All Commentary
Thursday, March 1, 1973

The Founding of the American Republic: 20. Steering a Course for the Nation


Dr. Carson, noted lecturer and author, is living at present in Alabama. The articles of this series will be published as a book by Arlington House.

Republics had been notoriously unstable, fiscally irresponsible, subject to being pulled hither and yon by foreign influences, divided and laid open to civil commotions by partisan conflicts, and rent by contests over succession to leadership. No fact troubled the more thoughtful of the Founders of the United States more than this one. The United States had already witnessed before 1789 many of the results of the fatal tendencies of republics. Monarchy had ever and again been revived to solve the more tenacious problems of republics. Could the United States be steered around the shoals on which other republics had foundered? There were those who doubted it. After all, what would be the rock to anchor a government against the storms without a monarch? The answer seemed to be that there must be no storms, but it was unrealistic. How could a country be induced to yield to precedent, tradition, and those founts of governmental stability — awe and obedience — without the bulwarks of established church, hereditary aristocracy, and monarchy? Perhaps it could not be done at all. But if it could be done, it would be because the best and most able men should be engaged in political leadership and that they should set examples which lesser men would follow in the course of time. The outstanding men had come to the fore and taken their places, as we have seen; it now remained to be seen if they could set a safe course.

Erecting a Financial Structure

It is all too easy to find fault with Hamilton and his programs. Much of what his political foes said against him and his programs was true. He did entertain great doubts about the political wisdom of the general populace. He was a nationalist who cared little enough about the integrity of the states, if he thought they had any. He was a mercantilist, or at least he was under the sway of the fag ends of mercantilist ideas. He was ambitions, aggressive, a broad constructionist, and did intrude in foreign affairs. Those of us who differ with him in the main thrust of his economic policies may criticize him for his protectionist and pro-manufacturing posture.

Yet, when all has been said against him and his programs, it should be granted that what he accomplished offsets much of it. He emerges from an examination of his policies as one who, if he did not always do right, generally did well. There are few enough men with large vision, probably fewer who can conceive the programs necessary to realize it, and the number is quite small who will labor tenaciously to get them in operation. It is easy enough, as I say, to criticize his financial program; but which of the critics could establish the financial foundations of a nation?

Hamilton conceived a financial program which he hoped would provide the sinews of a nation. His task would have been hopeless enough if he had aimed only to get revenue to run the government. Americans were loath to pay taxes of any kind, and politicians had shown themselves all too willing to adopt expedients which would enable them to operate for a time without the onerous necessity of taxes. But Hamilton wanted much more than a revenue. He wanted to establish the credit of the United States, when bankruptcy was the obvious outlet. And, he wanted to do so in such a way that would tie men of wealth and position to the government, get the people to look toward the United States government as the government, and make it clear that the general government would take care of national concerns.

Hamilton’s program was presented in a series of reports to Congress in 1790-91, and much of it as was enacted, which was most of it, was enacted during the same years. The main acts dealt with the acceptance and funding of the national debt, the assumption of state debts, the establishment of a Bank of the United States, and the establishment of an excise tax on whisky.

Establishing the Credit of the United States

Hamilton’s first report, which was on the public credit, was presented January 14, 1790. In it, he argued vigorously that the domestic debt as well as the foreign debt should be assumed at the full value originally contracted. There were many of the opinion that the domestic debt should be discounted. Most of the obligations were held by speculators now, it was argued, men who had bought them at a fraction of their face value and who stood to be greatly enriched if they were paid off at full value. Hamilton approached the subject from the angle of establishing the credit of the government. “By what means is it to be effected?” he asked. “The ready answer to which question is, by good faith; by a punctual performance of contracts. States, like individuals, who observe their engagements are respected and trusted, while the reverse is the fate of those who pursue an opposite conduct.”

While the observance of that good faith, which is the basis of public credit, is recommended by the strongest inducements of political expediency, it is enforced by considerations of still greater authority. There are arguments for it which rest on the immutable principles of moral obligation. And in proportion as the mind is disposed to contemplate, in the order of Providence, an intimate connection between public virtue and public happiness, will be its repugnancy to a violation of those principles.

This reflection derives additional strength from the nature of the debt of the United States. It was the price of liberty. The faith of America has been repeatedly pledged for it, and with solemnities that give peculiar force to the obligation…1

Hamilton’s proposal to establish a fund for paying the national debt at face value was linked in the same bill with a plan for the assumption of state debts contracted during the War for Independence. Assumption of state debts was much more controversial than the other matter. In fact, the idea bordered on the preposterous, in view of past history. At least some of the states had made headway in paying their debts; whereas, as yet, no United States government had demonstrated either the willingness or ability to service any debt. Moreover, there were differences in size of debt from state to state. However, adjustments were made for this, Hamilton did some horse-trading with the Virginia delegation, and both funding and assumption passed. The United States issued new securities to replace the old, paid interest on them, and set aside funds to take care of them. No immediate progress was made, however, in actually paying off the debt. Even so, the credit of the United States began to show improvement.

A United States Bank

Hamilton’s next major proposal was for a United States bank. He proposed that it should be chartered as a corporation by the Federal government, that the government should subscribe to 20 per cent of the stock, and that the remainder should come from private investors. Federal funds were to be deposited in it, and the bank was to issue paper money which would become the main currency of the United States. Jefferson argued that there was no authority in the Constitution for chartering such a corporation, but Hamilton carried the field, and Washington signed the bank bill into law February 25, 1791. Stock in the bank sold within hours after it went on the market.

Congress passed an excise tax on whisky in March 1791. This was the first tax levied by the United States government to be borne directly by American producers. It was much resented, particularly by western Pennsylvania farmers, who were accustomed to shipping their corn east in a liquid state. A rebellion broke out there in 1794, and it was put down by troops. Some Americans, at least, had felt the power of the new government directly.

Protectionism

Hamilton’s most ambitious and extensive program was contained in his Report on Manufactures which he presented in December of 1791. In it, he clothed the argument for government intervention in its most attractive apparel. He held forth a vision of America drawn together in fraternal bonds through the interdependence of manufacturers, shippers, and farmers. North and South, East and West, would be drawn together in a great economic cornucopia. Few could gainsay him that there were advantages to the division of labor, to an American independence of foreign countries, or even that there was good reason to draw immigrants to American shores along with foreign capital. All of this was attractive background to an argument for government aid to manufacturing. “Such aid must consist of protective duties against competitive foreign manufactures, bounties for the establishment of new industries, premiums for excellence and quality of manufactured articles, exemptions of essential raw materials from abroad from import duties…, the encouragement of inventions, improvement in machinery and processes by substantial grants…, and, finally, the construction of roads and canals for a… flow of physical goods and materials.”2

Too Much for Congress

With such a program, however, Hamilton had bit off more than Congress could swallow. Even supposing the program to be desirable, which many doubted, where was the authority in the Constitution to spend the tax moneys taken from the generality of the people for such purposes? Hamilton argued that the power was there in the general welfare clause. If this were so, Madison declared, then “every thing from the highest object of state legislation, down to the most minute object of police would be thrown under the power of Congress.”3 Thus, the main elements of Hamilton’s grandest scheme were turned back.

Even so, the broad lines of Hamilton’s achievements have been enthusiastically summarized in this way by a present-day historian:

By 1792, largely as a result of the leadership assumed by Alexander Hamilton, the heavy war debt dating from the struggle for independence had been put in the course of extinguishment, the price of government securities had been stabilized close to their face value…, a Federal revenue system had been brought into being, a system of debt management had been created, the power of the Federal government had been decisively asserted…, and the credit of the Federal government had been solidly established.4

Independence in a Hostile World

The United States were dependent upon European countries in the gaining of separation from England. The French alliance supplied both the naval power and a considerable army for the winning of the most impressive victory against the British on the American continent. That other nations were at war with or hostile to Britain made the American victory more certain. The favorable treaty gained by the United States at Paris in 1783 was made possible by the cross currents of animosities and jealousies among European powers. The United States staved off bankruptcy time and again in the 1780′s with loans acquired in European countries.

One of the greatest tasks of the United States under the Constitution was to shake off the dependence upon Europe. Undoubtedly, European powers still viewed the United States as a potential pawn in their contests with one another. The French were inclined to the view that they had a special claim on both the good will of and special favors from the United States. The British, on the other hand, could not view with equanimity anything short of such close relations with the United States as that the old relationship of dependence would be in some measure restored. The Spanish were not resigned to the dominance by the United States of the eastern portion of the continent. Nor would the United States be independent of Europe until the British hold on the Great Lakes and the Spanish control of the Mississippi were broken.

The most alluring way out of the difficulties these things posed was for the United States to attach itself to some European power which would become their protector and champion their causes against all others. That is what, to a limited extent, had been done with France. But the French had been of very little help against Britain and Spain after the war. Moreover, the changes in France after 1792, and the new European war which broke out, made the French connection an almost certain liability and would have linked the United States to governments which not only changed frequently but also were tyrannical and oppressive. The course which Presidents Washington, Adams, and Jefferson chose successively was independence from all these powers. But it was easier to choose such a course than to steer it.

European Conflicts with American Repercussions

The first crisis of the Washington Administration came when the French declared war on England, Spain, and Holland. The Franco-American Alliance committed the United States to the defense of the French West Indies and not to render aid to France’s enemies. Washington issued a Neutrality Proclamation shortly after the war broke out, stating that the United States was at peace with both Great Britain and France, and warning Americans not to commit hostile acts against either side. Jefferson had raised some doubt as to Washington’s authority to do this, but he did not push the point. A few days before Washington made his proclamation, a new Minister from France had arrived in the United States, a man known as Citizen Genet. Genet had no sooner arrived than he began to commission privateers from American ports to prey on British shipping. Washington warned him against this, but he persisted in similar activities, and the President eventually demanded his recall.

In 1794 Congress passed a Neutrality Act, which confirmed Washington’s earlier Proclamation, in effect, and put teeth into it. Already, relations with France had deteriorated considerably. When the United States came to terms with Britain in a treaty, they grew worse. The accord with Britain is known as Jay’s Treaty; it was signed by the diplomats in November of 1794 and ratified by the Senate June 24, 1795. By this treaty, Britain agreed to and did shortly withdraw their troops from the posts on the Great Lakes. It also opened up the East and West Indies to trade with the United States. A joint commission was appointed to deal with the debt claims, particularly of British merchants, which went back to colonial days, and a final settlement was made in 1802. British trade with the United States was placed on a most favored nation basis, which meant that any trade concession granted to any other nation would also be granted to British traders. This treaty settled most of the outstanding difficulties between the two countries; but in view of increasing difficulties with France, it was interpreted by that country as a slap in the face.

On the heels of Jay’s Treaty came Pinckney’s Treaty with Spain in 1795. By its terms, Spain acknowledged the boundaries of the United States as being those established by the Treaty of Paris (1783), agreed to the free navigation of the Mississippi, and accorded the right of deposit at New Orleans to Americans for a period of 3 years. By these two treaties the United States made great headway toward the practical attainment of an independence of Europe which had been sought in the Treaty of Paris.

However, the French government now posed increasing problems for the United States. It refused to receive Charles C. Pinckney as U.S. Minister to France when he arrived there in late 1796. Nor was the commission made up of Pinckney, John Marshall, and Elbridge Gerry, appointed by President Adams to negotiate a settlement, treated any better. The French government did not formally receive them, and agents of the foreign minister, Talleyrand —agents designated in dispatches as X, Y, and Z — suggested that the government would be happy to treat with them if they would pay a bribe and give France a loan. This XYZ affair stirred up much resentment in America when it was made public in 1798. Many expected that France would go to war with the United States at any time. Adams initiated such measures in preparation for the conflict as he thought prudent. And, an undeclared naval war between the two countries did take place, 1798-1800. Meanwhile, Adams continued efforts to reach an accord with France. This was achieved in what is known in diplomatic history as the Convention of 1800. France agreed to release the United States from the treaties made in 1778, and diplomatic relations between the two countries were resumed.

The Monroe Doctrine

It would take us too far a field to go into any detail about the foreign relations of the next twenty-five years under Jeffersonian Republicans. They were, however, pointed toward the following of an independent course in the world. This was made extremely difficult by the Napoleonic wars which embroiled Europe for the first fifteen years of the new century. Both France and England continued pressure on the United States. The pressure of France however, was greatly reduced by the Louisiana Purchase. But the pressure of Britain led eventually to the War of 1812, which some historians have called the Second War for Independence. Perhaps the culminating symbolic move in the establishment of American Independence was the Monroe Doctrine set forth in 1823. By it, President Monroe announced that the Americas were not subject to further colonization and by so saying attempted to place the Americas off limits to the European quest for empire and to free this continent from the struggles of Europe.

During these early years of trial a set of principles for American conduct with other nations had emerged from pronouncements and practice. The following is a summary of them, stated as imperatives:

The United States should:

1. Establish and maintain a position of independence with regard to other countries.

2. Avoid political connection, involvement, or intervention in the affairs of other countries.

3. Make no permanent or entangling alliances.

4. Treat all nations impartially, neither granting nor accepting special privileges from any.

5. Promote commerce with all peoples and countries.

6. Cooperate with other countries to develop civilized rules of intercourse.

7. Act always in accordance with the “laws of nations.”

8. Remedy all just claims of injury to other nations, and require just treatment from other nations, standing ready, if necessary, to punish offenders.

9. Maintain a defensive force of sufficient magnitude to deter aggressors.5

The Rise of Political Parties

One of the unforeseen and, by some, unwished for developments in the early years of the Republic was the rise of political parties. No reference to any role for them was made in the Constitution. There had not been, as yet, any political parties in America; divisions were occasional or tied to factional leadership of some man, as a rule. To formalize such differences by organizing them into political parties would have appeared the height of folly to many of the Founders. In fact, there was good reason to suppose that if the Republic did not founder on the shoals of foreign entanglements it would split under the stress of partisan or factional contests, as republics had tended to do in times past.

George Washington, in his Farewell Address, warned the country “in the most solemn manner against the baneful effects of the spirit of party” generally. He declared that:

It serves always to detract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms; kindles the animosity of one part against another; foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passion. Thus the policy and the will of one country are subjected to the policy and will of another.

Washington admitted that the spirit of party arose out of human nature itself and was unlikely to be entirely extinguished, but he exhorted his countrymen that the “effort ought to be by force of public opinion to mitigate and assuage it.”6

Washington had reason enough for his fears about the spirit of party. Even before he left office the lines of party were forming; his Cabinet had already experienced the strain; and the country at large was about to witness some of the most acrimonious disputes that have ever taken place. It should be noted, however, that as yet disputants did not ordinarily mount the stump to address the people directly about their differences. Attacks usually appeared in newspapers, and more likely than not if major figures were involved they wrote or had their cases presented under pseudonyms. Such practices did not, however, promote restraint or prevent breaks between individuals which were difficult to heal. They may well have had the contrary effect.

It is not difficult to see why parties and factions arise when men are free to hold and practice different views. Men simply do not see all questions from the same angle, and they do have, as individuals and groups, different interests from one another. And, men ever and again are drawn to the conceit that what is to their advantage is also to the advantage of the generality of people. Those in power usually take a more generous view of the extent of their power than those who do not have such power. There is, undoubtedly, a general welfare, but men hardly discern it and focus upon it exclusively in the course of their careers.

Major Questions at Issue

There were choices of course in plenty to divide Americans and provide the opportunity for politicians to capitalize on them in the early years of the Republic. After all, the course of the nation was being set. Strong willed and determined men were placing their imprint upon it. Small wonder that those favoring and those opposing certain courses of action should form opposing factions which eventually assumed more permanent status. How should the Constitution be interpreted? Should it be broadly or strictly construed? Should the powers of the general government be greater, or those of the states preserved and enhanced? In foreign affairs, should the French Revolution be supported? Or should the United States link its fortunes to those of Britain? Or, if the United States was to be neutral, would this not benefit one side at war to the disadvantage of the other? More fundamentally, were there not choices to be made between order and liberty, between reason and experience, and between the individual and the community? If this latter formulation poses the distinctions too bluntly, it nevertheless indicates configurations of belief toward which men tended.

The two parties which emerged in the 1790′s were called Federalist and Republican. Alexander Hamilton and John Adams are usually associated with leadership of the Federalist Party, which indicates also the early division in that party, division which in the course of time sundered it. New England was the center of the strength of the Federalist Party, but it had devotees throughout the country. Thomas Jefferson and James Madison were the leaders of the Republican Party, and the bulk of its strength was from Pennsylvania southward. The Republican Party was born in opposition, which probably made it considerably more united than the Federalist, which was born in power and suffered in the beginning from the stresses of power. It is much easier to be united in opposition and adversity than in possession of power and prosperity.

Federalists vs. Republicans

Though it must be understood that leaders of parties are not in perfect agreement, that men do not readily acknowledge either-or positions, that the following should not be taken as absolutes, Federalists and Republicans did tend to divide along the following lines. Federalists were more inclined to emphasize the depravity of man, particularly that of the generality of men, than were Republicans, though Madison readily declared man to be a frail vessel, and Jefferson would not deny it. Federalists emphasized the importance of experience, tradition, awe, and veneration, while Republicans were more hopeful about the benefits of reason. Federalists inclined to be nationalists (when they were in power), and the Republicans to favoring state’s rights. Federalists tended toward mercantilism in economic policy, while Republicans were much more favorably disposed toward laissez-faire. Federalists favored industrializing, while Republicans wanted an agricultural economy with an emphasis on foreign trade. Republicans were much more favorably disposed toward France than were the British-leaning Federalists.

It is not to the purpose of this work to devote much attention to these conflicts. What is important is that they were there and that political parties took shape around them as issues. Nor is it so important that when the Republicans were in power for awhile they began to abandon the policies they had championed and to advance some of those they had opposed. Being in power is a severe test of anyone’s beliefs, and there are usually excuses enough in changing circumstances for altering them. What is important is that though political parties are extra-constitutional they came to play an important role in buttressing and maintaining the Constitution.

One of the checks and balances on government not conceived and contrived in the Constitutional Convention was that provided by political parties. Perhaps the greatest check of all on those in power is provided by the opposition party and by its members who hold office, not the power of determining policies. If the party in power takes a generous view of the powers available to its members, the one out of power uses the limited powers doctrine as one of its reasons for opposing the extension of power. The Jeffersonians out of power opposed the Sedition Act as unConstitutional. Federalists out of power opposed the Jeffersonian Embargo and defended state’s rights. So it has frequently been throughout American history. The strict construction doctrine would sometimes have few advocates without a minority party.

The Jeffersonians brought particularly important counter-balances to the Federalist emphasis. It probably was most useful that the early officials of the United States should have emphasized dignity, respect for law, pomp, and even ceremony. But Jefferson was much more in keeping with the genius of America in his emphasis upon republican simplicity and informality. Though the mercantile ideas of Hamilton may have served some temporary purpose, the Jeffersonians brought to the fore newer, fresher, and freer economic ideas, and there was no doubt that Jefferson believed in paying off the debt. Albert Gallatin, as Jefferson’s Secretary of the Treasury, was a remarkable counterpart to Hamilton. He was equally brilliant, and his thought tended toward the freeing of enterprise. It may be of some use to quote him in a critique of the tariff system, a critique penned long after he had left the Treasury:

Let it be recollected, that the system is in itself an infraction of an essential part of the liberty of the citizen. The necessity must be urgent and palpable, which authorizes any government to interfere in the private pursuits of individuals; to forbid them to do that which in itself is not criminal, and which every one would most certainly do, if not forbidden. Every individual, in every community, without exception, will purchase whatever he may want on the cheapest terms within his reach. The most enthusiastic restrictionist, the manufacturer, most clamorous for special protection, will, each individually, pursue the same course, and prefer any foreign commodity, or material, to that of domestic origin, if the first is cheaper, and the law does not forbid him. All men ever have acted, and continue, under any system, to act on the same principle…. The advocates of the tariff system affirm, that what is true of all men, individually, is untrue, when applied to them collectively. We cannot consider the adherence of enlightened nations to regulations of that description, but as the last relic of that system of general restrictions and monopolies, which had its origin in barbarous times….7

Perhaps the greatest precedent set in the early years of the Republic grew out of party divisions. That precedent was the peaceful change from one set of rulers to another. The congressional elections are so staggered that at no time would there be an entirely new Congress. Even more is it unlikely that the personnel of the Federal courts would all change at any time. The one crucial branch, then, for the above and other reasons, for a change from one group of rulers to another is the executive branch. There was no over-all change in that branch until 1801. Though Washington stepped down in 1797, there was a clear continuity between his administration and that of Adams, for the members of the Cabinet were continued. Not so, when Jefferson came into office as President. Party divisions and loyalties had become so strong and determining, the feelings between Adams and Jefferson were so heated, that there could be no question of Jefferson’s continuing with Adams’ Cabinet. Yet, for all the strong feelings, the change from Adams to Jefferson was made peacefully. And so it has been ever since: Americans have become so accustomed to the peaceful change of rulers (or governers, if one’s sensibilities are stirred by the other term) as not to remark it. Yet it is always a remarkable thing in history when a man with such powers yields them up to someone else without war. In a sense, our political contests are a means of shifting the conflict from the field of battle to the arena of ideas and words. The contest is usually sharp, but the loser retires gracefully from the field.

The Two-Party System

Were Washington’s fears of parties groundless, then? Surely, they were not groundless; he could have called up much history in support of them. Nor did he expect that America would be without such divisions; he hoped only for a mitigation of the harshness of them. And, it can be reported that this occurred. Two major developments have made party contests less than seriously divisive, as a rule.

One is that the United States has usually had only two major parties. A multiplicity of parties does tend to divide the country into irreconcilable factions. Whereas, when there are only two major parties, they tend both to contain many people of similar views in each of them and to try to attract any considerable faction not yet within the party. But why, it is asked, has the United States had only two major parties? Some have supposed that the predilection to do this is peculiar to Anglo-Saxon peoples. But such an explanation is of most doubtful validity. The much more likely explanation is the winner-take-all practices, some in the Constitution, some added by the states. In elections to Congress, there is, as a rule, only one winner in a district and in a state. (On rare occasions, there occurs an election of two Senators from the same state in the same election. But in such a case, candidates run separately for the positions, since the term of one of the men elected would not be for the full six years.) The office of President is clearly a winner-take-all affair, and states have made this true for electors along party lines as well by giving the whole vote for electors to the party which attains a plurality. The effect of this practice (as contrasted with proportional representation) is that only major parties can sustain any considerable following over the years by patronage. And only two parties can reasonably expect to elect many to office. They do so, as a rule, only by appealing to a very broad electorate.

The other offset in the American system to the baneful effects of party is a little more complicated. Washington noted that in “governments of a monarchical cast” it is plausible to “look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged.”8 We can read between the lines of this a little and almost certainly infer his meaning. A land which has an hereditary monarch has continuity and stability. Governments change, cabinet officers come and go, a new election brings new members of the legislature, but the monarch remains. A republic, however, does not have this visible symbol of continuity and stability. When it is divided by parties, there is no man beyond these contesting groups to provide it. Yet the United States has had a sign and symbol — a veritable rock — to give it continuity and stability. It is, of course, the Constitution. Washington may be pardoned for not foreseeing that it would serve in that office.

The Constitution as Higher Law

The most likely prognosis for the Constitution in 1789 was that in very short order it would become a dead letter. After all, it was only a “piece of paper,” and power resided in the hands of men once the government was organized. The ways by which it might have become a dead letter are so numerous that only a few of them need be suggested. Once men had power in their hands, they might have gone their own way, using the Constitution only as a launching pad, as it were, to come to power, then ignoring its restrictions. The states, on the other hand, might have made of it a nullity by so circumscribing the actual exercise of powers that the general government would be of no account. The President might have become a dictator. The Constitution might have remained; all might have given it their vocal allegiance; but none allowing it any effect on their actions.

We know, of course, that these things did not occur. Instead, the Constitution became, in fact, a Higher Law in the United States, a Constitution above constitutions, and a document to which men truly repaired for the resolution of vexed issues. That this occurred can be attributed to tradition, circumstances, and the efforts of leading men.

Americans had a tradition of higher law, and it needs here only to be briefly recalled. They were a people of the Book, to whom the Bible was a higher law. They accepted, also, the belief that natural law was higher law. In the British and colonial traditions, they had received the belief that certain basic documents constitute a higher law, i.e., charters, covenants, declarations, and acts of conventions. This is to say that Americans were predisposed to the acceptance of a higher law, and they were especially sensitized to written laws.

The circumstances in which the Constitution was drawn and ratified lent weight to the giving of a unique place to it. It had been drawn in convention by some of the most prominent men in America.

This had been done behind closed doors and by way of debates to which the public at large was not privy. It had been ratified by special conventions within the states by men chosen for the particular task. And, most of the prominent men in America came forth to serve in the government which it authorized.

Course Set by Washington

George Washington gave the full weight of his prestige to the Constitution. He wanted only men in his government who were devoted to it, and in his appointments attempted to make this the first requirement. His public pronouncements were such as to add weight and authority to the document. In his First Inaugural Address, he referred “to the great constitutional charter under which you are assembled, and which, in defining your powers, designates the objects to which your attention is to be given.”9 He said in his Farewell Address that those entrusted with governmental powers should

confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed.¹º

Other men who were or would be Presidents uttered similar messages. James Madison said in 1792:

Liberty and order will never be perfectly safe, until a trespass on the constitutional provisions for either, shall be felt with the same keenness that resents an invasion of the dearest rights, until every citizen shall be an Argus to espy, and Aegeon to avenge, the unhallowed deed.

Thomas Jefferson declared in 1793:

Our peculiar security is in the possession of a written Constitution. Let us not make a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no other than the definitions of the powers which that instrument gives.

But it was John Marshall, as Chief Justice of the Supreme Court for 35 years, who raised the Constitution to the pinnacle as the Higher Law in the United States. Among the large number of decisions of the court written by Marshall, a goodly number were referred to the Constitution for resolution. Indeed, Marshall appears to have relished those instances when he could make of the question before the court a constitutional question. This judgment is based on the fact that some of them could have been decided readily on other than constitutional grounds. Marshall made the Constitution very much a live letter, by making it available as law on which decisions could rest, by bringing Congress to heel, by bringing the states to heel, and by using it both as authority and restraint. Marshall tried to make it clear always that those brought to heel were not brought to that posture by the court but by the Constitution. In Osburn v. U.S. Bank delivered in 1824, he said: “Judicial power, as contra-distinguished from the power of the law, has no existence. Courts are the mere instruments of the law, and can will nothing.”¹¹ He viewed the Constitution as “intended to endure for ages to come,” and made decisions designed to ensure that it would.

In Marbury v. Madison, delivered in 1803, Marshall declared that the Constitution limits the Congress. “The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” When the legislature acts contrary to its constitutional authority, its acts are not to be put in force. For, he said, “the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.¹²

Upholding the Constitution

In Fletcher v. Peck (1810), Marshall spoke for a unanimous court when he held that the states were restrained by the Constitution. He said that Georgia “is a part of a large empire; she is a member of the American union; and that union has a constitution, the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.”¹³

Marshall could buttress his decisions with the broadest principles, but he could also construe the Constitution with great attention to distinctions. For example, the case of Craig et. al., v. The State of Missouri involved the attempt to issue paper money by the state. The state contended that since this money was not made legal tender, it was permitted. Not so, said Marshall:

The Constitution itself furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit, not to bills of a particular description… The Constitution… considers the emission of bills of credit and the enactment of tender laws as distinct operations, independent of each other, which may be separately performed. Both are forbidden. To sustain the one because it is not also the other; to say that bills of credit may be emitted if they be not made a tender in payment of debts, is in effect, to expunge that distinct independent prohibition, and to read the clause as if it had been entirely omitted. We are not at liberty to do this….14

Marshall’s Great Contribution

It has been commonly said of Marshall that in his decisions he construed the Constitution in a way to increase the power of the general government, that he was a nationalist, and that he built the power of the United States government at the expense of the states. This view contains some truth, obviously, but it is not the most important thing to say about him. It can also be truly said that Marshall by the tone and character of his decisions gave the central role in expounding the Constitution to the Supreme Court, but that is not the most important thing to say about him, for that position can be and has been abused. What looms above all the other things he did as an enduring contribution is that he looked to and raised the Constitution to the position of Higher Law — a law to which courts, congresses, presidents, and states must yield. Above all, he professed to be bound by the Constitution. “This department,” he said, “can listen only to the mandates of law, and can thread only that path which is marked out by duty.”15 The Supreme Court arose to high regard not because people believed that the Constitution was what the court said it was but because they believed that the court spoke not the will of its members but submitted their wills to the Constitution. John Marshall made such a view credible.

The course of the nation was set in the early years of the Republic. The credit was established, and men came to believe that the obligations of the United States would be met. The United States adopted and followed an independent course in the world. The government was further checked and balanced by political parties. And the Constitution achieved a special place as a Higher Law binding all Americans.

Next: The Beacon of Liberty

 

—FOOTNOTES—

¹ Richard B. Morris, Alexander Hamilton and the Founding of the Nation (New York: Dial Press, 1957), pp. 290-91.

2 Nathan Schachner, The Founding Fathers (New York: Capricorn Books, 1954), p. 187.

3 John C. Miller, The Federalist Era (New York: Harper and Row, 1960), p. 66.

4 Ibid., pp. 68-69.

5 Clarence B. Carson, The American Tradition (Irvington: Foundation for Economic Education, 1964), p. 212.

6 Henry S. Commager, Documents of American History (New York: AppletonCentury-Crofts, 1962, 7th ed.), p. 172.

7 E. James Ferguson, ed., Selected Writings of Albert Gallatin (Indianapolis: Bobbs-Merrill, 1967), pp. 438-39.

8 Commager, op. cit., p. 172.

9 Ibid., p. 152.

¹º Ibid., pp. 172-73.

11 Quoted in Edward S. Corwin, The Constitution and What It Means Today (New York: Athenaeum, 1963), p. x.


  • Clarence Carson (1926-2003) was a historian who taught at Eaton College, Grove City College, and Hillsdale College. His primary publication venue was the Foundation for Economic Education. Among his many works is the six-volume A Basic History of the United States.