America's Unwritten Constitution: The Precedents and Principles We Live By (73 page)

       
What if some state should enact a new law providing public lashing, or branding the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these measures were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judges—even among the many who consider themselves originalists—would sustain them against eighth amendment challenge.…I confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.

With this public confession in a 1988 address to law students, Antonin Scalia outed himself as not merely “a faint-hearted originalist” but also a good-hearted human being. The long-term success of America’s system of government depends in no small part on the willingness of good-hearted humans to serve as judges and justices. Although no explicit clause in the terse text itself says so in so many words, America’s Constitution should thus be read to allow, and even to invite, judges (and others) to just say no to savage punishments, and to do so in the name of conscience and humanity.

_____________________

^*
This was the oath that Ohio Senator Ben Wade was accused of dishonoring during the 1868 impeachment trial of Andrew Johnson. Recall from Chapter 1 that Wade would have automatically gained the presidency itself upon Johnson’s conviction and thus, claimed critics, faced a disqualifying conflict of interest that precluded him from sitting in judgment of Johnson.

^*
State prosecutions are a different matter. Many states do not require grand-jury indictments for all serious crimes, and the Fifth Amendment’s rule for federal grand juries is one of the few provisions of the Bill of Rights that has not (at least, not yet) been incorporated against states. For details, see Chapter 4, n. 32 and accompanying text.

^*
In this spirit, Chapter 4 traced how the first eight amendments needed to be refracted through the Fourteenth Amendment language of “privileges” and “immunities”—a refraction process in which Founding meanings sometimes bent as they passed through Reconstruction’s prism; Chapter 7 pondered various ways in which the Nineteenth Amendment also implicitly bent earlier constitutional clauses and principles even though the amendment’s words did not precisely enumerate the full scope of these implicit changes; and Chapter 10 aimed to show that section 2 of the Fourteenth Amendment had to be creatively reinterpreted in light of the later right-to-vote amendments.

^*
In many ways, the jury is to the judiciary what the militia is to the military. Both jurors and militiamen are amateurs counterbalancing professionals (judges and army soldiers, respectively); both juries and militias are organized locally; jury service and militia service are linked duties of citizenship (alongside voting, and both duties are mainly addressed to the subset of the population eligible to vote); both juries and militias typically elect their own officers (foremen and captains, respectively); both entities are classic embodiments of republican virtue. Both entities exist as points on a wider spectrum of kindred premodern law-enforcement bodies encompassing the neighborhood hue and cry, the local posse comitatus, the militia, the grand jury, and the trial jury. In some ways, militiamen can be seen as jurors with guns in their hands.

^*
State criminal juries are a different story, and some states do not require unanimity. In this corner of doctrine, a fractured Court in a 1972 case,
Apodaca v. Oregon
, in effect held that the criminal-jury rules of the Sixth Amendment apply more flexibly against states than against the federal government. As we shall see, a better approach would openly acknowledge that the Sixth Amendment, as reconstructed by later right-to-vote amendments, does not invariably require unanimity, even in federal proceedings.

MARCH FOR WOMEN’S LIBERATION, WASHINGTON, D.C., AUGUST 26, 1970.

Following in the footsteps of their grandmothers, American feminists in the 1960s and 1970s put the issue of women’s equality back at the center of America’s constitutional conversation. What items, in turn, should the grandchildren of these late twentieth-century crusaders place on America’s unfinished agenda?

T
HE LAST ASPECT OF AMERICA’S UNWRITTTEN CONSTITUTION
that we shall explore is the Constitution still to be written, the hoped-for Constitution of 2020—and of 2121 and 2222.

What should our future Constitution contain? What in fact will it contain? Must all momentous changes be accomplished by express textual amendments, or could some transformative revisions occur through other—unwritten—reform processes? If political and legal power in America today is in certain respects unfairly distributed, could the individuals and institutions currently benefiting from this unfair status quo ever be induced to support justice-seeking reforms? Is it truly realistic to think that the future will overcome the iniquities of the present?

AT FIRST, IT MIGHT BE WONDERED
whether anything truly
constitutional
can be said about which future amendments should be adopted. After all, We the People are free to adopt just about any amendments we like. On one view, the existing Constitution says very little of a binding nature about what the future Constitution ought to look like.

What this view misses is that America’s Constitution is designed not merely to bind but also to enlighten. Even if the written Constitution merely mandates, its unwritten twin teaches. Yes, we today are free to change the Constitution in almost any direction, but we are also free not to do so. In exercising this vast freedom and responsibility, we would be wise to note that some proposed changes would radically reverse the trajectory of our constitutional story thus far, whereas others would fulfill the existing Constitution’s spirit, even as they changed its letter. Careful study of the past can guide and persuade us, giving our generation powerful reasons for preferring certain sorts of proposed amendments over other sorts.

Thus, future amendments to criminalize flag-burning or to restrict the equality rights of same-sex couples should be viewed with special skepticism because these amendments would do violence to the trajectory of the American constitutional project over the past two hundred years. By contrast, an amendment to allow certain immigrant Americans to be eligible
for the presidency should be viewed more favorably, precisely because it would be a far better fitting next chapter to our unfolding constitutional saga.

Of course, not all important elements of American governance have left explicit marks in the terse text. For example, it is virtually unthinkable that a modern state legislature would itself pick presidential electors, with no regard for the views of the voters. But the formal constitutional text would allow this result; over the centuries, the actual power of the people on presidential Election Day has come about informally, via norms and customs. Dramatic future reforms of our presidential election system could likewise arise informally, without the need for a formal constitutional amendment. Under our current written Constitution, it is easy to imagine a way—two ways, in fact—by which Americans in the year 2020 could pick presidents by direct national popular election.

Studying how our existing Constitution was in fact enacted, how it has actually been glossed by past interpreters and implementers, and how it truly operates today can also help us to make sound scientific predictions about which amendment proposals have the best odds of prevailing in the days and decades ahead. Precisely because state constitutions closely mirror their federal counterpart, the fifty states are the most likely laboratories in which future federal constitutional reforms will initially be tested. Precisely because America has a party-based system of government, successful amendment proposals will typically need to align with the interests of America’s two major political parties.

And whenever certain justice-seeking amendment proposals would run counter to current entrenched interests, we must keep in mind one extraordinary but largely unnoticed tool that earlier reformers used to overcome some of the injustices of their era—and that today’s reformers can use to right the wrongs of our own times.

FROM THE FOUNDING TO THE PRESENT,
America’s written Constitution has traced a clear and remarkable trajectory, visible at every moment of enactment and amendment along the way. With the ill-fated exception of Prohibition, none of its amendments has aimed to diminish liberty or
reduce equality. On the contrary, most amendments have expanded freedom and egalitarianism.

So, yes, Americans today are free to amend the Constitution to criminalize flag-burning, and thus repudiate the basic constitutional principle that sovereign, self-governing citizens have a robust right to mock basic symbols of government authority. Americans are also free to amend the Constitution to ban gay marriages, and thereby constrict the scope of the grand idea that government should not demean a person because of his or her birth status—because she was born out of wedlock or he was born black or she was born female or he was born gay. But these illiberal amendments would be radical departures from our national narrative thus far.

Here, then, is a classic
conservative
argument for substantively
liberal
amendments: Most of the amendments from the Founding to the present were adopted by the liberals of their era—liberty-loving supporters of the Bill of Rights, Reconstruction Republicans, early twentieth-century Progressives, and late twentieth-century crusaders for civil rights.

THE UNITED STATES SENATE
held a hearing on October 5, 2004, to consider a proposed constitutional amendment—then known as Senate Joint Resolution 15—that would allow long-standing naturalized citizens to run for president.

I was one of the expert witnesses invited by the Senate to testify at that hearing. As a child, grandchild, and spouse of immigrant Americans, I had (and continue to have) my own personal views about American immigration policy. However, I was being asked to testify not as a second-generation American but as a constitutional scholar. So I tried to analyze how Senate Resolution 15 would fit into the larger story of American constitutionalism thus far.

I testified that although the proposed amendment would surely change the existing rules, it would do so in a pro-immigrant direction—
just as the Founders themselves changed older English rules in pro-immigrant ways
. Indeed, I went a step further: Given that the reasons the eighteenth-century Founders themselves barred certain naturalized citizens from running for president no longer apply in the twenty-first century, modern Americans would best
vindicate
the spirit of the Constitution by formally
amending
it.

I pointed out that the Founders’ Constitution was, by the standards of
its time, hugely pro-immigrant. Under the famous English Act of Settlement of 1701, no naturalized subject in England could ever serve in the House of Commons, or Lords, or the Privy Council, or in a wide range of other offices. The Constitution repudiated this tradition across the board, opening the House, Senate, cabinet, and federal judiciary to naturalized and native citizens alike. Seven of the thirty-nine signers of the Constitution at Philadelphia were foreign-born, as were countless thousands of the voters who helped ratify the Constitution in the enactment process that gave birth to the document. Immigrants accounted for eight of America’s first eighty-one congressmen, three of our first ten Supreme Court justices, four of our first six secretaries of the treasury, and one of our first three secretaries of war. Only the presidency and vice presidency were reserved for birth-citizens, and even this reservation was softened to recognize the eligibility of all immigrants who were already American citizens in 1787—men who had proved their loyalty by remaining in or coming to America during the Revolution.
¹

Of course, these generally pro-immigrant Founders did exclude later immigrants from the presidency. But they did so because some at the time feared that a scheming foreign earl or duke might cross the Atlantic with a huge retinue of loyalists and a boatload of European gold, and then try to bully or bribe his way into the presidency. In a young America that lacked campaign-finance rules, when a fledgling New World democracy was struggling to establish itself alongside an Old World dominated by monarchy and aristocracy, this ban on future foreign-born presidents made far more sense than it does in the twenty-first century.
²