820-
828.
1 8 3 Morgan, Inventing the People, p. 267.
1 8 4 Farrand, Records o f Federal Convention I, p. 406.
1 8 5 Cecelia M. Kenyon. “Alexander Hamilton: Rousseau of the Right.” Political Science Quarterly 73
(1958), pp. 161-178; William P. Murphy. The Triumph o f Nationalism: State Sovereignty, the
Founding Fathers, and the Making o f the Constitution. Chicago: Quadrangle Books, 1967; Peter S.
Onuf. “State Sovereignty and the Making of the Constitution.” In Terence Ball and J.G.A. Pocock,
eds. Conceptual Change and the Constitution. Lawrence: University of Kansas Press, 1988, pp.78-
98; Peter S. Onuf. “Constitutional Politics: States, Sections, and the National Interest.” In Neil L.
York, eds. Toward A More Perfect Union: Six Essays on the Making o f the Constitution, pp. New
York: Brigham Young University, 1988, pp. 29-57.
1 8 6 Bailyn, Debate on Constitution I, p. 446; Akhil Reed Amar. “Of Sovereignty and Federalism.”
Yale Law Journal 96 (1987), pp. 1425-1520.
1 8 7 Miller, “Ghostly Body Politics,” p. 106.
1 8 8 Federalist 16. In Clinton Rossiter, ed. The Federalist Papers. New York: Nal Penguin Inc., 1961,
p. 116.
1 8 9 Federalist 78. Ibid., p. 467.
1 9 0 Ibid., p. 465.
1 9 1 Ibid., pp. 467-468.
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Chapter 2
Popular Sovereignty as Interpretation: Who Shall Interpret?
[B]y the inexorable logic of sound, constitutional principles, it has
been brought to pass, that the rights of the people find their last
and best security, not in the popular assembly, nor in any agency
of its creation, but in that institution of government [the judiciary],
which is furthest of all beyond the popular reach, which is made as
far as any institution can be, independent of public feeling, and
invulnerable to the attack of majorities. Having its origin in the
sovereignty of the people, it is the bulwark of the people against
their own universal action, their own uninstructed will. It saves
them, not merely from their enemies; it saves them from
themselves. And so it perpetuates the sovereignty from which it
sprang; and which has been provided for in its own supremacy, by
the surrender of a power it was dangerous to retain.
Mr. Phelps (1887)1
Introduction
The debates over whether legislatures or conventions were the proper institution to
embody the will of “We the People” occurred during the formation of the early state and
federal constitutions. Whereas legislatures were dominant in the creation of state
constitutions, conventions had a central role in the creation and ratification of the federal
Constitution. The struggle over the creation of the state and federal constitutions
demonstrated the contested nature of popular sovereignty in the early Republic. After the
adoption of the federal Constitution, advocacy of conventions diminished. The virtual
absence of conventions did not mean that state legislatures were accepted as the sole
embodiment of the will of the people. Nor did it mark an end to the debates over the
institutionalization of popular sovereignty. During the 1790s and early 1800s, state
legislatures competed against both the federal and state judiciaries for the right to speak for
the people.
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At the heart of this competition was the power of constitutional interpretation. After
independence, constitutional creation dominated the discourse as both radicals and
conservatives invoked popular sovereignty as a means to reach political ends. Once the state
and federal governments began to operate, constitutional interpretation became the focal
point of contention. Which institution, the legislature or the judiciary, had the right to
interpret the fundamental will of the sovereign people as embodied in the constitution? To
put it differently, which institution had the authority to determine whether the state or federal
governments exceeded their constitutional authority by reviewing and possibly nullifying
their actions? Popular sovereignty, therefore, was a political tool to justify the exercise of
the power of interpretation via constitutional review and nullification.
In the decades after Philadelphia, there were at least five distinct answers to Walter
Murphy’s question, “Who Shall Interpret?” The first involved the authority of state courts to
review the consistency of state laws with their respective state constitutions. The decision to
strike down an act of the legislature was often premised upon the duty of state judges to
protect the sovereign people against aggressive legislatures. Interpretation of the federal
Constitution was more complicated since it was closely linked to the dispute over whether
the people were constituted as a nation or as states. In other words, did "We the People" of
the nation empower the federal government, or was that right reserved to "We the People" of
the states? The second model, which was similar to the first model, was the Federalist’s
conception of judicial review. Accordingly, judicial review was designed to protect the
fundamental will of the national people as embodied in the Constitution. Hence, the federal
judiciary, in particular, the Supreme Court, had the final word over questions of both state
and federal law. The third model was premised upon the people constituted in the states, but
advocates of this position argued that state courts had the final say over the scope of both
federal and state authority. Fourth, some viewed the people as constituted in their separate
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states, but they denied that the judiciary (at both levels) had the final say over constitutional
questions. Instead, such questions were to be resolved by the people of the states, assembled
in state legislatures. Finally, advocates of “departmentalism” argued that each branch should
interpret the constitution subject to electoral (popular) checks.
In this chapter, I examine how different versions of popular sovereignty were
constituted and used to justify a particular mode of constitutional interpretation. This battle
over interpretation began almost immediately after the battles over creation. Constitutional
creation was the first step in the institutionalization of popular sovereignty in the “indoors.”
The early state and federal constitutions set up institutions where the people could express
their will. The next step was to ensure that the people, through their various institutional
representatives, were kept in line. Leading the charge were the courts, but other institutions
at the state and federal levels asserted the right of constitutional review.
The State Judiciary and the People
The most familiar argument about the institutional authority to interpret is judicial
review. Courts often justified their power to review and nullify legislative acts by
connecting popular sovereignty with judicial power. The logic was as follows: as the
fundamental law of the land, the constitution was the creation and embodiment of the will of
the sovereign people. If the legislature passed a law inconsistent with the constitution, it was
imperative upon judges, as guardians of the constitution (and the sovereign people), to
nullify that law.
It is assumed that the power of the courts to nullify an act of the legislature was first
exercised by John Marshall in Marbury v. Madison.2 Yet, well before Marbury, legislative
acts had been subject to some form of review. In England, courts questioned the validity of
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some acts of Parliament.3 In Dr. Bonham’ s Case, Sir Edward Coke ruled that “[w]hen an
Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be
performed, the Common Law will contrail it, and adjudge such an Act to be void.”4
Scholars generally agree that Coke did not believe that courts could nullify a legislative act,5
but the case does show that courts exercised some oversight over legislative activities.
Limits on the exercise of colonial authority were also evident since all laws had to be
consistent with the laws of England, as well as the colonial charters, and courts were at the
center of enforcing these limits.6 For example, in 1738, the Massachusetts Superior Court of
Judicature refused to enforce a royal order since it was inconsistent with the powers
conferred upon the court by the royal charter of the state.7
This trend continued after independence, as state court jurists exercised the power of
judicial review over state legislation.8 Yet, the authority of state courts to question the
validity of legislative acts defled the idea of legislative supremacy. In the creation of the
early state constitutions, legislative omnipotence came at the expense of executive and
judicial power. The fact that many of these constitutions were created by legislatures may
have contributed to this omnipotence, but it also suggests that legislators viewed themselves
as the only representatives of the people. For the judiciary to question legislative authority
by declaring its acts unconstitutional ran counter to the idea of legislative (popular)
supremacy. However, by the 1780s, growing mistrust of runaway hyper-democratic state
legislatures forced some Americans to re-evaluate their earlier hostility to judicial review.9
At the heart of these cases were two issues. First, there was a general consensus that
an act of the legislature that violated the constitution (the fundamental law) was
unconstitutional. Second, state court jurists made it clear that the judiciary had the right to
review the constitutionality of statutes. The exercise of judicial review did not necessarily
mean that courts nullified every law under consideration. Irrespective of whether a
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legislative act was struck down, state judges argued that they had the authority to review the
constitutionality of laws. For example, in Commonwealth v. Canton (1782), the Virginia
Supreme Court pitted Virginia’s treason law against the “written record of that which the
citizens of this state have adopted as their social compact.. and found them to be consistent
with one another. The Court also argued that the judiciary had the power to nullify a law
“contrary to the plain terms of [the] constitution....”1 0 In New Jersey, the case of State v.
Parkhurst (1802) involved the constitutionality of a law forbidding persons from holding
more than one state office. Justice Kirkpatrick affirmed the right of the judiciary to
determine the constitutionality of legislative acts, but upheld the law and ruled that the two
offices in question were incompatible with one another.1 1 He refused, however, to accept the
notion that the legislature was supreme over the constitution. Kirkpatrick declared that
people were sovereign and “supreme in power” and argued that one of the most important
objects of the constitution was to “prescribe and limit the objects of legislative power.”1 2
The first recorded instance of a state court striking down a legislative act was the
1786 Rhode Island case of Trevett v. Weeden.1 3 At stake was the constitutionality of a law
punishing individuals who refused to accept newly emitted paper money as valid legal tender
without a jury trial. The Court struck down the law but it did not offer a justification for its
decision in a formal written opinion. Yet, the argument by Weeden’s attorney, James
Vamum, offers insight into the types of arguments that the Court was asked to consider.
Rhode Island was still governed under its original charter, but popular sovereignty had
replaced the King. Vamum argued that the charter was a compact between the King and the
people. The compact had limited the powers of the colonial legislature by preventing the
adoption of laws contrary to the laws of England. This trend continued after independence
as the legislature derived its authority from the people. Hence, all laws in violation of the
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constitution, were “unconstitutional and void.” Vamum also argued that the judiciary had
the right to determine if the legislature had violated the constitution. “Judges must examine
such legislation and determine whether it deprives the people of their constitutional rights or
not, and if it do so, then, they must say so, and hold it to be therefore no law of the land.”1 4
Bayard v. Singleton (1787) involved the constitutionality of an act of the North
Carolina legislature that required the Supreme Court to dismiss suits brought by individuals
whose property had been confiscated. The North Carolina Supreme Court struck down the
act as a violation of the constitutional right to a jury trial. Although the judges were hesitant
to defy the legislature, they nonetheless made it clear that the judiciary was bound to view
the constitution as a fundamental law and any law that violated the constitution would “stand
as abrogated and without any effect.”1 3 This case is of interest because it coincided with the
debates in the federal convention over the proposal that the national government should have
the power to veto state laws. Two days before the plan was formally introduced, Elbridge
Gerry delivered a speech before the convention and argued that “[i]n some of the states the
judges had actually set aside laws, as being against the constitution.”1 6 This statement goes
to the heart of the question as to how much the framers knew about the authority of courts,
not only to review legislative acts (Canton), but also to nullify them (Trevett and Bayard).
Whether Gerry was alluding to Bayard is questionable, yet there is evidence to suggest that
some communication was taking place.1 7 In a letter to the public dated August 17, 1786,
James Iredell, one of the attorneys in Bayard, reminded the audience of their experiences
with an omnipotent Parliament. Legislatures in the United States were created, limited, and
defined by the constitution. Any act inconsistent with the constitution was “void” and could
not be obeyed “without disobeying the superior law to which we were previously and
irrevocably bound.”1 8 Iredell argued that the judiciary had the right to determine if the
legislature had violated the constitutional rights of the people by enacting such a law.
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[J]udges... must take care at their peril, that every act of Assembly
they presume to enforce is warranted by the constitution, since if it
is not, they act without lawful authority. This is not a usurped or
discretionary power, but one inevitably resulting from the
constitution of their office, they being judges fo r the benefit o f the
whole people, not mere servants o f the Assembly}9
An August 1787 correspondence between Richard Dobbs Spaight, then serving as a delegate
to the Convention, and Iredell is further evidence of the knowledge of Bayard. Spaight
referred to the opinion of “our judges at Newbome” (the Bayard decision) and contended
that other than annual elections, the Constitution did not provide a sufficient check on
“intemperate and unjust proceedings of our Legislature.”2 0 Iredell responded by
concentrating on the relationship between popular sovereignty and judicial power. He noted
that the legislature derived its “whole power” from the Constitution that implied “either that
the fundamental unrepealable law must be obeyed, by the rejection of an act unwarranted by
and inconsistent with it, or you must obey an act founded on an authority not given by the
people, and to which, therefore, the people owe no obedience.”2 1
Rutgers v. Waddington (1784) involved a suit by Elizabeth Rutgers under New
York’s Trespass Act that allowed owners to reclaim property that was occupied by the
British. The Court ruled in favor of the defendant and although this case rested on the law of
nations, as opposed to a written law, Alexander Hamilton’s plea on behalf of the defendant
had important implications for the development of judicial review and federal supremacy. In
one of his briefs, he argued that courts (even as in this case, the Mayor’s Court) had the right
to review legislative acts. “That state court had power to declare act of state legislature void
(i.e., to determine that the legislature exceeded its authority and the statue was therefore a
nullity) and deny effect to it.” Hamilton also alluded to the supremacy of federal treaties as
governing over state laws. “State law contra federal treaty was void.”2 2
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In Cases o f the Judges o f the Court o f Appeals (1788), the Virginia Supreme Court
nullified an act that increased judges’ duties without increasing their salaries. The Court was
concerned that the Act violated the principles of the constitution “which the people in 1776,
when the former bands of their society were dissolved, established as the foundation of that
government....” One principle was the desire of the people to keep the branches separate
and independent from one another. The Court rejected the claim that judicial review
threatened legislative independence. Accordingly, when courts decide between “an act of
the people” (the constitution) and “an act of the legislature”(a statute), they act within the
“line of their duty” by declaring what the law is, not making a new law.2 3
The South Carolina Supreme Court in Lindsay v. Commissioners (1796) reviewed a
state law that authorized state commissioners to seize property for public use without
compensation. The plaintiffs attorney argued against the constitutionality of the law and
insisted that judges, as the “constitutional guardians of the people” were required to nullify
it.2 4 The Court was equally divided, but one judge (Waties) invoked popular sovereignty to
justify his belief in the unconstitutionality of the law. He argued that if the legislature was
permitted to violate the constitution, the people would be dependent on the legislature and
the constitution would be a nullity. But if the court did its duty by “giving to the constitution
an overruling operation over every act of the legislature which is inconsistent with it, the
people will then have an independent security for their rights....” Waties denied that judicial
review was equivalent to judicial supremacy.
In exercising this high authority, the judges claim no judicial
supremacy; they are only the administrators of the public will. If
an act of the legislature is held void, it is not because the judges
have any control over the legislative power, but because the act is
forbidden by the constitution, and because the will of the people,
which is therein declared, is paramount to that of their
representatives, expressed in any law.2 5
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One of the most explicit pre-Marshall popular sovereignty justifications for judicial
review was the Virginia case of Peter Kamper v. Mary Hawkins (1793). All five judges
invoked popular sovereignty in their opinions on the constitutionality of a statute giving
courts injunctive powers. Spencer Roane who was one of the nations’ leading advocates of a
strong judiciary,2 6 noted that the people threw off the old bands of British rule and assembled
in a convention to create a constitution superior to legislative acts.
I consider the people of this country as the only sovereign people —
I consider the legislature as not sovereign but subordinate; they are
subordinate to the greatest constitutional charter which the people
have established as a fundamental law, and which alone has given
existence and authority to the legislature.2 7
To prevent the legislature from infringing on the constitution and forcing the people to
become “wholly at the mercy of the legislature,” Roane wrote, “it is the province of the
judiciary to expound the laws....” Accordingly, the judiciary “may and ought to adjudge a
law unconstitutional and void, if it be plainly repugnant to the letter of the Constitution....”2 8
In a case factually similar to Marbury, the Maryland Supreme Court in Whittington
v. Polk (1802) was asked to determine if William Whittington was entitled to a commission
as a county court judge under the laws and the constitution of the state. Whittington claimed
that the act calling for his removal as a county judge violated the constitutional requirement
that judges be removed only for misbehavior. The Court upheld the constitutionality of the
law and denied Whittington his commission. However, the Court noted that the legislature
was not superior to the constitution. According to the Chief Judge, the two main issues were
first, whether “an act of assembly repugnant to the constitution is void,” and second, whether
“the court [has] a right to determine an act of assembly void, which is repugnant to the
constitution.”2 9 As for the first issue, the Court relied on the idea that the constitution was a
compact among the people from whom all power originates. The legislature was a creation
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of the constitution and acts within a “circumscribed sphere.” and “cannot rightfully exercise
any power, but that which is derived from the instrument.” Hence,
[i]n this compact the people have distributed the powers of
government in such manner as they thought would best conduce to
the promotion of the general happiness; and for the attainment of
that all important object, have, among other provisions,
judiciously deposited the legislative, judicial and executive, in
separate and distinct hands, subjecting the functionaries of these
powers to such limitations and restrictions as they sought fit to
prescribe.3 0
The Court denied that revolution or annual elections were the proper remedies against
legislative abuses. It rejected the claim that the legislature could determine the scope of its
own authority, arguing that the constitution conferred this power upon the judiciary.
It is the office and province of the court to decide all questions of
law which are judicially brought before them, according to the
established mode of proceeding, and to determine whether an act
of the legislature, which assumes the appearance of a law, and is
clothed with the garb of authority, is made pursuant to the power
vested by the constitution in the legislature; for if it is not the
result or emanation of authority derived from the constitution, it is
not law, and cannot influence the judgment of the court in the
decision of the question before them.
The legislature are the trustees of the people, and as such, can only
move within those lines which the constitution has defined as the
boundaries of their authority, and if they should incautiously, or
unadvisedly transcend those limits, the constitution has placed the
judiciary as the barrier or safeguard to resist the oppression, and
redress the injuries which might accrue from such inadvertent, or
unintentional infringements of the constitution.3 2
Before Marbury, the relationship between popular sovereignty and judicial control
over constitutional interpretation was established at the state level. The courts did not nullify
every law up for consideration, but they made it clear that legislatures were limited by the
constitution and that judges were the proper guardians of the constitution. After Marbury,
state court jurists continued to invoke this argument as a justification for judicial review.
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In University o f North Carolina v. Foy (1805), the North Carolina Supreme Court
voided a law that repealed another law granting property to the University. The Court
referred to the desire of the people, assembled in a convention, to have some rights, in
particular, the constitutional right to education, secured to them beyond the control of the
legislature.3 3 At stake in White v. Kendrick (South Carolina 1805) and Emerick v. Harris
(Pennsylvania 1808), was whether laws assigning courts jurisdiction to hear certain civil
cases violated the constitutional right to a jury trial. While each court came to a different
conclusion, they both agreed that the judiciary had the power to review the constitutionality
of acts of the legislature. In striking down the law, the Court in White noted that the
constitution placed judges as “sentinels” to guard against legislative encroachments.3 4
Although the Court in Emerick upheld the law, it quoted from Federalist 78, Marbury, and
other federal court cases to stress the relationship between popular sovereignty and judicial
review. The Court also focused on the judicial oath to support the constitution. This oath
would be nugatory if the judiciary upheld a law that clearly violated the constitution. A
judge’s commitment to the oath of office “requires the active energies of the mind to
determine on the constitutionality of those laws, which may be brought before him in
judgment; and in his decisions he shall protect those paramount laws which he has sworn to
support.”3 5 In P. Grimball v. F. Ross (1808), the Georgia Supreme Court ruled that an act
postponing civil trials was not a violation of a constitutional right to a jury trial, but the
Court set the parameters of legislative authority. According to the Court, a constitution
stood on a different ground than legislation. “It emanates directly from the will of the
people, in whom... the sovereign power necessarily resides.” Once the people give the
constitution its existence, “it becomes the supreme law of the nation or state [and] it is
paramount to all other authority.” The remedy against unconstitutional legislation did not lie
in popular acts of vengeance or in the legislature. Rather, it could be found only in the
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judiciary which was “the best, the safest, and... the only mediator between a citizen and an
unconstitutional act of the legislature.’’3 6
The Ohio case of Rutherford v. M ’Faddon (1807) occurred at time when the
legislature was impeaching judges for declaring its acts unconstitutional. In this case, the
Ohio Supreme Court voided an act that conferred upon the courts the duty to hear certain
types of civil cases. Justice Huntington argued that the Court did not desire to overturn
every law of the legislature, “but when the case occurs, they must in compliance with their
duty, compare the legislative act with the Constitution, and if they find such act contrary to
the constitution, or prohibited by it... it is the duty of the court to declare it no law ”3 1 Judge
Tod noted that the legislature was subordinate to the supreme law and any assertion of
legislative supremacy defied popular sovereignty.3 8
In Cohen v. Hoff (1814), the South Carolina Supreme Court struck down a law
authorizing the governor to appoint replacement judges in case of illness. The Court ruled
that the mode of appointment prescribed in the Act was contradiction to the Constitution’s
appointment clause. The Court rejected the idea of an omnipotent legislature by stressing
the importance of the constitution as a limitation on legislative power. The constitution is
the “supreme law of the land,” the “commission from whence legislatures derive their
power.”3 9 It is “a form of government established by the people, in which, they have
declared in what manner its different branches shall be organized.” Hence, the legislature
was forbidden by the people to introduce any other mode of appointment.4 0 The Court also
determined that it had the authority to place limits on legislative actions. Accordingly,
“judges are swom to support, protect, and defend the constitution... [which meant] that in
the performance of their official duties, they shall consider it as the paramount law of the
land, and shall give effect to it over every opposing act of the legislature.”4 1
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Merrill v. Sherburne (1813) involved the constitutionality of an act of the New
Hampshire legislature awarding a new trial to a losing litigant in a dispute over an estate.4 2
The Court drew upon Federalist 78, as well state and federal judicial precedents, and struck
down the law as an unconstitutional exercise of judicial power by the legislature. The Court
declared, “[o]ne prominent reason for creating the judicial distinct from the legislative
department, was, that the former might determine when laws were thus “repugnant,” and so
operate as a check upon the latter, and as a safeguard to the people against its mistakes or
encroachments.” If the legislature could at pleasure revise or overturn the judgments of the
judiciary, the judiciary would cease to be a check on the legislature 4 3 Furthermore, since the
constitution did not contain an express clause authorizing the legislature to exercise this
power, the Court concluded, “it would be most unwarrantable to presume that the people
intended to confer this judicial power on the legislature... .”4 4
In Holden v. James (1814), the Massachusetts Supreme Court struck down personal
legislation that permitted Moses Holden to commence a suit against the administrator of an
estate, despite the fact that the statute of limitations had ended. The Court compared the
governments of America and England and observed that in America, “the sovereign and
absolute power resides in the people; and the legislature can only exercise what is delegated
to them according to the constitution.” A law favoring one individual over the general
public was contrary to the “spirit of the constitution.”4 3
In Thomas v. Daniel (1823), the South Carolina Supreme Court ruled that if the
legislature, like any other agent of the people, exceeded the boundaries of power, then “it is
the duty of the judges to restrain them; for the constitution is the permanent law.’1 4 6 In Bates
v. Kimball (182S), the Vermont Supreme Court struck down a law requiring debtor relief and
mandatory judicial appeals. The Court argued that since the constitution was the
“fundamental law of the State,” the legislature was forbidden from altering its provisions.
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However, if such a case should occur, it was the judiciary’s duty and prerogative to declare
that for a law to be valid, it must be reconcilable with the constitution, the “fundamental law
of the State,” “the fiat of the sovereign people.”4 7 The Court stressed the connection
between popular sovereignty and written constitutions to scold the legislature for violating
the separation of powers by exercising judicial powers.
The axiom, that the sovereignty is in the people, is a political truth,
on which every free and rational government is founded.... When
the people associate, and enter into compact for the purpose of
establishing government, that compact... is the constitution of the
State, revocable only by the people....It is by this instrument that
government is instituted - its departments created, and the powers
to be exercised by each, conferred.4 8
Similarly, in Ward v. Barnard (1825), the Vermont Supreme Court refused to
uphold a law releasing a debtor from prison. The Court referred to the desire of the people,
in the formation of the government, to restrain “despotick power.” The Court declared, “it is
a fundamental principle, engrafted into the constitution, that all power is originally inherent
in the people; and that all officers of government, whether legislative or executive, are
trustees and servants - therefore, such power, and such only, as is delegated to them, can
they exercise.”4 9
Finally, the Maryland Supreme Court in Crane v. Meginns (1829) refused to uphold
a law that allowed the legislature to grant divorces and that ordered the judiciary to enforce
alimony payments. Judge Earle began the opinion of the Court with the following:
The constitution of this State... is the immediate work of the
people, in their sovereign capacity, and contains standing
evidences of their permanent will. It portions out supreme power,
and assigns it to different departments, prescribing to each the
authority it may exercise, and specifying that form the exercise of
which it must abstain. The public functionaries move them in a
subordinate character, and must conform to the fundamental laws
or prescripts of the creating power. When they transcend defined
limits, their acts are unauthorised, and being without warrant, are
necessarily to be viewed as nullities.3 0
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Earle noted that if the legislature exceeded its authority, it was the province and duty of the
courts to “restrain the excesses of a co-ordinate department of government.”3 1
The framers of the early state constitutions were distrustful of executive and judicial
power and placed them under the control of the legislature. At the same time, the state
judiciaries attempted to carve a place for themselves by exercising the power of judicial
review and institutionalizing popular sovereignty in the judiciary. The key was to show that
these constitutions were not ordinary statues subject to legislative manipulation. Rather,
they were fundamental laws, the embodiment of popular sovereignty, and in need of
protection from the people acting through ordinary institutions. Yet, state court jurists were
not alone in their quest to institutionalize popular sovereignty. Other institutions at both the
state and federal levels were equally determined to get a piece of divided sovereignty.
The Federal Judiciary and the National People
The Federalists took the institutionalization of popular sovereignty in the courts to
the national level. When the federal courts entered the picture, the debate over how “We the
People” should be institutionalized pitted legislatures against the judiciary, as well as the
nation against the states. Indeed, the Marshall Court participated in the expansion of federal
authority at the expense of the states.3 2 Chisholm v. Georgia (1793), which held that states
could be subject to suit in federal court, was one of the earliest opportunities for the Supreme
Court to give political expression to the idea of popular sovereignty as union. This case
represented a dispute over the extent of state sovereignty, and the idea that a state was
immune from suit from citizens of other states or foreign nations. The concept of sovereign
immunity had its roots in the English maxim “the sovereign could not be sued without his
consent.”3 3 Whether it applied to the states, however, is not easily discernible from either
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the Constitution, the Judiciary Act of 1789, or from the debates at the federal or state
conventions.
Article m , § 2 of the Constitution provides that the judicial power extends to all
cases under the Constitution. The Supreme Court has original jurisdiction in all cases in
which a state shall be a party. Yet, Section 13 of the Judiciary Act gives the Supreme Court
“exclusive jurisdiction” of all cases of a civil nature, but in cases between a state and citizens
of other states, the Supreme Court shall have original, but not exclusive jurisdiction.5 4 The
Constitution does not differentiate between a state as a plaintiff or defendant, but it is not
necessary since the judicial power extends to all cases arising under the Constitution. Yet,
under the doctrine of sovereign immunity, a state is excluded from being a defendant in a
federal suit, so it is not necessary to make that distinction in the Constitution.
Trying to discern the intent of the framers is equally puzzling.5 5 For example, most
Anti-Federalists believed that Article m did authorize suits against the states, and so they
feared the destruction of state sovereignty. Some Federalists agreed that Article IQ
permitted individuals to file suit against the states in federal court. During the Virginia
Ratifying Convention, Edmund Randolph alluded to the phrase “where a state shall be a
party” to conclude that the Constitution contemplated a state as both a plaintiff and a
defendant in a federal suit.5 6 Randolph, however, did not have the support of all Federalists
in the Convention. According to James Madison, “[i]t is not in the power of individuals to
call any state into court. The only operation it can have, is that, if a state should wish to
bring a suit against a citizen, it must be brought before the federal court.”5 7 John Marshall
noted the following: “I hope that no gentleman will think that a state will be called at the bar
of the federal court.”5 8 In Federalist 81, Hamilton argued that it was inherent in the nature of
sovereignty not to subject a state to suit from an individual “without its consent.”5 9
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Chisholm was one in a series of cases dealing with the suability of states in federal
court in the 1790s. In Van Staphorst v. Maryland (1791), two Dutch citizens sued Maryland
for the payment of war loans.6 0 Although Maryland did not officially challenge the Court’s
jurisdiction, the legislature passed a statute resolving the dispute before it could be litigated.
Oswald v. New York (1792) (a case for the recovery of back salary) commenced before
Chisholm, but it was still pending when Chisholm was announced.6 1 After a debate over
whether New York should appear before the Court, the case was eventually resolved against
the state. Chisholm began as a claim for the repayment of money Georgia owed to a citizen
from South Carolina (Robert Farquhar). Farquhar unsuccessfully tried to bring the suit
against Georgia in the federal Circuit Court. When Farquhar died, Alexander Chisholm, one
of the executors of his estate, brought suit in the Supreme Court.6 2
As Van Staphorst, Oswald, and Chisholm were being litigated, newspaper
commentaries, correspondences, and legislative debates focused on the compatibility of
suability with state sovereignty.6 3 In Chisholm, the Court rejected the state sovereignty
argument since first, the Constitution did not differentiate between plaintiffs and defendants
and second, the Constitution contemplated states as defendants in disputes between two
states. The Court pitted popular sovereignty against state sovereignty, invoking the former
as a justification for ruling against Georgia. James Wilson began his opinion with the
following question: “do the people of the United States form a NATION?”6 4 According to
Wilson, a state was an artificial creation of man, and as such, it was subordinate to the
people. When citizens of Georgia entered the Union as a part of the “people of the United
States,” they “did not surrender the Supreme or sovereign Power to that State; but, as to the
purposes o f the Union, retained it.6 5
Chief Justice Jay also took issue with Georgia’s assertion of sovereignty. He
believed that since the Declaration of Independence, the people had already been united for
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the purposes of the Revolution. When sovereignty was transferred from the King to the
people, it was transferred not to the people of the colonies or states, “but to the whole
people,” who from a “national point of view,” considered themselves to be “one people.”6 6
In establishing the Constitution, the people, as “sovereigns of the whole country,” and
“exercis[ing] their own rights, and their own proper sovereignty,” declared, “We the people
of the United States, do ordain and establish this Constitution.” State governments were
obligated to conform to the will of the people.6 7 Even though Iredell dissented, he made it
clear that Congress’ authority was limited by the Constitution. If Congress exceeded its
constitutional authority, then
any act to that effect would be utterly void, because it would be
inconsistent with the Constitution, which is a fundamental law
paramount to all others, which we are not only bound to consult,
but sworn to observe; and therefore, where there is an interference,
being superior in obligation to the other, we must unquestionably
obey that in preference.6 8
The Chisholm decision was met with considerable outrage. The Georgia House of
Representatives tried to pass a bill declaring that anyone who attempted to bring suit against
the state would be guilty of a felony punishable by death.6 9 Pro- and anti-suability advocates
dissected the opinion and it ramifications from top to bottom.7 0 In Congress, efforts to
curtail federal judicial power produced variations of an amendment that was supported by
both sides. Eventually and quite quickly, the Eleventh Amendment was ratified. It
provided, “the judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by citizens of
another state, or by citizens or subjects of any foreign state.”7 1
In Hollingsworth v. Virginia (1798), the Court acknowledged the Amendment by
agreeing that federal courts no longer had jurisdiction in past and future cases where citizens
of other states or foreign nations sued a state.7 2 The Court issued a decree eliminating from
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its docket all cases where a state was a defendant. However, the Marshall Court was
undeterred by this limitation on its authority and narrowly construed the Amendment so as to
enhance its jurisdiction.7 3 In Hollingsworth, the Court may have accepted the Eleventh
Amendment, but in doing so, it may have also, for the first time, held an act of Congress
unconstitutional without directly exercising judicial review. In Chisholm, the Court
construed Section 13 of the Judiciary Act to authorize suits by citizens of one state against
other states. In Hollingsworth, the Court dismissed pending suits brought forth under
Section 13 because those suits violated the Constitution - the Eleventh Amendment.7 4
The Hollingsworth decision did not stop the Court from expanding the scope of its
own authority with respect to the Eleventh Amendment. In United States v. Peters (1809),
the Court ruled that the Supreme Court, and not the state legislatures, had the authority to
determine the extent of judicial power by interpreting the Amendment.7 3 In Cohens v.
Virginia (1821), the Court asserted its appellate jurisdiction to review judgments from state
courts over Virginia’s claim of immunity from suits by citizens of its own state. The Court
suggested it was the nature of the case itself, and not the character of the parties to the case
that determined jurisdiction.7 6 Finally, in Osborn v. Bank o f United States (1824), Marshall
ruled that the Eleventh Amendment did not apply to agents working on behalf of the state.7 7
Even before Chisholm and the passage of the Judiciary Act of 1789, federal courts
established a relationship between popular sovereignty and judicial power.7 8 For example,
the Invalid Pensions Act of 1792 authorized circuit courts to determine if individuals were
disabled as a result of military service. The Act also authorized the Secretary of War to
review and reverse the decision of the circuit court. In Haybum's Case (1792), the Attorney
General of the United States (Edmund Randolph) asked the Supreme Court for a writ of
mandamus to order the Pennsylvania Circuit Court to hear the petition of William
Haybum.7 9 Previously, the Pennsylvania’s Circuit Court, as well as two other courts,
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refused to hear such petitions suggesting the Act violated the separation of powers.8 0 Before
the Supreme Court issued a ruling in the case, Congress passed a law, thereby making the
case moot. However, the opinions of the justices (announced in a letter to George
Washington) riding the Pennsylvania circuit provide insight into how the Court may have
ruled. Justices Wilson and John Blair (along with the district court judge) argued that the
Constitution was the “Supreme Law of the Land” and all judicial officers were bound to
support it. Furthermore, the “people of the United States,” in forming the Constitution
placed in highest regard the principle that the judicial and legislative departments must be
kept separate and distinct from one another. Hence, because the Act directed the judiciary to
perform a function not of a “judicial nature,” the Circuit Court had no constitutional
authority to proceed.8 1
Similarly, in VanHome’ s Lessee v. Dorrance (179S), Justice Patterson affirmed the
authority of the Court to review a state statute under Pennsylvania’s Constitution, thereby
expanding the Court’s jurisdiction over state matters. He stressed the importance of a
written constitution and popular sovereignty as a limitation on legislative power.
What is a Constitution? It is the form of government, delineated by
the mighty hand of the people, in which certain First principles of
fundamental laws are established. The Constitution is certain and
fixed; it contains the permanent will o f the people, and is the
supreme law of the land; it is paramount to the power of the
Legislature, and can be revoked or altered only by the authority
that made it What are Legislatures? Creatures of the
Constitution; they owe their existence to the Constitution: they
derive their powers from the Constitution: It is their commission;
and, therefore all their acts must be conformable to it, or else they
will be void. The Constitution is the work or will of the People
themselves, their original, sovereign, and unlimited capacity. The
one is the work of the Creator, the other of the Creature. The
Constitution fixes limits to the exercise of legislative authority,
and prescribes the orbit within which it must move. In short...the
Constitution is the sun of the political system, around which all
Legislative, Executive, and Judicial bodies must revolve.
Whatever may be the case in other countries, yet in this there can
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be no doubt, that every act of the Legislature, repugnant to the
Constitution, is absolutely void.8 2
The Court continued to exercise judicial review over both state and federal laws with
an eye towards enhancing federal authority. The Court did not always nullify laws,8 3 nor did
it invoke popular sovereignty at every venture.8 4 Yet, federal court jurists understood the
importance of a constitution as a limitation on legislative activity. They were also aware of
the state court precedents where popular sovereignty was used as to justify judicial review.
Marshall’s first opportunity to examine this relationship was Marbury v. Madison (1803).
At issue in Marbury was whether William Marbury (a Federalist) was entitled to his
commission as a justice of the peace. If yes, did the laws of this country afford him a
remedy? If so, was the Court obligated under Section 13 of the Judiciary Act of 1789 to
issue a writ of mandamus ordering the delivery of the commission?8 5 Marshall answered the
first two questions in the affirmative, but ruled the Court could not afford Marbury a remedy
since Section 13 was an unconstitutional interference with the Court’s original jurisdiction
set forth in the Constitution. In determining whether an act, which was repugnant to the
constitution, could become the “Law of the land,” Marshall noted that the “people have an
original right to establish, for their future government, such principles, as, in their opinion,
shall most conduce to their own happiness....” One of the most important principles was
that the powers of the legislature be defined and limited. The “original and supreme will
[the people] organizes the government, and assigns, to different departments, their respective
powers.”8 6 Why else would they commit those limits to writing? Marshall wrote,
“[c]ertainly all those who have framed written constitutions contemplate them as forming the
fundamental and paramount law of the nation....”8 7 Marshall echoed the words of other
jurists when he announced, “it is emphatically the province and the duty of the judicial
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department to say what the law is,” and he pitted a law repugnant to the Constitution against
the Constitution, nullifying the former.
Marshall’s constitutional nationalism was premised on the theory that the
Constitution was a constituent act of the people, not a compact among the several states.
This implied first, although the Constitution created a government of enumerated powers,
the federal government was supreme within its own sphere of power. Second, as Marshall’s
interpretation of the Eleventh Amendment showed. Article m conferred upon federal courts
broad jurisdiction to decide cases arising under the Constitution. Finally, the Supreme Court
was not only authorized to nullify state laws that were repugnant to the Constitution, but also
to review and overrule the decisions of state courts inconsistent with it.8 8
Marshall’s next opportunity to invoke the theory of popular sovereignty as Union
was McCulloch v. Maryland (1819). Marshall upheld the power of the Congress to
incorporate a national bank while denying a state the right to tax it. He rejected Maryland’s
claim that the Constitution emanated from the sovereign states and that the federal
government was subordinate to the states. Marshall wrote, “the government of the Union is
emphatically and truly, a government of the people. In form and in substance it emanates
from them.”8 9 Although the federal Convention was elected by the state legislatures, he
noted that the document was a mere proposal with no force or authority until the people
ratified it. Nor did the fact that the people ratified the constitution in their respective states
mean the constitution emanated from the states. It was simply a matter of convenience. “Of
consequence, when [the people] act, they act in their States. But the measures they adopt do
not...cease to be the measures of the people themselves, or become the measures of the State
governments.”9 0 Marshall also denied the people of one state the right to impose their will
(by taxing a national institution) on the whole. Only the legislature of the Union could be
“trusted by the people with the power of controlling measures which concern all ”9 1
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In Martin v. Hunter’ s Lessee (1816) and Cohens v. Virginia (1821), the Marshall
Court pitted the national people against the state courts, and rejected the claim that the state
courts had final interpretive authority over the Constitution. At issue in Martin was Section
25 of the Judiciary Act that granted the Supreme Court jurisdiction to hear appeals from state
courts. The complex history of Martin began in the early 1780s as a dispute over a title to
land in Virginia, and turned into a dispute over state sovereignty and nationalism.9 2 Justice
Joseph Story rejected Virginia’s contention that the Supreme Court had no appellate power
over state court decisions. The Constitution was ordained and established not by the states,
but by “the people of the United States.” As such, the people were free to invest in the
national government all the powers deemed necessary and proper, to limit the exercise of
federal power, and to prohibit the exercise of state powers that were incompatible with the
union. As for judicial power. Story wrote, “the voice of the whole American people,
solemnly declared in establishing one great department which was, in many respects,
national, and in all, supreme.” Hence, if “it is the duty of Congress to vest the judicial power
of the United States, it is a duty to vest the whole judicial power.”9 3 Congress’ decision to
vest the Supreme Court with the power to hear appeals from state courts was consistent with
the national demand for uniformity. Similarly, in Cohens, Marshall argued that federal
courts could hear appeals from individuals convicted of state crimes in state courts.
Although he ruled in favor of Virginia’s ban on out-of-state lotteries, Marshall defended the
Court’s authority to review state court decisions by making a case for the supremacy of the
general government and its connection to the American people.
In many... respects, the American people are one and the
government which is alone capable of controlling and managing
their interests in all these respects, is the government of the Union.
It is their government, and in that character they have no other.
America has chosen to be, in many respects, and to many
purposes, a nation; and for all these objects, it is competent. The
people have declared, that in the exercise of all powers given for
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these objects, it is supreme.... The constitution and laws of a State,
so far as they are repugnant to the constitution and laws of the
United States, are absolutely void. 9 4
Marshall joined a trend that began in 1786 with Trevett v. Weeden and continued
throughout the first quarter of the nineteenth century by both Federalists (i.e., Iredell) and
Republicans (i.e., Roane), who were assertive about institutionalizing popular sovereignty in
the courts. Judicial review was designed to protect the people not only from aggressive
legislatures and executives, but also from themselves. Ironically, this was necessary to
perpetuate popular sovereignty that manifested itself in the Constitution. This logic also
allowed the federal judiciary to institutionalize the people in the national government.
Accordingly, “We the People” constituted in conventions separate from existing institutional
authority, created the Constitution of the nation; it embodied their will, and it had to be
protected against the people acting through institutions set up by the Constitution at the state
and national levels. Without judicial review, the Constitution would lose its fundamental
value and popular sovereignty would be a nullity. As a result, popular sovereignty was
tamed by the Constitution and moved “indoors.”
The State Judiciary and the People of the States
While state court jurists constituted the people in state institutions, they were
fighting their own battles against the federal judiciary that was claiming jurisdiction over
state courts. In Respublica v. Cobbett (1798), the Pennsylvania Supreme Court refused to
transfer a case against a British citizen to the federal circuit court as stipulated in Section 12
of the Judiciary Act. Justice McClean based his decision upon the theory the states had
unlimited sovereignty before the adoption of the Constitution and retained all powers that
were not granted under the Constitution. Accordingly, if the state and the federal
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governments differed in their interpretation of such powers, “there is no common empire but
the people, who should adjust the affair by making amendments in the constitutional
way.. ..”9 5 Under McClean’s logic, the people speak through the states.
It was not until Martin that states began a full-fledged assault on the constitutionality
of Section 2S.9 6 One exception was Spencer Roane, whose arguments in the Hunter cases
against the federal judiciary’s right to review state court judgments, laid the foundation for a
development of the theory of states rights via the judiciary. Roane defended only state
judicial power, not federal judicial power. After years of state judicial consolidation, he felt
the Marshall Court was undermining his decisions. In Fairfax’ s Devisee v. Hunter’ s Lessee
(1813), the Supreme Court reversed a decision of the Virginia Court of Appeals and voided
the state’s confiscation act. The Court also issued a writ of mandamus ordering the Virginia
Court to reverse its original decision.9 7 In Hunter v. Martin, Devisee o f Fairfax (1814), the
Virginia Court of Appeals responded by unanimously arguing that federal courts could not
overturn state court decisions. Roane countered Marshall’s nationalism with a defense of
state sovereignty. Roane claimed that the Constitution did not subordinate the state judiciary
to the federal judiciary. He relied on James Madison’s Report on the Kentucky and Virginia
Resolutions that was premised upon the idea that the Constitution was a compact among the
people of the several states. He invoked the “celebrated report of the Virginia Legislature”
to argue that the sovereign states compacted together to form the federal government and
delineate its powers. Hence, if the federal government (including the Supreme Court)
exceeded its delegated powers, state courts were to “arrest the progress of evil.”9 8
Roane’s response to McCulloch was indicative of his belief in popular sovereignty
as a limitation federal power. In a series of essays to the editor of the Richmond Enquirer,
Roane as “Hampden,” and Marshall as “a Friend of the Constitution” debated the merits of
McCulloch. hi McCulloch, Marshall argued the American people incorporated a federal
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government that was limited, yet “supreme” within its sphere of authority. Hampden turned
the argument on its head suggesting the word “supreme” was not suited for a government
acting under a limited constitution. Accordingly, the “ people are only supreme. The
constitution is subordinate to them, and the departments of the government are subordinate
to the constitution.”9 9 Roane referred to Madison’s Report and rejected the contention that
the people of the United States, “as one people” adopted the Constitution. Rather, the
constitution was a compact “adopted by the several states, in their highest sovereign
character, that is, by the people of the said states....”1 0 0 Marshall responded by denying that
the Constitution was a compact. Rather, “it is the act of a single party. It is the act of the
people of the United States, assembling in their respective states, and adopting a government
for the whole nation.” 1 0 1
Marshall and Roane were strong advocates of judicial power and pursued the
institutionalization of popular sovereignty in the courts with vigor. At the same time, their
arguments over the consolidation of judicial power were transformed into a debate over the
nature of the Union and the distribution of power between the states and the federal
government. Popular sovereignty became a political tool in the hands of two jurists intent on
enhancing their own power and the power of their own respective jurisdictions. The former
was attained by arguing that judicial review was necessary to protect the people from
exceeding their will as embodied in the constitution. The latter was premised upon whether
the people were constituted as states or as a nation and then used to justify a claim of judicial
power over the other. While Roane was the most prominent and outspoken advocate of
states rights and state judicial power over federal power, his arguments set the stage for a
barrage of attacks on the federal government, including the judiciary, by state court jurists.
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The State Legislatures and the People of the States
The debate over the institutionalization of popular sovereignty in either the courts or
legislatures, and between the nation or the states came to fruition with the adoption of the
Kentucky and Virginia Resolutions of 1798. In 1798, Congress passed the Alien and
Sedition Acts that strengthened restrictions on naturalization and made it illegal to criticize
the government.1 0 2 In response, popular sovereignty was constituted in the states to justify
the review of federal laws. The Resolutions were based on the compact theory of
constitutional construction, which was premised upon the idea that the federal government
was a compact among the people of the several states, and the states had the final say, not
only over the scope of their own authority, but that of the federal government as well.
The first response to the Acts came from Thomas Jefferson’s original draft of the
Kentucky Resolutions.1 0 3 Jefferson argued that unlike the states, the federal institutions were
part of the “government created by this compact,’’ and not a party to the compact. Since the
states were a party to the compact, they were “solely authorized to judge in the last resort the
powers exercised under it.” For Jefferson, the fact that the states were parties, and not
creations of the compact, meant that they should have the authority to review legislation that
encroached upon their reserved powers. “The government,” Jefferson wrote, “created by the
compact was not made the exclusive or final judge of the extent of the powers delegated to
itself.” Hence, not only did states have a right to police their boundaries against
encroachments on their reserved powers, but if necessary, they also had the right to nullify
federal laws. “Where powers are assumed which have not been delegated, a nullification of
the act is the rightful remedy; That every State has a natural right in cases not within the
compact...to nullify of their own authority all assumptions of power by others within their
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limits.” He concluded by inviting other states to exercise their “natural rights” and “concur
in declaring these acts void.”1 0 4
Janies Madison also believed in the compact theory of constitutional construction.
In the Federalist 39, he wrote that the people, “not as individuals composing one entire
nation; but as composing the distinct and independent States to which they respectively
belong,” created the Constitution.1 0 3 In the Virginia Resolutions and in the Report of 1800,
Madison joined Jefferson’s protest against the Sedition Acts, although he did not advocate
nullification. Madison wrote, “the powers of the federal government, as resulting from this
compact, to which the States are parties, [are] limited by the plain sense and intention of the
instrument constituting that compact.” The powers of the federal government are only valid
if they are in accordance with the “grants enumerated in that compact.” Hence, “in the case
of a deliberate, palpable, and dangerous exercise of other powers not granted by the said
compact, the States, who are parties thereto, have the right and are in duty bound, to
interpose for arresting the progress of evil....”1 0 6 The key to Madison’s draft was the use of
the word “interpose,” as opposed to “nullify,” as a mechanism of state protest.
For Madison, interposition meant that state legislatures (which stood between the
people and the federal government) would protest again unconstitutional federal laws and
call on their representatives in Congress to repeal them. However, did this reliance on
protest by state legislatures, assume the state legislatures and not the people of the several
states had become parties to the compact? As Alexander Addison once observed, even if
“the people of the several states are parties to the compact in the constitution, it will not
follow that because parties to a compact must be the judges whether it has been violated, the
Legislatures of each state are the judges whether the constitution has been violated.”1 0 7
Madison expressed concern about Jefferson’s unwillingness to recognize the
distinction between states and legislatures, suggesting that although states were the ultimate
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judge of constitutional violations, it did not follow state legislatures were the ultimate mode
of redress. Madison stressed the prevalent role that conventions (and not state legislatures)
had in the creation of the compact.1 0 8 Furthermore, Madison did not call upon state
legislatures to act alone. Similar to the provision adopted in the final Kentucky Resolutions,
the Virginia Resolutions provided that a copy be “furnished to each of the senators and
representatives representing this state in the Congress of the United States.”1 0 9 By seeking
change through the institutions of the federal government, the Kentucky legislature and
Madison called upon both houses of Congress, as well as the states, to work together to
rescind the unconstitutional act.1 1 0
During the debates on the Resolutions in the Kentucky legislature, William Murray
and John Breckinridge argued over the role of state legislatures in determining the
constitutionality of federal laws. Murray rejected the contention that the people had
conferred upon their state legislatures the power to “inquire whether Congress hath exceeded
its powers.” Such power and the power to determine a law void belonged to the federal
judiciary.1 1 1 Breckinridge replied that Murray’s suggestions meant the federal government
and especially Congress were the sole judges of the constitutionality of their acts. Yet, who
was to censure Congress? Murray replied that this power resided in the people. But
Breckinridge noted that when the people acted through such institutions as “irregular
assemblies” (the “out-of-doors”), they were admonished. Accordingly, only the state
“legislature is the constitutional and proper organ through which the will of the people is
known....” He proclaimed that the “co-States to be alone parties to the Federal compact, and
solely authorized to judge in the last resort the power exercised under the compact,” and
Congress (as a creature of this compact) did not have the power to determine the extent of its
own authority. When Congress exceeded its constitutional authority, its actions were “void
and of no effect.” Breckinridge declared: “I hesitate not to declare it as my opinion that it
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is then the right and duty of the several States to nullify those acts, and to protect their
citizens from their operation.’1 2
In the 1820s and 1830s, southerners invoiced the Resolutions and the compact theory
to support nullification. Madison’s views, however, were misinterpreted. Those who
canonized Madison’s words failed to recognize the practical differences between Madison
and Jefferson over the exact nature of the constitutional compact.1 1 3 Jefferson believed that
the compact was between each individual state and the rest of the states. As he noted in the
Kentucky Resolutions, “to this compact each state acceded as a State and is an integral
party, its co-states forming, as to itself, the other party.”1 1 4 As such, "every State has a
natural right in cases not within the compact... to nullify of their own authority all
assumptions of power by others within their limits.”1 1 5 Since each state was a party to the
compact, each state had reserved to itself the right to determine when the federal government
exceeded its delegated authority. By implication, each state had the right to nullify a federal
law.
Madison spoke of the Constitution as a “collective action by the states as a body.”1 1 6
The states were parties to the compact and could only work collectively. As H. Jefferson
Powell writes, “[t]he authority of the states over the Constitution and its interpretation was
collective and could be exercised only in concert through the electoral process or by a quasi
revolutionary act of the people themselves.”1 1 7 A letter written by Madison in 1821 to
Roane is indicative of this point: “Our Governmental System is established by a compact,
not between the Government of the U.[nited] States, and the State Governments; but between
the States, as sovereign communities....”1 1 8 During the Nullification Crisis, Madison wrote
to Alexander Rives that ‘States’ rights really referred to the rights of multiple, not individual
states.1 1 9 hi a letter to Robert Hayne, Madison observed, “the Constitution was proposed to
the people of the States as a whole, and unanimously adopted as a whole." 1 2 0 Madison
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asserted that the objective of the Resolutions was “interstate cooperation,” and not
nullification.1 2 1 The Resolutions were "an invitation to the other States to ‘concur in
declaring the acts to be unconstitutional, and to co-operate by the necessary & proper
measures in maintaining unimpaired the authorities rights and liberties reserved to the States
respectively or to the people.’”1 2 2 As Madison wrote in the Virginia Report,
That the Governor be desired, to transmit a copy of the foregoing
resolutions to the executive authority of each of the other States,
with a request that the same may be communicated to the
Legislature thereof; and that a copy be furnished to each of the
Senators and Representatives representing this State in the
Congress of the United States.
Furthermore, it was how Madison defined the “necessary & proper” measures that
confirmed his original invitation for the state governments to join the protest against the
Alien and Sedition Acts: “That by the necessary & proper measures to be concurrently &
co-operatively taken were meant measures known to the Constitution, particularly the
control o f the Legislatures and people o f the States over the Cong[ ress] of the U.S. cannot
well be doubted.” 1 2 4 The final resolutions adopted by Kentucky and Virginia did not
authorize states to nullify federal laws.
Was state legislative review a form of judicial activity and a violation of the
separation of powers? In the Virginia Report, Madison insisted that in announcing their
constitutional views against federal laws, state legislatures were not putting forth any legal
principles. The views espoused in the Resolutions were considered “declaratory” and
“restrictive.” Nor was any declaration affirming or denying the constitutionality of federal
acts a usurpation of judicial power. Madison noted the difference between state and judicial
interpretations of the Constitution:
The declarations [of states] in such cases, are expression of
opinion, unaccompanied with any other effect, than what they may
produce an opinion, by exciting reflection. The expositions of the
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judiciary, on the other hand, are carried into immediate effect by
force. The former may lead to a change in the opinion of the
judiciary; the latter enforces the general will, whilst that will and
opinion continue unchanged.1 2 5
Keeping true to his commitment to “interstate cooperation,” Madison asked “if there be no
impropriety in declaring the unconstitutionality of proceedings in the Federal government;
where can be the impropriety of communicating the declaration to other States, and inviting
their concurrence in a like declaration?”1 2 6 Unlike nullification, which was “out and out
defiance” of federal authority, interposition was an attempt to retain the federal system and
work within the constitutional framework available to the states.1 2 7
There was nothing in the doctrine of interposition to suggest that the state
legislatures had the authority to judicially declare an act of Congress unconstitutional. The
compact theory did not entail a rejection of the power of the courts over constitutional
adjudication.1 2 8 In the Report, Madison argued that what made the judiciary the final
authority over constitutional questions was not the character of the question itself, but its
occurrence in a form contemplated by Article HI - a case or controversy.1 2 9 If questions are
submitted to the judiciary, they must be by “the forms of the Constitution, to decide in the
last resort....” [i.e., case/controversy]. He noted, “this last resort must necessarily be
deemed the last in relation to the authorities of the other departments of the government; not
in relation to the rights of the parties to the constitutional compact [the people composed as
states], from which the judicial as well as the other departments hold their delegated
trusts.”1 3 0 Far from denying the existence of judicial authority, Madison advocated a theory
of judicial power that restricted itself to the enumerated case and controversy requirement.
The states did not have judicial authority to hear cases and controversies, but they did have
the political authority to challenge federal laws and express their views. Powell writes, “the
interpretive authority of the “states” was political rather than legal in nature.”1 3 1
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Madison's advocacy of state legislative review of federal laws was consistent with
the institutionalization of popular sovereignty “indoors.” If the people felt that the federal
government violated their expressed will in the constitution, the only way they could express
their dissatisfaction was through the institutions of government. Popular sovereignty could
be expressed only through institutions that were created by the people themselves in the
Constitution. For Marshall and Roane, it was the courts; for Madison, it was the state
legislatures. Neither of them, however, left open the possibility that the people could act in
the “out-of-doors.”
The People as Electors
With rare exception,1 3 2 it is generally believed that Justice John Bannister Gibson’s
dissenting opinion in Eakin v. Raub was a rebuttal of the Marbury model of judicial review.
According to Gibson, the Constitution created legislative institutions that enabled the people
to channel their will. He argued that the construction of the laws, and by implication the
authority to interpret the Constitution, belonged to the legislature, not the judiciary. He
believed the legislative branch was supreme, but limited to those powers granted to them by
the people.1 3 3 Gibson capitalized upon that sentiment when he proclaimed that the people
were “wise, virtuous, and competent to manage their own affairs, and thus, “it rests with the
people, in which full and absolute sovereign power resides, to correct abuses in legislation
by instructing their representatives to repeal an obnoxious act.” Such power was reserved to
the people in their capacity as electors.1 3 4 Gibson’s remedy for erroneous constitutional
interpretation was in the right of suffrage. The polls, not the courts, were the only proper
recourse against legislative abuses.1 3 5 If the legislature errs in the interpretation of the
people’s will by passing a law contrary to the constitution, the people have the right to vote
their representatives out of office, and have them replaced.
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Gibson’s criticism of Marbury was limited to the disapproval of the exercise of
judicial review of the equal branches of government.1 3 6 He believed that judicial review was
unnecessary since each legislative house could veto the other.”1 3 7 This theory of judicial
review resembled Jefferson’s “tripartite doctrine” or departmental theory of judicial review
and constitutional interpretation. As President, Jefferson believed that the Sedition Act was
unconstitutional and so he “was bound to remit the execution of it.” He argued that the
Constitution “meant that it’s co-ordinate branches should be checks on each other.” If the
judiciary had the authority to determine not only the scope of its own authority, but also that
of the legislature and the executive, it would become a “despotic branch.”1 3 8
Before Jefferson was president, he advocated the right of one state to nullify the
Sedition Acts. As President, however, he believed in “nullification” through non
enforcement. In a draft (that he later abandoned) of his first annual message to Congress,
Jefferson suggested that the Sedition Act was an “unqualified contraction to the
constitution,” and a “nullity.”1 3 9 He continued,
Our country has thought proper to distribute the powers of its
government among three equal & independent authorities,
constituting a check on one or both of the others, in all attempts to
impair its constitution. To make each an effectual check, it must
have a right in cases which arise within the line of it’s proper
functions, where, equally with the others, it acts in the last resort
& without appeal, to decide on the validity of an act according to
its own judgment, & uncontrolled by the opinion of any other
department.1 4 0
Similarly, in a letter to Roane, Jefferson proposed that each co-ordinate and independent
branch of the government should have the authority to interpret the Constitution subject to
the checks and balances within the system.1 4 1 Jefferson expressed concern in making the
judiciary the final arbiter of constitutional questions. Ultimate interpretative authority over
the Constitution resided in the people, not in the courts. If a conflict arose between two or
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more branches over constitutional interpretation, only the people could resolve it.1 4 2
Through elections, the people periodically chose officers for two of the three departments to
indicate their approval or disapproval of a particular branches’ interpretation of the
Constitution.1 4 3 The emphasis on electors was indicative of another way in which popular
sovereignty was constituted in the institutions of government as the people could speak in
specified election intervals.
The indeterminate nature of the Constitution made it possible for actors in the
political system to put forth different political constructions of the document. For example,
in 1798, at the height of the struggle between Federalists and Republicans, Jefferson
subscribed to a theory of popular sovereignty as state sovereignty to justify the decision of
one state to nullify a federal law. As President and in control of the reigns of federal power,
Jefferson decried Roane’s version of popular sovereignty and judicial power especially since
it involved the state judiciary having the final say over federal laws. Jefferson espoused a
different theory of popular sovereignty and institutional authority that justified greater
executive control over the Constitution. This ability to support different theories of popular
sovereignty and institutional authority to suit political ends was a result of a system that
divided sovereignty, but it was also the beginning of what was yet to come.
Conclusion
The early debates over constitutional interpretation involved the question which
institution, state legislatures or the federal and state judiciaries, best represented the will of
the people embodied in a constitution? There was a general consensus among advocates of
various positions that the people were sovereign and a law contrary to the expressed will of
the people was void. But this consensus over the theory of popular sovereignty did not
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extend into an agreement over which institution could void a law contrary to the constitution.
Whereas many state court jurists and most Federalists argued such power belonged to the
judiciary, many Republicans (with the exception of Roane) believed that state legislatures
had such power. Complicating the story was the dispute over whether “We the People of the
United States” were constituted as a nation or as states. As a result, five competing
conceptions of the relationship between popular sovereignty and institutional authority
emerged. The first, in which state court jurists reviewed the constitutionality of state laws,
was premised upon protecting the fundamental will of the people (the state constitution)
from legislative excesses. The Federalists made similar arguments about the Constitution,
but they incorporated the idea of a “national people” to justify federal judicial power over
the other branches of the federal government and the states. Spencer Roane advocated the
third model, where he justified the exercise of judicial review over federal and state
legislation by arguing the people were constituted in their separate states. The fourth model
was premised upon the people acting through their state legislatures to review the
constitutionality of federal laws. Finally, the fifth model allowed for interpretation by all
three branches of government, subject to electoral approval.
These models did not emerge in a linear progression, each a reaction to the other.
Nor were they confined to a particular time period. Rather, advocates of each position often
made their pitches simultaneously. For example, popular sovereignty made its way into a
number of state and federal court decisions both before and after Marbury. Indeed, while
federal and state court jurists were establishing a relationship between judicial review and
popular sovereignty, proponents of the Virginia and Kentucky Resolutions were also
invoking popular sovereignty to justify state review of legislation. Nearly twenty years after
the dispute over the Resolutions, Roane invoked the Resolutions to deny federal judges the
power over state courts, all the while maintaining a strong hold on state judicial power.
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Departmental review was advocated to give the legislative and executive branches the
opportunity to interpret.
While advocates of each of these models disagreed over the exercise of political
power and constitutional review, they shared one thing in common - popular sovereignty
could be exercised only through the institutional arrangements (ironically) set up by the
people themselves. Whether it be in courts, legislatures, or elections, the nation or the states,
remained to be seen. The disputes over the institutionalization of popular sovereignty
continued to play themselves out in the political system leaving idea of popular sovereignty
in a state of flux. By the end of the Marshall Court era (1835), many scholars assume that
the Supreme Court succeeded in its quest to judicialize the concept of 'we the national
people.’ Indeed, the traditional story of American constitutionalism assumes one version of
the relationship between popular sovereignty and constitutional interpretation. Yet, this
ignores the extent to which this vision was repeatedly contested. Between the Jacksonian
era and the Civil War, the story would be further complicated as other actors within the
political system latched on to one or more of these models to keep the battle over
interpretation alive.
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Endnotes
1 Mr. Phelps, on the One Hundredth Anniversary of the adoption of the Constitution. Quoted in
George W. Wickersham. “The Judicial Function.” University o f Pennsylvania Law Review and
American Law Register 60 (1912), pp. 622-623.
2 See e.g., Sylvester Pennoyer . “The Case of Marbury v. Madison.” American Law Review 30 (1896),
pp. 188-202.
3 Robert Ludlow Fowler. “The Origin of the Supreme Judicial Power in the Federal Constitution.”
American Law Review 29 (1895), p. 713.
4 Dr. Bonham’s Case, 8 Co. Rep. 114a(1610).
5 See generally, Charles F. Hobson. The Great Chief Justice: John Marshall and the Rule o f Law.
Lawrence: University of Kansas Press, 1996, p. 60; John V. Orth. “Did Sir Edward Coke Mean What
he Said?” Constitutional Commentary 16 (1999), pp.33-38; Gary L. McDowell, “Coke, Corwin and
the Constitution: The “Higher Law Background” Reconsidered.” Review o f Politics 55 (1993), pp.
393-420.
6 Fowler, “Supreme Judicial Power,” pp. 718-719; D.O. Wagner. “Some Antecedents of the American
Doctrine of Judicial Review.” Political Science Quarterly 40 (1925), pp. 561-593.
7 Andrew McFarland Davis. “The Case of Frost vs. Leighton.” The American Historical Review 2
(1897), pp. 229-240; Richard B. Morris. “Judicial Supremacy and the Inferior Courts in the American
Colonies.” Political Science Quarterly 55 (1940), pp. 429-434; Oliver M. Dickerson. “Opinion of
Attorney General Jonathan Sewall of Massachusetts in the Case of the Lydia.” William and Mary
Quarterly. 4 (1947), pp. 499-504; Evarts B. Greene. “American Opinion on the Imperial Review of
Provincial Legislation, 1776-1787.” The American Historical Review 23 (1917), pp. 104-107; Herbet
A. Johnson. “The Palmetto and the Oak: Law and Constitution in Early South Carolina 1670-1800,”
In Kermit L. Hall and James W. Ely, Jr., eds. An Uncertain Tradition: Constitutionalism and the
History o f the South. Athens and London: The University Press of Georgia, 1989, pp. 92-94; Robert
Cook. “Judicial Review and Legislative Power,” In Herbert A. Johnson, ed. South Carolina Legal
History. Spartanburg: The Reprint Company, 1980, pp. 81-96.
* William Meigs. “The Relation of the Judiciary to the Constitution.” The American Law Review 29
(1885), pp. 175-203; William Meigs. “The American Doctrine of Judicial Power, and Its Early
Origin.” The American Law Review 47 (1913), pp. 683-696; James Bradly Thayer. “The Origin and
Scope of the American Doctrine of Constitutional Law.” Harvard Law Review 7 (1893), pp. 129-156;
A.C. Goodell Jr. “An Early Constitutional Case in Massachusetts.” Harvard Law Review 7 (1894), pp.
415- 424; Hampton L. Carson. “The Historic Relation of Judicial Power to Unconstitutional
Legislation.” University o f Pennsylvania Law Review and American Law Register (to (1912), pp. 687-
699; John H. Hatcher. “The Power of Federal Courts to Declare Acts of Congress Unconstitutional.”
West Virginia Law Quarterly 42 (1936), pp. 96-109; Oscar Hallam. “Judicial Power to Declare
Legislative Acts Void.” American Law Review 48(1914), pp. 85-114 and pp.225-273. William E.
Nelson. “Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the
States, 1790-1860. “ University o f Pennsylvania Law Review (1972), pp. 1168-1173. But Compare,
Jackson H. Ralston. “Judicial Control Over Legislatures as to Constitutional Questions.” The
American Law Review 54 (1920), pp. 1-38 and pp. 193-230. For a historical account of many of these
cases, see Charles Warren. The Supreme Court in United States History. Vol. I. Boston: Little, Brown,
and Company, 1926. Julius Goebel Jr. History o f the Supreme Court o f the United States:
Antecedents and Beginnings to 1801. Vol. I. New York: The MacMillan Company, 1971.
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9 Gordon S. Wood. The Creation o f the American Republic, 1776-1787. New York: W.W. Norton
and Company, 1969, pp. 453-463; Gordon S. Wood. “The Origins of Judicial Review.” Suffolk
University Law Review 22 (1988), p 1303. Gordon S. Wood; “Judicial Review in the Era of the
Founding.” In Robert A. Licht, ed. Is the Supreme Court the Guardian o f the Constitution?
Washington D.C.: The AEI Press, 1993, pp. 156-157; Leslie Friedman Goldstein. “Popular
Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten law.” The Journal o f
Politics 48 (1986), pp. 51-71.
1 0 Commonwealth v. Canton, 4 Call 634,638 (Va. 1782). For a discussion of the case and its
implications for modem notions of judicial power and constitutional interpretation, see William
Michael Treanor. “The “The Case of the Prisoners and the Origins of Judicial Review.” University o f
Pennsylvania Law Review 143 (1994), pp. 491-570.
1 1 State v. Jabez Parkhurst, 9 N.J.L. (4 Halst.) 427,445-446 (1802). Kirkpatrick relied on two
precedents in which the judiciary nullified a law - Holmes v. Walton and Taylor v. Reading, See e.g.,
Austin Scott. “Holmes vs. Walton: The New Jersey Precedent.” The American Historical Review 4
(1899), pp. 456-459. Since these were not officially reported, their authenticity (and even the validity
of Parkhurst itself) has been questioned. See Louis B. Boudin. “Precedents For the Judicial Power:
Holmes v. Walton and Brattle v. Hinckley.” St. John’ s Law Review 3 (1929), pp. 173-215. But
compare, Wayne D. Moore. “Written and Unwritten Constitutional Law in the Founding Period: The
Early New York Cases.” Constitutional Commentary 7 (1990), pp. 341-359.
1 2 State v. Parkhurst, p. 443; Charles R. Erdman. The New Jersey Constitution o f 1776. Princeton:
Princeton University Press, 1929, pp. 90-114.
1 3 For a discussion of the background and facts of the case, see Charles Warren “Earliest Cases of
Judicial Review of State Court Legislation by Federal Courts.” Yale Law Journal 32 (1922), pp. 15-
21; Patrick T. Conley. “Rhode Island’s Paper Money Issue and Trevctt v. Weeden." Rhode Island
History 30 (1971), pp. 95-108.
1 4 Vamum’s arguments are reprinted in Brinton Coxe. An Essay on Judicial Power and
Unconstitutional Legislation, Being a Commentary on Parts o f the Constitution o f the United States.
Philadelphia: Kay and Brother, 1893, pp. 236-243. They are also printed in Charles Grove Haines.
The American Doctrine o f Judicial Supremacy. 2n d ed. Berkeley: University of California Press, 1932,
pp. 98-117.
1 5 Bayard v. Singeton, 1 Martin 42, 45 (N.C. 1787); Coxe, Essay on Judicial Power, pp. 263-267.
1 6 Jonathan Elliot. The Debates in the Several Conventions on the Adoption o f the Federal
Constitution. Philadelphia: J.B. Lippincott Company, 1839, V: p. 151.
1 7 Coxe, Essay on Judicial Power, pp. 266-267.
1 8 Griffith J. McRee. Life and Correspondence o f James Iredell. New York: Peter Smith, 1949, H, pp.
145-148.
1 9 Ibid., p. 148, emphasis in the original.
2 0 Ibid., pp. 169-170.
2 1 Ibid., p. 173, emphasis in the original. For a development of Iredell’s thoughts about
unconstitutional legislation and judicial review, see Charles F. Hickox m and Andrew C. Laviano.
“James Iredell and the English Origins of American Judicial Review.” Anglo-American Law Review
141
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23 (1994), pp. 199-212. William R. Castro. “James Iredell and the American Origins of Judicial
Review.” Connecticut Law Review 27 (1995), pp. 329-363.
2 2 Julius Goebel, ed. The Law Practice o f Alexander Hamilton: Documents and Commentary. Vol. I.
New York and London: Columbia University Press, 1964, p.337, emphasis in the original.
2 3 Cases o f the Judges o f the Court o f Appeals, 4 VA (4 Call) 135, 143, 146 (1788). Similar
sentiments were expressed by the South Carolina Supreme Court more than twenty years later. In
Bryne v. Stewart, the Court noted that judicial review did not preclude deference to the legislature. In
fact, it was important for both legislators and judges to act in conformity with the constitution. Bryne
v. Stewart, 3 Desaussure 466 (1812).
2 4 Lindsay v. Commissioners 2 Bay 38,40 (S.C. 1796).
2 5 Ibid., pp. 61-62.
2 6 Indeed, after the election of Jefferson to the presidency, it was believed that he would appoint
Roane as chief justice to the Supreme Court. The Federalists, fearing the possibility of someone who
was overtly hostile to national power, convinced John Jay to resign thereby allowing Adams to
appoint Marshall. T.R.B. Wright. “Judge Spencer Roane.” Virginia Law Register 2 (1896), p. 480.
See also Hobson, Great Chief Justice, p. 66, arguing that Roane was more assertive o f judicial power
than Marshall; G. Edward White. The American Judicial Tradition: Profiles o f Leading American
Judges. New York: Oxford University Press, 1976, pp. 21-24, arguing that Roane’s construction of
state judicial power, especially with respect to the power of judicial review, was adopted by his rival,
Marshall. Timothy Huebner. “The Consolidation of State Judicial Power: Spencer Roane, Virginia
Legal Culture, and the Southern Judicial Tradition.” The Virginia Magazine o f History and Biography
102 (1994), pp. 47-72, arguing that Roane sought to establish the independence, prestige, and power
of Virginia’s judicial branch by embracing judicial review, unanimity among its members, and
opinions based on legal precedent, features often attributed to Marshall. William E. Dodd. “Chief
Justice Marshall and Virginia.” The American Historical Review 12 (1907), pp. 776-787, arguing that
Marshall was probably influenced by Roane’s opinions on judicial review. John Radabaugh.
“Spencer Roane and the Genesis of Virginia Judicial Review.” The American Journal o f Legal
History 6 (1962), pp. 63-70, noting that during the Virginia Ratifying Convention, Marshall was not
in favor of extending the federal court’s jurisdiction to include suits instituted by individuals against
the states. See also F. Thorton Miller. “John Marshall in Spencer Roane’s Virginia: The Southern
Constitutional Opposition to the Marshall Court.” The John Marshall Law Review 33 (2000), pp.
1131-1140; Timothy S. Huebner. The Southern Judicial Tradition: State Judges and Sectional
Distinctiveness J790-1890. Athens and London: The University of Georgia Press, 1999, pp. 10-39.
2 7 Peter Kamper v. Mary Hawkins, 1 Va. Cas. 1,15 (1793). Reference to the Virginia constitutional
convention is important because the constitution was not created in a convention specially chosen for
that purpose.
2 8 Ibid., pp. 15-16; Margaret Virginia Nelson. “A Study of Judicial Review in Virginia: 1789-1928.”
Ph.D. diss. Columbia University, 1947, pp. 31-53.
2 9 Whittington v. Polk, 1 Harris and Johnson 236, 241 (Md. 1802).
3 0 Ibid., p. 242.
3 1 Ibid., p. 244.
3 2 Ibid., p. 245.
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3 3 University o f North Carolina v. Foy, 5 N.C. 57,59 (1805). Interestingly, the Court was more
concerned with the constitutional right of education than with its authority to nullify a state law.
3 4 White v. Kendrick, 1 Brevard 469,471 (S.C. 1805).
3 5 Emerick v. Harris, 1 Binney 416, 410 (Pa. 1808), emphasis in the original.
3 6 Grimball v. Ross, 1 GA 175, 176-177 (1808).
3 7 Quoted in William T. Utter. “Judicial Review in Early Ohio.” The Mississippi Valley Historical
Review 14 (1972), pp. 9-10, emphasis in the original.
3 8 Ibid., p. 11. See also F.R. Aumann “Judicial Organization and Procedure: The Course of Judicial
Review in the State of Ohio.” The American Political Science Review 25 (1931), pp. 367-376.
3 9 Cohen v. Hoff, 3 Brevard 500,501 (S.C. 1814).
4 0 Ibid., p. 502.
4 1 Ibid., p. 504.
4 2 This was one of a series of “personal legislation” passed by legislatures to appease public
sentiment. See Timothy A. Lawrie “Interpretation and Authority: Separation of Powers and the
Judiciary’s Battle for Independence in New Hampshire, 1786-1818.” The American Journal o f Legal
History 39 (1995), pp. 312-316; Walter F. Dodd. “Gilman v. McClary: A New Hampshire Case of
1791.” The American Historical Review 12 (1907), pp. 348-350; Frederick E. Merrills. “Some
Aspects of Judicial Control Over Special and Local Legislation.” American Law Review 47 (1913):
351-364.
4 3 Merrill v. Sherburne, 1 N.H. 199, 210 (1813).
4 4 Ibid., p. 212.
4 5 Moses Holden v. Elezar James, 11 MA 396,403 (1814).
4 6 Athanthius Thomas v. Chesley Daniel, 2 McCord 354, 360 (1823).
4 7 Bates v. Kind/all, 2 D. Chipman 77, 81 (Vt. 1824), emphasis in the original. Like countless other
courts, this Court found use for Hamilton’s Federalist 78.
4 8 Ibid., pp. 83-84.
4 9 Ward v. Barnard, 1 Aikens 121, 127 (Vt. 1825).
5 0 Crane v. Meginnis, I Gill and Johnson 463,472 (Md. 1829).
5 1 Ibid.
5 2 Compare, John R. Schmidhauser. The Supreme Court as the Final Arbiter in Federal-State
Relations: 1789-1957. Chapel Hill: The University of North Carolina Press, 1958; Leslie F. Goldstein.
“State Resistance to Authority in Federal Unions: The Early United States (1790-1860) and the
European Community (1958-94).” Studies in American Political Development 11 (1997), pp. 149-
189.
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3 3 See generally, William D. Guthrie. “The Eleventh Article of Amendment to the Constitution of the
United States.” Columbia Law Review 8 (1908), pp. 183-207; Louis L. Jaffe. “Suits Against
Governments and Officers: Sovereign Immunity.” Harvard Law Review 77 (1963), pp. 1-39.
M The Judiciary Act of 1789, § 13, 1 Stat. 73, 80 (1789).
3 5 Clyde E. Jacobs. The Eleventh Amendment and Sovereign Immunity. Westport: Greenwood Press,
Inc., 1972, pp. 27-40.
3 6 Jonathan Elliot. The Debates in the Several Conventions on the Adoption o f the Federal
Constitution. New York: Burt Franklin, 1888, HI, p. 573.
3 7 Ibid., p. 533.
3 8 Ibid., p. 555, emphasis added.
3 9 Federalist 81. In Clinton Rossiter, ed. The Federalist Papers. New York: Nal Penguin Inc., 1961,
p. 487, emphasis in the original.
6 0 Van Staphorst v. Maryland, 2 Dallas (2 U.S.) 401 (1791).
6 1 Oswald v. New York, 2 Dallas (2 U.S.) 401 (1792).
6 2 See generally, Doyle Mathis. “Chisholm v. Georgia: Background and Settlement.” The Journal o f
American History 54 (1967), pp. 19-29.
6 3 See e.g., James Sullivan. Observations Upon the Government o f the United States o f America.
Boston: Samuel Hall, 1791; Hortensius. An Enquiry into the Constitutional Authority o f the Supreme
Federal Court Over the Several States in Their Political Capacity. Charleston: W.P. Young, 1792.
See generally, Maeva Marcus, ed. The Documentary History o f the Supreme Court o f the United
States, 1789-1800. Vol. V (Suits Against States). New York: Columbia University Press, 1994, pp.
7-273.
M Chisholm v. Georgia, 2 Dallas (2 U.S.) 419,453 (1793).
6 3 Ibid., p. 457, emphasis in the original.
6 6 Ibid., p. 470.
6 7 Ibid., p. 471.
6 8 Ibid., p. 433. See also Jeff B. Fordham. “Iredell’s Dissent in Chisholm v. Georgia” Its Political
Significance.” The North Carolina Historical Review 8 (1931), pp. 155-167; John V. Orth. “The Truth
About Justice Iredell’s Dissent in Chisholm v. Georgia (1793).” North Carolina Law Review 73
(1994), pp. 255-270.
6 9 Marcus, Documentary History Supreme Court, V, pp. 236-237.
7 0 Ibid., pp. 237-273; Maeva Marcus and Natalie Wexler. “Suits Against States. Diversity of Opinion
in the 1790s.” Journal o f Supreme Court History (1993), pp. 73-89.
7 1 Doyle Mathis. “The Eleventh Amendment: Adoption and Interpretation.” Georgia Law Review 2
(1968), pp. 207-245.
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7 2 Hollingsworth v. Virginia, 3 Dallas (3 U.S.) 378 (1798).
7 3 John V. Orth. The Judicial Power o f the United States: The Eleventh Amendment in American
History. New York and Oxford: Oxford University Press, 1987, pp. 7, 30-46; John Orth. “The
Interpretation of the Eleventh Amendment, 1798-1908: A Case Study of Judicial Power.” University
o f Illinois Law Review 1983 (1983), pp. 423-455.
7 4 David P. Currie. “The Constitution in the Supreme Court: 1789-1801.” The University o f Chicago
Law Review 48 (1991), p. 842.
7 5 United States v. Peters, 5 Cranch 115 (1809); Jacobs, The Eleventh Amendment, p. 80, arguing that
the cases represented a victory for judicial supremacy.
7 6 Cohens v. Virginia, 6 Wheaton 264 (1821). When Cohens began in state court, the state had
brought suit against the individual, not vice versa. Doyle, “The Eleventh Amendment,” p. 235.
7 7 Osborn v. Bank o f United States 9 Wheaton 738 (1824). For a discussion of the case, see Patricia L.
Franz. “Ohio v. Bank: An Historical Examination of Osborn v. Bank o f the United States." Journal o f
Supreme Court History 23 (1999), pp. 112-137; Mathis, “The Eleventh Amendment,” pp. 230-231,
235-237, arguing that up till 1908, the Court limited the use of the Eleventh Amendment to state
officers sued in federal court.
7 8 See e.g., Maeva Marcus. “Judicial Review in the Early Republic.” In Ronald Hoffman and Peter J.
Albert, eds. Launching the “ Extended Republic”: The Federalist Era. Charlottesville and London:
University Press of Virginia, 1996, pp. 25-53. For more on the activities of the early Court, see
William R. Castro. The Supreme Court in the Early Republic: The Chief Justiceships o f John Jay and
Oliver Ellsworth. Columbia: University of South Carolina Press, 1995.
7 9 Haybum’ s Case, 2 Dallas (2 U.S.) 409 (1792).
8 0 Max Farrand. “The First Haybum Case, 1792.” The American Historical Review 13 (1908), pp.
281-285. But compare, Maeva Marcus and Robert Tier. “Haybum’s Case: A Misinterpretation of
Precedent.” Wisconsin Law Review 1988 (1988), pp. 527-546, arguing that the central focus of the
case was whether the Attorney General could bring such a suit without authorization from the
president.
8 1 Haybum’ s Case, p. 411. The judges on New York and North Carolina circuit courts offered similar
separation of powers arguments, but only the Pennsylvania court invoked the language of popular
sovereignty. Neither court, however, explicitly used the term “unconstitutional” as a justification for
their refusal to hear the case.
8 2 VanHome’ s Lessee v. Dorrance, 2 Dallas (2 U.S.) 304, 308 (1795).
8 3 Hylton v. United States, 3 Dallas (3 U.S.) 171(1796).
8 4 Calder v. Bull, 3 Dallas (3 U.S.) 386 (1798); Cooper v. Telfair, 4 Dallas (4 U.S.) 14 (1800); Ware
v. Hylton, 3 Dallas (U.S.) 199 (1796).
8 5 See generally, Donald O. Dewey. Marshall Versus Jefferson: The Political Background ofMarbury
v. Madison. New York: Alfred Knopf, 1970; William W. Van Alstyne. “A Critical Guide to Marbury
v. Madison.” Duke Law Journal 1969 (1969), pp. 1-47.
8 6 Marbury v. Madison 1 Cranch 137, 176 (1803).
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8 7 Ibid., p. 177. See also Hobson, Great Chief Justice, p. 55.
8 8 Hobson, Great Chief Justice, pp. 111-112. See also Schmidhauser, The Supreme Court.
8 9 McCulloch v. Maryland, 4 Wheaton 316,404-405 (1819)
9 0 Ibid., p. 403
9 1 Ibid., p. 431.
9 2 See generally, Charles F. Hobson. “John Marshall and the Fairfax Litigation: The Background of
Martin v. Hunter’ s Lessee." Journal o f Supreme Court History 2 (1996), pp. 36-50; Dodd, "Chief
Justice Marshall," pp. 777-778. The case eventually pitted Marshall (who had a vested interest in the
land, and who had represented one of the early litigants) against Roane. Thorton F. Miller. “John
Marshall Versus Spencer Roane: A Reevaluation of Martin v. Hunter’ s Lessee." The Virginia
Magazine o f History and Biography 96 (1988), pp. 297-314.
9 3 Martin v. Hunter’ s Lessee,I Wheaton 304, 324-325, 328, 330 (1816), emphasis in the original. For
more on Story’s nationalism, see Joseph Story. Commentaries on the Constitution o f the United
States. Vol. I. Boston: Little, Brown, and Company, 1905 (Originally published in 1830).
9 4 Cohens v. Virginia, p. 414.
9 3 Respublica v. Cobbett, 3 Dallas (3 U.S.) 467,473 (1798).
9 6 Charles Warren. “Legislative and Judicial Attacks on the Supreme Court of the United States - A
History of the Twenty- Fifth Section of the Judiciary Act.” The American Law Review 47 (1913), p. 6.
9 7 Fairfax’ s Devisee v. Hunter’ s Lessee, 7 Cranch (U.S.) 602 (1813).
9 8 Hunter v. Martin, Devisee o f Fairfax, 4 Munford 1, 52 (1814).
9 9 Gerald Gunther. John Marshall’ s Defense o f McCulloch v. Maryland. Stanford: Stanford University
Press, 1969, p. 130. The debate focused on the construction of the “necessary and proper clause.”
1 0 0 Ibid., p. 140.
,0' Ibid.. p. 203.
1 0 2 See generally, John C. Miller. Crisis in Freedom: The Alien and Sedition Laws. Boston: 1951;
Morton Smith. Freedom’ s Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca,
New York: Cornell University Press, 1956; Marshall Smelser. “George Washington and the Alien and
Sedition Acts.” The American Historical Review 59 (1954), pp. 322-334; Phillip G. Davidson.
“Virginia and the Sedition Laws.” The American Historical Review 36 (1931), pp. 336-342.
1 0 3 Jefferson’s authorship of the Resolutions has been questioned and it is generally believed that John
Breckinridge deserves more credit for the Resolutions. Ethelbert Dudley Warfield. The Kentucky
Resolutions o f 1798, An Historical Study. New York and London: G.P Putnam’s Sons, 1887, pp. 49-
73; Edward Channing. “Kentucky Resolutions of 1798.” The American Historical Review 20 (1915),
pp. 333-336.
1 < M Merrill Peterson, ed. The Portable Thomas Jefferson. New York: Penguin Books, 1975, pp. 285-
289.
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I0 S Federalist 39. In Rossiter, The Federalist Papers, p. 243.
i°6 Virginia Resolutions.” Reprinted in William F. Swindler, ed. Sources and Documents o f
United States Constitutions: National Documents, 1492-1800.” London Rome, and New York:
Oceana Publications, 1982, p. 488.
1 0 7 Quoted in Frank Maloy Anderson. “Contemporary Op inion of the Virginia and Kentucky
Resolutions II.” The American Historical Review 5 (1899), p. 243.
1 0 8 Adrienne Koch and Harry Ammon. “The Virginia and Kentucky Resolutions: An Episode in
Jefferson’s and Madison’s Defense of Civil Liberties.” The William and Mary Quarterly 5 (1948), pp.
161-162.
i(» “j j,e Virginia Resolutions.” Reprinted in Swindler, Sources and Documents, p. 489.
"° Wayne D. Moore. “Reconceiving Interpretive Authority: Insights From the Virginia and Kentucky
Resolutions.” Constitutional Commentary 11 (1994), p. 327.
1 1 1 Indeed, this view was shared by many states that responded unfavorably to the Resolutions. See
generally Frank Maloy Anderson. “Contemporary Opinion of the Virginia and Kentucky Resolutions
I.” The American Historical Review 5 (1899), pp. 45-63; Anderson, “Contemporary Opinion, II,” pp.
225-252; Warfield, Kentucky Resolutions, pp. 111-114. Warfield notes that none of the southern
states replied to the Resolutions. This is important considering that in the 1820s and 1830s,
southerners invoked the Resolutions as a justification for nullification.
1 1 2 Warfield, Kentucky Resolutions, pp. 93-94, emphasis in the original.
1 1 3 H. Jefferson Powell. “The Principles o f ’98: An Essay in Historical Retrieval.” Virginia Law
Review 80 (1994), p. 719.
1 1 4 Peterson, Portable Jefferson, p. 281, emphasis added.
1 1 5 Ibid., p. 286, emphasis added.
1 1 6 Powell, “Principle of ’98,” p. 717. See also Warfield, Kentucky Resolutions, p. 184, arguing that
the difference between Jefferson and Madison did not lie in the distinction between “nullification”
and “interposition,” but in whether the parties act as a state or as states.
1 1 7 Powell, "Principle of ’98,” p. 718.
1 1 8 Gaillard Hunt, ed. The Writings o f James Madison." Vol. 9. New York and London: G.P. Putnam’s
Sons, 1910, p. 66, emphasis added.
1,9 Ibid., pp. 496-497. See also Kevin R. Gutzman. “The Troublesome Legacy: James Madison and
the “Principles of 98.”” The Journal o f the Early Republic 15 (1995), p. 587.
1 2 0 Hunt, Writings o f Madison, p. 392n, emphasis in the original.
1 2 1 Gutzman, ‘Troublesome Legacy,” p. 586.
1 2 2 Hunt, Writings o f Madison, p. 388n, emphasis in the original.
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1 2 3 James Madison. The Kentucky -Virginia Resolutions and Mr. Madison’ s Report o f1799.
Richmond: The Virginia Commission on Constitutional Government, 1960, p. 12.
1 2 4 Hunt, Writings of Madison, p. 388, emphasis added. See generally, Moore, “Reconceiving
Interpretive Autonomy.”
1 2 5 Madison, Virginia Resolutions, p. 78.
1 2 6 Ibid.
1 2 7 Arthur S. Miller and Ronald F. Howell. “Interposition, Nullification and the Delicate Division of
Power in a Federal System.” The Journal of Public Law 5 (1956), p. 19; James Rabun. “Documents
Illustrating the Development of the Doctrine of Interposition." The Journal of Public Law 5 (1956),
pp. 49-89.
1 2 8 Powell, “Principles of ’98,” p. 737.
1 2 9 David E. Engdahl. “John Marshall’s “Jeffersonian Concept of Judicial Review.” Duke Law
Journal 42 (1992), p. 303.
1 3 0 Madison, Virginia Resolutions, pp. 22 -23.
1 3 1 Powell, “Principles of ’98,” pp. 718-719, emphasis added.
1 3 2 Robert Lowry Clinton. “ Eakin v. Raub: Refutation or Justification of Marbury v. Madison?"
Constitutional Commentary 4 (1987), pp. 81-92.
1 3 3 Stanley I. Kutler. “John Bannister Gibson: Judicial Restraint and the ““Positive State."” The
Journal o f Public Law 14 (1965), p. 184.
1 3 4 Kutler, “Gibson,” p. 184.
1 3 5 Ibid., p. 195.
1 3 6 David M. O’Brien. Constitutional Law and Politics: Struggles for Power and Governmental
Accountability. Vol. I. New York: W.W. Norton and Company, 1991, p. 56.
1 3 7 Kutler, “Gibson,” p. 185.
1 3 8 Quoted in David N. Mayer. The Constitutional Thought o f Thomas Jefferson. Charlottesville and
London: The University Press of Virginia, 1994, p. 269.
1 3 9 Ibid.
1 4 0 Quoted in Ibid., p. 270.
Ul
Peterson, Portable Jefferson, pp. 562-563.
1 4 2 Mayer, Jefferson’ s Constitutional Thought, p. 280.
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Ibid., p. 270.
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Chapter 3
Popular Sovereignty as Interpretation, Revisited:
State and Federal Interposition Against the United States Supreme Court
If there is in each State a court of final jurisdiction, there may be
as many different final determinations on the same point as there
are courts. There are endless diversities in the opinions of men.
We often see not only different courts but the judges of the same
court differing from each other. To avoid the confusion which
would unavoidably result from the contradictory decisions of a
number of independent judiciaries, all nations have found it
necessary to establish one court paramount to the rest, possessing
a general superintendence and authorized to settle and declare in
the last resort a uniform rule of civil justice.
Alexander Hamilton (1787)1
Our doctrine is that the States, before the adoption of the
Constitution, were sovereign and independent; that the Federal
Union is a union of States, and that the Constitution is a covenant
or compact between them and the fundamental law of their Union;
and that inasmuch as the convent or compact was between
sovereigns and there is no umpire or common interpreter between
them, each had the right to judge for itself of infractions of the
contract, and to determine for itself the mode and measures of
redress.
Wm. Porter (1860)2
Introduction
The early debates over the institutionalization of popular sovereignty centered on the
creation and interpretation of state and federal constitutions. The debates over creation
pitted constitutional conventions against legislatures for the right to draft constitutions.
After the constitutions were constructed they had to be construed, and alternative theories of
popular sovereignty generated alternative theories of constitutional review and
interpretation. The focus of these debates was on which political institution had ultimate
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authority to interpret - courts, legislatures, executives, or conventions. One suggestion was
premised upon the authority of the state judiciary to protect the fundamental will of the
people as embodied in their respective state constitutions. Another alternative was
concerned with the federal Constitution and protecting the will of the national people.
Spencer Roane believed in the relationship between popular sovereignty and a strong
judiciary, but he refused to accept the extension of federal judicial power over the states.
These court-centered alternatives were counterpoised against two non-court - centered
alternatives. Interposition, as defined by James Madison, called on the people’s state
legislative representatives to review the constitutionality of federal laws and
departmentalism was based on co-ordinate departmental interpretation of the Constitution
subject to electoral control.
These alternative models did not emerge in a linear progression. Rather, they were
often invoked simultaneously to justify particular institutional practices. In this chapter, I
show how debates over these alternatives persisted throughout the antebellum period,
intensifying (and even becoming more complicated rather than more settled) as the country
approached Civil War. Early debates set precedents for later battles over the
institutionalization of popular sovereignty “indoors.” The Taney Court and Daniel Webster
followed John Marshall’s nationalistic court-centered model. At the same time, Spencer
Roane’s opinion in Hunter v. Martin set the stage for other state courts to defy federal
judicial power. Roane’s theory was also behind the assault on the 25* section of the
Judiciary Act of 1789. Presidents Andrew Jackson and Abraham Lincoln invoked
departmentalism to allow for executive review of the Constitution to challenge judicial
control of the Constitution. Finally, the language of interposition and the compact theory of
constitutional construction were invoked by many states to justify state nullification of
federal laws and secession.
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The struggle over interpretive authority did not simply pit southerners against
northerners. Indeed, Pennsylvania and Massachusetts, and a number of the newer, western
states (Ohio, Kentucky, Wisconsin, and California), also challenged the Court's authority to
interpret the Constitution. Nor did the struggle for interpretive authority follow a consistent
pattern with southerners always taking the states’ rights position and northerners, the
nationalist position. When a particular state stood to benefit from a decision of the Court,
she was more than willing to support the federal judiciary. But when a state’s interests were
threatened, she would openly defy federal authority, often times invoking the language of
state sovereignty. As Charles Warren wrote,
Throughout American history, devotion to State*Rights and
opposition to the jurisdiction of the Federal Government and the
Federal Judiciary, whether in the South or in the North, has been
based, not so much on dogmatic, political theories or beliefs, as
upon the particular economic, political or social legislation which
the decisions of the Court happened to sustain or overthrow. No
State and no section of the Union has found any difficulty in
adopting or opposing the State-Rights theory, whenever its interest
lay that way.3
In this chapter, I discuss how various institutional actors at both the state and
national levels invoked one or more of the competing theories of popular sovereignty and
constitutional interpretation to justify their support or opposition to the Supreme Court. I
focus on how the same institutional actors invoked a number of these models depending on
whether they stood to benefit from a decision of the Court. Each time, the claim to ultimate
interpretive authority was premised upon the idea that the people had empowered them to do
so in the Constitution, hi the end, the vast number of diverse models of interpretation and
the fact that they were often invoked to serve political ends suggests that there was no
consensus about the political institutionalization of popular sovereignty. Nor did these
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debates settle the question over which institution would be the ultimate interpreter of the
people’s will. In the midst of these battles and switches, one thing was for certain: popular
sovereignty could only be expressed in institutions created by the “people” themselves.
State and Federal Interposition
When Roger Taney took over as Chief Justice, his opinions and those of his fellow
justices proved to be an extension of John Marshall’s Supreme Court centered model of
constitutionalism.4 Most scholars tend to focus on the different substantive constitutional
positions taken by the Marshall and Taney Courts on issues like the Commerce Clause or the
Contract Clause. But this focus also obscures the extent to which there was a more
fundamental debate over the Supreme Court’s interpretive authority. The Court faced off
with other branches of the federal government and the states, each claiming the right to
interpret the people’s will.
State Courts and the Battle Over the 25th Section of the Judiciary Act
One persistent challenge to the interpretive authority of the U.S. Supreme Court
came from state courts in an extension of Spencer Roane’s early challenges to the Marshall
Court. State courts borrowed from the compact theory of constitutional construction as put
forth in the Kentucky and Virginia Resolutions and the Virginia Report. The federal
government was created by “We the People” of the states and if the federal government
exceeded its constitutional authority, the states, as representatives of the sovereign people,
not the federal courts had the right to police the boundaries of federal power. This argument
was premised on the fact that since the Constitution did not provide an independent tribunal
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to resolve disputes between the states and the federal government, the states, as parties to the
constitutional compact, had the authority to judge constitutional infractions.
In the Virginia Report, Madison advocated a theory of interposition that was
dependent upon state legislative protest of federal authority. State legislatures were called
upon to collectively interpose themselves between the people of the states and the federal
government by appealing to their representatives at the federal level for relief from
unconstitutional legislation either through a repeal of the law or a constitutional amendment.
Interposition was premised upon the right of state legislatures, which played a significant
role in the creation of constitutions, to also have a role in interpreting them.
In the antebellum era, interposition took various other forms of protest as the
struggle for interpretive authority pitted the states against the Supreme Court.5 One of the
ways in which states protested the policies of the federal government was through their own
state courts. One year after Justice Story’s nationalistic opinion in Martin v. Hunter’ s
Lessee, the Massachusetts Supreme Court took issue with a federal law requiring appeals
from the highest court in a state to a federal circuit court in cases involving customs officers.
In Wetherbee v. Johnson (1817), the Massachusetts Court denied that the “solemn
judgments” of the “supreme tribunals of a state” could be subject to nullification by an
inferior federal tribunal.6 The Court, however, did not completely reject federal review of
state court decisions, suggesting that “none but the Supreme Court of the United States could
entertain jurisdiction, by way of appeals from the judgments of the state courts....” Yet, the
Court also maintained that the Supreme Court’s appellate jurisdiction was an “unnecessary,
if not a dangerous, interference with the independence of the state tribunals.”7
At the heart of most of these debates between the state and federal courts was the
25I h section Judiciary Act of 1789, which provided for review of state supreme court
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decisions by the United States Supreme Court in cases where a federal law or the
Constitution was involved. It read in part as follows:
That a final judgment or decree in any suit, in the highest Court of
law or equity of a State in which a decision in the suit could be
had, where is drawn in question the validity of a treaty or statute
of, or an authority exercised under the United States, and the
decision is against their validity; or where is drawn in question the
validity of a statute of, or an authority exercised under any State,
on the ground of their being repugnant to Constitution, treaties or
laws of the United States, and the decision is in favor of such their
validity; or where is drawn in question the construction of any
clause of the constitution, or of a treaty or statute of, or
commission held under the United States, and the decision is
against the title, right, privilege or exemption specially set up or
claimed by either party, under such clause of the said Constitution,
treaty, statute or commission, may be re-examined and reversed or
affirmed in the supreme Court of the United States, upon a writ of
error....
Did federal courts have the authority to review and overturn state supreme court decisions?
Or were the decisions of the highest tribunal of a state final? Was the survival of the Union
dependent upon uniformity in the interpretation of the fundamental law of the land? The
Marshall Court tried to resolve these questions in favor of the federal courts in Hunter’ s
Lessee and Cohens v. Virginia, but as William Wiecek argues, despite Marshall’s efforts, the
25lb section continued to serve “as the primary focus for competing theories of the federal
union throughout the antebellum and Reconstruction periods.”8
The Contract Clause as it applied to the taxation of state banks led to some of the
most divisive battles over the 25th section. Art. I, § 10 of the Constitution prohibits states
from passing laws impairing the obligation of contracts. The Marshall and Taney Courts
generally upheld the validity of contracts.9 In a series of cases involving state imposed taxes
on state chartered banks, the Ohio and U.S. Supreme Courts clashed over whether these
taxes violated the Contract Clause. These clashes were not only about the meaning of the
Contract Clause, but about who had the right to interpret it.
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On February 24, 1845, the Ohio General Assembly enacted a law to incorporate a
Bank of Ohio. The 60th section of the Act required the Bank to submit 6% of its dividends to
the State in lieu of taxes. On March 21, 1851, the General Assembly passed an act imposing
a tax on all state banks. The Piqua Branch of the Bank argued that this tax was a violation of
the original contract provided in the 60'h section. The Ohio Supreme Court rejected this
argument and asserted that the 60d > section did not contain a pledge by the State not to
change taxable rates. Piqua Branch Slate Bank o f Ohio v. Jacob Knoop (1850) was brought
up from the Ohio Supreme Court to the U.S. Supreme Court by a writ of error issued under
the 251 1 1 section of the Judiciary Act. The U.S. Supreme Court reversed the decision of the
Ohio court on the grounds that the 60th section was a binding contract. Speaking for the
Court, Justice McClean rejected the contention that the Court was bound to respect the
construction of a statute by the highest tribunal of a state. He noted that the Court did not
disagree with Ohio’s construction of its own law. But the Justices were concerned with how
the Ohio court interpreted the federal Constitution.
The rule observed by this court to follow the construction of the
statute of the State by its Supreme Court is strongly urged. This is
done when we are required to administer the laws of the State.
The established construction of a statute of the State is received as
a part of the statute. But we are called in the case before us not to
carry into effect a law of the State, but to test the validity of such a
law by the Constitution of the Union. We are exercising appellate
jurisdiction. The decision of the Supreme Court of the State is
before us for revision, and if their construction of the contract in
question impairs its obligation, we are required to reverse their
judgment. To follow the construction of a State court in such a
case, would be to surrender one of the most important provisions
in the federal Constitution.1 0
The U.S. Supreme Court did not have the final word on the matter. The state
treasurer (Jacob Knoup) refused to abide by the decision and in Knoup v. Piqua Branch o f
the State Bank o f Ohio (1853), he asked the Ohio Supreme Court to inquire into why the
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Bank had not paid its taxes. The Ohio Court refused to enforce the tax, focusing mainly on
repudiating the claim that the bank was a private institution, not subject to state regulation."
The Court did not expressly deny that the state’s highest tribunal was immune from federal
review, but its language suggests that it differed from the U.S. Supreme Court in its
interpretation of what constituted a “contract” under the Constitution. By disagreeing with
the Supreme Court over substantive constitutional doctrine, the Ohio Court was denying the
Supreme Court the right to review the original decision of the state court in the first place.
Eventually the Ohio Supreme Court did acquiesce, but qualified its submission to
instances in which there was not a clear usurpation of power by the U.S. Supreme Court.1 2
Judge Bartley, however, dissented and premised his opinion on the following question:
Does the Constitution confer any power on the federal
government, by which the Supreme Court of the United States is
authorized in the exercise of its appellate jurisdiction to review
and reverse the judgment of a state Court?
Bartley answered in the negative, arguing that Article m allowed for federal appellate
review of only inferior federal courts, not state courts, which are organized under a separate
system. He focused on the term “appellate jurisdiction” and how it implied the existence of
subordinate courts “in the same judicial organization.”
The appellate jurisdiction, which is here vested in the Supreme
Court of the United States, is conferred in the same constitutional
provision, which authorized the establishment of the inferior
federal courts, as well as the Supreme Court; and of course has
direct reference to appeals from the inferior courts, being the
subordinate courts under the same judicial organization. No other
courts, than the United States Courts, are mentioned, or even
alluded to, in this article of the Constitution; and none other, could
have been contemplated.1 3
Bartley was also critical of the 25lb section of the Judiciary Act since it meant that state
judges were not bound by the supremacy of the Constitution, but the interpretation given to
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it by federal judges. He recognized that state judges were bound to observe the supremacy
of the Constitution. But the oath to support the Constitution was not an oath to support how
the federal courts interpreted it. This supremacy “imposes subjection to the Constitution,
laws and treaties of the United States, but not subjection to the federal courts."1 4
Ohio was not alone in its quest to deny the federal judiciary control over state
interpretive authority by putting forth the separate spheres argument. In Johnson v. Gordon
(18S4), the California Supreme Court questioned the validity of the 2Slh section
But the question which naturally arises is, when is this claim of
power [under Section 25] derived? In the authority to establish a
Supreme Court and inferior Courts, the Constitution gives
appellate jurisdiction to the former. Not a word is said in
reference to the State Courts. The Supreme Court and the inferior
Courts to be established by Congress, are alone mentioned. They
bear a certain relation to each other, and that relation only is
explained in the grant of appellate power to the Supreme Court.1 5
In Sandusky v. Wilbor (1857), the Ohio Supreme Court reiterated that the 60th
section was not a contract under the U.S. Constitution.1 6 The Ohio Court did not expressly
deny the U.S. Supreme Court’s authority to review state court decisions. Rather, the Court
was concerned with refuting the contention that when state courts have a disagreement over
the construction of a particular state statute, the U.S. Supreme Court had a right to intervene.
The Court found that the Ohio courts were consistently unanimous in their construction of
the state’s banking statutes, and interference by the U.S. Supreme Court was unwarranted.1 7
The controversy over the 60th section lingered as the nation advanced towards Civil
War. The Jefferson Branch of the Ohio Bank refused to pay a tax assessed by the State on
the grounds that the 60th section of the bank law violated the Contract Clause. In Skelly v.
Jefferson Bank Branch o f Ohio (1859), the Ohio Supreme Court disagreed and upheld its
decision in Sandusky Bank. In doing so, the Court argued that the 25th section did not
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subordinate state courts to federal courts by forcing the former to abide by the decisions of
the latter.1 8 On appeal, the U.S. Supreme Court reiterated the contractual nature of the 60d >
section, as well as its authority to review and reverse the decisions of state courts.
It never was intended, and cannot be sustained by any course of
reasoning, that this court should, or could with fidelity to the
Constitution of the United States, follow the construction of the
Supreme Court of a State in such a matter, when it entertained a
different opinion: and in forming its judgment in such a case, it
makes no difference in the obligation of this court in reversing the
judgment of the Supreme Court of a State upon such a contract,
whether it be one claimed to be such under the form of State
legislation, or has been made by a covenant or agreement by the
agents of a State, by its authority.1 9
In Woolsey v. Dodge (1854) and Dodge v. Woolsey (1855), the federal circuit court
of appeals and U.S. Supreme Court ruled that an 1852 Ohio tax enacted pursuant to a newly
amended Constitution violated the original charter agreement established under the old state
Constitution and the Contract Clause of the federal Constitution. These courts were less
concerned about the nature contracts. Rather, the main issue was whether federal courts
were bound by the will of the sovereign people of a state expressed in the form of a
constitutional amendment. U.S. Supreme Court Justice Wayne answered in the negative and
noted, “a change of constitution cannot release a State from contracts made under a
constitution which permits them to be made.”2 0 The Court affirmed the supremacy of the
Constitution over the states and, echoing McCulloch, argued that this supremacy could only
be maintained if there was one final and authoritative interpreter of constitutional conflicts
between the states and the federal government.
Without the supreme court, as it has been constitutionally and
legislatively constituted, neither the constitution nor the laws of
congress passed in pursuance of it, nor treaties, would be in
practice or in fact the supreme law of the land, and the injunction
that the judges in every State should be bound thereby, anything in
the constitution or laws of any State to the contrary
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notwithstanding, would be useless, if the judges of state courts, in
any one of the States, could finally determine what was the
meaning and operation of the constitution and laws of congress, or
the extent of the obligation of treaties.”2 1
This case is of interest because of the implications it had for an expression of
popular sovereignty - constitutional revision. The framers of the early state constitutions
valued the right of the people to change their government, although the constitutions did not
contain specific provisions for constitutional amendments. In this case, however, a federal
court made it clear that any expression of popular sovereignty at the state level (i.e.,
constitutional revision) was inferior to an even higher expression of popular sovereignty as
expressed in the creation of the federal Constitution.
The editors of the American Law Register joined the interpretive debate by
defending federal judicial power. The editors responded to Bartley’s opinion in Alfred Stunt
v. The Steamboat o f Ohio (18S6). In that case, Bartley refused to acknowledge that a state
law requiring payment of debts incurred on water vehicles was a violation of the U.S.
Constitution. Bartley feared that such a request would “lay the foundation for the removal of
the cause by way of appeal to the Supreme Court,” and in language almost identical to his
Knoup dissent one year earlier, he denied that the Supreme Court had supervisory power
over state courts.2 2 The editors of the Register took issue with Bartley’s claim that there was
no appellate jurisdiction between courts not belonging to the same judicial system. They
argued that the judicial power of a state and of the United States derived from one source -
the people.
The constitution of the United States, and that of any State so far
as regards the latter, are derived from the same source; but not so
far as regards the former, because it is the product of the combined
sovereignties of all the States. An attempt on the part of the
judiciary of one State to decide authoritatively and independently
upon any question affecting the powers created by all, would
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therefore be an exercise not only of its own but of the sovereign
rights of the rest, and hence an usurpation of the latter. But, as
judicial power cannot extend beyond the sphere of the sovereignty
whence it is derived, the authority to make such a decision must be
considered to that extent, not to belong to the courts of any one
member of the Union.2 3
The editors also argued that the stability of the Union was threatened by independent claims
of interpretation by one state. Such assertions would result in a “chaos of irreconcilable
decisions on every question affecting the constitution” and the federal government “would
soon cease to possess more than nominal authority, the anarchy of the confederation would
return, and the Union degenerate into a mere aggregation of States, jealous, conflicting, and
at last inimical.”2 4
The U.S. Supreme Court asserted interpretive authority under the 2S( h section even
when it upheld the validity of a state law. In assessing whether certain state laws interfered
with Congress’s power to regulate commerce, the Marshall and Taney Courts struggled to
differentiate between interstate and intrastate commerce. Whether the Court ruled that a
state law violated the Commerce Clause,2 5 it still found ways to invoke its authority under
the 25th section. In Wilson v. Black Bird Creek Marsh Company (1829), Marshall upheld a
Delaware dam law, but rejected the State’s argument that the Court had no jurisdiction to
hear the case. He wrote, “[i]t is sufficient to bring the case within the provisions of the 25th
section of the judicial act, if the record shows, that the constitution or law or a treaty of the
United States must have been misconstrued or the decision could not be made. O r... that the
constitutionality of a state law was questioned, and the decision has been in favor of the
party claming under such law.”2 6
Georgia entered the debate over the Commerce Clause and the 25th section when a
group of merchants refused to pay a state tax on certain commodities on the grounds that the
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tax violated interstate commerce. In Padelford v. Savannah (I8S4), the Georgia Supreme
Court rejected Brown v. M aryland as binding precedent. J. Benning spoke for the Court and
noted, “jurisdiction Over State Courts is not expressly given to the General Government, or
any department of it.”2 7 The Court was critical of the 2Slh section and the requirement that
state courts were bound by federal court decisions.
The Supreme Court of the United States has no jurisdiction over
this Court, or over any department of the Government of Georgia.
This Court is not a United States Court; and therefore, neither the
Government of the United States, nor any department of it, can
give this Court an order. It follows, if this be true, that decisions of
that Court, are not precedents for this Court.2 8
Benning anticipated an appeal under the 25th section and argued that Article m conferred
judicial power on only federal, not state courts. The “whole” judicial power is vested in
“one Supreme Court and in such Inferior Courts as Congress may. from time to time
establish,” and exercised by judges who “hold their offices during good behavior” and
extends to all cases “arising under this Constitution.” Furthermore, in cases other than those
mentioned in the Constitution, the Supreme Court, subject to congressional modification,
“shall have appellate jurisdiction, which, in turn, implied that original jurisdiction for these
cases lied in the Inferior Courts.” Benning concluded that Article m made it “clear” that
the appellate jurisdiction delegated to the Supreme Court, applies
only to the Inferior Courts o f the United States, ordained and
established by Congress, with Judges f o r life, and not to State
Courts, which are not United States Courts, which are not ordained
and established by Congress, and which are presided over by
Judges[s], who do not hold their offices for life.2 9
In this section I have shown that there was no consensus about the political
institutionalization of popular sovereignty in the courts. State and federal court jurists
justified their exercise of authority over their respective constitutions on the basis of popular
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sovereignty. They struggled with other institutions in their jurisdictions over interpretive
power, but they also contended with each other and argued that they had the authority to
interpret each other’s constitutions. This intra court battle involved more than just the right
to interpret, but a debate over the structure of the Union and the supremacy of one
constitution over the other in a divided system.
State Legislatures
The Supreme Court also squared off with state legislatures over constitutional
interpretation, many who got their cue from the Kentucky and Virginia Resolutions. United
States v. Judge Peters (1809) provided the Court with the opportunity to assert its
jurisdiction in a dispute between citizens of two states (Connecticut and Pennsylvania) in
light of the Eleventh Amendment and to prohibit state legislatures from interfering with
federal court rulings. The dispute began over the allocation of prize money awarded in a
state admiralty court in 1778. Unhappy with the allocation, Gideon Olmstead appealed to a
Committee of Appeals appointed by Congress that reversed the decision of the lower state
court. The Pennsylvania Supreme Court later denied that the Committee of Appeals could
reverse the decision of the state admiralty court, calling its actions “extra-judicial, erroneous
and void.”3 0 In 1803, Olmstead successfully sued David Rittenhouse, the Pennsylvania
treasurer for his share of the money in the U.S. District Court of Pennsylvania sitting in
admiralty.3 1 The Pennsylvania legislature, however, refused to abide by the decision and
passed a law authorizing the governor to demand the prize money on behalf of the state.3 2 In
U.S. v. Judge Peters (Olmstead’s attempt to enforce the decision of the District Court),
Marshall rejected the contention that state legislatures had the authority to interfere with the
decisions of the federal courts.
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If the legislatures of the several states may, at will, annul the
judgments of the courts of the United States, and destroy the rights
acquired under those judgments, the constitution itself becomes a
solemn mockery; and the nation is deprived of the means of
enforcing its laws by the instrumentality of its own tribunals.3 3
In response, the Republican legislature, upon recommendation of the Republican
governor, passed resolutions denying federal courts power over the states and their courts.
That from the construction United States’ courts give to their
powers, the harmony of the States, if they resist encroachments on
their rights, will frequently be interrupted; and, if to prevent this
evil, they should, on all occasions, yield to the stretches of power,
the reserved rights of the States will depend on the arbitrary power
of the courts.3 4
The Resolutions called for the creation of an independent tribunal to judge federal
infractions because “no provision is made in the constitution for determining disputes
between the general and state governments by an impartial tribunal.’’3 3
Many states were also critical of the Bank of the United States and despite the
Court’s decision in McCulloch, they continued to tax its branches. In Osborn v. Bank o f the
United States (1824), the Court struck down an Ohio tax on the Bank of the United States.3 6
In the years leading up to the decision, the Ohio legislature issued a report denying the
Supreme Court the final word over constitutional disputes between the federal and state
governments. The Report defended state interpretive authority and the right of the people of
the states to “declare their opinions upon the question involving the relative rights and
powers of the government of the United States.”3 7 The Report cited the Virginia Report and
noted that in the election of 1800, the “States and the people recognized and affirmed the
doctrines of Kentucky and Virginia, by effecting a total change in the administration of the
federal government.”3 8 As scholar Daniel Ryan put it, this defiance was an example of
“open and absolute nullification.”3 9
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In the end, Ohio offered little resistance to the final ruling of the Court, leading one
scholar to conclude that the Ohio was motivated by economic considerations as opposed to
political ones - Ohio blamed the Bank of the United States for its economic instability.4 0
Yet, given the importance of the Bank in the Federalist’s plan for a national economy, the
political battles already fought over the Bank, and Jackson’s subsequent veto of its re
charter, the lines between politics and economics were blurred. The Ohio legislature defied
the decision in McCulloch before Osborn by imposing a tax on a branch of a Bank in its own
State. Given Ohio’s previous history of defiance (through its Supreme Court) to U.S.
Supreme Court decisions, it is not surprising that it would harbor feelings of resentment.
Ironically, many states opposed the Pennsylvania and Ohio Resolutions on the
grounds that the Constitution provided an arbiter of constitutional disputes between the
states and the federal government - the United States Supreme Court. The Massachusetts
legislature issued a set of resolves focusing on the indispensable role of the Supreme Court
in the resolution of constitutional disputes between the state and federal governments.4 1
Massachusetts was mostly a Federalist state represented by the defender of both the Bank
and federal judicial power, Daniel Webster. Yet, in Wetherbee v. Johnson, the
Massachusetts Supreme Court expressed disapproval of the federal courts exercising
jurisdiction over them. She was also one of the states present at the Hartford Convention
where delegates (Federalists) issued their own form of interposition to combat federal
aggression and the War of 1812. Consider the following:
[T|n case of deliberate, dangerous, and palpable infractions of the
constitution, affecting the sovereignty of a state, and liberties of
the people; it is not only the right but the duty of such a state to
interpose its authority for their protection, in the manner best
calculated to secure that end. When emergencies occur which are
either beyond the reach of the judicial tribunals, or too pressing to
admit of the delay incident to their forms, states which have no
common empire, must be their own judges and execute their own
decisions.4 2
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Kentucky also had its share of trouble with the Court. In Green v. Biddle (1823), the
Court struck down a Kentucky claimant law as a violation of the original contract agreement
over land rights between Virginia and Kentucky.4 3 The Supreme Court decided the case in
1821 and reaffirmed it two years later upon Henry Clay’s request to rehear the case. But
more was at stake than a federal court voiding a state law. There was an additional element
to this case - the federal courts’ jurisdiction over diversity of citizenship suits.4 4
After the first Biddle decision, the Kentucky Legislature passed resolutions
authorizing the appointment of “commissioners to try and adjust matters with Virginia” and
to oppose any ruling of the Supreme Court declaring such laws void.4 5 After the decision
was reaffirmed, the Legislature passed more stringent resolutions denouncing federal
encroachment upon state power. It proposed that “no constitutional question growing out of
the Constitution of the United States, or the constitution of either of the States, involving the
validity of State laws, shall... be decided by said Court unless two-thirds of all the members
belonging to said Court shall concur in the decision.”4 6 The focus on two-thirds reflects the
fact that in Biddle, only three of the seven justices formally agreed with the opinion, with
one dissent, and three justices absent. In Bodley v. Gaither (182S), the Kentucky Appeals
Court refused to abide by Biddle on the grounds that only three justices decided it. Judge
Owsley wrote, “For the case of Green versus Biddle was decided by three only of the seven
judges that compose the Supreme court of the United States; and being the opinion of less
than a majority of the judges, cannot be considered as having settled any constitutional
principle.” 4 7 However, the Kentucky Court made it clear that Biddle would not bind it,
even if the decision were unanimous. “That we should consider ourselves bound by the
decisions of the Supreme court of the United States settling a construction of the
constitution, or laws of the United States, in cases where the Supreme court possesses
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revising jurisdiction over the decisions of this court, we shall not pretend to controvert.”4 8
The Indian land controversy also provided the state legislatures with the opportunity
to defy federal interpretive authority. This controversy was linked to other disputes over
interpretation - the 25th section of the Judiciary Act, nullification, and the role of the
president in the interpretive scheme. At stake was the following question: did Georgia have
the right to legislate over all persons, including Indians, within its territory despite federal
treaties stipulating otherwise? Spurred by the discovery of gold in territory claimed by the
Cherokee Indians and frustrated by the federal government’s inability to move Indians
westward, Georgia passed a series of laws extending its laws over the occupied lands and
voiding all laws made by the Cherokee Indians 4 9 Com Tassel, a Cherokee who murdered
another Indian within the Cherokee territory, was arrested, tried, and sentenced to death
under one of these new state laws. Com Tassel successfully appealed to the U.S. Supreme
Court for a writ on the grounds that the state law was unconstitutional. Georgia’s Governor
Gilmer vowed to resist the writ with force. He declared, “if the judicial power... is
submitted to or sustained, it must eventuate in the utter annihilation of the State
Governments....”5 0 The legislature resolved never to succumb to the Court’s demands.
“That the State of Georgia, will never so far compromise her sovereignty as an independent
State, as to become a party to the case sought to be made before the Supreme Court of the
United States, by the writ in question.”5 1 Shortly after, Com Tassel was hanged. Despite the
outcome, what started out as a controversy between the Cherokees and Georgia turned into a
battle over interpretive authority. As Joseph C. Burke writes,
Gilmer[‘s] [actions] and the decision to make a legal case out of
the Indian question marked the beginning of a second change in
the parties and the nature of the dispute. The controversy, first
between the Cherokees and Georgia, and then between the
Jacksonians and their opponents, was to become a contest
matching the Supreme Court against Georgia and the President.
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The new issue was nothing less than the nature of the Union and
the authority of the Supreme Court as the final arbiter of the
constitutional system.
The Cherokees challenged Georgia’s laws by initiating a suit as a foreign nation in
the Supreme Court under the Court’s original jurisdiction. In Cherokee Nation v. Georgia
(1831), however, the Court denied that it had jurisdiction under Article m since the
Cherokees did not constitute a foreign state.3 3 Two choices remained - a suit against a state
officer in a lower federal court or a suit commenced in state court, both of which could be
appealed to the U.S. Supreme Court. The latter seemed impossible because a state court
would not dare entertain such a suit and on the eve of Cherokee Nation, Congress was
considering a proposal to repeal the 2Slh section of the Judiciary Act.3 4 A test case was
eminent when two missionaries were arrested and convicted in a state court for violating a
law preventing individuals from living with the Cherokees without a license from the
governor. The missionaries appealed to the Supreme Court and on November 28, 1831,
Justice Baldwin granted a writ commanding Georgia to appear before the Court.3 3 Earlier
Governor Lumpkin relayed a message to the Legislature vowing to resist any
“unconstitutional requisitions” that infringed on the sovereignty of the State.3 6 In
anticipation of the appeal, the Legislature passed resolutions stipulating that any attempt by
the Court to overturn the decision of the state courts would be an “unconstitutional and
arbitrary interference” in the administration of the State’s criminal laws. It also directed the
Governor to ignore any mandate from the Court and ordered him to do anything within his
power to resist such encroachments.3 7
Marshall struck back in Worcester v. Georgia (1832) by asserting jurisdiction and
voiding a state law.3 8 He determined that the Court had authority to hear the case under the
25th section of the Judiciary Act since it involved a treaty as well as well as a conflict
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between a Georgia law and federal law. He wrote, “it is... too clear for controversy, that the
act of congress, by which this court is constituted, has given it the power, and of course
imposed on it the duty of exercising jurisdiction in this case. That duty, however,
unpleasant, cannot be avoided. Those who All the judicial department have no discretion in
selecting the subjects to be brought before them.”3 9 Marshall struck down the Georgia law
on the grounds that it violated the Constitution, laws and treaties of the United States. But
Marshall did not confine himself to this one law. He voided the entire “system of
legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation...
[as] repugnant to the constitution, laws, and treaties of the United States.”6 0 In light of
massive opposition at the state level and Andrew Jackson’s involvement, the question
became, would (or even could) the decision of the Court be enforced?
In the end, the confrontations between the states (through their courts, legislatures,
and executives) and the federal government showed the fragility of the Federalist’s claim to
interpretative authority. With respect to the 25th section of the Judiciary Act, state supreme
court jurists in the North and the South sought to protect their interpretive space. The
dominance of state legislatures suggests that interpretive power was not confined to either
the federal or the state judiciaries. State legislative claims to constitutional interpretation
came after they had fought hard to participate in constitutional creation. The battle over
interpretation intensified during the nullification and secession eras as conventions, known
mostly for their creation duties, vied for the power to interpret the Constitution.6 1
Nullification and Secession
Georgia’s struggle for interpretive independence was complicated by nullification.6 2
The Nullification Crisis had its roots in tariff acts passed by the federal government, but it
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quickly turned into a debate over interpretive authority and the right of one state to nullify an
“unconstitutional” law. John C. Calhoun’s authorship of the South Carolina Exposition and
Protest, which was eventually adopted by South Carolina’s General Assembly in 1828, laid
the foundation for nullification. The Exposition proclaimed that the tariff was
unconstitutional and identified a remedy for such a breach of federal power. The remedy did
not lie in the 25lh section of the Judiciary Act since that “would raise one of the departments
of the General Government, above the sovereign parties, who created the Constitution [and]
would enable it in practice to alter at pleasure the relative power of the States and General
Government.’’ 6 3 Rather it lied in the States (as parties to the constitutional compact) for the
“right of judging... is an essential attribute of sovereignty of which the States cannot be
divested, without losing their sovereignty itself.” Indeed, “the existence of the right of
judging of the their powers, clearly implies a veto, or controul on the action of the General
Government on contested points of authority; and this very controul is the remedy, which the
Constitution has provided to prevent the encroachment of the General Government on the
reserved right of the States.”6 4 The Exposition acknowledged that the power of the States
and the U.S. Supreme Court to declare laws unconstitutional was based on “inference
alone,” but that the State’s authority was stronger because state powers are reserved as
opposed to delegated.
In the distribution of powers between the General and State
Governments, the Constitution professes to enumerate those
assigned to the former, in whatever department they may be
vested; while the powers of the latter are reserved in general terms,
without an attempt at enumeration. It therefore raises a
presumption against the powers of the court to declare a law
unconstitutional, that the power is not enumerated among those
belonging to the judiciary. While the omission to enumerate
amongst the powers of the States, that [power] to interfere and
protect their rights, being strictly in accord with the principles on
which the framers formed the Constitution, raises not the slightest
presumption against its existence.6 5
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Central to understanding Calhoun’s nullification strategy was his shift in the
Exposition from referring to the role of the states in the creation of the compact and in the
checking federal authority to the right of one state to nullify a federal law. One of the main
themes of Madison’s form of interposition was the right of the states (through legislatures)
to act as a unified whole in arresting the progress of evil by petitioning the federal
government for relief. Indeed, Calhoun drew heavily from Madison’s Report as a
justification for protecting the states against unconstitutional intrusions.6 6 But towards the
end of the Exposition, states are replaced with state and although the phrase “nullification” is
not used, it is clear where the veto authority lies. “That there exists a case which would
justify the interposition of this State, and compel the General Government to abandon an
unconstitutional power.” South Carolina is a “sovereign party to the contract” and may
exercise a power “she conscientiously believes belongs to her, under the guarantee of the
Constitution itself, and which is essential to the preservation of her sovereignty.” Therefore,
“after due forbearance on the part of the State, that it will be her sacred duty to interpose her
veto; a duty to herself, to the Union....”6 7
The prospect of nullification loomed large as a Senate debate over the fate of public
lands (the Foote Resolution) turned into one of the most famous debates on interpretive
power. On January 21, 1830, Senator Robert Hayne of South Carolina took up the
Resolution and changed the focus to an attack on the Tariff Acts and the evils of national
consolidation. He believed that the tariffs were unconstitutional and a proper remedy lied
only in the states. He referred his critics to the Exposition, which was based on “the good
old Republican doctrine of ’98, - the doctrine of the celebrated “Virginia Resolutions.”6 8
Hayne quoted from the Virginia Report and argued that the states were the only remedy in a
case of “deliberate, palpable, and dangerous exercise” of federal power not granted by the
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parties to the compact to the federal government. Accordingly, the “Carolina doctrine” was
nothing more than the “doctrine of the Virginia Resolutions of 1798,” which was
“maintained by Virginia and Kentucky in the worst of times” (Hunter and Biddle) and which
“New England statesmen were not unwilling to adopt when they believed themselves to be
the victims of unconstitutional legislation” (Hartford).6 9 He believed that it was “utterly
subversive [to] the sovereignty and independence of the States” if the federal government,
including the Supreme Court, was the exclusive judge of the extent of its own powers.
It makes little difference.. .whether Congress or the Supreme
Court are invested with this power. If the federal government, in
all or any of its departments is to prescribe the limits of its own
authority, and the States are bound to submit to the decision, and
are not to be allowed to examine and decide for themselves when
the barriers of the Constitution shall be overleaped, this is
practically “a government without limitation of powers.”7 0
Daniel Webster’s response was geared towards defending the Court as vital to the
Union. According to Webster, the Constitution did not authorize a state, in particular, a state
legislature, to nullify a federal law. He argued that the government was not a creation of the
state legislatures, but of the people. Since it is an agent of the people, “the people alone can
control it, restrain it, modify or reform it.” “It is, sir, the people’s Constitution, the people’s
government, made for the people, made by the people, and answerable to the people. The
people of the United States have declared that this Constitution shall be the supreme law.”
Hence, state legislatures were not sovereign over the people.7 1 Webster felt that it was
impossible to live under a government of uniform laws if each state had the right to judge for
itself constitutional infractions. If each state were permitted to nullify federal laws, then the
Union would be replaced by the old Confederation. Webster pondered a possible scenario:
If South Carolina’s legislature believes the tariff laws are unconstitutional, but the
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legislatures of Pennsylvania and Kentucky suggest otherwise, “[i]s the voice of one State
conclusive,” he asks?7 2
Webster argued that the people created the Constitution in which the government’s
powers were outlined, but no limitation could be so precise as to exclude uncertainty.
Webster declared, “[w]ho, then, shall construe this grant of the people? Who shall interpret
their will, where it may be supposed they have left it doubtful? With whom do they repose
this ultimate right of deciding on the powers of the government? Sir, they have settled all
this in the fullest manner.” The “people have wisely provided in the Constitution itself, a
proper, suitable mode and tribunal for settling questions of constitutional law." In case of
state interference, Webster asked, “to whom lies the last appeal?” The answer could be
found only in the people’s will - “that the judicial power shall extend to all cases arising
under the Constitution and laws o f the United States."7 3 He concluded,
[C]ould anything have been more preposterous than to make a
government for the whole Union, and yet leave its powers subject,
not to one interpretation, but to thirteen or twenty-four
interpretations? Instead of one tribunal, established by all,
responsible to all, with power to decide for all, shall constitutional
questions be left to four- and twenty popular bodies, each at liberty
to decide for itself, and none bound to respect the decisions of
others; and each at liberty, too, to give a new construction on
every new election of its own members?7 4
On November 24, 1832, the “people of the State of South Carolina” issued an
Ordinance of Nullification and declared the Tariff Acts “null, void, and no law, nor binding
on this States, its officers or citizens.” The Ordinance also declared that any promises,
contracts, obligations and judicial proceedings made in pursuance of the act to be “utterly
null and void.” In addition, it stipulated, “no case decided by the courts of the State
regarding the Ordinance or acts of the legislature made in pursuance of it, could be appealed
to the U.S. Supreme Court.” Finally, the Ordinance provided that with the exception of
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members of the legislature, all civil and military officers were required to take an oath to
obey, enforce and execute the Ordinance.7 5 “No allegiance is due to any power or authority
but this State.”
In December 1834, the South Carolina Legislature, pursuant to an order of the
Convention, passed a law to organize the State’s military. In addition to the oaths required
by the Ordinance, the law stipulated that all officers swear their allegiance to the State.
Edward M’Cready was denied his commission as Lieutenant because he refused to take the
oath that he believed violated the South Carolina and federal constitutions. He also argued
that the Nullification Convention exceeded its authority by inserting an oath clause into the
Ordinance. M’Cready applied for a writ of mandamus commanding Colonel Hunt to deliver
the commission.
In State v. Hunt (1834), the South Carolina Court of Appeals, in a two to one
decision, struck down the law on the grounds that it was repugnant to both the state and
federal constitutions. In doing so, the Court declared the Convention itself void by
delineating the limits of popular sovereignty as expressed in conventions. The South
Carolina Convention was established by an act of the legislature "to consider and report
thereon, on violations of the Constitution of the United States, in the enactment by Congress
on divers occasions of laws laying duties and imposts for the purpose of encouraging and
protecting domestic manufacturers, and for other unwarrantable purposes.” In Hunt,
M’Cready’s lawyers argued that the oath was unconstitutional because the Convention went
beyond the instructions provided for in the Act. At stake was how much power the people
possessed when they acted in institutions separate from the government. Attorney Grimke
denied that the people possessed unlimited power. Of the power they did possess, however,
he argued that it was impossible for the people to transfer all their power to the Convention.
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Furthermore, the people could not authorize the Convention to violate the Constitution of the
United States by altering the State’s Constitution, thereby putting it at the mercy of the
Convention. The Convention was called to consider and nullify the Tariff Acts, not to
amend the state and federal constitutions, or to authorize the legislature to do so.
To entitle the Convention to transcend [their] commission, and to
exercise the power of altering, suspending or repealing any part of
the State or National Constitution, they must show the authority,
not by speculative reasoning on the powers of a convention, but by
practical proofs, and a clear, specific delegation of such a power.
Such proofs, such a delegation, they cannot show.7 6
On the other side, Attorney Finley believed that it was “paradoxical to hold that the
authority of the convention of the people could be restrained by the constitution, which was
but an emanation of that authority.” He believed that the government’s power “was derived
from no other sources than conventions of the people.” Finley rejected the contention that
the sovereign people could not delegate power to the legislature. “If a convention of the
people,” he asked, “was incompetent to delegate power to the legislature, then what becomes
of our State government - what of the federal government?”7 7
The role of the judiciary in resolving this dispute was also a point of contention. Did
the judiciary have the right to pass judgment upon the prerogative of the sovereign as
expressed in conventions? Grimke reminded the Court that by creating an independent
judiciary, the people had parted with their sovereignty. The people declared that “in any
controversy between themselves and a citizen, that the Court shall be the interpreter of their
will; shall reconcile the various declarations of that will, if they can be made consistent [and]
shall decide to be null and void, any declaration of that will which they themselves have
established as subordinate, if it conflict with that they have ordained as the supreme
declaration of that will.” Hence, the Court had the authority to sit in judgment of the
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Ordinance because it conflicted with the supreme laws of the land - the constitutions of
South Carolina and the Union:
When the people of South Carolina elected you as their judges,
they declared to you, while the Constitution of the United States
shall continue the Constitution of South Carolina, we ordain that it
shall be superior to our separate will, however the same may be
declared; we have acknowledged it to be the supreme law of our
land; and we have solemnly agreed that the “judges in every State
shall be bound thereby, any thing in the constitution or laws of any
State to the contrary notwithstanding.” We exact of you an oath to
support that constitution, and we therefore empower and command
you to administer it frankly and fearlessly against any separate act
of our own will, repugnant to its supremacy.7 8
Judge O’Neall ruled that the Convention had exceeded its authority by inserting the
allegiance clause. The Convention was called to consider only the Tariff Acts. “The People
elected delegates in reference to this call; it was not contemplated that they should do any act
which was not necessary to give effect to the object and purpose of the people.”7 9 Judge
Johnson also believed that “the convention had no authority to empower the legislature to
prescribe an oath of allegiance.” “In the appointment of delegates to that convention,” he
wrote, “the people acted upon the faith that they were to be charged with those duties and no
others, and the assumption of any other powers than those necessary to the attainment of the
objects in view, would have been a violation of the trust reposed in them, and an usurpation
of the rights of the people.”8 0 Even Judge Harper, who dissented, admitted that the
Convention had exceeded its authority. “Certainly the convention was not the people for any
other purpose than that for which the people elected and delegated to them.”8 1
The Hunt case represented a judicial check on both the legislature and the
convention. The Court did not comment on the constitutionality of nullification, nor did it
minimize the interpretive role of conventions. Rather, the Court argued that a convention of
the people was still bound by the supreme will of the people (the constitution). In doing so,
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however, the Court asserted its authority to make that determination, thereby taking the
institutionalization of popular sovereignty further to include not only legislatures, but also
conventions.
The final aspect of this interpretive struggle involved the rejection of nullification
throughout the country. Andrew Jackson, one of the strongest advocates of states’ rights,
was also one of the most ardent critics of nullification.8 2 Northern and southern states issued
resolves condemning the Ordinance and pronouncing the remedy as destructive to the
Union.8 3 Even Georgia, who was currently waging war against the national government,
found itself struggling to find its way in the crisis.8 4 It was one thing to be a supporter of
states’ rights, but the right of a single state to nullify a federal law and even withdraw from
the Union, was not part of the movement. Many states’ rights advocates believed in the
compact theory, but they did not subscribe to nullification. Virginia affirmed her
commitment to the Resolutions of 1798 as the “true interpretation of the Constitution of the
United States,’’ but she did not consider the Resolutions “as sanctioning the proceedings of
South Carolina, indicated in her said Ordinance.”8 5 What is ironic about many of these
resolves is that they were issued by states with long histories of resistance to federal, in
particular, judicial authority. Even as Ohio’s courts were entertaining nullifying tendencies,
her legislature expressed regret at the actions of South Carolina but pronounced, “the only
legitimate remedy is in the wise and faithful exercise of elective franchise, and the solemn
responsibility of the public agents.”8 6 In short, state assertions of interpretive authority were
not supported by other states, unless of course, those states had a vested interest in the
outcome. The institutionalization of popular sovereignty in one institution or another was
pursued only to the extent that it supported a particular point of view.
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But which state institution would be the nullifying agent? Both Hayne and Webster
concentrated on the role state legislatures in the nullification process. During the debates
over the Kentucky and Virginia Resolutions, one of the key points of contention was
whether state legislatures would be the nullifying agents (Jefferson) or whether they were a
means by which states could voice opposition to the federal laws (Madison). Madison did
not believe that state legislatures, let alone the legislature of one state, had the right to nullify
federal laws. In 1836, John Quincy Adams also objected to the possibility of state
legislatures voiding federal laws. In a letter to Governor Edward Everett of Massachusetts,
he argued that “the People of no one State in the Union, have ever delegated, nor had the
People of any one State the right or power to delegate to their Legislature the authority to
declare an act of Congress unconstitutional.” 8 7
The nullifiers believed that since the Constitution did not provide for an independent
arbiter to settle disputes between the states and the federal government, only the parties to
the constitutional compact (the states) could judge the extent of constitutional infractions.
Keith Whittington argues that for the nullifiers, “federal-state relations required political, not
legal, settlements.”8 8 The nullifiers put forth a political construction of the Constitution to
justify their actions. Webster was concerned with a legal/judicial reading of the
Constitution. He believed that once the people created the Constitution, their work was over.
Their will was fixed in stone; all that was necessary was a judicial interpretation of the
document to “discover” its pre-determined meaning.8 9 By contrast, the nullifiers took
advantage of the fact that the Constitution was not a fixed document, and could be
constructed to justify political action. The nullifiers looked to external factors (economic,
political, institutional) to construct their meaning of the Constitution. There was no
provision in the text that prohibited tariffs. Yet, this did not stop the nullifiers from
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constructing the Constitution to prohibit them. Furthermore, it was the Court’s “attempt to
monopolize constitutional discourse while favoring expansive readings of congressional
powers...” that led the nullifiers to put forth a different construction of the Constitution.
Whittington continues,
Nullification was constitutional because it was a necessary
political tool. Radical federalism was proper because
contemporary federal actions undercut the political influence of
the states. The protective tariff was unconstitutional because of
the array of economic and political interests in the nation, and it
could become constitutional if those interests changed.9 0
The net result of this construction was a change in constitutional meaning that had no
bearing on the text of the Constitution, but nonetheless had a profound impact on scope of
political and constitutional discourse in the years leading up to the Civil War.
From the theory of nullification emerged the theory of secession as the compact
theory and the principles of state sovereignty were revived as a justification for the South to
secede from the Union. The states as sovereign and independent entities, had not
surrendered their sovereignty when they joined the Union. The right to secede was not a
constitutional right, but a right that emanated from their sovereignty and the nature of the
federal compact.9 1 On December 20, 1860, South Carolina was the first state to issue an
ordinance of secession. By the following February, six others joined the cause.9 2 Jesse
Carpenter notes that the South developed five justifications for secession. First, since there
was no common arbiter to settle disputes between the parties of the compact, each party had
the right to determine if its interests had violated to justify secession. This rationale was
aimed at negating the power of the Supreme Court as the final arbiter of constitutional
disputes. As William Porter proclaimed, if a State “conceives herself aggrieved beyond
endurance, [she] may, at her sovereign will and pleasure, shake off the bonds of a broken
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covenant and seek her safety in a separate nationality.”9 3 Second, if one member failed to
live up to the terms of the compact, then all other members were released from the compact.
Third, the federal compact had no legal existence since the parties never agreed on its nature
or meanings. Fourth, a party may withdraw from a compact if reservations were made to
that end at the time of its acceptance. Finally, the Tenth Amendment reserves to the states
the power to withdraw from the partnership.9 4
Even in the midst of this emerging distinct southern and sectional constitutional
thought that had developed during antebellum America, there was a hidden agenda of
nationalism. The doctrine of states’ rights was premised upon the importance of local
autonomy and the minimization of federal authority. The South needed to protect itself from
the increasing consolidation of the national government. Secession should have been the
inevitable outcome. But as Arthur Bestor argued, “secession was the alternative not the
purposed outcome of, the constitutional program of slavery that pro-slavery forces
advocated, in the name of state sovereignty....”9 3 The South needed the Constitution to
protect slavery. Their nationalism, however, was simply “sectionalism in disguise”9 6 Yet it
was the federal Congress with its Fugitive Slave Acts and the federal judiciary’s decision in
Dred Scott that gave the South its strongest constitutional ammunition.
Claims of interpretive authority by the states were premised upon the compact
theory of constitutional construction. The states, which were parties to the compact, had the
right to determine the extent of power exercised by the creations of the compact, the
institutions of the federal government. The theory supposed the superiority of the states over
the federal government. The states, however, had no problem supporting the federal
government, including the courts, when it suited their particular interests. This switching of
allegiance was made possible by the division of popular sovereignty even in the midst of
assertions of unified (state) sovereignty.
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Executive Interposition
As the federal and state governments vied for the right to interpret, a different
battle was taking place at the federal level as the three branches struggled for interpretive
power. The framers of the Constitution designed a system in which the legislative,
executive, and judicial departments were coordinate with one another and neither could
claim supremacy over the other. As Madison wrote in Federalist 49, “the several
departments being perfectly co-ordinate by the terms of their common commission, neither
of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries
between their respective powers.”9 7
Jefferson’s theory of departmentalism was based on the right of each coordinate
branch of the federal government to interpret the Constitution within its own separate
constitutional jurisdiction. Andrew Jackson’s war against the Bank, his defiance of the
Court in the Cherokee Indian cases, and his attitude towards nullification, all of which took
place around the same time period, are examples of coordinate executive review. Jackson’s
hatred of the Bank stemmed from his belief that the Bank catered to the interests of the few
at the expense of the many. Although the Second Bank of the United States was not due to
expire until 1836, in 1832, Congress, fully aware of Jackson’s intentions to kill the Bank,
rechartered it hoping to back the President into a comer in the upcoming election. On July
10,1832, Jackson vetoed the Bank.9 8 Jackson’s message was primarily devoted to
condemning the Bank as a device for the wealthy few, but he also asserted his right to
engage in the interpretive process. Jackson began his argument by denying that the
Supreme Court had the final say over the constitutionality of the Bank. However, instead of
asserting a President’s right to interpret with finality, Jackson argued that each branch of the
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government had the right to interpret, but that no branch had the right to impose its
interpretation on the other.
If the opinion of the Supreme Court covered the whole ground of
this act, its not to control the coordinate authorities of this
Government. The Congress, the Executive, and the Court must
each for itself be guided by its own opinion of the Constitution.
Each public officer who takes an oath to support the Constitution
swears that he will support it as he understands it, and not as it is
understood by others.
The Constitution allows the President to participate in the interpretive process
through the veto power. For Jackson, the veto power allowed him to declare a law
unconstitutional.1 0 0 But the Constitution also endows Congress and the federal judiciary
with interpretive power through the exercise of their ordinary constitutional duties.
Accordingly, the President has as much of a duty as Congress and the Court to prevent
encroachments on the Constitution. Jackson recognized this and made it clear that no branch
had the right to control the other.
Its is as much the duty of the House of Representatives, of the
Senate, and of the President to decide upon the constitutionality of
any bill or resolution which may be presented to them for passage
or approval as it is of the supreme judges when it may be brought
before them for judicial decision. The opinion of the judges has
no more authority over Congress than the opinion of Congress has
over the judges, and on that point the President is independent of
both. The authority of the Supreme Court must not, therefore be
permitted to control the Congress or the Executive when acting in
their legislative capacities, but to have only such influence as the
force of their reasoning may deserve.1 0 1
The veto power not only gave the President interpretive authority, but the right to
participate in the legislative process. Upon passage of the Bank bill, Congress determined
that it was acting within the confines of the Necessary and Proper Clause. In McCulloch, the
Court affirmed this interpretation. By vetoing the Bank’s recharter, Jackson asserted his
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right to constitutionally determine what constituted a necessary and proper exercise of
governmental power. “It is the exclusive province of Congress and the President to decide
whether the particular features of this act are necessary and proper in order to enable the
bank to perform conveniently and efficiently the public duties assigned to it as a fiscal
agent.”1 0 2 Jackson found that a Bank that catered to the interests of the wealthy few was not
necessary and proper for the government to function.
The potential for a presidential showdown with the Court came in the aftermath of
Worcester v. Georgia when Jackson was reported to have said, “Well. John Marshall has
made his decision, now let him enforce it.” There is, however, some doubt as to whether
Jackson made this statement because he was not called upon to enforce the decision. The
Worcester decree was not directed at the President, but at Georgia, which was ordered to
reverse its original decision and release the missionaries.1 0 3 This alleged statement could not
be divorced from the fact that Jackson was simultaneously waging a war against the Bank,
which did not fare well with his political enemies. The doubts over whether Jackson would
enforce a decision of the Court stemmed not from any sympathy for the Court, but from
hatred of Jackson and his financial policies, as these attacks came from supporters of the
Bank.1 0 4 Two additional elements bolstered criticism against Jackson - the debate in
Congress over the repeal of the 25th section of the Judiciary Act and Jackson’s Veto Message
in which he supposedly assailed the Court. The former, proved unsuccessful and various
statements in the latter were misconstrued as expressions of defiance. When Jackson argued
that a decision of the Court “ought not to control the coordinate authorities of this
Government,” he was not declaring his right to refuse to enforce McCulloch (and by
implication, Worcester). Rather, he refused to accept the fact that the Court had the final say
over the constitutionality of the Bank. Jackson recognized the pivotal role that each
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department played in the interpretive process and as a member of a coordinate branch of the
government he asserted his constitutional authority under Article II (the veto power) to
independently comment on the Bank’s constitutionality.1 0 5
As President, Jackson did not accept judicial decisions as binding precedent, yet he
refused to extend this same right to the states during the Nullification Crisis. This is despite
the fact that Jackson was sympathetic to the interests of the states. Yet his support for the
tariff and his opposition to nullification coupled with his animosity towards Vice-president
Calhoun made it possible for him to take a strong nationalist position. The stalemate over
the release of the missionaries, however, was overshadowed by the passage of South
Carolina’s Ordinance of Nullification, which forced the Administration to quell the
controversy between Georgia and the Court and focus solely on isolating South Carolina.1 0 6
Jackson responded to the Ordinance by issuing a special Proclamation calling the idea that a
single state could annul a federal law “incompatible with the existence of the Union” and
“contradicted expressly by the letter of the Constitution.” The Constitution provided only
two avenues of appeal from unconstitutional legislation: the judiciary or an appeal to the
people of the states for a constitutional amendment.1 0 7
Jackson took aim at the provision in the Ordinance denying the Supreme Court the
power to review state laws or the court decisions made in pursuance of the Ordinance. He
believed that nullification threatened the supremacy of Constitution and the laws and treaties
arising under it. More significantly, the one time opponent of the Judiciary Act of 1789
affirmed one of its central tenants - the 25th section.
The Constitution declares that the judicial powers of the United
States extend to cases arising under the laws of the United States,
and that such laws, the Constitution, and treaties shall be
paramount to the State constitutions and laws. The judiciary act
prescribes the mode by which the case may be brought before a
court of the United States by appeal when a State tribunal shall
decide against this provision in the Constitution.1 0 8
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It seemed contradictory for Jackson to support Georgia’s resistance to the Court but
support it when it came to South Carolina. Yet, this is not surprising considering that the
Framers made it possible for a President to divide his allegiance depending on the issue.
More realistically, Jackson’s actions during this Nullification Crisis confirmed his
commitment to departmentalism. In a letter to Hayne in 1831, Jackson wrote:
But how I ask, is this to be effected? certainly not by conceding to
one state authority to declare an act of Congress void, and meet all
the consequences and hazards that such a course would produce,
far from it; there is a better remedy, one which has heretofore
proved successful in the worst of times, and all must admit its
power. If Congress, and the Executive, feeling power, and
forgetting right, shall overleap the powers the Constitution bestow,
and extend their sanction to laws which the power granted to them
does not permit, the remedy is with the people - not by avowed
opposition - not thro open and direct resistance, but thro the more
peaceful and reasonable course of submitting the whole matter to
them at their elections, and they by their free suffrage at the polls,
will always in the end, bring about the repeal of any obnoxious
laws which violate the constitution.1 0 9
One of the central tenants of departmentalism is the power of the people as electors to place
limits on institutional authority. But there is a key phrase in this statement that must not be
overlooked. Jackson writes, “if Congress, and the Executive... overleap the powers the
Constitution bestow(s)...”, a rightful remedy (resort to the polls) is in order. When a court
strikes down a law, it is common to say that it has voided an act of Congress. Jackson’s
inclusion of the word, “executive,” was not meant to be a lesson in civics (i.e., for a bill to
become a law, the president must agree). Rather, it was recognition that the president was an
equal partner in the lawmaking and interpretive process. By signing a bill into law, the
president exercises his constitutional right not to use the veto power, which is an exercise of
constitutional interpretation.
hi his Farewell Address, Jackson made reference to the pivotal role that the judiciary
and the people play in correcting legislative abuses.
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Unconstitutional or oppressive laws may no doubt be passed by
Congress... if they are within the research of judicial authority, the
remedy is easy and peaceful; and if, from the character of the law,
it is an abuse of power not within the reach of the judiciary, then
free discussion and calm appeals to reason and to the justice of the
people will not fail to redress the wrong.1 1 0
Far from denying the existence of judicial power in the interpretive scheme, Jackson
recognized that in cases that are “within the reach of judicial authority,” (a case or
controversy under Article m), the courts rule. But in other instances, the people as electors
have the final say in instructing their members of Congress to repeal an unconstitutional law.
In the end, it was Jackson’s defense of the controversial 25lh section of the Judiciary
Act in the midst of a constitutional crisis that actually (and ironically) confirmed his support
of the federal judiciary and its role in sustaining the Union. As Richard Longaker writes,
In the final analysis, Jackson’s defense of the Judiciary Act of
1789 - the cornerstone of the federal judicial power- was possibly
more important than his record of defiance and independence.
While affirming the role of the judiciary in maintaining the
integrity of the Union, Jackson rose above narrow partisanship and
dissolved some of the odium associated with his defiance of the
Supreme Court in the Georgia controversy."1
The Move Towards Judicial Reform
The struggle over interpretive authority between the states and the federal courts
made its way into Congress. Between 1807 and 1837, attempts were made to reorganize the
federal judiciary to benefit the newer, western states by making them more representative."2
The battle heated up after a series of Supreme Court decisions that stripped the states of their
power. McCulloch for example “hit southern sensibilities like a firebomb” and led to the
development of southern constitutionalism."3 Warren argues that the ““disastrous”
decisions of the Court in Cohens v. Virginia and Green v. Biddle in 1821 gave rise to the
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first concrete proposal made in Congress for curbing the power of the Court.. 14 On
December 12,1821, Senator Johnson (Kentucky) proposed an amendment giving the Senate
appellate jurisdiction in all cases in which a state had an interest in a controversy pending in
the federal courts.1 1 5 Two years later, Johnson, alluding to the “tremendous evils [that]
might result to the country... from the powers imparted to its judiciary,” proposed a
resolution increasing the number of circuit courts as well as an amendment to the Judiciary
Act “requiring] the concurrence of at least seven judges in any opinion, which may involve
the validity of the laws of the United States, or the States, respectively.”" 6
On May 17,1824, the House resolved itself into a Committee of the Whole to
discuss Biddle and a proposal by Representative Letcher (Kentucky) which held that “in
cases involving the validity of a state constitution or a state law, [five] justices shall concur
in pronouncing such part of the said constitution or act to be invalid; and that, without the
concurrence of that number of said justices, the part of the constitution, or act of the
legislature... shall not be deemed... invalid.”" 7 Letcher was concerned with the fact that
only three out of the seven justices constituted the opinion of the Court. His colleague,
Charles Wickliffe concurred even though he admitted that the Biddle Court had a legitimate
claim to jurisdiction.
I have said, the power to decide upon Constitutional questions,
involving the validity of the laws or constitution of a State,
appertain to the court. Yes, sir, they have the power, not only to
fritter down the sovereignty of the State governments, but to set at
defiance the legislative powers of Congress. It is necessary that
the power to decide upon Constitutional law, should be vested in
the judiciary; and it is the duty of the Representatives of the people
to watch with a vigilant eye its exercise. I do not mean to say, that
the power, in this case, has been intentionally abused. Its exercise,
however, by a minority of the court, has spread dismay over the
whole State."8
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Had the Biddle Court been unanimous, or at least had the support of five justices,
would Kentucky have felt differently about a decision that was destructive of state authority?
Were members of Congress, with sympathetic tendencies towards the states, willing to
require that five out of the seven justices concur in striking down an act of Congress? As
Warren argues, “no one pointed out, in debate, that to require five out of seven Judges to
concur in holding an Act of Congress invalid meant that a minority of the Court, i.e., three
out of seven Judges, would thus be enabled to hold such an Act valid.”" 9 The fact that a
minority of judges could uphold the validity of a federal law was equally destructive to the
states as a minority of the Court nullifying a state law.
There is an interesting twist to this story and it involves Virginia’s response to
Biddle. When the Court ruled against Virginia (Hunter's Lessee and Cohens), she was not
shy about decrying the consolidating tendencies of the Supreme Court by carrying the
mantle of state sovereignty. Even when Virginia was not a party to the suit (McCulloch),
prominent Virginians such as Spencer Roane and John Taylor, criticized the Court’s
construction of the Necessary and Proper Clause.1 2 0 Yet, on other occasions, Virginia was
not willing to extend her support to the states’ rights cause. Virginia formally disproved of
the resolutions passed by the Pennsylvania legislature in response to the Peters case. With
respect to the proposed amendment for an impartial tribunal, she responded: “[We]are of
the opinion that a tribunal is already provided by the constitution of the United States, to wit:
the Supreme Court, more eminently qualified from their habits and duties, from the mode of
their selection, and from the tenure of their offices, to decide the disputes aforesaid in an
enlightened and impartial manner, than any other tribunal which could be erected.”1 2 1 And
when Virginia (as in Biddle) was a winning party to the suit, she embraced the decision of
the Supreme Court, hi an 1823 letter to a friend, Henry Clay wrote:
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When, in the case of Cohens v. Virginia, her authority was alone
concerned, she made the most strenuous effort against the exercise
of that power by the Supreme Court. But when the thunders of that
Court were directed against poor Kentucky, in vain did she invoke
Virginian aid. It has so decided; and, in effect, cripples the
sovereign power of the State of Kentucky more than any other
measure ever affected the independence of any State in the Union;
and not a Virginia voice is heard against this decision.1 2 2
As Charles Warren writes, “State opposition to judicial action depended, not so much on the
particular theory held by the States, as on the particular interest aided or injured.”1 2 3
On April 26, 1822, Mr. Stevenson (Virginia) submitted a resolution in the House
instructing the Judiciary Committee to “prepare and report a bill repealing the 25th section of
the [judiciaryjact.”1 2 4 Similarly, five months before he gave his moderate “defense” of the
Biddle Court, Wickliffe proposed an inquiry “into the expediency of repealing the 25th
section of the act to establish the Judicial Courts of the United States....” 1 2 5 Nothing came
of these proposals until 1830 when the Court handed down Craig v. Missouri. In Craig, the
Court invoked it’s jurisdiction under the 23th section and struck down a Missouri law
providing for the establishment of loan offices since promissory notes issued under the law
violated the constitutional ban on bills of credit.1 2 6 Mr. Sheffey, the plaintiffs attorney,
extolled the virtues of the 23th section.
[Plaintiff] argued, that this case comes fully within the purpose,
spirit, and letter of the twenty-fifth section of the judiciary act of
1789. The purpose of that section was, to place within the
revising, controlling, and correcting power of the supreme court of
the United States, any violations of the constitution of the United
States, or of treaties by state legislation. The harmony of the
government, its equal operation, the preservation of its
fundamental principles, the peace of the nation, rest securely upon
the execution of this power of the supreme court.1 2 7
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Sheffey invoked popular sovereignty as union as a justification for federal court review of
state court actions. ‘T o keep the constitution perfect, and preserve it as a government for
“the whole people, the twenty-fifth section of the judiciary law of 1789 was enacted.”1 2 8
The 25d > section came under attack immediately following the decision. As Warren
argues, this movement for repeal represented “the most determined and the most dangerous
attack on the Supreme Court and its jurisdiction under the 25th Section.”1 2 9 The movement
to repeal the section also came on the heels of two other major controversies - the Cherokee
Indian affair and Nullification.1 3 0 On January 24, 1831, Mr. Davis (South Carolina),
submitted a report of the majority of the Judiciary Committee calling for the repeal of the
25th section of the Judiciary Act. Davis invoked the Kentucky and Virginia Resolutions and
the compact theory to argue that Congress did not have the power to enact the 2Slh section
since it “is not expressed in the constitution of the United States, nor properly an incident to
any express power, and necessary to its execution.” Furthermore, if the Supreme Court
continued to exercise authority under the 25th section, it would raise the judiciary “above the
authority of the sovereign parties to the constitution....”1 3 1 He also commented on the scope
of judicial power by distinguishing between federal and state jurisdictions, noting that the
Constitution vested judicial power only in the former. “The constitution not only invests the
whole judicial power of the United States in two specified tribunals, but also prescribes and
declares the duties, and rights, and tenure of office of the judges who shall constitute them;
not one of which is applicable to the courts or judges of State courts.”1 3 2
James Buchanan (Pennsylvania), who is credited with preventing the repeal of the
25th section, authored the minority response.1 3 3 In a strongly worded defense of the federal
judiciary and popular sovereignty as Union, Buchanan advanced reasons why the 25lh
section should not be repealed. First, it protected individual rights by allowing citizens
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whose rights clashed with the states an avenue of appeal devoid of local prejudices. Second,
without the 25th section, “there would be no uniformity in the construction and
administration of the constitution, laws, and treaties of the United States.” Finally, if each
state court could decide in the last resort cases arising under the Constitution, the fate of the
Union would be in jeopardy.
If this section were repealed, the General Government would be
deprived of the power, by means of its own judiciary, to give
effect either to the constitution which called it into existence, or to
the laws and treaties made under its authority. It would be
compelled to submit, in many important cases, to the decisions of
State courts; and thus the very evil which the present constitution
was intended to prevent would be entailed upon the people. The
judiciary of the States might refuse to carry into effect the laws of
the United States; and without an appeal to the Supreme Court
which the 25th section authorizes, these laws would thus be
entirely annulled, and could not be executed without a resort to
force.1 3 4
The Senate postponed consideration of the bill because of disagreement over
whether Buchanan could present his minority report before the reading of the bill (that
accompanied the majority report) and Judge Peck’s pending impeachment in the Senate.1 3 3
The following day, Mr. Doddridge (Virginia) withdrew his earlier objection to the reading of
the bill and members debated whether a Committee of the Whole or the entire House should
take up the bill. Many members, including Buchanan favored the latter since it would delay
consideration of the bill for one week, thereby giving each member the opportunity to
express an opinion on the subject. Buchanan was interested in this prospect since it would
allow him to submit the minority report before debate began. At the end of the morning
session, the House ordered that both the majority and minority reports be printed and
publicly distributed.1 3 6 The House did not debate the issue further and on January 29, Mr.
Dwight (Massachusetts) submitted the following motion: “Shall the bill [repealing the 25th
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section of the Judiciary Act] be rejected?” The vote was 138 to SI in the affirmative.1 3 7 The
day before, Mr. Lecompte (Kentucky) asked the Committee on the Judiciary to “inquire into
the expediency of amending the constitution of the United States, so that judges of the
Supreme Court and of the inferior courts shall hold their respective offices for a term of
years.” The House overwhelmingly voted to reject consideration of the proposal.1 3 8
The IS* section may have been spared, but state supreme court jurists (i.e., in Ohio)
continued to defy it. Nor did this victory hamper the contest over interpretation as
institutional actors continued to invoke their right to interpret. During these controversies,
one of the most divisive battles over interpretation came to light. Indeed, the battle over
constitutional interpretation spilled over into the issue that plunged the nation into the Civil
War - slavery. This struggle involved the President, Congress, the federal and state
judiciaries, and state and territorial legislatures all vying for interpretive authority by
invoking alternative models of popular sovereignty as a justification.
Interposition and Slavery
The controversy over slavery as an interpretive issue had its roots in the battle over
the creation of territorial governments and the status of slavery in the territories. Which
institution had the authority to determine whether slavery would be permitted in the
territories - Congress, the States, the courts, in particular, the Supreme Court, or the people
of territories themselves? In the end, the Court issued three important opinions, Prigg v.
Pennsylvania (1842), Dred Scott v. Sanford (1857), and Abelman v. Booth (1858), all of
which were favorable to slave interests. This had the effect of initiating a dramatic change
of opinion about the Court as the final arbiter of constitutional disputes. Indeed, by the time
the Court handed down Dred Scott, the South, which had been hostile to the finality of the
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Court’s decisions, was more than willing to support the decision. The North, which took
pride in the finality of the Court’s decisions, refused to accept the finality of the decision.
Similarly, the Court’s decision in the Booth cases, served to dispel the myth that only the
South exhibited hostility towards the Court.
Hints of this switch were evident after Court’s decision in Prigg v. Pennsylvania. At
stake in Prigg was the constitutionality of Pennsylvania’s Personal Liberty Law, which set
up certain procedures for the removal of blacks from the state. In striking down the law,
Justice Joseph Story ruled that the Fugitive Slave Clause of the Constitution “manifestly
contemplates the existence of a positive, unqualified right on the part of the owner of a slave,
which no state law or regulation can in any way qualify, regulate, control or restrain.”1 3 9
Story put forth what amounted to a proslavery opinion couched in the language of
nationalism.1 4 0 His opinion can be viewed in light of Marshall’s attempt to strengthen
national power at the expense of the states. But a “defeat” for states’ rights was in reality a
victory for the proslavery south. As Paul Finkelman writes, “the nationalization of power in
the 1840s meant strengthening southern slaveholders and their proslavery northern
doughface allies.”1 4 1
In Dred Scott v. Sanford, the Court ruled that Dred Scott was not a citizen of the
United States and thus, he could not sue in federal court. In addition, the Court ruled that
Congress had no constitutional authority to prohibit slavery in the territories and for the
second time in its history, the Court declared part of an act of Congress (the Missouri
Compromise) unconstitutional.1 4 2 Whereas Prigg was premised upon an expansive role for
the national government (in particular Congress) over the question of slavery, Dred Scott
effectively removed Congress from the equation, but nonetheless kept the federal
Constitution on the side of slavery. This, despite the fact that the slavery dispute was
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relegated to the state level. Although both decisions were “nationalistic,” they were clearly
were favorable to proslavery interests, making southern support of the Supreme Court easier
to understand.
Dred Scott is important not only because of what the Court said, but also for the
events that took place behind the scenes before and after the decision. There is evidence to
suggest that Buchanan was aware of the outcome in the case. One month prior to the
decision, Buchanan had written exchanges with Justice Catron and Grier on whether the
Court the court should rule on the constitutionality of the Missouri Compromise.1 4 3 On
March 4 , 18S7, two days before the Dred Scott opinion was issued President -elect James
Buchanan delivered his First Inaugural Address in which he sought to settle the question of
the status of slavery in the territories.
This is, happily, a matter of but little practical importance.
Besides, it is a judicial question, which legitimately belongs to the
Supreme Court of the United States, before whom it is now
pending, and will, it is understood, be speedily and finally settled.
To their decision, in common with all good citizens, I shall
cheerfully submit, whatever this may be.1 4 4
The struggle over interpretation began one month prior to the ruling in Dred Scott
when on January 12, 1857 Benjamin Stanton of Ohio introduced resolutions in the House
calling for the creation of additional circuit districts to correct the problem of unequal
representation of many states. He believed that since “the Supreme Court is the ultimate
arbiter of all questions arising under the Constitution and laws of the United States,” it
“should be so constituted as to command the confidence of the whole people in all sections
of the country.” As long as the Court was fairly constituted, Stanton admitted that he would
“not resist the decision on the Court in any case,” including Dred Scott. He believed that the
Supreme Court was the final arbiter of disputes “because there is no appeal from it.” But in
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the spirit of Madison and others who invoked the “Doctrines of ’98,’” Stanton noted that he
would not accept a decision that was in “plain, palpable, and deliberate violation of the
Constitution.” Hence, any decision that stipulates that Congress had no power over the
territories would be a “plain, palpable, and deliberate violation of the Constitution” and
therefore “not entitled to the respect or obedience of the State Courts.”1 4 5
After Dred Scott, most Republicans in Congress denounced the decision as a
conspiracy manufactured by Buchanan and the Court, while most Democrats praised the
decision and the role of the Court as the ultimate arbiter of constitutional controversies.
Senator Seward (New York) spoke of a conspiracy between Buchanan and the Court to
ensure that Dred Scott was denied his day in court and that the Court would strike down the
Missouri Compromise.1 4 6 Senator Fessenden (Maine) cited the decision of the Georgia
Supreme Court in Padelford v. Georgia as an example of state court resistance to federal
court decisions. He branded the Court’s decision as one based “assumptions” and “bad
logic.”1 4 7 Senator Hale (New Hampshire) accused the Court of coming “down from their
bench, go[ing] into the political arena, and commenc[ing] their career by declaring that the
right to hold and trade their slaves, at the time of the adoption of the Constitution, was so
universally recognized and practiced upon, that no man thought of questioning it.”1 4 8
Representative Giddings (Ohio) asked to submit a resolution scolding the Court for
“disregarding” the Declaration of Independence. Not surprisingly, Mr. Letcher (Kentucky, a
slave state), who had earlier led the fight to curb the Court’s power when Kentucky’s
interests were affected (i.e., in Biddle), objected to the resolution.1 4 9
Some members of Congress chastised the Court for making a determination on the
scope of Congress’s power over the territories even though the matter was not before them.
“Am I,” Fessenden asked, “bound to follow out a set of opinions that may be advanced by
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any set of judges in any court simply because after they have decided a case, they undertake
to give their opinions?” He continued: “When they undertake to give opinions on unilateral
matters which are not involved in their decision, and they are not called upon to decide
them... their opinions are of no value.” 1 5 0 Senator Hamlin (Ohio) was also critical of the
Court that first denied that it jurisdiction to hear a case, but nonetheless rendered a decision.
This opinion of the court- mark the word I use; I do not call it the
decision of the court, for I regard it only as the opinion of the
judges individually - is given upon a question which they tell us
gravely is not before them. They erect a structure for which they
have no foundation. They gravely and judicially tell us that they
have no jurisdiction of the matter, and they volunteer an opinion as
to what they would decide, if the question was before them.1 5 1
Hamlin also argued that the Court exceeded its authority by deciding a question of a purely
political nature, which was best left to Congress as a coordinate branch to decide.
They had no more authority to decide a political question for us,
than we had to decide a judicial question for them. Keep each
branch of the Government within the sphere of its own duties. We
make laws, they interpret them; but it is not for them to tell us
what are the limits within which we shall confine ourselves in our
action; or, in other words, what is a political constitutional right of
this body, any more than it is for us to tell them what is a judicial
right that belongs to them. Of all despotisms upon earth, the
despotism of a judiciary is the worst.1 5 2
Senator Collamer (Vermont) did not deny that the Court could hear cases before
them, but in the case of Dred Scott, he branded the Court for acting in an “extra-judicial”
manner even when the Court admitted that there was no case to consider.
What is that decision? Is there anything authoritative in it? The
Supreme Court had a case before them. The court decided... that
they had no sort of jurisdiction of the case, and ordered it to be
dismissed.... How came they, then, to have authority to make a
decision? They had no authority, no jurisdiction, or the case.
They said they had not. Clearly, whatever else they said was
extra-judicial.1 5 3
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Mr. Bliss (Ohio) argued that as a member of Congress, his oath to support the
Constitution meant that he had an equal right to interpret the Constitution as he understood
it, not as it was understood and interpreted by others.
But I do not rely upon the opinions of the judges of the Supreme
Court of the United States for my construction of the Federal
Constitution. And may I say further, as we hear day after day the
opinions of the Supreme Court quoted in the Congress of the
United States, and are called upon from day to day to conform our
opinions upon political question to theirs, that I do not regard them
as authority on any political question. I claim that as I have taken
the same oath to support the Constitution of the United States that
they have taken, in all cases within my official duty I am bound to
interpret the Constitution as I understand it. I will respect, I will
give great weight to, the opinions of the higher courts of any State,
and especially of the United States: and, so far as my judgment
and my obligation to my oath will permit me, I will respect and
conform to their opinions: but when I reflect that the Supreme
Court, or its judges upon the circuit, sanctioned the alien and
sedition laws, that it sustained the constitutionality of the United
States Bank, and that it has sanctioned every other usurpation of
power by the Federal Government, I must be false to all my
convictions if I yield to those opinions to the convictions of men
who have no more right to construe the Constitution for me as a
legislator than I have for them as judges.1 5 4
On the Democratic side, Senator Douglas (Illinois) insisted that members of
Congress were bound by the decision irrespective of their previous opinions on the subject.
He referred to Court as “highest judicial tribunal on earth” and proclaimed that “whatever
may have been our individual opinions previously,” the decision was binding. Senator
Benjamin (Louisiana) noted that it was the Northern Senators who insisted on including an
appeal to the Supreme Court in the compromise measures involving the territories. Yet,
after Dred Scott, “an attempt is made to go back on the interpretation of the Kansas act, and
then, when that fails, to question the authority of that tribunal whose right to decide in the
last resort has never before been questioned in this country.” Senator Davis (Mississippi)
warned against impeaching the President and the Supreme Court on mere suspicion. He
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accused his opponents of waging a “political war” on the Constitution and the Union.1 3 5
Senator Stewart (Maryland) spoke of the how the decision “ judicially recognized the truth of
history” that since the founding era, blacks were not considered citizens.1 3 6 Although
Senator Pugh (Ohio) disagreed with the decision, he believed that it was entitled to respect.
He reminded his colleagues that Dred Scott involved an act of Congress, and not the
territorial legislatures. But if a case should be brought up to the court from the territories,
Pugh proclaimed that the Court ought to be trusted and “whatever be my opinion as an
individual.” Accordingly, “it will not do to say that if the Supreme Court decides to please
us, we execute that judgment; if it does not please us, we overturn it.” Hence, “a judgment
once pronounced by the appropriate tribunal should go into effect....”1 3 7 In his Third Annual
Message to Congress, Buchanan announced that the status of the territories had been
“irrevocably fixed by the final decision of the Supreme Court.”1 3 8
Nowhere was this strife more prevalent than in another failed attempt to repeal the
25th section of the Judiciary Act. Despite this failure, Warren argues that "their introduction
now by Northern statesmen marked a radical reversal in attitude towards the Court; for when
similar measures had been advocated in the past... their supporters were found almost
entirely in the ranks of Southern Democrats.”1 3 9 In 1858, northern members of Congress
introduced resolutions to repeal the controversial section. The most vocal supporter of this
measure was Bliss, an ardent Republican abolitionist. The defeat of the proposed measure
prompted Bliss to deliver a speech outlining the dangers of federal judiciary. He declared,
“[o]f all the departments of Government, the Supreme Court should be the last one to decide
political questions.” Bliss also rejected the Marshallian link between popular sovereignty
and judicial review. “If the people are the source of power, if they adopt their fundamental
law, they must ultimately give it construction.” He thought it “not possible that they intended
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to give to a body of eight or ten men chosen for life, and almost wholly irresponsible to
them, power to modify and change their constitution at pleasure.” As for the 25th section,
Bliss alluded to the ongoing battle over interpretive authority in Ohio, and although he
admitted that his state had freely consented to review (i.e., Piqua), all the “signs indicate that
the time may come when such refusal will become a duty.”1 6 0 He feared the prospect of
nullification, however necessary it may be, especially in states such as Virginia and Georgia
that had defied the Court “with impunity.” Yet, Congress could remove the temptation by
agreeing to repeal the 25th section.
Bliss also echoed the sentiments of countless state jurists in his support of the
separate spheres argument of constitutional interpretation. He construed Article in as
allowing the Supreme Court to exercise appellate jurisdiction in cases arising from courts
established by Congress, which included only federal and not state courts. He criticized
those who argued that the supremacy of the federal government implied that federal courts
had appellate jurisdiction over state courts. “ The truth is, the LAW is supreme, and not the
courts, though each is superior to the other in their own forum and within their own
exclusive jurisdiction; but when the jurisdiction is concurrent they are equals; and the
Federal Constitution gives no color to the idea that there is any dependence or subordination
of one to the others.”1 6 1
The battle over interpretation made its way into the Illinois Senate campaign of 18S8
where its’ two contenders, Abraham Lincoln and Stephen Douglas, engaged in a series of
debates.1 6 2 One of the most famous exchanges between Lincoln and Douglas took place on
August 27, 1858 in Freeport, Illinois where Douglas was forced to come to grips with what
Lincoln believed to be the incompatibility of popular sovereignty with Dred Scott. 1 6 3
According to Dred Scott, since Congress had no right to legislate for the territories with
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regards to slavery and since Congress could not confer upon the territories that right, then
the territories could not posses such a right. The question became, could the people of the
territories legislate on the question of slavery despite a decision of the Supreme Court
suggesting otherwise?
Lincoln asked Douglas: “Can the people of a United States territory, in any lawful
way, against the wish of any citizen of the United States exclude slavery from its limits prior
to the formation of a state constitution?''1 6 4 Douglas responded with the following:
[I]n my opinion the people of a territory can, by lawful means,
exclude slavery from their limits prior to the formation of a state
constitution.... It matters not what way the Supreme Court may
hereafter decide as to the abstract question whether slavery may or
may not go into a territory under the Constitution, the people have
the lawful means to introduce or exclude it as they please, for the
reason that slavery cannot exist a day or an hour anywhere, unless
it is supported by local police regulations. Those police regulations
can only be established by the local legislature, and if the people
are opposed to slavery they will elect representatives to that body
who will by unfriendly legislation effectual prevent the
introduction of it into their midst. If, on the contrary, they are for
it, their legislation will favor its extension. Hence, no matter what
the decision o f the Supreme Court m ay be on that abstract
question, still the right o f the people to m ake a slave territory or a
fre e territory is perfect and com plete under the Nebraska Bill.'6 5
If the people of a territory do not wish to introduce slavery within their boundaries,
they can pass “unfriendly legislation” in opposition to it. This statement came to be known
as the “Freeport Doctrine.”1 6 6 According to Douglas, the authority of territorial legislatures
to legislate (and interpret) on the issue of slavery rested in the distinction between federal
and state power. In I8S9, he published an article in H arper’s M agazine delineating the
boundaries between federal and state authority.1 6 7 Douglas believed that Congress may not
be able to legislate on slavery in the territories, but that did not prevent Congress from
delegating such authority to the territories. Yet, under the logic of D red Scott, how could
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Congress confer a power it did not posses? Douglas noted that in creating territorial
governments with legislative, executive, and judicial branches, Congress conferred many
powers that it did not posses. But was it really necessary for Congress to exercise those
powers it conferred? Congress could not confer every power it possessed under Art I § 8 of
the Constitution, such as the power to regulate commerce. But Congress could confer
powers it did not posses. For example, Congress could confer upon the judicial department
of the territories all the judicial powers and functions even though it could not posses or
exercise judicial powers. The same logic applied to legislative power.1 6 8
Closely linked to the apparent (in)compatibility of popular sovereignty with Dred
Scott, was the (un)willingness on the part of either Lincoln or Douglas to accept the decision
of the Supreme Court as final. At Freeport, Lincoln asked: “If the Supreme Court of the
United States shall decide that states can not exclude slavery from their limits, are you in
favor of acquiescing in, adopting and following such decision as a rule of political
action?”1 6 9 Douglas refused to answer, but his views on the finality of Supreme Court
decisions were expressed in both Congress and in other debates. In Chicago, Douglas
vowed to “yield obedience" to the decision of the Supreme Court in Dred Scott, “to the final
determination of the highest judicial tribunal known to our Constitution.”1 7 0 In Springfield,
he noted that the Constitution provides that the Supreme Court shall be the “ultimate tribunal
on earth” and hence, he would obey the rulings of such a tribunal irrespective of whether
they are conformance with his own views.1 7 1
During the Freeport Debate, as in many others, Lincoln refused to accept the Court's
decision in Dred Scott as binding. At Freeport, Lincoln asked Douglas if he would be
willing to accept the decision “as a rule of political action.” Lincoln expressed that as a legal
matter, Dred Scott was binding only on the parties to the case, but as a rule of political
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action, the decision did not extent to the other branches of government. As such, he opposed
the decision as a
political rule which shall be binding on the voter, to vote for
nobody who thinks it wrong, which shall be binding on the
members of Congress or the President to favor no measure that
does not actually concur with the principles of that decision...We
propose so resisting it as to have it reversed if we can, and a new
judicial rule established upon that subject.1 7 2
Similarly, during his First Inaugural Address, Lincoln did not deny that the Supreme
Court must decide constitutional questions, nor did he deny that decision was binding, but
the decision bound only the parties to the suit. For example, the people were free to
politically challenge a Supreme Court decision by electing members to their respective
legislatures and instructing them to overrule the decision of the Court through ordinary
legislation or to pass a constitutional amendment. Lincoln argued that if citizens allow the
Supreme Court to permanently determine vital questions of government policy, “the people
will have ceased, to be their own rulers, having, to that extent, practically resigned their
government, into the hands of that eminent tribunal.”1 7 3
Douglas’ espousal of the Freeport Doctrine was similar to Lincoln’s political rule
thereby offering a justification for why he was willing to accept the decision as final, yet
advocate a theory that allowed the people to bypass the decision through “unfriendly
legislation.” Upon closer examination of the “political rule” and the “Freeport Doctrine,”
Lincoln and Douglas had more in common with one another. As Edward McMahon writes,
“each was going to obey the decision as a rule of law but not of political action.”1 7 4 As a
matter of law, the decision was binding on only the parties to the case, but as a rule of
political action, the decision of the Court could be challenged.
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By stipulating that they were willing to accept the decision as binding on only the
parties to the case, Lincoln and Douglas were not undermining the interpretive authority of
the Supreme Court. Far from denying the existence of judicial authority, both advocated a
theory of judicial power that restricted itself to the determination of legal questions. As a
legal matter, the Court had issued its ruling in Dred Scott, although, of course, some
members of Congress disagreed. But the constitutional question as to the status of slavery in
the territories did not cease to exist after the Court’s ruling. Each called upon their
respective constituents to elect members to the nonjudicial branches of the government to
work to rescind the decision of the Court. They both espoused a political theory of popular
sovereignty and constitutional interpretation as expressed outside the Supreme Court.1 7 3
The battle over Dred Scott came in the midst of another controversy over
constitutional interpretation - the Booth Cases. Here, northern abolitionists in Wisconsin
found themselves at odds with the Supreme Court. At issue: Could states, in particular, state
supreme courts, interfere with the enforcement of the federal fugitive slave law? On March
IS, 18S4 Sherman Booth was arrested for violating the Fugitive Slave Law of 18S0. He
applied for a writ of a habeas corpus from the Wisconsin Supreme Court. The Court granted
his request and for the first time in the nation’s history, a state Supreme Court asserted its
right to nullify a federal law.1 7 6
In In Re Booth (18S4), State Justice Smith criticized the Fugitive Slave Act for
giving federal commissioners judicial powers. He made it clear that the “States will never
submit to the assumption, that United States commissioners have the power to hear and
determine upon the rights and liberties of their citizens, and issue process to enforce their
adjudications, which is beyond the examination or review of the state judiciary.”1 7 7 Smith
justified his decision to strike down the Act on the grounds that as a state officer, he was
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required “to take an oath to support the constitution of the United States as well as of his
own state” and this put an extra burden on state officers “to guard the outposts as well as the
citadel of the great principles and rights which [the Constitution] was intended to declare,
secure, and perpetuate.”1 7 8 He believed that states had the “immense responsibility of
preserving not only their own sovereignty, but the just constitutional powers of the general
government” and he denied that “any one department of the government is constituted the
final and exclusive judge of its own delegated powers.”
The judicial department of the federal government is the creature
by the compact of the several states, as sovereignties, and their
respective people. That department can exercise no power not
delegated to it. All power not delegated and not prohibited to the
states, the states have expressly reserved to themselves and the
people. To admit that the federal judiciary is the sole and
exclusive judge of it own powers, and the extent of the authority
delegated, is virtually to admit that the same unlimited power may
be exercised by every other department of the general government,
both legislative and executive, because each is independent of and
coordinate with the other.1 7 9
Booth’s fate, however, was far from settled as his release was met with an
indictment by a federal grand jury and later, a conviction. The case was shuffled back and
forth between the federal and state judiciaries mostly over jurisdictional issues.1 8 0 By the
time the case reached the U.S. Supreme Court in 1858 on an appeal of a writ of error
(Ableman v. Booth), Taney delivered a blow to the states’ rights cause. He upheld the
constitutionality of the Fugitive Slave Law and condemned the Wisconsin Supreme Court
for interfering with the enforcement of federal laws. Taney reasoned that if the Wisconsin
Supreme Court possessed the power to the judge the constitutionality of the Fugitive Slave
Law, then “they must have the same judicial authority in relation to any other law of the
United States.” Furthermore, “if [such] power is possessed by the Supreme Court of the
State of Wisconsin, it must belong equally to every other State in the Union.”1 8 1 Conflicting
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interpretations of federal law would place the fate of the Supremacy Clause in the hands of
state jurists. Accordingly,
it is manifest that this ultimate appellate power in a tribunal
created by the Constitution itself was deemed essential to secure
the independence and supremacy of the General Government in
the sphere of action assigned to it; to make the Constitution and
laws of the United States uniform, and the same in every State;
and to guard against evils which inevitably arise from conflicting
opinions between the courts of a State of the United States, if there
was no common arbiter authorized to decide between them.1 8 2
Having made the case for the supremacy of federal laws via the federal judiciary, Taney
upheld the constitutionality of the Fugitive Slave Law by invoking the Court’s power of
judicial review over federal legislation.
And as the Constitution is the fundamental and supreme law, if it
appears that an act of Congress is not pursuant to and within the
limits of the power assigned to the Federal Government, it is the
duty of the courts of the United States to declare it
unconstitutional and void. The grant of judicial power is not
confined to the administration of laws passed in pursuance to the
provisions of the Constitution, nor confined to the interpretation of
such laws; but, by the very terms of the grant, the Constitution is
under their view when any act of Congress is brought before them,
and it is their duty to declare it void, and refuse to execute it, if it
is not pursuant to the legislative powers conferred upon Congress.
And as the final appellate power in all such questions is given to
this court, controversies as to the respective powers of the United
States and the States, instead of being determined by military and
physical force, are heard, investigated, and finally settled, with the
calmness and deliberation of judicial authority. And no one can
fail to see, that if such an arbiter had not been provided, in our
complicated system of government, internal tranquility could not
have been preserved; and if such controversies were left to
arbitrament of physical force, our Government, State and National,
would soon cease to be Governments of law, and revolutions by
force of arms would take the place of courts of justice and judicial
decisions.1 8 3
With this statement, Taney reiterated the Court’s power over the other departments
of the federal government and the states. Taney’s opinion was met with outrage at both the
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state and federal levels. The Wisconsin legislature passed resolutions denouncing the
Court’s decision as “an arbitrary act of power, unauthorized by the Constitution.” The
Legislature borrowed from the Kentucky Resolutions and argued that since the federal
government “was not the exclusive or final judge of the extent of the powers delegated to
itself,” a state as a party to the compact, “having no common judge, each...has a right to
judge for itself, as well of the infractions as of the mode and measure of redress.”1 8 4 In place
of “nullification,” the legislature used the words “positive defiance,” but it was clear that this
resolution, a personal liberty law passed in 18S7, and a series of town resolutions,
represented Wisconsin’s form of nullification and its opposition to the Fugitive Slave Act.
As Vroman Mason writes, Wisconsin’s attitude “must have made political students believe
that the days of the Virginia and Kentucky resolutions, and of South Carolina nullification,
had returned to stay.1 8 5
In his Fourth Message to Congress, Buchanan condemned the decision of the
Wisconsin Court. Accordingly, the validity of the Fugitive Slave Act “has been established
over and over again by the Supreme Court of the United States with perfect unanimity.”1 8 6
Senator Toombs (Georgia) referred to the decision as “able, learned, and eloquent.” The
Court, he announced was “the sole arbiter created by the Constitution of our country to
decide upon the private rights of the people of one state against the people of another” and
Wisconsin’s defiance and “insensibility to shame excites more of our pity than contempt.”1 8 7
Hale turned the tables on Toombs by reminding him of Georgia’s recent denunciation of the
Court in Padelford v. Georgia. “[Wjhile I shall listen with all patience to anybody who
chooses to lecture me on reverence for the Supreme Court, I will ask the man who
undertakes to lecture me, if he has read the solemn judicial decision his own State, in which,
as late as 1854, the supreme court of that State boasted that they had treated the decision of
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the Supreme Court of the United States with profound contempt.” Hale declared that history
shows that “down from 1792, in the case of Chisholm’s executors, up to 18S4, the State of
Georgia has always denied the authority of the Supreme Court of the United States to
construe law for Georgia.” Furthermore, it “denied that it had any jurisdiction over the
criminal laws of the State [Cherokee Indians], and asserted that a law of Congress
undertaking to give it that jurisdiction [25th section] was unconstitutional.” Toombs
reminded Hale that no northern state supported the Kentucky and Virginia Resolutions,
declaring that “the Supreme Court was the ultimate and sole arbiter of the Constitution of the
United States. That was your doctrine.” To which Hale responded, “Georgia has never held
that the Supreme Court of the United States was the final arbiter on questions of
constitutional jurisdiction.”1 8 8 Senator Doolittle (Wisconsin) made “no apolog[ies] for the
supreme court of Wisconsin for construing the Constitution of the United States, upon their
official oaths, according to their own convictions.” He reminded Toombs that Padelford
was decided only six months before In Re Booth. He referred to the Resolutions of 1798,
Respublica v. Cobbett, Hunter v. Martin, and the Cherokee Indian controversy as evidence
that the United States Supreme Court was not superior to the courts of the States.1 8 9
The superiority of the federal judiciary over the states and the other branches of the
federal government was continually questioned. Immediately after the early state and federal
constitutions were created, the country was forced to come to grips with how these
constitutions were to be interpreted. The slavery controversy showed that the infusion of
politics undermined any effort to arrive at a principled resolution of the interpretive question.
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Conclusion
The debates over constitutional interpretation began almost immediately after the
state and federal constitutions were created. Within the first twenty years of the founding, a
number of court and non- court centered models of interpretation emerged. In this chapter, I
have shown that in their quest for interpretive authority, various institutional actors at both
the state and federal levels invoked these alternative models to justify their support or
opposition to the Supreme Court. In the years leading up to the Civil War, the same
institutional actors invoked more than one of these models at different times to suit their
political agendas.
It is wrong to assume that northerners always believed that the Supreme Court was
the final arbiter of constitutional disputes, and that southerners were the only advocates of
the theory that each state had a right to judge for itself constitutional infractions. Nor was
the idea of state rights a monolithic concept. Indeed, some states were quick to criticize
other states for challenging the Court’s authority to resolve constitutional disputes. Yet,
when these states found themselves on the losing side, they did not hesitate to denounce the
Court for usurping its delegated powers.
The fact that so many alternative models of constitutional interpretation emerged
during the early years of the Republic suggests that there was no agreement over the court -
centered Federalist model of the relationship between popular sovereignty and judicial
review. Nor was there agreement that the framers had constituted a Constitution with fixed
and judicially determinate meanings. As the nation faced one constitutional crisis after
another, these models became useful tools to justify various forms of interposition. Yet, the
story over interpretation was much more complicated since the same institutional actors
invoked different models depending on which side of a particular crisis they happened to be
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on. This, in turn, suggests that the crisis over interpretation was not simply in the number of
competing alternatives, but in the actual application of those alternatives. Indeed, the
inability to solve the problem over interpretation forced the nation to consider the
possibilities of constitutional (re)creation. In the midst of the struggle over interpretation,
new states were emerging and older states were amending their constitutions and once again,
the debate over which institution would play a dominant role in the (re)creation process took
center stage. Debates over interpretation and creation occurred simultaneously as the
institutionalization of popular sovereignty moved to a higher level. The battle over
interpretation focused on the role of the federal judiciary, in particular the Supreme Court, in
the American polity. In other words, was the Supreme Court the final arbiter of
constitutional disputes in some cases, but not others? As the nation edged towards Civil
War, despite Taney’s Booth opinion to the contrary, this question had yet to be answered.
Indeed, it would take renewed debates over both popular sovereignty as interpretation and
creation and the Civil War before that question would finally be answered.
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Endnotes
1 Alexander Hamilton. Federalist 22. In Clinton Rossiter, ed. The Federalist Papers. New York: Nal
Penguin Inc., 1961, p. ISO.
2 Wm. D. Porter. State Sovereignty and the Doctrine o f Coercion. Charleston, SC: Evans and
Cogswell’s Steams - Power Presses, 1860, p.6.
3 Charles Warren. The Supreme Court in United States History. 2 vols. Boston: Little, Brown, and
Company, 1926,1 , p. 388.
4 See generally, Mark A. Graber. ‘The Jacksonian Origins of Chase Court Activism.” Journal o f
Supreme Court History 25 (2000), pp. 17-39; Mark A. Graber. “Naked Land Transfers and American
Constitutional Development.” Vanderbilt Law Review S3 (2000), pp. 73-121.
s See generally, “Interposition vs. Judicial Power: A Study of Ultimate Authority in Constitutional
Questions.” Race Relations Law Reporter 1 (19S6), pp. 465-499; Leslie F. Goldstein. “State
Resistance to Authority in Federal Unions: The Early United States (1790-1860) and the European
Community (1958-94).” Studies in American Political Development 11 (1997), pp. 149-189; Edward
S. Corwin. “National Power and State Interposition.” Michigan Law Review 10 (1912), pp. 535-551.
6 Wetherbee v. Johnson, 14 Tyng 412,418 (Ma. 1817).
7 Ibid., pp. 418-419.
8 William M. Wiecek, “Murdoch v. Memphis: Section 25 of the 1789 Judiciary Act and Judicial
Federalism. In Maeva Marcus, ed. Origins o f the Federal Judiciary: Essays on the Judiciary Act o f
1789, New York and Oxford: Oxford University Press, 1992, p. 223; Charles Warren. “Legislative
and Judicial Attacks on the Supreme Court of the United States - A History of the Twenty- Fifth
Section of the Judiciary Act.” The American Law Review 47 (1913), pp. 1-47 and pp. 161 -189;
Maurice S. Culp. “A Survey of the Proposals to Limit or Deny the Power of Judicial Review by the
Supreme Court of the United States.” Indiana Law Journal 4 (1929), pp. 386-398 and 4 (1929), pp.
474-490; Wilfred Feinberg. “Constraining “The Least Dangerous Branch”: The Tradition of Attacks
on Judicial Power.” New York University Law Review 59 (1984), pp. 252-276; Stuart S. Nagel.
“Court-Curbing Periods in American History.” Vanderbilt Law Review 18 (1965), pp. 925-944;
“Report of the Committee Upon the Duty of the Courts to Refuse to Execute Statutes in
Contravention of the Fundamental Law.” New York State Bar Association, Proceedings 38 (1915), pp.
230-404.
9 See e.g., see Fletcher v. Peck, 6 Cranch (U.S.) 87 (1810); Dartmouth College v. Woodward, 17 U.S.
518 (1819); Charles Warren Bridge v. Warren Bridge, 11 Peters 420 (1837).
1 0 Piqua Branch o f the State Bank o f Ohio v. Jacob Knoop, 16 Howard (57 U.S.) 369, 391-392 (1850).
But compare McClean’s argument in Respublica v. Cobbet where he refused to transfer a case from
state court to federal court. Respublica v. Cobbet, 3 Dallas (3 U.S.) 467 (1798).
n Jacob Knoup v. Piqua Branch o f the State Bank o f Ohio, 1 Ohio St. Rep. 603 (1853).
1 2 Piqua Branch o f the State Bank o f Ohio v. Jacob Knoup, 6 Ohio 342 (1856).
1 3 Ibid., pp.350-351. Compare David E. Engdahl. “What’s in a Name? The Constitutionality of
Multiple “Supreme” Courts.” Indiana Law Journal 66 (1991), pp. 457-510. Engdahl argues that
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Article IH did not create a “pyramidic” judiciary in which the Supreme Court was the final
determinate of all questions arising from federal inferior courts. Rather, the framers contemplated that
on many questions with the exception of admiralty and maritime issues, inferior courts would have
the final say.
1 4 Piqua Branch o f the State Bank o f Ohio v. Jacob Knoup, p. 376, emphasis in the original.
1 5 Johnson v. Gordon, 4 Cal. 368, 370 (1854).
1 6 Sandusky Bank v. Wilbor, 7 Ohio St. 481 (1857).
1 7 Ibid., p. 504.
1 8 Skelly v. Jefferson Branch o f the State Bank o f Ohio, 9 Ohio St. 606 (1859).
1 9 Jefferson Branch Bank v. Skelly, 66 U.S. 436, 443 (1861).
2 0 Dodge v. Woolsey, 59 U.S. 331, 360 (1855).
2 1 Ibid., p. 355. Similarly, at the Circuit Court, Justice McClean wrote,
There are but few cases in which, under the federal constitution, the supreme court of the
Union establishes the rule of construction for the state courts. Where one such case occurs,
there are more than five hundred cases where the courts of the Union follow the state courts.
If individuals and courts shall disregard judicial authority, and carry out their own peculiar
views of the constitution and laws, the harmony of our system of government must be
destroyed, and the law of force must become the arbiter of rights.
Woolsey v. Dodge, 30 F. Cas. 606,609 (1854). Dodge v. Woolsey was later affirmed by the United
States Supreme Court in Mechanics ’ and Traders’ Bank v. Debolt, 59 U.S. 380 (1855).
2 2 Alfred Stunt v. The Steamboat o f Ohio. Reprinted in The American Law Register 4 (1855), pp. 49-
118.
2 3 “Appellate Jurisdiction of the Federal, Over the State Courts.” The American Law Register A
(1856), p. 146.
2 4 Ibid., p. 148.
2 5 See Gibbons v. Ogden, 9 Wheaton (U.S) 1 (1824); Brown v. Maryland, 25 U.S. 419 (1827) where
the Court struck state laws interfering with interstate commerce; New York v. Miln, 11 Peters 36
(U.S.) 102 (1837); Cooley v. Board o f Wardens o f the Port o f Philadelphia, 12 Howard (53 U.S) 229
(1851), where the Court upheld state laws as a valid exercise of police power.
2 6 Wilson v. Black Bird Creek Marsh Company, 2 Peters (27 U.S.) 245, 251 (1829).
2 7 Padelford, Fay & Co. v. Savannah, 14 GA 440,501 (1854).
2 8 Ibid., p, 499.
2 9 Ibid., p. 502.
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3 0 Ross v. Rittenhouse, 2 U.S. 160, 163 (1792); William O. Douglas. “Interposition and the Peters
Case: 1789-1809.” Stanford Law Review 9 (1956), pp. 5-6.
3 1 Olmstead v. The Active, 18 Fed. Case 680, No. 10,503a (D. P. 1803).
3 2 Douglas, “The Peters Case,” p. 8.
3 3 United States v. Judge Peters, 5 Cranch (U.S.) 115, 136 (1809).
3 4 “Resolution of the Legislature of Pennsylvania, April 3, 1803.” Reprinted in Herman V. Ames, ed.
State Documents on Federal Relations: The States and the United States. Philadelphia: University of
Pennsylvania, 1906, Q: p. 48.
3 5 Ibid.
3 6 Osborn v. Bank o f the United States, 9 Wheaton (22 U.S.) 738 (1824). The suit stemmed from the
actions of State Auditor Ralph Osborn, who forcibly seized the tax from the branch at the Bank of
Chillicothe.
3 7 “Extracts from the Report and Resolutions of Ohio Relative to the Bank and the Powers of the
Federal Judiciary.” Reprinted in Ames, State Documents, No. IU, p. 5. The Report noted that the
Eleventh Amendment precluded suits against officials acting on behalf of the state.
3 8 Ibid., p. 8.
3 9 Daniel J. Ryan. “Nullification in Ohio.” Ohio Archaeological and Historical Quarterly 2 (1888), p.
417.
4 0 See Ernest L. Bogart. ‘Taxation of the Second Bank of the United States by Ohio.” The American
Historical Review 17 (1912), pp. 312-331; Patricia L. Franz. “Ohio v. The Bank: An Historical
Examination of Osborn v. The Bank o f the United States." Journal o f Supreme Court History 23
(1999), pp. 112-137; D.H. Chamberlain. “Osborn v. The Bank of the United States.” Harvard Law
Review I (1887), pp. 223-226.
4 1 Ames, State Documents, III, pp. 13-15. The fifth resolution reads as follows:
That as the judicial power of the United States extends to all cases arising in law and equity,
under the Constitution and laws of the United States, it belongs to the judicial department to
determine all cases arising from a conflict between the laws of the United States and the laws
of a particular state (p. 14).
4 2 Theodore White. History o f the Hartford Convention With a Review o f the Policy o f the United
States Government Which Led to the War o f 1812. New York: N & J White and Boston: Russell,
Odiome, & Co, 1833, p. 361, emphasis added. Delegates to the Convention did not advocate
nullification, nor did they share in Madison’s defense of interposition - appealing to sister states and
to Congress for the repeal of the Acts. Rather, they proposed a number of amendments to protect
their sectional interests from the south and the expanding west (pp. 368-370). Indeed, the report never
directly mentioned the Resolutions, but perhaps this was due to the delegate’s desire to separate
themselves from their Republican enemies. Warfield, Kentucky Resolutions, p. 175.
4 3 Green v. Biddle, 21 U.S. 1 (1823).
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4 4 Michael G. Collins. “Before Lochner: Diversity Jurisdiction and the Development of General
Constitutional Law.” Tulane Law Review 74 (2000), pp. 1263-1322.
4 5 Ames, State Documents, HI, p. 17.
4 6 Ibid., pp. 19-20.
4 7 Judge Owsley wrote, “For the case of Green versus Biddle was decided by three only of the seven
judges that compose the Supreme court of the United States; and being the opinion of less than a
majority of the judges, cannot be considered as having settled any constitutional principle.” Bodley v.
Gaither, 19 Ky. 57,58 (1825).
4 8 Ibid., emphasis in the original.
4 9 Robert B. McCay. “Georgia Versus the United States Supreme Court.” Journal o f Public Law 4
(1955), p. 293. For more on Georgia’s history of struggles with the federal government, see Ulrich B.
Phillips. Georgia and State Rights: A Study o f Political History from the Revolution to the Civil War,
with Particular Regard to Federal Relations. Yellow Springs: Antioch Press, 1968.
5 0 The State v. George Tassels, 1 Dud. 228 (1830). Warren, The Supreme Court I, p. 733. A copy of
the Tassel case appears in Jill Norgren. The Cherokee Cases: The Confrontation o f Law and Politics.
New York: McGraw- Hill, Inc. 1996, pp. 155-164.
5 1 Ames, State Documents, p. 40.
5 2 Joseph C. Burke. “The Cherokee Cases: A Study in Law, Politics, and Morality.” Stanford Law
Review 21 (1969), p. 509.
5 3 Cherokee Nation v. Georgia 30 U.S. I (1831). Marshall referred to the Cherokee as “domestic
dependent nations.”
5 4 Burke, “The Cherokee Cases,” pp. 512-513; Warren, The Supreme Court I, p. 736-737; Norgren,
Cherokee Cases, p. 100. Norgren notes:
From the start of the proceedings in the case,... officials in Georgia had refused to
acknowledge the legal papers served on them... Not surprisingly, when the time came for an
attorney to speak for the state in oral arguments before Marshall and his court, none
appeared. Instead, state officials, adamant that a federal court should not review Georgia’s
business, paced the halls of Congress trying to win support for the bill limiting the Supreme
Court’s Section 25 powers.
5 5 Worcester v. Georgia, 31 U.S. 515 (1832).
5 6 Ames, State Documents, p. 42.
5 7 Warren, The Supreme Court I, p. 754.
5 8 Worcester, and the Indian cases in general, represented Marshall’s final confrontation with states.
See R. Kent Newmyer. “Chief Justice John Marshall’s Last Campaign: Georgia, Jackson, and the
Cherokee Cases.” Journal o f Supreme Court History 23 (1999), pp. 76-94.
5 9 Worcester v. Georgia, p. 541.
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6 0 Ibid., p. 561. Justices Story, Thompson, and Duvall joined Marshall’s opinion. Justice Baldwin,
who issued the writ, dissented on procedural grounds, although his opinion was “lost.” See Lyndsay
G. Robertson. “Justice Henry Baldwin’s “Lost Opinion” in Worcester v. Georgia.” Journal o f
Supreme Court History 23 (1999), pp. 50-75.
6 1 Don Fehrenbacher. Sectional Crisis and Southern Constitutionalism. Baton Rouge and London:
Louisiana State University Press, 1995, pp. 111-112.
621 do not wish to revisit the story behind the nullification controversy. The literature is filled with
sources on the subject, but some of the more seminal pieces are William W. Freehling. Prelude to the
Civil War: The Nullification Controversy in South Carolina 1816-1836. New York and Oxford:
Oxford University Press, 1966; David Franklin Houston. A Critical Study o f Nullification in South
Carolina. Gloucester: Peter Smith, 1968.
6 3 Clyde N. Wilson and W. Edwin Hemphill, eds. The Papers o f John C. Calhoun. Colombia:
University of South Carolina Press, 1977, X (1825-1829), pp. 501,503.
6 4 Ibid., p. 507, emphasis added.
6 5 Ibid., p. 515. The word in the bracket it provided by the editors of the volume. Later the Exposition
made it clear that the power of the Court to declare state and federal laws unconstitutional was
designed to “protect the supremacy of the Constitution over the acts of Legislation, and not to set up a
supreme power in the Courts” (p. 525).
6 6 See Frederic Bancroft. Calhoun and the South Carolina Nullification Movement. Baltimore: The
John Hopkins Press, 1928, pp. 75-90. In a letter Samuel Ingham, Calhoun was concerned with the
“departure from the great republican principles of 98.” But, he expressed hope that the “doctrines of
98 would triumph again and will again save the Republick.” Calhoun explained to John Gardiner of
New York that the only remedy for a system rapidly deteriorating to an “unlimited and uncontrolled
despotism,” was a “speedy return to the old Republican doctrines of 98; State interposition and all.”
“Should the old Republican doctrines o f ’98... gain ascendancy, he wrote Ingham, there will be a
chance to redeem the country and renovate our institutions.” Calhoun told John Naglee, the
Resolutions were the “rock of our political salvation.” Wilson and Hemphill. Calhoun Papers, pp. 8,
17, 199, 242, 299.
6 7 Wilson and Hemphill, Calhoun Papers (Exposition), p, 529, emphasis added.
6 8 Lindsay Swift. The Great Debate Between Robert Young Hayne o f South Carolina and Daniel
Webster o f Massachusetts. Boston and New York: Houghton, Mifflin and Company, 1808, p. 91.
6 9 Ibid., pp. 99-100.
7 0 Ibid., p. 100, emphasis added.
7 1 Ibid., pp. 186-187.
72 Ibid., p. 190.
7 3 Ibid., pp. 205-206, emphasis in the original.
7 4 Ibid., p. 207-208.
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7 5 South Carolina Ordinance of Nullification. Reprinted in State Papers on Nullification. New York:
Da Capo Press, 1970, pp. 28-31. (Originally printed in Boston by Dutton and Wentworth, 1834).
7 6 State v. Hunt, 2 Hill 1, 26-30, 33 (S.C. 1834), emphasis added.
7 7 Ibid., p. 87.
7 8 Ibid., p. 38.
7 9 Ibid., p. 223.
8 0 Ibid., pp. 227,247.
8 1 Ibid., p. 270.
8 2 See generally, Richard E. Ellis. The Union At Risk: Jacksonian Democracy, States’ Rights, and the
Nullification Crisis. New York and Oxford: Oxford University Press, 1987. Even Jackson’s home
state of Tennessee did not support nullification. See Paul H. Bergeron. “ Tennessee’s Response to the
Nullification Crisis.” The Journal o f Southern History 39 (1973), pp. 23-44.
8 3 The states included New York, New Jersey, Pennsylvania, Delaware, Virginia, North Carolina,
Ohio, Indiana, Alabama, and Mississippi. Ames, State Papers, pp. 131 -231; Ellis, Union at Risk, pp.
102-157.
8 4 See generally, Merton E. Coulter. “The Nullification Movement in Georgia.” Georgia Historical
Quarterly 5 (1921), pp. 3-39.
8 5 Ames, State Papers, p. 197.
8 6 Ibid., p. 206.
8 7 Ralph L. Ketcham, ed. “Jefferson and Madison and the Doctrines of Interposition and Nullification:
A Letter of John Quincy Adams.” The Virginia Magazine o f History and Biography 66 (1958), p. 182.
8 8 Keith E. Whittington. Constitutional Construction: Divided Powers and Constitutional Meaning.
Cambridge and London: Harvard University Press, 1999, p. 80. An earlier version of this section
appeared in Keith E. Whittington. “The Political Constitution of Federalism in Antebellum America:
Tlte Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change.”
Publius: The Journal o f Federalism 26 (1996), pp. 1-24. See also See also Christian G. Fritz. “A
Constitutional Middle-Ground Between Revision and Revolution: A Reevaluation of the Nullification
Crisis and the Virginia and Kentucky Resolutions through the Lens of Popular Sovereignty.” In
Hendrik Hartog and William E. Nelson eds. Law as Culture and Culture as Law: Essays in Honor o f
John Phillip Reid, Madison: Madison House Publishers, 2000, pp.170-173, 199; Fehrenbacher.
Sectional Crisis, p. 118, noting “although judges did do much of the work of drawing the line between
state and national authority, some controversies were too crucial and/or aggravated to be resolved in
any courtroom.”
8 9 Whittington, Constitutional Construction, p. 83.
9 0 Ibid., pp. 108-109, emphasis in the original.
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9 1 Arthur C. Cole “The South and the Right of Secession in the Early Fifties.” The Mississippi Valley
Historical Review (1914.), p. 394.
9 2 The South Carolina Ordinance of Secession read in part:
That South Carolina in the exercise of her sovereign will, as an
independent state, acceded to the Federal Union...and that in the
exercise of the same sovereign will, it is her right without...hindrance...to
secede from the said Federal Union....
Quoted in Ibid., p.387.
9 3 Porter, State Sovereignty, p. 6.
9 4 Jesse T. Carpenter. The South as a Conscious Minority, 1789-1861: A Study in Political Thought.
Columbia: University of South Carolina Press, 1990 (originally published by New York University
Press, 1930), pp. 209-213.
9 5 Arthur Bestor. “State Sovereignty and Slavery: A Reinterpretation of Proslavery Constitutional
Doctrine.” Journal o f the Illinois State Historical Society 54 (1961), p. 119.
9 6 Margaret Kinard Latimer. “South Carolina - A Protagonist of the War of 1812.” The American
Historical Review 6\ (1956), p. 923.
9 7 James Madison. Federalist 49. Rossiter, The Federalist Papers, p. 314. Madison was making his
way to Federalist 51, where he outlined the mechanisms by which the “separated” branches would
check one another to ensure separation and by implication, their coordinate status.
9 8 It was generally assumed that Roger Taney, who later played a pivotal role in helping to destroy the
Bank (by removing its deposits), was primarily responsible for the contents of the veto message.
Lynn Marshall, however, suggests that Amos Kendall, a Kentucky newspaperman who also served in
Jackson’s Administration, exercised the most influence. See Lynn L. Marshall.. “The Authorship of
Jackson’s Bank Veto Message.” The Mississippi Valley Historical Review 50 (1963), pp. 466-477.
9 9 Andrew Jackson, Veto Message. Reprinted in George Rogers Taylor, ed. Jackson versus Biddle:
The Struggle Over the Second Bank o f the United States. Boston: D.C. Health and Company, 1965, p.
12.
1 0 0 See generally, Gerald N. Magliocca. “Veto! The Jacksonian Revolution in Constitutional Law.”
Nebraska Law Review 78 (1999), pp. 205-262.
1 0 1 Ibid. See also John Harrison. “The Constitutional Origins and Implications of Judicial Review.”
Virginia Law Review 84 (1998), pp. 333-387. Although Harrison does not talk about the veto power,
he does argue that, like courts, executives have the right to treat acts of Congress as legal nullities if
they conflict with the Constitution. He writes, “courts must know what the law is in order to decide
cases and the President must know what the law is in order faithfully to execute it” (p. 361). As
Congress does not have the right to bind the Court, it has no right to bind the President.
1 0 2 Jackson, “Veto Message,” p. 13.
1 0 3 Burke, “The Cherokee Cases,” pp. 525-529; William S. Hoffman. "Andrew Jackson, State
Rightist: The Case of the Georgia Indians.” Tennessee Historical Quarterly 11 (1952), pp. 329-345.
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1 0 4 Warren, The Supreme Court I, pp. 759-760; Richard P. Longaker, “Andrew Jackson and the
Judiciary.” Political Science Quarterly 71 (1956), pp. 341-364, suggesting that Jackson’s attitude
towards the judiciary was a mixture of defiance, independence, and respect. Jackson’s defense of
federal territorial courts also lends support for this position. Kermit L. Hall. “Andrew Jackson and the
Judiciary: The Michigan Territorial Judiciary as a Test Case, 1828-1832.” Michigan History 59
(1975), pp. 131-152.
1 0 5 Warren, The Supreme Court I, pp. 761-764.
1 0 6 Edwin A. Miles. “After John Marshall’s Decision: Worcester v. Georgia and the Nullification
Crisis.” The Journal o f Southern History 39 (1973), pp. 533-544. Jackson teamed up with an
unlikely ally, Daniel Webster. See Norman D. Brown. “Webster-Jackson Movement fora
Constitution and Union Party in 1833.” Mid-America: An Historical Review 46 (1964), pp. 147-171.
1 0 7 Andrew Jackson. Proclamation, December 10, 1832. Reprinted in William F. Swindler, ed.
Sources and Documents o f United States Constitutions. Vol. 3. London, Rome, and New York:
Oceana Publications, Inc., 1985,p. 8.
1 0 8 Ibid., p. 13.
1 0 9 Quoted in Charles Sellers, ed. Andrew Jackson, Nullification, and the State-Rights Tradition.
Chicago: Ran McNally & Company, 1963, p. 40.
1 1 0 Quoted in Ibid., p. 44.
1 1 1 Longaker, “Andrew Jackson and the Judiciary,” 361; Francene Engel. “ The Myth of Judicial
Supremacy: Justciability, Separation of Powers and Constitutional Politics in American Political
Development.” Ph.D. diss.. University of Southern California, 2000.
1 1 2 Proposals were put forth to increase the number of circuit courts in these states and to increase the
number of justices on the Court. See generally, Curtis Nettels. “The Mississippi Valley and the
Federal Judiciary, 1807-1837.” The Mississippi Valley Historical Review 12 (1925), pp. 202-226.
1 1 3 R. Kent. Newmyer. “John Marshall and the Southern Constitutional Tradition." In Kermit L. Hall
and James W. Ely, Jr., eds. An Uncertain Tradition: Constitutionalism and the History o f the South.
Athens and London: The University of Georgia Press, 1989, p. 110.
1 ,4 Warren, The Supreme Court I, p. 657. See generally, pp. 652-685.
1 1 5 Congressional Globe, 17* Cong. Is * Sess. (December 12, 1821) - Senate, p. 23.
1 1 6 Congressional Globe, 18* Cong, l“ Sess. (December 23, 1823) - Senate, p. 29.
1 1 7 Congressional Globe. 18* Cong., l“ Sess. (May 17, 1824) - House, p. 2514.
1,8 Ibid., p. 2533.
1 1 9 Warren, The Supreme Court I, p. 685.
1 2 0 See Gerald Gunther. John Marshall's Defense ofMcCulloch v. Maryland. Stanford: Stanford
University Press, 1969; John Taylor. Constitutions Construed and Constitutions Vindicated. New
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York: Da Capo Press, 1970 (originally published in 1820); John Taylor. New Views on the
Constitution o f the United States. New York: Da Capo Press, 1971 (originally published in 1823).
1 2 1 Ames, State Documents, n, p. 49.
1 2 2 Quoted in Warren, The Supreme Court I, p. 642. Warren also provides a brief account of a number
of Virginia newspapers that had adamantly preached resistance to Cohens, but who (after Biddle),
sought to protect the state’s interests against the Kentucky courts in the Supreme Court (p. 642n).
1 2 3 Ibid.
1 2 4 Congressional Globe, 17* Cong. I” Sess. (April 26, 1822) - House, p. 495.
1 2 5 Congressional Goble, 18* Cong. 1“ Sess. (January 2, 1824) - House, p. 111.
1 2 6 Craig v. Missouri, 29 U.S. 410 (1830).
1 2 7 Ibid., p. 413.
1 2 8 Ibid.
1 2 9 Charles Warren, “Legislative and Judicial Attacks on the Supreme Court of the United States - A
History of the Twenty- Fifth Section of the Judiciary Act.” The American Law Review 47 (1913), p.
161.
1 3 0 See generally Warren, The Supreme Court I, pp. 736-743.
1 3 1 Report on the Judiciary. Congressional Globe, 21“ Cong. 2n d Sess. (January 24, 1831), p. Ixxix
(Appendix). The Report continued:
However, therefore, it may be admitted or denied, that the judicial department of the Federal
Government is, in all questions submitted to it by the forms of the constitution, to decide in
the last resort in relation to the authorities of other departments of that Government, it can
never be authorized so to decide in relation to the right of the parties to the constitutional
compact, from which the judicial, as well as the other departments, hold their delegated
trusts.
1 3 2 Ibid., p. Ixxx.
1 3 3 C.L. Miller. “James Buchanan as a Lawyer.” University o f Pennsylvania Law Review and the
American Law Register 60 (1912), pp. 559-561. Warren regards the minority report as “one of the
great and signal documents in the history of American constitutional law.” Warren, The Supreme
Court, I, p. 739.
1 3 4 Report on the Judiciary,” pp. Lxxxiii-lxxxiv.
1 3 5 Congressional Globe, 21“ Congress, 2n d Session, (January 24, 1831) - House, p. 532.
1 3 6 Ibid., pp. 532-534 (January 25, 1831).
1 3 7 Ibid., pp. 541-542 (January 29, 1831).
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1 3 8 Ibid., p. 540 (January 28, 1831).
1 3 9 16 Peters (41 U.S.) 539,612 (1842).
1 4 0 Ibid., pp. 60-62.
M > Paul Finkelman. “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph
Story’s Judicial Nationalism.” In Dennis J. Hutchinson, David A. Strauss, and Geoffrey R. Stone, eds.
1994 The Supreme Court Review. Chicago and London: The University of Chicago Press, 1995, p.
249. But compare, Paul Finkelman. “ Prigg v. Pennsylvania and Northern State Courts: Anti-Slavery
Use of a Proslavery Decision.” Civil War History 25 (1979), pp. 5-35, arguing that the opinion could
be viewed as prohibiting state judges from enforcing federal laws. See Finkelman, “Prigg v.
Pennsylvania,” pp. 55-56, suggesting that the opinion can be viewed as a “triumph of freedom” in that
Congress could not constitutionally force states to enforce the Fugitive Slave Law, although states
were morally obligated to help enforce it. Taney feared that Story’s opinion gave state judges
permission not to enforce Prigg and subsequent judicial (and proslavery) decisions. Finkelman,
“Story Telling on the Supreme Court,” pp. 19-21; Joseph Nogee. “The Prigg Case and Fugitive
Slavery, 1842- 1850.” The Journal o f Negro History 39 (1954), p. 204, arguing that Prigg allowed
northerners to frustrate southern slave owners in their quest to recapture runaway slaves. See
generally, Allen Johnson. “The Constitutionality of the Fugitive Slave Acts.” Yale Law Journal 31
(1921), pp. 161-182.
1 4 2 Dred Scott v. Sanford, 19 Howard 393 (1857).
1 4 3 Warren, The Supreme Court, II, pp. 294-297.
1 4 4 A Compilation o f the Messages and Papers o f Presidents. New York: Bureau of National
Literature, Inc., 1897, VII, p. 2962, emphasis added. See also Mark A. Graber. “The Nonmajoritarian
Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7
(1993), pp. 46-50; Mark Graber. “Desperately Ducking Slavery.' Dred Scott and Contemporary
Constitutional Theory.” Constitutional Commentary 14 (1997), pp. 271-318.
1 4 5 Congressional Globe, 34th Cong., 3"1 Sess. (January 12, 1857), p. 300.
1 4 6 Congressional Globe, 35* Cong., 1“ Sess. (March 3, 1858), pp. 941-945.
1 4 7 Congressional Globe, 35* Cong., 1“ Sess. (February 8, 1858), pp. 616-617.
1 4 8 Congressional Globe, 35* Cong., 1“ Sess. (January 20,1858), p. 343.
1 4 9 Congressional Globe, 35* Cong., 1“ Sess. (January 18,1858), p. 327.
1 5 0 Congressional Globe., 35* Cong., 1 “ Sess. (February 8, 1858), pp. 616, 620.
,S I Congressional Globe., 35* Cong., 1“ Sess. (March 9, 1858), p. 1004.
1 5 2 Ibid.
1 5 3 Congressional Globe, 35* Cong., 1 st Sess. (March 2, 1858), p. 924, emphasis added.
1 5 4 Congressional Globe, 35* Cong., 1“ Sess. (May 6, 1858), p. 2011.
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1 5 5 Congressional Globe, 35* Cong., 1 “ Sess. (February 8, 1858), pp. 615-620.
1 5 6 Congressional Globe, 35* Cong., 1st Sess. (March 2, 1858), p. 1316, emphasis added.
1 5 7 Congressional Globe, 35* Cong.,l“ Sess. (December 19, 1859), p. 179.
1 5 8 Messages and Papers o f Presidents, VII, p. 3086.
1 5 9 Warren, The Supreme Court n, p. 333.
1 6 0 Congressional Globe, 35* Cong., 2n d Sess. (February 7, 1859), p. 74 (Appendix). Earlier in the
day. Bliss had addressed the Judiciary Committee, and argued that the “Supreme Court was not
authority upon political questions, and that its decisions upon constitutional questions must not
necessarily stand until reversed.” (p. 875).
1 6 1 Ibid., p. 74.
1 6 2 The compilations of the Lincoln-Douglas Debates have come from the newspaper reporters who
covered them. See Douglas L. Wilson. “The Unfinished Text of the Lincoln-Douglas Debates.”
Journal o f the Abraham Lincoln Association 15 (1994), pp. 70-84. In this dissertation, I rely on Paul
Finkelman’s edited version of the Lincoln-Douglas Debates. For a complete account of the debates,
see Paul M. Angle. Created Equal? The Complete Lincoln-Douglas Debates o f 1858. Chicago: The
University of Chicago Press, 1958. See also William H. Townsend. ““Old Abe” and the “Little
Giant.”” American Bar Association Journal 8 (1927), pp. 99-104.
1 6 3 For a personal account of the debate, see Seymour Douglas Thompson. “Lincoln and Douglas: The
Great Freeport Debate.” The American Law Review 39 (1905), pp. 11-12.
1 6 4 Finkelman, Dred Scott and Documents, p. 213.
1 6 5 Ibid., p. 214, emphasis added. Douglas expressed similar sentiments at a July 17, 1858 speech in
Springfield. He stated that “if the people of a territory want slavery they will have it, and if they do
not want it they will drive it out, and you cannot force it on them. Slavery cannot exist a day in the
midst of an unfriendly people with unfriendly laws" (p. 209, emphasis added).
1 6 6 See generally, Don E. Fehrenbacher, “Lincoln, Douglas, and the “Freeport Question.”” The
American Historical Review 66 (1961), pp. 599-617.
1 6 7 See generally, Robert W. Johannsen. “Stephen A. Douglas, “Harper’s Magazine,” and Popular
Sovereignty.” The Mississippi Valley Historical Review 45 (1958), pp. 606-631.
1 6 8 Stephen A. Douglas. “The Dividing Line Between Federal and Local Authority: Popular
Sovereignty and the Territories.” Harper’ s New Monthly Magazine 19 (1859), pp. 520-521.
1 6 9 Finkelman, Dred Scott and Documents, p. 214.
1 7 0 Ibid., p. 201.
1 7 1 Ibid., pp. 207-208.
1 7 2 Quoted in David M. O’ Brien. Constitutional Law and Politics: Struggles fo r Power and
Governmental Authority. Vol. I. New York: W.W. Norton and Company, 1991, p. 34.
Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.
1 7 3 Reprinted in Kemit Hall and William M. Wiecek, and Paul Finkelman, eds. American Legal
History: Cases and Materials. 2n d ed. New York and Oxford: Oxford University Press, 1996, p. 222.
1 7 4 Edward McMahon (b). “Stephen A. Douglas: A Study of the Attempt to Settle the Question of
Slavery in the Territories by the Application of Popular Sovereignty, 1850-1860.” Washington
Historical Quarterly 2 (July 1908), p. 324.
1 7 5 See generally, Wayne D. Moore. Constitutional Rights and Powers o f the People. Princeton:
Princeton University Press, 1996.
1 7 6 S.S. Gregory. “A Historic Judicial Controversy and Some Reflections Suggested By It.” Michigan
Law Review 11 (1913), pp, 179-197; Horace H. Hagan. “Ableman vs. Booth.” American Bar
Association Journal 17 (1931), pp. 19-24. Hagan writes, “no judicial pronouncement in Virginia or
Georgia ever assumed a more defiant state’ rights tone” (p. 20).
1 7 7 In Re Booth, 3 Wis. 1, 13 (1854).
1 7 8 Ibid., p. 30.
1 7 9 Ibid., pp. 32, 48.
1 8 0 The details of these cases are outlined in Jenni Parrish. “The Booth Cases: Final Step to the Civil
War.” Willamette Law Review 29 (1993), pp. 237-277; John B. Winslow. “The Booth Case - A
Chapter From the Judicial History of Wisconsin.” Proceedings o f the Illinois State Bar Association 29
(1905), pp. 43-65. For a description of this Booth episode from the enforcement prospective, see A.J
Beitzinger. “Federal Law Enforcement and the Booth Cases.” Marquette Law Review 41 (1957), pp.
7-32.
1 8 1 Ableman v. Booth, 21 Howard 506, 515 (1858).
1 8 2 Ibid., pp. 518-519.
1 8 3 Ibid., pp. 520-521.
1 8 4 Ames, State Documents, pp. 304-305. See generally, James L. Sellers. “Republicanism and State
Rights in Wisconsin.” The Mississippi Valley Historical Review 17 (1930), pp. 213-229.
1 8 5 Vroman Mason. “The Fugitive Slave Law in Wisconsin, With Reference to Nullification
Sentiment.” Proceedings o f the State Historical Society o f Wisconsin (1895), p. 134.
1 8 6 Messages and Papers o f the Presidents VII, p. 3161.
1 8 7 Congressional Globe, 36th Cong., 1“ Sess. (January 24, 1860), p. 89 (Appendix)
1 8 8 Congressional Globe, 36* Cong., 1st Sess. (February 11,1860), pp. 762,764,767.
1 8 9 Congressional Globe, 36* Cong., 1“ Sess. (February 21, 1860), pp. 121-127.
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Chapter 4
Popular Sovereignty as Creation, Revisited
The Re-Explosion of the People “Out-of-Dorrs”
The making of a constitution paramount is no act of government; it
always exists; it is the immediate work of God, and a part of nature
itself.... Neither can the legislature create a constitution; since the
legislature itself is the creature of the written constitution, is
posterior and subordinate to it.... Neither can the legislature judge
of the necessity of forming a constitution, or dictate when or how it
shall be formed. To the court is referred to pronounce judgment; to
the legislature, the enacting of laws; and to the people, the forming
of a constitution.
George Burrill (1797)1
Introduction
The early debates over the institutionalization of popular sovereignty centered on the
creation and interpretation of state and federal constitutions. The controversy over creation
pitted constitutional conventions against legislatures for the right to draft a constitution.
However, after the constitutions were constructed they had to be construed, and alternative
theories of popular sovereignty generated alternative theories of constitutional review and
interpretation. These debates focused on which political institution had the ultimate authority
to interpret the will of the people as embodied in a constitution - courts, legislatures,
executives, or conventions. Immediately following the creation of the Republic, rive models
of interpretation emerged, and different models were invoked to justify institutional practices.
Despite their differences, each of these models was premised upon imposing limits on the
exercise of popular sovereignty by keeping its expression in existing legal institutions.
In this chapter, I show that in the midst of these debates over interpretation, debates
over creation were occurring simultaneously. This was partly due to the surge in democratic
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feeling of the Jacksonian era. This time, alternative theories of popular sovereignty generated
alternative theories of constitutional construction and creation. As early as the 1780s, the
nation was forced to come to grips with the possibility of how to organize territorial
governments and eventually new state constitutions. In addition, some states amended their
constitutions to adapt to the changing, more democratic political environment. Once again,
the battle over which institution would create or recreate a constitution arose.
In The Creation o f the American Republic, Gordon Wood documents how in the years
leading up to the American Revolution, Americans participated in various extra-legal
organizations as a means of expressing their will independently of government. The politics
“out-of-doors” embodied the sovereignty of the people over their representatives whereby the
people channeled their power into committees, associations, and constitutional conventions.
The era of constitution making immediately following the American Revolution witnessed an
explosion of the people “out-of-doors.” Wood argues, however, that after the excessive
democracy of the early 1780s, popular sovereignty “out-of-doors” was tamed by the
Constitution as the people were sucked up into institutional arrangements at the state and
national levels. As Joyce Appleby writes, “the sovereign people were restrained once the
Constitution was ratified.”2 In particular, constitutional scholars argue that the idea of popular
sovereignty was immediately invoked to empower the federal courts, yet, this, too, was
contested. The ensuing battles over interpretation centered on how the people expressed their
will through existing governmental institutions, not independently of them. In this chapter I
argue that during this era of creation and recreation, there was a surge of the people “out-of-
doors” in three areas - the amendment of state constitutions, the Dorr Rebellion, and the
creation of territorial governments. These events re-ignited the earlier debate over whether the
people could act independently of government and institutional arrangements to reconstitute
their political system. But unlike the era of the American Revolution, a different type of
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politics of creation/recreation was in play. During the era of the Revolution, constitutions
were created from scratch and often by unauthorized institutions. In the 1820s, 1830s, and
1840s, people attempted creation and recreation in the context of existing authorized
institutions, and this complicated the politics of popular sovereignty as more persistent
arguments on the institutional limits of the exercise of power “out of doors” - limits that took
the form of existing constitutions and institutions, were put forth.
Controversy centered on the role of constitutional conventions in this process. In the
revolutionary era, conventions vied with other institutions for the right to create constitutions.
Many of these conventions, however, were unauthorized and were often extensions of other
unauthorized bodies, the provincial congresses. Conventions were also the center of attention
when they competed for the right to interpret during the War of 1812 (Hartford Convention)
and during the Nullification Crisis. By the 1820s and 1830s, nearly all states altered their
existing constitutions in conventions. But unlike in the previous era, these conventions were
authorized by existing constitutions and institutions, which made it possible to impose greater
limits on the exercise of popular sovereignty.
There were three main issues of contention surrounding the theory of popular
sovereignty that remerged during the first half of the nineteenth century. First, who exactly
were the people? Second, did the people need legislative authorization before instituting a new
government or amending an existing one? Finally, could a legislature limit a convention’s
authority, or were the people superior to their legislative representatives? The controversy
surrounding these events, along with simultaneous debates over interpretation highlighted and
complicated the problem of the institutionalization of popular sovereignty or more
specifically, the reconstitution of popular sovereignty.
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The Revision of State Constitutions
Although Americans believed in the distinction between statutes and constitutions, for
practical reasons, they did not practice it. The same institution that declared independence,
framed the constitution, and exercised power under it. Although some of the revolutionary
preambles and bill of rights recognized the inalienable right of the people to abolish or amend
their government, many of these constitutions lacked an amendment provision.3 Instead, the
power to amend was in the hands of the legislature. Yet, legislators were resistant to change
and refused to heed the request of reformers who demanded that the early state constitutions
be brought in line with economic and social changes primarily attributable to the Industrial
Revolution. Starting in 1800, the mood of the country was ripe for reform as Jefferson
ascended to the presidency, and as new states entered the Union with constitutions that were
more democratic than those of the older states. Add to this the forces of Jacksonian
democracy and it became dear that the constitutions of the other states could not remain
unchanged. Reformers demanded equitable representation, a wider franchise, a popularly
elected governor, and independent courts. In many states, they also demanded internal
improvements to enhance trade and economic development.
Legislators claimed their power derived from the people, yet, by the 1820s, it was
obvious that the “people” were not really represented in the legislatures. The early
constitutions maintained the hegemony of landed interests (mainly easterners) at the expense
of commercially minded westerners. A minority of property owning white males was
determined to hold onto power over the majority (non property owning white males).
Legislatures were averse to calling conventions because it would strip easterners (who
controlled the legislatures) of their power. As Fletcher Green writes for the South,
The people of the eastern region realized that if conventions were
held a redistribution of representation would almost certainly result.
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The control of the state government would then shift to the more
populous western parts of the states. Not only that, but the people
of the west differed in their political ideals from those of the east.
They were much more democratic, and the eastern people feared
that popular election of the governor, judges, and other officers
would result. Finally the members from the east feared that if the
west got control of the state governments Negro slaves would be
taxed to raise revenue to carry on an extensive plan of internal
improvements.4
But the impulse for greater universal (adult white male) political participation was too great,
and conventions were the final means to that end. This phenomenon was occurring across the
country. In this chapter, I concentrate on two states - Virginia and North Carolina.
The Virginia Constitution of 1776 was criticized almost immediately after its adoption
and it soon turned into a sectional conflict between the east and the west.3 Thomas
Jefferson’s Notes on the State o f Virginia criticized the document on four major grounds:
unequal representation, lack of suffrage, lack of a separation of powers (all power was
concentrated in the legislature), and that it was no different than an ordinary statute, subject to
legislative alteration.6 Jefferson’s “proper remedy’’ was a convention “to fix the constitution,
to amend its defects, to bind up the several branches of government by certain laws... and to
render unnecessary an appeal to the people...a rebellion... on every infraction of their
rights.”7 The Virginia Supreme Court took care of the fourth defect in Kamper v. Hawkins
where it affirmed that the Constitution of 1776 was a product of the sovereign people who
assembled in the convention for the purpose of creating a fundamental law. The Constitution,
therefore, was unalterable by the legislature and any act of the legislature in violation of the
permanent will of the people, was unconstitutional.8
The other defects in the Constitution were more difficult to fix since they favored
Virginia’s eastern elites who had no intention of giving up power. The increasing sectional rift
between the east and the west over legislative apportionment, suffrage, economic
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development, internal improvements, religion, and slavery, became the drive towards reform.
At the core of this struggle was the debate over the locus of citizenship and what defined a
community - for reformers, it was the individual; for conservatives, it was property.9 Unequal
representation and the exclusion of the majority Virginia’s freemen from franchise kept
easterners in power, but as the West grew in population and resources, it became more vocal
in challenging the existing constitutional order.
Since 1800, hardly a single session of the Virginia legislature went by without an
attempt to call a convention to revise the 1776 Constitution.1 0 Leading the charge was
Jefferson and his letter to Samuel Kercheval (written in 1816), where he warned against
shackling the present generation to the dead hand of the past. “I am certainly not an advocate
for frequent and untried changes in laws and constitutions,” he writes. But “laws and
institutions must go hand in hand with the progress of the human mind [and] as that becomes
more developed, more enlightened, as new discoveries are made, new truths disclosed, and
manners and opinions change with the change of circumstances, institutions must advance
also, and keep pace with the times.” He believed that a constitution should be changed every
nineteen or twenty years. “Each generation,” he continued, “is as independent of the one
preceding [and] has... a right to choose for itself the form of government it believes most
promotive of its own happiness.”"
Easterners in the legislature blocked many pro-convention petitions, but the legislature
finally called for a convention to meet in 1829. The issues of representation and suffrage were
a source of strife in deciding how to choose delegates to the convention. Malapportionment
and a lack of suffrage had kept a majority of adult white males from participating in the
political system, and if the same system were in place for the election of convention delegates,
conservatives would retain control. As Dickerson Bruce asks, “could a constitution, which
would define the limits of suffrage, be properly framed if all the people in the state — really, all
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adult white males- were not represented in the convention?”1 2 Westerners favored white
population for electing delegates and easterners favored the existing system of congressional
districts. A compromise was reached in which delegates would be chosen from each
senatorial district (4 per district), but this did not favor the West since they ended up 36 out of
the 96 delegates. Even more damaging to the reformers’ cause was definition of the electorate
- voting for convention delegates was restricted to freeholders.1 3
These issues along with structure of the executive and judicial branches resurfaced in
the convention and were the subject of intense debate.1 4 One of the main questions at the
convention was how much control the “people” should have over government. Reformers
argued for universal (white male) suffrage since majority of the white population were
excluded from politics even though they supported the government through taxes.
Conservatives feared the corrupting influence of the majority on politics. In the end, suffrage
was extended to only householders. Many different plans on representation were submitted
(white population, white population plus taxation, and federal numbers - white population
plus three-fifths of slaves). Conservatives eventually won with property (including slaves)
and taxation as the basis of representation in the House and Senate. With respect to the
selection of the executive and the judiciary, reformers believed that government agents should
be directly responsible to the people, while Conservatives argued that the people were not fit
to select their leaders - this was the prerogative of the legislature. They won this battle as
well. Conservatives also killed a plan for a constitutional amendment since they feared it was
an invitation for perpetual tampering with the constitution. The final ratification vote reflected
this sectional divide with the East supporting the constitution and the West opposing it.1 5
Virginia’s elites had reason to fear an increasingly agitated West, especially since
many westerners threatened to go outside the legislature if their demands were not met.1 6 The
legislature finally called a convention even though it did not have specific constitutional
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authorization to do so. This may have been due to increased pressure or simply a tactic to
diffuse opposition and deter the assembling of an extra-legal convention. But those in power
made sure that they controlled every aspect of the convention - from the selection of its
delegates to the final product. Yet, all over the country as the movement towards reform and
the drive towards more popular (as opposed to legislative) control of institutions heightened,
legislators had reason to fear conventions since with each revision their power was decreased.
This not only raised the specter of a convention exceeding its power, but it also resulted in a
direct counterattack by legislators to control the activities of the convention. But how much
authority did conventions yield? Were conventions under the control of legislatures? If so,
was this a violation popular sovereignty?
The role of conventions also played a part in North Carolina. A sectional rift also
plagued the State with the legislature refusing to heed the request of the majority, which, in
turn, led people to demand extra-legal (or illegal) conventions. In 1821, one newspaper writer
insisted that if the legislature refused to call a convention, the people “should assemble in
convention without the legislative sanction, and adopt such measures as the present and future
welfare of the state imperiously requires.” Another writer maintained that a “convention will
be assembled in the west, and the constitution amended without the concurrence of the east;
and this being the act of a majority...will consequently be obligatory on the whole state. The
constitution will be amended."1 1
In 1834, the legislature passed a Convention Act calling for a convention to amend the
Constitution. The “people” later approved the Act in a popular referendum. The Act laid out
exactly what was expected from the convention. The Convention was required to devise
amendments reducing the size of the Senate and the House, and to restructure representation
on the basis of taxation and federal numbers, respectively. The Convention was also
authorized to consider borough franchise, Negro enfranchisement, a religious test, a new
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method of electing the executive, judicial reforms and a method of amending the
constitution.1 8 The Convention was prohibited from revising the Bill of Rights or any part of
the Constitution not mentioned in the Act. Article X of the Act called upon all delegates to
take the following oath: “Ido solemnly swear...that I will not directly or indirectly evade or
disregard the duties enjoined or the limits imposed to this Convention by the people of North
Carolina as set forth in the Act of the General Assembly, passed in 1834, entitled ‘An Act to
amend the Constitution of the State of North Carolina,’ which Act was ratified by the
people.”1 9
The oath was the first subject of discussion at the Convention as delegates debated
whether it was proper for the legislature to prescribe an oath requiring them to abide by the
restrictions. Some delegates argued that the oath undermined popular sovereignty.2 0 If
conventions were the embodiment of popular sovereignty, then any attempt by legislatures to
dictate its activities violated popular sovereignty. One scholar argues that the mere fact that
the legislature included an oath provision in the Convention Act suggests that it doubted its
own power to control the convention.2 1 Supporters of the oath (westerners) insisted that since
the people had endorsed the Convention Act through a popular referendum, it was legally
binding. One delegate warned that if the Convention refused to abide by the provision set
forth in the Act, the Convention would cease to become one called by the people, and turn into
a “a self-constituted body.”2 2 Eventually, the delegates voted 88 to 22 to take the oath.
In the end, the North Carolina Senate was limited to 50 members and the House to
120 members, with representation based on taxation in the Senate and federal numbers in the
House. Other changes in the constitution included the adoption of biennial legislative sessions,
limits on the legislature to enact private legislation, popular election of the governor, greater
tolerance of Roman Catholics, impeachment of government officers, the election of militia
officers, and an amendment provision.2 3 The final ratification vote reflected deep sectional
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divisions - 90% of westerners voted in favor of the proposed constitution and 88% of
easterners disapproved of it.2 4
The debates in North Carolina over the oath and in Virginia over legislative control of
conventions, raises the issue of whether the people confer all their powers on a convention.
Who is sovereign - the people or a convention? Is a convention an extension of the people or
is it above the people? In other words, is there such as thing as John Jameson calls,
“conventional sovereignty?”
A Convention is a virtual assemblage of the people, a representative
body charged by the sovereign with the duty of framing the
fundamental law, for which purpose there is devolved upon it all the
power the sovereign itself possesses; in short, that, for the particular
business with which it is charged, a Convention is possessed of
sovereign powers, by virtue of which it overtops all the other
governmental agencies.”2 5
Caperton Braxton, in his commentaries on Virginia’s constitutional revisions feared
the prospect of an “Omnipotent Convention” - the idea that a free people cannot amend their
constitution without first surrendering all of their liberties to a convention clothed with
unlimited powers. Braxton made it clear that a “Constitutional Convention is not the People,
with sovereign and unlimited powers, but a mere Committee of the People, with only such
limited powers as the People may expressly bestow upon them, the granting of which powers
will be strictly construed against the Convention.”2 6 Braxton later writes, “if it be true... that
the people alone have the power of enacting or changing the Fundamental Law; that from
them alone does the Convention derive its powers in that regard; and that they can confer just
so much, or so little, of those powers upon the Convention as they please — then it is
necessarily follows that the Legislature (which is not “the People”) cannot prescribe the
Convention’s powers.” Yet, he asks, “of what use would this power of the People to limit the
authority of its agent, the Convention, if another agent, the Legislature, could, without
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permission of the People, alter such limitations?”2 7 What is the point of having a convention
if the legislature is going to tell it what to do?2 8
Roger Sherman Hoar, one of the strongest supporters of popular sovereignty and
constitutional conventions argued against legislative control of conventions. Hoar
distinguished between legislative and popular control of conventions, and argued that only the
people can bind a convention. Hoar agreed that in the case of North Carolina, this was
accomplished by popular approval of the Convention Act.2 9 The North Carolina Convention
was called by the legislature acting under the authority of the people, who then approved the
Constitution in a referendum. But assuming that the Convention Act was not submitted to the
people, is not the legislature an instrument (or at least one of the instruments) of the people? If
a convention was called by the legislature speaking for the people, then the only way in which
the people could limit the convention is through (not independently of) the legislature.
Where the limitations are included in the popular call for a
convention, they should probably be binding. If the people initiated
the call, this would be clear. But where, as is more usual, the
legislature frames, the call, this may in substance give the
legislature power to restrict. The only way in which the people
could avoid such a restriction would be to reject all proposals
containing it, and elect a legislature which would submit a proposal
without it; a clumsy and inadequate remedy.3 0
The debates over constitutional revision in Virginia and North Carolina represent two
types of struggles over the expression of popular sovereignty in the “out-of-doors.” In both
states, the need for democratic and constitutional reform was at its peak. The constitutions did
not provide a method of constitutional revision but they did contain provisions that recognized
the inalienable right of the people to alter their governments. Yet, a minority of eastern elites
refused to enact reforms since they feared the prospect of too much popular control of
government. The threat of extra-legal conventions by the western majority was enough to
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force the legislatures to call authorized conventions, but conservatives were not about to give
up power without a fight. In both states, conservatives deflected the possibility of an extra-
legal (and illegal) convention by having the legislature call the convention and doing
everything in their power to control its outcome. The mere fact that the legislatures called the
conventions suggests a desire to quell democratic tendencies and to place limits on the
exercise of popular sovereignty.
In Virginia, conservatives successfully gained control of the convention and its
outcome. The result was a document that preserved the basic structure of the old
constitutional order. Westerners made every effort to defeat the Constitution, but were
overcome by the conservatives. Western reformers in North Carolina overwhelmingly
supported the Convention Act and were successful in instituting democratic changes.
However, the oath requirement suggests that those in power (eastern conservatives) were
intent on holding on whatever was left of the old order. Western reformers objected to the
oath because it slighted popular sovereignty. Ironically, easterners supported the oath by
relying on popular sovereignty. Eventually, reformers prevailed and this was reflected in the
final ratification vote. These two case studies demonstrate that constitutional conventions,
which were supposed to be separate from the institutions of government, were limited by the
institutions themselves. By implication, the expression of popular sovereignty was also
limited even when it was exercised in the “out of doors.”
The Dorr Rebellion
Before Independence, the colonies were governed by charters granted to them by the
crown. Beginning in 1774, the colonies replaced these charters with constitutions. Rhode
Island and Connecticut remained governed under their existing charters, although sovereignty
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was transferred from the King to the people. At the turn of the century with industrialization
and the democratization of American politics, many Rhode Islanders became dissatisfied with
the existing political structure. The Charter was ill equipped to handle the changes brought on
by industrialization and calls for constitutional reform ensued. The reformers criticized the
stringent suffrage requirements that restricted voting rights to the minority of landowners and
the inequitable apportionment of the legislature that did not take into account the burgeoning
growth in the cities. The existing Assembly, however, had no intention of heeding to the
demands of reformers. After the reformers exhausted all attempts to work through the regular
institutions of government, they sought to change the system outside existing legal
structures.3 1
The key to understanding the logic behind the Dorr Rebellion is the distinction
between the right of revolution and the right of revolution. The former is embodied in the
Declaration of Independence as the Lockean right of the people to overthrow an abusive
government through violent means. The latter is predicated upon the right of peaceable
revolution or the right of the majority of people as electors to alter their government at any
time and for any reason. Indeed, the legality of the federal Constitution was premised upon
the right of the people to reconstitute their political system at will.3 2 As George Dennison
writes, “[t]he right of revolution, the Lockean concept of the right to wage war against
government in defense of recognized rights, had become by 1787 the right of revolution in
practice; The American concept of the right of the majority of the people to choose the form of
government they preferred.”3 3
The Rhode Island reform movement was originally composed of radical workingmen
who demanded legislative reapportionment and the extension of suffrage. In 1834, a more
moderate group of professionals (the Constitutional Party) led by Thomas Wilson Dorr took
over the movement. Dorr became a member of the Assembly and unsuccessfully tried to
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persuade the legislature to call a constitutional convention to institute these reforms. The
Party collapsed and the Rhode Island Suffragist Association, the more radical wing of the
movement emerged in 1840 after the presidential election highlighted the plight of
disenfranchised Rhode Islanders.3 4 The Association’s goals centered on broadening political
participation and equalizing representation, but after exhausting all regular political channels,
it began to realize that its goals had to be changed. In its July 1841 Address, the Association
stated that it was “quite apparent” that the people of Rhode Island “can find no redress through
the ballot box, from which, by law, they are excluded.” The people were called upon to
“resume their original powers, and assert their original rights.” The Association shifted its
energies from advancing specific reforms towards embracing the idea that the people had the
right to act independently of existing authority.3 3 Dorr later joined the movement and pushed
through his doctrine of Popular Constituent Sovereignty - “the doctrine that the people
possessed ample wisdom and authority to form a new constitution without prior government
action.”3 6 This theory was consistent with what Robert R. Palmer termed the theory of
“popular constituent power” which was an important contribution to “Democratic Revolution”
in the eighteenth century.3 7 To the Dorrites, this doctrine was a “reaffirmation of the
principles of 1776.”3 8
Rhode Island’s reformers insisted that no mode of amendment in a constitution could
prevent the majority of people from altering their government. The Charter, however,
provided no form of amendment, yet this did not stop reformers from demanding change. In
fact, the absence of amendment procedures strengthened their argument that the people
retained the authority to change their government. The key point of contention was whether
the people had the right to bypass the legislature in this process.
In July 1841, after numerous attempts to persuade the Assembly to call a
constitutional convention, the Association summoned an unofficial and unauthorized
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convention (The People’s Convention) to draft a “People’s Constitution” that was later ratified
by the people. Meanwhile, the Assembly authorized a convention (The Landholders or
Freeman’s Convention) to draft a constitution, yet that constitution failed to win popular
approval. Under the rules, Rhode Island was still governed under the existing Charter. After
the defeat of the Landholders Constitution, the Assembly sought to keep elections under the
People’s Constitution from taking place. The Assembly passed a criminal statute, “An Act in
Relation to Offenses against the Sovereign Power of the State,” declaring all elections not
made in pursuance of existing State laws, illegal and void. Despite the Act, in the spring of
1842, elections under both constitutions were held and Dorr and Samuel King were elected
governor of their respective governments.3 9
With two constitutions, two legislatures, and two governors, Rhode Island was at a
constitutional impasse. In the midst of this crisis, two key issues arose. First, who were the
“people”? Under the Charter, only property owners, the majority of legally constituted
individuals who were recognized by law, could participate in the political process. The
Suffragists believed that the majority of all people should participate and that a majority of
people had the right to create a new constitution. Yet, a committee of eighteen citizens
summoned the People’s Convention. Furthermore, during the Convention, the party of the
“people” skirted the issue of Negro inclusion.4 0 The Constitution was ratified by a “majority
of the people” - 13,944 out of 23,142. But as Arthur Mowry asks, “of what people?” The
Convention provided that any male over twenty-one years of age that had resided in the State
for one year was eligible to vote. But that excluded blacks, the insane, criminals, those under
guardianship and more than 80,000 women and children, which was a far cry from 23, 142
“people.”4'
History has judged the Suffragists as the party of the people; the champions of popular
sovereignty, while Conservatives have been scolded for trying to hold on to power in an
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increasing democratic environment. Yet, both groups believed that the people were sovereign,
yet they advocated different versions of popular sovereignty. Suffragists started with the
premise that “the people” included “all American citizens residing permanently in the state.”
Yet, they soon qualified it to only adult white males. Conservatives distinguished between the
“natural people” and the “corporate people,” or the “body politic.” The former included the
entire human population, but even the Suffragists refused to embrace such a concept. Under
the latter, the “people” meant those who could vote. This determination was prescribed in the
fundamental law of the state and could be recognized by only legally constituted authorities.4 3
Sovereignty, therefore, was a “carefully defined, limited, and circumcised power to be
exercised under by the people’s representatives under established law - i.e., legitimate
modes.”4 3
Second, did the “people” have the right to form a constitution without legislative
authorization? Conservatives agreed with the Suffragists that the people had the right to make
and alter their constitutions, but the people could express themselves only when authorized by
existing law. Since the legislature was the voice of all the people, any popular action outside
legitimate channels was void and revolutionary since it compromised the foundation of the
law and government.4 4 In 1844, an anonymous citizen of Massachusetts called the idea that
the “majority of people have the right at any time, and in their own mode and without any
action of the Legislature, to assemble and alter the constitution, or form and adopt a new one,
as they please,” a “most monstrous departure from the true principles of our institutions.” It
would “destroy our liberties” and “render null and void all the precautions taken by our
ancestors to establish those liberties upon the firm foundations of principle and justice.”4 3 The
people could act only through existing institutional structures set up to protect their liberties,
and as the anonymous citizen noted, “a constitution can only be made binding on the whole
people, when existing public organs have superintended its adoption• ”4 6
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Suffragists argued that since the legislature was not responsive to the people, the
people had the right to act without its blessing. As early as 1797, one of Rhode Island’s first
constitutional reformers, George Burrill denied that the “ legislature [can] judge the necessity
of forming a constitution, or dictate when or how it shall be formed for these are the
prerogatives of the people.” He believed that the legislature was an “incompetent tribunal” to
handle constitutional creation and that “exclusive jurisdiction” over such matters rested with
the people.4 7 In 1833, reformer Seth Luther delivered a speech calling on people to bypass the
existing government and appoint delegates to a constitutional convention.4 8
The year 1842 was a very tumultuous time in Rhode Island’s constitutional history.
On May 3 and 4, “Governor” Dorr and delegates elected under the People’s Constitution met
in a Providence building to begin a new government. On May 17, Dorr tried to seize
Providence’s city arsenal. On June 25, the Charter government declared martial law and
warned “all persons against any intercourse or connexion with the traitor Thomas Wilson
Dorr, or his deluded adherents, now assembled in arms against the laws and authorities of this
State.” Dorr’s rebellion was unsuccessful and he fled the State with a warrant for his arrest
pending.
In the midst of this crisis, the doctrine of Popular Constituent Sovereignty became the
focus of attention. In January 1842, Federal Judge John Pitman issued a pamphlet, To the
Members o f the General Assembly, arguing that the People’s Constitution was “framed
without law; put out to the people without law, [and]... voted upon, without law, by persons
who in no legal sense are people of this state.”4 9 On March 2,1842, three judges of the Rhode
Island Supreme Court issued an opinion denouncing the People’s Constitution as a mere
expression of public opinion that had no “binding force” and an act of “treason against this
State, if not the United States.”5 0 In response, Dorr issued a statement (the Nine Lawyers’
Opinion) defending the People’s Constitution. He argued that constitutions were an
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expression of the will of the people who did not need legislative authorization to act. The
“doctrine of necessary permission” from the legislature before a constitution could be created
derived from England where sovereignty resided in the legislature. Such a doctrine, however,
had “no application in this country, where sovereignty resides in the people.”5 1 He also
believed that the people had the authority to act independently of the legislature regardless of
whether a constitution contained provisions for constitutional change.
In 1842, the president of Brown University, Reverend Francis Way land delivered a
scolding sermon about the Suffragist movement and the idea that the majority had a right to
break existing laws and the Constitution.
If an established government may be overturned on the principles
which have been advocated, and in the manner which we have seen
attempted, no constitution in the land is worth the parchment on
which it is written. All that would be necessary in order to establish
unlimited power over us, would be, without the forms of law, to lay
claim to a majority, and assembly as sufficient number of armed
men to carry its decision into effect.5 2
Later that year, John Augustus, a member of the Boston bar criticized Wayland for attacking
the “grand doctrine” that “the people have, at all times, the unquestionable right, in such
manner as to them may seem fit, to institute, alter, reform, or abolish the government.”5 3
Finally, an anonymous pamphlet sympathetic to the Dorrite cause proclaimed the following:
We maintain, that the only supreme power is the people; and that
this power towers above all charters, constitutions, or antiquated
parchments, whether they be signed by the crowned or the
uncrowned. The people have the full right, at any time, and at all
times, in their primary capacity, to “alter, amend, or abolish” the
forms of government under which they live.5 4
In the midst of the “civil war,” each side tried to win the support of the federal
government. Federal officials, however, were reluctant to get involved in Rhode Island’s
internal political problems. In May 1842, “Governor” Dorr visited President Tyler and
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although Tyler expressed sympathy for the Dorrite cause, Dorr distrusted him. “Governor”
King also met with Tyler requesting that the President “interpose the authority and power of
the United States” to quell the “insurrectionary and lawless assemblages” in the State. Tyler
refused, but he did advise King that if conciliatory measures did not produce peace, then
federal intervention might be a possibility.5 5 Both sides were not satisfied with Tyler’s
response, yet the fact that Tyler hinted at the possibility for federal involvement suggests that
he accepted the legitimacy of the Charter government.
Dorr also tried to solicit support from Congress, but to no avail. The next step was
the judiciary. Since the founding era, courts, including those of Rhode Island, invoked
competing conceptions of popular sovereignty to justify their interpretive authority over the
constitution. The judiciary, in particular, the Supreme Court, participated in the taming of
popular sovereignty by diverting its expression from the “out-of-doors” into institutions, in
particular, the judiciary. Other institutions within the political system fought for this right to
interpret and criticized the Court for usurping its power. Now, the judiciary was called upon
to decide which conception of popular sovereignty was a legitimate justification for
constitutional creation. Would the judiciary maintain its hold on popular sovereignty by
siding with the conservative idea that the people could act only when authorized existing
institutions? Or would they open the “doors” that were closed in 1787 and allow the people to
act independently of these institutional arrangements?
Dorr returned to Rhode Island and was arrested and on April 26,1844, he was tried
before the State Supreme Court for treason against the State (State v. Dorr). The trial
consisted primarily of examining witnesses about Dorr’s role in the rebellion and whether he
committed treason by assuming the reigns of power. Dorr wanted to show that he was not
usurping power, but rather that he was authorized to act. He could do this only by proving that
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the People’ Constitution was valid. The Court refused to entertain that motion nor did it heed
the defense's request to question whether treason could be committed against the federal
government and not a State. The sole question before the Court was whether Dorr committed
treason against Rhode Island and the jury returned a guilty verdict.
What stands out in this case is the refusal of the Court to rule on the validity of the
People’s Constitution on the grounds that it was a political question. Yet, at the same time,
the Court seemed to reject any possibility for the people to act in the “out of doors." Chief
Justice Durfee issued the charge to the jury. He considered the treason question irrelevant to
the guilt of Dorr, but he nonetheless rejected the defense’s contention that sovereignty resided
in the people of the United States as a whole. He also made it clear that the people can
organize only in so far as the constitution allows. “We know of no people of the United
States, save that which the constitution of the Union has organized and formed, and they are
sovereign only to the extent and in the qualified sense, which that instrument expressly grants
and defines”5 6 With respect to the validity of People’s Constitution, Durfee argued that this
was a prerogative of the legislature and not the judiciary. If the judiciary were to rule on this
question, it would place itself above the people as constitutional creators.
It is the Legislature, which, in the exercise of its delegated
sovereignty, counts the votes and declares whether a constitution be
adopted or a Governor elected or not, and we cannot revise and
reverse their acts, in this particular, without usurping their power.
Were the votes on the adoption of our present constitution now
offered here to prove that it was, or was not adopted, or those given
for the Governor under it, to prove that he was or was not elected,
we could not receive the evidence ourselves, we could not permit it
to pass to the Jury. And why not? Because, if we did so, we should
cease to be a mere judicial, and become a political tribunal, with the
whole sovereignty in our hands. Neither the people nor the
Legislature would be sovereign. We should be sovereign, or you
[the jury] would be sovereign; and we should deal out to parties
litigant, here at our bar, sovereignty to this or that, according to
rules or laws of our own making, and heretofore unknown in Courts.
In what condition would this country be, if appeals could thus be
taken to Courts and Juries? This Jury might decide one way, and
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that another, and the sovereignty might be found here today, and
there tomorrow. Sovereignty is above courts or juries, and the
creature cannot sit in judgment of its creator.3 7
Dorr appealed to the United States Supreme Court asking for a writ of habeas corpus, but the
Court denied that it had jurisdiction to issue a writ for a prisoner prosecuted in a State court.3 8
The next opportunity for the Suffragists to obtain a judicial stamp of approval for their
cause was Luther v. Borden. On June 29, 1842, Luther Borden, a militiaman under the
Charter government, broke into the home of Rachel Luther looking for her son, Dorrite
sympathizer Martin Luther. Martin Luther, who was hiding in Massachusetts, riled a trespass
action against Borden in the federal Circuit Court in Rhode Island. The defense argued that
the Charter government was the legal government of Rhode Island, that it had the authority to
declare martial law, and that Borden was acting as an agent of the government. The defense
also noted that Luther participated in an uprising to overthrow the legal authority of the State.
Luther argued that as of June 1842, the Charter government was no longer the legal
government of Rhode Island since it was superseded by the People’s Constitution. His
attorneys showed that the Charter Assembly failed to recognize the expression of popular
sovereignty in the People’s Constitution by refusing to heed the reigns of power. Judges
Joseph Story and John Pitman ruled that the Charter government had been in full force at the
time of the incident and the jury found Borden and his men not guilty.3 9 Rachel Luther also
riled a suit against Borden in the same court. The focus was not the right of people to abolish
a government at will, but rather whether the legislature was justified in declaring martial law.
The Court (through Story) answered in the affirmative.6 0 Both decisions were appealed to the
United States Supreme Court as one case.
There were three main points of contention in Luther v. Borden. First, did the Court
have jurisdiction to hear the matter or was it a political question? Second, which government,
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the Charter government or the People’s government, was the legal government of the State?
Finally, did the State have the authority to declare martial law? The Court was unanimous on
the first two points, but disagreed on the third.
In order to determine which law governed this case, that is before the Court could
interpret the law, a determination had to be made as to which form of government was in force
at the time the law was passed. Attorney Benjamin Hallet, representing Rachel and Martin
Luther, argued that this prerogative belonged to the Court.
[W]e contend that it will be become indispensable... for this Court,
in order to determine this case, to decide, incidentally to the merits,
whether the People’s Constitution was in force in Rhode Island as
the fundamental law of the State; and hence the importance of this
cause, as presenting, in fact, a judicial test, before the highest
tribunal in the land, whether the theory of American free
government for the States of this Union is available to the people in
practice; in short, whether the basis of popular sovereignty is a
living principle, or a theory, always restrained in practice by the will
of the law-making power, and therefore subject and not sovereign.6 1
Hallet sought to prove the validity of the People’s Constitution and that it was in force in June
1842. He argued that by a convention of the people and by a vote of the majority of the adult
white male population, a peaceful and not revolutionary change in the organic law of the State
had taken place. To those who argued that this change was not statutorily authorized, Hallet
believed that the majority of people had the legal right to form a written constitution, and that
“this right is independent of the will or sanction of the Legislature, and can be exercised by the
right of eminent sovereignty in the people, without the form of a precedent statute law.”6 2 “Is
a constitution void and inoperative,” he asked, unless the Legislature request the people to
make it?”6 3 If legislative authorization is necessary before the people can call a convention to
institute constitutional reform, then “sovereignty is but a mockery, a delusion, and a snare.”
Hallet questioned how the people could be the source of all political power, “but if they
presume to exercise their sovereignty in establishing or changing constitutions of government,
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without consent of the Legislature, they shall be followed with pains and penalties, enforced
by the lawless despotism of Martial Law....”6 4
Like Hallet, Daniel Webster, the attorney for Luther Borden, believed in popular
sovereignty. “Well, then, let all admit, what none deny,” he said in his argument before the
Court, “that the only source of political power in this country is the people. Let us admit that
they are sovereign.”6 5 But the people cannot act in their sovereign capacity; rather, they must
establish a government and exercise power through their representatives. Webster made it
clear that the only way in which the will of the people could be ascertained is through legal
structures or else anarchy would ensue. He stated, “I believe that the will of the people must
prevail, when it is ascertained; but there must be some legal and authentic mode of
ascertaining that will; and then the people make what government they please.”6 6
Accordingly, “under the Constitution, no new form of government can be established in any
State, without the authority of the existing government.”6 7
Having defended the idea that popular sovereignty could be expressed only through
legally constituted institutions, Webster showed that sovereignty was above the institution that
he was famous for defending as the bulwark of popular sovereignty - the Supreme Court.
Drawing from Justice Durfee’s charge to the jury in the Dorr treason trial, Webster argued that
the Rhode Island question was not a matter of “judicial cognizance.” He did not feel that it
was proper for the Court to inquire into the “establishment of a new sovereignty.”6 8
On the one hand, Webster, like Judge Durfee in Dorr’s treason trial, could be making
the case for popular sovereignty — the people have a right to determine how to (re)constitute
the political system and the judiciary should not interfere with their actions. To do so would
make the judiciary superior to the people. Yet, on the other hand, the reason why Webster
(and Durfee) did not believe that the Court should decide between the two governments was
that the People’s Constitution was illegal and hence not amenable to judicial interpretation.
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Courts interpret only legally constituted constitutions (the Charter) and not illegally created
ones (the People’s Constitution). Webster proclaimed,
What, then, is the attempt of our adversaries? To put down one
sovereign government, and to put another up, by facts and
proceedings in regard to elections out o f doors, unauthorized by any
law whatever. Regular proceedings for a change of government may
in some cases, perhaps, be taken notice of by a court; but this court
must look elsewhere than out o f doors, and to public meetings,
irregular and unauthorized, for the decision of such a question as
this. It naturally looks to that authority under which it sits here, to
the provisions of the Constitution which have created this tribunal,
and to the laws by which its proceedings are regulated. It must look
to the acts of the government of the United States, in its various
branches.6 9
Justice Taney, who wrote the opinion for the Court, argued that the determination of
the validity of the People’s Constitution was not a judicial question. “Certainly, the question
which the plaintiff proposed to raise... has not heretofore been recognized as a judicial one in
any of the State courts.” He noted that in the formation of the constitutions after
Independence and the changes that have been made since then, “the political department has
always determined whether the proposed constitution or amendment was ratified or not by the
people of the State, and the judicial power has followed its decision.7 0 Taney made it clear
that under Article IV, section 4 of the Constitution (the Guarantee Clause), which guaranteed
to every State a “Republican Form of Government,” it rested with Congress to decide what
government is the established one in a State and it is the President who decides when to
interfere in civil disturbances within a State.7 1 Justice Woodbury, who dissented on the issue
of martial law, agreed with Taney that the “this court can never with propriety be called on
officially to be the umpire in questions merely political.”7 2
Although the Court refused to hear the case, Taney and Woodbury made important
assertions about the practice of popular sovereignty in the United States. On the one hand,
Dorr may have failed to get the Court to recognize his cause, but the Court justified its
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decision by defending the same principle that Dorr sought so hard to prove- popular
sovereignty. By refusing to decide the matter, the Taney and Woodbury opinions can be
viewed as a triumph for popular sovereignty and the people at the expense of the judiciary.
Courts are not superior to a constitution and the people who created it. They can
exercise power only when the people confirm it upon them. Taney wrote,
Judicial power presupposes an established government capable of
enacting laws and enforcing their execution, and of appointing
judges to expound and administer them. The acceptance of the
judicial office is a recognition of the authority of the government
from which it is derived. And if the authority of that government is
annulled and overthrown, the power of its courts and other officers
is annulled with it.7 3
Similarly, Woodbury argued that judicial power commences after the people make and
unmake their constitutions. He wrote,
Our power begins after theirs ends. Constitutions and laws precede
the judiciary, and we act only under and after them, and as to
disputed rights beneath them, rather than disputed points in making
them. We speak what is the law... we speak or construe what is the
constitution, after both are made, but we make, or revise, or control
neither.7 4
Courts, therefore, are not in a position to second-guess the decision of the people to
create or amend their constitution. The act of constitution making sets limits on institutional
(including judicial) power. Courts are constrained and subordinate to the people, and if they
were to comment on the validity of a constitution, they would be defining the scope of their
own power. Woodbury argued that courts check only legislative power, not the political
power of the people in the creation of institutional power. As servants of the people, judges
look to the people for direction on how to exercise their own power (i.e., judicial review). The
people have made it clear that they do not want the judiciary handling political matters. But if
the people “should ever think of making judges supreme arbiters in political controversies,”
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Woodbury feared that they would “dethrone themselves and lose one of their own birthright;
building up in this way...a new sovereign power in the republic... irresponsible and
unchangeable for life, and one more dangerous...than the worse elective oligarchy in the
worst of times.”7 5 Courts enforce what the people in their political capacity ordain and
establish. The judiciary’s role is to protect the fundamental will of the people as embodied in
a constitution. It is not supposed to determine what constitution the people, and by
implication, itself, must abide by. Woodbury concludes,
Instead of controlling the people in political affairs, the judiciary in
our system was designed rather to control individuals, on the one
hand, when encroaching, or to defend them, on the other, under the
Constitution and the laws, when they are encroached upon. And if
the judiciary at times seems to fill the important station of a check
on government, it is rather a check on the legislature, who may
attempt to pass laws contrary to the Constitution, or on the
executive, who may violate both the laws and Constitution, than on
the people themselves in their primary capacity as makers and
amenders of constitutions.7 6
The Court, therefore, will engage in the only process of interpretation and stay away from any
controversy surrounding creation - a victory for popular sovereignty.
Yet, on the other hand, the decision was a defeat for popular sovereignty. The Court
extolled the virtues of the political questions doctrine, but it did not prevent the Court from
taking a position on a political controversy that it felt was out of it jurisdiction.7 7 Both Taney
and Woodbury made it clear that the judiciary was not bound to interpret a constitution
whenever the people acting in the “out-of-doors” decide to change it. Rather, according to
Taney, judicial power derives from an established government. Woodbury admitted that even
in the midst of legislative oppression, “the people may not take the subject into their own
hands, independent of the legislature.”7 8 As George Dennison writes, the “entire argument
rested on the premise that sovereignty existed in the established institutions of government,
and not in people acting directly to exercise it.”7 9 In this case, the established government was
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the Charter authority and not the People’s Constitution. The Court recognized the Charter’s
validity which made it possible for Taney and Woodbury to interpret the original Charter and
rule on the question of martial law. Taney felt that under the charter, states had the power to
declare martial law, while Woodbury came to the opposite conclusion. But the mere fact that
the Court dealt with this issue even though it stated that there was no case with respect to
creation meant that the Court recognized the Charter government as the legally constituted
power in the State, and therefore, the Court could interpret that constitution to determine the
validity of martial law.
The judiciary cannot participate in the constitution making process since it would be
interfering with popular sovereignty. Ironically, Woodbury’s statement that the judiciary is a
check on the legislature rather than on the people themselves is twisted to actually subvert the
principle of protecting the exercise of extra-governmental political power.8 0 A legitimate
expression of popular sovereignty can take place only in institutional structures set up by the
“people” themselves in a constitution. Once that takes place, then the judiciary can interpret
the people’s will by checking legislative and executive abuses. But for the constitution or a
change in government to be valid, it must have the backing of the legally constituted
authorities whose power also derives from the constitution. Yet, the logic that courts can
check only legislative power and not the power of the people fails because it is the legislature
that decides when the “people” can create or amend a constitution by calling a convention.
This begs the question, what if the legislature refuses to allow the people to express their will?
The reform movement began as an attempt to the reconstitute the political system, but
it quickly turned into a controversy over the nature of the political system itself and the locus
of sovereignty. Luther v. Borden started out as a trespass case between citizens of two
different states, but quickly turned into a debate over the practice of popular sovereignty and
the role of the judiciary as constitutional interpreters to comment on constitutional creation.
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As Peter Magrath notes, “Luther’s innocuous-seeming trespass action was potentially a
vehicle for challenging the legality of the 1842 Charter Government and for retroactively
vindicating the People’s Constitution and the justice of Dorr’s cause.”8 1 Dorr failed to
persuade the Court to consider the merits of his case, yet the Court did not hesitate to
admonish Dorr for his illegal actions. Accordingly, the people could express their will only
through legally constituted institutions. By not even hearing the case itself, the Court kept the
people “indoors” and left little or no opportunity for them to exercise their politics “out of
doors.” The Court’s decision in Luther v. Martin finally put to rest Dorr’s efforts to uphold
the principles of Popular Constituent Sovereignty and as Gettleman put it, the defeat of those
principles, “became indelibly registered in American constitutional law.”8 2
Popular Sovereignty and the Territories
In the midst of the debates over recreation at the state level, the nation was also forced
to come to grips with the fate of the territories. The acquisition of land by Congress (either
through the relinquishing of claims by the states, purchase, or war) contributed to two main
issues of contention — first, how would these territories be transformed into states and second,
would slavery be permitted in these territories? It was this second issue that quickly
overwhelmed the first to the point that slavery became the litmus test for a state to be admitted
in to the Union.
First, could Congress, by virtue of Article IV § 3 of the Constitution that provides that
“Congress shall have the Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other property belonging to the United States...” set limits on how
and when a territory would be admitted to the Union? The Supreme Court had repeatedly
affirmed Congress’s plenary power over the territories. In Sere v. Laralde (1810), John
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Marshall found “congress possessing and exercising the absolute and undisputed power of
governing and legislating for the territor[ies]...”8 3 Marshall’s opinion in American Insurance
Company v. Cantor (1828) declared that in legislating for the territories. Congress exercised
the “combined powers of the general, and of the state government.”8 4 Finally, in U.S. v.
Gratiot et al. (1849), Marshall ruled that Congress’s power over the territories is “without
limitation” and is the “foundation upon which territorial government rests.”8 3
On July 13, 1787, the Continental Congress passed the Northwest Ordinance that
provided for the organization of the territory west of the Ohio River. Congress’ authority over
the territories seemed plenary, yet, the Ordinance’s constitutionality was continually
questioned. In particular, was statehood a right or a privilege extended to the territories at
Congress’ discretion? Were the people of the territories bound to respect the state boundaries
set forth in Article V or the exclusion of slavery stated in Article VI?8 6 Did the people of the
territories have the right to constitute their political system independently of Congress, and
was Congress bound to admit the territories into the Union unconditionally, or did Congress
exercise exclusive authority over the territories?
Article V provided that “whenever any of the said States shall have sixty thousand
free Inhabitants therein, such State shall be admitted by its Delegates into the Congress of the
United States, on an equal footing with the original States... and shall be at liberty to form a
permanent constitution and State government, provided the constitution and government so to
be formed, shall be republican....” But were the territories, once they reached sixty thousand
inhabitants, permitted to call a constitutional convention without authorization from
Congress? In 179S, Tennessee determined that it had more than the required inhabitants and a
majority of people voted in favor of statehood. A convention met and its results were
submitted to Congress, but Federalists in the Senate reported unfavorably on the matter and
argued that the census should not have occurred without congressional authorization. Even
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though Tennessee went ahead with elections under the new constitution, Congress refused to
admit Tennessee’s federal representatives until Congress had authorized it.8 7
Similar events took place in Michigan and California, but this was quickly overcome
by a bigger problem - slavery. If the territories could form constitutions without
congressional approval and literally force Congress to admit them to the Union, could
Congress still dictate the terms of their admittance to the Union? Article VI of the Northwest
Ordinance outlawed slavery in the territories, but could Congress mandate slave territories to
abide by this Article? Would members of a divided Congress from slave states accept such a
condition, thereby upsetting a delicate and unstable balance between slave and free states? As
Arthur Bestor wrote,
Territorial expansion drastically changed the character of the dispute
over slavery by entangling it with the constitutional problem of
devising forms of government for the rapidly settling West. Slavery
at last became, in the most direct and immediate sense, a
constitutional question, and thus capable of disrupting the Union. It
did so by assuming the form of acquisition about the power of
Congress to legislate for the territories.8 8
During the constitutional crisis, various conceptions of the scope of congressional
authority over slavery in the territories emerged. Whereas many northerners sought to
prohibit Congress from introducing slavery in the territories, most southerners insisted on
precluding Congress from regulating slavery in the territories. In an effort to drive a wedge
between pro- and antislavery forces, a new theory emerged - the principle of popular
sovereignty or squatter sovereignty, one that was designed to give the people of each territory
the choice of whether to legalize or prohibit slavery independently of both the states and the
federal government.
Traditional conceptions of congressional authority over the territories have their roots
in Article IV § 3 of the Constitution. Congress exercised full sovereignty and control over the
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territories, which meant that it could either exclude or legalize slavery in a particular
territory.8 9 By the 1840s, Congress’s traditional authority to legislate for the territories was re
conceptualized to accommodate two seemingly uncompromising positions. Free-soil
Democrats insisted that the Fifth Amendment’s due process clause prohibited slavery in the
territories and hence, Congress was constitutionally obligated to prevent its legalization.9 0
Adherents of the free-soil doctrine believed that the Constitution did not sanction slavery.
Slavery in a particular state existed by virtue of the positive law of that state and therefore, the
Constitution prohibited Congress from imposing slavery on the states.9 1
John C. Calhoun and other southerners, carrying the mantle of state sovereignty,
asserted that slave owners had the constitutional right by virtue of the due process clause of
the Fifth Amendment to take their slaves (property) into the territories. The “common-
property-of-the-states- doctrine” was premised upon the principle that the territories were the
common property of the sovereign states, not the federal government. Advocates of this
position referred to the compact theory of the Constitution to argue that since the federal
government was an agent of the states, it was to act as a “trustee” holding the territories for the
equal benefit of the people of the states. Congress could not intervene with the right of slave
owners to take their slaves into the territories held in common by the states.9 2
Under the doctrine of popular sovereignty, nonintervention meant that Congress was
prohibited from intervening with the rights of territorial inhabitants to control their own
internal affairs, including the status of slavery. First espoused by Senator Lewis Cass of
Michigan, who is considered the “Father of Popular Sovereignty,”9 3 the Cass Doctrine was
premised upon reconciling the possibility of the prohibition of slavery with the virtue of local
control. In a letter to Alfred O.P. Nicholson of Tennessee, Cass argued that Congress was
prohibited from deciding the fate of slavery in the territories. “Congress has no right to say
there shall be slavery in New York, or that there shall be no slavery in California; nor is there
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any other human power, but the people of those States, respectively, which can change the
relation existing therein...”9 4 “Leave it to the people,” he wrote, “who will be affected by this
question to adjust it upon their own responsibility, and in their own manner, and we shall
render another tribute to the original principles of government.”9 5 “There is no clause in the
Constitution,” he argued in a speech before the Senate in 1850, “which gives to Congress
express power to pass any law respecting slavery in the Territories.”9 6
Cass sought to make the best of both worlds by trying to reconcile the extreme
positions of the free-soilers and the proslavery constitutionalists. To accommodate the
antislavery interests, he insisted that if the residents of a territory opposed slavery, “you
cannot make them legislate in favor of it.”9 7 Although he tried to appeal to southerners by
advocating local (popular) control, Cass did not envision the introduction of slavery in a
territory where it had always been forbidden. Since Mexicans presently living in the
territories disapproved of slavery, Cass believed that they would undoubtedly vote against it.9 8
From the South’s perspective however, Cass had surrendered the territories to the antislavery
interests. Cass responded by insisting that if the people of the territories supported slavery,
then Congress had no right to prevent them from expressing their will.9 9 But Cass refused to
accept the proclamation that Congress was constitutionally obligated to protect slavery in
those territories where it existed.
Popular sovereignty would once again take center stage in the 1850s when Senator
Stephen A. Douglas of Illinois, chairman of the Senate Committee on the Territories,
pronounced it as his “great principle." Douglas denied each side of the “house divided” line
the right to dictate the internal operations of the territories. Either to prohibit or to establish
slavery by an act of Congress was a violation of the “fundamental principles of self-
government” in which the people should decide the matter for themselves. Only the people of
the territories were capable of deciding whether slavery was in their best interest.
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During the debates over the Compromise of 18S0, efforts were made to amend the bill
to prevent the territorial legislatures from establishing or prohibiting slavery in the Mexican
territories. Henry Clay unsuccessfully tried to push through a bill that would have stipulated
that no law could be passed by the territories “in respect to African slavery.”1 0 0 Mississippi
Senator Jefferson Davis responded by invoking the common property of states doctrine to
safeguard “those right[s] of property growing out of the institutions of African slavery.”1 0 1 In
an effort to protect southern rights, Davis introduced an amendment to prevent the territories
from legislating on slavery as well as the property rights of slave owners. In response,
Douglas invoked popular sovereignty and insisted that he was “opposed to any provision in
this bill prohibiting the people of the Territory from legislating in respect to African
Slavery.”1 0 2 Slavery, like all other domestic matters, “ought to be left to the decision of the
people themselves.” He also argued that “we ought to be content with whatever way they [the
people of the territories] may decide the question, because they have a much deeper interest in
these matters than we have, and know much better what institutions suit them than we, who
have never been there, can decide for them.”1 0 3 Douglas objected to the free-soil and
proslavery positions since they were not only designed to appease one side at the expense of
the other, but because they also required congressional involvement in the domestic affairs of
the territories. The commitment to popular sovereignty negated the possibility that Congress
could dictate the internal matters of the territories. As such, neither side was at a loss. “It is
no violation of southern rights to prohibit slavery, nor of northern rights to leave it to the
people to decide for themselves.” 1 0 4 Douglas insisted that neither the North nor the South had
any rights when it came to slavery in the territories. “... no geographical section of the Union
is entitled to any share of the territories.”1 0 5
Douglas was concerned with Davis’ proposition that slave owners had the right to take
their property into the former Mexican territories. He noted that the Davis amendment was an
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attempt to continue slavery on “the assumption that it is there already.”1 0 6 “No man,”
Douglas said, “advocates the extension of slavery over the territory now free.”1 0 7 The
Mexican territory “is now free by law and fact... and must forever remain free. It will be free
under any bill you may pass or without any bill at all.”1 0 8 Although he admitted that the
Mexican territory was free, the logic of popular sovereignty meant that while Congress had no
authority to protect the property rights of slave owners in the territories, nothing precluded the
territorial legislatures from doing so. By implication, the territories should be free not to
extend protection for property (slave) owners within their boundaries.
By leaving the issue of slavery to the people, Douglas sought to establish a middle
ground between two opposing forces. However, Douglas’s confidence in the viability of his
theory seemed to fade when it came to the actual practice of popular sovereignty. For
example, Davis challenged Douglas to indicate how many people would be necessary before
the right of popular sovereignty could be exercised. Without an exact number, Davis
expressed concern that one person in a territory could decide whether to legalize or prohibit
slavery.1 0 9 Douglas refused to offer a precise number stating that “the right ought to accrue to
the people at the moment they have enough to constitute a government.” Douglas’ only
attempt to explain what he meant by “enough people” was that Congress would be debating a
bill on the matter.1 1 0
Similarly, Douglas could not provide an adequate explanation as to when the doctrine
of popular sovereignty would take effect. In other words, at what point from the organization
of the territory to its application of admission to the Union would local autonomy commence?
Free-soilers maintained that popular sovereignty should apply to a territory from the moment
it was open for organization and settlement since that would keep the (already free) territories
free. Others like Davis argued that the inhabitants of a territory acquire the right to determine
the organization of their institutions (including slavery) once they become states.1 1 1 John A.
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Quitman, a proslavery Democrat from Mississippi argued that prior to statehood, territorial
inhabitants had “no right or power to impair the rights of citizens of any of the States to the
equal use, occupation, and enjoyment of the common territory of the States.”" 2 Yet, did this
admonition against impairing the rights of the States mean that the territories were required to
pass legislation protecting slave owners? Or could protection be ensured through non-action
in which the territories simply refrain from passing legislation regarding slavery?"3 Douglas
refused to deal with the timing issue and insisted that it was a question for the Supreme Court
to decide."4
Although reference to slavery was omitted in the Compromise measures, and the Utah
and Mexico territories were granted authority over “all rightful subjects of legislation,” the
question of whether Congress had the right to exclude slavery from the territories remained
unanswered. The principle of popular sovereignty triumphed, yet Congress refused to trust the
settlers to make all the decisions regarding slavery. Thus, both the New Mexico and Utah
Acts provided for appeals to the Supreme Court of all slave related cases tried before
territorial courts.1 1 5 Hence, if the territories opted to exclude slavery from their jurisdiction
and if a slave case arose under that prohibition, that case would be appealed to the Supreme
Court. The Court would then have no choice but to rule on whether Congress had the power
to exclude slavery from the territories. Upon determining the nature of congressional
authority, the Court would also have to decide whether slavery would be permitted or
prohibited in a particular territory. The latter proposition, if carried through, would have
rendered a defeat to the “great principle” of popular sovereignty.
Congressional nonintervention was replaced by a new type of intervention, one that
had been a major source of strife between the federal and state governments. Under these
Acts, “the Supreme Court, not the people acting through their territorial legislatures, would
ultimately decide whether slavery would exist in the territories.”" 6 The Supreme Court, not
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the sovereign people, would become the final arbiter of constitutional disputes over slavery in
the territories. Through the power of interpretation, the Court was given the authority to
comment on the creation of territorial governments. But would the South that had repeatedly
questioned the Court's interpretive authority permit the Court to decide a matter of creation?
The next major challenge for Douglas and his “great principle” was the organization
of the Nebraska Territory, which lay north of the parallel 36° 30, and was destined by law (the
Missouri Compromise) to be free. The South had always believed that the original ban on
slavery was unconstitutional. Southerners wanted the restriction repealed since they felt that it
was “an insult and a reproach to their section, a stigma implanted on their institutions by an
act of Congress of their country.”1 1 7 Interestingly, the original and primary motivation for the
organization of the territory was not slavery, but the construction of railroads to facilitate new
links across the nation."8 In order to succeed in the passage of a railroad bill, Douglas needed
the support of the South. But he was not willing to accept the common property of states
doctrine, nor was he inclined to agree with the North that the slavery restriction in the
Missouri Compromise was constitutional. Instead, he expressed hope that “all will be willing
to sanction and affirm the [great] principle established by the Compromise measures of
1850.”1 1 9 Douglas reaffirmed two principles. First, “all questions pertaining to slavery in the
Territories are to be left to the decision of the people residing therein....” Second, “all
questions involving title to slaves... are to be referred to the adjudication of local tribunals,
with the right of appeal to the Supreme Court of the United States.”1 2 0 Douglas sought to
substitute his “great principle” of popular sovereignty for the Missouri Compromise’s ban on
slavery north of the parallel 36° 30.’
On January 23,1854, Douglas offered a substitute bill that declared that the slavery
restriction of the Missouri Compromise “was superseded by the principles of the legislation of
1850... and is hereby declared inoperative.”1 2 1 One month later, he directed that in order to
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carry the principle of popular sovereignty into “practical operation,” it was necessary to
remove any “legal obstacles” preventing its exercise. “It is only for the purpose of carrying
out this great fundamental principle of self-government that the bill renders the eighth section
of the Missouri Compromise inoperative and void...”1 2 2 Many wondered however, if the
word “inoperative” was really synonymous with “repealed.” Furthermore, they could not
understand how a specific prohibition in an Act of 1820 could have been “superseded” by the
“principles” of 18S0. Opponents went back to the congressional records, debates, and
speeches over the Compromise of 18S0 to show that the framers of the Utah and New Mexico
Acts never believed that anything in those acts was designed to repeal, render inoperative or
supersede the original prohibition on slavery in the Missouri Compromise. Southerners were
equally dissatisfied with the inclusion of popular sovereignty since it lacked any reference to
the common property of states doctrine.1 2 3
By the 7th of February of that year, Douglas offered a revised amendment that was
eventually adopted. The Missouri Compromise was declared “inconsistent with the principle
of nonintervention by Congress with slavery in the States and territories as recognized by the
legislation of 1850 ”1 2 4 The Kansas-Nebraska Act declared that “it being the true intent of this
act not to legislate slavery into any Territory or States, nor to exclude it therefrom, but to leave
the people thereof perfectly fre e to fo rm and regulate their domestic institutions in their own
way, subject only to the Constitution of the United States.”1 2 3 The final version of the Act
declared the “Compromise Measures” associated with the Missouri Compromise “inoperative
and void." The Act also nullified any measures passed before the passage of the Missouri
Compromise “either protecting, establishing, or abolishing slavery...” 1 2 6 Finally, the Act
provided for appeals to the United States Supreme Court “in all cases involving title to
slaves.”1 2 7
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The ink had not dried up on the Kansas-Nebraska Act when a mad rush of proslave
and antislave sympathizers pushed their way into Kansas. The spirit of organized contest over
Kansas was originally framed in economic terms under the control of the New England
Emigrant aid company, which sought to attract investors into the territory by lure of financial
gain. Yet, not only did the company seek to attract capital, it was also “a scheme for
capitalizing the antislave proclivities of northern people... .”1 2 8 After conquering Kansas, the
company planned to move into different territories which were ripe for settlement. This
worried the South. From the beginning, “the hostility of the proslavery element was directed
chiefly at the Emigrant aid company and the emigrants sent under its direction.”1 2 9 Although
the company’s financial purpose failed to attract the South, the antislavery side of its
operations did rouse the suspicions of Missouri’s slaveholders who feared the overthrow of
slavery. In order to save Missouri and the southwest, Kansas had to become a slave state.
Interestingly, proslavery forces denounced the actions of the company as violating the
spirit of popular sovereignty. During the first application of popular sovereignty to form a
new constitution, proslavery forces had the upper hand. The election was denounced as
fraudulent and on October 23, 18SS, the Free State party gathered at a convention in Topeka
and drew up a constitution prohibiting slavery in the Kansas territory. Upon their application
for statehood, Douglas refused to support the Topeka constitution, which he believed was the
product of a political party and not the will of the people.1 3 0 In response, the proslavery party
elected a constitutional convention and drafted the “Lecompton constitution.” The
constitution declared that the “right of property is before and higher than constitutional
sanction, and the right of the owner of a slave to such a slave is the same and inviolable as the
right of the owner of any property.”1 3 1
Invoking his “great principle,” Douglas, in what Robert Johannsen characterizes as
one of the most significant speeches of his career, refused to support the Lecompton
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constitution. He insisted that the Lecompton convention had no power to establish a new
government. The “great principle” of popular sovereignty demanded that all local and
domestic matters including slavery be decided by the people. “I have spent too much strength
and breath, and health, too, to establish this great principle in the popular heart, now to see it
frittered away.” He called the constitution a “system of trickery and jugglery to defeat the fair
expression of the will of the people.” Douglas ended his speech with a defiant stance: “If this
constitution is to be forced down our throats, in violation of the fundamental principle of free
government, under a mode of submission that is a mockery and insult, I will resist it to the
last.” He proposed to “follow that principle wherever its logical consequences may take me,
and I will endeavor to defend it against assault from any and all quarters.”1 3 2
While Douglas continued to invoke his “great principle” as the only way to resolve
the constitutional crisis, his conception of the role of Congress changed. In the 1840s,
Douglas endorsed a “negative” version of popular sovereignty that sought to give each
territory complete autonomy and control over its domestic institutions. Under this version, the
territories were equivalent to states and could demand admission to the Union as a matter of
right without congressional review of their constitutions.1 3 3 Douglas’s position is summarized
in the following statement made during the debates over the Compromise of 18S0:
I believe the people have a right to do as they please when they form
their constitution, and no matter what domestic regulations they
make, they have a right to come into the Union provided there is
nothing in their constitution which violates the constitution of the
United States. I have always held that the people have a right to
settle these questions as they choose, not only when they come in
the Union as a state, but they should be permitted to do so while a
territory.1 3 4
Even by treating territories as equivalent to ‘states,’ Douglas could not gamer southern
support. As Johannsen writes, for the South, “interference with slavery by a territorial
legislature was just as objectionable as interference by Congress.”1 3 5 It was only after a
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territory became a state that the issue of slavery could be decided. In the interim, under the
common property of states doctrine, slaveholders had the right to take their slaves into the
territories.
By the middle of the 1850s, Douglas was forced to accept a modified version of
popular sovereignty, although he never went so far as to endorse the common property of
states doctrine or the free-soil position. When faced with two diametrically opposing forces,
each making an equal claim to the territories, Douglas sought to develop a more “positive”
version of popular sovereignty, one that called for congressional oversight of the territories.
Douglas refuted his original idea that the territories were completely sovereign and argued that
the territories were held “in trust” by the federal government. Accordingly, no territory could
draft a constitution without authorization from the Congress. Congress also had the authority
to accept or reject any territorial constitution that had not been specifically authorized.1 3 6 The
effect of this new, more “interventionist” version of popular sovereignty was to deprive the
people of Kansas and the people of other new territories the authority to settle the question of
slavery until statehood was achieved.1 3 7
Although the incorporation of the principle of popular sovereignty (however defined)
was premised upon a policy of nonintervention, the inclusion of provisions for appeals to the
Supreme Court in the acts organizing Utah, New Mexico, Kansas, and Nebraska did not
negate the possibility of federal involvement over the slavery question. Given the continued
insistence by politicians such as President Buchanan that slavery in the territories had become
a "judicial question," Dred Scott seemed inevitable.1 3 8 Yet, this lack of appreciation of the
provisions for judicial appeals by all three sides resulted in a failure to fully contemplate the
implications of having the Supreme Court be the final arbiter of the slavery dispute. Indeed,
by the time the Court issued its ruling in Dred Scott, the South, which had always been hostile
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to the finality of the Court’s decisions, was more than willing to support the ruling. The
North, which had supported the Court, refused to accept the finality of the ruling.
In Dred Scott, Taney delivered a defeat for Congress and its power over the territories.
He denied that Congress had the constitutional authority to “forever prohibit slavery” in the
Louisiana Territory north of the parallel 36° 30. Taney referred to the compact theory of
constitutional construction as well as the common property of states doctrine to argue that the
“principle upon which our Government rest[s]... is a Union of States, sovereign and
independent within their own limits in their internal affairs and domestic concerns....”1 3 9 The
federal government, he noted, “possessed] certain enumerated and restricted powers,
delegated to it by the people of the several states...[and] “[wjhatever it acquires, it acquires
for the benefit of the people of the several States who created it.” Accordingly, “[i]t is their
trustee acting for them, and charged with the duty of promoting the interests of the whole
people of the Union in the exercise of the powers specifically granted.”1 4 0
Taney insisted that when the federal government acquires a territory, it had no power
to exceed the powers that had been strictly enumerated and granted to them by the people of
the several states. Accordingly, “it cannot create for itself a new character separated from the
citizens of the United States, and the duties it owes them under the provisions of the
Constitution.”1 4 1 The duty owed to “citizens” (slave owners) was the protection of the right to
property. The authority of Congress to legislate for the territories was limited by the due
process clause of the Fifth Amendment. Hence, “an Act of Congress that deprives a person of
the United States of his liberty or property merely because he came himself or brought out his
property into a particular Territory of the United States, and who had committed no offense
against the laws, could hardly be dignified with the name of due process of law....”1 4 2
Taney’s logic applied to both the states and the territories. He made it clear that the
people of the territories had no right to interfere with the institution of slavery. He wrote, “if
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Congress itself cannot do this [prohibit slavery in the territories] - if is beyond the powers
conferred on the Federal Government - it will be admitted, we presume, that it could not
authorize a territorial government to exercise them.”1 4 3 The Court recognized that Congress
had the authority to confer powers on the territories. But Congress could not grant those
powers that it did not posses. Since Congress had no right to prohibit slavery in the territories,
it could not grant a territorial government the power to do so.
Under Taney’s logic, since Congress had no right to legislate for the territories on the
slavery question, and since Congress could not confer upon the territories that right, then the
territories could not posses such a right. But even if the territories had the right to decide
whether to legalize or prohibit slavery, the natural (and inalienable) right of property would
supersede any positive laws of the territories. The inevitable result - the "house-divided"
would no longer be "divided,” instead it would be all slave. In the opening words of his
"House Divided" Speech, Abraham Lincoln declared:
A house divided against itself cannot stand. I believe this
government cannot endure, permanently half slave and half free. I
do not expect the Union to be dissolved - 1 do not expect the house
to fa ll - but I do expect it will cease to be divided. It will become
all one thing, or all territories the other. Either the opponents of
slavery, will arrest the further spread of it, and place it where the
public mind shall rest in the belief that it is in the course of ultimate
extinction; or its advocates will push it forward, till it shall become
alike lawful in all states, old as well as new - North as well as
South. 1 4 4
According to Lincoln, the Union (the house) is perpetual and hence, may never be
dissolved. But it can no longer be divided - it must either be all free or all slave. Lincoln
considered a much more sinister alternative to the “house-divided” - “the progressive
legalization of slavery everywhere in the United States.”1 4 5 If slave owners had the
inalienable right to take their property into either a state or a territory, then under the logic of
D red Scott, the nation would be entirely slave. The free states would be forced to
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acknowledge the natural (and constitutional) rights of slave owners when they come into their
states, thereby making a free state, slave. In addition, free territories that were once organized
under popular sovereignty would also have to respect the permanence of slavery within their
borders.1 4 6 It would only be a matter of time before “another Supreme Court decision,
declaring that the Constitution of the United States does not permit a state to exclude slavery
from its limits.” Lincoln continued, “we shall lie down pleasantly dreaming that the people of
Missouri are on the verge of making their state free; and we shall awake to the reality, instead,
that the Supreme Court has made Illinois a slave state.”1 4 7
In its original design, popular sovereignty was posited as the most viable alternative to
the problem of slavery in the territories. Douglas adhered to a principle that allowed him to
simultaneously accommodate the proslavery and antislavery sectors of the “house-divided”
nation. According to Carl Schurz of Wisconsin (one of Douglas’ critics), Douglas predicted
“the slavery question would settle itself in the smooth way of ordinary business.”1 4 8 Hence,
popular sovereignty became an integral part of the many compromises and legislative acts
temporary quelling the slavery controversy. Douglas believed that popular sovereignty
manifested itself in the virtue of local self-government. Allowing the people of each territory
to dictate and control the direction of their own internal affairs embodied the very freedom
that Americans had fought so hard to attain against England. But when this espousal of
freedom and liberty was linked to slavery, it became more problematic. Where was the virtue
of self-government when some people could subject others to oppression through chattel
slavery? 1 4 9 After Dred Scott, Douglas attempted to justify the right of the people of the
territories, acting through their local, elected legislatures, to interpret the Constitution and defy
the ruling of an undemocratic branch of the federal government. Yet, the attempt to give the
people the opportunity to challenge the decision of Court favorable to slavery did not bode
well with a theory that sanctioned it.
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Conclusion
The 1770s and 1780s witnessed the creation of the early state constitutions, but these
documents were produced in haste and were ill equipped to handle an industrial economy and
the surge in democratic sentiment that swept across the country starting in the 1800s. In the
midst of the battles of how to interpret these documents, attempts were made to change them.
Reformers demanded two key changes - the expansion of suffrage and greater representation
in the legislature. But change would not come easily especially since many of the constitutions
did not provide provisions for an amendment, and the institution that was in the position to
institute change (the legislature), was controlled by a minority that refused to give up the
reigns of power. The majority of “people” (really, adult white males) were forced to act
independently of existing institutional arrangements to reconstitute their political system. In
Virginia and North Carolina, conservatives prevented this from occurring by having the
legislature call the convention and doing everything in their power to control the outcome. In
Rhode Island, the legislature was not as successful since two conventions produced two
constitutions and plunged the State into a constitutional crisis. The Supreme Court refused to
rule on the validity of the people acting in the “out-of-doors,” since that would place their own
power above the people. But in an ironic twist, the Court made it clear that it would interpret
only constitutions that were legally constituted, an actual defeat for popular sovereignty.
The slavery question was present at many of these state constitutional conventions as
the fate of the institution was in jeopardy. It quickly moved its way up to the national level
and became a litmus test for whether a territory could be admitted to the Union as a state.
Popular sovereignty became the right of the people of the territories to act independently of
Congress and the states (each laying claim to their fate) to determine whether slavery would
have a place in a newly constituted state. Given its ambiguities, popular sovereignty collapsed
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under the weight of its own contradictions. If the original intent of Douglas’ popular
sovereignty was to prevent the outbreak of the Civil War by providing a neutral ground from
which the two sides of the “house-divided” line could air their grievances, then it failed. But
even as it was setting itself up for its own demise, the “great principle” of popular sovereignty
was slowly helping to unravel an even larger contradiction that could no longer remain
unexposed - the Union was bom “house-divided.” “We the People” had constituted a “house-
divided” nation, and it came back to haunt them in the early years of the new Republic. “We
the People” divided sovereignty and created institutional structures that not only vied for the
right to interpret popular sovereignty, but which were criticized for their inability to handle it.
In its constant effort to divide the territories into either free or slave, Douglas’
popular sovereignty sought to divide the “house-divided” nation even more. But if it was not
for Douglas’ persistent effort to get his theory of popular sovereignty put into political
practice, and if it was not for the countless amounts of energy he poured into making his
theory accepted by all sides, then perhaps the nation would never have realized that “a house
divided against itself cannot stand.” To the extent that popular sovereignty, even while it was
collapsing under the weight of its own contradictions, helped to expose the contradictions of a
Union that was constituted “house-divided,” Douglas “great principle” can be viewed as a
success.
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Endnotes
1 Quoted in George Marshel Dennison. The Constitutional Issues o f the Dorr War: A Study in the
Evolution o f American Constitutionalism, 1776-1849. Ph.D. Thesis. University of Washington, 1967,
p. 143.
2 Joyce Appleby. “The American Heritage: The Heirs and the Disinherited.” The Journal o f American
History 74 (1987), p. 804.
3 James Wilford Gamer. “Amendment of State Constitutions.” The American Political Science Review I
(1907), p. 215.
4 Fletcher M. Green, Constitutional Development in the South Atlantic States, 1776-1860: A Study in
Revolutionary Democracy. Chapel Hill: The University of North Carolina Press, 1930, p. 206.
5 For more on the sectional divisions in Virginia, see Charles Henry Ambler. Sectionalism in Virginia
From 1776-1781. Chicago: University of Chicago Press, 1910.
6 Merrill D. Peterson, ed. The Portable Thomas Jefferson. New York: Penguin Books, 1975, pp. 162-
176.
7 Ibid., p. 176.
8 Peter Kemper v. Mary Hawkins, I Va. Cas. 1 (1793).
9 Dickson D. Bruce, Jr. The Rhetoric o f Conservatism: The Virginia Convention o f 1829-30 and the
Conservative Tradition in the South. San Marino: The Huntington Library, 1982, p. 13.
1 0 A.E. Dick Howard. ““For the Common Benefit”: Constitutional History in Virginia as a Casebook for
the Modem Constitution-Maker.” Virginia Law Review 54 (1968), p. 841; J.A.C. Chandler,
“Constitutional Revision in Virginia.” Proceedings o f the American Political Science Association 14
(1980), pp. 975-1006.
1 1 Peterson, Portable Jefferson, 559-560. For a discussion of Jefferson advocacy of the extension of
suffrage before 1829, see Julius F. Prufer. “The Franchise in Virginia From Jefferson Through the
Convention of 1829.” William and Mary College Quarterly Historical Magazine 7 (1927), pp. 255-270;
Julius F. Prufer. “The Franchise in Virginia From Jefferson Through the Convention of 1829.” William
and Mary College Quarterly Historical Magazine 8 (1928), pp. 17-32.
1 2 Bruce, The Rhetoric o f Conservatism, p. 23.
1 3 Ibid., pp. 23-24; Howard, “For the Common Benefit,” p. 847.
1 4 See generally, Merrill Peterson, ed. Democracy, Liberty, and Property: The State Constitutional
Conventions o f the 1820s. Indianapolis, New York, and Kansas City: The Bobbs-Merrili Company,
Inc., 1966, pp.271-447.
1 5 Hugh Blair Grisby. The Virginia Convention o f 1829-30. New York: Da Capo Press, 1969. Green,
Constitutional Development, pp. 210-224; Howard, “For the Common Benefit,” pp. 848-857; Bruce,
The Rhetoric o f Conservatism, pp. 31-69; Robert P. Sutton. Revolution to Secession: Constitution
Making in the Old Dominion. Charlottesville: University Press of Virginia, 1989, pp. 72-102
(especially p.101).
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1 6 Bruce, The Rhetoric o f Conservatism, p. 25.
1 7 Quoted in Green, Constitutional Development, p. 207, emphasis in the original.
1 8 Harold J. Counihan. “The North Carolina Constitutional Convention of 1835: A Study in Jacksonian
Democracy.” The North Carolina Historical Review 46 (1969), p. 337; Green, Constitutional
Development, p. 226.
1 9 Quoted in John Alexander Jameson. A Treatise on Constitutional Conventions. Their History,
Powers, and Modes o f Proceedings. 4th ed. Chicago: Callaghan and Company, 1887, p. 283.
2 0 Counihan, “Constitutional Convention of 1835,” p. 341.
2 1 John V. Orth. ““The Law of the Land”: The North Carolina Constitution and State Constitutional
Law: North Carolina Constitutional History.” North Carolina Law Review 70 (1992), p. 1771.
2 2 Counihan, “Constitutional Convention of 1835,” p. 342.
2 3 Green, Constitutional Development, pp. 231-232.
2 4 Ibid., 233. “Constitutional Convention of 1835,” pp. 337-338.
2 5 Jameson, A Treatise on Constitutional Conventions, p. 363.
2 6 A. Caperton Braxton. “Powers of Conventions.” Virginia Law Register 7 (1901), pp. 96-99.
2 7 A. Caperton Braxton. “The Powers of the Approaching Constitutional Convention in Virginia.”
Virginia Law Register 7 (1901), pp. 100-101.
2 8 Raymond Uhl, Robert Stoudemire, and George Sherrill. Constitutional Conventions: Organization,
Powers, Functions and Procedures. Columbia: Bureau of Public Administration, University of South
Carolina, 1951, p. 19.
2 9 Roger Sherman Hoar. Constitutional Conventions: Their Nature, Powers, and Limitations. Boston:
Little Brown and Company, 1917, pp. 120-127. For a discussion of a more current debate surrounding
the powers of constitutional conventions, see Frank Balog. “Popular Sovereignty and the Question of
the Limited Constitutional Convention.” Cooley Law Review 1 (1982), pp. 109-131.
3 0 Notes. “The Powers of Constitutional Conventions.” Harvard Law Review 29 (1916), p. 530n.
3‘Robert L. Ciaburri. “The Dorr Rebellion in Rhode Island: The Moderate Phase.” Rhode Island History
26 (1967), pp. 73-87.
3 2 Akhil Reed Amar. “The Consent of the Governed: Constitutional Amendment Outside Article V.”
Columbia Law Review 94 (1994), pp. 463-464; Dennison, Constitutional Issues o f the Dorr War, p. 39.
3 3 Dennison, Constitutional Issues o f the Dorr War, p. 40, emphasis in the original.
3 4 Marvin E. Gettleman. The Dorr Rebellion: A Study in Middle Class Radicalism, 1833-1849. New
York: Random House, 1973, pp, 18-36.
3 5 Ibid., pp. 42-43.
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3 6 Ibid., p. 24.
3 7 Robert R. Palmer. “The American Revolution: The People as Constituent Power.” In Jack P. Greene,
ed. The Reinterpretation o f the American Revolution 1763-1789. New York, Evanston and London:
Harper and Row, Publishers, 1968, pp. 338-361.
3 8 See also Patrick T. Conley. The Dorr Rebellion: Rhode Island's Crisis in Constitutional Government.
Providence: Rhode Island Bicentennial Foundation, 1976, p. 12.
3 9 Arthur M. Mowry. The Dorr War or the Constitutional Struggle in Rhode Island. Providence:
Preston & Rounds Co., 1901, pp. 133-138.
4 0 Ibid., p. 98. Gettleman, The Dorr Rebellion, pp. 46-47. As Gettleman notes, the question of black
suffrage was the only issue that caused significant disputes among the delegates, p. 45. See also Francis
Bowen. “The Recent Contest in Rhode Island." North American Law Review 58 (1894), p. 414.
4 1 Mowry, The Dorr War, p. 113. Mowry is critical of the actions of the Suffragists, and believes that
their acts - the convention, its ratification, and elections under the People’s Constitution were “entirely
revolutionary.” See also Arthur May Mowry. “The Constitutional Controversy in Rhode Island in
1841.” Annual Report o f the American Historical Association fo r the Year1894. Washington:
Government Printing Office, 1896, p. 368.
4 2 William M. Wiecek. “Popular Sovereignty in the Dorr War: Conservative Counterblast” Collections
o f the Rhode Island Historical Society 32 (1973), pp. 39-41.
4 3 Ibid., p. 46.
4 4 Ibid., p. 43.
4 3 A Citizen of Massachusetts. The Merits o f Thomas W. Dorr and George Bancroft, as They are
Politically Connected. Boston: John H. Eastbum, 1844, p. 8.
4 6 Ibid., p. 16, emphasis added.
4 7 Patrick T Conley. Democracy in Decline: Rhode Island’ s Constitutional Development 1776-1841.
Providence, Rhode Island Historical Society, 1977, p. 170.
4 8 Gettleman, The Dorr War, pp. 19-20.
4 9 Quoted in Ibid., p. 73, emphasis added.
3 0 Ibid., p. 63. The case of ex catherdra emerged after a number of citizens of Providence wanted to
know if the People’s ConstituUon was legal..
3 1 Ibid., p. 68.
3 2 Francis Wayland. The Affairs o f Rhode Island. Providence: B. Cranston & Co. and H.H. Brown,
1842, p. 7; Wilson Smith. Professors & Public Ethics: Studies o f Northern Philosophers before the
Civil War. Ithaca: Cornell University Press, 1965, pp. 128-146.
3 3 John Bolles Augustus. “The Affairs o f Rhode Island, " Being a Review o f President Wayland's
“ Discourse:" A Vindication o f the Sovereignty o f the People and a Refutation o f the Doctrines and
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Doctors o f Despotism. Providence: B.T. Albro; Boston: B.B Mussey, 1842, p. 6, emphasis in the
original.
5 4 Facts Involved in the Rhode Island Controversy With Some Views Upon the Rights o f Both Parties.
Boston: B.B. Mussey, 1842, p. 34.
5 5 Gettleman, The Dorr Rebellion, pp. 109-111.
5 6 Joseph Pitman. Report o f the Trial o f Thomas Wilson Dorr fo r Treason Against the State o f Rhode
Island, Containing the Arguments o f Counsel, and the Charge o f Chief Justice Durfee. Boston: Tappen
and Dennet, 1844, pp. 123-124.
5 7 Ibid., p. 130, emphasis in the original.
5 8 Ex Parte Dorr,. 3 Howard 103 (1845).
5 9 Mahlon H. Hellerich. “The Luther Cases in the Lower Courts.” Rhode Island History 11 (1952), pp.
37-39.
“ Ibid., pp. 39-42.
6 1 Benjamin Halllet. “The Right of the People to Establish Forms of Government.” Mr. Hallet's
Argument in the Rhode Island Causes, Before the Supreme Court o f the United States, January 1848.
Boston: Beals & Greene, 1848, p. 7, emphasis added.
6 2 Ibid., p. 10.
6 3 Ibid., p. 32.
6 4 Ibid., p. 40.
6 5 Daniel Webster. “The Rhode Island Question.” Mr. Webster’s Argument in the Supreme Court o f the
United States in the Case o f Martin Luther vs. Luther M. Borden and Others, January 2Th 1848.
Washington: J. and G.S. Gideon, 1848, p. 6, emphasis in the original.
6 6 Ibid., 10, emphasis added.
6 7 Ibid., p. 12.
6 8 Ibid., pp. 16-17.
6 9 Ibid., p. 16, emphasis added.
7 0 Luther v. Borden, 48 U.S. 1, 39 (1849).
7 1 Taney writes, “Under this article of the Constitution its rests with Congress to decide what
government is the established one in the State. For as the United States guarantee to each State a
republican government, Congress must necessarily decide what government is established in the State
before it can determine whether it is republican or not.” (Ibid., p. 42). See also Michael A. Conron.
“Law, Politics, and Chief Justice Taney: A Reconsideration o f the Luther v. Borden Decision.” The
American Journal o f Legal History 11 (1967), p. 383. Conron argues that as in Marbury v. Madison,
the Court denied jurisdiction, but then proceeded to define the duties of the other branches, and directed
them to settle “political questions.” See also William M. Wiecek. The Guarantee Clause o f the U.S.
269
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Constitution. Ithaca and London: Cornell University Press, 1972, p. 122. Wiecek proclaims that this
dictum became the “foremost authority for the proposition that the Court must abstain from political
questions and that guarantee clause cases are invariably political question cases.” See also Charles
Gordon Post Jr., The Supreme Court and Political Questions. New York: Da Capo Press, 1969.
72 Luther v. Borden, p. 5 1.
7 3 Ibid., p. 40.
7 4 Ibid., p. 52.
7 5 Ibid., pp. 52-53.
7 6 Ibid., p. 53.
7 7 See John S. Schuchman 'The Political Background of the Political-Question Doctrine: The Judges
and the Dorr War.” The American Journal o f Legal History 16 (1972), pp. 111-125.
7 8 Luther v. Border, p. 53.
7 9 George M. Dennison. “The Dorr War and Political Questions." Supreme Court Historical Society
Yearbook (1979), p. 59.
8 0 See “Political Rights as Political Questions: The Paradox of Luther v. Martin. Harvard Law Review
100(1987), pp. 1140-1141.
8 1 C. Peter Magrath. “Optimistic Democrat: Thomas W. Dorr and the Case of Luther vs. Borden."
Rhode Island History 29 (1970), pp. 98-99.
8 2 Gettleman, The Dorr War, p. 199.
8 3 Sere v. Laralde, 6 Cranch 332, 357 (1810).
8 4 American Insurance Company v. Cantor, 1 Peters 511,546 (1828).
8 5 United States v. Bratiot, 14 Peters 526, 537 (1840).
8 6 Peter S. Onuf. Statehood and Union: A History o f the Northwest Ordinance. Bloomington and
Indianapolis: Indiana University Press, 1987, p. xvi.
8 7 Thomas Perkins Abemethy. From Frontier to Plantation: A Study in Frontier Democracy. Chapel
Hill, The University of North Carolina Press, 1932, pp. 135-140.
8 8 Arthur Bestor. "The American Civil War as a Constitutional Crisis.” The American Historical Review
69 (1964), p. 338.
8 9 The Missouri Compromise is the most obvious example. For a passionate embrace of Congress’s
supremacy over the territories, see George Ticknor Curtis. The Just Supremacy o f Congress Over the
Territories. Boston: A Williams and Co., 1859.
9 0 Robert Russel. “Constitutional Doctrines With Regard to Slavery in the Territories.” The Journal o f
Southern History 29 (1966), p. 468.
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9 1 See e.g., Somerset v. Stewart, 20 How. St. Tr. 1 (1772). For a summary of the Somerset case, see
William Wiecek, Sources o f Antislavery Constitutionalism in America, 1760-1848. Ithaca and London:
Cornell University Press, 1977, pp. 20-39. The case has been traditionally interpreted as an attack on
the institution of slavery in England and later in the United States. This view, however, has been
criticized by a number of scholars. See e.g., Jerome Nadelhaft. “The Somerset Case and Slavery: Myth,
Reality, and Repercussions.” The Journal o f Negro History SI (1966), pp. 193-208.
9 2 Russel, “Constitutional Doctrines,” pp. 470-471; Paul Escott. “Jefferson Davis and Slavery in the
Territories.” The Journal o f Mississippi History 39 (1977), pp. 97-116.
9 3 Willard Carl Klunder. “The Seeds of Popular Sovereignty: Governor Lewis and Michigan Territory.”
Michigan Historical Review 17 (1991), pp. 65-82; Willard Carl Klunder. “Lewis Cass.” Michigan
History 15 (1991), pp. 12-21; James B. Ranck. “Lewis Cass and Squatter Sovereignty.” Michigan
History Magazine 14 (1930), pp. 28-37.
9 4 Allen Johnson, ed. Readings in American Constitutional History, 1776-1876. Boston, New York, and
Chicago: Houghton Mifflin Company, 1912, p. 411. The letter was originally published in the Nile’ s
Register, LXXXUI, December 24, 1847, pp. 293-294. Unfortunately, Johnson’s modified version of the
letter is missing key portions.
9 5 Quoted in Robert W. Johannsen. Stephen A. Douglas. Urbana and Chicago: University of Illinois
Press, 1997, p. 227. See also Russel, “ConstituU'onal Doctrines,” pp. 472-274.
9 6 Willard Carl Klunder. Lewis Cass and the Politics o f Moderation. Kent, Ohio and London: The Kent
State University Press, 1966, pp. 241-242.
9 7 Ibid., p. 248.
9 8 Chaplain W. Morrison. Democratic Politics and Sectionalism: The Wilmot Proviso Controversy.
Chapel Hill: University of North Carolina Press, 1967, p. 92.
9 9 Klunder, Lewis Cass, p. 248.
1 0 0 Edward McMahon(a). “Stephen A. Douglas: A Study of the Attempt to Settle the Question of
Slavery in the Territories by the Application of Popular Sovereignty, 1830-1860.” Washington
Historical Quarterly 2 (1908), p. 214.
1 0 1 Ibid., p. 215.
1 0 2 George Douglas Harmon. “Douglas and the Compromise of 1850.” Journal o f the Illinois State
Historical Society 21 (1929), p. 469.
1 0 3 Johannsen, Douglas, p. 287.
I0* Harmon, “Douglas and the Compromise of 1850,” p. 469.
1 0 5 Ibid.
1 0 6 McMahon (a), “Douglas and the Slavery Question,” p. 215, emphasis in the original.
1 0 7 Quoted in Harmon, “Douglas and the Compromise of 1850,” p. 459.
1 0 8 Quoted in McMahon (a), “Douglas and the Slavery Question,” p. 215, emphasis in the original.
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1 0 9 Johannsen, Douglas, pp. 287-288.
1 1 0 Ibid. McMahon (a), “Douglas and the Slavery Question,” p. 216.
1 1 1 See generally, Escott, “Jefferson Davis and Slavery."
1,2 Quoted in Robert E. May. “Squatter Sovereignty as the Freeport Doctrine: A Note on the Territorial
Controversy in the US House of Representatives in the Winter of 1855-1856.” The Journal o f Southern
History 53 (1987), p. 306.
1 1 3 Escott, “Jefferson Davis and Slavery, “ p. 105.
1 1 4 Eric Dean. “Stephen A. Douglas and Popular Sovereignty.” The Historian 57 (1995), p. 734.
1 1 3 George M. Dennison. “An Empire of Liberty: Congressional Attitudes Toward Popular Sovereignty
in the Territories, 1787-1867.” Maryland Historian 6 (1975), pp. 30-31; Russel, “Constitutional
Doctrines,” pp. 301-302. Section 10 of the New Mexico Act and Section 8 of the Utah Act provided
that “... in all cases involving titles to slaves, the writs of error or appeals shall be allowed and decided
by the said [United States] Supreme Court without regard to the value of the matter, property, or title in
the controversy....” Congressional. Globe, 31st Cong. 1st sess, Ch.49 (September 9, 1850), p. 450
(The New Mexico Act); Congressional Globe, 31st Cong. 1st sess, Ch. 51 (September 9, 1850), pp.
455-456 (The Utah Act).
1 ,6 Dennison, “An Empire of Liberty,” p. 30.
1 1 7 Robert R. Russel. “The Issues in the Congressional Struggle Over the Kansas-Nebraska Bill, 1854.”
The Journal o f Southern History 29 (1963), p. 190; Chauncey S. Boucher. “In Re That Aggressive
Slavocracy.” The Mississippi Valley Historical Review 8 (1921), pp. 13-79.
1 ,8 Dennison, “Empire of Liberty,” p. 31.
1 1 9 Johannsen, Douglas, p. 400.
1 2 0 McMahon (a), “Douglas and the Slavery Question,” p. 226. Although there was some speculation as
to how the Supreme Court would decide a case on slavery, during the debates over the Nebraska Bill,
northerners and southerners were confident that the Court would sustain their respective views.
Interesting, neither faction sought a pledge from the other to abide by a possible judicial decision. See
also Russel, "Congressional Struggle,” p. 201. But as in the case of die Compromise of 1850, it was this
failure to fully appreciate the role that the Supreme Court as a final arbiter that contributed to the
subsequent problems in the aftermath of Dred Scott.
1 2 1 McMahon (a), “Douglas and the Slavery Question,” p. 229.
1 2 2 Congressional Globe, 33rd Cong. 1st Sess. (March 3, 1854). Reprinted in Allen Johnson, Readings
in American Constitutional History, 1776-1876. Boston, New York, and Chicago: Houghton Mifflin
Company, 1912, p. 434. Section 8 o f the Missouri Compromise reads in part as follows:
That in all that territory ceded by France to the United States, under the name of Louisiana,
which lies north of thirty-six degrees and thirty minutes north latitude, not included within the
limits of the state, contemplated by this act, slavery and involuntary servitude, otherwise than
in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and
is hereby, forever prohibited.
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Cong. Globe, 16 Cong. 1 Sess, Ch.24 (March 6, 1820), p. 548, emphasis added.
1 2 3 Russel, “Congressional Struggle,’’ p. 198.
1 2 4 McMahon (a), “Douglas and the Slavery Question,” p. 230; “The Kansas - Nebraska Act.” Cong.
Globe, 31 Cong. 1 sess, Ch.59 (May 30, 1854), p. 283.
> 2 S “The Kansas - Nebraska Act,” pp. 283,289, emphasis added.
1 2 6 Ibid., emphasis added.
1 2 7 Ibid., pp. 280,287.
1 2 8 James C. Malin. “The Proslavery Background of the Kansas Struggle.” Mississippi Valley Historical
Review 10 (1923), p. 289.
1 2 9 Ibid., pp. 290-291.
1 3 0 Edward McMahon (b), “Stephen A. Douglas; A Study of the Attempt to Settle the Question of
Slavery in the Territories by the Application of Popular Sovereignty, 1850-1860.” Washington
Historical Quarterly 2 (1908), p. 312.
1 3 1 Quoted in Ibid., p. 313.
1 3 2 Johannsen, Douglas, pp. 590-591.
1 3 3 Dean, “Douglas and Popular Sovereignty,” p. 740; Robert Johannsen. “Stephen A. Douglas and the
South.” The Journal o f Southern History 33 (1967), p. 34.
1 3 4 Quoted in Harmon, “Douglas and the Compromise of 1850,” p. 485.
1 3 3 Johannsen, “Douglas and the South,” p. 35.
1 3 6 Dean, “Douglas and Popular Sovereignty,” p. 743.
1 3 7 Dennison, “Empire of Liberty,” p. 31.
1 3 8 See Mark Graber. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies
in American Political Development 7 (1993), pp. 46-50; Mark Graber. “Desperately Ducking Slavery:
Dred Scott and Contemporary Constitutional Theory.” Constitutional Commentary 14 (1997), pp. 271-
318.
1 3 9 Dred Scott v. Sanford, 19 Howard 393,447-448 (1856).
1 4 0 Ibid., p. 448.
1 4 1 Ibid., p.449.
1 4 2 Ibid., p.450.
1 4 3 Ibid., p.451.
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1 4 4 Paul Finkleman, ed. Dred Scott v. Sanford: A Brief History With Documents. Boston and New York:
Bedford Books, 1997, pp. 186-187, emphasis in the original. Fora overview of the logic behind the
speech, see Don E. Fehrenbacher. “The Origins and Purpose of Lincoln’s “House-Divided” Speech."
The Mississippi Valley Historical Review 46 (1960), pp. 615-643.
1 4 5 Fehrenbacher, “Origins of “House-Divided” Speech,” p. 627.
1 4 6 See generally, Paul Finkelman. An Imperfect Union: Slavery, Federalism, and Comity. Chapel Hill:
The University of North Carolina Press, 1981.
1 4 7 Finkelman, Dred Scott and Documents, p. 193, emphasis in the original.
1 4 8 Carl Schurz. Douglas and Popular Sovereignty. Washington D.C.: Buell & Blanchard, Printers,
1860, p. 3.
1 4 9 Percy Roberts. “Popular Sovereignty: A Review of Mr. Douglas’s Article on that Question.”
Debow’ s Review 17 (1859), p. 628.
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Conclusion
Constituting Popular Sovereignty: Lessons From the Past
The Rehnquist Court no longer views itself as first among equals,
but has instead staked its claim to being the only institution
empowered to speak with authority when it comes to the meaning
of the Constitution. The other branches get to have their say, of
course, for they must interpret the Constitution when deciding
whether and how to act - just as you or I must do with respect to
whatever law governs us. But executive or legislative
understandings of the Constitution are, in the eyes of the
Rehnquist Court, hardly more authoritative than yours or mine.
Only the Court’s own interpretations matter; only these have the
force of constitutional law.... The last, faint traces of popular
constitutionalism are fading, threatened by a Court that truly sees
the Constitution as nothing more than ordinary law. Judicial
supremacy is becoming judicial sovereignty.
Larry Kramer (2000)1
Introduction
The debates over creation and interpretation in the early American Republic
highlighted the flaws in the original design of a system of that divided popular sovereignty.
The initial consensus over the theory of popular sovereignty soon became a debate over how
it could be transformed into workable and defensible political arrangements for the Union.
These battles were fought in the state and federal governments, in the halls of legislatures, at
the executive level, and in the courts. This decision to divide popular sovereignty, however,
may have contributed to the Civil War.
In his concurring opinion in U.S. Term Limits v. Thornton, Justice Kennedy wrote:
Federalism was our Nation’s own discovery. The Framers split
the atom of sovereignty. It was the genius of their idea that our
citizens would have two political capacities, one state and one
federal, each protected from incursion by the other. The resulting
Constitution created a legal system unprecedented in form and
design, establishing two orders of government, each with its own
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direct relationship, its own privity, its own set of mutual rights and
obligations to the people who sustain it and are governed by it.2
“Splitting the atom of sovereignty” may have done more harm than good. The
scattering of sovereignty across institutions left plenty of room for the struggle among
institutions to vie for the right to embody and institutionalize popular sovereignty. This
struggle began before Philadelphia and continued throughout the early years of the Republic.
During the colonial period, many colonists qualified their submission to Parliament by
differentiating between legislation and taxation, insisting that the latter was a function of
sovereignty and best handled by colonial legislatures. This represented one of the earliest
attempts to divide sovereignty. The struggle between legislatures and conventions over the
creation of the early state constitutions suggests that some Americans accepted the idea that
different institutions could represent the people. In midst of legislative supremacy, state
court jurists carved out a place for themselves by invoking popular sovereignty as a
justification to review and nullify state legislative activities. The story was complicated
when popular sovereignty was moved to the federal level, where not only was there a debate
over the role of conventions and legislatures in the creation process, but the structure of the
Union was also at stake. Did “We the People” of the nation or the states constitute the
federal government? Conservatives did not accept the idea of popular sovereignty as state
sovereignty in the Articles of Confederation, but they could not sell a vision of popular
sovereignty as Union by destroying the states. Hence, the Federalists divided popular
sovereignty between the state and federal governments, and created an intricate web of
institutions at each level from which to constitute popular sovereignty.
The next stage in the struggle over the institutionalization of popular sovereignty
was in the battles over constitutional interpretation. The Supreme Court consolidated its
power by institutionalizing popular sovereignty in the federal judiciary against legislative
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supremacy at the federal and state levels. Judicial nullification was exercised only twice at
the federal level, but alternatives were put forth in the form of departmentalism to take
advantage of a system designed on the basis of the separation of powers. The Supreme
Court was more active against the states, first, by striking down state laws and state court
rulings (under the 25lh Section of the Judiciary Act of 1789) that were inconsistent with the
Constitution and second, by designating itself as an intermediary between the states and the
federal government over constitutional disputes. The states, however, claimed that they
were the repositories of popular sovereignty, and protested (via interposition, judicial
rebuke, nullification, and secession) federal authority.
In the midst of the politics of interpretation, remerged the politics of creation and
recreation as popular sovereignty stood at the forefront of debates over the creation of new
state constitutions and the revision of older ones. At stake, could the “people" act in the
“out-of-doors” to constitute or reconstitute new or existing political arrangements? The
politics of popular sovereignty of the 1820s, 1830s, and 1840s was more complicated than
the politics of the 1770s and 1780s since people attempted creation and recreation in the
context of existing institutions, where limits on the exercise of popular sovereignty “out-of-
doors," were already available.
The Civil War was one result of the ambiguous nature of the structure of the Union,
as well as of a system that divided popular sovereignty and scattered it across institutions.
The end of the Civil War put to rest the controversy over what version of popular
sovereignty reigned. As scholars Kelly, Harbison and Belz argue, “[t]he most important
constitutional result of the war was the repudiation of state sovereignty and the compact
theory of the Union, with its corollary right of secession.”3 Popular sovereignty as Union
was indissoluble. In 1868, the Court in Texas v. White (a case involving the federal
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government’s pre-War sale of bonds to Texas), affirmed this version of the Constitution
creating “an indestructible Union, composed of indestructible States.”
The Union of the States never was a purely artificial and arbitrary
relation. It began among the Colonies, and grew out of a common
origin, mutual sympathies, kindred principles, similar interests,
and geographical relations. It was confirmed and strengthened by
necessities of war, and received definite form, and character, and
sanction from the Articles of Confederation. By these the Union
was solemnly declared to “be perpetual.” And when these Articles
were found to be inadequate to the exigencies of the country, the
Constitution was ordained “to form a more perfect Union.” It is
difficult to convey the idea of indissoluble unity more clearly than
by these words. What can be indissoluble if a perpetual Union,
made more perfect, is not?4
Ironically this nationalistic decision was also a victory for the states since it meant that they
never left the Union, and could not be punished by the Radical Republicans for seceding.
The Court affirmed popular sovereignty as Union, which not only confirmed the supremacy
of the federal government, but also enhanced the role of the federal judiciary as the arbiter of
constitutional disputes.
A Union victory marked an end to the battles over popular sovereignty. It also
marked an end to the constitutional politics of popular sovereignty. In this chapter, I
examine the possible reemergence of the politics of popular sovereignty in light of a series of
Supreme Court decisions that have the potential of reviving the state sovereignty argument.
I argue, however, that the potential for a revival of a constitutional politics of the past is not
possible as long as the Court sees itself as the ultimate interpreter of the Constitution.
From Constitutional Politics to Constitutional Law
The idea of constitutions as fundamental laws was central to the framers’
understanding of the early state and federal constitutions. They understood the importance
of constitutions as limitations on institutional authority, and took steps to ensure that
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constitutions controlled institutions, not vice versa. Immediately after the creation of
constitutions, arose constitutional disputes and the controversy over who would interpret
them. Courts gave it an initial shot, but it soon became evident that constitutional disputes
did not easily lend themselves to judicial answers. Constitutional disputes at the state and
federal levels were fought not in the courts, but in politics. The Constitution was ambiguous
when it came to setting up structures for the Union, hence, the debate over whether the
nation was constituted by the people of the states or the people of the nation. Furthermore,
the Constitution did not provide answers to constitutional controversies, thereby making it
difficult for courts, especially the Supreme Court, to claim supremacy over the document.
As fundamental laws, constitutions were not laws in the ordinary sense that we think
of laws. Constitutions were the embodiment of popular sovereignty and a mechanism by
which the people exercised control over institutions. This took place at two stages - people
created constitutions in conventions, which were separate from government, thereby
preserving the distinction between ordinary law and constitutional law. The people then
participated in the interpretive process through their agents, only one of which were the
courts. Even then, however, courts did not claim interpretive power on the basis that the
constitution was a legally enforceable document. Rather, it was premised upon the idea that
courts were protecting the fundamental will of the people as embodied in the constitution.5
But in a system in which popular sovereignty was divided, and the people scattered across
multiple institutions, interpretation of the federal Constitution took place at multiple levels,
with each institution proclaiming that it was protecting the fundamental will of the people
against state or federal aggression.
In addition, the Constitution did not read like an ordinary law. Built within the
document was a vast array of ideas and meanings that reflected the diverse (and often
ambiguous) opinions of the Founders. The authority of the Constitution did not derive from
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the fact that it was a law, but that it was an expression of popular sovereignty. As a law, the
Constitution is subject to ordinary rules of judicial interpretation, since under a separation of
powers scheme, courts interpret laws. As a fundamental law, the Constitution is an
embodiment of the will of the people, and therefore, subject to popular interpretation. The
battle among institutions during the early American Republic was a battle for the right to
represent popular sovereignty. No one institution, including the courts, could claim
superiority over the document. The idea of popular sovereignty was contested and by
implication, so was the document that embodied popular sovereignty. The Constitution was
an accumulation of these contested ideas, and therefore, could not be considered an ordinary
law. These ideas turned into battles over creation and interpretation, and the search for
constitutional meaning. The “constitutional law” that was created during the early Republic
was in reality, “constitutional politics.”
What, however, has happened to constitutional politics? The North’s victory in the
Civil War ended the debate over constitutional politics. Constitutional disputes (especially
those between the federal and state governments) were no longer decided in politics, but in
the courts. Herein marked the beginning of the idea of the Constitution as a law - a law
governed by the ordinary rules of judicial interpretation. Larry Kramer argues that the
Rehnquist Court epitomizes this shift from constitutional politics and popular
constitutionalism to constitutional law. Accordingly, the Rehnquist Court has
disowned the notion of popular constitutionalism altogether,
staking its claim to be the only body empowered to interpret with
authority. Congress gets to have its say, of course, because the
Court reviews actions the legislature has already taken. But what
Congress thinks about the Constitution carries no formal legal
weight in the eyes of the Rehnquist Court, and has only so much
practical weight as the Justices think it deserves (which typically
turns out to be not much).6
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One example of this phenomenon was the Court’s decision in City o f Boeme v.
Flores, which struck down the Religious Freedom Restoration Act (RFRA) on the grounds
that Congress had exceeded its constitutional powers under Section 5 of the Fourteenth
Amendment.7 The Court asserted a claim that it made in Marbury v. Madison, Cooper v.
Aaron, and United States v. Nixon'.8 “It is the province and the duty of the judiciary to say
what the law is.” Yet, this case was not a bold assertion of judicial supremacy. Rather, the
Court qualified its assertion to interpret the Constitution on the grounds that this was a “case
or controversy,” and recognized the interpretive powers of Congress. But the Court did not
need to assert judicial supremacy as it was already assumed to exist. In fact, despite the
Court’s limitations on itself, and even its recognition of Congress’ role in the interpretive
scheme, in the final analysis, judicial precedent limited the scope of Congress’ power in this
matter.
Our national experience teaches that the Constitution is preserved
best when each part of the government respects both the
Constitution and the proper actions and determinations of the other
branches. When the Court has interpreted the Constitution, it has
acted within the province of the Judicial Branch, which embraces
the duty to say what the law is. When the political branches of
Government act against the background of a judicial interpretation
of the Constitution already issued, it must be understood that in
later cases and controversies the Court will treat its precedents
with the respect due them.... RFRA was designed to control cases
and controversies, such as the one before us; but as the provisions
of the federal statute here invoked are beyond congressional
authority, it is this Court’s precedent, not RFRA, which must
control.9
Another area in which the Court has established interpretive supremacy is
federalism. The Court has issued a number of rulings denouncing Congress for
“commandeering” the states to enforce federal laws. A very narrow majority (often five to
four) of the Court believes that although the states surrendered many of their powers to the
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federal government at the founding, they nonetheless retained residual sovereignty under the
Tenth Amendment. In New York v. United States (1992), the Court found that the Low
Level Radioactive Waste Policy Amendments of 198S, which commanded the states to
enforce a federal regulatory program, were unconstitutional.1 0 In United States v. Lopez
(1995), the Court found that Gun-Free School Zones Act (1990), which forbids “any
individual knowingly to possess a firearm...in a school zone,” violated Congress’ power
under the Interstate Commerce Clause." In Printz v. United States (1997), the Court ruled
that Congress could not force the states to enforce the Brady Handgun Violence Protection
Act by performing background checks on potential buyers.1 2 In Boeme, the Court was not
only concerned with the separation of powers, but also with federal-state relations. It ruled
that Congress’ right to enforce the Fourteenth Amendment against the states was limited to
enforcing constitutional rights, not determining what “constitutes a constitutional
violation.”1 3 Finally, in United States v. Morrison (2000), the Court ruled that Congress did
not have the commerce authority to allow for private civil remedies in federal court in sexual
harassment cases as provided in the Violence Against Women Act.1 4
The Eleventh Amendment has resurfaced in a series of cases that have the potential
to revive the debate over the nature of the Union. In Seminole Tribe v. Florida (1996), the
Court ruled that the Eleventh Amendment did not allow Congress to use the Commerce
Clause to waive a state’s sovereign immunity against being sued in federal Court.1 3 hi Alden
v. Maine (1999), the Court found that the Fair Labor Standard’s Act of 1938 that allowed for
private actions against states in their own courts, was a violation of state sovereign
immunity.1 6 Writing for the Court, Justice Kennedy argued that sovereign immunity did not
derive from the Constitution (in this case, the Eleventh Amendment), but from the structure
of the Constitution. In fact, the Eleventh Amendment “confirmed rather than established
sovereign immunity as a constitutional principle; it follows that the scope of the States’
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immunity from suit is demarcated not by the text of the Amendment alone but by
fundamental postulates implicit in the constitutional design.”1 7 The Court invoked popular
sovereignty to limit federal power vis-a-vis the states.
Although the Constitution begins with the principle that
sovereignty rests with the people, it does not follow that the
National Government becomes the ultimate, preferred mechanism
for expressing the people’s will. The States exist as a refutation of
that concept. In choosing to ordain and establish the Constitution,
the people insisted upon a federal structure for the very purpose of
rejecting the idea that the will of the people in all instances is
expressed by the central power, the one most remote from their
control.1 8
Scholar Louise Weinberg argues that “Alden’ s theory of sovereignty is markedly
inattentive to a great legacy, the nationalizing Federalist narrative bequeathed to us by the
founders and more directly by the Marshall Court.”1 9 To some extent this is true, but a
different approach to this decision should avoid the two extremes - state sovereignty
(Kennedy) versus Union sovereignty (Weinberg). This is captured by Justice Souter’s
dissenting opinion in Alden. The Court assumed that the founders (defenders and opponents
of the Constitution), believed in state sovereign immunity. Yet, Souter suggested otherwise,
and connected sovereign immunity to the disputes over sovereignty. He argued that the
“story of the...development of conceptions of sovereignty is complex and uneven; here, it is
enough to say that by time independence was declared in 1776, the locus of sovereignty was
still an open question....” The same unsettledness, he argues, can be said about sovereign
immunity, where the states had different ideas over whether states enjoyed sovereign
immunity.2 0 Souter wrote that the “Court’s rationale for today’s holding based on a
conception of sovereign immunity as somehow fundamental to sovereignty or inherent in
statehood fails for the lack of any substantial support for such a conception in the thinking of
the founding era.”2 1 This phrase captures the essence of constitutionalism during the
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founding era. The Court argued that sovereign immunity was a function of sovereignty; yet,
the concept of sovereignty itself was contested, and was at the heart of debates over major
constitutional controversies. The founders had competing ideas about the nature of
sovereignty, and by implication, any claim of sovereign immunity as an extension of
sovereignty was and should continue to be a subject of debate. The current Court, however,
does not seem to see it that way as it continues to expand state sovereign immunity.2 2
Another case that has the potential to revive the debate over sovereignty is United
States Term Limits, Inc v. Thornton (1995). In a five to four decision, the Court struck down
Arkansas’s constitutional provision imposing term limits on members of Congress. The
majority and the dissent invoked competing conceptions of popular sovereignty to justify
their decision. Writing for the Court, Justice Stevens made the case that members of
Congress owe their allegiance to the people of the Nation, not the States. “[T]he Framers, in
perhaps their most important contribution, conceived of a Federal Government directly
responsible to the people, possessed of direct power over the people, and chosen directly, not
by the States, but by the people.”2 3 By contrast, Justice Thomas believed that the “ultimate
source of the Constitution’s authority is the consent of the people of each individual State,
not the consent of the undifferentiated people of the Nation as a whole.” In particular,
the notion of popular sovereignty that undergirds the Constitution
does not erase state boundaries, but rather tracks them. The people
of each State obviously did trust their fate to the people of the
several States when they consented to the Constitution; not only
did they empower the governmental institutions of the United
States, but they also agreed to be bound by constitutional
amendments that they themselves refused to ratify.2 4
Both the majority and dissenting opinions looked not to the text for answers, but to
the disputed meaning over the structure of the Constitution. As Kathleen Sullivan writes,
“Term Limits elicited a confrontation among the Justices over the basic structural principles
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of the federal union: are we one people insofar as we constitute the federal government, as
the majority held, or as the dissent would have it, irreducibly the peoples of the several
states.”2 3 Similarly, in Alden, the Court engaged in a debate over the contested nature of
sovereignty and sovereign immunity. The opinions in Term Limits, Alden, as well as in
other Eleventh Amendment and Commerce Clause cases, have the potential to re-ignite the
debate over the relationship between the states and the federal government, as well as
between Congress and the judiciary, and the role of the judiciary in resolving constitutional
disputes. At the heart of these debates is popular sovereignty and its role in constituting the
Union. In short, these disputes over the meaning of the Constitution have the potential to
revive the debate over constitutional politics that we thought was put to rest at the end of the
Civil War. However, debates are confined to the Court and the academic community.2 6 It
matters not so much whether the Court sides with Congress or the states, the result is the
same: the Court has the final word not only over the meaning of constitutional law, but of
constitutional politics. Constitutional disputes are no longer fought in politics, but in the
Supreme Court. Moreover, Congress, which has taken the hardest hit from the Court, allows
the Court to eat away at its power. The states, which have been the primary beneficiaries of
this Court, accept these decisions as an element of judicial supremacy. Furthermore, in cases
such as Term Limits, where the Court directly challenges the idea of state sovereignty, the
states do not seem to be bothered.
The Rehnquist Court treats the Constitution as a “law,” subject to the ordinary rules
of judicial interpretation. In many cases, the Court is concerned with adjudicating disputes
over constitutional provisions (i.e., the Commerce Clause or Section S of the Fourteenth
Amendment), and this naturally generates constitutional law. However, the Rehnquist Court
has gone further than just constitutional law, and has entered the realm of constitutional
politics. Yet, unlike during the founding era where constitutional politics was spread across
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institutions at the state and federal levels, the Supreme Court dominates constitutional
politics. In the past, constitutional meaning was subject to dispute, and was at the center of
some of the most divisive battles of the early Republic. These disputes stemmed from
disagreements over the structure of the Union and it accompanying institutions. The Civil
War put to rest many of these questions, thereby ending the debate over the meaning of
constitutional politics. The era of “new federalism” and the disagreements among the Court
over the meaning of the Constitution, suggests that the questions over constitutional meaning
have yet to be resolved. Yet, they are no longer fought in politics, but in the Court. The
rulings in Term Limits v. Thornton, Alden v Maine, as well as other Eleventh Amendment
cases, shows that the Court not only controls the interpretive process, but has also taken the
disputed concept of sovereignty out of politics and relegated it to the realm of constitutional
law.
This is not to say that Congress, the executive, or the states do not challenge the
Court. Judicial supremacy does not translate in judicial exclusivity. Indeed, echoes of the
early American debates over constitutional meaning have come alive during the twentieth
century, thereby contributing to an ongoing dialogue among institutions. The Court’s
decisions in the Civil Rights era revived the state’s rights argument.2 7 Remnants of
Jacksonian departmentalism were evident in then Attorney General Edwin Meese insistence
that “constitutional interpretation is not the business of the Court only, but also properly the
business of all branches of government.” Meese continued:
The Supreme Court, then, is not the only interpreter of the
Constitution. Each of the three coordinate branches of government
created and empowered by the Constitution — the executive and
legislative no less than the judicial — has a duty to interpret the
Constitution in the performance of its official functions. In fact,
every official takes an oath precisely to that effect.2 8
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Congress has also joined the interpretive debate on a number of fronts. In 1989, the Court
ruled in Texas v. Johnson that flag burning was a form of symbolic speech protected under
the First Amendment.2 9 Congress responded by passing the Flag Protection Act that made
flag burning a federal offense.3 0 According to Charles Tiefer, congressional debate
“provided a forum for interaction” and “time for the Supreme Court, the public, or both to
accommodate the other’s predilections.”3 1 Despite Congress’s efforts, as well as a failed
attempt to pass a constitutional amendment banning flag burning, the Court had the final say
on the matter in United States v. Eichman (1991), where it struck down the Flag Protection
Act.3 2 Similarly, when the Court ruled that Oregon’s ban on use of peyote did not violate
the Free Exercise of Religion (Employment Division v. Smith),3 3 Congress latched on to the
interpretive debate by passing the Religious Restoration Freedom Act, which was quickly
struck down by the Court in Boeme.
The work of such scholars as Sanford Levinson, Louis Fisher, Keith Whittington,
and Barry Friedman attests to the importance and usefulness of institutional dialogue. Yet,
unlike the constitutional dialogues of the early American Republic, the dialogues of the
twentieth century are taking place within the context of a political system that is constructed
around judicial supremacy. It is among the Justices themselves (and not the other branches)
that we find the disagreements over the meaning of constitutional law and politics. In this
era, institutions such as Congress and the executive are trying to And their voice, but too
often, the Supreme Court denies them that chance.
Conclusion
In this dissertation, I showed that the ambiguous nature of popular sovereignty and
the inability of the framers of the Constitution to put forth a coherent theory of popular
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sovereignty, contributed to the Civil War. The consensus over the theory of popular
sovereignty did not translate into an agreement on how it was to be put into political
practice. This disagreement stemmed partly from the fact that popular sovereignty was
divided and scattered across institutions, making the battles over the institutionalization of
popular sovereignty inevitable. As a result, appealing to popular sovereignty failed to solve
some of the most pressing problems facing the young Republic. The courts stepped in to
counteract legislative and executive aggression as a means to protect the fundamental will of
the people as embodied in the constitution. In particular, the Supreme Court designated
itself as the common arbiter of conflicts between the state and federal governments. Yet, its
efforts were to no avail as the Court’s decisions provided the impetus for some of the most
divisive constitutional battles of the early Republic.
There is another side to the story of popular sovereignty. The disputes over the
institutionalization of popular sovereignty were debated in politics, not simply in the courts.
This, in turn, contributed to a robust constitutional politics over the disputed meaning of
popular sovereignty. Popular sovereignty was not simply a matter of constitutional
interpretation, but of constitutional politics. Although popular sovereignty was not a
coherent theory when it came to constructing the structures for the Union and resolving
constitutional disputes, it nonetheless made for a rich debate over the meaning of a core
concept of American constitutionalism.
The empirical lesson of constitutionalism is that constitutionalism does not resolve
conflicts. In fact, the provisions of the Constitution lend themselves to an on going conflict
that is best debated in politics. Constitutional politics sees constitutional provisions as
tumultuous and contested. In comparison, constitutional law treats constitutional concepts as
polishing and perfecting ideas. When constitutionalism is primarily concerned with
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clarifying and polishing ideas, it gives the federal judiciary a lock on constitutional meaning.
However, the key to constitutionalism is that ideas are subject to an ongoing debate. This
was demonstrated during the early Republic as people disagreed over the meaning and
institutionalization of the idea of popular sovereignty. For the Founders (who often
expressed ambiguous sentiments about constitutional ideas), constitutionalism meant
recognizing the contested nature of the idea of popular sovereignty, and not trying to figure
out which idea was right. The Constitution was the embodiment of popular sovereignty; but
the idea of popular sovereignty was ambiguous and contested. Yet, recognizing the
contested nature of popular sovereignty suggests that constitutional law was really about
constitutional politics.
The problem o f popular sovereignty was one of the causes of the Civil War. The
end of the Civil War, however, ended the debates over the meaning of constitutionalism.
The real tragedy is not that popular sovereignty failed to resolve constitutional controversies,
provide coherent answers, or set up agreeable structures for the Union, but in the modem
era, popular sovereignty is contested only in the courts, not in politics. Popular sovereignty
is a matter of judicial, not political interpretation. The courts, in particular, the Supreme
Court have a lock over constitutional law and constitutional ideas. In the past, constitutional
ideas were subject to ongoing debates in politics. Be it in newspapers, speeches, resolutions,
laws, ordinances, conventions, or court decisions, people expressed their disagreements over
constitutional meaning, and resisted efforts to constitute popular sovereignty in only one
institution. In the modem era, however, constitutional politics has been tamed and is now
the object of academic and judicial discourse. Even in the middle of a renewed debate about
sovereignty (Alden v. Maine and Term Limits v. Thornton), where the potential for a rigorous
debate over the meaning of constitutional politics is present, there are no widespread
objections to the Court’s interpretation of the Constitution, or its vision of the structure of
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the Union. When the Supreme Court challenges the authority of Congress, Congress is
limited in its capacity to articulate and sustain a competing vision by virtue of the fact that
we are in an era of judicial supremacy. Nor is this present at the state level where although
the decisions tend to favor the states, on occasions when do not, the states do not offer the
high levels of resistance, or a different version of the relationship between popular
sovereignty and the Union that characterized the antebellum period. Judicial supremacy
reigns.
In the past, constitutional debate was alive and intense as constitutional disputes
were worked out in politics: the result was a rich dialogue that made the Union a true
republic. The downside to these debates was a tumultuous constitutional politics: the result
was political instability and eventually, the Civil War. In the modem era, the rich dialogue
is gone, but political stability reigns. Stability has come at the expense of constitutional
politics. The Court now has a hold on both constitutional law and constitutional meaning.
James Madison’s original conception of the compact theory of constitutional
construction was premised upon multiplying the participants in constitutional conversations.
As H. Jefferson Powell writes, “[f]or adherents to the principles of ‘98..., the most important
of the general principles that should guide constitutional interpretation was the
Constitution’s origins in the popular will and the consequent ongoing authority of the people
to discuss and ultimately determine its meaning.”3 4 In other words, popular sovereignty is
not about one institution (the judiciary) asserting control over the people’s will. Rather it is
about the people asserting control over institutions. As Powell concludes, the principles of
‘98 endorsed a constitutional vision in which institutional power over constitutional meaning
was counterbalanced by popular authority over institutions.3 5 This vision was and should be
the cornerstone of American constitutionalism. As Kramer writes, “popular
constitutionalism has been an indispensable element of American government from the
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beginning, the most profound reflection of what the American Revolution was all about. To
squeeze “the people” out of the Constitution is to squeeze the life out of it.”3 6
291
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Endnotes
1 Larry D. Kramer. “The Supreme Court 2000 Term: We the Court.” Harvard Law Review 115
(2001), p. 13.
2 United States Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), p. 838.
3 Alfred H. Kelly, Winfred A. Harbison and Herman Belz. “The American Constitution: Its Origins
and Development. Vol. 1.7th ed. New York and London: W W Norton and Company, 1991, p. 317.
4 Texas v. White, 74 U.S. 700, 724-725 (1868).
5 Kramer, “The Supreme Court,” p. 52.
6 Ibid., pp. 127-128.
7 City o f Boeme v. Flores, 117 St. Ct. 2157 (1997). The Act was passed in response to the Court’s
decision in Employment Division v. Smith, 494 U.S. 872 (1990), where the Court ruled that the Free
Exercise Clause did not cover religious rituals.
8 Cooper v. Aaron, 358 U.S. 1 (1958); United States v. Nixon, 418 U.S. 683 (1974).
9 City o f Flores v. Boeme, p. 2172 (citing Marbury v. Madison, p. 177). The Court considered Smith
the controlling precedent in this case.
1 0 New York v. United States, 505 U.S. 144 (1992).
1 1 United States v. Lopez, 514 US 549 (1995).
1 2 Printz v. United States, 521 U.S. 898 (1997).
1 3 City o f Boeme v. Flores, p.2164.
1 4 United States v. Morrison, 529 U.S. 598 (2000).
1 5 Seminole Tribe v. Florida, 517 U.S. 44 (1996).
1 6 Alden v. Maine, 527 U.S. 706.
1 7 Ibid., pp. 728-729.
1 8 Ibid., p. 759.
1 9 Louise Weinberg. “Of Sovereignty and Union: The Legends of Alden.” Notre Dame Law Review
76 (2001), p. 1149.
2 0 Alden v. Maine, pp. 768-769.
2 1 Ibid., p. 798.
2 2 See e.g., Alabama v. Garrett, 531 U.S. 356 (2001). The Court ruled that Title I of the provision in
the Americans with Disability Act (ADA) that allowed state employees to initiate federal lawsuits
against the states, violated the Eleventh Amendment
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2 3 Term Limits v. Thornton, p. 821.
2 4 Ibid., pp. 846, 849.
2 5 Kathleen M. Sullivan. “Dueling Sovereignties: U.S. Term Limits, Inc. v. Thornton.” Harvard Law
Review 109 (1995), pp. 79-80.
2 6 See e.g., Symposium. “Perspective on the Authoritativeness of Supreme Court Decision: The Law
of the Constitution.” Tulane Law Review 61 (1987), pp. 977-1095. Then Attorney General Edwin
Meese, Burt Neubome, Rex Lee, Mark Tushnet, Paul Colby, Robert Nagel, Sanford Levinson, John
Stick and Ramsay Clark contributed to the symposium. The conversation focused on Meese’s
distinction between constitutional law (a body of law arising from disputes over constitutional
provisions) and the Constitution as the “Supreme Law of the Land.” See also Symposium: “The
Constitution Outside the Courts and the Pursuit of a Good Society: Nationalized Political Discourse.”
Fordham Law Review 69 (2001), pp.1989-2086. Lawrence G. Sager, Robert F. Nagel, and Martin S.
Flaherty contributed to the symposium
2 7 See e.g., David R. Colburn. “Florida’s Governors Confront the Brown Decision: A Case Study of
the Constitutional Politics of School Desegregation, 1954-1970. In Kermit L. Hall and James W. Ely,
eds. An Uncertain Tradition: Constitutionalism and the History o f the South. Athens and London:
The University of Georgia Press, 1989, pp. 326-355.
2 8 Meese, “Perspective on the Authoritativeness of Supreme Court Decision,” pp. 985-986.
2 9 Texas v. Johnson, 491 U.S. 397 (1989).
3 0 Flag Protection Act (18 U.S.C. § 700 (1989).
3 1 Charles Tiefer. “The Flag Burning Controversy of 1989-1990: Congress’ Valid Role in
Constitutional Dialogue.” Harvard Journal on Legislation 29 (1992), p. 395.
3 2 United States v. Eichman, 110 S. Ct. 2404 (1990).
3 3 Employment Division v. Smith, 494 U.S. 872 (1990).
3 4 H. Jefferson Powell. “The Principles of ’98: An Essay in Historical Retrieval.” Virginia Law
Review 80 (1994), p. 738.
3 5 Ibid., p. 736.
3 6 Kramer, “The Supreme Court,” p. 129.
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Creator Issa, Randa Carolyn (author)

Core Title Constituting popular sovereignty: Contests over institutional authority in the early American Republic

School Graduate School

Degree Doctor of Philosophy

Degree Program Political Science

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag history, United States,Law,OAI-PMH Harvest,political science, general

Language English

Contributor Digitized by ProQuest (provenance)

Advisor Gillman, Howard (committee chair), Kann, Mark (committee member), Seip, Terry (committee member)

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c16-220612

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