Monday, November 23, 2015

A Tub To A Whale

Gerard N. Magliocca

Congressman Aedanus Burke is not a household name, but during the First Congress he contributed something distinctive to legal discourse by criticizing Madison's proposal for what became the Bill of Rights as "a tub to a whale." What Burke meant was that the amendments were meaningless, just like the wooden tub that a crew would throw into the water as a decoy to direct whales away from a ship.

While Burke turned out to be wrong about importance of the first set of amendments, I have been reflecting lately (as part of my next book) on how the constitutional construction of the Bill of Rights acts as a distortion or a distraction comparable to a tub to a whale. The Constitution does not say that the first set of amendments are a bill of rights. Furthermore, that term was not commonly applied to those amendments until long after the Founding, and even then there was disagreement about if the first eight, the first nine, or the first ten were the Bill of Rights.

Now an obvious question here is, "Well, what's the harm of calling some part of the first set of amendments the Bill of Rights?" One possible answer is that the exclusion of the Reconstruction Amendments from that category places too much emphasis on the Founding and not enough on what happened after. The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to, say, 1950 thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible.  Nothing prevents that sort of redefinition now, of course, but constitutional inertia can be powerful.  FDR tried to get around this problem by pitching the idea of  a "Second Bill of Rights" that protected economic equality, but that slogan never caught on.

I'm going to do another post shortly about how Bolling v. Sharpe fits into this story, but that may have to wait until after turkeys have been consumed.


While Burke turned out to be wrong about importance of the first set of amendments

In fairness to Burke's powers of prediction, it took 100 years and the 14th A for him to be proved wrong.

Could Gerard's closing words:

" ... but that may have to wait until after turkeys have been consumed."

(not so) subtly be referring to the Republican candidates for President as they try to impose limitations on the 1st A religion clauses?

The first ten amendments were seen at the time by various people as a listing ('bill') of rights even if the term itself wasn't used. Looking into to it by the inferior means I have by general Internet searches, I also found Thomas Jefferson calling it a "bill of rights" and more than one discussion of "bills of rights" at the time that as a term would logically apply to the first ten amendments.

It is interesting that as a general usage that the term did not occur for some time though by the time of the Civil War they were not seen as merely a "tub" in front of a whale, the 10A stating a general principle and the first eight at least being rights (or privileges and immunities) of citizens. Some state courts also treated the provisions of the BOR as informative of determining basic rights.

The BOR are not the only place to find core rights putting aside the general warning of the 9th Amendment. But, what the 14A add as such other than (not to belittle it!) the Equal Protection Clause is a question to ask. The BOR provides an important listing of "liberty" and "privileges or immunities." And, many people basically consider the 14A as part of the BOR these days, just as shorthand is used for state action regarding speech as being a "1st Amendment" concern.

And, the Equal Protection Clause arguably not a novel matter -- from 1776, there was some "self-evident" acceptance of a basic equal protection principle. Accepting due care is approach, "Bill of Rights" seems an appropriate term for a long list, or bill, of rights, especially if later amendments as applicable are seen as amendments to the existing list.



"The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to, say, 1950 thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible."

might be sharper if phrased as follows:

"The focus on the Bill of Rights during the early twentieth century occurred while Jim Crow was firmly entrenched, and thus prior to THE WARREN COURT thinking of the Fourteenth Amendment as part of the Bill of Rights was impossible."

Let's give credit where credit is due. And it should be pointed out that both originalism and the Federalist Society were spawned primarily out of enmity for the Warren Court, the foundational decision of that Court being Brown v. Bd. of Educ. (1954).

I think is probably better to say that the contemporary originalism movement as such arose in response to the Warren Court. The concepts promoted were present earlier, including by those defending school segregation in front of the Supreme Court. There the advocates appealed to original understanding and practice in some fashion.

See, e.g. --

I have read GM's first three books, each worthwhile, as this one likely will be. Even if my comments here and at Concurring Opinions have been somewhat questioning.

Bolling v. Sharpe was a sort of companion decision that followed Brown. The latter was governed by the 14th A which was not applicable to the former. (Both decisions came down on the same day in the Spring of 1954.) Views of originalists on both decisions are quite interesting, as discussed recently at various legal blogs. Maybe Prof. Primus has some thoughts on originalism's twists and turns to conform these decisions to theories of some version of originalism with questionable history.

Regardless of what we originally called our first ten amendments, they borrowed heavily from the British Bill of Rights of 1689 and were meant to be a bill of rights. The fact that the first ten amendments were incomplete does not argue that they were not a bill of rights.

By what standard, legally or politically, can it it stated as a fact that " ,,, the first ten amendments were incomplete ... " in 1791? To what extent were they incomplete back then? Will they be complete when we achieve an actually perfect Union, whenever that might be? Or does it take a Civil War with 600,000 deaths to make them more perfect, but not quite perfect because of Jim Crow? Call the first 10 what you will, it's not the title by which they were enacted. And it is important to note that these Amendments limited the Central Government, not the states. While this latter aspect might suggest incompleteness to some, the slave states did not want such limitations on their states And the 5th A provided more of a benefit to the slave states on slavery that did the 1787 Constitutions. Perhaps a focus should be more on the many that did not have the benefit of the first 10 and had to await the Reconstruction As (if they survived 7 decades), and still not all were covered by the Reconstruction As until the passage of 5 more decades. Here's an oldie:

"Call me anything, but don't call me late for dinner."

Call the first 10 whatever you wish, so long as they call for the rights of all.

FDR came out with his Second Bill of Rights in January of 1944. He won reelection that Fall to a 4th term when America was still at war. He died in April of 1945, before getting a chance to push for his Second Bill of Rights. Perhaps it never caught on because he had been ill while running a war and died before he could push his proposal. I am aware that some out there are grateful for this. But his Second Bill of Rights makes a good read. Some of the ideas have come to fruition.

By the Bybee [expletives deleted], it should be noted that the British Bill's provision on arms in substance: "subjects who are Protestants may bear arms for their defence as permitted by law" (per Wikipedia) differs a tad from the 2nd A with its prefatory clause militia reference and seems to adopt Justice Scalia's new version but with more "juice" for Scalia's dicta on limitations. Perhaps some of the current Republican presidential candidates might like the British version with Judeo Chistrian" substituted for "Protestant."

Bart, I don't see the argument as the first ten amendments shouldn't be thought of as a bill of rights at all, just that in creating that title for those particular ten it seems to leave out important later adopted rights from the list.

Shag By what standard, legally or politically, can it it stated as a fact that " ,,, the first ten amendments were incomplete ... " in 1791?

No Bill of Rights which allows slavery can be said to be complete.

Our own MRO (Macro 'Rhoidless One) is so profound with his:

"No Bill of Rights which allows slavery can be said to be complete."

But it was the underlying 1787 Constitution of the exalted Founders, Framer and Ratifiers that gave slavery its foundational support a couple of years before the first 10 As, however the latter may be termed. So perhaps our own MRO actually means that the Constitution itself was incomplete because slavery persisted for 7 decades before the Reconstruction As. But then again Jim Crow was immediately off and running on the ground despite the Reconstruction As, so that the Constitution as amended was not yet complete for a significant group of the American population. And it took another 8 decades to curtail to a limited extent Jim Crow. So, a question for our own MRO: While slavery is bad, was Jim Crow good? The taint of Jim Crow exists today. So the bottom line seems to be a tacit admission that the Constitution as amended to date is not complete in actually giving rights to all. [Note: Readers, in your own minds consider the plight of Native Americans under the Constitution as amended, a group that were not immigrants. Shame, shame, shame as to their rights.]

So, if we are in accord, knowingly, that the Constitution as amended is incomplete with respect to rights of all, then aren't there concerns with interpreting/construing such a document based on so-called original public meaning theories, keeping in mind that the Founders, Framers, Ratifiers and their successors have failed to provide a completed document? So we have to continue to make progress [the root of "Progressives"] towards a more perfect Union. This should be the focus rather than spending time on a name for the first 10 As and/or augmenting them with a couple, few subsequent As.


Stop misrepresenting my position. You know I oppose all forms of government racial discrimination.

The same cannot be said of progressives, who have championed government racial discrimination from the beginning and still do.

Our own MRO (Macro 'Rhoidless One) screams in response:

"Stop misrepresenting my position."

although I have not represented his position. One of our own MRO's positions is his belief that The Gilded Age of the late 19th century were America's best days though rife with Jim Crow despite the Reconstruction As.

And he goes on to rail, as usual, against progressives. Is it our own MRO's position that the Founders, Framers and Ratifiers who fostered slavery with an incomplete Constitution were progressives from the beginning? While our own MRO professes to " ... oppose all forms of government racial discrimination" he seems to support the efforts of former slave states to impose limitations on voting rights of African-Americans. Apparently our own MRO is of the view that no remnants of Jim Crow exist today. Alas, readings of his own writings, especially at this Blog, belie this. And in particular his now open support of Cruz's presidential candidacy belies this. He continues to suffer from the Costanza syndrome.


"You know I oppose all forms of government racial discrimination."

Just not religious discrimination, however.

Jack Balkin helped put out two books with alternative opinions of the Court for both Brown v. Bd. and Roe v. Wade.

As I recall, at least one opinion took the Citizenship Clause of the 14A ("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.") as applying to the D.C. school case as well. The 14A, so went the argument, sets up one citizenship for all, violated by segregation.

There was also some argument made during the cases themselves that segregation was a type of "badge of slavery," which raises 13A implications. A few, including Prof. Akhil Amar, broadly apply the ban on titles of nobility. Such open-ended arguments also had some acceptable by Justice Scalia --

Anyway, slavery was a wrong that took a civil war to defeat. Some did argue though that at least as applied to the federal government there was no legitimate power to enslave. It would be a violation of due process of law for the feds to do that. This was a dissenting viewpoint, but as Prof. Balkin notes, in time such viewpoints get legitimacy.

ETA: See also, the separate opinion of Justice Thomas in the linked case, which involved a federal program, which includes an appeal to the Declaration of Independence.

" Some did argue though that at least as applied to the federal government there was no legitimate power to enslave."

That's a pretty hard case to make, when even the 13th amendment explicitly recognizes the legitimacy of slavery. It's still constitutional, if levied as a criminal penalty after conviction in a court of law.

It was a general statement, a form of shorthand, such as saying Congress shall not abridge the freedom of speech, even though there are exceptions such as perjury.

Anyway, the position was a minority one, so an after the fact amendment put forth as a median position such as the 13A does not by itself refute it. Also, the text:

"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."

It is not totally clear to me that being on a chain gang as a prisoner is "enslavement" as much as a sort of involuntary servitude, a more broader term. If we are going to be that particular about phrasing, I'd add that too.

What each person who held the position thought about "enslaving" or whatever prisoners is somewhat unclear. I'm sure at least some were wary given in practice it would (as was) applied selectively to blacks in particular.


Perhaps I am reading between the lines, but I take it that Brett's position may be that since slavery was legal pre-13th A that a subsequent Amendment could reinstate it constitutionally. Mind, I am not suggesting that Brett would want that result..

Speaking of rights for all, whether in the original Constitution or Amendments thereto, this morning's trip to the NYTimes website provides:

1. Editorial, "The Case Against Woodrow Wilson at Princeton," brought about by student protests sanctioned by the 1st A's speech clause. It's never too late to address bigotry.

2. Ned Blackhawk's "The Struggle for Justice on Tribal Lands," on a case to be heard by SCOTUS. Note the historical tie-in to the original Thanksgiving welcoming immigrants, sharing bounties.

What was it Rodney King said?

See. The Muslim spam is here. Damn inferior spam vetting process.

Joe, I don't think chain gangs should be considered slavery, (Key point: Being on a chain gang is temporary.) but involuntary servitude? Certainly. Both are clearly constitutional as criminal penalties, per the 13th amendment. The 13th amendment is not worded so as to imply that it was making them constitutional, but only exempting them from a general prohibition, so I take it that they were constitutional prior to that amendment, too.

Since the federal government does exercise the police power, constitutionally, in at least some circumstances, (DC, purchased lands, with regards to the armed forces.) and since slavery was considered to be a legitimate criminal penalty, it follows that the federal government had, at least in limited circumstances, the power to enslave. Still does, for that matter. As do the states.

However, it's not at all irrelevant that most slaves were not enslaved as a criminal penalty. And I see nothing in the Constitution to suggest that the federal government had the power to enslave under any other circumstances. The federal government being a government of enumerated powers, it therefore didn't have that power under any other circumstances.

The states, potentially having all powers not denied them by the Constitution, could be another matter. But nothing in the Constitution endorses the idea of enslavement for other reasons; It is, rather, otherwise silent on how you could become a slave.

Shag, no amendment would be necessary to make slavery as a criminal penalty constitutional. It's constitutional right now.

Brett's analysis ranks with a bridge to nowhere, something he is apparently personally familiar with. Brett lacks an understanding of the history of the early Constitution as well as of the Reconstruction As on the matter of slavery. I take it from this screed of Brett's that he would prefer the pre-13th A slavery over what he describes as criminal penalty slavery under the 13th A..

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Brett, I said "some" people before the 13A was ratified argued that the federal government lacked the power to "enslave." There "was" no explicit text like the 13A in the Constitution. If we assume (and we need not) the 13A was originally understood to continue a commonly allowed exception, it still was something a supermajority agreed upon. Some minority might have thought otherwise. The bare text does not explicitly say Congress had the power to enslave pre-1865.

In fact, it doesn't explicitly do now. The 13A sets up a limit that applies to state/federal governments and private parties. As Justice Thomas once noted about the Takings Clause, there still needs to be some power in the first place. As you note, the broad state police power would cover states, perhaps, if it legal under state law. If a state banned slavery, the 13A didn't suddenly give it the power to enslave those convicted of state crimes. The 13A covers everyone, so that would be a big exception.

But, we still need an enumerated power for the feds. And, since slavery is such a major wrong or at least infringement of rights, the argument was (and is) that you need a crystal clear authorization. If we want to use implicit authorization, any number of federal powers might open up reasons to enslave, down to a need for slaves to build a post road. The 13A would limit that though current doctrine is that "slavery" and "involuntary servitude" has a certain meaning and things like military service is not it.

Finally, I also said I was using "enslaved" loosely like someone says "no limits on speech" without denying there are some exceptions. So, I noted if you were going to read me so strictly, the 13A arguably doesn't even allow slavery for those duly punished of a crime. It says "nor" -- especially since the 13A isn't the only provision in the Constitution, perhaps (at least the feds!) only involuntary servitude is allowed. The language leaves open that. And, regarding terms: "Slavery" and "involuntary servitude" were different institutions in various resets; time wasn't what separated the two.

"Shag, no amendment would be necessary to make slavery as a criminal penalty constitutional. It's constitutional right now."

The 14A came after the 13A, so even if we implicitly interpret that to give both the federal and state government power here to enslave as a criminal penalty, it doesn't end matters.

Putting aside other possible limits such as the 8A as applied today. I realize some distaste, unlike justices back in 1908 (Weems v. U.S.) or Madison himself, of broad constitutional terms getting meaning as experience develops, but that isn't the only way to interpret the Constitution.


"The 14A came after the 13A, so even if we implicitly interpret that to give both the federal and state government power here to enslave as a criminal penalty, it doesn't end matters."

Implicitly? It comes right out and says it.

Brett obviously misreads or misunderstands Joe's sentence quoted.

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"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."

I guess my other remarks were of the TL;DR variety.

The first part of the 13A is a rights protection measure that limits power. It doesn't explicitly grant the power to enslave; it leaves it open in a limited case if the party has the power to do so. A state, e.g., might totally ban slavery. The 13A doesn't suddenly give the state the power to enslave in that limited area.

And, the federal government itself still has to have the power to enslave. This power is not explicitly stated. The text in fact makes sense even if the U.S. doesn't since it still would apply in the states ("their") that do allow it under state police power. But, yes, it is implicitly suggested the U.S. also can enslave under its federal criminal enforcement powers.


Among the orders handed down today by SCOTUS was one swatting away another complaint by a long term litigant. This earlier motion might be of interest to Shag:

Joe, thanks for the link. I read on my computer just over half of the Motion's 41 pages before deciding to print it out. So far it's an interesting read, written with some humor - and truth. So far the Motion reveals potential "high tech pillow talk."

Years ago I got involved with a pro se plaintiff on behalf of two clients named as defendants, along with a number of additional defendants who were elected and appointed MA state government officials. The Complaint was filed in the Federal District Court in Boston. (The plaintiff had by special order in the MA state courts been required to get pre-filing clearance for pro se complaints.) The claims against my clients were a reach but I did have to address them. The plaintiff was not trained in the law and not very skilled in describing his claims. He had run out of lawyers willing to represent him, probably because of the lack of merits of his claims but also his inability to advance towards costs and especially fees.

I would have conversations with the plaintiff while awaiting in the corridor to be called before the court. He was a nice enough guy who probably dis get screwed over at some stage. But his pro se targets were off-target, especially my clients with a very minimal connection to the plaintiff. I would take the opportunity to kid with him and once said to him that if he kept this up, I would get him "disbarred." He chuckled at that. Eventually the Complaint went away.

But back to the 13th A, both slavery and involuntary servitude had specific means back then. The Civil War was fought over slavery of the kind that had been engaged in beginning during colonial days and continuing with the 1787 Constitution up to the 13th A. During that same time period, there existed contractual servitude arrangements that were not really voluntary. Also during that same period, there were punishments for those guilty of crimes that included imprisonment; but such imprisonment was not considered the slavery that the colonies then slave states were engage in. However, in formulating the 13th A, out of precaution and to avoid confusion, criminal punishment had to be addressed as an exception. Brett can Humpty-Dumpty this all he wants. The 13th A primarily addressed slavery where the slave was he victim, whereas criminal punishment is aimed at the perpetrator of the crime, with a third party and/or the government as victim.

I did a bit of searching and this guy has been at it for quite some time:

Appellant, Kenneth Smith, was awarded a Juris Doctor degree from the University of Denver College of Law in 1995. He applied for admission to the Colorado Bar in January of 1996. Pursuant to C.R.C.P. 201.7 and 201.9, the executive director of the Board of Law Examiners recommended that an inquiry panel be convened to determine questions of Mr. Smith’s mental, moral and ethical qualifications for admission to the Bar. The inquiry panel conducted proceedings and ultimately concluded that probable cause existed to believe that Mr. Smith lacked mental stability, and hence recommended that his admission to the Bar be denied.

As to the 13A, I think it is useful to note that it is a rights provision. Brett is assuming it is in effect grants a power, which it basically does indirectly, I guess, but how far to take that is another question.

This goes back to my statement that certain antebellum radicals argued that the federal government did not have the power to enslave -- such an express violation of natural law and so forth had to be quite explicitly stated by positive law. That's not present in the seven articles of the Constitution. It is at best implicit. And, I question if the 13A does it either. It is not a grant of power. It makes an exception, for those jurisdictions that grant the power to do so, to allow something for punishment.

The phrasing goes back to the Northwest Ordinance. It was chosen for its familiar ring:

Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.

So, it pre-dated the Constitution itself. The reference does not appear to be regarding "imprisonment" itself but some sort of forced labor -- such as on a press gang -- as a punishment. This would happen especially in an age with limited jails -- the differences in the penal system just one thing that makes it not "clownish" to think changes have occurred in respect to the reach of legitimate punishments.

Anyway, over the years, there have been various abuses inflicted in the treatment of prisoners & I do wonder how anti-slavery radicals felt about the exception. At least, to the extent a person would permanently become a "slave" once convicted of a crime. The "civil death" of prisoners much more severe back then though with disenfranchisement etc. it lingers today to some extent. Forced labor in prison can be inherently problematic and perhaps violate due process or cruel/unusual requirements. The 14A coming after the 13A is notable there.

antebellum prison involuntary servitude --

The history of the Northwest Ordinance is most telling. As noted by Joe, the Ordinance was enacted prior to the 1787 Constitution, by the Continental Congress. But a couple of years later it was in effect re-enacted by Congress under the Constitution. The Dred Scott decision (1857) makes reference to the Northwest Ordinance and the later Missouri Compromise, regarding their impacts on the territories provided for in the Constitution.

It should be noted that the original Northwest Ordinance makes a specific reference to "slavery" and "involuntary servitude," whereas the 1787 Constitution makes no specific reference to "slavery" or "slaves." The 1787 Constitution's so-called fugitive slave clause does not specify "slaves," "slavery," or "involuntary servitude." It has been repeatedly stated that the Framers took pains to avoid the use of "slavery" and "slaves" at the Constitutional Convention.

CJ Taney's opinion/decision in Dred Scott on the Ordinance and the Missouri Compromise seemed to take the approach of originalism (something current day originalists might vehemently deny). But the 13th A made Dred Scot "history."

The 1787 Constitution's so called fugitive slave clause did not address criminal punishment but rather a procedure for the recovery of "fugitive" chattel property. (The 1850 Fugitive Slave Act did provide specifically for criminal punishment of persons not assisting or aiding to avoid such attempts at such recovery.)

Regarding Kenneth L. Smith's Emergency Motion, I finished reading it. It is a shame that this thread has entered the Archives of this Blog, as there is much to be said about the contents of this Motion. I would hope that a law review article on the Motion may be in the works, or at least a new post at this or some other legal blog. The Motion is highly critical of the judiciary and its system in America. Smith has pulled together criticisms from the left and the right. Smith also raises the issue of prosecutorial discretion, a major aim of his Motion in seeking the recusal of Justice Thomas. Smith stays close to some truths regarding the judiciary. But his Motion was designed, perhaps intentionally, to be rejected, as it was an attack on most current members of the Court. Smith refers to "RATS" on the Court, presumably Roberts, Alito, Thomas and Scalia. I was not previously aware of this reference. (The Motion was dated February 16, 2011, several years before Smith's home state of CO became the Mile Higher State (of mind), a State which has many strange bedfellows.) I tried some Googling to locate Smith's underlying appeal/claims without success. Perhaps it concerns his efforts to be admitted to the CO bar. I was also unsuccessful via Google in efforts to determine if the Court can waive" its "Rule of Four" as sought by the Motion. It would seem that Smith's Motion was a classic "Catch-22" as a majority of the Court would be needed to grant the Motion.

In any event, I think the Motion is worth a read as it catalogs many criticisms of the judiciary and its system over the years, some perhaps valid, some not. The "usual suspects" at this Blog may find a pony or two to saddle up and ride on.

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