The U.S. Constitution: A contested document

In a recent address for the U.S. Marshals Museums lecture series, U.S. Supreme Court Justice Antonin Scalia was quoted as saying “The Constitution means what it meant when our fathers adopted it. Of all the things ever written, why should it morph? I don’t know how not to take it literally. It means what it means.”

The problem with this is that the meaning of the Constitution is, and was from the very beginning, far from clear. The Constitution wasn’t written on tablets of stone and brought down from Mt. Vernon beneath the arms of Washington. The Constitution from the very beginning was a contested document.

In his excellent book, “Original Meanings,” Stanford historian Jack Rakove details these early contests. From the debates within the Constitutional Convention, to the debates over the document’s ratification by the states, to the confusion of the first days of the Republic when it was first being applied, there was little clarity, even though there had been an attempt to use simple, precise language in the enunciation of the essential principles of the Constitution.

Interested readers may refer to Madison’s own excellent record of the Convention debates to see the diversity of concerns of the Constitutional writers. They can also examine the existing records from the ratification debate, where Constitutional supporters (as exemplified by Hamilton, Madison and Jay, the writers of the Federalist Papers) were pitted against those opposing the Constitution. Here I wish to focus however on an early debate between the new Congress and the executive branch over the removal of cabinet secretaries.

The Constitution allows for the president’s appointment of these secretaries with the “advise and consent” of the Senate. But nothing was said about how they could be removed. Should they be impeached through a judicial process (which the “plain” meaning of the Constitution implied), removed by the president only after consent of the Senate, or by presidential decision alone?

No one wanted the first.

Some in Congress cited Federalist 77 which affirmed that the Senate’s consent could “displace and appoint” such secretaries. One of these who supported 77’s interpretation was William Smith of South Carolina. He was shocked to receive a letter from the writer of Federalist 77 stating that he had “changed his mind,” and only the president should remove a cabinet secretary. This writer we know today as Alexander Hamilton, chosen shortly thereafter as the nation’s first Secretary of Treasury.

That other great defender and father of the Constitution, James Madison, in a speech before the House of Representatives said, “Whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution … it was nothing but more than a draft of a plan, nothing but a dead letter, until life and vitality were breathed into it by the voice of the people …”

This from the man himself.