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CHAPTER 1

FIRST THINGS FIRST

How our nationalist and states'-rights traditions, and the precise way judges have "incorporated" the Bill of Rights into the Fourteenth Amendment, have slanted our view of the original Bill of Rights ... How the first two amendments proposed by the First Congress failed to achieve ratification ... How debate over their provisions revealed the philosophical differences between Federalist and Antifederalist forces that were to influence the content of the other amendments.

The Founders' Bill of Rights was, unsurprisingly, a creature of its time. Yet because its eighteenth-century words play such an active role in twenty-first-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 original 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.

More than two centuries separate us from the world that birthed the Bill

MODERN BLINDERS CONSTRICTING OUR VIEW OF THE ORIGINAL BILL OF RIGHTS

OUR NATIONALIST AND STATES'-RIGHTS TRADITIONS

Modern Americans inhabit a world whose constitutional terrain is dominated by a series of landmark Supreme Court cases that invalidated state laws and administrative practices in the name of individual constitutional rights. Many Americans now embrace a tradition that views state governments as a major 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 our federal government. Early in the twentieth century, Justice Oliver Wendell 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." Justice Holmes had reached maturity during the Civil War era, and he understood from firsthand experience that the constitutional amendments adopted following the war — particularly the Fourteenth Amendment — reflected a similar suspicion of state governments.

The nationalist tradition, however, is far older than Reconstruction; its deepest roots lie in Philadelphia, not Appomattox. An important goal of the Federalist framers in the Philadelphia convention was to forge a strong set of federally enforceable rights against abusive state governments. Several of these limits on states appear in Article I, section 10 of the original Constitution. Indeed, the Federalists' effort to create a strong central government drew much of its life from their dissatisfaction with small-scale politics and their belief, as exemplified in James Madison's Federalist No. 10, that an "enlargement" of the government's geographic "sphere" would improve the caliber of public decision making.

Our states'-rights traditions are older than the Union itself

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. 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 continent-wide 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. For example, in 1760 "Virginia" was, legally speaking, an accomplished fact — its House of Burgesses had been meeting since the 1620s — but "America," as a legal entity, was still waiting to be born. Also, 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 abuses of the English Parliament. 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.

In helping to draft the Constitution and Bill of Rights, 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 and Jefferson Davis, 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. The Civil War was the second war fought on American soil over the intertwined issues of states' rights and human rights, but this time the relation between the two sets of rights was different. 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.

Modern 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. 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, 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. What has been lost in this modern 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 we hope will emerge from our fresh look at Madison's Bill of Rights.

Modern Americans are still living with the legacy of the Civil War

Localism and liberty can sometimes work together

THE INCORPORATION PROCESS

As noted earlier, through the Fourteenth Amendment almost all the provisions of the Bill of Rights have come to be incorporated against the states, effectively changing its meaning. Whereas the Bill of Rights was originally a set of largely structural guarantees applying only against the federal government, it has now become a bulwark of rights against all government conduct, both federal and state. Whereas the Bill of Rights was originally drafted to protect the general citizenry from a possibly unrepresentative government, it has now has been pressed into the service of protecting vulnerable minorities from dominant social majorities. In addition, the precise way in which judges have "incorporated" the Bill of Rights into the Fourteenth Amendment has had the unfortunate effect of blinding us to the ways in which the Bill has been transformed. Courts and legal scholars now appear to be applying the Bill of Rights directly against states. The Fourteenth Amendment is mentioned only in passing if at all. Like people with glasses who often forget that they are wearing them, most people read the Bill of Rights through the lens of the Fourteenth without realizing how powerfully that lens has refracted what they see.

It is time, then, to take off these glasses and see how the Bill of Rights looked before Reconstruction. Only then can we fully appreciate some of its most important features as originally conceived. When we remove our modern blinders, a rather different Bill of Rights comes into view. What follows in the upcoming 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.

The Founders inhabited a world very different than our own

THE FIRST TWO FAILED AMENDMENTS

The Bill of Rights proposed by the First Congress consisted of twelve amendments. Yet 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." The first two failed amendments are nevertheless worthy of brief examination for the insights they provide into the thinking of the Federalists and Antifederalists in the First Congress.

An examination of the first two failed amendments

THE ORIGINAL FIRST AMENDMENT: SIZE AND REPRESENTATIVE CHARACTER OF THE HOUSE OF REPRESENTATIVES

The words that modern Americans refer to as the "First Amendment" really weren't "first" in the minds of the First Congress. Read 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 deals with the structure and organization of government, not individual rights. It is an explicit modification of the structural rule set out in Article I, section 2 of the Constitution, which mandates that the "Number of Representatives shall not exceed one for every thirty Thousand" constituents.

Antifederalist Objections, Federalist Responses

This amendment responded to one of the Antifederalists' most important cluster of concerns: demography and geography — the numerical size of the citizenry and the spatial sweep of the nation. The Antifederalists adhered to classical political theory that 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 world views, 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 preimperial Rome. One of the Antifederalists' most important concerns James Madison and the Federalists stood this classical view on its head by claiming that a large and modestly diverse society could actually produce a more stable republic than could a small and homogeneous 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 Antifederalist concern about size. In The Federalist No. 2, for example, John Jay noted the many ways in which (white) Americans shared a basic uniformity that constituted them as one people, ethnically, culturally, linguistically, historically, commercially, and geographically.

For Antifederalists, the Constitution was at heart an aristo cratic document

A related Antifederalist objection to the Constitution was that Congress too small, too rich, too "refined." The Antifederalists feared that because the legislature was so small, only great men with reputations spanning wide geographic areas could secure election. Thus for Antifederalists the Constitution was at heart an aristocratic document, notwithstanding its ringing populist proclamations ("We the People ...") and dramatic ratification by specially elected popular conventions. Antifederalists feared that the aristocrats who would control Congress would have an insufficient sense of sympathy with, and connectedness to, ordinary people. Unlike state legislators, these 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.

The Antifederalists 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 secret plots and intrigue.

The Federalists 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 w[oul]d be too sparsely taken from the people, to bring with them all the local information which would be frequently wanted." However, this motion went down to defeat in July.

But after the Constitution was ratified, Madison returned to the issue of congressional size, with a proposed first amendment that (at least in the short run) promised a larger — more representative, less aristocratic — Congress. Despite the Federalists' attempt to reach a compromise with the Antifederalists on these size-related issues, the amendment fell one state short of ratification. The key state appears to be Delaware, the only state that ratified the last ten amendments while rejecting the first. Whatever its reasons for spurning the First Congress's First Amendment (the legislative history is sparse, but because of its tiny population and limited room for growth, Delaware had selfish reasons to favor as small a House of Representatives as possible), 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 the original Amendment I.

The original First Amendment fell one state short of ratification

THE ORIGINAL SECOND AMENDMENT: RESTRICTING ECONOMIC SELF DEALING

One of the principal objectives of the Bill of Rights' framers was to insure that the officials to whom the people have delegated power to run the government's day-to-day affairs would be restrained from selfdealing contrary to the interests and expressed wishes of the people. The original Second Amendment was obviously directed to minimize such activity: "Article the second. ... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until after an election of Representatives shall have intervened."

The original Second Amendment also went down to defeat

This amendment went down to defeat in the 1790s. Only six state legislatures ratified its words. The likely reason for its failure to achieve ratification is that whereas the original First Amendment had focused on a key difference between an "aristocratic" Congress and more "democratic" state legislatures (so that the state legislators could cheerfully support the First Amendment without calling into question their own legitimacy), the original Second Amendment's issue of legislative salaries hit closer to home — close to their own pocketbooks. How could state legislators vote for this amendment without also triggering public demand for similar amendments to their respective state constitutions regulating their own salaries?

However, the original Second Amendment apparently lived to fight another day. After lying dormant — and presumed dead — for nearly two centuries this Rip Van Winkle Amendment reawoke to a burst of attention and a flurry of ratifications in the 1980s and 1990s. 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.

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Excerpted from "The Bill of Rights Primer"
by .
Copyright © 2019 Akhil Reed Amar and Les Adams.
Excerpted by permission of Skyhorse Publishing.
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