fieldston american reader volume i – fall 2007 - Ethical Culture ...

Certainly if the framers were concerned primarily or evenlargely with protecting property against popular majorities,they failed signally to carry out their purposes. It is at thispoint in our consideration of the Economic Interpretationof the Constitution that we need to employ what our literaryfriends call explication du texte. For the weakest link in theBeard interpretation is precisely the crucial one, the documentitself. Mr. Beard makes amply clear that those who wrote theConstitution were members of the propertied classes, and thatmany of them were personally involved in the outcome of whatthey were about to do; he makes out a persuasive case that thedivision over the Constitution was along economic lines. Whathe does not make clear is how or where the Constitution itselfreflects all these economic influences.Much is made of the contract clause and the paper moneyclause of the Constitution. No state may impair the obligationsof a contract whatever those words mean, and they apparentlydid not mean to the framers quite what Chief Justice Marshalllater said they meant in Fletcher v. Peck or Dartmouth CollegeWoodward. No state may emit bills of credit or make anythingbut gold and silver coin legal tender in payment of debts.These are formidable prohibitions, and clearly reflect theimpatience of men of property with the malpractice of thestates during the Confederation. Yet quite aside from what thestates may or may not have done, who can doubt that theselimitations upon the states followed a sound principle‐theprinciple that control of coinage and money belonged to thecentral, not the local governments, and the principle thatlocal jurisdictions should not be able to modify or overthrowcontracts recognized throughout the Union?What is most interesting in this connection is what is so oftenover‐looked --- that the framers did not write any comparableprohibitions upon the United States government. The UnitedStates was not forbidden to impair the obligation of its contracts,not at least in the Constitution as it came from the hands ofits property‐conscious framers. Possibly the Fifth Amendmentmay have squinted toward such a prohibition; we need notdetermine that now, for the Fifth Amendment was added bythe states after the Constitution had been ratified. So, too, theemission of bills of credit and the making of other than gold andsilver legal tender were limitations on the states, but not on thenational government. There was, in fact, a lively debate over thequestion of limiting the authority of the national governmentin the matter of bills of credit. When the question came up onAugust 16, Gouverneur Morris threatened that “The moniedinterest will oppose the plan of Government, if paper emissionsbe not prohibited.” In the end the Convention dropped outa specific authorization to emit bills of credit, but pointedlydid not prohibit such action. Just where this left the situationtroubled Chief Justice Chase’s Court briefly three‐quartersof a century later; the Court recovered its balance, and thesovereign power of the government over money was not againsuccessfully challenged.Nor were there other specific limitations of an economic characterupon the powers of the new government that was being erectedon the ruins of the old. The framers properly gave the Congresspower to regulate commerce with foreign nations and amongthe states. The term commerce as Hamilton and Adair (andCrosskey, too) have made clear was broadly meant, and thegrant of authority, too, was broad. The framers gave Congressthe power to levy taxes and, again, wrote no limitations intothe Constitution except as to the apportionment of direct taxes;it remained for the most conservative of Courts to reverse itself,and common sense, and discover that the framers had intendedto forbid an income tax! Today, organizations that invoke thevery term “constitutional” are agitating for an amendmentplacing a quantitative limit upon income taxes that may belevied. Fortunately, Madison’s generation understood betterthe true nature of governmental power.The framers gave Congress in ambiguous terms, to besure authority to make “all needful Rules and Regulationsrespecting the Territory or other Property” of the United States,and provided that “new states may be admitted.” These evasivephrases gave little hint of the heated debates in the Conventionover western lands. Those who delight to find narrow andundemocratic sentiments in the breasts of the framers nevercease to quote a Gouverneur Morris or an Elbridge Gerry onthe dangers of the West. And it is possible to compile a horridcatalogue of such statements. But what is significant is notwhat framers said, but what they did. They did not place anylimits upon the disposition of western territory, or establishany barriers against the admission of western states.The fact is that we look in vain at the Constitution itself for anyreally effective guarantee for property or any effective barriersagainst what Beard calls “the reach of popular majorities.” Itwill be argued, however, that what the framers feared was thestates, and that the specific prohibitions against state action,together with the broad transfer of economic powers from stateto nation, were deemed sufficient guarantee against state attacksupon property. As for the national government, care was takento make that sufficiently aristocratic, sufficiently representativeof the propertied classes, and sufficiently checked and limitedso that it would not threaten basic property interests.It is at this juncture that the familiar principle of limitationon governmental authority commands our attention. Grantedthe wisest distribution of powers among governments, whatguarantee was there that power would be properly exercised?What guarantees were there against the abuse of power?What assurance was there that the large states would not rideroughshod over the small, that majorities would not crushminorities or minorities abuse majorities? What protection was190 fieldston american reader volume i – fall 2007