The framers had spent little time on the courts at the convention. But some later indicated they had supported a broad view of judicial review as a barrier against the feared tyranny of all legislative majorities. Hamilton had argued in
The Federalist Papers
that “a Constitution is, in fact, and must be regarded by the judges, as a fundamental law.” From this, Hamilton had reasoned that the job of the Supreme Court and other courts of the United States was “to ascertain [the Constitution's] meaning, as well as the meaning of any particular act proceeding from the legislative body.” And then, Hamilton had continued, to apply the Constitution if there was an “irreconcilable variance between the two.”
Some other Americans had opposed this political role for the courts. To them, it was undemocratic or even tyrannicalâparticularly for the Court to be able to declare an act of an elected legislature unconstitutional. In the end, the Constitution itself left the question vague.
But within a few years of the Sedition Act crisis, the Supreme Court itself answered the question. In 1803, Chief Justice John Marshall and the Supreme Court decided that a particular federal statute was unconstitutional.
President Jefferson, notwithstanding his earlier letter to Madison seeming to support this role for the Court, complained to Abigail Adams, “The opinion which gives the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the Judiciary a despotic branch.”
But, most important, while Jefferson carped, he took no action against Marshall and the Court. Neither did Congress under Republican control. In theory, Congress could have impeached Marshall for overstepping his authority. In those days, before the Court's role had been as publicly accepted as it is now, an effort by the Republican Congress to impeach the Federalist John Marshall for a particular decision would not have seemed as violative of the constitutional principle of separation of power as it would today. But they let the ruling stand.
And through these two decisions, the Court's and the Republicans', a critical change in the Constitution was made. Judicial power was broadened to clearly cover the right of the Court to declare an act of Congress unconstitutional. Once planted, the seeds of this idea rooted in the Constitutional Conscience. By the mid-1830s, Alexis de Tocqueville matter-of-factly reported on the “great political importance” of the federal judiciary resulting from a judge's power to strike down a law the “judge holds to be unconstitutional.” In the late 1800s, a constitutional historian wrote that the courts were the “most peculiarly American feature” of the Constitution and largely responsible for the “stability” of the Republic, a view echoed by the historian David McCullough in 2006. And Woodrow Wilson compared the Supreme Court to “a constitutional convention in continuous session.”
While the federal courts, and particularly the Supreme Court, have over their history issued a number of decisions that have been more politically destabilizing than stabilizing, overall the courts have served as a very useful drag against the excessive political impulses of the other branches.
By the time President Ford took his oath to defend the Constitution, the federal courts had been called on many times to settle fundamental questions concerning the breadth of constitutionally protected individual rights, the extent of federal and state power, and the line between legislative and executive power. In fact, it was just such an issue that put a federal judge, John Sirica, in a very tough place and ultimately led to the elevation of Ford to the presidency.
A J
UDGE
S
TANDS
U
P TO THE
P
RESIDENT
Judge John Sirica was struggling. He needed to decide the most important case of his career, whether he should order the president of the United States, Richard Nixon, to provide the court with tapes of the president's conversations in the Oval Office. On July 23, 1973, Sirica had signed a subpoena at the request of the Watergate special prosecutor for these same tapes. And, within several days, the president had refused to comply. In a letter to Sirica, Nixon stated: “With the utmost respect for the court on which you are the Chief Judge, and for the branch of government of which it is a part, I must decline to obey the command of that subpoena. In so doing I follow the example of a long line of my predecessors who have consistently adhered to the position that the President is not subject to compulsory process from the courts.” Separation of power was the president's justification. “The independence of the three branches of our government,” he wrote, made it “inadmissable” for the court to compel any “particular action from the President.” He claimed that all communications he had with his aides were privileged, and executive privilege was absolute. This refusal triggered the start of a constitutional crisis between the judicial and the executive branches of government that would ultimately be resolved by the president's resignation and Vice President Ford's assumption of office.
The tapes were critical to the Watergate inquiry. No longer the simple investigation of burglary of the Democratic headquarters, the investigation now focused on a broad array of criminal behavior and, most significantly, the president's role in any of it or in any attempt to block the investigation. Earlier in the summer, the president's former counsel, John Dean, had testified before a Senate committee that Nixon had been involved in a cover-up, but until this point it was only his word against the president's. And Sirica himself had been “skeptical of Dean's allegations.” But later in the summer, the testimony of a former presidential assistant exposed the tapes, which Archibald Cox, the Watergate special prosecutor, and the Watergate grand jury believed would reveal the truth of Nixon's complicity.
As Sirica considered the matter, he was, in his own words, “nervous.” He had good reason. Despite the political importance of the federal courts, they do not have the power to enforce their own decisions, relying on the other branches of government for their implementation. If those branches, in this case the executive branch, choose to ignore or make little effort to enforce a decision, there is little a court can do. In fact, the court's real power rests on the public perception that a constitutional referee is needed and that it acts independently, fairly and wisely in performing that role.
This reliance on public opinion was clearly on Sirica's mind. No court had ever enforced a subpoena against a president. The president had argued that a decision to require the tapes would severely alter the presidency and structure of American government. And he had suggested that he was under no obligation to follow an order that contradicted his judgment of what was in the public interest. Nor, he argued, could the court enforce such an order against him. His responsibility was directly to the people, who could demonstrate their disfavor through the electoral process or by supporting his impeachment.
The president's argument was not surprising. The Constitution separated the branches of government and assigned each its general powers. It did not answer the particular question Sirica had to confront: whether the president could protect his tapes from a criminal investigation. And in such circumstances, the president's strong assertion of presidential power to protect his own conversations, whether offered to protect principle or self-interest, would prove unsettling to any judge. Indeed Sirica was deeply affected by the uncharted waters he was about to enter. “No judge wants to step off into new legal territory, if he can avoid it,” particularly in a case such as this. “It's difficult to describe how worried I was . . . What if I was wrong? . . . Nixon was the President of the United States; he deserved the benefit of the doubt . . . Millions of people had voted for [him]. I had voted for him.”
“What if I was wrong?” asked Sirica, pointing to one of the most misunderstood aspects of judging. Although judges are supposed to apply the rules of the Constitution, not make them, the reality tends to be more complicated. The Constitution often does not provide a clear answer to the particular question asked, and the court must fashion one. In these instances, a judge's sense of right or wrong, sensibilities and experience, his own version of the Constitutional Conscience, will all come into play, along with judicial precedents and other institutional considerations. “My own instinct was to follow Cox's argument that no man is above the law. But my judicial experience told me that I needed the support of previous cases before venturing too far in challenging the president.”
On August 29, 1973, Judge Sirica issued his order and opinion. The president was required to turn over the tapes for the court's review of their relevance to the investigation. Judge Sirica wrote: “That the Court has not the physical power to enforce its order to the President is immaterial to a resolution of the issues. Regardless of its physical power to enforce them, the Court has a duty to issue appropriate orders. The Court cannot say that the Executive's persistence in withholding the tape recordings would âtarnish its reputation,' but must admit that it would tarnish the Court's reputation to fail to do what it could in pursuit of justice. In any case, the courts have always enjoyed the good faith of the Executive Branch, even in . . . dire circumstances.”
Sirica's decision did not end the controversy, but began its ending. The president would cling to power for another year. He continued to withhold the tape recordings and fired the attorney general and the special prosecutor in order to halt the investigation. But ultimatelyâafter Judge Sirica's opinion had been upheld on appeal, after numerous members of Congress had supported impeachment resolutions and after the public had clearly turned against the presidentâthe tapes were provided. “I was overwhelmed with relief,” Sirica wrote. “The President had backed down. He had stepped away from perhaps the worst clash between two branches of government in our history.” The tapes revealed the president's participation in a cover-up. Nixon then resigned.
Watergate was as bad a presidential scandal as our country has faced. But it is also one of the most heartening examples we have of the strength we can draw from our Constitutional Conscience as we have developed it through experiences, from the battle over ratification, to the Sedition Act crisis and on through Watergate. That Constitutional Conscience is why voters turned the Federalists out in 1800, and it is where Judge Sirica found the common sense and strength to stand up to a president in 1973. Indeed Sirica was not alone. On Capitol Hill, Republicans put their institutional obligations to provide a check on the presidency ahead of their political need to help a member of their own party. The Senate Watergate hearings gained much of their credibility from the decision of Howard Baker to demand the facts. And the House Judiciary Committee's articles of impeachment, which ultimately convinced Nixon he had to go, were approved by members of both parties.
Michael Kammen defined the penumbra of ideas surrounding the Constitution, what he called
constitutionalism,
as a belief that the Constitution “embodies a set of values, a range of options and means of resolving conflicts with a framework of consensus.” That is our most important political possession, our Constitutional Conscience.
This conscience has limited, though not eliminated, the impulses of Americans to pursue self-interests at any cost. “Americans have bitterly disagreed with one another on matters of constitutional interpretation, but respect for the Constitution and the system of government it created has restrained the behavior of most citizens, especially those who have held public office.”
It hasn't always worked perfectly, or without struggle, but it has always, ultimately, worked, thank God. We, the people, have worked out our problems, often without changing the Constitution's text. We just expanded its meaning. But it turned out our hardest problem was deciding who “We the People” would be. That would take more than one hundred years and several amendments to the Constitution.
THE RIGHT TO ALTER THE
ESTABLISHED CONSTITUTION
No country ever has had or ever will have peace until every citizen has a voice in the government. Now let us try universal suffrage. We cannot tell its dangers or delights until we make the experiment.
âE
LIZABETH
C
ADY
S
TANTON
, 1865
A
T THE HEART
of the Constitution is an idea about representation. It was, as we have seen, a radically new idea in 1787. It is also an idea that has taken most of the span of our history to live up to. Under the framers new vision, every branch of the government drew its authority from the people and represented them and only them. The more people who participated, the framers argued, the better and more representative would be the actions that emerged from the process. But at the creation there was a contradiction between their rhetoric and reality. In the political world of the framers, only a small slice of the population participated. Small by our standards, to be sure, and well short of the potential for the “greater variet[ies] of parties and interests” they espoused.
But the theory nevertheless sunk in. The notion of broad representation entered the nation's Constitutional Conscience, becoming, as Martin Luther King would one day call it, “a promissory note” on the Constitution's fundamental promise that government would be based on the consent of its citizens and that America's many voices would be heard through a representative system.
Much of our history can be seen as a struggle to fulfill that idea.
The struggles have been intense and sometimes bloody. Those with power have not wanted to share it, as the framers predicted. Those who historically were without power, like African Americans and women, have sometimes been allies in the fight for enfranchisement. But at other times, demonstrating the framers' insight that people pursue their own interests first, they have gone separate ways. But consistently they have used the language of the Constitution, and the larger Constitutional Conscience it created, to bolster their cause.