America's Unwritten Constitution: The Precedents and Principles We Live By (43 page)

What is true in courtrooms is also true in classrooms and in family rooms. Every year, millions of students, parents, and teachers visit Philadelphia’s Independence Hall and National Constitution Center or the National Archives in Washington, D.C. In all three of these grand civic spaces, citizens hear and speak about both the Declaration and the Constitution. When returning home from these venues, ordinary Americans often do so carrying souvenir pocket Constitutions. Many of the current popular editions reprint the Declaration alongside the Constitution, following the general format prominently adopted by the 1987 Commission on the Bicentennial of the United States Constitution.

PUBLIUS
’
S
Federalist
ESSAYS HAVE ALSO EARNED
a seat of special honor as a privileged guide to constitutional interpretation. Here, too, a document outside the written Constitution joined the canon in the earliest years of the fledgling republic and has since then continued to enjoy a special position in American constitutional discourse.

The justices and members of the Supreme Court bar began citing
The Federalist
even before John Marshall’s ascension to the Court in 1801, and Marshall’s extravagant praise for and deployment of Publius settled the matter for good. In his 1819 ruling in
McCulloch v. Maryland
, perhaps the most magisterial of his opinions over the course of his thirty-four-year tenure on the bench, the chief justice began his extensive discussion of Publius as follows: “In the course of the argument,
The Federalist
has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the Constitution. No tribute can be paid to them which exceeds their merit.”

Marshall then proceeded to accord Publius’s “excellent essays” and “instructive pages” the kind of presumptive persuasive authority nowadays reserved only for previous decisions of the Court itself. Nowhere in
Mc-Culloch
did Marshall expressly cite to or quote from any of the Court’s prior precedents; but the chief did feel obliged to analyze in detail a passage from
The Federalist
that at first seemed to lean against the Court’s approach. After quoting Publius at length, Marshall went on to show that, on closer inspection,
The Federalist
was actually on his side.

Two years later, in
Cohens v. Virginia
, Marshall executed another courtly bow in Publius’s direction:

       
The opinion of
The Federalist
has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the Constitution, put it very much in their power to explain the views with which it was framed. These essays [were] published while the Constitution was before the nation for adoption or rejection, and…written in answer to objections.

As he had in
McCulloch
, Marshall proceeded to quote Publius at length in order to illustrate that the views of the Court were in perfect harmony with the views of
The Federalist
.

All told, the justices have cited Publius in more than 300 cases. The citation rate has skyrocketed in recent decades; between 1990 and 2010, more than 100 cases explicitly cited at least one
Federalist
essay. In
Printz v. United States
, a particularly interesting 1997 case that generated several concurrences and dissents, the members of the Court cited
The Federalist
a whopping 61 times. (Despite this profusion,
Printz
counts as only a single case in the previous tallies, which do not distinguish between singular and multiple references within a case.)
⁷

The Court is not alone in its respect for Publius. Over the past decade, more than 6,000 law review articles have cited
The Federalist
, and various
Federalist
essays nowadays form part of the standard curriculum of many if not most high-school and college civics courses.

Publius deserves his exalted legal status, but not quite for one of the reasons that Marshall smuggled into his courtly tribute in
Cohens
. Proper constitutional interpretation should focus not on “the views with which it [the written Constitution] was framed” behind closed doors at Philadelphia, but rather on the public understandings that prevailed when the document was later openly ratified by the American people. The Constitution, we must always remember, derived its legal authority from its ratification by the people. (Indeed, Marshall himself repeatedly stressed this theme in several of his most enduring decisions—especially in
Marbury
and
Mc-Culloch.
)
The Federalist
deserves great weight precisely because (as Marshall also stressed in
Cohens
) Publius brought his essays before the public and expounded the Constitution at the very moment that the American people were deciding whether to consent.

Although we now know that two of the authors of
The Federalist
were indeed present at Philadelphia,
The Federalist
hid this fact from its readers and limited its analysis and defense of the proposed Constitution to materials accessible to the general public—namely, the text of the Constitution; its structural logic; its legal precursors (such as the British Constitution, colonial American practices, revolutionary state constitutions, and the Articles of Confederation); and the general challenges confronting America that the document aimed to surmount. The official author of the text was not a duo who had performed parts in the drafting of the Constitution behind closed doors, but the pseudonymous
Publius
—a self-described “public man” (for that is what
publius
means in Latin)
acting publicly
by
publishing
his analysis for the consideration of a
republican people
themselves also acting in
public
.
⁸

Of course, lots of other Americans, with or without literary masks, took part in the great national conversation of 1787–1788. What makes Publius so special? Marshall’s words ring true: Publius offered a remarkably “complete commentary on our Constitution”—far more systematic, disciplined, and detailed than most other contemporaneous sources—and a supremely intelligent commentary at that, with “intrinsic merit,” as Marshall pithily put it.

Justice Joseph Story said much the same thing about Publius in 1833, when Story published his own multivolume
Commentaries on the Constitution
, easily the most important work of constitutional scholarship of the nineteenth century. Story laced his treatise with copious quotations from and paraphrases of
The Federalist
, and he took pains in his Preface to acknowledge that he was standing on Publius’s shoulders. In Story’s words,
The Federalist
towered above all other Founding-era materials as a “great work”—an “incomparable commentary” that “discussed the structure and organization of the national government, in all its departments, with admirable fullness and force.”
⁹

When the Constitution was pending before the American people in 1787–1788, Publius beautifully summarized and synthesized many of the
best arguments that other leading Federalists were making elsewhere. In turn,
The Federalist
functioned as a debaters’ handbook that leading Federalists deployed in some of the later ratification debates, especially in all-important Virginia and New York. More than two centuries after the Founding,
The Federalist
thus remains a particularly handy place to begin serious constitutional analysis.
¹⁰

OF THE SIX CANONICAL WORKS
highlighted in this chapter, the Northwest Ordinance is doubtless the one least familiar to the average twenty-first-century American. But this document loomed large in antebellum America and continues to inspire both constitutional scholars and Supreme Court justices. Over the years, the
U.S. Reports
have recorded explicit invocations of the Ordinance in over 125 Supreme Court cases. Roughly 20 of these citations have occurred in the past half-century, mostly in high-profile cases spanning a remarkable range of topics—including the non-establishment and free-exercise principles, the one-person-one-vote rule, the right of habeas corpus, the principle of educational equality, and the right to civil and criminal juries.
¹¹

Enacted by the Confederation Congress in 1787 and reaffirmed by the new Congress under the Constitution as one of the first items of business in 1789, the Ordinance formed a large link in the great chain of American constitutional history. It simultaneously connected the fledgling constitutional system back to the greatest achievement of its predecessor regime (the Articles of Confederation); provided a guiding template for how the biggest national project of the antebellum era—territorial expansion and the ultimate admission of new states into the Union—should proceed; and foreshadowed America’s next great constitutional achievement (the Reconstruction). In the process, the Ordinance helped shape Americans’ deepest ideas about the nature of higher law and the essence of American federalism.
¹²

Much of the Ordinance’s substance concerned and confirmed constitutional first principles for America’s territories as distinct from states. Territories today occupy a much smaller quadrant of American land and
American law than they did in the antebellum period. Back then, a huge chunk of the national land mass had yet to be or had only recently been admitted to statehood, and questions about how that land mass should be governed—most obviously, whether, when, and how slavery should be allowed there—ranked among the most important policy and constitutional issues of the era.

Even today the Ordinance continues to serve as a source of supplementary principles in constitutional discourse concerning certain topics on which the Constitution’s terse text offers less specific guidance. For example, nothing in the written Constitution itself explicitly says that when a new state joins the Union it must generally come in on equal terms and equal footing with all previous states and all future states. Yet this principle, first articulated in the Northwest Ordinance, has long been explicitly recognized by both Congress and the courts as a basic maxim of American constitutionalism—that is, as a pillar of America’s unwritten Constitution, subject to case-specific provisos that Congress may properly craft in order to ensure that each new state will loyally abide by the Union’s basic spirit and structure. Supreme Court case law over the centuries suggests that the “equal-footing doctrine,” as it is called, has exerted a more powerful and persistent pull on the judicial mind than many an explicit constitutional clause. The justices have mentioned or applied the equal-footing doctrine in dozens upon dozens of federalism cases stretching back to the 1830s, with at least one favorable invocation of the doctrine in every subsequent decade.
¹³

The modern-day status of Puerto Rico highlights the continuing relevance of the Ordinance. Were the residents of this archipelago at some future date to clearly express their desire, by a clean majority vote, to become America’s fifty-first state rather than continue their current unique territorial status, nothing in America’s written Constitution would compel Congress and the president to bow to this wish (or alternatively, to offer Puerto Rico complete independence if its request for statehood was rejected). Nothing, in other words, would explicitly prevent the United States from acting as a permanent colonizer of a people who do not want to be permanent colonists. But America’s unwritten Constitution would surely frown upon this sort of imperialist policy, and the deep source of
this disapproval may be found in the words of the Northwest Ordinance, a charter member of America’s symbolic Constitution.

THE ORDINANCE WAS INITIALLY ADOPTED
by the Confederation Congress meeting in New York in the summer of 1787, at the very moment that another group of continental notables was convening in Philadelphia’s Independence Hall to ponder and repair the fundamental defects of the Confederation. As soon as the Constitution commenced operation in early 1789, it became necessary for the new government to assure territorial settlers that all the major promises that had been made to them in the Ordinance would be honored, even though the “United States” was now under new management. This reassurance was in keeping with the opening lines of Article VI: “All debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
¹⁴

On each of the key commitments made by the 1787 Ordinance, the First Congress registered its official agreement. First, the federal government promised to secure the basic rights of territorial inhabitants. Thus, even before other Americans could claim the benefit of a federal Bill of Rights (which was proposed later in 1789 and ratified in 1791), the First Congress signed off on a proto-Bill guaranteeing northwestern settlers, among other things, the rights to worship, to claim the writ of habeas corpus, to be tried by juries, to be represented fairly in local legislatures, and to receive just compensation in eminent-domain cases. Second, the Ordinance assured settlers that their initial status of dependency on the federal government would not endure indefinitely. America would not rule its western lands as permanent colonies the way Britain had tried to rule its American coastal dependencies. Instead, the Ordinance mapped a pathway by which individual western territories would eventually win statehood “on an equal footing with the original States in all respects whatever.” Third, all the federal lands governed by the Ordinance—lands north and west of the Ohio River—would be free soil. Settlers would not be allowed to bring slaves into a region that was (with small exceptions) providentially free from this blight. Fourth, the Ordinance promised that its proto–Bill of Rights was ironclad and irrepealable “as articles of compact between the
original States and the people and States in the said territory and forever… unalterable, unless by common consent.”
¹⁵