An introduction to basic techniques of constitutional interpretation.
Heeding the Deed, Part 2
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From the course by Yale University
America's Unwritten Constitution
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From the lesson
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.
Meet the Instructors
Akhil Reed AmarSterling 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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