Charles A. Beard
The LawBook Exchange, 1999
Originally published by Macmillan, 1912
Charles A. Beard
Started 7/12/02
Completed 7/17/02
I very much agree with Beard's thesis that the Constitution was an economic document, created to protect property rights and the wealthy from the grasp of the jealous have-nots. Beard points out that in Federalist 22 Hamilton states, "It has not a little contributed to the infirmities of the existing system that it never had a ratification by the people." The reason for this was the state legislatures were unlikely to approve the Constitution because they were controled by those who were benefitting from the weak Articles of Confederation.
The idea that the Constitution would be ratified by the people, NOT the states is enumerated time and again in Beveridge's biography of Marshall, relative to Marshall's decisions against state's rights and in favor of a strong federal government. It also put him in direct opposition to Jefferson.
A better understanding of the Shays Rebellion, I think, would add to my understanding of the economic forces leading to the drafting of the Constitution.
pg 15-68: Beard claims of the 55 members of the Constitutional convention, at least 1/3 did very little. of the remaining (about 35), 25 were dominant. Of these 25, 17 had expressed opinions that the Supreme Court WOULD pass on the constitutionality of legislation. He then cites the references for each.
pg 68-73 Beard passes on examing the papers of all those in the ratifying conventions, but does argue that judicial recession of legislation based on constitutionality was well discussed in the conventions.
Pg 74-101 Beard examines the politics of the time and ask if the principle of judicial control is out of "harmony" with the general purpose of the Constitution. He argues the Constitution was created to protect property interests from too much democracy. Regarding-pre 1787 conditions "in short, it was a war between business and populism" (pg. 81) and the makers and supporters were trying to create a government that would be favorable to business and property rights.
pg. 102-112 Beard looks at selective writings of supporters of the Constitution and concludes the supporters were merchants, investors, lenders and traders who desired more stable business conditions and greater respect for property rights.
"On reading these papers by representative and thoughtful men of the period, it is difficult to escape the conclusion that the Constitution was looked upon as a bulwark against populism of every form. Surely men of the type here quoted as in support of the new instrument of government must have rejoiced in the knowledge (spread abroad by The Federalist) that an independent judiciary was to guard the personal and property rights of minorities against all legislatures, state and national." (pg. 110-111)
pg 113-118 John Marshall, who wrote the opinion in Marbury v. Madison was very familiar with the above arguments and historical conditions which surrounded the drafting and approval of the Constitution, since he was a participant. (footnote on pg 115 used below)
pg. 119-127 In Marbury v. Madison, Marshall ruled that the Constitution was the supreme law of the land. If Congress made a law that conflicted with the Constitution, it was the Court's duty as arbiter of disputes to declare legislation in conflict with the Constitution and therefore, invalid. In Marbury v. Madison Marshall ruled Marbury was entitled to his commission and the writ of mandamus sought was the proper remedy. However, he ruled the Court did not have jurisdiction since the law under which the case had been brought, the Judiciary Act of 1789, was in violation of the Constitution. Beard argues (pg 115) that Marshall was looking to establish the precedent of the Court's right to overturn legislation and this case served his purpose since the Judiciary Act could reasonably be interpreted to not conflict with the Constitution.