Synopses & Reviews
In the most thorough examination to date, David P. Currie analyzes from a legal perspective the work of the first six congresses and of the executive branch during the Federalist era, with a view to its significance for constitutional interpretation. He concludes that the original understanding of the Constitution was forged not so much in the courts as in the legislative and executive branches, an argument of crucial importance for scholars in constitutional law, history, and government.
"A joy to read."—Appellate Practive Journal and Update
"[A] patient and exemplary analysis of the work of the first six Congresses."—Geoffrey Marshall, Times Literary Supplement
Synopsis
In the most thorough examination to date, David P. Currie analyzes from a legal perspective the work of the first six congresses and of the executive branch during the Federalist era, with a view to its significance for constitutional interpretation. He concludes that the original understanding of the Constitution was forged not so much in the courts as in the legislative and executive branches. Judicial review has enjoyed such success in the United States that we tend to forget that other branches of government also play a role in interpreting the Constitution. Before 1800, however, nearly all our constitutional law was made by Congress or the president, and so was much of it thereafter. Indeed a number of constitutional issues of the first importance have never been resolved by judges; what we know of their solution we owe to the legislative and executive branches, whose interpretations have established traditions almost as hallowed in some cases as the Constitution itself. The first half of this volume is devoted to the critical work of the First Congress, which was in many ways a continuation of the Constitutional Convention. In addition to setting up executive departments, federal courts, and a national bank, the First Congress imposed the first federal taxes, regulated foreign commerce, and enacted laws respecting naturalization, copyrights and patents, and federal crimes. In so doing it debated a myriad of fundamental questions about the scope and limits of its powers. Thus the First Congress left us a rich legacy of arguments over the meaning of a variety of constitutional provisions, and the quality of those arguments was impressively high. Part Two treats the Second through Sixth Congresses, where members of the legislative and executive branches continued to debate constitutional questions great and small. In addition to such familiar controversies as the Neutrality Proclamation, the Jay Treaty, and the Alien and Sedition Acts, this part traces the difficult constitutional issues that arose when Congress confronted the problems of presidential succession, legislative reapportionment, and the scope of the impeachment power. Proposals to provide relief to New England fishermen, Caribbean refugees, and the victims of a Georgia fire all helped to define the limits of Congress's power to spend. And the period ended with a burst of fireworks as Federalist congressmen concocted schemes of doubtful constitutionality in an effort to deny their defeat at the polls. Constitutional debates over some of these controversial matters tended to be highly partisan. On the whole, however, Currie argues that both Congress and the presidents during this period did their best to determine what the Constitution meant and displayed a commendable sensitivity to the demands of federalism and the separation of powers. Like its predecessors in Currie's ongoing study of the Constitution's evolution, this book will prove indispensable for scholars in constitutional law, history, and government.
About the Author
David P. Currie (1936–2007) was the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago. He is the author of four volumes in the Constitution in Congress series and the award-winning two-volume history The Constitution in the Supreme Court.
Table of Contents
Preface
Abbreviations and Shortened Titles
Part One: The First Congress, 1789-1791
Introduction to Part One
1. The New Government
I. Congress
A. Rules
B. Records
C. Officers
D. Oaths
E. Instructions
F. Qualifications
G. Elections
H. Enumeration
I. Investigation
II. The Special Role of the Senate
A. The French Consular Convention
B. The Fishbourn Affair
C. The Southern Indians
D. The Fort Harmar Treaties
III. The Executive Branch
A. The President's Role in Legislation
B. Emoluments and Titles
C. The Department of Foreign Affairs
D. Other Officers
IV. The Courts
A. The Lower Federal Courts
B. The Supreme Court
2. Substantive Legislation
1. Taxes and Trade
A. Tariffs and Tonnage
B. Whiskey
C. Ship Licensing
D. Inspection Laws
E. Seamen
F. The Slave Trade
II. Spending
A. Appropriations
B. Lighthouses
C. Other Spending Proposals
III. The Public Credit
A. Paper Money
B. The Question of Full Payment
C. The Assumption of State Debts
IV. The Bank of the United States
V. Military, Indian, and Foreign Affairs
A. Soldiers
B. Indians
C. Pirates
VI. Miscellany
A. Naturalization
B. Patents and Copyrights
C. Crimes
D. States
E. Territories
F. The Seat of Government
VII. The Bill of Rights
Conclusion to Part One
Part Two: The Federalists, 1791-1801
Introduction to Part Two
3. The Second Congress, 1791-1793
I. Congress
II. The President
A. The Electoral College
B. Succession
C. Special Elections
III. The Post Office
A. Delegation
B. Federalism and Other Problems
IV. The Mint
V. The Courts
VI. The Militia
A. Organization
B. Employment
VII. The Army
VIII. The Treasury
IX. Codfish
X. Fugitives
XI. Summary
4. The Third Congress, 1793-1795
I. Neutrality
A. The Proclamation
B. The Aftermath
II. Defense
A. The Scope of Federal Authority
B. The President and Congress
III. St. Domingo
IV. Insurrection
V. Citizenship
VI. The Eleventh Amendment
VII. The District of New Hampshire
VIII. The Southwest Delegate
IX. The Flag
5. The Fourth Congress, 1795-1797
I. The Jay Treaty
A. Negotiation and Approval
B. The Role of the House
II. Tennessee
III. Congressional Powers
A. Spending—Again
B. Direct Taxes
C. Perils of the Deep
D. Kidnapping and the Right to Petition
IV. Randall and Whitney
6. The Fifth and Sixth Congresses, 1797-1801
I. Troubles with France
A. Declaring the Peace
B. The Provisional Army
C. Volunteers
D. The French Treaties
II. The Enemy Within
A. Aliens
B. Sedition
C. The Expulsion of Matthew Lyon
D. The Cases of Duane and Randolph
E. All's Well That Ends Well
III. Odds and Ends
A. The Impeachment of Senator Blount
B. Mr. Pinckney's Gifts
C. The Mississippi Territory
D. The District of Columbia
IV. The Election of 1800
A. The Grand Committee
B. Mr. Bayard's Conscience
Conclusion
Appendix: The Constitution of the United States
Index