Colonial religion fostered independence.
- Church polity encouraged self-rule:
- Lack of a bishop in America meant lay control of Anglican churches.
- Congregationalism brought local autonomy.
- Presbyterianism involved representative government.
- Calvinist covenant theology nurtured constitutionalism.
- The Great Awakening promoted self-determination:
Stressed equal opportunity for salvation (spiritual rebirth over
reason; free will over predestination in Methodism).
Reaffirmed Protestant individualism (priest-hood of all believers;
right of each person to interpret Scripture)
United colonies in common experience.
Expanded most those denominations (Baptists, Methodists) that favored disestablishment.
British Acts of Parliament between 1763 and 1775 violated all these rights of Englishmen.
- Taxation by consent of property-owners
- Trial by jury of peers
- Presumption of innocence
- Due process of law before property seizure
- Liability for unlawful property seizure
- Speedy trial
- No standing army in peacetime without consent
- No quartering of troops in private homes
- Freedom of travel in peacetime
The first Congress refused Madison's bid to word the Bill of
Rights to apply to the states as well as to the federal
Congress saw no conflict between the First Amendment denying
federal support of religion, and its confirmation of the Northwest
Ordinance which stated, "Religion, morality, and knowledge
being necessary to good government and the happiness of mankind,
schools and the means of education shall forever be
Madison and Jefferson held that the "general welfare"
clause authorized the federal government to exercise only its
enumerated powers — the purpose of enumerated powers being to
exclude unenumerated powers.
Madison and Hamilton agreed (in the Federalist) that the federal
government was supreme over the states only in the exercise of its
exclusively delegated powers, and that the states were supreme
over it in exercise of their constitutionally reserved
Judicial review, said the Federalist, would determine whether
executive and legislative acts were within their Constitutional
grants of power. Threat of impeachment would keep judges from
using judicial review to legislate.
To insure the uniform and predictable rule of law, Jefferson
and Madison said the original intent of a law's authors must
Jefferson and Madison denied that the federal government
alone was the sole judge of the constitutionality of its acts, for
that would make the federal government rather than the
Constitution sovereign. States too, they wrote, should sit in
judgment of the extent of federal power under the Constitution, to
help protect the people.
Jeffersonians repealed the Judiciary Act of 1801, firing 16
federal judges by abolishing their offices.
As a further check and balance, Jeffersonians and Jacksonians
thought each branch of the federal government (not just the
Supreme Court) should decide an action's constitutionality.
- John Marshall expected Secretary of State Madison to ignore
a Supreme Court order to give William Marbury his
- President Jefferson, citing the equality of branches of
government, refused Chief Justice Marshall's subpoena to
testify at Aaron Burr's trial (but did offer to give a
deposition). Jefferson also decided which papers on the case
were public records that the court could see, and which papers
he would withhold under executive privilege.
- Jackson vetoed re-charter of a national bank because he
believed it unconstitutional, even though the Supreme Court
had declared it constitutional.
- Lincoln called the Dred Scott decision not settled
constitutional interpretation unless the other branches of the
federal government concurred.
- Lincoln suspended habeas corpus in some instances during the
Civil War despite a Supreme Court prohibition.
When institutions of government disagreed on constitutional
interpretation, Jeffersonians and Jacksonians looked to the people
to resolve the dispute at the next election.
Following the original intent of the 14th Amendment, Supreme
Court rulings at first narrowly defined the rights of both whites
(1873 Slaughterhouse cases) and of blacks (1883 Civil Rights
cases) as U.S. citizens.
Constitutional restraints on federal
power gradually diminished.
Supreme Court constitutionalized the Bank of the United States, despite a
Constitutional Convention vote not to empower the federal
government to charter corporations.
Supreme Court constitutionalized U.S. fiat paper money as
legal tender, despite a Constitutional Convention vote not to
Direct federal taxation of incomes departed from the
Constitution's original reliance on indirect taxation only.
With U.S. Senators no longer elected by state legislators,
states lost their check on federal power.
In national prohibition the federal government exercised
states' reserved police power over health, welfare, safety,
and moral issues.
— price inflation (withdrawing gold coins from
— monetary inflation (expanding bank credit)
— restricting production (AAA, SCDA Act)
— restraining price competition (NIRA)
— restraining wage competition (NIRA, NLRA, FLSA)
Supreme Court said the federal government under the interstate
commerce clause could regulate intrastate production.
Supreme Court said the federal government under the interstate
commerce clause could regulate intrastate consumption.
Presidents committed U.S. forces to overseas combat without
the Congressional declaration of war required by the
Supreme Court power grew over time due to neglect of the original intent of the Constitution.
So vaguely worded was this Act that Congress in effect
delegated to the federal judiciary the power to legislate on
the subject, violating the separation-of-powers principle.
Supreme Court claimed jurisdiction over state free-speech laws
on the ground that the 1st Amendment free-speech clause
restrains the states through the 14th Amendment due-process
clause. (The Bill of Rights' original intent was to restrain
only the federal government, letting states write their own
free-speech laws. The due-process clause's original intent was
only to restrain states from denying the procedural common-law
rights of the accused to indictment and reply in court.)
Supreme Court equated what was wise, just, or reasonable, with what was constitutional.
Supreme Court said an Oregon law limiting women's workday to
10 hours was constitutional on public health grounds, not
because the Constitution reserves police powers to the states
(Muller v. Oregon, 1908).
Supreme Court upheld the conviction under federal law of
socialists who during WWI mailed pamphlets opposing the draft,
even though the 1st Amendment says that "Congress shall
make no law … abridging the freedom of speech, or of the press" (Schenck v. U.S., 1919).
Reaganomics had benefits as well as defects.
- "The wealthy" (i.e., the top quintile of
households in terms of annual income) received the most income
because this quintile contained the most people – about 25% of
the population in the 1980s, compared to about 15% for the
bottom quintile (and also more than each of the middle three
- Tax cuts promoted economic expansion. Deficits of the 1980s
protected that expansion by restraining government growth.
Political liberals were the most upset about those deficits.