Victor Nuovo: Rule of law is a living tradition
17th in a series
The Constitution of the United States is not engraved in stone. It can be changed by adding, deleting and revising. Article VI of the Constitution describes the process. The 27 amendments appended to the main text along with internal additions and deletions are the results of this process. Reviewing them and setting them in their historical contexts is a good way to review the history of the United States in its ongoing effort to achieve a more perfect union. For example, Amendments 13, 14 and 15, are best understood when viewed against the background of the Civil War and its aftermath.
A common concern of those who opposed ratification of the Constitution is that it lacked a Bill of Rights. And to meet this concern, when the first Congress convened on March 4, 1789, James Madison introduced a set of 12 amendments. They were adopted and sent to the states for ratification. Ten of them were ratified and in 1791 they were added to the Constitution. They have since become known as the Bill of Rights.
The Constitution has also changed over time through interpretation. This has been the case with the Bill of Rights. In his book “The Bill of Rights” the constitutional scholar Akhil Reed Amar explains how this happens, indeed, has happened. He begins with the question, “Whose rights?” He notes that, when first adopted, the Bill of Rights was not meant to assert the rights of individuals, but the rights of the People of the United States, the same People who had established and ordained the Constitution.
What was at issue was popular sovereignty, the right of the People to establish and disestablish and modify its government, a right asserted in the Declaration of Independence and memorialized in the Preamble to the Constitution — “We the People …” It must be added that the People in this instance is not an unruly mob; rather the People denotes a community of free persons who have the right and the power collectively to fashion their government and choose who governs them, and to establish and amend its fundamental law, which thereafter they as citizens have a duty to obey. In contrast, the mob that invaded the U.S. Capitol on Jan. 6, 2021, was not asserting their rights, rather they were breaking the law; they were insurrectionists, not patriots.
Amar goes on to observe that after the adoption of the 14th Amendment, the answer to the question “Whose rights?” was given a different answer: The Bill of Rights belonged to individuals, to anyone born or naturalized or residing in the United States. Which is not to say that the former rights, the rights of the People collectively were subsequently denied. Rather, by means of the 14th Amendment, the scope of the Bill of Rights was enlarged to encompass not only the People as a whole, but every individual person. Nothing was lost; more was gained.
This shows that the Constitution and the rule of law which it prescribes is a living tradition, what the late Ronald Dworkin described as “Law’s Empire” constantly expanding and encompassing. There is nothing dead in the rule of law. It is alive and well and may go on forever. And indeed, the ratification of the 14th Amendment, along with the 13th and the 15th, fulfilled the hope expressed in the Preamble, “to secure the blessings of liberty to us and our posterity.”
And, as Madison observed, liberty is to a civil society as breath is to a living body. Moreover, the rights asserted in the Bill of Rights are what make this nation an “Empire of Liberty,” which is the title of an excellent history of this country by Gordon S. Wood. But liberty is neither license nor the passion of unruly hoodlums; it is a franchise possessed by the People each and all.
After this very long prelude, I come to my subject, The Bill of Rights.
The First Amendment asserts the right of the People by setting limits on the power of Congress to legislate: “Congress shall make no law respecting the 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 peacefully to assemble, and to petition the Government for a redress of grievances.” This amendment is the weightiest and meatiest of all. The rights of religion, speech or expression, the press, peaceful assembly, petition are the bulwarks of a free society.
The Second Amendment is unique in that is comes with its own preamble: “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.” To put this amendment in its historical context, one needs to recall Paul Revere’s ride on the 18th of April, 1775 (“Hardly a man is now alive who remembers that famous day and year”). “A well-regulated Militia” has been institutionalized in the National Guard. It was intended as a safeguard against tyranny.
The Third Amendment makes one’s home one’s castle. The Fourth asserts the right to privacy: the right to be free, alone, undisturbed not only in one’s home, but in one’s person, in one’s proper self.
The Fifth, Sixth, Seventh and Eighth Amendments pertain to the administration of justice, in particular the right of persons to be judged by their peers. The Fifth Amendment adds to the Fourth, by asserting the right of persons not to be made to give evidence against themselves — the “Fifth Amendment” plea. The Eighth speaks to incarceration.
Finally, the Ninth and 10th Amendments assert that other rights and powers of the people or the states not mentioned in the Constitution are not denied but are reserved by them, are still in their possession. The question immediately arises: what are these other rights and powers? They are too many to enumerate. We discover them by reflecting on what it means to be “born free.”
Born free, as free as the wind blows
As free as the grass grows
Born free to follow your heart
So may it be always.
To be continued.
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