Thursday, December 14, 2017
Legal changes to legal instruments can take various forms. Parties who wish to eliminate a contract provision or legislators who want to eliminate a phrase in a statute, for example, can just strike out the language that needs to go. The flip side of this kind of change is one that interpolates new words into a contract or into a statute. Both kinds of change are common in a range of legal instruments.
When it has come to amending the Constitution of the United States, however, we have adopted a different form---supplemental add-on language tacked to the end. This kind of amendment resembles a codicil to a will. It modifies the legal effect of the original instrument by adding supplementary or replacement language without making any change to the wording of the original instrument itself.
This form is not what James Madison wanted. He acquiesced on form to save substance, as the supplemental form was important to a small group of congressmen whose votes he needed on the proposed amendments.
The First Congress's choice of this form for the first ten amendments was probably a bad decision. Putting the language that accomplishes the legal change together with what is being changed can provide more clarity than tacking it on to the end.
Consider, for example, the two amendments proposed by Madison that include protection for the "rights of conscience" against infringement by the federal government and the state governments. The protection against federal infringement would have been in Article I, § 9 (together with other limitations on the federal government), while the protection against state infringement would have been in Article I, § 10 (together with other limitations on state governments). The placement informs interpreters about the kind of protection given.
For an idea of just how much clearer our Constitution would read if Madison's proposed form for amendments had been, take a look at the superb article by Professor Edward Hartnett, A "Uniform and Entire" Constitution; Or, What if Madison Had Won?, 15 Constitutional Commentary 251 (1998). Among other insights, Hartnett explains how a combination of interpolations and strike-throughs would have more powerfully extirpated slavery from the Constitution than doing the deed with a stand-alone Thirteenth Amendment. To better understand his discussion of the Thirteenth Amendment, though, one must appreciate his earlier explanation of how most of the "Bill of Rights" provisions of the first ten amendments would have been interpolated in Article I, § 9, "immediately after the protection of the Great Writ of habeas corpus and immediately before the prohibition on bills of attainder and ex post facto laws." One "embarrassing drawback" of this location for a bill of rights, Hartnett notes, is that Article I, § 9 also includes the protection of the slave trade from being banned until 1808. And here now we can pick up with Hartnett's discussion of an interpolated/strike-through Thirteenth Amendment:
The Thirteenth Amendment abolished slavery. If it were integrated into the body of the Constitution, it would fit comfortably in the Madisonian bill of rights in Article I, section 9. Indeed, since the Thirteenth Amendment renders irrelevant the limitation on Congressional power over the slave trade contained at the beginning of Article I, section 9, the language abolishing slavery can take the place of that evil provision. The result is that what earlier looked like an embarrassing way to begin a bill of rights would be eliminated, and the most basic right---the right to be free from enslavement---would take its place, joining such rights as habeas corpus, free speech, free exercise of religion, protection against unreasonable searches and seizures, and the prohibition on bills of attainder. Under Madison's approach to amendments, the limitation on the amendment power to protect the slave trade, as well as the hated fugitive slave clause of Article IV, section 2, would likewise be removed from the Constitution.
Pretty neat, huh?
The proposed strike-through amendment I have been setting up with MOJ posts this week would also take something right out of the Constitution. Morally speaking, the provision does not approach the evil of the provisions protecting the institution of slavery in various ways. But it is out of step with some fundamental commitments of our American experiment in self-government.