Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Scholars generally attribute the authorship of the letters of Brutus to Robert Yates (1738-1801), a prominent New York politician and judge who was a delegate to the Philadelphia Convention in 1787.  After voicing his opposition to the plan of the Convention, Yates returned home to New York. During the state ratification debates, he then became an outspoken opponent of the proposed Constitution. In his polemical essays against the Constitution, Yates’ chosen pen name was Brutus, and his objective was to slay Ceasar. Read more

Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Amendment XIV:

1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In his Notes on the Constitutional Convention of 1787, James Madison observed “the real difference of interest” between states “lay, not between large & small but between N. & Southn.” “The Institution of slavery & its consequences,” Madison maintained, “formed the line of discrimination.” At several points, the original Constitution struck a compromise between these competing interests. The most obvious: slaves would be counted as three-fifths of a person for the purposes of representation (Art. 1§2), Congress would not proscribe the African slave trade until 1808 (Art. 1§9), and runaway slaves would be returned to the state from which they fled (Art. 4§2).

Yet even in these provisions, the word “slavery” never appeared. As Supreme Court Justice John McLean noted, one reason the Constitution crafted in Philadelphia did not mention slavery directly is because “James Madison, that good and great man, was solicitous to guard the language of the instrument.” Indeed, Madison recorded in his notes on the convention that “it would be wrong to admit in the Constitution the idea that there could be property in men” because men, by nature, were not consumable merchandise. And so in “the provision respecting the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor,” McLean maintained, “slaves were referred to as persons, and in no other respect are they considered in the Constitution.”

McLean’s comments came in a spirited dissenting opinion in Dred Scott v. Sandford (1857), a case in which the Chief Justice of the Supreme Court claimed, among other things, that “the right of property in a slave is distinctly and expressly affirmed in the Constitution” and that African slaves and their descendents (including free blacks) were not and could never become citizens of the United States. The Dred Scott decision, in turn, set off a firestorm of controversy and was among the precipitating causes of the Civil War– a conflict that would claim some six hundred thousand American lives.

Although the war wrought enormous damage to the southern infrastructure and exacted a heavy price in both blood and treasure, one of the enduring legacies of the conflict was the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution during the first few years after Appomattox. Collectively known as the Reconstruction or Civil War Amendments, these provisions ended slavery, granted birth citizenship, protected the privileges and immunities of citizens, prohibited states from denying anyone the equal protection of the laws or the due process of law, and prohibited racial discrimination in state and national voting laws.

Section 1 of the Fourteenth Amendment, in particular, was written with the Dred Scott decision in mind. “All persons born or naturalized in the United States,” the Amendment declares, “. . . are citizens of the United States and the state wherein they reside.” No longer is there room for debate about whether the descendants of slaves are full citizens of the American republic. The Amendment also introduced into the Constitution several restrictions on state governments: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Initially, there was some debate about how radical a transformation the Fourteenth Amendment worked in the American federal system. According to some members of the Thirty-Ninth Congress, the answer (at least theoretically) was “not much.” As Iowa Congressman James Wilson contended, the amendment established “no new right” and declared “no new principle.” Rather, it was in line with the general principles that had always undergirded American government. In this, Wilson echoed the sentiment of the runaway-slave-turned-abolitionist, Frederick Douglass, who argued that the “Federal Government was never, in its essence, anything but an anti-slavery government . . . If in its origin slavery had any relation to the government, it was only as the scaffolding for the magnificent structure, to be removed as soon as the building was completed.”

The Fourteenth Amendment, which held out the promise of meaningful freedom to newly freed slaves, was also interpreted as something emanating from the principles of the founding. “Let it be remembered,” the Fourteenth Amendment’s principal architect John Bingham declared, quoting an address by the Continental Congress in 1783, “that the rights for which America has contended are the rights of human nature.” To borrow a metaphor made popular by Abraham Lincoln, the end of slavery and the protection of equal civil rights was the working out of an aspiration already present in the American founding, an aspiration summarized by the core political teaching in the Declaration of Independence that “all men are created equal and endowed by their Creator with certain inalienable rights.”

And yet the story of Reconstruction begins, rather than ends, with the Civil War Amendments. Although the post-war Constitution guaranteed equal protection to all persons and an equality of civil rights among citizens, the reality on the ground has often been much different. From the history of Jim Crow to the twentieth century civil rights movement to the debates about fundamental rights today, the tension between the principles of the revolution and the realities of American constitutional politics is one of the enduring features of American government.

Justin Dyer teaches political science at the University of Missouri. He is the author of Natural Law and the Antislavery Constitutional Tradition and the editor of American Soul: The Contested Legacy of the Declaration of Independence.

May 7, 2012

Essay #56

Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”

But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.

Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?

To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”

Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).

Friday, March 2, 2012 

Essay #10