Jeffersonian law of the land
it is difficult to imagine in these days of judicial dominance,
according to David P. Currie, AB'57, there were eras when the
executive and legislative branches matched the Supreme Court in
fleshing out Constitutional law.
the early days," says Currie, the Edward H. Levi distinguished
service professor in the Law School, "there was no argument over
whether the Constitution should be interpreted in accordance with
the framers' original intentions. Everyone agreed that it should.
The only question-and the answer was often not obvious-was what
the framers had intended."
was legislators, Currie argues in The Constitution in Congress:
The Jeffersonians, 1801-1829 (Chicago, 2001), who took the
lead in elucidating those intentions in the era from Thomas Jefferson's
inauguration in 1801 to Andrew Jackson's election in 1829. "The
Constitution was interpreted by members of Congress and by numerous
executive officers, up to and including the president," Currie
says. "Whenever a federal official proposed to take a particular
action, he always had to ask himself, 'Is it Constitutional?'"
although federal judges became increasingly active, Currie notes,
the groundwork for their decisions was created in extensive legislative
and executive discussions. Indeed, before legislators acted on
any of the era's benchmark issues-the abolition of the new Circuit
Courts, the Louisiana Purchase, the Burr conspiracy, the War of
1812, the Monroe Doctrine, the Missouri Compromise-they weighed
their actions against the Constitution.
Constitutionally minded legislators were following in the footsteps
of the Federalists before them. In his first volume on extra-judicial
interpretations of the document, The Constitution in Congress:
The Federalist Period, 1789-1801 (Chicago, 1996), Currie argues
that the legislative and executive branches took the lead in interpreting
the Constitution during the government's first 12 years.
author of the two-volume The Constitution in the Supreme Court
(Chicago, 1985, 1990), Currie says his continuing intention is
to flesh out legal scholars' understanding of the law of the land.
"I believe Congress and the executive branch have a great deal
to tell us about what the Constitution means."- Peter