[BLANK_AUDIO] Let's talk in a little more detail about six particular texts that are central elements of what I've been calling America's symbolic Constitution. The claim is not that they are in every way exactly like the written Constitution. The written Constitution is unique, it's special, it towers above everything else, and where it is clear, it trumps. But where there's ambiguity in the written Constitution, these other texts come in, I argue, to help take up the slack. To fill in the gaps. Take the Declaration of Independence. It says very famously that there, that there should be no taxation without representation. That's one of the reasons that we were revolting from England is that Parliament and the King have conspired to try to impose all sorts of taxes on Americans, and Americans, the colonists haven't voted for any of these things. They're being taxed without representation. Now that idea helps us understand, yet again for example, the rightness of McCulloch vs Maryland. On one of the questions in the case, remember? One of the question is. Once the federal government has set up a national bank, are states allowed to impose discriminatory tax on that bank? And Marshall says, no, there are not. And you might say, but Professor, you don't need a Declaration of Independence for that, you've to the Constitution's Supremacy Clause. But Marshall doesn't rely solely on the Supremacy Clause of the Constitution that says federal law trumps state law, and here's one reason why. The federal law in McCulloch creating the bank, did not in so many words explicitly say that banks can not tax it. So, if the federal law had said that, then it would have been a simple, easy supremacy case, but, but, the law didn't quite say that so, it was a little less clear cut textually. But now some structural principles come in and Marshall says here is a structural principle, when Maryland is imposing a tax on that bank it's basically, that national bank that was created by the people of all the States. Maryland is in effect imposing a tax on Virginians who supported the bank and New Yorkers and, and Connecticut residents and Rhode Islanders and that's, in effect, improper taxation without representation. Maryland can impose tax on its own constituents, but it shouldn't oppose a tax on out-of-staters, and a kind of implicit appeal, to this Declaration of Independence idea, which is very central of them in McCulloch when you read it. That its one thing to impose a tax on people who vote for you, and if they don't like the tax, they can vote the bums out, its very different to impose a tax on unrepresented persons. Take another area of law that, that some justices, Justices Scalia and Thomas have, have raised and eyebrow about is called the Dormant Commerce Clause. And here's how it works. There is the so called commerce clause in Article I, Section VIII, and this says Congress has power to regulate commerce among the states, interstate commerce. Fine. But the courts have construed the Constitution, as a whole, to say that even where Congress has not passed a law, even where Congress has been silent, has been dormant, has been sleeping, so to speak, there are certain things that states can't do that interfere with an integrated national economy. States state A for example, let's say New York can't impose special and discriminatory taxes on soft drinks that are imported from Connecticut or New Jersey from out of State. New York can't impose also sorts of burdens on out-of-staters in all sorts of ways, and can't discriminate out-of-staters in, in various ways, even if Congress hasn't spoken, even if Congress has been silent, dormant. The Constitution itself as a whole is construed to prevent certain kinds of state discrimination against out-of-staters. You might say well, how did they make that up? One thing is even that, that Congress has, I think pretty clearly encourage the court to do this. And, and Congress, if the court tried to get out of that business tomorrow, Congress would pass a statute saying saying, no, we want you to keep doing what you're doing, because we can't pass a statute anticipating every single way in which every single state might interfere with an integrated national economy, but we want you to keep doing what you were doing. And if we didn't like what you had been doing, we could have easily changed it, and we didn't. But here's a different argument for the Dormant Commerce Clause. That it's an implementation of this idea of no taxation without representation. New York can impose all sorts of disadvantages and impositions and obligations on his own citizens because they're represented, but it really shouldn't be doing that to the people of New Jersey, or Connecticut or what have you because that's, in effect, a violation of this declaration idea of no taxation with, without representation. An idea that you see as a in iconic cases like McCulloch v. Maryland. Let's take the Federalist Papers. They I think, were a reminder that we have to read the Constitution as a whole, because the Federalist Papers are meditation on the Constitution as a whole. The Federalist Papers, the ones that were most influential, actually, were the early Federalist Papers that reminded us that we created a Constitution for national security, geostrategic reasons. Now, this, I think, can be deduced from the text of the Preamble which talks about a more perfect union in common defense, from the language of Article I, Section 8 that talks again about common defense right at the very beginning as being important. So, we see these traces in the text, but to the, in the text, but to the extent that there's any ambiguity about that, the Federalist Papers kind of come in and supplement that. And it's the early Federalist Papers that are the most important, way before you even get to the Federalist number ten. They basically say, we're forming an indissoluble union, and we're forming it for geostrategic, and national security reasons. And that's the central point of the Constitution. And a case like McCullough v. Maryland is going to come along and say, that's actually why you can have a national bank, because a national bank is useful for national security purposes. It's useful to help pay the army on site, and on time. so, so the Federalist Papers here help confirm to the extent there's any ambiguity, the centrality of national defense, common defense as a key constitutional purpose. Let's take the Northwest Ordinance. This is one that you haven't perhaps been as familiar with. This was a, an, a resolution passed by the, under the Articles of Confederation in 1787. It was enacted at the very moment that the Philadelphia framers were coming up with the constitutional plan. And the Northwest Ordinance was a plan for how the states north of the Ohio River, or the territory north of the Ohio River what eventually be turned into states and admitted into the Union. Any states would later become Michigan, Ohio, Illinois, Indiana some parts of Wisconsin, some parts of Minnesota. And as soon as the Constitution was adopted the first Congress, in one of its very first statues, they said we endorse the Northwest Ordinance. We now make it a federal statute, because it had been passed under the Articles of Federation, but we approve it and this basically was a blueprint for the rest of westward expansion. Territories loomed very large in the early republic. The early republic of the United States wasn't just states. It was states and territories and the District of Columbia. And Northwest Ordinance is a blueprint for how the states are going to be organized and it's a kind of proto-Constitution for the people of the Northwest. it's, it's a, a, a huge chain in the link connecting the biggest project of the entire early republic, which is taming the west, turning the west into a series of, of, of democratic republican governments that are going to be admitted on equal terms with the other states. That's, the biggest basically project before the Civil War. And the Northwest Ordinance, basically, is an early blueprint for that. And it links that project up with what will become the next great project, which is ending slavery. because, as I mentioned before, the Northwest Ordinance actually says, no slavery in, in the Northwest. Also now, why would that matter today, because we have the 13th Amendment, professor. Well, the Northwest Ordinance says that these states should not be, from the West, should not be treated as colonies. We shouldn't, on the East coast, try to lord over our Western neighbors the same way that the Brits tried to lord over us. These states should be these territories should become states. The states should be admitted to the Union on an equal footing, on sort of equal terms, roughly speaking, with the, with the earlier states. That's a deep Constitutional principle even if unwritten. And it's, and it's celebrated by the Northwest Ordinance and here's what it means for example. That if one day Puerto Rico has a very clean referendum saying we want to by, that a clean majority vote, we want to be a state we don't want to be a kind of dependency anymore. Nothing in the written Constitution actually requires that the rest of us say, okay, we're going to admit you as a state, or let you go free. And the written Constitution might permit, if you read it, you know, strictly, America as a colonizing colonial power. But the unwritten Constitution, the Northwest Ordinance is saying no, that's wrong. That's not what we're about. In our DNA is the idea that actually, we should not lord over other people. So if the people in Puerto Rico really want to be independent I'm sorry, seem to want to be a state here's our choice. Admit them as a state, along with all the other states on equal terms or cut em loose. That's our choice. We can decide whether we want them but, but we can't lord over them indefinitely if they don't like that status. If they are comfortable with it, that is a different thing that's with consent. But the Northwest Ordinance might help us think through important issues going forward in a way that, what, the Constitution's text might be ambiguous, the Northwest Ordinance and its anti-colonial idea is more clear. So I've told you a little bit about the Declaration of Independence, a little bit about the Federalist Papers and what it might mean today, some, some applications on, on national security, the Northwest Ordinance. Let's take Lincoln's Gettysburg Address. The theme of this address. There are many themes, but one of them is all about sort of life and death. He's at a graveyard a cemetery. He's presiding over a certain commemoration, memorial ceremony. Bodies are being put in the ground. And he is talking about how out of this death and destruction there, we the living have to rededicate ourselves and find meaning, find new purpose. We, the living, need to experience what Lincoln will call a new birth of freedom. He begins with the, the birth of imagery see. Four score and seven years ago our fathers brought forth on the, brought forth like we're bringing forth a baby, on this continent a new nation conceived. Birth image, in liberty and dedicated to the proposition that all men are created equal. We were born as a nation, committed to a, a certain idea of equality. And then at the end, he says we must have a new birth of freedom amidst all this death and destruction. A new birth of freedom. And the 14th Amendment is going to play off of those words. It's going to begin this, this new birth of freedom. With freedom at birth, everyone born in America, that key word is born a citizen. Born a free citizen. Born a free and equal citizen. So I think when you read that first sentence of the 14th Amendment through the lens of the, of the prism of the Gettysburg Address, you see the significance of a certain word that otherwise you just might miss. This idea of born. We're born equal. This is Lincoln's gloss on Jefferson's idea that we're created equal. So what does that birth equality mean? It means the 14th Amendment means just what its text says. It's not limited to race. They could have said race. They say it in the 15th Amendment but this says we're generally, we're born equal. We're born equal male and female, Jew and gentile, black and white. A deep idea that your status should not depend on, on the conditions of your birth. A so if your born third in the family you shouldn't have lower inheritance writes than if your born first in the family, no primogeniture. By the way that's a principle the Northwest Ordinances too. And Lincoln grows up in the Northwest. That's, that's, that's his, his, school teacher in effect. Is the Northwest Ordinance. His mother's milk the Northwest Ordinance. So, we are born equal. And that idea which you can see textualized in the 14th Amendment is a meditation, is a reflection of Lincoln's Gettysburg address. Lincoln's vision is being constitutionalized and textualized in the 13th, 14th, and 15th Amendments, and if you want to understand the full significance of those written texts, you need to see them, read them, through the prism of what Lincoln has been saying He dies and the nation experiences this new birth of freedom. I'm going to come back to that picture of Lincoln at the very end of this lecture as, as we always come back to the pictures at the end of chapters. But before I do, let me just say a couple of words about Brown v. Board of Education and the I have a dream speech, both of which try to, to carry forward Lincoln's vision, and do so in very interesting and distinctive ways. Brown, of course, is a meditation on that idea of equality, of birth equality. Particularly with reference to racial equality, that we're born equal, black and white, and the government should not be in the business of saying whites are born above blacks, that they should be, that they are born lords and blacks are born surfs. That's Brown vs. Board of Education's meditation on Lincoln's, idea. But even once you say, okay, the Constitution says equal, the written Constitution, and separate really isn't equal, the government shouldn't be in the business of separating the races in order to create inequality. And you can say, but if you say the 14th Amendment is pretty clear about that. What about the further question whether of the government has an affirmative duty or government should in some way be encouraged, not nearly to avoid racial segregation and separation by law, but what about the idea that the government actually should affirmatively encourage integration of the races bringing together the different races. Does the 14th Amendment require that or, or encourage government to go that far, to, to say integration as opposed to mere desegregation, but affirmative integration is, is actually a special constitutional value. I'm not sure the 14th Amendment's words say that. I think there's some real different possible interpretation here. We, we come again to the idea that sometimes the written Constitution is quite ambiguous. It says equal but I'm not sure it really says integration in a strong way. And separate can in some spheres in fact even be equal. This of sex segregation in, in sports teams and locker rooms, and gym classes, and so on. So separate, in theory, can be equal sometimes. And even if the government should be in the separation business. Sh-, sh-, we want to go further, say government should be actually, in the integration business. I'm not sure the 14th Amendment is so clear. The 15th Amendment does say that blacks and whites are going to vote and vote equally, and therefore be in the same room when they're voting in a legislature. Or they are going to be deliberating together in a jury bo-, in a jury room or sitting together in a jury box, but, but those arguably are more modest spaces of integration. That's not the entire world. That's the Legislature. That's the, the, the jury deliberation room. That's the jury box. But once we understand that Dr. King's speech is an important element of our symbolic constitution, I think we do see a little bit of a, of, of the pull of a more affirmatively integrationist vision, more affirmatively integrationist frankly than anything in the written Constitution, strictly read. On that day, Dr. King ends by summoning up a vision. His dream. His dream is of black boys and white boys, children black girls and white girls, all of God's children joining hands. Touching each other, being together, joining hands, integrated and singing, iIn the words of the old negro spiritual, free at last, free at last, thank God Almighty, we are free at last. And it's not merely that's his vision, his words are integrationistic. the, the, the, the optics are integrationistic too. That's a day in which Americans of, of different races are actually coming together in DC to, to call for civil rights and voting rights. America is witnessing, as King is speaking an integrationist moment. A joining of hands across the racial divide. A vision not merely of liberty and equality, but a vision of actually of genuine fraternity. Of, of, of racial integration and solidarity. Far more explicit, I think, and more vivid than probably anything in the written Constitution, but an important element of today's unwritten Constitution, of our constitutional culture surrounding the terse text. Okay, so just in conclusion, back to Lincoln. This picture of Lincoln is taken just weeks before he delivers the, Gettysburg Address. It's 150 years ago. It's November 1863. So, almost exactly 150 years ago this season. And I just want to step back and, and suggest that although we talk a lot about the founders. We talk about James Madison as father of the Constitution. We talk about Thomas Jefferson who wrote the Declaration of Independence. They were slaveholders. They died as slaveholders. They did not free their slaves at their death unlike Washington, who tried to take steps in that direction. Jefferson and Madison found a political party that's based basically on slavery, gets its votes on the southern side. That's where their political bread is buttered. Their party will become, the party of Jackson, Andrew Jackson. The party of Roger Taney and Dred Scott will drive America over a cliff because of of its pro-slavery tendencies, and, and the system will almost die as a result of that. Call that near-death experience the Civil War and in it's ashes it is reborn. American experiences a new birth of freedom thanks to this man, Lincoln, who generously gives the credit to Jefferson. He says that he's just you know building on Jefferson's idea that all men are created equal, but, but Jefferson never walked the walk really as President or ex-President. Maybe he talked the talk Jefferson is a complex character, but what you need to understand is that our Constitution today isn't really James Madison's. Isn't really Thomas Jefferson's. Their Constitution failed. We today, my fellow Americans, live in Lincoln's constitution. There was a House. It was divided against itself because of slavery. It fell because of slavery. It was rebuilt. We call that rebuilding, The Reconstruction. It was a new birth of freedom, superintended by Lincoln. He lives to see the 13th Amendment proposed, but not ratified. After his death, a 14th Amendment codifies his vision that we're all born equal, created equal. A 15th Amendment constitutionalizes almost his last wish. In his last public address he actually says, you know, I think that blacks should actually have voting rights equally with whites in, in, in many situations. He had said that publicly before, he had believed it, he, he had grown, he had evolved over the course of his presidency. This was not a position he had early on, but this was one that he came to and he shared with an audience two days before his assassination, maybe three days before his assassination, and the 15th Amendment codifies that vision, and the 14th Amendment codifies that vision. We today, my fellow Americans, live in Lincoln's house, a house where equality is at the center not just racial equality, but broader forms of equality, of birth equality. So even though sometimes we give the credit to Jefferson and Madison, as I said, I think we really live in, in Lincoln's house. He the man. Well Professor, you said all men are created equal. You said, he the man. What about women? What about women, indeed? That's what we're going to talk about in the next chapter, so stay tuned. [MUSIC]
