The Constitution in Congress: The Federalist Period, 1789-1801 / Edition 2

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Overview

In the most thorough examination to date, David P. Currie analyzes from a legal perspective the work of the first six congresses and of the executive branch during the Federalist era, with a view to its significance for constitutional interpretation. He concludes that the original understanding of the Constitution was forged not so much in the courts as in the legislative and executive branches. Judicial review has enjoyed such success in the United States that we tend to forget that other branches of government also play a role in interpreting the Constitution. Before 1800, however, nearly all our constitutional law was made by Congress or the president, and so was much of it thereafter. Indeed a number of constitutional issues of the first importance have never been resolved by judges; what we know of their solution we owe to the legislative and executive branches, whose interpretations have established traditions almost as hallowed in some cases as the Constitution itself. The first half of this volume is devoted to the critical work of the First Congress, which was in many ways a continuation of the Constitutional Convention. In addition to setting up executive departments, federal courts, and a national bank, the First Congress imposed the first federal taxes, regulated foreign commerce, and enacted laws respecting naturalization, copyrights and patents, and federal crimes. In so doing it debated a myriad of fundamental questions about the scope and limits of its powers. Thus the First Congress left us a rich legacy of arguments over the meaning of a variety of constitutional provisions, and the quality of those arguments was impressively high. Part Two treats the Second through Sixth Congresses, where members of the legislative and executive branches continued to debate constitutional questions great and small. In addition to such familiar controversies as the Neutrality Proclamation, the Jay Treaty, and the Alien and Sedition Acts, this part traces the d
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Editorial Reviews

Rogers M. Smith
David Currie is a distinguished scholar at the University of Chicago Law School who, having written two volumes on "The Constitution in the Supreme Court," has now turned to the less discussed topic of what Congress has made of the Constitution. The initial result is this useful and reasonably sprightly reference work covering the debates of the first six Congresses. Currie's method is simple. He has gone through the Annals of Congress and other sources detailing congressional discussions during these years and organized them topically, with special attention to constitutional issues. His text then summarizes what they said, interspersed with commentary comparing and contrasting their various views with those expressed in later, kindred constitutional controversies, particularly later Supreme Court decisions. This endeavor has two chief virtues. First and foremost, as Currie contends, he provides abundant evidence that Congress (and the President) have generated much of what we properly regard as constitutional law, often on "constitutional issues of the first importance" that "have never been resolved by judges" (p. x). Making a working government out of the skeletal constitutional sketch required innumerable decisions on the rules for conducting business in each house, their relations with the President and other executive officials, their powers to review the conduct of elections and the apportionment of representatives, their authority to structure the judiciary, to define who was a citizen, and much more. Many of their judgments have become so thoroughly embedded in our conceptions of the basic prerogatives and duties of the different branches of government that their often controversial congressional origins have been obscured. Currie does a service in bringing this history into fuller view. Second, Currie's very willingness to read congressional debates and take them seriously is refreshing. Except for some valuable but sometimes deracinating "content analysis" studies, political scientists rarely read congressional debates carefully, regarding them mostly as politically motivated hot air. This is all the more true when we turn to recent history, since members of congress now have ample opportunity to insert ersatz, sanitized versions of their spoken (or never spoken) remarks into the Congressional Record. Yet in all periods, what they include is often still politically revealing: statements that may seem innocuous in discussions of economic rights, state power, race, gender, foreign policy during a certain period, or from "mainstream" perspectives, may for that very reason tell us most about the often vulnerable political premises then prevailing. Currie's summaries of the early congressional debates provide many such examples. Both these strengths of the book are, however, accompanied by limitations. Although Currie gives lots of examples of members of congress engaging in constitutional reflections, he does not himself reflect on this activity. He views constitutional interpretation in Congress as pretty much like constitutional interpretation by courts. It involves the same methods and is to be judged by the same standards. Indeed, apart from his recounting of what they said, the bulk of Currie's own contribution here is to list the later Supreme Court decisions on the same points the early representatives discussed and to suggest briefly who he thinks did a better job of making sense of the text. Perhaps that's all there is to do; but one might at least question whether that is so. Keith Whittington's forthcoming work suggests, for example, that when Congress interprets the Constitution, it is necessarily less concerned than courts with discerning established limits on power, and more concerned with "constructing" what can be done within the document's broad outlines. That different task may lead to different constitutional understandings. Whether those claims are correct or not, the issue of what it means for the Constitution to be interpreted "in Congress" might have received more consideration in a work devoted to that topic. Furthermore, in his commendable effort to be both comprehensive and concise, Currie ends up giving such brief snippets of what members of congress said on various topics that we miss a good deal of the substance and a great deal of the flavor of their thinking. These debates include some wonderful oratory, but little of it is quoted here. Currie also centers his discussion on what Congress said on constitutional issues that contributed "to the development of legal doctrine" (p. x). But he construes even that deliberately, and understandably, limited task rather more narrowly than he might. To mention some examples drawn from my own work with these records: in an early House debate over whether to seat William Smith of South Carolina, an expatriate during the Revolution, James Madison laid out a rather extraordinary theory of "natural" citizenship, at apparent odds with much revolutionary thought and some judicial rulings; but Currie does not report, much less analyze, that theory's content. Smith then went on to protest elaborately when the House entertained antislavery petitions. He invoked Jefferson's discussion of blacks in Notes on the State of Virginia and characterized blacks in ways that tell much about early American racial thinking, including thought on the appropriate legal status of free blacks. But Currie simply reports that deep south representatives "began to squeal like stuck pigs" when the petitions were introduced and that Smith was concerned that emancipation might be ex post facto legislation (p. 66). Currie also notes without comment or analysis the choice of the first Congress to confine naturalization to "whites," a decision of profound constitutive, if not constitutional, significance, with which courts would eventually have to wrestle mightily. More surprisingly, Currie even has little to say about whether Congress really did intend in the Judiciary Act of 1789 to give the Court original jurisdiction to issue writs of mandamus. Later, the views concerning foreigners aired in the debates over whether to seat Albert Gallatin in the Senate and the passage of the Alien and Sedition Acts are also given short shrift. At many points, then, larger issues raised in these exchanges are not highlighted, sometimes not even acknowledged. But as the "stuck pigs" line suggests, this book does contain many breezy asides commenting on the wisdom and folly of American politicos and judges, past and present. These quips often make for amusing reading, even when the reader disagrees with Currie's pithy appraisals. Nonetheless, this is a scholar's reference book, not a work for a general reader and not suited to be a primary classroom text. It will help us all find out quickly what the early Congresses said on any number of issues and whether the Supreme Court subsequently agreed, and that is valuable. We can then, I trust, go on to analyze the significance of such debates for American politics and constitutionalism in many ways that will go beyond what Currie tried to do, or perhaps could hope to do, in this book.
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Product Details

  • ISBN-13: 9780226131146
  • Publisher: University of Chicago Press
  • Publication date: 5/28/1997
  • Edition description: 1
  • Edition number: 2
  • Pages: 344
  • Product dimensions: 6.50 (w) x 9.25 (h) x 1.30 (d)

Meet the Author

David P. Currie (1936-2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of four volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court.

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Table of Contents

Preface
Abbreviations and Shortened Titles
Part One: The First Congress, 1789-1791
Introduction to Part One
1. The New Government
I. Congress
A. Rules
B. Records
C. Officers
D. Oaths
E. Instructions
F. Qualifications
G. Elections
H. Enumeration
I. Investigation
II. The Special Role of the Senate
A. The French Consular Convention
B. The Fishbourn Affair
C. The Southern Indians
D. The Fort Harmar Treaties
III. The Executive Branch
A. The President's Role in Legislation
B. Emoluments and Titles
C. The Department of Foreign Affairs
D. Other Officers
IV. The Courts
A. The Lower Federal Courts
B. The Supreme Court
2. Substantive Legislation
1. Taxes and Trade
A. Tariffs and Tonnage
B. Whiskey
C. Ship Licensing
D. Inspection Laws
E. Seamen
F. The Slave Trade
II. Spending
A. Appropriations
B. Lighthouses
C. Other Spending Proposals
III. The Public Credit
A. Paper Money
B. The Question of Full Payment
C. The Assumption of State Debts
IV. The Bank of the United States
V. Military, Indian, and Foreign Affairs
A. Soldiers
B. Indians
C. Pirates
VI. Miscellany
A. Naturalization
B. Patents and Copyrights
C. Crimes
D. States
E. Territories
F. The Seat of Government
VII. The Bill of Rights
Conclusion to Part One
Part Two: The Federalists, 1791-1801
Introduction to Part Two
3. The Second Congress, 1791-1793
I. Congress
II. The President
A. The Electoral College
B. Succession
C. Special Elections
III. The Post Office
A. Delegation
B. Federalism and Other Problems
IV. The Mint
V. The Courts
VI. The Militia
A. Organization
B. Employment
VII. The Army
VIII. The Treasury
IX. Codfish
X. Fugitives
XI. Summary
4. The Third Congress, 1793-1795
I. Neutrality
A. The Proclamation
B. The Aftermath
II. Defense
A. The Scope of Federal Authority
B. The President and Congress
III. St. Domingo
IV. Insurrection
V. Citizenship
VI. The Eleventh Amendment
VII. The District of New Hampshire
VIII. The Southwest Delegate
IX. The Flag
5. The Fourth Congress, 1795-1797
I. The Jay Treaty
A. Negotiation and Approval
B. The Role of the House
II. Tennessee
III. Congressional Powers
A. Spending—Again
B. Direct Taxes
C. Perils of the Deep
D. Kidnapping and the Right to Petition
IV. Randall and Whitney
6. The Fifth and Sixth Congresses, 1797-1801
I. Troubles with France
A. Declaring the Peace
B. The Provisional Army
C. Volunteers
D. The French Treaties
II. The Enemy Within
A. Aliens
B. Sedition
C. The Expulsion of Matthew Lyon
D. The Cases of Duane and Randolph
E. All's Well That Ends Well
III. Odds and Ends
A. The Impeachment of Senator Blount
B. Mr. Pinckney's Gifts
C. The Mississippi Territory
D. The District of Columbia
IV. The Election of 1800
A. The Grand Committee
B. Mr. Bayard's Conscience
Conclusion
Appendix: The Constitution of the United States
Index

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