Implementation & Interpretation

Support for the New Constitution

Almost immediately upon ratification of the Constitution, the nation experienced a "wave of prosperity" that contributed significantly to widespread support for the new government. This support, born of a people "giddy with good fortune," soon developed into a much more profound support, even worship of the Constitution.1

However, as important as popular support for the Constitution was for the prospects of the new nation, it was at least equally important to implement the provisions outlined in the Constitution itself, to make the promises of its supporters reality. Indeed, some have called the First Congress the "second Constitutional Convention" because it was there that the new government was given definition, shape and life.2 These efforts were altogether appropriate considering the fact that fifty-four of the fifty-nine members of the House of Representatives had also been delegates to the original Convention.

Implementing a New Government

The last item of business of the Confederal Congress was to call for elections in the states to choose a President, Vice-President and Representatives and Senators from each state. It also declared that the newly elected Congress should meet on March 4, 1789. It wasn't until April 6th, however, that a sufficient number of members of Congress were present to conduct official business. On April 30, 1789, George Washington was inaugurated as the first President of the United States of America. The Supreme Court did not convene for its first session until February of the following year. From these less than auspicious beginnings sprang the Constitutional government of the United States of America.

Washington's Precedents

It is difficult to understate the importance of the widely-held assumption that George Washington would be the first President of the United States of America. Of Washington's assumption of the mantle of Chief Executive, an Antifederalist historian declared:

Had any character of less popularity and celebrity been designated to this high trust, it might at this period have endangered, if not proved fatal to the peace of the union. Though some thought the executive vested with too great powers to be entrusted to the hand of any individual, Washington was an individual in whom they had the utmost confidence.3

Indeed, in virtually every action he took as President, Washington established precedents that would define the future role of the Chief Executive, its relationship with the other branches and how the people would view the Presidency. From his first day in office, Washington made it clear that he did not want to be treated as a monarch, as many wanted to treat him. To emphasize his status as a "common man," he wore a suit of "brown broadcloth" to his inauguration ceremony, instead of something more lavish. While he asked that he not be paid for his service as President--he had taken no compensation for his service as Commander of the Revolutionary Army--the Congress insisted on paying him $25,000 a year because the Constitution mandated a "fixed compensation" for the President. Perhaps more importantly, Washington sent clear signals that the President would not be the one to take the lead in the new government. When the Congress failed to assemble as scheduled in March, Washington waited at home until a quorum was assembled. Only then did he leave for the Capitol (located in New York at the time) for his inauguration.

In the performance of his Constitutional duties, Washington also established important precedents for future Presidents to follow. When asked by France to support its revolution and its war against other European nations, Washington issued the first executive order, declaring United States neutrality. He also acted decisively in response to the Whiskey Rebellion, in which a number of radicals violently protested the taxation of whiskey. In striking contrast to the response to Shay's Rebellion, the states readily complied when Washington ordered the formation of a militia. Nearly 13,000 men were assembled and Washington rode at their head. Seeing such a show of force, the rebellion disappeared.4 Washington also used the veto power on one occasion during his presidency, if for no other reason, to assure that its use would be available to future presidents.

Interpreting the Constitution

While it is easy to take for granted many of the relationships and customs that have evolved in the American Constitutional system, numerous substantive issues had to be decided early in the nation's life under the Constitution. Just as Washington's actions brought stability to the nation and set the standard for those that followed him, the Congress and the Supreme Court were, with each action they took, establishing patterns of behavior that gave the words in the Constitution practical meaning. In many ways, the occupants of each branch of the national government were feeling their way in the new system of government, establishing their independent roles as well as their relationships with the other branches. The same can be said of the relationship between the states and the national government. Signaling the important role it would play throughout the nation's history in interpreting the Constitution, the Supreme Court issued decisions in two landmark cases that  both clarified the extent of the powers of the national government and reiterated the supremacy of the Constitution itself.

Marbury vs. Madison

In 1800, the Jeffersonian Republicans won the presidency and control of the Congress from the Federalists. However, before leaving office, President John Adams, acting with the Federalists still in Congress, created dozens of federal judgeships and attempted to fill them before leaving office. By the time Jefferson assumed the presidency, however, several of the judicial commissions had not been delivered. One of the first acts of the newly elected Congress was to repeal the Judiciary Act of 1800 that had created the judgeships and James Madison, the new Secretary of State, refused to deliver the commissions.

One of the appointees caught in the middle of the political skirmish was William Marbury, who had been appointed to be a justice of the peace. Not having his commission in hand, Marbury could not assume his judicial post. Believing that he was entitled to the commission, he sued Madison, asking the Supreme Court to issue a writ of mandamus ordering the Jefferson administration to deliver the commission.

John Marshall, the Chief Justice of the Supreme Court immediately recognized the precarious position of the Court in responding to the case. If, on the one hand, the Court agreed with Marbury and issued the writ, the Jefferson Administration would almost certainly ignore the order and the Court would be left looking weak and foolish. On the other hand, if the Court refused to issue the writ, it would appear to be caving to political pressures in letting a President defy the law.

In one of the most significant and famous Supreme Court decisions ever written, Marshall, writing for a unanimous Court, found a way out of the apparently no-win situation (see Marbury v. Madison). Marshall first declared that Jefferson--and his Secretary of State--had no legal authority to withhold the commission. The Supreme Court, however, had no authority to issue the writ that Marbury had requested. In the Judiciary Act of 1800, Marshall argued, the Congress had unconstitutionally expanded the jurisdiction of the Supreme Court in giving it the authority to issue such writs. Because that portion of the Act was contrary to the Article III of the Constitution, it was invalid on its face. Consistent with Hamilton's declarations in The Federalist No. 78, Marshall further declared that because the Constitution is law, the Judiciary is the branch that should interpret it, not the Legislative or the Executive.

The decision in the case was breathtakingly brilliant. Marshall had managed to tell Jefferson that he had broken the law but, because the Court had no jurisdiction over the matter, Jefferson had no Court order to disobey. At the same time, Marshall had set the precedent of judicial review, the ability of the Supreme Court to declare acts of Congress "unconstitutional." While the Court did not use this power again until the Dred Scott decision in 1857, it declared several state laws unconstitutional in the intervening period.

McCulloch v. Maryland

Another significant constitutional dispute arose during the Madison Administration, this time over the establishment of a national bank, and once again the Supreme Court was called on to interpret the Constitution. In a continuation of a seemingly endless debate about the necessity of having a national bank, the Bank of the United States was re-chartered in 1816 (its charter had been allowed to expire in 1811). By that time, the idea of a national bank had become a symbol of animosity between creditors and debtors and between the national government and the state governments. In response to the Bank's re-chartering, several states attempted to eliminate local branches of the bank in their states. In Maryland, the state government tried to tax the state's only branch of the national bank out of existence by imposing a tax of $100 per bank note issued by it. The cashier at the bank refused to pay the tax and was subsequently sued in Maryland state court. Not surprisingly, the state court ruled in Maryland's favor.

After the Maryland Court of Appeals upheld the original decision, it was appealed to the Supreme Court. Once again it was Chief Justice Marshall who penned the Court's decision (see McCulloch v. Maryland). In the decision, Marshall wrote that the dispute hinged on two questions. First, does the Congress have power to create a national bank? Second, if the answer to the first question be in the affirmative, does the state of Maryland have the authority to tax that bank?

In response to the first question, whether the Congress had the authority to charter the Bank, Marshal referred to the "necessary and proper" clause in the Constitution, declaring that not every power of the Congress is spelled out in painstaking detail in the Constitution. The "necessary and proper" clause was not intended to strictly limit the power of the national government, Marshall argued, but it is a provision "made in a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs." So long as the aims of the Congress be "legitimate [and] within the scope of the Constitution," all of its actions "which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional."

Having concluded that the creation of the Bank of the United States was within the Constitutional authority of the Congress, Marshall then turned to the question of whether Maryland had the authority to tax the bank. Declaring that the "great principle" of the Constitution is that "laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them." If a state were allowed to ignore the laws passed by the national government consistent with the Constitution, it would be, in effect, controlling the national government. Moreover, if a state could tax an activity of the national government, in this case the national bank, it had the power to destroy the national government. Such would clearly be a violation of the supremacy clause of the Constitution. Maryland's tax on the Bank, therefore, was unconstitutional.

A Living Document

The United States Constitution is the longest surviving written Constitution in the world. It brought order to this nation after the Revolutionary War and guided it through the Civil War, two World Wars, the Great Depression, the Civil Rights Movement and dozens of other crises. It remains the foundation of American government today but it can do no better for the people than they do for themselves. It cannot make bad or even indifferent people into model citizens. As John Marshall suggested, it merely provides a framework for government that can evolve, grow or contract as the people and the times change. It is the people's Constitution and, as such, the way it is interpreted and implemented is a reflection of the values and interests of the people and their leaders. To expect the Constitution to provide more than that, unfortunately, is wishful thinking.

1. Edward S. Corwin, "The 'Higher Law' Background of American Constitutional Law," in Classic Readings in American Politics, ed. Pietro S. Nivola and David H. Rosenbloom (New York: St. Martin's Press, 1990), 432-3.
2. Forrest McDonald, The American Presidency: An Intellectual History (Lawrence, Kansas: Kansas University Press, 1994), 218.
3. Quoted McDonald, 209n.
4. For more on Washington's tenure as President, see McDonald's The American Presidency, Chapter 9, "The Washington Administration."