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In two recent articles (“Phony Constitutionalists Despise This Freshman Senator” and “The Pernicious Notion of ‘Unenumerated Rights’”) Mark Pulliam attempts to construct a defense of original intent jurisprudence. His attempt is vitiated by one glaring defect: he is utterly mistaken about the first principles of the Constitution. He invites us to “Recall our first principles: The U.S. Constitution is a compact among the states, which existed as separate sovereigns prior to ratification of the Constitution in 1789.”
The Constitution, of course, states that “We the people of the United States . . . do ordain and establish this Constitution for the United States of America.” It is notable that it does not say “We the States. . .” The people created the Constitution, the Constitution did not create the people. Article VII of the Constitution specifies that it was signed “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth.” Thus independence is fixed on the date of the Declaration of Independence, which refers to Americans as “one people” and as “the good People.” The people who established and ordained the Constitution were the same people who dissolved “all Allegiance to the British Crown.”
Madison and Hamilton in The Federalist surely would not have characterized the Constitution as a “compact among the states.” Madison described it as “partly national, partly federal,” with the national elements being the “supreme Law of the Land.” Madison and the other leading Federalist supporters of the Constitution agreed that a compact among sovereign states would be, in Hamilton’s words “incompatible with the idea of government.”
Abraham Lincoln, in his July 4, 1861, “Message to Congress in Special Session,” refuted the allegation that states had ever been sovereign and therefore could in any way assert a right to secession. “The Union,” Lincoln declared, “is older than any of the States; and, in fact, it created them as States . . . Not one of them ever had a State constitution, independent of the Union.” He explained that the “United Colonies” were declared to be “Free and Independent States” in the Declaration of Independence. The object of the Declaration was not to proclaim them independent of one another, but as united states. They were not independent, sovereign states having no connection with one another, they were united together as a nation. The states have never been sovereign; they formed their constitutions as members of the United States of America. Lincoln perfectly captured the understanding of America’s Founders.
Pulliam, following Robert Bork, would probably reply that the natural law principles of the Declaration of Independence are entirely subjective and can yield any imaginable (and imaginary) results. Bork, in fact, argued that the Declaration was the beginning of our troubles; once you begin with the central principle of human equality you inevitably find yourself on the slippery slope to permissive egalitarianism. The Declaration, he argued, proclaims natural rights but is silent about natural duties. It should not be surprising then that today there are no limits, as Pulliam points out, to what may be claimed as individual (and idiosyncratic) rights. The Declaration is the real origin of substantive due process and substantive equal protection rights.
Bork frequently quoted Justice James Iredell’s opinion in the 1798 case of Calder v. Bull: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.” This, it would seem, is the reductio ad absurdum for both Bork and Pulliam—but not for the Founders. It is certainly true that “the ablest and the purest men” have disagreed about the principles of natural justice. But there was no disagreement among the Founders about the principles of the Declaration, beginning with the “self-evident truth” that “all men are created equal” and culminating in the right and the duty of the people to “alter or abolish” government when it becomes destructive of the ends for which it was established—the safety and happiness of the people. This is not “subjective fantasy,” but the inductive reasoning derived from a truth that is evident to all who have the capacity to reason.
The Declaration, of course, is the quintessential statement of social compact and Madison is famous for his frequent repetition of the basic principle that all just and free government is derived from social compact. Social compact rests on the consent of the governed as its legitimating principle and consent itself is synonymous with natural human equality. But in forming civil society based on consent, each person who consents to be governed also consents to incur the many obligations of society. This means, at a minimum, that in return for the protection of his rights and liberties each individual pledges to protect the rights and liberties of others. Rights and obligations are reciprocal in social compact. Bork was wrong. The Declaration does encompass obligations. The pursuit of happiness contains moral obligations; rights must be consistent with public happiness and the public good. This excludes any notion of rights that are merely self-serving or idiosyncratic. Given Bork’s defective understanding of the Declaration, it is little wonder that he and Pulliam reject it. But the grounds on which they reject it are wrong!
Pulliam and Bork rightly rail against judges who invent rights that have no textual basis in the Constitution or cannot fairly be inferred from the Constitution’s text. Both deny that there are “unenumerated” rights, even though the text of the Ninth Amendment indicates there are other rights “retained by the people” not listed in the Bill of Rights.
Madison, of course, always opposed a Bill of Rights, even as he became the prime mover in securing its passage. One of the reasons he opposed the project is that a list of rights reserved against government could never be exhaustive, and because it could not be comprehensive it may well become dangerous. The legal argument is “whatever is not included is excluded.” A list in the law or constitution cannot be simply suggestive: “Here is a list of things that are forbidden and there are other things as well that we cannot think of right now but may become important in the future.” No law or constitution can be so imprecise, but this is exactly the danger that Madison attempted to address in the Ninth Amendment. “The rights adumbrated in the first eight amendments are not exhaustive. There are others retained by the people and they must remain unenumerated.”
Madison realized that it would be better not to have a Bill of Rights because sooner or later, instead of limited government, we would come to believe that government can do everything except what we expressly say it cannot do. Without a Bill of Rights we would be more likely to demand that government justify the exercise of its power in terms of its delegated powers. The addition of a Bill of Rights, as Madison predicted, would transform limited government into unlimited government. This is the situation we find ourselves in today. The Ninth and 10th Amendments were designed to forestall that eventuality. But as Madison also realized, they were weak attempts to preclude the inevitable.
Bork argues that some parts of the Constitution are too obscure to be understood; their text, history, and logical structure simply cannot be understood—it is as if they has been rendered indecipherable by “inkblots” on the text. Because they are indecipherable they should be ignored. This is the case of the Ninth Amendment’s invocation of unenumerated rights. Best to ignore this “inkblot provision.” This is how Bork understands original intent jurisprudence! It is fair to ask, however: if it is legitimate to ignore parts of the Constitution one does not approve under the pretext that it is obscured by “inkblots,” why is it not equally legitimate to put into the Constitution clauses (and substantive rights) that one would like to have there? What is the essential difference? Isn’t one just as much judicial activism as the other?
Pulliam cites Justice Anthony Kennedy’s so-called “mystery clause” as a reductio ad absurdum of how the Supreme Court manufactures unenumerated rights out of whole cloth. I, too, have ridiculed this passage, and at the risk of being ridiculed myself, I bring it for discussion once again. Justice Kennedy had written in the context of abortion rights and the right to privacy: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Pulliam characterizes this as “the type of psychobabble folderol that activist judges use to impose their policy preferences on Americans.” In the context of abortion, Pulliam’s ire is understandable. But we can also see this statement as resting at the heart of the free exercise of religion or what Madison called the “rights of conscience, the most sacred of all rights.” It is beyond cavil that this “sacred right,” where those decisions about how to worship God according to the dictates of one’s own conscience, requires something like the right to privacy, a sphere insulated from government intrusion. This is certainly one of the unenumerated rights that are encompassed by the Ninth Amendment. However, it is doubtful—nay impossible—to believe that abortion falls within the ambit of the rights of conscience.
For Bork, however, any reference to natural rights propels us into the realm of “values and totalities.” Madison feared this development: for Bork, rights do not exist by nature; they exist only because government confers them. Thus there can be no unenumerated rights; all rights are positive rights. Rights do not exist prior to the advent of government. The danger, as the framers knew, is that if government can create rights, it can destroy rights as well. Bork, true to form, denied there was a natural right to revolution, even though the founders described it as the right that guaranteed every other right.
Pulliam displays a particular animus at Justice Clarence Thomas’s attempts to restore the moribund “privileges or immunities” clause, fearing that it will provide a new source for judicial activism. “Privileges or immunities,” Pulliam argues, was rightly interred in the Slaughterhouse Cases (1873). It is clear, however, that from even the most casual reading of the debates in the 39th Congress, the framers of the 14th Amendment intended privileges or immunities to be the substantive core of the amendment. The clause repeated Article IV of the original Constitution and made that clause binding upon the states. It was because Slaughterhouse rendered the privileges and immunities clause impotent that due process and equal protection were pressed into service. Those clauses were ill-suited to the substantive tasks designed for privileges or immunities; thus the confusion and lack of boundaries that have resulted in due process and equal protection jurisprudence.
Raoul Burger, the famous 14th Amendment scholar and original intent jurisprude, sought to reanimate the privileges or immunities clause as a way of curbing judicial activism because he calculated (rightly in my opinion) that privileges or immunities were more amenable to limitation than equal protection and due process. This is precisely what Thomas is attempting to do. Natural law jurisprudence provides a principled basis to curb judicial activism. Thomas alone among the members of the Supreme Court understands this. Those following Bork, I don’t think, ever will.
The natural law principles of the Declaration, as Madison noted in the central number of The Federalist, was the authoritative ground of the Constitution—and still today is listed as the first of the Organic Laws of the United States in Title I of the U.S. Code. There is abundant evidence that the framers of the 14th Amendment sought to complete the founding by readopting the principles of the Declaration.
One quote, from Representative Thaddeus Stevens on May 8, 1866, is typical:
It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establishment till a more propitious time. That time ought to be present now.
Insofar as the Constitution allowed for the continued existence of slavery and provided protections for that “peculiar institution,” it was only a partial expression of the Declaration’s central principle that “all men are created equal.” The concessions to slavery were necessary to keep the slave states, particularly South Carolina and Georgia, from bolting the convention. But when the Constitution is read in the light of the principles of the Declaration, the provisions protecting slavery are clearly shown to be compromises and not principles; that is, they are temporary departures from principles taken in order to secure the adoption of the Constitution which, in Lincoln’s phrase, put slavery in “the course of ultimate extinction.” But if we follow Bork and Pulliam in insisting that any reference to sources outside the text and structure of the Constitution is illegitimate, then we cannot distinguish the Constitution’s principles from its compromises. The provisions in the Constitution protecting slavery would then have the same status and dignity as those protecting liberty. It is the Declaration that supplies the purpose to the Constitution, and clearly distinguishes the permanent protections afforded liberty from the temporary expedients that protect slavery.
The Fifth Amendment specifies that “no person can be deprived of life, liberty or property without due process of law.” The debate that consumed America in the decade of the 1850s was whether a slave was a person or property. How can that question be settled within the “four corners” of the Constitution? In every circumlocution touching on the issue in the Constitution slaves are referred to as “persons.” At the same time, they are treated as “property” when they are taxed and when the return of fugitives is required. Within the “four corners” of the Constitution’s text, I submit, it is impossible to decide. Once you have reference to the principles that inform the Constitution, the Declaration, the question is easily resolved; human beings can never be property because “all men are created equal.” Those protections for slavery in the Constitution are compromises made necessary by political expediency to be tolerated only as long as necessary until it was possible to implement fully the principles of the Declaration. And, as Rep. Stevens remarked in 1866, the time for the fulfillment of the Declaration’s principles was at long last demanded by circumstances.
By the time Rep. Stevens gave his speech, the 13th Amendment abolishing slavery had already been passed. The late Harry V. Jaffa made a startling, but true, argument that the 13th Amendment is an unrepealable part of the Constitution. There is nothing in the Constitution that makes any amendment unrepealable, although some parts of the Constitution are still said to unrepealable, e.g., that every state must have two senators. Since the invocation of an unrepealable provision would have to rely on an authority higher than the Constitution, it would be difficult to imagine what authority could exist for the proposition that every state have two Senators. It is obviously different for the 13th Amendment. Here the natural law and natural right authority of the Declaration, the authoritative source of the Constitution’s authority, makes it unrepealable. Natural law principles—flowing inexorably from the fact of human equality—condemn slavery as a violation of natural law and natural right. Bork says, however, that the 13th Amendment could be repealed by a subsequent amendment but we depend on the good sense of the American people never to do so. For Bork, the Constitution is a positive law document that is merely procedure without a purpose. For the Founders, however, the purposes of the Constitution were spelled out in the Declaration of Independence and the Constitution served as the means to fulfill those purposes.
The rights contained in the Bill of Rights were originally designed to be part of the “privileges and immunities” that adhered to federal citizenship in Article IV. The architects of the 14th Amendment clearly intended to make the protection of those same rights safe from violations on the part of the states. It was thus the intention of the framers of the 14th amendment to “incorporate” the provisions of the Bill of Rights, not through the due process clause, but through “privileges or immunities” clause. Anyone who reads the 14th amendment debates easily can glean this intention from its leading proponents. The majority in Slaughterhouse willfully ignored this evidence. Had they given full recognition to the framers’ intent with regard to “privileges or immunities,” the due process catastrophe that we know of as “incorporation”—the source of so much judicial activism—could not have occurred.
Slaughterhouse upheld a state monopoly that the majority said did not implicate any privilege or immunity of United States citizenship. Clearly, however, a monopoly is an assault on the right to property, one of the “the privileges or immunities of citizens of the United States,” that the framers of the 14th amendment intended to be protected from state abridgment. Madison had written in his famous essay on “Property,” published just after the ratification of the Bill of Rights, that property was the right that comprehended all other rights, including freedom of speech, free exercise of religion, the rights of conscience, and other rights. His memorable phrase was that “as you have a right to property, so you have a property in your rights.” Monopoly, Madison averred, was an assault on the right to property because it denied the right to choose an occupation which was the primary means of securing property. As a means to securing property, the right to choose an occupation freely was a part of the right to property—it was a necessary extension of that right. Clearly, a proper understanding of the original intent of the framers of the 14th Amendment would have concluded that the free choice of an occupation was properly a part of the right to property under the “privileges or immunities” clause which the states could not abridge.
The Slaughterhouse majority took a truncated view of the “privileges or immunities” clause premised on the mistaken view that no change in the federal relationship had been worked by the 14th amendment. This was patently false. In the 39th Congress, the defenders of states’ rights—the heirs of those who were defenders of the southern slavocracy—attempted to maintain the palpable fiction of state sovereignty. The states were not sovereign before the Civil War and it was utterly futile to argue state sovereignty after the war, although there were enough states’ rights advocates to provoke debate. Calhoun’s “ingenious sophism” that “all men are not created equal, all States are created equal,” was the centerpiece of slaveocracy’s defense of slavery. That argument was dead in the post Civil War debates—but it continued to have advocates.
The 14th Amendment portended a radical change of the federal relationship. The privileges or immunities of United States citizenship were now primary and those of state citizenship secondary. The Slaughterhouse majority, of course, tried to minimize the revolution occasioned by the Reconstruction Amendments. Pulliam is simply wrong when he says that the Reconstruction Amendments were intended to apply only to the equal civil and political rights of the newly freed slaves. Even Slaughterhouse doesn’t take that position.
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