March 24, 2004

Unhanding the States

by PG

Unlearned Hand posted a lengthy meditation on "The Framers' Views of Restraining State Sovereignty" yesterday. While I haven't done enough originalist reading to speak authoritatively about WWMD (What Would Madison Do), I can add a historical reminder to the discussion.

The reminder is of the motivation for colonization. The Puritans left England in part to escape religious persecution by the state-supported Anglican Church. These English Calvinists in turn established a theocratic society in the Massachusetts Bay colony and expelled dissenters such as Anne Hutchinson and Roger Williams. The latter founded his own colony in Rhode Island, where he championed the cause of religious freedom and church-state separation. Other colonies, such as Quaker Pennsylvania, were founded as refuges for religious minorities.

In considering the arguments and compromises of the Constitutional Convention, one must remember that colonial history included fear of a national church such as the Church of England, but also colonies that were themselves sectarian, such as Massachusetts. (In fairness, the compulsory tendencies of the Bay colony enabled it to thrive in a hostile environment as well as fostering education; every colonist helped to support Harvard College, and a 1647 Act required "that every town of one hundred families or more should provide free common and grammar school instruction.")

So imagine the Convention. Nearly all delegates would have been united in the conviction that a central government, such as that of England, must not have the power to impose a single, unitary religion on all Americans, and this gave us "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, inhabitants of Massachusetts would have disagreed with those of Rhode Island as to whether state governments should be able to force their citizens

to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.
Article III of the Massachussetts Constitution.

As the Constitution generally did when it could not split the difference on a controversy, it ignored the issue, which allowed the constitutions of the several states to decide it individually. The states came up with different results, depending on the temperament of the people and their leaders. Massachusetts had the above-quoted provision; Virginia, led by accused atheist Thomas Jefferson, had the Statute for Religious Freedom even before the national Constitution existed.

My best answers to the questions Unlearned Hand raises:

[W]hat was going to protect the people against the states?

The people had to decide for themselves how much protection they wanted against the state. Some opted for more protection than others. In general, the Framers seem to have thought that belief in and attendance at a particular church could not be made compulsory, but public behavior (such as Sunday laws) and monetary support for religious institutions could be regulated in accordance with religious precepts. This was the compromise between individual liberty and the demands of a democracy.

If the Framers really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does?

Except insofar as the Framers were leaders within their own states and thus many had a hand in their state constitutions, I don't see how the state constitutions reflect trust or a lack thereof by the Framers in state legislatures. As I said, people wrote their state constitutions based on how much protection from their state legislatures they felt was necessary.

For those who are wondering how Virginia manages to prohibit capital punishment while leading the country in per capita execution: Unlearned Hand appears to be referring to the 1776 draft constitution of Virginia, which says,

The General assembly shall have no power to pass any law inflicting death for any crime, excepting murder, & *such* those offences in the military service for which they shall think punishment by death absolutely necessary: and all capital punishments in other cases are hereby abolished.
This provision is not in the present-day constitution of the Commonwealth.

Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?

I agree that the latter reading, of both Constitutions as protections of individuals against federal and state governments respectively, is the sensible one.

Were the Framers as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today?

All the Framers were concerned about protecting individual rights from infringements by a powerful central government that they feared would tend to grow unaccountable to the people; otherwise they would not have broken from the Crown to begin with.

At the same time, they recognized that people in different states might have different views about the extent to which those rights needed to be protected from the theoretically closer and more accountable state governments. If it was important to the people of Massachusetts to have taxpayer support for religious instruction, the Framers were not going to get in their way.

And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?

I don't think the Framers were misguided about state self-restraint, or naive, or compromising factionally in the sense that that word was used in that era. Rather, they recognized that the states were very different from one another -- hence the need for separation of power and a federalist government -- and that those differences had to be respected by the national Constitution, by not applying its protections to the state governments. The Framers knew that if the people of a state wanted a particular protection from their state government, they could write that into the state constitution, as many did.

After all, the express mission and purpose of the Constitutional Convention was to draw up a document to replace the Articles of Confederation, which had created too weak a central government. This new document had to be approved by all thirteen colonies, and the Bill of Rights was not added to it until some of the colonies, such as Rhode Island, protested that they wanted to see these protections in writing before signing on. Therefore I would consider the Bill of Rights to be even less of an "ideal" statement than the rest of the Constitution.

March 24, 2004 01:27 PM | TrackBack

The Civil War Amendments, in particular the 14th, incorporated the 1st Amendment, so that the establishment clause applied to the states. Thank God! I think all states had, prior to these Amendments, done away with establishment religions. As I recall, Massachusetts was one of the last states to do so, in the late 1830s (?).

As to what Madison would do, I suggest a read of Prof. Kurt Lash's "The Lost History of the Ninth Amendment (I): The Lost Original Meaning", February 2004, available via SSRN. I am almost finished with this article and it had opened my eyes that perhaps Chief Justice Marshall misconstrued the Constitution with regard to federalism vs. states rights. (There is also a Part II, also available on SSRN.)

Posted by: Shag from Brookline at March 25, 2004 07:55 AM
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