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Loyola University of Chicago Law Journal
Summer, 1992, Page 631
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.CLICK HERE TO VIEW 9 - 12 (277 KB)
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AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES: A COMMENTARY *
George Anastaplo **
Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute justice one with another, if you do not oppress the alien, the fatherless or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever."
Jeremiah 7:3-7
TABLE OF CONTENTS - BEGINNING
1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787 . . . . . 632
2. THE FEDERAL CONVENTION AND A BILL OF RIGHTS . . . . . . . . . . . 642
3. PREDECESSORS TO THE AMERICAN BILL OF RIGHTS . . . . . . . . . . . 653
4. THE PURPOSES AND EFFECTS OF THE BILL OF RIGHTS OF 1791 . . 663
5. AMENDMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 676
[Page 632]
6. AMENDMENTS II, III, AND IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 687
7. AMENDMENTS V, VI, VII, AND VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
8. AMENDMENTS IX, X, XI, AND XII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 717
. . . .
APPENDIX A: LETTERS EXCHANGED BY THOMAS JEFFERSON AND
JOHN ADAMS (1814) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 849APPENDIX B: THE CONFEDERATE CONSTITUTION (1861) . . . . . . . . . . 855
1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787
I.
The greatest wars fought by the American people have been civil wars. The first was the struggle between Patriots and Loyalists from 1774 to 1781; the second was the struggle between Northerners and Southerners from 1857 to 1865.[1]
The victors in both wars suppressed far-reaching claims by their rivals. No later British monarch ever plausibly aspired to the power in the British Empire that George III was believed to exercise between 1774 and 1781. No later State government ever again aspired to the power in the American Union that the Confederate [Page 633] States tried to exercise between 1860 and 1865. In each case the aspirants were confronted by armed responses rooted in the constitutional history of a people.
Civil wars tend to be exceptionally traumatic, partly because the cost for each victory is paid twice over: the victor suffers not only his own casualties but those of his fraternal opponent as well. The Patriots could refer, as in the 1776 Declaration of Independence, to their "British Brethren." And in the 1863 Gettysburg Address, the reference to the "brave men, living and dead, who struggled here" unites the desperate enemies of that battlefield.[2]
Extreme circumstances are very much in evidence in civil wars, so much so that people are often obliged to resort to constitutional irregularities in making the supreme efforts to which they dedicate themselves. Rules tend to be flexible in such extremities, with war seeming to dictate a "logic" of its own. This may be seen even in military build-ups, short of war, in troubled times. Such magnification of the national power can be difficult to reverse, however much military forces may be trimmed from time to time.
In both of the great North American civil wars, the long-established principles of the victors asserted themselves, whatever the formal constitution and laws of the day provided. And in both cases formal constitutional developments thereafter ratified what had been achieved by war. These constitutional developments included a determination not to permit everyday life to be governed routinely by the measures that had had to be resorted to in extreme cases.
Two dramatic constitutional developments among the Americans [Page 634] have come in the aftermath of their great civil wars¾in the emergence of the Constitution and its Bill of Rights after the first civil war on this continent and in the emergence of the Thirteenth, Fourteenth, and Fifteenth Amendments after the second civil war. In neither case should these developments endure as disappointments for any of the parties engaged in those struggles: the people of Great Britain had their own liberties confirmed by the check placed upon ambitious royal power in North America; the people of the American South were liberated from crippling institutions that they had been saddled with by their imprudent ancestors more than a century before.
II.
We must set aside until Lecture No. 10 what happened, and did not happen, after 1857 in this Country. It is what happened, and did not happen, after 1774 that is our immediate concern.
The traditional, as well as the natural, rights and liberties of Englishmen were regularly invoked on this side of the Atlantic by the men and women who made the American Revolution. Those prerogatives of a self-governing people were enshrined in such constitutional testimonials as Magna Carta (in 1215), the Petition of Right (in 1628), and the English Bill of Rights (in 1689).[3] In this sense, then, the American Revolution was a deeply conservative movement, however radical it has since been in its effects upon the rest of the world. The Declaration of Independence could be invoked by Vietnamese patriots against French colonialists in the [Page 635] 1940s and by the students in Tiananmen Square against Chinese tyrants in the 1980s.
We can, for our immediate purposes, begin the story of the Constitution of 1787 and its amendment with standard accounts of what happened in the 1770s and thereafter. "On September 5, 1774," we are told,
delegates from the [American] colonies convened in Philadelphia in a "Continental" Congress, so called to differentiate it from local or provincial congresses. The First Continental Congress adopted a Declaration and Resolves to protest British measures and promote American rights; it also adopted the [Continental] Association.[4]
The Continental Association was the agreement "created by the First Continental Congress on October 18, 1774":
It was "a non-importation, non-consumption, and non-exportation agreement" undertaken to obtain redress of American grievances against the British Crown and Parliament. The Articles of Association were signed on October 20 by the representatives of twelve colonies, solemnly binding themselves and their constituents to its terms.
The Articles listed the most pressing American grievances (taxation without representation, extension of admiralty court jurisdiction, denial of trial by jury in tax cases), enumerated the measures to be taken (cessation of commercial ties to Britain), prescribed the penalty for noncompliance (a total breaking off of communication with offenders), and established the machinery for enforcement (through committees of correspondence).[5]
A knowledgeable scholar recently observed,
The Association was a major step toward the creation of a federal union of American states. It was the first prescriptive act of a national Congress to be binding directly on individuals, and the efforts at enforcement of or compliance with its terms certainly contributed to the formation of a national identity.[6]
This scholar concluded, "With but little exaggeration [it has been said], 'The signature of the Association [in 1774] may be considered as the commencement of the American union."[7]
The First Continental Congress dissolved four days after the signing of the Articles of Association, "having decided that the col-[Page 636]onies should meet again if necessary on May 10, 1775. By that time, the colonies and Great Britain were at war."[8] We conclude our reliance upon standard accounts of the Continental Congress with this report:
The Second Continental Congress adopted a Declaration of the Causes and Necessity of Taking Up Arms on July 6, 1775 and the Declaration of Independence a year later. The Congress appointed George Washington as commander-in-chief of its armies, directed the war, managed foreign affairs, and adopted a plan of union designated as the Articles of Confederation. After the thirteenth state ratified the Articles in 1781, the official governing body of the United States became known as "the Congress of the Confederation," but it was a continuation of the Continental Congress and was not reconstituted until 1789, when a Congress elected under the Constitution of the United States took office.[9]
Voting in the Continental Congress, as later in the Confederation Congress, was by Colonies (or States), with each of the thirteen having one vote.
III.
It is difficult to exaggerate the constitutional implications of the Declaration of Independence, which has long been set forth in the United States Statutes as the first of "the organic laws of the United States of America." Indicative of the fundamental character of this document is the practice of dating official papers from July 4, 1776. [10] This mode of dating may be seen as well in the opening line of the Gettysburg Address, "Four score and seven years ago," with a Nation or Country (not a mere alliance, association, or confederation) having firmly taken root in July 1776.
Much of the constitutional system that we have long been accustomed to is already taken for granted in the Declaration of Independence, where grievances and remedies are routinely put in terms of the principles and history of the English-speaking peoples. The ends of government are indicated and the significance of the consent of the governed is affirmed. Various of the rights and liberties protected in our Constitution and its Bill of Rights are drawn upon in the grievances collected in the Continental Association, in the Declaration of Independence, and elsewhere.
The form of government implied in the Declaration of Independence [Page 637] assumes a qualified separation of powers, reliance on representative assemblies, and access to independent courts. An executive power is recognized as legitimate, but only if kept within constitutional bounds which respect the prerogatives of legislatures in the making of laws. The supervisory authority of a national government is also recognized, but again only if kept within constitutional bounds which respect the prerogatives of local governments and ultimately of the people.
It should again be noticed that the Declaration of Independence does not purport to devise or invent new principles and forms. Rather, it uses long- established principles in identifying accumulated grievances and in responding to intolerable conditions.
The Declaration of Independence also leaves various questions open, such as the character that a people should have in order to make the best use of the rights and liberties invoked in the Declaration. Another way of putting this is to say that the Declaration of Independence does not address, in a systematic way, the perennial question of the political, social, and other arrangements that are most likely to secure the enduring happiness that human beings are naturally bound to pursue.[11]
IV.
Vital to the affirmations of the Declaration of Independence is the self- evident truth that "all Men are created equal." The meaning and application of this principle have been major concerns of the American people for more than two centuries now. Precisely how the equality principle should be applied depends on circumstances, so much so that at times it can mean that all States (as the agents of diverse communities of men) should be treated the same and at other times it can mean that all persons should be treated the same.
That aspect of the equality of "all Men" which is expressed through the States may be seen in the Articles of Confederation in which the States had equal votes. It may still be seen in, among other places, the Senate of the United States under the Constitution [Page 638] of 1787. This expression of equality through the States is further seen in the uniformity of constitutional obligations and restrictions imposed upon both the United States and the States in dealing with one another. That aspect of the equality of "all Men" which is expressed on behalf of persons may be seen, for example, in the extension of the vote to eighteen-year-olds by the Twenty-sixth Amendment. It may be seen as well in the divergent efforts made to extend constitutional protection both to fetuses virtually from the moment of conception and to pregnant women desiring abortions. It should be evident that the contending applications of the powerful equality principle have to be accommodated on the basis of an even- higher principle, a principle of excellence grounded in liberty that finds just expression through the dictates of prudence. Prudence, with its dependence on nature, is an underlying concern of these Lectures as it is of my Lectures on the Constitution of 1787.[12]
Prudence may be seen in the practices that a people resorts to as well as in the principles that it is guided by. Although the Articles of Confederation (first drafted by the Continental Congress in 1777) were not fully ratified until 1781, the Country was governed and a war was fought pursuant to the Articles well before their ratification. In fact, the Articles of Confederation themselves formalized, from 1777 on, what had been the practice of the Continental Congress even before Independence. The Articles, as the name suggests, had various features of a treaty relationship, with the law of nations influential in guiding the States in providing for their dealings with one another.
But the Articles of Confederation were somewhat irregular: they were never in conformity with the best constitutional thought of the day. The Constitution of 1787 is much closer to what a natural constitutionalism called for. This is testified to by what was done by the Confederation Congress sitting in New York while the Federal Convention was sitting in Philadelphia. That Congress produced the Northwest Ordinance which provides, for a territory comparable in size to the original thirteen States, a constitutional system much closer in form and in spirit to that found in the Constitution of 1787 than to that found in the Articles of Confederation.
The Confederation Congress was better able in the Northwest [Page 639] Ordinance than the Federal Convention proved to be in the Constitution to apply the equality principle to a critical issue of that day, slavery. Congress provided in its Ordinance of '87 that there should be "neither slavery nor involuntary servitude in [the Northwest Territory] otherwise than in punishment of crimes whereof the party shall have been duly convicted."
It was this recourse to the equality principle in the Northwest Ordinance that may have been decisive to the fate of the Nation in the Civil War seven decades later. Because of that dramatic military vindication of the equality principle, on which the rule of law and hence our personal liberties and our rights to property depend, there were only victors, and no permanent losers, in the American Civil War.
V.
Problems with the Articles of Confederation were recognized from the outset, but the need to get on with the Revolutionary War precluded the political efforts and extended deliberation needed to move beyond this treaty-like arrangement. That something would have to be done eventually was implicitly recognized by the insistence in the Articles that the Union being provided for was "perpetual." It must have been obvious to most thoughtful observers, from 1777 on, that however "perpetual" the Union itself might be, the cumbersome constitutional arrangements that had to be resorted to during the war could not last long.
The complaints that accumulated about the Articles of Confederation began to rival in scope, although not in moral intensity, those that had been collected in the Declaration of Independence about how difficult it had become for the American people to be governed properly. The National Government, under the Articles, had no direct control over citizens, no source of revenues of its own, no independent executive, only one house in its legislature, no national judicial system, limited legislative powers (especially with respect to the commerce, or economy, of the Country), and no way of formally amending the Articles of Confederation without the unanimous consent of the thirteen States. Repeated efforts to make modest changes in the Articles of Confederation fell afoul of this unanimity rule. That led in turn to the 1787 Federal Convention with its proposal of a comprehensive reworking of the form of government so as to make it conform to generally-recognized principles, not least with respect to the mode of ratification and thereafter of amendment. [Page 640]
One of the things that the fettered Confederation Congress could manage to do was to call a Federal Convention to consider changes for the Articles of Confederation. This call led to that grand meeting in Philadelphia between May and September of 1787 which produced the Constitution we now have.
VI.
To speak as we sometimes do of the "intentions of the Federal Convention" suggests that that body had an overall purpose or plan. An overall plan tends to be lost sight of by those who emphasize the compromise, if not even the chance, aspects in the drafting of the Constitution of 1787.
Whether or not one considers the Constitution well-crafted affects how one attempts to read it and, indeed, whether it makes sense to try to read it at all. My own efforts to read the Constitution have been described as "based primarily on analysis of the original text of the Constitution."[13]
What, then, were the intentions of the Federal Convention? If the Framers knew what they were doing, and if they were pretty much able to get their way, then their intentions were to produce [Page 641] substantially the document that came out of the Convention on September 17, 1787. Three departments, or branches, of government are set forth, with the Congress clearly in charge; plenary powers are provided the National Government with respect to commerce, war, and the foreign affairs of the Country; adequate revenue powers are also provided; significant restraints are placed upon the States, with a supervisory power entrusted to the General Government with respect to both the conduct and the creation of States.
The Framers were particularly concerned that there be a pervasive rule of law in the United States. This concern is reflected not only in the superiority assigned by them to the legislative branch, but even more in the serious reliance by a people upon a constitution. Congress itself is restrained in critical respects, especially with a view to insuring that it is primarily by laws that Congress exerts itself, as may be seen in the detailed provisions about how a law is enacted and in the prohibitions upon ex post facto laws and bills of attainder.
Does not my approach to the Constitution look to an overall constitutional development that should continue to work its way out, if things go well, until the promises of the Declaration of Independence are substantially realized for the "new nation" there "set forth"? We will be obliged to consider, as we review the twenty-six Amendments that have been added to the Constitution of 1787, what remains to be changed either informally through adaptations in practices or formally through the amendatory processes set forth in Article V of the Constitution.
VII.
Before we turn to the background and development of the Amendments to the Constitution known as the Bill of Rights, it is important to recognize that the talented men who arranged for and finally controlled the Federal Convention of 1787 managed thereafter to get the Constitution ratified in the States. They then managed to secure control not only of the Presidency but also of the First Congress in which the Bill of Rights was drafted. It should not surprise us, therefore, that the Bill of Rights of 1789-1791 accepted both the understanding of the Union and the extent of the government evident in the Constitution of 1787.
It is generally known that the First Congress refused, in the Amendment now known as the Tenth, to limit the Government of the United States only to powers that had been "expressly delegated" [Page 642] to it. That amendment reads, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The term expressly had been used in like circumstances in Article II of the Articles of Confederation, where it is provided, "Each State retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled." Instead of such a limitation, the Constitution of 1787 provides that Congress should have power to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof." The efforts made by a lively minority in the First Congress to curtail the implied powers of Congress were soundly defeated. This, as I have said, is generally known.
What is not generally known is that although the Articles of Confederation had presented the powers of the National Government as coming from the States, the Constitution of 1787 assumes that those powers come not from separate and somehow independent States, but rather from the People of the United States, the "perpetual union" of which is made "more perfect" by that constitution. We shall see in Lecture No. 8 that the authority of the "one People," recognized both at the outset of the Declaration of Independence and at the outset of the Preamble to the Constitution of 1787, is further recognized in the Tenth Amendment, something that comes as a surprise to the typical States' Rights advocate.
In these matters, however, the major surprises lie not in the information that is made use of by students of the Constitution, but rather (if at all) in how that information is interpreted. After all, the documents and other materials from which relevant information about the Constitution is drawn have long been known to students of American constitutional developments. Also once known, but largely lost sight of these days, is how much can be gotten from a proper assessment of the information long available about our remarkable constitutional system.
2. THE FEDERAL CONVENTION AND A BILL OF RIGHTS
I.
Proposals were made from time to time during the Federal Convention of 1787 for a systematic protection of rights to be included in the instrument that was being prepared. Some individual rights [Page 643] are provided for in the Constitution that came out of that Convention on September 17, 1787.
Those rights are usually dealt with in the Constitution of 1787 because of powers granted to the Government of the United States. Thus, in Article I, limitations are placed upon the power that the Congress might otherwise have (naturally?) had to suspend the privilege of the writ of habeas corpus. Also, in Article III, limitations are placed upon the power that the Courts had traditionally had to punish the crime of treason.
It was argued, however, that there was no need to provide various other guarantees, because the powers of Congress did not extend to putting those rights in jeopardy. For example, it was said during the Ratification Campaign that there was no need to provide for liberty of the press because Congress was not given any power to regulate the press.[14]
Even so, there are numerous rights recognized in the Constitution of 1787, in addition to the habeas corpus and treason guarantees. These include assurances with respect to elections, the subordination of the military to civilian control, bills of attainder, ex post facto laws, legislative immunity, impeachment of civil officers, trial by jury in criminal cases, and life tenure for judges. Overarching all of these may be said to be the guarantee by the National Government of a Republican Form of Government in each State.
II.
There was considerable demand during the Ratification Campaign of 1787-1788 for a Bill of Rights. Perhaps the demand would have been moderated if the dozen or so guarantees in the body of the Constitution had been collected by the Convention in one place rather than left scattered throughout the document. But this would have obscured the instructive organization of the Constitution, an organization that is reflected in the placement therein of various rights.
The demand for a Bill of Rights was anticipated, although rather casually, during the Convention itself. There were only three occasions, so far as we know, on which something substantial was said about including a bill of rights in the constitution that was being prepared that summer. These occasions were on August 20, Sep- [Page 644] tember 12, and September 15, 1787.[15]
The most systematic effort recorded with respect to a bill of rights was that made by Charles Pinckney of South Carolina on August 20. Bill-of-rights proposals were included by him among the dozen propositions he submitted to the Convention on that occasion.[16] Or, as Madison first put it in his Notes for that date: [Page 645]
Mr. Pinkney submitted sundry propositions¾1. authorizing the Legislature to imprison for insult. 2. to require opinion of the Judges. 3. securing the benefit of the habeas corpus. 4. preserving the liberty of the press. 5. guarding agst billeting of soldiers. 6. agst. raising troops without the consent of the Legislature. 7. rendering the great officers of the Union incapable of other offices either under the Genl Govt. or the State Govts. 8. forbidding religious tests. 9. declaring the U. States to be a body politic and corporate. 10. providing a great seal to be affixed to laws &c. 11. extending the jurisdiction of the Judiciary to controversies between the United States & States or individuals. [17]
Madison adds that "these were referred to the Committee of detail for consideration & report." [18] Various of these propositions, such as the habeas corpus guarantee, found their way into the Constitution, but the Pinckney collection as such was not reported back to the Convention by the Committee of Detail. Elsewhere, Pinckney refers to three rights (two of them in his list of August 20) as "essential in Free Governments": "the privilege of the Writ of Habeas Corpus¾The Trial by Jury in all cases, Criminal as well as Civil¾The Freedom of the Press." [19] A fourth provision (also in his list), "the prevention of Religious Tests, as qualifications to Offices of Trust or Emolument," he speaks of as "a provision the world will expect from [the Federal Convention], in the establishment of a System founded on Republican Principles, and in an age so liberal and enlightened as the present."[20]
There is no discussion of the Pinckney propositions recorded in the entry for August 20 or any other time during the life of the Convention.
III.
Not mentioned by Pinckney on August 20, but mentioned on September 12, is the right to trial by jury in civil cases (that is, in suits at Common Law). By this time, the Constitution included a guarantee of trial by jury in criminal cases.
Madison's Notes for September 12 include this exchange prompted by the suggestion that civil juries be guaranteed:
Mr. Williamson, observed to the House that no provision was yet made for juries in Civil cases and suggested the necessity of it. [Page 646]
Mr. Gorham. It is not possible to discriminate equity cases from those in which juries are proper. The Representatives of the people may be safely trusted in this matter.
Mr. Gerry urged the necessity of Juries to guard agst corrupt Judges. He proposed that the Committee last appointed should be directed to provide a clause for securing the trial by Juries.
Col. Mason perceived the difficulty mentioned by Mr. Gorham. The jury cases cannot be specified. A general principle laid down on this and some other points would be sufficient. He wishes the plan [the Constitution] had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose¾It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.
Mr. Gerry concurred in the idea & moved for a Committee to prepare a Bill of Rights. Col: Mason 2ded the motion.[21]
Thereafter, the Bill of Rights proposal was voted down, 10-0, with Gerry's Massachusetts delegation abstaining.[22]
Juries were looked to in civil as well as criminal cases as a guard against corrupt judges. The people, acting through the juries that they make up, were depended on to help keep the judges in line. George Washington, in a letter to the Marquis La Fayette the following April, recalled this reason why the civil jury guarantee was not provided by the Convention:
[I]t was only the difficulty of establishing a mode which should not interfere with the fixed modes of any of the States, that induced the Convention to leave it, as a matter of future adjustment [that is, by the Legislature]. [23]
What is the significance of variations from State to State in these matters? It seems that what some rights included had always depended, in part, on local practice, whether in North America or in Great Britain. It was not exclusively a natural right or something developed by reason alone. What people are accustomed to does [Page 647] matter, and that can vary from place to place, especially if there are no supervisory legislatures and courts to sort out local variations. It seems to have been agreed that variations with respect to civil trial practice made it prudent to leave this matter to the new government to experiment with, rather than to settle permanently upon a single mode in the Constitution.
There were those who preferred to allow local variations to develop as they would, altogether free from any interference by the National Government. The courts provided for by the Constitution threatened to interfere so much with State judicial practices that George Mason could protest in the Convention on September 15:
The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by a great part of the community, as in England, and enabling the rich to oppress and ruin the poor. [24]
Even so, the Convention (but not Mason) went on, two days later, to sign the proposed Constitution, imperial judiciary and all.
IV.
We have seen that the raising of the civil jury issue on September 12 led to George Mason's expressing the wish for a bill of rights. We have also seen that Elbridge Gerry concurred and moved that a committee be assigned to prepare a bill of rights. We have seen as well that not a single State delegation voted to establish such a committee. So far along were the proceedings by this time that a draft of the Constitution was reported that day by the Committee of Style, a draft that looks much like the Constitution that was finally approved. (These futile efforts to get a bill of rights were by two of the three delegates who were to refuse their signatures to the Constitution the following week). This September 12th action seems to have been the only direct vote in the Convention on the question of a bill of rights.
Roger Sherman, arguing against recourse to a bill of rights, said that he "was for securing the rights of the people where requisite." But he added, "The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient." Mason replied to Sherman, "The Laws of the U.S. are to be paramount to State Bills of Rights." [25] [Page 648]
It was again and again insisted upon, even more during the Ratification Campaign than during the Convention, that the rights of the people were not in jeopardy and hence no bill of rights was needed. What are we to make of Sherman's suggestion that the States' recognition of these rights sufficed? He seemed to believe that the State bills of rights were not to be treated as laws; if that is what they were, then Mason's response would have been decisive. Rather, the Sherman approach indicates, the States' declarations served to recall the rights that the English-speaking peoples had long had and were still developing. It was also pointed out during the Ratification Campaign that the security of these rights in the States themselves did not depend on bills of rights, since half of the States had no such bills in their own constitutions.
We have noticed that the great rights of the English-speaking peoples are not simply natural rights. They depend, for their precise forms and effects, on historical (or accidental) developments from place to place. This suggests that these rights, except for those directing judicial proceedings, do not necessarily depend on the Courts for their enforcement against the Legislature and the Executive.
The important thing here, Sherman seems to say, is that these rights be recognized by the American people, not that they should be added to the Constitution of the United States. In fact, it can be argued, their being added to the Constitution in the Bill of Rights in 1791 may have tended to eclipse the State bills of rights, obscuring from view some of the rights found there but not in the 1791 Bill of Rights.
V.
On September 15, the next-to-last meeting of the Convention, various odds and ends were dealt with by the delegates. Gouverneur Morris, for example, was concerned that the pardoning power not be lodged with the legislature.
Pinckney and Gerry took the opportunity of this final review of the draft to suggest that the following provision be added to the Judiciary Article, "And a trial by jury shall be preserved as usual in civil cases." But it was again argued in response, "The constitution of Juries is different in different States and the trial is usual in different cases in different States." [26] The proposal was voted down once again. But this proposed addition did bear fruit eventually, [Page 649] since it was used, but without the "usual," in the Seventh Amendment.
Further on, Madison warned that if special provisos were permitted at that final stage of the proceedings, "every State will insist on them, for their boundaries, exports &c." [27] The three dissenters (Elbridge Gerry, George Mason, and Edmund Randolph) made a last-ditch effort to have a second convention called at which delegates could review the responses of the people to the constitution that had been prepared. The last major comment recorded on that occasion was that made by one of the three holdouts, a delegate from Massachusetts:
Mr. Gerry, stated the objections which determined him to withhold his name from the Constitution. 1. the duration and reeligibility of the Senate. 2. the power of the House of Representatives to conceal their journals. 3.¾the power of Congress over the places of election. 4. the unlimited power of Congress over their own compensations. 5. Massachusetts has not a due share of Representatives allotted to her. 6. 3/5 of the Blacks are to be represented as if they were freemen. 7. Under the power over commerce, monopolies may be established. 8. The vice president being made head of the Senate. He could however he said get over all these, if the rights of the Citizens were not rendered insecure 1. by the general power of the Legislature to make what laws they may please to call necessary and proper. 2. raise armies and money without limit. 3. to establish a tribunal without juries, which will be a Star-chamber as to Civil cases. Under such a view of the Constitution, the best that could be done he conceived was to provide for a second general Convention.[28]
Gerry expresses a concern about the lack of protection for "the rights of the Citizens." The problem of no bill of rights is again alluded to, even though only three matters are listed thereafter, concluding with the lack of a guarantee of trial by jury in civil cases, which Gerry saw as permitting "a Star-chamber as to Civil cases."
We should notice another concern, expressed again and again not only by those who lamented the lack of a bill of rights, the concern lest the military (or the Executive as commander-in-chief) get out of control. Several provisions in the Constitution, including the grant to Congress of the power to declare war, speak to this [Page 650] concern. This problem is still with us today, as we can see in the free hand the President insisted upon in the Persian Gulf despite constitutional provisions which seem to provide for his ultimate subordination in such matters to Congress. The traditional concern about proper political supervision of the military may be seen in how our Persian Gulf allies took all this: they insisted upon directions from the United Nations Security Council before force was resorted to by the United States against Iraq. Thus, a political or legislative judgment was to be relied upon more than the President was inclined to recognize. It was a curious state of affairs which found the Russians and others providing us with models of moderation.
VI.
One of the changes proposed and accepted on September 15, 1787 was with respect to the sensitive issue of slavery. The Fugitive Slave provision in Article IV now reads:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall in consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on claim of the party to whom such Service or Labour may be due.
We are told by Madison that on September 15 "the term 'legally' was struck out, and 'under the laws thereof' inserted after the word 'State,' in compliance with the wish of some who thought the term 'legal' equivocal, and favoring the idea that slavery was legal in a moral view."[29]
We can see here, as elsewhere, an awareness of the moral principles on which the proposed constitutional system depends. This is reflected in, among other places, the Common Law which serves as the foundation of the system. However important morality was taken to be, certain proposed efforts on its behalf were more drastic than the Convention wished to write into the Constitution. Consider the concern about the kind of character that republican institutions require. Plutarch, for example, tells us that Mark Antony was criticized, in a troubled Rome which still had republican aspirations, for his "impudent luxury."[30] It is in this spirit, perhaps, that Mason proposed (on August 20) that Congress be empowered [Page 651] to enact sumptuary laws. Three State delegations (Delaware, Maryland, and Georgia) supported him after a discussion which is recorded in this fashion:
Mr. Mason moved to enable Congress "to enact sumptuary laws." No Government can be maintained unless the manners be made consonant to it. Such a discretionary power may do good and can do no harm. A proper regulation of excises & of trade may do a great deal but it is best to have an express provision. It was objected to sumptuary laws that they were contrary to nature. This was a vulgar error. The love of distinction it is true is natural; but the object of sumptuary laws is not to extinguish this principle but to give it a proper direction.
Mr. Elseworth, The best remedy is to enforce taxes & debts. As far as the regulation of eating & drinking can be reasonable, it is provided for in the power of taxation.
Mr. Govr. Morris argued that sumptuary laws tended to create a landed Nobility, by fixing in the great-landholders and their posterity their present possessions.
Mr. Gerry, the law of necessity is the best sumptuary law.[31]
This issue was returned to by Mason on September 13:
Col. Mason¾He had [on August 20] moved without success for a power to make sumptuary regulations. He had not yet lost sight of his object. After descanting on the extravagance of our manners, the excessive consumption of foreign superfluities, and the necessity of restricting it, as well with oeconomical as republican views, he moved that a Committee be appointed to report articles of Association for encouraging by the advice the influence and the example of the members of the Convention, economy frugality and american manufactures.
Docr. Johnson 2ded the motion which was without debate agreed to, nem: con: and a Committee appointed, consisting of Col: Mason, Docr. Franklin, Mr. Dickenson, Docr. Johnson, and Mr. Livingston.[32]
The committee of the more elderly delegates to which the Mason proposal was assigned is not recorded as ever having returned to the Convention with a report. Perhaps we should consider the question still open, especially as today we see among us more and more luxury and a perhaps related increasing privatization of everyday life. [Page 652]
It seems to have been recognized in the exchange on August 20 that the commerce power and the taxation power could properly be used to advance ends having to do with the moral character of the people, something to be kept in mind when we hear it argued either that moral standards are "relative" or that morality cannot (perhaps should not) be legislated. Whatever the reservations the Convention may have had about the more rigorous Mason approach, it evidently did not believe that moral training was beyond either the scope or the competence of American legislatures, especially if the people were to be able to use sensibly the rights to which they had long been entitled.
VII.
We must wonder, then, what moral character is required to make the Constitution work, especially if enforcement of and respect for rights depend on the people's vigilance (but not the people's hysteria). What the people can do in such matters may be seen in the recent experience in Great Britain with the "poll tax." The anti-poll tax measures resorted to there were political, not judicial: something old and feared, or detested, could be conjured up, and a formidable resistance developed, whether or not justified.
Another initiative of August 20 with respect to morality came from Pinckney and the hardheaded Morris. It was suggested by them that the duties of the Chief Justice include recommending "such alterations of and additions to the laws of the U.S. as may in his opinion be necessary to the due administration of Justice, and such as may promote useful learning and inculcate sound morality throughout the Union."[33] Thus, morality was not considered only a State-by-State concern but rather was national in scope.
Fundamental to a proper inculcation and preservation of morality, the Framers obviously believed, was the establishment and perpetuation of a proper national government for the people of the United States. Effective government means, by the way, that ex post facto laws might have to be resorted to in civil matters, something which Mason was concerned that the Constitution not forbid, lest the impossibility of complying with such an absolute prohibition lead to the habit of disregarding the Constitution.[34]
Proper government means, among other things, an enduring rule of law, which in turn depends on (and promotes) liberty and the rights of citizens, such rights as are sought to be protected by bills [Page 653] of rights. So it could be insisted, during the Ratification Campaign of 1787-1788, that the Constitution itself was a bill of rights. Proper government also presupposes a general understanding of what constitutes the Country with which a government should be concerned. The American Civil War attempt at redefinition of the extent of the Country began, it will be recalled, in South Carolina. It should also be recalled that the bill of rights and other propositions submitted to the Convention on August 20 by a South Carolinian, Pinckney, included this provision: "The U.S. shall be for ever considered as one Body corporate and politic in law, and entitled to all the rights privileges, and immunities, which to Bodies corporate do or ought to appertain." [35] We hear echoes here of the opening and closing lines of the Declaration of Independence. We hear also a reaffirmation, as in the Declaration, of the people from whom all powers flow and to whom various rights belong, whether or not those powers and rights happen to be acknowledged by any particular document.
3. PREDECESSORS TO THE AMERICAN BILL OF RIGHTS
I.
The Bill of Rights of 1791 does not come out of nothing. For one thing, it is vital, for an effective bill of rights, that the rule of law already be established in a community. A bill of rights may guide and refine that rule of law; it cannot create or do without it.
This rule-of-law background bears on what can be done with declarations of rights in a variety of regimes all over the world. Without a proper, and reliable, rule of law, there is not likely to be either the secure civil liberties a people yearn for or the reliable economic development that stable government depends on. All this bears upon whether our civil liberties can be exported and whether the many economic and social bills of rights of the Twentieth Century make much sense.
If there is an established rule of law it is awkward for a government to be oppressive towards minorities. A rule of law tends toward a respect for general principles, which means that a government cannot easily harm a minority without running the risk of at least inconveniencing the majority as well. This is not to [Page 654] deny that affirmative action on behalf of a minority may have to be considered to remedy old abuses.
Underlying the rule of law in the United States is the Common Law of England which was established here in Colonial days. The Common Law, in its broadest sense, is critical to the rule of law for the English-speaking peoples, reflecting and reinforcing as it does a general constitutional system.[36]
The Common Law, with its application of reason to the implementation of generally-accepted moral standards in a variety of circumstances, provides the legal underpinnings of the Constitution of 1787. Most of the guarantees found in the Bill of Rights of 1791 had been developed by and incorporated in the Common Law process in England long before American independence, a process which was grounded in a natural-right tradition.
The people who demanded a bill of rights for the Constitution of 1787 drew upon an approach to these matters that had been established for centuries. These demands began, as we have seen, in the Federal Convention that drafted the Constitution. Thus, it will be instructive to review, however briefly, some of the predecessors to the bill of rights that was drafted by Congress in 1789 and ratified by the States in 1791.
II.
A good place to begin with any inventory of predecessors to the Bill of Rights is Magna Carta, the Great Charter exacted from King John in 1215 by the barons at Runnymede, "sword in hand." This charter, revised on several occasions during subsequent reigns, stands for an affirmation of the principle that even the King is bound by the law of the land.
It is obvious that a number of rights, especially with respect to property, were already familiar enough to be invoked in 1215. This particular charter was preceded by such instruments as the Constitutions of Clarendon.[37] The fourth version of Magna Carta, issued in 1225 during the reign of Henry III, is said to be still the law of England, except as it has been repealed.[38] We are told that "it now stands on the statute books of common law jurisdiction [as] a sober, practical, and highly technical document."[39] [Page 655]
This instrument (called, in the 1628 Petition of Rights, "The Great Charter of the Liberties of England") began its glorious career as an effort on the part of the barons to assert their rights. But it is hard to state principles on one's own behalf without allowing them to be extended to others eventually. This may be a natural tendency, reflecting a sense of natural justice among a people. Positions advanced only for partisan purposes have a way of meaning more than was originally anticipated. This can be seen closer to home by Americans who appreciate how the "created equal" language subscribed to by slave-holders in the Declaration of Independence eventually helped to undermine the long-established system of slavery in this Country.
Fundamental to Magna Carta is the respect seen throughout that instrument for family relations. Much of the property of the day was linked to inherited establishments; changes in the allocations or uses of property often followed upon changes in family circumstances. The King, in licensing the barons to take corrective measures against him in the event of default on his part, exempts in Magna Carta his family from their measures: "saving our person and that of our queen, and those of our children."
It has been said that "the whole of English constitutional history is a commentary upon the Great Charter."[40] It is also said that there may be something mythical, however salutary, in the place now accorded to the Great Charter. But it is no myth that the Great Charter taught people how important such documents can be. Nor is it a myth that there are provisions in the Great Charter of 1215 that have come ringing down across the seven centuries since, such as the famous assurance: "No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land."[41]
III.
The next great document in our inventory appeared four centuries later in the form of the Petition of Right issued by Parliament in 1628. In the meantime, of course, the Common Law of England [Page 656] had been steadily developed by the judges in collaboration with Parliament.
Various long-familiar rights of the English people were reaffirmed in the Petition of Right, including the potent "law of the land" guarantee from Magna Carta. It is important to notice that these rights were, for the most part, already well established by 1628.
Among the complaints registered in the 1628 Petition of Right were those that spoke of royal usurpations with respect to the mode of taxation, the basis for imprisonment, the quartering of soldiers in private homes, and the use of martial law against civilians. These and other complaints are reflected in the summary prayers by Parliament with which this petition ends:
X. They do therefore humbly pray your most excellent Majesty, That no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by act of parliament; (2) and that none be called to make answer, or take such oath, or to give attendance, or be confined, or otherwise molested or disquieted concerning the same, or for refusal thereof; (3) and that no freeman, in any such manner as is before- mentioned, be imprisoned or detained; (4) and that your Majesty would be pleased to remove the said soldiers and mariners, and that your people may not be so burthened in time to come; (5) and that the aforesaid commissions, for proceeding by martial law, may be revoked and annulled; and that hereafter no commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid, lest by colour of them any of your Majesty's subjects be destroyed, or put to death contrary to the laws and franchise of the land.
XI. All which they most humbly pray of your most excellent Majesty as their rights and liberties, according to the laws and statutes of this realm; and that your Majesty would also vouchsafe to declare, That the awards, doings and proceedings, to the prejudice of your people in any of the premisses, shall not be drawn hereafter into consequence or example; (2) and that your Majesty would be also graciously pleased, for the further comfort and safety of your people, to declare your royal will and pleasure, That in the things aforesaid all your officers and ministers shall serve you according to the laws and statutes of this realm, as they tender the honour of your Majesty, and the prosperity of this kingdom.
It was important on that occasion in 1628 that there be an insistence that the writ of habeas corpus be respected by the King, his subordinates, and the courts. Habeas corpus means that government, [Page 657] among others, has to justify holding someone: an explanation grounded in some law is required whenever a challenge is made in an appropriate court to any detention. Here is how this complaint reads in the Petition of Right:
III. And where also by the statute called The great charter of the liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
IV. And in the eight and twentieth year of the reign of King Edward the Third, it was declared and enacted by authority of parliament, That no man of what estate or condition that he be, should be put out of his land or tenements, nor taken, nor imprisoned, nor disherited, nor put to death without being brought to answer by due process of law:
V. Nevertheless against the tenor of the said statutes, and other the good laws and statutes of your realm to that end provided, divers of your subjects have of late been imprisoned without any cause shewed; (2) and when for their deliverance they were brought before your justices by your Majesty's writs of habeas corpus, there to undergo and receive as the court should order, and their keepers commanded to certify the causes of their detainer, no cause was certified, but that they were detained by your Majesty's special command, signified by the lords of your privy council, and yet were returned back to several prisons, without being charged with any thing to which they might make answer according to the law . . . .
The right of habeas corpus was reinforced by the Habeas Corpus Act of 1679, [42] confirming what the judges had developed and what the Petition of Right and other statements had insisted upon.[43]
In the meantime, however, England had undergone a bloody revolution. Charles I, only three years on the throne in 1628 (he was born in 1600), had been obliged to consent to the Petition of Right. But from 1629 to 1640, he contrived to rule without calling a Parliament. This eventually led to the Civil War, the climax of which was the execution of Charles I in 1649. There were then eleven years of Republican rule, ending with the Restoration and Charles II in 1660. But things were never to be the same thereafter [Page 658] in the constitutional arrangements in England.[44]
IV.
Here is how one legal historian describes what happened after the restoration of the monarchy in 1660:
The reign of Charles II saw the re-establishment in a harsher form of the Church of England, and the short reign of James II witnessed a rapid crisis. The determination of that monarch to pursue a religious policy which was contrary to that solemnly laid down by Parliament in a long series of statutes was the immediate cause of his fall. It may have been that his project of complete toleration for Roman Catholics as well as Dissenters was intrinsically an advance upon the partisanship of the Church as represented in Parliament. But it is impossible to discuss the merits of the policy when the methods of its promotion were so drastic and so completely contrary to the spirit of contemporary institutions. James II claimed that by his prerogative he could dispense individual cases from the operation of a statute; more than that, he even endeavoured to suspend entirely the operation of certain of the religious laws. Upon this clear issue the conflict was fought out. After an ineffective show of military force James II retired to France, William III of Holland was invited by Parliament to become joint ruler with his wife, Mary II, James's daughter, and so "the great and glorious revolution" was accomplished. The terms of the settlement were embodied in the last great constitutional documents in English history, the Bill of Rights (1689) and the Act of Settlement (1701).[45]
We shall consider the Bill of Rights of 1689 after this brief notice of the Act of Settlement of 1701:[46]
After the death of Queen Mary (1694), William III ruled alone, until he in turn was succeeded by her sister, Anne (1702-1714), who was therefore the last of the reigning Stuarts; in order to secure the succession, the Act of Settlement was passed . . . which not only limited the descent of the Crown (in accordance with which the present royal family reigns) but also added a few constitutional provisions supplementary to those of the Bill of Rights.[47] [Page 659]
The English speak of "the great and glorious revolution" which culminated in the "abdication" of James II and the installation of William and Mary according to the terms of the Bill of Rights of 1689. That Bill of Rights is not simply a collection of guarantees of rights, which is how Americans understand bills of rights today. Rather, it is even more important in confirming the rule of law and the general constitutional system by which the English are to be governed. And so the 1689 Bill of Rights came to be regarded as the "second Magna Carta."
The demand for a bill of rights to be added to the Constitution, which was heard in the United States during the 1787-1788 Ratification Campaign, was in some ways curious. The Constitution of 1787, which included (as we have seen) various guarantees of rights, was itself similar in critical respects to the English Bill of Rights of 1689 in that both documents defined a new constitutional order. But the very name, Bill of Rights, had become potent by this time, and so a separate document was called for, something that had already been supplied (as a list of rights guaranteed) for some of the State Constitutions before 1787. The demand for a bill of rights depended, at least in part, on a misunderstanding in this Country of what the English Bill of Rights was and did. Today calls can be heard in Great Britain for an American- style bill of rights, which are calls for a more elaborate collection of guarantees of rights than are found in the 1689 Bill of Rights. In political matters, we should thereby be reminded, opinion can be decisive or at least has to be reckoned with, even when it is not fully informed.
V.
When the First Congress came to draft a national bill of rights in 1789, it had not only various English predecessors to draw upon but also innumerable American instruments and the experience of the Federal Convention of 1787. I have already referred to various State bills of rights, which had been preceded by Colonial guarantees in charters and statutes. Perhaps the most illustrious of the State bills of rights at that time was the Virginia Declaration of Rights of 1776.
Innumerable speeches had also helped shape American opinion about the liberties of citizens. In 1761, James Otis had stirred up New England against writs of assistance (general search warrants); later, Patrick Henry had proclaimed to a receptive Virginia, "Give me liberty, or give me death!" Authoritative statements on behalf of American prerogatives were issued by the Continental Congress. [Page 660] Consider, for example, the Declaration and Resolves of the First Continental Congress (of October 14, 1774).
The complaints in the Declaration and Resolves do not speak of misconduct by the King (which was the thrust of the Declaration of Independence two years later) but rather of misconduct by Parliament. It was still assumed in 1774 that Americans would continue to be, and to enjoy the privileges of, Englishmen, with an allegiance running to the King, not to a Parliament that could not properly govern them since Americans could not be properly represented there.
Perhaps the most critical constitutional issue of that day, related to the claims of Parliament, may be seen in the fourth resolution agreed to by the Continental Congress in this 1774 document:
Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of the sovereign, in such manner as has been heretofore used and accustomed: But, from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide, restrained to the regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members; excluding every idea of taxation internal or external, for raising a revenue on the subjects, in America, without their consent.
The following two 1774 resolutions remind us of what Americans had to build upon in their own constitutional development:
That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.
That they are entitled to the benefit of such of the English statutes, as existed at the time of their colonization; and which they have, by experience, respectively found to be applicable to their several local and other circumstances.
The emphasis throughout the 1774 document seems to be far more on the political rights (if not power) of a community or people than on the personal rights of individuals. [Page 661]
Political rights, going back to the Glorious Revolution in England a century before, are reaffirmed in the third article of the Virginia Declaration of Rights (of June 12, 1776):
That Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community;¾of all the various modes and forms of Government that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration;¾and that, whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick weal.
The following month the Continental Congress issued the Declaration of Independence.
VI.
The Declaration of Independence, still another of the predecessors to the Bill of Rights of 1791, is to the American system what Magna Carta has been to the English system. Winston Churchill could even describe the Declaration of Independence as a restatement of the principals of the Whig Constitution developed in England since Magna Carta.[48]
The Declaration of Independence restates general principles which found expression in particular rights that were, we have seen, so settled and known that they could be readily invoked in the long array of grievances collected in the Declaration. Guarantees with respect to various of these rights may be found both in the Constitution of 1787 and in the Bill of Rights of 1791. But, it must be said again and again, those rights were not created by the Declaration of Independence, the Constitution, or the Bill of Rights.
If there is any major constitutional principle that is somewhat distinctive to the American development, it would be found in the radical implementation of the insistence in the Declaration of Independence that all men are created equal. Equality before the law is also important in English constitutional history, not least in the famous assurance in Magna Carta that no free man should be acted against by government "except by the legal judgment of his peers or by the law of the land." But it is liberty that seems critical to [Page 662] the British constitutional development, a liberty that is grounded in the rule of law.
Implementation of the equality principle seems to go further in this Country than in Great Britain, and not only in that it nullifies the hereditary distinctions that remain important in the British constitutional system. The equality principle was vital to the American Civil War and to the three Amendments (the Thirteenth, Fourteenth, and Fifteenth) which confirmed in the Constitution what had been done on the battlefields of that war. That principle may be seen as well in the provision in the Constitution for the exercise of ultimate authority by the people and in the provisions in various amendments (among others) for women's suffrage, against the poll taxes, and for the vote of eighteen year olds.
A particularly significant expression of the equality principle may be found in the concluding article of the Northwest Ordinance of 1787, where it is laid down that there would be no slavery in the Northwest Territory. This article, it bears repeating, proved to be critical to the development of the United States and to the outcome of the Civil War.
That this article in the Northwest Ordinance also included a fugitive-slave provision should remind us of the necessity for community and hence mutual accommodation on which an eventual full realization of a high principle can depend.
VII.
Our final great predecessor to the Bill of Rights of 1791 is the Constitution of 1787. This was preceded by the Articles of Confederation of 1777-1781. The American constitutional system evident from 1777 on is, in its pervasiveness, something like the Common Law in England.
We have seen that the Constitution of 1787 does recognize various rights in the body of the original instrument, such rights as those to the privilege of the writ of habeas corpus, the right of trial by jury, and the right of the people in every State to a Republican Form of Government. Restrictions are placed upon the control of the armed forces, the declaration of war, ex post facto laws, bills of attainder, and treason trials. Assurances are given about the revenue powers of the House of Representatives, about the suffrage of the people, about life tenure for judges, and about the ultimate subordination of both the President and the Courts to the Congress. These rights may be more important than most, if not all, of the rights collected in the Bill of Rights of 1791. [Page 663]
Perhaps most important for the origins of the Bill of Rights was the Constitution's reinforcement of the rule of law, with the supreme power recognized to be that of the people. The people ordain through the Constitution what government may do and how it may do it. The emphasis there is on what is needed to make good governance most likely, with the protection of individual rights a secondary concern.
I have suggested the background against which the Bill of Rights should be read, a background that unfortunately is not available to most peoples on this earth. We have noticed that, however important a formal recognition of rights and liberties may be, they do depend for their preservation and effective realization on a well-ordered community.
This in turn depends on a disciplined people. Such discipline is manifested in the craftsmanship with which the Constitution of 1787 was drafted, a discipline that is required in turn of every citizen who wants to understand and hence truly defend that remarkable document.
Only a disciplined people¾a people that has been habituated to moderation in word as well as in deed¾is apt to be able to make fruitful use, year in and year out, of the great guarantees enshrined in the Constitution of 1787 and its Bill of Rights.
4. THE PURPOSES AND EFFECTS OF THE BILL OF RIGHTS OF 1791
I.
The Bill of Rights, which is the name by which we know the first ten Amendments to the Constitution of 1787, was drafted in the very first Congress that met pursuant to the Constitution. The role of James Madison of Virginia in the development of these Amendments in the First Session of the First Congress is generally recognized. Madison is often called "The Father of the Constitution"; he could much more accurately be called "The Father of the Bill of Rights."
The records we have of Congressional deliberations and actions with respect to the drafting of the Bill of Rights are incomplete. We get some idea of what happened in the House of Representatives, where Madison introduced his Bill of Rights resolution on June 8, 1789. But, we have only the sketchiest notion of what happened in the Senate before the Bill of Rights resolution was returned to the House of Representatives for House acceptance of [Page 664] the changes made by the Senate. No records were made of the discussion, but only of the actions taken, in the Senate, which sat in executive session in the first decade of its existence.
We are reminded, by the sketchiness of the records here, of the limited record we also have of the framing of the Constitution at Philadelphia in 1787. In both cases, then, we are obliged to address the text itself¾the Constitution, on one hand, the Bill of Rights, on the other hand¾in order to understand what was said and done. One advantage we have in reading the Constitution of 1787 is that it is a remarkably well-crafted text which does invite thinking about it. The Bill of Rights is more "episodic" and hence less obviously coherent in character, but even so it does draw upon assertions of rights taken from that Anglo-American constitutional history which had been refined over the centuries by the English-speaking peoples. About the Bill of Rights, too, we are obliged to think if we are to figure out what was intended and not intended, what was done and not done.
The resolution setting forth the amendments proposed by Congress was completed by the House of Representatives on September 24, 1789 and sent to the States for ratification by their legislatures. All of the amendments proposed by Congress during the past two centuries, except one, have been sent to the State legislatures for ratification. Whatever the mode of ratification, the assent of three-fourths of the States is required.
Virginia completed ratification of the Bill of Rights on December 15, 1791. [49] Twelve amendments had been proposed by Congress in 1789. The first two of these failed to get enough State legislatures to ratify them: one addressed the ratio of representation in the House of Representatives, the other the compensation of Members of Congress.[50]
Ratification of the Constitution of 1787 by the original States had taken less than two years (except for North Carolina, which ratified the Constitution in November 1789 after the Bill of Rights was proposed by Congress and, Rhode Island, which ratified in 1790 after it became apparent that things could go on quite well [Page 665] without her). Ratification of the Bill of Rights took more than two years. The fact that it took longer to ratify these Amendments than it did to ratify the Constitution itself suggests that there was less of a pressing need perceived for a bill of rights. In part this was, as we have seen, because it was generally recognized that American governments could be depended on to continue to respect, as they had for some time, the rights and liberties of citizens.[51]
We shall see that what was done in providing for the Bill of Rights of 1791 was far less of a departure from established institutions, and hence far less controversial, than what had been done in providing for the Constitution of 1787. We shall also see that the generally-accepted account of the way that the Bill of Rights came about is something of a myth, albeit (as in the case of Magna Carta also) perhaps a somewhat salutary myth.
II.
If the Bill of Rights was indeed less controversial than the Constitution, one might again wonder, why was there not a bill of rights provided by the Federal Convention with the original text of the Constitution it produced in 1787? One obvious answer is that the Convention was too busy devising what almost all of the delegates believed was needed in fundamental constitutional reform to take time also to devise what was not perceived by most of them to be needed. Besides, as we have seen, a bill of rights was regarded by many of the delegates to the Federal Convention as doing little more than reaffirming rights long secured and daily being exercised all over the Country.
Since what the form of the new national government should be, and how powers should be allocated among the departments of that government, had been controversial for some time before 1787, it was no surprise that the Federal Convention devoted most of its time to these issues. The effect of demands, upon an assembly, of other matters than the cause of civil liberty could later be seen as well in the First Congress, where Madison tried repeatedly to get the House of Representatives to set aside what it considered [Page 666] more pressing business (particularly provisions for taxes and for executive departments) in order to frame a Bill of Rights proposal.
This is not to deny, however, that if the Framers of the Constitution had anticipated how much some opponents of the proposed Constitution would make of its lack of a bill of rights during the Ratification Campaign, they probably would have found time to draft a plausible declaration of rights. Even so, it seemed to many friends of the Constitution that much of the talk about such a lack came from critics who were far more troubled by the new allocations of powers by the proposed Constitution than by the lack of a bill of rights. It must have been evident to many of these critics that attacks on the proposed form of government itself were not likely to be popular, especially considering sponsors of it such as George Washington and Benjamin Franklin. Accordingly, there was a shift by these critics in the second half of the Ratification Campaign to the bill-of-rights theme as the major objection to the proposed constitution. On its merits alone, the proposed Constitution was quickly ratified in one State after another in the early months of its being considered. The demand for a bill of rights was dramatized, perhaps deliberately if not cynically, as a way of sidetracking further consideration of the document on its merits. This was countered by friends of the Constitution with promises that a bill of rights would be taken up during the First Congress. The sincere advocates of a bill of rights tended to be reassured by these promises, while the opponents of the Constitution recognized that this would leave them unsatisfied with respect to the one issue they were really troubled by, the radical restructuring of government under the new Constitution.
Half of the State Ratifying Conventions in 1787-1788 proposed amendments to be considered by the First Congress. The preamble provided with the Bill of Rights proposal when it was sent by Congress to the States began by reciting that "[t]he conventions of a Number of the States ha[d], at the Time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added" to the new Constitution. It was then intimated that the amendments prepared by Congress were being submitted to the States because it was truly believed that "extending the ground of public confidence in the government [would] best insure the beneficent ends of its institution."[52] We shall see that the only [Page 667] truly "restrictive clauses" among the twelve amendments proposed by Congress in 1789 may have been in the two amendments not ratified by the States.
III.
Madison pressed for amendments in the First Congress in large part because he had promised his Virginia constituency that he would do so, a constituency in which there were (as elsewhere) sincere advocates of a bill of rights as well as some who were merely using this issue as a respectable way of resisting the empowerment of a new national government. In his First Inaugural Address, President Washington had recognized a demand among the public at large for a bill of rights. [53]
A bill of rights was drafted in the First Congress in part to head off demands heard in some quarters during the Ratification Campaign for another Federal Convention, which would put the Country at risk of wide-ranging changes to the body of the Constitution as well. We can be reminded of this concern when we notice the warnings today that any assembly called on demand by the States to consider, say, a balanced-budget amendment might turn into a "runaway" convention which would consider much more than that.[54]
Dozens of amendment-suggestions had come out of the State Ratifying Conventions, suggestions that were usually collected in those conventions by the minorities that had opposed ratification of the Constitution. But Madison assured the First Congress that the amendments he was proposing would "make such alterations in the Constitution as will give satisfaction, without injuring or destroying any of its vital principles."[55] The rigorous sifting of the proposed amendments by Congress in 1789 shows that there was to be, at least by way of formal constitutional amendments, no fundamental change in relations between the United States and the States or in the powers of the Government of the United States.[Page 668]
We have also noticed the frustrations endured by those who tried to get the term expressly into what is now the Tenth Amendment. It soon became apparent to opponents of the new Constitution in the First Congress that they were not going to get what they really wanted, so much so that they had to be urged by Madison to take any interest at all in the development of the bill of rights they had once made so much of. What the opponents of the Constitution were interested in, instead, is suggested by one of the amendments proposed by Anti-Federalists in the First Congress:
That the General Government of the United States ought never to impose direct taxes, but where the moneys arising from the duties of impost and excise are insufficient for the public exigencies, nor then, until Congress shall have made a requisition upon the States to assess, levy, and pay their respective portions of such requisitions; and in case any State shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such State's proportion, together with interest thereon, at the rate of six per cent, per annum, from the time of payment prescribed by such requisition.[56]
This proposal, representative of many that had come from opponents of the Constitution in the State Ratifying Conventions, was soundly rejected in the House of Representatives. No doubt, it smacked too much of the Articles of Confederation which the Nationalists who controlled the First Congress had been determined to change radically in the Federal Convention.
A persistent desire of the opponents of the Constitution was that the States not be controlled very much, if at all, either by the Constitution of 1787 or by the National Government established by that Constitution. Those States' Rights advocates recognized, more than many judges and legal scholars since then, the significant restraints placed upon the States by the Privileges and Immunities Clause and the Republican Form of Government Guaranty in Article IV and by the Supremacy Clause in Article VI of the Constitution. All of this is reinforced by the Necessary and Proper Clause of Article I.
Still, we have noticed, none of the amendments proposed by the First Congress and ratified by the States cuts down any of the substantive powers of the Government of the United States provided by the Constitution of 1787. We should further notice that no amendment to the Constitution since the Bill of Rights has ever [Page 669] taken away from the Government of the United States any power that the Framers intended it to have. In fact, we may also wonder whether any amendment has ever given to that Government any power that the Framers of 1787 did not want it to have. Some will argue that there has been an extra- constitutional, if not unconstitutional, growth of powers in the National Government as a result of legislative and judicial interpretations. But this argument may depend, in large part, on a failure to see how broad the original powers are that were established by the Federal Convention for Congress under the Constitution. It may well be that what the Courts have done in the Twentieth Century is to recognize for Congress much of the power originally intended by the Framers of the Constitution.
Does not the absence, from the twenty-six Amendments we have had thus far to the Constitution, of any major curtailments in the powers of the National Government testify to the remarkable work done by the Federal Convention in 1787? It may also testify to the shaping of the American people and of their political life to conform to the Constitution, so much so that fundamental changes have become almost unthinkable.
IV.
All kinds of arguments by proponents of the proposed Constitution had been used during the Ratification Campaign of 1787-1788 as to why no national bill of rights was needed. Of these arguments, some were spurious, some had merit. (Much the same can be said about the arguments for why a bill of rights was needed.) A case was made against a bill of rights, I have indicated, partly because advocates of the Constitution believed that they could not afford to make concessions during the Ratification Campaign, but only promises as to what the First Congress might do.
I have also suggested that if the Framers of the Constitution had anticipated the objections that were made about the lack of a bill of rights, they probably would have drafted something appropriate in the Federal Convention. Or were the Framers so shrewd as to figure that it would be safer to have the opponents of the Constitution complain about the lack of a bill of rights than to have them conjure up other "defects" of the proposed Constitution? If those opponents could be busied with the bill of rights problem, they would be diverted from other problems. Also, this "defect" could be much more easily remedied thereafter without damaging the Cons-[Page 670]titution that the Framers wanted and without compromising the reasons why they had wanted it.
Furthermore, friends of the Constitution might have sensed that critics who made much of the lack of a national bill of rights could not be taken too seriously by the people at large who knew that various of their rights were safe, whether or not the United States or a State had a bill of rights. Friends of the Constitution pointed out that critics of the proposed Constitution were not disturbed that half of the States had no bill of rights in their State Constitutions, even though the domestic powers of those State governments had been considered virtually unlimited under the Articles of Confederation while those of the National Government could be said to be limited to what had been "enumerated."
The genuine popular demand there happened to be for a bill of rights was lent support by the august place in British constitutional history of the 1689 Bill of Rights. We have seen that that constitutional document, one of several written parts of the British Constitution, had defined and limited the prerogatives of the Crown, had insisted upon the prerogatives of the Parliament, and had affirmed various other rights of the people. In this sense, it was pointed out, the entire Constitution of 1787 served the purpose of the 1689 Bill of Rights. But until there was something on paper which could be separately identified (however misleadingly) as a Bill of Rights, reservations would persist about the new Constitutional system, and this the friends of the Constitution undertook to provide in the First Congress under Madison's leadership.
Just as the name of a document could matter, so had the name of the party advocating ratification of the Constitution in 1787-1788, which took for itself the name of Federalists, even though the opponents of the Constitution (the "anti-Federalists") may have had the better claim to that evidently attractive name. The Federalists in the First Congress, we have seen, did not want the powers of the National Government reduced or hampered by any amendments (certainly none of a "federalizing" character) to the Constitution of 1787.
The more thoughtful of the Federalists might have been concerned as well about any shift from a primary concern with the powers and ends of government to a primary concern with the rights of individuals. The Constitution of 1787 looks in one direction, the Bill of Rights of 1791 looks somewhat more in another direction. The shift which we have in part seen since 1787 is from a concern principally with political interests to a concern with indi-[Page 671]viduality, a shift from the primacy of the citizen to the primacy of the private person, even while the National Government has reinforced its constitutional powers vis-à-vis the States.
Whatever the limitations in 1787-1789 of the case for a bill of rights, it is now salutary to consider the Bill of Rights of 1791 as the virtual completion of the constitutional framing that had begun in 1776. [57] Certainly, the Bill of Rights cannot now be eliminated without ominous implications and without an unhealthy effect on citizen morale in this Country. Even tampering with it, as in response to such unfortunate provocations as the Flag Burning cases, should be approached with the greatest caution.
Thus, because of the powerful rhetorical presence and considerable political as well as judicial effects of the Bill of Rights, it is needed much more now than it was in 1789-1791. Or, put another way, one consequence of adding the first ten Amendments to the Constitution, even though they may not have been needed, was to make the Bill of Rights necessary ever since.
V.
I have several times suggested that the Bill of Rights of 1791 does not change anything essential. The Government of the United States could still concern itself after the Bill of Rights with the vital matters that it could concern itself with before the Bill of Rights, and could do so with its substantive powers unimpaired.
On the other hand, the Framers of the Constitution of 1787 did not establish the new government they did in order to abridge various long-recognized rights of the American people. In fact, they argued, only a national government with adequate powers could promote the stability and prosperity necessary for a sustained flourishing of those rights.
Just as no recognized rights of the American people were subverted by the Constitution of 1787, no rights were created by the Bill of Rights of 1791, however much some of them were adapted to republican circumstances and to the diversity among American States (as we shall see when we examine the First Amendment in my next lecture). Consider, as illustrative of the republican character of the American people well before Independence, what could be said to have made the farmers fight in 1775. One of those [Page 672] men answered this question, years later, in this fashion: "We always had governed ourselves, and we always meant to. They [the British] didn't mean we should."[58] A more personal if not individualistic, or less political, way of putting this position can be seen in the militia man who went with his musket to confront the British, saying, "We'll see who's goin' t'own this farm!"[59]
It is not generally appreciated that the American Constitution, including its Bill of Rights, has worked as well as it has from the beginning in large part because so much of it was already being used, among the States if not nationally, when it was formally adopted in the late Eighteenth Century.[60] Nor is it generally appreciated that the Bill of Rights, in declaring and reaffirming those rights in 1791, does not in any way suggest that any new remedy is available to secure these rights.
The notion that courts would be looked to in order to enforce the Bill of Rights (and all other rights in the Constitution of 1787) did not take firm hold until well into the Nineteenth Century. This notion spilled over into the use of courts to police applications of various provisions of the Constitution as well. In fact, the first act of Congress declared unconstitutional by the Supreme Court, in Marbury v. Madison, [61] did not run afoul of the Bill of Rights but rather of a technical jurisdiction-allocation provision in Article III of the Constitution. It is far from clear that this kind of judicial supervision of Congress was intended by the Framers with respect to either the Constitution or the Bill of Rights. This is not to deny, as we shall see in Lecture No. 7, that many of the guarantees in the Bill of Rights were meant to be binding on the courts.
VI.
That few, if any, of the rights listed in the Bill of Rights of 1791 were new, however much some of them (such as the freedom of speech and of the press provisions in the First Amendment) took [Page 673] on new dimensions in the United States, is further testified to by the lack of difficulty in the First Congress in understanding what most of the proposed amendments meant.
It did not matter, in how citizens generally conducted themselves, what State they were in or whether that State had a bill of rights in its own State constitution. Americans tended to act the same wherever they were, so far as they were concerned about the responses of government to their conduct, just as today most Americans do not stop to notice what State they happen to be in before they do what they do, for example, in their treatment of children, in their business transactions, or in their sexual practices, however much the rules on the books may vary from State to State with respect to these matters.
An enterprising student of American constitutionalism could illuminate these matters further by investigating whether the States that had no bill of rights in their State constitutions conducted themselves differently on various occasions from the States that did: in the Federal Convention, in the State Ratifying Conventions, or in the First Congress when a bill of rights was being considered. The mobility of the American people from one State to another, a mobility taken for granted in the Federal Convention, makes it unlikely that things would be done or thought of differently from one part of the Country to another, except perhaps when such a controversial institution as slavery intervened to color everything that was thought, said, and done.
It is useful to ask, in order to appreciate the sources of political liberty in the modern world, why various of the rights we deem important have been long protected in Canada and Great Britain without the kind of bill of rights we have, whatever is being done now in both countries to develop additional written guarantees. Have not many of those rights been protected there for the same reasons that all of the States were equally respectful of rights in 1789, whether or not they had a bill of rights in their State Constitutions? The invocation of such rights in the Declaration of Independence testifies to how well-established these rights were independent of a formal bill of rights. Even outside the immediate influence of the English-speaking tradition, considerable respect for such rights may be seen, as in France and the Scandinavian countries, and this despite somewhat different constitutional systems. On the other hand, there are all too many countries in the world today that have fancy bills of rights (and even copies of ours) that do little to prevent tyranny. [Page 674]
Although the Bill of Rights might have done little to secure the long-established rights it enumerated, it may well have jeopardized somewhat the standing of other long-established rights that it ignored. Had this already been done, for the rights later listed in the Bill of Rights, by the Framers' mentioning so few rights in the Constitution of 1787, unless it could be shown that there were reasons for listing those rights there? We shall see, in Lecture No. 8, how the Ninth Amendment was used to try to head off the unwelcome implications of such neglect.
There is, in Article IV of the Constitution of 1787, a Privileges and Immunities Clause, which could (on its face) be taken to assure, or at least to remind, citizens of the United States about long-established fundamental rights to which they were entitled, no matter where they happen to be in this Country. Did the listing of so many rights in the Bill of Rights tend to diminish the importance of the Privileges and Immunities Clause, especially with respect to the States, something that was attempted to be remedied in the Fourteenth Amendment?
Still another possible effect of enumerating so many rights in the Bill of Rights should be noticed: did enumeration of rights in this fashion make more of enumeration as well of the powers of Congress in Section 8 of Article I? Just as only those rights which are expressly enumerated have been made much of over the years by the courts and others, so only those powers which are expressly enumerated have been assigned to Congress without question. In both cases, the general spirit of the constitutional arrangement sometimes tends to be lost sight of. This too can mean a shift from politics and the common good to legality and individualism as the prevailing mode of our common life.
VII.
To emphasize legalism is to encourage a positivistic approach to law and to constitutional determinations. Law thus can come to be seen as the product of a sovereign, not as the emanation from some enduring standard of right and wrong. For example, a preference for authority instead of reason may be seen in disparagements in some circles today of the significance of international law, which does depend on longstanding traditions and a body of reasoning about the proper relations between nations in the civilized world.
One consequence of positivistic developments in the United States is the steady depreciation of the status of the Common Law, which traditionally included an awareness of the spirit and ends of [Page 675] law for the English- speaking peoples. Thus, the Common Law could once be depended on, emerging through the discoveries of judges under the guidance of the legislature, to develop (in a sound and generally-acceptable way) various relations and rights implicit in the prevailing political and social system. When the Common Law discipline comes to be neglected, the interventions of judges become suspect, as may be seen in responses to the uses of the Ninth and Fourteenth Amendments in developing the right to privacy. The political repercussions here can be serious, especially if the development is seen to take on the appearance of judicial usurpation.
It is not generally appreciated how much most of the guarantees in the Bill of Rights were imbedded in the Common Law. This makes it difficult for us to appreciate the arguments of those in 1787-1789 who insisted that the most critical rights of Americans were already fully protected without a bill of rights, and this without any substantial experience of reliance theretofore upon courts to assess legislative acts for their constitutionality.
Most constitutional law scholars do not seem even to be aware of the problems posed by what has been happening to the Common Law in this Country. To the extent that the Bill of Rights contributed to a more positivistic mode in the law, one can doubt whether the first ten Amendments were in fact amendments, that is, improvements.[62]
To become more positivistic in our approach to law tends to affect the status of natural right and reliance upon enduring standards. This in turn tends to encourage individuality, or "doing one's own thing," and other forms of hedonism. We can see positivistic assumptions in the arguments put forward from time to time by United States Supreme Court Justices and others to the effect that only enumerated fundamental rights, made explicitly applicable to State government, can be brought to bear upon what is done by State governments. [Page 676]
An emphasis upon making things explicit tends to undermine reliance on, if not the majesty of, the Common Law. Does an explicit Bill of Rights tend to make the Common Law process seem less important? Does it shift the attention of judges away from what is right to what is legal (or laid down)? And does it tend to make judicial review more likely, if only because it can help obliterate the natural difference between legislation and adjudication?
But however positivistic we become, and however much the demands of nature are disparaged, some standard beyond law and Constitution is implied in a provision for amendments such as that found in Article V. Some enduring standard is implied as well by the distinctively American assumption that a choice should be made by the people as to what constitution they want. A people cannot select or correct, to say nothing of being able to understand, their institutions without some awareness of nature and the truth about things. Intimations of the best possible regime, to which natural right looks, have to be drawn upon if the people are to be properly trained and sensibly guided.
Natural right means, among other things, that in the greatest emergencies even the most venerable constitutional arrangements can be temporarily suspended, as was done between 1774-1781 and between 1861-1865. A sensitivity to the demands of natural right also means, however, that far less threatening circumstances can be recognized and assessed for what they are, allowing our constitutional processes to work. This leaves the people free to make prudent use of their prerogatives in governing themselves.
When all is said and done, the Bill of Rights we happen to have may now be good for our political morale, if only because it can take the place of other creeds or institutions in countries with a longer and deeper history than our own, institutions which also suggest enduring standards and encourage a fitting political restraint. Besides, people sometimes need to have available for veneration physical manifestations of their most elevated aspirations, and these the Constitution of 1787 and its Bill of Rights seem to provide for many. The Bill of Rights, properly understood, promotes restraint (or civilization), liberty, and equal justice under law.
5. AMENDMENT I
I.
The amendments to the Constitution of 1787 that we know as the Bill of Rights were first proposed in the House of Representa-[Page 677]tives on June 8, 1789. At that time, and for two months thereafter, while the proposals were being debated and revised, the amendments we now have were slated for insertion at specified places in the original Constitution. If the ratified amendments had remained scattered in the body of the Constitution at the places originally designated for them, it would have been obvious that all of the restrictions set forth in these amendments were directed against the Government of the United States, not against the States.
Some have argued, however, that the generality of the language of the restrictions in most of the Bill of Rights amendments, especially now that they stand alone in the collection of amendments appended to the Constitution, mean that they should be applicable to all governments in the United States, not just to the National Government. But it is difficult to find evidence to support the proposition that the shift in placement of the proposed amendments was intended to include the States within the sweep of these amendments, especially since there remained at one stage, even after the shift in placement, a proposed amendment that was clearly directed against State governments. This separate proposed amendment, which was approved by the House of Representatives on August 24 but eliminated thereafter by the Senate, would not have been resorted to if the other proposed amendments had been thought of as having a comprehensive application.
It can be argued that putting most of the amendments in general terms, treating them as an appendix to the Constitution, and eliminating the one amendment explicitly designed for the States had the (perhaps unintended) effect of making most of the amendments comprehensive in their effects, restraining thereby the States as well as the National Government. But that would ignore the evident intentions and widely-known understanding of the people involved in the shaping and ratification of these amendments. In such matters, common sense should be given its due.[63]
Very little is said in the available records as to why it was decided by the House of Representatives not to insert amendments into the body of the Constitution. The placement issue had been raised early in the amendment- preparation process in the summer [Page 678] of 1789, with concern expressed about changing in any way the text of the document from what it had been when its distinguished Framers had affixed their names to it. No change was made at that stage of the deliberations in the House of Representatives. Then, two months later, as the process was drawing to a close in that House, which was before any draft was sent to the Senate for its initial consideration of amendments, the shift in placement was made without much debate or explanation.
One effect of appending all amendments to the Constitution then and since has been to keep the 1787 document intact, preserving down to our day the integrity of its original appearance. This should have been particularly welcomed by those who did not regard the Constitution to have been amended in any critical respect by the Bill of Rights.
Another effect of the shift in position for the amendments drafted in 1789 is that it made the Bill of Rights, ratified in 1791, seem like a separate instrument, even like a kind of constitution itself. We can still see reproduced and displayed the Congressional resolution on twelve proposed amendments that was sent to the States for ratification, a document with its own preamble and signatures. This instrument has been invested with a special mystique as it stands somewhat in collaboration and somewhat in tension with the Constitution of 1787. The Constitution reflects more what can be called natural sociability and the need for sound government; the Bill of Rights, with a somewhat different approach to perhaps the same ends or principles as the Constitution itself, reflects more the natural rights and civil liberties of a people.
The Bill of Rights of 1791 as a separate document invites study of its organization, just as does the Constitution of 1787. It is evident in each case that care was taken in determining the arrangement settled upon. I have suggested in my Commentary on the Constitution of 1787 how that instrument is put together. I suggest, at the outset of my next Lecture, how the Bill of Rights is put together. Such a study of the Bill of Rights should be useful as well for the light it can shed on the Constitution as a whole.
II.
In a sense, virtually all of the Bill of Rights provisions represent restraints upon Congress. Of the twelve amendments proposed to the States by Congress in September 1789, ten of them were originally intended to be placed in Article I of the Constitution, with the other two intended to be placed in Article III. [Page 679]
Of the ten amendments originally designated for placement in Article I (the Legislative Article), the first two were to have been put where Congress is provided for (in Sections 2 and 6 of Article I), the other eight were to have been put where Congress is restrained in various ways (in Section 9 of Article I). The two amendments originally intended for Article III (the Judicial Article) are probably there because they modified provisions already in Article III with respect to jury trials.
It seemed natural to the statesmen of 1789 to consider restraints upon Congress to be restraints as well upon the rest of the National Government. Most of what that Government does still depends on Congress. Congress must make the laws that the President executes and that the Courts interpret and apply. Also, Congress must create and finance the Executive Departments and the military and provide for the Courts and their jurisdictions.
In short, Congress determines who the Executive and the Courts are to be and much of what they are to do. President Washington had little to do during his first nine months in office and the Supreme Court did not convene for the first time until February 1790. Both the President and the Court had to wait until Congress provided for them and gave them something to do.
This means that to control Congress is pretty much to control all of the Government of the United States, which helps explain why most of the amendments were originally intended for the Legislative Article. Still, three of the twelve amendments proposed in 1789 obviously deal more with Congress than do the others: the first is concerned with the composition of the House of Representatives; the second is concerned with the compensation of Members of Congress; and the third, which we now know as the First Amendment, is explicitly directed at Congress.
III.
The first two of the twelve amendments proposed by Congress in September 1789 failed of ratification by the State legislatures. They were, we have noticed, originally to have been placed in those parts of the Constitution (Sections 2 and 6, respectively, of Article I) that deal with the matters addressed in these two proposed Amendments.
The text of the two proposed amendments that failed to be ratified was this:
Article I. After the first enumeration required by the first article of the Constitution, there shall be one Representative for every [Page 680] thirty thousand, until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article II. No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of Representatives shall have intervened.
Why did these proposed amendments fail to secure ratification? Was it sensed that these two provisions were not of the dignity of the others? Are they inappropriate for a bill of rights and hence better reserved for separate amendments or even for statutes?[64]
Still, it is significant what has happened to the two rejected amendments. The first was made obsolete, so to speak, by steady population growth in the United States. Concern had been expressed during the Ratification Campaign that the House of Representatives would not be large enough to be truly representative, with only sixty-five members of the House provided by the Constitution for the First Congress. It soon became evident, however, that there was no need to worry about having a large enough House of Representatives, but perhaps just the opposite.
The second failed amendment-proposal, regulating the timing of changes in the compensation of Members of Congress, is adhered to in practice. Congress routinely makes changes in its own compensation take effect only after an intervening Congressional election.
The American experience with these two rejected amendments, as well as with several others, reminds us that constitutional amendments in this Country are rarely controversial. They usually deal with matters that either have been settled by events, such as [Page 681] the Civil War, or are already widely accepted. Even the Equal Rights Amendment proposed in 1972 has virtually been put into practice despite its having failed of ratification, a failure that may have been in large part due to accidents in timing.
I have noticed in my earlier Lectures that few, if any, of the Amendments to the Constitution during the past two centuries have cut down any substantive power of Congress. The two Congressionally-proposed amendments rejected in 1789-1791 by the States, however, would have placed restraints upon powers that Congress was given: the power to determine the composition of the House of Representatives, and the power to determine the compensation of Congress. The Federal Convention had considered various ways of hedging in both of these powers, including even by setting a permanent size for the House of Representatives and by keying Congressional compensation to the price of specified commodities. The Convention decided that it had to rely, here as elsewhere, upon the integrity of the Members of Congress and upon the vigilance of the people who selected them, which is how matters still stand with respect to these and like determinations.
IV.
I have suggested that three of the twelve Congressionally-proposed amendments of 1789 deal more with Congress than do the other nine. I have discussed, however briefly, the two proposals which failed to be ratified by the State legislatures. The last of these three did secure ratification, the proposal we now know as the First Amendment. The text of that proposal reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It is, because of the way that the State legislatures happened to respond to the twelve proposed amendments, something of an accident that this should have become the First Amendment, a designation that people generally sense to be appropriate.[65]
The First Amendment is the only one of the first eight Amendments [Page 682] that is somewhat innovative. All of the others are copies of, or derivative from, respectable English prototypes. That is, Amendments II through VIII are reaffirmations of long-established rights of the English-speaking peoples, including those in North America.
There are two principal sets of concerns addressed in the First Amendment: a concern with religious freedom and religious establishments and a concern with freedom of speech and of the press. A distinctively American response is given in each case, but perhaps necessarily in such a way as to leave questions for us to this day.
Freedom of the press does have, even in this Country, some traditional features to it. English constitutional principles may be seen in the insistence among us that there can be no previous (or prior) restraint of the press (that is, no system of censorship). These principles find their most dramatic advocacy in John Milton's Areopagitica of 1644.
Our freedom of speech provision, although perhaps more characteristic of the United States, also draws upon English constitutional history. For centuries Members of Parliament had been assured immunity for whatever they said in the exercise of their duties. For example, the 1689 Bill of Rights (in England) declared that "the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament." Similarly, the Constitution of 1787 provides in Section 6 of Article I that Senators and Representatives
shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The recognition in the First Amendment of the freedom of discourse of the people at large, explicitly nationalizing thereby the traditional immunity of "freedom of speech, and debates or proceedings in Parliament," testifies to what any truly self-governing body requires. The American people were already exercising this right by 1789, whether or not their States had bills of rights or guarantees in them of freedom of speech or of the press. These were rights that were confirmed, not created, by the speech, press, assembly, and petition provisions of the First Amendment. [Page 683]
The entire constitutional system in this Country very much depends on a self-governing people that exercises popular control not only over what its governments do, but also over what the Constitution itself provides. The primary emphasis of the First Amendment here is upon a free and open discussion of public affairs, as distinguished from what is now called freedom of expression. Freedom of speech and the press, as distinguished from a much broader freedom of expression, may be necessary for effective self-government. On the other hand, an unregulated freedom of expression can, in some circumstances, undermine the character and education needed for sustained self- government. Freedom of expression, such as in artistic activity, can itself be something that a people should want to see protected to a considerable extent, but there is not for it the absolute protection that is guaranteed by the First Amendment for freedom of speech and of the press (that is, for unfettered public discussion of the public business). Freedom of expression is protected more by our rights to property and liberty, interests of which persons can be deprived, or have regulated, by due process of law. The constitutional provisions that protect property and liberty, such as the Fifth Amendment, are more individualistic and less civic-minded (or public-spirited) in orientation than are the Speech and Press Clauses of the First Amendment.
A truly new way may be seen in the insistence in American constitutions (State as well as National) that the people are entitled, as the source of all governmental authority in this Country, to the right to discuss the public business as much as they wish, including not only the selection and doings of officers of government but also the framing and amending of forms of government.[66]
V.
We can be reminded of the federalist character of the American constitutional system by noticing that it is explicitly Congress (and, by implication, the National Government) that is restrained by the First Amendment from abridging the freedom of speech or of the press. The States are not addressed on this issue by the First Amendment.
But, we should also notice, Congress is not kept by the First Amendment from regulating State abridgments of freedom of [Page 684] speech or of the press. Such Congressional interventions on behalf of freedom of speech and of the press can be in the service of the National Government's Article IV obligation to guarantee each State in the Union a republican form of government, especially where State suppressions threaten the ability of the people to govern themselves.
We should immediately add, however, that self-government need not be subverted¾indeed, it may even be enhanced¾by prudent State efforts to control publications that threaten to undermine morality. The United States is more apt to try to regulate expression in the interest of national security (by acting against sedition, treason, or more loosely speaking, subversion), while the States are more apt to try to regulate expression in the interest of morality (by acting against corruption, licentiousness, and dissoluteness). But whatever government purports to do, and for whatever ends, freedom of speech and of the press protects those who want to examine what is being done and why.
Strictly speaking, then, it is not freedom of speech and of the press that the States are most apt to suppress but rather certain aspects of freedom of expression. Freedom of expression, I have suggested, is more of a property interest that can be legitimately regulated by law for the sake of common morality and the general welfare than an absolutely privileged free-speech interest, however much it does resemble freedom of speech in some respects.
Is not freedom of expression critical to the appeal of religious freedom as well? Human beings, at least in the Western World, are considered to be (in principle, at least) radically on their own with respect to spiritual matters, however much is made of religious communities. The appeal of freedom of expression, as well as a pervasive dedication to self-government, can seem to provide a connection between the two kinds of freedom guaranteed by the First Amendment. There is a primacy to the freedoms guaranteed by the First Amendment, as may be seen in the one amendment-proposal developed in the House of Representatives for the States: "No State shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press." [67] Thus, in addition to the traditional "right of trial by jury in criminal cases," the only other great rights nominated by the [Page 685] House of Representatives for protection against State infringement in the Bill of Rights are those found in the First Amendment.
VI.
The Religion Clauses of the First Amendment oblige Congress to stand clear of religious establishments, which means that Congress can neither provide for religious establishments of its own nor interfere with any State religious establishments then existing or later to be developed. The United States, in short, is to keep its hands off completely here. This means that all State establishments of religion are to be left alone by the National Government. State concerns here, as with the policing of freedom of expression already referred to, reflect the police power of the State, especially with respect to curbing corruption and promoting morality.
Although Congress cannot interfere at all with State religious establishment, it is evidently left free by the First Amendment to regulate State prohibitions of the free exercise of religion: Congress is kept from prohibiting the free exercise of religion; but it is not kept from correcting State interferences with the free exercise of religion. In this field, unlike that of religious establishments, the States need not be left alone by Congress to develop their local preferences in whatever way they may choose. [68]
I do not attempt in these Lectures to recapitulate systematically how the Courts have interpreted the two dozen Amendments we are reviewing. Still, it can help us appreciate what the First Amendment does and does not provide by noticing that the Establishment Clause has been distorted in its interpretation by the Courts. That clause is now interpreted virtually to mean that governments cannot cooperate at all with religious institutions, for example, with respect to the public funding of church-sponsored schools. This seems to me a misreading of the First Amendment, because the forbidden "establishment" does not refer to official cooperation with religion but rather to official preference for one or a few religious sects at the expense of all the others in the community. [69] Extensive, almost natural, collaboration between Church [Page 686] and State may be seen again and again in Eighteenth-Century America. Consider, for example, the concluding article of the Virginia Declaration of Rights (June 12, 1776) which declares that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." But it also adds that "it is the mutual duty of all to practice Christian forbearance, love, and charity" towards each other.
Whatever problems there may be in interpreting the Religion Clauses, they are compounded when the First Amendment is made applicable, by means of the Fourteenth Amendment, against the States. For one thing, it is difficult to figure out how the Establishment Clause, with its obvious protection of the States from any Congressional interference with State religious establishments, can be made applicable against the States as well. Is there not something awkward about this particular transformation of the coverage of the First Amendment?
Now that the First Amendment is considered applicable to the States, it remains to be seen what the States, in collaboration with religious institutions, may continue to do against general corruption and in the service of common decency.
VII.
We have already noticed that the First Amendment may be inherently the most controversial article in the Bill of Rights. All of the other Amendments from the Second through the Eighth are much more technical and long-established, and hence less likely to be controversial, however troublesome particular applications may be from time to time.
That many rights seemed obvious enough to Eighteenth-Century Americans is evident from the way they were taken for granted in the Privileges and Immunities Clause of the Constitution of 1787. Also, various rights seemed ascertainable enough to be capable of being referred to as they are in the Ninth Amendment. The First Amendment, on the other hand, may seem somewhat less traditional in its implications.
The Religion and Speech concerns of the First Amendment reinforce each other in critical respects. Both depend on, and encourage, that personal responsibility and choice which we associate with effective self-government. The provisions of this Amendment [Page 687] are, in the spirit that pervades them, distinctively American. The freedom of speech and of the press that the First Amendment affirms permits the American people to discuss fully and assess deeply all of the other rights to which they are said to be entitled. That freedom also permits repeated examination of what rights the American people should have and how they should be exercised, with even the Constitution always subject to reconsideration and amendment. The constitutional Amendment that protects Americans in their devotion to the sacred also insures that no public policy will ever be regarded as so sacred in this Country that it cannot be subjected to the most searching inquiry.
6. AMENDMENTS II, III, AND IV
I.
We have noticed that most of the restrictions of the Bill of Rights were directed in the first instance against Congress. This intention was indicated by the original plan of placing almost all of the proposed amendments in that part of the Constitution, Article I, Section 9, which collects many of the restrictions upon Congress. The overall concern evident in the Constitution is that there be a rule of law. This is reflected in the dominance of the legislature in the constitutional system, which makes it even more important that Congress be held in check. Care is taken as to both how Congress is constituted and how legislation is enacted. The prohibitions of ex post facto laws and bills of attainder in Section 9 of Article I are designed to insure that Congress act only through properly-developed legislation. The guarantee of the writ of habeas corpus, also affirmed in Section 9 of Article I, protects to some degree against the rule of law being cavalierly set aside.
The first three proposed amendments to the Constitution, two of which were not ratified by the State legislatures, placed direct limitations upon Congress. Limitations, in effect, upon Congress may be seen in most of the other Amendments as well. But some of them apply more to the President than to Congress, and these are our principal concern in this Lecture.
The array of twelve proposed Amendments, prepared in the First Congress in 1789, is often regarded as rather haphazard in organization, a proposition that we have already questioned. By noticing further the rationale of that arrangement, we might be better able to interpret those Amendments. We cannot rely here simply on what the Courts have said in interpreting these Amendments, however much we may be obliged to conform to what the [Page 688] Courts do say from time to time. The courts, in adjusting to circumstances, do not always read the texts with the care that they deserve.
It can be said that the Bill of Rights Amendments are organized according to their primary "target": the first three of the twelve proposed amendments (including Amendment I) address primarily Congress, the next three (Amendments II-IV) address primarily the President, the next four (Amendments V-VIII) address primarily the Courts, and the last two (Amendments IX-X) affirm general principles. The arrangement of the twelve proposed amendments of 1789 can be described in still another way: the sequence is determined by the order in which government and citizens come together, running through the stages of association between citizens and their government. We move from citizens shaping and directing the Congress, to the citizen (or, more generally, the person) being subjected to a series of governmental actions.
The shaping and directing of Congress culminates in the First Amendment protection of the freedom of speech and of the press required by citizens who are to inform, supply, and admonish Congress. The Second, Third, and Fourth Amendments deal with abuses apt to arise from the demands of Government on citizens¾for military services, for the quartering of soldiers, and for evidence. Government, particularly the Executive, can be seen as trying to defend the Country through the activities restrained in these three Amendments. In Amendments V through VIII we can see a supervision of the stages of a trial, once evidence is assembled pursuant to the restraints laid down in the Fourth Amendment.
We now consider, in turn, the three Amendments in which the Executive, along with the Congress, is held in check, especially as the President tries to organize the defense of the Country. These are Amendments II, III, and IV.
II.
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The original intentions of this Amendment may be, in some ways, the most difficult for us to agree upon, so divided and ingenious are advocates on both sides of the controversy about gun control in this Country today.
An early source of the Second Amendment may be found in the Bill of Rights of 1689, where it is provided: "That the subjects [Page 689] which are protestants, may have arms for their defence suitable to their conditions, and as allowed by law." The vigorous case made by those who argue against extensive gun control is presented in the following account of the Second Amendment:
However controversial the meaning of the Second Amendment is today, it was clear enough to the generation of 1789. The amendment assured to the people "their private arms," said an article which received James Madison's approval and was the only analysis available to Congress when it voted. Subsequent contemporaneous analysis is epitomized by the first American commentary on the writings of William Blackstone. Where Blackstone described arms for personal defense as among the "absolute rights of individuals" at common law, his eighteenth-century American editor commented that this right had been constitutionalized by the Second Amendment. Early constitutional commentators, including Joseph Story, William Rawls, and Thomas M. Cooley, described the amendment in terms of a republican philosophical tradition stemming from Aristotle's observation that basic to tyrants is a "mistrust of the people, hence they deprive them of arms." Political theorists from Cicero to John Locke and Jean-Jacques Rousseau also held arms possession to be symbolic of personal freedom and vital to the virtuous, self-reliant citizenry (defending itself from encroachment by outlaws, tyrants, and foreign invaders alike) that they deemed indispensable to popular government.[70]
Further on, this advocate argues:
In contrast to the original interpretation of the amendment as a personal right to arms is the twentieth-century view that it protects only the states' right to arm their own military forces, including their national guard units. . . .
The states' rights interpretation simply cannot be squared with the amendment's words: "right of the people." It is impossible to believe that the First Congress used "right of the people" in the First Amendment to describe an individual right (freedom of assembly), but sixteen words later in the Second Amendment to describe a right vested exclusively in the states. Moreover, "right of the people" is used again to refer to personal rights in the Fourth Amendment and the Ninth Amendment, and the Tenth Amendment expressly distinguishes "the people" from "the states."[71]
I notice, before suggesting a counter-argument, that it is far from [Page 690] clear that "the Tenth Amendment expressly distinguishes 'the people' from 'the states." In fact, there have been scholars who have insisted that people is not distinguished from States in the Tenth Amendment, but rather is virtually its equivalent.[72] In any event, people there, and perhaps also when used with respect to the right of assembly in the First Amendment, seems to be an aggregate, not individuals, just as in the Declaration of Independence. And so also in the Second Amendment?
Some read the Second Amendment as protecting citizen-soldiers and the local militia against the depredations of the National Government, something which the State governments are supposed to resist. The militia is distinguished from the army, as may be seen in the Constitution of 1787.[73] Still, the militia too is subject to discipline, which is not something that most gun owners who make much of the Second Amendment today are amenable to, especially if wartime service seems imminent.
The Second Amendment proposal, when initially brought before the First Congress in much the form we now have it, had a conscientious-objection exemption appended to it. Egbert Benson argued against this exemption in the House of Representatives:
[He] moved to have the words "but no person religiously scrupulous shall be compelled to bear arms," struck out. He would always leave it to the benevolence of the Legislature, for, modify it as you please, it will be impossible to express it in such a manner as to clear it from ambiguity. No man can claim this indulgence of right. It may be a religious persuasion, but it is no natural right, and therefore ought to be left to the discretion of the Government. If this stands part of the constitution, it will be a question before the Judiciary on every regulation of the militia, whether it comports with the declaration or not. It is extremely injudicious to intermix matters of doubt with fundamentals.
I have no reason to believe but the Legislature will always possess humanity enough to indulge this class of citizens in a manner they are so desirous of; but they ought to be left to their discretion. [74]
The way this issue was approached implies there was or could be a duty to bear arms, a duty that some might on occasion try to avoid by recourse, for example, to a conscientious-objector status. Does [Page 691] not this approach tend to regard "the right to bear arms" more as a prerogative of the local community (or the people) acting collectively than as a personal privilege of gun-owners? Did the proposal of a conscientious-objector exemption here reflect an understanding of the guarantee as recognizing a power in the States to conscript members of the militia? To emphasize a personal right here, with little or no regard for the obligations and demands of the community in protecting itself, is something like putting the emphasis in the First Amendment upon the physical act of speaking without regard for the primary public-discourse aspect of the traditional right to "freedom of speech."
It seems to have been understood from the earliest days in Anglo-American constitutional history that whatever right to bear arms there was, it could be regulated by the community. The English Bill of Rights of 1689 referred, as we have seen, to the possession of arms "as allowed by law." The anti-gun-control advocate I have just quoted from drew on William Blackstone and William Rawle. But those authors took for granted the regulation of all arms (which are not limited to firearms). Blackstone, in describing the arms one may have, speaks of "such as are allowed by law."[75] Rawle observed in the early Nineteenth Century, "A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life."[76] Further on he added, "This right ought not, however, in any government, to be abused in the disturbance of the public peace."[77] Advocates of gun control today have considerable "disturbance of the public peace" to point to as attributable to the remarkable proliferation of weapons among us. Even the advocate of the antigun-control position from whom I have quoted at length concludes his article with major concessions to the power of government to regulate the ownership and use of weapons:
Interpreting the Second Amendment as a guarantee of an individual right does not foreclose all gun controls. The ownership of firearms by minors, felons, and the mentally impaired¾and the carrying of them outside the home by anyone¾may be limited or banned. Moreover, the government may limit the types of arms that may be kept; there is no right, for example, to own [Page 692] artillery or automatic weapons, or the weapons of the footpad and gangster, such as sawed-off shotguns and blackjacks. Gun controls in the form of registration and licensing requirements are also permissible so long as the ordinary citizen's right to possess arms for home protection is respected.[78]
This advocate, who minimizes the militia orientation in the Second Amendment in his emphasis upon home protection, has enlisted Joseph Story in support of his reading of the original meaning of the Second Amendment. But the critical passage on the subject in Justice Story's Commentary is decidedly different in spirit from what this advocate has said:
The importance of [the Second Amendment] will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.[79] [Page 693]
It seems to me that what may properly be done about the control of the private ownership of arms in this Country is a political, not a constitutional, issue. If the advocates of virtually unlimited access to firearms should be obliged to regard this as a political issue, they can be depended on to muster all their forces with the greatest possible effect without running the risk of relying on dubious constitutional support.
III.
The Third Amendment exhibits, as does the Second Amendment, the concern of Eighteenth Century Americans about how the people are to be protected from the depredations of those whom they have to rely on to protect them: "No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law."
This guarantee had found expression in Section VI of the Petition of Right of 1628:
And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and the inhabitants against their wills have been compelled to receive them into their houses, and there to suffer them to sojourn, against the laws and customs of this realm, and to the great grievance and vexation of the people.
A century and a half later, Americans expressed similar sentiments in the Declaration of Independence, with one of the grievances there turning around "quartering large bodies of armed troops among us." A decade earlier, Benjamin Franklin, while serving as one of the North American agents in London, had argued:
All that the [American] agents contend for is, that the same protection of property and domestic security which prevails in England, should be preserved in America. Let [the British government] first try the effects of quartering soldiers on butchers, bakers, or other private houses here [in England], and then transport the measure to America."[80] [Page 694]
An attempt was made in the First Congress, when the Bill of Rights proposals were debated, to eliminate the "time of war" exception to the prohibition upon the quartering of soldiers in the Third Amendment. The following proceedings in the House of Representatives on August 17, 1789 are illuminating:
The fourth clause of the fourth proposition was taken up as follows: "No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law."
Mr. Sumter hoped soldiers would never be quartered on the inhabitants, either in time of peace or war, without the consent of the owner. It was a burthen, and very oppressive, even in cases where the owner gave his consent; but where this was wanting, it would be a hardship indeed! Their property would lie at the mercy of men irritated by a refusal, and well disposed to destroy the peace of the family.
He moved to strike out all the words from the clause but "no soldier shall be quartered in any house without the consent of the owner."
Mr. Sherman observed that it was absolutely necessary that marching troops should have quarters, whether in time of peace or war, and that it ought not to be put in the power of an individual to obstruct the public service; if quarters were not to be obtained in public barracks, they must be procured elsewhere. In England, where they paid considerable attention to private rights, they billeted the troops upon the keepers of public houses, and upon private houses also, with the consent of the magistracy. Mr. Sumter's motion being put, was lost by a majority of sixteen.[81]
It is salutary to be reminded, upon noticing Congress's refusal to remove the wartime exception in the Third Amendment, that there are community needs to be served in these matters. This protection of the public service against those individuals who would obstruct it is to be compared with the tendency of some today to deny the legitimate concerns of government with respect to the common defence, as may be seen in how the conscientious-objection cases have developed in this Country in recent decades.
I return to Justice Story for his discussion of the Third Amendment:
This provision speaks for itself. Its plain object is to secure the perfect enjoyment of that great right of the common law, that a [Page 695] man's house shall be his own castle, privileged against all civil and military intrusion. The billeting of soldiers in time of peace upon the people has been a common resort of arbitrary princes, and is full of inconvenience and peril. In the petition of right (3 Charles I.), it was declared by parliament to be a great grievance.[82]
The reference here to a man's home as his castle leads us naturally into the Search and Seizure provision of the Fourth Amendment.
IV.
Before we consider the Fourth Amendment, however, we should notice the implications of the use of qualifications in some of the Amendments. For one thing, the presence of these qualifications points up their absence in other places, such as in the First Amendment, where Congress is forbidden to make any law respecting the establishment of religion, prohibiting the free exercise of religion, or abridging the freedom of speech, press, assembly, or petition. Thus, the First Amendment rights are unqualified, however much they depend on what such terms as establishment of religion, free exercise of religion, and freedom of speech or of the press mean.
In the Second, Third, and Fourth Amendments, unlike in the First Amendment, there are qualifications. In the Second Amendment, the right to bear arms is keyed to "the security of a free State" and is evidently related to the existence of a "well regulated Militia." In the Third Amendment, the quartering of soldiers in houses without the consent of owners may be resorted to by the government only in wartime. And, as we shall see, not all searches and seizures are forbidden by the Fourth Amendment.
These qualifications, as is true with other qualifications in the Constitution of 1787, are with a view to the common good. The character and requirements of the community, especially a republican community, affect the purpose as well as the extent of various rights. These Amendments assume not only personal interests and desires but also civic interests, keeping in view the contributions that only government can make, as well as the threats that governments do pose, to the happiness of citizens.
The modern approach to these matters makes much more of "doing one's own thing," as we noticed in Lecture No. 5 about how the freedom of speech and of the press absolutely protected by the First Amendment has been expanded to immunize practically [Page 696] all "freedom of expression" from regulation. The muting of the original public-discourse aspect of the First Amendment is encouraged by the current eclipse of the assembly and petition elements in the First Amendment. This eclipse is in large part due to the scope and effectiveness of freedom of speech and of the press among us. An eloquent exercise of the right to petition may be seen in the Declaration of Independence, where a long list of grievances is recited, grievances which the Colonists had again and again called to the attention of their "British brethren." Even as the development of a free press has made the right of petition (whether for public or private grievances) less significant, the primary purpose of a free press has been lost sight of.
The emphasis upon freedom of expression is not limited to readings of the First Amendment, with the consequent relaxation of restraints on pornography, libel, and advertising. This approach is seen in still another dramatic form today in the way that virtually unlimited access to handguns is insisted upon in some quarters, even though we now have every year firearms deaths that mount up to two-thirds of the total American battle deaths of a decade of involvement in the Vietnam War.[83]
Related to, and perhaps reinforcing the insistence upon, a general freedom of expression is the appetite we are developing for more and more privacy, which is intended to be served to a limited extent by such Amendments as the Third, Fourth, Fifth and Eighth, and perhaps somewhat by the right of petition provision in the First Amendment. The right to privacy about which we now hear so much seems to be the distinctively modern way of making a great deal of the ancient right of property. But property rights always have had built into them an awareness of the community which makes property itself possible. Privacy rights, on the other hand, tend to legitimize a radical separation from, if not even a repudiation of, the community, a repudiation in the name of what can be regarded as natural yearnings. All this leads to an intensification of individuality and hence a preoccupation with self- fulfillment [Page 697] and of a corresponding depreciation, or at least a neglect, of citizenship and a commonly-shared public sense of duty.
The movement toward more and more unfettered individuality and hence freedom of expression may be an inherent tendency of republics. There is something infectious (if not undisciplined) about liberty, not least because of the considerable pleasure we get from saying and doing whatever we please. But an enduring liberty depends on a stable community, which depends in turn on a disciplined and enlightened people, especially if that people is to remain self-governing. An appreciation of the care with which the Constitution of 1787 and its 1791 Amendments were crafted should help us respect the requirements and blessings of public order.
V.
The tension between a proper privacy and the needs of effective governance may be seen in the Fourth Amendment, which provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Here, as elsewhere in the Bill of Rights, we see the affirmation of an old right that had been developed in England in response to even older abuses. One form these abuses took there, as well as in North America where they helped provoke the Revolution, was the use by the British government of general warrants (or general writs of assistance), especially in tax matters. The right set forth in the Fourth Amendment is a right refined in the United States, going beyond what the English (whose government still has access to general writs of assistance) had insisted upon.
The development of the right not to be subjected to unreasonable searches and seizures was dramatized in England by the controversy about the publication of an issue of the North Briton journal in 1763. Here is one scholar's account of the use of general warrants in that case and theretofore:
The general warrant did not confine its reach to a particular person, place, or object but allowed its bearer to arrest, search, and seize as his suspicions directed. In 1763, a typical warrant by the British secretaries of state commanded "diligent search" for the unidentified author, printer, and publisher of a satirical [Page 698] journal, The North Briton, No. 45, and the seizure of their papers. At least five houses were consequently searched, forty-nine (mostly innocent) persons arrested, and thousands of books and papers confiscated. Resentment against such invasions ultimately generated an antidote in the Fourth Amendment and is crucial to its understanding.
General warrants and general searches without warrant had a lengthy pedigree. In 1662, a statute codified writs of assistance that allowed searching all suspected places for goods concealed in violation of the customs laws. Such writs had been used since at least 1621 and themselves absorbed the language of royal commissions that had for centuries authorized general searches without warrant. Similarly promiscuous searches had existed for numerous applications: the pursuit of felons, suppression of political and religious deviance, regulation of printing, medieval craft guides, naval and military impressment, counterfeiting, bankruptcy, excise and land taxes, vagrancy, game poaching, sumptuary behavior, and even the recovery of stolen personal items.[84]
In 1763 an English judge recorded his outrage upon reviewing the evidence in one such case:
To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject. I thought that the 29th chapter of Magna Charta, Nullus liber homo capiatur vel imprisonetur, &c. nec super eum ibimus, &c. nisi per legale judicium parium suorum vel per legem terrae, &c. which is pointed against arbitrary power, was violated.[85]
I return to the scholar I had quoted in order to notice the American responses to these issues:
Although the right against unreasonable search and seizure has lengthy British roots, its cornerstone, the confinement of all searches, seizures, and arrests by warrant to the particular place, persons, and objects enumerated, derives from Massachusetts. A cluster of Massachusetts statutes and court decisions from 1756 to 1766, the third stage in a century-long process, uniformly restrained searches and arrests to the person or location designated in the warrant. Legislation in the 1780s extended this specificity to the objects of seizure. The Fourth Amendment is thus the marriage of an ancient British right and a new, colonial interpretation [Page 699] that vastly extended its meaning.[86]
We are also told that eight States inserted guarantees against general warrants in their constitutions of 1776-1784 and that four State Ratifying Conventions urged an amendment to the Constitution which would provide a corresponding restraint on searches by the new national government.
An elaborate predecessor to the Fourth Amendment may be found in the Massachusetts Constitution of 1780:
Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.[87]
It is instructive to reflect upon the repeated use of the term unreasonable in a series of Search and Seizure declarations. Courts are told that they must use their judgment in issuing warrants. This reflects the power and duty of the Courts to assess these and like matters. The power left here with the Courts is evident in an account of pre-Revolutionary proceedings in Massachusetts:
Writs of assistance came under attack in the American colonial courts. James Otis, a fiery young Massachusetts attorney, made a brilliant "higher law" assault on the writs in Paxton's Case (1761). Although Otis lost, most colonial courts refused to issue such writs when required to do so by the Townshend Act of 1767, and a series of pamphlets beginning with John Dickinson's Farmer's Letters joined in the assault.[88]
What are trial judges to do when prosecutors submit evidence that has been improperly seized by officers of government?[89] One way of dealing with this problem is what we now know as the Exclusionary Rule, which forbids governmental use in court of any such evidence. This rule is a possible but not a necessary implication of a guarantee which is designed, in large part, to keep the [Page 700] Executive in check. This Exclusionary Rule implication of the Fourth Amendment, developed by American judges, is rarely resorted to elsewhere. It is not, for example, the rule in other Common Law jurisdictions such as Great Britain and Canada, where official disciplinary proceedings and (it is said) damage suits by aggrieved persons are relied upon to keep the police in line.
What is the genesis of the American rule? It is considered unbecoming for governments to depend on evidence that is tainted. Judges sometimes say that the honor of the community requires that only lawful means be used to secure convictions. Even more is made of the need to discipline not only the police but also the community at large. Various rules are defended as serving the development and maintenance of a moral sense in the community. This is a way of teaching that human relations are not to be merely the result of the random play of forces.
Many older lawyers and judges believe that the Exclusionary Rule and other such rules have had, despite occasional obvious injustices in their application, a generally salutary effect upon the police. The police, they remember, were all too often a law to themselves before these judicial curbs were imposed upon them.
Even today some police are notorious for using supposed or minor traffic violations to stop, search, interrogate, and otherwise harass many people, especially members of minority groups, who are innocent of other offenses. Our automobiles have become so important to us that they are, in important respects, like the houses we have traditionally considered privileged places.
Law enforcement authorities frequently testify that a well-disciplined police force is not likely to be adversely affected by the Exclusionary Rule, once the rule is properly publicized. Surprisingly few indictments, except perhaps in "the war against drugs" where the volume of offenses encourages even more official shortcuts than hard-pressed police routinely resort to, are dismissed because of the Exclusionary Rule. It is hard to determine, however, how many prosecutions are not initiated because of the Exclusionary Rule. Still, it should be noticed that criminal law specialists generally believe that, contrary to a widespread public perception, the Exclusionary Rule has had relatively little adverse effect on the criminal justice system and no discernible effect on the crime rate or on the ability of law enforcement officers to control crime in this Country.
The Exclusionary Rule is a relatively minor offender among the various legal provisions that routinely deny courts access to the [Page 701] truth and otherwise protect guilty (as well as innocent) people. Far more important are such traditional, or Fifth Amendment, immunities as the right against self- incrimination, the right of a defendant to remain silent when put on trial, the right one has not to testify against one's spouse in most situations, and the right of clients to speak in total confidence to their attorneys, all of which are reinforced by the presumption of innocence. Even more pervasive in liberating our everyday life is the law of private property, which leaves a wide scope for unsupervised activity.
Do we want our lives organized in any other way with respect to such matters? After all, the police are sometimes rather confident about who the criminals are that are at large in the community. What do we want done to the people thus suspected, when there is no solid evidence available with which to prosecute them? Should torture be routinely permitted when dealing with the more difficult suspects? More lie detector use? Universal surveillance, including systematic eavesdropping on telephone conversations? Official monitoring of all financial transactions, of travel activities, and even of social relations?
Although we are reluctant to go this far, we can still wonder what we can do to take proper care of ourselves.
VI.
The education of our people, which includes a sound grounding in morality, is vital here. The provision of such grounding is one of the principal duties and opportunities of State Governments in our constitutional system. How the States are to be guided and restrained by the Constitution in these and other matters remains controversial as it has been from the beginning of the Republic.
We have noticed that the history of the drafting of the Bill of Rights, however general the language of most of these Amendments may be, displays an intention to address only the National Government. The case of Barron v. Baltimore, [90] which elicited in 1833 a forceful Opinion of the Court by Chief Justice Marshall, is generally taken to dispose of attempts to make the Bill of Rights directly applicable to the States without benefit of any subsequent amendments.
There remains, however, the question of what Barron's lawyers believed was available to them because of the Bill of Rights in their suit challenging State action. Perhaps they were trying to draw [Page 702] upon the implications of the fact that the Bill of Rights should be seen primarily as confirming rights that had "always" belonged to the American people, rights that had been developed in large part by Common Law judges. We have noticed the repeated refusals of pre- Revolution Colonial judges in North America to issue the search warrants that British officers asked for.
That various critical rights of the American people did not depend on the Constitution of the United States is evident in a State court case of 1814. Consider how a Connecticut appellate judge spoke on that occasion of a Search and Seizure issue on review before him:
That this warrant was such as no justice ought to have issued will be admitted; for it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search. The officer also was directed to search suspected persons, and arrest them. By whom they were suspected, whether by the justice, the officer, or complainant, is not mentioned; so that every citizen of the United States within the jurisdiction of the justice to try for theft, was liable to be arrested and carried before the justice for trial. The warrant was this: Search every house, store or barn within the town of Wilton, that is suspected of having certain bags concealed in it, said to be stolen, and all persons who are suspected of having stolen them. This is a general search-warrant, which has always been determined to be illegal, not only in cases of searching for stolen goods, but in all other cases.[91]
It is suggested by the materials I have been drawing on that whatever laws and rights bound all American governments before the Constitution was ratified should have continued to bind those governments after the Bill of Rights was ratified, except in those instances where the first eight Amendments modified the previous arrangement. This means that the general legal system, with its constitutional presuppositions about the privileges and immunities of Americans, should have continued to shape not only the National Government but the State Governments as well. This general legal system has had a pervasive influence on this Country, as have both the general English heritage evident in our language and [Page 703] a market economy geared to vast territories available to be exploited by everyone.
VII.
We have observed that most of the great rights recognized in the Bill of Rights of 1791 had been settled long before in the Common Law. The Common Law is taken for granted throughout our constitutional system, particularly in the assumed capacity of judges to distinguish between the reasonable and the unreasonable, between the just and the unjust and, hence, between the acceptable and the unacceptable.
Was not the United States Supreme Court, as the preeminent judicial body in this Country, assumed from the beginning to be at the apex of the Common Law pyramid? This assumption may have been at the root of the decision by the plaintiff in Barron v. Baltimore to take his case to the United States Supreme Court. [92] May not the reliance by that plaintiff on the Bill of Rights, which the Court ruled was not applicable to the States, have been little more than a convenient way of invoking traditional Common Law guarantees that every government in the United States is bound to respect?
Courts of the United States (now generally known as Federal Courts) are required to conduct their own proceedings in accordance with directives laid down in the Constitution and its Amendments and in acts of Congress. These directives include provisions respecting jurisdiction and processes. How far may the courts go in regulating the activities of other branches of the National Government?
Take, for example, the directive to the National Courts by the Fourth Amendment that they not permit unreasonable searches and seizures. Perhaps they are entitled if not even obliged, in the spirit of this directive, not to admit any evidence that has been improperly gathered. May they go even further, however, and order non-judicial officers of the National Government not to make any other use of material that is considered so tainted by the mode of gathering that it should never be used in court? Is not this a variation upon the issue of judicial review that I have discussed in my Commentary on the Constitution of 1787? This issue, as well as the issue about the extent and effect of the Bill of Rights, should be further clarified by the investigation in my next Lecture of those [Page 704] Amendments (V-VIII) that are very much concerned with how judicial proceedings should be conducted, if not by all judges in this Country, at least by those who are both privileged and obliged in their routine judicial capacity to take their bearings by the Constitution of 1787 and its Amendments.
7. AMENDMENTS V, VI, VII, AND VIII
I.
Of the three branches of the governments in the United States, the judiciary is the least affected by the Constitution of 1787, even though the National Government under the Articles of Confederation had no permanent judiciary of its own. The legislatures and executives of both the National and the State governments were much more affected by the new constitutional order after 1789 than were the judges in this Country. Judges would continue doing what judges had been doing for centuries in English-speaking communities: they would continue to interpret statutes, including constitutional provisions, and to apply and develop the Common Law.
Article III, the Judicial Article of the Constitution, permits Congress both to provide for the Supreme Court that is created by the Constitution and to establish a system of inferior courts. But the Constitution, unlike what it does in the Legislative and Executive Articles, assumes in the Judicial Article that things will continue much as they had long been in judicial proceedings, with the Common Law vital to the entire system of jurisprudence. It is also assumed that legislatures will continue to provide guidance for the courts both with respect to the processes they employ and with respect to the substantive law they apply, supplementing what the Constitution itself supplies. It is important to notice here that courts cannot establish on their own the extent of their jurisdiction and powers. That must be left to the Constitution and to statutes made pursuant to the Constitution. In short, courts should not be expected to legislate.[93]
To say that the American judiciary was least affected by the Constitution of 1787 is to recognize that the principal activities of English-speaking judges should not be affected by political or perhaps even constitutional realignments. Where the judicial head of the community is to be found and what its jurisdiction includes is a political decision, but not how that court does what it does. Simi-[Page 705]larly, the decision of how many inferior courts there should be from time to time and what they are to do is a political decision, but not how they are to do whatever they are assigned to do.
The system of government provided by the Constitution of 1787 could have operated indefinitely with no United States ("Federal") courts inferior to the Supreme Court. State courts can be, and often still are, used to do what the Federal judges do in administering the laws of the United States. It is left to Congress to decide what inferior courts the Country needs. The constitutional system would not work properly, however, if State executives and State legislatures were depended on to do much of what the President and the Congress do. That was attempted, with unsatisfactory consequences, in the Articles of Confederation.
All judges in the Country were expected, even before the Constitution, to apply the relevant National and State laws, including the Common Law, appropriate to the cases before them. There was no reason to believe that the activities of judges would change or that the Common Law would be different from what it had been before the Constitution was ratified. One reservation heard in the Federal Convention about reliance upon State judges should be noticed: many of them did not have life tenure, which kept them from being as independent of public opinion and of political considerations as the Framers believed that judges should be. The judges relied upon by the Constitution are expected to be fully, or truly, judges. This means, among other things, that they should not be subject to being routinely corrected by the people when they go astray. The cumbersome, and rarely-used, impeachment remedy is the only means of holding them personally responsible for what they do. This helps explain why the bulk of the provisions in the Bill of Rights (beginning with the Fifth, if not the Fourth, Amendment and running through the Eighth Amendment) have as perhaps their principal concern the restraining of judges.
Congress, it seems, was considered to pose far less of a threat to the rights of the people. Not only was Congress subject to elections every two years but it was also continuously exposed to the exercise by the people of their potent freedom of speech. The President, although subject to similar restraints, was considered more of a threat, especially because of his powers as Commander-in-Chief, powers that are therefore placed under tight control by the Constitution. Congressional control of the purse is critical here, a restraint that was circumvented with the Iran arms-Contra aid experiment. Judicial tyranny, on the other hand, is harder to ward [Page 706] off in any particular case, especially if judges enjoy the independence they require in order to be effective. The dangers posed by judges may be seen in the elaborate precautions provided in the Judiciary Article with respect to the crime of treason, a crime that had been harshly dealt with and even extended by the English judges over the centuries.[94]
Reinforcing the perennial popular concern about how judges might conduct themselves is the mystery in which judges tend to be clothed. Technicalities have to be so important in the law that citizens are easily intimidated when they try to figure out what the law provides. This may be seen in difficulties one may have trying to explain to laymen the nature of the Common Law or the intricacies of Article III of the Constitution.[95] Similar difficulties are encountered when one examines the provisions in the Bill of Rights that deal with the conduct of judicial proceedings, especially because those provisions obviously presuppose a well-developed system of law.[96]
A well-developed, and indeed long-established, system of law should become apparent to us as we consider in turn the Amendments (the Fifth through the Eighth) that are primarily concerned with potential abuses in the course of judicial proceedings. All officers of government are reminded here, as in the Second, Third, and Fourth Amendments as well, of privileges and immunities that had long been claimed as part of the heritage of the English-speaking peoples.
II.
The Fourth Amendment, as we have seen, was directed to both the Executive and the Judiciary. All of the Amendments, we have noticed, also have Legislative conduct in view. But the Fifth, Sixth, Seventh, and Eighth Amendments seem particularly concerned with the Courts, taking us as they do through the judicial process.
The Fifth and Sixth Amendments deal extensively with criminal [Page 707] proceedings, following upon the proper mode of securing evidence that is provided for in the Fourth Amendment. The text of the Fifth Amendment reads:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
There are five elements set forth here. The first two specify who can be tried in a criminal proceeding. Action by a grand jury is a prerequisite (except for the trials of those in military service), but one can be tried only once for the same offence (that is, a second indictment will not be permitted or a retrial on the first indictment, once one is acquitted). Many technical questions have to be addressed, however, in any application of these two provisions.
For example, what is a grand jury, how does it work, and what form does its action have to take in order to provide the proper basis for a criminal trial? Both statutes and judicial determinations, stretching back to the days of Magna Carta and even before, have helped make the grand jury what it is. It is obvious that judges must be relied upon if we are to know what is called for on any particular occasion. The two dozen citizens assembled to determine whether any person should be subjected to a criminal trial stand in the way of prosecutors and judges who might be inclined to oppress their fellow citizens. The grand jury can also serve to make officials of government more vigilant and vigorous in prosecuting and punishing criminals (including those who betray the public trust) than they might otherwise be.
Even more difficult technical questions are raised in the application of the Double Jeopardy guarantee of the Fifth Amendment. Double jeopardy, we have been told, "is the most ancient procedural guarantee provided by the American Bill of Rights."[97] Even so, many difficult questions remain to be resolved, usually by Courts, such as when precisely "jeopardy attaches." Thus, we are told, although the Common Law recognized the pleas of former [Page 708] acquittal and former conviction, which would stand as bars to another trial on the same charge, the American law has taken a more expansive view of the right here: even a prior accusation without a verdict can sometimes result in a successful double-jeopardy plea. Complications extend to questions about whether the crime being charged is indeed the same as an earlier one that had been charged, especially when the same facts are the basis of the two charges, and about what the effects are of separate prosecutions for the same crime in State and Federal Courts.
Conscientious judges have to resolve these matters, and they must do so pretty much on a case-by-case basis. Legislatures cannot do much more than provide general rules, especially if the spirit of the constitutional prohibitions of bills of attainder is to be respected. It should be obvious that an independent judiciary is required here if popular passions and overly zealous prosecutors are to be held in check. It should also be obvious that judges should have at their command considerable instruction in how such matters have been dealt with by their predecessors. This instruction must promote an awareness of the considerations of fair play and social policy that generally guide judicial determinations.
Both the indictment and the double jeopardy requirements presuppose the rule of law, including respect for the various laws that govern how prosecutors and judges conduct themselves. However important technical requirements and learning have to be, the constitutionalist's understanding can help make it less likely that these privileges and immunities will be converted into snares and delusions.
III.
The remaining three elements in the Fifth Amendment describe the limitations placed upon government efforts to deprive a person of various things: (1) information he must provide about his activities, (2) his life, liberty, or property, and (3) private property desired for public use.
The first of these limitations is absolute: no person "shall be compelled in any criminal case to be a witness against himself." No doubt, the defendant often may be the one person who knows most about what really happened on a particular occasion, but the government may still have to make its case without his cooperation. Here, by the way, is one of many places in our Constitutional system where absolutes are relied upon.
There remain complicated questions to be resolved here also. [Page 709] What constitutes "testimony against [oneself]"? Does it include the taking of blood and other bodily specimens? May incriminating testimony be compelled if comprehensive immunity from prosecution is provided? May one be compelled to testify against oneself in proceedings other than the criminal case in which one is a defendant? In addressing these and like questions, the purposes of any privilege against self-incrimination have to be taken into account. A considerable body of analysis takes account of the abuses that this privilege is intended to guard against and the respect for human dignity that it embodies. We can be reminded here of something said about the Search and Seizure Guarantee in the Fourth Amendment: "The law will not tempt a man to make a shipwreck of his conscience in order to disculpate himself."[98]
The second of the Fifth Amendment limitations on deprivations is conditional: a person may be deprived of life, liberty, or property with due process of law. This Due Process Clause is generally said to hearken back to the famous provision in Magna Carta where adherence to the law of the land by the king was proclaimed. It has been reaffirmed many times since then, as in the third article of the Petition of Right of 1628:
[B]y the statute called The great charter of the liberties of England, it is declared and enacted, That no freeman may be taken or imprisoned, or be disseised of his freehold or liberties, or his free custom, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by the law of the land.
Three centuries earlier, in 1354, an act of Parliament, in reaffirming Magna Carta, had changed law of the land to due process of law. [99] Due process became the preferred term in this Country once it was emphasized in the Fifth and Fourteenth Amendments. "Due process of law," it has been said, became "the most important and influential term in American constitutional law." [100] Part of that influence has been dubious, taking the form as it did of a reading of the Due Process Clause that permitted courts to invalidate legislation even though that legislation did not disregard or violate the judicial processes that the clause was originally intended to guide. The most notorious use of the Due Process Clause thus far has been in the Dred Scott Case of 1857, where it [Page 710] was held (in effect) that the Fifth Amendment kept Congress from trying to keep slavery out of the Territories of the United States, and this despite the significance of what had been done about slavery in the Northwest Ordinance.
Although Dred Scott was a misreading of the Due Process Clause (which we shall consider at greater length when we discuss the Fourteenth Amendment and its Due Process Clause in Lecture No. 12), it should be conceded that due process may be seen even in a system that permits slavery. Slavery probably tends to be ameliorated somewhat when there is a general respect for the law of the land, which means that even the institutions of slavery have to be provided for by law. This is not to deny, however, that the underlying assumptions about the inestimable importance of a person's right to "life, liberty [and] property" implicit in the Due Process Clause tend to call into question any system of slavery that is based merely on arbitrary racial differences.
Due process, or a respect for the law of the land in the ordering of judicial proceedings, is taken for granted throughout the Constitution of 1787, perhaps most dramatically in its reaffirmation of the venerable privilege of the writ of habeas corpus. We are again reminded that what we see in our constitutional documents testifies to a much more extensive system of legal institutions than is made explicit on the surface of these documents. Thus, the Due Process Clause leaves open for determination what processes may be due on various occasions, something that the legislature may have to help to determine from time to time.
The third of the Fifth Amendment limitations on deprivations is also conditional: a person may have his private property taken for public use if just compensation is paid to him. Here, too, it is evident, upon examination of the controversies that Courts deal with, that intricate questions have to be confronted. What is a "taking"? What is a "public use"? How is "just compensation" to be determined? For example, if legislation or other governmental activity effectively prohibits the use by an owner of his property, is that to be considered a taking? A variety of circumstances have elicited a variety of responses by the Courts. Generally, though, it is believed that the property in question has to be physically taken over or destroyed by the community for it to be regarded as a taking. In non-taking instances, however, the community may want on occasion to compensate owners whose continued use of property is made virtually impossible by something the community has done [Page 711] (perhaps unexpectedly) in its own interest¾but that need not be a Taking Clause problem.
By and large, the simpler, less sophisticated readings of these provisions should be preferred. It should be recalled that these provisions were evidently straightforward enough for the Congress that drafted the Bill of Rights; few of these provisions required explanations, so far as we can tell from the records that we happen to have. It is obvious from the available debates in Congress and in the Country at large that the Drafters of the Bill of Rights were dealing with provisions that had long been familiar to practitioners in Common Law courts.
IV.
The Sixth Amendment was the only one of the first ten Amendments that was intended, when first proposed, to replace a provision in the Constitution of 1787. One of the proposed amendments that was not ratified by the States (changing the ratio of representation in the House of Representatives) was also intended to replace a provision in the Constitution. But that replacement represented a change in a constitutional provision, whereas the Sixth Amendment was advanced as an amplification of what was already there. That is, trial by jury in criminal cases is assured in the Constitution of 1787: the provision in Article III of the Constitution is primarily concerned, however, with the effect of division of the Country into States. Otherwise, the Article III jury- trial clause is a reminder of what was generally recognized as the right to trial by jury in criminal cases.
The original jury-trial provision in the Constitution of 1787 reads:
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
It is taken for granted that it is generally known what trial by jury is. What the elements are of a proper criminal trial also seem to be known, but some of them were nevertheless spelled out in the Sixth Amendment where it is provided:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with [Page 712] the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.
The various elements of a trial were not only known, but long known. The elements collected here in the Sixth Amendment are familiar down to our time. What is now the status of the equally long-established elements not mentioned in the Sixth Amendment? Are some of them "saved" by the Due Process Clause of the Fifth Amendment? It is hardly likely that the Drafters of the Bill of Rights intended to repudiate all elements other than those mentioned, especially because there is nothing to indicate that the elements collected here are of a different calibre from the ones not mentioned. All of these elements result from a long historical development, however much various of them may be justified or cherished as somehow natural in their appeal. Certainly, it is natural that long-established rights, even if partly accidental in their origins or development, should be respected in a community.
It is almost certain, we have seen, that the elements of the criminal process set forth in the Fifth and Sixth Amendments would have been taken for granted by judges and lawyers in all American courts, even without the enactment of the Bill of Rights. Many of these elements, and others as well, have repeatedly been taken for granted, for two centuries, in legislation pertaining to the Courts of the United States. Even though the enumeration of some of the traditional elements may not have implicitly denied a constitutional status for other equally traditional elements that were not mentioned, that enumeration did tend to lead to their neglect: they have not been regarded as worthy of the highest constitutional respect. What, for example, is the constitutional status of such traditional elements of trial by jury as the size of a jury, the right of challenge to prospective members of a jury, and the requirement of unanimity for a jury verdict?
The Sixth Amendment, amplifying as it does a provision in Article III, shows us what could be done as well for many other provisions in the Constitution of 1787. What is the significance, if any, of amplification here but not elsewhere? Is the choice of what rights were to be thus spelled out in large part due to chance driven "history"¾and hence not to be understood to require the depreciation of the rights that did not happen to be mentioned in the Bill of Rights? We shall return to this question when we consider the Ninth Amendment in my next Lecture. [Page 713]
V.
We see in the Seventh Amendment, dealing with the right to trial by jury in civil cases, provision for a right that had been considered for inclusion in the Constitution by the Federal Convention and then rejected. As noted in Lecture No. 2, the Convention found itself stymied in its efforts to settle upon what the traditional right to a civil trial jury consisted of. A guarantee of this right was asked for on the last day of systematic review of the provisions of the constitution that was being prepared. But, it was argued in response, there was simply too much variation in practice from State to State to permit a statement of the right that would satisfy the Country at large. As one delegate put it, "The constitution of Juries is different in different States and the trial itself is usual in different cases in different States."[101]
Even so, the demand for a constitutional guarantee was heard again in the First Congress¾and so we have the Seventh Amendment, which reads,
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
We can see here how the drafters of the Bill of Rights finessed the problem that had troubled the Federal Convention. It is simply said that "the right to trial by jury shall be preserved," with nothing said about what that right consists of. The less said about that, it seems to have been thought, the better. This is in marked contrast to what is said in the Fifth and Sixth Amendments about the criminal process. Perhaps the judges were depended on to work out a nationwide understanding over the years about the proper conduct of civil cases. We must wonder whether this was also expected with respect to other rights that had begun to take somewhat different forms across the Country. The superintending role here of the United States Supreme Court might have been depended on as well.
The second half of the Seventh Amendment does spell out a feature of the right being preserved. The limitation there upon how a "fact tried by a jury" shall be dealt with on appeal was provided because of concerns that had been expressed about the implications of a provision in Article III, Section 2 of the Constitution of 1787: [Page 714]
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
Thus, the Seventh Amendment reaffirms the decisive role of the jury in American jurisprudence.
We should notice as well that the Seventh Amendment explicitly refers, for the first time either in the Constitution or in the Bill of Rights, to the Common Law (and this it does twice). The way it is referred to here again reminds us that the Common Law, which regulates many commercial and other relations between persons in this Country, was taken for granted throughout the Constitution without having had to be mentioned explicitly.
Whatever diversities had begun to develop in the procedural aspects of the Common Law from State to State, it is evident in the Constitution of 1787 and its Bill of Rights that the substantive aspects of the Common Law could be considered uniform or at least were considered capable of being made uniform under the guidance of Congress and the Supreme Court. Again and again, the Framers, whether of the Constitution or of the Bill of Rights, proceeded as if a general understanding of constitutional matters and legal practices could be relied upon.
VI.
Amendment VIII provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." This guarantee goes back, in virtually the same language, to the English Bill of Rights of 1689. It was repeated many times, as in the Virginia Declaration of Rights in 1776, before the draft of the Eighth Amendment was prepared by the First Congress in 1789.
Legislators as well as judges are addressed by this Amendment. We notice echoes here of the Fifth Amendment's Due Process Clause which attempts to protect "life, liberty [and] property." The concern about excessive bail, excessive fines, and cruel and unusual punishments deals, it seems, with liberty, property, and life in that order.
Contemporary opinions probably have to be drawn on, at any particular moment, to determine whether bail or fines are excessive and whether a punishment is cruel and unusual. Those opinions [Page 715] may change from time to time. It should be obvious as well that bail, fines, and punishment should be tailored to the crime being dealt with. They may also have to be tailored to the circumstances of the person being dealt with. All this means that both the enduring standards of the community and the judgment and sense of humanity of lawyers, judges, and legislators must be drawn upon. The tough-mindedness of Eighteenth-Century statesmen is suggested by Samuel Livermore's comment in the First Congress on the "cruel and unusual punishments" clause:
No cruel and unusual punishment is to be inflicted; it is sometimes necessary to hang a man, villains often deserve whipping, and perhaps having their ears cut off; but are we to be prevented from inflicting these punishments because they are cruel? If a more lenient mode of correcting vice and deterring others from the commission of it could be invented, it would be very prudent in the Legislature to adopt it; but until we have some security that this will be done, we ought not to be restrained from making necessary laws by any declaration of this kind.[102]
In recent decades considerable use has been made of the Eighth Amendment in efforts to get the death penalty declared unconstitutional by the courts. One obstacle for abolitionists here is that the Constitution and its Bill of Rights, like the Common Law before them, do take it for granted that capital punishment may be properly resorted to. The Fifth Amendment, for example, refers to capital crimes and anticipates (as does the Fourteenth Amendment) that a person may be lawfully deprived of his life. It is also obvious that Congress, from the beginning, provided for the death penalty in its statutes as did probably all Eighteenth-Century State legislatures.[103]
Still, it is possible that radical changes in sensibilities or penology since 1789 have made capital punishment seem "cruel and unusual." Judges have to weigh contending arguments carefully if they are to adjudicate this matter in the spirit of the Eighth Amendment. Also relevant here is whether death sentences are distributed in such a way as to be either arbitrary or racially discriminatory, which would pose problems under the Fifth and Fourteenth Amendments.
These are certainly considerations that officers of government, as [Page 716] well as the people at large, should take into account in weighing the use of the death penalty. Here, as elsewhere, it may be better to rely upon legislatures to lay down overall policy, however important judges may have originally been in developing many of the rights enshrined in the Bill of Rights. It may be especially important to rely upon politically-sensitive legislators in those instances where constitutional judgments should properly take account of changes in public opinion.
VII.
One massive impression left by the Bill of Rights provisions we have been surveying in this Lecture is that judges are relied upon to know well the constitutional heritage of the English-speaking peoples. Judges typically have the longest memories among the various officers of government in this Country. A judge keeps looking way back, much more than do Congress and the President who tend to be (and perhaps should be) much more responsive to the transient opinions of the Country at large.
Judges should be learned and skilled. The primary concern we have is that judges be competent in judicial matters, so much so that Judges (unlike Presidents and Members of Congress) need not be citizens of the United States. Judges are distinguished also by having life tenure and by not being liable to restraint at the polls, however much the Courts of the United States may be subject under the Constitution to regulation by Congress.
We can see, when we consider the many restraints placed upon the Courts in the Bill of Rights and elsewhere, that adherence to the Constitution depends on much more than judicial or any other official supervision. After all, what is it that makes judges, especially members of the Supreme Court, hew to the constitutional line, since there is no non-judicial body that routinely reviews what they do?
Perhaps the most important guide for officers of government is their, and ultimately the general, understanding of what the Constitution provides. How sound that guidance is depends on how well the Constitution is understood. One question here is as to what was originally expected to be the significance of the Bill of Rights for the States. The presuppositions and tenor of the Bill of Rights suggest that it was generally understood that the restraints placed upon the judiciary in the Constitution applied, even without the Bill of Rights, to the States, just as they applied to the Federal Judiciary prior to the Bill of Rights. For the most part, we have [Page 717] seen, the Bill of Rights recognized rights that had been claimed and exercised by the American people well before Independence.
If judges were to continue to act as judges had long been acting, then State as well as Federal Judges could be expected to take their lead from the Bill of Rights, especially in how they conducted judicial proceedings. And if the reminders provided by Amendments Five through Eight were substantially those developed in the Common Law, a recognition of the United States Supreme Court as the paramount Common Law court in the United States suggests that that Court was expected, even before the Fourteenth Amendment, to supervise to some degree how State courts conducted themselves. This is still another way of saying that the Constitution, from the beginning, anticipated that American courts would continue acting as courts in the Common Law tradition had "always" acted.
A sense of fairness, consistent with precedents, general expectations, and the social, economic, and religious opinions and institutions of the Country, is relied upon in how the law is to be developed and applied. The reference to "just compensation" in the Fifth Amendment is one of many reminders in our constitutional documents of the moral standards taken for granted in all officers of government as well as in the people at large.
Fairness depends, as we have seen, on an awareness of and adaptation to circumstances as times change. We very much depend on competent judges to develop, especially for judicial proceedings, long-established privileges and immunities. Not all of these rights are referred to in the Bill of Rights, but enough are collected there to provide judges guidance as to what is expected of them in the way they administer justice.
8. AMENDMENTS IX, X, XI, AND XII
I.
We have seen, in our survey of the Bill of Rights, that its orderliness reflects the orderliness of the Constitution of 1787. We have also seen that most, if not all, of the amendments proposed in 1789 were easily understood both by the Congress that prepared them and by the State legislatures that ratified them.
We have seen as well that the Bill of Rights reaffirmed rights that had long been claimed by the American people and that had been routinely respected by their governments. It is likely that little if anything changed in the conduct of the Government of the [Page 718] United States as a result of the ratification of the Bill of Rights in 1791. Since matters continued much as they had, there probably was little need to invoke the Bill of Rights before the Alien and Sedition Acts controversy in 1798.[104]
One effect that the Bill of Rights may eventually have had was to obscure the traditional character of these rights. The more that came to be made of the Bill of Rights, the less evident it became that all, or virtually all, of the rights found there had "always" been applicable against all governments in English-speaking North America.
The reaffirmation of rights found in the first eight Amendments to the Constitution is carried further in the Ninth and Tenth Amendments, where the prerogatives of the people are recognized. These Amendments may not add anything to what is evident in the Constitution and in the first eight Amendments, or at least they do not add what some believe they add. The documents and other materials from which relevant information may be drawn about these matters have long been known to students of American constitutional developments. Also long known, but largely lost sight of these days, is how much is to be gathered from a sound assessment of the information that has been available for more than a century about our constitutional system.
We deal in turn now with the four Amendments that follow upon the first eight Amendments to the Constitution of 1787: the Ninth and Tenth Amendments and, thereafter, the two Amendments that immediately supplement the Bill of Rights.
II.
The Ninth Amendment provides, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This Amendment was designed to address one argument made repeatedly during the Ratification Campaign by proponents of the Constitution to justify the absence of a Bill of Rights: it is risky to list some rights lest those not listed be implicitly negated. This argument was spoken to by James Madison on June 8, 1789 when he first submitted to the House of Representatives an array of proposed amendments to the Constitution:
It has been objected also against a bill of rights, that, by enumerating [Page 719] particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to [the Ninth Amendment].[105]
The implications of silence are thereby dealt with.
We are again reminded by the retention of rights insisted upon here of what had long been the rights of the English-speaking peoples independent of particular constitutional documents. A comprehensive constitutional system seems to have been assumed by both the Congress that prepared and the State legislatures that ratified the Bill of Rights. Consider, again, the implications of the Privileges and Immunities Clause of Article IV of the Constitution, where it is provided, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." What was intended to be the effect of that Clause? Is it something like the Equal Protection Clause of the Fourteenth Amendment, obliging each State to treat everyone in that State alike with respect to certain rights, whether they be citizens of that State or of another State? Or does it recognize certain rights that should be available to American citizens everywhere, rights that are consistent with, if not required from each State by, the Republican Form of Government Guarantee (also in Article IV)? In either case, the Privileges and Immunities Clause testifies to the opinion that there are rights that are not enumerated in the Constitution.
It is hard to say, however, what precisely was intended to be included among the rights referred to either in the Privileges and Immunities Clause or in the Ninth Amendment¾or whether anything precise, or fixed, was intended. One problem here is how Courts should act in protecting such rights. Certainly, the judiciary should not try to conduct itself as a third branch of the legislature: the judiciary does not have the popular base or the political leadership and restraints needed for legislation; nor can it provide the comprehensive guidance that legislation can provide in dealing with any particular matter. And yet a kind of legislation seems to be resorted to when courts exercise judicial review in developing substantive rights while policing the activities of legislatures. [Page 720]
Fewer difficulties are encountered when the Courts develop, as well as apply, procedural rights of the kind found in Amendments Four or Five through Eight. Even so, did the listing of rights in the Bill of Rights tend to "freeze" them in a way that they would not otherwise have been? Or has the United States Supreme Court been able to develop new procedural rights by elaborating those expressly laid down in the Bill of Rights? Some elaboration may be seen by the Congress as well, along with what has been done in providing for various "entitlements," which may be, in effect, new economic rights.
Still, we must wonder what may be the other rights "retained by the people" that the Ninth Amendment contemplates. What, for example, is the status here of natural rights? The Framers did accept and build on the Common Law, which very much depends on a grasp of natural right or, at least, on the workings of an awareness of natural right. But the lessons of "history" may be as important as the guidance provided by nature, at least in what Courts are to do.[106] It should matter to judges and others who try to apply the Ninth Amendment what rights happened to emerge in the course of the centuries-old Anglo-American constitutional development.
Indications of those rights, and sometimes of the forms they have taken, may be found in the extensive lists of rights recommended by the State Ratifying Conventions in 1787-1788.[107] We have seen that the recommendations which called for cutting into the substantive powers of the new General Government were systematically rejected by the First Congress. Were there left unenumerated by the amendments proposed by Congress any other State recommendations with respect to rights similar to those that were acted upon by Congress?
It can be argued that, but for the institution of slavery which had to be accommodated in the late Eighteenth Century, an equal protection principle might have found even more expression than it [Page 721] did in the Constitution of 1787 and the Bill of Rights. Provision for, as well as any pervasive reliance upon, a rule of law has equal protection implications. But the equal protection principle had to await the post-Civil War Amendments for its full (natural?) expression, most obviously with respect to slavery.
One major concern expressed again and again by advocates of a bill of rights during the Ratification Campaign of 1787-1788 was that there should be limitations placed upon standing armies in time of peace. [108] But even so stout a "civil libertarian" as George Mason recognized "that an absolute prohibition of standing armies in time of peace might be unsafe." He attempted to have precautions taken with respect to the establishment and use of the militia.[109] A major precaution found in the Constitution that bears upon these matters is the two-year limitation placed in Article I on appropriations for the Army.
Perhaps it would be useful for us to study developments in Great Britain the past two centuries to see what rights have been further developed there by Common Law judges, especially as attempts have been made to apply the Common Law concerns with natural justice and the common good to changing circumstances. In the United States, on the other hand, the Common Law tends to be pushed aside these days, now that much more is made by lawyers, judges, and legal scholars of the will of the sovereign and much less of reasoning from first principles.
It should be particularly instructive to consider what has been done with the right of privacy by British Common Law judges, independent of legislative guidance. Elements of a general respect for privacy may be found in various parts of the Constitution and the Bill of Rights, such as in the respect accorded to the right of property. But it is difficult to recognize a general or comprehensive right to privacy without calling into question many of the seemingly legitimate powers of government. The right to privacy, if it is to be practicable, probably does depend on extensive legislative guidance, not only ad hoc judicial determinations. It is instructive to notice just how much the prescriptions laid down by the Supreme Court in the 1973 Abortion Cases[110] resemble legisla-[Page 722]tion.
However dubious much of what the Court has said about abortion may be thus far, a woman's right to choose whether she will resort to an abortion may eventually turn out to be among us a right that must be taken seriously, especially considering how deeply more and more women are evidently coming to feel about the subject (including many who would not themselves want an abortion). On the other hand, the limitations of deference to any extensive right to privacy have been recognized across the centuries, as may be seen, for example, in Plato's Laws:
For there are many little things, not visible to everyone, that take place in private and in the home, which, because of each person's pain, pleasure, and desire, go against the advice of the lawgiver, and would easily make the dispensations of the citizen diverse and dissimilar.[111]
This is related to the question of what the powers and duty of the community are with respect to the moral life of its citizens.
Whatever else the Ninth Amendment does, it recognizes and in effect ratifies a considerable constitutional history. A comprehensive constitutional system seems to be acknowledged, including (as we shall see) the perhaps most significant of the people's prerogatives "saved" by the Ninth Amendment: the right of revolution.
III.
The Tenth Amendment provides, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This Amendment says, in effect, that the Constitution means what it says. To suggest that the Tenth Amendment may be redundant is not a welcome message to those conventional States' Rights partisans who make so much of it.
Proposals were received by the First Congress from several States for some such affirmation as may be seen in the Tenth Amendment. What understanding of the constitutional system is reflected in those proposals? The Ninth Amendment, we have seen, addressed the implications of silence with respect to various rights of the people. The States' Rights proponents of something like what we now know as the Tenth Amendment also addressed the implications of silence. We have seen that these proponents attempted to have the Government of the United States limited to [Page 723] those powers that were expressly delegated to it by the Constitution. This would have severely restricted, among other things, the scope of the Necessary and Proper Clause.
We have observed that several attempts were made, in the course of drafting the Bill of Rights in the First Congress, to have the proposed amendment read, "The powers not expressly delegated to the United States . . . . " The Federalists controlled the First Congress, however, just as delegates of like mind had controlled the Constitutional Convention. They did not intend to dilute in any way the powers that had been developed for the General Government by the Convention. It is not surprising, therefore, that Congress repeatedly refused to put in expressly or its equivalent, however much some interpreters of the Tenth Amendment (including all too many Justices of the United States Supreme Court) have since tried to do. Instead, the Tenth Amendment recognizes that the Government of the United States does have the powers it has¾that is, the powers provided for it in the Constitution of 1787. After it became evident to States' Rightists that they could not, either in the First Congress or thereafter, amend a Constitution that soon came to be generally venerated, they directed their efforts to curtailment of the powers of Congress by trying to shape the way key provisions of the Constitution were read, particularly the Commerce Clause.
Perhaps the only powers that the Tenth Amendment denies to the General Government are those that may have been created, by implication, by various of the restrictions placed upon that government in the Bill of Rights. Some of those who tried to head off a Bill of Rights in 1787-1789 had argued for a very narrow reading of the grants of powers to Congress.[112] They had argued that there was no need for the declaration of many of the rights requested because the General Government did not have the power to do various of the things that those rights sought to prevent being done. The more successful the proponents of a bill of rights were in placing prohibitions upon the General Government, however, the more they seemed to expand the powers of that government by implication. The Tenth Amendment may provide some restraint here upon the powers implied by specific restraints.
The Tenth Amendment, like the Ninth Amendment, confirms an extensive and generally understood constitutional system. These two Amendments recognize that silence should not be taken [Page 724] as permitting a limitation either upon the rights of the American people or upon the powers of its General Government.[113]
Lest it be suspected that the interpretation I have offered here is idiosyncratic, I call to the stand Justice Story for an extended passage on the Tenth Amendment from his 1833 Commentary:
This amendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the constitution. Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities, if invested by their constitutions of government respectively in them; and if not so invested, it is retained BY THE PEOPLE, as a part of their residuary sovereignty. When this amendment was before congress, a proposition was moved, to insert the word "expressly" before "delegated," so as to read "the powers not expressly delegated to the United States by the constitution," &c. On that occasion it was remarked [replied], that it is impossible to confine a government to the exercise of express powers. There must necessarily be admitted powers by implication, unless the constitution descended to the most minute details. It is a general principle, that all corporate bodies possess all powers incident to a corporate capacity, without being absolutely expressed. The motion was accordingly negatived. Indeed, one of the great defects of the confederation was, (as we have already seen,) that it contained a clause, prohibiting the exercise of any power, jurisdiction, or right, not expressly delegated. The consequence was, that congress were crippled at every step of their progress; and were often compelled by the very necessities of the times to usurp powers, which they did not constitutionally possess; and thus, in effect, to break down all the great barriers against tyranny and oppression.
It is plain, therefore, that it could not have been the intention of the framers of this amendment to give it effect, as an abridgment of any of the powers granted under the constitution, whether they are express or implied, direct or incidental. Its sole design is to exclude any interpretation, by which other powers should be assumed beyond those, which are granted. All that are granted in the original instrument, whether express or implied, whether direct or incidental, are left in their original state. All powers not delegated, (not all powers not expressly delegated,) and not prohibited, are reserved. The attempts, then, which have been made from time to time, to force upon this language an abridging, or restrictive influence, are utterly unfounded in any just rules of interpreting the words, or the sense of the instru-[Page 725]ment. Stripped of the ingenious disguises, in which they are clothed, they are neither more nor less, than attempts to foist into the text the word "expressly;" to qualify, what is general, and obscure, what is clear, and defined. They made the sense of the passage bend to the wishes and prejudices of the interpreter; and employ criticism to support a theory, and not to guide it. One should suppose, if the history of the human mind did not furnish abundant proof to the contrary, that no reasonable man would contend for an interpretation founded neither in the letter, nor in the spirit of an instrument. Where is controversy to end, if we desert both the letter and the spirit? What is to become of constitutions of government, if they are to rest, not upon the plain import of their words, but upon conjectural enlargements and restrictions, to suit the temporary passions and interests of the day? Let us never forget, that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix, and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now, and forever. They are of no man's private interpretation. They are ordained by the will of the people; and can be changed only by the sovereign command of the people.[114]
IV.
I have argued that the powers of the Government of the United States are kept in check by the Ninth Amendment, insofar as those powers are checked by the rights of the people recognized there. I have also argued that the powers of the Government of the United States are recognized for what they are in the Tenth Amendment. In both cases, the overall authority of the people is affirmed.
One consequence of the Ninth and Tenth Amendments is the affirmation of the principle that it is We the People, not the States, who have made the Constitution. What these Amendments did was, in this respect, not what their proponents wanted but perhaps just the opposite. The States are shown by the Tenth Amendment to be subordinated to the will of the same people that the United States is; the States are shown not to exist independently either of the People or of their National Constitution. The Ninth Amendment, insofar as it explicitly recognizes rights that exist independently of the Constitution, may have subordinated the States even [Page 726] more to the general constitutional system than the Constitution of 1787 had done.
The people, we see from the Ninth and Tenth Amendments, retain rights independent of all governments in the United States. We also see that the people have delegated the powers that governments possess, both nationally and locally, reserving to themselves what they have willed. Thus, the Ninth and Tenth Amendments gave the American people an opportunity to say again about the constitutional dispensation found in the Constitution of the United States, "We ourselves did it¾and we really mean it!" It is evident from the Tenth Amendment that the People of the United States may determine the powers of and limitations upon the States, no matter what the people of any particular State may prefer.
The key right and power of such a self-governing people, implicitly recognized by the Ninth and Tenth Amendments, can be said to be the right of revolution, properly understood. Abraham Lincoln, in speeches made during his first few months as President, conceded the right of revolution, the very right that was being invoked by various Southern States at the time in justifying their attempted secession from the Union. But the right of revolution, if it is to be properly invoked, requires a just cause; it is not merely a case of might making right. Of course, both sides to a controversy may consider their respective causes just, even though both sides may also recognize that only one of them can be correct. The American Colonies had not allowed differences of opinion with Great Britain, as to what was just, to lead them to believe that they were not entitled to rebel. The importance of giving reasons in such circumstances should be evident. The Declaration of Independence, with its appeal to "a candid World," recognizes that there is an argument to be made. Arguments help all parties to do the right thing in such circumstances, however incapable one side or the other (or both) may be, for the time being, in working out or accepting the best argument.
The Declaration of Independence suggests what has to be known and shown before recourse to the right of revolution is justified, at least in modern circumstances. Natural right, or a sense of what is by nature right, has to be used in assessing grievances and the particular situation, including the history and expectations of a people. An informed grasp of both principles and facts is vital to a proper determination of what is called for.
The great right of revolution is not mentioned in the Bill of Rights. Certainly, it is not a justiciable right. Nor does its validity [Page 727] depend on any government's recognition of it. The legal form that the right of revolution has taken from time to time in Anglo-American history is the repudiation of any requirement of non-resistance that governments have attempted to impose upon citizens. Or, put it in our terms today, the advocacy of the availability of the right of revolution is itself protected by the First Amendment. At the very least, the right of revolution acknowledges that there are standards, rooted both in nature and in the known political experience and constitutional history of a civilized people, that may be resorted to in assessing the claims and the deeds of governments. The authority of the people to make such assessments is recognized not only by the Ninth and Tenth Amendments, but also by the Preamble and Articles V and VII of the Constitution, and even by the First Amendment which protects the right and power (if not even the duty) of the people to examine and discuss what their governments are saying and doing.
V.
We have now reviewed the ten articles in the Bill of Rights. There were, we recall, originally twelve proposed articles in the Bill of Rights prepared by the First Congress. The first and second proposed articles, we also recall, were not ratified by the States.
In order to complete our survey of the Amendments of the Constitutional Period, we now consider the Eleventh and Twelfth Amendments. These Amendments, ratified in 1798 and 1804, respectively, can be said to have been in the spirit of the original Constitution, as were the Amendments found in the Bill of Rights. That the period from 1776 to 1804 was a separate stage in our constitutional development is indicated by the fact that no further amendments were made to the Constitution for two-thirds of a century thereafter, the longest period in the history of the United States without a constitutional amendment.
The Eleventh Amendment provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." We can see here, as in the Twelfth Amendment, how specific changes to the Constitution can be made: there is here no general statement of a principle or right, but merely a modification of an existing arrangement.
The immediate cause of that modification was the decision that had been rendered in 1793 by the United States Supreme Court in [Page 728] Chisholm v. Georgia.[115] Whatever the original intentions of the Framers, Article III of the Constitution was interpreted by the Supreme Court to permit the kind of suits now forbidden by the Eleventh Amendment.[116]
If the conventional interpretation of Article III is correct, Congress could, by amending the Judiciary Act of 1789, have legislated the remedy provided by the Eleventh Amendment. Did the Third Congress want to make sure, by resorting to an amendment instead of a statute, that no future Congress restored this jurisdiction to the Courts of the United States? Or did Congress believe that a constitutionally-granted judicial jurisdiction was beyond complete legislative removal? That is, did Congress then believe, contrary to the conventional interpretation today, that all of the jurisdiction of the Courts of the United States has to be recognized and provided for in one way or another by Congress? If so, the Eleventh Amendment may be one of the few Amendments, if not the only Amendment, that gave the States something that they had not had under the Constitution of 1787.
The Eleventh Amendment, like the Chisholm case that it nullified, implies that the Courts of the United States may use the Common Law in appropriate cases. Thus, the Common Law may have to be used to settle some of the suits between States that are still within the jurisdiction of the United States Supreme Court. If the Courts of the United States are to use the Common Law in appropriate cases, must not Congress have available to it a power that the Common Law always recognized, the power of some legislature to supervise and, if need be, to correct or redirect what its courts do with the Common Law?
We find in Hollingsworth v. Virginia an early recognition of the effect of the Eleventh Amendment:
The Court, on the day succeeding the argument, delivered a unanimous opinion, that the [Eleventh] amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens of subjects of any foreign state.[117]
Whether a State could be sued in its own courts by "the citizens of another state, or by citizens of subjects of any foreign state," de-[Page 729]pended on what the constitution and laws of that State provided. And that is how matters stood until the Fourteenth Amendment, which of course has made a State much more vulnerable to suits in Federal Courts by citizens of other States as well as to suits by its own citizens.
VI.
The critical provision of the page-long Twelfth Amendment of 1804 reads: "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President . . . they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President . . . . " This, like the Eleventh Amendment, is a follow up to the Bill of Rights. The Twelfth Amendment responds to the Presidential election fiasco of 1800-1801.
The problem of providing for the President is returned to again and again in constitutional Amendments. Americans have never been sure they have it quite right. Further changes are contemplated in some quarters today, such as the direct election of the President. But this (I have suggested in my Commentary on the Constitution of 1787) could have unfortunate consequences, and not only because it would tend to make it even harder for Congress to exercise the control over the President that both the President and the Country need. In addition, the States would tend to be depreciated in their political influence as States by such a development.
The obvious need for the Twelfth Amendment, or for Congressional legislation to the same effect, arose because of the emergence of nationwide, or at least multi state, political parties in the United States. This meant, among other things, that two candidates could end up with enough votes to be President, because the 1787 constitutional arrangement did not distinguish Presidential and Vice-Presidential choices in the original balloting on each occasion. The Twelfth Amendment not only removed this embarrassment but also made it virtually impossible to elect a President of one party and a Vice President of another party, which could be expected under the Constitution of 1787 and was indeed seen during the John Adams Administration, with Thomas Jefferson as Vice President.
One other effect of the Twelfth Amendment, or of the development of the political parties that helped lead to the Amendment, was that thereafter recourse to the House of Representatives for [Page 730] the choice of a President would be rare.[118] The original constitutional expectation had been that the House would have to settle most contests, with the original balloting in the States by the more or less independent electors usually serving only as a nominating stage.[119]
VII.
The first twelve Amendments are one-half of the Amendments we now have. Although twenty-six Amendments have been ratified, two of them (the Eighteenth and the Twenty-first) virtually cancel each other out.
The American people, once the first half (or One through Twelve) of the Amendments had been ratified, still had the Constitution of 1787 in its essentials. The first twelve Amendments pretty much adapted the old constitutional system of the English-speaking peoples to republican conditions in North America.
By the time the Twelfth Amendment was ratified, the United States Supreme Court had asserted and exercised a power to review acts of Congress for their constitutionality. Although the Court was not to exercise that power again for half a century, it did mean that a fundamental change may have been in prospect for the original constitutional arrangement, especially as the implications (both beneficent and threatening) of genuine self-government on a continental scale began to become apparent.
I have suggested that the first half of the Amendments we have, through the Twelfth, left the original constitutional arrangement essentially intact. The second half of our Amendments, from the Thirteenth through the Twenty-sixth, shows the effects of profound social and political developments to which the emerging political parties contributed. These developments were generated in large part by the equality principle of the Declaration of Independence, a principle that is taken for granted (although it had to be compromised) in the Constitution of 1787.[Page 731]
To say that the equality principle has found vivid expression in our constitutional development is to recognize that the modern world has had its effect, not least in the influence among us both of the Declaration of Independence and of life under the Constitution following upon that Declaration and its Revolution.
The Editors have complied with the author's stylistic preferences in this Article.¾Ed.
* This Commentary is based largely upon the Centennial Lectures delivered at Lenoir-Rhyne College, Hickory, North Carolina, during the 1990-1991 academic year. This Commentary, with additional appendices, is to be published in book form. The author is grateful for the help provided him at Lenoir-Rhyne College by John E. Trainer, Jr., J. Larry Yoder, Marianne Yoder, Joseph S. Mancos, and Beverly Heer, and by Stephen J. Vanderslice of Louisiana State University at Alexandria.
The author has prepared a similar Commentary on the United States Constitution. GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY (1989). An earlier version of that book appears at 18 LOY. U. CHI. L.J. 15 (1986). For a complete bibliography of the author's books, articles, and lectures, see 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY; ESSAYS IN HONOR OF GEORGE ANASTAPLO 1073-1145 (John A. Murley, Robert L. Stone, and William T. Braithwaite eds., 1992).
** Professor of Law, Loyola University Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago. A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago.
1. The Revolutionary War struggle can be said to have begun in 1774 with the first meeting of the Continental Congress. See infra Lecture No. 1, § II. The Civil War struggle can be said to have begun in 1857 with the remarkably divisive action by the United States Supreme Court in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). See infra Lecture No. 7, § III. The Civil War may have done for the American Republic what the killing by Junius Brutus of his sons did for the Roman Republic. See NICCOLO MACHIAVELLI, DISCOURSES ON THE FIRST DECADE OF TITUS LIVY III.3; infra note 260. For a helpful translation of Machiavelli, see the version forthcoming from Leo Paul S. de Alvarez (1993).
Two other great struggles on this continent, which have had some of the features of civil war, were the relentless campaigns against the indigenous tribes and the complicated efforts to deal properly with imported Africans and their descendants. See infra text accompanying notes 166, 177.
The hopes of the American enterprise are suggested infra note 134. Its risks and challenges are indicated infra notes 130-31.
2. The Declaration of Independence and the Gettysburg Address are among the items collected in the Appendices to GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY 235-302 (1989) [hereinafter ANASTAPLO, THE CONSTITUTION OF 1787]. If any American or English constitutional document is quoted in the text of this Article without citation, it may be found either in the Appendices to ANASTAPLO, THE CONSTITUTION OF 1787, supra, or in the collection described infra note 3. The Appendices to ANASTAPLO, THE CONSTITUTION OF 1787, supra, include the following items: The Declaration of Independence (1776); The Articles of Confederation and Perpetual Union (1776-1781); Congressional Resolution Calling the Federal Convention (1787); The Northwest Ordinance (1787); The United States Constitution (1787); Resolutions of the Federal Convention Providing for Transmittal of the Proposed Constitution to the Confederation Congress (1787); Letter Transmitting the Proposed Constitution from the Federal Convention to the Confederation Congress (1787); Congressional Resolution Transmitting the Proposed Constitution to the States (1787); Congressional Act for Putting the Constitution into Operation (1788); Amendments to the Constitution of the United States (1791-1971); Proposed Amendments to the Constitution Not Ratified by the States (1789-1978); The Gettysburg Address (1863); and the Second Inaugural Address of Abraham Lincoln (1865). That volume includes discussions of various Amendments to the Constitution.
3. Magna Carta, the Petition of Right, and the English Bill of Rights are among the items collected in George Anastaplo, The Making of the Bill of Rights, 1791 [hereinafter Anastaplo, Making the Bill of Rights], in 1991 GREAT IDEAS TODAY 323-75 (Encylopaedia Britannica) [hereinafter GREAT IDEAS]. That collection includes the following constitutional items: Magna Carta (1215); Thomas More's Petition to the King on Parliamentary Freedom of Speech (1521); Petition of Right (1628); English Bill of Rights (1689); Resolutions of the Stamp Act Congress (1765); Declaration and Resolves of the First Continental Congress (1774); Constitution of North Carolina (1776); Virginia on Rights and Liberties: Virginia Declaration of Rights (1776) and Virginia Statute of Religious Liberty (1785); The Northwest Ordinance (1787); James Madison's Notes of Debates in the Federal Convention (1787); Selected Amendment Proposals by States' Ratifying Conventions: Virginia Convention (June 27, 1788) and New York Convention (July 26, 1788); Stages of the Bill of Rights in Congress: James Madison's Proposals to the House of Representatives (June 8, 1789), Amendments Reported by the House of Representatives' Select Committee (July 28, 1789), Amendments Passed by the House of Representatives (Aug. 24, 1789), Amendments Passed by the Senate (Sept. 9, 1789); Amendments Proposed by Congress for Ratification by the States (Sept. 25, 1789) and Amendments Ratified by the States (1791). This collection of documents will be drawn upon for the appendices to the book version of this Commentary on the Amendments to the Constitution.
4. Leonard W. Levy, The Continental Congress, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 493 (Leonard W. Levy et al. eds., 1986).
5. Dennis J. Mahoney, The Association, in 1 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 79.
6. Id.
7. Id.
8. Levy, supra note 4, at 493.
9. Id.
10. Thus, the bicentennial of the December 15, 1791 ratification of the Bill of Rights occurred in the 216th year "of the Independence of the United States of America."
11. See George Anastaplo, American Constitutionalism and the Virtue of Prudence [hereinafter Anastaplo, Virtue of Prudence], in ABRAHAM LINCOLN, THE GETTYSBURG ADDRESS AND AMERICAN CONSTITUTIONALISM 165-68 (Leo Paul S. de Alvarez ed., 1976); George Anastaplo, Seven Questions for Professor Jaffa, 10 U. PUGET SOUND L. REV. 507 (1987); Harry V. Jaffa, Seven Answers for Professor Anastaplo, 13 U. PUGET SOUND L. REV. 377 (1990); infra notes 131, 168. On Professor Jaffa, see GEORGE ANASTAPLO, HUMAN BEING AND CITIZEN: ESSAYS ON VIRTUE, FREEDOM, AND THE COMMON GOOD 61-73 (1975) [hereinafter ANASTAPLO, HUMAN BEING AND CITIZEN].
12. On prudence, see generally GEORGE ANASTAPLO, THE AMERICAN MORALIST: ON LAW, ETHICS, AND GOVERNMENT at xvi, 618 (1992) [hereinafter ANASTAPLO, AMERICAN MORALIST].
13. This quotation is taken from the following passage by a respected constitutional scholar who is a United States Senior District Court Judge in Pennsylvania:
The author's comments [in his Commentary] are based primarily on analysis of the original text of the Constitution itself and reflections about it, with scant regard for "judicial and other official interpretations and applications of the Constitution." He proclaims at the outset (and often thereafter) his nationalistic orientation and recognition of the supremacy of the legislative branch, and he acknowledges the influence of his teachers William Winslow Crosskey and Leo Strauss. Another characteristic of his treatment is his frequently expressed appreciation of the skill and craftsmanship with which the Constitution is drafted. The author discusses the various parts of the Constitution in the sequence established by the document itself. He strives to discern a systematic scheme or pattern in which the parts coherently come together and to speculate about why a particular portion is placed where it is.
EDWARD DUMBAULD, THE JOURNAL OF AMERICAN HISTORY 290 (1990). Additional reviews of my commentary, supra note 2, are the following: J. Jackson Barlow, 18 INTERPRETATION 475 (1991); J. Braeman, 27 CHOICE 203 (1989); Milton Cantor, 114 LIBRARY J. 86 (1989); Thomas Engeman, 51 REVIEW POL. 612 (1989); Timothy Fuller, 18 INTERPRETATION 467 (1991); LAW AND SOC. INQUIRY 626 (1989); Robert A. Licht, 15 LEGAL STUD. F. 75 (1991); Robert C. Power, 84 NW. U. L. REV. 711 (1990); Glen E. Thurow, 20 PUBLIUS 15, 19 n.8 (1989); Jonathan K. Van Patten, 34 S.D. L. REV. 440 (1989); Ben Gelman, Southern Illinoisan, Carbondale, Ill., Sept. 10, 1989, at 42, reprinted in Greek Star, Chi., Ill., Oct. 5, 1989, at 5.
My comments on the work of William W. Crosskey and Leo Strauss include the following: George Anastaplo, Mr. Crosskey, the American Constitution, and the Natures of Things, 15 LOY. U. CHI. L.J. 181 (1984); GEORGE ANASTAPLO, THE ARTIST AS THINKER: FROM SHAKESPEARE TO JOYCE 249 (1983) [hereinafter ANASTAPLO, THE ARTIST AS THINKER]. See infra note 52.
14. See, e.g., THE FEDERALIST NO. 84.
15. The Convention, we recall, began on May 25 and ended on September 17.
16. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 341-42 (Max Farrand ed., rev. ed. 1966) [hereinafter FARRAND]. James Madison's Notes of Debates in the Federal Convention of 1787, found in the first two Farrand volumes, is available in paperback from the Ohio University Press. The bill of rights proposals suggested by Charles Pinckney provided:
Each House shall be the Judge of its own privileges, and shall have authority to punish by imprisonment every person violating the same; or who, in the place where the Legislature may be sitting and during the time of its Session, shall threaten any of its members for any thing said or done on the House¾or who shall assault any of them therefore¾or who shall assault or arrest any witness or other person ordered to attend either of the Houses in his way going or returning; or who shall rescue any person arrested by their order.
Each branch of the Legislature, as well as the Supreme Executive shall have authority to require the opinions of the supreme Judicial Court upon important questions of law, and upon solemn occasions.
The privileges and benefit of the Writ of Habeas corpus shall be enjoyed in this Government in the most expeditious and ample manner; and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding¾months.
The liberty of the Press shall be inviolably preserved.
No troops shall be kept up in time of peace, but by consent of the Legislature.
The military shall always be subordinate to the Civil power, and no grants of money shall be made by the Legislature for supporting military Land forces, for more than one year at a time.
No soldier shall be quartered in any House in time of peace without consent of the owner.
No person holding the office of President of the U.S., a Judge of their supreme Court, Secretary for the department of Foreign Affairs, of Finance, of Marine, of War, or of¾, shall be capable of holding at the same time any other office of Trust or Emolument under the U.S. or an individual State.
No religious test or qualification shall ever be annexed to any oath of office under the authority of the U.S.
The U.S. shall be for ever considered as one Body corporate and politic in law, and entitled to all the rights privileges, and immunities, which to Bodies corporate do or ought to appertain. The Legislature of the U.S. shall have the power of making the great Seal which shall be kept by the President of the U.S. or in his absence by the President of the Senate, to be used by them as the occasion may require.¾It shall be called the great Seal of the U.S. and shall be affixed to all laws.
All Commissions and writs shall run in the name of the U.S.
The Jurisdiction of the supreme Court shall be extended to all controversies between the U.S. and an individual State, or the U.S. and the Citizens of an individual State.
2 FARRAND, supra, at 341-42.
17. 2 FARRAND, supra note 16, at 340 n.4.
18. 2 id. at 341 n.4.
19. 3 id. at 122.
20. 3 id.
21. 2 id. at 587-88. Mason had been the author of the Virginia Declaration of Rights in 1776. The Declaration of Rights is one of the documents provided in the collection listed supra note 3.
22. It is unclear the extent to which the debate between Mr. Sherman and Colonel Mason influenced the unanimity of this vote. See infra text accompanying note 25. The New York delegation in the Federal Convention no longer had a quorum, two of its three members having gone home (evidently because they did not like the course that the Convention was following). The third New York member, Alexander Hamilton, could speak but could not cast his State's vote. See SELECTED WRITINGS AND SPEECHES OF ALEXANDER HAMILTON 124 (Morton J. Frisch ed., 1985); 3 FARRAND, supra note 16, at 367, 448, 474, 521, 529-31, 537. Rhode Island never sent a delegation to the Convention.
23. Letter from George Washington to La Fayette (Apr. 28, 1788), reprinted in 3 FARRAND, supra note 16, at 298.
24. 2 FARRAND, supra note 16, at 638.
25. 2 id. at 588.
26. 2 id. at 628.
27. 2 id. at 630. Madison's warning anticipated the concern of the Federalists throughout the Ratification Campaign about re-opening matters already settled by the Convention.
28. 2 id. at 632-33.
29. 2 id. at 628. This was immediately after the civil jury proposal was dealt with. The tenor of the remark recorded here, by Madison, a Virginian, indicates how slavery could then be talked about, even among Southerners.
30. 6 PLUTARCH, LIVES 1110; (John Dryden & Rev. Arthur Hugh Glough trans., Modern Library ed. 1932) (Antony, IX); see also MACHIAVELLI, supra note 1, at II.19 ("[A]cquisitions, in republics which are not well-ordered and which do not proceed according to Roman virtue, are to their ruin and not to their exaltation."); infra note 130.
31. 2 FARRAND, supra note 16, at 344.
32. 2 id. at 606-07.
33. 2 id. at 342.
34. See, e.g., 2 id. at 617.
35. 2 id. at 342; see supra note 16. For the epitaphic tribute to James Louis Petigru, a Charlestonian lawyer, a Unionist who opposed Secession, and a Constitutionalist who opposed Nullification, see George Anastaplo, We the People: The Rulers and the Ruled, in 1987 GREAT IDEAS, supra note 3, at 72.
36. See, e.g., ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 124-48.
37. THEODORE F.T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW 17 (5th ed. 1956).
38. Id. at 22-23.
39. Id. at 23.
40. Id. at 25. Magna Carta is one of the documents provided in the collection listed supra note 3.
41. The original, Latin version of this chapter, the 39th chapter of Magna Carta, reads: "Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum vel per legem terrae." See 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *129-36.
42. Habeas Corpus Act, 1679, 31 Car. 2, ch. 2 (Eng.); see also Star Chamber Act, 1641, 16 Car. 1, ch. 10 § 8 (Eng.).
43. 1 BLACKSTONE, supra note 41, at *129-38; see also PLUCKNETT, supra note 37, at 57-58 (discussing the Habeas Corpus Act).
44. PLUCKNETT, supra note 37, at 53-55.
45. Id. at 59 (emphasis added). The Bill of Rights (1689) is one of the documents provided in the collection listed supra note 3. The care with which President Lincoln developed his policy of emancipation testifies to his awareness of the fact that it does not suffice to promote a policy which is "intrinsically an advance" if the way has not been prepared for it. See infra Lecture No. 11.
46. Act of Settlement, 1701, 12 & 13 W. & M., ch. 2.
47. PLUCKNETT, supra note 37, at 60.
48. 3 WINSTON CHURCHILL, A HISTORY OF THE ENGLISH-SPEAKING PEOPLES 156 (1956-58).
49. That Virginia's vote happened to be the final one required was fitting in light of the key role played by Madison in the Congressional framing of the amendments. Three-quarters of a century later, Lincoln considered it worthy of notice that his State, Illinois, had been the first to ratify the proposed Thirteenth Amendment. See infra note 193.
50. These two proposed amendments are among the seven proposed amendments to the Constitution not ratified by the States. For the complete text of the two 1789 proposals that failed, see infra Lecture No. 5, § III. See also infra note 64. All seven failed proposals are provided in the collection listed supra note 2.
51. The rate of ratification did depend on when State legislatures would be meeting. But that had been true also when the proposed Constitution was ratified. On that occasion, not only had State legislatures had to meet in 1787-1788, but also, thereafter, the State Ratifying Conventions first had to be provided for by the State legislatures. This makes the speed with which the Constitution was ratified, as compared to the Bill of Rights, even more striking.
52. On the importance of preambles, see 1 WILLIAM W. CROSSKEY, POLITICS AND THE CONSTITUTION IN THE HISTORY OF THE UNITED STATES 370-79, 391, 394, 399, 400 (1953); ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 13-25. The preamble provided with the Bill of Rights-proposal when it was sent by Congress to the States is included in the collection listed supra note 3.
53. See, e.g., SAMUEL E. MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE 319 (1972).
54. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 183.
55. BERNARD SCHWARTZ, 5 THE ROOTS OF THE BILL OF RIGHTS 1065 (1971) (quoting THE HISTORY OF CONGRESS EXHIBITING A CLASSIFICATION OF THE PROCEEDINGS OF THE SENATE AND HOUSE OF REPRESENTATIVES FROM MARCH 4, 1789 TO MARCH 4, 1793 152-55 (1843)); see also ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 52, 60, 67, 229.
56. See BENNETT B. PATTERSON, THE FORGOTTEN NINTH AMENDMENT 215 (1955).
57. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 24. We shall see that the Eleventh and Twelfth Amendments can also be considered part of the post-Convention effort at completion represented by the first ten Amendments. See infra Lecture No. 8.
58. MORISON, supra note 53, at 213.
59. Id. at 227-28.
60. On the quite different prospects in Eastern Europe today, see ANASTAPLO, AMERICAN MORALIST, supra note 12, at 555-69.
61. 5 U.S. (1 Cranch) 137 (1803). For the most challenging study of this much-discussed case, see 2 CROSSKEY, supra note 52, at 978, 1035-46, 1327. On judicial review, see ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 124-48. For questionable applications of the doctrine of judicial review, see Powell v. McCormack, 395 U.S. 486 (1969), and United States v. Nixon, 418 U.S. 683 (1974). Reservations about judicial review are indicated in the course of the discussion in the Senate, on January 31, 1803, of a petition submitted by William Marbury and others. See 12 ANNALS OF CONG. 34-50 (1803).
62. The decline of the Common Law may be seen in the resort to comprehensive codification, which perhaps was stimulated by what was becoming of the Common Law. (Did not Justinian try to do the same, also with mixed results?) On the merits of the Common Law approach rather than codification, see John Winthrop's Journal (Sept. 1639), reprinted in 7 ORIGINAL NARRATIVES OF EARLY AMERICAN HISTORY 323-24 (James K. Hosmer ed., 1908), and EDMUND S. MORGAN, THE PURITAN DILEMMA: THE STORY OF JOHN WINTHROP 167-68 (1958). Is there something positivistic, or at least the beginning of a turn away from a grander form of expression, in the shift in the Bill of Rights from the extensive mode of capitalization (with its implicit respect for substantives) employed in the Declaration of Independence and in the Constitution of 1787? This, at least, was a "constitutional" innovation.
63. Both the Common Law system and the natural right tradition, by which the Common Law system is nourished, respect common sense. There is something common-sensical (and hence Aristotelian) about a common refrain in the ancient Buddhist text, Questions of Milinda: "That man might say whatever he would, but all the same," as in "That man might say whatever he would, but all the same, that grown woman came straight from that young girl." See George Anastaplo, An Introduction to Buddhist Thought, in 1992 GREAT IDEAS, supra note 3, at n.45.
64. We have no records of debates in State legislatures on this issue, where the first of these provisions failed by two States and the second by four States. (Ten States were required for ratification.) See Anastaplo, Making of the Bill of Rights, supra note 3, at 374; 5 THE FOUNDERS' CONSTITUTION 40-41 (Philip B. Kurland & Ralph Lerner eds., 1987) [hereinafter FOUNDERS' CONSTITUTION]. On current attempts by State legislatures to ratify the proposed Congressional-pay amendment of 1789, see James J. Kilpatrick, Long-lived Amendment Raises Important Issue, CHI. SUN-TIMES, Aug. 22, 1991, at 48.
The Kurland-Lerner Collection is very useful for students of the Constitution, as is the Encyclopedia of the American Constitution, supra note 4. For the documentary record from the First Congress, see CREATING THE BILL OF RIGHTS (Helen E. Veit et al. eds., 1991).
65. One of the two rejected amendments did not fail by much. See supra note 64. It should also be noticed that, for some time after 1791, parts of the Bill of Rights were sometimes referred to by their original numbers, evidently by people who had only the original Congressional resolution to draw upon and who did not know that not all of those proposed amendments had been ratified. See, e.g., 8 ANNALS OF CONG. 1955 (1798). What does this suggest about the immediate significance of the Bill of Rights upon its ratification? Consider, as well, the significance of the "accident" of names touched upon in Lecture No. 4, § IV.
66. See George Anastaplo, Censorship, in 3 ENCYCLOPEDIA BRITANNICA at 21-22 (15th ed. 1986). That article serves as a summary of the principal constitutional argument made in GEORGE ANASTAPLO, THE CONSTITUTIONALIST: NOTES ON THE FIRST AMENDMENT (1971) [hereinafter ANASTAPLO, THE CONSTITUTIONALIST].
67. Reprinted in Anastaplo, Making the Bill of Rights, supra note 3, at 371. It is a prophetic curiosity of American history that this states-limiting proposition, which was rejected by the Senate, was the fourteenth in the list prepared by the House of Representatives. On the Fourteenth Amendment, see infra Lecture No. 12.
68. Congress did not seem to be concerned, in framing the First Amendment, about the standards that the United States might use in policing State prohibitions of the free exercise of religion. The applicable standards, subject to development and adaptation, seem to have been generally understood. On religious freedom, see George Anastaplo, Church and State: Explorations, 19 LOY. U. CHI. L.J. 61 (1987) [hereinafter Anastaplo, Church and State].
69. The New York Ratifying Convention put its proposed amendment this way in July 1788: "[N]o religious sect or society ought to be favoured or established by law in preference to others." Reprinted in Anastaplo, Making the Bill of Rights, supra note 3, at 360.
70. Don B. Kates, Jr., Second Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1639.
71. Id. at 1639-40.
72. See, e.g., 1 CROSSKEY, supra note 52, at 705.
73. See Letter from Joseph Hawley to Elbridge Gerry (Feb. 18, 1776), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 216.
74. 1 ANNALS OF CONG. 752 (Joseph Gales ed., 1789). On conscientious objection to military service, see Anastaplo, Church and State, supra note 68, at 127-45.
75. 1 BLACKSTONE, supra note 41, at *139.
76. William Rawle, A View of the Constitution of the United States 125-26 (2d ed. 1829), reprinted in 5 Founders' Constitution, supra note 64, at 213.
77. RAWLE, supra note 76, at 5 id. 214.
78. Kates, supra note 70, at 1640 (emphasis added). If the argument is put this way, do not the kind and the degree of gun control become (as they should be) political, not constitutional, questions?
79. 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION § 1890 (1833) (emphasis added), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 214. One can see something of the old-fashioned militia in Israel today. On more than one occasion during the Summer of 1989, I felt quite safe in picking up hitchhiking men and women in uniform who were carrying submachine guns and other weapons.
Consider this suggestion, which provoked some angry letters to the editor: "Congress has the constitutional right to enact a Militia Act of 1992, to require every person who owns a gun or aspires to own one to 'enroll' in the militia. In plain 1990s English, if you want to own a gun, sign up with the National Guard." Robert A. Goldwin, Gun Control is Constitutional, WALL. ST. J., Dec. 12, 1991, at A15; see also ANASTAPLO, AMERICAN MORALIST, supra note 12, at 367-74; Letters to the Editor, WALL. ST. J., Jan. 14, 1992, at A15.
80. Benjamin Franklin, THE GAZETEER AND NEW DAILY ADVERTISER, (May 2, 1765), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 215 (emphasis added); see also Dennis J. Mahoney, Third Amendment, in 4 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 1890.
81. 1 ANNALS OF CONG. 752 (Joseph Gales ed., 1789).
82. 3 STORY, supra note 79, § 1893, reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 218.
83. See WORLD ALMANAC 702, 940, 954 (1992); Erik Eckolm, A Basic Issue: Whose Hands Should Guns Be Kept Out of?, N.Y. TIMES, Apr. 3, 1992, at A1 ("[F] irearms deaths . . . totaled 35,000 in 1989, including 18,000 suicides, 15,000 homicides, 1,500 accidents and others unspecified."). We have even more fatalities on the highways each year, but many more people are involved in those activities¾and, besides, the advantages of our massive motor traffic, despite its human costs, are generally recognized. Probably more lives are made possible, if not even saved, because of our highway traffic than are lost there.
84. William J. Cuddihy, Fourth Amendment (Historical Origins), in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 761.
85. Huckle v. Money, 95 Eng. Rep. 768 (C.P. 1763), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 230. See supra note 41.
86. Cuddihy, supra note 84, at 763.
87. MASS. CONST. of 1780, pt. 1, art. 14, reprinted in 5 FOUNDER'S CONSTITUTION, supra note 64, at 237.
88. Cuddihy, supra note 84, at 762.
89. The discussion that follows is adapted from my Constitutional Comment for GERA-LIND KOLARIK & WAYNE KLATT, FREED TO KILL: THE TRUE STORY OF LARRY EYLER 418-21 (1992).
90. 32 U.S. (7 Pet.) 243 (1833).
91. Grumon v. Raymond, 1 Conn. 40 (1814) (Reeve, C.J.), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 240 (emphasis added).
92. For an instructive discussion of Barron v. Baltimore, see 2 CROSSKEY, supra note 52, at 1056-82.
93. See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 133-34, 139.
94. See FARRAND, supra note 16, at 345-50; ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 146-47.
95. ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 124-25.
96. One can see again and again in Plato's Laws, even when a new city is being founded by the participants in that dialogue, that many complicated ways of doing things among the Greeks must be taken into account. I have twice used, with considerable success, the Laws, and particularly the excellent translation by Thomas L. Pangle, as the sole text in a law school jurisprudence course. PLATO, LAWS (Thomas L. Pangle trans., 1980).
97. Jay A. Sigler, Double Jeopardy, in 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 576.
98. The King v. Dr. Purnell, 96 Eng. Rep. 20 (K.B. 1748), reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 219.
99. Leonard W. Levy, Due Process of Law, supra note 4, at 589. These terms may not have been regarded as synonymous. Further, this is aside from the recourse there has been in the United States to that peculiar hybrid called "substantive due process."
100. Id. at 589, 591.
101. 2 FARRAND, supra note 16, at 628 (Sept. 15, 1787) (Nathanield Gorham of Massachusetts); see supra Lecture No. 2, § V.
102. 1 ANNALS OF CONG., 754 (Joseph Gales ed., 1789).
103. Compare JAMES WILSON, A CHARGE DELIVERED TO THE GRAND JURY (May 1791) (advocating use of the death penalty) with BENJAMIN RUSH, ON PUNISHING MURDER BY DEATH (1792) (questioning the ineffectiveness of harsh punishments), both reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 378-79.
104. Merrill D. Peterson, Alien and Sedition Acts, in 1 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, supra note 4, at 43-44; see ANASTAPLO, THE CONSTITUTIONALIST, supra note 66, at 810.
105. 1 ANNALS OF CONG., 439 (Joseph Gales ed., 1789).
106. For example, although natural right may dictate that no one should be condemned without a fair trial, this does not by itself make trial by jury necessary or identify the indispensable elements of a proper trial by jury in a criminal case. Does the American emphasis on a written constitution tend to undermine reliance on an unwritten constitution which would be more sensitive to natural right?
For Justice Story's explanation of the "natural right" meaning of a maxim, see 3 STORY, supra note 79, § 1898, reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 400.
107. See THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION (Jonathan Elliot ed., 2d ed. 1836); see also ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 308 n.19.
108. For a discussion of standing armies limitations during the Ratification Campaign, see THE COMPLETE ANTI-FEDERALIST 94-95 (Herbert J. Storing & Murray Dry eds., 1981); 1 ST. GEORGE TUCKER, BLACKSTONE, supra note 41, at 300-01, reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 218.
109. 2 FARRAND, supra note 16, at 616-17 (Sept. 14, 1787).
110. Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). Much the same can be said about the Executive Order invalidated in the Steel Seizure Case¾Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). See ANASTAPLO, THE CONSTITUTION OF 1787, supra note 2, at 114, 316 n.77.
111. PLATO, LAWS 788A-B; see supra note 96.
112. See, e.g., C.C. Pinckney, Speech in South Carolina House of Representatives (Jan. 18, 1788), reprinted in 3 FARRAND, supra note 16, at 256- 57.
113. On the Tenth Amendment, see 1 CROSSKEY, supra note 52, at 675-708.
114. 3 STORY, supra note 79, §§ 1900-01, reprinted in 5 FOUNDERS' CONSTITUTION, supra note 64, at 406-07.
115. 2 U.S. (2 Dall.) 419 (1793).
116. Id. Notice the use of construed in the Thirteenth Amendment: Congress may have been suggesting that it was interpreting, perhaps even properly interpreting, the Constitution, rather than truly amending it.
117. 3 U.S. (3 Dall.) 378 (1798).
118. Since 1801, when Thomas Jefferson was elected President by the House of Representatives, John Quincy Adams is the only President to have been elected in the same manner. That was in 1825. The Hayes-Tilden contest in 1877, a much more complicated affair, was not (strictly speaking) resolved by the House of Representatives.
119. The emergence of political parties has also led to the virtual elimination of the Presidential electors in the States. (It may be time to get rid of them altogether.) A related change is the designation in the Twelfth Amendment of three, rather than five, as the number of candidates to be considered by the House of Representatives in the event that no candidate has a majority of Presidential electors. Party discipline makes it far less likely that there would be more than two or three serious Presidential candidates for the House to have to consider on any particular occasion.
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APPENDIX A
LETTERS EXCHANGED BY THOMAS JEFFERSON AND JOHN ADAMS (1814)
[From Thomas Jefferson to John Adams]
430 Monticello July 5. 1814.
DEAR SIR
Since mine of Jan. 24. yours of Mar. 14 was recieved. It was not acknoleged in the short one [from me] of May 18. [delivered] by Mr. Rives, the only object of that having been to enable one of our most promising young men to have the advantage of making his bow to you. I learned with great regret the serious illness mentioned in your letter: and I hope Mr. Rives will be able to tell me you are entirely restored. But our machines have now been running for 70. or 80. years, and we must expect that, worn as they are, 431 here a pivot, there a wheel, now a pinion, next a spring, will be giving way: and however we may tinker them up for awhile, all will at length surcease motion. Our watches, with works of brass and steel, wear out within that period. Shall you and I last to see the course the seven-fold wonders of the times will take? The Attila of the age [Napoleon Bonaparte] dethroned, the ruthless destroyer of 10. millions of the human race, whose thirst for blood appeared unquenchable, the great oppressor of the rights and liberties of the world, shut up within the circle of a little island of the Mediterranean [Elba; he was later banished to St. Helena, in the South Atlantic], and dwindled to the condition of an humble and degraded pensioner on the bounty of those he had most injured. How miserably, how meanly, has he closed his inflated career! What a sample of the Bathos will his history present! He should have perished on the swords of his enemies, under the walls of Paris.
'Leon piagato a morte
Sente mancar la vita,
Guarda la sua ferita,
Ne s'avilisce ancor.Cosi fra l'ire estrema rugge, minaccia, e freme,
Che fa tremar morendo
Tal volta it cacciator.'Metast[asio,] Adriano [in Siria, II, 11]
['The lion stricken to death
realizes that he is dying,
and looks at his wounds from which
he grows ever weaker and weaker.[Then with his final wrath he roars,
threatens, and screams,
which makes the hunter
tremble at him dying.']But Bonaparte was a lion in the field only. In civil life a cold-blooded, calculating unprincipled Usurper, without a virtue, no statesman, knowing nothing of commerce, political economy, or civil government, and supplying ignorance by bold presumption. I had supposed him a great man until his entrance into the Assembly des cinq cens, 18. Brumaire (an 8.) [Nov. 9, 1799]. From that date however I set him down as a great scoundrel only. To the wonders of his rise and fall, we may add that of a Czar of Muscovy [Alexander I] dictating, in Paris [in 1814], laws and limits to all the successors of the Caesars, and holding even the balance in which the fortunes of this new world are suspended. I own that, while I rejoice, for the good of mankind, in the deliverance of Europe from the havoc which would have never ceased while Bonaparte should have lived in power, I see with anxiety the tyrant of the ocean [England] remaining in vigor, and even participating in the merit 432 of crushing his brother tyrant. While the world is thus turned up side down, on which side of it are we? All the strong reasons indeed place [Page 850] us on the side of peace; the interests of the continent, their friendly dispositions, and even the interests of England. Her passions alone are opposed to it. Peace would seem now to be an easy work, the causes of the war being removed. Her orders of council will no doubt be taken care of by the allied powers, and, war ceasing, her impressment of our seamen ceases of course. But I fear there is a foundation for the design intimated in the public papers, of demanding a cession of our right in the fisheries [off the northern coast of North America]. What will Massachusetts say to this? I mean her majority, which must be considered as speaking, thro' the organs it has appointed itself, as the Index of it's will. She chose to sacrifice the liberty of our seafaring citizens, in which we were all interested, and with them her obligations to the Co-states; rather than war with England. Will she now sacrifice the fisheries to the same partialities? This question is interesting to her alone: for to the middle, the Southern and Western States they are of no direct concern; of no more than the culture of tobacco, rice and cotton to Massachusetts. I am really at a loss to conjecture what our refractory sister will say on this occasion. I know what, as a citizen of the Union, I would say to her. 'Take this question ad referendum. It concerns you alone. If you would rather give up the fisheries than war with England, we give them up. If you had rather fight for them, we will defend your interests to the last drop of our blood, chusing rather to set a good example than follow a bad one.' And I hope she will determine to fight for them. With this however you and I shall have nothing to do; ours being truly the case wherein 'non tali auxilio, nec defensoribus istis Tempus eget.' ['We do not, at this time, want such aid as that, nor such defenders.' Virgil, Aeneid, II, 521.] Quitting this subject therefore I will turn over another leaf.
I am just returned from one of my long absences, having been at my other home for five weeks past. Having more leisure there than here for reading, I amused myself with reading seriously Plato's republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. While wading thro' the whimsies, the puerilities, and unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this? How the soi- disant Christian world indeed should have [433] done it, is a piece of historical curiosity. But how could the Roman good sense do it? And particularly how could Cicero bestow such eulogies on Plato? Altho' Cicero did not wield the dense logic of Demosthenes, yet he was able, learned, laborious, practiced in the business of the world, and honest. He could not be the dupe of mere style, of which he was himself the first master in the world. With the Moderns, I think, it is rather a matter of fashion and authority. Education is chiefly in the hands of persons who, from their profession, have an interest in the reputation and the dreams of Plato. They give the tone while at school, and few, in their after-years, have occasion to revise their college opinions. But fashion and authority apart, and bringing Plato to the test of reason, take from him his sophisms, futilities, and incomprehensibilities, and what remains? In truth, he is one of the race of genuine Sophists, who has escaped the oblivion of his brethren, first by the elegance of his diction, but chiefly by the adoption and incorporation of his whimsies into the body of artificial Christianity. His foggy mind, is forever presenting the semblances of objects which, half seen thro' a mist, can be defined neither in form or dimension. Yet this which should have consigned him to early oblivion really procured him immortality of fame and reverence. The Christian priesthood, finding the doctrines of Christ leveled to every understanding, and too plain to need explanation, saw, in the mysticisms of Plato, materials with which they might build up an artificial system which might, from it's indistinctness, admit everlasting controversy, give employment for their order, and introduce it to profit, power and pre-eminence. The doctrines which flowed from the lips of Jesus himself are within the comprehension of a child; but thousands of volumes have not yet explained the Platonisms engrafted on them: and for this obvious reason that nonsense can never be explained. Their purposes however are answered. Plato is canonized; and it is now deemed as impious to question his merits as those of an Apostle of Jesus. He is peculiarly appealed [Page 851] to as an advocate of the immortality of the soul; and yet I will venture to say that were there no better arguments than his in proof of it, not a man in the world would believe it. It is fortunate for us that Platonic republicanism has not obtained the same favor as Platonic Christianity; or we should now have been all living, men, women and children, pell mell together, like beasts of the field or forest. Yet 'Plato is a great Philosopher,' said La Fontaine. But says Fontenelle 'do you find his ideas very clear?' 'Oh no! he is of an obscurity impenetrable.' 'Do you not find him full of contradictions?' 'Certainly,' replied La Fontaine, "he is but a Sophist." Yet immediately after, he exclaims again, 'Oh Plato was a great Philosopher.' Socrates had reason indeed to complain of the misrepresentations of Plato; for in truth his dialogues are libels on Socrates.
[434] But why am I dosing you with these Ante-diluvian topics? Because I am glad to have some one to whom they are familiar, and who will not receive them as if dropped from the moon. Our post-revolutionary youth are born under happier stars than you and I were. They acquire all learning in their mothers' womb, and bring it into the world ready-made. The information of books is no longer necessary; and all knolege which is not innate, is in contempt, or neglect at least. Every folly must run it's round; and so, I suppose, must that of self-learning, and self sufficiency; of rejecting the knolege acquired in past ages, and starting on the new ground of intuition. When sobered by experience I hope our successors will turn their attention to the advantages of education. I mean of education on the broad scale, and not that of the petty academies, as they call themselves, which are starting up in every neighborhood, and where one or two men, possessing Latin, and sometimes Greek, a knolege of the globes, and the first six books of Euclid, imagine and communicate this as the sum of science. They commit their pupils to the theatre of the world with just taste enough of learning to be alienated from industrious pursuits, and not enough to do service in the ranks of science. We have some exceptions indeed. I presented one to you lately, and we have some others. But the terms I use are general truths. I hope the necessity will at length be seen of establishing institutions, here as in Europe, where every branch of science, useful at this day, may be taught in it's highest degrees. Have you ever turned your thoughts to the plan of such an institution? I mean to a specification of the particular sciences of real use in human affairs, and how they might be so grouped as to require so many professors only as might bring them within the views of a just but enlightened economy? I should be happy in a communication of your ideas on this problem, either loose or digested. But to avoid my being run away with by another subject, and adding to the length and ennui of the present letter, I will here present to Mrs. Adams and yourself the assurance of my constant and sincere friendship and respect.
TH: JEFFERSON
[From John Adams to Thomas Jefferson]
Quincy July 16. 1814
DEAR SIR
I recd. this morning your favour of the 5th. and as I can never let a Sheet of your's rest I sit down immediately to acknowledge it.
[435] Whenever Mr. Rives, of whom I have heard nothing, shall arrive he shall receive all the cordial Civilities in my power.
I am sometimes afraid that my "Machine" will not "surcease motion" soon enough; for I dread nothing so much as "dying at top" and expiring like Dean Swift "a driveller and a Show" or like Sam. Adams, a Grief and distress to his Family, a weeping helpless Object of Compassion for Years.
I am bold to say that neither you nor I, will live to see the Course which "the Wonders of the Times" will take. Many Years, and perhaps Centuries must pass, before the current will acquire a settled direction. If the Christian Religion as I understand it, or as you understand it, should maintain its Ground as I believe it will; Yet Platonick Pythagoric, Hindoo, and cabballistical Christianity which is Catholic Christianity, and which has prevailed for 1500 Years, has recd. a mortal Wound of which the Monster must finally [Page 852] die; Yet so strong is his constitution that he may endure for Centuries before he expires. Government has never been much studied by Mankind. But their Attention has been drawn to it, in the latter part of the last Century and the beginning of this, more than at any former Period: and the vast Variety of experiments that have been made of Constitutions, in America in France, in Holland, in Geneva in Switzerland, and even in Spain and South America, can never be forgotten. They will be studied, and their immediate and remote Effects, and final Catastrophys noted. The result in time will be Improvements. And I have no doubt that the horrors We have experienced for the last forty Years, will ultimately, terminate in the Advancement of civil and religious Liberty, and Ameliorations, in the condition of Mankind. For I am a Believer, in the probable improvability and Improvement, the Ameliorabi[li]ty and Amelioration in human Affairs: though I never could understand the Doctrine of the Perfectability of the human Mind. This has always appeared to me, like the Phylosophy or Theology of the Gentoos, viz. "that a Brachman by certain Studies for a certain time pursued, and by certain Ceremonies a certain number of times repeated, becomes Omniscient and Almighty."
Our hopes however of sudden tranquility ought not to be too sanguine. Fanaticism and Superstition will still be selfish, subtle, intriguing, and at times furious. Despotism will still struggle for domination; Monarchy will still study to rival nobility in popularity; Aristocracy will continue to envy all above it, and despise and oppress all below it; Democracy will envy all, contend with all, endeavor to pull down all; and when by chance it happens to get the Upper hand for a short time, it will be revengeful bloody and cruel. These and other Elements of Fanaticism and Anarchy will yet for a long time continue a Fermentation, which will excite alarms and require Vigilance.
Napoleon is a Military Fanatic like Achilles, Alexander, Caesar, [436] Mahomet, Zingis Kouli, Charles 12th. etc. The Maxim and Principle of all of them was the same "Jura negat sibi cata [i.e., nata], nihil non arrogat Armis." ["He denies that laws were made for him; he arrogates everything to himself by force of arms." Horace, Ars Poetica, 122.]
But is it strict, to call him An Usurper? Was not his Elevation to the Empire of France as legitimate and authentic a national Act as that of William 3d. or the House of Hanover to the throne of the 3 Kingdoms or as the Election of Washington to the command of our Army or to the Chair of the States.
Human Nature, in no form of it, ever could bear Prosperity. That peculiar tribe of Men, called Conquerors, more remarkably than any other have been swelled with Vanity by any Series of Victories. Napoleon won so many mighty Battles in such quick succession and for so long a time, that it was no Wonder his brain became compleatly intoxicated and his enterprises, rash, extravagant and mad.
Though France is humbled, Britain is not. Though Bona is banished a greater Tyrant and wider Usurper still domineers. John Bull is quite as unfeeling, as unprincipled, more powerful, has shed more blood, than Bona. John by his money his Intrigues and Arms, by exciting Coalition after coalition against him made him what he was, and at last, what he is. How shall the Tyrant of Tyrants, be brought low? Aye! there's the rub. I still think Bona great, at least as any of the Conquerors. "The Wonders of his rise and fall," may be seen in the Life of King Theodore, or Pascall Paoli or Rienzi, or Dyonisius or Mazzionelli, or Jack Cade or Wat Tyler. The only difference is that between miniatures and full length pictures. The Schoolmaster at Corinth, was a greater Man, than the Tyrant of Syracuse; upon the Principle, that he who conquers himself is greater than he who takes a City. Tho' the ferocious Roar of the wounded Lion, may terrify the Hunter with the possibility of another dangerous leap; Bona was shot dead at once, by France. He could no longer roar or struggle growl or paw, he could only gasp the grin of death. I wish that France may not still regret him. But these are Speculations in the Clouds. I agree with you that the Milk of human kindness in the Bourbons is safer for Mankind than the fierce Ambition of Napoleon.
The Autocrator [of Russia] appears in an imposing Light. Fifty Years ago English Writers, held up terrible Consequences from "thawing out the monstrous northern [Page 853] Snake." If Cossacks and Tartars, and Goths and Vandalls and Hunns and Ripuarians, should get a taste of European Sweets, what may happen? Could Wellingtons or Bonapartes, resist them? The greatest trait of Sagacity, that [Czar] Alexander [of Russia] has yet exhibited to the World is his Courtship of the United States. But whether this is a mature well digested Policy or [437] only a transient gleam of thought, still remains to be explained and proved by time.
The "refractory Sister" [Massachusetts] will not give up the Fisheries. Not a Man here dares to hint at so base a thought.
I am very glad you have seriously read Plato: and still more rejoiced to find that your reflections upon him so perfectly harmonize with mine. Some thirty Years ago I took upon me the severe task of going through all his Works. With the help of two Latin Translations, and one English and one French Translation and comparing some of the most remarkable passages with the Greek, I laboured through the tedious toil. My disappointment was very great, my Astonishment was greater and my disgust was shocking. Two Things only did I learn from him. 1. that Franklins Ideas of exempting Husbandmen and Mariners etc. from the depredations of War were borrowed from him. 2. that Sneezing is a cure for the Hickups. Accordingly I have cured myself and all my Friends of that provoking disorder, for thirty years with a Pinch of Snuff.
Some Parts of some of his Dialogues are entertaining, like the Writings of Rousseau: but his Laws and his Republick from which I expected most, disappointed me most. I could scarcely exclude the suspicion that he intended the latter as a bitter Satyre upon all Republican Government, as Xenophon undoubtedly designed by his Essay on Democracy, to ridicule that Species of Republick. In a late letter to the learned and ingenious Mr. Taylor of Hazelwood, I suggested to him the Project of writing a Novel, in which The Hero should be sent upon his travels through Plato's Republick, and all his Adventures, with his Observations on the principles and Opinions, the Arts and Sciences, the manners Customs and habits of the Citizens should be recorded. Nothing can be conceived more destructive of human happiness; more infallibly contrived to transform Men and Women into Brutes, Yahoos, or Daemons than a Community of Wives and Property. Yet, in what, are the Writings of Rousseau and Helvetius wiser than those of Plato? "The Man who first fenced a Tobacco Yard, and said this is mine ought instantly to have been put to death" says Rousseau. "The Man who first pronounced the barbarous Word "Dieu," ought to have been immediately destroyed," says Diderot. In short Philosophers ancient and modern appear to me as Mad as Hindus, Mahomitans, and Christians. No doubt they would all think me mad; and for any thing I know this globe may be, the bedlam, Le Bicatre [i.e., Bicetre] of the Universe.
After all; as long as Property exists, it will accumulate in Individuals and Families. As long as Marriage exists, Knowledge, Property and Influence will accumulate in Families. Your and our equal Partition of intestate Estates, instead of preventing will in time augment the Evil, if it is one.
The French Revolutionists saw this, and were so far consistent. When [438] they burned Pedigrees and genealogical Trees, they annilated, as far as they could, Marriages, knowing that Marriage, among a thousand other things was an infallible Source of Aristocracy. I repeat it, so sure as the Idea and the existence of PROPERTY is admitted and established in Society, Accumulations of it will be made, the Snow ball will grow as it rolls.
Cicero was educated in the Groves of Academus where the Name and Memory of Plato, were idolized to such a degree, that if he had wholly renounced the Prejudices of his Education his Reputation would have been lessened, if not injured and ruined. In his two Volumes of Discourses of Government We may presume, that he fully examined Plato's Laws and Republick as well as Aristotle’s Writings on Government. But these have been carefully destroyed; not improbably, with the general Consent of Philosophers, Politicians and Priests. The Loss is as much to be regretted as that of any Production of Antiquity. [Page 854]
Nothing seizes the Attention, of the stareing Animal, so surely, as Paradox, Riddle, Mystery, Invention, discovery, Mystery, Wonder, Temerity.
Plato and his Disciples, from the fourth Century Christians, to Rousseau and Tom Paine, have been fully sensible of this Weakness in Mankind, and have too successfully grounded upon it their Pretensions to Fame. I might indeed, have mentioned Bolingbroke, Hume, Gibbon Voltaire Turgot Helvetius Diderot, Condorcet, Buffon De La Lande and fifty others; all a little cracked! Be to their faults a little blind; to their Virtues ever kind.
Education! Oh Education! The greatest Grief of my heart, and the greatest Affliction of my Life! To my mortification I must confess, that I have never closely thought, or very deliberately reflected upon the Subject, which never occurs to me now, without producing a deep Sigh, an heavy groan and sometimes Tears. My cruel Destiny separated me from my Children, almost continually from their Birth to their Manhood. I was compelled to leave them to the ordinary routine of reading writing and Latin School, Academy and College. John alone was much with me, and he, but occasionally. If I venture to give you any thoughts at all, they must be very crude. I have turned over Locke, Milton, Condilac Rousseau and even Miss. Edgeworth as a bird flies through the Air. The Praecepter [by Robert Dodsley], I have thought a good Book. Grammar, Rhetorick, Logic, Ethicks mathematicks, cannot be neglected; Classicks, in spight of our Friend [Benjamin] Rush, I must think indispensable. [Rush advocated dropping Greek and Latin from the school curriculum, except for the few students who would go to college.] Natural History, Mechanicks, [439] and experimental Philosophy, Chymistry etc att least their Rudiments, can not be forgotten. Geography Ast[ron]omy, and even History and Chronology, tho' I am myself afflicted with a kind of Pyrrhonism in the two latter, I presume cannot be omitted. Theology I would leave to Ray, Derham, Nicuenteyt and Payley, rather than to Luther Zinzindorph, Sweedenborg Westley, or Whitefield, or Thomas Aquinas or Wollebius. Metaphysics I would leave in the Clouds with the Materialists and Spirtualists, with Leibnits, Berkley Priestley and Edwards, and I might add Hume and Reed, or if permitted to be read, it should be with Romances and Novels. What shall I say of Musick, drawing, fencing, dancing and Gymnastic Exercises? What of Languages Oriental or Occidental? of French Italian German or Russian? of Sanscrit or Chinese?
The Task you have prescribed to me of Grouping these Sciences, or Arts, under Professors, within the Views of an enlightened Economy, is far beyond my forces. Loose indeed and indigested must be all the hints, I can note. Might Gramar, Rhetoric, Logick and Ethicks be under One Professor? Might Mathematicks, Mechanicks, Natural Phylosophy, be under another? Geography and Astro[no]my under a third. Laws and Government, History and Chronology under a fourth. Classicks might require a fifth.
Condelacs course of Study has excellent Parts. Among many Systems of Mathematicks English, French and American, there is none preferable to Besouts Course La Harps Course of Litterature is very valuable.
But I am ashamed to add any thing more to the broken innuendos except Assurances of the continued Friendship of
JOHN ADAMS
[These two letters are copied from THE ADAMS-JEFFERSON LETTERS 430-39 (Lester J. Cappon ed., 1971). The beginning of each page in the Cappon edition is indicated in this Appendix by its page number in brackets. The original spelling and punctuation are left unchanged, except where indicated by brackets. Brackets are also used to enclose explanatory material.] [Page 855]
APPENDIX B
THE CONFEDERATE CONSTITUTION (1861)
CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA
We, the people of the Confederate States, each State acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, insure domestic tranquility and secure the blessings of liberty to ourselves and our posterity¾invoking the favor and guidance of Almighty God¾do ordain and establish this Constitution for the Confederate States of America.
ARTICLE 1.
Section 1.
All legislative powers herein delegated shall be vested in a Congress of the Confederate States, which shall consist of a Senate and House of Representatives.
Section 2.
1. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall be citizens of the Confederate States, and have the qualifications requisite for electors of the most numerous branch of the State Legislature; but no person of foreign birth, not a citizen of the Confederate States, shall be allowed to vote for any officer, civil or political, State or Federal.
2. No person shall be a representative, who shall not have attained the age of twenty-five years, and be a citizen of the Confederate States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.
3. Representatives and Direct Taxes shall be apportioned among the several States which may be included within this Confederacy, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all slaves. The actual enumeration shall be made within three years after the first meeting of the Congress of the Confederate States, and within every subsequent term of ten years, in such manner as they shall, by law, direct. The number of Representatives shall not exceed one for every fifty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of South Carolina shall be entitled to choose six; the State of Georgia ten; the State of Alabama nine; the State of Florida two; the State of Mississippi seven; the State of Louisiana six; and the State of Texas six.
4. When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies.
5. The House of Representatives shall choose their speaker and other officers, and shall have the sole power of impeachment; except that any judicial or other federal officer, resident and acting solely within the limits of any State, may be impeached by a vote of two-thirds of both branches of the Legislature thereof.
Section 3.
1. The Senate of the Confederate States shall be composed of two Senators from each State, chosen for six years by the legislature thereof, at the regular session next immediately preceding the commencement of the term of service; and each Senator shall have one vote.
2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class at the expiration of the fourth year; and of the third class at the expiration of the sixth year; so [Page 856] that one- third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.
3. No person shall be a Senator who shall not have attained the age of thirty years, and be a citizen of the Confederate States; and who shall not, when elected, be an inhabitant of the State for which he shall be chosen.
4. The Vice-President of the Confederate States shall be President of the Senate, but shall have no vote, unless they be equally divided.
5. The Senate shall choose their other officers; and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the Confederate States.
6. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the Confederate States is tried, the Chief Justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present.
7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the Confederate States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment according to law.
Section 4.
1. The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, subject to the provisions of this Constitution; but the Congress may, at any time, by law, make or alter such regulations, except as to the times and places of choosing Senators.
2. The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall, by law, appoint a different day.
Section 5.
1. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.
2. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of the whole number, expel a member.
3. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either House, on any question, shall, at the desire of one-fifth of those present, be entered on the journal.
4. Neither House, during the session of Congress, shall without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.
Section 6.
1. The Senators and Representatives shall receive a compensation for their services to be ascertained by law, and paid out of the treasury of the Confederate States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.
2. No Senator or Representative shall, during the time for which he was elected, be [Page 857] appointed to any civil office under the authority of the Confederate States, which shall have been created, or the emoluments whereof shall have been increased during such time; and no person holding any office under the Confederate States shall be a member of either House during his continuance in office. But Congress may, by law, grant to the principal officers in each of the Executive Departments a seat upon the floor of either House, with the privilege of discussing any measures appertaining to his department.
Section 7.
1. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.
2. Every bill which shall have passed both Houses, shall, before it becomes a law, be presented to the President of the Confederate States; if he approve, he shall sign it; but if not, he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill, shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress, by their adjournment, prevent its return; in which case it shall not be a law. The President may approve any appropriation and disapprove any other appropriation in the same bill. In such case he shall, in signing the bill, designate the appropriations disapproved; and shall return a copy of such appropriations, with his objections, to the House in which the bill shall have originated; and the same proceedings shall then be had as in case of other bills disapproved by the President.
3. Every order, resolution or vote, to which the concurrence of both Houses may be necessary (except on a question of adjournment) shall be presented to the President of the Confederate States; and before the same shall take effect, shall be approved by him; or being disapproved by him, shall be re-passed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill.
Section 8.
The Congress shall have power¾
1. To lay and collect taxes, duties, imposts and excises, for revenue necessary to pay the debts, provide for the common defence, and carry on the Government of the Confederate States; but no bounties shall be granted from the treasury; nor shall any duties or taxes on importations from foreign nations be laid to promote or foster any branch of industry; and all duties, imposts and excises shall be uniform throughout the Confederate States:
2. To borrow money on the credit of the Confederate States:
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; but neither this, nor any other clause contained in the constitution, shall ever be construed to delegate the power to Congress to appropriate money for any internal improvement intended to facilitate commerce; except for the purpose of furnishing lights, beacons and buoys, and other aids to navigation upon the coasts, and the improvement of harbors, and the removing of obstructions in river navigation, in all which cases, such duties shall be laid on the navigation facilitated thereby, as may be necessary to pay the costs and expenses thereof:
4. To establish uniform laws of naturalization, and uniform laws on the subject of bankruptcies throughout the Confederate States; but no law of Congress shall discharge any debt contracted before the passage of the same: [Page 858]
5. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures:
6. To provide for the punishment of counterfeiting the securities and current coin of the Confederate States:
7. To establish post offices and post routes; but the expenses of the Post Office Department, after the first day of March, in the year of our Lord eighteen hundred and sixty-three, shall be paid out of its own revenues:
8. To promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries:
9. To constitute tribunals inferior to the Supreme Court:
10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:
11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:
12. To raise and support armies; but no appropriation of money to that use shall be for a longer term than two years:
13. To provide and maintain a navy:
14. To make rules for the government and regulation of the land and naval forces:
15. To provide for calling forth the militia to execute the laws of the Confederate States, suppress insurrections, and repel invasions:
16. To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the Confederate States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress:
17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of one or more States, and the acceptance of Congress, become the seat of the Government of the Confederate States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: and
18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the Confederate States, or in any department or officer thereof.
Section 9.
1. The importation of negroes of the African race, from any foreign country, other than the slaveholding States or Territories of the United States of America, is hereby forbidden; and Congress is required to pass such laws as shall effectually prevent the same.
2. Congress shall also have power to prohibit the introduction of slaves from any State not a member of, or Territory not belonging to, this Confederacy.
3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.
4. No bill of attainder, ex post facto law, or law denying or impairing the right of property in negro slaves, shall be passed.
5. No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken.
6. No tax or duty shall be laid on articles exported from any State, except by a vote of two-thirds of both Houses.
7. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another.
8. No money shall be drawn from the treasury, but in consequence of appropriations [Page 859] made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.
9. Congress shall appropriate no money from the treasury except by a vote of two-thirds of both Houses, taken by yeas and nays, unless it be asked and estimated for by some one of the heads of Department, and submitted to Congress by the President; or for the purpose of paying its own expenses and contingencies; or for the payment of claims against the Confederate States, the justice of which shall have been judicially declared by a tribunal for the investigation of claims against the government, which it is hereby made the duty of Congress to establish.
10. All bills appropriating money shall specify in federal currency, the exact amount of each appropriation, and the purposes for which it is made; and Congress shall grant no extra compensation to any public contractor, officer, agent or servant, after such contract shall have been made or such service rendered.
11. No title of nobility shall be granted by the Confederate States; and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office or title of any kind whatever from any king, prince or foreign State.
12. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and petition the government for a redress of grievances.
13. A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.
14. No soldier shall, in time of peace, be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
15. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
16. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger; nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb; nor be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
17. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.
18. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact so tried by a jury shall be otherwise re-examined in any court of the Confederacy, than according to the rules of the common law.
19. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
20. Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title.
Section 10.
1. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; make anything but gold and silver coin a tender in [Page 860] payment of debts; pass any bill of attainder, or ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.
2. No State shall, without the consent of the Congress; lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the Confederate States; and all such laws shall be subject to the revision and control of Congress.
3. No State shall, without the consent of Congress, lay any duty on tonnage, except on sea-going vessels, for the improvement of its rivers and harbors navigated by the said vessels; but such duties shall not conflict with any treaties of the Confederate States with foreign nations; and any surplus revenue thus derived, shall, after making such improvement, be paid into the common treasury. Nor shall any State keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. But when any river divides or flows through two or more States, they may enter into compacts with each other to improve the navigation thereof.
ARTICLE II.
Section 1.
1. The executive power shall be vested in a President of the Confederate States of America. He and the Vice-President shall hold their offices for the term of six years: but the President shall not be re-eligible. The President and Vice-President shall be elected as follows:
2. Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an office of trust or profit under the Confederate States, shall be appointed an elector.
3. The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit, sealed, to the seat of the government of the Confederate States, directed to the President of the Senate; the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted, the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then, from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President, whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death, or other constitutional disability of the President.
4. The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. [Page 861]
5. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the Confederate States.
6. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which say shall be the same throughout the Confederate States.
7. No person except a natural born citizen of the Confederate States, or a citizen thereof at the time of the adoption of this Constitution, or a citizen thereof born in the United States prior to the 20th of December, 1860, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained the age of thirty-five years, and been fourteen years a resident within the limits of the Confederate States, as they may exist at the time of his election.
8. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of said office, the same shall devolve on the Vice-President; and the Congress may, by law, provide for the case of removal, death, resignation or inability both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be removed or a President shall be elected.
9. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the Confederate States, or any of them.
10. Before he enters on the execution of his office, he shall take the following oath or affirmation:
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the Confederate States, and will, to the best of my ability, preserve, protect, and defend the Constitution thereof."
Section 2.
1. The President shall be commander-in-chief of the army and navy of the Confederate States, and of the militia of the several States, when called into the actual service of the Confederate States; he may require the opinion, in writing, of the principal officer in each of the Executive Departments, upon any subject relating to the duties of their respective offices; and he shall have power to grant reprieves and pardons for offenses against the Confederate States, except in cases of impeachment.
2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, Judges of the Supreme Court, and all other officers of the Confederate States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may, by law, vest the appointment of such inferior officers, as they think proper, in the President alone, in courts of law or in the heads of Departments.
3. The principal officer in each of the Executive Departments, and all persons connected with the diplomatic service, may be removed from office at the pleasure of the President. All other civil officers of the Executive Department may be removed at any time by the President, or other appointing power, when their services are unnecessary, or for dishonesty, incapacity, inefficiency, misconduct or neglect of duty; and when so removed, the removal shall be reported to the Senate, together with the reasons therefor.
4. The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session; but no person rejected by the Senate shall be reappointed to the same office during their ensuing recess. [Page 862]
Section 3.
1. The President shall from time to time, give to the Congress information of the state of the Confederacy, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them: and in case of disagreement between them, with respect to the time of adjournment, be may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faith-fully executed, and shall commission all the officers of the Confederate States.
Section 4.
1. The President, Vice-President, and all civil officers of the Confederate States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.
ARTICLE III.
Section 1.
1. The judicial power of the Confederate States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and Inferior Courts, shall hold their offices during good behavior, and shall, at stated times receive for their services a compensation which shall not be diminished during their continuance in office.
Section 2.
1. The judicial power shall extend to all cases arising under this Constitution, the laws of the Confederate States, and treaties made or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the Confederate States shall be a party; to controversies between two or more States; between a State and citizens of another State where the State is plaintiff, between citizens claiming lands under grants of different States, and between a State or the citizens thereof, and foreign States, citizens or subjects; but no State shall be sued by a citizen or subject of any foreign State.
2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.
3. The trial of all crimes, except in cases of impeachment; shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
Section 3.
1. Treason against the Confederate States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. [Page 863]
ARTICLE IV.
Section 1.
1. Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Section 2.
1. The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.
2. A person charged in any State with treason, felony, or other crime against the laws of such State, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
3. No slave or other person held to service or labor in any State or Territory of the Confederate States, under the laws thereof, escaping or lawfully carried into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such slave belongs, or to whom such service or labor may be due.
Section 3.
1. Other States may be admitted into this Confederacy by a vote of two-thirds of the whole House of Representatives, and two-thirds of the Senate, the Senate voting by States; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned as well as of the Congress.
2. The Congress shall have power to dispose of and make all needful rules and regulations concerning the property of the Confederate States, including the lands thereof.
3. The Confederate States may acquire new territory, and Congress shall have power to legislate and provide governments for the inhabitants of all territory belonging to the Confederate States, lying without the limits of the several States; and may permit them, at such times, and in such manner as it may by law provide, to form States to be admitted into the Confederacy. In all such territory, the institution of negro slavery as it now exists in the Confederate States, shall be recognized and protected by Congress, and by the territorial government; and the inhabitants of the several Confederate States and Territories, shall have the right to take to such territory any slaves, lawfully held by them in any of the States or Territories of the Confederate States.
4. The Confederate States shall guaranty to every State that now is or hereafter may become a member of this Confederacy, a republican form of government, and shall protect each of them against invasion; and on application of the Legislature (or of the Executive when the legislature is not in session) against domestic violence.
ARTICLE V.
Section 1.
1. Upon the demand of any three States, legally assembled in their several conventions, the Congress shall summon a convention of all the States, to take into consideration such amendments to the Constitution as the said States shall concur in suggesting at the time when the said demand is made; and should any of the proposed amendments to the Constitution be agreed on by the said convention¾voting by States¾and the same be ratified by the Legislatures of two-thirds of the several States, or by conventions in two-thirds [Page 864] thereof--as the one or the other mode of ratification may be proposed by the general convention--they shall thenceforward form a part of this Constitution. But no State shall, without its consent, be deprived of its equal representation in the Senate.
ARTICLE VI.
1. The government established by this Constitution is successor of the Provisional Government of the Confederate States of America; and all the laws passed by the latter shall continue in force until the same shall be repealed or modified; and all the officers appointed by the same shall remain in office until their successors are appointed and qualified, or the offices abolished.
2. All debts contracted and engagements entered into before the adoption of this Constitution shall be as valid against the Confederate States under this Constitution as under the Provisional Government.
3. This Constitution, and the laws of the Confederate States, made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the Confederate States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.
4. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the Confederate States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the Confederate States.
5. The enumeration, in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people of the several States.
6. The powers not delegated to the Confederate States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or the people thereof.
ARTICLE VII.
1. The ratification of the conventions of five States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.
2. When five States shall have ratified this Constitution, in the manner before specified, the Congress under the Provisional Constitution, shall prescribe the time for holding the election of President and Vice-President; and for the meeting of the Electoral College; and for counting the votes, and inaugurating the President. They shall also prescribe the time for holding the first election of members of Congress under this Constitution, and the time for assembling the same. Until the assembling of such Congress, the Congress under the Provisional Constitution shall continue to exercise the legislative powers granted them; not extending beyond the time limited by the Constitution of the Provisional Government.
EXTRACT FROM THE JOURNAL OF THE CONGRESS OF THE CONFEDERATE STATES OF AMERICA (MONTGOMERY, ALABAMA)
Congress, March 11, 1861
On the question of the adoption of the Constitution of the Confederate States of America, the vote was taken by yeas and nays [in the Congress that drafted the Constitution]; and the Constitution was unanimously adopted, as follows:
Those who voted in the affirmative being Messrs. Walker, Smith, Curry, Hale, McRae, Shorter and Fearn, of Alabama, (Messrs. Chilton and Lewis being absent;) Messrs. Morton, Anderson and Owens, of Florida; Messrs. Toombs, Howell Cobb, Bartow, Nisbet, Hill, Wright, Thomas R. R. Cobb and Stephens, of Georgia, (Messrs. Crawford and Kenan being absent;) Messrs. Perkins, de Clouet, Conrad, Kenner, Sparrow and Marshall, [Page 865] of Louisiana; Messrs. Harris, Brooke, Wilson, Clayton, Barry and Harrison, of Mississippi, (Mr. Campbell being absent;) Messrs. Rhett, Barnwell, Keitt, Chesnut, Memminger, Mills, Withers and Boyce, of South Carolina; Messrs. Reagan, Hemphill, Waul, Gregg, Oldham and Ochiltree, of Texas, (Mr. Wiggfall being absent.)
A true copy: J. J. HOOPER. Secretary of the Congress. [This constitution is copied from the version published in 1979 by The Wormsloe Foundation for the University of Georgia Libraries. That version is identified as a facsimile of the constitution ratified and ordered to be published by the Georgia State Ratifying Convention in March 1861.]