Interpreting Clauses
Tracing the development of clauses (e.g., freedom of speech) in the Bill of Rights gives us a picture of both the stability and points of change. For example, has the court always interpreted the 1st Amendment the same way? What of the establishment clause? What has been the evolution of interpretations? Looking at isolated cases or decision-makers alone cannot give a sense of this development but that is really what we must understand if we want to put these clauses in temporal perspective and understand interpretive stability. The addition of the Civil War Amendments was a sea change in the balance of sovereignties between the central government and the state governments. The due process clause of the 14th Amendment eventually allowed the incorporation of Bill-of-Rights limits against state governments, hitherto just limits on the central government. The states became the greatest offenders of civil rights. Anti-Federalist concerns about an overreaching central government became a Federalist unification cry against overreaching state governments and their abuses. This was not just a change of coalitions, which indeed was underway, but a persistent limitation on how state governments treated some of their citizens.
Originalists and Living Constitution
Originalism imports much of the old anti-Federalist logic, particularly its emphasis on states’ rights or state sovereignty. Why would a method of interpreting the Constitution favor states’ rights? The anti-Federalists favored strict construction because it provided a vehicle for limiting the reach of the central government. Justice Marshall, a strong Federalist, favored loose construction. The sustained battle over the Bank, for example, displayed the enormous range between assuming that “necessary” meant the best means to a legitimate end and assuming that “necessary” could be any means to a legitimate end. Under the strict interpretation, the Constitution would limit the range of central government activity. If interpreted loosely, as Marshall indeed did, it empowers the central government. Even though the Marshall Court favored loose construction, with the occasional exception of cases like Willson v. Black Bird Creek Marsh Co., 27 U.S. 2 Pet. 245 245 (1829), originalist interpretations often veer sharply from the Marshall Court standard. While Marshall fostered central government power, the originalists seek to put the genie back into the bottle.
Strict construction of terms was only one of the anti-Federalist tools used to limit central government power. A second was the Bill of Rights and the 11th Amendment. Before the Civil War Amendments, the Bill of Rights only specified restrictions on central government power. Recall that the states in the early Republic assumed that they spoke for the people, so these rights were weaponized against the central government without the worrisome bother of individual sovereignty. The states did not need to be of their own opinion when limiting central power and ignoring those limits locally.
Several developments before the Civil War are worthy of mention. Madison’s ingenious use of the large constituency made the democratic nation-state possible, but it could not save the Republic. Madison and other Founders expected and provided for factions of self-interest and passion of the moment. What they counseled against, and could not accommodate, is the grand coalition formation in the party system. The parties crossed constituency and state boundaries, linking diverse viewpoints with partisanship. The party system, especially the two-party system, denied to Americans the benefits of competing factions within large constituencies drowning out the demands of others. The bane of partisanship sharpened the fault lines in American politics.
Most elements of the Federalist Party moved into the Whig Party and then on to the Republican Party. Jefferson’s Democratic-Republican Party, the heir of anti-Federalism, became the Democratic Party. Two major factions of the Democratic Party competed against Lincoln in 1860: an appeasement faction and a separatist faction. The separatist faction had a strong regional base in the South. Elites controlled these state governments. Lincoln estimated that only one of the seceding states might have had most voting citizens supporting secession.
The Republican Party had a strong regional base in the northeastern states. These states had a large Abolitionist faction who, upon Southern secession, took control of the legislative branch. The Abolitionists favored an immediate and sweeping end of slavery. Ironically, Lincoln favored gradual emancipation over a generation so that those coming of age over the next several decades would have decreasing experience with slavery. The Emancipation Proclamation shored up the morale of the Northern coalition and encouraged slaves to escape to the North rather than serving in the Southern army in exchange for the promise of eventual emancipation as payment for service.
With the end of the Civil War and military governments in the Southern states, the Radical or Black Republicans took advantage of their temporary legislative strength to pass the Civil War Amendments. The war had de facto freed the slaves, so the 13th Amendment formalized that arrangement. The 14th Amendment was another matter. All Southern states rejected that amendment, so the Radical Republicans required acceptance of that amendment as one condition for reentry into the Union or else continue under military rule. Member states of the Northern coalition initially accepted the amendment, but state-level elections led a couple of approving states to reverse course. The central government ratified the 14th Amendment by ignoring the recensions. SCOTUS initially refused to recognize the broader, more abstract meaning of the 14th Amendment so it limited all the Civil War Amendments to matters of race. SCOTUS ruled that the 13th Amendment (emancipation) had done its work so that amendment became dormant.
SCOTUS recognized the transformational implications of the privileges and immunities, due process, and equal protection clauses of the 14th Amendment and the transfer of enforcement to Congress in Section 5. SCOTUS parsed the 14th Amendment in ways clearly not intended by its authors. One particularly grievous decision created two citizenships: federal and state. Privileges/Immunities recognized for one type of citizenship did not necessarily transfer to the other. The privileges and immunities against the federal government need not map to the privileges and immunities of state citizenship. Being a citizen of one did not make someone a citizen of the other.
Over the decades following the Civil War and the initial emasculation of the Civil War Amendments, the court and its scholars have alternated constructional viewpoints, from strict construction to Living Constitution and around again. The juxtaposition pitted conservative and liberal interpretation buried beneath the gloss of theories of construction. If the Constitution means today what it meant in 1787 or 1865, however original intent is methodologically construed, SCOTUS and its scholars found a way to buffer the documents against changing times. Living Constitutional interpretations, from Justice Marshall’s Court forward, found greater weight for nature-of-the-times considerations in expounding the Constitution.
Original intent, even if there were an unimpeachable way of interpreting intent, still faced an ideological conundrum. Because the Constitution and its first eleven amendments betrayed Federalist and anti-Federalist sovereignties, theories of construction sometimes produced opposite results when applied to the Constitution and first eleven amendments, respectively. The divergence appears greater as individual sovereignty decouples from state sovereignty. Sometimes the results are disingenuous, such as Scalia’s bad history and poor linguistics in Heller (see chapter eleven), but jurists and interpreters used levels of scrutiny as a correction instead of using the intent of Black Republicans. If strict construction mapped a one-to-one linkage between means and legitimate government end, then strict scrutiny mapped a similar linkage between compelling reasons for mapping means to end. Loose construction allowed a many to one linkage, and rational scrutiny allowed many