The American Quarterly Review, No. 17, March 1831

by Various

A bankrupt law was passed during the first Mr. Adams's administration, by virtue of the express power given to congress on that subject. When Mr. Jefferson came into power, the law was repealed as inexpedient, because it was believed to produce as much fraud and mischief in some ways as it prevented in others. But nobody had then discovered that the law was unconstitutional. Yet in 1822, that doctrine was broached and zealously maintained by three or four members from the South, so as to induce Mr. Lowndes, who was himself opposed to a bankrupt law, to disavow the doctrines of his associates. That exemplary man, the character of whose mind was sufficiently inclined to refined speculation, if it had not been so tempered by candour and sound practical sense, never lost sight of the end of government, in his view of the means; and he believed that in interpreting the constitution, we ought not to look at it through a microscope, for this plain reason, if for no other, because those who are finally to decide on it look at it with their ordinary eyes. Accordingly, in the first half of his speech, he aimed to show that congress had the power to pass the law, and in the last, that they ought not to exercise it.

Again: Mr. Jefferson gave his sanction to the Cumberland road, to be made at the national expense, provided the states through which it would pass gave their express assent to it. The states of Virginia, Maryland, and Pennsylvania, did pass laws giving such consent. It was not then considered that congress had not the power of appropriating the money in the treasury to all purposes of general utility, provided they did not assume any other power, in the exercise of this; and it is clear that Mr. Jefferson did not think that the construction of a road, with the consent of the states through which it passed, was such an exercise of power. Yet after the road was made, by this growing disposition to strict construction, it was discovered that congress had no power to make such appropriations, under the constitution, and if the power could not be derived from that instrument, the consent of the states interested could not give it. It is here worthy of remark, that many of those who maintained that the general government possessed the power of making roads, independently of the states, concurred in the preceding position; and thus a majority was obtained who agreed that congress could use the public money for no purpose, which they had not the independent power of executing. Each party hoped to derive strength by this decision. The one, because it advanced a step forward in strict construction; and the other, looking to the influence of the practical benefits to be derived from the exercise of the power of making roads and canals, flattered themselves that many, when they found themselves not able to attain their object by mere appropriations, would, rather than forego the promised benefits altogether, support a still more enlarged construction of the constitution; and the issue seems so far to have justified their expectations.

We will give one more example. It had been supposed that the vice-president, as presiding officer of the senate, had, by the force of the term itself, the power of keeping order and regulating the debate; yet three or four years ago, it was discovered by that officer, or some of his friends, that he did not possess that power, in certain cases, and he accordingly forbore to exercise it.

These remarks are made in no invidious spirit. We do not mean to give any opinions on these questions. In some of them, indeed, we scarcely know whether, in this age of nice discrimination, our impressions deserve to be called opinions. But we merely meant to refer to facts which are a part of the history of the country. They go to show, that constitutional doubts and difficulties are continually increasing, not only from the new positions and aspects of things in the endless vicissitudes of human affairs, but also by the progress of refinement in reasoning; because much is now considered unconstitutional that was not deemed so formerly.

If this doubting, disputatious spirit—this habit of questioning every thing whenever a quibble can be raised—should continue to advance, where is the law, which, after fighting its way through both houses of the legislature, and, perhaps, escaping the veto, may not be eventually contested and defeated? We know that in many of the states there are Bills of Rights, which are considered to have equal authority with their constitutions. Some, indeed, regard them as settling the principles of primordial law, which the constitution itself cannot countervail. These, then, may also be appealed to for the purpose of proving the unconstitutionality of a state law; and in the inferences which ingenuity, or even stupidity, may draw from such broad and indefinite principles, the clearest right may be disputed, and the most atrocious crime defended. The right of a community to take the life of any one of its citizens has been gravely denied, and the argument rests for its support on the imprescriptible and immutable rights of man. If the net-work of the laws shall be thus chafed and frittered away, little fish, as well as big ones, may break through it when and where they please.

We are aware, that, in the ordinary concerns of life, nature and reason will often assert their empire. They cannot be altogether cheated out of their rights by sophisms and quibbling. But the latter will but too often prevail. They have prevailed, are yet prevailing; and, if a barrier is to be presented to their further progress, it must be by the common sense of the nation, frowning into contempt this constitutional casuistry, which would degrade our legislative halls into schools of sophists—would employ the best powers of the human mind, not in clearing up doubts, but in creating them—which considers that the most obvious and direct meaning of the constitution is always the wrong one, and that what the convention made the people say by that instrument, can be understood but by one man in ten thousand, who cannot show he is right, but by a commentary a hundred times as large as the text. It must be by going further, and saying that after a question has been fully discussed and solemnly decided—after it has been recognised by every department of the government—and acquiesced in by the people, it should be considered as the best exposition the constitution is capable of, and as no longer open to controversy: and if the decision was wrong, according to a maxim of the common law, and which became common law only because it was common sense, the universality of the error makes it right.

Let it not be supposed, that if a false or inconvenient construction is put on the constitution, or its meaning is considered doubtful and uncertain, the evil may be corrected by an amendment. Supposing it to take place, may we not, like bad tinkers, in stopping one hole, make two? We can judge of the probable success of this course, by the various laws passed to alter, or amend, or repeal, previous emendatory acts. But if the remedy were effectual when attained, is it attainable? What probability is there that three-fourths of the states will concur in any amendment, or that motives of interest—of party sympathy—of delusive argument—or the mere nonchalance of men about evils which are not immediately pressing, would not unite more than one-fourth of the states? Besides, if the constitution were always to be changed whenever a serious question of its construction arose, and amendments were as practicable as they are difficult, the time required for the operation would leave us nothing else to do. A century would scarcely suffice to settle the questions which may occur in a single year.

There is another mischief, of no insignificant character, which results from these excessive refinements in interpreting the constitution, and from the doctrine that no length of time can settle its meaning. They afford ready pretexts to cunning and timid politicians for screening their real motives from the people. When they wish to evade responsibility for their votes, they have nothing more to do than to plead scruples of conscience, and the sacred obligation of an oath. Where is the measure which a moderate degree of ingenuity may not show—we may almost say—has not shown to be against the words, or the meaning and spirit of the constitution? It is true, if the people distrust the sincerity of this plea of conscience, or disapprove it, they may remove their representative. But that remedy may come too late, and may not always be applied. The people have always shown great indulgence and forbearance towards this plea: besides, before the time of re-election comes about, these inconvenient scruples may, in the din of new contests, be forgotten, or remembered only to be forgiven, and, by the hocus pocus of party, even metamorphosed into a recommendation. When, then, it is so easy to take shelter behind the ark of the constitution, ought we to enlarge the limits of this place of refuge for cunning and cowardice?

One more argument in favour of a fair, liberal, manly construction of the constitution. There would be a certain degree of inconvenience incident to every written constitution, if there were no difficulties in its interpretation, and its language was always understood in the same sense by all men. In making that distribution of its various powers which is deemed most likely to secure a safe and healthy action, the hands of its functionaries must often be tied up from doing that which particular circumstances may make highly expedient. Some imperative claim of humanity, some yet more pressing emergency of state, may call for powers which the constitution has withheld. Mr. Jefferson considered the acquisition of Louisiana to be a case of that character. He questioned the power of acquiring foreign territory under the constitution. But when he reflected that France could not retain possession of Louisiana, and that hither the constitution must be stretched, (his letter to W. C. Nicholas might almost justify a stronger expression,) or we must submit to having the greatest commercial nation in Europe—our most active rival in peace, our most powerful enemy in war—posted on our right and left flank, and, by and by, in our rear,—he sacrificed his opinions to the safety of the republic. The present president was no doubt actuated by similar considerations, when he pursued the Seminoles into the Spanish territory, and made war on the country in which they had taken refuge—the occasion not appearing to him to admit of the delay of a formal declaration by congress. Commodore Porter may be presumed to have acted on the same principle in Cuba. No one regards these as fit cases for precedents. All agree, that if we have a constitution, its mandates should be obeyed, and that we must be content to put up with its partial inconvenience, for the sake of its general benefits. But surely we ought not to go to the other extreme, and so fetter the constituted authorities of the nation, by a spirit of interpretation which will deprive them of all salutary power, except by usurping it. Let us not lose sight of "the expedient," in discussing "the right;" but rather, as the common sense of mankind dictates in ordinary cases of conscience or morality, be liberal in construing the constitution, when its power is to be used for the good of the people, and captious and astute only when its exercise may be pernicious.

On these grounds, we earnestly beseech those who are friendly to our political institutions—who believe that no other than the complex government we have adopted can unite the adaptation of laws to local circumstances with the strength and security of a great empire, to discountenance the pestilent and absurd doctrine that the constitution is to be on all points forever unsettled. We beseech them to save this monument of our country's wisdom—this instrument of its safety, its liberty, and its future greatness, from the peril and reproach to which it is thus exposed. It is in their power to protect it from an evil which would convert a government intended to secure domestic peace, into one of perpetual civil strife, and which would confide the destinies of the country to sophists, and quibblers, and casuists—or rather to those political managers who would use them as tools to persuade the people that a good measure was unconstitutional, that they might pursue a bad one with impunity.