Constitutional Interpretation outside the Courts

Constitutional Interpretation outside the Courts

By the late twentieth century, the Constitution had become the property of lawyers and, especially, judges. When the public paid attention to constitutional issues, it focused on the Supreme Court. In the 1990s, however, several scholars in law and political science turned their attention to "the Constitution outside the courts." Much of their concern was normative. The hopes that they may have had for a liberal, reformist Supreme Court on the model of Chief Justice Earl Warren's had been decisively dashed. But they could draw support for their claim that legislatures had an important role in constitutional interpretation by gesturing toward the past, citing prominent examples of congressional and executive constitutional interpretation.

Anecdotes are rarely enough for normative purposes. Requisite, ordinarily, is a systematic account showing either why (in a purely normative mode) or that (in a descriptive mode) an executive or legislative constitutional interpretation could match the quality of a judicial one. Currie's volumes provide the latter kind of support. Engagingly written, they show precisely how extensive the practice of nonjudicial constitutional interpretation was in the antebellum United States. Indeed, they demonstrate that it was far more important to the development of constitutional law than judicial interpretation.

These volumes would do a valuable service were their only accomplishment to interpret Tocqueville's too-often cited statement, "[T]here is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question."¹ More accurate would be the observation that the overlap between political questions and constitutional ones has always been large. But, contra Tocqueville, Currie demonstrates that many of the constitutional questions associated with matters of high political controversy were resolved, definitively, by Congress.² Indeed, as Currie writes, the president and Congress "grapple[d] with constitutional questions every day, in every action they contemplate[d], in every exercise of their official functions" (II, 344).³

Currie examines constitutional issues discussed by Congress, by the president, and by prominent Cabinet members, from the founding to 1860. The first two volumes are devoted to the Federalist and Jeffersonian eras, the second two to the period from 1829 to 1860—one covering issues related to the dismantling of Henry Clay's American System and what Currie concedes is a "kitchen sink" of assorted matters (III, 121), and the other covering issues associated directly with slavery, including territorial expansion. Currie deals with matters ranging from the obviously great to the seemingly trivial. The first volume, for example, examines constitutional debates about whether Congress had the power to create a national bank (I, 78–81), and about whether Congress could delegate its power to establish post roads (roads for mail carriage) to the executive branch. Currie's discussion of each issue is meticulous and informative. It is difficult to believe that he leaves unaddressed anything that would shed light on American constitutional development.

Currie's discussion of the rise and fall of Clay's "American System" probably offers the most illuminating extended example (II, 250–89; III, 3–119). The American System rested on two constitutional propositions, that Congress could impose taxes to finance "internal improvements"—that is, infrastructure development—under the rubric of general welfare and that it could impose customs duties not merely to raise revenue but also to protect domestic manufacturers from foreign competition. These constitutional propositions reflected the nationalist...