A Proto-Constitutional Right

The following, from the Articles of Confederation and Perpetual Union, predates the Constitution (of course) and inspired the privileges and immunities clause of Article IV of the Constitution:

"The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them."

John Quincy Adams, 1842, The Social Compact

“Were I permitted to select a name for the party to which I should wish to belong, it would be that of Constitutionalist; meaning thereby faithful adhesion to the two Constitutions, of the United States and of the Commonwealth.  They are the fruits of the wisdom and valour of our forefathers matured and modified by the experience of more than threescore years.  They are both the work of the people; one of the Union,—the other of the State—not of the whole people, by the phantom of universal suffrage, but of the whole people by that portion of them capable of contracting for the whole.  The work, not of eternal justice ruling through the people, but of man,—frail, fallen, imperfect man, following the dictates of his nature and aspiring to perfection.  It is not Democracy,—nor Aristocracy, nor Monarchy, but a compound of them all, of which Democracy is the oxygen or vital air, too pure in itself for human respiration, but which, in the union with other elements equally destructive in themselves and less pure, forms that moral and political atmospheric air, in which we live and move and have our being.”

Though Adams makes interesting points in the rest of this lecture concerning the ability of a portion of the people to contract for the whole, I do not post this (of course) in support of restricting the vote to those who had it at the time of Adams' statement.

John Quincy Adams, 1839 -- remarks on the 50th Anniversary of the Constitution

“She had established an uncontested monopoly of the commerce of all her colonies.  But forgetting all the warnings of preceding ages—forgetting the lessons written in the blood of her own children, through centuries of departed time, she undertook to tax the people of the colonies without their consent.

“Resistance, instantaneous, unconcerted, sympathetic, inflexible resistance like an electric shock startled and roused the people of all the English colonies on this continent.  This was the first signal of the North American Union.  The struggle was for chartered rights—for English liberties—for the cause of Algernon Sidney and John Hambden—for trial by jury—the Habeas Corpus and Magna Charta.  But the English lawyers had decided that Parliament was omnipotent—and Parliament in their omnipotence, instead of trial by jury and the Habeas Corpus, enacted admiralty courts in England to try Americans for offences charged against them as committed in America—instead of the privileges of Magna Charta, nullified the charter itself of Massachusetts Bay; shut up the port of Boston; sent armies and navies to keep the peace, and teach the colonies that John Hambden was a rebel, and Algernon Sidney a traitor.  English liberties had failed them.  From the omnipotence of Parliament the colonists appealed to the rights of man and the omnipotence of the God of battles.  Union! Union! was the instinctive and simultaneous cry throughout the land.  Their Congress, assembled at Philadelphia, once—twice had petitioned the king; had remonstrated to Parliament; had addressed the people of Britain, for the rights of Englishmen—in vain.  Fleets and armies, the blood of Lexington, and the fires of Charlestown and Falmouth, had been the answer to petition, remonstrance and address.  Independence was declared.  The colonies were transformed into States.  Their inhabitants were proclaimed to be one people, renouncing all allegiance to the British crown; all co-patriotism with the British nation; all claims to chartered rights as Englishmen.  Thenceforth their charter was the Declaration of Independence.  Their rights, the natural rights of mankind.  Their government, such as should be instituted by themselves, under the solemn mutual pledges of perpetual union, founded on the self-evident truths proclaimed in the Declaration.”

The Table of Rights

I noticed that less than a third of the right-related language in the Constitution is actually in the Bill of Rights.  The following is from the Constitution (except for the headings), and the first section ("The Digest of Rights") consists of the rights of the Constitution itself, while the second section is the traditional Bill of Rights (plus the 27th Amendment, which was passed by the First Congress with the rest of the Bill of Rights, so I think it belongs there), and the third contains the rights which follow the 10th Amendment:

A Digest of Rights

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another. [A]ll Duties, Imposts and Excises shall be uniform throughout the United States. No Tax or Duty shall be laid on Articles exported from any State.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

The Bill of Rights

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.

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.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

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.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Culmination of Rights

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Congress shall have power to enforce this article by appropriate legislation.

[N]either the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

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. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax. The Congress shall have power to enforce this article by appropriate legislation.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. The Congress shall have power to enforce this article by appropriate legislation.

On the Second Amendment

At the Volokh Conspiracy, David Kopel links to his recent article on the Second Amendment, concerning the rise and fall of the idea that the Second Amendment referred to some sort of collective right, belonging to "the people" as a whole.  (As he points out, that view simply does not hold up under inspection.)

I previously posted some of the proposals that led to the creation of the Second Amendment.  They could support a theory that this individual right was intended, in part, to benefit the public by making complete reliance on a military unnecessary (and by making the general population formidable to that military, in case it would ever be corrupted), but not that the right itself was to nothing more than the existence of a militia, in a nation where anyone could be disarmed.  The idea that the Second Amendment concerns a collective right simply is not plausible.

James Otis on the Purpose of Government

"The end of government being the good of mankind, points out its great duties: It is above all things to provide for the security, the quiet, and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people. If life, liberty and property could be enjoyed in as great perfection in solitude, as in society, there would be no need of government. But the experience of ages has proved that such is the nature of man, a weak, imperfect being; that the valuable ends of live cannot be obtained without the union and assistance of many. Hence 'tis clear that men cannot live apart or independent of each other: In solitude men would perish; and yet they cannot live together without contests. These contests require some arbitrator to determine them. The necessity of a common, indifferent and impartial judge, makes all men seek one; tho' few find him in the sovereign power, of their respective states or any where else in subordination to it."

About that 1798 Act for the Relief of Sick and Disabled Seamen

Supporters of the Democrat health care bill (the bill that was passed by Congress and signed by the President, last year) have sometimes cited a 1798 law to provide medical care for "seamen" as a precedent, supposedly proving that the founding generation was in favor of government-provided healthcare funded by taxation.  Their use of that law is misguided, for three reasons:

First, to show that the Fifth Congress took an action does not, in any way, establish the constitutionality of that kind of action.  The Fifth Congress, as much as any Congress, was capable of making vain, unconstitutional gestures which it very well may have described as laws.  The fact that it did something, therefore, is not evidence of its constitutionality.

Second, although I would have trouble justifying and explaining this act under any of the listed powers of Congress, according to the book cited (page 101 - 117) as a source for the text of the act, there was, under maritime law, a traditional and established obligation of the "ship" (considered to be its own person, in the law) to care for and provide for the people of the ship, including curing its sick.  The Constitution does not expressly give Congress a power to make or change maritime law, but Article III definitely contemplates its existence.  As a result, even if the 1798 act was unconstitutional, it is different from the health care bill in that it only gives a more specific form to a duty that already existed in the law.  Additionally, this particular duty makes sense, considering the relationship of the people on the ship to the ship itself; there was a contractual relationship between them, and to whatever extent it was established that this duty existed, it would have been a part of these agreements.

In order to more completely give complete effect to this duty, Congress evidently imposed a requirement that these ships contribute to some sort of a general fund for that purpose.  This does not make the act constitutional, if it was unconstitutional, nor does it make it appropriate, but this has to make it more appropriate than if Congress had simply imposed a new, unjustified obligation on ships.   It certainly differentiates it from imposing a new, unjustified obligation on everyone, just because they exist.  It may not have been an appropriate action for the federal government, but it was, at least, an appropriate action for a government.

Third, as ships are dependent upon government and law for their very existence as persons, it might be argued that the imposition of reasonable regulations on them as a condition of that privilege is justified.  Again, this does not make it an appropriate action for the federal government, but it does make it a more appropriate action for a government, and it distinguishes this act from one which imposes an obligation on human beings, as a condition of their own existence.


In conclusion: upon closer inspection, the two acts are dissimilar, and the 1798 act is no precedent for 2010's health care bill.

Lincoln on Equality and Liberty

Although Abraham Lincoln (of course) did not have a role in creating the U.S. Constitution, I think that the following quote from him is such an excellent and simple statement of the idea of equality as the foundation of the right to liberty that it needed to be posted, here:

"Well, I doubt not that the people of Nebraska are, and will continue to be as good as the average of people elsewhere. I do not say the contrary. What I do say is, that no man is good enough to govern another man, without that other's consent; I say this is the leading principle, the sheet-anchor of American Republicanism."