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International Perspectives

International perspectives examine how constitutional principles have been interpreted and applied around the world.

The subject of the judiciary provoked little discussion at the Convention because they were merely affirming the traditional role the courts had always played in upholding justice. For instance, the Virginia Plan had ensured the trial by jury from the outset, and its necessity was never questioned by anyone. Dickinson used the jury trial as an example of the wisdom that could only be gained through experience: It was not reason that discovered, or ever could have discovered, the odd, and, in the eyes of those who are governed by reason, the absurd mode of trial by jury. Accidents probably produced these discoveries, and experience has given a sanction to them (Aug. 13). Well before the United States Constitution was adopted, the sanctity of the jury trial had been enshrined in all of the state constitutions. The right to be tried by a jury of one's peers was a development in legal theory which had proven so effectual at protecting individual rights that by 1787 no American dared question it.
Annotated by kcbooz on September 05, 2013

Of those questions that did require deliberation about the judiciary, the prevailing concern that informed the Framers’ choices was the need to preserve the independence of the judges.  Wherever possible, they wished to elevate the judges above the noisy partisanship of the political process.  Whereas a legislature should possess a comprehensive understanding of and sympathy with local interests, the judiciary should act with total objectivity toward those interests.  The Constitution therefore prescribes that judges should be appointed by the two most stable elective offices, the President and the Senate; they should hold their office during good behavior (which is effectively a lifetime appointment); and their compensation should not be diminished during their tenure.  If the Framers could succeed in creating a branch of government beholden to no authority but the law, then the judiciary could be trusted to uphold the rightful claims of a weak party when the legislative process might fail to do so.  As Gouverneur Morris later argued in the Senate, without the federal court system, “the citizen is deprived of those rights for which he stipulated, or rather those rights verbally granted would be actually withheld; and that great security of our Union, that necessary guard of our tranquillity, be completely paralyzed, if not destroyed” (January 14, 1802).  The judge’s ability to defy the other branches of government and even an oppressive majority would therefore depend upon their independence.

Annotated by kcbooz on September 05, 2013
Under the Articles of Confederation, no permanent federal judiciary existed. Judicial bodies were appointed on an ad hoc basis by Congress, or Congress addressed judicial issues on its own. The Constitution provides a separate judicial branch of government. In outlining the scope of federal judicial power by defining the types of questions and disputes the federal judiciary should address, the Constitution defines what issues are inside or outside the judiciary's purview. The federal courts are supreme when deciding cases that are appropriately within their scope of review. Consequently, they may overrule state courts with respect to those issues.
Annotated by kcbooz on September 05, 2013

The formation of the judicial branch occasioned less debate in the Constitutional Convention than any other branch of government.  Indeed, the only real controversy was deciding whether federal courts – and especially “inferior” tribunals spread throughout the union – were really necessary to a government of such limited scope.  Those delegates who wanted to keep the central government weak had accordingly argued that legal controversies should almost always be tried in state courts.  The vast majority at the Convention, however, believed that the absence of a proper Executive and Judiciary in the Articles of Confederation was its primary defect.  “An effective judiciary establishment,” insisted James Madison, “was essential.  A government without a proper executive and judiciary would be the mere trunk of a body, without arms or legs to act or move” (June 5).  Article III, which establishes the federal judicial power, is far more concise than those articles which establish the other two branches.  The reasons for this brevity, both in the debates at the Convention and in the text of the Constitution, are twofold.  First, judicial power was already generally understood and uncontroversial during this period.  The colonists had largely adopted the legal traditions and precedents from Great Britain and their own colonial experience.  Second, the judicial power was generally considered the weakest; it therefore, was the least feared branch of government.

Annotated by kcbooz on September 05, 2013

Though the President may only be removed from office for high crimes and misdemeanors, the meaning of what constitutes such offenses is dependent on the House when impeaching and the Senate when convicting.  Consequently, it is technically possible for both houses to impeach and convict the President for something other than high crimes and misdemeanors.  However, the institutional prestige of both bodies would almost certainly be greatly diminished in the process.

Though Andrew Johnson and Bill Clinton are the only two Presidents to be impeached, the rationales for those respective proceedings had very different bases.  President Johnson’s impeachment involved a political matter that came to a head when Johnson removed Secretary of War Stanton in 1868, in an apparent violation of the Tenure in Office Act.  This Act limited the circumstances under which the President could remove officials whose jobs were subject to the advice and consent of the Senate. It can be said that President Johnson’s ultimate vindication proved that impeachment would not succeed when used on a political basis. President Clinton’s impeachment involved a personal matter that became a judicial matter when he gave false testimony under oath in a case prosecuted when he was in office.  Though Johnson’s and Clinton’s cases were very different, they both had to be addressed under the general language of the impeachment clause.  

Annotated by kcbooz on September 05, 2013

In Athens, though it was considered to be one of the most liberal democracies of the ancient world, a citizen had to be the offspring of two Athenian parents in order to participate in the political councils.  A man might be considered a resident alien, politically, even though his lineage could be traced in Athens for generations.  Common law in Europe often expanded political rights beyond what they had been in the ancient world; though traditionally, European countries placed great emphasis on the necessity of being native-born.  People who had immigrated from another country would generally not qualify for full citizenship rights, because they would not be deemed sufficiently loyal to their adopted fatherland. 

During the Constitutional Convention, it was generally agreed that American policies would be more liberal than their European forebears.  Gouverneur Morris emphasized “the privileges which emigrants would enjoy among us, . . . observing that they exceeded the privileges allowed to foreigners in any part of the world.”  Nonetheless, some preference for natural born citizens and lengthy residencies in one’s homeland survived.  Morris expressed some suspicion for “those citizens of the world . . . he did not wish to see any of them in our public councils.  He would not trust them. The men who can shake off their attachments to their own country can never love any other.”  James Wilson, who was himself an immigrant from Scotland, expressed some chagrin at “his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making. . . .  To be appointed to a place may be matter of indifference.  To be incapable of being appointed is a circumstance grating and mortifying.”  However, the greater number of delegates wanted to restrict the most powerful office in the United States, the presidency, to “a natural born Citizen” (Art. II, Sec. 1).  George Mason pointed out that were it not for the circumstance that many foreigners “had acquired great credit during the revolution,” he would be in favor of restricting even “the Senate to natives” (Aug. 9).  It remained the case that the United States Constitution would give more liberal privileges to recent immigrants than anywhere in the Old World.

Annotated by kcbooz on September 05, 2013

In Athens, though it was considered to be one of the most liberal democracies of the ancient world, a citizen had to be the offspring of two Athenian parents in order to participate in the political councils.  A man might be considered a resident alien, politically, even though his lineage could be traced in Athens for generations.  Common law in Europe often expanded political rights beyond what they had been in the ancient world; though traditionally, European countries placed great emphasis on the necessity of being native-born.  People who had immigrated from another country would generally not qualify for full citizenship rights, because they would not be deemed sufficiently loyal to their adopted fatherland. 

During the Constitutional Convention, it was generally agreed that American policies would be more liberal than their European forebears.  Gouverneur Morris emphasized “the privileges which emigrants would enjoy among us, . . . observing that they exceeded the privileges allowed to foreigners in any part of the world.”  Nonetheless, some preference for natural born citizens and lengthy residencies in one’s homeland survived.  Morris expressed some suspicion for “those citizens of the world . . . he did not wish to see any of them in our public councils.  He would not trust them. The men who can shake off their attachments to their own country can never love any other.”  James Wilson, who was himself an immigrant from Scotland, expressed some chagrin at “his being incapacitated from holding a place under the very Constitution which he had shared in the trust of making. . . .  To be appointed to a place may be matter of indifference.  To be incapable of being appointed is a circumstance grating and mortifying.”  However, the greater number of delegates wanted to restrict the most powerful office in the United States, the presidency, to “a natural born Citizen” (Art. II, Sec. 1).  George Mason pointed out that were it not for the circumstance that many foreigners “had acquired great credit during the revolution,” he would be in favor of restricting even “the Senate to natives” (Aug. 9).  It remained the case that the United States Constitution would give more liberal privileges to recent immigrants than anywhere in the Old World.

Annotated by kcbooz on September 05, 2013

The Electoral College appears today like a clumsy, complex, Rube Goldberg-like contraption, and it is difficult for many to grasp why it had ever appeared like the most attractive option to the delegates at the Constitutional Convention.  To begin with, it must be recognized that the manner of selecting the President has always been considered an especially intricate business.  If we add together all the parts of the Constitution that specify how this office should be filled – Article II, Section 1, plus Amendments XII, XX, XXII, XXIII, XXIV, and XXV – we can see that more space and verbiage is devoted to this question than any other individual topic.  The Electoral College will begin to make sense if we consider the different aims that the Framers wanted for this office.  They wanted a President who 1) possessed exceptional merit; 2) would be eligible for reelection; and 3) would be unable to corrupt whichever body was designated to select the next president while his predecessor was still in office.The Framers considered almost every possible permutation of selecting the President: a choice directly by the people, by the state legislatures, by the states’ executive branches, by the Lower House of the federal government, by its Upper House, and by some combination of the above.  They even considered a complicated process whereby a small group from the national legislature would be chosen by lot, and then, like a college of cardinals, the legislature would make their selection immediately before there could be any danger of outside influences.  In each case they were dissatisfied, because they believed that at least one of their aims would have to be sacrificed.  On the one hand, they wanted a President to be eligible for reelection, because, first, the hope of continuance in office would make him more likely to be honest while he served; and, second, there might be times when the most capable man in the country was serving as President, and it would be crucial that he remain in office, especially during periods of upheaval.  Consider the consequences if President Lincoln had not been eligible for a second term.  On the other hand, if a sitting President were eligible for reelection, then the Framers feared that he would use the power of his office to corrupt the body tasked with selecting his successor.  If that body of electors were small (such as one or both of the houses of Congress), then its members could be bribed with political patronage.  The British system had been rife with this form of corruption, and many Framers had wanted to avoid that possibility under the U.S. Constitution.  Yet if the President were selected by a large body (such as the citizens at large in a popular vote), then the President might use the flattering arts of demagoguery – promises of bread and circuses – to get elected.  The Framers frequently pointed out that demagogues had ultimately destroyed most of the ancient republics. And many more were worried that presidential hopefuls would become demagogues if they had to court the people for the office – making extravagant promises that would win immediate support at the expense of the long-term good of the country.  Charles Pinckney predicted that the people were sure to be “led by a few active and designing men,” and Hugh Williamson compared an election by the people to “an appointment by lot” (all speeches on July 17).  Furthermore, the small states were concerned that their influence would be next to nothing in a popular election.The Electoral College seemed to promise everything that the Framers were hoping for.  The selection of electors (whether by state legislatures or the people of each state) would bring forth the most discerning men of each state, and these men could be trusted to choose a candidate of superior merit.  Because the President could never know in advance who the electors would be, he would never have the opportunity to corrupt them.  And because there was no opportunity for corruption, it would be safe to allow the President to serve consecutive terms in office.  In addition, the Electoral College could be weighted in such a way as to account for both the federal and national principles embodied in the House and the Senate, and also account for the three-fifths rule established to account for slavery among the states.  When, at the very end of the Constitutional Convention, the Electoral College was suggested, it seemed to be an answer to all of their concerns.   

Annotated by kcbooz on September 05, 2013

Article VII stipulated that the approbation of only nine states was necessary to establish the Constitution among those states.  All thirteen states that were under the Articles of Confederation eventually ratified the Constitution.  There was a quick succession of states, with Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut that ratifying within four months after the Convention had adjourned.  The adoption of the Constitution seemed to be moving quickly, and the opposition, though formidable, was poorly organized.  As the Massachusetts Ratifying Convention opened and progressed, however, the smooth process ended.  The contests there, as well as in Virginia (which ratified on June 25, 1788) and New York (which ratified on July 26, 1788), were bitterly fought and achieved ratification only by the narrowest of margins.  Nonetheless, ratification had already been assured when New Hampshire – the ninth state – ratified the Constitution on June 21, 1788. Later, in both North Carolina and Rhode Island, the process proved even more difficult.  After two separate conventions in North Carolina the Constitution was ratified on November 21, 1789.  Initially the Constitution was rejected in Rhode Island in a statewide referendum in 1788. It was eventually ratified on May 29, 1790, after the United States threatened to place tariffs on Rhode Island’s exports, since it could be deemed a foreign nation subject to commercial regulation under the Constitution.  

Annotated by kcbooz on September 05, 2013

The amendment process outlined in Article V of the Constitution makes it much easier to amend than the unanimity required by the Articles.  Still, some would have preferred a constitution that was even more responsive to the changing will of the people.  Thomas Jefferson once asked in a letter to James Madison “whether one generation of men has a right to bind another” (Sept. 6, 1789).  His own opinion was that they did not.  Later he came to the opinion that constitutions should be automatically reviewed and revised every nineteen or twenty years by a majority of the people.  Although he admitted that he was “certainly not an advocate for frequent and untried changes in laws and constitutions,” the need to adapt to changing circumstances, and the right of the majority in every generation to decide for itself how it would be ruled, were considered by him to be of paramount importance (TJ to Samuel Kercheval, July 12, 1816).

            James Madison in Federalist No. 49 respectfully disagreed with his friend’s arguments.  Although he agreed that a Constitution needed to be changeable – in order to rectify unforeseen defects or to adapt to new circumstances – he believed that these changes should be made infrequently and with more difficulty than mere majoritarian will.  In republican forms of government, the greatest danger to individual liberties would always come from passionate and unjust majorities.  Various obstacles therefore needed to be erected in order to check an unruly majority, and one of those checks was a stable Constitution.  In addition, every government depended on the “prejudices” of the people – their patriotism – for its support and maintenance.  Frequent appeals to the people to reevaluate their Constitution “would, in great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.”  Madison believed that stable republican governments required more than that the “will” of the majority would predominate; rather, governments must be ruled by the people’s rationality: “it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government” (Federalist No. 49).  A lengthy and difficult amendment process would promote the rule of reason over passion.

            Both Jefferson and Madison recognized the need for stability, flexibility, and popular rule within constitutional governments, but they differed with regard to the ordering of these goals and the best means for achieving them.  Madison, like Jefferson, had wished that amendments to the Constitution could be made more easily than their counterparts under the Articles.  Yet he wished for an amendment process that was more difficult to navigate – and therefore more deliberative and less passionate – than what he feared Mr. Jefferson’s proposal would yield.

Annotated by kcbooz on September 05, 2013