America's Unwritten Constitution: The Precedents and Principles We Live By (17 page)

This Reconstruction-era view does not render the Founders’ militia clauses wholly redundant. These clauses continue to operate to raise the effective political cost if Congress ever seeks to conscript Americans directly into the army. Thus, Congress may indeed outflank the militia clauses of Article I, but in order to execute this detour, supporters of an army draft will need to overcome political critics singing the praises of the good old militia system—a ready-made alternative rendered especially salient by the militia clauses of Article I.

Although libertarians, localists, and traditionalists might object whenever a draftee is forced to serve directly under a nationally chosen officer rather than a state-chosen military commander, egalitarians might well have a different view of the matter. Under the reconstructed Constitution, the federal government might deem it proper for white draftees to serve under black officers—an arrangement that would have shocked many a Founder (especially a southern Founder) but that would poetically personify the theme of racial equality at the heart of the Fourteenth and Fifteenth Amendments.

It is these acts of amendment during Reconstruction, rather than the formal texts of the Founding, as understood by the Founders, that best justify the current legal gloss on the army clause of Article I. Under this gloss, the army clause is now read as giving Congress general power to conscript soldiers. Thus, Congress today need not rely on the state governments if Congress believes that a military draft is warranted—whether in wartime or peacetime, and whether or not the nation’s very survival is at stake.
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The definitive judicial pronouncement on this issue occurred in the
Selective Draft Law Cases
of 1918, in which the Supreme Court unanimously affirmed the lawfulness of army conscription. The Court placed primary emphasis on the Founding text, claiming that the Article I clause empowering Congress “to raise and support armies” meant that federal lawmakers could fill the army as they saw fit. But this argument slighted various Founding-era understandings that sharply differentiated between an “army” that was expected to be filled with volunteers and a general “militia”
structure that would instead require all able-bodied men of military age to serve.

Near the end of its opinion, the Court also mentioned both the Civil War draft experience and the Fourteenth Amendment. The Court’s main gesture toward the Fourteenth Amendment consisted of a textual argument. The amendment’s opening words defining national citizenship, said the Court, affirmed national primacy and thus confirmed the propriety of the national government’s direct authority over its citizens.
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But long before the Fourteenth Amendment, the Founders’ Constitution had explicitly referred to national citizenship. Although the original document did not clearly define the term, Articles I and II, for example, required that every federal representative, senator, or president must be “a Citizen of the United States.” How did the more detailed definition of national citizenship in the Fourteenth Amendment decisively change the Founding-era basics of a citizen’s military responsibility? After all, the Fourteenth Amendment affirmed the citizenship of women as well as men. Did the amendment thereby make women—who could not even vote in the 1860s—draftable? Wasn’t the amendment’s opening section organized around the concept of civil rights, as crisply contradistinguished from political rights such as voting and military service? Textually, the amendment said nothing whatsoever about the “army” or the “militia.” Without more, it seems a stretch to read the brisk words of the citizenship clause as purposefully inverting the elaborate rules about armies and militias laid down in Article I.

The Court’s instinct was sound, but its execution was faulty: It tried to squeeze its Reconstruction argument into a textual frame, with emphasis on the written Constitution. Alongside the written document there lies an unwritten Constitution—and as we have seen, one obvious element of that unwritten system resides in the very process by which the written Constitution was ordained and later amended. Though the Fourteenth Amendment’s text said nothing explicit about armies or militias, the amendment’s enactment process did indeed—that is, in deed—embody a new role for the army.

Today it is altogether fitting and proper to read the Founders’ text through the prism of the Reconstructors’ deeds. Faithful constitutionalists
are free to reject early interpretations of the Article I military clauses that were based primarily on the Founders’ nostalgic preference for militias over armies—a preference repudiated by the Reconstruction enactment process itself, which gave the Union Army prominent pride of place over the militia. Hence the lawfulness today of a national draft, regardless of what the framers may have expected or intended.

IN THIS CHAPTER,
we have accepted the Preamble’s invitation to note what “We the People” were actually “do[ing],” and to heed how we did it, when “We” ordained and later amended the Constitution at epic moments in our national history. “We” Americans also routinely “do” a variety of things as normal persons in our daily lives. It turns out that these deeds and actions—not ordainment deeds, but ordinary deeds; not momentous public enactments, but mundane private activities—also invite interpretation, and add another layer to America’s unwritten Constitution. Therein lies our next tale.

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One key episode of persuasion occurred early in the pivotal Massachusetts ratifying convention. Samuel Adams, who had entered the convention as a skeptic, asked why the framers’ plan departed from the general American tradition of annual legislative elections. When Fisher Ames offered up an explanation, Adams pronounced himself satisfied on the point. Ultimately, Adams voted yes and his swing may have been decisive for several other delegates who followed his lead in this critical convention. The final vote was nail-bitingly close, with 187 yeas prevailing over 168 nays.

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Bowing to general practice, this book and its predecessor volume,
America’s Constitution: A Biography
, generally quote the parchment version.

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We cannot always determine which textual omissions were pointed and purposeful, and which other omissions were not, solely by examining the text itself. Background history and context will often be decisive in helping us to decide how much (if any) weight to give to the fact that a certain word, phrase, rule, or principle is not explicit in the text. Once again, we see how an unwritten Constitution (here, based on history and context) is necessary to make full sense of the written Constitution.

HOME SWEET HOME (1877).

Be it ever so humble, the home looms large in American culture and also in America’s Constitution, both written and unwritten.

N
OTHING IN THE WRITTEN CONSTITUTION
explicitly guarantees the right to have a pet dog, to play the fiddle, to relax at home, to enjoy family life with your loved ones, to raise your children, or to wear a hat. Yet these and countless other liberties are generally upheld by American governments, absent compelling reasons for abridgment. Many of Americans’ most basic rights are simply facts of life: “This is how we, the people, do things in America and we therefore have the right to keep doing these things.”

This chapter explores the constitutional status of textually unnamed or underspecified rights—first, by applying the methods of the preceding two chapters, and then by bringing a third method into the picture. In addition to reading between the lines of the text and pondering the specific procedures by which the text was enacted and amended, we must take account of—and take a count of—how ordinary Americans have lived their lives in ordinary ways and thereby embodied fundamental rights.

With case studies drawn from a wide cross-section of constitutional law—from criminal procedure to privacy law, property law, and punishment law—we shall see that judges should pay and do pay close attention to how various rights are embodied in citizens’ daily rhythms and embedded in powerful customs. Examples of such lived rights include the rights of a criminal defendant to testify and present evidence in his own defense, a right to enjoy consensual conjugal happiness in one’s home, and a right not to be punished in a cruel manner that violates modern national norms.

Though the written Constitution is quite supple when properly supplemented by a sensitive account of lived rights, the document is not infinitely malleable. Some claims of right are simply implausible, such as the claim that the Constitution calls for the exclusion of reliable physical evidence if such evidence is found by the government in a search or seizure that violates the Fourth Amendment. Any honest account of America’s Constitution must illustrate not only which unwritten constitutional rules and principles can properly be found, but also which ones cannot, and why.

WHEN IT COMES TO RIGHTS,
the written Constitution gestures beyond itself, pointing to the existence of entitlements that are not “enumerate[ed]”—not expressly listed—in the written Constitution itself. Thus, the Ninth Amendment proclaims that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But this amendment does not give us much detail about where and how these unenumerated rights are to be found. Similarly, the opening section of the Fourteenth Amendment declares that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” but does not itemize these unabridgeable rights or specify where they are to be discovered.

We have already begun to develop tools to find the source and define the scope of unenumerated rights. First, let’s recall that we must peer behind the written Constitution to locate rights that may be
implicit
in its words. Though unenumerated—that is, not expressly declared in a specific constitutional clause—implicit rights are nonetheless full-fledged constitutional entitlements on any sensible reading of the document.

To see the importance of implicit rights and the ease with which they may be properly derived, consider the following Hollywood-style hypothetical: A defendant on trial for murder in the District of Columbia claims that he is innocent and that someone else—a man with close ties to the prosecutor’s office—is the real culprit. Miraculously, the defendant has acquired decisive forensic evidence that he seeks to lay before the jury: a knife matching the victim’s fatal stab wound, with her dried blood on the blade and the real culprit’s fingerprints and DNA on the handle. The defendant is also poised to testify about the culprit’s motive. However, the prosecutor moves to exclude the knife from the trial and thereby prevent the jury from even learning of the weapon’s existence because the defense team obtained the knife via daring acts of deception and trespass committed by a private investigator. The prosecutor points to a statute generally prohibiting the introduction of illegally acquired evidence. When the defendant counters by asserting that he has a basic constitutional right to establish his innocence, the prosecutor responds that there is no such right
specifically enumerated in the Constitution, and that the statute thus governs the case. How should the judge rule?

For the defendant, of course. No matter what the prosecutor might say, the Ninth Amendment gives defense counsel a knock-down rejoinder.

For example, the prosecutor might try to rest his case on the explicit words of the Sixth Amendment: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.” These words explicitly guarantee the rights to confront the government’s
witnesses
and to subpoena
witnesses
for the defense, but there is no comparably specific language in the Sixth Amendment (or any other clause of the Constitution) guaranteeing the defendant a right to introduce
physical evidence
, such as a knife. Thus, the prosecutor’s argument would run, the words of the Sixth Amendment negate the very existence of the supposed constitutional right claimed by the defendant.

We have seen this sort of move—a sweeping argument from negative implication—before. Although such moves might make sense in some constitutional situations, this is not one of them.
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