America's Unwritten Constitution: The Precedents and Principles We Live By (10 page)

This technique is not the only proper way to find America’s unwritten Constitution. In the next chapter, we shall deploy a quite different technique for staying true to the written Constitution while going beyond it—a technique that views “the Constitution” not as a document, but as a deed.

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The political backstory here is that Treasury Secretary Alexander Hamilton’s congressional allies in 1792 did not wish to boost Hamilton’s cabinet rival, Secretary of State Thomas Jefferson. So Congress did what came naturally—excluding both cabinet officers from the line of succession and instead privileging its own chieftains.

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For example, a North Carolina statute, enacted in 1830 and revised in 1854, made it a crime to circulate “any written or printed pamphlet or paper…the evident tendency whereof is to cause slaves to become discontented with the bondage in which they are held… and free negroes to be dissatisfied with their social condition.” First-time offenders could be whipped, pilloried, and imprisoned for at least a year. Repeat offenders could be put to death. In 1860, North Carolina’s legislature decided that this law was too soft on crime, and instead authorized capital punishment of first offenders. In 1859, a North Carolina grand jury did in fact indict, and demand the extradition of, various northern political leaders who had lent their names in support of Hinton Helper’s provocative (and presciently titled) antislavery pamphlet
The Impending Crisis
. More than sixty Republican congressmen had endorsed the pamphlet and had proposed to distribute an abridged version as a campaign tract.

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At the time that he served as the Senate’s presiding officer during the 1805 impeachment trial of Supreme Court Justice Samuel Chase (no relation to Salmon), Vice President Aaron Burr stood indicted by both New York and New Jersey for having killed Alexander Hamilton in an 1804 duel at Weehawken. During the Chase impeachment, newspapers quipped that ordinarily “it was the practice in Courts of Justice to arraign the
murderer
before
the Judge
, but
now
we behold
the Judge
arraigned before the
murderer
.”

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Pop quiz: Name Lincoln’s vice president in his first term. Hint: The answer is not Andrew Johnson, but someone whom few Americans today can easily recall—a fact that should remind us that vice presidents are not always perfect substitutes for presidents. This was especially true prior to a pair of mid-twentieth-century amendments—the Twenty-second and Twenty-fifth Amendments, to be precise—that have elevated the constitutional and electoral status of vice presidents.

DON’T WAIT FOR THE DRAFT
(1917).

By the time of World War I, the constitutional propriety of a national draft seemed well settled, even though most Americans in the late 1780s and early 1790s had envisioned a federal army composed of volunteers, not citizen conscripts. While nothing in the text of any subsequent amendment explicitly or implicitly addressed the issue of conscription, the very process by which the Fourteenth Amendment was enacted in the wake of the Civil War provided strong—albeit unwritten—support for a national draft.

I
N THE FATEFUL YEAR FOLLOWING
the unveiling of the Philadelphia delegates’ proposed Constitution in September 1787, specially elected ratifying conventions across the continent enacted the proposal into law, much as the houses of an ordinary legislature might enact a statute. The specific enacting procedures and protocols that brought forth the Constitution are rich with meaning. They invite interpretation.

The sort of interpretation I have in mind here is not interpretation of
what
the Constitution says as a text, explicitly or implicitly. Rather, it is interpretation of
how
the Constitution became law. To do this sort of interpretation, we must first inform ourselves about the procedures through which Americans in 1787–1788 enacted the Constitution, and must then explore the implications and entailments—the deep meaning—of these enactment procedures. Similarly, we must probe and ponder the later procedures and protocols that generated various constitutional amendments. After all, amendments, too, are interpretable instances of constitutional enactment. On a surprisingly wide range of issues—the freedom of speech, the status of majority rule, the role of religion, the scope of suffrage rights, and the legality of conscription—we shall see that how the Constitution was originally enacted and later amended is every bit as meaningful as what the text as a whole expresses and implies.

THE LAW OF OUR LAND
came to life on a continent awash with speech and through a process that teemed with talk of the freest sort. In an extraordinary efflorescence of accusations, addresses, allegories, analyses, appeals, arguments, assemblies, boasts, books, canards, cartoons, complaints, conversations, costumes, debates, deliberations, denials, diatribes, effigies, encomiums, essays, exaggerations, exegeses, exhortations, flags, harangues, insults, lamentations, letters, misstatements, opinions, paintings, pamphlets, parades, petitions, plays, pleas, poems, prayers, prophesies, quips, sermons, songs, speeches, squibs, symbols, toasts, and writings of every
sort, Americans practiced an amazingly vigorous freedom of expression in the course of enacting the Constitution. Sharp-elbowed political maneuvering there was aplenty; widespread punishment of exuberant expression there was not.
¹

Although much of the action took place informally and “out of doors”—in taverns, town squares, newspapers, and neighborhoods—the state ratification conventions were parley places par excellence. Assembling outside the confines of everyday government, these specially elected, single-purpose conventions were viewed as personifying the American people themselves. Conventions thus enjoyed a democratic mandate to say yea or nay to the Constitution superior to any authority that could be claimed by mere state legislatures filled with ordinary lawmakers elected in the ordinary way. Even in conventions where one side—Federalist or Anti-Federalist—entered with an apparently decisive majority, delegates on the other side, as a rule, freely spoke their piece. Often a speech or argument on a particular issue prompted an apt counterargument. At times, delegates even pronounced themselves persuaded by something said by men on the other side.
^2
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Americans understood what they were doing as they were doing it, exulting in the luxuriant freedom of expression being acted out before their eyes and ears by their hands and mouths. Future justice James Wilson, America’s preeminent theorist of popular sovereignty, put it best at the outset of the Pennsylvania ratifying convention, before any state had agreed to the Philadelphia plan: “[I]n our governments, the supreme, absolute, and uncontrollable power remains in the people, [who] possess over our constitutions control in
act
as well as right.…
These important truths, sir, are far from being merely speculative. We, at this moment, speak and deliberate under their immediate and benign influence
.” Wilson returned to this enactment theme several days later. In America, he explained, sovereignty “continues,
resides, and remains, with the body of the people.
Under the practical influence of this great truth, we are now sitting and deliberating
, and under its operation, we can sit as calmly and deliberate as coolly, in order to change a constitution, as a legislature can sit and deliberate under the power of a constitution, in order to alter or amend a law.”
³

On this issue, American constitutional theory and practice broke sharply with long-standing English law. In England, Parliament, not the citizenry, was sovereign, and ordinary Englishmen did not in law or in fact enjoy a broad freedom to criticize incumbent officials or the government as a whole. English freedom of the press meant only that printers were free from government licensing schemes and other sorts of prepublication censorship. If English printers in the late 1780s upbraided powerful men or institutions, these printers were vulnerable, both in theory and in practice, to postpublication punishment or liability. Across the Atlantic, by contrast, citizens criticized officials, officialdom, and social institutions (including slavery) with abandon—sometimes under pen names, sometimes more openly. In the years between the winning of American independence and the Constitution’s ratification, few legal sanctions actually operated to limit boisterous political expression.
⁴

In a famous Virginia tract penned during the Adams administration, James Madison reminded his audience of this history as he denounced the repressive Alien and Sedition Acts of 1798: “[T]he practice in America must be entitled to…respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of [English] common law. On this footing the freedom of the press has stood; on this foundation it yet stands.” As an exclamation point, Madison reminded his audience that
without this robust freedom of expression, perhaps the Constitution itself would not have come into being
. Had sedition laws “forbidding every publication that might bring the constituted [government] agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing, at this day, under the infirmities of a sickly Confederation?”
⁵

Though the Philadelphia drafters had incautiously failed to include an
explicit clause affirming a sweeping right of free speech for ordinary citizens, such a right was nonetheless an intrinsic and indispensable, albeit unwritten, element of the Constitution as actually enacted. This right therefore existed as a core component of America’s Constitution even before the adoption of the Bill of Rights, which textually codified Americans’ right to express themselves via speech, press, petition, and assembly.
⁶

Most Americans today associate the right of free expression with the First Amendment. It is helpful to remember how that amendment came to be. The original Philadelphia plan contained no explicit guarantee of citizen free speech and no standard Bill of Rights resembling various state constitutional bills of rights already on the books. In the great ordainment debate of 1787–1788, Anti-Federalists highlighted this defect. Federalists listened, and some were persuaded. A consensus began to emerge that a Bill of Rights should indeed be added once the Constitution came into effect.

The text that we call the Bill of Rights and the subset of that text that we call the First Amendment thus came about as a direct result of this epic national conversation. Aptly, the textual guarantee of freedom of speech arose thanks to the actual practice—the popular incarnation and acting out (or, if you will, the enactment)—of freedom of speech in the Constitution-making process. The text itself harks back to this earlier experience by referring to
“the”
freedom of speech and of the press as a preexisting right that is merely affirmed and declared—not created—by the First Amendment.

EXACTLY WHAT SORT OF CONSTITUTIONAL ARGUMENT
is this argument from enactment? At root, enactment arguments form a subspecies of historical argument, but a particularly interesting subspecies, partaking of some of the strengths more typically associated with arguments based on the Constitution’s specific text and overall structure.

Many standard historical arguments are only loosely connected to the actual constitutional text. For example, suppose a constitutional historian were to argue for a broad constitutional right of citizens to be free from federal censorship by noting that a handful of leading Federalists in 1787–1788 asserted that the Philadelphia plan withheld from Congress any
general enumerated power over freedom of the press. Skeptics might point out that there were other men at the time who said something different; or might ask how many people in the ratification process actually heard this handful of Federalist apologists; or might wonder how many people were in fact persuaded by this Federalist argument; or might worry about where the Constitution’s text specifically prevents Congress from using those powers that are enumerated—such as the powers to govern the territories and the national seat, to regulate interstate commerce, and to adopt tax laws—in ways that threaten the press.

By contrast, the argument from enactment offers a tighter, more intrinsic connection to the Constitution. The claim is not that free speech generally prevailed on the ground in postcolonial America. (In fact, loyalist speech was suppressed during the Revolution.) Rather, the special twist is that the very act of constitutional ordainment itself occurred in and through a regime of boisterous, virtually uncensored free speech. In this respect, the argument from enactment history functions like a standard textual argument, which also focuses tightly on the Constitution itself. But the enactment approach understands the Preamble’s self-reference to “this Constitution” as a deed as well as a text—a doing, an ordainment, a constituting, a performative utterance. In short, an
enactment
, reflected in the text itself: “We the People…do ordain and establish this Constitution.” Exactly who did this and how? These are the questions highlighted by the enactment approach.