Welcome back.

We're talking about America's unwritten constitution,

and we're exploring the various tools and

techniques by which faithful constitutional interpreters

go beyond literalism in order to ultimately

be faithful to and redeem the project of the constitution, which does revolve

around a written text, but requires us sometimes to go beyond just a literal

words of that text.

We've been talking about one technique of going beyond the literal words

by reading the constitution as a whole, but we were still reading,

there was still a, a, a technique of, of, literary interpretation focused

on words, but focusing on the words of the document as a whole.

That's not the only way America's written, unwritten constitution works.

And in this lecture and

the next one I'm going to tell you about a different tool, a different technique.

A technique that I call heeding the deed; America's inactive Constitiion.

I say look away from the text.

We've been focusing on the text, albeit as a whole in our

previous lectures but, but look away from the text for a minute.

Think about the Constitution instead as a deed, a doing,

an enactment, an ordainment, a constituting.

Lets look at how the Constitution, in fact, came to be, how it was ordained, how

it was established, the processes by which that actual historical event occurred.

And let's also look at how later generations of Americans have

in fact amended the thing, not what they said when they,

what texts they adopted when they ordained and amended, but it's what

they actually did in the process of ordaining and the process of amending.

And the thought is that certain things are deeply Constitutional, certain principles.

They're, they are baked into the constitutional cake, so to speak, because

they are part of the very process that gave us, historically, the constitution.

I'll give you an example.

We talked about freedom of speech and freedom

of speech is a preeminent American right and, and

one way of seeing that is seeing all the ways in, in which you can derive it.

Yes, you can point to the words of the First Amendment, free speech.

But by the way, if, if that was the only protection,

then that would mean the first Congress before 1791 was permitted

to censor speech.

And I don't think that's so, because I think freedom of

speech is about more than the words of the First Amendment.

Even before the First Amendment, I think,

freedom of speech was a constitutional principle.

I gave you one set of reasons for thinking that was true in my previous

lectures when I said look at the entire structure of the Constitution as a whole.

It's about popular sovereignty.

In order to be

sovereign, the people have to talk with each other, just like in England.

Parliament is a sovereign.

Parliament members have to speak amongst themselves.

Now it's possible that the exact form of free speech that American citizens have

is a little different than what members

of parliament have, what members of congress have.

Maybe they have a slightly more absolutist version

of free speech within Congress than outside of Congress.

Nevertheless, there has to be a very broad ability of

Americans to express themselves politically

their, their political opinions in

order to be sovereign, in order to be masters over

their servants; government officials who work for them, not vice-versa.

That was a structural argument, trying to make

sense of the document as a whole, trying

to also say the whole thing presupposes fair

elections and you can't have fair elections if the

incumbents can rig the game so that challengers can't

criticize the incumbents, but the incumbents can criticize the challengers.

That's that's a violation of the deep

principles of the structure of the document.

Now, I am going to give you a different reason, not focused on the words of

the constitution as a whole, but telling you

the story about how the constitution actually came about.

And, you know, in short, it comes about through an epic

act of free series of acts really of free speech.

The document comes to life in a land awash

with speech on a continent teaming with free speech in the

year that changed everything: the hinge of human history,

1787-88, that year when the constitution was put before

the American people for their consideration and for

them to ordain and establish it, or not.

It's not just that we the people voted on the

thing, which we did do, state after state after state.

We said yes, you know, we ordain and establish this thing.

It's not just that they vote on it,

but they deliberated about it, they talked about it.

In these special conventions and outside

the conventions, in taverns, in neighborhoods,

on street corners and, and, in a whole year up and down the continent

ordinary farmers are basically reading the same proposed constitution

and, and discussing it with their, with their friends and neighbors,

and in, in a wide variety of situations and no one is censored.

No one is silenced.

No one

is, no one, no one is, is, no one dies, actually for this very

vigorous, sharp-elbowed free speech, people are nasty to each other.

Some of them are pro-George Washington and the constitution.

Others are anti-George Washington and the constitution.

You know people are are hanged in effigy, but they're not hanged in person.

Free speech, yes amazingly

so, but but not violence, not censorship.

Just think about how, how stunning that is.

Think about our world today; Egypt or Syria, or really anywhere.

I, an entire, think about the French Revolution

and how it, it ends up in a bloodbath.

And we have a year in which We the People

don't just vote on the thing, we actually talk about it.

And we, and people criticize

slavery, they criticize existing government, institutions, and practices.

And others defend the existing government institutions and practices

this is going to, this is not always going to prevail.

Later on the South will try to shut down criticism of slavery.

As we talked about in previous lectures

several Southern states including North Carolina, made it

a capital offense, a death penalty offense to

criticize slavery, to agitate slaves, to make them

dissatisfied with their conditions.

And that's because the 3 5ths Clause ends up

corrupting the whole system and creating an increasingly slavocratic system.

But back in that year that changed everything, 1787-88,

there was epic free speech about the Constitution, and everywhere.

And my claim is, that's baked into the constitutional cake.

That's part of the Constitution even

before the First Amendment comes along, because it's

part of how the Constitution in fact was born.

And very different even than the Articles of

Conf, I mean, excuse me, the Declaration of Independence.

Let's recall that not only was that declaration not put to a

vote, you know, up and down the continent there also really wasn't the kind of,

tolerance and, and free speech that, that fully prevailed in 1776.

If you were opposed to the Declaration of Independence,

here are your choices: leave, you kn, or shut up.

No one, who opposes independence fiercely ever goes on to a

position of, of public, of a, of a of a real importance in America.

I think there's, you know, one person, Philip Barton Keyes, related to

Francis Scott Key, who becomes a congressman or something, even though he,

was a loyalist, was was a backer of King George

the Third and not George Washington in the American Revolution.

But basically almost no one who opposes the American Revolution

goes on to any important position of authority in America.

In effect, they're voted off the island, they're

ostracized, informally and a lot of them do leave.

Can you compare that to the year that

generated the constitution, in which people who vigorously

opposed it go on to become presidents of the United States, James Monroe

and vice presidents, Eldridge Gary, George Clinton,

justices on the Supreme Court, Samuel Chase.

The people who oppose the constitution, the anti-federalists, help bring

to life a, a, help birth the Bill of Rights.

So, so, we have this epic conversation

between and, and contestation debate, really between anti-federalists

and, and, and, and, and, and federalists and it results in a Bill of

Rights which says the freedom of speech,

as if the freedom of speech already exists.

The freedom of speech, Congress shall make no law abridging

the freedom of speech, as if freedom of speech already exists.

And it does.

It existed on the ground in the America constitutional, process.

That year that changed everything, even before the

Bill of Rights comes along which is 1791.

And, note the Bill of Rights again and

again and again uses the phrase the people.

I mentioned the peoples' right to assemble in the first amendment and

the right of the people to keep and bear arms in the second.

The, the people also, that phrase reoccurs not just in the first and the

second, but the fourth, the ninth, the

tenth amendments because it's coming from the people.

In this, we the people, gratifying conversation up and down

a continent, free speech is baked into the constitutional [INAUDIBLE].

Now what kind of argument

is that?

Well, it's basically a historical argument.

But many, it's a kind of argument

of original intent of sorts, original understanding.

But many historical arguments are focused on

a particular word or clause of the Constitution.

Oh, they, at the time of the Constitution,

people said this clause would mean this or that.

But you can all say well how many people heard

the conversation that this clause would mean this or that?

You know, five people, 10 people, 100, you know, 1,000 people?

But, the Constitution is all up and down the continent.

How many people really heard that conversation?

So, this kind of historical argument is a little different.

It's, it's not organized around a little clause.

It's more like a structural argument.

Say, the Constitution as a whole was, because it was ratified as a whole.

It's not ratified clause by clause.

That's why it's a mistake to, to interpret it merely clause by clause.

It's ratified as a whole.

That's John Marshall's ingenious idea in McColloch.

To ratify it as a whole, it's to be

understood as a whole and I say, the pro, the

historical process that as a whole generated the constitution is

really interesting and it's a process of epic free speech.

So it's an historical argument of sorts.

It's like a structural argument and it's holistic and not clause bound.

If you insisted it must be a textual argument because

only textual arguments are permissible, I could probably turn it,

translate it into textual argument because I think the unwritten

and written constitution often sort of fit hand and glove.

So, I could say fine.

Let's go back to the preamble.

We, the people of the United States do ordain and establish this Constitution.

I'm interested in

that little word do. We do.

What did we do?

How did we do it?

And I said we did it though epic free speech, political opinion pro and con

up and down the continent and without that

the constitution perhaps couldn't have even come into

an existence if there had been, if existing

Governments had tried State Governments shut down criticism

of State Governments because State Governments were doing

a lot of things that were really ineffective

and, and, and the Articles of Confederation was basically feckless.

it, it, it, was, it was weak.

It was imbecilc, it wasn't working.

And unless ordinary people could say the Articles Confederation is a joke and

the people in our state governments don't know what the heck they're doing.

Unless you can actually get up and say that, maybe you can't persuade your

fellow citizens that they should before for

this bold new plan called the Constitution.

So James Madison, in fact, at a very key moment in American History,

when, when John Adams is actually supporting, as

President, censorship measures, James Madison said wait a minute.

If we'd have censorship measures like this in place

in, in 1787-88, we wouldn't of even had the Constitution!

So he is appealing to this very fact

that free speech was baked in the constitutional cake.

Is James Madison the guy who, in case you missed it,

authored the First Amendment during an early version of the First Amendment.

James Wilson, the man who writes the words,

We the People, at Philadelphia a great constitutional

lawyer; one of only six men to sign both

the Declaration of Independence and the Constitution, one of

the first justices, associate just on the Supreme Court.

James Wilson, while they're deliberating on the Constitution in

1787-88, says, we are, are, are talking about this thing.

Look, we are peacefully

changing our, our system of government.

It's not just that we're, we are saying things, we're doing things.

We ourselves are embodying this extraordinary free speech.

So Wilson notices this at the founding. Madison notices this very shortly

thereafter that what we the people are, actually doing in 1787.

We do,

that's part of the Constitution itself.

I can make it a textual argument, I think, if you, if you twist my arm.

But I'm saying, you know, it, it's

also a historical argument, about what actually happened.

It's a structural argument about the Constitution as whole.

I think the most important thing to understand is it's a good argument.

It's a legal argument.

It's a constitutional argument that free speech is part of our DNA,

as a, a, Americans, as inheritors of, of, of this constitutional project.

And not just free speech, but majority rule.

Let's look at another thing that Americans actually did in this redo moment.

How did we adopt the Constitution? Well, we adopted it in state conventions.

And the Constitution says that nine states have to say yes.

And unless nine states say yes it doesn't go into effect.

Okay, great, and it will only go into effect among

the states that say yes, and that makes

sense because before the constitution each state is sovereign.

It's its own strictly speaking legal entity.

It's in league and a confederation with others.

But, if 12 states say yes, but Rhode Island doesn't; Rhode Island in

1788 can't be bound by the other 12 because she's her own sovereign nation.

She's free to go it alone.

So Article 7 of the Constitution says, any nine states suffice and

it will go in to affect among those nine. Fine.

And by the way, Rhode Island and North Carolina say no initially.

There, remember only 11 states say yes when George Washington actually

is swearing the oath to be President of the United States.

And, and Rhode Island and North Carolina

come in only afterward, after Madison proposes

a Bill of Rights to bring them on board, to remember all of that.

Article 7 is one sentence, its kind of, the last

sentence of the Constitution that balances the preamble, says nine states

will suffice and conventions within each state will speak for the people.

They are the authentic embodiment of

the people, these specially elected conventions.

You remember that property qualifications were lowered or eliminated

in most of the states for these special convention elections.

So remember all of that. Article 7 says nine states suffices

and, and convention and it would go into affect only among the nine.

And the conventions are the authentic voice of the people of each state, fine.

But what should be the rule within the convention?

Does the convention have to say yes, we do in New York by

a 2 3rds vote, by a 3 5th votes, by a unanimous vote?

And here's the kick in the head, the Constitution

doesn't say, it's unwritten, but in every single state it is

simple majority rule that does the trick and that kind of goes without saying.

It's unwritten.

In New York the vote is actually 30 to 27 the barest of majorities.

Two votes changes it and in fact, actually, probably one vote changes it.

because if one vote is switched, instead of being 30 to 27,

in this ratifying convention in Poughkeepsie, it would have been 29 to 28.

And the chair was actually opposed to the Constitution,

would have been able to cast a tie making,

not a tie breaking, but a tie making vote,

making it 28 to 28, and then the resolution fails.

Excuse me, 29 to 29 and then the resolution fails.

That presiding

officer was George Clinton. He was really opposed to the Constitution.

He's going to later become Vice President

of the United States because America doesn't penalize

the people who raised doubts about the thing,

who helped give us the Bill of Rights.

There's this epic free speech, as mentioned before, but also majority rule.

And the minority immediately acquiesces in this, in state after state after state.

I think partly because they

feel that they were allowed to be heard. They weren't shut down.

Okay.

You let us make our case, make the argument against it.

You often, you try to answer our arguments.

And some anti-federalists, in some states,

they make arguments against the Constitution.

And in the convention, someone says, well that's

a good point, but here's the answer to it.

And the first guy says, okay.

I'm persuaded on that, let's move to the next point.

They, they, [LAUGH], they're actually talking to

each other which is democracy at its best.

But, because the

minority got to speak and wasn't shut

down, it acquiesced and simple majority rules.

So, majority rule is another

basic, yet albeit unwritten, constitutional principle.

It's baked into the cake.

In many states, the state constitutions had seemed to say, you need a super

majority, several of the states, at least

and Massachusetts being one, and Pennsylvania being another.

The state constitutions could have been read to say you need a super

majority to change the government and adopting

the U.S. Constitution is changing the government.

It's changing the state government because it's changing its relationship to

a, and, and it's legal status in all sorts of ways.

so, when you in Massachusetts adopt the U.S. Constitution,

you are thereby changing the Massachusetts Constitution in various

ways and the Massachusetts Constitution, which was on the books in the 1780's, the

Massachusetts Constitution of 1780 could have been

read to say, it has to be super-majority.

But, in fact, it was read, in this year that changed everything, as

requiring only a simple majority in a

ratifying convention to change the basic rules.

The majority rule baked into the cake as a basic unwritten principle.

Have I made a philosophical argument or a structural argument?

No, I've been making an historical argument about how

we the people, in this year, in fact did it.

And we did it by majority rule in state after state after state.

We did it with free speech in state after state.

Now what follows from that?

Well, it might follow from that that every state

can change its state constitution by simple majoritarian processes.

Now

and in the future, whether or not the state

constitution explicitly provides for a simple majority rule amendment procedures.

And in fact, many, many states, in every region of

the country, after the Constitution, did in fact change their state

constitutions by simple majority rule pro, procedures, even though those procedures

weren't in every sit, case specified in the pre-existing state constitution.

So that,

that, that year that changed everything did set precedence for

on the status of majority rule for state constitutional amendment.

On the supreme court, if the vote is 5 to 4 who wins?

Yes, the 5. All of us, you know.

The 5 if they want to prevail over the 4.

The 5 might choose to be deferential to the 4 in all sorts of ways.

But push comes to shove, 5 beats 4 on the Supreme

Court every time, if the 5 are emphatic about it and

the constitution doesn't say that in so many words.

It doesn't say majority rule.

How did the first house of

representatives, when it's getting started it has

to come up with rules for its procedure, how did it operate majority rule?

How did the first senate operate, when its first gazed at majority rule?

Even though the Constitution doesn't say so.

And so, in fact, I mean this is, this,

this small little conceptual tool, this idea of paying

attention to how the constitution was ordained

and established, it has huge implications even today.

For those people who believe in filibuster reform in the

Senate, the Senate today has rules that some people think are

entrenched and they require super majorities; 60 votes, 67 votes, and

you can't change them, without getting 60 votes, or 67 votes.

Fifty one senators think some folks can't, if they're determined,

change the rules of the Senate.

And I say, absolutely, they can, because a

deep, unwritten, if unwritten constitutional principle is majority rule.

It was baked into the constitutional cake.

It's part of our constitutional system.

And therefore, on any day, 51 senators, if they're emphatic about the thing, have the

ability, have the right to change the senate's

entrenched filibuster rules by appealing to this deep

constitutional principle that was part of their very process by which

we the people did in fact, ordain and establish the Constitution.

Well, so much for this lecture in the next lecture I'm going to talk about principles

that we can deduce, not from the founding moment of ordained

establishment, but from the reconstruction from amendments, because we can also

pay attention, not just to how America's actually ordained the

Constitution, but how Americans did, in fact, amend the Constitution.

So that's the next lecture.

So stay tuned, and I'll explain to you what this is all about.

How, how the process by which America amended the Constitution in the 1860s

after the civil war has very interesting

implications for the constitutionality of the draft.

Stay tuned.

[MUSIC]

Heeding the Deed, Part 1

美国的不成文宪法

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