by Ray Raphael
Interpreting rights will always be tricky. By their very nature, rights limit government, yet the government must retain sufficient powers to govern effectively. No rights are absolute, particularly when exercised in a manner threatening the normal operations or even the existence of the government. Free speech and the right to keep and bear arms do not permit making death threats against the president or pointing guns at him or her. At the least, distinguishing the various types of constitutional provisions can help us evaluate the trade-offs, certainly a first step in arriving at any decision.
44.Scalia, Matter of Interpretation, 145.
45.Nor did the Fourteenth Amendment, as interpreted by contemporaries, specifically negate coverture laws, despite its guarantee that no person could be deprived of “life, liberty, or property without due process of law.” In 1872 Supreme Court Justice Joseph P. Bradley argued in his concurring opinion in Bradwell v. Illinois that the Fourteenth Amendment did not alter traditional legal definitions of a woman’s place in society: “The claim that, under the fourteenth amendment of the Constitution, which declares that no State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, the statute law of Illinois, or the common law prevailing in that State, can no longer be set up as a barrier against the right of females to pursue any lawful employment for a livelihood (the practice of law included), assumes that it is one of the privileges and immunities of women as citizens to engage in any and every profession, occupation, or employment in civil life. It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. One of these is, that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him.” (Emphasis added.) The Court upheld the decision by the Illinois Supreme Court denying Myra Bradwell admission to the Illinois bar because she was a woman. FindLaw.com, http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=83&invol=130.
To see how coverture could creep into constitutional litigation, imagine that the federal government, to extend an interstate highway, confiscated the best fields of Mrs. X’s farm, which has been in her family for generations. Under the Fifth Amendment, she has a right to compensation, so the federal government sends her money. As interpreted by the values of 1791, however, the government should have sent the money to Mr. X, her ne’er-do-well husband, estranged but not divorced, who lives a debauched life in the city. When he files suit to receive his due, basing his case on the founders’ view of property rights, a truly originalist judge should overturn subsequent anticoverture legislation, which undermined the way property was perceived when the Fifth Amendment was ratified, and award the money to Mr. X. Coverture was not simply a legal doctrine, Mr. X’s lawyers could argue, but a “moral perception” of the founding generation.
This argument can be and has been challenged. In 1866, when the House of Representatives was debating what would soon become the Fourteenth Amendment, opponents protested by claiming that coverture statutes might be nullified inadvertently by the clause that prohibited states from depriving “any person of life, liberty, or property without due process of law.” They did not want to pass a constitutional amendment that went that far, prohibiting coverture. Supporters of the amendment countered that the word “property,” in the similar clause within the Fifth Amendment, referred to property as granted by state and local law, and those jurisdictions would be free to keep or abandon coverture as they saw fit, without reference to either the Fifth Amendment or the proposed one.
Imagine, then, nine originalist justices in the year 2015, when they hear Mr. X’s case. They must decide the case on several obscure points of history. Did the framers and ratifiers of the Fifth Amendment define “property” according to the “moral perceptions” of the time, which demanded coverture and must be honored, or according to local and state law, which could be changed? Or perhaps both, not noticing that these might come into conflict? In that case, which definition should trump the other? Then, once a justice had made his or her peace with the founders of 1789 and 1791, he or she would need to repeat the investigation for 1866–68, asking the same questions with respect to the framers and ratifiers of the Fourteenth Amendment. On the answers to this complex set of arcane questions their decision would hinge, and depending on their historical interpretations, married women in 2015 either will or will not be constitutionally entitled to own their own property.
46.Jack M. Balkin, Living Originalism (Cambridge: Belknap Press, 2001), 7, 23.
47.Scalia, Matter of Interpretation, 46, 145.
48.Scalia, “Originalism: The Lesser Evil,” 861.
49.Justices Thomas and Scalia pick and choose when to apply originalism to the Fourteenth Amendment, and when not to do so. They oppose affirmative action policies because they claim the Constitution (including and especially the Fourteenth Amendment) is color-blind, but if they applied their originalist method to the adoption of the Fourteenth Amendment, they should probaby conclude otherwise. Eric Schnapper, in his study of the congressional action on the Fourteenth Amendment and concurrent civil rights legislation at the height of Reconstruction (“Affirmative Action and the Legislative History of the Fourteenth Amendment,” Virginia Law Review 71 [1985]: 753–98), concludes: “From the closing days of the Civil War until the end of civilian Reconstruction some five years later, Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks. These programs were generally open to all blacks, not only to recently freed slaves, and were adopted over repeatedly expressed objections that such racially exclusive measures were unfair to whites. The race-conscious Reconstruction programs were enacted concurrently with the fourteenth amendment and were supported by the same legislators who favored the constitutional guarantee of equal protection. This history strongly suggests that the framers of the amendment could not have intended it generally to prohibit affirmative action for blacks or other disadvantaged groups” (Ibid., 754). Debates on the both the legislation and the Fourteenth Amendment presaged the debate over affirmative action in the late twentieth and early twenty-first centuries, as we see in President Andrew Johnson’s veto of the Civil Rights Act of 1866. Measures within the bill, he argued, “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” Despite his complaints about preferential treatment, Congress passed the bill over his veto. Emboldened, it then passed a Freedmen’s Bureau bill with several race-conscious provisions offering special assistance to blacks. This color-conscious treatment was furiously debated, but in the end Congress enacted them. President Johnson then vetoed the new bil
l because he opposed favorable treatment for “any favored class of citizens,” but the House voted to override his veto by 104 to 33, and the Senate did likewise, 33 to 12. Overwhelmingly, Congress voted in favor of what today we would call affirmative action measures. Further, at the time that Congress debated particular provisions entailing special treatment for blacks, it debated and approved the Fourteenth Amendment; the votes on the legislation and the amendment were largely along identical lines. The expected application of the Fourteenth Amendment, historically speaking, is clear: the Reconstruction Congress did not take a color-blind approach but approved race-conscious measures intended to address past injustices. Today, we do not necessarily have to abide by Congress’s expected application of the amendment that it proposed and sent on to the states, but originalists, to be true to their method, should. Because the historical evidence would not support the conclusion they wish to draw, however, they don’t.
50.Scalia, Matter of Interpretation, 40.
51.Balkin, Living Originalism, 24, 29. Balkin distinguishes between two forms of originalism: “framework originalism,” which he accepts, and “skyscraper originalism,” which he rejects: “These two types of originalism differ in the degree of constitutional construction and implementation that later generations may engage in. Skyscraper originalism views the Constitution as more or less a finished product, albeit always subject to Article V amendment. It allows ample room for democratic lawmaking to meet future demands of governance; however, this lawmaking is not constitutional construction. It is ordinary law that is permissible withion the bounds of the Constitution. Framework originalism, by contrast, views the Constitution as an initial framework for governance that sets politics in motion and must be filled out over time through constitutional construction. The goal is to get politics started and keep it going (and stable) so that it can solve future problems of governance. Later generations have a lot to do to build up and implement the Constitution, but when they do, they must always remain faithful to the basic framework” (21–22). If presented with these two alternatives, James Madison, for one, would have leaned toward the latter, or at least he did in The Federalist No. 37, while arguing for a flexible approach to the Constitution: “Experience has instructed us that no skill in the science of government has yet been able to discriminate and define, with sufficient certainty, its three great provinces—the legislative, executive, and judiciary; or even the privileges and powers of the different legislative branches. Questions daily occur in the course of practice, which prove the obscurity which reins in these subjects, and which puzzle the greatest adepts in political science.” No constitution can function as a fully completed edifice; instead, it needs to be filled in within the contexts of real-world experiences. “All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” This, in fact, is what happened, starting with the tumultuous constitutional debates of the 1790s, in which Madison was an active participant. Benjamin Franklin, a true scientist, likewise would have preferred the framework approach, which allows for empirical input (see note 55 below).
52.Madison, Notes of Debates, September 17.
53.This story comes from James McHenry, a delegate to the Federal Convention from Maryland: “A lady asked Dr. Franklin Well Doctor what have we got a republic or a monarchy—A republic replied the Doctor if you can keep it.” James McHenry, “Anecdotes,” in Farrand, Records, 3:85. McHenry’s document does not bear a date.
54.Patrick J. Buchanan, “A Republic, Not a Democracy,” March 2, 2005, http://antiwar.com/pat/?articleid=5015.
55.The first reading treats Franklin as a bureaucrat: we write the rules, he supposedly meant, and your job is simply to follow them. The second reading, more historically astute, sees him as an open-minded scientist devoted to experimentation. For Franklin, the framers’ proposed Constitution was the latest and grandest experiment in forming republican governments. After independence, eleven states had experimented with new constitutions, but two of these soon dropped their recently minted constitutions to form even newer ones, and a third state constitution, Pennsylvania’s, was being seriously challenged even as the framers met within the Pennsylvania State House. For at least thirty-seven years prior to 1787, Franklin had entertained an interest in constitution making. In 1750 he offered ideas for a continental federation, which four years later evolved into his famous Albany Plan of Union. In 1775, after the outbreak of the Revolutionary War but a year before the United States declared its independence, he revamped those ideas, this time proposing a central authority with the power to pass “general ordinances as tho’ [thought] necessary to the general welfare.” Following independence, Franklin served on the congressional committee charged with drawing up “a plan of confederation.” John Dickinson, the committee member who prepared the first draft, drew on Franklin’s earlier ideas. The final version of that agreement, the Articles of Confederation, proved weaker than Franklin would have preferred, and now, in September of 1787, the Federal Convention was proposing to supplant the Articles with a new set of rules that Franklin and others hoped would “form a more perfect union.” Would Doctor Franklin, the great scientist, really proclaim with absolute certainty that the latest in this series of experiments was the final solution, before the new plan had even been tried out in real life? Like other framers, he wanted first and foremost to get the experiment started by putting something in place; improvements could be made later, as in fact they were (Franklin, Papers, 4:119 for the 1750 plan and 22:122–23 for the 1775 plan).
INDEX
Page numbers in boldface indicate document texts.
Adair, Douglass, 106–7
Adams, Abigail, 148
Adams, John, 30, 38, 79, 148–49, 165, 261n5
Adams, Samuel, 70
Address to the People of New-York (“A Citizen of New-York”), 113, 275n24
“Advice and Consent” role of the Senate, 117–19, 156–57
affirmative action legislation, 299n49
Affordable Care Act decision (2012), 102, 261–62n6
Albany Gazette, 275n23
Albany Plan of Union, 254n21, 300–301n55
Alien and Sedition Acts (1798), 94, 157
Alito, Samuel, 102, 124, 261–62n6
Allen v. Wright (1984), 293n28
Amar, Akhil Reed, 265n28
Amendments 11–27, 235–44. See also Bill of Rights
American Heritage Foundation, 249n1
Ames, Fisher, 159–60, 291n14
Annapolis Convention, 77
Anti-Federalists
definition, xii–xiii
and The Federalist, 272n6
Massachusetts Compromise and Bill of Rights, 140
antimiscegenation laws, 173
Articles of Confederation, 6–8, 177–85
authority granted to Congress/states, 1, 7–8, 66
Dickinson’s draft, 6–7, 300–301n55
and federal powers of taxation, 16, 20–21
government and individual rights, 69
overhauled at Federal Convention, 12–14, 36, 39, 58, 77
and state representation in Congress, 6–7, 39–40
and the word “nation,” 7
Bachmann, Michele, 15
Baldwin, Abraham, 48, 257n19
Balkin, Jack, 172, 173, 300n51
bank, national, 63–65
Hamilton and, 63, 64–65, 96–97, 120–21, 278n40
limited government principles and Congress’s power to charter, 63–65, 96–97, 120–21, 271n38, 278n40, 279n41
Madison and, 64, 96–97, 271n38
Morris’s bank and bills of credit, 20–21
originalism and the bank debate, 159–60, 290n11, 291n15
Barton, David, 284n1
Baze v. Rees (2008), 163
Beck, Glenn, 128, 283–84n59<
br />
Bedford, Gunning, Jr., 41, 42, 83, 256n14, 257n19
Bernstein, R. B., 278n37
Bill of Rights, 131–51
Convention arguments for/against, 136–39, 285n10, 285n13
and English Bill of Rights (1689), 17–18, 131–32
and the Federalists, 133–34, 140, 145, 148, 150
House debate and consideration, 145–48
items rejected, 146–47, 288n32
Madison’s proposed amendments, 27, 67, 133, 142–48, 227–30, 261n5, 263n16, 270n35, 286n28, 287n31
Mason and, 132, 136–37, 139, 285nn9–10
multiple ideological purposes served, 150–51
placement, 145–46, 287n31
and promotion of liberty over government, 150–51
public reaction to ratification, 149–50
ratification conventions and states’ proposed amendments, 26, 132, 139–42, 145, 146, 231–33
Senate debate and consideration, 147, 288n35
and states’ declarations of rights, 26, 132, 134–38, 261n5, 285n8, 285n10
and taxation powers of Congress, 141–42, 143, 147
See also individual amendments
Black, Hugo, 161–62
Blackstone, Sir William, 123
Bork, Robert, 162
Boston Tea Party, 4
Botetourt, Lord, 4
Bradley, Joseph P., 297n45
Bradwell v. Illinois (1872), 297n45
Brearly, David, 50
Breyer, Stephen, 170, 295n40
British Whig tradition, 58, 59–61
Brown v. Board of Education (1954), 171
Brown v. Entertainment Merchants Association (2011), 163–64
Buchanan, Patrick J., 174–75
Burke, Aedanus, 10–11, 146
Burnley, Hardin, 253n20
Bush, George W., 165–66, 293n28
Bush v. Gore (2000), 165–66, 293n28
Butler, Pierce, 44–46, 79, 147
