The Consent of the Governed, Article V, and Originalism

Ahkil Reed Amar; in his article ‘The Consent of the Governed: Constitutional Amendment outside Article V’; in the March 1994 Issue of the Columbia Law Review;1 argues for the validity of a non-enumerated Constitutional amendment that is grounded in the history of the constitution outside of Article V.2 The purpose of this article is twofold. The first purpose is to address the premise of Amar’s argument, and the second purpose is to elaborate on the significance of Amar’s research and arguments for a theory of popular sovereignty and this theory’s impact on the jurisprudence of ‘Originalism’.

Amar’s article argues that there is an avenue for the American people to achieve the ratification of a constitutional amendment without the procedure of amendment proposal or ratification indicated in Article V of the constitution.3 Amar states that a majority of the people can petition the government directly with an amendment proposal for constitutional convention, and that the government would be obligated to accept this proposal because of the incorporation in the constitution of the first principle of ‘popular sovereignty’ of the people -the power of ‘We the people’ to change or abolish government whenever we please.4 Amar states that such an amendment could be ratified by a simple majority of American voters.5 Amar argues that this principle is announced in the declaration of independence as a founding principle.

We hold these truths to be self- evident, that all men are created equal, that they are endowed by their creator with certain unalienable(natural) rights… that…governments…derive their just powers from the consent of the governed. That whenever any form of government becomes destructive of (its) ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness”.6

Amar then begins the elaborately constructed defense of his position with his premise. “Begin by noting what Article V emphatically does not say. It emphatically does not say that it is the only way to revise the Constitution”.7 I disagree. A simple and careful straightforward reading of Article V shows strong evidence in the text that Article V does say in a strong sense that the two procedures for amendment proposal are the only ways for amendment proposal. Let’s look at the words of Article V:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;”..8

Article V enumerates two methods, which according to the Article “in either Case, shall be valid as Part of this Constitution”. Obviously the key words with regard to the simple incorrectness of Amar’s premise are the words- “In either case, shall be Valid”. ‘Either’ is an exclusionary conjunction which limits the scope and significance of the connection to a choice between one term under consideration or the other term under consideration. The phrase ‘either one OR the other’, always denotes directly a choice between two. The word ‘Either’ groups only two terms in the English language- while eliminating the inclusion of any other possible choices, unless otherwise indicated in the language preceding or following. There is no such language in the text of Article V that otherwise indicates any other choices. In other words, the text says clearly: there are two methods to propose an amendment that are valid- and your choices are only between one method or the other.

Article V needs no other clause indicating exclusion of other modes of amendment outside of this language because the restriction is achieved by the economy of use of the limiting conjunction ‘either’, which confines the choice options, while excluding all others, solely within the text present in Article V. The phrase “shall be Valid” thus confers validity on what is limited by the previous limiting conjunction- ‘either one method of amendment proposal, or the other method, and no others, are valid methods of amendment proposal.’ The phrase “In either case” also indicates that both methods cannot be attempted simultaneously in the proposal of a specific amendment, otherwise the language would have read- ‘in both cases’, or ‘in these cases’. Furthermore, the use of the conjunction “or”, in the clause on ratification methods denotes the same restrictive choice structure- ‘one or the other’.

“when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by Congress”;9

The plain language and meaning of the text of Article V couldn’t be clearer. The language in the paragraph enumerates the only two choices of method of proposing a valid constitutional amendment, describes the only two valid choices of methods of ratification of an amendment, and restricts the power of Article V for amending 3 provisions in the constitution until a specific future time. Amar’s premise upon which is built the remainder of his structure of argumentation for a valid non-enumerated constitutional right of amendment is clearly false through a careful reading of only the text of Article V. The elaborate construction that follows in Amar’s article based on this false premise thus easily falls apart.

What Amar’s evidence and arguments attempt to present is the support in an historical basis for a valid non-enumerated process of constitutional amendment. For these purposes the research fits the argument in only a weak sense. The combination is unconvincing as a historical case for the validity of constitutional amendment outside Article V, as Professor Monaghan has clearly demonstrated.10

First, the specific popular sovereignty language of needing a mere majority for ratification as listed by Amar in States Bills of Rights,11 was not adopted by the founders in the U.S. Constitution. Combine this with Monaghan’s research showing that the history demonstrates that the Founders attempted to limit the popular sovereignty of the people through the supermajority requirement in Article V12 and through the Federal use of elected representatives13 to propose amendments, and the case for a direct popular sovereignty submission of an amendment has no direct support in the research.

Second, the reference to ‘first principles’ to alter or abolish by revolutionary popular sovereignty indicated by Madison14 aren’t adopted into Article V either. There is thus a tremendous legitimacy problem with Amar’s proposal due to the discrepancy between the population requirement of only a majority for submission and ratification in Amar’s proposal, and the supermajority of ¾’ths of the States actually indicated in Article V. The previous lower thresholds proposed by delegates were rejected,15 indicating that the founders as a whole wanted the supermajority threshold. So Madison’s indication in the passage referenced by Amar doesn’t appear to be definitive of the founders’ intent, just one founder’s intent.

Some problems with Amar’s proposal: What argument would justify legitimately attempting to circumvent the supermajority requirement by a political party to pass an amendment that proposes drastic ideological and structural change, that couldn’t also be used to justify an opposite ideological and structural change by the opposing political party- should they achieve a majority? How does one judge that government has become ‘destructive’ enough to require alteration or abolition, while at the same time not be ‘destructive’ enough so that the voting fails at achieving a supermajority? And if it is destructive enough to change through extra-constitutional revolutionary means, how does one determine that government is destructive enough to alter with a majority, but not destructive enough to abolish? Or that government is destructive enough to abolish with only a majority, and not with the supermajority indicated for mere amendment by Article V?

Amendment proposal under the mere majority espoused by Amar, would include election rules that would heavily favor the current majority party, in attempt to make permanent the majority. Were Amar’s amendment proposal and ratification methods valid, after the 2004 elections, with republicans capturing 30 states, they would have been justified in claiming majority popular sovereignty right to: 1) repeal the 14th amendment, 2) make the ‘unborn’ Citizens, 3) eliminate all taxes for entrepreneurs, and more. I side with Monaghan’s admonition here,16 that time has proven that the supermajority requirement in Article V for limiting sweeping change through amendment was wise.

The stability provided by the supermajority requirement in Article V, combined with the Article’s ability to change, may very well be the balancing factors that have allowed our form of Government to last so long, with only the one serious attempt in our history to abolish it.

Furthermore, the examples of Popular Sovereignty in the preamble and infused throughout the Constitution listed by Amar actually work against Amar’s argument for the purposes of establishing the validity of amendment outside Article V, because they confer legitimacy that amendment of the Constitution through Article V is the exercise of the will of the people, is the very exercise of popular sovereignty, as difficult as it may be to achieve.

The non-enumerated constitutional amendment proposed by Amar has no legality through the constitution, and is such extra-constitutional. The right for the people to alter he cites in the Declaration of Independence is thus fulfilled through Article V, and this leaves the right to abolish- which is clearly an extra-constitutional revolutionary right only exercised when the people decide the constitution and form of government are ‘destructive’ enough to do so. Any attempt to alter the constitution outside Article V thus would legally have to be considered a complete discarding of the Constitution as a whole, and the reestablishment of a new Constitution, to validate this change.

The Unintended Benefit of Amar’s Popular Sovereignty Research in the ‘Consent…’

What Amar’s research unintentionally presents and supports is the historical basis and support for the popular sovereignty legitimacy and dynamism of Article V itself, and this combined with the locus of foundational constitutional authority in the Declaration of Independence phrase “the consent of the governed” thus undeniably infuses the dynamic principles of fundamental change, popular sovereignty, and ongoing citizen participation in the people’s interpretation of the Constitution and thus also in the interpretation and consideration of Supreme court decisions in the application of the Constitution, as undeniably supported by the original intention of the founders. The reading of popular sovereignty consent through the prism of Article V dynamism, is therefore essential to the application of the Constitution by Supreme Court decisions, and forever destroys the intellectual foundations of today’s static Originalism as authentic and consistent as a method of constitutional interpretation.

The three theoretical foundations of today’s static Originalism as a valid method of constitutional interpretation for jurisprudence are thus undeniably intellectually undermined by the history of the founding. 1) The position of Originalism based on the authority of the framers is undermined because the framers themselves deny primary authority, and place it rather in the agreement of the people. 2) The dynamism in Article V undercuts any static conception of original intent, because as the constitution can be modified, so can the intent and scope of the constitution through amendments that negate the authority of original scope and intent of the founders. 3) The historical fact of the birth of the constitution- ratification- through compromise undermines the Originalist argument of consistency, as fundamental change to these principles in the form of a future bill of rights was agreed to by the Federalists in the deal of ratification.

1) The Consent of the Governed

Federalist #22:
“The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority”.17

The Declaration of Independence:
“that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it”18

The authority given the constitution is not the authority derived from the pronouncements of great men, or from comparison of Great men to other men, and thus also not of the founders in comparison to today’s citizens. The authority given the constitution, the “just power” according to the Signers of the Declaration of Independence and the original fountain of all legitimate authority, according to Hamilton in Federalist #22, is derived from the “consent of the governed”. The consent of the governed is the agreement of those governed, to be governed in the manner prescribed by the words in the constitution. It is thus the agreement of the people with the law that creates the authority of the Constitution.

These are the words of the framers themselves- that the power comes not from the measure of the framers and their achievements throughout history, or the greatness of the words themselves, but comes from the agreement of the people with the words of the law issued by the Constitution. The Constitution thus starts not with the preamble, but with the “consent of the governed” through the ratification by the people that these are the words that announce our union, and that these are the words by which we agree to be governed.

The basis of Originalism, which lies for today’s static Originalists in the authority of the framers, and which looks to the intent of the framers in the drafting a specific provision, is thus located incorrectly by today’s originalists, and this basis is undermined by the words of the framers themselves. The framers clearly say that they themselves are not the authority, that the “just power”, the original authority is derived from the “consent of the governed”- i.e. the agreement of the people.

Thus the phrase the “consent of the governed”, combined with the power of fundamental change in Article V, not only serves as the original justification of authority of our constitution as it was established in 1787, but serves as a call to the participation of today’s ‘citizen-framer’ to consider the constitution, and how it is applied, and thus to grant consent, or deny consent and demand alteration, through first amendment freedom of speech and it’s extension to the states through the 14th amendment. It is not the call of founding fathers to lesser men to follow what the founders proclaimed, but the call of founding citizen-framers to current and future fellow citizen-framers across the ages to join in the continued revolution of representative self-government, to consider the constitution and its application and to give consent or deny consent, and demand alteration through the ballot box in reelecting or replacing their political representatives based on this consent or denial of consent. It is thus the primary duty of citizenship for the individual citizen to make known their consent or denial of consent of any act of government, including the application of the Constitution through a Supreme Court Decision.

This then directly calls for the continued participation of the people in the consideration of, and the granting or the denial of consent of the application of the constitution in cases by the opinions of the Supreme Court. The Supreme Court has the power to issue an opinion that radically changes the application of a provision, and according to the constitution it must be followed, but if it is an application that does not have the consent of the governed, the agreement of the people, then that opinion has no “just power”. This means that if a justice purposefully votes according to their own ideology, or because they think they know better, with conscious disregard of the disagreement of the people, then they vary fundamentally from the single central principle of the constitution of the founders, and thus have nothing in common with the founders.

Justice Black in Milk Wagon Drivers Union V. Meadowmoor, 312 U.S. 287, concurs.

“in reaching my conclusion I view the guaranties of the First Amendment as the foundation upon which our governmental structure rests and without which it could not continue to endure as conceived and planned. [Footnote 4] Freedom to speak and write about public questions is as important to the life of our government as is the heart to the human body. In fact, this privilege is the heart of our government. If that heart be weakened, the result is debilitation; if it be stilled, the result is death”.19

Footnote 4: “Thomas Jefferson, the great strategist of the campaign to bring about the adoption of the Bill of Rights, a campaign which he began even before the Constitution was adopted, said as to one of the guaranties of the First Amendment: 'The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter”. 20

Justice Black here refers to the importance of Freedom of Speech, i.e. the reason why Freedom of Speech is important. The importance of Freedom of Speech for Black; what is as important to government as the heart is to the human body; is the public conveyance of the true status and level of the consent of the governed to the elected representatives of government. Black refers here not only to the ability of the citizen to freely be able to speak if they so choose, but refers also to the very necessity that speech by the citizenry about the public questions be present- and that it must be free in nature- in order for representative self-government to properly function. Jefferson confirms in footnote 4 that the consent of the governed is nothing less than the opinion of the people, and that the conveyance of this consent or denial is vital to legitimate representative government that claims “just power”.

Today’s Originalism attempts to eliminate the foundational element of popular sovereignty at the core of government, by eliminating the citizen’s active role in the consideration of accepting or denying consent to a new application of the law in a Supreme Court decision. Originalism says ‘don’t consider for yourself, you are not competent, especially in comparison to these great men- so just follow’. The history of the intent of the framers is then substituted for the content and consequences of the scope and application of the words of the Court’s opinion. In the retelling of the history, in most cases lengthy and involved, the Ordinary citizen becomes educated as to the history and to the intent of the framer through this retelling, and in this education realizes they are not an expert, and thus quickly determines that their own competence fails in comparison. The offer to associate the citizen with the opinion of the ‘great men’- the framers- renders an easy and painless transfer of authority.

Today’s Originalism is thus not only a method of interpretation and jurisprudence, but simultaneously a technique of the Originalist camp to get the members of the public to give up their authority as citizen-framer to consider for themselves, through an association by proxy with the authority of the founders through the history of the founders intent. Now any citizen is free to do only this much in the interpretation of a constitutional ruling if they so choose, however they should be reminded that this was not the intent of the framers. The original opinion of the people; after considering the law and its application; properly constitutes what the framers termed the “consent of the governed”. The framers formed the words not from the extreme greatness and originality of themselves in generating new thought, but from the collective truth of freedom in the human condition observed and developed over the years. They merely recognized the truth of where liberty originates, as Learned Hand states that “Liberty lies in the hearts of men and women”.21 It was this truth that the founders followed in the words they used, many derived from the Magna Carta22 5 and ½ centuries earlier.

2) The Concept of Original Intent in the Constitution is Dynamic Because of Article V

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;..”23

Because of the almost unlimited scope of change of amendment in Article V, the original intention of the founders was not only that there would be change to the Constitution, but that this change included the possibility that what the founders originally intended for the scope and application of law, could itself be changed by the intentions of a future amendment’s drafters, and once ratified this fundamental change would then be undeniably valid.

This fundamental amplification of application and intent is precisely what the adoption of the 14th amendment accomplished. By introducing catalyst language that expands the application of the bill of rights and other rights to include binding the States, the 14th amendment lawfully and legitimately expanded the original intention of the drafters, through the intentions of John Bingham and ratified by the people. As demonstrated throughout his article, the 38 examples and arguments detailed by Amar24 provide overwhelming historical evidence that the right of the people to alter the constitution, through Article V, was irrefutable in the intent of the framers and are demonstrated throughout the speeches and documents of the framers. Amar’s research irrefutably demonstrates that it was clearly the original intent of the framers that change to the constitution- even fundamental change contrary to their original intentions- be able to occur. Thus Article V infuses the Constitution not with a rigid and static conception of original intent, but with a dynamic conception of original intent.

Hence in the history of Constitutional amendments and the Constitution itself there is a progression of original intent that starts with the original constitution, changes with the ratification deal in 1787, and this change is confirmed with the addition of the bill of rights in 1789, and then progresses again each time with the addition of each amendment, changing with the addition of the 13th, and 15th amendments, and changing fundamentally with the addition of the 14th amendment.

An original intent reading of the Constitution that opposes incorporation of the 14th amendment thus denies or ignores the dynamism of intent inherent in Article V and the Constitution’s history, and that interpreter cannot be deemed a faithful follower of a faithful doctrine of original intent, because the founders inserted this fundamental dynamism into the Constitution. Future citizens of the United States were thus clearly seen as fellow citizen-framers in the ongoing project of self-government.

The unintended significance and utility of Amar’s research and arguments in the article is thus the overwhelming historical evidence for support for the truly dynamic popular sovereignty character of the Constitution and Article V as it applies to an accurate depiction and meaning of the text of the Constitution over time, and of original intent over time. Amar’s research in this article establishes the evidentiary historical basis of Article V and first principle popular sovereignty dynamism beyond any doubt, and with this work provides the evidentiary basis for the argument that logically destroys any shred of credibility in the historical underpinnings of the position of those who interpret the Constitution based on a static conception of the intent of the original framers.

3) Madison’s Ratification Deal Undermines the Theory of Original Intent

Madison indicates in Federalist #40 that the addition of the Bill of Rights to the Constitution was essential to secure ratification by the anti-federalists.

“The states would never have appointed a convention with so much solemnity, nor described its objects with so much latitude, if some substantial reform had not been contemplated”.25

The signing statements of the “Massachusetts Compromise” and of other states ratifications, show that changing the Constitution of 1787 was a condition of their very ratification of it. The History of the founding shows that the deal to accept the Constitution was at the same time an agreement to change the Constitution.

Because they were the political minority and thus not in power, I contend that it was the anti-federalists concerns for their own personal freedom and rights that established the true level of what they thought constituted freedom. As they were the authorities of the states where they were from, they neither needed nor wanted civil liberties protection on the state level. But they did need protection from their political opponents, should the Federalists become authoritarian and oppressive once the constitution was ratified.

Acting in their own self-interests, the anti-federalists examined the guarantees in the main body of the Constitution, considered the future impact of the law on their own lives, and decided these guarantees weren’t enough. They needed to be guaranteed by those in power the rights of freedom of speech and of the press, freedom of peaceful assembly, freedom from the government establishment of religion, and guaranteed from those in power unjust persecution by due process protection. So they made a deal with the Federalists. They would agree to ratify the Constitution and come under the Federalists power- they would agree to be governed- if these freedoms were guaranteed in founding law. This was the source of the states ratification of the Constitution and the true historical moment of popular sovereignty for the Constitution, the true moment of the consent of the governed that provided legitimacy, and “just power”, to the 1787 Constitution.

The governing power didn’t really want to grant individual freedom and liberties, but to gain the consent of the governed it was forced to do so. This provides both the original and popular sovereignty model of free citizens for interpreting and considering their constitution. The anti-federalists didn’t merely listen and follow the arguments of those in power- the Federalists- they consulted English law, their own state constitutions, and the text of the main body of the Constitution set before them, and then determined how they wanted to be governed.

This interpretation of the main body of the Constitution by the anti-federalists was thus the original constitutional interpretation, not the one by Marshall in Marbury v. Madison, and the methods used by the Anti-federalists provide the model that should be followed to apply or change the Constitution. As indicated earlier, the deal to establish the Constitution was thus at the same time also a deal to amend the constitution. Through the dynamism and power of popular sovereignty in Article V, the anti-federalists changed the original intent of the Federalist framers, and brought the Constitution and their own civil rights to reality. Through their own concerns against the possible unjust suppression of the majority in power, and against what they wanted for their own people, the anti-federalists admitted the truth of what they considered the authentic level of freedom for themselves with the proposal of a bill of rights that limited the use of unjust Federal power against themselves.

The fact that the ratification of the constitution occurred out of compromise of the principles of the Federalist founders thus undermines the certainty of the Original intent of the framers argument for today’s static Originalists, because despite the intentions of the framers in the drafting of the 1787 original constitution, they changed this intent when they agreed to amend the constitution at a later date.

Raoul Berger’s- ‘The Transformation of the 14th Amendment’,26 provides the basis of the consistency argument for Originalism in the beginning of the book,

“the “original intention” of the Framers, here very plainly evidenced, is binding on the Court for the reason early stated by Madison: if “the sense in which the constitution was accepted and ratified by the Nation… be not the guide in expounding it, there can be no security for a consistent and stable (government), more than for a faithful exercise of its powers”.27

Consistency in the application of law to achieve consistency, security, and stability in the exercise of Government thus forms the core of Berger’s jurisprudence in expounding the Constitution. But how can this type of consistency be rationalized by Berger, when the generation of the Constitution came not from the ideas of the 1787 Constitution, but from the compromise of the ratification agreement to amend? Wouldn’t this mean then that historically the democratic principle of compromise sits at the root of finding social balance and order in the drafting of and acceptance of the law?

Madison’s phrase that “The sense in which the constitution was accepted and ratified by the nation”, does not only refer to the authority of the framers in the generation of the draft, but refers also to the acceptance and ratification of the Constitution by the citizenry- i.e.- the “consent of the governed”. Berger’s own evidence for his rationale equally proves the opposite, and is textually a popular sovereignty argument that Berger somehow turns into evidence of authoritative generation. Berger here is either blind to, or chooses to ignore, the fundamental popular sovereignty element at the heart of the text of his own rationale. Berger’s need for consistency from a single source of authority overwhelms the public role of the participation of the public in the acceptance of the law. Once again Originalism misreads the evidence.

What this means, practically, is that Berger denies today’s citizens the right to give or deny consent with regard to how they are governed under the Constitution. In Berger’s reading, only the citizens at the time of ratification were autonomous and self-governing, only they were free. Today’s citizen for Berger has no role in determining whether a Constitutional application through Supreme Court Opinion is accepted or not. For Berger, Citizens are obligated to only follow, and to obey. For Berger there is only one moment of the “consent of the governed”- the 1787 ratification.

The Federalists consulted, drafted the main body without a bill of rights, received negative feedback, equivocated, and then through the principle of democratic popular sovereignty, compromised in a deal with anti-federalists. The history is hardly the certainty of Moses coming down from the mountain as God’s chosen messenger and proclaiming the law as given by God. The popular sovereignty democratic principle of compromise, historically has as much place at the table of original intent as the selected words of individuals dressed up in authority.

4) Textualism as Faithful Originalism

“Justice Story Said, “Every word in the Constitution is to be expounded in its plain, obvious, and common-sense meaning, unless the context furnishes some ground to control, qualify or enlarge it.”28

The opinion of the people; to deny or give the consent of the governed; with regard to an application of the constitution through a supreme court opinion, is clearly just such a context. Textualist jurisprudence, combined with a consideration of the measure of consent of the governed, is thus a truly conservative and cautious Constitutional jurisprudence, and a truly faithful Originalism. It applies the law through the text of the constitution in a plain reading of the words on the page. These words change only when the proper methods of proposing an amendment have been followed, when the proper methods of ratification have been completed, and when the public denies the consent of the governed. Then it is left to the justices of the Supreme Court to apply any direct changes from the amendment and any changes to other Constitutional provisions that the new amendment may effect.

An example of a jurisprudence that thus reflects the real belief of follower of faithful Originalism- progressive original intent- would be found in the jurisprudence of Justice Black. Black’s well known textualist application followed from the words on the page, and the significance for the application of law for individual rights fundamentally changed with Black’s faithful interpretation of the text of the 14th amendment. Black recognized the nature of the change by which the prism of the words of the 14th amendment affected provisions involving individual rights, and he faithfully applied the law through this new prism. Black thus followed the original intent of the framers of the 14th amendment, which through Article V followed the intention of the drafters of the bill of rights, which through Article V followed the intention of the original framers of the Constitution. And so our Constitutional law progressed, and so original intent progressed, through the lawful mechanism of dynamism indelibly inscribed in Article V.

What implications does this have for theories of incorporation of the 14th amendment? Through the force of authority of Article V, the Bill of Rights and the 14th amendment, because they have been ratified by the people of the states and are thus law and must be applied, and with overwhelming public agreement, this collective authority deems that only a theory of total incorporation is truly valid.

Does this mean that the ‘selective incorporation’ advocated by Justice Brennan and the ‘refined incorporation’ advocated by Amar are wrong approaches? No. Contrary to their own pronouncements and attempts to distinguish themselves through definition, it is my opinion that both Brennan and Amar ARE in fact under the umbrella of ‘Total incorporation’. There’s no evidence in either of their theories that argues against the fundamental change that the text of the 14th amendment has on the Bill of rights and other individual Constitutional rights.

In fact, evidence exists for the opposite. Amar’s chapter- ‘Reconstructing Rights’ in his outstanding book ‘The Bill of Rights’,29 argues and details incorporation through a type of Total incorporation approach. It’s not that all the amendments ‘don’t incorporate’ it’s just that incorporation of the words of the text of the 14th amendment have no effect on Constitutional application for these amendments. Amar’s question – “whether a (right) is a personal privilege- that is- a right of individual citizens”, 30 announces a principle of examination for evaluating a provision. His question is a tool of interpretation and application that identifies the common characteristics of individual provisions of the Constitution that are affected in application by the words of the text of the 14th amendment. The fact that he applies this question to how the 14th amendment affects a provision evidences his adherence to attempt to apply the 14th amendment throughout the entire Constitution.

It is virtually the same with Brennan’s theory of ‘selective incorporation’, although his terminology of “fundamental provision”31 is on the face of it more vague than Amar’s examination principle of ‘refined incorporation’. In both cases Brennan and Amar deal with the specific application of the words of the text as they affect or do not affect application of all other provisions of the constitution. Their disagreements of application are thus within the rubric of the attempt of total incorporation. As Justice Brennan has written:

“The position of the states in Gideon illustrated that federalism is better served by incorporation of the guarantees of the Federal Bill than by a case-by-case assessment of the degree of protection afforded to particular rights”.32

All provisions of the Bill of Rights need not be affected equally by the 14th amendment, but the examination by the interpreter to determine if and how much they do- that is the mark of a follower of ‘Total Incorporation’.

‘Total incorporation’ thus looks to see if the text of a provision is affected by the text of the 14th amendment, and attempts to apply it. If a provision ‘incorporates or not’ is thus determined between the interchange in meaning in the relation of the words between the provision and the 14th amendment, as applied by the interpreter. Not looking to see if the text of the 14th amendment changes the application of the provision, based on the antiquated theory of static Originalism- this is the hallmark of the opponent of Incorporation. The interpreter who does this denies the validity of the 14th amendment, and thus denies the revolutionary dynamism inscribed in the Constitution in Article V and its implications for the concept of Original Intent. This interpreter thus flies directly into the face of the law and the framers. Brennan and Amar are not this kind of interpreter, and whether they thought so are not, are both much closer to Black’s Jurisprudence with regard to the application of the 14th amendment than either of them thought. ‘Selective incorporation’ and ‘refined incorporation’ are thus different types of applications under the umbrella of Total incorporation’ of the 14th amendment.

The textual reading of the 14th amendment by; Amar in Chapter 8 of ‘The Bill of Rights’;33 is defining for analysis to determine whether the 14th amendment intended to incorporate the Bill of Rights. From Amar’s reliance on the Supreme Court’s Opinion in Barron- “Had the framers of these amendments intended them to be limitations in the powers of the state governments, they would have imitated the framers of the original Constitution, and have expressed that intention.”34 - to the equivalences he demonstrates between the terms in the Bill of Rights “rights and freedoms”, and the terms “privileges and immunities” in the 14th amendment, to the inverted equivalence between the phrasing introducing both the Bill of Rights and the 14th amendment, “Congress shall make no law..” and “No state shall abridge..”, this chapter is a defining textual reading and argument for the incorporation of the bill of Rights.

That Amar shows that Bingham drafted the amendment specifically with the intention to respond to and reverse the Barron opinion just adds further defeat to today’s static originalists that the 14th amendment was intended to incorporate the Bill of Rights.

“In reexamining that case of Barron, Mr. Speaker, after my struggle in the House in February 1866,…I noted and apprehended as I never did before, certain words in that opinion of Marshall. Referring to the first eight articles of amendments to the Constitution of the United State, the Chief Justice said: ‘Had the framers of these amendments intended them to be limitations on the powers of the State governments they would have imitated the framers of the original Constitution, and have expressed that intention.' Acting upon this suggestion I did imitate the framers of the original Constitution…..imitating their example and imitating it to the letter”.35

5) From the sources of influence, through research, to the basis of a New Citizenship

I contend there are two sources that predominantly influenced Amar’s ‘Consent of the Governed’. The first is Bruce Ackerman’s characterization in his book ‘We the People’36 that the three most transformational constitutional changes in U.S. history were extra-constitutional. The second is Amar’s implicit admission that the equal rights amendment influenced his position of amendment outside of Article V, to the point that the self-evident truth that women are created equal, justifies its validity.

First, Ackerman’s central paragraph on constitutional change in his book “We the People”:

“Founding Federalists > Illegal Constitution; Reconstruction Republicans > formal Amendments; New Deal Democrats > Judicial Rediscovery of Ancient truths: this schema suggests a subtle but unmistakable decline in the constitutionally generative capacities of the American people. Apparently, we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”.37

Next, from the last two paragraphs of ‘The Consent of the Governed’:

“Women today constitute a majority of both the Massachusetts and American polities. They are today governed under a federal Constitution largely the making of men who died long ago, men who may not have had their interest foremost in mind. If either the Massachusetts or American People is sovereign, women- in combination with like minded men- could by simple majority vote alter or abolish patriarchal rules in the federal Constitution… For me at least, one of the best reasons for embracing the “First Theorem” is the self-evident truth that women, too, are created equal”.38

Briefly, I contend that Ackerman’s characterization in ‘We the People’, that all three instances of revolutionary change in the history of the Constitution- the founding, the 14th amendment, and the new deal- are constitutional. The succession of the Southern states from the union provided a constitutionally valid supermajority of Republicans to fashion the conditions for the successionists’ re-inclusion into the political structure of the United States- it was therefore a legal supermajority within the authority of the Constitution, and thus a legal ratification of the 14th amendment. Roosevelt’s court packing, although unusual in U.S. history, is certainly within the Constitution. Only the ratification of the original constitution was revolutionary, but of necessity also just inside the legal frame of the constitution, and certainly within the spirit of the declaration, and should be considered a part of the original declaration of the founding of the nation that is the constitution. The ratification was in essence the declaration of the founding of the nation, and thus an integral part of the constitution. As I noted earlier, ratification comes first, then the preamble.

Second, it is my contention that Ackerman’s accurate depiction of the extraordinary nature of the three transformational Constitutional events and his conclusion from this that “we the People have never again engaged in the sweeping kind of critique and creation attempted by the Founding Federalists”, heavily influenced Amar’s thought concerning the chances of ordinary passage of the Equal Rights Amendment. This, combined with Amar’s willingness to wield his academic research and polemical sword in the name of a cause he believed in, led to the intellectual overreaching in his attempt to match the history of popular sovereignty with the possible validity of constitutional amendment outside Article V, and with this work provide the intellectual basis for Women to submit a popular sovereignty based Equal Rights Amendment, and then ratify it.

Even though the argument in “The Consent of the Governed..” is misdirected because of what Monaghan calls Amar’s “personal philosophy”,39 the research that came from it was impeccable, and forms the basis for the absolute destruction of the intellectual and historical foundations of static Originalism, and helps lead to the reformation of a more dynamic popular sovereignty Originalism that is faithful to the first principles of federalist self-government indicated in the Declaration of Independence and Federalist #22.

The new Faithful Originalism is formed from the call through the ages from the founders; in the Declaration of independence, through Article V and the first and 14th amendments; to today’s citizen-framers, to consider the history, consider the words of the Constitution, and consider how the application of Supreme Court Opinions and new laws affect both our freedom, and our social order. Then it is the responsibility of today’s citizen to grant or deny their consent, and to make this choice known to their elected representatives. From this call, Supreme Court Justices must consider this factor in the application of the constitution in all cases, if their decisions and opinions are to have “just power”.

The advent and development of communication and information technology provides today’s citizen new tools by which to easily obtain information on Constitutional issues as well as state and local government issues of all kinds. Citizens can then make their decisions, and register their agreements or disagreements more easily and accurately. It is therefore also the responsibility of the Courts as appointees who wish to be in league with the founders, and apply the law through opinions that have ‘just power’, to know and consider the status of the citizen’s consent with regard to a case. It also at the same time accentuates the active role of today’s citizen-framer, and makes the call from the framers a responsibility of the citizen to participate. It is a call to participate in the ongoing revolution of representative self-government.

George Washington said that:

“The basis of our political system is the right of the people to make and alter their Constitution of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all”.40

Providing the opinion of the people, the consent of the governed, is just such an “explicit and authentic act”. This is the “New Citizenship” call of responsibility to any voter with access to phone, computer and internet service- to obtain information, educate themselves, and then march alongside the framers throughout and across history and raise their voices, and call and/or write letters to the editor and/or to their representatives. It is the citizen’s duty to vote and communicate their agreement or disagreement to their elected representatives, and to the Courts.

“(James) Wilson proclaimed the power of the people in the strongest of terms, “That the supreme power, therefore, should be vested in the people, is…the great panacea of human politics. It is a power paramount to every constitution, inalienable in its nature, indefinite in its extent. For I insist, if there are errors in government, the people have the right not only to correct and amend them, but likewise totally to change and reject its form..”41

In these ways citizens make known the consent of the governed in “specific and authentic acts of the whole people”. By doing this today’s citizens do their duty to provide government with the measure of the “original source of all authority” and “just power”, in and through each and every individual citizen’s denial or granting of consent.

Richard J. Luczak II


Notes

1. Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment outside Article V, Columbia Law Review, Vol. 94, No. 2 (Mar., 1994), pp. 457-508.
2. Amar- pg. 457.
3. Amar- pg. 457.
4. Amar- pg. 459.
5. Amar- pg. 459.
6. The Declaration of Independence
7. Amar- pg. 459.
8. Article V, U.S. Const.
9. Article V, U.S. Const.
10. Henry Paul Monaghan, We the People(s), Original Understanding, and Constitutional Amendment, Columbia Law Review, Vol. 96, No. 1. (Jan., 1996), pp. 121-177.
11. Amar, pgs. 469-475.
12. Monaghan, pg. 125.
13. Monaghan, pg. 126.
14. Amar, pg. 470.
15. Monaghan, pg. 144.
16. Monaghan, pg. 197.
17. Federalist 22, The Federalist Papers,
18. The Declaration of Independence.
19. Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor, 312 U.S. 287 (1941)
20. Milk Wagon Drivers Union of Chicago.., Footnote 4.
21. Learned Hand, The Spirit of Liberty, National Association of Criminal Defense Attorneys Website, http://www.criminaljustice.org/public.nsf/ENews/2002e67?opendocument
22. A. E. Dick Howard, Magna Carta: Text and Commentary, University Press of Virginia, Charlottesville and London, 1964
23. Article V, U.S. Const.
24. Amar, pgs. 457-498.
25. George Washington Williams, What, If Any, Limitations Are There Upon the Power to Amend the Constitution of the United States?, The Virginia Law Register, New Series, Vol. 6, No. 3. (Jul., 1920), pg. 168.
26. Raoul Berger- The Transformation of the 14th Amendment, Harvard University Press, 1977, Cambridge, Massachusetts and London, England
27. Berger, pg. 3.
28. William P. Potter, The Method of Amending the Federal Constitution, University of Pennsylvania Law Review and American Law Register, Vol. 57, No. 9, Volume 48 New Series. (Jun., 1909), pg. 590.
29. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction, New Haven : Yale University Press, c1998.
30. Amar, The Bill of Rights…, pg. 221.
31. Amar, The Bill of Rights…, pg. 221.
32. William J. Brennan Jr., The Bill of Rights and the States: The Revival of State Constitutions As Guardians of Individual Rights, New York University Law Review, October 1986, pg. 543.
33. Amar, The Bill of Rights…, pgs. 163-180.
34. Barron v. The Mayor & City Council of Baltimore, 32 U.S. 243
35. Amar, The Bill of Rights…, pgs. 164-165.
36. Bruce Ackerman, We the People, Cambridge, Mass. : Belknap Press of Harvard University Press, 1991.
37. Ackerman, pg 43.
38. Amar, The Consent.., pg. 508.
39. Monaghan, pg. 128.
40. Potter, pg. 593.
41. David Castro, A Constitutional Convention: Scouting Article Fives Undiscovered Country, University of Pennsylvania Law Review, Vol. 134, No. 4 (Apr., 1986), pg. 956.