Penguin Guide to the United States Constitution: A Fully Annotated Declaration of Independence (18 page)

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental. . . .

If then the courts of justice are to be considered the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute to much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty. . . .

That inflexible and uniform adherence to the rights of the Constitution and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would in some way or other be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

There is yet a further and a weighty reason for the permanency of the judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprise us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed that they are far inferior to those which present themselves under the other aspects of the subject.

Upon the whole there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions which have established
good behaviour
as the tenure of their judicial offices in point of duration; and that so far from being blamable on this account, their plan would have been inexcusably defective if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

PUBLIUS

 

 

AMERICA’S CONSTITUTIONAL HISTORY did not begin in 1787 with those Founding Fathers who gathered in Philadelphia, in the building we now call Independence Hall. Indeed, it did not begin with America’s Declaration of Independence, adopted in that same building on July 4, 1776. Rather, it developed gradually over the nearly two hundred years of British rule preceding America’s bold leap toward independence.

America’s legal and constitutional traditions were influenced profoundly by English common law and by a deep reverence for what British subjects on both sides of the Atlantic called the “English constitution.” It did not seem to matter that the English constitution did not actually exist in written form—it was and is a jumble of parliamentary statute, legal precedent, and simple custom. Yet English colonizers and American colonists alike held it in uncommonly high regard.

It was in large measure the disagreements between Americans and Englishmen over how to interpret the English constitution that precipitated the conflict that would result in the world’s first popular revolution. The origins of the conflict lay in two things that have caused trouble since the beginning of time: money and taxes. In 1763 the British government, following a successful but costly war against France (as well as against some of France’s Indian allies in North America), found itself in possession of vast amounts of new territory west of the Appalachian Mountains and in Canada. That was the good news. The bad news was that the costs of the war, and the likely continuing costs of protecting the newly won gains, had left the king and his government deeply in debt, with the prospect of even greater debt on the horizon. Since much of that debt had been incurred in a war fought in America and since the spoils of that war—vast lands stretching west to the Mississippi River and north into Canada—would ultimately be sources of opportunity for future generations of American colonists, from the British point of view it seemed only reasonable that Americans pay their fair share of the costs.

Of course, the Americans saw things differently. They too had sacrificed. They had provided supplies and, more important, militiamen who had fought alongside the British regular army during that seven-year-long war. Indeed, a young colonel in the Virginia militia, George Washington, had acquired an international reputation for his bravery as commander of the Virginia regiment in the French and Indian War. If there was ever a time in which Americans were in a mood to be left alone to enjoy the relative peace of a world in which the threat of French intrigue and Indian warfare on their frontiers was significantly diminished, that time came at the conclusion of the war, signaled by the signing of the Treaty of Paris in February 1763. At precisely the moment when the British government was looking to America for an unprecedented contribution to the British treasury, for “the good of the empire,” Americans, weary of sacrifice and less dependent on British military might for the security of their frontiers than ever before, were in an entirely different frame of mind.

Beginning in 1764 and 1765 the British parliament began levying a new series of taxes on the colonies aimed at raising revenue to pay the expenses of administering their empire. The British government also announced its intention to tighten up enforcement of existing customs laws, which, because of lax enforcement over many decades, had been widely evaded by American merchants. In fact, the taxes imposed on the colonies—a tax on molasses imported from the West Indies into America and a stamp tax, similar to taxes already levied back in England—did not present a major economic burden to the Americans. But the means by which the taxes were imposed—enacted by a distant Parliament without the Americans’ consent—seemed to the Americans to violate a principle of the English constitution that they valued dearly: the principle of “no taxation without representation.”

The American protests against the taxes began in the colonies’ provincial assemblies, which sent humble petitions to Parliament asking for a repeal of what they believed to be unjust and unconstitutional acts. But protest was not confined to humble petitions. Gradually, ordinary folks in America’s cities and towns joined the protests, and as American resistance assumed this popular dimension, the forms of protest—street marches and demonstrations; economic boycotts of British goods; and, at times, violence aimed at British officials charged with enforcing the acts—became more direct and more threatening to the authority of the Crown. What began as a constitutional debate between American and English political leaders was becoming something more explosive—an intensely personal conflict between British officials and ordinary Americans played out, not in legislatures or courtrooms, but in the streets of Boston, New York, and Philadelphia.

Resistance bred reaction, and the British responded by sending more troops to keep order in their restive colonies. Parliament was goaded into passing additional legislation—not simply taxes but other measures, such as those requiring Americans to provide lodging for British troops in their homes—further inflaming public opinion. The turning point in the escalating conflict between the Crown and colonies came on a cold, moonlit night on December 16, 1773. Earlier in the year, Parliament had passed the Tea Act, a law not only intended to reassert England’s right to tax the colonies but which also gave the East India Company—the company that enjoyed a monopoly on all English trade in India—a similar monopoly on all tea imported into America. Once again the amount of the tax involved was relatively trivial, but Americans now rose up in protest, not only against being taxed without their consent, but also against the threat of monopoly. If Parliament could give one company a monopoly on the importation of tea, what was to prevent it from doing the same with other commodities, leaving American merchants, and all those who worked for them, out in the cold?

So on that cold night in December, three small groups of men poorly disguised as Mohawk Indians—but who were in fact common seamen and urban laborers acting under the direction of the political activist Samuel Adams—dumped ninety thousand pounds of East India Company tea into Boston Harbor. John Adams, a witness to the event, wrote in his diary that night that “this destruction of the tea is so bold, so daring, so firm, intrepid and inflexible, and it must have so important Consequences, and so lasting, that I cannot but consider it an Epocha in History.” Indeed, the effects of the Boston mob action would shake politicians in England to their very core, setting in motion a chain of events that would change the world.

SOME IN AMERICA REGRETTED THE PROVOCATIVE MANNER in which the Bostonians had acted, but when the British parliament responded with a harsh set of measures aimed at punishing the colony of Massachusetts, public opinion began to change. The Coercive Acts, as they came to be called, not only closed the port of Boston, but also strengthened the power of the royal governor while dissolving the provincial legislature and restricting the actions of town meetings. This aggressive display of parliamentary power posed an obvious threat not merely to Massachusetts, but to the liberties of all Americans. The constitutional battlefield had now expanded: the issues now confronting Americans went beyond taxation to the wider question of whether Parliament had any political authority over the American colonies. In June of 1774, all thirteen of America’s provincial legislatures, accustomed to going their separate ways, agreed to send delegates to Philadelphia to meet in a Continental Congress in order to work out a common response to this new and dangerous provocation.

When the delegates gathered in a carpenters’ guild hall in Philadelphia on September 5, 1774, there was general agreement among them that some response to the Coercive Acts was necessary but little consensus on what that response should be. For a few—particularly those like John and Samuel Adams from fractious Boston and the Virginian Patrick Henry—the idea of independence was beginning to seem like a possible, even desirable, outcome. But most of the delegates to the Continental Congress retained a deep affection for their monarch and for the English constitution. Surely, there must be some means of resolving the conflict short of revolution. The magnitude of the change being proposed by the advocates of independence—a revolution in which Americans would be transformed from loyal subjects of a beloved British king into independent citizens in a new republic—was almost too much to comprehend. Yet gradually, haltingly, America’s political leaders, and the constituents they represented, would set themselves on a course to independence—to a rejection of their identity as British
subjects
and a declaration of their desire to be
citizens
of the “united states.”

The Continental Congress met in Philadelphia’s Carpenters’ Hall between September 5 and October 26, 1774, and after a six-month recess moved to the Assembly Room of the Pennsylvania State House, the building that would later be called Independence Hall. They met continuously from May 10, 1775, until the adoption of the Declaration of Independence on July 4, 1776. From May 1775 forward, the constitutional battle was waged on two fronts: between political leaders in America and their counterparts in London, and among the American delegates to the Continental Congress, who continued to disagree about whether independence was the course for the colonies to take. The latter debate was profoundly influenced by the steadily escalating conflict between Great Britain and the colonies outside the halls of Congress and, just as importantly, by the climate of opinion back home in the delegates’ respective colonies.