Examining Lesser Known, Seldom Used Amendments
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Examining Lesser Known, Seldom Used Amendments


♪♪Music♪♪ Some Constitutional clauses
dominate the American polity, indeed the recent
decision concerning Obamacare, the affordable patient
protection affordable care act featured non-stop soliloquies on
the Commerce clause, the taxing powers and the general power of
the national government versus the power of states. Similarly the 2nd amendment in
recent years has reared its head again and of course continuing
discussion gender, racial, sexual equality might lead us to
believe that there are only a few important clauses in the
Constitution or a few operative clauses in the Constitution. But we don’t have to look very
closely at the document to see that there are a few other kinds
of clauses, there are some clauses that are underused. In other words they’re clauses
that might have been used once or twice in the history of the
Constitution, there are some that have fallen into dissuade
etude, in other words were important clauses and were
litigated in very prominent cases but have never been
litigated since. And there are also clauses,
which have never been litigated or used at all, and I’m going to
talk about an example of each of those categories. One of them is the Republican
guarantee clause, another is the privileges and immunities clause
of the 14th amendment and the other is the 3rd amendment to
the Constitution, which is one of the Bill of Rights. So let’s start with the
Republican guarantee clause of article 4 section 4, which
states quote “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. There really is no agreed upon,
there’s really no evidence that would say with, for, with
certainty what definition of Republican government the
Founders had in mind with this clause. Nevertheless the Constitution
says that the national government will guarantee to
every state in the union a Republican form of government. The very least which we can say
about this clause is that the term Republican means at the
very least something different than monarchy so in a sense the
national government will guarantee that every state will
not be a monarchy. Well that’s not enough some
would say and there have been a few times in American history
where this clause has been used. I want to give some examples of
this. Certainly if there was an
insurrection or a riot the national government would be
bound according to this clause to come in and protect the state
from an invasion whether it be foreign or domestic but it also
says that it guarantees to every state a Republican form of
government in the state. So it’s, so it’s function, each
state has to have a functioning in a sense Republican form of
government. What does that mean? Well we’ve only had a few
examples of this where a few times in American history when
this has come about. The first time was in the
1840’s, a case out of Rhode Island. Rhode Island had in a sense two
competing sets of state legislators. They went to the polls and they
voted in one set of legislators for their state government but
there was a significant amount of people who were disinfected
with the outcome of that election and held their own
election and elected their own set of legislators. Well they both show up at the
state house, who’s going to take, who’s going to take the
office? Well this case makes it to the
Supreme Court and it makes it to the Supreme Court and the
question is well is this the Republican form of government
that’s here. Maybe the national government
should chime in and tell us what it means but the court punts, it
says pick a question, not a judicial question, so the first
time that the court weighs in with respect to giving meaning
to this clause guarantee to every state or Republican form
of government seems to suggest that it wants Congress to decide
wants elected representatives to decide what the word Republican
means and therefore what a Republican form of government
is. Well this clause is never used
again for another 25, 26 years because it does rear its head
again during reconstruction, those years immediately after
the Civil War, which were designed to bring Southern
states that had succeeded back into the Union. And this makes a lot of sense
for the clause as a whole, certainly there were
insurrections in states and that would be one way to justify
federal intervention but also the structure of a Republican
government, what does that mean? Well it probably wouldn’t be if
we think about it, it probably would not mean a state which
specifically allowed slavery or a state which explicably
trampled on the rights of a huge part of their population,
meaning free slaves, freemen. So there were many in the
Congresses immediately after the Civil War that argue that the
Northern occupation of Southern states and during that
occupation, mandatory voting by bayonet. They would allow African
Americans, freedmen to vote and by bayonet Northern soldiers
would be down there. Some said that was
unconstitutional, others though said no. This is guaranteeing to each
state a Republican form of government. Well the clause is never used
again for another hundred years during the period, which we call
Americas second reconstruction, which were basically the voting,
the voting rights revolution and importunate revolution and equal
protection revolution concerning race during the 1950’s and 60’s. The Republican form of
government are the guarantee that the national government
maintain or guarantee to every state a Republican form of
government was used by some to justify the sweeping kinds of
federal changes, federally mandated changes particularly in
Southern states concerning the ways that they had been
conducting their elections since late 1880’s in the United
States. Basically to get rid of what we
and you know as the period of Jim Crow in the United States. You know the kind of social
often times legally, legally, social and legally mandated
segregation in racism against African Americans. So again the idea would be if
you had that on the books as a particular form of law which
many states did, that you cannot have blacks and whites going to
school together or that blacks cannot vote but they don’t say
that. They would say we have to ask
you how many bubbles are in a bar of soap before we will allow
you to register to vote and they would let whites answer whatever
number they want and say African Americans had the wrong answer,
that kind of thing going on in your state, whatever it is it’s
not a Republican form of government. But since the 1960’s we haven’t
seen anybody use that clause to make the argument that any
states functioning violates whatever we might imagine to be
a Republican form of government. The next clause which has really
fell into dissuade etude. In other words was, was used
once but then it’s really gone away is the privileges and
immunities clause of the 14th amendment. The 14th amendment was passed
after reconstruction and it was part of the reconstruction
amendments. The 13th amendment outlawed
slavery, 14th amendment which I’ll talk about in a second and
then the 15th amendment which prohibited states from
discriminating against people in voting based on the color of
their skin did not give African Americans the right to vote. It just said you can’t
discriminate people, against people, in voting based on the
color of their skin. And of course there was the 14th
amendment, which did many things but its most novel part, were
new regulations on what states could not do t their citizens. Could not deny you due process
of law, could not deny you the equal protection of the law and
t could not abridge your privileges and immunities. What are our privileges and
immunities? Well I have no idea. I think I have an idea and I
would like to imagine that there are millions and millions of
rights I have, millions and millions of privileges and
millions of millions of immunities. You might disagree with me, you
might think we only have one, you might think we have three
million of each, it just simply doesn’t tell us what our
privileges and immunities are and when we look back for help
to the federal courts we get even less of an answer, we get a
little bit of an answer. The first time that the
privileges and immunities clause, by the way the term
privileges and immunities is used in the unamended
Constitution as well so maybe we could see what the court said
about that. There was a case called Corfield
vs. Coryell in 1823 which involved
Pennsylvanians and New Jersyans arguing over oysters and the
question was asked whether oyster farming is the privilege
or immunity of citizenship however the court decided that
is not important for our purposes what is important is
what they said privileges and immunities were and the Justice
in the circuit court opinion said look there’s to many of
them to list, I’ll just tell you what the categories of thing,
I’ll give you categories under which at some point we’ll decide
what our privileges and immunities are. One of the categories is
protection by the government, that’s not very helpful is it? The enjoyment of life and
liberty with the right to acquire and possess property and
to pursue happiness and safety, subject nevertheless to the
restraints the government may justly prescribe for the good of
the whole. That’s not very helpful is it? So the 14th amendment, one of
the most important amendments ever says that states cannot
deny you your privileges and immunities but we still don’t
know what they are. Well not soon after the 14th
amendment was passed, the Supreme Court for the first time
had the opportunity to tell us what privileges and immunities
were and what they looked like in a case called, combined set
of cases called the Slaughterhouse cases. Well when asked what in a sense
of privileges and immunities are under the 14th amendment
the court made reference to Corfield vs. Coryell in that quote that I
just read and then simply said nothing else about the
privileges and immunities clause and instead relyed on the due
process clause of the 14th amendment to resolve the
particulars of that case. Well since then the privileges
and immunities clause as many scholars have characterized it
has been strangled in its crib because it, that was the first
and since then for the most part the very last time that anyone
has made an argument that something that’s being done to
them by their state violated their privileges and immunities
of citizenship. The last time that that argument
has been made and seriously considered by the Supreme Court. There are also certain clauses
that have never been implicated in any meaningful way in
American Constitutional history litigation or law. The 3rd amendment is one of
those examples. The 3rd amendment is part of the
Bill of Rights says quote “no soldier shall now in time of
peace be quartered in any house without the consent of the owner
nor in time of war when in a manner to be prescribed by law”. This is a very straightforward
clause. We’re not allowed to, the
government is not allowed to quarter or to force troops to
live with you except during a time of war and then only in a
way prescribed by law. Certainly there was an American
experience with the quartering of soldiers and it’s easy to
explain where this, where this, where the 3rd amendment came
from, what the concerns were. British soldiers had been
quartered in American homes, there was also a larger
historical memory of the educated class among the
founders of quartering of soldiers and homes in Europe
which were one of the ways that the wars of religion of the 17th
and early 18th century were fought, not only to execute the
war but to convert those. They would leave soldiers in the
house, particularly in Huguenot protestant homes in France till
they converted to Catholicism so it’s kind of straight forward to
understand what the framers concerns were and why they were
so concerned with saying that this was a right. In other words that this was
something we were protected against but it’s also and it’s
never, it’s never, it’s never reached the Supreme Court. There was a case in the 1970’s
involving prison guards in Pennsylvania who had temporary
housing but it was really has never thankfully really been an
issue in the United States, so it’s really never been used. But when you look at it though
it does allow the quartering of soldiers in our homes, it has to
be during war and in a manner prescribed by law so, but that’s
just, not that the framers thought that quartering of
soldiers was good, they thought, what it suggests they thought it
was necessary but had to have the legitimacy that’s backed up
by law. In other words we would have to
agree what that would look like if we had in the future to
quarter soldiers in our home, we would have to agree what that
would look like, the prosthesis which that would happen. So whether it’s the Republican
guarantee clause, the 3rd amendment, the privileges and
immunities clause, clauses which have only been used a few times,
clauses which have been used once and then gone away or
clauses which have been never, which never have been used that
doesn’t mean that they’re unimportant because what we
still see in them are the principals the permeate our
Constitution and that’s the recognition that, that the
government is founded upon, popular sovereignty as we saw on
the 3rd amendment for example, if we’re going to have this it
has to be done in a manner prescribed by law and the law
comes from the people and there has to be limited government. These two ideas of popular
sovereignty and limited government permeate the
Constitution so and we can see them and what I, what I don’t
want us to do is think these are unimportant clauses because they
were used once and never used again or never used at all
because we can see in them the foundations of American
Constitutionalism, popular sovereignty and limited
government. Thank you. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit freedom.ou.edu. (Music)

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