Debates of the Federal Convention I

Instead of moving on to the debates on ratification, I am taking a deep dive into Madison’s summaries of the Federal Convention debates. I have never read these notes before and find them interesting. I am currently on week 4 of the debates and have highlighted a few quotes pertaining to the evolution of the government the delegates were creating. The dead v. living debate is definitely more associated with judicial interpretation, but I wanted to try and get a glimpse of the views of the convention delegates…at least from Madison’s pen.

On May 29, 1787, Edmund Randolph introduced the Virginia Plan to the assembled delegation. The Virginia Plan was the first proposal and the basis for debate on the reformation of government. The 13^th resolution of the plan provided for amendment:

Resd. that provision ought to be made for the amendment of the Articles of Union whensoever it shall seem necessary, and that the assent of the National Legislature ought not to be required thereto.

The final sentence of this resolution is intriguing, the government may be amended, but not require National Legislative approval? Does this mean the states instead of the national government would have the responsibility to approve amendments? There was no debate until June 5^th and even then the discussion was minimal. Charles Pinckey did not believe the resolution was required, even though he included a similar line in his proposal (see below) and Elbridge Gerry favored inclusion of the resolution:

The novelty & difficulty of the experiment requires periodical revision. The prospect of such a revision would also give intermediate stability to the Govt. Nothing had yet happened in the States where this provision existed to prove its impropriety.

Gerry iterates this is an experimental government and will require changes in order to maintain the functioning of government and the amendment process seems to work. I am looking forward to continued debate on this resolution.

Charles Pinckey of South Carolina also submitted his proposal on the same day. Similar to the Virginia Plan, Pinckey’s proposal provided guidance for an amendment process, however this plan required legislative assent:

The assent of the Legislature of States shall be sufficient to invest future additional Powers in U. S. in C. ass. and shall bind the whole Confederacy.

Pinckey’s proposal was not debated or used in the Convention, however there is debate on whether the proposal was utilized by the Committee of Detail.

 

Judiciary in Federal Convention

Prior to exploring the constitutional ratification debates, I wanted to explore the constitutional convention debates regarding the judiciary.  Although I was unable to find any evidence related to the living v. dead letter argument, the information I have read is informative regarding judicial interpretation. The Federal convention used the Virginia Plan as the starting point for a federal judiciary which would “consist of one or more supreme tribunals and inferior tribunals to be chosen by the legislature.” The supreme tribunal was to be the final appeals court, hear cases of, “piracies & felonies on the high seas, captures from an enemy; cases in which foreigners or citizens of other State applying to such jurisdictions may be interested, or which respect the collection of National revenue; impeachments of any National officers, and questions which may involve the national peace and harmony.”

Madison also wanted a council of revision which would have been made up of the “executive (president) and a convenient number of national judiciary,” responsible for reviewing federal and state laws prior to enactment. The council could revise or veto laws they deemed unconstitutional. I do not remember previously reading about the council of revision proposal. I agree with the majority of those who were against the council as the council would defeat the goal of separation of powers. This would tie together the executive and judiciary branches in a way superseding the legislature. This power would further restrict the legislature, of which of the House was the only branch democratically elected, significantly watering down the voice of the people.

During the debates regarding the council of revision there were several interesting points made related to judicial review. James Wilson, Federalist and one of the original Supreme Court justices, in favor of a council stated “Laws may be unjust, may be unwise, may be dangerous, may be destructive; and yet not be so unconstitutional as to justify the Judges in refusing to give them effect.” In this argument, Wilson was stating judges would be able to neutralize the effects of laws written by the legislature if they had the ability to revise laws prior to implementation. In regards to judicial review, Wilson is iterating a law may be “unjust” and even “destructive” but not unconstitutional. This view leans towards a strict construction of the Constitution versus a broader, liberal approach. Although not in position as a Supreme Court justice during these debates, he is stating the judiciary’s duty is to determine if a law is constitutional, not the laws impact or justness.

Elbridge Gerry, Democrat-Republican, who opposed the council of revision believed “…it (council of revision) was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. He relied for his part on the Representatives of the people as guardians of their Rights & Interests.” Gerry was concerned the council would negate the separation of powers; establishing an inappropriate association between the executive and judiciary. Gerry’s view also maintains the judiciary has no place legislating and similar to Wilson’s view judges must limit their role in constitutional interpretation.

The convention would eventually author Article III, without the council of revision, and need to defend their final decision during the ratification debates. I am looking forward to reviewing the Federalist and Anti-Federalist papers again.

Judiciary in Articles of Confederation

The Articles of Confederation and Perpetual Union was an abject failure, but the document served primarily two purposes during the period of March 1, 1781 to September 12, 1788. First the Articles provided the 13 colonies with a written constitution to limit arbitrary governance the colonies had to cope with under the Crown. Secondly, the Articles promoted a union between the states to reduce the possibility of continuous armed conflict noted in Europe. In regards to federal courts, the Articles were basically vacant.

Article IX provides Congress would act as the “…the last resort on appeal in all disputes and differences no subsisting or that hereafter may arise between two or more States…” There is a tad more guidance, but nothing that allowed for a true federal judiciary. This lack of final appellate jurisdiction left interpretation of law up to the states, without any resolution for contradictory state court decisions. 

So on to the constitutional debates related to Article III.

 

Dead or Living, My Journey in Constitutional Interpretation

I have started my journey of constitutional interpretation self-discovery and can already sense I am going to have to try and limit the depth I am willing to travel down rabbit holes. I started by searching for articles specifically addressing the “living Constitution” versus “Dead Letter” argument. This search turned up several articles of which I have read five articles from writers in the national press. I will briefly comment on the articles I have read to date, but in reading I have noted the discourse centers on the jurisprudence (legal theories) of Chief Justice John Marshall and Justice Antonin Scalia. I believe this is an unfortunate limitation, so I am going to go back and examine the Articles of Confederation, text of the Constitution, and the ratification debates in an attempt to get primary source information related to original intent.

Of the five articles I have read so far, four have been in favor of the “living Constitution,” perspective. The fifth was an informative article, as opposed to an opinion piece, written for the American Bar Association. The general premise of these articles was the authors of Constitution did not construct the Constitution with the intention of the laws to be implemented in the same manner for all time. Instead, their intention was to provide a framework to be interpreted in the manner required by future populations.

Two of the articles used the impact of stare decisis (legal decisions based on precedent; common law) as proof of a “living small-c constitution.” David Strauss suggested his readers to read an opinion of a constitutional case and look closely at the justices rationale for their decision. Strauss predicts the Constitutional text will only play a “ceremonial role,” while the majority of the justification will be based on precedent. I have read many opinions and agree with Mr. Strauss, but does this fact provide evidence of a living Constitution. The common law system has been used since the 12^th century, more importantly Britain and thus the colonies functioned under the common law system, so it is safe to assume the United States system would include such a process. Does a belief in the “dead letter” version of the Constitution eliminate the principle of common law?

The other frequently expressed premise is society changes and evolves, so the meaning of the Constitution also changes and evolves. This is the argument I am having a difficult time accepting. I understand the meanings of words change and societies do evolve, but I am a firm believer in the formal interpretation of the rule of law. Brian Tamanaha wrote an excellent piece on the rule of law, noting the foundation of the rule of law is that “government officials and citizens are bound by and act consistent with the law.” Further explaining:

This basic requirement entails a set of minimal characteristics: law must be set forth in advance (be prospective), be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms (emphasis added).

The Constitution was written to provide a form of legal restraint on the federal government, effectively limiting the law making power of the federal government. The addition of the extremely difficult amendment process was added so the law could be adapted, but only through a legitimate deliberate process. At this point, to me this means Constitutional questions should be answered as narrowly/strictly as possible which seemingly constricts, but not eliminate, the utilization of precedent and analogy in legal reasoning. With this current viewpoint (again this is a developing opinion), I believe the  contemporary use of precedents and broad implementation of common law in constitutional interpretation may be counter to the original intent and essentially weakening the rule of law.

Constitution: Dead or alive?

Constitution Is Clearly a Living Document

On Constitutional Interpretation: Originalism v. A Living Constitution?

Original Intent or Evolving Constitution? Two Competing Views on Interpretation

The Living Constitution

 

A Dead Letter or Living Document?

Is the Constitution really a charter of freedom? Yes.

Is the almighty parchment a “dead letter” or a “living document?” You know I have an initial gut reaction to this, but instead I am going to consider my answer a developing opinion.

My plan is to blog about my research into this question until I feel confident with my opinion. This is going to be fun, at least for a policy wonk like me.