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Wm. Reece Smith, Jr., on the Constitution, the courts, and the rule of law
As The Florida Bar marks its 75th year, the News continues revisiting moments in the profession’s history — and few carry more significance for lawyers than the 1987 bicentennial of the U.S. Constitution.
In the June 1988 issue of the Florida Bar Journal, past Bar President Wm. Reece Smith Jr. — for whom The Florida Bar’s Center for Professionalism is now named — reflected on the Constitution’s endurance, the evolving role of the courts, and the continuing responsibility of lawyers to safeguard the rule of law.
The issue also underscored why the bicentennial held special meaning for the profession. As Rhoda Smith Kibler of the U.S. Constitution Bicentennial Commission of Florida observed in an accompanying essay, the Constitution embodies the freedoms and liberties “so often taken for granted,” while reminding lawyers of their “privilege and duty” to protect those rights and remain vigilant in preserving them.
Published as the nation celebrated 200 years since the signing of the Constitution in Philadelphia, Smith explored how the framers created a document flexible enough to survive “the various crises of human affairs,” while warning that each generation must recommit itself to preserving liberty and democratic institutions.
The Constitution Bicentennial: Celebrating a Rising Sun
By Wm. Reece Smith, Jr.
In the late spring of 1787, when the delegates to the Constitutional Convention assembled in Philadelphia, they were well aware of the prodigious task they were undertaking. So prodigious it was, in fact, that Benjamin Franklin, on seeing the half-sun carved in the mahogany chair of presiding officer George Washington, wondered whether it would prove to be a rising, or a setting, sun. Just having marked the 200th anniversary of the rising of that sun, we continue to celebrate the Constitution of the United States — the fruit of that long summer of 1787.
Wm. Reece Smith, Jr.
The fact that this document has survived intact for two centuries as the governing charter of a nation as diverse as ours seems nothing short of miraculous. It was written to bind together and govern 13 different sovereign states in an essentially agrarian society of limited geographic scope. Yet it works just as well today for a nation of 50 states, territories and districts, in a complex, pluralistic urban society which spans more than an entire continent. The endurance of the Constitution is surely a testament to the foresight, ingenuity and intellect of those few men who signed it in Philadelphia. But it is also a monument to the genius of the generations of American people who came after them. The framers gave us the blueprint. But we, the people, have been continually building the structure.
In designing this blueprint, the framers of our Constitution certainly could not have envisioned our society of today. They did know, however, that society would change and that, if their document was to survive, it would have to accommodate those changes. James Madison, one of the primary authors of the Constitution, told the Constitutional Convention that “framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce.”1 Madison’s Constitution is a national charter which allows societal change without requiring alterations in the basic structure of government.
That structure is the result of considerable compromise and trial and error. Although we celebrated the bicentennial of our nation’s birth 12 years ago, in a very real sense our 200th birthday as a nation was the anniversary of the Constitution. The Declaration of Independence set us free from English rule, but the first charter for government, the Articles of Confederation, drafted in 1777, did little to forge a nation. The representatives from the sovereign states who drafted the Articles of Confederation had jealously guarded the powers and interests of the individual states and refused to assign any real power to the central government. Under the Articles, the country approached political, economic and societal collapse. The Constitutional Convention was called for the purpose of amending the Articles. The delegates wisely decided, however, to start over completely and write a new Constitution — one which would establish a representative central government strong enough to provide order and stability in the new nation.
But strong central government is not the only concern of the Constitution. Of equal force is the notion that there must be safeguards to hold the power of government in check. A great source of these safeguards is the elegant system of checks and balances among the branches of government. These checks and balances were the hallmark of the 1787 charter. Yet more was needed and so the Bill of Rights, which recognizes that people need protection even from a government of the people, was added in 1791.
Our Constitution, then, embodies two great principles. First, through a strong representative government, it establishes the means by which we enjoy security and order. Second, because the very device we have created to preserve our security can also be an instrument of oppression, it provides protection from the power of government. The Constitution promises us “domestic tranquility” and also “the blessing of liberty to ourselves and our posterity.”
Supreme Court Had Inauspicious Beginning
The document drafted in 1787 did not expressly provide for the means by which the great principles it embodied would be implemented. No one foresaw then the central role that the Supreme Court would play in the legal and social history of our nation. Considering the importance of that role today, it is ironic that the Supreme Court as an institution had a rather inauspicious beginning. During its first term in 1790, it had very little work to do and many lawyers who had been selected as justices declined to serve on the Court. Then, in 1800 when the government moved to Washington, the matter of providing the Supreme Court a place in which to work had been entirely overlooked. Congress agreed to house the Court in a small committee room in the basement of the Capitol building where it remained until the Civil War.
Despite its humble lodgings, the Court began early to articulate its special place in the new system of government. The roles of the three branches of our government were fairly clearly defined by the Constitution. The powers of the legislative, executive and judicial branches were carefully balanced by the framers so as never to give too much power to any one branch or person. Thus the executive can veto the legislature. In turn, the legislature can override the executive. The judiciary is appointed by the executive, but cannot be removed from office as political whims change. However, the ability of the judiciary to restrain the excesses of the other two branches was not clear from the text of the Constitution itself. As Alexander Hamilton noted, the executive branch held the sword while the legislature commanded the purse. The judiciary was left only with judgment. 2
In 1803, that judgment asserted itself in the case of Marbury v. Madison, 5 U.S. (1Cranch) 137 (1803), which was the first great test of the institutional checks and balances built into our government. In that case, the high Court began to carve its role as the ultimate arbiter of the interpretation of the Constitution. Led by Chief Justice John Marshall, the Supreme Court found in Marbury that a portion of the Judiciary Act of 1789 conflicted with provisions of the Constitution prescribing the jurisdiction of the Supreme Court. Marbury v. Madison introduced the principle of judicial review and established the Court’s power to pass upon the constitutionality of acts of the other two branches of government. Later, other cases established the Court’s power to hold state statutes unconstitutional and to review the decisions of state courts to ensure that they conformed with the provisions of the federal Constitution.
From its earliest days, the Supreme Court applied judicial review to strengthen the national government established by the Constitution. Two decisions in particular stand at the fountainhead. In 1819, in McCulloch v. Maryland, 17 U.S. (4Wheat.) 3I6 (18I9), the Court broadened the powers of Congress considerably. The Congress had enacted a law which established a national bank, an act which did not fall under any of the powers specifically granted to the federal government in the Constitution. The Court determined, however, that Congress could properly establish a federal bank because it was “necessary and proper” to the legislature’s enumerated powers. This analysis became the “doctrine of implied powers,” and the Court’s practical interpretation of the “necessary and proper” clause became the source of a broad range of unenumerated congressional powers.
In 1824, the Court again expanded the powers of Congress in a sweeping interpretation of the general language of the Constitution. Several individual states had passed laws which required conflicting licenses for vessels traveling the waterways between those states. The Supreme Court decided in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824), that such licensing laws fell within the category of interstate commerce and, therefore, within the congressional powers of the commerce clause. Because the federal legislature had already taken action on that subject, the supremacy clause decreed that the federal laws were superior to the state laws, and Congress had the supreme right to legislate in that area.
Commerce Clause Broadened Congressional Powers
In the early 20th century, the Court broadened congressional powers under the commerce clause even further when it created the so-called “affectation doctrine.” This doctrine allows Congress to regulate any activity which affects interstate commerce, even if the activity takes place entirely within one state. Thus, within the broad language of the Constitution, the Court found the basis for the practical determination that Congress must be able to regulate any aspect of trade which affects more than one state or logically requires a uniform regulation throughout the several states. Today, the commerce clause provides legitimacy for a broad range of federal legislation from securities regulation to the civil rights laws.
The Supreme Court has also played a critical role in the development and expansion of individual rights in our society, although most of this development occurred much later in the history of the Constitution. It is important to note that the process of amendment has been of great import in the expansion of individual liberties. In addition to the first 10 amendments which gave us our Bill of Rights, several later amendments stand as great achievements of a people aspiring to an ideal of equality under law and protection of individual rights. In particular the 13th amendment abolishing slavery, the 14th, prohibiting the states from depriving individuals of due process and equal protection, the 15th, giving former slaves the right to vote, and the 19th, enfranchising women, are milestones in our constitutional history.
Through decisions interpreting these and other amendments, judicial review by the Supreme Court has helped foster a society which grants its members individual freedoms unparalleled in the world today. Notable examples are Weeks v. United States, 232 U.S. 383 (1914), which announced the “exclusionary rule,” prohibiting the use of improperly obtained evidence in federal criminal trials; Gitlow v. New York, 268 U.S. 6S2 (1925), the first case imposing a right guaranteed by the Bill of Rights on the states through the 14th amendment; and Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), declaring segregation of the races in the public schools to be a violation of the Constitution.
Principles Stand the Test of Time
It is perhaps mostly because of its role in the expansion of civil liberties that the Supreme Court has often been accused of making law rather than interpreting it. Some have suggested that the Court should be guided in its interpretations by the original meaning of constitutional provisions and the intentions of the framers when they wrote them. This view, however, necessarily requires interpreting the Constitution in terms of economic and social conditions of the 18th and 19th centuries — conditions which have not existed in our country for a long time.
The framers, in their hopes for an enduring document, appear to have themselves rejected the use of their intentions as a determinant of what the words would mean for future generations. They left relatively little “legislative history.” As Chief Justice Marshall observed early in the life of the Supreme Court, the Constitution “was intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.”3 The most significant evidence of the truth of this is the nature of much of the language used by the framers in the Constitution. They knew that highly specific language would be unduly restrictive and would rapidly become unworkable for future generations. Therefore, a vital key to the survival of our Constitution has been the broadly drawn, general language which leaves its application to specific situations open to interpretation by future Americans. It is the genius of our Constitution that it describes a carefully planned governmental structure and assignment of power couched in general language and broad principles which have stood the test of time.4
Therefore, while it is certainly important to emphasize that self-restraint by courts is necessary to avoid judicial usurpation of the legislative function, we must be ever mindful of Oliver Wendell Holmes, Jr.’s exhortation that “[W]hen we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.... The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”5
The endurance of the Constitution is as much the work of generations of Americans as it is of the framers. We, as a people, have made ourselves into the nation we are today. We have an ever evolving vision of ourselves. When the Constitution was drafted in 1787, only white males took part because such was the order of the day. Slavery was the law of the land. In 1987, a woman and the great grandson of a slave sit on the Court which most authoritatively interprets that document.
We have undergone great changes as a people in our history but our Constitution has endured. It has developed as we the people have, and not always peacefully. It took civil war to bring an end to slavery. It took violence in the streets to give a beginning to women’s suffrage and civil rights. But seldom has anyone seriously suggested that we scrap the document and start over. It abides with us.
Committed to Rule of Law
It abides because we are committed to the rule of law. Written constitutions now exist all over the world, thanks to our example. But all over the world, they are often ignored when it is politically expedient to do so. Ours lasts because we believe in it, and for the most part, honor it. We, the people, are ultimately the court of last resort. This point should never be forgotten. We continue to experience threats against the twin ideals of order through representative government and individual liberty. We hear witnesses in the Iran-Contra hearings suggest to us that the ends justify the means. We should remind them that such ideas threaten the delicate balance of power integral to our Constitution. We hear intelligent and thoughtful people argue that unpopular ideas or conduct must be dealt with even if individual rights are to be cast aside. We should remind them that the true test of an enlightened and humane society is how it treats those who are unpopular — a notion firmly embedded in our Constitution.
Finally, then, the question of whether this great document will survive another 200 years is up to us and to future generations. We must not smile smugly at Franklin’s question about the half-sun on Washington’s chair. We must not assume that it is so clearly a rising sun. You can go see for yourself, for that chair is still in Philadelphia, still where Washington left it. It is still emblazoned with only half a sun, tantalizing in its ambiguity. It is a symbol that we are continually making our Constitution — continually creating our nation. It is a symbol that we could still fail. Each generation must give to the next, as the framers gave to us, a rising, and not a setting, sun.
1 J. Madison, Debates of Tuesday, June 26, 1787, in 5 Debates of the Adoption of the Federal Constitution, 243 (J. Elliot Ed. 1845).
2 A. Hamilton, The Federalist No. 78.
3 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316,413 (1819).
4 See generally Marks, The Value of Constitutional Flexibility as Tempered by Judicial Self Restraint, 4 Det. C.L. Rev. 1073 (1986).
5 Missouri v. Holland, 252 U.S. 416, 433 (1920).
Wm. Reece Smith. Jr., is chairman of Carlton, Fields. Ward, Emmanuel, Smith & Cutler, P.A., which has offices in Tampa, Orlando, Pensacola and Tallahassee. He was president of The Florida Bar in 1972-73 and of the American Bar Association in 1980-81.
The author acknowledges the assistance of Professor Diane Clark. Stetson University College of Law, in preparation of this article.
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