Taking text too seriously: Modern textualism, original meaning, and the case of Amar's Bill of Rights

Michigan Law Review

Volumn 106, Issue 3, 2007, Pages 487-543

  Treanor, William Michael ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 37249071883     PISSN: 00262234     EISSN: None     Source Type: Journal    
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References (417)

1. Although usage among academics is inconsistent, in this Article textualism refers to the school of thought that interprets the Constitution in accordance with the text's original meaning for the public at the time of its adoption. Many leading textualists embrace this approach. See ROBERT H. BORK, THE TEMPTING OF AMERICA 144 (1990) ("The search is not for subjective intention .... [W]hat counts is what the public understood.");
2. Akhil Reed Amar, The Supreme Court: 1999 Term, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 29 (2000) ("What counts as text is the document as understood by the American People who ratified and amended it, and what counts as history is accessible public meaning, not secret private intent.");
3. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 548 n.22 (1994).
4. Others seek to interpret the Constitution in accord with "original intent" - the intent of the framers of constitutional text. A third approach seeks to interpret the Constitution in accordance with the "original understanding" of the ratifiers. I use the word originalism to refer collectively to the latter two approaches (original intent and original understanding). For further discussion, see infra Part I.
5. For the classic work of New Criticism, the literary movement associated with such close reading, see WILLIAM K. WIMSATT, JR., THE VERBAL ICON: STUDIES IN THE MEANING OF POETRY (1954).
6. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 846 n.1 (Thomas, J., dissenting). See also AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 29 (2005).
7. Amar notes as follows: Thus, the text of the Constitution did not say, and the act of constitution did not do, something like the following: "Because the United States is [sic] already one sovereign and indivisible nation, the ratification of nine states shall suffice to establish this Constitution in all thirteen States." Id. The "[sic]" is from Professor Amar's book.
8. For other examples of writers assigning significance to the fact that the "United States" takes a plural verb in the Constitution, see FORREST MCDONALD, STATES' RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776-1876, at 20-22 (2000);
9. Jay S. Bybee, Common Ground: Robert Jackson, Antonin Scalia, and a Power Theory of the First Amendment, 75 TUL. L. REV. 251, 324 n.445 (2000);
10. and Robert F. Nagel, Real Revolution, 13 GA. ST. U. L. REV. 985, 994 n.34 (1997).
11. While Professor Amar and Justice Thomas both accord weight to the verb choice, they understand its significance differently. Justice Thomas contends that "the people of each State retained their separate political identities." U.S. Term Limits, 514 U.S. at 849 (Thomas, J., dissenting).
12. Professor Amar contends instead that ratification of the Constitution ended each state's sovereign status. AMAR, supra, at 33. It should be noted that earlier in his career, Amar had taken a somewhat different approach, noting that "United States" takes a plural verb in the Constitution but, in light of other textual evidence, simply dismissing the significance of the grammar: Indeed, the Constitution's consistent use of the phrase "the United States" as a plural noun only serves to cast further doubt on the self-evident correctness of the conventional reading of the Preamble's opening phrase. However, a closer look at the rest of the Constitution reveals several other provisions that can help the Preamble's overworked opening words bear the argumentative load.
13. Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE LJ. 1425, 1455 (1987) (footnote omitted).
14. See STERLING ANDRUS LEONARD, THE DOCTRINE OF CORRECTNESS IN ENGLISH USAGE, 1700-1800, at 221 (1962).
15. See 10 OXFORD ENGLISH DICTIONARY 374 (2d ed. 1989) (providing usages of the word news). The last example of the word news taking a plural verb is a usage by Shelley in 1821. Id.
16. My point here is not that the founders thought of the United States as a single sovereign but rather that the usage of a plural verb in conjunction with "United States" in the Constitution does not prove one way or the other what the founders' political theory was. Both Martin S. Flaherty and Henry Paul Monaghan offer further discussion of the founders' theory on sovereignty. Martin S. Flaherty, John Marshall, McCulloch v. Maryland, and "We the People ": Revisions in Need of Revising, 43 WM. & MARY L. REV. 1339 (2002) (analyzing competing schools of thought);
17. Henry Paul Monaghan, We the Peoplejs], Original Understanding, and Constitutional Amendment, 96 COLUM. L. REV. 121, 138 (1996).
18. Monaghan notes as follows: To my eyes, neither completely state-centered nor completely nationalist views of the founding capture the original understanding.... A significant number of Americans simultaneously held-in varying mixtures and intensities-some concept of a "We the People" of the United States and (more importantly for my argument) some concept of a "We the People" of Delaware, and so on. Monaghan, supra, at 138.
19. William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455 (2005). For further discussion of what the conclusions in my earlier article suggest about the founding generation's interpretive approach,
20. see infra Part I.
21. AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998).
22. Amar, supra note 1.
23. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999)
24. [hereinafter Amar, Intratextualism];
25. see also Akhil Reed Amar, America's Constitution and the Yale School of Constitutional Interpretation, 115 YALE LJ. 1997 (2006)
26. [hereinafter Amar, Yale School].
27. AMAR, supra note 3.
28. Michael Stokes Paulsen, How To Interpret the Constitution (and How Not To), 115 YALE LJ. 2037, 2038 (2006).
29. See, e.g., Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 50 (2004) (Thomas, J., concurring); Zelman v. Simmons-Harris, 536 U.S. 639, 679 (2002) (Thomas, J., concurring); Printz v. United States, 521 U.S. 898, 939 (1997) (Thomas, J., concurring); California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring); see also Akhil Reed Amar, An Open Letter to Professors Paulsen and Powell, 115 YALE LJ. 2101, 2109 n.24 (2006) (describing Professor Amar's influence on Supreme Court jurisprudence).
30. Gary Lawson, The Bill of Rights as an Exclamation Point, 33 U. RICH. L. REV. 511, 511 (1999)
31. (reviewing AMAR, supra note 8).
32. Stephen G. Calabresi, We Are All Federalists, We Are All Republicans: Holism, Synthesis, and the Fourteenth Amendment, 87 GEO. LJ. 2273, 2274 (1999)
33. (reviewing AMAR, supra note 8).
34. Id. at 2275.
35. The fact that leading textualists have embraced Amar's historical account does not mean that it has won universal acceptance. Perhaps the most sustained challenge has come from Professor Henry Monaghan. Professor Monaghan's article We the People[s], Original Understanding, and Constitutional Amendment argues at length that Professor Amar's contention "that despite Article V, the Framers intended that a simple majority of a national 'We the People' could amend the Constitution" is "historically groundless."
36. Monaghan, supra note 6, at 121.
37. Monaghan's challenges are aimed at two of Amar's articles: Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457 (1994);
38. and Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043 (1988).
39. AMAR, supra note 3.
40. Amar, Intratextualism, supra note 10, at 822.
41. Id. at 814.
42. See infra Section I.B.
43. Calabresi, supra note 15, at 2275.
44. U.S. CONST, amend. IX.
45. AMAR, supra note 8, at 120.
46. ANTONIN SCALIA, A MATTER OF INTERPRETATION 44-47 (1997);
47. Amar, supra note 1, at 53-54;
48. Amar, Intratextualism, supra note 10, at 798;
49. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849, 857 (1989);
50. see also RALPH A. ROSSUM, ANTONIN SCALIA'S JURISPRUDENCE 27 (2006).
51. Amar, supra note 1, at 27-37;
52. Amar, Intratextualism, supra note 10, at 748-55;
53. see also SCALIA, supra note 25, at 37-41.
54. Amar, supra note 1, at 29.
55. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 234 (1980) (noting that text is of limited importance in case law);
56. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1195 (1987) ("If there is any surprise, it is how seldom the text is relied on directly, in comparison with arguments based on historical intent, precedent, and social policy or moral principle.");
57. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 707-08 (1975) ("In the important cases, reference to and analysis of the constitutional text plays a minor role.").
58. Justice Scalia was not the modern era's first textualist on the Supreme Court. Justice Black was a textualist. For a comparison of the textualism of Justice Scalia and Justice Black, see Michael Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. REV. 25 (1994).
59. See Jeffrey Rosen, Textualism and the Constitution: Introduction, 66 GEO. WASH. L. REV. 1081 (1998).
60. Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 998 (1992) (Scalia, J., dissenting).
61. For examples of this argument, see KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW 152-57 (1999);
62. Lilian R. BeVier, The Moment and the Millennium: A Question of Time, or Law?, 66 GEO. WASH. L. REV. 1112 (1998);
63. Frank H. Easterbrook, Textualism and the Dead Hand, 66 GEO. WASH. L. REV. 1119, 1121 (1998);
64. and Scalia, supra note 25, at 862.
65. See Scalia, supra note 25, at 862.
66. See SCALIA, supra note 25, at 24-25, 37-41.
67. Id. at 38.
68. Amar, supra note 1, at 28-29.
69. For helpful discussion of relevant terminology, see JACK N. RAKOVE, ORIGINAL MEANINGS: POLITICS AND IDEAS IN THE MAKING OF THE CONSTITUTION 8 (1996).
70. See RAOUL BERGER, GOVERNMENT BY JUDICIARY 363 (1977);
71. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. LJ. 1 (1971);
72. Edwin Meese III, Address before the D.C. Chapter of the Federalist Society Lawyers Division, in INTERPRETING LAW AND LITERATURE: A HERMENEUTIC READER 25 (Sanford Levinson & Steven Mailloux eds., 1988);
73. Edwin Meese ID, The Battle For The Constitution: The Attorney General Replies to His Critics, 35 POL'Y REV. 32, 34 (1985),
74. reprinted in 19 U.C. DAVIS L. REV. 22, 26 (1985);
75. Edwin Meese III, Toward a Jurisprudence of Original Intent, 11 HARV. J.L. & PUB. POL'Y 5 (1988);
76. William H. Rehnquist, Observation, The Notion of a Living Constitution, 54 TEX. L. REV. 693 (1976).
77. See, e.g., RONALD DWORKIN, A MATTER OF PRINCIPLE 38-57 (1985);
78. Brest, supra note 28, at 209-17;
79. Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 726 (1988).
80. H. Jefferson Powell, The Original Understanding of Original Intent, 98 HARV. L. REV. 885 (1985).
81. Id. at 948.
82. For a convincing analysis in this regard, see Charles A. Lofgren, The Original Understanding of Original Intent?, 5 CONST. COMMENT 77 (1988).
83. Monaghan, supra note 38, at 725 (quoting Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank (1791), in 8 PAPERS OF ALEXANDER HAMILTON 97,111 (Harold C. Syrett ed., 1965)) (footnote omitted).
84. Jack N. Rakove, The Original Intention of Original Understanding, 13 CONST. COMMENT 159, 164-65 (1996).
85. See supra note 25.
86. For further discussion of the rise of originalism and the subsequent rise of textualism, see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1134-48 (2003),
87. and Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 611-29 (1999).
88. See City of Boeme v. Flores, 521 U.S. 507, 511 n. (1997).
89. For discussion, see Kesavan & Paulsen, supra note 45, at 1119-20.
90. See infra note 50.
91. John F. Manning, Textualism and the Role of The Federalist in Constitutional Adjudication, 66 GEO. WASH. L. REV. 1337, 1355 (1998);
92. see also William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 GEO. WASH. L. REV. 1301, 1319-20 (1998) (suggesting that textualists might use constitutional history but not legislative history because of the possibility that the latter will be subject to manipulation by legislative participants in the future while the relevant materials in constitutional history have already been produced).
93. SCALIA, supra note 25, at 38.
94. Justice Scalia's testimony during his confirmation hearings was to the same effect. He observed that, "if somebody should discover that the secret intent of the framers was quite different from what the words seem to connote, it would not make any difference" as far as he was concerned. Nomination of Judge Antonin Scalia to be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 108 (1986),
95. quoted in George Kannar, The Constitutional Catechism of Antonin Scalia, 99 YALE L.J. 1297, 1307 (1990).
96. This rejection of drafters' intent does not mean that Justice Scalia has categorically refused to draw on the nonpublic debates of the Philadelphia drafters: he has. See, e.g., Printz v. United States, 521 U.S. 898, 915 n.9 (1997); Edmond v. United States, 520 U.S. 651, 660 (1997); Morrison v. Olson, 487 U.S. 654, 720 (1988) (Scalia, J., dissenting); Sun Oil Co. v. Wortman, 486 U.S. 717, 723 (1988). Justice Thomas has also relied on the Philadelphia debates. On Justice Thomas's use of historical sources,
97. see Melvyn R. Durchslag, The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye, 14 WM. & MARY BILL RTS. J. 243, 248-49, 303-04 (2005).
98. For an example of Justice Thomas's use of the Philadelphia debates, see United States v. Int'l Bus. Mach. Corp., 517 U.S. 843, 859-60 (1996).
99. For discussion of the use of the Philadelphia debates by Justice Scalia and Justice Thomas, see Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1119-20, 1186 (2003).
100. Harmelin v. Michigan, 501 U.S. 957, 966 (1991); Walton v. Arizona, 497 U.S. 639, 670 (1990) (Scalia, J., concurring and dissenting). A textualist might respond to my highlighting of these cases by observing that Justice Scalia was simply following the constitutional text and that the Eighth Amendment, after all, uses "and," not "or." But Justice Scalia is making an assumption here about how people at the time of the Eighth Amendment's ratification would have construed the phrasing, and his assumption reflects current usage. Eighteenth-century courts, however, were capable of reading "and" as "or" when the facts warranted. See Kerlin's Lessee v. Bull, 1 U.S. (1 Dall.) 175, 178 (Pa. 1786) ("The words of the Act are, after the death of any father and mother, so that he was not within the words; but I am of opinion, that the word and, in this place, must be construed or ...."). Professor Eskridge uses Kerlin's Lessee to illustrate the fact that courts at the time of the founding engaged in equitable interpretation of statutes. William N. Eskridge, Jr., All About Words: Early Understandings Of The "Judicial Power" In Statutory Interpretation, 1776-1806, 101 COLUM. L. REV. 990, 1022-23 (2001). The related point here is that it cannot be assumed that eighteenth-century interpreters would have read constitutional text closely the way Justice Scalia, Justice Thomas, and Professor Amar do.
101. Morrison, 487 U.S. at 719-20 (Scalia, J., dissenting).
102. Freytag v. Comm., 501 U.S. 868, 902 (1991) (Scalia, J., concurring in part and concurring in the judgment).
103. Kelo v. City of New London, 545 U.S. 469, 509-10 (2005) (Thomas, J., dissenting).
104. United States v. Lopez, 514 U.S. 549, 587 (1995) (Thomas, J., concurring).
105. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 846 n.1 (Thomas, J., dissenting). For discussion, see supra text accompanying note 3.
106. See supra text accompanying notes 11-16.
107. Caleb Nelson, Originalism and Interpretive Conventions, 70 U. CHI. L. REV. 519, 519-21 (2003) (noting the dearth of work on recovering the founders' interpretive conventions). Professor Nelson's superb study is, in a limited way, an exception. He is concerned with a particular convention (which is not one at issue in this Article)-whether the founding generation thought that early practice "fixed" the meaning of ambiguous constitutional text.
108. See id. at 521-23.
109. John F. Manning, Deriving Rules of Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648, 1648 n.1 (2001);
110. see also John F. Manning, Textualism and the Equity of the Statute, 101 COLUM. L. REV. 1 (2001) (presenting a historical case for "faithful agent" approach).
111. Eskridge, supra note 51, at 998.
112. See Treanor, supra note 7.
113. Id. at 30.
114. AMAR, supra note 8, at 125;
115. see also Amar, Intratextualism, supra note 10, at 795 (arguing that interpreters should "take[] seriously the document as a whole rather than as a jumbled grab bag of assorted clauses").
116. Amar, Intratextualism, supra note 10, at 822.
117. Id. at 814.
118. Amar, supra note 1, at 29-30;
119. see also Amar, Yale School, supra note 10, at 2001 ("Because the document forms a coherent whole, sensitive readers must go beyond individual clauses to ponder the larger constitutional systems, patterns, structures, and relationships at work.").
120. Adrian Vermeule & Ernest A. Young, Hercules, Herbert, and Amar: The Trouble with Intratextualism, 113 HARV. L. REV. 730, 749 (2000).
121. Amar, Intratextualism, supra note 10, at 748.
122. Amar, supra note 1, at 30.
123. Amar, Intratextualism, supra note 10, at 791.
124. Id. at 792-93.
125. Id. at 794-95.
126. Id. at 795.
127. Id. at 797 n. 197.
128. Id. Amar also describes a related interpretive doctrine that he calls intertextualism. Intertextualism involves "comparisons between clauses in the Constitution on one hand and clauses in other documents on the other."
129. Id. at 795 n.186.
130. In practice, however, he accords great weight interpretive weight to intratextualism (related words in the Constitution) and little to words in other documents. See Patrick O. Gudridge, Remember Endo?, 116 HARV. L. REV. 1933, 1961 n.134 (2003) ("[Amar] notes but does not make much use of 'intertextualism,' juxtapositions of constitutional wordings with other phrasings in other documents."). Not surprisingly, while he has written a major article on intratextualism, he has not written an article on intertextualism. A fundamental element of his interpretive approach is to privilege the constitutional text above other sources.
131. Amar, Intratextualism, supra note 10, at 793.
132. Id. at 793-94.
133. Amar, supra note 1, at 29.
134. Id. (emphasis added).
135. AMAR, supra note 8, at xiii.
136. Id. at 133.
137. Id. at 127.
138. Id. at 82.
139. Id. at xii.
140. Id. at 159;
141. see also id. at 68 ("[T]he agency problem [was] of protecting the people generally from self-interested government policy . . ..").
142. Id. at 159-60.
143. Id. at 289.
144. See also id. at 302 ('The Bill of Rights ... was initially an Anti-Federalist idea that moderate Federalists ultimately accepted and adjusted.").
145. Id. at 133.
146. Id. at 215-16.
147. See AMAR, supra note 8, at 282-83;
148. see also Amar, Intratextualism, supra note 10, at 772-73 ("[A]fter the ratification of [the Fourteenth Amendment], equal protection should also be seen as implicit in the Fifth Amendment phrase 'due process of law.' ").
149. See, e.g., Reva B. Siegel, She the People: The Nineteenth Amendment Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947 (2002).
150. For a jurisprudential (rather than historical) critique of Amar's use of textualism to fuse constitutional text enacted during different periods, see Vermeule & Young, supra note 67.
151. AMAR, supra note 8, at xii (emphasis added).
152. The Introduction and the first chapter include multiple other examples. Id. at xiii ("[T]his first issue was indeed first in the minds of those who framed the Bill of Rights.");
153. id. at 8 ("[T]he words that we refer to as the First Amendment really weren't 'first' in the minds of the First Congress.");
154. id. at 14 ("[LJt is not surprising that the First Congress's First Amendment attempted further fine tuning of the structure of representation in the lower house.");
155. id. at 18 ("[B]oth amendments were attempts to strengthen majoritarianism rather than check it, for both sought to tighten the link between representatives and their constituents ... .").
156. Amar, supra note 1, at 29;
157. see also id. at 27 ("What the American People have said and done in the Constitution is often more edifying, inspiring, and sensible than what the Justices have said and done in the case law.");
158. id. at 29 ("By pondering the public legislative history of these carefully chosen words, we can often learn more about what they meant to the American People who enacted them as the supreme law of the land.").
159. Amar, Intratextualism, supra note 10, at 793.
160. Id.
161. Id. at 793-94.
162. CLINTON ROSSITER, 1787: THE GRAND CONVENTION 161 (1966).
163. Id.
164. Id. at 225.
165. Id.
166. See infra Parts D-DI; see also CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST CONGRESS xiv-xvi (Helen E. Veit et al. eds., 1991)
167. [hereinafter DOCUMENTARY RECORD].
168. In addition to the Territories Clause, scholars have focused on the Committee of Style's use of a semicolon before the start of the General Welfare Clause. When initially approved by the convention, the clause was preceded by a comma. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 493, 569 (Max Farrand ed., rev. ed. 1966)
169. [hereinafter RECORDS].
170. When it emerged from the Committee on Style, the clause was preceded by a semicolon, id. at 594, arguably making it a general grant of power rather than a limitation on the taxing power. On the floor of the convention, no one objected to (or even mentioned) the punctuation change. When the Constitution was again printed, the semicolon had again become a comma.
171. Id. at 655.
172. For the allegation that Morris added the punctuation in bad faith and the claim that Roger Sherman corrected the punctuation before the Constitution was engrossed, see 3 RECORDS, supra, at 379 (presenting the statement of Albert Gallatin). Academic discussion of the Committee of Style's punctuation of the General Welfare Clause takes different positions on Morris's culpability.
173. Compare MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 182 (1913) ("The change may or may not have been intentional ...."),
174. and FORREST MCDONALD, NOVUS ORDO SECLORUM: THE INTELLECTUAL ORIGINS OF THE CONSTITUTION 265 (1985) ("Morris made a clever attempt...."),
175. with ROSSITER, supra note 99, at 228-29 ("[Morris] was a faithful servant of the committee and the committee of the Convention."),
176. and David Engdahl, The Basis of the Spending Power, 18 SEATTLE U. L. REV. 215, 252-53 (1995) (describing Morris's misbehavior as a "myth"). Despite his position that interpretive weight should be given to underlying meanings that "The People" did not specifically intend,
177. see supra text accompanying notes 95-97, Professor Amar is aware of the claims that Morris intentionally attempted to alter the punctuation of the general welfare clause to alter its meaning.
178. See Akhil Reed Amar, Our Forgotten Constitution: A Bicentennial Comment, 97 YALE L.J. 281, 286 n.25 (1987) ("Professor Farrand offers a fascinating account of a clause in which an apparently small change in punctuation was attempted in order to effect a large change in meaning.")
179. He wrote: I always thought that, when we should acquire Canada and Louisiana it would proper to govern them as provinces, and allow them no voice in our councils. In wording the third section of the fourth article, I went as far as circumstances would permit to establish the exclusion. Candor obliges me to add my belief, that, had it been more pointedly expressed, a strong opposition would have been made. 3 RECORDS, supra note 103, at 404.
180. For discussion, see MCDONALD, supra note 104, at 282-83.
181. AMAR, supra note 8, at 119.
182. Id. at 280.
183. For a helpful discussion of the literature on the Ninth Amendment and a defense of the view that the Amendment protected individual rights as well as a narrow construction of the powers of the national government, see Randy E. Barnett, The Ninth Amendment: It Means What It Says, 85 TEX. L. REV. 1 (2006).
184. AMAR, supra note 8, at 120.
185. Id.
186. Id.
187. Id. at 121.
188. Id. (quoting 1 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 327 (Jonathan Elliot ed., 2d ed., Washington, Taylor & Maury 1836)
189. [hereinafter ELLIOT'S DEBATES]).
190. Id. at 122
191. (quoting 1 ELLIOT'S DEBATES, supra note 113, at 327).
192. Id.
193. Id. at 121.
194. Id. at 124.
195. Id. at 123-24.
196. Id. at 124.
197. Id.
198. See id. at 120.
199. See supra text accompanying note 113.
200. Amendments Proposed by the Virginia Convention (June 27, 1788), in DOCUMENTARY RECORD, supra note 103, at 17, 17.
201. Ronald Hamowy, Jefferson and the Scottish Enlightenment: A Critique of Garry Wills's Inventing America: Jefferson's Declaration of Independence, 36 WM. & MARY Q. 503, 519 (1979).
202. Amendments Proposed by the Virginia Convention, supra note 123, at 17.
203. Id. at 17-19.
204. See AMAR, supra note 8, at 64-65.
205. See id. at 120.
206. Virginia's list included collective rights (such as the right of resistance to arbitrary government) and individual rights. See Amendments proposed by the Virginia Convention, supra note 123, at 17. My point is not that collective rights were not considered rights of the people; rather, it is that, contrary to Amar, they were not the core rights to the exclusion of individual rights.
207. Amendments Proposed by the New York Convention (July 26, 1788), in DOCUMENTARY RECORD, supra note 103, at 21, 21.
208. Id. at 22 ("That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience ....").
209. In his account of the Ninth and Tenth Amendments, Amar also does not mention North Carolina's proposals, but North Carolina's First Amendment similarly called for recognition of natural rights. Its language followed Virginia's: "That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety." North Carolina Convention Debates (1788), reprinted in 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 933, 966 (1971)
210. [hereinafter DOCUMENTARY HISTORY].
211. Willie Jones, the delegate who proposed the Declaration of Rights, acknowledged that "I have, in my proposition, adopted, word for word, the Virginia amendments, with one or two additional ones." 2 DOCUMENTARY HISTORY, supra, at 933. The North Carolina ratifying convention did not ratify (or reject) the federal Constitution; it instead proposed amendments previous to ratification. The state ratified the federal Constitution after the Bill of Rights was adopted.
212. See id at 932-33.
213. North Carolina did not copy the Virginia language that Amar relies on concerning the people of the United States' right to resume powers granted under the Constitution. See AMAR, supra note 8, at 121-22.
214. See supra text accompanying note 114.
215. The language from Virginia that Amar quotes is not language from a proposed amendment. It is, rather, language from the state's ratification transmittal letter. See 2 DOCUMENTARY HISTORY, supra,, at 121-22, & 348 n.6 (quoting Virginia Resolution (June 26, 1788),
216. reprinted in 1 ELLIOT'S DEBATES, supra note 113, at 327).
217. Nonetheless, Virginia had a proposal that went to the same basic point, declaring that the "doctrine of non-resistance against arbitrary power and oppression is absurd slavish." Amendments Proposed by Virginia Convention, supra note 123, at 17.
218. North Carolina followed this proposal. See North Carolina Convention Debates, supra, at 966-67.
219. AMAR, supra note 8, at 119-22.
220. See Madison Resolution (June 8, 1789), in DOCUMENTARY RECORD, supra note 103, at 11, 11-14.
221. See id. at 13-14.
222. Id. at 14.
223. See id. at 12-13.
224. U.S. CONST, art. I, § 9, els. 2-3.
225. Madison Resolution, N.Y. DAILY ADVERTISER, June 8, 1789, in DOCUMENTARY RECORD, supra note 103, at 11, 13.
226. AMAR, supra note 8, at 114.
227. Madison Resolution, supra note 138, at 13. Madison's floor statement on his Ninth Amendment also makes clear that it was a gloss on the rights provisions that would have preceded it: It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments that I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution [the Ninth Amendment]. 1 ANNALS OF CONG. col. 439 (Joseph Gales ed., 1789) (statement of Rep. Madison).
228. Madison Resolution, supra note 138, at 13.
229. Id. at 12.
230. Id. at 13.
231. CONG. REG., June 8, 1789, reprinted in DOCUMENTARY RECORD, supra note 103, at 69, 85.
232. See AMAR, supra note 8, at 20-26, 81-118.
233. Roger Sherman, Proposed Committee Report (July 21-28, 1789) in DOCUMENTARY RECORD, supra note 103, at 266, 268 n.
234. Id. at 267.
235. Madison Resolution, supra note 138, at 13.
236. House Committee Report (July 28, 1789), in DOCUMENTARY RECORD, supra note 103, at 29, 31.
237. Id. at 30.
238. See id. at 32-33.
239. See CONG. REG. (Aug. 13, 1789) (quoting Roger Sherman), in DOCUMENTARY RECORD, swpra note 103, at 112, 117-18, 125-26.
240. Id. at 112, 118 (quoting James Madison).
241. Madison Resolution, supra note 138, at 13.
242. See id.
243. See House Resolution and Articles of Amendment (August 24, 1789), in DOCUMENTARY RECORD, supra note 103, at 37, 41.
244. See id.
245. See Articles of Amendment, as Agreed to by the Senate (Sept. 14, 1789), in DOCUMENTARY RECORD, supra note 103, at 47, 49.
246. See supra text accompanying notes 62-73.
247. See supra text accompanying notes 51-56.
248. Amar, Intratextualism, supra note 10, at 795.
249. AMAR, supra note 8, at 133.
250. Id. at 112.
251. Id. at 133.
252. Id.
253. U.S. CONST, amend. I.
254. AMAR, supra note 8, at 26.
255. Id. at 28.
256. The First Amendment recognizes "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. CONST, amend. I.
257. AMAR, supra note 8, at 30.
258. Id. at 47.
259. Id. at 120.
260. The Fourth Amendment, in its entirety, reads as follows: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST, amend. IV.
261. AMAR, supra note 8, at 64.
262. Id. at 67.
263. Id. at 73.
264. Id. at 67-68.
265. Id. at 64.
266. Amar, Intratextualism, supra note 10, at 795.
267. AMAR, supra note 8, at 65.
268. Id.
269. Id.
270. See id. at 65-61.
271. Id. at 30.
272. Id.
273. Madison Resolution, supra note 138, at 12 ("The people shall not be restrained .. . from applying to the legislature by petitions, or remonstrances for redress of their grievances.").
274. Amar, Intratextualism, supra note 10, at 791.
275. Id. at 792.
276. Id. at 795.
277. Id.
278. Kelo v. City of New London, 545 U.S. 469, 509-10 (2005) (Thomas, J., dissenting).
279. U.S. CONST, amend. V (emphasis added).
280. Id. art. I, § 10, cl. 2 (emphasis added).
281. Morrison v. Olson, 487 U.S. 654, 719-20 (1988) (Scalia, J., dissenting).
282. U.S. CONST, art. III, § 1 (emphasis added).
283. Id. art. II, § 2, cl. 2 (emphasis added).
284. Amar, Intratextualism, supra note 10, at 797 n.197.
285. For discussion, see supra Section I.A.
286. See supra Section II.B.
287. The specific language of the Clause follows: "[N]or shall private property be taken for public use without just compensation." U.S. CONST, amend. V.
288. AMAR, supra note 8, at 77.
289. Id. at 78.
290. Id.
291. Id. at 268.
292. See supra Section U.C.
293. See DOCUMENTARY RECORD, supra note 103 at 12.
294. The placement of the Self-incrimination Clause in what became the Fifth Amendment rather than in what became the Sixth Amendment reflects the fact that it was not simply a right of a defendant at his trial: it extended, for example, to witnesses. LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 255 (1988).
295. MD. CONST, of 1776, art. XXI ("That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."),
296. reprinted in 3 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES 1688 (Francis Newton Thorpe ed., 1909) [hereinafter ORGANIC LAWS];
297. see also N.Y. CONST, of 1777, art. XDI,
298. reprinted in 5 ORGANIC LAWS, supra, at 2632;
299. N.C. CONST, of 1776, art. XD,
300. reprinted in 5 ORGANIC LAWS, supra, at 2788.
301. For a discussion, see William Michael Treanor, The Original Understanding Of The Takings Clause And The Political Process, 95 COLUM. L. REV. 782, 789 & n.40 (1995).
302. AMAR, supra note 8, at 78.
303. The fourth sentence of Article II of the Ordinance reads as follows: No man shall be deprived of his liberty or property but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary for the common preservation to take any person's property, or to demand his particular services, full compensation shall be made for the same. Northwest Ordinance of 1787, 1 Stat. 50, 51 n.(a), art. II (1789), reprinted in 1 DOCUMENTARY HISTORY, supra note 131, at 397, 400.
304. MASS. DEC. OF RIGHTS of 1780, art. X, reprinted in 1 DOCUMENTARY HISTORY, supra note 131, at 339, 341-42.
305. The Declaration of Rights in the Vermont Constitution of 1777 did not link the Takings Clause and its version of the Due Process clause. See VT. CONST, of 1777, ch. I, §§ II, IX (takings and due process clauses),
306. reprinted in 1 DOCUMENTARY HISTORY, supra note 131, at 319, 322-23. The point is not that the linkage was inevitable but that it was commonplace, as the structure of the Massachusetts Constitution and the Northwest Ordinance suggest.
307. AMAR, supra note 8, at 8.
308. Id. at 8-9.
309. Id. at 14.
310. See Madison Resolution, supra note 138, at 11.
311. AMAR, supra note 8, at 17.
312. See Madison Resolution, supra note 138, at 12.
313. See House Resolution and Articles of Amendment, supra note 156, at 37-41.
314. The only support of any type that Amar offers is a reference to a law review article that, in discussing free speech and press, does exactly what Professor Amar does: notes the placement of the protection in various documents and assumes, without support, that placement reflects significance. See AMAR, supra note 8, at 316 n.42
315. (citing David A. Anderson, The Origins of the Press Clause, 30 UCLA L. REV. 455, 482 (1983)).
316. Virginia proposed both amendments to the text and a bill of rights. Amendments Proposed by the Virginia Convention, supra note 123, at 17-21.
317. New York had a list of rights that it declared could not be abridged, a list of understandings, and a list of proposed amendments. Amendments Proposed by the New York Convention, supra note 129, at 21-28.
318. CONG. REG., Aug. 13, 1789,
319. reprinted in DOCUMENTARY RECORD, supra note 103, at 112, 123.
320. AMAR, supra note 8, at 14.
321. Amendments Proposed by the Massachusetts Convention (Feb. 6, 1788), in DOCUMENTARY RECORD, supra note 103, at 14, 14-15.
322. Amendments Proposed by the New Hampshire Convention (June 21, 1788), in DOCUMENTARY RECORD, supra note 103, at 16, 16-17.
323. AMAR, supra note 8, at 9.
324. Id.
325. Id. at 37.
326. See supra Section II.B.
327. Madison Resolution, supra note 138, at 13.
328. House Resolution and Articles of Amendment, supra note 156, at 41.
329. DOCUMENTARY RECORD, supra note 103, at 41 n.14.
330. AMAR, supra note 8, at 22.
331. Id. at 38.
332. Amar, supra note 1, at 30.
333. See Martin S. Flaherty, The Most Dangerous Branch, 105 YALE L.J. 1725, 1743 (1996).
334. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power To Execute the Laws, 104 YALE L.J. 541, 570-71 (1994) (footnote and emphasis omitted);
335. see also Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 222-46 (1995) (providing an intratextual analysis of voting amendments);
336. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L. REV. 1153, 1175-86 (1992) (providing an intratextual analysis of vesting clauses).
337. See Proceedings of the Convention Referred to the Committee of Style and Arrangement (1787), in 2 RECORDS, supra note 104, at 565-80.
338. For the Report of the Committee of Style, see 2 RECORDS, supra note 104, at 590-603.
339. See Calabresi & Prakash, supra note 236, at 563, 570-71, 574-75 (assigning significance to the fact that the vesting clause of Article I gives Congress the legislative powers "herein granted," whereas the vesting clauses of Articles D and DI simply grant the Executive and the Courts the "executive Power" and the "judicial Power" without limitation).
340. For the debate on the Committee's work, see 2 RECORDS, supra note 104, at 607-40.
341. AMAR, supra note 8, at 73.
342. Id. at 302.
343. U.S. CONST, amend. V (emphasis added).
344. AMAR, supra note 8, at 97.
345. Id.
346. He writes: "Here, as elsewhere, I do not argue that the clause cannot be applied beyond what I call its 'core' meaning. Indeed, refusal to do so here would render the provision wholly redundant, as the Supreme Court has noted." Id. at 342 n.62 (citing Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856)).
347. Amar does not actually spell out what the redundancy is. Several chapters later, however, in discussing the meaning of due process in 1866, he observes "[t]here are also questions about redundancy if we assume that the Fifth Amendment's due-process clause merely replicated its grand-jury clause." Id. at 202.
348. Id. at 97, 342 n.62.
349. Id. The full quote is from Alexander Hamilton, A Letter from Phocion to the Considerate Citizen of New York, reprinted in 3 THE PAPERS OF ALEXANDER HAMILTON 485 (Harold C. Syrett and Jacob E. Cooke eds., 1962).
350. Id.
351. See Hamilton, supra note 248, at 485.
352. See, e.g., id. at 484 ("[T]hese men are advocates for expelling a large number of their fellow-citizens unheard, untried; or, if they cannot effect this, are for disfranchising them, in the face of the constitution, without the judgment of their peers, and contrary to the law of the land." (emphasis added));
353. id. at 485 ("[T]he legislature ... cannot, without tyranny, disfranchise or punish whole classes of citizens by general discriptions, without trial and conviction of offences known by laws previously established declaring the offence and prescribing the penalty. This is a dictate of natural justice, and a fundamental principle of law and liberty." (emphasis added)).
354. AMAR, supra note 8, at 342 n.62.
355. Id. at 200-01 (quoting 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1783, at 661 (1833)).
356. Id. at 201.
357. Id. at 200-01 (quoting 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 13 (2d ed. 1832)) (omission in original).
358. Id. at 342 n.62.
359. James W. Ely, Jr., The Oxymoron Reconsidered: Myth and Reality in the Origins of Substantive Due Process, 16 CONST. COMMENT 315, 334 (1999).
360. 2 Johns. Ch. 162 (N.Y Ch. 1816).
361. Gardner, 2 Johns. Ch., at 165-66.
362. E.g., Den on demise of the Trs. of the Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58 (1805);
363. State v. -, 2 N.C. 38 (1 Hayw.) 28 (1794); Lindsay v. Comm'rs, 2 S.C.L. (2 Bay) 38 (S.C. 1796); Bowman v. Middleton, 1 S.C.L. (1 Bay) 252 (S.C. 1792). On the equivalency of "law of the land" and "due process" in English usage, see 2 DOCUMENTARY HISTORY, supra note 131, at 855-56.
364. See DOCUMENTARY RECORD, supra note 103 at 12 (providing Madison's original proposal);
365. id. at 39-40 (Article X of House Resolution and Articles of Amendment of August 24, 1789;
366. Article X contained grand jury clause and other criminal procedure protections); id. at 40 & n.14 (observing that on September 4, 1789 the Senate rejected all of Article X except for the grand jury clause and that on September 8, 1789, the Senate merged the grand jury clause into Article VIII).
367. Article VIII was the precursor of our Fifth Amendment. See id. at 39 (providing Article VDI as adopted by the House of Representatives).
368. AMAR, supra note 8, at 96.
369. Id. at 83.
370. See id. at 81-118.
371. Id. at 104 (emphasis added).
372. Id. at 104-10.
373. MCDONALD, supra note 104, at 289.
374. Robert C. Palmer, Liberties as Constitutional Provisions, in LIBERTY AND COMMUNITY: CONSTITUTION AND RIGHTS IN THE EARLY AMERICAN REPUBLIC 55, 101 (1987);
375. see also WILLIAM E. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 20-30 (1975);
376. RAKOVE, supra note 36, at 297-302.
377. See AMAR, supra note 8, at 110 (noting continuity of view of role of the jury during revolutionary era).
378. See Treanor, supra note 7, at 474-87. In addition, Virginia's first instance of judicial review - the Case of the Prisoners-was also concerned with legislation affecting loyalists, although the legislation implicated was a pardon statute, rather than a statute affecting the right to a jury trial.
379. See William Michael Treanor, The Case of the Prisoners and the Origins of Judicial Review, 143 U. PA. L. REV. 491 (1994).
380. 1 N.C. (Mart.) 5 (1787).
381. Id. at 7.
382. U.S. CONST, amend. V (emphasis added).
383. Id. amend. VI (emphasis added).
384. Id. amend. VII.
385. Amendments Proposed by the Massachusetts Convention, supra note 223, at 15. The Maryland Minority proposal and the New Hampshire proposal were also framed in terms of a waivable individual right.
386. See THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 506-07 (Neil H. Cogan ed., 1997) (reproducing proposals).
387. Sherman, supra note 146, at 267.
388. AMAR, supra note 8, at 104 (emphasis added).
389. Robert Palmer has provided a thoughtful analysis of the relationship between republicanism and the Bill of Rights that, unlike Amar's account, treats republicanism as fundamentally concerned with the protection of individual liberty. See Palmer, supra note 268, at 105-117.
390. U.S. CONST, amend. X.
391. AMAR, supra note 8, at 119-24.
392. Id. at 26-30.
393. Id. at 46.
394. ISAAC KRAMNICK, REPUBLICANISM AND BOURGEOIS RADICALISM: POLITICAL IDEOLOGY IN LATE EIGHTEENTH-CENTURY ENGLAND AND AMERICA 261 (1990).
395. Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 YALE L.J. 1225, 1229 (1999).
396. RAKOVE, supra note 36, at 289-90.
397. GORDON WOOD, CREATION OF THE AMERICAN REPUBLIC 61 (1969).
398. Id. at 609.
399. James Madison, Notes for Amendments Speech (1789), in 2 DOCUMENTARY HISTORY, supra note 131, at 1042, 1042.
400. Id. at 1043.
401. CONG. REG., supra note 144, at 81. While in certain ways Madison's thought was innovative and perhaps not completely understood by his contemporaries, the concerns he had about abuses by state governments were widely shared,
402. see Larry D. Kramer, Madison's Audience, 112 HARV. L. REV. 611, 625-26 (1999), and it is this concern about majoritarian abuse that Madison's speech about the Bill of Rights highlights.
403. AMAR, supra note 8, at 302.
404. Letter from William R. Davie to James Madison (June 10, 1789), in DOCUMENTARY RECORD, supra note 103, at 245, 246.
405. DOCUMENTARY RECORD, supra note 103, at xv.
406. Id.
407. Letter from Joseph Jones to James Madison (June 24, 1789), in DOCUMENTARY RECORD, supra note 103, at 253, 253.
408. Letter from William L. Smith to Edward Rutledge (Aug. 9, 1789), in DOCUMENTARY RECORD, supra note 103, at 273, 273.
409. Letter from Patrick Henry to William Grayson (Mar. 31, 1789), in DOCUMENTARY RECORD, supra note 103, at 226, 226.
410. Letter from William Grayson to Patrick Henry (June 12, 1789), in DOCUMENTARY RECORD, supra note 103, at 248, 249.
411. Cf., e.g., Palmer, supra note 268 (discussing republicanism and the Bill of Rights);
412. RAKOVÉ, supra note 36, at 297-302 (discussing jury trials).
413. AMAR, supra note 8, at 73.
414. JAMES WEST DAVIDSON & MARK HAMILTON LYTLE, AFTER THE FACT: THE ART OF HISTORICAL DETECTION 6 (1982).
415. Id. sit 2.
416. AMAR, supra note 8, at xii.
417. Id. at 133.