America's Unwritten Constitution: The Precedents and Principles We Live By (87 page)

39
  Even today, it remains common for witnesses in public settings to invoke God in some way, and in particular to add the words “so help me God” when these persons are formally sworn in as witnesses, or to swear on a Bible even though the law today generally does not (and cannot) require these religious trappings.

40
  Amar,
ACAB
, 166.

41
  First Reconstruction Act of March 2, 1867, 14 Stat. 428. Strictly speaking, the act did not require the excluded states to do anything; it merely mapped out a safe harbor. If states did the things specified in the statute, they would thereby win readmission.

42
  The act envisioned disfranchisement of certain felons and former rebels.

43
  See, e.g., Pinckney G. McElwee, “The 14th Amendment to the Constitution of the United States and the Threat That It Poses to Our Democratic Government,”
South Carolina Law Quarterly
11 (1959): 484.

44
  See Proclamation of Andrew Johnson, July 27, 1868, 15 Stat. 708; Certification of William H. Seward, July 28, 1868, 15 Stat. 708–711.

45
  Felix Frankfurter, “John Marshall and the Judicial Function,”
Harvard LR
69 (1955): 217, 229.

46
  William M. Wiecek,
The Guarantee Clause of the U.S. Constitution
(1972), 13.

47
  On speech suppression in the 1850s, see Clement Eaton,
The Freedom-of-Thought Struggle in the Old South
(rev. ed. 1964); Russell B. Nye,
Fettered Freedom
(1963); W. Sherman Savage,
The Controversy over the Distribution of Abolitionist Literature, 1830–1860
(1938); Michael Kent Curtis, “The 1859 Crisis over Hinton Helper’s Book,
The Impending Crisis
: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment,”
Chicago-Kent LR
68 (1993): 1113.

48
  See
CG
39-1, 430 (Bingham) (“There was then [at the Founding] no State in this Union wherein any considerable portion of the free persons of the United States, being male persons over twenty-one years of age, were disfranchised”). For more statements, see Amar,
ACAB
, 603–604 n. 37.

49
  See, generally, Amar,
Bill of Rights
, 137–294; Amar,
ACAB
, 376–378, 385–392. See also infra Chapter 4.

50
  On the 1864 electoral-college tally, see Joint Resolution of Feb. 8, 1865, 13 Stat. 567.

51
  The ellipsis here is ironic: Two quite distinct constitutional passages are being playfully joined, the first in Article I, and the second in Amendment II. The Founding generation said in Amendment II that militias—not armies—were necessary to the security of a free state. But post-Civil War America has reasons to read the constitutional text in a quite different way—reasons that are not fully textual but entirely constitutional, thanks to the role that the Union Army played in the war and its constitutional aftermath.

52
  See, generally, Amar,
Bill of Rights
, 53–58.

53
  For more on Webster, see ibid., 57–58.

54
  Act of March 3, 1863, 12 Stat. 731.

55
  For a transcript of Taney’s draft opinion—“Thoughts on the Conscription Law of the United States”—see Martin Anderson, ed.,
The Military Draft
(1982), 207–218.

56
  Subsequent military reconstruction legislation also merits mention. See, e.g., Supplementary Reconstruction Act of March 23, 1867, 15 Stat. 2. For general discussion of military reconstruction legislation and of the military’s role in Reconstruction, see Michael Les Benedict,
A Compromise of Principle: Congressional Republicans and Reconstruction
, 1863–1869 (1974), 223–243; Eric Foner,
Reconstruction: America’s Unfinished Revolution
,
1863–1877 (1988), 271–277, 307–308, 438; Kenneth M. Stampp,
The Era of Reconstruction, 1865–1877
(1965),144–147; Joseph B. James,
The Ratification of the Fourteenth Amendment
(1984), 210–211.

57
  Perhaps it might be said that the permissibility of the draft was truly settled on the battlefields of 1863–1865, rather than in the enactments of 1866–1870. But did the Civil War battlefield experience justify even a peacetime draft?

58
  
Selective Draft Law Cases
, 245 U.S. 366, 389 (1918).

1
    Recall the suggestion in Chapter 1 that a negative-implication argument should never be decisive absent additional, fine-grained reasons to support its application in a given situation. To fully persuade, these fine-grained reasons will typically need to reference something beyond the mere words of the clause—for example, history, structure, common sense, or the interrelation between the clause and some other textual provision(s) of the Constitution.

2
    See Amar,
CCP
, 116–144 (explicating the Sixth Amendment’s truth-seeking and innocence-protecting architecture); see also
Holmes v. South Carolina
, 547 U.S. 319, 324 (2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a ‘meaningful opportunity to present a complete defense’” [quoting earlier case law]).

3
    
Calder v. Bull
, 3 U.S. (3 Dall.) 386, 387–388 (1798) (opinion of Chase, J.). Chase’s reference to the impropriety of punishing an innocent man appeared in the specific context of his condemnation of ex-post-facto criminal laws. Because the reason such laws are violations of first principles is that they enable government to punish men for actions that were innocent when done, the same principle condemns punishment of an innocent man via a different procedural trick—namely, preventing him from presenting his defense. For thoughtful analyses of how procedural rules in court must be structured so as not to undermine broadly accepted norms of primary conduct outside the courtroom, see Meir Dan Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,”
Harvard LR
97 (1984): 625; Charles Nesson, “The Evidence or the Event? On Judicial Proof and the Acceptability of
Verdicts,” Harvard LR
98 (1985): 1357.

4
    See Amar,
Bill of Rights
, 108.

5
    On the necessary-and-proper clause, see Chapter 1, nn. 30, 33, and accompanying text; on free speech, see ibid., text accompanying nn. 38–44, and Chapter 2, text accompanying nn. 1–6. Likewise, the Tenth Amendment textualized principles of federalism and popular sovereignty obviously implicit in the original Constitution and embodied in the enactment process.

6
    On constitutional redundancy in general, see Akhil Reed Amar, “Clarifying Clauses and Constitutional Redundancies,”
Valparaiso U. LR
33 (1998): 1. On the declaratory nature of the Bill of Rights, see Department of State, Bureau of Rolls and Library,
Documentary
History of the Constitution of the United States of America
(1894), 2:321; Amar,
Bill of Rights
, 147–149. On Wilson and Ellsworth, see Chapter 1, text accompanying n. 9.

7
    See, generally, Amar,
Bill of Rights
. See also infra Chapter 4.

8
    The premier exponent of this general approach to constitutional interpretation is Professor Barry Friedman. See, generally, Barry Friedman,
The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution
(2009), and Barry Friedman, “Dialogue and Judicial Review,”
Michigan LR
91 (1993) 577, 590–605. Professor Jeffrey Rosen’s work also merits special mention here. See, generally, Jeffrey Rosen,
The Most Democratic Branch: How the Courts Serve America
(2006). For yet another interesting discussion, see David A. Strauss, “The Modernizing Mission of Judicial Review,”
U. of Chicago LR
77 (2009): 859. For path-breaking work on the importance of American ethos more generally in constitutional interpretation, see Philip Bobbitt,
Constitutional Fate: Theory of the Constitution
(1982), 93–177.

9
    See
Ferguson v. Georgia
, 365 U.S. 570, 573–575 (1961); Joel N. Bodansky, “The Abolition of the Party-Witness Disqualification: An Historical Survey,”
Kentucky LJ
70 (1981): 91.

10
  See, generally, Albert W. Alschuler, “A Peculiar Privilege in Historical Perspective: The Right to Remain Silent,”
Michigan LR
94 (1996): 2625, 2641–2646.

11
  See
Ferguson
, 365 U.S. at 577; Alschuler, “Peculiar Privilege,” 2660–2664; Bodansky, “Abolition,” 93; Amar,
CCP
, 73–74, 83–88. See also
Wilson v. United States
, 149 U.S. 60, 66 (1893).

12
  In
Holmes v. South Carolina
, 547 U.S. 314, 326 (2006), a unanimous Court cited
Rock
with approval and built upon its central teaching.
Holmes
, incidentally, was the maiden opinion of Justice Samuel Alito, himself a former prosecutor.

13
  In the extremely unusual case in which a fair federal trial simply cannot be held in the crime-scene state, a defendant is entitled to move the trial to some other state where a fair trial can be had. Although unenumerated, the right to a fair trial is obviously implicit in the Fifth and Sixth Amendments, and indeed in the entire Constitution read as a whole. As noted in Chapter 1, even seemingly literal and absolute legal commands may sometimes yield in unusual cases that were not contemplated by the law’s enactors. A narrow rule moving federal criminal trials beyond the crime-scene state only when required by a fair-trial imperative can be brought within the scope of this background interpretive principle. A sweeping rule mandating a trans-state venue change any time a defendant so requests cannot be; this latter rule is simply a blanket negation of the “main object” of the venue clause of the Judicial Article, which aims to prescribe a fixed trial location regardless of the defendant’s preferences—or the prosecutor’s or the judge’s preferences, for that matter. Before a federal trial is properly moved to another state, all legitimate in-state options—relocation to another district within the state, extra-strict rules of juror selection, extra-careful jury instructions—must be unavailing. If one of these alternatives is workable, there is no conflict between the crime-scene-state-venue command of the Judicial Article and the fair-trial command of the Constitution as a whole, and both commands should be followed.

14
  A possible objection: Whereas the written Constitution recognizes a defendant’s right
to remain silent, the unwritten Constitution recognizes his right to speak. Since silence and speech are opposites, isn’t this a contradiction? No. A contradiction would arise if, for example, judges recognized an unwritten constitutional right of a violent crime victim to force the criminal defendant to take the stand at his own criminal trial and answer all relevant questions propounded by the victim. Such an interpretation of the unwritten Constitution would indeed negate the written Constitution, which plainly declares that a criminal defendant cannot be compelled to testify in his own criminal trial. But there is no contradiction in saying that the Constitution recognizes a defendant’s right to stand mute or to take the stand, as he chooses. On this reading, the Constitution simply gives him the option, the freedom to decide for himself—a waivable right and a right to waive. Had the Constitution explicitly guaranteed the defendant the right to testify or be silent, no contradiction would have arisen. The matter is no different merely because the Constitution explicitly guarantees his right to silence while only implicitly guaranteeing his right to testify.

15
  In the words of Dr. Benjamin Rush, a signer of the Declaration of Independence, at the Pennsylvania ratifying convention: “Our rights are not yet all known. Why should we attempt to enumerate them?”
DHRC
, 2:440 (Nov. 30, 1787) (Wilson’s notes).

16
  Specific historical evidence exists that the Thirty-ninth Congress envisioned a system in which both Congress and the courts would protect rights and in which citizens in general could claim the benefit of the more generous view of a given right. See Michael Kent Curtis,
No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights
(1986), 128–129; Akhil Reed Amar, “Intratextualism,”
Harvard LR
112 (1999): 747, 826. And as a matter of simple common sense, it would be odd to think that Congress could generally license states to flout basic Fourteenth Amendment rights, given that most of these rights are also guaranteed against Congress itself. See also
Katzenbach v. Morgan
, 384 U.S. 641, 651 n. 10 (1966). On Congress’s power to create new rights under section 5, see Amar,
Bill of Rights
, 175 n
^*
; Amar, “Intratextualism,” 821–825.

17
  See
Barron v. Baltimore
, 32 U.S. (7 Pet.) 243 (1833); Amar,
Bill of Rights
, 195–196 & n.
^*
, 281–282 & n.
^*
.

18
  For an important qualification of this generalization, see the concluding paragraph of this chapter.

19
  Amar,
CCP
, 132–138; Amar,
Bill of Rights
, 117–118.

20
  For capital defendants, see Federal Crimes Act of 1790, ch. 9, sec. 29, 1 Stat. 112, 118. On the judge as counsel, see John H. Langbein, “The Historical Origins of the Privilege Against Self-Incrimination at Common Law,”
Michigan LR
92 (1994): 1047, 1050–1052. See, generally, Amar,
CCP
, 140–141.