The resulting problem of matching interpretation and scrutiny reflects what is a mini/max strategy. Originalist or strict construction of the Constitution helped limit the reach and power of the central government. Rational scrutiny, as the 14th Amendment gained strength, limited individual sovereignty by granting the government several ways to penetrate the individual’s protected sphere. The optimal mix for state sovereignty by this time would be strict construction of the Constitution but rational scrutiny for the Bill of Rights limitations on state government. This gives the state governments maximum power. The optimal mix for federal or individual sovereignties would depend upon with which side the individual sovereignty made coalition and whether state sovereignty got its optimal mix. The resulting picture of intent and scrutiny might appear unrelated, but that is because maximizing the power of either central government sovereignty or individual sovereignty is multivariate. Laying out the various patterns possible after the Civil War provides a tidy package of explanation. Individual sovereignty is not set apart from the other sovereignties until incorporation of various rights through the due process clause of the 14th Amendment.
Natural Law and Natural Rights
The doctrine of Deism, endorsed by people like Thomas Jefferson, held that morality was discoverable through human reason and human observation of nature. There would be no need for church teachings or revelation. Judges could always have equity and fairness in mind when squaring present circumstances with those from the past. The self-evident truths in Jefferson’s Declaration of Independence speak directly to a morality derived from learning to look and learning to think. The ethics of Western Christian tradition shone brightly: the teaching of a moral ideal, the subsequent imperfection of existing standards, and a call to make what is into what ought to be. This is what one variant of the Living Constitution would bring to the Bill of Rights; no devotion to the past should undermine the rights of humans.
These self-evident truths were so obvious they do not need an enumeration in the Bill of Rights. In his famous circuit court case Corfield v. Coryell (6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823), Justice Washington summarized the fundamental rights of all people of any state or free nation to include protection, the enjoyment of life and liberty, the right to property and the pursuit of happiness and safety. Washington elaborates with the right of a citizen to pass through or become a resident of another state without penalty, to claim the writ of habeas corpus if necessary, to use the courts, and to hold and dispose of property. Later justices would add more to this list, including the right to form and maintain family, the right of procreation, and the right of privacy.
The court interprets the meaning and application of clauses (how the court has parsed the Constitution and Bill of Rights, such as habeas corpus or due process). The Deist distinction between fundamental and enumerated rights countenanced a large protective sphere around the individual against any government intrusion (fundamental rights) and federal intrusion (Bill of Rights). The Deist interpretation of fundamental rights may have exited stage left, but the notion of fundamental rights underlying enumerated rights remained center stage. Reason allowed humankind to penetrate the mysteries of individualism and individual sovereignty, not the opinions of those long dead or former publics long vanished.
The Deist justification of fundamental rights resembled earlier doctrines of natural law or natural right. Even before, the Roman Empire emphasized laws derived from the practices of all civilizations hither and thither: jus gentium, or law of the people. These were rules thought to be a constant from corner to corner of the empire. These and other doctrines had a common component: fundamental rights and obligations were emergent. We did not wake up one day with a working knowledge of these fundamentals. We came to recognize them. We came to understand them. We came to cherish them. Much less apparent is the close connection between fundamental rights and obligations and English common law. It too is emergent. Centuries of iterations between king and subject kept changing where the authority of the kings end and where the rights of subjects begin. The pace of common law accretion was slow, but apart from stretches in the fabric of time, English common law favorably compares to the unfolding of international law under the liberal democratic order of the post–World War II era.
The appearance of what one or another observer sees as an ad hoc extension testifies both to the continuity of law and the expectation that the process still evolves. Charges of ad hoc exercise begs two questions: does it fit and, if so or not, why? Constitutional law and even statutory law extend the common law at a much faster pace. The fabric is the same but adjusted for size. The longevity of the Marshall Court made a difference for Constitutional interpretation then and thereafter. The separation of fundamental and enumerated rights made a difference then and thereafter. The technique of stare decisis served a basic function in this process: continuity. The methodology used in this book, tracing the development of court themes over time, is an essential method for understanding the American nation-state legal development.
Conclusion
On sequential pieces of parchment, America has two constitutions. The Constitution of 1787 viewed followers and well as leaders with suspicion and condescension. The Bill of Rights celebrated the ordinary citizen and welcomed democracy. The Federalists subscribed to the first theory; the anti-Federalists subscribed to the second. The Federalists wanted a central government with power but insulated from abuse. The Separation of Powers, with each branch of government serving as checks and balances on the other, and a representative system with large constituencies would serve that goal. The anti-Federalists would have preferred a confederation, but they were begrudgingly willing to settle for a very weak form of federalism coupled with a Bill of Rights. The anti-Federalists wanted as much power left to the states as possible and, since the states claimed allegiance of the people, wanted a Bill of Rights that would further keep the central government at bay.
The Bill of Rights would eventually become a source of individual sovereignty, separated from the state interests that thought they subsumed it. It would take more than a century, including a Civil War, explosive Civil War Amendments, and a recalcitrant court intent upon limiting the Civil War Amendments to race, before individual sovereignty could become a countervailing force to both federal and state government intrusions. The resulting triangle of competing sovereignties allowed shifting coalitions of two against the third, but only individual sovereignty advocates shifted sides.
Under Chief Justice Marshall, the court remained the bulwark of federalism even after the electorate had made a decisive turn toward anti-federalism. So-called loose construction favored the central government. The prolonged fight over “necessary” in “necessary and proper” symbolized what was at stake. Loose construction allowed a many-to-one mapping between means and ends; strict construction sought to limit the mapping to one-on-one. Loose construction was the consistent battle cry underlying variants of “Living Constitution.” Strict construction was the battle cry for various originalist doctrines. The distinction applied well to the Constitution of 1787, but less so for the Bill of Rights and Civil War Amendments. Strict scrutiny required the government to find a compelling reason for intervening in the protected sphere of the individual. Rational scrutiny accepted most government reasons for intervention as adequate. As the 14th Amendment strengthened the individual’s protected sphere against state intrusions, rational scrutiny or a many means-to-an-end standard allowed state forays into the individual’s protected sphere.
The separation of fundamental and enumerated rights also tied to the triangle of sovereignties. Once the individual sovereignty advocates aligned with central government advocates, the very notion of fundamental rights gave the court greater reason to limit state interventions. Court elaboration of unenumerated fundamental rights gave support for an individual’s protected sphere, backed of course by central government enforcement. The existence of fundamental rights has deep roots in Western civilization, but strict constructionists often see these as blank checks given to the Supreme Court. There are exceptions to every rule, such as interpretation of the 2nd Amendment.
Those who wrote the Constitution and Bill of Rights used terms general enough to allow the court to expound a Constitution, expound the protected sphere of individual citizens, and in some cases, expound protections for noncitizens as well. Marshall’s Living