Who owns the Constitution?
Finding a New Consensus for Constitutional Interpretation in the Sedition Act of 1798.
14360 words
Matthew Bromund
March 29, 1998
Constitutional Law Theory Seminar
Professor Rebecca Brown
Vanderbilt Law School

Please Note:  Citation forms are not consistent yet, but spelling should be accurate.  I appreciate any comments, and you can e-mail them to me at [email protected]

Thanks again.

It is the people, and not the judges, who are entitled to say what their
constitution means, for the constitution is theirs, it belongs to them and not to
their servants in office--any other theory is incompatible with the foundation
principles of our government.
--Theodore Roosevelet
p.51 Judicial Dictatorship, William J. Quirk, R.Randall Bridwell, Transaction
Publishers, 1995.

 In the United States, sovereignty is said to reside with the people.  In theory, all
officers of the government are answerable to the people for their power, and for their
decisions.  To insure that this understanding was manifest, the founders of the Republic
framed a Constitution that divided the people’s sovereign power among three different
branches, headed by the President, the Congress, and the Supreme Court.  This decision set
into motion the institutional conflict over which branch is ultimately empowered to speak for
the sovereign people.  Theorists and practitioners alike have struggled over the best  method
of insuring the survival of the Republic and the promotion of its ideals.  In the end, however,
it is essential to remember that sovereignty resides with the people, and the people are the
only true arbiter of what is or is not a part of the government they created.
 This essay will explore one aspect of the ongoing theoretical debate, using the Alien
and Sedition Act crisis as an illustration of a method of Constitutional interpretation that may
serve the people well in this day and age.  It will not argue, as some do, that one method is
superior to another in all cases and at all times.   The currently favored method, that of
judicial review with de facto judicial supremacy in the matters the Court chooses to take on,
may have served the people’s interests in the aftermath of World War II.   It is unlikely,
however, that recent experience is sufficient justification to conclude that this method is
superior for all time.  There are at least three, and possibly more, approaches to
Constitutional interpretation that can muster a compelling argument for adoption.  It is the
assumption of this essay that an approach is superior when it links its mandate to the strength
of the consensus of the people, since the people are ultimately sovereign.  No pronouncement
should be treated with greater reverence than the support behind it demands, at least if this
nation is to remain a democratic republic.
 In this nation, the Constitution is the principal expression of this proposition.  It
establishes clear procedures and institutions for the distribution of political power and
established a federal republic where the people’s power to enact, enforce, and interpret laws
were strictly separated and divided.  As is commonly known, the legislative power was vested
in Congress, executive power in the President, and the judicial power in the Supreme Court
and such inferior courts as Congress may create.  US Constitution, Articles I, II, III.  Each
branch is created by the authority of the people, and each is ultimately answerable only to
them.  While Congress was given impeachment power over the other two branches, no
branch was established as superior to any other.  Additionally, no branch was designated as
the final arbiter of the proper activities of the government, and no branch was given explicit
authority to alter or modify the Constitution.  This authority were to remain with the people,
through the powers of election and amendment as expressions of sovereignty.  Unfortunately,
the people do not meet routinely to decide these issues, and both majorities and minorities
have demanded that the government act more swiftly than the amendment process would
permit.  It is this demand for more rapid alteration of the Constitution that produces the
struggle between the branches for the right to have the constitutional “last word”.
 Of course, the ultimate arbiter of the Constitution remains the people, through their
amendment authority.  This authority is decisive, but difficult to employ.  Amendments enact
changes in the wording of the Constitution that are compositional in nature, and produce
long-lasting transformations in the constitutional order.  In the alternative, more transitory
majorities and, occasionally, powerful minorities,  have been able to achieve limited
alterations in the Constitution.  These changes are changes of construction, or interpretation,
and appear to require nothing more than the people’s acquiescence to endure.   It is this latter
form of constitutional change that excites the great struggles between branches and form the
core of the subject called Constitutional Law.   In these incremental changes, a variety of
mechanisms have been concocted to allow differing interests to impose their will upon the
nation.  No provision is made in the Constitution for these changes, but convenience and
expediency have rendered them far more popular than the amendment process.   Of course,
this preference for expediency endangers the carefully constructed balance between the
branches, and it encourages the people’s representatives to think of themselves as sovereign.
It is for this reason that it is essential that the endurance of any constitutional proposition be
tied to the strength of the consensus behind it.  A controversial theory, imposed on the people
by any branch of the government, will arouse animosity towards the government and
endanger the existence of the Republic.   Thusly, it is appropriate for government actors to
strive to learn how best to make their incremental changes palatable to the people, lest their
sovereignty be brought forth in revolution.
 The only type of Constitutional change that is completely secure against this danger is
an Amendment.  Amendments are provided for in the  Constitution and require extraordinary
majorities to become enacted.  Article V requires either 2/3 of Congress or 2/3 of the states in
convention to propose an Amendment, and then 3/4 of the states must ratify the proposal
either in their legislature or in special conventions.   US Constitution. Art. 5.   In fact, in the
more than 200 years of the Republic, Amendments have been approved only 27 times, and of
those, the first ten were approved in the immediate aftermath of the Constitution’s
ratification, between 1787 and 1791.  Thus, in the last 207 years, only 17 Amendments have
been approved.  If the procedural hurtles did not alone discourage amendment-seekers,
certainly the history of success should.  Of the thousands of proposals, only 33 have even
cleared the first hurdle--approval by 2/3 of Congress.  To date, the states have never called
for a special convention to propose an amendment.  Walter Dellinger, “Constitutional
Amending Process”, Oxford.... p. 179.   This difficulty, as a practical matter, ensures that any
Amendment enjoys the solid and enduring support of the people before its adoption.
 The only noticeable aberration in this procedure is the experience of the 18th
Amendment, prohibiting trade in alcohol.  The “Prohibition Amendment” is the only
amendment to be explicitly repealed.  It was proposed in 1917, adopted in 1919, and after a
decade of controversy, was repealed by the 21st Amendment of 1933.  In both adoption and
repudiation, the majorities were lop-sided and overwhelming.  Culminating a century-long
process of agitation for temperance, the 18th Amendment was adopted by politicians who
feared a vote against Prohibition.  Fourteen years later, the steady increase in popular
opposition to Prohibition led to an equally swift repudiation in the 21st Amendment.  In both
cases, the populace was heavily engaged in the process and the debate raged across the nation.
Jack S. Blocker, Jr., “Eighteenth Amendment”, Oxford.... p. 247.
 Even when the Amendment is heartily opposed, as the Prohibition Amendment was,
the people are not moved to oppose the Constitution or the government, because  the
Amendment embodies the will of the sovereign people.  Instead, opponents are moved to
greater political activity, as they seek to persuade the people of their error.  While some
academics view this episode as proof the amendment process’ flaws, and few amendments
beyond structural changes have been attempted since, it serves rather to demonstrate that no
constitutional proposition can endure absent the consent of the people.  The amendment
process does settle an issue, for a time, but it does so in a way that even opponents can feel
that their voices have been heard.  In any event, by demanding super-majorities by different
groupings of political actors, a  Constitutional Amendment has a legitimacy that can only be
approached by any lesser form of constitutional change.   This legitimacy is the surest
guarantee of the people’s continued support for the Constitution and the government that
acts in its name.
 Because of the difficulty of amendment, however, the people’s representatives have
concocted a second layer of constitutional change.  This layer is incremental in nature, and
consists largely of interpreting the words of the Constitution and construing them to serve the
needs of the interpreting body.  These changes are riskier, since they never resort directly to
the people, who retain sovereignty, and thus become detached from their legitimizing
influence.  For this reason, these changes tend to be less enduring than amendments and
rarely outlive the generation that created them.   A coalition of support may be capable of
controlling one or another branch, but absent consensus sufficient to amend the Constitution,
they must rely on the people’s acquiescence for their proposition to endure.  With changing
fashion and factional alignment, many of these propositions pass away, if the people are not
cowed into reverence for these changes.
 While our Constitution clearly provides for the compositional changes of
Amendments, it does not explicitly provide for incremental, constructional changes.  Political
realities, however, have demanded such changes in the past, and the difficulty of obtaining
constitutional amendment continues to vex interest  groups who desire to see the
Constitution “improved” by the adoption of one or another proposition.   To accomplish
their ends, several different methods of “constructional”, as I define these interpretational and
incremental changes, have been put forward.
 The first option, and one that is clearly unacceptable politically, is Departmentalism.
This option, supported by Thomas Jefferson as President, recognized that each branch was
created by the Constitution and they were not subject to each other.  Accordingly, each
branch retained the authority to interpret the Constitution for itself within its own sphere of
authority.  The Supreme Court could decide cases as it wished, but the Executive or
Legislative powers were not obliged to agree with their reading of the Constitution.  The
Supreme Court, in Worcester v. Georgia, 31 US 515 (1832), declared that the Indian nations
were a distinct people, with the right to retain independent political communities.
Accordingly, it decided that Georgia’s decision to restrict access to Cherokee lands was
unconstitutional.  Far from accepting the Court’s view, President Jackson declared, “John
Marshall has made his decision, now let him enforce it.”  Jackson then supported the removal
of the Cherokee nation from Georgia in defiance of the Supreme Court’s decision.  His belief,
widely supported at the time, was that the President was entitled to interpret the Constitution
as he saw fit and in the interest of the constituency he represented.   Departmentalism has
initial appeal to those who favor majoritarian government, but it has not proven to be viable
over time.
 This approach has several collateral consequences that render it unpalatable today.
First, and foremost, it fails to provide any sense of finality for Constitutional issues.  No right,
or interpretation of the Constitution, is binding on any of the three branches unless the actors
controlling that branch choose to recognize it.  Second, it encourages a sense of chaos, as
branches are arrayed against each other in a constant struggle for the power divided between
them.  Potentially, the people could suffer as institutional conflicts overwhelm their expressed
desires, and anarchy could threaten if Departmentalism were taken to its logical extreme.
This approach also effectively reduces the Court to a second-tier branch, since it lacks either
the “purse or the sword” and can not compel anyone at all to accept its decrees.
 On the other hand, this approach has the benefit of not requiring any artificial
construction of the Constitution.  It appeals directly to the constituencies responsible for the
various authorities, and rests the endurance of their proposition on the power that authority
can wield.  In this struggle, popular allegiance remains a key component of power, and all
three Constitutional actors would need frequent endorsement by the people for their policies.
Minorities, however, would only be protected from tyranny by the chaos of
Departmentalism.  Any group that could seize control of both Congress and the President
would have effective free reign to oppress any disfavored group, without meaningful
interference from the Court.   Largely for the prevention of chaos, and encouragement of
orderly government, Departmentalism fell out of favor after President Jackson’s two terms in
 A second theory, and one that does require an extra-constitutional inference, is State
Nullification.  This theory, put forward by Jefferson and James Madison in the Virginia and
Kentucky Resolutions, held that the various states had the authority to interpret the
Constitution and protect their interpretations of its provisions.   This theory emerged from
the premise that the states were the parties to the Constitution, not the people of the nation.
From that starting point, the states retained the authority to modify the agreement, or even
withdraw from it.   When the federal government was in the possession of the Federalist
party, this approach appealed to the Democrat-Republicans who feared that their concerns
would not be heard.   By retaining recourse to the state legislatures, a politically powerful, but
localized minority could check the actions of a nationally dominant majority.
 This approach was long considered appropriate by the southern states prior to the
Civil War.  As such, it was blended into the intellectual package that culminated in secession.
The problem with this theory, and the idea of secession it fostered, is that the states are not
parties to the Constitution.  The people are the contracting parties in the Constitution, and
while the states have an important role to play, they too only enjoy power by way of a grant
from the people.  Additionally, state nullification requires an additional level of conjecture to
be constitutionally supported.  Nowhere in the Constitution is nullification hinted at, and
there is no principled way to determine how many states must nullify a law before the law is
truly negated.  The largest impediment to an effective use of state nullification, however, is
the repudiation of the nullification framework in the Civil War.  As the Confederacy was
destroyed, so too were the intellectual dogmas that supported it.  States are not sovereign,
and the Union is not a compact between the states.  For these reasons, nullification is
generally considered an obsolete theory today.
 A third theory, and one that has three different manifestations, is the supremacy
theory.  This theory posits that one branch, for some reason or another, is uniquely charged
by the Constitution with expressing the true meaning of the Constitution.  In its legislative
form, this theory reigns in the United Kingdom, where Parliament is said to be the best, and
ultimate arbiter of the English unwritten constitution.  Legislative Supremacy has never
carried any authority in this country, however, given the experience of the revolution and
concerns about the "tyranny of the majority".  The protection of any minority group has never
been felt to be secure, if left in the hands of the legislature.  Similarly, Executive Supremacy
has not won many adherents in this country, bringing with it fears of monarchical tyranny.  In
the ancien regime of France, however, it was this interpretation that governed, and
recognized that the executive power,  ultimately, controls how the law shall reach the people.
The third variant is Judicial Supremacy, whereby the courts act as Platonic guardians of the
Constitution.  Judicial Supremacy remains a viable candidate for interpretation and
application in the United States today.  This theory, taking off from Marshall's dicta in
Marbury v. Madison, expounds that, "It is uniquely the province of the court to say what the
law is." 5 US 137 (1803).   In all three approaches to the supremacy theory, one key
advantage is won--that of finality.  There is relatively little uncertainty in the field of
Constitutional law when a supremacy theory is in vogue. The supreme branch's interpretation
of the Constitution will govern the actions of the other two branches of government, and
while appeal made be made to that branch, or constitutional amendment, the true limits of
the supreme branch’s authority are not easily defined.
 In some sense, the supremacy theory relies on the command theory of law for its
validity.  It requires the other two, inferior, branches to submit to the superior branches view
of the Constitution.  In this way, it compels obedience, either through the force of arms, in
the case of the executive, power of the purse, in the case of the legislative, or force of law, in
the case of the judiciary.  In any conception, however, it does not embrace any form of the
alternative, consent theory of law, whereby law acquires its force from the reasoned
acceptance of those it governs.  Any supremacy theory depends on the prima facie acceptance
of the supreme branch’s expression of legal truths.
 On the other hand, tyranny concerns are enhanced, as the sovereign power of the
people to define their Constitution becomes vested in one group of the people's
representatives.  Additionally, legitimacy of the government can come into question when the
supreme branch moves too far ahead of the sovereign people and imposes a construction of
the Constitution that is not broadly supported.  Despite these problems, a version of the
supremacy theory is the preferred approach to constitutional construction today.
 A final alternative theory, and one that has not received any special recognition in the
past, is the consensus theory.  This theory  proceeds from the assumption that any argument
to speak for the Constitution must rely upon the strength of the consensus behind that
argument.  Accordingly, an interpretive or constructional change in Constitutional meaning
should only endure as long as a consensus around that meaning endures.  As a practical
matter, the consensus theory requires that at least two branches of the government actively
agree in the interpretation in question, and the third branch cannot be in declared opposition
to that interpretation.  Until such a consensus occurs, no interpretation should be considered
binding upon the other branches in their own sphere of activity.  In this way, the consensus
theory borrows from Departmentalism, recognizing that the Constitution created three
separate, co-equal branches of government to see to the people's business.  Legitimacy and
tyranny concerns are reduced, since any binding interpretation requires the acquiescence or
active support of all three branches of government.
 On the other hand,  finality in Constitutional law will be compromised in the absence
of such a consensus.  While the various branches differ about any constitutional
interpretation, the people will remain uncertain about what is and is not within the bounds of
the Constitution.  Even when a consensus is achieved, the validity of the interpretive premise
is only valid so long as the consensus endures.  Should any of the branches withdraw their
support, a consensus theory approach will no longer command adherence.  These challenges
make the consensus theory difficult for academics to support, and a challenge to discover in
action.   Fortunately, the Alien and Sedition Act crisis provides adequate illustration of this
theory and its benefits to the Republic.
 In the interest of practicality, this paper will only concern itself with two of the four
candidates for constructional authority.  Judicial Supremacy, as clearly enunciated in Cooper
v. Aaron, 358 US 1 (1958), and supported by political practice today, is the current champion
of constitutional law.  As such, it has been surrounded by various illusory virtues that cloud
frank evaluation.  It is hoped that by unmasking these illusory virtues that the true advantages
of Judicial Supremacy will become clear.  Principally, these advantages are rationality and
finality.  Finality, of course, is attendant upon any of the various supremacy theories, and
should not be given undue weight in its judicial manifestation.  The second theory, Consensus
Construction, is best demonstrated by the Alien and Sedition Act crisis.  It is often confused
with its discredited forbear, Departmentalism, but has specific virtues and challenges uniquely
its own.  This theory, having not been enshrined by myth, does not present any illusory
virtues and its true advantages remain to be expounded clearly.  Principally, the advantage of
Consensus Construction is the virtue of consensus.  Inherent in that virtue is the promotion
of the people's sovereignty and the encouragement of their participation in the constitutional
government they created and support.  None of these theories require a Constitutional
Amendment to take effect, the experience of Judicial Supremacy is clear enough proof of that.
What is required for these theories, or any theory of constitutional construction, is political
acceptance and acquiescence.  This is not to say, however, that all theories are created equal.
A clear understanding of the virtues and consequences of each theory should allow the people
to select the best approach for dealing with the challenges of the present age.
 Judicial Supremacy has many adherents, and many compelling arguments in its
defense.  Supporters term Judicial Supremacy, "Judicial Review", while opponents decry it as
"Judicial Tyranny".  To avoid polemics, this essay will refer to the modern practice of
authoritative constitutional interpretation by the Federal courts, and ultimately the Supreme
Court, as Judicial Supremacy.  This term is chosen because the court exercises supreme
authority, subject only to Constitutional Amendment, over the meaning and protections of
the Constitution.   As the present favorite of American constitutional law, this theory has all
the power of myth disguising its true virtues and vices.
 Interestingly, one of the first proponents of judicial review, Alexander Hamilton, did
not argue for Judicial Supremacy as we know it today.  In The Federalist No. 78, Hamilton
presented his case for judicial review under the Constitution, attempting to explain why the
convention had rejected any formal review by the Supreme Court of legislation.  According to
Paul Conkin, Hamilton argued that:

because the Constitution embodied the reasoned, long-term will of the people,
and not their immediate and often whimsical passions, then it was likely the
courts would, at times, have to uphold the covenant against impulsive and even
popular legislation.  They would do this by granting relief to litigants who
claimed that a federal statute, or in some cases a state statute, was contrary to
the constitution...Even when the Court declared an act of Congress
unconstitutional, it could give relief only to litigants.  It could not force
executive or congressional agreement on the constitutional issues at stake,
could not prevent similar legislation in the future, and could not prevent the
implementation of such legislation so long as it did not once again come before
the Supreme Court...The Court has no more authority to interpret the
Constitution than presidents or congresspersons...When representatives of the
three branches disagree on its meaning, only the people by clarifying
amendments can eliminate the ambiguities.

Paul K. Conkin, The Four Foundations of American Government, Harlan Davidson Inc.,
1994, p.30.

 As a result of this disappointing historical pedigree, Judicial Supremacy supporters
seek to justify  the current approach with Chief Justice Marshall's opinion in Marbury v.
Madison.    In that case, however, the Chief Justice claimed only the right for the Court to say
what the Constitution means in regard to the cases that came before it.  While the Marbury
Court declared the Judiciary Act of 1798 unconstitutional with regard to the case before it, it
did not invalidate the law generally, nor did it compel Congress or the President to refrain
from its application.  The Court did not expressly claim any authority to speak for the whole
government on the constitutionality of all actions taken by the other branches.  Instead, the
Court did not take on that authority explicitly until Cooper v. Aaron over 150 years later,
although it exercised it in many earlier cases, implicitly.  After Marbury, however,  the Court
did not invalidate a federal law for over a century, until the Dred Scott case where it
invalidated the Missouri Compromise.  60 US 393 (1857).   Since then, however, the Court
has invalidated an increasing number of federal laws, especially in the last fifty years.  Now,
the Court routinely reviews statutes and executive actions for their constitutionality.
Wherever the foundation is ultimately found, and whatever its true historical pedigree, the
Supreme Court presently holds sufficient political capital and intellectual authority to win
support for its pronouncements of constitutional construction.
 The true advantages of Judicial Supremacy are clear.  First, as a supremacy theory,
Judicial Supremacy has the attendant virtue of finality.  The people, and more often lawyers
and academics, receive an authoritative pronouncement on constitutional meaning from the
Court.  These interpretations bind all public actors until such time as the Court chooses to
overrule themselves and impose a new interpretation.  Stability in the law is promoted and
individuals are able to plan knowing that a certain constitutional interpretation is likely to
endure for the foreseeable future.  This advantage, however, is a necessary consequence of
any of the three versions of the supremacy theory, and it thus becomes important to consider
what makes Judicial Supremacy preferable to Legislative, or Executive, Supremacy.
 Second, Judicial Supremacy presents the unique virtue of rationality.  By virtue of the
judicial process which requires the court to issue an opinion, laying out the reasons behind
their decision, this approach forces the court to engage in rational discourse.  No such
advantage adheres to the other branches, and often decisions by the Congress baffle observers
seeking a rational motivation.  The judicial process, with its emphasis on logic and precedent,
compels the court to at least attempt to find a rationale to support their conclusion.  This
virtue of rationality is real, and compelling, and it helps to make ours a nation of laws and not
men.  Unfortunately, these are the only two necessary virtues of the theory of Judicial
 A number of illusory virtues have been grafted onto Judicial Supremacy, to attempt to
bolster the theory against its opponents.  Many claim that the judicial process in non-political,
and thus individuals get an objective hearing on issues of grave importance.  Another virtue
often mentioned is the virtue of minority protection, especially as regards groups that are
unable to effectively use the political process.  Finally, supporters aver that Judicial
Supremacy is more efficient than the alternatives, securing justice for individuals in the
minimum amount of time.  All of these, however, are illusions, grafted on and accepted only
in ignorance of the history of judicial review in this nation.
 To claim that the judiciary is non-political or objective is to overlook the simple truth
that all branches of our republic are political branches.  For the Supreme Court, this illusion
can be dispelled with two simple illustrations.  The father of the modern Supreme Court,
Chief Justice John Marshall was certainly not apolitical, either personally or as a judge.
Personally, John Marshall served as a determined supporter of the Federalist party, serving as
Congressman, Ambassador, and Secretary of State prior to becoming Chief Justice.
Throughout his life he railed against his opponents, the Democrat-Republicans, and never
missed a chance to make the case for the Federalist approach to governance.  As a judge, he
was not objective enough to recuse himself from the Marbury case.  Secretary of State John
Marshall drew up the list that included Mr. Marbury as a justice of the peace, and while the
Congress was in Federalist hands never considered the Judiciary Act of 1798 unconstitutional.
On the other hand, to promote his, and the court's, authority, John Marshall did not blink at
declaring the law unconstitutional.  In so doing, Marshall proved himself to be a shrewd
political actor.  He secured a Federalist bastion in the Supreme Court, where life tenure
would guarantee a Federalist majority for some time, while giving the Democrat-Republicans
an acceptable result, thus preventing repudiation of his expression of judicial authority.
 A second example of the "non-political" illusion is the so-called "Switch in time that
saved Nine".  During the Great Depression, the Supreme Court repeatedly invalidated New
Deal legislation that the President and Congress believed vital to the recovery of the republic.
This practice culminated in the 1936 decision of Morehead v. New York ex rel. Tipaldo, 298
US 587 (1936), wherein the Court struck down a popular New York minimum wage law on
the grounds that it unconstitutionally violated the fundamental right of “freedom of
contract”.  This 5-4 decision unleashed a firestorm of opposition to the Court, and all but 10
of the 344 newspaper editorials written about the decision attacked it.  In fact, even the
Republican party, normally a staunch supporter of the Court at this time, repudiated the
decision in their 1936 platform.  John W. Johnson “Morehead v. New York ex rel. Tipaldo”,
Oxford.... p. 562.  When President Roosevelt threatened to "pack the court", and add new
justices to secure a different interpretation, the existing Court, without any change in
personnel, reversed course and recognized the constitutionality of New Deal legislation.  In
March of 1937, in the case of West Coast Hotel Co. v. Parrish, 300 US 379 (1937), Justice
Owen Roberts gave the supporters of New Deal-type economic regulation the majority.  His
“switch in time that saved nine” has been routinely criticized as an example of the Court
yielding to political pressure.  This does not seem to be supported by the facts, however, as
Justice Roberts’ vote preceded Roosevelt’s announcement of the court-packing scheme.
Rather, it seems to reflect the Court’s recognition of the harsh reaction by the public to its
earlier line of decisions.   This reaction, either in response to Roosevelt’s plan or the public
reaction, weakens claims of judicial impartiality in constitutional matters.
 As journalist Max Lerner described in his essay “Constitution and Court as Symbols”:

Americans had been politically naive about judicial power, and a set of forces
converging on the New Deal decisions allowed them to realize that the judges
were interested in social policy and capable of changing their minds.  The
Supreme Court became a schoolhouse, and Mr. Justice Owen Roberts proved
an excellent schoolmaster, whether he stonily ignored the future, as in his
decision in United States v. Butler, or looked reluctantly at it, as in his vote in
the Jones & Laughlin case. .. [The people] began to see that judicial decisions
were not babies brought by constitutional storks, but were born out of the
travail of economic circumstance.  They learned that judges were human, and
that judicial power was no more sacred than any other power.  They learned
that, in America, real political sovereignty resides in the odd man on the court.
But they also learned that these isolated, self-contained individuals must
respond, finally, in moments of intense economic and constitutional crisis to
the facts of national life.
Max Lerner, Nine Scorpions in a Bottle, Arcade Publishing, New York, 1994 p. 33

 In both cases, the Court reacted to acute political pressure and preserved its position
in the polity by acting in accordance with the dominant political reality, regardless of the
justice's logical, precedental, or objective determinations of fundamental rights.   By acting
politically, the Court was able to, in Marbury, claim power, and in West Coast Hotel, retain
power relative to the other branches.  The Court is manifestly responsive to political reality,
and thus claims of objectivity are illusory, if not disbelieved.
 The second great illusory advantage is that of minority protection.  It is contended, in
the wake of Brown v. Board of Education, 347 US 483 (1954), that the courts are the only
place a politically impotent minority can secure protection of their constitutional rights.
Bruce A. Ackerman “Beyond Carolene Products” 98 Harv.L.Rev. 713 (1985).  This argument
has great emotional appeal, and it recognizes the difficulty that minorities have in a
majoritarian republic.  It fails to recognize, however, that the Brown decision was only made
necessary by the Court's earlier decision in Plessy v. Ferguson, 163 US 537 (1896).   The
Court in Plessy declared that "separate but equal" was completely consistent with the
Constitution and the Brown decision did nothing more than declare Plessy incorrect.  While
de facto segregation was the rule in much of the United States in the 1890s, it was the Court’s
decision in Plessy that cemented this segregation into a constitutionally permissible practice.
The Court adopted a reading of the 14th Amendment that severed the idea of integration
from the idea of equality, thereby simplifying the task of segregationists in their quest to
persuade political majorities of the correctness of their cause.  Brown did nothing more than
to declare this de jure sanction of segregation repugnant to the Constitution.  Advocates of
the minority protection afforded by a Supreme Court empowered by Judicial Supremacy
cannot simply ignore this half-century of judicial sanctioning of segregation.  Additionally,
until the Civil Rights Act of 1964 was passed by Congress, Brown was largely without
meaning, and it was the majoritarian Congress that first empowered government to act
affirmatively to promote minority rights.  Finally, it was the Supreme Court, in Dred Scott,
that declared that the "Negro has no rights that the white man is bound to respect" and
removed blacks from the pool of potential citizens.   It was not the Court who enfranchised
this minority, it was the people, in the adoption of the 13th, 14th, and 15th Amendments.
 Turning to a different political minority, the Court never acted to protect the
politically impotent female sex, rather it was the legislatures of several states, and ultimately
the Congress and state legislatures who adopted the  19th Amendment, enfranchising women.
US Constitution. Am. 19.   While some claim that the Court’s decision in Roe v. Wade served
to enhance substantially a political minorities’ rights, a closer examination reveals a different
story.  The initially identified political minority, women who wanted to have the option of
legal abortion, were not so powerless that the political process was unresponsive to their
demands.  In fact, some would argue that the Court, in Roe v. Wade, 410 US 113 (1973), by
denying protection to the unborn (a undeniably impotent political minority) has signaled its
unwillingness to extend minority protections beyond that which is politically palatable. While
abortion was illegal in all the states in the 1960s, between 1965 and 1970, fourteen states
adopted the American Law Institute’s proposal to de-criminalize abortion in some
circumstances.  Additionally, New York, Alaska, and Hawaii repealed their abortion laws
outright.  John Hart Ely, “Abortion” The Oxford Companion to the Supreme Court, Oxford
University Press, 1992, Kermit Hall ed., p. 2.   This indicates the very real political power of
abortion-choice supporters, and does not reveal a political minority so powerless that they
had no hope of relief from the majoritarian political process.  In the interest of uniformity,
however, the Supreme Court decided to accept the case of Roe v. Wade and settle the matter.
In its decision, the Court chose to articulate an unwritten fundamental right of a woman to
chose an abortion in certain circumstances.  410 US 113 (1973).   By doing this, the Court
enhanced protection for a group that was capable of promoting its views-abortion rights
supporters, at the expense of a group that was not-unborn fetuses.  It did not do this on the
basis of any agreed-upon interpretation of the Constitution, rather it articulated a
“fundamental right”, contained in the 14th Amendment.   This signal protection of minority
rights does little to enhance the claim that the Court is the branch that protects those who
cannot protect themselves politically.
 The history of the Court demonstrates, without exception, that it has never been the
first branch to act to protect any minority.  While the Court does have a commendable record
recently of protecting minorities who have managed to acquire significant political capital, it
can not claim honestly to protect any minority prior to the acquisition of political capital.
While the personnel on the Court has changed, the institution remains the same, thus vitiating
the claim that the Supreme Court stands indefatigability for the protection of minorities.  If
the Supreme Court's record on minority protection has been stronger of late, it remains
critical to recall that it has not always been that way, and there is no inherent guarantee in the
structure or theory of Judicial Supremacy that prevents the pendulum from swinging back
again.  Finally, proponents of Judicial Supremacy will claim that this approach promotes
justice and efficiency.  This too has no special power.  It took the Court over 50 years to
correct the error of Plessy v. Ferguson.  Swift justice as a special characteristic of the judicial
process can have no meaning in light of this compelling fact.  Additionally, while the people
of the United States were able to respond to the challenges of industrialization in only a few
years politically, judicially, it took the Court many years beyond that to recognize the
injustice of their laissez faire interpretation of the Constitution in the face of manifest
exploitation and suffering.  Beginning with the landmark case of Lochner v. New York, 198
US 45 (1905), and running through the Court’s decision in West Coast Hotel, the
Constitution, as construed by the Court, denied the people the power to regulate capitalism
to prevent the suffering of workers.  Construing a fundamental “freedom of contract” into
the Constitution, the Court disparaged the sovereignty of the people in the interest of the
wealthy and powerful few.   If there is anything inherently more swift or just in the judicial
process as opposed to the political process, it is not apparent from the Court's history.  In
truth, while the legislative process is open to all citizens, the judicial process is only open to
those citizens who can obtain competent assistance from attorneys.  While as a practical
matter, disproportionate influence is wielded by the wealthy and the powerful politically,
grass-roots organizations can and do have a meaningful impact on the law, often securing
results within one or two election cycles.  On the other hand, the judicial process is almost
exclusively the province of the well-educated and the wealthy.  Without a lawyer's effective
help, no citizen can plausibly expect to win a case in the Supreme Court.  Even with
competent assistance, a case will routinely take 5-10 years to reach the Supreme Court, and
even then not be guaranteed a hearing.  Clearly, therefore, there is nothing inherently just or
efficient in the Judicial Supremacy approach to constitutional construction.
 There are also very real disadvantages to Judicial Supremacy that need to be
considered before passing on the appropriateness of this theory for our government.  First,
the virtue of finality, inherent in all the supremacy theories, depends for its value on the
premise that there is a right, or correct, answer to questions of constitutional construction for
the republic at all times and in all situations.   Second, even if there is a right answer, and the
supreme branch chooses correctly, there is diminished incentive for the people to take
responsibility for the maintenance of their Constitution.  If the supreme branch chooses
incorrectly, not only does that disincentive remain, it is compounded by the fact that real
injustice will be authoritatively sanctioned by the Constitution, thus destroying the people's
respect for the Constitution.
 The first disadvantage is a meaningful one, although it is most often confined to the
realm of legal philosophy.  For there to be a correct answer to any constitutional question
assumes that there is an absolute truth that endures in our republic.  Since our country has
changed dramatically over its more than 200 years of existence, this assumption is dangerous
in the extreme.  It is for this reason that the framers made amendment the only legitimate way
of permanently changing the Constitution.   The virtue of finality, however, has the
consequence of compelling some measure of permanence to the pronouncements of the
supreme branch.  In modern times, the idea of there being one correct answer for all time to
any question is difficult to swallow, and the Court's practice of overruling its own earlier
decisions should be proof enough to highlight the danger of this theory.
 Additionally, even if it is possible to get a question of constitutional construction
correct, the Court runs the risk of undermining the popular sovereignty the republic depends
upon.  When the Court successfully enunciates a protected area, what incentive does a citizen
have to go and demand that right's recognition by the government?  Under Judicial
Supremacy, there is none.  The Court's interpretation must be accepted by the other
branches.  As a result, apathy is encouraged, and issues of constitutional importance are
withdrawn from the legislative and executive arena and referred only to the judicial arena.
This contraction of the marketplace of ideas is unfortunate, as it detaches citizens and their
self-interest from the constitutional liberties and processes set up by the framers.  Instead of
holding their representatives in Congress and the White House accountable for behaving
constitutionally, citizens will come to rely on the Court as the guardian of the Constitution.
Thayer declares that there is, “No doubt our doctrine of constitutional law has had a
tendency to drive out questions of justice and right and to fill the minds of legislators with
thoughts of mere legality, of what the constitution allows.  And moreover, even in the matter
of legality, they have felt little responsibility; if we are wrong, they say, the courts will correct
it.” James B. Thayer, “American Doctrine of Constitutional Law”, Harvard Law Review, Vol.
7, No.3 p. 156 October 25, 1893.
 More regrettable, the citizenry will stop seeing itself as the ultimate arbiter of the
Constitution, and become detached from the government which, in theory, exists only to
serve them.  As Thayer pointed out in his biography of John Marshall:

It should be remembered that the exercise of [the power of judicial review],
even when unavoidable, is always attended with a serious evil, namely that the
correction of legislative mistakes comes from the outside, and the people thus
lose the political experience, and moral education and stimulus that comes
from fighting the question out in the ordinary way, and correcting their own
errors.  The tendency of a common and easy resort to this great function...is to
dwarf the political capacity of the people, and to deaden its sense of moral
-James B. Thayer, John Marshall (1920), reprinted in Judicial Dictatorship, p.

 It is possible that this phenomenon is a cause for the decline in voter participation over
the last century.  As meaningful issues are removed from their intellectual horizon, citizens
tune out politics and trust in their Platonic guardians in the Supreme Court.
 Finally, a very dangerous possibility exists in Judicial Supremacy.  If the Court, having
accrued the authority to speak for the Constitution, declare injustice and iniquity to be
sanctioned by the Constitution, and the people do not have recourse to the other branches,
then the very existence of the republic is imperiled.  The people are then left with only two
options to restore their sense of justice to the government--amendment or revolution.
 This consequence forces opponents of the Court’s view outside of the normal political
process.   The Amendment process is one option they may take to bring their views back into
the mainstream.   For example, in the Income Tax case, Pollock v. Farmers’ Loan & Trust
Co., 157 US 429 (1895) and 158 US 601 (1895), the Supreme Court invalidated  Congress’
authority to establish an income tax.  Immediately following the Court’s decision, agitation
for a constitutional amendment to overturn the Court’s interpretation commenced, resulting
in the Sixteenth Amendment’s adoption in 1913. US Constitution, Amendment 16.   Had the
Court not been vested with the power of pronouncing the "right" answer, its determination
that the income tax was unconstitutional may not have compelled the people to seek
Amendment.  This is not to say that the Court should not have declared the income tax
unconstitutional before the passage of the 19th Amendment.  It is merely to say that the result
of their decision, under Judicial Supremacy, was to leave the people no other option but
amendment to gain recognition for their intention to tax income.   In truth, the Amendment
power may not even be all that meaningful, since the Court retains the authority to interpret
any amendments as well.   In any event, one result of a Supreme Court decision is to force
opponents of that decision to the edge of the political process and require them to muster
overwhelming support, in the form of an Amendment, before their position will be
considered valid or even acceptable.
 The second alternative, that of revolution, is manifested by the Court's
pronouncement in Dred Scott v. Sandford, 60 US 393 (1857).  While there are many causes
for the Civil War, surely one of them was the polarizing effect decision had on both
abolitionists and slave-holders.  Speaking authoritatively on behalf of the Constitution, the
Court sanctioned not only the enslavement of Africans and African-Americans, it disallowed
any action by the federal government to prevent the expansion of that institution.  By
invalidating a carefully negotiated set of compromises, Dred Scott destroyed the coalition of
moderates that were preventing civil war.   The case illustrates the dangers of judicial
supremacy for a number of reasons.  First, the Court was able to overrule the long-standing,
and well accepted premise that the federal government held the authority to regulate slavery
in the territories of the United States, thereby invalidating the Missouri Compromise and
pushing the nation one step closer to Civil War.  Second, the Court expressed its opinion not
as a unanimous group of learned justices, but as a ideological majority of seven justices, all
supporting slavery, thus explicitly demonstrating the danger that majoritarian theorists always
feared.  Third, despite the doctrine of judicial restraint, the Justices in this case chose to
express their opinion not only on the limited issue before them, which could have been
construed as narrowly as whether Dred Scott had standing to appeal to the Supreme Court,
but on the broadest possible sweep of issues that the case embraced.    Finally, the decision
decisively removed blacks from the constitutional arena, enshrining in the Constitution ideas
that many considered the essence of injustice.   On the subject of whether blacks were
included in “We the People”, the Court said, “We think they are not, and that they are not
included and were not intended to be included.” Id. at 405.  Additionally, the Court, in its
guise as constitutional guardian declared that blacks, “had for more than a century before
been regarded as beings of an inferior order, and altogether unfit to associate with the white
race...[and] that they had no rights which the white man was bound to respect; and that the
Negro might justly and lawfully be reduced to slavery for his benefit.” Id. at 407.
 While many opponents of the majority decision decried it as mostly dicta, the nation’s
supporters of judicial review were forced to acknowledge the power of the decision, and the
nation was polarized as the hope of compromise was extinguished by the Court.  President
Lincoln, a few years after Dred Scott, expressed clearly the danger of this kind of judicial
review.  In his first inaugural he stated:

I do not forget the position assumed by some that constitutional questions are
to be decided by the Supreme Court, nor do I deny that such decisions must be
binding in any case upon the parties to a suit as to the object of that suit, while
they are also entitled to very high respect and consideration in all parallel cases
by all other departments of the Government. And while it is obviously possible
that such decision may be erroneous in any given case, still the evil effect
following it, being limited to that particular case, with the chance that it may be
overruled and never become a precedent for other cases, can better be borne
than could the evils of a different practice. At the same time, the candid citizen
must confess that if the policy of the Government upon vital questions affecting
the whole people is to be irrevocably fixed by decisions of the Supreme Court,
the instant they are made in ordinary litigation between parties in personal
actions the people will have ceased to be their own rulers, having to that extent
practically resigned their Government into the hands of that eminent tribunal.
Nor is there in this view any assault upon the court or the judges. It is a duty
from which they may not shrink to decide cases properly brought before them,
and it is no fault of theirs if others seek to turn their decisions to political

 Ultimately, in the aftermath of the war, a series of Amendments were enacted,
effectively re-making the Constitution in opposition to the Dred Scott view of the Republic.
Slavery could not only be regulated by the federal government, it was prohibited in the
Republic. US Constitution. Am. 13  Blacks not only had rights that the white man was bound
to respect, they were citizens of the republic. U.S. Constitution. Am. 14  Additionally, not
only was there to be no separate code of justice for blacks, all citizens were guaranteed the
equal protection of the law. Id.  Finally, not only were blacks to be citizens, their right to vote
could not be abridged on the basis of race.  US Constitution. Am. 15 While some may claim
that these changes do not amount to a revolution, it is hard to see how the changes enacted
after the bloody struggle of 1861-1865 are any less dramatic than the changes enacted after
the bloody struggle of 1775-1783.   Certainly for the slaves and their descendants, the Civil
War was a more meaningful revolution than the 18th century war with England.  As Justice
Thurgood Marshall noted in his “Reflections on the Bicentennial of the United States
Constitution”, “While the Union survived the civil war, the Constitution did not.  In its place
arose a new, more promising basis for justice and equality.”  101 Harv.. L.Rev. 1, 2 (1987).
 Additional proof that violence results from perceived injustice perpetrated in the name
of the Constitution can be found in the rise of attacks and terrorism against abortion clinics.
Before Roe v. Wade determined, authoritatively, that the right to choose abortion is inherent
in the Constitution, differences of opinion over abortion only rarely resulted in violent
confrontation.  The argument over abortion raged in statehouses, but clinics were not
bombed.  Partisans of both sides of the issue fought vigorously, and whatever the result, felt
that their perspective had been given a fair hearing.   After the decision, opponents of
abortion were forced to submit to an imposed defeat.  Rather than allowing compromise and
coalition to soothe feelings of defeat and distrust, the decision foreclosed compromise and
prevented the losers from feeling that they had been given the chance to present their case.
This decision effectively foreclosed general political action on the subject of abortion, and
polarized the nation into two irreconcilable camps.  Now, twenty years after the opinion, civil
dialogue has broken down and polarization has produced ever increasing violence and crime.
Recent examples of clinic bombings and the murder of doctors who perform abortions would
be criminal in the absence of Roe v. Wade, but it is unlikely that they would be as common.
While it is unnecessary to speculate as to the eventual outcome of this issue, it is clear that the
perception of injustice, by any group of the polity, expressed in the name of the Constitution,
encourages violence and revolutionary action by partisans of any issue of importance.
 It is also important to consider here the consequences of the Court’s unfettered
discretion in considering what issues are appropriate for it to consider.  As De Tocqueville
noted in the 1830s, and as is certainly true in modern America, “Scarcely any political
question arises in the United States that is not resolved, sooner or later, into a judicial
question.”  A. De Tocqueville, Democracy in America 280 (P. Bradlely ed. 1945).   Since the
Court exercises proper jurisdiction over any and all cases involving constitutional law, the
only real restraint on the Court’s authority, under Judicial Supremacy, is its own self-imposed
restraint.   As Justice Harlan noted  while speaking at Princeton in 1967:

From the beginning...two views as to the proper role of the Supreme Court in
our governmental system have existed...The one [view] is that the Court should
stand ready to bring about needed basic changes in our society which for one
reason or another have failed or lagged in their accomplishment by other
means.  The other [view] is that such changes are best left to the political
process and should not be undertaken by judges who, as they should be
because of their office, are beyond the reach of political considerations...There
can be little doubt but that the former, broader role of the Supreme Court is
the one currently in vogue, and that it is resulting in the accomplishment of
basic changes in governmental relationships.
 US News & World Report, Dec. 18, 1967, at 36; reprinted in “Judicial
Activism:  Old and New”, Alpheus Thomas Mason, Virginia Law Review, vol.
55, no. 3, pp.385-386., April 1969.
 James Bradley Thayer has been the principal advocate for judicial restraint, claiming
that it will,  “leave the courts a great and stately jurisdiction.”  The essential problem of
judicial restraint, however, is that it is the Court that defines the appropriate limits of
restraint.  While many modern commentators conclude that the Court exceeded its bounds in
the series of cases propounding the “freedom of contract”, culminating in the infamous
Lochner decision, they usually fail to recognize that in Justice Stone’s footnote to the
Carolene Products decision, US v. Carolene Products Co. 304 US 144, 152-153 n.4 (1938),
the Court merely re-defined its own arena of activity.  Whereas before the Court acted to
protect laissez faire capitalism, Stone signaled its protection of first amendment freedoms,
political process, and minority rights.  Alpheus  Thomas Mason, “Judicial Activism: Old and
New” Virginia Law Review, 394.   This decision to focus on individual human rights, while
laudable as a moral proposition, is in no way the reflection of any meaningful restraint.  Just
as Justice Peckham conceived of judicial restraint not embracing his protection of the
“freedom of contract”, so too would Justice Stone find no teeth to judicial restraint if
confronted with a situation impugning minority rights as he conceived of them.  The essential
admission here is that self-restraint, unguided by an external source, is essentially
unprincipled and meaningless.  The whim of the justice is the only real restraint on judicial
authority in an age where any, and all, important questions are converted into judicial matters
and can be encompassed in some conception of individual rights.
 Recognition of these disadvantages, however, is not to completely discredit the theory
of Judicial Supremacy.  It is rather, merely to call attention to the true advantages and true
dangers inherent in this approach to constitutional construction.  In the end, the people will
choose the method that best serves their interests, unless academics so cloud the issue that
they are unable to make a clear choice.  In truth, it is entirely likely that for America from
1929-1969, Judicial Supremacy was the best of the available options for constitutional
construction.  That conclusion, if accepted, should not, however, compel us to end our
 Another method of constitutional construction present in the history of our republic,
and one that has attracted little attention from scholars, could serve as well or better than
modern judicial review.  The method of consensus construction, as defined above, is best
illustrated by the experience of the Alien and Sedition Act crisis.  While this method has never
been formally articulated, it appears to require the active participation of at least two
branches with the tacit acceptance of the third.  In this approach, the Supreme Court’s power
is restricted, but not reduced to meaninglessness.  The people remain the ultimate arbiter of
the meaning of the Constitution, and no construction of the Constitution’s words can endure
beyond the consensus that supports that interpretation.
 To understand this approach in practice, it is useful to consider the example
presented.  The Alien and Sedition Act crisis, in general, and the history of the Sedition Act in
particular, present an intriguing study of constitutional issues being played out in the public
arena.   Four acts: the Naturalization Act of June 18, 1987, the Act Concerning Aliens of June
25, 1798, the Act Respecting Alien Enemies of July 6, 1798, and the Act for the Punishment
of Certain Crimes of July 14, 1798, are more commonly labeled as a group the Alien and
Sedition Acts of 1798.  *Crisis* p.1   The history of these acts, from promulgation to
repudiation, demonstrates the consensus construction model in full effect.  Initially, the
Congress and President, with the tacit support of the Supreme Court, construed the First
Amendment as not protecting seditious (as they defined it) speech.  Later, as the public
replaced its Federalist leaders through the election process, the President declared the law
unconstitutional and provided amnesty for all those convicted under the Act.  Simultaneously,
the Congress allowed the Act to lapse, believing it unconstitutional while the Court, again
tacitly, accepted this new, more expansive approach to the First Amendment.  Ultimately, the
Congress expressly pronounced the law unconstitutional and the Court finally completed the
cycle in 1960, declaring the laws unconstitutional.  Through the development of consensus,
the people were able to meaningfully assert their sovereignty and define the Constitution’s
words as they believed appropriate to meet their society’s needs.   Consensus construction
worked in this case over the course of three short years, and produced an understanding of
the First Amendment that continues to illuminate constitutional law today.
 The last of the four laws, known primarily as the Sedition Act, tested the limits of the
First Amendment protection of free speech and granted the government the authority to
punish citizens whose public statements were deemed to be threatening to the administration.
Specifically, provided that a citizen could be imprisoned for up to five years and fined up to
$5000 for their statements against the government.  (See Appendix for full text of act)  The
law did provide that truth could be asserted as a defense, thereby departing from the English
common law crime of seditious libel.  The Federalist party, then dominant in all three
branches of the government, intended to codify the common law of seditious libel and
empower the government to meet the feared threat of French subversion.  Specifically,
Federalists feared so-called American “Jacobins”, or Republicans, who allegedly sought to,
“attain the destruction of the Constitution, a perpetual alliance, offensive and defensive, with
France, and the liquidation of the wise, the good, and the rich.  Federalist heads would roll in
the sand and the United States would be given over to the crimes and horrors perpetrated in
the name of liberty.”  What is our Situation? p. 8, reprinted in Crisis at 14.  In this charged
environment, and with a controlling majority in both houses of Congress, the Federalists
passed the laws swiftly, and immediately began prosecuting offenders.  President Adams
enthusiastically supported the law, believing it to be the only bastion of the Republic against
the designs of Jacobin France.  Crisis 16.  Oddly, in 1798, Republican Albert Gallatin
estimated that nine out of ten journals supported the Administration.   While this estimate
may be too high, historians have concluded that the Federalists did not need the Sedition Act
to ensure a loyal press, they already had it. Crisis 26.  As a result, the editors singled out for
prosecution were primarily members of the minority Democrat-Republican party.
 If the courts indeed have some role-specific solicitude for minorities, this then would
have been an excellent chance to manifest it.  The courts, however, demonstrated no such
solicitude.  Filled with Federalist appointees, lower federal courts routinely convicted and
sentenced Republicans whose criticisms of the Adams administration seemed to fit the new
law’s proscriptions.  While the Supreme Court had not yet decided Marbury v. Madison, the
idea of judicial review was alive in the nation, and it was certainly possible for a court to read
the first amendment and conclude that this Act violated its dictates.  Instead, the courts in
case after case, imprisoned and fined opponents of the Federalist administration.   Several
cases were of prominence, US v. Cooper, 25 F.Cas. 631 (1800), Case of Fries, 9 F.Cas. 924
(1800), and US v. Callendar, 25 F.Cas. 239 (1800) all afforded the Supreme Court justices,
riding on circuit, the opportunity to consider this law and its constitutionality.  In the Cooper
case, the presiding judge, Justice Chase of the Supreme Court, denied Cooper any defense
that his speech was true or that it was not seditious.  In all the cases, the judges had neither
difficulty in enforcing the law, or questions about its constitutionality.
 This lack of questioning was not due to a failure by the defendants to assert that the
Act was unconstitutional.  Congressman Matthew Lyon was tried in Rutland, Vermont, a
strongly Federalist community, for a speech he made on his way from Congress.  During his
trial, Lyon explicitly challenged the Act’s constitutionality.  Justice Patterson, of the Supreme
Court, denied that challenge out of hand.  Lyon was charged with alleging that the President
engaged in ridiculous pomp and parade.   The Congressman attempted to assert truth as a
defense, asking the Justice whether he had not frequently, “dined with the President, and
observed his ridiculous pomp and parade.”  The Justice replied that, “He had never seen any
pomp or parade; he had seen, on the contrary, a great deal of plainness and simplicity.” Crisis
108.  With his legal arguments disposed of by the Justice, Lyon was swiftly convicted by the
jury and sentenced to four months imprisonment and a thousand dollar fine.
 Additionally, the Supreme Court declined to hear any challenge to the Act’s
constitutionality, tacitly agreeing with the Federalist Congress and President.  The dominant
Federalist construction of this Act and the 1st Amendment was that the law did nothing more
than codify the common law offense of seditious libel, and that the Constitution did not
disturb the common law in its substantive provisions.   After all, at common law, the freedom
of the press consisted in the government’s not laying any prior restraints on publication.
Crisis 80.  Additionally, many Federalists felt that the Sedition Act provided extra protection,
beyond that which either the common law or the Constitution required, in that it allowed
truth as a defense.  In any case, the record is clear that the Sedition Act had the enthusiastic
support of Congress and President and, at the very least, the tacit approval of the Supreme
 The Act did appear, however, to the people to be enforced only against Republicans.
Sedition Act prosecutions were almost all high-profile, as the law had a distinctly
press-oriented focus.   It required a person to either publicly act or conspire to oppose the
government (sec.1) or “write, print, utter or publish, or shall cause or procure to be written,
printed, uttered or published, or shall knowingly and willingly assist or aid in writing,
printing, uttering, or publishing any false, scandalous and malicious writings or writings
against the government of the United States, or either house of the Congress of the United
States, or the President of the United States, with intent to defame the said government, or
either house of the said Congress, or the said President, or to bring them, or either of them,
into contempt or disrepute; or to excite against them, or either or any of them, the hatred of
the good people of the United States...” (Sec.2)  This comprehensive language, broadly read
by the courts, allowed Federalist prosecutors to charge and try most of the prominent
Republican newspaper editors in the country.   Unfortunately, the prosecutors were not very
efficient in their prosecution, and many of the charged, and even some of the convicted,
editors published the transcripts of their trials and a steady stream of opposition to the Act
 Additionally, several of the convicted Republicans increased their celebrity through
the Act’s enforcement.  Congressman Lyon was re-elected to Congress while serving his
sentence.  Republican newspapers, barely surviving in the middle states during the XYZ affair
of 1798, rebounded and had surpassed Federalist papers in all regions but New England by
1800.   Many Federalists lamented that the enforcement of the Act had not been vigorous
enough, Republicans saw the Act as giving their party an issue to separate the Federalists from
the cause of national unity.   The assault on the press in the apparent interest of partisan
politics swayed many Americans from the Federalist party, and allowed Jefferson’s
Republicans to recover from their dangerous affinity with Revolutionary France.
Additionally, the Federalists had imposed many taxes in the name of war preparation, many
of which were unpopular.  The land tax, in particular, provoked Fries Rebellion in
Pennsylvania and won many to the Republican banner.  Crisis 135.
 While public opinion was generally in favor of the law in 1798, and fear of war with
France gave the Federalists a mandate to act to defend the nation, by 1800 the Republicans
had marshaled a significant consensus that the Act was wrong and unconstitutional.  In the
elections of 1800, the Federalists were everywhere repudiated, and not only did Adams lose
the Presidency to his arch-rival Jefferson, but the Republicans succeeded in electing its own
candidate Vice-President as well.   Republicans won majorities in both houses of Congress,
and Federalist power in the popularly elected branches was broken forever.
 The Republicans, now in power, had no doubt but that the Sedition Act was
unconstitutional.  A typical opinion was that of William Livingston, who declared that the Act
was a breach of the Constitution, “compared with which, he looked upon war, pestilence, and
every other calamity, as of trifling consequence.” Crisis 166.  Congressman Macon went
further, charging that although previous laws of Congress had sometimes violated the spirit of
the Constitution, now, for the first time, the letter had been directly violated. Id.
 President Jefferson, who assumed control of the Executive branch in March 1801,
immediately pardoned all those still serving terms for violating the Sedition Act.  Additionally,
he announced that he considered the law, “to be nullity as absolute and as palpable as if
Congress had ordered us to fall down and worship a golden image.”   Crisis 231.  While some
Republicans, now in power, attempted prosecutions against Federalists for violating the
Sedition Act, the new popular consensus against the Act defeated any hope of securing
indictments under it.
 Despite this consensus among Republicans, the Congress was unable to secure a
majority to repeal the law.  Crisis 200.  Federalist opposition was sufficient to attach to any
attempt to repeal the Act, an amendment that would “re-instate” the common law against
Seditious Libel.  Id.  Luckily, the Sedition Act, in Sec. 4, contained a sunset provision which
allowed it to expire on March 3, 1801.    Sedition Act. sec. 4.  Conveniently, this was the date
of Thomas Jefferson’s inauguration.  This it did, without comment, thereby ending the first,
and most dramatic American experience with government censorship of the press.
 The Sedition Act had a meaningful life of three years.  From its enactment in 1798 to
the inauguration of Thomas Jefferson in 1801, the Act was an active tool in the hands of
Federalist prosecutors.  While it never enjoyed enthusiastic popular support, the combined
support of all three branches of government allowed it to reign freely until the next popular
election cycle.  In this, the Sedition Act demonstrated the first prong of consensus
construction--that the people’s representatives, acting in concert can construe the
Constitution without destroying the government.  That the election cycle repudiated this
construction demonstrates the second prong--that no construction of the can endure beyond
its support among the people.   The verdict of 1800 settled the issue of government
regulation of the press until the dawning of the 20th century.  Because the people were shown
the potential of government regulation of the press by their representatives, working in
concert, they were able to form a consensus about the proper constitutional protection for the
press.  It only required three years, and the people were fully engaged in the ownership of
their constitutional freedoms.  No single branch imposed its will on the people, and the
construction that  was agreed upon was responsive to changes in the public will.  Just as the
Civil War settled the issue of secession, so did the Sedition Act experience settle the issue of
government regulation of the press.  The losers in the struggle were able to mourn their
defeat, but they did not feel as if they had not been given a fair chance to persuade the
people.  On the contrary, by 1803, when the Act expired, Federalists and Republicans alike
agreed that the Republic was better protected by a free press than a vigorous Sedition Law.
 In the wake of the crisis, the other two branches, in their own time, also declared the
Act unconstitutional.  Congress in 1840, secure now in an understanding of the Sedition Act’s
unconstitutionality, formally declared the Act unconstitutional and appropriated funds to
re-pay all the fines levied under the Act.  The Supreme Court, in the 1964 case New York
Times v. Sullivan, completed the sweep by declaring that the Sedition Act was
unconstitutional.  This after-the-fact confirmation by the other two branches does not confer
legitimacy on the pronouncement in 1800 that the Sedition Act was unconstitutional.  Rather,
it serves to demonstrate the continuing strength of the consensus construction of the
Constitution, arrived at in 1800, that laws like the Sedition Act are repugnant to the
Constitution.  Two consensus’s were reached regarding the Sedition Act--the first, arrived at
by the people’s representatives in 1798, construed the Act as constitutional, and endured for
three years.  The second, arrived at by the people’s representatives following the election of
1800, construed the Act as unconstitutional, and has endured for the one hundred and ninety
years since.
 This approach to constitutional construction has many advantages.  An objectively
correct answer to constitutional questions is not required for this approach to have validity.
Truly, in a democracy, the people are allowed to get the government they desire.  The
people’s representatives in Congress and the Presidency are encouraged to engage in
high-minded dialogue about the Constitution, and compelled to consider their actions in
regard to the constantly evolving experiment that is the United States.   The legitimacy of the
Supreme Court is enhanced, as it is protected from the danger of issuing an authoritative
interpretation of the Constitution in the absence of public consensus.  Finally, and perhaps
most importantly, the people retain meaningful ownership over their constitution.
 In this  system, there is no real cost to the government’s credibility if the “wrong”
answer is chosen.  Since consensus construction requires the active support of at least two
branches and the acquiescence of the third, the people have a meaningful opportunity to
approve or disapprove of the construction.  Congressional elections occur every two years
and, as was demonstrated in 1800, when the people disagree with the consensus of their
government, those representatives will be replaced.  Additionally, the people get the
government they want, and there is no imposition of a constitutional construction upon the
people, rather consent is secured before any construction is taken as authoritative.   Finally,
the people are not forced to consider revolution, or even violence, as long as the ballot
remains a credible method for the expression of constitutional preferences.
 A second advantage is the increased demand  this method places on the people’s
elected representatives.  Instead of being able to ignore constitutionality, and wait for the
Court to settle the matter, representatives will be held accountable for their construction of
the Constitution.  Every action of the legislative and executive will be scrutinized by the
representatives for its constitutionality, lest they go beyond the people’s interpretation and
risk defeat at the polls.  Additionally, minorities will no longer have to depend on being able
to win a case at law for the protection of their rights since the political process itself will be
transformed into a forum for that protection.  Coalitions of constitutional interest become
possible when the elected branches have to take the Constitution into account.   Increasing
accountability, and encouraging high-minded political dialogue, are additional virtues of
consensus construction.
 Finally, each branch will enjoy a more reasonable, and sustainable scope of power.
The branches will be able to engage the public at the highest levels, and each will have the
power of persuasion to shape consensus, and promote their own interpretations.  Meaningful
balance is restored to the federal government, and no one branch risks provoking a
constitutional crisis with their actions.  For example, the executive will again have to wrestle
with important constitutional issues.  The President will still have the power to enforce the
laws, and will not have to fear that the Court will compel enforcement of laws the President
believes unconstitutional, unless a case regarding that exercise properly comes before the
Court.  Additionally, the President will retain the “bully pulpit” and be able to exert
persuasive force upon the people, and shaping opinion through the exercise of the office.
 Congress, on the other hand, will no longer have to worry that the needs of a majority
of the people could go unmet because the Court invalidated the law.  When a deeply felt
need, like the Great Depression, comes over the people, Congress can act confidently to
address that need.  Restraint upon the legislative power will still exist generally in the
President, and specifically in the Court when a litigant feels, and makes a legally cognizable
claim, that a constitutional right has been curtailed.  Public policy will no longer be at the
whim of an unelected Court, and the equality of the legislative branch can be protected
through the structure of the government.   As a fact-finding body, the Congress is capable of
constructing generals solutions to the nation’s aggregate problems.  The Congress also will  be
able to shape public opinion, as its 535 spokespersons engage the nation in every locality.
Additionally, through the election process, Congress is constantly re-inforced and re-formed
by the majority of the people.  Any errors it makes,  when keenly felt, are quickly corrected
by the electorate.
 The Supreme Court,  however, retains meaningful authority.  In the first place, it is
empowered to decide any case that properly comes  before it.  In this way, the Court usurps
the general authority of the Congress and the President so that the case or controversy may
have a final resolution.  While the law challenged will still  be effective upon non-parties,
anyone feeling the sting would retain free access to the judicial system’s remedies.  This
allows the Court to fulfill its primary, judicial, function and ensures that any individual has
recourse to the Court for personal resolution.  It will also allow the Court to bring its unique
perspective to bear without the risk of making a major mistake.  Litigants only present the
specifics of their case before a court, and the court is ill-equipped to make a general
conclusion from that information.  By making the Court’s decision binding only upon the
litigants and lower courts, there is decreased danger that an incorrect result will result in
damage to the republic.   The specific power of the judiciary is preserved, and the dangers of
any decision being viewed as illegitimate are alleviated.
 In the second place, the Court is empowered to persuade the people that its view of
the Constitution is the correct view.  The Court cannot impose its view on the people without
the cooperation of the other branches, but it is always entitled to appeal to the people for
acceptance, and the people may compel the elected branches to accept the Court’s view, or
not, as they see fit.  Through the publishing of its opinions, the Court is able to bring a
logically fashioned, and clearly articulated, view of the Constitution to the people.   By
winning arguments with the force of its reason, the Court can exert a meaningful, and
persuasive, pressure on the people.
 In any event, the sovereignty of the people is preserved, and no one branch is ever
given the right to speak for the people with regard to the Constitution.   This way, the textual
equality of the three branches is preserved, and all branches become responsible for the
constitutional impacts of their decisions.  The President is able to enforce the laws as the
Constitution commands, without fear of anyone other than the people.  Congress is able to
enact laws, consistent with the Constitution, knowing that the President and the people will
pass on the validity of their enactments.  The Supreme Court is able to provide the specific
justice that legislation cannot, and speak to the people directly through their opinions.
 Are there illusory advantages to this approach?  Perhaps, but it is unlikely, since
consensus construction has not been surrounded with myth and almost-religious devotion.
There are consequences, however, to this approach that should be considered.  Consensus
construction is a difficult concept to implement, and the experience of the Alien and Sedition
Acts may not be typical.  After all, the politicians involved were Jefferson, Adams, and
Marshall, and the Supreme Court was not yet used to exercising sovereign power.  The
virtues, however, of consensus construction do warrant, at least, another opportunity to
demonstrate that these advantages are not illusory.
 It is also important to note the advantages that consensus construction has over
Departmentalism.  While Departmentalism thwarts any and all attempts to find an
authoritative constitutional interpretation, consensus construction contains a method for
making just that determination.  Instead of the indeterminacy of Departmentalism, Consensus
Construction allows academics and citizens to appreciate some measure of finality in
interpretation.  By elaborating on the convergence between branches necessary to establish,
or undo, an interpretation, this approach allows for some measure of meaningful finality in
constitutional law.  It does not, however, deny any litigant hope of relief before the Supreme
Court.  That opportunity remains present under Consensus Construction, and is the best
hope of specific justice in all cases.   General justice, however, remains with the Congress and
President, and they are able to pursue their agenda without undue restriction.  Consensus
Construction is meaningfully different from Departmentalism, because it provides for some
measure of certainty in the law.
 As with any theory, consensus construction has some decided disadvantages to go with
its virtues..  First, and foremost, finality in constitutional construction is non-existent until a
consensus forms.  A consensus could form in less time than a Supreme Court case, but there is
no inherent guarantee that this would result.  While consensus is forming, there will be real
disagreement about the meaning of the Constitution, and individual parties could suffer in the
interim.  Additionally, consensus construction requires entrusting the meaning of the
Constitution, at least in part, to the majoritarian political process.  While most conceivable
minorities are included in the political process, there is no guarantee that a majority would
not oppress a minority without a third-party arbiter for the Constitution, like the Court
claims to be under Judicial Supremacy.   These disadvantages, along with the academic
challenge of following all three branches to discover the current meaning of the Constitution,
account for the reluctance to promote consensus construction as the preferred mode of
constitutional construction.
 In the end, the challenge of choosing a preferred method of constitutional
interpretation rests ultimately with the people.  The two methods discussed here, Judicial
Supremacy, and Consensus Construction, both have attendant virtues and vices.   While it is
difficult to measure them both objectively, some attempt must be made to prevent blind
allegiance to one or another from leading the Republic to ruin.   Judicial Supremacy brings
the unique virtue of rationality to the forefront, as it is the rational method of judicial
decisions that gives the Court its special claim to the authority of speaking for the
Constitution.  Consensus Construction, on the other hand, has the necessary virtue of
consensus and compromise to promote its acceptance by the people.
 Rationality, as a virtue, can be justified on several different grounds.  Instrumentally,
the rational decision process by the Court allows citizens and attorneys to logically consider
and expand constitutional liberties when appropriate.  Prediction becomes possible in a
system that claims allegiance to the tenets of logic and reason.  Additionally, there is a strong
normative power behind a decision that is logically justifiable.  When the Court is particularly
strong logically, its decisions tend to lead rather than reflect the country’s dialogue on the
issue.    Finally, politically, judicial decision-making has the virtue of appearing non-partisan.
By employing the tools of logic and reason instead of loyalty and passion, the Court is able to
address issues that are clouded by partisan feeling.
 On the other hand, Consensus Construction is also able to muster a strong set of
supports in its defense.  By requiring the active support, or at least acquiescence, by all three
branches, this approach is able to call upon all modes of public thought--logical, political, and
emotional.  This diversity of thought, embodied in the different processes of each branch of
government, enhances the likelihood that possible pitfalls of an interpretation have been
considered and addressed.  The government is less likely to stumble blindly, since debate is
heard in a variety of forums and with a variety of focus.  Additionally, any interpretation
sanctioned by a strong consensus invariably enjoys a powerful normative authority, since it, in
essence, is the shared morality of society.  Finally, as a political matter, consensus
construction never risks rejection by the people, since only their consent to an interpretation
will command its acceptance as authoritative.
 Balanced against each other, a clearer picture comes into focus.  Judicial Supremacy
seems uniquely well-designed for addressing the needs of a society where the political process
is non-responsive to the felt needs of a politically viable group with intellectual capital.  In
situations where society has allowed injustice to fester, unaddressed, Judicial Supremacy can
force society to move forward, and fulfill the ambitions of those who sit on the Court.  When
the Court is controlled by a forward-looking group, it can be a powerful force for the
liberalization of society, as was demonstrated from the 1930s-1980s.  On the other hand,
Consensus Construction can bring society together, and engage the populace in the
ownership of their government and their Constitution.   While consensus may occasionally be
slow in forming, it will allow the nation to clearly understand and wrestle with the issues of
maintaining the Republic.  By bringing constitutional issues into the public arena, Consensus
Construction is a participatory theory, that promotes democratic virtue by requiring
democratic participation.  Instead of Platonic Guardians, the people will have to protect
themselves, and work harder at securing the blessings of liberty.  In this way, however,
Consensus Construction works to guarantee the continued vitality of the Republic and its
Constitution, while Judicial Supremacy always runs the risk of running afoul the people’s
sense of justice.
 As James Madison wrote in The Federalist No. 51, “If men were angels, no
government would be necessary.  If angels were to govern men, neither external nor internal
controls on government would be necessary.  In framing a government which is to be
administered by men over men, the great difficulty lies in this:   You must first enable the
government to control the governed:  and in the next place, oblige it to control itself.”
James Madison, The Federalist Papers, No. 51.  Thomas Jefferson believed that the best
method of controlling the government was to make the government responsible to the people
for its actions.  In his letter to Edward Carrington, he said:

I am persuaded myself that the good sense of the people will always be found
to be the best army.  They may be led astray for a moment, but will soon
correct themselves.   The people are the only censors of their governors:  and
even their errors will tend to keep these to the true principles of their
institutions.  To punish these errors too severely would be to suppress the only
safeguard of the public liberty.
Thomas Jefferson to Edward Carrington January 16, 1787, reprinted in
Judicial Dictatorship, p. 11.

 To choose between Consensus Construction and Judicial Supremacy, is essentially to
decide whether or not the people can be trusted to correct the errors of their representatives.
Madison’s challenge of obliging the government to control itself is answered by a system of
meaningful checks and balances. While Judicial Supremacy insures that the Legislative and
Executive will not act contrary to the judiciary’s perception of the constitution, who stands to
check the judiciary?  Jefferson’s concerns still have validity today, unless we can answer the
challenge he made at his first inauguration:

Sometimes it is said that man cannot be trusted with the government of
himself.  Can he, then be trusted with the government of others?  Or have we
found angels in the forms of kings to govern him?  Let history answer this
-Thomas Jefferson, First Inaugural Address, March 4, 1801, Thomas Jefferson,
In His Own Words, Barnes & Noble Books, 1993, p. 63.
 Where popes once spoke for the Almighty, and kings and queens once stood above all
to pronounce law upon society, now we permit the Supreme Court to speak for the
Constitution, independent of the agreement of the other branches of our government.  If the
Court were made of angels, this would not be a problem, but as Dred Scott demonstrates, the
Court is composed of all-too-fallible human beings.  While the Court may indeed be the best
repository of reason and rationality in our government, it cannot be the only source of
wisdom or justice.  Consensus Construction allows the Republic to benefit from the collective
wisdom of all three branches, while reminding all representatives that it is the people who are
 Current thinking, both intellectual and pragmatic, recognizes the pivotal role in
constitutional law of the Supreme Court.  In some cases, this recognition boils over into
acceptance of what this argument terms Judicial Supremacy.  In so doing, theorists gain the
important virtues of finality and rationality for their study of the growth of the Constitution.
On the other hand, the lesser known method of Consensus Construction, as demonstrated by
the Alien and Sedition Acts, allow discerning students of the Constitution to re-inforce
democratic theory and popular sovereignty.  In any event, the people will determine which
method suits their needs best.   No method of interpretation can endure absent the support of
the people, and different methods may suit different times.  While Departmentalism enjoyed a
long run of prominence, and State Nullification was purged by war, Judicial Supremacy has
yet to be tested by the people openly.  The American experiment remains unfinished, and the
results remain uncertain.