W. B. Allen
© 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.
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.