Unsound Constitution

by George P. Fletcher

Old Liberty Bell going bad by a crack from top to bottom, was a striking omen of the future. -- J. Clarence Stonebraker

When the police stopped Timothy McVeigh seventy-five miles from the freshly exploded Alfred P. Murrah Federal Building in Oklahoma City, he was wearing a T-shirt with an apparently incriminating message on the front: "Sic semper tyrannis." The message on the back was just as provocative: "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." An illustration of "the tree of liberty" dripped blood.

At the trial in Denver, which concluded with a guilty verdict last week, prosecutors presented the content of McVeigh's shirt as evidence that he was a madman capable of killing scores of innocent people. Prosecutor Joseph Hartzler, who presented the case against Mr. McVeigh, implied as much in his opening statement to the jury. Referring to the language of the shirt and similar political slogans, Hartzler said, "These documents are virtually a manifesto declaring McVeigh's intention." The jury obviously agreed, finding McVeigh guilty on all charges against him, including eight counts of first degree murder.

Surely the verdict was reasonable. The case against McVeigh established fairly strongly that he was the Oklahoma City bomber. But the underlying assumption in the case -- that McVeigh's beliefs define him as an extremist -- is not quite right. After all, are the words that McVeigh carried on his chest really so radical? "Sic semper tyrannis" was popular among revolutionary leaders long before John Wilkes Booth gave it an infamous sting. Thomas Jefferson's metaphor of "the tree of liberty" is no more outrageous than Patrick Henry's "Give me liberty or give me death" or New Hampshire's license plate motto, "Live free or die."

More important, McVeigh's belief that the Constitution should be interpreted exactly as it was written is surprisingly conventional. Not only is it in line with the conception held by many of the nation's founders, but it lives on today in the works of an influential minority of legal scholars and advocates. Although we generally teach lawyers to read the Constitution as judges have read it over time, many contemporary judges -- Antonin Scalia, William Rehnquist, Robert Bork -- hold that we should read the Constitution precisely as it is written. If these "originalists" are right, then McVeigh had a reason to think the Brady Bill's restrictions on gun ownership were a direct assault on the Second Amendment's right to bear arms. Similarly, McVeigh was employing -- if perhaps stretching -- originalist logic when he concluded that the federal raid on Waco violated the Branch Davidians' First Amendment guarantee of religious freedom.

Faced with a government that he believed had systematically violated the Constitution's core rights, McVeigh also had at least some reason to believe it was appropriate to take up arms. As Alexander Hamilton wrote in Federalist 28: "[I]f the persons intrusted with supreme power become usurpers... the citizens must rush tumultuously to arms, without concert, without system, without resource." Of course, the concept of "arms" may not have included Ryder trucks wired to explode next to federal buildings, but the idea of armed resistance against "usurpers" is rooted in the original understanding of the Constitution.

Let me be clear: this is not at all to say that McVeigh had any legitimate reason to kill 168 people, nor is it to say that originalist legal scholars are responsible for McVeigh and his terrorist ilk. But McVeigh's notion of the Constitution, a notion that in his deranged mind led to terrorism, is far more influential than we commonly assume. And it is fundamentally wrong.

With the shots "heard round the world," Americans rebelled against an oppressive foreign authority. Then, after a generation as semi-independent states, they entered into a compact as "the People" in order, as the Preamble to the Constitution reads, to "secure the Blessings of Liberty to ourselves and our Posterity." The purpose of the 1789 Constitution was to charter a government of limited powers that could never become a tyrannical overlord. To guard against government's tendency toward self-aggrandizement, the framers not only expressly delimited the powers of Congress but tried in the Bill of Rights to carve out certain areas of freedom -- speech, press, assembly, religion, arms -- that would remain beyond the federal government's reach. They would remain vested in "the People," who preceded and superseded the Constitution they established.

Of all the myths that support Timothy McVeigh's antigovernment reading of the Constitution, the greatest is the idea that the People are sovereign and superior to the Constitution. In this argument, the People -- represented if necessary by McVeigh and alleged accomplice Terry Nichols -- are superior to constituted government authority. They are in a position to judge whether the government has exceeded its authority. Sitting as jurors, they can nullify laws democratically enacted and properly applied. As freemen they must be prepared, as Hamilton argued, "to rush tumultuously to arms" as soon as "the persons intrusted with supreme power become usurpers."

This is exactly what some on the radical right are starting to do. The illegal stockpiling of weapons helped prompt the federal siege at Waco, which outraged McVeigh so deeply. And the Fully Informed Jury Association (FIJA), a small nationwide movement, has begun a major campaign in many western states to inform those called for jury duty of their power and supposed right to nullify the law as instructed to them by the trial judge. To many, the distribution of leaflets near courthouses urging juries not to apply democratically enacted law looks very much like obstruction of justice, if not overt sedition against the government. But the devout believers of FIJA see themselves as doing no more than engaging in civic education. They are joined in this campaign to exploit the jury's power to say no by outspoken members of the black left, who argue, as does George Washington University law professor Paul Butler, that justice for blacks requires jury nullification in certain cases in which African Americans are likely to be targeted. Right and left are able to cite on their behalf -- accurately -- academic writing that praises the jury's ultimate power to pass on the wisdom of laws it is supposed to apply.

If only eccentrics of the fringe believed in this exalted power of the People, we could dismiss them as mere and uninfluential anarchists. But these views are not foreign to the academy of constitutional law teachers, nor are they the exclusive province of the fringe. In We the People, an influential study of constitutional history, Yale professor Bruce Ackerman, a liberal, argues that the People retain the authority to legitimate illegal constitutional transformations, such as the adoption of the Constitution itself, which was illegal under the amendment provisions of the Articles of Confederation, and the transformation of Supreme Court jurisprudence after FDR's high-handed court-packing threat. The People can provide their imprimatur at the ballot box, as they did when they voted by a large majority for Roosevelt, or, implicitly, by adopting a practice of support and adherence to new laws. However they do it, the mythical People still function as the ultimate source of legitimacy. The power to say "yes" entails, of course, the power to say "no." And therefore it is but a short step from Ackerman's thesis to the right wing's faith in jury nullification as a legitimate response to unjust authority and the necessity of being armed to say "no" to the "usurpers."

Writing in the Yale Law Journal in 1991, Yale law professor Akhil Amar interpreted the First Amendment's "right of the people peaceably to assemble and to petition the Government for a redress of grievances" as "an express reservation of the collective right of We the People to assemble in a future convention and exercise our sovereign right to alter or abolish our government by a simple majority vote." The thought that a convention could abolish the federal government, including the Supreme Court, before the Court could rule on the convention's legality, goes to the heart of our constitutional confusion. We tolerate and encourage views about the constitutional power of the People that some receptive minds take to be an invitation to fight for the original republic.

Some might think that a clear distinction presents itself between fighting the British and taking up arms against a federal government that appears to be encroaching on our freedoms. As prosecutor Hartzler argued to the jury, "Our forefathers didn't fight British women and children. They fought other soldiers. They fought them face to face, hand to hand. They didn't plant bombs and run away wearing earplugs."

That is so, but, as McVeigh might well have seen it, the federal government had shown by its own example that the rules of engagement had changed. After all, women and children perished at Waco, too.

Still, there's a more fundamental problem with the originalist line of reasoning. The "original republic" -- the one for which our "forefathers" fought "face to face, hand to hand" -- exists only in the minds of academics and fundamentalist patriots. The republic created in 1789 is long gone. It died with the 600,000 Americans killed in the Civil War. That conflict decided once and forever that the People and the States do not have the power to govern their local lives apart from the nation as a whole. The People have no power either to secede as states or to abolish the national government.

The original republic died because it was grounded in a contradiction. It glorified the freedom of some and condoned the slavery of others. It valued persons "not free" at only three-fifths the Census value of those defined as free persons. It required free states to return runaway slaves to their owners. The flaw that spelled its demise was the failure of the framers to recognize the principle of human equality. Neither the word "equality" nor its practical equivalent appears in the document. (The "Privileges and Immunities" clause of Article IV could have become a near equivalent, but it became a dead letter instead.) Today, it would be unthinkable to adopt a constitution anyplace in the world without a commitment to equality. But in late-eighteenth-century America, equality was less important than the fear that a federal government might infringe on our liberties.

The new Constitution -- the one that shapes and guides the national government and disturbs the new patriots to their core -- begins to take hold in the Gettysburg Address, in which Lincoln skips over the original Constitution and reconstitutes it according to the principles of equality articulated in the Declaration of Independence. This short speech functions as the Preamble to a new charter that crystallizes after the war in the Thirteenth, Fourteenth, and Fifteenth Amendments. The Gettysburg Address signals the beginning of a new Constitution. The language is so familiar that we do not realize the implicit transformation:

 

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in liberty and dedicated to the proposition that all men are created equal... that we here highly resolve that these dead shall not have died in vain -- that the nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

Three changes signaled by Lincoln's words shake the foundation of our constitutional identity: the notion of organic nationhood -- including the dead and the unborn -- replaces the sovereignty of the (living) People. Equality, absent from the original document, comes front and center. And the United States evolves from an elitist republic into a democracy "of the people, by the people, for the people."

The reconstituting of "We the People" as the American nation defines the spirit of the new Constitution. The new nation, mentioned four times in Lincoln's 272 indelible words, is shaped by its past as well as its future. The entire focus of the Gettysburg Address is whether the nation "can long endure," whether the "nation might live." A nation born in a historic struggle will not hold itself hostage to those who say they speak in the here and now in the name of the People. Lincoln's nation could not be dismembered.

In contrast, those who wrote the 1789 Constitution had little sense of an American nation originating in the past and inhabiting the future; they wrote and argued as though they thought primarily of their moment, their generation, as unique. Those living then, and by extension any cohort who loved freedom as they did, could simply decide to dismantle the United States -- it was merely a creation of the present. It was Jefferson, after all, who famously wrote that no constitution should be valid past nineteen years.

The recognition that the People are one group, an American nation, makes possible the sustained campaign to convert the elitist Constitution of 1789 into an egalitarian constitution of popular suffrage -- that is, a constitution that bases democratic rule on the majority of all the people. Beginning with the Fifteenth Amendment, securing the right to vote for emancipated slaves, the United States begins to take democracy seriously. Of the ensuing twelve amendments to the Constitution, five are devoted to increasing the franchise and the role of the citizenry in running the country.

Nationhood, equality, and democracy -- these are the ideas that forge a new Constitution. But Lincoln was a good lawyer, and lawyers always seek to camouflage conceptual transformations as the continuous outgrowth of language used in the past. That's why he invoked government "by the people" to capture the new principle of democratic rule. But the significance of the People had changed. They no longer exist as the guarantors of the Constitution, the bestowers of legitimacy. States and individuals can no longer set themselves apart from the nation. The people exist exclusively as voters, as office holders and as beneficiaries of legislation.

The relevant concept in the new Constitution, then, is not "We the People" but "We the citizens of the nation" -- and this transformation is apparent in the post-Civil War amendments. The Fourteenth Amendment, for example, gives us our first concept of national citizenship. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof" are henceforth citizens. Prior to the Civil War, we allowed each state to define for itself who could become a citizen of the state and, on that basis, a citizen of the country. The new definition of who belongs to the polity marks a new beginning.

The Fourteenth Amendment further confirms the new sense of the United States as a national community with its clause prohibiting the states from "depriv[ing] any person of life, liberty, or property, without due process of law; [or denying] to any person within its jurisdiction the equal protection of the laws." These clauses account for the enormous expansion of judge-made constitutional law in the last fifty years, particularly in the field of criminal justice. Under these clauses of the new Constitution, virtually all the constitutional guarantees of the Bill of Rights apply, for the first time, to the states. Yet, as do all proper constitutions, the Fourteenth Amendment contains its own grant of legislative authority to Congress to implement its principles by appropriate legislation.

The Thirteenth Amendment also wreaks a radical transformation. On the surface, it merely abolishes slavery -- expected in the wake of the war. But the Thirteenth Amendment also signals a new conception of constitutional power. The original Constitution limits only government power; the Thirteenth Amendment is the first direct intervention into the private affairs of citizens. The amendment invalidates a certain kind of private relationship -- namely, involuntary servitude -- and provides the legal hook for the first Civil Rights Acts, by recognizing that citizens -- not just government -- can deprive an individual of his or her constitutional rights. (This is the constitutional basis for the federal government's prosecuting and convicting Lemrick Nelson for violating the civil rights of Yankel Rosenbaum by fatally wounding him on a public thoroughfare.)

The most significant and, for fundamentalists, the most threatening aspect of the new Constitution is that it necessitates an activist federal government committed to preserving some semblance of equality -- in other words, the government must intervene in the states and in private affairs to protect the disadvantaged. Early efforts in this direction -- the income tax amendment, prohibition -- represented significant moves to level the playing field and protect the weak. And, after the economic collapse of 1928, national government took its new role even more seriously with the New Deal.

This is the point at which the conflict with the original Constitution becomes acute. Some constitutional fundamentalists, like McVeigh, explicitly reject the new Constitution in their propaganda. They maintain that the original Constitution -- everything that comes before the Thirteenth Amendment -- is the only legitimate one, and they believe their task as freemen is to protect the People against the "usurpers" who would have the federal government exceed its minimalist origins.

So if the extremists can grasp this distinction, why is it foreign to the rest of us? Quite simply, because we do not teach this historical rupture -- not in our grade schools, not in our law schools. We are all good lawyers and therefore, like Lincoln, we pretend that the second Constitution is simply the natural continuation of the founding document. According to the official story, we corrected the racist mistakes of 1789 and got the Constitution on the right track. "We the People" are still in power. Our constitutional situation would be much clearer if we marked the discontinuity in our history by calling the first Constitution the "founding republic" and the second, say, the "egalitarian republic." This new terminology would acknowledge that our constitutional history is close to that of France, with its multiple constitutions, including some legal institutions such as the Declaration of the Rights of Man and the Code civil that date back as far as the late eighteenth century.

The sentencing of Timothy McVeigh and the ensuing trial of Terry Nichols will presumably play out without any serious attention to the defendants' constitutional beliefs. But there was more at stake in this trial than the terrorism of one or two men. The basic question is whether we as a legal and intellectual community will face up to the truth about the false view of the Constitution that we have nurtured for generations. We have propagated myths about the binding force of the 1789 Constitution that some people, unfortunately, take too zealously. We have planted the ideas that have grown crooked in the minds of some. On the basis of the evidence presented at the trial, the jury reached a well founded verdict on McVeigh's guilt. Yet we should be filled with horror that this heinous crime was committed with motives derived from the basic teachings of the republic.