The Supreme Court Has Always Been a Ship of Fools -- The Unavoidably Arbitrary Character of Judicial Interpretation

Some people believe that the federal government of the United States is divided into three separate but equal branches. Yet, one of those branches – the judicial -- gets to establish what the Constitution supposedly means (even though the Philadelphia Constitution does not necessarily entitle the courts to be the determiners of that sort of meaning) , and, therefore, one wonders in what way the three branches can be said to be equal to one another.

Anyone who gets to have the last word on what can and can’t be done is hardly on the same level as those who must get approval to proceed on with their various spheres of activity.  The real head of government in the United States is the judiciary rather than either the executive or the legislature because what the judiciary decides – at least on the level of the Supreme Court – is, contrary to the belief of Harry Truman, where the buck actually stops.

Notwithstanding Abraham Lincoln’s attempt to arrest the Chief Justice of the Supreme Court, the executive and legislative branches are answerable to the Supreme Court … not the other way around. Except for needing to be appointed by the President and confirmed by the Senate, as well as act in accordance with principles of “good behavior” – whatever that means -- the members of the Supreme Court are not answerable to either the executive office or the legislature … although the latter two branches are answerable to the Supreme Court.

The asymmetry of the relationship between, on the one hand, the Supreme Court, and, on the other hand, the executive and the legislative branches is quite remarkable given that the Philadelphia Constitution never clearly established what the precise character of the role of the Supreme Court should be. Article III says that judicial power, of some kind, should “be vested in one Supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish,” but the process of ‘vesting’ remains unclear … as is the nature of the ‘judicial power’ that is to be so vested.

Section 2 of Article III indicates that “judicial power shall extend to all cases in law and equity, arising under this Constitution.” In addition, the same judicial powers shall be extended to: the laws of the United States; all treaties made under the authority of such laws; cases involving ambassadors, public ministers, and consuls; admiralty and maritime issues; controversies to which the United States is a party; disputes involving two or more states; cases between any given state and the citizen of another state; conflicts between citizens of the same state which involve land granted by other states, as well as cases between a state or its citizens and some foreign country or citizens/subjects of such a country.

However, the precise meaning of how judicial power will be “extended” to any of the foregoing possibilities is not further elaborated upon in the Philadelphia Constitution. Article III, Section 2, Paragraph 2 of the Philadelphia Constitution does indicate that the Supreme Court will have original jurisdiction in all cases involving states, ambassadors, public ministers, and consuls, while the Supreme Court retains only appellate jurisdiction in all other cases.

What ensues from either ‘original’ or ‘appellate’ jurisdiction is not specified in the Philadelphia Constitution. Number 78 of the collection of essays that have come to be known, collectively, as The Federalist Papers (written by Hamilton, Madison, and Jay for various newspapers during the ratification process in New York State) does develop a perspective concerning the idea of judicial review in relation to the judiciary, but The Federalist Papers are not part of the Constitution.

Some people might wish to argue that the position concerning judicial review that was put forth in Number 78 of The Federalist Papers gives expression to the intent of some of the Founders/Framers. Consequently – or so the argument might go -- the views contained in Federalist-Number 78 should carry a special weight with respect to how anyone envisions the activity of the judiciary.

The foregoing argument might be more credible if there were evidence that all – or a substantial majority -- of the participants in the Philadelphia Convention shared the perspective put forth in Federalist-Number 78. However, if this had been the case, then one might have anticipated that at least a paragraph, or two, of Article III of the Philadelphia Constitution might have introduced the idea of judicial review and provided an overview of how that activity would serve as the process through which the meaning of the Constitution is to be confirmed or established.

Since nothing concerning the idea of judicial review appears in the Philadelphia Constitution, then what the intent of Alexander Hamilton (the author of Number 78) might have been with respect to the functioning of the judiciary – especially the Supreme Court – is really neither here nor there. Madison, the so-called father of the Constitution, might have agreed with Hamilton concerning the contents of Number 78, but, again, there is no indication that the majority of the participants in the Philadelphia Convention – or, perhaps more importantly, the majority of the participants of the ratification process -- shared such a point of view, and, therefore, there is no really plausible argument which demonstrates that what Madison and Hamilton might have thought about the idea of judicial review should carry any special constitutional weight.

Despite the fact that Federalist-Number 78 really has little, or no, standing with respect to the issue of determining what the function of the Supreme Court is within the framework of the Philadelphia Constitution, nevertheless, examining that essay might prove to be of some value. So, let’s take a brief tour of that essay.

Federalist-Number 78 indicates there are three questions concerning the functioning of the judiciary that need to be answered with respect to the proposed constitution (the Philadelphia Constitution had not, yet, been ratified by the required number of states at the time the Number 78 essay was written). The three questions involved: (1) the process through which judges will be appointed; (2) the issue of tenure or length of appointment; (3) the manner in which the courts will be partitioned and how those courts will interact with one another.

The first and third of the aforementioned questions are barely touched upon by Hamilton in Federalist-Number 78. The second question occupies most of the rest of the essay even though many of the ideas in that discussion revolve around arguments involving: judicial discretion, the role of the judiciary, and the issue of precedents. Those arguments are, then, used to defend the idea of having an independent judiciary that, once appointed, becomes permanent.

During the course of examining the issue of tenure, Hamilton maintained that among the three branches of government, the judiciary should be considered to be the least dangerous to the people. More specifically, whereas, on the one hand, the legislative branch held the purse strings, as well as possessed the capacity to determine the rights of every citizen through the laws it made, and while the executive had the authority to command the power of the sword, on the other hand, the judiciary had no force or will of its own since all the judiciary could do was exercise judgment, with no capacity to enforce its decisions.

Hamilton’s foregoing argument seems to be rather unconvincing. After all, if the people do not comply with the executive’s wielding of the sword or the legislature’s issuing of laws, then the executive and the legislature have as little power as he claims is the case in relation to the judiciary.

Just as people are necessary to carry out the directives of the executive and the legislature, people also are necessary to carry out the directives of the judiciary. Without co-operation and compliance by the people, none of the branches of government will be functional.

The executive, the legislature, and the judiciary have as much -- or as little -- power as the people concede to them. If the people accept – actively or passively -- the role of the judiciary, then one cannot necessarily argue that the judiciary has less power than either the executive or the legislature or that the judiciary is necessarily less of a threat to the liberties of the people than the other two branches of government are … a lot depends on what the judiciary does with the power that has been delegated to it.

According to Hamilton, the judiciary has “no influence over either the purse or the sword.” If this were true, then, presumably, this means that whatever the function of the judiciary might be, the judiciary could not make judgments affecting how Congress spent money or how the executive wielded the sword.

Subsequent events have proven Hamilton to be wrong with respect to the degree of potential influence which the judiciary has over the executive and the legislature. If nothing else, time has demonstrated that Hamilton didn’t really understand the nature of the beast that the essays in The Federalist Papers were attempting to bring into existence.

Nothing like the Philadelphia Constitution had been attempted before. Consequently, most of the material in The Federalist Papers was entirely theoretical -- that is, those essays gave expression to the ‘best guesses’ of how people like Hamilton, Madison, and Jay thought the process of governance might unfold

 In any event, the rule-making dimension of Congress is not mentioned in the foregoing quote concerning Hamilton’s contention that the judiciary has: “no influence over either the purse or the sword.” Therefore, one is uncertain whether, or not, the absence of that facet of Congressional activity in the indicated quote from Federalist-Number 78 carries any implications for how the judiciary might affect and influence the functioning of the executive or the legislative branches.

Hamilton continues on with his argument by stating that the judiciary was not only the weakest of the three branches, but, as well, he indicates that the judiciary would never be able to mount any sort of successful attack against either of the other two branches of government. However, Hamilton did warn that the judiciary would have to protect itself against attempts by the executive and legislative branches to undermine its authority.

Federalist-Number 78 held that as long as the judiciary is kept separate from the executive and legislative branches, then the people have nothing to fear from the judicial branch with respect to liberties. A threat to the liberty of citizens would only become a possibility if the judiciary came under the sway of executive and/or legislative power.

Apparently, one of the themes relevant to the exercise of judicial power is ensuring that the limits placed on the legislative branches by the Constitution would be upheld. Hamilton specifically mentions several examples (coming from: Article I, Section 9, Paragraph 3) – namely, bills of attainder (the process of legislatively singling out a person or group for punishment without benefit of a trial) and ex post facto laws (e.g., passing laws that criminalize previous acts that were not criminal at the time they were performed), and Hamilton claims that maintaining such limitations are appropriate issues for the judiciary to handle.

Hamilton seems oblivious to the discrepancy between what he believes to be a proper role for the judiciary – namely, upholding the constitutional limits that had been placed on the legislative branches – and his earlier contention that the judicial branch was the weakest of the three branches. If the judicial branch is as weak as he claims, then how does that branch propose to restrain the legislature from exceeding its constitutionally approved sphere of activity?

According to Hamilton, fulfilling the foregoing function might require the judiciary to decide in a given case whether, or not, the legislature was violating the Constitutional prohibition against bills of attainder and ex post facto laws. Moreover, by implication, this sort of decision process might require the judiciary to interpret the structural character of the conceptual boundaries concerning those issues – that is, whether, or not, some given act of the legislature was a violation of Constitutional prohibitions involving bills of attainder and ex post facto laws.

If so, then the problem becomes whether, or not, such a process of interpretation involves the exercise of discretionary degrees of freedom by the judiciary. If bills of attainder or ex post facto laws are rules that are fairly linear and consistent in their sphere of applicability, then in accordance with the requirements of legal positivism, one merely has to determine what the ‘facts’ of a given case are and compare those facts with the character of the Constitutional provisions and, then, determine the nature of the relationship between the ‘facts’ and those provisions.

If, on the other hand, bills of attainder or ex post facto laws are somewhat non-linear in character, then the judiciary might have to exercise interpretive or hermeneutical discretion concerning whether a given Constitutional prohibition was, or was not, violated. Under those sorts of circumstances, one would have to try (as Ronald Dworkin did, for example, in: Taking Rights Seriously) to come up with a defensible theory of interpretation or hermeneutics concerning how discretion was to be exercised in such cases.

Hamilton claimed that it was the duty of the courts to: “declare all acts contrary to the manifest tenor of the Constitution void.” Unfortunately, this kind of language is not found anywhere in the Constitution.

Furthermore, even if this kind of language had appeared in the Constitution, one would still be faced with a problem. What is meant by the idea of: “the manifest tenor of the Constitution”?

Does the Constitution have a manifest tenor? In a previous posting (http://anab-whitehouse.blogspot.com/2014/01/constitutional-framers-founders-and.html) I suggested that in many respects – but not necessarily all -- there is no manifest tenor inherent in the Constitution.

There were as many understandings concerning the nature of the Constitution as there were participants in the Philadelphia Convention. There were as many understandings concerning the nature of the Constitution as there were participants in the ratification process … which is one of the reasons why so many delegates to the ratification conventions wanted to introduce amendments in order to protect against possible problems manifesting themselves in the future as a result of the ambiguities that were perceived by many to be present in the Constitution-as-written.

To be sure, there are likely to be a variety of areas within the Constitution on which there might have been a general consensus concerning the “manifest tenor” of that document. However, assuming that there is a similar ‘manifest tenor’ which can be extended to the entire Constitution is another matter – especially in light of the fact there have been so many 5-4 and 6-3 decisions that have been rendered during the history of the Supreme Court.

One of the reasons why there is so much partisan bickering concerning the confirmation of judges has less to do with the possible “manifest tenor” of the Constitution than it does with wanting to ensure that the judges who are confirmed will interpret the Constitution in a manner that is resonant with the political and economic interests of those who command the majority position in the Senate. If there really were a “manifest tenor” of the Constitution, there would be only one way to understand the nature and meaning of the Constitution, and, yet, no one has been able to put forth an unassailable case in that respect.

One needs to go no further than the Preamble to the Constitution to understand that the meaning of the Constitution is hopelessly ambiguous. No one – in government or beyond – can put forth a case that is defensible, beyond a reasonable doubt, with respect to what is meant by: ‘establishing justice,’ ‘insuring domestic tranquility,’ ‘providing for the common defense,’ ‘promoting the general welfare,’ and ‘securing the blessings of liberty to ourselves and our posterity.’

Everyone has theories about the foregoing ideas. No one has proof beyond a reasonable doubt that his or her theories accurately reflect the ‘manifest tenor’ of the Constitution … or, perhaps more importantly, accurately reflect the nature of reality.

Hamilton argued that elected representatives should not be judges in their own causes with respect to what was, and was not, appropriate with respect to the meaning of the Constitution. Consequently, Hamilton believed that the role of the judiciary was to act on behalf of the people by limiting the activity of the legislature and restraining the latter through demarcating the proper boundaries within which the legislature was entitled to operate with respect to the enumerated powers that had been granted to it via the Constitution.

For Hamilton: “Interpretation of the law is the proper and peculiar province of the courts”. Yet, if there is a “manifest tenor to the Constitution,” then what need is there for judicial interpretation?

Stated somewhat differently, one might ask: If only judges are capable of interpreting the law – since, according to Hamilton, it is their proper and peculiar province -- then one wonders just how manifest the tenor of the Constitution actually is? Alternatively, if judges are the only ones capable of understanding the manifest tenor of the Constitution, then why do they disagree with one another?

Wherever there are ambiguities present in the Constitution (and there are many – for example, what is meant by the “necessary and proper” clause in the last paragraph of Section 8 in Article I), judicial discretion will enter the picture. Whenever judicial discretion becomes necessary, one needs to be able to demonstrate that a given mode of exercising that kind of discretion is defensible beyond all reasonable doubt … otherwise the exercise of that sort of discretion will be entirely arbitrary.

Hamilton considered a constitution to be a fundamental form of law. Furthermore, he maintained that it was the function of the courts to determine what the meaning of that sort of fundamental law is, as well as to determine the meaning of whatever laws might be issued by the legislature.

If the courts determine that there is some sort of irreconcilable discrepancy between the meaning of the Constitution and the meaning of the laws that are forthcoming from the legislature, then, according to Hamilton, preference should be given to the meaning of the Constitution. He equates the intention of the people with the meaning of the Constitution and indicates that both should be preferred to the intention of legislative agents.

Unfortunately, the people did not write the Constitution. Therefore, there is no reason why the intention of the people and the meaning of the Constitution should be considered to be synonymous with one another.

Of course, attempting to equate the intention of the people with the meaning of the Constitution might be an allusion to the resolution passed by the signatories to the Philadelphia Constitution that the people should ratify the Philadelphia Constitution rather than the Continental Congress and the state legislatures. If so, then the argument might be that the meaning of the Constitution gave expression to the intention of the people when they ratified it.

However, many segments of “We the People” – even among those who voted to ratify the Philadelphia Constitution – had reservations concerning the meaning of certain aspects of the Constitution. Consequently, one is not necessarily justified in equating the intention of the people with the meaning of the Constitution as Hamilton seeks to do in Federalist-Number 78.

According to Hamilton, the capacity of the judiciary to interpret the meaning of the Constitution did not make the judiciary superior to the legislature, but, rather, merely indicated that the will of the people was superior to either the judiciary or the legislature. When the judiciary determines the meaning of the Constitution, then, from Hamilton’s perspective, the courts are merely acting in the service of the will and intention of the people and demonstrating that the will and intention of ‘We the People’ is superior to that of the legislature.

There seems to be a substantial amount of sophistry in Hamilton’s foregoing argument. On the surface, his mode of reasoning seems attractive because it tries to reduce the meaning of the Constitution to the will and intention of ‘We the People’, yet ‘We the People’ did not formulate the Constitution, and, more importantly, there were too many problems inherent in the ratification process to try to justifiably claim that the ratified Constitution gave expression to the intention, will, and meanings of ‘We the People’ with respect to the issue of governance.

Moreover, Hamilton believes that only courts have the “peculiar province” to be able to interpret and understand the manifest tenor of the Constitution, and, therefore, the will and intention of ‘We the People.’ Consequently, one wonders why ‘We the People’ do not have the capacity to understand their intention and will independently of the judiciary … or, why ‘We the People’ need someone to adjudicate such matters if the manifest tenor of the Constitution is as manifest as Hamilton claims it is?

Hamilton goes on to argue that the exercise of judicial discretion will always be a matter of courts generating fair constructions -- “so far as they can” – with respect to, on the one hand, laws that are in apparent conflict with one another but are capable of being reconciled with each other or, on the other hand, laws that are not reconcilable with each other but one of which can be demonstrated to be consistent with the fundamental law of the Constitution. Hamilton doesn’t specify: What the criteria are for determining what constitutes a ‘fair construction’ or how far courts will be able to generate such constructions, or why one should suppose that one of two conflicting laws will be capable of being demonstrate to be consistent with the Constitution – or how one accomplishes this -- when it is possible that neither law might be all that consistent with the Constitution … a lot depends on the criteria of ‘consistency.’

All one gets from Hamilton’s essay is the idea or possibility that ‘somehow’ the exercise of judicial discretion will lead to a decision or judgment that will serve the intention and will of the people. There is no proof of this … only the theoretical assertion. 

Federalist-Number 78 does not disclose the structural character of the process of judicial discretion. Federalist-Number 78 does not disclose what constitutes a ‘fair construction’ or what the criteria of ‘fairness’ are for such a construction. Federalist-Number 78 does not disclose whether, or not, the exercise of judicial discretion really gives expression to the intention and will of the people. Federalist-Number 78 does not disclose what the criteria are for determining whether two laws are capable of being reconciled with one another in a way that is consistent with the fundamental law of the Constitution, or what the criteria are for demonstrating that one law, rather than another, is consistent with the Constitution. Federalist-Number 78 does not disclose why -- if the “manifest tenor of the Constitution” is really manifest -- only judges are capable of understanding that tenor.

Hamilton attempts to claim that concerns about judges substituting their own will for the meaning of law carry no weight. However, his reasoning concerning this issue seems rather suspect.

In effect, Hamilton argues that if judges, like legislators, were to substitute their own likes and dislikes (i.e., will) in place of the actual requirements of the fundamental law of the Constitution (i.e., judgment), then this would be an argument against having judges at all since the latter individuals would be succumbing to the same sort of error as is committed by those legislators who follow their own likes and dislikes (will) rather than comply with the requirements of the Constitution. This argument is valid as far as it goes but doesn’t explain why judges would not be vulnerable to preferring their own likes and dislikes (i.e., their will) in the same way that legislators are vulnerable.

Toward the latter part of Federalist-Number 78, Hamilton explores the issue of having to find candidates for the judiciary who have the requisite technical skills, as well individuals who will have the necessary integrity to overcome the natural tendency of many individuals to prefer their likes and dislikes to considered judgment, but the discussion is very general. Hamilton has almost nothing to say about how one identifies those kinds of individuals.

Hamilton indicates there is a difference between ‘judicial will’ and ‘judicial judgment.’ Unfortunately, he doesn’t explain what the precise character of that difference is other than  to suggest that judgment will comply with the requirements of the fundamental law of the Constitution, whereas will does not comply with that law.

Consequently, contrary to Hamilton’s claims in Federalist-Number 78, the possibility of jurists substituting their will concerning the Constitution does carry weight. Although Article IV, Section 4 of the Constitution guarantees a republican form of government to every state, there is no way to determine whether any given exercise of judicial discretion is actually giving faithful expression to that kind of a guarantee.

Hamilton assumes – or hopes – the foregoing will be the case. Nonetheless, he can’t prove that this is how things will actually turn out because he has failed to establish a clear set of criteria for demonstrating when ‘judicial judgment’ is being exercised rather than ‘judicial will.’

Toward the latter part of Federalist-Number 78, Hamilton states: “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.” However, Hamilton does not stipulate what it means to “be bound down by strict rules and precedents” or why the manner of being ‘bound down’ should be in accordance with some rules and precedents rather than others.

Moreover, if those sorts of “strict rules and precedents … serve to define and point out their [i.e., the courts] duty in every particular case that comes before them,” then what need is there for the sort of judicial discretion which Hamilton claims is the “peculiar province” of courts? In addition, if a “long and laborious study” of precedents should be required in order “to acquire a competent knowledge of” those precedents in order to be able to come to know one’s duty in any particular case, then what happened to the “manifest tenor of the Constitution?”

Hamilton argued earlier in Federalist-Number 78 that: “the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.” If this is the case, then what need is there of precedents since the “manifest tenor” of the fundamental law of the Constitution should always have precedence over any other kind of secondary judgment – i.e., precedent – developed in accordance with this or that statute?

What function do precedents have if the Constitution is the mother of all precedents? If subsequent precedents draw out the meaning of the Constitution in greater detail or specificity, then, perhaps, Hamilton was wrong about the “manifest tenor” of the Constitution, and irrespective of whether he was right or wrong on this latter issue, one still doesn’t really have any clear sense of what is meant by the idea of the Constitution’s “manifest tenor” or how one goes about determining whether, or not, subsequent precedents are consistent with that tenor.

Many of the ideas which Hamilton introduced in Federalist-Number 78 were – as pointed out toward the beginning of this discussion -- directed toward supporting the argument that the tenure of jurists should be permanent as long as “good behavior” was in evidence. Hamilton believed that a judiciary which had tenured permanence would best serve the interests of the people against possible violations of Constitutional limits by the legislature and, in addition, would be independent of the executive branch as well.

Unfortunately, there are many questions that arise during the course of Federalist-Number 78 in relation to such ideas as: The manifest tenor of the Constitution; the meaning of the fundamental law of the Constitution; judicial discretion; fair construction; judicial will; and the role of precedents. Hamilton provides no way to answer the foregoing questions in a non-arbitrary way … and, yet, Hamilton was quite concerned with avoiding “arbitrary discretion in the courts.”

Consequently, in view of the many unanswered questions and ambiguities that exist in conjunction with Federalist-Number 78, one can’t help but feel a certain amount of discomfort with the thought that, according to Hamilton, members of the judiciary should have permanent tenure and, thereby, be in a position to – possibly -- impose arbitrary interpretations of the Constitution upon citizens (which is equivalent to the idea of “judicial will”) rather than -- allegedly -- giving expression to the intention and will of ‘We the People’ by making proper judgments – whatever they are -- concerning the ‘manifest tenor’ of the Constitution. Instead of mounting an argument in defense of the idea of permanent tenure for the judiciary, Hamilton’s failure to clearly and adequately address certain issues concerning the judiciary in Federalist-Number 78 tends to bring the idea of permanent tenure into question.

In Federalist-Number 83 Hamilton refers to some general guidelines for interpreting the law while he addresses the question of whether, or not, the Philadelphia Constitution’s provisions for trial by jury in criminal cases automatically excludes the idea of trials by jury in civil cases. At one point in the essay, Hamilton stipulates that the process of interpreting the law is just a matter of applying rules of common sense that have been adopted by the courts during the construction of laws.

One person’s idea of common sense is often antithetical to the thinking of others who might consider that the former person’s idea to be doing something other than making ‘sense’ … common or otherwise. Moreover, that which might have seemed commonsensical during the construction of certain laws might not be considered to be so commonsensical when subsequent jurists engage those laws and attempt to interpret the possible meanings of those laws.

Hamilton goes on to say, with respect to the issue of interpreting a constitution, that: “the natural and obvious sense of its provisions, apart from any technical rules, is the true criterion of construction.” Like the issue of common sense, what one person considers to be: “the natural and obvious sense” of something (e.g., a law or constitution) will not necessarily reflect what another individual considers to be “the natural and obvious sense” of that ‘same something’ … and the history of judicial interpretation tends to support the foregoing contention.

What is considered to be commonsensical, natural, or obvious takes place in a certain context of understanding. Different frameworks of understanding often give expression to different ideas about what is commonsensical, natural, and obvious.

The relationship between Madison and Hamilton gives clear expression to the foregoing point. More specifically, during the drafting of the Philadelphia Constitution, as well as during the writing of the essays that collectively came to be known as The Federalist Papers, Madison and Hamilton were conceptual allies, and, yet, not very long after ratification of that constitution had been completed, the two individuals became philosophical enemies with respect to what they each considered to be commonsensical, natural , and obvious with respect to the practical application of the Philadelphia Constitution in relation to the issue of governance -- for example, their radically different opinions concerning the constitutionality of a national bank in which Madison argued against that idea on the basis of, among other things,  a narrow interpretation of the necessary and proper clause of the last paragraph of Article I, Section 8, while Hamilton argued in favor of such a bank on the basis of, among other things, a broader interpretation of that same clause.

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Between 1789 and 1801, the Supreme Court made only a small number of decisions that might be considered to have some degree of importance. In fact, the role of the Court seemed to be so peripheral to the functioning of government that John Jay, the first Chief Justice of the Supreme Court, declined John Adams’ offer to have Jay continue on as the head of the Court because Jay felt that the Court would never attain the sort of gravitas that would enable the Court to play an influential and effective role in governance.

Adams appointed John Marshall to become the new Chief Justice. Marshall held that position for 35 years, and over the course of those three and a half decades, Justice Marshall proceeded to construct a hermeneutical or interpretive perspective that gave expression to how he believed the Court ought to engage its constitutionally granted powers.

At the heart of Justice Marshall’s philosophy is the belief that the judiciary should exercise its constitutionally granted authority in order to give effect to the will of the law rather than to the will of the judges. This is the same sort of point that Hamilton made in the previously discussed Federalist-Number 78 when he distinguished between the will and judgment of the court and indicated that only the latter process – that is, judgment – would be able to uncover the true meaning of a law or constitution.

Justice Marshall’s approach to understanding the nature of law leaves one with the same kinds of problems with which Hamilton left us earlier on. What are the criteria – and how are those criteria or their application to be justified – for determining what constitutes the ‘will of the law’ rather than the ‘will of a jurist’ or judge?

According to Justice Marshall in Brown v. Maryland (1827), when a jurist seeks to construct the meaning of this or that clause of the Constitution: “it is proper to take a view of the literal meaning of the words to be expounded, of their connection with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power.” Whose “literal meaning of the words to be expounded” is to be accepted? Whose understanding of “their connection with other words” is to be adopted? Whose interpretation of the “general objects to be accomplished” or powers to be granted is to govern how a jurist reaches his or her judgment concerning the alleged meaning of the Constitution? More importantly, how does one justify, beyond a reasonable doubt: Accepting one sense of the literal meaning of a set of words rather than some other sense of those words; or, the adopting of one understanding rather than some other understanding concerning the alleged relationship of those words to other words; or, the use of one interpretation rather than some other interpretation in relation to the nature of the “general objects to be accomplished” or powers to be granted?

Justice Marshall says that it is proper to proceed in the way he indicates, but he doesn’t justify why such a methodology is “proper”. Like Ronald Dworkin’s fictional Hercules, Justice Marshall accepts the idea that the Constitution is, in part, settled law – for example, that the judiciary has been given power to engage the law, and Marshall is intent on mapping out the nature of that power, but the issue remains whether Justice Marshall was undertaking that project out of judicial will or judicial judgment.

The Philadelphia Constitution cannot serve as the source of its own authority without running into a circular argument which is entirely arbitrary. The source of authority for the Constitution – however it might be interpreted – lies beyond the horizons of that document, and this fact was recognized by the Founders/Framers when they sought to root the authority of the Constitution in the will of ‘We the People’ via the process of ratification.

However, if the ratification process was flawed in substantial ways – and some of these flaws were outlined in a previous posting (http://anab-whitehouse.blogspot.com/2014/07/the-ratification-game-how-power.html) – then, one cannot automatically assume that the ratification process has the capacity to provide the sort of authority which could justify or sanction the legitimacy of the Constitution. If this is the case, then granting jurists the power to establish the meaning of a document – i.e., the Constitution – through this or that methodology really might not be as “proper” as Justice Marshall supposes because the underlying authority for doing so is questionable.

Even if one were to grant – for the purposes of argument – that the Philadelphia Constitution gave expression to a legitimate source of authority via the process of ratification for those who participated in such a process, nonetheless, the issue of propriety concerning methodology does not end. However legitimate a given form of governance (e.g., the Philadelphia Constitution) might be for those who – we will assume – authorized it through the process of ratification, why should such an arrangement be binding on people living several hundred years later who had no role in either the drafting or ratification of that arrangement?

Will it still be “proper to take a view of the literal meaning of the words to be expounded, of their connection with other words, and of the general objects to be accomplished by the prohibitory clause, or by the grant of power”? What do: The literal meaning of such words, or their connections with other words, or the general objects to be accomplished, or the powers to be granted, have to do with people living more than two hundred years later  --  even if the meanings of those words, their connections, the general objects, and powers could be determined without controversy?

Justice Marshall understood that the task of interpretation would be a challenge given that it took place within a context complicated by the existence of conflicting federal powers, as well as political/economic interests that varied from state to state. Nevertheless, as complicating as the foregoing factors might be, the most problematic complications were given expression through the Preamble to the Constitution that, supposedly, outlined the purposes for which the Constitution had been constructed.

More specifically, all the allegedly “literal” meanings of words and their connection with: Other words, prohibitory clauses, and grants of power, have to be filtered through the Preamble. Yet, without a clear understanding of what is meant by the idea of: ‘establishing justice,’ ‘insuring domestic tranquility,’ ‘providing for the common defense,’ ‘promoting the general welfare,’ or ‘securing the blessings of liberty,’ then irrespective of whatever legal methodology one judges to be “proper” to guide one’s process of understanding or interpreting, among other things, “the literal meaning” of words in the Constitution, nevertheless, one is just arbitrarily engaging that document.

In Gibbons v. Ogden (1824), Justice Marshall claimed that: “It is a well-settled rule that the objects for which it [a power] was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction.” Yet, even though the Preamble to the Constitution states the objects for which the various powers of the Constitution have been granted, one is uncertain what the nature of the influence of those objects is on the construction of the meaning of the Constitution because one doesn’t necessarily know what is meant by words such as: ‘justice,’ ‘defense, ’tranquility,’ ‘welfare’, or ‘liberty.’

In Ogden v. Saunders (1827), Justice Marshall stated that “the intention of the instrument must prevail.” He went on to claim that one derived the nature of such intention from the words which are used in a given instrument and that those words were to be understood in the way in which those for whom the instrument had been constructed – i.e., the people – generally understood those words. Furthermore, Justice Marshall stipulated that the provisions of those instruments were: “Neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers.”

What does it mean to neither restrict the meaning of something into insignificance, nor to extend that meaning beyond what had been contemplated by those who constructed a given instrument of governance? How do we know that the instrument was constructed in accordance with the manner in which the generality of people understand the words employed in such an instrument? How does one determine what the generality of people understand the meaning of certain words to be within the context of a legal instrument such as a constitution? Who is to be considered a framer, and what if not everyone who helped frame an instrument necessarily spoke out about the nature of what they contemplated as they voted for that kind of an instrument? What if the intention of the framers – even if that intention could be identified – did not accurately reflect the will of the people, and how would one set about determining whether, or not, the framer’s intention properly reflected the will of the people?

When Justice Marshall issued his decision in Marbury v. Madison (1803), he maintained that the people had “an original right” to establish a form of governance that in their opinion likely would lead to their collective happiness. Moreover, he believed America had come into being with such a right and goal in mind.

However, according to Justice Marshall, exercising the “original right” required a great deal of effort and, therefore, he considered that sort of a process something which neither can -- nor ought to -- be done frequently. Consequently, he held that: “The principles … so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are deemed to be permanent.”

There are several problems inherent in the foregoing perspective of Justice Marshall. First, to claim that the people have “an original right” with respect to developing a form of governance that is conducive to their happiness is one thing, but to claim that what took place in the Philadelphia Convention is an appropriate expression of that ‘original right’ might be quite another matter.

The 55 delegates who attended the Philadelphia Convention of 1787 were not a representative sample of the American people. With the exception of Alexander Hamilton, Roger Sherman, and, to a degree, Benjamin Franklin, the individuals who attended that convention were not self-made men but came from families that were fairly wealthy and influential in Colonial America.

Thomas Paine, who did not attend the convention, represented a radicalized part of society involving both sides of the ocean that regularly explored an array of political and economic issues in the taverns and teahouses of the Atlantic world. The perspective of those individuals concerning issues involving: freedom, rights, governance, property, and commercial fairness were -- relative to the ideas being considered by the delegates to the Philadelphia Convention -- quite different in many respects.

The Philadelphia Convention gave expression to one possibility concerning how the ‘original right’ to which Justice Marshall referred might be exercised. However, that effort was skewed by the backgrounds, interests, inclinations, and purposes of the people who participated in the aforementioned convention.

In an earlier posting, I indicated that the Philadelphia Convention might have had a very different outcome if certain people who did not attend that assembly – namely, Patrick Henry, Thomas Paine, Thomas Jefferson, William Findley, Samuel Adams, and Richard Henry Lee – had been able to collaborate with those individuals who did attend the Philadelphia Convention but were disgruntled, in one way or another, with the nature of that assembly … individuals such as: George Mason, Elbridge Gerry, Edmond Randolph, John Lansing, Jr., Robert Yates, and Luther Martin. Moreover, what about the many individuals in America who were never even considered as possible participants for the Philadelphia Convention?

Thomas Paine was not an isolated individual. Rather, he was just one of the participants in the radical discussions that had been taking place in Atlantic Europe before he even came to America, and he continued on with those tavern-based discussions when he arrived in America. Consequently, to suppose that people like James Madison and Alexander Hamilton – or other members from their social, educational, and economic background -- were the only individuals who were thinking about issues of governance, rights, liberty, and justice (or were even necessarily the best and wisest of those who did think about those topics) is a gross distortion of the historical reality of the Atlantic world of those times.

Paine came to people’s attention in America because of Common Sense and other essays he wrote once he landed in America. However, there are likely to have been many other people on both sides of the Atlantic who understood the issues surrounding the “original right” to which Marshall referred in his Supreme Court decision even if they never gave written voice to their understanding concerning those issues.

Many people might consider James Madison to be the ‘father of the Constitution’. Unfortunately, if this is the case, then this also means that the Constitution was framed or limited by Madison’s interpretation of the ‘original right’ to which all people -- according to Marshall -- were entitled.

Justice Marshall believed that it was the intent of the framers of the Constitution to generate “a fundamental and paramount law of the nation.” Nonetheless, to claim -- as Justice Marshall did in the Marbury v. Madison decision – that the document constructed via the Philadelphia Convention should be deemed to be permanent, co-opts the opportunity of many other people to give expression to the ‘original right’ – a right which Marshall acknowledges all people have -- in a way that is different (perhaps substantially so) from that which was generated through the Philadelphia Convention.

According to Justice Marshall, the theory which those who frame constitutions rely on involves the idea that any act of a legislature which is considered “repugnant to the constitution, is void.” Justice Marshall considers such a theory to be attached to every written constitution, and, as a result, he feels that his court – the Supreme Court – must treat that kind of a theory “as one of the fundamental principles of our society.”

It is understandable that those who frame a constitution would wish their document to be the “fundamental and paramount law of the nation” and, therefore, they would be of the opinion that any act of the legislation which is repugnant to that constitution should be considered to be void. Less understandable is the idea: That those who are to be governed by this kind of a “fundament and paramount law” would necessarily agree that any act of the legislature – or the people – which runs contrary to that law should be considered to be repugnant and, therefore, void.

Why favor the ideas of those who frame constitutions over the ideas of those who do not frame constitutions? Why should those who frame constitutions have a greater claim on the “original right” to which Justice Marshall refers in the Marbury v. Madison decision than those who do not frame constitutions?

Conceivably, any written constitution that can be shown to violate the “original right” to which -- according to Chief Justice Marshall -- all people are entitled should be considered to be repugnant with respect to that “original right”. Moreover, if those constitutions are found to be repugnant in the foregoing sense, then perhaps those constitutions ought to be considered void.

The most “fundamental and paramount law of the nation” should be firmly rooted in the “original right” to which all people are entitled. Unfortunately, Justice Marshall is assuming that because the intent of the framers of the constitution was to accomplish such a goal – that is, to root the law of the land (the constitution) in the ‘original right’ – then the Supreme Court was obligated to honor that sort of an intention and, as a result, treat the Philadelphia Constitution as permanent.

Justice Marshall never seems to ask the following question: Notwithstanding the intention of the framers, did they get it right? That is, did the constitution framed by the delegates to the Philadelphia Convention give ‘proper and adequate’ expression to the ‘original right’ to which everyone is entitled?

Why treat anything as permanent until the foregoing questions can be answered in a way that is likely to be true beyond all reasonable doubt? Why honor or adopt the theory of the framers concerning the idea that any act of the legislature which is repugnant to the Constitution should be considered void unless one can demonstrate beyond a reasonable doubt that such a document is not repugnant to the ‘original right’ to which all people are entitled?

 In McCulloch v. Maryland (1819), Justice Marshall argued that if a constitution were to give expression to a complete account of all the powers inherent in it as well as the means through which such powers might be realized, then, this kind of a document could not be grasped by the human mind and “would probably never be understood by the public.” In the light of the foregoing practical realities, Justice Marshall went on to claim that, as a result, constitutions were written in such a way that only the outlines of the fundamental law were written, and the details of such a law would be deduced from that which was written with respect to the ‘fundamental and paramount law of the nation.’

Let’s assume, for the sake of argument, that Justice Marshall’s foregoing account is correct. What happens if the outline provided by a given constitution does not properly reflect the ‘original right” to which Justice Marshall believes that all people are entitled?

Furthermore, if the nature of a constitution distorts the ‘original right’, then what sense is to be made of the ‘deductions’ which are supposed to provide the details that are entailed by the general outline of the constitution? If one starts with a flawed document, then the deductions which are made in conjunction with that kind of document will also be flawed no matter how impeccable the logic of any given deduction might be.

The foregoing problem is compounded when one raises questions about whether, or not, this or that deduction is warranted and can be demonstrated -- beyond a reasonable doubt -- to be fully consistent with the purposes for which a given constitution has been written. For example, any deduction concerning the Constitution framed by the participants in the Philadelphia Convention must be capable of being shown to fully consistent with the principles/objects/purposes that are being advanced in the Preamble to the Constitution.

Thus, any given deduction of detail drawn from the general outline of the Philadelphia Constitution must be capable of demonstrating – beyond a reasonable doubt – how such a deduction gives expression to: ‘perfecting the union,’ ‘establishing justice,’ ‘insuring tranquility,’ ‘providing for the common defense,’ ‘providing for the general welfare,’ and ‘securing the blessings of liberty.’ Moreover, the foregoing sorts of deductions must advance all the goals and purposes of the Preamble simultaneously and to an equal degree (there is no ‘either-or’ in the Preamble). Otherwise, the reason for which the constitution purportedly was framed will not be served.

In addition, if, as Justice Marshall claimed earlier, the public would never be able to understand a constitution that contained a complete account of all the powers inherent in a constitution together with the variety of means for realizing those powers, why should one suppose that the public will understand the character of the deductions made by a given court concerning that kind of a document? Any deduction – even though it is nothing more than a detail – must be capable of being shown to be consonant with the constitution if it were written out in its full reality, or it is not a valid deduction

Like a chess player who sees the moves of a game to its conclusion (e.g., at a certain point in his career, Bobby Fischer claimed to be this sort of a player), presumably a jurist should be capable of seeing how a given deduction is consistent with the meaning of the constitution if it were to be fully elaborated in terms of all its powers, means, goals, and objects. If a jurist could not do this, then one wonders about the validity of the deduction that such an individual is making with respect to the alleged meaning of the constitution.

In light of the foregoing considerations, one might question whether any jurist -- let alone the public -- has that sort of understanding of a constitution. However, if the public cannot understand the nature of the constitution – whether written in a complete form, or written in a manner in which certain deductions were said to be consistent with such a fully elaborated document – then, what is one to make of Justice Marshall’s belief that the words of the constitution are to be understood as meaning what the general public understood by such words, as well as what the general public meant with respect to the relation of those words to one another?

One implication of Justice Marshall’s foregoing argument is that constructions such as the “necessary and proper” clause allude to principles that are present implicitly in the constitution even if not explicitly mentioned in that document. In other words, because one could not possibly provide an explicit list of all the powers, means, and objects to which the “necessary and proper” clause is capable of giving expression, then the three word clause is the linguistic portal through which all sorts of implicit realities might emerge by means of an appropriate deduction.

Many people seem to be under the impression that the “necessary and proper” clause is about what government requires in order to be able to function effectively. However, that clause is embedded in a context – namely, the Preamble to the Constitution – and, therefore, the aforementioned clause is not, strictly speaking, just a matter of effective government without qualification, but, rather, the “necessary and proper” clause is about the exercise of effective governance with respect to the realization of: ‘a more perfect union,’ ‘justice,’ ‘tranquility,’ ‘defense,’ ‘welfare,’ and ‘liberty.’

Even if one were to argue that the “necessary and proper” clause should be understood in terms of the enumerated powers of Article I, Section 8, whatever deductions were made would have to be filtered through the purposes set forth in the Preamble. Thus, the capacity of the legislature to: “lay and collect taxes, duties, imposts, and excises” must be pursued not only to: “provide for the common defense and general welfare of the United States,” but, as well, to: ‘insure domestic tranquility,’ ‘establish justice,’ ‘secure the blessings of liberty,’ and ‘to form a more perfect union.’ However, one cannot do any of the foregoing unless on can demonstrate, beyond a reasonable doubt, what is meant by: ‘welfare,’ ‘tranquility,’ ‘defense’, ‘justice,’ ‘liberty,’ and ‘perfection’ … words for which neither the general public, nor jurists, have any agreed upon understanding – either individually or in conjunction with one another.

The other powers that are enumerated in Article I, Section 8 – such as: borrowing money, regulating commerce, coining money, declaring war, raising and supporting armies – are subject to the same kinds of constraints as outlined above. In other words, all of the powers mentioned in Article I, Section 8 must be viewed through the lenses of the purposes and objects of the Preamble, as well as be reconciled with those purposes and objects.

Finally, having just any theory of what constitutes: ‘a more perfect union,’ ‘justice,’ ‘tranquility,’ ‘defense,’ ‘welfare,’ and ‘liberty,’ will not do. The standard against which those purposes must be measured will be a function of the ‘original right’ to which Justice Marshall referred in Marbury v. Madison.

If the relationship is flawed between, on the one hand, the “fundamental and paramount law of the nation” – i.e., the constitution – and, on the other hand, the ‘original right’ to which everyone is entitled, then, this will lead to a variety of problems. These problems range from: a failure to properly understand the meaning of the purposes and objects of the Preamble, to: making invalid deductions concerning the details of how such objects and purposes are to be translated into concrete actions via the procedural powers and means of the constitution.

Justice Marshall assumes that all of the foregoing issues have been properly resolved, and, as a result, he contends, as previously pointed out, that the courts have an obligation to treat the procedural provisions of the Philadelphia Constitution as permanent inhabitants of the legal landscape. In order to satisfy the indicated obligation, Justice Marshall believes the only thing that jurists must do to arrive at the appropriate deductions is to juxtapose real world cases next to the “fundamental and paramount law of the nation.”

Unfortunately, Justice Marshall offers no proof that his assumption concerning any of the foregoing is justified beyond a reasonable doubt. What Marshall takes to be settled law is not as settled as he supposes it to be, and, consequently, many, if not most, of Justice Marshall’s decisions were skewed by the biases that were inherent in his assumption concerning the presumed legitimacy and settled character of the Philadelphia Constitution.

At the very least, there can be no obligation to treat a framed constitution as permanent unless one can demonstrate that such a document gives appropriate – and, therefore, justifiable – expression to the ‘original right’ from which such a document is supposedly derived. In the absence of that sort of proof, there can be no sense of obligation at all, and, therefore, Justice Marshall sought to impose on the courts an obligation which neither he nor the framers could demonstrate, beyond a reasonable doubt, necessarily reflected an accurate rendering of the ‘original right’ to which all people are entitled.

In McCulloch v. Maryland, Justice Marshall emphasized the importance which considerations involving intentions played in arriving at appropriate constructions concerning the meaning of the Constitution. For example, he indicated that, presumably, one of the intentions of the framers was to make appropriate provisions for linking the execution of certain powers with that which would enhance the national welfare.

The foregoing understanding might be true … that is, one could accept the idea – for the sake of argument -- that the framers did intend that whatever powers were contained in the Constitution were to be applied for purposes of promoting the general welfare. However, until one understands what the nature of the general welfare is and whether, or not, the exercise of a certain power in a particular way will bring about that kind of an enhancement in the general welfare without affecting other aspects of society in a problematic way – for example, in a way that undermines: justice, liberty, tranquility, and defense -- then the intentions of the framers are neither here nor there.

What is relevant, however, is that irrespective of what the intentions of the framers might have been, one needs to know the nature of the relationship between the exercise of a given power and what such an exercise has to do with the ‘original right’ to which, according to Justice Marshall, we are all entitled. One cannot use the intentions of the framers as a starting point for interpretive deliberations, but, instead, one needs to start from the nature of the ‘original right’ which – according to Justice Marshall -- has precedence over the intentions of the framers since the intentions of the framers are only relevant to the extent that their understanding gives proper expression to the ‘original right.’

Justice Marshall argued in Dartmouth College v. Woodward (1819) that when a given rule is applied to a case, then, under normal circumstances, the words of that rule should control that application. The exception to the foregoing would be in those instances in which “the literal construction is so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.”

Dartmouth College v. Woodward is viewed by Justice Marshall through the lenses of the idea of a contract. In fact, several of Justice Marshall’s fellow justices – Justice Story and Justice Washington -- devoted considerable effort in their concurring opinions attempting to demonstrate that the agreement between New Hampshire and Dartmouth College was contractual in nature.

Even the state government of New Hampshire considered the aforementioned agreement to be a contract. However, it wanted to construe the agreement in a way that placed the agreement outside of the purview of the contract clause of the Philadelphia Constitution … either in the sense that such agreements were not what the Founders/Framers had in mind when they introduced the contract clause into the Constitution, or in the sense that the idea of a charter fell beyond the horizons of the contract clause and, therefore, the latter did not apply to the issue of charters.

Justice Marshall argued: “Does public policy so imperiously demand their charter at issue remaining exposed to legislative alteration, as to compel us, or rather permit us, to say that these words [he is referring to the contract clause] which were introduced to give stability to contract, and which in their plain import comprehend this contract, must be so construed as to exclude it?” A short while later, Justice Marshall adds: “Do such contracts so necessarily require new modeling by the authority of the legislature that the ordinary rules of construction must be disregarded…?”

There is an issue involving the meaning of words in Dartmouth College v. Woodward, but that issue is not necessarily what Justice Marshall (or Washington and Story) supposed it was – namely, one of contracts. The term “charter” appears in the foregoing extract from Justice Marshall’s decision concerning Dartmouth College v. Woodward (as well in the New Hampshire arguments concerning the matter), and although a considerable segment of several of the judicial opinions concerning Dartmouth College v. Woodward are devoted to arguments that purport to demonstrate how the idea of contracts is relevant to the aforementioned case, one might raise the question of whether, or not, a charter actually constitutes a contract.

Charters might be sought by those wishing to be granted a charter, and the granters of charters might seek an appropriate recipient upon whom to bestow a given charter. However, charters are not offered in a contractual sense.

Charters are permissions with conditions. They are granted by an individual or individuals in power, not offered.

In order for the law of contracts to be applied, one must demonstrate that the three basic elements of a contract are present – that is, offer, acceptance, and consideration. Charters do not contain the element of ‘offer’, and, therefore, they are not contracts.

One can, of course, try to force-fit the idea of a charter into the language of contracts by claiming that whatever social and verbal interaction which take place between the one granting a charter and the recipient of that kind of a charter constitutes some form of offer and acceptance, or that there is an element of consideration present in the granting of a charter since both the one who grants a charter and the one who is granted a charter might enjoy benefits from that sort of a relationship. However, the foregoing way of rendering the idea of a charter is distortive because it completely overlooks the asymmetric character of the relationship between the one who grants a charter and the one who is granted a charter.

To be sure, the party which is granted a charter might, in time, become so powerful that it can leverage its position to change the nature of the relationship and, thereby, come to dominate, in various ways, the one who originally granted the charter. However, the foregoing possibility does not alter the fact that at its inception, a charter was granted by one in power and could, in time, be revoked by that same power.

There is no element of offer in a charter. It is either granted or it is not, and no one has a right to be the recipient of such a grant -- or continue to benefit from such a grant -- by virtue of either a form of acceptance or form of consideration.

To try to construe charters as contracts is – to use the language of Justice Marshall - - to generate a “construction so obviously absurd, or mischievous, or repugnant to the general spirit of the instrument” [that is, a charter] that one is justified in arguing that the contract clause of the Constitution is not an appropriate rule to apply to such an instrument … not because the idea of a charter is an exception to the rule in relation to the issue of contracts but because charters do not constitute contracts at all.

Charters can be granted and revoked at any time at the pleasure of the one who controls the ability to grant charters. Whatever problems arise from the granting or revoking of such a charter will be a matter to be sorted out through the laws governing torts and/or power politics and not through the laws of contracts.

While it might be true – as Justice Marshall claimed – that the contract clause was intended to give stability to contracts, this point is irrelevant to the issuing of charters. The fact that Justice Marshall construed charters as a form of contract merely indicates there were problems surrounding the meaning of words such as ‘contract’ and ‘charter.’

A great deal of mischief has been introduced into society through the confusion which Justice Marshall – and those who concurred with him -- established as a precedent in the form of the Supreme Court decision concerning Dartmouth College v. Woodward. Like the erroneous claim involving the alleged personhood of corporations that was illegitimately associated with the 1886 Supreme Court decision involving Santa Clara County v. The Southern Pacific Railroad, the Dartmouth College v. Woodward decision has been used by corporations to gain unjustified and unwarranted control over various aspects of social and economic life to the disadvantage of actual living human beings.

In Article I, Section 10, Paragraph 1, the Constitution stipulates that no state shall pass “any law impairing the obligation of contracts.” Nevertheless, irrespective of whether one interprets the idea of charters in a contractual or a non-contractual sense, one cannot consider the idea of a contract as an entity unto itself.

The federal government cannot do anything which would interfere with certain kinds of obligation that are entailed by the idea of a contract within the context of a constitutional system. More specifically, the obligation of all contracts within the United States is to serve the purposes and objects for which the Philadelphia Constitution allegedly had been created.

If any given contract will not advance the purposes of tranquility, welfare, justice, defense, and liberty, then such a contract is not fulfilling the obligation which it has to the very document which makes that contract possible. The obligation of contracts cannot be limited to merely the issues involving offer, acceptance and consideration between, or among, a limited group of individuals, but, rather, there is a dimension of obligation entailed by contracts within the United States that must extend to the rest of society.

Whatever the intention of the framers might have been with respect to the meaning of the contract clause of Article I, Section 10, the deciding factor with respect to the legitimacy of any contract is rooted in the nature of the ‘original right’ to which, according to Justice Marshall, all people are entitled. The intention of the framers only becomes relevant if that intention reflects the structural character of the ‘original right’ since all contracts – as is also true with respect to every other aspect of governance -- must be evaluated in terms of the requirements of that ‘right.’

One can impair the obligation of contracts in the limited sense (that is, in terms of the contract considered on its own) under certain circumstances. For instance, if the aforementioned ‘lesser’ sense of obligation impairs the purposes for which the Constitution was established (which are outlined in the Preamble), and/or if the lesser sense of obligation impairs people’s ability to realize the ‘original right’ to which Justice Marshall says everyone is entitled, then there is basis for interfering with contracts made under the foregoing sorts of conditions. In short, contracts – in the foregoing lesser sense -- must adhere to a larger obligation involving the purposes of the Constitution and/or the requirements of the ‘original right’ to which all people are entitled.

 So, to answer what Justice Marshall seemed to consider a rhetorical question in his decision concerning Dartmouth College v. Woodward – namely: “Does public policy so imperiously demand their charter at issue remaining exposed to legislative alteration, as to compel us, or rather permit us, to say that these words [he is referring to the contract clause] which were introduced to give stability to contract, and which in their plain import comprehend this contract, must be so construed as to exclude it?” – the answer is: ‘yes’ … although one could dispense with Marshall’s judgmental use of such words as: ”imperiously.”

The words of the contract clause might have been introduced in order to lend stability to contracts, but the Philadelphia Constitution was introduced – and, here, we will give the benefit of a doubt to the intentions of the participants in the Philadelphia Convention without necessarily supposing that what they did, or the way in which they did it, was legitimate – to stabilize the social/political/economic context in which contracts, among other things, are rooted. Therefore, if any given contract should entail ramifications that are likely to destabilize the purposes for which the Constitution was established or which will deny people access to the ‘original right’ to which they are entitled, then the lesser obligations of that kind of a contract are no longer tenable in the light of the greater obligation that all contracts have with respect to either the purposes for which the Philadelphia Constitution was instituted and/or the ‘original right’ to which all people are entitled.

In McCulloch v. Maryland (1819), Justice Marshall joined the ‘necessary and proper’ clause with the ‘supremacy clause’ to rule that: (a) the idea of a national bank was constitutional and (b) Maryland had no right to tax a branch of that bank in order to undermine the national bank’s viability. More specifically, on the one hand, the ‘necessary and proper’ clause was used to indicate that even though the idea of a national bank had not been mentioned in the Constitution, Justice Marshall was of the opinion that such a bank was both a necessary and proper means through which to realize the purposes of governance, while, on the other hand, the supremacy clause was invoked to argue that since the idea of a national bank was perfectly constitutional, laws establishing it were part of the supreme law of the land and, therefore, states – in this case, Maryland – had to comply with those laws.

Although the general idea of a national bank might be constitutional, it does not necessarily follow that the particular way in which a given form of national bank might be envisioned to operate would also be constitutional. If the operating principles of that sort of bank: did not establish justice, and/or did not promote the general welfare, and/or did not secure the blessings of liberty, and/or did not insure domestic tranquility, and/or did not help provide for the common defense, and/or denied people access to the ‘original right’ to which everyone was entitled, then whatever the necessary and proper character of the general idea of a national bank might be with respect to the issue of governance, then nevertheless, the foregoing sort of a bank would be unconstitutional with respect to the purposes for which the Constitution was established and from which the Constitution supposedly derived its authority.

While the laws passed by the legislature might be interpreted to be constitutional and, as a result, understood to be part of the supreme law of the land with which individuals and states supposedly must comply, the Philadelphia Constitution really has never been proven – beyond a reasonable doubt – to be the supreme law for human beings and, therefore, such laws are entirely arbitrary. Making the claim of supremacy is not necessarily the same thing as being able to demonstrate, beyond a reasonable doubt, that those claims are likely to be an accurate reflection of the nature of reality.

As previous chapters of this book have indicated: The legitimacy of the origins of the Philadelphia Constitution is questionable, and the legitimacy of the ratification process associated with that constitution is questionable, and the purposes and meanings of the Philadelphia Constitution are questionable and the claim of legitimacy concerning the claim that such a constitution is obligatory upon those who did not draft it and did not authorize it is also questionable. In addition, the relation of the Philadelphia Constitution to the ‘original right’ to which all human beings are entitled is also questionable.

With so many issues of: Legitimacy, purposes, and meanings that are considered to be questionable, how can one claim that laws which are understood by some jurists to be constitutional should be considered the supreme law of the land? How do we know – beyond a reasonable doubt – that those jurists or judges have not been operating in accordance with judicial will rather than in accordance with the sorts of judicial judgments that, presumably, should be able to be justified beyond a reasonable doubt?

Justice Marshall deduced – in a very narrow sense -- that the general idea of a national bank was permissible as an expression of the ‘necessary and proper clause. Justice Marshall did not consider – in a much broader sense -- whether, or not, the actual manner in which that bank operated could also be deduced to be necessary and proper.

In McCulloch v. Maryland, Justice Marshall failed to address an issue that was much more fundamental and in need of critical examination – namely, how the national bank actually works and affects – in practical terms -- the purposes for which the Constitution was instituted. Instead, Justice Marshall considered only superficial issues – for example, whether, or not, the general idea of a national bank could be considered to be necessary and proper.

By pursuing the superficial at the expense of the substantial, Justice Marshall established a precedent that has led to much mischief. In effect, Justice Marshall showed how one could engage the Constitution through, for instance, the “necessary and proper” clause or the “supremacy” clause without ever raising the question of how – or if -- such clauses were actually serving the purposes of the Preamble or whether, or not, any given interpretation of those clauses could be reconciled with the ‘original right’ to which he believed everyone was entitled.

To claim that the general idea of a national bank is consistent with, or deducible from, the “necessary and proper” clause is an extremely trivial matter. The existential impact of an operating national bank upon the purposes set forth in the Preamble and upon the lives of ‘We the People’ is an entirely different matter.

Without necessarily wishing to take Maryland’s side in the dispute with McCulloch (a cashier in the Baltimore branch of the 2^nd National Bank who issued bank notes contrary to laws of the state of Maryland), one could raise the question of whose actions – if either -- best served the purposes of the Constitution. Justice Marshall might not have wanted to deal with this sort of a question, but by addressing only the superficial issue about whether, or not, the general idea of a national bank was constitutional, he evaded one of the few issues of potentially substantive value in McCulloch v. Maryland.

Furthermore, Justice Marshall also evaded the question of whether, or not, it was possible for one party – e.g., Maryland – to violate what were considered to be constitutionally valid laws and, therefore, part of the supreme law of the land, and yet nonetheless, in so doing, serve the purposes of the Preamble in a more defensible manner than the actions, policies and programs of the federal government did. This kind of question has implications for, among other things, the issue of civil disobedience and, in the process, raises the question of whose actions best serve the purposes for which the Constitution was supposedly instituted or whose actions best serve the ‘original right’ to which all people are entitled.

Two of the grounds for the decision in the McCulloch v. Maryland case revolved about: (1) whether the potential for the power to tax entailed the power to destroy, and (2) the commonsensical precept that the people considered as a whole could not be presumed to have ceded the sort of power indicated in (1) above to a part of the whole – namely, a state. However, one legitimately could apply the same sort of logic to almost every aspect of governance.

In other words, every power – and not just the power to tax – entails the possibility of being used in such a way that it becomes destructive. This includes the powers that are enumerated in the Constitution.

Surely, as Justice Marshall’s commonsensical logic stipulates, no one should be able to suppose in any justifiable manner that the people considered as a whole have ceded such power (that is, destructive power) to the part – the state government – so that the latter can adversely affect the opportunity of the whole to realize the purposes set forth in the Preamble to the Constitution. The point which Justice Marshall is making in relation to the state of Maryland and its manner of wielding power can be justifiably applied to the federal government and its manner of wielding power, but Justice Marshall does not permit himself to venture into that sort of territory because he believes – quite unjustifiably – that those matters have, in some vague sense, been settled via the ratification of the Philadelphia Constitution.

What is meant by: “necessary and proper,” or “the supreme law of the land,” or “impairing the obligation of contracts,” cannot be known until one understands what is meant by: ‘establishing justice,’ ‘insuring domestic tranquility,’ ‘providing for the common defense,’ ‘promoting the general welfare,’ ‘securing the blessings of liberty’ – for ourselves and our posterity – and having access to the ‘original right” to which everyone is entitled. No part of the Philadelphia Constitution has a non-arbitrary sense until one can – if one can -- resolve the hermeneutical issues surrounding the foregoing phrases in a way that can be shown, beyond a reasonable doubt, to be accurately reflective of the nature of reality.

The way in which Justice Marshall framed the legal issues during his 35 years of adjudicating matters are largely arbitrary … and this is a trend that has continued in the United States among Supreme Court jurists for nearly two hundred more years. Those ways are arbitrary because they never address the underlying, substantive issues of meaning that need to be engaged in those matters … issues which have the capacity to color, shape, and orient not only every aspect of the Constitution but every deduction that might be made in relation to that document.

For example, consider the commerce clause – namely, Congress shall have the power to: “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In Gibbons v. Ogden (1825) Justice Marshall described the power to regulate commerce as being fairly comprehensive, involving the capacity: “To prescribe the rule by which commerce is to be governed.” Furthermore, Marshall defined commerce broadly to encompass all facets of the dynamics among nations, the states, and Indian tribes involving the selling, buying and transporting of goods.

There were, however, several limits to the power of the federal government with respect to the regulation of commerce. One limit concerned the right of states to regulate whatever commerce took place entirely within a given state and, therefore, did not spill over into, or become entangled with the commercial activity of other states.

The other limit on federal authority to regulate commerce was a function of those police powers within a state that might have incidental -- but, nonetheless significant -- impact on commercial activity. For example, laws touching upon matters involving health, inspection, and the like in relation to commercial activity were considered to be under the purview of the states … although Marshall was inclined to place limits on just how much of this sort of incidental impact would be permitted.

While Justice Marshall dealt with the definition of commerce, as well as with what the idea of regulation involved, he was largely silent about the purpose of such regulation – other than that it was one of the powers granted to Congress by the Constitution. However, like every other aspect of Constitution, the lens through which the words of that document should be considered are the purposes set forth in the Preamble for which the Constitution was supposedly ordained and established.

Just as the states must operate within a commercial framework that is determined through the federal government’s power to regulate the rules governing the operation of that framework, so too, the federal government must exercise its powers within a framework that is regulated by the purposes for which the Constitution came into being. Unfortunately, if the nature of those purposes is indeterminate, then so too, is the nature of the commercial regulatory power that is to be exercised by the federal government.

One cannot deduce very much with respect to the nature of the regulatory power of the federal government until one understands the logical or structural character of the purposes set forth in the Preamble. Until one understands what the regulation of commerce has to do with issues such as: justice, liberty, tranquility, defense, and the general welfare, then without being entirely arbitrary, one is not in a position to proceed very far beyond the very general idea that, in some unknown sense, the federal government has the right – for the sake of argument this is being presumed -- to regulate commerce involving foreign nations, states, and the Indian tribes.

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A little over a hundred years after Justice Marshall wrote his last opinion for the Supreme Court, Justice Harland Stone issued a decision concerning Southern Pacific v. Arizona (1945). In the opinion for that case, Justice Stone sought to establish a ‘balancing test’ for deciding cases involving the commerce clause. Justice Stone’s notion of a ‘balancing test’ departed – in certain respects -- from what had been up to that time the standard through which many kinds of commerce clause cases were often decided.

More specifically, one of the standard precedents for commerce clause-related cases was set forth in Cooley v. Board of Wardens (1852). At the heart of this case – which occurred during the tenure of Chief Justice Taney -- is the issue of whether, or not, the precedent which had been established by Chief Justice Marshall – namely, that the federal government had a largely exclusive right (with a few exceptions) to regulate matters of commerce in the United States – precluded the possibility of states having control over the regulation of commerce in certain cases … e.g., those involving pilotage laws.

The Cooley v. Board of Wardens case involved a law in Pennsylvania that required vessels coming into the Port of Philadelphia to use local pilots. If incoming ships did not use local pilots, then the owners of those vessels would be required to pay half the cost of pilotage … a fee that went into a fund intended to help pilots through difficult economic times, as well as to assist them after they retired.

The Supreme Court ruled that the foregoing law was constitutional despite the fact it intruded into the area of regulating commerce … an area that was, for the most part, under the purview of the federal government. Just as Justice Marshall previously had indicated that there were exceptions to the commerce clause – e.g., commercial activity taking place wholly within the confines of a given state -- so too, Justice Curtis ruled in the Cooley v. Board of Wardens decision that while, generally speaking, the federal government did have the authority to regulate commerce, there were various anomalous situations – such as in the case of pilotage – in which states shared a legitimate, concurrent power with the federal government with respect to the regulation of commerce.

Justice Curtis indicated in his decision that when it came to establishing national rules of uniformity concerning certain facets of commerce, the federal government should have the preeminent authority to regulate commerce. However, some aspects of commerce reflected local conditions, and in the latter cases, state governments had a valid standing with respect to certain claims concerning the regulation of commerce according to the requirements of those local circumstances.

The foregoing decision was not really a departure from what Justice Marshall had established in, for example, Gibbons v. Ogden (1825). In fact, in the latter decision, Justice Marshall had specifically referred to pilots operating within the “bays, inlets, rivers, harbors, and ports” of certain states and how the regulating of such commercial activity fell within the purview of states.

According to Justice Stone’s opinion in the 1945 Southern Pacific v. Arizona case his reading of the earlier 1852 Cooley v. Board of Wardens decision was that the Supreme Court was the final arbiter when it came to adjudicating conflicting demands involving national and state interests in those cases where Congress had not passed any relevant legislation. Justice Stone, then, sought to establish a ‘balancing test’ through which the Court would seek to weigh the relative impact of state and national interests upon the “free flow of interstate commerce” in those sorts of cases.

The opinions in: Southern Pacific v. Arizona, Cooley v. Board of Wardens and Gibbons v. Ogden – spanning a period of 125 years – were all off the mark. The Supreme Court, as well as the federal and state governments, did not have any authority to arbitrate issues of commercial activity independently of either the purposes and objects of the Preamble to the Constitution, or the ‘original right’ noted by Justice Marshall in Marbury v. Madison.

The issue of commercial activity is not one of weighing the impact of state and national interests upon the ‘free flow of interstate commerce.’ The issue of commercial activity is not a matter of when the Court could arbitrate cases involving commercial activity (e.g., when Congress had not passed any relevant legislation). The issue of commercial activity is not a function of divvying up the spheres of influence over which the federal and state governments should have preeminent regulatory authority.

Instead, the issue is -- and should have been -- entirely a matter of when, or if, commercial activity serves the principles inherent in the Preamble to the Constitution and/or the ‘original right’ to which Justice Marshall referred … principles and purposes that, supposedly, were the means through which the United States of America was to become established as a democratic nation on the world stage in the first place. If, for example, commercial activity does not simultaneously further – in a way that is demonstrable beyond a reasonable doubt -- the principles of justice, tranquility, welfare, and liberty for all of the people in the United States, then neither the Court, the federal government, the states, nor anyone else has a legitimate – that is, justifiable – constitutional right to regulate commerce for any other purposes.

Alternatively, if commercial activity does not instantiate Justice Marshall’s notion of an ‘original right’ in a manner that is capable of being demonstrated beyond a reasonable doubt as likely to reflect the actual ‘original right’ that is inherent in all human existence, then neither the Court, the federal government, the states, nor anyone else has a legitimate – that is, justifiable – right to regulate commercial activity. The foregoing does not mean that individuals have the right to do whatever they like with respect to commercial activity, for such individuals -- like the judicial, executive, and legislative branches of the federal government, as well as the members of state and local governments – must be able to demonstrate, beyond a reasonable doubt, that they have the right to act commercially in one way rather than another, or the arguments of those individuals are as arbitrary as the ones which are employed by governments … whether national, state, or local.

As noted previously, in Marbury v. Madison Justice Marshall had referred to an ‘original right” to which all people were entitled. He assumed – unjustifiably (i.e., he did not demonstrate that his assumption was capable of being proven beyond a reasonable doubt) – that such a right was necessarily embodied in, and expressed through, the Philadelphia Constitution.

In their respective decisions, Justice Curtis and Justice Stone (each in his own way) assumed -- unjustifiably (i.e., they did not demonstrate that their assumptions concerning the supposed authority, and, therefore, source of obligation of the Constitution were true beyond a reasonable doubt) -- that their judicial opinions should be incumbent upon, or binding on, others (the executive, the legislature, the state governments, and citizens). In other words, neither of the two justices was able to successfully show that the Supreme Court had the authority to determine what the meaning of the Philadelphia Constitution was with respect to, on the one hand, the general principles and purposes set forth in the Preamble, or in relation to the ‘original right’ to which Justice Marshall alluded in Marbury v. Madison, and, on the other hand, commercial activity.

The executive, legislative, and judicial branches of the federal government, as well as the state governments all assume that they have the requisite authority to interpret the meaning of the Philadelphia Constitution, the Preamble, and the ‘original right’ in ways that are binding on citizens.  None of them, however, have been able to demonstrate the legitimacy of those claims to authority beyond a reasonable doubt.

The source of legitimate authority is not a function of superficial issues of procedural jurisdiction – irrespective of whether those deliberations are the result of interpretive efforts by the executive, legislative, and judicial branches, or state and local governments – in relation to some given constitutional document. The source of legitimate – that is, non-arbitrary – authority is a function of substantive issues concerning what is, and what is not, demonstrable beyond a reasonable doubt with respect to the nature of reality.

Justices legislate – and, therefore, exercise judicial will rather than judgment – whenever their decisions cannot be shown, beyond a reasonable doubt,  to be capable of demonstrating that those opinions reflect the nature of reality with respect to issues such as: rights, liberty, justice, and welfare, or with respect to ‘the meanings’ of any of the crucial clauses of the Philadelphia Constitution -- e.g., commerce clause, contract clause, supremacy clause, due process clause, or the necessary and proper clause – relative to the ‘original right’ to which we all are entitled

When justices legislate from the bench – that is, exercise judicial will -- their decisions are arbitrary. In other words, their claims concerning those decisions cannot be justified as giving expression to defensible interpretations of various fundamental principles, meanings, and purposes of democracy … i.e., interpretations which can demonstrate, beyond a reasonable doubt, that their claims to authority -- with respect to placing obligations on the citizenry in relation to expectations concerning compliance with the ‘rule of law’ that is alleged to be inherent in a given constitution -- are legitimate.

Unfortunately, for more than 225 years, Supreme Court justices in the United States have been engaged in one arbitrary exercise of judicial review after another when it comes to their engagement of the Philadelphia Constitution, along with the amendments which, in subsequent years, were added to that document. As a result, we are governed by the arbitrary conventions of men, and, now, women – that is, individuals exercising judicial will -- rather than by the rule of law in any non-arbitrary sense.

None of the foregoing considerations should be construed to mean that judges don’t employ reasoned arguments in order to arrive at their conclusions in relation to this or that case. As they construct their judicial position, they cite precedents – many of which have a questionable pedigree as far as the purposes and principles of the Preamble and/or Marshall’s ‘original right’ are concerned -- and refer, approvingly or disapprovingly, to the arguments of this or that jurist, as well as parse the language of the case before them in terms of those facets of the Constitution which they consider to be relevant to the case before them

In addition, over time, their arguments often exhibit consistency and coherency. As a result, one can see that many jurists have a style of arguing and an inclination to go in certain judicial directions rather than others.

However, being able to put forth reasoned arguments of a coherent, consistent, and logical nature does not guarantee that those arguments will give expression to truths concerning the ultimate nature of liberty, rights, justice, and welfare in a way that can be demonstrated beyond a reasonable doubt. People deserve more than arbitrary theories, perspectives, and ideas when those possibilities are likely to have a major impact on their basic sovereignty.

The role of citizens should not be one of serving as experimental subjects for the theoreticians of governance. If it is unethical: To perform psychological experiments on people without their fully informed consent, or to perform experiments on citizens which could be injurious to their physical, emotional, psychological, economic, and/or spiritual health, then why should the standards of ethical activity be any different in the realm of governance where the stakes are likely to be much higher, as well as likely to be much more permanently debilitating, in one way or another, with respect to citizens.

Consequently -- as previously indicated -- the reason for setting the judicial bar so high (that is, requiring jurists to be able to demonstrate that their opinions are likely to be true beyond a reasonable doubt) is to hold the courts accountable in the same way that constitutionally mandated criminal trials hold the justice system accountable. In other words, in criminal cases, the possible consequences for a defendant who is found guilty are fairly severe with respect to the manner in which liberty, welfare, and tranquility might be adversely affected, and, therefore, the standard for convicting someone requires that all twelve jurors must find, “beyond a reasonable doubt,” that the state has met its burden of proof concerning the issue of guilt.

Similarly, with respect to judicial opinions that allegedly give expression to the meaning of the Philadelphia Constitution, having nine jurists all agree that such-and-such is the proper interpretation of that document is not enough. Such agreement must be established beyond a reasonable doubt, and, as pointed out previously, the idea of: ‘beyond a reasonable doubt’ means that the ‘facts’ of a case must be  shown to have a demonstrably significant relationship with the actual nature of liberty, justice, welfare, rights, and the like … not in a theoretical, possible, practical, utilitarian, majoritarian, or plausible manner but in an existentially substantive way that shows how one’s interpretation of the facts of a given judicial case reflect the actual character of the universe.

If jurists cannot meet the foregoing standard, then they have no non-arbitrary basis through which to justify their claims of legitimacy with respect to their judicial perspective and, consequently, they have no business engaging in judicial review. The ‘original right’ to which John Marshall alluded in Marbury v. Madison – a right which I equate with my notion of ‘basic sovereignty’ (that is, the right to have a fair opportunity to push back the horizons of ignorance) -- demands a much higher standard of protection than the Supreme Court has been prepared to offer – or, in truth, has been capable of offering -- for the last several hundred years.