Heeding the Deed, Part 2

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America's Unwritten Constitution

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Yale University

America's Unwritten Constitution

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An introduction to basic techniques of constitutional interpretation.

À partir de la leçon

Heeding the Deed

Heeding the Deed, refers to the technique of understanding the Constitution further by looking at issues the nation was dealing with at the time of the passage's adoption. Another way to say this could be; putting yourself in the framer's shoes.

Heeding the Deed, Part 122:59

Heeding the Deed, Part 223:30

Rencontrer les enseignants

Akhil Reed Amar
Sterling Professor of Law and Political Science
Yale Law School

Welcome back.

We're talking about America's unwritten Constitution and we've

come to Chapter Two of the book, America's

Unwritten Constitution, and we're talking about a particular

technique of interpreting the Constitution by focusing not

so much on what the words say, clause by clause or as a whole, but on

how we the people of the United States

actually did enact, ordain and establish the Constitution.

And how later generations of Americans did in fact amend the Constitution.

What did we do?

How did we enact, and amend the Constitution, and,

what, do the procedures that we used in that process?

What, constitutional principals can, and rules

can be deduced, from those procedures?

The founding, I think we can

deduce, the centrality of freedom of expression, free speech, free

expression of political opinion, and the centrality of majority rule.

Both of these things, majority rule and free

speech, were kind of baked into the very

process by which we the people in the

1780s did, in fact, ordain and establish the Constitution.

Now lets flash foward to the next great round of

constitutional innovation after the Civil War and I'm

going to talk about a couple of other principles.

One is a principal of Republician Government.

The principle that the fedral government in particular has very broad

authority to guarantee that each state government have a quote,

republican form. Less technically, and with

that I'm actually invoking a clause of the original written

Constitution, Article IV, Section IV: the United States shall

guarantee to every state in this union a republican form of government.

Now, today I think that this clause can sensibly

be read to provide a strong foundation for a very

robust role of the Federal Government in maintaining that

that the and and and insuring and guaranteeing that each state meet,

very high, very demanding, standards of democracy,

of, of fair and inclusive electoral and

voting practices and procedures. so, today, the federal government

does play a very important role in making sure

that, no state really falls well below a kind

of high national minimum standard of, of democracy, of

Republican form of government, of a electoral exclusiveness and participation.

And, I can point to the words of the republican form of government clause.

I can also point to a series

of textual amendments after the Civil War. The phrase the right to vote doesn't

appear in the original constitution but it appears in no less than five amendments,

the 14th and the 15th and the 19th and the 24th and the 26th.

So, so, there's a whole series of explicit amendments that generate a kind

of a, a tradition of a, of a right to vote, a grand tradition.

But there is also the words of the republican government clause itself.

That the federal government, the United States, is supposed

to guarantee a republican form of government in each state.

Now, if we just read those words as they were

understood in 1787, I'm not sure that,

that, that, that those words would justify a very aggressive, federal

role in making sure that each state maintains high democratic standards.

I think might be a permissable readings of the words of

Article IV as originally understood, but a bit of a stretch.

So what's going to do the work is not

the words in isolation but what happened to those words when we the people of the

United States did amend the Constitution, when we

enacted some new constitutional rules after the Civil War.

And I'm going to focus not on the words of those new rules,

of the 14th Amendment and the 15th Amendment, but the process by

which the 14th and the 15th Amendments, in fact, came about, what

we did, the doing of it, the enactment, the deed, heeding the deed.

And I'm going to argue that in the process of

amending the constitution we the people endowed the republican form

of government clause from an earlier era, from the

founding, with renewed spirit and energy and vigor and vitality.

So, at the founding you could read it as inviting these words, that the

United States shall guarantee to each state

a republican form of government in Article IV.

You could

read these words as justifying a very,

aggressive federal role in making sure that states

maintain minimum standards, you could say for, but

you could read the thing much more narrowly.

You could say, look, all the existing

states in 1787 are obviously republican and

this clause prevents back-sliding, prevents Virginia from

turning itself into a monarchy or an aristocracy.

But as long as Virginia, North Carolina and

Connecticut, or any of the states, basically keep the rules that

they have in place, the federal government can't mess with that.

Because if they keep the rules in place, then that's all that's required.

And even if other states start becoming way, in,

in America and the world start becoming way more

democratic, the narrow reading would suggest that, no state

has to follow along that, that increasing democratic trend.

So, let's imagine a state, it disfranchises the founding, 20% of its

free, male citizenry, adult free male

citizenry because they don't need property qualifications.

And so 20% of adult free male citizens don't get to vote, but that's pretty

much in line with a whole bunch of

other states and that's republican at the founding.

Lets imagine that the other states eventually get

rid of their property qualifications under an aggressive interpretation.

Well, once other states have gotten rid of their property qualifications the laggard

states have to be pulled up and brought back into line because there's this

demanding standard that might, evolve

as democracy evolves and advances. That's the broad interpretation.

But the narrow interpretation is no, look, as long as we're not backsliding, we don't

have to go with this new democratic trend.

An even narrower interpretation might be, well we've

kept the rules in place, the property qualification.

It used to be that 20% of the people failed

to meet that in our state, Virginia or South Carolina.

Now it's 68% because there's less property to go around, more younger sons

are born, so, more people, less property. So only 20% failed, to meet this test

at the founding.

We've kept the test the same, but now 60%,

but we have a back slid, that's the narrowest interpretation,

and if I just had the founding materials, to

judge by, you could say, well that's pretty plausible too.

Remember the South, in a slave holding society,

and I'm not sure that they would have

cheerfully acquiesced in the clause that they had

understood to give the federal government very sweeping

power to tell them they had to let unpropertied

people vote, or free blacks vote, or freed slaves vote.

so, because some free blacks might have been born free.

But, you know, freed slaves are yet another category.

I'm not sure the South would have gone for that at the founding, and I'm not sure

there was a clear recognition that the federal government

could actually require states to meet, evolving and increasingly

high standards of, of democratic inclusiveness just

because the world was moving in that direction.

So, I'm not sure about that, but here's the point.

After the Civil War, that very clause, Article IV, was

in fact interpreted to require states to meet high standards of democracy.

And that interpretation was part of the very process

by which the 14th Amendment was adopted. Forget the words the Fourth Amendment.

How, the 14th Amendment, how did the 14th Amendment come about after the Civil War?

Here's how.

By a Reconstruction statute that said we're not going to let

these old states, these old Confederate states back into Congress, back

into the House and the Senate and the Electoral College,

back into their, normal, relation to the rest of the Union.

We're not going to let them back in.

And we're going to, in fact, treat them as

territories until they meet certain

minimal standards of republican government.

And here's what we're going to require: that they ratify the 14th amendment.

So, this is part of the very process by which the 14th amendment was adopted.

And that they let blacks vote, freed blacks vote.

Both on their new Constitution and thereafter, under their new Constitution.

So, those are their ground rules.

They have to ratify the 14th amendment and let

free blacks vote, for a new state Constitution and thereafter.

And the South says, how do you get the power to do that?

And the North says we are enforcing a guarantee of republican government.

The 14th amendment is all about free speech, free press.

These are central elements of republican government.

You in the South have denied free speech and free press.

You tried to shut down discourse.

You've made it a capital offence to criticize slavery.

You wouldn't let Abraham Lincoln's name even

appear on the ballot south of Virginia.

He got zero popular, not electoral, popular vote south of

Virginia cause you created closed,

intolerant society and unrepublican government.

You actually really have backslid, in fact.

You've, and, and, and the Republic almost failed because of that.

We're not going to let you do that again, we're going to impose this on you.

And, by the way, we in the North have

already agreed that these are fair principles.

We in the North have, have, more than two thirds of

the northern states, the, the states that actually do have fair

elections, we've already agreed to this, and that's the condition for

you to come back, you have to ratify it as well.

And the South says, well, okay, but now why do we have to let blacks vote?

By the way, in the north, you don't let blacks vote in every northern state.

And here's what the republicans say.

Yeah, we don't and actually that's crummy.

But in New York, it's 2% of the free population that

are blacks that we don't let vote, or in Pennsylvania it's 3%.

In South Carolina it's over 50%.

So, you really are unrepublican when you're letting, you know, when you're

excluding more than 50% of your free adult males citizenry from voting.

That's not a republican government.

So, in the north it's a small percentage, in the south it's a big percentage.

And the South says,

well, but we didn't let them vote before the

Civil War, and we were allowed into the Union.

And the North says, well when you didn't let them

vote, let's be clear, they were slaves and it's one thing

not to let slaves vote, but not that they've become free,

it's a very different thing to not let free people vote.

You actually really have backslid in important ways.

Used to, no state at the founding excluded more than half of

it's free male citizens from voting, but that's

what you're now doing, now that they've become free.

You can't do that anymore.

Even if you've kept the same literacy test in place.

Now it is back sliding, because that originally excluded only ten percent

of your free population, adult free male population, and now it's excluding 60%.

So, you really have backslid, they say. In any event, it doesn't matter.

Even if it's not backsliding we read the republican government clause to allow, and

indeed invite, us to hold you

to the highest standards of republican government.

None of the Northern states supress speech the way you are, and free press.

So, we're going to hold you to free speech and free press.

The northern states, none of 'em have broad disenfranchisement of the

sort you do, so we're going to hold you to that high standard.

And the point is, you could think that

that was, it's a, it's a fair interpretation.

It's not an inevitable

one it's but it's baked, that

interpretation, is baked into the constitutional cake.

It's part of the very process in which the 14th Amendment and is

therefore now a new gloss on the old words of the republican government clause.

And if you want to think about what

the republican government clause means as a matter of

original intent you have to look, not just

at the founding, but how those words were reinterpreted

in the very process of adopting the 14th Amendment.

This was, in Charles Summers' famous phrase, he was a liberal lions

senator from from Massachusetts, kind of in the Ted Kennedy model or something.

He called the republican government the sleeping giant

of the Constitution that has awakened from slumbers.

And it becomes the most important clause in the Constitution

during the ratification, of the 14th Amendment during the enactment process.

And my claim is if we pay attention to how we the people actually did, not just

ordain the constitution but amend it, this is now baked into the constitutional cake.

A broad reading of republican government, and by the way, when, when the

reconstruction Republicans did this they were

basically following Marshall's, John Marshall's interpretive principles.

Maybe we're stretching a clause, but we're doing so to make sense

of the Constitution as a whole.

We looked the other way when slavery, as a

cancer, grew and grew and grew and corrupted the South.

And, and, and we did that at our peril because when we looked away

during the Antebellum Period this slavery, this

cancer grew and it almost destroyed us.

That's the civil war.

In order to make our system work we have to end that cancer.

We have to sort of excise the whole thing and that basically

means holding states to the highest standards of democratic accountability.

We had basically looked the other way.

We had allowed maybe de facto backsliding.

We're not going to do that again because that turned

out to be almost the death of us all.

That the new 14th Amendment vision, you can see

it in some of the texts of the 14th Amendment.

But my claim is you can also see it in

the very process, by which the 14th Amendment was adopted,

which to repeat, involved very expansive reading

of the republican government clause authorizing the

federal government to hold states to higher

and maybe even evolving standards of democracy.

Which, now when a bunch of states move in a democratic direction the federal

government has a proper warrant and authorization

for bringing the laggard states in line.

And that, along with five amendments that say the

right to vote, beginning with the 14th, all after

the Civil War, help explain a feature of today's

Constitution, which is, there's a much more robust protection

by the federal government of, of, of, of voting rights.

And by the way, recently the Supreme Court

said, you know, we don't think this Voting Rights

Act of 1965 is pretty fair, because some

states, because they have crummy voting records, are required

to, to to get special federal approval for, for new voting rules.

That doesn't seem fair.

Well, gee, if that's not fair, if

that's unconstitutional, the 14th amendment itself is unconstitutional.

because the 14th amendment itself came about, because certain states,

because they had crummy human rights records, crummy voting rights records

were held to higher federal standards, were in effect made

to, to pre-clear, to get all their, their, new Constitutions pre-approved

by the federal government, and only some

states, and because they had crummy voting records,

and frankly, it's pretty much the same states

as the Voting Rights Act of 1965 covered.

So, if you think that, that the Voting Rights Act of 1965

is somehow wrong or unfair because it singling out some states because they

have bad voting records for special

federal monitoring, well, you've got a problem

not just with the Voting Rights Act, but with the 14th Amendment itself.

Or put differently,

if you understand the argument from enactment, you

understand that one of the best arguments for

the Voting Rights Act is it's actually faithful

to the very process by which the 14th

and the 15th Amendments were themselves adopted, which

involved the same kind of Federal preclearance of

some states and only some states who had

really bad human rights and voting rights records.

Now, one final application, a national draft.

Today, Supreme Court says a national draft is okay.

But it's not clear that the framers would have understood that.

You could point to the clause that the constitution says

power to raise armies and, and invoke John Marshall's test.

Well, we want to give the government,

we want to interpret common defense powers liberally.

But you can have an army without

a draft, you can have volunteers, and indeed, at the time of

the framing, I think people thought the army was going to be volunteer.

They didn't expect a draft army any much, any more than they expected that

the federal government was going to, for example,

fill the federal judiciary by drafting judges.

so, they did imagine that you might have a draft, but it would

be militias, at the local level, and when you were drafted at the local

level by a militia.

And even after that militia was federalized, you'd be

working alongside your neighbors, your school teacher, your, your

Uncle Fred and, and, and the harshness of military

discipline would be softened because you're in your community.

The folks who are officering you are people that you elected and that are

going to, you're going to, you lived with be

before, that you're all going to have to

go back to, to Mayberry.

You know, to your hometown afterwards and live with each other.

So, I think the framers may have expected.

That it would be local militias that would have

a draft, and not a draft on, That's at

least a plausible, perhaps the most plausible, interpretation of

the founding document that sharply distinguishes between armies and militias.

And indeed, no less a nationalist than Daniel Webster actually said that

he thought, in the 1812 war, that a national draft would be unconstitutional.

When a draft actually does emerge during the

Civil War, because the supporters of it are

worried that it might be unconstitutional, they actually

say you can buy your way out of it.

You were drafted into a national army, but you can pay

money, you can get a substitute and you can get out it.

So, they say it's really a tax, it's not, it's not really a draft law.

So as late as the 1860s,

early in the middle of the Civil War, it's not so

clear that you can have a, a federal draft but, the army

was part of very process by which the 14th Amendment was

adopted and the framers would have all sorts of fits about that.

They were worried about central armies.

They associated them with absolute tyrants, red coats, the

Brits, Hessians, but by the time the of Civil War,

actually, the army they're the good guys, men in blue, US

Grant, Ulysses S Grant, US as in like United States Grant.

So, so, the framers celebrated militias, the

Reconstruction generation had more confidence in army.

just, and so much confidence that they actually used that army

to help implement, the very process by which the 14th Amendment

was ratified.

The framers, I think, would have been aghast by this.

But now we have a new role for the army that

is part of the very process by which the Constitution is ratified.

Take a move like Saving Private Ryan.

Now that's a vision of the army today.

And it's all of us, you know, ordinary people.

Tom Hanks is a school teacher from Pennsylvania

and he's got a southern sharpshooter marksman in his,

platoon, and, and he's got a couple of urban

ethnics from like New York City, or, or thereabouts also.

So, that's America.

Rural Pennsylvania, and New York City, the

rural South, and they're all there together.

The framers would've had a vision of people kind of all there together,

but it would've been in the militia,

people from the same locality all together.

Today,

Americans don't quite see the U.S. Army as other, as foreign, as,

they see the army as us. And my claim is that that different vision

of the Army was part of the very process by which the 14th amendment was adopted.

It was baked into the constitutional cake to some extent by

having an army, not a militia, but an army help supervise

the Reconstruction of the South and their reintegration of

that region into a proper relationship with the Union.

When they eventually came back into the House, and the Senate,

and the Electoral College, and ceased in effect to be territories.

They had in fact been demoted to territories, during this, the Civil

War and when they came back in as states on, on equal footing.

The Army played an important role in that, that's part of the very,

it's not in the words of the 14th Amendment

to the 15th, this is not a textual argument.

Instead, an argument attentive to how we the people did amend.

It's the doing, the deed, the enactment, the amendment.

And I want to just end as I typically do at

the end of each chapter by pointing out the picture.

This is from 1917, and here's what you need to, I think, notice about it.

It says don't wait

for the draft, volunteer. So, here's the payout.

By 1917 its absolutely clear that a federal

draft is completely constitutional, and the Supreme Court in

fact upholds it in just this era in a

very famous set of cases, the Selective Service cases.

So, by the early 20th century, the constitutionality of the

draft, a federal draft, a national draft, is well established.

It wouldn't have been at all clear I think that that was

okay, that that was necessary and proper at the founding as late

as the War of 1812, Daniel Webster who's a big nationalist, he's

opposing the constitutionality of the federal draft, so what changed in between?

well, one of the most important things that changed is the role

of the Federal Army, both, during the Civil War, and, for my purposes,

immediately thereafter, the role of the Federal Army

in helping to give birth, to the 14th amendment.

Helping to be a part of this, new birth of freedom, that,

basically re-founds the nation, and just as we had to pay attention

to how the Constitution itself was

originally ordained through a process of free

speech and majority rule, we have to be attentive to the process

of how the, the process by which our Constitution was, in fact, amended.

And in the 1860's, that's a process that involves

a reinvigoration of the idea of republican government and

the federal government's role in protecting and

guaranteeing republican government to the individual states.

And it's also a process that involves a

reinterpretation of the role of the Army in America.

Okay, we've gone through, now, a couple chapters of

America's Unwritten Constitution, a couple of tools and techniques.

We're not done yet, so stay tuned.

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