The legal rights in the Bill of Rights didn't exist until the 20th century
Social media has been abuzz with the Bill of Rights, and in particular the 1st Amendment, recently. Many posts, explicitly or implicitly, trace the Bill of Rights to the Founders. That's wrong and leads to a poor understanding. A proper reading of the Constitution and the law reveals that, while the text was written then, these rights did not apply even on paper to the states until 1868, in fact until the middle of the 20th century, or even into the 21st century for the 2nd Amendment.
“It is a Constitution we are expounding.”
The Constitution sets out principles and goals, structures and limitations, and we must never forget that. It is law -- the highest law of the land, in fact -- but it is not code, which is detailed and often attempts to be exhaustively complete and explicit. The Constitution was written to provide a framework of balances by a group of flawed aristocrats trying to rebel from another framework: the Articles of Confederation. They did not have a thought of actual perfection, but instead they wanted to be “more perfect” than the union they were throwing away (those Articles).
They had no mandate nor legal right to write the Constitution, in fact, and they would have scoffed at the notion of words in a document being more than rallying cries. They themselves were object lessons that words were more useful to move people than to constrain them. The primary author of the Constitution (Madison) called such words “parchment barriers” and highly suggested they not be relied upon.
But how do we read this document? Textualists or originalists often point to the Founders' interpretation(s), which are a bit difficult to discern because of the clandestine convention that illegally drafted it. (We have some decent notes from Madison.) Others point to the Federalist Papers, which were aimed to ensure New York's ratification. Some point to the legislatures who voted in the new Constitution and the people who elected them (see the late Justice Scalia). That's a lot of ground to cover in the late 1700's.
Of course, again, let's not forget that this is a document of purposes and goals, law but not code ... yet we can all probably stipulate that the people who proposed it and passed it matter. They were in many ways ahead of their time, but they were also rich white rebels, most fiercely jealous of their power and money. No reasonable person can argue that "all men are created equal" and the 3/5ths Clause can be reconciled (bigots who dehumanize some people are here assumed to not be reasonable), so we should not lionize their moral standing or consistency.
So, yes, their thoughts matter. Luckily, morality moved past those thoughts, and even more luckily, they planned for that progress.
How the Constitution changes, or why the text is not "dead"
The Founder included an Amendment Article, making it hard but possible to change anything. That Article has been used to enact 27 Amendments. But how does that process work?
Madison wanted to amend the Constitution like code, by deleting and adding words, etc., such as, “That in article 1st, section 2, clause 3, these words be struck out …” This is the way legal codes are often changed, and nothing actually prevents an Amendment from doing just that -- the Amendment power, except for state's equal representation in the Senate, is completely unlimited. (Now. Until 1808, slavery was off limits. Remember that these were not the lovers of individual liberty some espouse -- they loved their own liberty.)
But, with one exception, that sort of self-referential approach to amending hasn't been used, and instead, each Amendment simply adds words without actually changing or removing any others. This means odious parts like the 3/5ths Clause still exist and have never been removed. The only time an Amendment has directly modified any other portion of the Constitution was when the 21st Amendment actually "repealed" the 18th Amendment. So Congress knows it can actually refer to language and make actual changes -- they just don't do that.
The result is that, at each passage of an Amendment, the entirety of the document has to be re-read in light of what the new Amendment does. Often, that might mean little, such as when requiring President and VP to run on the same ticket, or changing the voting age. There are certainly implications that can be drawn from even those types of Amendments, but they probably don't change too much of the document. But according to how Amendments work, and the absolutely unchecked power they have, each time an Amendment is ratified, the whole Constitution could be changed and must be re-read in that light.
The Civil War and the 14th Amendment changed everything
Some Amendments most definitely have much more scope, and the 14th Amendment is almost inarguably the most broad. Everything that came before it must be re-interpreted through its prism, period. If you cared about the interpretation of the Founders and legislators, by the same logic you have to give great weight to those who passed the 14th Amendment. If they intended to change the Constitution, they could. And they did want to change everything.
The 14th flipped the balance of power and purposely made the states answerable to Congress, which could explicitly enforce the Amendment through legislation; it was passed in direct response to the Civil War. Starting with the 13th, almost every Amendment delegates to Congress the power to enforce it -- not to the state legislatures. Why? Because some of the state legislatures had just staged an illegal rebellion, and they couldn't be trusted. To rejoin the union, rebel states were required to ratify the 14th Amendment. That change was purposeful and explicit, and it places much more power in the federal government.
As important, before the 14th Amendment, none of the Bill of Rights applied to the states. States could have state religions, could restrict press or speech or assembly, could deny counsel, could search without warrants. The Founders did not want the federal government recognizing individual rights -- they were largely slaveholders, remember -- so they left that to the states.
And it wasn’t until the 20th century that most of those rights were recognized as applying to the states, through various Supreme Court of the United States (SCOTUS) decisions. Here are some of the 1st Amendment incorporation dates:
- Free exercise in the 1940s
- Free speech and press in the 1920s and 30s
- Free assembly in the 1930s
- Free redress in the 1960s
By the way, everyone agrees in the incorporation of the Amendments as a function of the 14th Amendment. This is not a controversial or disputed piece of jurisprudence. (Some bicker over which section of the 14th does the incorporation, but everyone agrees that it does.)
But let's go back to the more important implication for when people want to talk about whose intent matters: It is MUCH more the intent at the end of the Civil War than those during the Revolutionary War that matter, in almost every discussion.
That means that Jefferson’s approach to government, and his incendiary comments like the blood of the tree of liberty, which held sway until the 1860s, was categorically rebuked by the Civil War’s end and the Amendments that accompanied that ending (13th, 14th, and 15th). Of course, Jefferson was in France during the Constitutional Convention, so he had no part in writing that text, anyway, but his interpretation somehow held sway.
The 14th Amendment impacted the entirety of the document. It upended fundamental tenets of state sovereignty by giving Congress and federal courts the ability to oversee the states, and it is obvious (even without reading the history of debate) that this was the explicit reason in response to the states' rebellion. (There is very good reason to imagine that the 14th Amendment changed the 2nd Amendment because of the whole-guns-in-the-rebellion thing, but that's for another time.)
States have steadily lost power to the people and the nation
To underscore that the 14th Amendment represents a sea change that continues, many of the amendments following directly limit the power of the state governments or increase the power of the feds. As already stated, almost every Amendment after the Civil War has explicitly granted the federal government enforcement powers. Beyond that, here are some notable shifts:
- 16th: federal income tax
- 17th: direct election of senators instead of by the sovereign states
- 19th: states prohibited from denying right to vote on sex
- 24th: states prohibited from denying right to vote via poll taxes or tests
- 26th: states prohibited from denying right to vote on age >= 18
To be clear, by no means did this remove federalism. States still have the majority of power. But portions of sovereignty were purposely removed from the states by several of the amendments.
And each time an Amendment passes, the intention of the new generation has to be taken into account. Except for part of Amendment 21, which shows they know how to treat the Constitution like code, just like Madison did … but they don't do so. Because it is a Constitution they are expounding, not an ephemeral Act of Congress.
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