Commentaries on Commentaries
We eschew use of commentaries or commentaries on commentaries for several reasons. First, there is no real substitute for a deep reading of the cases, their concurrences, and their dissents. Second, the book examines hundreds of cases. A sizable proportion of these have been the object of commentaries, etc. Reviewing these commentaries would make the book impossibly long. Even so, someone will always expect additional commentaries or commentaries on commentaries. This becomes a dark hole from which there is no escape. Third, commentaries on cases taken out of historical context are often misleading or irrelevant. Much the same applies to personal papers, reflections, and books written by the justices. Most of these contain myopic analyses that do not fit well with an historical development of sovereignty-based themes. The source material for this book must focus on the cases themselves. Sometimes a thematic issue is a side matter in a case, but subsequently it becomes a precedent. The book traces themes across cases over time. Despite Rehnquist’s rejection of most dicta but his own, except that which he finds helpful, the dicta in many cases foreshadow the development of themes.
The book develops many themes found in the Bill of Rights and Civil War Amendments. Many remain undeveloped. Two require special note: economic substantive due process and a follow-up of the race theme developed in Dred Scott. These themes appear in many available resources. This book does explore substantive non-economic due process and the equal protection of women. Other focused themes are privileges and immunities, due process in several arenas, contracts, free speech, sex, and guns. The chronological examination opens a vantage point on these topics. All focus on the triangle of sovereignty, particularly individual sovereignty.
Chapter 1
The Two Constitutions
The early American Constitution is a hybrid of two significant parts: The Constitution of 1789 and the Bill of Rights of 1791. James Madison was the most important contributor to both documents. The authorship may suggest a consistency in underlying philosophy, but that is not the case. Madison opposed a Bill of Rights for several reasons. He conceived the separation of powers as the surest way to tame power. Madison wanted a strong government capable of facing any exigency but able to withstand the arbitrary caprice of leadership. The Constitution left police powers to the states, but it transferred most others from the formerly sovereign states to the new federal sovereignty. The central government had significant power, but that power was difficult to exercise.
Separation of Powers
Madison revealed his image of leaders and followers in the Federalist Papers. Passion at one point or another motivates all people, some more so than others. No person consistently uses reason. No person is above corruption. This view posed two fundamental political questions. How do we separate the public interest from a leader’s private interest or irrational decision-making? How do we keep factions from forcing their narrow interests or passions of the moment into public decision-making? Changing the nature of people, whether leader or follower, was not an option. At the leadership level, the separation of powers pitted power against power, giving each branch of government some control or oversight of the other. Madison offered checks and balances as the core check on leadership gone astray.
The problem with factions was more difficult. Shays’s Rebellion was just one of many contemporary illustrations of the dangers of majority rule. The people would be semi-sovereign under the new Constitution. A republic, or representative system, was part of the solution. Madison hoped that constituencies would choose among local leaders and prominent figures for their representatives in the House of Representatives. If a representative system chose quality leaders it would make it more likely, although certainly imperfect, that the representatives would use reason in their deliberations rather than private interest or passion of the moment. Of the various compartments of government, the executive, the judiciary, and the senate, only the House of Representatives had any direct link to the people. The Constitution of 1789 provided only for the direct election of representatives, not judges nor senators nor presidents.
Size of Constituency
The second fix to the faction problem was a work of genius. Many people understood that the small, homogeneous community championed by a Jefferson or Rousseau or Montesquieu was fundamentally inconsistent with the nation-state. A democratic nation-state would either be a contradiction in terms or the uglier forms of majority tyranny. The anti-Federalists insisted that the solution to this dilemma was a continuation of the sovereign states with limited powers given to the central government. The argument that the state governments were closer to the people and thus democratic was itself wishful thinking. Most of the states were too large and too diverse to meet the image of Jefferson or Rousseau or Montesquieu. Whether we can find a passage in Montesquieu supporting political institutions more distant from the people, as Hamilton did in the Federalist Papers, is simply spurious.
Madison turned the blessings of small constituencies into their bane. Small constituencies guaranteed power to factions of emotion or private interest. Large constituencies, on the other hand, allowed local factions and interests to drown out or cancel one another. The result works whether the representative thinks of self as trustee or delegate. A trustee for the people preserves the general interest of the people using self-judgment, albeit with occasional slippage, to identify and pursue the general interest. The delegate listens to the common signal from a divided constituency. Competing factions neutralize one another in the large, heterogeneous constituency. The delegate votes a public opinion refined and clarified into the public interest.
The trustee is cream of the crop within a large constituency, whose size alone multiplies the number of talented people. The delegate may seem overly sensitive to the direction of the wind but listening to the common signal underlying the cacophony at home makes the distinction between a politician and a political leader. Madison salvaged the democratic nation-state. The hamlet no longer owned democracy. The Madisonian formulation set no limits to the expansiveness of new nation-states while still preserving a meaningful role for ordinary people. The two revolutions, American and French respectively, juxtaposed the democratic nation-state and belligerent nationalism. Fascism and Nazism later added other nationalist recipes, but the democratic nation-states provided some global order amidst the ruins of another inhumanity to man.
Enumerating Rights
Madison believed that the system of government engineered in the Constitution would protect individual rights and thus not need an enumerated Bill of Rights. He correctly reasoned that, if enumerated, the courts would only recognize these as rights and protect no other rights and privileges. He tried to check this tendency with the 9th Amendment, but the court’s subsequent decision-making confirmed Madison’s original concern. Madison identified few rights in the Constitution of 1787: habeas corpus, no post facto laws, no bills of attainder, trial by jury in criminal cases, and keeping the trial in the jurisdiction where the alleged crime occurred. The Constitution also included a “privileges and immunities clause” and a “full faith and credit clause” requiring each state to treat those from other states the same as it treats its own citizens and recognizing