The Political Grammar of Early Constitutional Law, 71 N.C

NORTH CAROLINA LAW REVIEW Volume 71 | Number 4 Article 1 4-1-1993 The olitP ical Grammar of Early Constitutional Law H. Jefferson Powell Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation H. J. Powell, The Political Grammar of Early Constitutional Law, 71 N.C. L. Rev. 949 (1993). Available at: http://scholarship.law.unc.edu/nclr/vol71/iss4/1 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE POLITICAL GRAMMAR OF EARLY CONSTITUTIONAL LAW H. JEFFERSON POWELL* In this Article, Professor H. Jefferson Powell discusses the United States Constitution and the historicalera during which it was written and adopted. He analyzes the Constitution not as a set of rules creating and organizing the federal government, but as a document that inspiredpolitical debate and the culture out of which our notions and understandings of constitutionalism grew. Professor Powell asserts that the "creation of a shared political and legal language" is perhaps one of the greatest achievements offounding-era Americans. Because deep political disagreement existed at the time, ProfessorPowell suggests that when we look to the founding-eraperiod for insight into current constitutional questions, we should not search primarilyfor the founders' original intent. Instead, we can gain more insight from the study of the common terms and language-thepolitical grammar of early constitutional law-in which debate was voiced. In 1792, American diplomat and writer Joel Barlow published a critical analysis of the French Constitution which had been drafted the previous year.1 Drawing on the American experience with constitution making and interpreting, Barlow argued that the proper purpose of a constitution was to establish "the great fundamental principle that all men are equal in their rights" and to create basic safeguards for that principle.2 The value of a properly devised constitution, however, went be- yond establishing the rules within which government was obliged to act: Barlow thought that a constitution "ought to serve not only as a guide to * Professor of Law, Duke University. B.A. 1975, St. David's University College, Uni- versity of Wales; J.D. 1982, Yale University; Ph.D. 1991, Duke University. My thanks to Chris Schroeder and Paul Carrington for comments and encouragement and to the Carolina Academic Press for permission to rework parts of the introduction to JEFFERSON POWELL, LANGUAGES OF POWER: A SOURCEBOOK OF EARLY AMERICAN CONSTITUTIONAL HISTORY (1991), into sections of this Article. 1. Joel Barlow, A Letter to the National Convention of France on the Defects in the Constitution of 1791 (New York 1792), reprintedin 2 AMERICAN POLITICAL WRITING DUR- ING THE FOUNDING ERA 1760-1815, at 812-38 (Charles S. Hyneman & Donald S. Lutz eds., 1983) [hereinafter AMERICAN POLITICAL WRITING]. 2. Id. at 823-24. Later in the letter, Barlow described the task of a constitutional convention as "tracing the outlines of your constitution, according to your present ideas, and proclaiming it in the most solemn manner, as the foundation of law and right." Id. at 838. NORTH CAROLINA LAW REVIEW [Vol. 71 the legislative body, but as a political grammar to all the citizens. The greatest service to be expected from it is, that it should concentrate the maxims, and form the habits of thinking, for the whole community." 3 Barlow's recommendation to the French Assembly that it write a constitution that could serve as "the political grammar" of society cap- tured a central element of the founding-era American experience with constitutionalism.4 Their state and federal constitutions, Americans quickly discovered, were not merely sets of rules organizing and limiting the institutions of government. Indeed, to the extent that the constitutions contained rules, those rules all too frequently were ambiguous, as likely to create disputes as to settle them. The American constitutions shaped a public culture much as Barlow thought a constitution should, but it was a culture of debate. The possession of a common "political grammar" did not eliminate deep political disagreement in the early United States; instead, constitutionalism served as the language through which those disagreements could be articulated. The founders' constitutional disputes were worrisome and even ex- asperating at the time.' The existence of "original disagreement" also troubles many late twentieth-century American constitutionalists, in part because it renders problematic the invocation of "the founders" in constitutional debate. The hypothesis underlying this Article is that our ten- dency to search for the constitutional views founding-era Americans generally shared has led us to ignore what was perhaps their greatest achievement-the creation of a shared political and legal language that made reasoned debate possible.6 It was the "political grammar" of the founding era that decisively shaped "the habits of thinking" and acting of later Americans. Constitutional historians, therefore, would do well to 3. Id. at 823. Thomas Paine used the same metaphor a year before Barlow. See PAINE, THE RIGHTS OF MAN (1791), reprintedin 1 THE COMPLETE WRITINGS OF THOMAS PAINE 300 (Philip S. Foner ed., 1969): "The American Constitutions were to liberty, what a grammar is to language: they define its parts of speech, and practically construct them into syntax." 4. This article deals with the constitutional discourse of the period roughly between the ratification of the federal Constitution and the "market revolution" of the Jacksonian period. See generally CHARLES SELLERS, THE MARKET REVOLUTION, 1815-1846 (1991) (discussing the continuities and differences between pre-Jacksonian and Jacksonian America). 5. An anonymous pamphleteer of the period sarcastically remarked that the creators of the Federal Constitution were "[s]o far... from boasting of an inspiration in this work, that neither two of them can agree to understand the instrument in the same sense." An Impartial Citizen, A Dissertation Upon the Constitutional Freedom of the Press (Boston 1801), reprinted in 2 AMERICAN POLITICAL WRITING, supra note 1, at 1126, 1128. 6. I am indebted to Professor Sanford Levinson's provocative work for my understand- ing of constitutionalism as a language. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 191-92 (1988). 19931 POLITICAL GRAMMAR attend to the vocabulary and structure of founding-era discussion if they are to understand that era's legacy. The purpose of this Article is to contribute to the growing body of scholarship that focuses on the terms rather than the particular outcomes of early constitutional debate.7 The Article examines some of the terms and patterns of argument founding-era Americans employed in constitutional discussion:' the role of concepts of "text," meaning, and precedent in constitutional interpretation;9 the significance of ascribing interpretive authority to various institutions; 0 and the complex of questions sur- rounding the notions of "sovereignty" and "discretion."" The portrait of early constitutionalism that this Article identifies is very similar to Barlow's metaphor of a "political grammar." The concluding section of the Article suggests that the contemporary interest in constructing deter- minate theories of constitutional meaning is fundamentally alien to the constitutionalism created by the founding-era. 2 I. THE SOURCES OF CONSTITUTIONAL ARGUMENT A fundamental question often raised in early constitutional argument-as it has been again today-concerned the sources of constitutional argument. In discussing the scope of legislative or executive authority or the validity of an asserted individual right, founding-era Americans often turned to the logically prior question of what modalities of argument 3 were permissible in constitutional debate. Substantive 7. Two outstanding examples are 3-4 G. EDWARD WHITE, THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE MAR- SHALL COURT AND CULTURAL CHANGE, 1815-35 (1988) & STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING (1991). 8. See JOHN G.A. POCOCK, POLITICS, LANGUAGE AND TIME 3-41 (1973) (discussing the value of studying the underlying structures of political discourse). "The historian's first problem, then, is to identify the 'language' or 'vocabulary' with and within which the author operated, and to show how it functioned paradigmatically to prescribe what he might say and how he might say it." Id. at 25. 9. See infra notes 30-150 and accompanying text. 10. See infra notes 151-218 and accompanying text. 11. See infra notes 219-375 and accompanying text. 12. See infra notes 376-82 and accompanying text. 13. I borrow the concept of modalities of interpretation from Philip Bobbitt's great book, PHILIP BOBBITr, CONSTITUTIONAL INTERPRETATION (1991). Bobbitt defines "constitutional modalities" as "the ways in which legal propositions are characterized as true from a constitutional point of view." Id at 12. He identifies six basic modalities in modem constitutional law: the historical (relying on the intentions of the framers and ratifiers of the Constitu- tion); textual (looking to the meaning of the words of the Constitution alone, as they would be interpreted by the average contemporary "man on the street");

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