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> > The Jeffersonian law of the land

Although 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.

"In 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."

It 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?'"

And 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.

The 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.

The 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 M. Schuler

  OCTOBER 2001

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