We The People, and Other Strange Notions Contained in the Constitution of These United States.

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Milo Short
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And, if it is a fresh look at e Constitution at you are looking for, you need to consult a man by e name of Akhil Reed Amar. Amar is e Soumayd Professor of Law at Yale Law School.

1 We The People, and Oer Strange Notions Contained in e Constitution of These United States. Hon. W. Dennis Duggan, F.C.J. NOVEMBER, 2004 A recent outbreak of democracy in Albany County, New York, gives us a good excuse to take a second look at e compact at governs e oldest, continuously operating democracy on is planet. And, if it is a fresh look at e Constitution at you are looking for, you need to consult a man by e name of Akhil Reed Amar. Amar is e Soumayd Professor of Law at Yale Law School. For at least e last decade, Professor Amar has been e most penetrating constitutional inker in America. If you randomly selected a chapter from one of his many works you might ink you have come across e most flaming-liberal law professor in e Country----or e most arch-conservative. However, you would be wrong on bo counts because Amar is not a person easily pigeonholed. If you do have a chance to explore his writings at any dep, you will come away wi a sense at you have met a person who has given a great deal of study and ought to his subject and, as a result, has come away wi an abiding fai and confidence in We e people. 1 We e People has been a long time coming in e United States. It took about two hundred years for e We part to catch up wi e People part. And it still has a way to go before Native-Americans, BlackAmericans and Female-Americans have e level of participation in our polis equal to at of White-Male-Americans. Amar sets out several overarching principles about e Constitution and its interpretation. First, he says, e Courts have gone astray in viewing e Constitution as a bundle of discreet individual rights. The more proper view is to see e Constitution as a tapestry of rights at are held by We e people. This tapestry was meant by e Framers to protect us from government whose natural tendency is to accumulate power and oppress e governed. The ree bedrock rights (and responsibilities) at Page -1-

2 protect We e people are to vote (in elections), to fight (in militias), and to judge (on juries). We all have a basic understanding of how our Constitution can be amended. The procedure is contained in Article V. Amendments are proposed by two irds of bo Houses of Congress or by a convention at may be called upon e application of e Legislatures of two irds of e States. A proposed amendment becomes part of e Constitution when it is ratified by e legislatures or conventions in ree fours of e States. However, according to Amar (and common sense when one inks about it for a while) ere is a ird way to amend e Constitution. We e people can amend e Constitution by majority vote in a national referendum. Of course, e Constitution doesn t say anying about amendability by national plebiscite, but it doesn t have to it is an inalienable right of We e people. (The Constitution doesn t mention a lot of ings at we now take for granted, like e ability to create an Air Force or a right to privacy.) Amar contends at Article V is a restriction only on e government s ability to amend e Constitution. However, it is not e only way to amend it. The Preamble, and e Nin and Ten Amendments provide ample auority for e proposition at popular sovereignty is e moer lode of all governmental auority and e right to amend e Constitution is an auority retained by We e people. The Preamble states at We e people...do ordain and establish is Constitution for e United States of America. The Nin Amendment states at e enumeration in e Constitution of certain rights, shall not be construed to deny or disparage oers retained by e people. (Not by persons as individuals.) The Ten Amendment states; The powers not delegated to e United States by e Constitution, nor prohibited by it to e States, are reserved to e States respectively, or to e people. (Again, not to persons as individuals.) To illustrate how Amar s argument stands up, let s turn to common sense and look at a couple of examples. What if Article V stated at e Constitution could only be amended by e vote of two irds of white adult males who owned at least ten acres of property? Would anyone seriously argue at a bunch or rich white guys over two hundred years ago could bind 280 million Americans in 2004, wi such a restriction? Or, what if Article V stated at e Constitution could be amended by one ird of e Legislatures of e several states? This would clearly be anti-democratic and never be seriously considered. So, how could e ratifiers of e Constitution take away from voters of future generations e same democratic rights at ey felt were necessary for eir own freedom. That is, it is e right of e sovereign power to first ratify and en amend eir organizing compact and at right is held by e collective majority of e people. Isn t is just a goose and gander issue? But what about at fearful tyranny of e majority? Not to fear, says Amar. Since certain basic rights inhere in e popular sovereignty of e people and are inalienable, ey can not be amended away. Would anyone seriously argue at a majority of voters could reinstate slavery? (Or, even 100% of e voters, for at matter.) Page -2-

3 As an aside, is brings up a point about e long running and never ending strict constructionists vs. e living document constitutional interpretation debate. These approaches come wi various labels. Original intent, and original understanding are two at are hung on e conservative side. Liberal and activist are often used to describe judges on e oer side. To properly interpret e Constitution s original intent or understanding, one must first know what e words meant back en. That is why Justice Scalia often resorts to an 1832 Webster s Dictionary. For example: as used in e Constitution, e words happiness and property do not have e same meaning at ey do today. The next, and most obvious question would be whose intent are we to interpret. Not e Framers. That would be like asking e lawyers for two parties for eir personal interpretation of a contract. It is e parties intent at counts, not e lawyers. So, one would ink at it would be important to interpret e ratifiers intent. This is an impossible task. There are no polls of all of e persons who voted for e Constitution and we have no idea what each of em ought about e meaning of each individual clause, or even if ey ever gave it any ought. This problem is highlighted when one looks at how sparse democracy was in It seems a safe guess to say at not more an 5% of e population in general...expressed an opinion one way or anoer on e Constitution. In oer words, it is highly probable at not more an one-four or one-fif of e adult white males took part in e election of delegates to e state conventions. If 2 anying, is estimate is high. So, back to our subject. The jury is anoer institution where We e people exercise sovereignty. The big idea behind e jury is not so much protecting discreet individuals...as preserving a democratic culture. For Amar, e jury is e collective voice of e people sitting in judgment on e operations of government. For is reason, ere is a constitutional right to sit on a jury. Amar s argument is is: Since e Constitution establishes elections ere must be an electorate and hence a right to vote. Similarly, since e Constitution guarantees jury trials (and, perhaps, even mandates em in some circumstances. The trial of all 3 Crimes...shall be by Jury. Article III ), ere must be jurors and hence a constitutional right to sit on a jury. If ere is a constitutional right to sit on a jury, en it would follow at peremptory challenges are unconstitutional. Since juries are exercising e collective judgment of e people, it follows at a juror should be disqualified only for e same reasons at a judge would be disqualified from making judgments for e people. The history of e United States has been one at restricted who could vote and, always following behind at, who could sit on a jury. White males, but only if you owned property; en just white males (advanced mightily by Civil War soldiers demanding e vote); en Black males (15 Amendment, 1870); en Women (19 Amendment, 1920); en 4 young adults (26 Amendment, 1971). Amar makes several oer compelling arguments for locating e source of popular sovereignty in We e people. For example, where did e idea of sovereign immunity come from; i.e. at you can not sue e government. Page -3-

4 This is a peculiar idea in a system where all auority comes from We e people. Some of is notion is left over from e concept of e divine right of kings which, like many undemocratic ideas, looked to e Bible for justification. The Supreme Court looked to e 11 Amendment and ran wi it. The 11 Amendment states at a citizen of one state can not sue anoer state in Federal Court. This amendment was e direct result of e Supreme Court s decision is Chisolm v. Geogia which permitted just what e 11 Amendment now prohibits. What Amar notes is at e 11 Amendment prohibits only diversity of citizenship lawsuits when a State is a party. It was not meant to prohibit lawsuits filed under federal question jurisdiction. The Court went on to extend is misreading of e 11 Amendment by holding in Hans v. Louisiana (134 U.S. 1 [1890]) at a citizen of one state could not sue at state in Federal Court. The Court just invented is holding. Why boer e People when we can just amend e Constitution ourselves, held e Court. There was no need for e people to vote on an 11-A Amendment. The Court would save em e trouble. The upshot of is interpretational morass is at Congress may now pass a law directly regulating State behavior at can not be enforced in Federal Court but only in at State s court. To ameliorate is uncomfortable situation, e Supremes created e fiction at e aggrieved person can sue e State official (but not e State) who ought he was acting under e color of law, but was really acting outside e color of law because if he was acting under e color of law e action would not have violated e 5 Constitution would it? Now at we ve cleared at up, we can see at e concept of sovereign immunity is antietical to e democratic notion at We e people are e source of all governmental power. If one were to survey e American People about wheer ey ought ey had an effective voice in eir government, it is unlikely at e yea s would break 50%. The Executive branch accretes power by means of a massive, unresponsive bureaucracy at has a lot of money. The Legislative branch accretes power by e virtue of intrenched incumbency at saps e streng of e ballot box. The Judicial branch accretes power by telling everyone else what e law is, wheer ey like it or not. While each of ese power accretions tend to check e power of each of e oer branches of government, taken togeer, ey make government, as a whole, unresponsive to and unreformable by We e People. The Constitution looks quite a bit differently when viewed wi e benefit of Professor Amar s ideas. The Framers, I believe, would be shocked to find out how much power government now has and how little has been left to We e People. In fact, if you listen quietly you can hear em rolling over in eir graves chanting Power to e People! Power to e People!... Page -4-

5 1. See; We The People: What The Constitution Really Says About Your Rights, Akhil Reed Amar and Alan Hirsch, Free Press, New York, The Constitution and Criminal Procedure, Akhil Reed Amar, Yale University Press, New Haven, Essays On The Making Of The Constitution, Leonard W. Levy, Oxford Book University Press, New York, 1974, p The Supreme Court, in Patton v. United States, (281 U.S. 276 [1930] interpreted e Six Amendment guarantee at e accused shall enjoy e right to a...trial, by an impartial jury, to allow e defendant to waive his right to a twelve person jury and be tried by a smaller jury or, indeed, no jury at all. However, e Court ignored e requirement in Article III at all criminal trials shall be by jury and, disregarding specific reference to e Framers intent and controlling case law, casually wrote We e people out of e jury process, making it e personal right of e defendant to waive if he so chooses. 4. When Thomas Paine was born in 1737, in Thetford, England, only irty-one males out of two ousand inhabitants could vote. 46 Pages, Thomas Paine, Common Sense, and e Turning Point to Independence. Scott Liell, Running Press, Philadelphia, Paine is probably e most influential expositor of e idea at e rights of e people do not come from e government but e oer way around. 5. This fiction was first announced in Ex Parte Young, (209 U.S. 123 [1908]. Ironically, is fiction, which is now regularly used to uphold individual rights, was first used to protect corporate interest in rate-making cases. The decision was auored by Albany resident, Justice Rufus W. Peckham. Peckham was also e auor of e now infamous Lochner decision which overturned New York s work hour restrictions for bakeries and ushered in irty years of laissez faire constitutionalism. Page -5-

Chapter 3: The Constitution Section 1

Chapter 3: The Constitution Section 1 Objectives EQ: How does the constitution function in a way that has been flexible over a long period of time? Copyright Pearson Education, Inc. Slide 2 Standards Content