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Baldacchino – Revitalizing American Constitutionalism

American Constitutionalism

President, National Humanities

Philadelphia Society
Philadelphia, Pennsylvania
April 13, 2002

purpose at this meeting of the Philadelphia Society is to reflect on sources of
American renewal. Within this context, I have been asked to suggest steps to
restore some semblance of vitality to a once vibrant constitutionalism that has
become moribund.

the early years of the Republic, the Constitution was among the genuine
determinants of the nationís public policies. The better officials in all
three branches of the national government actually supported or opposed
governmental actions based on whether, in their judgment, the actions were to be
found among the federal governmentís delegated powers.

politicians pay lip service to the Constitution. But rarely, do we witness
public officials voting against policies that they would otherwise favoróor
vice versaóon constitutional grounds. Hence any reawakening of effective
constitutionalism will require a fundamental change in Americaís predominant
political ethos. But before such change can occur, images of alternative reality
must be conveyed that are sufficiently appealing that the public and its leaders
will be motivated to transform them into actual historical reality. Those images
must project a workable constitutionalism that promises a better society.

are such potential realities to be discovered? They will not be found anywhere
neatly packaged and ready for use. Such potential modes of existence must be
fitted, first, to our permanent needs,
but, second, and equally important, to the changing historical circumstances in
which our quest must occur. This blending of oneness in change, of the universal
and the particular, requires the active working of what Irving Babbitt called
the higher imagination.

sound imagination does not work in a vacuum. For the changes it envisions to be
practical, not utopian, it must find its inspiration in the great works and
deeds of history. If we hope to stir a new awakening of constitutionalism in
this country, a good first step is systematically to immerse ourselves in
American constitutional history, along with the English history from which it
emerged. For the past several years the National Humanities Institute has been
conducting just such a project, and I have participated in it along with other

myself at least, studying the constitutional history of our country in-depth has
been a startling experience. Though I had been aware that our system had strayed
from the strict path of constitutionalism, I did not know how flagrantly our
rulers violateóto the point of inversionóthe Constitution that is our

purposes of illustration, I shall give three examples.

will be surprised to learn that the Constitution allows the states potentially
limitless powers, known as powers of police, that, although recognized by the
early courts as wholly immune from federal interference, are now usurped with
abandon by the federal government. Considered a direct attribute of sovereignty,
these powers include the authority to make all laws within a stateís territory
for the protection of public order, safety, health, welfare, and morals.
Included are laws prohibiting or regulating murder, violence, fraud, obscenity,
intoxicants, narcoticsóthe list is potentially endless.

Justice John Marshall, though a renowned champion of strong national governance,
declared in several landmark decisions that the general government had no jurisdiction over such matters except where authorized by an
explicit grant of power, such as the power to punish counterfeiting given in
article 1, section 8. Yet today the general government routinely asserts its
dominance over health, education, welfare, the environment, public safety,
criminal justice, and other matters that, constitutionally, are police powers
belonging exclusively to the states.

second example concerns immigration. In Federalist
No. 2
, Hamilton cites as essential supports for a union of the states
ìthat Providence has been pleased to give this one connected country to one
united peopleóa people descended from the same ancestors, speaking the same
language, professing the same religion, attached to the same principles of
government, [and] very similar in their manners and customs.î

the federal government is failing to slow the flood of immigrants who exhibit
little or no interest in making Americaís traditional institutions and culture
their own.

concern over immigration mounts, most Americans are unaware that, under the
Constitution of the Framers, the states enjoyed extensive authority to regulate
immigration into their territory.

the 1849
Passenger Cases
a divided Supreme Court split four-to-four on where
the power to regulate immigration lies. The division, however, was not over
whether the states could regulate
immigration but whether the federal government
could do so.

the four justices who did support a federal role went to great lengths to stress
that no power of the federal government could compel the states to admit
undesirable aliens, such as, in the delicate formulation of Justice Grier,
ìlunatics, idiots, criminals, or paupers.î

Chief Justice Taney and three other justices insisted that the regulation of
immigration, being a police power, was a matter to be addressed solely
by the states
. As Justice Woodbury explained, ìit is for the State . . .
to decide on what is sufficient cause for . . . [excluding
aliens],ówhether . . . sickness or crime . . . , danger of
pauperism, danger to health, danger to morals, danger to property, danger to
public principles by revolutions or change of government, or danger to

today the federal government controls all aspects of immigration. Federal judges
routinely deny the states any means either of controlling the admission of
aliens into their territory or of protecting their citizens from resulting tax
burdens or other ill effects.

to the third and final example, perhaps no other regulations of the federal
government are more harshly administered than those concerning the use of land.

many Americans, including members of Congress, donít know is that the Framers
intended that the states, not the general government, would possess ultimate
control over all land within their territory. To assure that this always would
be so, the Framers inserted in the Constitution a requirement that the general
government obtain permission from the state legislature before purchasing any
property within a state to be used for federal purposes.

1, section 8, clause 17, which gives the federal government exclusive
jurisdiction over the District of Columbia, allows it ìto exercise like
Authority over all Places [and here are the significant words] purchased
by the Consent of the Legislature of the State in which the Same shall be
for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful

this was done is spelled out explicitly in a few brief paragraphs of Madisonís
Notes of Debates in the Federal Convention. The relevant passage is
as follows: On the clause:

[2:510; Madison, 5 Sept.]
exercise like authority over all places purchased for forts &c.

Mr. Gerry contended that this power might be made use of to enslave any particular
State by buying up its territory, and
that the strongholds proposed would be a means of awing
the State into an undue obedience to the Genl. Government

Mr. King thought himself the provision unnecessary, the power being already
involved: but would [and here are the key words] move to insert after the word
ìpurchasedî the words ìby the consent of the Legislature of the Stateî This
would certainly make the power safe.

Govr Morris 2ded. the motion, which was agreed to nem: con:. . . .
[Emphases added]

is the entire record of the origins of this provision. So that the states would
not be intimidated "into an undue obedience to the general
government," the latter was made dependent on the states for the
acquisition of property in their territory.

more than eighty years, when the general government wanted to build a fort or a
lighthouse or a post office, Congress would pass a statute requesting that the
appropriate state legislature cede land to the general government for the
purpose. The state legislature, at its discretion, would approve, and, if
suitable property was not available on the open market, the legislature would
use its reserved power of eminent domain on behalf of Congress, the latter
having no such power.

then in 1875 the Supreme Court’s decision in Kohl
v. U.S. literally inverted the
previously existing relation of the two levels of government concerning land

the Court, Justice Strong wrote:

powers vested by the Constitution in the general government demand for their
exercise the acquisition of lands in all the States. These are needed for forts,
armories, and arsenals, for navy-yards and light-houses[, etc.] . . .
If the right to acquire property for such uses may be made a barren right by the
unwillingness of property-holders to sell, or
by the action of a State prohibiting a sale to the Federal government
, the
constitutional grants of power may be rendered nugatory, and the government is
dependent for its practical existence upon the will of a State . . . .
This cannot be. [Emphasis added.]

Court completely ignored that this dependence of the general government on the
states was precisely what the Framers had intended.

went on to argue that, as the states derive the power of eminent domain from
their sovereignty, the general government should have the power as well, since
it ìis as sovereign within its sphere as the States are within theirs.î This
last inference is particularly disingenuous. For part of the statesí retained
sphere of sovereignty was the ultimate control of all land within their borders
except for any that had been ceded. It is impossible to give ultimate
control over state territory to the federal
government and still to leave ultimate control with the
. Recognizing that this power could not reside in two places
and believing that to put it in the general government would make hash of the
statesí reserved powers, the Framers made a conscious decision to leave
eminent domain where it had beenówith the states. In its ruling in Kohl, the Supreme Court brazenly flouted this explicit intention of
the Framers.

the Framers’ worst fears were realized. Over the next 21 years, the previous
sovereignty of the states was obliterated root and branch. The following summary
of the Supreme Courtís 1896 ruling in Chappell
v. United States, taken from FindLaw,
says all we need to know:

fact that land included in a federal
reservoir project
is owned by a state,
or that its taking may impair the stateís tax
, or that the reservoir will obliterate part of the state’s
and interfere with the state’s
project for water development and conservation, constitutes no
to the
of the land by the United States. [Emphases added.]

then, are three examples of far-reaching changes that have been inflicted
unlawfully on our nationís constitutional practice. Many others could be
cited. What is important is that these changes have all but destroyed the
federalism and the government of checks and balances that the Constitution was
meant to guarantee.

has it come to this? The most obvious culprit has been the Supreme Court.
Hamilton, in Federalist 78, wrote that
of the three branches the judiciary would ìalways be the least dangerous to
the political rights of the Constitution,î because it was ìto have neither
FORCE nor WILL, but merely judgment." Yet if the Courtís incredible
ruling in Kohl is not an example of
will rather than judgment, I do not know what would be. Will may be the least of
it; the murder of federalism with malice aforethought might be a more apt

might such judicial activism be discouraged or its effects minimized? In keeping
with the judiciaryís responsibility to exercise judgment, not will, I think
the Court itself might do well to adopt as a rule of jurisprudence that, in
matters of constitutional interpretation, older precedents be given more weight
than recent ones in the absence of compelling evidence that the former were in
error. This rule would be the converse of that governing interpretation of
statutes, which holds that, where laws are in conflict, the most recent act of
the legislature is controlling.

the courts are not entirely to blame. Ours was to be a government of checks and
balances, in which all three branches were to protect the Constitution by
jealously guarding against abuses by the others. But, with few exceptions, the
intended competition among the branches and levels of government has broken

a way for Congress to reassert its duty to the Constitution, I proposed several
years ago that it might establish committees (or one joint committee) on
delegated powers, with responsibility for determining the constitutionality of
proposed legislation before it would be allowed to go to the floor.

similar purpose might be served in the executive branch by the appointment of a
constitutional advisor to the president. Significantly, the mechanism by which
the president can promote a revival of effective constitutionalism is already
present in his veto power. While the Constitution provides that the president
may object to a measure for any reason, I think it is significant that the first
six presidentsófrom Washington through Quincy Adamsóused the power
exclusively to register constitutional objections. And not once during all of
those years was a presidential veto overridden by Congress. In our time, it
might be helpful if the president, in future veto messages, would formally
distinguish between objections of a constitutional nature and those of a
prudential nature.

then, are a few examples of how knowledge of our constitutional past can alert
the mind and imagination to new possibilities. Revisiting the historical record
and entering the outlook of the Framers can be a source of inspiration. We may
not want to return to the prescriptions of the Framers in every detail, but
awareness of their thinking is a prerequisite for revising their ideas via the
amendment process. Without it we do not even know what the Constitution was and

I might make one final observation, as the president of a humanities institute,
it is that no amount of factual evidence concerning the true meaning of the
Constitution will be effective absent an elevation of our nationís culture.
Specifically, more must be done through the arts and humanities to nourish the
nationís moral imagination. Constitutions, after all, are mechanisms of
self-restraint. If men were angels, Madison observed, no government would be
necessary. But since men are something less than angels, government, along with
popular passions, must be curbed. This is the insight upon which all
constitutionalism is based, and so long as our dominant culture remains
infatuated with various forms of excess and it scorns those who exhibit balance
and decorum, the Constitution will remain the phantom that it is today.

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