Loyola University Chicago Law Journal Volume 23 Article 3 Issue 4 Summer 1992 1992 Amendments to the Constitution of the United States: A Commentary George Anastaplo Prof. of Law, Loyola University Chicago, School of Law Follow this and additional works at: http://lawecommons.luc.edu/luclj Part of the Constitutional Law Commons Recommended Citation George Anastaplo, Amendments to the Constitution of the United States: A Commentary, 23 Loy. U. Chi. L. J. 631 (1992). Available at: http://lawecommons.luc.edu/luclj/vol23/iss4/3 This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola University Chicago Law Journal by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Amendments to the Constitution of the United States: A Commentary* George Anastaplo** Thus says the Lord of hosts, the God of Israel, "Amend your ways and your doings, and I will let you dwell in this place. Do not trust in these deceptive words: 'This is the temple of the Lord, the temple of the Lord, the temple of the Lord.' For if you truly amend your ways and your doings, if you truly execute jus- tice one with another, if you do not oppress the alien, the father- less or the widow, or shed innocent blood in this place, and if you do not go after other gods to your own hurt, then I will let you dwell in this place, in the land that I gave of old to your fathers for ever." Jeremiah 7:3-7 TABLE OF CONTENTS 1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787 .................................................. 632 2. THE FEDERAL CONVENTION AND A BILL OF R IGHTS ........................................... 642 3. PREDECESSORS TO THE AMERICAN BILL OF RIGHTS . 653 4. THE PURPOSES AND EFFECTS OF THE BILL OF RIGHTS OF 1791 ...................................... 663 5. AMENDMENT I ....................................... 676 The Editors have complied with the author's stylistic preferences in this Article.-Ed. * This Commentary is based largely upon the Centennial Lectures delivered at Lenoir-Rhyne College, Hickory, North Carolina, during the 1990-1991 academic year. This Commentary, with additional appendices, is to be published in book form. The author is grateful for the help provided him at Lenoir-Rhyne College by John E. Trainer, Jr., J. Larry Yoder, Marianne Yoder, Joseph S. Mancos, and Beverly Hefner, and by Stephen J. Vanderslice of Louisiana State University at Alexandria. The author has prepared a similar Commentary on the United States Constitution. GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY (1989). An earlier version of that book appears at 18 Loy. U. CHI. L.J. 15 (1986). For a complete bibliography of the author's books, articles, and lectures, see 2 LAW AND PHILOSOPHY: THE PRACTICE OF THEORY; ESSAYS IN HONOR OF GEORGE ANASTAPLO 1073-1145 (John A. Murley, Robert L. Stone, and William T. Braithwaite eds., 1992). ** Professor of Law, Loyola University Chicago School of Law; Professor Emeritus of Political Science and of Philosophy, Rosary College; and Lecturer in the Liberal Arts, The University of Chicago. A.B., 1948, J.D., 1951, Ph.D., 1964, The University of Chicago. Loyola University Law Journal [Vol. 23 6. AMENDMENTS II, III, AND IV ....................... 687 7. AMENDMENTS V, VI, VII, AND VIII ................. 704 8. AMENDMENTS IX, X, XI, AND XII .................. 717 9. EDUCATION IN THE NEW REPUBLIC ................. 731 10. THE CONFEDERATE CONSTITUTION OF 1861 ......... 747 11. THE EMANCIPATION PROCLAMATION OF 1862-1863.. 757 12. AMENDMENTS XIII, XIV, AND XV .................. 789 13. AMENDMENTS XVI, XVII, AND XIX ................ 805 14. AMENDMENTS XVIII AND XXI ...................... 813 15. AMENDMENTS XX, XXII, XXIII, AND XXV ........ 824 16. AMENDMENTS XXIII, XXIV, AND XXVI ............ 833 17. THE CONSTITUTION IN THE TWENTY-FIRST C ENTURY ............................................ 840 APPENDIX A: LETTERS EXCHANGED BY THOMAS JEFFERSON AND JOHN ADAMS (1814) ................ 849 APPENDIX B: THE CONFEDERATE CONSTITUTION (186 1) ................................................ 855 1. THE INTENTIONS OF THE FEDERAL CONVENTION OF 1787 . The greatest wars fought by the American people have been civil wars. The first was the struggle between Patriots and Loyalists from 1774 to 1781; the second was the struggle between Northerners and Southerners from 1857 to 1865.1 The victors in both wars suppressed far-reaching claims by their rivals. No later British monarch ever plausibly aspired to the power in the British Empire that George III was believed to exer- cise between 1774 and 1781. No later State government ever again aspired to the power in the American Union that the Confederate 1. The Revolutionary War struggle can be said to have begun in 1774 with the first meeting of the Continental Congress. See infra Lecture No. 1, § II. The Civil War strug- gle can be said to have begun in 1857 with the remarkably divisive action by the United States Supreme Court in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). See infra Lecture No. 7, § III. The Civil War may have done for the American Republic what the killing by Junius Brutus of his sons did for the Roman Republic. See NICCOLO MACHIAVELLI, DISCOURSES ON THE FIRST DECADE OF TITUS Livy 111.3; infra note 260. For a helpful translation of Machiavelli, see the version forthcoming from Leo Paul S. de Alvarez (1993). Two other great struggles on this continent, which have had some of the features of civil war, were the relentless campaigns against the indigenous tribes and the complicated efforts to deal properly with imported Africans and their descendants. See infra text accompanying notes 166, 177. The hopes of the American enterprise are suggested infra note 134. Its risks and chal- lenges are indicated infra notes 130-31. 1992] Amendments to the Constitution States tried to exercise between 1860 and 1865. In each case the aspirants were confronted by armed responses rooted in the consti- tutional history of a people. Civil wars tend to be exceptionally traumatic, partly because the cost for each victory is paid twice over: the victor suffers not only his own casualties but those of his fraternal opponent as well. The Patriots could refer, as in the 1776 Declaration of Independence, to their "British Brethren." And in the 1863 Gettysburg Address, the reference to the "brave men, living and dead, who struggled here" unites the desperate enemies of that battlefield.2 Extreme circumstances are very much in evidence in civil wars, so much so that people are often obliged to resort to constitutional irregularities in making the supreme efforts to which they dedicate themselves. Rules tend to be flexible in such extremities, with war seeming to dictate a "logic" of its own. This may be seen even in military build-ups, short of war, in troubled times. Such magnifi- cation of the national power can be difficult to reverse, however much military forces may be trimmed from time to time. In both of the great North American civil wars, the long-estab- lished principles of the victors asserted themselves, whatever the formal constitution and laws of the day provided. And in both cases formal constitutional developments thereafter ratified what had been achieved by war. These constitutional developments in- cluded a determination not to permit everyday life to be governed routinely by the measures that had had to be resorted to in extreme cases. Two dramatic constitutional developments among the Ameri- 2. The Declaration of Independence and the Gettysburg Address are among the items collected in the Appendices to GEORGE ANASTAPLO, THE CONSTITUTION OF 1787: A COMMENTARY 235-302 (1989) [hereinafter ANASTAPLO, THE CONSTITUTION OF 1787]. If any American or English constitutional document is quoted in the text of this Article without citation, it may be found either in the Appendices to ANASTAPLO, THE CONSTITUTION OF 1787, supra, or in the collection described infra note 3. The Appendices to ANASTAPLO, THE CONSTITUTION OF 1787, supra, include the following items: The Declaration of Independence (1776); The Articles of Confederation and Per- petual Union (1776-1781); Congressional Resolution Calling the Federal Convention (1787); The Northwest Ordinance (1787); The United States Constitution (1787); Resolu- tions of the Federal Convention Providing for Transmittal of the Proposed Constitution to the Confederation Congress (1787); Letter Transmitting the Proposed Constitution from the Federal Convention to the Confederation Congress (1787); Congressional Reso- lution Transmitting the Proposed Constitution to the States (1787); Congressional Act for Putting the Constitution into Operation (1788); Amendments to the Constitution of the United States (1791-1971); Proposed Amendments to the Constitution Not Ratified by the States (1789-1978); The Gettysburg Address (1863); and the Second Inaugural Address of Abraham Lincoln (1865). That volume includes discussions of various Amendments to the Constitution. Loyola University Law Journal [Vol. 23 cans have come in the aftermath of their great civil wars-in the emergence of the Constitution and its Bill of Rights after the first civil war on this continent and in the emergence of the Thirteenth, Fourteenth, and Fifteenth Amendments after the second civil war. In neither case should these developments endure as disappoint- ments for any of the parties engaged in those struggles: the people of Great Britain had their own liberties confirmed by the check placed upon ambitious royal power in North America; the people of the American South were liberated from crippling institutions that they had been saddled with by their imprudent ancestors more than a century before. II. We must set aside until Lecture No. 10 what happened, and did not happen, after 1857 in this Country. It is what happened, and did not happen, after 1774 that is our immediate concern. The traditional, as well as the natural, rights and liberties of En- glishmen were regularly invoked on this side of the Atlantic by the men and women who made the American Revolution.