Some of you may remember watching the Ken Burns documentary on the Civil War. One point that has stuck with me, for whatever reason, was a comment made on a point of grammar. It was to the effect that, since the Civil War, it has been customary to say, "The United States is." However, the antebellum usage was the grammatically correct, "The United States are". I suspect that there was more to this change than a collective nose-thumbing at the Queen's English. A recent discussion I had with Nick over at Sylvan Manor has me thinking about it again.
The issue is the evolution in how, for right or wrong, we have come to perceive ourselves as a nation. Is it desirable, or even possible for that matter, to interpret the Constitution in such a manner as to get back to the original intent of its authors? Or is it the case that the course of history has brought about changes within the document itself that have virtually redefined its terminology? I maintain the latter and, consequently, would argue that not every change in our political society has been the result of an out of control judiciary. Often, it is not so much a case of judicial legislation as it is a matter of trying to keep up with a morphing standard.
When compared with other world civilizations over the course of history, a democracy of the kind that we now have in the United States is a truly radical concept. Back at the founding of our nation, it was unheard of. Although the roots were definitely in the making, Revolutionary America knew nothing of our brand of individualism. It is possible, even likely, that the Founding Fathers were not thinking of liberty so much in terms of personal freedom as in terms of the freedom of societies from outside interference (not that the concept wasn't around- just consider the Declaration of Independence with its appeal to "life, liberty, and the pursuit of happiness"). The colonies had just cooperated to throw off the rule of a de facto outsider: the King of England. This does not mean, however, that they disparaged the rule of law. The point was freedom for each of the colonies. These colonies could then govern their own citizens in whatever manner they saw fit. The circumstances of the time required that they maintain a common bond. But this did not mean that they had any intention of giving up their own sovereignty. None of the colonies would do it for the British Crown, and they certainly wouldn't do it for the newly formed Federal government.
In light of this backdrop, consider the original Constitution as it existed from the Preamble through the Bill of Rights. The most important point is a matter of terminology. "People" and "states," while not absolutely identical, are inseperable. Take, as an example, the second amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Reading this today, we are inclined to insist on our individual right to own a gun, presumably in order to protect our homes. But in the original context of the amendement, the issue is not burglars. It is the security of a free state. This amendment guarantees the right of the states to maintain and regulate their own militias.
Or, consider the first amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Today, we understand this to mean that we can believe whatever we want, say whatever we want, report whatever we want, and peaceably gather in protest whenever we want. But is this the original intent of the amendment? Rather than protecting the rights of the individual from any government interference, it would appear that this amendment was designed to protect the states from Federal interference. At the time of its ratification, many of the states had an established church. Individual religious freedom is not so much in view then as the right of each state, if it so chose, to determine the religion of its citizens for itself. Also, nothing in this amendment forbids the states from regulating speech or the press. The ability to control both of these (or, at least, the Federal government's inability to control them) was seen as essential to the freedom of the state. Finally, the right of the people peaceably to assemble would probably not be talking about grassroots protests, but of the rights of the states to assemble and petition the Federal government.
There was a balance of power between the Federal government and the states with the emphasis going to the states. The individual did have certain rights enumerated in the constitution, which are especially evident in the third through eighth amendments where the subject is not "the people" but "person" (either explicitly or by implication; sometimes stated as "the owner" or "the accused"). The ninth amendment then states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Note again the mention of "the people." While not denying the existence of individual rights not listed in the Constitution, this amendment leaves these at the discretion of the states. The tenth amendment may actually contain a distinction between "states" and "people," in which case "people" would mean "persons." Or it could be using "people" by way of explication for "states." It reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If there is a different meaning for "people" here, the states are still being given priority.
I don't deny that individual freedom was emerging as an issue, but it wasn't nearly as prominent as it is today. It wasn't where we might expect to see it. Take the compromise that led to our present two-part legislature. The larger states wanted representation according to population; the smaller states wanted it to be just for the fact that they were states. However, the larger states were not being champions of the individual. They just believed that size entitled them to certain advantages. One area in which some concern for the individual may be evident is found in the direct election of the lower house. Originally, members of the upper house were chosen by the state legislatures. The choice of President still belongs to the states. Our right to vote in Presidential elections has been granted to us by our respective states. That this is not a right granted to us as US citizens can be seen by the fact that US citizens who are not residents of any of the states or of the District of Columbia (per the 23rd amendment) do not get to vote. Puerto Rico would be the most prominent example.
The seeds of individualism were already present in revolutionary America. The concept gradually developed and a new revolution, or the Civil War, confirmed it. Southern states tried to secede from the Union. Since the Union originated as a voluntary cooperation of states, this would seem to fall within their rights. But Linclon didn't see it that way. Strictly speaking, he was probably wrong. However, in his defense, there were two other considerations. First, there was no reason to believe that the necessity, which had led to the original act of cooperation, had in any way been abated. The secession of any state represented a potential threat to the security and welfare of those that remained. In the second place, there was the matter of slavery. The status quo had served to sanction and preserve the worst form of institutional racism. To be sure, such an institution was not inherent within the system. Nevertheless, since it existed at the formation of this system and had, in a sense, developed a symbiotic relation with it, its irradication necessitated a paradigm shift. Individual states were just as despotic towards some of their subjects, if not more so, than the tax happy British monarch had been towards some of his. Time had done nothing to lessen this.
During the course of the war, the subject of the "people" was once again brought into the foreground. The occassion was the end of the President's speech at Gettysburg. Lincoln concludes, "...that this 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." No longer was the term being used as a virtual synonym for the state. Lincoln, of all people, did not have states' rights in mind. The old concept of the divine right of Kings had been replaced by the God given rights of the individual.
The shift that had occurred in war was soon to be reflected in the Constitution itself. The first section of the fourteenth amendment is as follows: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
At first, this appears obvious and maybe even somewhat redundant. But it represented a major change in the balance of power. No longer was the state equated with the people. For better or worse, the state/people did not stand in need of protection from the outside Federal government. Instead, the citizens of the United States were now to be protected against the potential abuses of the several states. The rights of the people had been expanded; however, along with this, so had the power of the Federal government. Over time, these two sides would work together towards more individual rights and equaility. The Civil Rights Movement originated with people who recognized their status as US citizens and who, consequently, made their appeal to the government of the United States. Much civil rights legislation is designed to curb the discretionary power of the states.
The tension between a radically free citizenry and a powerful government is enormous. On one side, this government could go the way of all other powerful governments. On the other, the people could devolve into anarchy. And here is where I believe that the individual states have a valid and necessary function. They act as a guard against the excesses of either side. The dynamic between citizens, Federal government, and states has gradually developed into a system of checks and balances. Within a Constitutional framework, each has its own powers and rights. The full blown states rights of the original Union no longer exists. This does not mean, however, that the states have been reduced to nothing more than geographic land markers. Then again, they no longer serve as such strong emblems of our identity. We are no longer New Yorkers, Pennsylvanians, Virginians, or Georgians who are also Americans. We are Americans who also reside in our own individual state. The United States has become the new civic community and, as such, it is now the State. Our language has changed to reflect this: "The United States is."
Posted by kcourter at setembro 9, 2003 1:23 PM