The
Bill of Rights: A Constitutional Tail
by
W. B. Allen
Huntington
Library
© 1991 W. B. Allen
Thank you all for that warm welcome and my thanks to the directors and
staff here at the Huntington Library, with whom it has been an absolute delight
to work on this Bicentennial exhibit and the whole process. We began this some
time last year in terms of planning, but opened the exhibit last July and have
had several presentations along the way, and they’ve all served particularly
well to remind me of how important it is for us to take in thought what it is
that we have inherited by way of those Constitutional provisions and
institutional arrangements that provide the American way of life.
I am also glad that Bill told you in his introduction that some of these
things represent that side of my life in which I’m coming out of the academic
closet, so to speak, as a defender of the Bill of Rights. This really is an
academic occasion despite that. I say that meaning more than a pleasantry, because
I just finished spending two hours on the radio with what was a very different
kind of presentation than that I’m going to share with you, where we did indeed
talk about politics and political campaigns in addressing the question of the
Bill of Rights.
In fact, one of the things I learned just in doing
that radio show this morning was how important is the title of this address and
the matter I wish to bring to your attention. For our discussion on the radio
largely suggested the fact that the Bill of Rights has to be considered anew.
In the minds of some people it is an excess, which perhaps by now we ought to
have had enough of and done away with, while, in the minds of others, it is the
heart of the matter. You might say the tail has become the body. When talking
about the Bill of Rights, we must talk about the question of where it comes
from, but you will find in every presentation today far more focus on what it
has become.
I take it as my duty, therefore, to explain to you why it is that we, in
the late twentieth century, speak more about what the Bill of Rights has become
than about where it came from and, thus, the title of these remarks, “A
Constitutional Tail.” I have invoked the image of a caudal appendage to
describe our Bill of Rights, not only by way of indicating its position in the
Constitution, following after the main body of the Constitution, but also to
raise in your minds some questions of what the relation of the tail to the main
body is. If we have forgotten anything in our time it is precisely that
relationship, so I’m going to go through a series of observations, remarks,
designed to place the Bill of Rights in perspective.
Before I do that I want to do something else, which it is important for
me to observe formally this afternoon. We are on the West coast, some three
hours behind the Eastern time zone. There will be, I presume, further
discussions this evening, perhaps, some in Hawaii yet, but we are very near to
offering the last word on the Bicentennial of the ratification of the Bill of
Rights. I think it is important in offering the last word on that subject that
we not fail to have at least at one public reading of the Bill of Rights during
this season of celebration. So if you’ll permit me to begin, I present to you
the Bill of Rights of the Constitution of the United States:
Article I of the First Ten
Amendments: 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 of the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
Article II: A well regulated
Militia, being necessary for the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
Article III: 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.
Article IV: The right of the
people to be secure in their persons’ houses, papers, and affects, against
unreasonable searches and seizures shall not be violated and no warrants shall
issue, but upon probable cause, supported by local affirmation and particularly
describing the place to be searched and the persons or things to be seized.
Article V: 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 the 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 or law; nor shall private property be taken for
public use without just compensation.
Article VI: 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.
Article VII: 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.
Article VIII: Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
Article IX: The enumeration in
the Constitution of certain rights shall not be construed to deny or disparage
others retained by the people.
Article X: 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.
I there give you the Bill of
Rights. Rather brief reading, is it not? And yet, it has spawned traditions of
interpretation, analysis and claims that exceed the memory of any of us, though
all this development has taken place within memory, that is, within the
twentieth century. For it is certain, that in the first century under the
Constitution, with rare occasions, the Bill of Rights was rarely adverted to
and never actually called upon as the final arbiter in any critical question.
We owe to the twentieth century, in a very special way, our concern with the
Bill of Rights today. We need to recover from the eighteenth century the
sources of the Bill of Rights in order that we might begin to understand why we
have so peculiar an affection for the Bill of Rights in the twentieth century.
I might give you an example, by the way, of the character of that
affection we now have. We know the Bill of Rights, in particular, and the
Constitution, in general, have come to be what we call “lawyer’s documents” in
our time—that is to say, less the stuff of casual interaction among citizens
than the subject matter of frequent and numerous contentions in courts of law
or in legislatures. All focus on the question of legal means. So, we have
developed through a number of court decisions and reactions on the part of the
Congress of the United States, as well as through state legislatures and state
courts, an elaborate set of resources all devoted to the question of “what does
the Bill of Rights promise the citizens of the United States?”
The Bill of Rights, some would say, constitutes our Constitution, for
that is where the citizens have their most meaningful contact with the promises
of the Constitution. So very much is this the attitude today and so very much
is it often the attitude of lawyers, that I discovered upon my visit to Czechoslovakia
this spring (to consult with their experts on the development of the new
Constitution for Czechoslovakia) that I had been preceded. There had been
before me a team of American consultants, all lawyers, who had consulted with
the people writing the Constitution of Czechoslovakia, and had succeeded in
persuading them to adopt a Bill of Rights and a Supreme Court of constitutional
adjudication long before they had ever resolved the question of what their
constitution ought to look like, and they proceeded to do just that. They have
a Bill of Rights; they do not know what the executive should be; they do not
know what the legislature should be like; they aren’t certain what civil and
criminal procedures to install; but they have a Bill of Rights and they have a
Supreme Court to interpret it. For, in the eyes of the lawyers who advised
them, nothing is more important in democratic practice than a Bill of Rights
and a Supreme Court to interpret it.
That then summarizes the legacy of the twentieth century with respect to
our Bill of Rights. I want you to know that these kinds of attitudes and
orientation are not limited to the ten Amendments which I read and which
formerly constitute our Bill of Rights. We have had amendments to the U. S.
Constitution since that time, many of which—most notably the Fourteenth
Amendment—figure very largely in our evolving interpretation of the Bill of
Rights.
We have in the various states of the Union continuing interaction with
this theme through their own constitutions. They have today Bills of Rights in
all the state constitutions. They contain numerous and sometimes interesting
provisions. One in the state of Georgia for example, in its twenty-fifth paragraph,
states: The social status of a citizen
shall never be the subject of legislation.
Now, you might wonder what on earth that means—what is
the social status of a citizen—does it invoke the kind of questions raised in
Minnesota by The Minority Cultural Heritage and Preservation Act? Is that a
question of social status? For Georgia, this is an application of principles
inherent in the Bill of Rights, and we find others no less perplexing in
differing constitutions and state documents. The state of Illinois says this
about individual dignity:
To promote individual
dignity, communications that portray criminality, depravity, a lack of virtue
in, or that incites violence, hatred, abuse, or hostility toward, a person or
group of persons by reason of, or by reference to, religious, racial, ethnic,
national, or regional affiliation are condemned. End of section xx.
What do they mean? The Constitution condemns incivility? Do we have a
right to the expressions of such condemnation in the state of Illinois and, if
we do, why do we not have a right to such expressions in the state of Georgia,
or Hawaii, or Louisiana? The state of Illinois also, interestingly, provides in
the Preamble to its Constitution and Bill of Rights, the guarantee that the
government will, or “We the
people of the State of Illinois,” to state it correctly, “will eliminate
poverty and inequality.”
These are not promises that have been made lightly in these state
constitutions. They are promises that derive from our general understanding of
the purposes of Bills of Rights in the twentieth century. And when we see how
our general understanding reproduces itself in Illinois, in Georgia—and I could
read many others of these, but I’ll spare you the time—when we see how its
reproduced in Czechoslovakia; when we see how its reproduced in the Universal
Declaration of Human Rights adopted at the United Nations; we have cause to
revisit the whole question of the Bill of Rights. The spare provisions that I
read to you speak far more loudly about what government may not do than they
speak of what we promise one another in our continuous efforts to perfect the
civil relationship. Do the Bills of Rights intend to bring us to a state of perfect
relationship with one another, have they that power?
That’s what the Bill of Rights in the twentieth century has made the
most important question of the hour. Now, I’m going to submit that that creates
difficulties for us. Difficulties that it is now fair time for us to ponder.
The difficulty is this: in proportion, as we enlarge our expectations of the
Bill of Rights, we diminish our confidence in the effectiveness of those
political arrangements contained in the balance of the constitution, in the
main body.
When the Constitution was adopted, ratified June 21, 1788, and put into
place the following year, March and April of 1789, it did not contain the Bill
of Rights. It had been brought into being partially with an argument to the
effect that the Constitution itself is a Bill of Rights, which we may elaborate
as follows:
The Constitution aims to defend
the rights of citizens by restricting the powers of government.
That would mean, then, that the provisions, particularly in the first
three Articles of the Constitution establishing the Legislative, Executive, and
Judicial branches, were thought by the draftsmen of the Constitution to be
crucial from the perspective of defending the rights of persons. It would mean
further that the other provisions of the Constitution all play their role in assuring
the people’s mastery and control over their government.
This was the language with which Benjamin Rush welcomed the Constitution
in 1788, celebrating it as a radical departure from all prior regimes,
principally because it placed the responsibility for limiting the government
and determining the fate of the people in the hands of the people. It had, he
said, finally shown parliamentary sovereignty to be a myth. This was also
echoed by James Wilson and most of the founders immediately involved in
defending the Constitution.
They were not alone in the late eighteenth century in pondering the
direction of Republican government. They had to contend with the arguments of
those who opposed the Constitution, those who said a constitution without a
Bill of Rights is a contract without a commitment to deliver. “A constitution
without a Bill of Rights leaves the people unprotected.” No less important a
critic than George Mason, maintained that argument—the very George Mason who in
the state of Virginia was the chief author and architect of the Virginia
Declaration of Rights. These were not contemptible figures who said of the Constitution
that the lack of a Bill of Rights is a flaw in the proposal. Thomas Jefferson
expressed the same reservation about the Bill of Rights. As those who defended
the Constitution responded to them, they found increasingly that they could perhaps
palliate but never quite eliminate the force of the objection of those who were
opposed to the Constitution.
In consequence, they agreed that they needed for the sake of
conciliating public opinion to amend the Constitution sufficiently that those
Americans who were adopting this form of government would feel secure in their
rights. And they undertook to do this. They began the process in the Inaugural
Address of George Washington. Washington himself called for the Amendments, the
very George Washington whose sponsorship of the Constitution was essential to
its ratification and who believed himself that the Constitution without a Bill
of Rights was adequate to the purposes of republican government—indeed more
than adequate. For George Washington said, as he pondered his Inaugural Address
and, considered this proposal, this form of government which they were about to
institute that he was persuaded that “better still could not be devised.” There
could be no improvement upon what the draftsmen had accomplished. Yet, he proposed
in his first Inaugural that, public opinion is sufficiently unsettled over the
question of a Bill of Rights, that it must be added to the Constitution.
You must notice the drift of Washington’s message, for it is the same
drift you will get from James Madison when, in May, he warns the Congress that
he’s going to introduce the Amendments. And, by the way, is it not wonderful to
consider that we have a Bill of Rights—not at the hands of those who defended
Bills of Rights in the ratification process, but at the hands of those who drafted
the original Constitution?
Madison brought forth his proposal, saying we must do this because we
have a commitment to the people. The integrity of Republican government is at
stake. They ratified the Constitution, yes, on the premise that we would take
steps to approve amendments to the Constitution. They did not ratify it conditionally;
they accepted its authority; but they did insist that their representatives in
good faith needed to come forth with amendments to the Constitution. Madison
brought those amendments forth in the same spirit with which George Washington
brought them forth. Indeed, in the debates in the House of Representatives
where the Bill of Rights first was taken up, Madison went so far as to say he
did not think these Bills of Rights could be meaningful limitations upon the
government, upon the branches of government. He said in the debate, we have
done all that we can to limit the government. But these Bills of Rights may
serve to tutor majority opinion; they may serve to teach the people, to teach
the public, to temper their expectations of their representatives; and from
that perspective, our effort in adding them to the Constitution will not be
wasted.
So, the debate is set up. We find members of the first House of
Representatives, which of course is a brand new government. It has no Treasury
Department, it has no War Department; it has none of the basic institutions
with which to function. It does not have tariff legislation—and you know a
government that is not in a position to raise taxes is no government at all.
All of the basic work needed to be done, and the Representatives said to James
Madison, look, get out of the way, what is this Bill of Rights, who needs them?
We didn’t take away the people’s rights, they have Bills of Rights in their
states, those protect them. Let us put a government together. Madison insisted
that this was a political necessity. This was an act of faith, a keeping of
faith with the people of this country, and if they failed to do that, they
would have failed utterly in founding this Republican government.
So you see, the condition at the beginning is that in order to ensure
the American people that the original Constitution was adequate to its
purposes, some acknowledgment of their fondness for Bills of Rights was
necessary. Without it, you could have no founding.
Now, something else took place in the debate. James Madison proposed his
amendment to the Constitution as insertions into the text of the Constitution.
Not as a list to be added at the end, not as a tail affixed to the main body,
but interwoven throughout the body so that they would be invisible to history,
so to speak. The Constitution you would finally look at would look like the
kind of Constitution designed in Philadelphia in 1787 with some phrases added
along the way.
James Madison fought hard for that because he thought it would be bad
practice to start adding amendments to the end of the Constitution. He was
resisted no less vigorously by many others who thought we really must put these
at the end. Mr. Sherman expressed it best when he argued that the work of Philadelphia,
1787, deserved to be remembered unstained by any subsequent additions or
reflections. This is a contribution to the heritage of our Republic, to the
history of its people, which we must be all able, and all our posterity ever
after able, to look upon as the express will and work of those who labored in
Philadelphia. And if you start playing with insertions and people ever after do
so, it will be something that grows like Topsy; no one will know what was
original or what wasn’t original; and all respect will be gone. As you can see,
he prevailed ultimately.
The Bill of Rights became a tail to the Constitution out of respect for
the original document. Added at the end, in order to preserve the priority of
the main body, to keep it the chief item of focus for public attention. This is
an ironic story, isn’t it? Mr. Sherman made the Bill of Rights stand apart in
order that the Constitution would stand out, but today the Bill of Rights
stands out, and it is only the Constitution that stands apart. For in the name
of many of the promises in the Bill of Rights, Americans have shown themselves
in the late twentieth century repeatedly willing to compromise the very precise
formulas for the exercise of power in the main body of the Constitution.
Does the tail wag the dog? Well, that’s the question we can not avoid
and we can perhaps best respond to that question by looking with some care at
the kinds of principles activating our own Bill of Rights which led the
Americans to think them critical to their liberty.
The Bills of Rights did not begin in the United States, as all of you
know. They began in the experience of Britain. There are any number of various
charters and petitions transacted between barons and kings, Commons and kings
throughout the history of England—perhaps none as more important than the
Petition of Rights sent to Charles I by those who ultimately became his mortal
enemies in the struggles of English politics.
Throughout this process in which Britishers exchanged with their
monarchs various statements, charters, or petitions and in which privileges
were carved out for the people, one thing was foremost in the attention of most
people, namely, that unless special account was made of the privileges of the
citizens, the power of the government, the power of the monarch was such it
would override every human will. There was no way to restrain the power of
government, save through some kind of expressed commitment virtually of
contractual force, which tied the restraint of the monarch to the happiness of
the people.
This was the English history even when we reached that point in the
interactions between the British monarch and the American colonials that we
began to see various forms of writ being enunciated. The colony of Rhode Island
particularly enjoyed special privileges from the Stuart kings who gave them a
charter of religious toleration, of religious freedom, extending it from
monarch to people.
The people of Rhode Island received this charter from the king, not so
much as a promise from the king, interestingly enough, but as a legal
relationship binding colonial rulers in their dealings with colonial citizens.
In that you begin to see a transformation taking place. It was never imagined
that the leaders of the colonies had the same kind of power that the British monarch
had.
In fact, very early in Massachusetts we had the famous case of Robert
Childs. This citizen of England emigrated to Massachusetts, faithful in the
King’s church—the Church of England—and eventually filed suit protesting that
he was not given liberty to worship as he wished in this too-Protestant colony,
which only gave proper status to those who were inscribed in some dissenting
tradition or other rather than in His Majesty’s church. When Mr. Childs raised
his case, the General Court of Massachusetts listened to him with enormous
patience and they responded at extraordinary length. They refuted all particular
charges, the allegations that he had laid at their door, but didn’t think that
sufficient. They went on next to write out what had not been written by anyone
theretofore, namely, the British Constitution.
People say Britain does not have a written Constitution. Well, the
General Court of Massachusetts wrote one for Britain. They wrote up the British
Constitution and then in parallel column laid their’s alongside it. Effectively
they were saying to Mr. Childs, you choose which is the better. They claimed
that their’s was a better Constitution than the British Constitution. Why?
Because the Constitution to which they pointed as their own, the work of their
own hands, had already begun that process of qualifying the unlimited power of
the government. They did not acknowledge the kind of power that we see acknowledged
in the monarch of Britain throughout the British tradition. They said this is a
limited government, and it’s limited in its conception. It’s brought to be by
the people and has no other source to which to trace its authority, therefore,
Mr. Childs, you shall be much freer here, they said, than ever being treated on
the basis of a Constitution that permits such things as bills of attainder.
This was only one of a series of such events throughout the colonial
period, which led all of the American states, once independence had been
accomplished, to append Bills of Rights to their state constitutions. These are
truly remarkable documents. I read to you a few passages from the contemporary
constitutions. I won’t have time to read to you from the original Constitutions
in the states. Suffice it to say, that they do not simply give the brief
enumeration, which we have in the first ten Amendments to the United States
Constitution. They give elaborate moral and philosophical statements about the
source of rights. They trace these rights to nature; they trace these rights to
God; they say governments are bound to acknowledge these rights. They derive
from these relationships between God and nature the existence of the people as
a primary source of authority. They claim all government depends upon the
consent of the people, and it is because of these relationships, they say, that
there then follow rights, which we can enumerate and which governments may not
transgress.
It’s truly remarkable, I will digress to say, if you go back and read
the Constitutions of Massachusetts, Virginia, Pennsylvania, and others of the
period, Connecticut. It’s truly remarkable to see how clearly they articulate
the relationship of natural right and natural law to constitutional order, and
to note that that is a deeply embedded part of the American tradition, particularly
when one reflects that only a few months ago members of the United States
Senate could not imagine any relationship whatever along those lines.
This is what informed the Americans in 1774, the First Continental
Congress, the Suffolk Resolve Congress, when they wrote to the citizens of
Quebec, inviting them to take part in this revolution which they knew then
already was going to come and had to come. They spoke to them in terms of these
rights. They included even reference to the one, which is perhaps now most
famous in our time, the freedom of the press. The one that for us causes the
greatest triumphs and also the greatest confusions. They spoke directly and
clearly of the freedom of the press as they addressed themselves and the
citizens of Quebec saying that they too can enjoy this freedom, which provides
for a better administration of government. They saw an immediate connection
between the guarantee of the freedom and the consequence of the practices of
civil liberty and civil restraint. The Americans believed that government
without express concern for rights was, by definition, despotic government. By
definition, despotic government!
When those who drafted the original Constitution thought they had
finished their work without adding a Bill of Rights, they were in one sense
correct. They made the argument that, since there is no king; since there is no
parliamentary sovereignty, against whom would the rights run? Whom would you
restrict by these rights—it’s your government. Are you restricting yourself?
Well, of course the answer is, in a way, yes. But it was by no means intuitive
in 1787 and ‘88, for then it was expected that you could not have a government
which properly established self government—the rule of the people, without so
limiting it as to make the transgression of the people’s rights next to
impossible. The arguments recognize of course that minorities might be exposed
to the wrath of majorities, but that’s only on the premise that majorities operate
abstractly and without restraint. They had created republican institutions to
channel majorities. In other words, they sought to restrain majorities and to
so provide for the expression of the majority will, that by the time it becomes
law it is refined, is no longer the raw will of the majority; it is a chastened
will of the majority that becomes law; and that will, of course, one wants to
prevail in republican government.
Nevertheless, the people’s attachments to expressed statements of their
rights was so deeply embedded already by 1787 that they could never have been
brought to accept this Constitution finally without those rights having been
enumerated.
Now look what happened—they were enumerated, they were ratified on this
date two-hundred years ago with the action of Virginia sealing the fate of the
Constitution, and for a hundred years ever after with one dramatic exception,
the American people never once filed an action claiming that their government
was violating their rights guaranteed in the Bill of Rights!
That is to say, the main body of the Constitution did the work and the
one exception is the 1831 case, Barron v. Baltimore, a case in which the Fifth Amendment
was invoked against the city and county of Baltimore and received from Chief
Justice John Marshall the response that this amendment was added to the
Constitution to restrain the federal government. The state governments already
possessed their Bills of Rights and we could not apply it as against the
states. And, indeed, the provisions that James Madison included in his original
Bill of Rights, which did apply to the states, were none of them ratified or approved.
The only ones that were approved were those that we have, which applied
expressly as against the federal government.
So, the argument is, if they only apply to the federal government and,
in a hundred years nobody complains about the federal government, might it be
the case that the federalists were right? That the Constitution itself is a
Bill of Rights? That there was no threat to America’s liberties from the
Constitution? It might have been if, in fact, that tradition of the first
hundred years had continued through the second hundred years, but we have seen
the Bill of Rights become the chief source of constitutional litigation in our
time. It does so for an interesting reason; namely, through the Fourteenth
Amendment, the Bill of Rights came to be applied against the states and all of
the constitutional litigation we discussed earlier and that works us to fever
pitch, that produces excitement in this country, on issues ranging from
abortion to freedom of speech to pornography—you name it—almost every one of
them is predicated on some exercise of state power, which American citizens
seek to restrain through the power of the federal government.
The Fourteenth Amendment has enabled the courts to say, the Bill of
Rights applies to the states. So now there is work for the Bill of Rights to
do. But isn’t that interesting, even in our time still we might conclude,
because it is so rare, (yes, I admit, we have conscription laws that have
raised Bill of Rights challenges) though there have been a few challenges
lodged against the federal government, most complaints of violations of our
rights lodged not against the Constitution of Madison, Hamilton, and Washington
but against the constitutions of our states.
Meaning then, that insofar as we take the Bill of Rights as our whole
constitution, and insofar as we are willing to expand the power of the federal
government in our war against the states, and that’s what our Bill of Rights
litigation has become, to that extent we’re taking the Bill of Rights as our
whole constitution. We’re willing even to change the parameters of the powers
of the federal government in order to treat it so, and what was added as a
caudal appendage threatens to become the main body.
I say that, not out of disrespect for the Bill of Rights. I think I have
made clear that there is a deeply embedded tradition that our Bill of Rights
captures very well, although the contemporary Bills of Rights in the states are
somewhat less eloquent in this regard. The arguments about original intent jurisprudence
of only a few years ago have confused the issue enormously. I don’t have time
to develop that. I want to pause long enough to see if there is a question or
two, but I wanted to say this in closing, so that you might be able to put this
in some kind of perspective.
When people have argued about the status of minorities under the
American Constitution and have claimed that the Bill of Rights defends
minorities, they have spoken only partially correctly. It is always the case in
republican government that majorities govern, even when courts are deciding
issues. Majorities are governing, insofar as the government is truly
republican.
The court does not operate, as James Madison put it in the 51st
Federal Paper, as a “will independent of the society.” It is itself embedded in
the society. It is itself part of the expression “of the refined judgment of
the majority. “ There is no
place in American Constitutionalism where anything other than the majority ever
decides the outcome of any question.
Bearing that in mind, the original intent debates that sought to carve
out a special role for the courts to pay attention to our evolving
understandings of human rights in differing eras, so as to ensure that people
will always be protected, have missed the point. The point is that people are
protected through every change that we can envision only insofar as the
original arrangements are adequate to the task of that protection.
So the true mission, for those who are committed to human rights, is to
guarantee that the instrumentalities, which alone can defend human rights,
shall remain robust, shall remain vital, shall remain the currency with which
we transact our political business.
Taking that in mind, then, I think it’s important to acknowledge that
the argument for original intentions is nothing other than an argument that
returns us to James Madison’s concern that the prescriptions in favor of liberty,
those are his words, are always going to be prescriptions in favor of those governmental
institutions and practices which establish the people as the masters of their
own fate.
QUESTION: Is there an accurate paraphrase of the Bill of Rights, or the
whole Constitution for that matter, because there is sometimes a kind of
archaic need to be maybe translated better for modern use?
ANSWER: Well, your question is twofold—it is, is there a paraphrase of
the document or its portions? I imagine there might be.
Secondly, are there
portions of it which are archaic? That I would need specific examples to respond
to. I don’t think of any immediately which give me enormous difficulty. Did you
have a suggestion, is there some clause or phrase in particular that troubles
you?
QUESTION: Well, I guess my problem isn’t so much the archaic language of
it, it’s the legalese. ..(inaudible)
ANSWER: That’s one of the reasons I wanted to give a public reading of
the Bill of Rights at the outset of this talk, because the American
Constitution is a marvel of clarity and simplicity when compared to any of the
constitutions at any other level you might want to look at.
Now look at what’s going on in the world today in Africa and eastern
Europe, where people are generating new constitutions and you’ll find legalese,
believe me. When you see people trying to sort out the terms that distinguish
one nationality from another, and their role in the government and their
relative weight. There you find legalese set in a social, political context so
narrow that you will not know what it means ten years from now, but that is not
true of the United States’ Constitution. Everything it said was the most
universal application of the terms and the most incredible simplicity and yet
it provides for the overall development of a complete society. Look about
us—after two-hundred years and see what we’ve accomplished with that very, very
spare document.
Let me show you—this is, I should not say this is it—three-fourths of
this volume is not the Constitution. I mean there is nothing there in a certain
sense, because when one sets out to assure the authority of the people over
their own lives, one doesn’t need to hide with legalese.
QUESTION: One of the arguments by the founders against adopting the Bill
of Rights is that if we were to carve out or set aside certain rights which the
people had, we would be assuming that the government gave them to us and it
didn’t need to give us other rights, whereas the founding was precisely the
opposite. We’ve seen that happen, though, in the last two-hundred years. Not
only. ..
ANSWER: The question is: one of the arguments against the Bill of Rights
is, if you enumerated so much you would create the assumption that you’ve
exhausted the rights available to the people and would that not lead people,
then, either to expand government powers in the areas not expressly laid down
but which are still rights, or if you say you’re reserving rights would that
not lead people to an infinite and indefinite creation of new rights? Is that
not characteristic of our experience today? The answer is yes. But let me say,
relative to the original debate, I think we need to remember something vitally
important; the Federalists, those who defended the Constitution said, don’t
list rights, because any you don’t list will be excluded that way. The anti-
Federalists, who wanted the Bill of Rights, were not stupid. They said,
alright, we accept the force of your argument. What we’re going to do, though,
instead of not listing them at all, is to list them and then add a last one
saying we aren’t giving any of them up.
This is of course what happened, as you saw in my readings. The last
two, the Ninth and Tenth Amendments, are the reserve clauses, saying that if
the powers were not given, we didn’t mean to give them; if the rights were not
listed, it doesn’t mean we gave them up. So, I think that that would be an adequate
solution to that political problem in that day and age, which means then our
rights are not simply the rights expressly enumerated in the Bill of Rights. I
don’t think there’s room for anyone meaningfully to argue that the rights the
American founders set out to protect are exhausted by the terms of the Constitution.
I repeat that—I don’t think anyone can
seriously argue that the rights the American founders set out to protect are
exhausted in the explicit terms of the Constitution.
I’ll give you but one example of that. There is nowhere mentioned in the
explicit text of the Constitution any regard whatsoever for the family, or
people’s rights to live in families, and I think it’s clear that that is a
right and not just a convenience or social custom. I think it’s clear that the
founders intended to defend that right and that they thought they had
elaborated political institutions and relationships adequate to the defense of
that right, though it is not expressly stated.
So, I think we have to accept in the twentieth century the reality that
rights are not all going to be expressly stated; which means then, when we deal
with the controversies over which rights are in and which rights are out, we
have to bear the burden of debate. We have to take on claims of rights directly
and say whether it strikes us that this is a true right or just some silly indulgence
that people want. That’s the language that responds to the challenge of the
constitution, not a legal attempt to define certain claims out of order and
other claims naturally in.
QUESTION: I wondered what you would make of them.
ANSWER: The language of the Sixteenth Amendment was meant to apply to
the language in Article I, which restricted direct taxation to a formula of
apportionment among the States. What the Sixteenth Amendment does is remove
that limitation in Article I. In that sense, no new tax is created in the Sixteenth
Amendment, no new power, but no new taxes as well.
In previous court cases that had struck down income taxes, specifically,
on the grounds that income taxes could not adhere to the restriction in Article
I, the Courts had made statements, which some people interpreted as applying
specifically to income tax. Therefore,
when the legislatures proposed the Sixteenth Amendment, they included the term
income tax in the amendment, so as to make clear not only that they were
repealing the limitation in Article I, but that it applied directly to the
income tax. That is the practical and legal force of the Sixteenth Amendment.
QUESTION: I believe that the men who wrote the Constitution and the Bill
of Rights were, for the most part, Christian or at least spiritual men. Could
you comment on the evolvement of the context of separation of church and state?
ANSWER: Well, you asked a question which I could give a second talk on
and I’m not going to abuse you. I know some of you are going to want to see the
exhibit, which I highly encourage and we’ve got Mr. Rhodehamel poised to take
care of that, so let me be very brief with this and, admittedly, inadequate at
the outset. I will make two comments about it.
My first comment (inaudible) ...adoption of that portion of the First
Amendment, which deals with the establishment of religion, shows in its course
of development what the founders intended.
The version that James Madison initially proposed read, “There shall be
no national religion established.” That was how he proposed it. Those in the
House of Representatives who heard that realized it was a problem, for it read
as a prohibition of religion, rather than a prohibition upon government involvement
with religion. They, therefore, proposed the expression that became ultimately,
“Congress shall make no law respecting
an establishment of religion.” One can see just by parsing the grammar
of the alternatives that the vision was not meant in any way to force the
discouragement of religious sentiment in the nation.
Secondly, we often speak of separation of church and state today, as if
it means that the Constitutional design aimed to keep religion away from
politics. I believe that that is incorrect. The Constitutional design aimed to
keep politics away from religion. It is not aimed to limit religion in any
respect whatever.
QUESTION: In your closing remarks, were you saying that you believe that
the courts aren’t an accurate reflection of the (inaudible) of the way in which
they are gained and laid out in the Constitution and, therefore, you can’t say
that the courts do not reflect the popular will at the same time as they have
to work within (inaudible).
ANSWER: The question is, did I mean in my closing remarks that the court
accurately reflects the will of the people; that they are, in some fashion,
whether through the mode of appointment, a mode of interacting with society
sufficiently capable of expressing popular will that we needn’t be concerned
with the question of their independence. If that does not do justice to the
question, I apologize.
The answer to the question is, essentially, Abraham Lincoln’s answer to
the question in 1858 in the aftermath of the Dred Scott decision. What
transpired in this case where the court arrived at the decision which
effectively caused the civil War, which many people thought to be wrong, and
which I think to be wrong, and would not claim, therefore, to be the will of
the majority, refined or otherwise, is not that the court will not sometimes
depart in a specific decision from the will of the people, but that it will
never depart for long from the will of the people.
Lincoln said, we of course recognize this is law. Our practices require
us to do that, but we do not accept it as right. And not accepting it as right,
we have a twofold obligation. One, to consider how far we are willing to go
when our officials make decisions which are not right, when they go beyond
simply saying slavery is legal anywhere, to saying you in Illinois can not
abolish slavery, you have to permit it. Will we accept that, he asked the
people. He, in raising that question, was raising the ultimate condition about
when would the people be forced to react in order to recover sensible policies
from the hands of a government gone mad. I think that is true in every hour,
so that when I say the court reflects the will of the majority, the settled
opinions of the people, I mean it always operates within those limits. The
failure to do this will surely produce a reaction.