The Bill of Rights: Creation and Reconstruction

Chapter One

First Things First

The 1789 Bill of Rights was, unsurprisingly, a creature of its time. Yet because these eighteenth-century words play such an active role in twentieth-century legal discourse, we may at times forget that more than two centuries separate us from the world that birthed the Bill. Before we fix our gaze on this eighteenth-century document, let us briefly consider how nineteenth- and twentieth-century events and ideas have organized our legal thinking, predisposing us to see certain features of the Bill of Rights and to overlook others. And before we rush to examine the words that are first in our modern Bill of Rights, let us briefly consider the words that were first in the original Bill of Rights.

Modern Blinders

The Ideology of Nationalism We inhabit a world whose constitutional terrain is dominated by landmark Supreme Court cases that invalidated state laws and administrative practices in the name of individual constitutional rights. Living in the shadow of Brown v. Board of Education and the second Reconstruction of the 1960s, many lawyers embrace a tradition that views state governments as the quintessential threat to individual and minority rights, and federal officials--especially federal courts--as the special guardians of those rights.

    This nationalist tradition has deep roots. Over the course of two centuries, the Supreme Court has struck down state and local action with far more regularity than it has invalidated acts of coordinate national branches. Early in this century, Justice Holmes declared, "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Professor Thayer's famous 1893 essay on judicial review also embraced an expansive role for federal courts in reviewing state legislation, even as Thayer preached judicial deference to congressional acts of doubtful constitutionality. Holmes and Thayer had reached maturity during the Civil War era, and they understood from firsthand experience that the constitutional amendments adopted following the war--particularly the Fourteenth Amendment--evinced a similar suspicion of state governments.

    In fact, the nationalist tradition is far older than Reconstruction; its deepest roots lie in Philadelphia, not Appomattox. One of the Federalists' most important goals was to forge a strong set of federally enforceable rights against abusive state governments, a goal dramatized by the catalogue of rights in Article I, section 10--the Federalist forebear of the Fourteenth Amendment. Indeed, the very effort to create a strong central government drew much of its life from the Federalists' dissatisfaction with small-scale politics and their belief that an "enlargement" of the government's geographic "sphere" would improve the caliber of public decision-making. The classic statement of this view is Madison's Federalist No. 10.

    Alongside this nationalist tradition, however, lay a states'-rights tradition--also championed by Madison--that extolled the ability of local governments to protect citizens against abuses by central authorities. Classic statements of this view include Madison's Federalist No. 46, his Virginia Resolutions of 1798, and his Report of 1800. Heavy traces of these ideas appear even in the work of the strong centralizer Alexander Hamilton.

    The foundations of this states'-rights tradition are even older than those of the nationalist tradition--indeed, older than the Union itself. In the seventeenth century, British North America began not as a single continentwide juridical entity but as a series of different and distinct colonies, each founded at a different moment with a distinct charter, a distinct history, a distinct immigration pattern, a distinct set of laws and legal institutions, and so on. In 1760, "Virginia" was, legally speaking, an obvious fait accompli--its House of Burgesses had been meeting since the 1620s--but "America," as a legal entity, was still waiting to be born. During the fateful years between the end of the French and Indian War and the beginning of the Revolutionary one, colonial governments took the lead in protecting their citizens from perceived Parliamentary abuses. Colonial legislatures kept a close eye on the central government; sounded public alarms whenever they saw oppression in the works; and organized political, economic, and (ultimately) military opposition to perceived British evils. The rallying cry of the Revolution nicely illustrates how states' rights and citizens' rights were seen as complementary rather than conflicting: "No taxation without representation" sounds in terms of both federalism and the rights of Englishmen.

    The complementary character of states' rights and personal rights was dramatized yet again by the Virginia and Kentucky Resolutions of 1798-1800. Self-consciously echoing their colonial forebears, legislators in these two states sounded the alarm when they saw the central government taking actions that they deemed dangerous and unconstitutional. Like its 1776 predecessor, the "Revolution of 1800" fused rhetoric of federalism and freedom: the Alien and Sedition Acts were seen as violating both the First and the Tenth Amendments. Although many other state legislatures rejected Kentucky's open-ended claims that a state could nullify a federal law, state legislatures as a whole played a central role in the denouement of the new nation's first constitutional crisis. Through their power to select senators and presidential electors, state lawmakers helped sweep the high-Federalist friends of the Alien and Sedition Acts out of national office in the election of 1800, replacing them with Jeffersonians who allowed the repressive acts to expire.

    Madison was quite careful to identify the limits, as well as the affirmative scope, of states' rights. State governments could monitor the federal one and mobilize political opposition to federal laws seen as oppressive, but no state entity could unilaterally nullify those laws or secede from the Union. Moreover, Madison's scheme gave the federal government a crucial role in protecting citizens from abusive state governments. Later spokesmen for the states'-rights position, like John C. Calhoun, Jefferson Davis, and Alexander Stephens, disregarded these vital limits. Not only did their arguments on behalf of nullification and secession misread the Constitution's federal structure, but these arguments were deployed on behalf of slavery, the ultimate violation of human dignity. Once again, a war was fought on American soil over intertwined issues of states' rights and human rights, but this time with a critical difference. In sharp contrast to the Revolutionaries' rhetoric of the 1770s, the Rebels' rhetoric of federalism in the 1860s came to be seen as conflicting with, rather than supportive of, true freedom.

    Twentieth-century Americans are still living with the legacy of the Civil War, with modern rhetorical battle lines tracking those laid down more than a century ago. Thus, in the tradition of Thaddeus Stevens, twentieth-century nationalists recognize the need for a strong national government to protect individuals against abusive state governments, but often ignore the threat posed by a monstrous central regime unchecked by competing power centers. Conversely, in the tradition of Jefferson Davis, twentieth-century states' rightists wax eloquent about the dangers of a national government run rampant, but regularly deploy the rhetoric of states' rights to defend states' wrongs. Sadly, states' rights and federalism have often served as code words for racial injustice and disregard for the rights of local minorities--code words for a worldview far closer to Jefferson Davis's than James Madison's.

    What has been lost in this twentieth-century debate is the crucial Madisonian insight that localism and liberty can sometimes work together rather than at cross-purposes. This is one of the themes that I hope will emerge from a fresh look at Madison's Bill of Rights.

The Logistics of Incorporation Through the Fourteenth Amendment, almost all the provisions of the Bill of Rights have come to be "incorporated" against the states. Although generally sound, the process of incorporation has had the unfortunate effect of blinding us to the ways in which the Bill has thereby been transformed. Originally a set of largely structural guarantees applying only against the federal government, the Bill has become a bulwark of rights against all government conduct. Originally drafted to protect the general citizenry from a possibly unrepresentative government, the Bill has been pressed into the service of protecting vulnerable minorities from dominant social majorities. Given the core concerns of the Fourteenth Amendment, all this is fitting, but because of the peculiar logistics of incorporation, the Fourteenth Amendment itself often seems to drop out of the analysis. We appear to be applying the Bill of Rights directly; the Reconstruction Amendment is mentioned only in passing if at all. Like people with spectacles who often forget that they are wearing them, most lawyers read the Bill of Rights through the lens of the Fourteenth Amendment without realizing how powerfully that lens has refracted what they see.

    It is time, then, to take off these spectacles and try to see how the Bill of Rights looked before Reconstruction. Only then can we fully appreciate some of its most important features, as originally conceived. As we shall see, when we remove modern spectacles and blinders, a rather different Bill of Rights comes into view; what follows in this chapter and the next five chapters may sometimes startle modern readers. But upon reflection, we should not be surprised to learn that those present at the Creation inhabited a world very different from our own. And only after we understand their world and their original vision can we begin to assess, in a self-conscious and systematic way, how much of this vision, if any, has survived--or should survive--subsequent constitutional developments.

    Let us begin by considering two provisions that are not part of our Bill of Rights, but were part of Madison's.

Size and Representation

The First Congress proposed a Bill of Rights that contained twelve amendments, but only the last ten were ratified by the requisite three-fourths of state legislatures in 1791, thereby becoming "valid to all Intents and Purposes, as Part of [the] Constitution." Thus the words that we refer to as the First Amendment really weren't "first" in the minds of the First Congress. Hear, then, the words that began their Bill of Rights:

Article the first .... After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

    This would-be First Amendment obviously sounds primarily in structure; it is an explicit modification of the structural rule set out in Article I, section 2, which mandates that the "Number of Representatives shall not exceed one for every thirty Thousand" constituents. Had this original First Amendment prevailed in the state-ratification process rather than suffering a narrow defeat in the 1790s--it fell one state short of the requisite three-fourths--it would no doubt be much harder for twentieth-century citizens and scholars to ignore the Bill of Rights' emphasis on structure, for the Bill would begin and end with structural provisions. As it stands instead, the fact that the most evident structural provision (our Tenth Amendment, their Twelfth) sits at the end of the decalogue may mislead us into viewing it as an afterthought, discontinuous with the perceived individual-rights theme of the earlier provisions. The original First Amendment suggests otherwise. It is poetic that this amendment was first, for it responded to perhaps the single most important concern of the Anti-Federalists.

    Part of this concern focused on demography and geography--on the numerical size of the polity and the spatial size of the nation. Classical political theory had suggested that republics could thrive only in geographically and demographically small societies, where citizens would be shaped by a common climate and culture, would hold homogeneous worldviews, would know each other, and could meet face-to-face to deliberate on public issues. Models of such republics included the Greek city-states and pre-Imperial Rome.

The Federalists' Contribution The Federalists stood this orthodoxy on its head by claiming that a large and modestly heterogeneous society could actually produce a more stable republic than could a small city or state. Madison's Federalist No. 10 is today recognized as the most elegant and incisive presentation of this revolutionary idea, but in fact the entire introductory section of The Federalist sought to confront squarely the Anti-Federalist concern about size. In The Federalist No. 2, John Jay noted the many ways in which (white) Americans shared a basic homogeneity that constituted them as one people, ethnically, culturally, linguistically, historically, commercially, and geographically. Over the next seven papers, Jay and Hamilton sketched the inability of small republics to defend themselves against external threats while maintaining internal democracy. This was primarily a geopolitical and military argument for an extended nation. Finally, Madison took the stage in Nos. 10 and 14, stressing the purely domestic reasons for preferring a large state. The last sentence of No. 14 marked the end of the first section of The Federalist, rhetorically signalling closure by its echo ("... you are now to deliberate ...") of the first sentence of No. 1 ("... you are called upon to deliberate...").

    Madison's first two Federalist papers demonstrate the rich interplay among the issues of national size, legislative size, and representation. (The last issue, of course, had played a central role in the debates leading up to and growing out of the American Revolution; anyone claiming that the new Constitution vindicated rather than betrayed that Revolution had to address the subject of representation head on.) Direct democracy, Madison argued, was impossible in any society more expansive than a small city-state. Even in tiny Rhode Island, the mass of citizens could not assemble regularly to decide matters of state; instead, citizens had to rely on a smaller body of government agents to represent them. Rather than cause for alarm, representation was a great blessing in Madison's eyes. A small, select group of representatives could "refine" public opinion and produce more virtuous, wise, and stable decisions. The image here is akin to skimming a small amount of cream (the representatives) off the top of a bucket of milk (the polity). Just as representative systems were better (creamier) than direct democracies, so a large society was preferable to a small one. In order to get the same absolute amount of cream, we need skim an even thinner (and thus richer) layer off the top of a bigger bucket. This last argument, of course, presupposes an absolute numerical limit on the size of the legislature: no matter how large the polity, the legislature could not expand beyond a certain number (just as direct democracy could not expand beyond a certain size), after which deliberation and discussion would be impossible.

    Yet even Madison noted that the skimming principle should not be carried to extremes: "By enlarging too much the number of electors [per representative], you render the representative too little acquainted with all their local circumstances and lesser interests ...."

The Anti-Federalists' Critique Probably the deepest Anti-Federalist objection to the Constitution was that the document took the skimming principle too far: Congress was too small, too rich, too "refined." Indeed, this structural concern underlay most of the Anti-Federalists' other arguments. Because the legislature was so small, the Anti-Federalists feared that only great men with reputations spanning wide geographic areas could secure election. Thus for Anti-Federalists the Constitution was at heart an aristocratic document, notwithstanding both its ringing populist proclamations ("We the People...") and the process of ratification itself, which was far more democratic than the process by which the Articles of Confederation and most state constitutions had been adopted. Anti-Federalists feared that the aristocrats who would control Congress would have an insufficient sense of sympathy with, and connectedness to, ordinary people. Unlike state legislators, lordly men in Congress would disdain their lowly constituents, who would in turn lose faith in the national government. In the end, the new government would be obliged to rule through corruption, force, and fear--with monopolies and standing armies--rather than through mutual confidence.

    Thus Anti-Federalists rejected the novel logic of The Federalist No. 10 in favor of more orthodox political science: because of the attenuated chain of representation, Congress would be far less trustworthy than state legislatures.

    The Anti-Federalists' lack of confidence in the federal legislature's ability to truly represent the people made them insist all the more on popular representation in the judicial branch. Precisely because ordinary citizens could not aspire to serve as national legislators, there was a vital need to guarantee their role as jurors. This was especially true because national laws, adopted by distant men unfamiliar with local circumstances, would need to be modified in their application by representatives better acquainted with local needs and customs.

    The Anti-Federalists were not simply concerned that Congress was too small relatively--too small to be truly representative of the great diversity of the nation. Congress was also too small absolutely--too small to be immune from cabal and intrigue. As Gilbert Livingston pointed out during the New York ratifying convention, the extraordinary powers of the Senate were vested in twenty-six men, fourteen of whom would constitute a quorum, of which eight would make up a majority. Although the House of Representatives looked much better, with its initial allocation of sixty-five members, it could conceivably end up even worse, as Patrick Henry noted in the Virginia ratifying convention: "In the clause under consideration, there is the strangest language that I can conceive .... `The number shall not exceed one for every thirty thousand.' This may be satisfied by one representative from each state. Let our numbers be ever so great, this immense continent may, by this artful expression, be reduced to have but thirteen representatives." And of course, by logic similar to Livingston's, seven representatives could conceivably form a House quorum, four of whom would constitute a majority.

    Friends of the Constitution were not oblivious to these concerns, as Madison's own language in The Federalist shows. In fact, at the Philadelphia convention Madison had championed a motion to double the initial size of the House of Representatives from 65 to 130 members: "A majority of a Quorum of 65 members, was too small a number to represent the whole inhabitants of the U. States; They would not possess enough of the confidence of the people, and wd. be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted." Though Madison's motion went down to defeat in July, another proposal to increase the initial House size resurfaced in early September. Madison seconded the motion, and even the high-toned Hamilton supported it: "Col: Hamilton expressed himself with great earnestness and anxiety in favor of the motion. He avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation. He was seriously of the opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties." Though this measure, too, was voted down by the delegates, the issue of House size would not die. Indeed, the thirty-thousand clause set the scene for a dramatic finale to the Philadelphia convention in which George Washington, for the first and last time, took center stage to address his fellow delegates on a substantive issue.

    The date was September 17, 1787--the final day of the convention. Two days earlier the convention had unanimously agreed to a final text and had authorized the engrossment of the parchment for signing. This final version provided that the number of Representatives not exceed "one for every forty thousand." Moments before the copy was finally voted upon and signed, Nathaniel Gotham of Massachusetts "said if it was not too late he could wish, for the purpose of lessening objections to the Constitution, that the clause... might be yet reconsidered, in order to strike out 40,000 & insert `thirty thousand.'" The irregularity of this eleventh-hour motion only underscored the importance of the issue. Equally irregular was the response of presiding officer Washington, who had until then officially maintained a scrupulous silence on all substantive issues:

When the President rose, for the purpose of putting the question, he said that although his situation had hitherto restrained him from offering his sentiments on questions depending in the House, and it might be thought, ought now to impose silence on him, yet he could not forbear expressing his wish that the alteration proposed might take place. It was much to be desired that the objections to the plan recommended might be made as few as possible--The smallness of the proportion of Representatives had been considered by many members of the Convention, an insufficient security for the rights & interests of the people. He acknowledged that it had always appeared to himself among the exceptionable parts of the plan; and late as the present moment was for admitting amendments, he thought this of so much consequence that it would give much satisfaction to see it adopted.

    With the weight of its president behind the measure, the convention unanimously adopted the amendment. An erasure was made in the parchment, the word thirty was inserted where forty had been, and the document was then finally approved and signed. Thus, even before the ratification struggle took shape, Federalist supporters of the Constitution showed themselves sensitive to the structural issue of congressional size.

    During the ratification debates Anti-Federalists seized upon the issue, taking up Publius's challenge to frame their opposition in structural terms. In The Federalist No. 23, Hamilton laid down the gauntlet--"the adversaries of the plan promulgated by the convention would have given a better impression of their candor if they had confined themselves to showing that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people"--and in No. 32 he double-dared the doubters: "[A]ll observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers."

    Nowhere was Anti-Federalist concern with size more evident than in the ratification conventions themselves. Of the six states where conventions endorsed various amendments before the First Congress met--Massachusetts, South Carolina, New Hampshire, Virginia, New York, and North Carolina--all but South Carolina proposed a secure minimum size for the House of Representatives. This proposal was never placed lower than second on an ordinarily long list of desired amendments. Only one principle ever ranked higher--the idea of limited federal power that eventually made its way into our Tenth (their Twelfth) Amendment. In the words of Melancton Smith, a leading Anti-Federalist, at the New York ratifying convention, "We certainly ought to fix, in the Constitution, those things which are essential to liberty. If any thing falls under this description, it is the number of the legislature."

The First Amendment Compromise Given all this, it is not surprising that the First Congress's First Amendment attempted further fine tuning of the structure of representation in the lower house. Nor is it surprising that Virginia, the home state of both Madison and Henry, ratified this amendment separately, weeks before approving the rest of the Bill of Rights. What remains to be explained is why the amendment failed, even by a single vote. Although the legislative history on this point is sparse, a close analysis of the text itself yields a couple of possible explanations.

    First, the amendment's intricate mathematical formula made little sense. If the population rose from eight to nine million in a decade, the requirement that there be at least two hundred representatives would be inconsistent with the requirement that there be not more than one representative for every fifty thousand people. In effect, the amendment required the population to jump from eight to at least ten million in a single decade. The mathematical oddness of the text is confirmed by the lean legislative history that does exist. When initially passed by the House of Representatives, the amendment was worded identically to its final version with one exception: its last clause provided for "not... less than one Representative for every fifty thousand persons." So worded, the proposal was sent to the Senate, along with all the other amendments proposed by the House. When the Senate adopted a Bill of Rights whose wording and substance diverged from the House version, the two chambers convened a joint committee to harmonize the proposed bills. At this conference, the word more was inexplicably substituted for less, and the conference paste job was hurriedly adopted by both houses under the shadow of imminent adjournment, apparently without deep deliberation about the substitution's (poor) fit with the rest of the clause. Thus it is quite possible that the technical glitches in the First Amendment's formula became evident only during the later process of ratifying Congress's proposed amendments.

    Second, what the First Amendment promised in the short term--increased congressional size--it took back in the long run. Its final clause established a maximum, not a minimum, on congressional size. Even worse, this maximum was more stringent than that in the existing Constitution. In effect, the amendment dangled the bait of more "democracy" now in exchange for more "aristocracy" in the future. Some committed democrats may have been wary of snatching that bait. Tellingly, not a single state ratifying convention had proposed a stricter constitutional maximum on the size of the House.

    Why, then, did the joint House-Senate committee insert a maximum? The lack of extant records of the committee's deliberations requires us to speculate, but the most plausible culprit is James Madison, one of three representatives (the other two being John Vining and Roger Sherman) appointed by the House. As noted earlier, Madison's Federalist presupposed an absolute maximum on the size of the legislature:

Sixty or seventy men may be more properly trusted with a given degree of power than six or seven. But it does not follow that six or seven hundred would be proportionably a better depositary. And if we carry on the supposition to six or seven thousand, the whole reasoning ought to be reversed .... In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.

    Thus when Madison initially offered up to the First Congress his proposed amendments to the Constitution, he integrated both minimum and maximum, without specifying the numbers: "the number shall never be less than --, nor more than --." Although the full House eventually rejected the idea of a maximum, Madison may well have seen his appointment to the joint committee as a chance to slip his idea back in--especially given that fellow committee member Sherman had earlier voiced doubts about very large assemblies.

    A final, more obvious explanation for the failure of the First Amendment focuses on Delaware, the only state that ratified the last ten amendments while rejecting the first. The Constitution guaranteed each state at least one seat in the House of Representatives, and Delaware in 1789 had only that one seat. With its tiny population and limited room for growth, the state had selfish reasons to favor as small a House as possible--indeed to endorse the hypothetical congressional bill that Patrick Henry had conjured up in the Virginia ratifying debates decreasing the size of the House from sixty-five members to thirteen. Under Henry's nightmare bill, Delaware could achieve equality of representation in both legislative branches, as its delegates had strenuously urged in the Philadelphia convention during the summer of 1787. Prior to the convention, the Delaware legislature had in fact issued binding instructions to its delegates to oppose all attempts to modify the one-state, one-vote rule of the Articles of Confederation. This political explanation for Delaware's vote against the original First Amendment gains added support from the conduct of Delaware Representative Vining. When an early version of Madison's First Amendment initially came up for debate on the floor of the House of Representatives, Vining unsuccessfully sought to amend it in a way that would assure small states more than proportional representation in an expanded House.

    Whatever Delaware's reasons for ultimately rejecting Madison's First Amendment, we do well to remember that only a single state--and a tiny one at that--stood between the ten success stories of Amendments III-XII and the failure of Amendment I.

Economic Self-Dealing

The Second Amendment proposed by the First Congress also went down to defeat in the 1790s but apparently lived to fight another day: after lying dormant--and presumed dead--for nearly two centuries, the Rip Van Winkle Amendment reawoke to a burst of attention and a flurry of ratifications in the 1980s and 1990s. Indeed, in 1992, more than two hundred years after being proposed, the amendment was officially proclaimed valid--as the Twenty-seventh rather than the Second Amendment to the United States Constitution.

    But its fate in the 1790s was far less auspicious--only six state legislatures ratified its words: "Article the second .... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."

    As with the original First Amendment, the original Second dealt centrally with an issue of governmental structure rather than substantive individual right. The First tried to reduce the general danger that federal lawmakers would lack knowledge of and sympathy with their constituents, whereas the Second tried to limit the ability of Congressmen to line their own pockets at public expense, a concern also evident in the emolument clause of the original Constitution's Article I, section 6. At base, both amendments shared a fundamentally similar outlook; both addressed the "agency cost" problem of government--possible self-dealing among government "servants" who may be tempted to plunder their "masters," the people--rather than the analytically distinct problem of protecting minorities of ordinary citizens from tyrannical majorities. If anything, both amendments were attempts to strengthen majoritarianism rather than check it, for both sought to tighten the link between representatives and their constituents--the First by democratizing representation, and the Second by stressing elections.

    Of the three states whose ratifying conventions had suggested a congressional salary amendment in 1787-88--Virginia, New York, and North Carolina--only the two southern states voted to ratify the idea when it formally came before their legislatures. Perhaps this was an issue about which New York state legislators felt more natural sympathy with future congressmen than had the specially called, ad hoc convention of the people of New York in 1788. Because the First Congress's First Amendment had focused on a key difference between an "aristocratic" Congress and more "democratic" state legislatures, the latter bodies could cheerfully support that amendment without calling into question their own legitimacy. But the issue of legislative salaries hit closer to home--close to their own pocketbooks. How could state legislators vote for Congress's Second Amendment without also triggering public demand for similar amendments to their respective state constitutions regulating their own salaries. Thus the lukewarm reaction of state legislatures to the original Second Amendment is itself mildly suggestive of a possible agency cost gap between the interests of constituents and legislators.

    The events of 1816 are also suggestive. When Congress enacted the first increase in congressional pay since 1789 and refused to defer the increase until after the next election, an outraged electorate responded by voting congressional incumbents out of office in record numbers. Opposition to the act found voice not simply in newspapers but in grand-jury presentments from Vermont to Georgia and in petitions and local resolutions from ordinary citizens across the continent.

    These anticongressional articles, presentments, and petitions should remind us of the need to prevent Congress from silencing its critics. This is of course a key concern of our First Amendment, to which we now turn.