Tuesday, May 31, 2016
Robert Kennedy and the Bill of Rights
Gerard N. Magliocca
In this post I want to introduce two themes of my (work-in-progress) Bill of Rights book. One is how the Cold War influenced America's view of its Bill of Rights. The other is the question (raised in an earlier post) about why we think that the first ten amendments (as opposed to the first eight or the first nine) are the Bill of Rights.
"Anything jump out at you? For me, it's RFK's emphasis on the first nine amendments."
You can't expect federal politicians to get very enthusiastic about the Tenth amendment, I guess, since it's clearly aimed at limiting their own power.
"You can't expect federal politicians to get very enthusiastic about the Tenth amendment"
A lot of them were pretty enthusiastic about it over the years.
I don't necessarily think "the Tenth Amendment is not part of RFK's case." He speaks of the Bill of Rights, "particularly" the first nine. But, that means more than the first nine. Why isn't the 10A included? He then speaks of the "addition" of the 14A, as if that is separate from the Bill of Rights. At least, that seems a reasonable interpretation.
The 10A is being diminished, yes, partially probably because it was then used as a tool of racism and other things he opposed.
This passage stuck out to me: "The British have proved a Constitution needn't be written."
Given the Brit government's history with the American colonies, the Irish and Scots, as well as occasionally with the English themselves, a largely unwritten constitution gas serious limitations.
That was my impression, too: The British have, by now, proven that a Constitution actually DOES need to be written.
Sadly, at this point the US has demonstrated along with the USSR, that writing it down isn't enough. I think it's an open question whether anything is enough, in the long run.
Written/unwritten...perhaps we can come to the conclusion that that is not the most interesting or important fact about 'a' 'constitution' ... Many/most/all of us here are lawyers or legally trained so prescription is always foremost in our minds, but the word 'constitution' is just as much about what is 'in fact done' as it about 'what is prescribed to be done.' Aristotle's 'Constitution of Athens' (and his lost collection of hundreds of other ancient constitutions) is all about what 'was in fact done.' In certain respects our 1789 Constitution is hardly 'constitutive' ...not only does it not tell us who 'citizens' of the US are or should be, but it says virtually nothing about the territory on which they reside or how that territory is or should be organized (as witnessed by the confusion surrounding the status of the Northwest Territories Act after the 1789 Constitution was adopted, the debates around the Louisiana Purchase, the mess made in the granting of statehood to Ohio etc...). The specification of citizenship in the 14th Amendment was truly a reconstituting of the US and is a crucial reason for including that Amendment in any 'Bill of Rights.'
"Written/unwritten...perhaps we can come to the conclusion that that is not the most interesting or important fact about 'a' 'constitution'"
I would argue that, unwritten, or at least, unrecorded in some fixed form, you don't HAVE a constitution, just habits of governance, liable to fall the moment somebody decides to alter them.
"In certain respects our 1789 Constitution is hardly 'constitutive' ...not only does it not tell us who 'citizens' of the US are or should be, but it says virtually nothing about the territory on which they reside or how that territory is or should be organized"
That's because it didn't constitute a nation, but instead a federation of pre-existing states. It didn't have to specify a lot of things, because they weren't within it's purview anyway.
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