Penguin History of the United States of America (40 page)

This was first done twelve years after the Constitution came into operation, in the case of
Marbury
v.
Madison
.

One of John Adams’s last actions as President was to appoint John
Marshall Chief Justice of the United States; he also appointed members of his party to a dozen other judgeships that had just been created. The incoming Secretary of State, none other than James Madison, found these lesser judges’ appointment warrants waiting on his desk; he refused to deliver them (since the judges were all his political opponents) and so the judges could not take up their appointments. One of them, William Marbury, sued for his job; and the case eventually came up before the Supreme Court. The Court found in favour of Madison; and Chief Justice Marshall wrote the opinion explaining why. The law under which Marbury sued, he declared, was unconstitutional.

The politics of the problem need not concern us; what remains important about Marshall’s opinion in
Marbury
v.
Madison
is that he took the opportunity of laying down the principles of judicial review and judicial supremacy.

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case… the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

He thus made the Supreme Court the umpire of the Constitution. President Jefferson and Secretary Madison, who were rather more radical in 1801 than they had been in 1787, greatly disliked this doctrine; but they could not very well fight it, since it was embodied in a decision in their own favour. So the Supreme Court got away with its claim, a claim that was reinforced by the line of further important decisions that Marshall wrote in the rest of his long tenure of the Chief Justiceship (1801–33).

The consequences of all this can hardly be overstated. Again and again the Supreme Court has used its power to change the course of American history. The results have not always been acceptable. For instance, next to
Marbury
, the most famous Supreme Court decision was that in the case of
Dred Scott
v.
Sanford
(1857) when the justices rashly declared, not only that the slave Dred Scott had not been freed by being taken through a free state, but that the Missouri Compromise of 1820 was unconstitutional.
¹⁵
This enraged the North, and was one of the chief incidents which brought on the Civil War. Later in the nineteenth century the Court, by its decisions, hampered the struggle of labour against capital, legitimized racial segregation and disallowed a federal income tax. It made a cult of property, and showed a perverse ingenuity in twisting the meaning of the law to help the rich. It learned the error of its ways during the Presidency of Franklin Roosevelt, but during the years immediately following the Second World
War it disgraced itself again by its acquiescence in the unjust, cruel and absurd anti-communist witch-hunt. However, under the leadership of Earl Warren (Chief Justice 1953–69) it reversed itself and became the most effective opponent of the witch-hunt.

On the whole the record since 1801 has been enormously impressive. ‘Checks and balances’ have been maintained and extended. Cynics have always been found to remark that ‘the Supreme Court follows the election returns’ (not necessarily a bad thing in a democracy) but they have usually exaggerated. The Supreme Court’s chief task, perhaps, like that of any such body, has been, acting as the place of last resort, to uphold and clarify the law and maintain the high standards of the legal profession; but in its heroic periods it has also acted as the chief guarantee that the ideals of the American Revolution should never be abandoned.

Those ideals, as George Mason tried to point out to the impatient Fathers, were not completely expressed in the original document. However, the anti-Federalists, as we have seen, made their case for a Bill of Rights; and one was duly added to the Constitution, in the form of ten amendments, during the first years of the new government. The amendments looked after the rights and interests of the individual, as the earlier parts of the Constitution protected those of the national government and the states. The individual had not been wholly neglected in the original Constitution; nor were the rights of the states neglected in the amendments (they were strongly reasserted in the ninth and tenth of the list); but on the whole the emphasis fell on such things as freedom of speech, freedom of worship, freedom from cruel and unusual punishment, freedom from unreasonable searches and seizures,
¹⁶
freedom not to incriminate oneself. Like the main part of the Constitution these articles expressed a fundamental part of what the American Revolutionaries had fought for. They were not only democrats, in the sense that they believed in the rights of the people, as opposed to kings and nobles; they were liberals, in the sense that they believed in the inalienable rights proclaimed in the Declaration of Independence – and now these rights were spelled out. The right of revolution was tacitly dropped: the process of Constitutional amendment was supposed to remove the need for any such doctrine.
¹⁷
No President since Jefferson has believed that a revolution every twenty years is a good thing; and it is not clear that even Jefferson was dissatisfied with revolution through the voting-booth. The right to individual property was so intrinsically part of eighteenth-century thought that it was not made explicit in the Constitution, or even
in the Bill of Rights; but it is hard to see how it can be much endangered while the ten great amendments are enforced. For they are predicated on the assumption that the pursuit of happiness is effective only if the individual has the means to defend his interests through the press, the churches and the courts, as well as through the political process; and it is impossible to see how, in a society so organized, a citizen can lose the right to his economic independence (the power to maintain it is another matter) – which is what the eighteenth century really understood by property. In short, the Bill of Rights puts a sharp limit to the legitimate claims on the citizen of government, majority, minority and collectivity of any sort; given the immense conformist pressures that have from time to time built up in America, this has been just as well. True, the courts have not always interpreted and enforced the Bill of Rights as, today, we may think they should have done (a glaring case was the persecution of Japanese-American citizens during the Second World War); but there would have been far fewer victories for the ordinary man or woman without the Bill; and, at least since 1953, it has been the foundation for most of the solid advances towards greater liberty which American society has made. Given the grim record of so many other twentieth-century governments, of a world in which, for example, cruel punishments are so very usual, this is no small praise. The principle of checks and balances thus continues to flower; it continues to give us good reason to honour the men of the American Revolution; in a way, it defines what is politically best and most promising in the United States; what it means to be American.

The Constitution as it emerged between 1787 and 1791 crowned the American Revolution and provided a safe compass for the future. In theory, it settled all those problems – whether of taxation; of foreign relations; of collective duties and individual rights; of political and legal organization – which had proved so intractable that they had brought about the downfall of the old British Empire. It strongly resembled the old order to which Americans, as inheritors of English traditions and settlers in a wilderness, were accustomed; but it had eliminated from that order all those features which seemed obsolete or unjust in the New World. The political thought on which it was based was realistic, accepting that men were not angels, but that their aspirations were mostly legitimate, and it was the business of the political framework to give them scope. Liberty and law were its two inescapable guiding lights; as understood by the Founding Fathers they have served America pretty well. One thing the Constitution could not provide of itself: permanence. The world – not just America – was on the brink of an age of tumultuous change; of accelerated evolution. Madison was properly confident that the instrument which he and his colleagues had devised could ride any storm; but the will to work it had to be there, and the intelligence to supplement and amend it when necessary. During the next eighty years both will and intelligence were at times to falter; the vessel nearly foundered. Such is the process examined in the next book of this
history. Yet even with that thought in mind it seems best to end this section by pointing once more to the astonishing fact that so wise and effective a settlement emerged from thirty years of revolution; and to the equal marvel of its adaptability. The new order has not gone the way of the old; the sun which Franklin hailed has not set. No other revolution, worthy of the name, has ended so happily.

I know of no country where the conditions for effecting great changes in the settled order of things, for the development of right ideas of liberty and humanity, are more favourable than here in these United States.

Frederick Douglass, 1857

Oh don’t you remember sweet Betsy from Pike

Who crossed the big mountains with her lover Ike,

With two yoke of cattle, a large yellow dog,

A tall Shanghai rooster, and one spotted hog;

Saying, goodbye, Pike County, farewell for a while,

We’ll come back again when we’ve panned out our pile.

Folk song

By the Peace of Paris in 1783 the United States gained a vast domain in the West, which in the course of the next seventy years was to be extended as a great empire to the Pacific, dislodging the French and Spanish from North America and forestalling British designs on Oregon. The Land Ordinance and the North-West Ordinance had given it flexible and efficient machinery for governing and developing this empire, and in the Declaration of Independence and the United States Constitution it had two excellent manuals for governing itself. Unfortunately, as everybody knows, technical manuals will only take you so far. The Americans believed that their ideology and their institutions were better than adequate for any problems that might arise, but even if they were right they still had to learn how to apply them. In a sense, the rest of this history shows them learning; this chapter and the two which immediately follow it describe the process in its earliest days, when perhaps it was most important. The Americans were an imperial, westering people; democrats; liberals, many of whom were slave-holders; a nation of immigrants; part of a burgeoning industrial civilization. Any one of these traits would have exposed them and their beliefs to a severe testing. Together, they produced a ferment so remarkable, and so nearly ruinous, as to make the nineteenth century even more dramatic and revolutionary than the eighteenth. The story is best told one theme at a time, beginning with the earliest, the movement west; for in ways which will be shown it largely conditioned everything that followed.

A great change overtook the Americans in the years after 1789; a change as profound in its consequences as the Revolution itself. Previously their society had looked seawards. Every settlement in the New World had depended for success on finding functions in the great Atlantic economy of seaborne trade. Maritime links were to remain strong during the nineteenth century, but their controlling importance soon ended. Until 1815 the leaders of the republic were still defensively preoccupied with Europe; but more and more their fellow-citizens looked westwards. They felt the pull of the land.

Of course it had always been there, that vast, tempting, unexplored wilderness; but until the late eighteenth century the advance upon it had necessarily been slow. Demography, politics, diplomacy, economics, technology and the Indians had seen to that. By the second quarter of the nineteenth century the balance had tipped dramatically to the other side, and the race for the Rockies and the Pacific was fairly begun. With it also began the great age of the Wild West.

Here a difficulty arises. The legend of the West, the Matter of America, is that country’s greatest gift to the imagination of the world, and a historian neglects imagination only at excessive cost. So it must be acknowledged that somewhere in everyone’s dreams Sulky Sam Snake, the fastest gun in Rattlesnake County, wearing a black hat, is cheating at poker in the Crooked Dollar Saloon. Diamond Lil looks over his shoulder. Meanwhile James Stewart, in a white hat, rides into town, a tin star twinkling on his chest. Elsewhere smoke rises off the mesa: the Apache have bad hearts, and are preparing to attack Fort Laramie, residence of a golden-haired heroine in a grey print dress. A thin blue line of US cavalry rides to the rescue. Elsewhere again, the wagon train crosses the Divide by South Pass: looking back east you can just see Natty Bumppo disappearing into the forest. Cowboys, the great drive over, whoop it up, more than ready for Lil and the Crooked Dollar. Someone, somewhere, is picking out ‘I ride an old paint’ on a mouth-organ. Frankie and Johnny are lovers.

Yet unchecked legend is the greatest enemy of historical truth. The precious insights it conveys are all too easily lost in fantasy, irrelevance and downright falsification. Epic takes space that ought to be devoted to statistics. Its glamour very frequently obscures the less showy but even more moving record of what really happened. American historians of the West have perhaps enjoyed their subject too much. They have not always been careful to make the necessary distinction between the West as a point of the compass, as a certain region of the United States, and the moving West of the past – the West of exploration and settlement, that began at Jamestown and crept across the continent in the following centuries: the so-called frontier. Their works have been rich in suggestions and richer still in information; but they have not always avoided the trap of implying that the frontier was always much the same, from century to century; or the opposite error, that it was entirely different from generation to generation, region to
region. There was uniformity; there was diversity; continuity and new departures. Both must be brought home to the understanding, for otherwise legend prevails.