April 07, 2009

Law School Confusion

In American high schools, colleges, and law schools, study of the US Constitution commonly begins with Chief Justice John Marshall’s opinions.  Marshall, the Supreme Court’s leader through the first third of the nineteenth century, won the battle over the nature of the federal compact by writing his untrue account of its writing and ratifiction into “constitutional law”:  the body of court decisions purportedly implementing the Constitution.

Among the untruths that Marshall saddled us with is the idea that it was not the sovereign states (meaning the sovereign peoples of the several states) that ratified the Constitution.  Rather, Marshall instructed in McCulloch v. Maryland, one American people did that.  Never mind that the Constitution itself says in Article VII that, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”  Marshall was infallible because he was supreme, not supreme because he was infallible.

If one American people created the Constitution, then the states, as mere parts of the whole, do not share responsibility for ensuring that the Federal Government remains within the constitutional bounds of its authority.  Thus, the only check on the power of the federal government is the federal government.  Only a president or federal court can check Congress, only Congress or a federal court can check the president, only a president or Congress can check a court.  The predictable outcome of the use of John Marshall’s opinions as the bedrock of constitutional instruction, as I explore in The Politically Incorrect Guide to the Constitution, has been to render our limited (that is, federal) government an unlimited (national) one.  The federal branches have agreed among themselves that virtually no authority was reserved to the states, and the Tenth Amendment is a dead letter.

What to do about the malign tendency of thus misstating the nature of the federal system?  Avoid such misstatements.

Another, related, common misstatement is to refer to the Constitution as a compact between the people and their government.  The Federal Government didn’t exist before the Constitution, so it couldn’t have entered into a compact with the people in the Constitution; a single American people wasn’t consulted in the ratification process, so it couldn’t have made a compact with federal officials.  The reason this confusing idea typically comes up is that an author (such as this one) is trying to avoid the once commonplace statement that the Constitution is a compact among the states.  Why would he fight that impulse?  Because it contradicts the account of America given in McCulloch v. Maryland—and thus gives the lie to most of “constitutional law.”  If the Constitution is a compact among the sovereign peoples of the separate states, the entire Jeffersonian argument concerning its interpretation naturally follows.  We mustn’t have that.  And to admit that McCulloch is wrong is to admit that “constitutional law” is neither.  We certainly mustn’t do that.

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