Abstract
Much of contemporary constitutional theory underestimates the disharmonies within and disharmonies of constitutional orders. This article examines the dissonance characterizing constitutional identity that is present either in the disjunction between a constitution and the social order within which it functions, or between commitments internal to the document itself. From very early on, American framing of rights has revealed a tension between individual and collective meanings, between rights of persons and rights of the people. This article explores the manifestation of this tension in the evolution of the vexing concept of unenumerated rights. While expressive of the particularities of the American constitutional experience, the story illustrates a broader developmental process that is endemic to the constitutional condition.
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Notes
Quoted in John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights (Madison, WI: The University of Wisconsin Press, 1986), 200.
Laurence Tribe, “A Constitution We Are Amending: In Defense of a Restrained Judicial Role,” 97 Harvard Law Review 433 (1983): 440.
Laurence H. Tribe, “The Idea of the Constitution: A Metaphor-morphosis,” Journal of Legal Education 37 (1987): 173.
Ibid.
Bruce Ackerman has developed a non-text based understanding of constitutional change, which in the American context means forgoing an exclusive reliance on Article V's amendment procedures. He finds “revolutionary reform of the old regime” emanating from efforts that “did not respect established norms for revision.” Bruce Ackerman, We the People: Transformations (Cambridge: Harvard University Press, 1998), 12. In two volumes he has examined several “constitutional moments,” or transformative exertions of popular sovereignty. These include post-Civil War developments that culminated in the formal incorporation of Martin Luther King's promissory note. He believes that these constitutional moments fundamentally redefined constitutional meaning in the United States. Bruce Ackerman, We the People: Foundations (Cambridge: Harvard University Press, 1991); Bruce Ackerman, We the People: Transformations. But in distinguishing between normal and transformative change, has Ackerman provided an adequate understanding of constitutional identity? John Finn cogently argues that he has not and that the account fails to identify “who ‘We the People’ are, and how we are constituted.” John E. Finn, “Transformation or Transmogrification? Ackerman, Hobbes (as in Calvin and Hobbes), and the Puzzle of Changing Constitutional Identity,” Constitutional Political Economy 10 (1999): 355. This alleged failure results from a miscalculation of the significance to be attached to entrenched constitutional principles. Thus, Ackerman's commitment to “dualist democracy” (requiring deference to all legitimate expressions of the popular sovereign will) as opposed to foundationalism (requiring resistance to any deeply constitutive changes) leaves him, in Finn's view, incapable of “address[ing] fundamental questions of constitutional identity.” Ibid., 363. For example, Ackerman's sovereignty-based theory of constitutional change requires accepting the legitimacy of any amendment—even one that would make Christianity the state religion—as an expression of the authentic voice of the demos. In this regard, Jeffrey Tulis criticizes him for not “distinguish[ing] amendment from revolution.” “Amendment presupposes a constitution whose identity persists over time. Revolution presupposes the disjunction of identities, the possibility of marking a change in fundamental political attributes that make a new polity truly new.” Jeffrey K. Tulis, “Review of Bruce Ackerman, ‘We the People: Foundations’,” The Review of Politics 55 (1993): 542.
See, for example, Beau Breslin, From Words to Worlds: Exploring Constitutional Functionality (Baltimore, MD: Johns Hopkins University Press, 2009), 30.
Hanna Fenichel Pitkin, “The Idea of a Constitution,” Journal of Legal Education 37 (1987): 167.
Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame: Notre Dame University Press, 1981), 206. For a thoughtful application of MacIntyre's thinking to the American constitutional tradition see, H. Jefferson Powell, The Moral Tradition of American Constitutionalism (Durham, NC: Duke University Press, 1993). “A tradition is … historical not merely in the sense of being temporally extended but more fundamentally in that it is constituted by an ongoing argument in which its fundamental agreements are expressed, defined, and revised,” 24.
Ibid., 206. For a provocative and erudite discussion of tradition as a non-static form of social order, see H. Patrick Glenn, Legal Traditions of the World (Oxford: Oxford University Press, 2000), 21–25.
“[W]hen a tradition becomes Burkean, it is always dying or dead.” Alasdair MacIntyre, After Virtue, 206.
Ibid., 207. Elsewhere MacIntyre elaborated on his critique of Burke: “Burke was … an agent of positive harm. For Burke ascribed to traditions in good order, the order he supposed of following nature, ‘wisdom without reflection.’ ” Alasdair MacIntyre, Whose Justice? Which Rationality? (Notre Dame: Notre Dame Press, 1988), 353.
Joseph Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries,” in Constitutionalism: Philosophical Foundations, ed. Larry Alexander (Cambridge: Cambridge University Press, 1998), 180.
Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton, NJ: Princeton University Press, 2007), 291. A similar view is at the heart of what its advocates refer to as the theory of “democratic constitutionalism.” Thus, “Democratic constitutionalism views interpretive disagreement as a normal condition for the development of constitutional law.” Robert Post and Reva Siegal, “Roe Rage: Democratic Constitutionalism and Backlash,” 42 Harvard Civil Rights-Civil Liberties Review 373 (2007): 374.
See Ran Hirschl, “The Judicialization of Mega-politics and the Rise of Political Courts,” Annual Review of Political Science 11 (2008): 93–118.
In the American constitutional context, as George Thomas maintains, the pursuit of alternative aspirational agendas in different institutional settings is the direct result of constitutional planning: “In attempting to balance agonistic principles, which furnish the basis for a workable and contained political order, the Madisonian framework necessarily invites struggles over constitutional meaning and identity.” George Thomas, The Madisonian Constitution (Baltimore, MD: Johns Hopkins University Press, 2008), 38.
Hanna Fenichal Pitkin, “The Idea of a Constitution,” 169.
Ibid., 167.
Reid, Constitutional History of the American Revolution, 5. For a critique of this emphasis on English rights as opposed to nature as the source of rights, see Rogers Smith, “The Politics of Rights Talk, Then and Now,” in The Nature of Rights at the American Founding and Beyond, ed. Barry Alan Shain (Charlottesville, VA: University of Virginia Press, 2007), 308.
Such a conclusion may be warranted after considering the debate between Justices Scalia and Stevens in the case that affirmed an individual's constitutional right to bear arms. Citing the First, Fourth, and Ninth Amendments, Justice Scalia argued that the Second Amendment should be seen in a similar fashion: “All three of these instances unambiguously refer to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate body.” District of Columbia v. Heller, 554 U. S. 570, (2008). As we shall see, the Ninth Amendment is not so unambiguous, and the same might be said of the other provisions. Justice Stevens's effort to argue for a collective right leaves one with the impression that both of the justices overstate their cases, and that the Second amendment, like those cited by Scalia, cannot so easily be dichotomized into a choice between individual and collective interpretive alternatives. The truth lies somewhere in between.
The notion of “the people” is a much-vexed topic, but it is important to appreciate how in the American context it is connected to the natural rights of the individual. A notable contrast is the Israeli conception of the people as understood in its founding document, the Proclamation of Independence. Thus, the one mention of natural right in the Israeli Declaration is, from the perspective of Western political philosophy, a curious one, as it refers to “the natural and historic right of the Jewish people” to establish a state. Accustomed as we are to thinking of natural right in the idiom of Lockean individualism, its association in this document with people is somewhat striking. Thus, whereas the American Declaration emphasizes self-evident truths bearing directly on the status of individuals, the Israeli counterpart refers to “the self-evident right of the Jewish people to be a nation, like all other nations, in its own sovereign State.” If the legitimacy of the Jewish State is ultimately rooted in the chronicle of a particular people, the claim of the American people to an independent state is based on principles that are notable for their timelessness.
William Penn, “The Excellent Privilege of Liberty and Property Being the Birth-right of the Free-born Subjects of England,” in The Founders’ Constitution, ed. Philip Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 432.
Continental Congress to the Inhabitants of Quebec, 26 October 1774, in Kurland and Lerner, eds., The Founders’ Constitution, 442. As the historian Jack Rakove observes, “The colonists’ commitment to the right of representation is … the controlling theme in the narrative of the American Revolution.” Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1960), 297. Also, Walter Berns, “[The Constitution] is a bill of natural rights, not because it contains a statement or compendium of those rights—it does not—but because it is an expression of the natural rights of everyone to govern himself and to specify the terms according to which he agrees to give up his natural freedom by submitting to the rules of civil government.” Walter Berns, “The Constitution as Bill of Rights,” in How Does the Constitution Secure Rights? ed. Robert Goldwin and William Schambra (Washington, DC: AEI, 1985), 54.
James Madison, “Debate in the First Congress,” in Contexts of the Constitution, ed. Neil H. Cogan (New York: Foundation Press, 1999), 808.
As Daniel T. Rodgers has noted, “[The Bill of Rights] was a document born in debate, dissention, compromise, and contending power—born, in short, out of the usual processes of popular politics.” Daniel T. Rodger, “Rights Consciousness in American History,” in The Nature of Rights at the American Founding and Beyond, ed. Barry Alan Shain (Charlottesville, VA: University of Virginia Press, 2007), 265.
See Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998).
Ibid., 67.
The recent debate in the Second Amendment case of District of Columbia v. Heller, 554 U.S. 570 (2008), provides a unique look at the originalist debate concerning collective and individual rights. While the text of the Second Amendment explicitly invites such a debate—taken up by Justices Scalia and Stevens—the arguments set forth in that case have broader implications for the larger question of constitutional design.
This evaluation has deep roots; thus, John Philip Reid writes of “the sacrosanct centrality of jury trial in British constitutional thought during the age of the American Revolution.” Constitutional History, 48. Once the colonists asserted that a right they were claiming—for example, the jury right—was a British right, they were able to invoke an even broader right, namely the right to equality. Ibid., 62.
Madison, “Debate in the First Congress,” Contexts, 807.
Letter from the Federal Farmer, No. 4, in Ibid., 710.
The best historical accounts may be found in Mark DeWolfe Howe, “Juries as Judges of Criminal Law,” Harvard Law Review 52 (1939): 582; Note, “The Changing Role of the Jury in the Nineteenth Century,” Yale Law Journal 74 (1964): 170; Morris S. Arnold, “Law and Fact in the Medieval Jury: Out of Sight, Out of Mind,” American Journal of Legal History 18 (1974): 267; and Roscoe Pound, Justice in America (New York: H. Holt and Co., 1930).
Statements of support from Jefferson and Hamilton, as well as many others, for the doctrine of jury nullification may be found in Justice Gray's lengthy dissenting opinion in Sparf and Hansen v. United States, 156 U.S. 51 (1895).
Important examples of juries regularly refusing to enforce the law: the navigation acts passed by the British Parliament in the eighteenth century; the fugitive slave laws in the nineteenth century; and prohibition in the first part of the last century.
Alexis de Tocqueville, Democracy in America, 2 vols. (New York: Random House, Vintage Books, 1945), I, 293.
Robert C. Post, “The Supreme Court, 2002 Term—Forward: Fashioning the Legal Constitution: Culture, Courts, and Law,” Harvard Law Review 117 (2003): 8.
Anne Norton, “Transubstantiation: The Dialectic of Constitutional Authority,” University of Chicago Law Review 55 (1988): 467.
Ibid., 469.
McCulloch v. Maryland, 17 U. S. 316 (1819), at 408.
Ibid., at 415.
Randy E. Barnett, “James Madison's Ninth Amendment,” in The Rights Retained by the People: The History and Meaning of the Ninth Amendment, ed. Randy E. Barnett (Fairfax, VA: George Mason University Press, 1989).
Such a construction is consistent with the very persuasively argued thesis about rights set forth by Richard Primus. “[T]he major pattern of development of American rights discourse has been one of concrete negation: innovations in conceptions of rights have chiefly occurred in opposition to new adversities, as people articulate new rights that would, if accepted, negate the crises at hand.” Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 7. Just as many of the rights claimed by the colonists were asserted in reaction to the expansion of power thrust upon them by the British administration, an analogous post-Constitution claim might be seen as appropriately responsive to similar adversities flowing from governmental accretion of power.
Jack N. Rakove, Original Meanings, 324.
Thomas Jefferson to James Madison, 20 December 1787, in Kurland and Lerner, The Founders’ Constitution: Major Themes, 457.
James Wilson, “Debate in the Pennsylvania State Convention,” in Contexts of the Constitution, ed. Neil H. Cogan, 739.
Kurland and Lerner, The Founders’ Constitution: Major Themes, 451.
Joseph Raz, “On the Authority and Interpretation of Constitutions,” 191.
No. 34.
Ibid.
As Justice Joseph Story pointed out: “[I]t is not always possible to foresee the extent of the actual reach of certain powers which are given in general terms”; which “may be construed (and perhaps fairly) to certain classes of cases which did not at first appear within them.”
381 U.S. 479 (1965).
Charles L. Black, Jr., “On Reading and Using the Ninth Amendment,” in The Rights Retained By the People, ed. Barnett, 337. Or as the constitutional historian Leonard W. Levy noted, “Nothing in the thought of the Framers foreclosed the possibility that new rights might claim the loyalties of succeeding generations.” Leonard W. Levy, Origins of the Bill of Rights (New Haven, CT: Yale University Press, 1999), 255.
Norman Redlich, “The Ninth Amendment,” Encyclopedia of the American Constitution—Vol. 3 (New York: Macmillan Publishing Co., 1986), 1319.
Amar, The Bill of Rights, 120.
Kurt T. Lash, The Lost History of the Ninth Amendment (Oxford: Oxford University Press, 2009), 357. For Lash, the amendment reduces essentially to the “right to local self-government.” Ibid., 360.
Ibid., 360.
Randy E. Barnett, “Kurt Lash's Majoritarian Difficulty: A Response to a Textual-historical Theory of the Ninth Amendment,” 60 Stanford Law Review 937 (2008): 940.
Randy E. Barnett, “James Madison's Ninth Amendment,” 28.
Richard A. Primus, The American Language of Rights, 97.
Ibid., 245. See also, Laurence H. Tribe, The Invisible Constitution (Oxford: Oxford University Press, 2008), 146. An interesting interpretation of the debate over enumerated rights may be found in Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (London: Routledge, 2010). “Unenumerated rights loom as the most unbound and open-ended. Yet, precisely because of this, they have the greatest need for anchoring and binding within the confines of constitutional identity and beyond.” Ibid., 75.
See, for example, Neal Devins, Shaping Constitutional Values: Elected Government, the Supreme Court, and the Abortion Debate (Baltimore, MD: Johns Hopkins University Press, 1996). As Devins observes, “The last word [on the Constitution's meaning] … is never spoken. Through an ongoing dialectic that involves all of government, constitutional meaning is more a work-in-progress than a finished product.” Ibid., 55.
Rodgers, “Rights Consciousness,” 277.
The Federalist, No. 85, Henry Cabot Lodge, ed. (New York: G. P. Putnam's Sons, 1888), 547.
Martin Luther King, “I Have a Dream,” Keynote Address of the March on Washington, D.C., for Civil Rights (August 28, 1963), in A Testament of Hope: The Essential Writings of Martin Luther King, Jr. ed. James M. Washington (San Francisco, CA: Harper & Row, 1986), 217.
Other examples of constitutionally inscribed directive principles may be found in the constitutions of Nigeria, Spain, Portugal, and Namibia. See Nigeria Constitution ch. 2, arts. 13–24; Constitución tit. I, ch. 3, arts. 39–42 (Spain); Constituição Da Republica Portuguesa, Sec. I (Portugal); Namibia Constitution, ch. 11, arts. 95–101. The practice has also been incorporated in international agreements, such as the International Covenant on Economic, Social and Cultural Rights. See G.A. Res. 2200A, U.N. GAOR, 21st Sess. Sopp. No.16, at 49. U.N. Doc. A/6316 (1966).
This is not to say that the Directive Principles are unrelated to the Court's own interpretive powers. As the Indian example illustrates, they can be relied upon to influence judicial interpretation of enforceable provisions (especially fundamental rights), and they can be a source to be drawn upon to assess the constitutionality of legislative enactments.
Robert Post and Reva Sigal, “Roe Rage: Democratic Constitutionalism and Backlash,” 382. Or as Daniel T. Rodgers argues, “The current emotionally charged and politically polarized furor over gay rights is no historical aberration; its dynamics are among the most familiar in American history. Yet it is from this ongoing, passionate democratic debate over rights, often far from the dicta of courts, that the expansion of rights has drawn its primary historic energy.” Daniel T. Rodgers, “Rights Consciousness in American History,” 259.
See, for example, David Waldstreicher, Slavery's Constitution: From Revolution to Ratification (New York: Hill and Wang, 2008).
See, for example, Michael Klarman, Unfinished Business: Racial Equality in American History (Oxford: Oxford University Press, 2007).
Anne Norton, “Transubstantiation: The Dialectic of Constitutional Authority,” 463.
Consider Madison in Federalist #49. It was only in “a nation of philosophers” that “[a] reverence for the laws would be sufficiently inculcated by the voice of an enlightened reason.” Implicit in his calculation is the idea that a constitution, however reasonable and clear in its articulation of rules and principles, can succeed in translating word into deed (and thereby establish a discernible identity) only if fundamental continuity in basic law and actual constitutional practice are seen as two sides of the same coin. Federalist #49 (Madison) in Clinton Rossiter, ed., The Federalist Papers (New York: Mentor, 1961), 314.
Alasdair MacIntyre, Whose Justice? Which Rationality? 327.
See for example, Robert C. Post: “[C]onstitutional law will be as dynamic and contested as the cultural values and beliefs that inevitably form part of the substance of constitutional law,” in “The Supreme Court, 2002 Term,” 10.
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An earlier version of this article was presented at the Conference on “Founding a Nation, Constituting a People: American and Judaic Perspectives.” I thank the Jack Miller Center and DePaul University for their support.
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Jacobsohn, G. Rights and American Constitutional Identity. Polity 43, 409–431 (2011). https://doi.org/10.1057/pol.2011.10
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DOI: https://doi.org/10.1057/pol.2011.10