Saturday, July 23, 2005

It Was Lincoln, in the Constitution, With the 14th Amendment

This DailyKos post by Armando, On Constitutional Interpretation: Originalism v. A Living Constitution, is timely, since I recently had a discussion with my Originalist brother over this subject. He's probably more "strict" than Scalia when it comes to the Constitution and the usurpation by the Federal Government of powers which belong to the states. I'm sure he would agree with Scalia that the only way to create a more expansive and inclusive Constitution would be to amend it, not to reinterpret already established principles, such as in the cited case of the 14th Amendment upon which Scalia opines:

In 1920, they looked at the Equal Protection Clause and said, "What does it mean?" Well, it clearly doesn't mean that you can't discriminate in the franchise -- not only on the basis of sex, but on the basis of property ownership, on the basis of literacy. None of that is unconstitutional. And therefore, since it wasn't unconstitutional, and we wanted it to be, we did things the good old fashioned way and adopted an amendment.

Scalia doesn't mention significant portions of the second section of the 14th Amendment:
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Since the Constitution only mentions male inhabitants 21 years of age having a right to vote, and that a penalty was imposed for not allowing 21-year-old males to vote, the Constitution must mean that only 21-year-old males had a right to vote. Women and 18-year-olds could be excluded from the franchise with impunity. Of course another Amendment was needed to amend the 14th Amendment, to reverse the gender discrimination that had been introduced!

In fact, after the 14th Amendment was adopted, a woman did sue for the right to vote under its provision that all persons born or naturalized were citizens and not to be denied the privileges and immunities of citizenship. The Supreme Court of 1874 rejected her argument on the basis that voting was not a privilege of citizenship.

And this last point leads us to a fundamental question: Who gets to make the definitions?

Obviously, We the People create our definitions. So it's the mechanism which is in question and that's really a struggle between States' Rights and Federalism.

It's clear from reading the Federalist Papers that the Constitution was meant to limit the Federal Government, and specifically enumerate its powers while doing very little to curb the power of the states. The Bill of Rights did list certain rights, while also claiming, in Article IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

What those other rights are, it did not say, but those rights were to be determined by "the people" in their home states. If a state allowed women the right to vote, the Federal Government would presumably honor that right. If a state wanted the right to own slaves, the Federal Government honored that right. The Declaration of Independence spoke loftily of certain inalienable human rights, and listed a few. But had the Constitution attempted to identify and codify such rights, it would not have been ratified. For the Founders, the states were the superior force.

It's somewhat ironic, then, given the Originalist and States' Rights position of today's Republicans, that the first Republican president undermined these positions.

As John Denvir writes in the introduction to his book, Democracy's Constitution:
The 1787 Constitution's silence on many of the issues Americans now find so important reflects its acceptance of two key, related ideological beliefs. First, slavery was an accepted practice. Second, citizens owed their primary allegiance to their state government. One was first a Virginian or a New Yorker and only secondarily a citizen of the United States. These assumptions were linked because the slave-holding states believed that only through the acceptance of state autonomy would their investment in human capital be safe.

But those twin assumptions were not to endure. The Civil War was fought over them, and the amendments passed after the North's victory in that most bloody of American wars dramatically altered the structure of American government. The Thirteenth, Fourteenth, and Fifteenth Amendments might fairly be called the Second American Constitution.

...Studying Abraham Lincoln's Gettysburg Address yields a better idea of how these amendments reshaped the structure of American government. In the address Lincoln sketches the vision of America that the Civil War amendments later attempted to institutionalize. The key contribution of the Gettysburg Address comes from the clarion call of its opening sentence: "Four score and seven years ago our fathers brought forth, upon this continent, a new nation, conceived in liberty, and dedicated to the proposition that 'all men are created equal.'"

This sentence incorporates three important principles. First, "four score and seven" is a direct reference to 1776, and thus to the Declaration, not the Constitution, as the founding document of the American union. Garry Wills points out that "Lincoln distinguished between the Declaration as a statement of a permanent ideal and the Constitution as an early and provisional embodiment of that ideal, to be tested against it, kept in motion toward it." Second, a new "nation" is being birthed, not a confederacy of autonomous states. National sovereignty takes precedence over state autonomy. Third, this nation is dedicated to the revolutionary proposition that "all men are created equal."

The Civil War was fought over these last two propositions. The seceding states denied both; they believed that the primary locus of political sovereignty was found in the individual states, not the national union. They also believed that all men were not created equal; some were born slaves and therefore could be owned by other men. This intellectual dispute ended for all practical purposes with Lee's surrender at Appommattox and was memorialized in the addition to the Bill of Rights of the Thirteenth, Fourteenth, and Fifteenth Amendments. The people who drafted those amendments believed they were necessary because the Civil War had shown the southern states unwilling to protect the fundamental rights of free men, black or

The most important of the three post-Civil War the Fourteenth. It attempted to secure these rights in two separate but related ways. First, section 1 imposes three separate prohibitions on the states to ensure that they do not frustrate the republican vision for post-Civil War America. Then, section 5 of the amendment reserves to Congress the ultimate responsibility to see that the amendment's program is implemented. The first section allows courts to protect citizens against hostile state action, whereas section 5 authorizes Congress to take positive action to implement the amendment's vision.

The first prohibition in section 1 forbids any law that "shall abridge the privileges or immunities of citizens of the United States." The second forbids any state from depriving "any person of life, liberty, or property, without due process of law"; the third prohibits any state to "deny any person within its jurisdiction the equal protection of the laws." While the goal of these prohibitions is the common one of protecting the rights of free men of any color, each plays a specific role. The privileges or immunities clause is substantive; as a member of the American polity, one has certain "perks." The due process clause is grounded in procedure; it requires fair procedures before government acts against the individual. Finally, the equal protection clause focuses on discrimination; it prohibits unjustified differences in treatment.

Having found the original framework lacking, failing to live up to the ideals of the Founders, Lincoln lead the way for a fundamental shift in the power structure of the United States. Having now defined all persons born or naturalized in the US as citizens of the United States, and prohibited states from abridging the rights of US citizens, power transferred to the Legislature and Supreme Court to decide what privileges and immunities, due process, and equal protection means for all citizens in all states.

For instance, the original Constitution gives states the power to determine who votes, whereas the Voting Rights Act of 1965 codifies voting as a privilege of adult citizens which is equally binding on all states, the exception being for those who commit treason or other crimes as prescribed by law.

Thus the Legislature and the Supreme Court determine our inalienable rights in accordance with the Constitution, which necessarily requires interpretation, since those rights are not spelled out.

It is also the proper place of the courts to, when the law is lacking in specificity, seek guidance from other sources, such as written statements of intention for legal principles, ideas of equity and justice, and non-binding legal precedent (which, for the Supreme Court, is all precedent -- they are not bound by previous Supreme Court decisions).

So I agree with Scalia and my brother: the way to make the Constitution more expansive and inclusive is to amend it...and that happened in 1868.

[edited to add link]

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