>> Aslihan Bulut: Aslihan
Bulut, and I have the privilege
of serving as the Law
Librarian of Congress.
Each year, we celebrate
Constitution Day with a lecture
by a distinguished
legal scholar.
Constitution Day, which
is officially known
as "Constitution Day"
and "Citizenship Day,"
is a federal commemoration
observed each year
to mark the signing of the U.S.
Constitution on September 7th,
1787, and to recognize
all who, by coming of age
or by naturalization,
have become citizens.
We are honored to
have University
of Richmond Law Professor
Kurt Lash provide this
year's lecture.
Professor Lash holds the E.
Claiborne Robins Distinguished
Chair in Law at the University
of Richmond School of Law
and has published
widely on the subject
of constitutional
history, theory, and law.
Professor Lash has just
published a two-volume
collection of original documents
relating to the framing
and ratification of the
Thirteenth, Fourteenth,
and Fifteenth Amendments titled
"The Reconstruction Amendments,
Essential Documents."
Professor Lash's lecture is
titled "The Transformation
of the Bill of Rights,
Incorporation Doctrine
and the Fourteenth Amendment."
Professor Lash's lecture will
explore the history of the Bill
of Rights and explain how those
rights came to be protected
against state abridgement
by the Fourteenth Amendment.
Professor Lash will take
questions from the audience
at the end of his lecture.
You can type your question at
any time using the Q&A feature.
Please note that this
session is being recorded
and the recording
will be posted online.
Any comments or questions will
become part of the recording.
And with that, I am
pleased to turn the floor
over to Professor Lash.
>> Professor Kurt Lash:
Thank you, Aslihan.
It's such a pleasure to be
here and to have a chance
to be honored with the
opportunity to talk
about the Bill of
Rights on this day
when we're celebrating our
annual national holiday
for celebrating the
Constitution.
I'm sorry that we're not
doing this in person, but,
on the other hand, you get
to see me without a mask,
so that's the -- whether that's
a good thing or a bad thing.
I hope it's good.
But it also gives me a
chance to not only talk
about the transformation
of the Bill of Rights,
but also to give you a
chance to maybe visualize how
that actually occurred.
So I'll talk about -- I'll
probably take about 30 minutes
to work through some history,
and then we'll open it
up for a broader conversation.
Let's get into the
transformation
of the Bill of Rights.
Okay. So what we call the "Bill
of Rights" is actually
the first ten amendments
to the American Constitution
added to that document in 1781,
and the amendments
that are listed
in those first ten
amendments contain some
of the most cherished
rights that we have
as American citizens, our
right to freedom of religion,
also our right to freedom of
speech and freedom of press,
freedom of assembly, freedom to
petition government for redress
of grievances, and also our due
process rights, our rights not
to be deprived of life, liberty,
or property without due process
of law, including the
trial and jury process.
We have grown up celebrating
the Bill of Rights,
and celebrating the Bill of
Rights not only in our learning
and in broader speeches, but
also in American culture,
in movies and essays and plays,
and some of the most important
speeches of all time talking
about the rights that are
listed in those amendments
and how they created this
sweet land of liberty.
Now, the Supreme
Court, of course,
has always played a
very important role
in enforcing those
amendments and we simply know
that we can trust the
Supreme Court to protect us
against any kind of
abridgement of our rights
by any kind of stative official.
In fact, in one of the most
famous Supreme Court cases
of all time, West Virginia Board
of Education against Barnette,
the Supreme Court struck down a
state law that required students
to salute the flat and to say
the Pledge of Allegiance even
against their religious
scruples.
The Supreme Court struck down
that state law requirement,
and in doing so, the Court
announced what it believed
to be the purpose of
the Bill of Rights.
According to Justice Jackson,
"The very purpose of a Bill
of Rights was to
withdraw certain subjects
from the vicissitudes of
political controversy,
to place them beyond the reach
of majorities, to establish them
as legal principles to
be applied by the courts.
One's right to life, liberty,
or property, to one's freedom
of worship and assembly, and
other fundamental rights,
these may not be
submitted to vote.
They depend upon the
outcome to no elections."
This was the statement of the
Bill of Rights and what it meant
to the American people,
and since that day,
we've gone on to
numerous, actually,
uncountable Supreme Court cases
that enshrine those principles
in our expectations
of what it means
to be a free American citizen.
As a country, we celebrate
this Bill of Rights when we go
to the National Archives,
those of us who have
a chance to go there.
It's just right down the
road from where I live here
in Richmond -- Richmond,
Virginia --
and when we look at
the particular case
that contains the
Bill of Rights,
we believe that we're
looking at a statement
that has always protected
our individual freedom.
Well, it may be that we're
wrong, wrong about what we see
and wrong about how it happened.
The document that's actually
on display in the grand Rotunda
in the Archives does not contain
the words "Bill of Rights."
The document has
no title at all.
It just has a list
of amendments.
And when you read the opening
words of those amendments,
you'll find that they
address themselves to Congress
and not to the states.
When these amendments
were first added in 1791,
these ten amendments only
bound the federal government.
Nothing in the Constitution
protected you
from state officials who might
suppress your freedom of speech,
your freedom of press,
your freedom of religion,
or your right to assemble
and criticize government.
And nothing, of course,
prevented the states
from violating your
rights to due process
and making you a slave.
So how did we get
from there to here?
Why are we right to
think that the Bill
of Rights actually protects us
against any official,
state or national?
When did the original ten
amendments become transformed
into our modern Bill of Rights?
Well, that's a story that
I'd like to talk about today,
and it begins with the
original Constitution.
As originally proposed, as
many of you probably know,
the Constitution did not
contain the Bill of Rights.
When first offered to
the people in 1877,
it was just a document
delineating the various powers
of the proposed federal
government.
Those critical of this proposal
pointed to the lack of a Bill
of Rights is a good reason
for rejecting the
Constitution altogether.
Proponents responded, and they
were called the "Federalists,"
they responded by
arguing that no Bill
of Rights was actually
necessary.
This was to be a government
of limited national power
with no delegated power over
states, press, and religion.
In fact, argued Alexander
Hamilton, adding a Bill
of Rights would actually
be dangerous
since it might imply
the existence of powers
when no actual power had been
granted in the document itself.
Well, despite the arguments
of Alexander Hamilton,
enough people remained concerned
about the lack of
a Bill of Rights.
James Madison and the
other Federalists promised
that they would add a list
of specific restrictions
on federal power as soon as
the Constitution was ratified,
and true to his word, Madison
in the first Congress drafted a
number of proposed amendments,
ten of which were
ratified by 1791.
This is the list of proposed
amendments that are on display
in the Rotunda of the Archives.
Again, the document
itself contains no title.
The title "Bill of
Rights" is actually etched
into the stone above
the document.
It's a title that the people
gave this list of amendments.
Why they did that and how
the people understand those
amendments requires
telling the story
of what has changed since 1791.
Now, as I mentioned
earlier, the first sentence
of the First Amendment declares
that it is the national Congress
that may not establish religion
or abridge freedom of speech.
The last sentence of the Bill of
Rights declares that the people
in the states retain powers
not delegated into the hands
of the national government.
In other words, from the
beginning to the end,
from the first word to the last,
the amendments address
themselves
to limiting the powers
of the national government
and not the states.
This, in fact, with the express
ruling of the Supreme Court
of the United States to Justice
John Marshall in his opinion
in Barron v. Baltimore.
The Bill of Rights have
their provisions directed
at the federal government.
They simply are not
applicable against the states.
In other words, the Bill
of Rights was a Bill
of Rights for the states.
It represented the founding
heirs' commitment to federalism.
This was an idea that
liberty is best preserved
by limiting the powers
of the central government
and preserving as
much power as possible
to the local governments, or in
our case, the state governments.
As I noted earlier, the
original Bill of Rights,
through this system
of federalism,
left state governments
free to decide whether
to continue the practice
of slavery, which had begun
under British colonial rule.
The northern states moved away
from slavery and began to ban
or pass abolition statutes
even before the adoption
of the federal Constitution.
The southern states
maintained the institution
of chattel slavery, and
this regional divide
over slavery ultimately
produced two different theories
of constitutional interpretation
and the proper understanding
of the Bill of Rights.
Constitutional theorists
in the South, for example,
developed the idea that the
entire Constitution must be read
in a manner that was
favorable to slavery.
This meant more than simply
allowing the southern states
to maintain the institution
of chattel slavery.
It also meant that
northern states must assist
in the enforcement of statutes
like the Fugitive Slave Acts.
Northern mails must be purged
of abolitionist literature.
The national Congress, including
northern representatives,
must refuse to hear petitions
from their constituents calling
for an end to slavery.
And finally, the northern
territories must be open
to the extension of slavery
outside of the southern states.
All of this was required by
the pro-slavery understanding
of the Constitution held
by many in the South.
The North, not surprisingly,
rejected this pro-slavery
reading of the Constitution.
Instead, northern theorists
increasingly viewed the
institution of slavery
as inconsistent
with the fundamental
guarantees of the Constitution.
Northern presses
were being attacked
by southern pro-slavery mobs,
northern mails were being
ransacked and destroyed,
and northern evangelists were
being prevented from preaching
in the South, and the enslaved
themselves were denied the right
to read the Bible or even the
right to learn how to read,
and northern black citizens
were in constant danger
of being accused of being a
runaway and carried into slavery
without any kind of
trial or due process.
To northern abolitionists, none
of this could be reconciled
with the fundamental rights of
American citizenship announced
in the Bill of Rights.
In particular, the
abridgement of liberty
by the southern slave states
implicated the fundamental
rights of all persons not to
be deprived of life, liberty,
or property without due
process of law as announced
in the Fifth Amendment
to the Bill of Rights.
In his treatise on the
unconstitutionality of slavery,
northern abolitionist Joel
Tiffany condemned slavery
for its denial of the privileges
or immunities of citizens
of the United States, privileges
that Tiffany insisted were
listed in the Bill of Rights.
In particular, slavery denied
black Americans their declared
right to due process
of law as announced
in the Fifth Amendment.
That amendment declared that
"No person could be deprived
of life, liberty, or property
without due process of law,"
and the enslaved were
most definitely persons.
But then again, perhaps not.
Not to those who held a
pro-slavery understanding
of the Constitution, anyway.
In Dred Scott, Chief
Justice Taney declared
that black Americans could
never be American citizens
and that they would not even
persons for the purposes
of the Fifth Amendment's
Due Process Clause.
According to Taney, the
Constitution was drafted
by those who believed
black persons had no rights
which the white man
was bound to respect.
Taney's opinion was the epitome
of pro-slavery constitutional
theory.
It was also balderdash.
At least, so declared northern
constitutional theorists
like Frederick Douglass.
Pointing at provisions like
the Due Process Clause,
Douglass insisted that
a proper understanding
of the Constitution pointed away
from slavery and
towards freedom.
The word "slave" was
not in the Constitution.
The word "person" was, however,
and enslaved Americans
were undeniably persons
who were being denied
their fundamental
constitutional rights.
Lincoln and the Republicans
shared this pro-freedom reading
of the Constitution, and
even if the Constitution
and Federalism allowed southern
states to maintain statehood,
that same constitution
obligated the federal government
to oppose slavery
wherever possible,
including in the territories.
When the Republicans won the
presidential election of 1860,
southern states chose to secede
from the Union and war came.
It would be in the
aftermath of that war
that the victorious Union
and the Republican Party
would transform the nature
of American freedom,
including the Bill of Rights.
This is an artist's drawing
of the moment the House
of Representatives ratified
the Thirteenth Amendment.
The passage of this amendment
represented the moment
that the country rejected
pro-slavery constitutionalism
and instead placed a pro-freedom
gloss on the entire text,
including the Bill of Rights.
Listen to James Wilson's words
in his speech introducing
the Thirteenth Amendment.
Wilson declared that the Bill of
Rights are enumerated privileges
or immunities of
American citizens
and that these privileges and
immunities include freedom
of religion, speech,
press, and assembly.
Wilson then declared,
after listing
and enumerating these rights,
"With these rights no
state may interfere."
With those words, Wilson
transforms the original Bill
of Rights, or better, he
reveals that the Bill of Rights,
at least in the eyes of
the people in the North,
has already been transformed.
Instead of protecting states,
the Bill of Rights
obligates the states.
No state may properly abridge
these privileges and immunities
of national citizenship.
The problem was, even
after the adoption
of the Thirteenth Amendment,
nothing in the text expressly
enshrined this new understanding
of the Bill of Rights, and the
Thirteenth Amendment itself
would not be enough.
The country would need a
Fourteenth Amendment as well.
Enter Ohio representative
John Bingham.
Bingham knew abolishing
slavery would not be enough.
The former slaveholding
states would simply go
on violating the
Bill of Rights just
as they had been
doing for decades.
There needed to be an
additional amendment,
one that would give
Congress power
to enforce these
rights which, he said,
were absolutely essential
to American nationality.
Unless the Bill of Rights could
be enforced against the states,
declared Bingham,
these provisions would remain
nothing more than a dead letter.
Imagine that, the Bill of Rights
would remain a dead letter
unless they could be
enforced against the states.
This is not the original
understanding
of the tenth amendments.
This is a transformed
understanding.
Bingham ultimately drafted
what became Section 1
of the Fourteenth Amendment.
That section declares,
among other things,
that no state shall
make or enforce any law
which shall abridge the
privileges or immunities
of citizens of the
United States.
And here Bingham echoes the
language of abolitionists
like Joel Tiffany, who
declared the Bill of Rights
to be among the Constitution's
guaranteed privileges
or immunities of citizenship.
When Jacob Howard
introduced Bingham's proposal
to the Senate, Howard
explained that the privileges
or immunities of American
citizenship included the rights
enumerated in the Constitution,
including those declared
in the first eight amendments.
John Bingham, of course,
is the best exponent
of his own handiwork,
and according to Bingham,
the privileges or immunities
of American citizenship,
which according to the
Fourteenth Amendment,
no state shall abridge, were
those listed in the Bill
of Rights, and just in case
anyone missed his point
in his 1871 speech to the
House of Representatives,
Bingham read the full text
of the eight amendments
on the floor of the
House of Representatives.
He read them word by word.
Now, compare the pre-Civil
War understanding of the Bill
of Rights with the
post-Civil War understanding
of the Bill of Rights.
In the beginning, we
have no less a person
than Chief Justice John
Marshall himself explaining
that the Bill is
simply not applicable
to the legislation
of the states.
Following the Civil War,
following reconstruction,
now we know that the privileges
or immunities of citizens
of the United States
are chiefly defined
in the first eight
amendments to the Constitution,
and we know that with these
rights no state may interfere
without breaching the bond
which holds the Union together.
Instead of a bill of federalism,
we now have a bill of freedom,
a bill officially transformed
by the people who framed
and adopted the Fourteenth
Amendment.
So back to the Archives.
This is how ten amendments
without a title became the
American Bill of Rights,
and this is why the title
"Bill of Rights" is carved
into the stone above
those amendments,
and this is why they're
transformed,
transformed in a way
that has led for us
to celebrate these freedoms,
freedom of speech and assembly
and freedom for decades
and why we continue
to celebrate these rights today.
So go celebrate.
If you have a chance, visit
the National Archives.
View the original copies
of the Constitution
and the Bill of Rights.
As you read the Bill, remember
the words of Justice Jackson
about the purpose of
the Bill of Rights.
Jackson was right, but only
because we the people also
added the Fourteenth Amendment.
But finally, also remember this.
If you go to the Archives and
you read these yellowed pages,
you will do so surrounded
by ghosts,
those who helped transform
a handful of amendments
into a Bill of Rights, the
Bill of Rights for the people.
They should be celebrated, too.
Thank you for having me, and I
look forward to our discussion.
>> Robert Brammer: Thank
you, Professor Lash.
Got some questions here.
Let's see.
If you have any questions,
please type them in the Q&A box
at the bottom of your screen.
Okay, our first question,
do you think
that the founding generation,
or at least the Framers
of the Constitution would view
the incorporation of the Bill
of Rights against the states
as a subversion of their design
of a federal system of
government with limited powers?
>> Professor Kurt Lash: No
doubt some of them would.
There were extreme states'
rights advocates at the time
of the American Constitution.
They were particularly
insistent on limiting the powers
of the federal government.
They were insistent on
adding the Bill of Rights,
a Bill of Rights that bound
the federal government,
and they had no intention
whatsoever
of binding the states, and
they probably would have viewed
that kind of proposal
as an abridgment
of what they thought was the
proper structure of federalism.
Interestingly enough,
one of the people
who would not have a problem
with the incorporation
of the Bill of Rights
is James Madison.
One of the amendments that James
Madison proposed would have
bound the states to protect
the equal rights of speech
and conscience and
equal protection.
It was kind of an early version
of the Fourteenth Amendment.
He actually got the House
to pass it and think
about submitting that binding
resolution on the states along
with the rest of
the Bill of Rights.
It was defeated by the Senate,
the Senate which, at that time,
of course, was appointed
by state legislators
and who were there to protect
the rights of the states.
So even though there would
have been some appalled
by the restrictions
on state government,
it wouldn't have
been James Madison.
He was looking in that direction
from the very beginning.
>> Robert Brammer: Thank you.
And also, second part
of this question,
and you might have
already answered this,
do you have an opinion
on how the anti-Federalists
might view incorporation?
>> Professor Kurt Lash:
Well, the anti-Federalists,
there are different kinds
of anti-Federalists.
There were radical states'
rights compact theorists
who really disliked the idea
of a centralized national
government, certainly one
with power to impose
taxes on individual people
and with the power to
raise and support armies
and regulate interstate
commerce, so sure,
there would have been those,
but there were other
anti-Federalists, actually,
who were quite moderate.
They simply wanted
some guarantees
that the federal government
would not be tyrannical,
and so they supported
the Constitution as long
as it had an additional
Bill of Rights,
and I think that those moderate
anti-Federalists potentially
would not have any
problem at all
with adding a Fourteenth
Amendment
that required the states
to protect these
individual rights as well.
Their idea in the beginning was
that state governments
could be trusted,
but maybe after the experience
of slavery and the attempt
by state governments to
entrench slavery to the point
of denying anyone's
freedom, black or white,
maybe some of those
anti-Federalists would have,
in their desire to
promote freedom,
would have had more expansive
views of extending the Bill
of Rights not just
to the federal government
but to the states.
So it would depend.
It would depend on which
anti-Federalists we're
talking about.
>> Robert Brammer: Thank you.
Let's see.
Got a question, did the
Emancipation Proclamation have
any role in laying
the groundwork
for the reconstruction
amendments?
>> Professor Kurt Lash:
Yes, although, I mean,
and here there are
so many people
who have written
extraordinary work on the role
of the Emancipation Proclamation
and how it helped solidify
in the conscience of the North
that something greater
was happening
than simply bringing
back these rebels
into constitutional
state governments
and preventing the
destruction of the Union.
When Lincoln issued the
Emancipation Proclamation,
he committed the North to
freedom, and he turned freedom
into one of the purposes
for the war
and gave it a moral dimension
that it might not have
had prior to that time.
It did more than that.
The Emancipation Proclamation
also allowed the military
to recruit black Americans
and give them the musket
and allow them to serve
in protecting the Union,
and that had an enormous
impact on the understanding
of the people of the North,
that these were common citizens
who are commonly giving the
last measure of their devotion
to protecting the United States.
How could you deny these
people their freedom
after the Civil War,
because remember,
the Emancipation Proclamation
might not have continued to be
in operation after
the end of the war,
so how can you deny them an
amendment establishing the
freedom of black Americans,
but even more than that,
they had carried the musket,
and to carry the musket
is to be a citizen.
And one of the things that
the Fourteenth Amendment does
in its opening sentence is
declare that all persons,
no color there, all
persons born or naturalized
in the United States are
citizens of the United States,
and it's the Emancipation
Proclamation and it's opening
up the Union to the idea of
freedom and also the idea
that these were common citizens
involved in saving the Union
that created the momentum that
was going to get Section 1
of the Fourteenth Amendment and
bring the rights of citizenship
to all people including
black Americans.
So yes, a big impact.
>> Robert Brammer: Okay.
Next, do you think that
the use by Justice Alito
in McDonald v. Chicago of
both the Palko v. Connecticut
implicit in the concept
of ordered liberty
in the Snyder v. Massachusetts
traditions and the consciences
of the American people
rules taken together as done
by Chief Justice
William Rehnquist
in Washington v. Glucksberg
to determine whether
to incorporate the Second
Amendment as understood
by Justice Scalia in the
Heller case has changed the
traditionally understood
Palko rule for incorporation?
Should the Court have instead
used Justice Thomas's privileges
or immunities approach for
applying the Bill of Rights
to the States despite the hurdle
of getting past the
Slaughter-House cases?
>> Professor Kurt Lash: That
is a wonderful question.
It requires an extended answer
because it takes us
beyond the history
that I presented in
this presentation.
What I proposed in the
presentation that I just --
I put forward was
that the original Bill
of Rights was a Federalism-based
collection of amendments,
that we the people of the
United States saw, over time,
those declarations in the first
ten amendments not as statements
of federalism but as
statements of freedom,
and once they were understood
as statements of freedom,
then it became a moral
imperative that they be applied
against any state official, any
government official, federal
or state, and I quoted you
the ideas of the people
who actually drafted the
Fourteenth Amendment as carrying
that idea, including --
especially John Bingham,
the drafter of the Privileges
or Immunities Clause,
and I proposed that Bingham
would have viewed the Privileges
or Immunities Clause
as applying --
as requiring states
to respect provisions
in the Bill of Rights.
Jacob Howard as well.
The most famous speech
in Congress regarding the
proposed Fourteenth Amendment
was Jacob Howard's, and
Jacob Howard was on record
in newspapers published
across the country
that this is what the Privileges
or Immunities Clause
was going to do.
It was going to make the states
respect the Bill of Rights.
And then I ended my story,
saying that it had happened,
and over time, we have come
to expect a Supreme Court
to protect those rights
in exactly the way
Bingham had hoped,
that he would apply those rights
against state governments.
What I didn't say, and
that many of you know,
is that when the Court
decided to require states
to enforce the Bill of Rights,
the Court did not do so by way
of the Privileges or
Immunities Clause.
The Court chose instead
a different sentence
in the Fourteenth Amendment, the
Due Process Clause which says,
"Neither" -- "Nor shall any
state deny any person life,
liberty, or property
without due process of law."
The Court, towards
the end of the 1900s
and into the 20th century,
interpreted the Due Process
Clause as containing a substance
of liberty that could
not be properly denied
without especially
strong justification.
We have -- and the Court,
for example, said liberty
of contract, for a while,
was one of those liberties
that could not be abridged
without especially
strong justification.
The Court also embraced
other rights.
Freedom of speech it viewed as a
substantive due process liberty,
and eventually freedom
of religion.
And so around the early
decades of the 20th century,
you began to see
Bingham's dream slowly
but surely being realized, but
not by way of the Privileges
or Immunities Clause
but instead by way
of the Due Process Clause.
And early cases like Palko,
and we don't, you know, again,
some of you will know those,
some of you are Googling
those even as we as we speak,
some of you are learning
about those in law school.
It's all right.
Palko is simply one of those
cases where the Court relied
on the Due Process
Clause and this idea
of substantive due process as a
means for authorizing the Court
to identify really
important rights,
and once it identified a
really important right,
it would make states enforce
that really important right,
and it used formulations from
different cases, like Palko,
that tried to create a test
for understanding what a
fundamental right might be.
Since, say, the late
20th century,
a number of historians
have begun to look back
at the history of the
Fourteenth Amendment.
Re-read the speeches of John
Bingham and Jacob Howard.
Revisit the idea of the
northern abolitionists,
including constitutional
abolitionists
like Frederick Douglass and Joel
Tiffany and Lysander Spooner,
Samuel Chase, and a
whole variety of them,
and they've created a large
body of evidence suggesting
that the Court should
go back and instead
of incorporating the
Bill of Rights by way
of the Due Process Clause,
it should instead rely
on the Privileges or Immunities
Clause as was intended
from the very beginning.
Justice Thomas on the Supreme
Court and Justice Alito
on the Supreme Court
have both suggested
that the Court should
stop pretending
that it's the Due Process
Clause that makes the Bill
of Rights binding against
the states, but instead,
the Court should track
the original understanding
of the text as the people
themselves wanted the text
to be applied and go back to the
Privileges or Immunities Clause.
The Court was encouraged
to do so a few years ago
when it was trying to
decide whether or not
to make the Second
Amendment right
to bear arms applicable
against the states.
There's a lot of
questions regarding whether
or not the Court was
finally, after two centuries,
going to incorporate the Second
Amendment against the states,
but as part of the argument
and part of the briefs
that were given to the
Court to help them come
to a correct decision, a number
of scholars and lawyers argued
that this was the right time.
Cases like Heller, and in
cases like both the D.C. case
and the Chicago case, that this
was an opportunity for the Court
to finally get it
right and to go back
to the Privileges or
Immunities Clause.
Justice Scalia, during
the oral argument,
unfortunately breaking the heart
of constitutionalist historians
like myself and others,
dismissed the idea
of the Court changing course
at this late date and trying
to develop a new jurisprudence
of privileges or immunities,
and instead, he was happy to
stick with the old Palko test
and the old -- and
there's another test,
the Glucksberg test, that these
rights are those deeply rooted
in American history
and tradition.
They're different
formulations, but they're all
under the Due Process Clause.
And he joined a majority
in making the Second Amendment
binding upon the states
but continuing to do so by
way of the Due Process Clause.
Now, you may think,
so what, right,
as long as you're
getting to the same place?
Well, for one thing, I think
that kind of dismisses the role
of the people in establishing
their fundamental law
and in their role in
establishing the restrictions
on the government and their
determination of what words
and what texts are going
to establish those particular
constraints on government.
And by moving to the Due Process
Clause, because it's an approach
that is not linked to
the text nor to history,
there really are no
guideposts whatsoever
in controlling what
the Court recognizes
as a fundamental Palko right and
what isn't, and for those of us
who believe in separation
of powers
and popular sovereignty,
that's a problem.
So yes, put me down with those
who actually think it'd
be a good idea to go back
to the Privileges or
Immunities Clause.
>> Robert Brammer: Right, and
last one here we've got from one
of your students says,
"Greetings from our law
school class, Professor Lash.
My question is, why do you
think the Third Amendment,
quartering troops, has
never been an issue
at either the federal
level or at the state level
with respect to incorporation?"
>> Professor Kurt Lash: The
third -- it's a great question,
and I'm very glad that my
students are attending this.
The Third Amendment
is what protects you
from the government,
quartering troops in your home,
and it's simply -- like many
constitutional scholars,
I believe -- and probably
most members of the Court,
I believe that the Court
would incorporate that right
if ever the government tried to
force people to house soldiers
in their homes except in
times of war, but thankfully,
it simply hasn't --
it hasn't happened.
That specific factual
circumstance hasn't come before
the Court.
It got very close maybe a
decade or so ago when someone
in a state tried
to make the claim
that when the police insisted
on using her home as a place
to conduct surveillance for
potential criminal activity
across the way, this is at
least how I understand the facts
of this particular circumstance,
the homeowner argued
that that was forcing them to
quarter troops in violation
of the Third Amendment.
I think it actually got a
hearing in the lower court
but was dismissed and never
made it up to the Supreme Court.
So the answer to my student
is this, we're waiting
for the right fact pattern.
Don't give up.
You never know what the
government's going to do.
And so I think, unfortunately,
they may have
to address this issue
sometime in the future.
>> Robert Brammer:
Oh, let's see,
we've got one more,
if you don't mind.
Justice Thomas has
said he disagrees
with the Supreme Court's
approach to incorporation
of the Establishment Clause.
Is there historical evidence
about what the adoption
of the Fourteenth Amendment
was meant to do with regard
to the Establishment Clause
or the religion clauses
or the First Amendment,
more generally?
>> Professor Kurt Lash: It's a
fascinating question that has
to do with the first
two sentences,
and really the first sentence of
the first of the First Amendment
and whether or not it can
even logically be applied
against the states by way of
the doctrine of incorporation.
So here's the problem.
The first sentence of the First
Amendment declares that no --
excuse me, Congress shall
make no law respecting an
establishment of religion,
and again, as I pointed
out in my presentation,
that targets Congress
and tells Congress that it
cannot establish a religion
or religious faith.
But notice the unusual
wording of the clause.
It doesn't say "Congress
may not establish religion."
It says that "Congress shall
make no law respecting an
establishment of religion."
And that unusual
wording, for some people,
suggested not only
was it a prohibition
on Congress establishing
religion,
it was also a prohibition
on Congress interfering
with state establishments
of religion,
and this would make
sense in terms
of the time of the founding.
Remember, the idea of
federalism in the beginning was
that liberty was best
preserved by keeping control
of certain subjects close to
home, in particular, speech,
religion, press, assembly,
all of these things listed
in the Bill of Rights, but those
opening sentences were also a
declaration that when it comes
to religion and the regulation
of religion, this is something
they did not want the federal
government involved with.
It's a matter that should be
left to the individual states,
and the individual states
actually had very different
perspectives on whether
or not religious
establishments were a good thing
or a bad thing.
You had states like
Massachusetts
who had an established religion,
who taxed their citizens
for the support of a local
church whether those local
citizens wanted to be taxed or
not, but you also had states
like Virginia which had followed
the advice of Thomas Jefferson
and James Madison and had
disestablished the church
in the state of Virginia
and instead had adopted
Jefferson's bill
for the establishment
of religious freedom
which prohibited the state from
ever establishing religion.
So the original Establishment
Clause not only prohibited a
national establishment, it also
affirmatively protected the
rights of the states
to establish religion
if they wished to do so.
So now fast forward to the time
of the Fourteenth Amendment
and this idea that
perhaps the Privileges
or Immunities Clause
makes the Bill
of Rights applicable
against the states.
Well, for some provisions
in the Bill of Rights,
that seems to be an
easy thing to do.
You know, the states can't
do unreasonable searches
and seizures -- the federal
government can't do unreasonable
searches and seizures,
and states, therefore,
can't do unreasonable
searches and seizures.
Freedom of speech
can't be abridged
by the federal government,
freedom of speech can't
be abridged by the states,
but how do you apply
the sentence "No" --
"Congress shall make
no law interfering
with state establishments
against the states"?
And that potentially is
the way you're supposed
to understand the
Establishment Clause.
You can't incorporate
that kind of provision
against the states any
more than it seems logical
to apply the Tenth
Amendment against the states.
The Tenth Amendment says
certain powers are reserved
to the states.
How are you going to apply
that against the states?
It seems illogical.
And so a number of scholars,
very high-profile scholars
at Yale and other institutions
of learning have argued
that of all the provisions in
the Bill of Rights to be applied
against the states by way
of the Fourteenth Amendment,
some simply cannot and
should not be incorporated
against the states, and that
would include both the Tenth
Amendment and also the
Establishment Clause.
Justice Thomas on
the Supreme Court
for many years has made
exactly this argument.
He agrees with the general
theory of incorporation.
He agrees that incorporation
should be by way
of the Privileges or Immunities
Clause, but he does not believe
that the Court properly
incorporated the Establishment
Clause against the states.
He believes that states
should respect the rights
of the free exercise
of religion,
so you can't coerce someone
to adopt a particular belief
and not adopt a different
belief, but that he believes
that general endorsement
of religion,
a state establishing the Ten
Commandments as a model form
of moral relationships
between individuals
and calling upon the people to
acknowledge that we are a nation
under God, you know, some type
of religious sentiment
along those lines.
Justice Thomas believes that
that should be perfectly fine,
that the Establishment Clause
doesn't bind the states.
The states simply have to
respect the free exercise
of religion as it goes
about still endorsing
religious belief.
So he kind of would take the
approach that I guess you'd look
to England where
you have the head
of state who's not only
the head of government,
the Queen as a secular
ruler, but also is the head
of the Church, the head
of the Church of England.
England still respects
religious diversity and provides
for the free exercise of
religion, but it also adopts
or endorses the Anglican Church.
So that's Thomas's theory,
and it's the language,
the peculiar language of
the Establishment Clause
that leads them to take
that particular position.
I disagree.
I understand the argument.
I understand that textually
it probably is true,
that the original
Establishment Clause was meant
to protect state
establishments as it was meant
to forbid federal or
national establishments.
But I've studied the history
of the regulation of religion
under slavery and I've
studied the statements
of the abolitionists and their
concerns about the abridgement
of the free exercise of religion
and also the establishment
of pro-slavery religion.
The South wasn't just denying
preachers the right to travel
around the South without
getting a special imprimatur,
an agreement that, yeah,
you can preach as long
as you preach carefully.
The southern states controlled
the content of preaching.
They controlled which passages
of the Bible you
would be allowed --
you'd be allowed to share,
and one of the passages
that you would not be allowed
to share would be the passages
in Exodus and the Hebrew
slaves being freed by God
from tyranny under Pharaoh.
So it wasn't just a restriction
on what kind of exercise
of religion was going to
be allowed in the South.
It was actually an
imposition of a particular form
of Christianity, a
pro-slavery form of Christianity
that was established in
the South under slavery,
and there are numerous examples
of Republicans and abolitionists
and members of the 38th and 39th
Congress pointing to exactly
that type of control of religion
that was no longer going
to be allowed after the
adoption of the Thirteenth
and Fourteenth Amendments.
And then when you add upon
that people like John Bingham,
who actually quoted the
Establishment Clause as one
of the privileges or
immunities that now was going
to be enforceable
against the states by way
of the Fourteenth
Amendment, I'm convinced
that Bingham wasn't
alone, that this idea
that governments should not
establish religion was a lesson
that they had learned through
the experience of the struggle
against slavery and that
the Establishment Clause is
as much an appropriate
clause for incorporating
against the states as
is any other provision
in the Bill of Rights.
And just as soon as
Justice Thomas invites me
to his chambers, I'd be
happy to discuss it with him.
>> Robert Brammer: Thank
you, Professor Lash,
so much for a fascinating
lecture, and with that,
I would like to turn it
over to Jeanne Dennis,
the Deputy Assistant Director
of the American Law Division
of the Congressional
Research Service.
>> Jeanne Dennis: Oh,
thank you for including me
in this program today.
I'd like to thank
the Law Library
for sponsoring this
Constitution Day program.
I want to thank Kurt for
his terrific presentation.
That was very informative
and a great way
to celebrate the Constitution.
Finally, to wrap up the day's
events, I would like to share
with you the Library's online
Constitution Annotated,
constitution.congress.gov,
which is celebrating its
second anniversary today.
For those of you not familiar
with the Constitution Annotated,
this Senate document has served
as Congress's official record
of the Constitution
for over 100 years.
It provides Congress and
the public an explanation
of every provision
of the Constitution
and how the Supreme
Court's interpretations
of those provisions
have evolved.
The online Constitution
Annotated is the latest
iteration of a project
that Congress began in 1795
when it enacted legislation
to provide its members
with personal copies
of the Constitution
to facilitate the
legislative process.
By the 1830s, these copies were
being indexed, enabling members
to find relevant
provisions more easily.
By the 1870s, the
copies included lists
of Supreme Court decisions
interpreting each provision.
By the turn of the century,
the length of these lists
reduced their usefulness.
In response, Congress passed
legislation to provide
for each constitutional
provision to be annotated
with explanations of relevant
Supreme Court decisions.
During the next 100 years,
the Annotated Constitution
grew to some 3,000 pages.
Consequently, following
the celebration
of the Constitution
Annotated centennial in 2014,
the Library ushered the
Constitution Annotated
into the 21st century by
creating an online platform
for this resource,
which is what I'm here
to share with you today.
Since its launch two years ago,
the online Constitution
Annotated has had millions
of visits, educating
people across the nation
and around the world
on the Constitution.
The Constitution Annotated
is written in plain English
by attorneys in CRS's American
Law Division and conforms
to CRS's standards, objective,
authoritative, timely,
and nonpartisan analysis,
which informs all CRS
advice to Congress.
Featuring advanced search tools
and a user-friendly interface,
the online Constitution
Annotated is fully searchable
and accessible.
The online Constitution
Annotated is continually updated
and provides an analysis
of the Supreme Court's evolving
constitutional jurisprudence,
assisting Congress
and the public
in understanding
America's legal foundation.
It also features discussions
of emerging constitutional
law issues,
Library of Congress resources
for researching the
Constitution,
and supplemental
resources such as tables
of Supreme Court justices,
Supreme Court decisions
overruled
by subsequent decisions,
and laws the Supreme Court
has held unconstitutional
in whole or in part.
Please celebrate
Constitution Day
by sharing the online
Constitution Annotated
and exploring it with your
friends and colleagues.
Thank you for joining us today
to celebrate the Constitution.
>> Robert Brammer:
Thank you, Jeanne.
Thank you, Professor Lash.
And I want to thank all
of you for coming together
with us today to
celebrate Constitution Day.
We hope you'll join us
for future webinars.
Visit our site at law.gov.