In the Western experience with evil, we choose repeatedly to put our faith in law and the legal culture to redeem ourselves from sin. Over and over again, we find states indulging in total war, terror, genocide, and the mass killing of their own people, and then turning to the legal culture in the hope that they can atone for the iniquity and live once again as a civilized nation. This view—that the law shall make us clean—should give us pause. Faith in the law has not been an unqualified virtue in the Christian West. One might expect individuals influenced by Jesus’s Sermon on the Mount to turn first to love and charity as the means of atonement. But nations—organized, organic societies—must take a different path. A nation must proceed collectively to find redemption.
I write in this chapter of religious ideas and their value in understanding our legal experience. This, admittedly, is an unusual take in our rigorously secular academic world. The American university world has distanced itself from the sensibilities of ordinary Americans who take the Bible seriously as a source of wisdom and who live their lives with devotion to values of faith and redemption. In this interpretation of law as the path to national redemption, I seek to find a middle way between Jewish and Christian thinking. There is no doubt that the nations whose struggles I describe—France, Germany, and the United States—think of themselves as Christian nations. Yet, the very idea of redemption of the entire nation through law resonates more with the older tradition of the Jewish national mission under the Torah revealed at Mount Sinai. My account seeks to unite the divergent strains of all religions that trace their roots to the original idea in Exodus of a nation living under God and under law.
To understand the phenomenon of communal redemption, we must turn to the Bible as our source. The model of the Hebrews’ deliverance from servitude and their ensuing acceptance of God’s law at Mount Sinai have repeatedly appealed to dominant powers of the West and often to opposite sides of the same conflict. In the rhetoric of the abolitionists, slavery in the United States made the country into “a House of Bondage.” Both blacks and whites identified with the same story of liberation from this domain of oppression. Nat Turner thought he was recreating the biblical story when he led a slave revolt in 1831. The slaves whom Harriet Tubman led to freedom in the North called her Moses. Abraham Lincoln readily saw himself in the image of Moses leading his people out of bondage into the realm of freedom.
The Hebrews fled Egypt in order, eventually, to accept the law revealed at Mount Sinai: delivery from servitude requires more than violent revolt. The message of Exodus is not simply liberation from slavery but the domesticating of violent sensibilities under the rule of law. Jews celebrate this submission to God’s law in the holiday of Shevuot, which commemorates the revelation of the Torah at Mount Sinai and is celebrated fifty days after the night of the Exodus. Christians have reinterpreted this event as the descent of the Holy Spirit, celebrated in the analogous spring holiday of Pentecost.
The idea that freedom exists only under law is often understood as a Central European or German approach to the individual in society. Americans tend to subscribe rather to the myth of a Lockian state of nature, where individuals exist prior to the organization of society under a social contract. The Declaration of Independence relies heavily on the principle that the “consent of the governed” is indispensable to the legitimacy of government. Yet, in actual American practice, the law—particularly constitutional law—serves the same function of sanctifying the social order as it does in the European experience. Before turning to the details of the American appeal to law after the surrender at Appomattox Courthouse in April 1865, let us examine first two significant European efforts to domesticate tendencies toward violence under the rule of law.
Redemption by Law in
France and Germany
Think first about the way in which the French sought repose from post-revolutionary terror in their Code civil. The country passed through fifteen years of regicide, terror, and mass executions. Amidst voices clamoring for stability and security, Napoleon staged his coup d’état in late 1799. High on his agenda was revamping the legal system. In 1804, he charged a group of lawyers with the task of drafting a new civil code in language accessible to ordinary people. The committee produced the elegant Code civil, now a mainstay of French culture and a model for civil codification all over the world. The language is so refined that the novelist Henri Stendhal reportedly reviewed the style of ten code provisions every night before retiring. Today, when the Francophones in Quebec preach the distinctiveness of their culture, they never fail to mention their Code civil, modeled after Napoleon’s effort to use the law as the means of restoring civilized order to France.
The Code civil has proved to be remarkably durable in French culture. Constitutions have come and gone and the French have endured recurrent changes of regime, including communes, dictatorships, and five distinct republics. Yet, through all this, the civil code has survived. It is the cultural monument that unites the French across history.
In its substantive content, the Code civil is strongly identified with the achievements of the 1789 Revolution against the ancien regime. The code sweeps away the vestiges of feudal influence in the law of property and in the law of evidence and proclaims a liberal legal order. The end of feudalism in the law of property meant that a single concept of ownership would replace the ancient system of embedded estates. The implication was that all land would be freely alienable, without being burdened by the residual control of lords higher in the feudal chain. The code thus provides the legal foundation for a market economy. The end of feudalism in the field of evidence means that the testimony of a nobleman is no longer worth more than the oath of a peasant. Thus the code institutionalizes the égalité of all citizens, as promised in the slogan of the Revolution.
Standing for these liberal values, incorporating the messages of revolution, and surviving all changes of political regimes, the Code civil functions like a constitution for the French. It is the bedrock of the legal culture. In their code, the French have found an enduring symbol of the rule of law, a conviction that the language, concepts, and rules of the legal order can hold back the impulses toward violence, terror, and reciprocal vengeance. Faith in the code has redeemed the nation from the nightmare of the guillotine.
The metaphor of redemption should not pass our lips lightly. In its original meaning, it has legal connotations; something on loan gets returned to its owner. The older Jewish law of homicide relied on the metaphor of the Goel haDam, “the redeemer of blood” to refer to the victim’s next-of-kin who, under certain circumstances, could pursue the murderer and kill him. David Daube has interpreted this practice against the background assumption that at the time of a natural death, the life force—symbolized by blood—always returns to God.1 If the death occurs at the hand of another, the manslayer unnaturally acquires control over the victim’s “blood.” The Goel haDam, the redeemer-of-blood, executes the manslayer in order to release the victim’s blood, thus enabling it to return to its divine source. The notion that our life force belongs to God accounts for the views of virtually all secular liberal systems that no one can validly consent to his or her own killing at the hand of another.
It is tempting to extend this idea and to think of all humanity as enjoying a temporary privilege of life on earth. God somehow will redeem all of us at the end of history. In fact, the Jewish view, as it has evolved and matured, seems to have avoided this universalization of the idea that individual life stems from God. As the idea developed, the agent of redemption would be the Messiah, who would bring a reign of peace and harmony to life on earth. The redemption occurs in life as we know it. Orthodox Jewish culture takes the observance of God’s commandments, living under the rule of revealed law as interpreted by the rabbis, as the way to hasten the Messiah’s reign of harmony and order. The law, then, becomes the path toward redemption. Until the Prince of Peace comes to “fulfill the law,” or until the Apocalypse at the end of days, the secular law of the nation is the only means we have to work toward the perfection of life on earth.
The place of “blood” in the religious tradition of redemption proves to be subtle and problematic. There are some strains in the Jewish tradition that link the letting of blood with returning the soul to God. The “redeemer of blood” reminds us of that connection, as does the popular view that the founding of Israel stood in some kind of organic relationship with the Holocaust. The connection between blood and salvation becomes much stronger, however, in the Christian interpretation of its Jewish legacy. The theme of blood spilling from the body becomes powerful in the crucifixion and reaches its apotheosis in the faith that a great battle, an Apocalypse, must precede the Second Coming of the Messiah. The spilling of blood in a great battle is understood instinctively as the suffering that must precede redemption. As John Brown was led to the gallows on the eve of the Civil War, having unsuccessfully sought to stimulate a slave revolt, he handed one of his guards a note, “I John Brown am now quite certain that the crimes of this guilty land will never be purged away but with blood.”2
But blood alone does not save a nation from its sins. The argument here is that indulgence in evil—slavery, mass killing, persecution—must first issue in the suffering of the people. To overcome their sense of self-inflicted brutality, they turn to the law as the path of secular redemption. They search for stability after having succumbed to their baser instincts. The law provides a source of hope that the civil order can resist the recurrent slippage into violence and brutality. The important point is that the rule of law—not charity, not prayer, not animal sacrifice—should provide the means of secular redemption.
For nations as a whole to seek redemption, they must find a discipline that operates on them as a group, as a community. Individual acts of devotion will not suffice. Needed is the discipline represented by the law—the expression of communal cooperation, par excellence. The compromises and obligations of life under the law hardly makes sense to individuals standing alone, preoccupied by their own values and their own needs. The law redeems not the individual but the community or the nation as a whole.3
This view of the relationship between law and redemption finds expression in the Hebrew Bible, the Old Testament. It continues to inspire the law-based thinking of Judaism, Islam, the Catholic Church, and some Protestant theologians. The law given at Sinai, the law embedded in the covenant, is not the expression of individual aspiration but only of collective obligation. Seeking redemption or salvation through the church or through faith provides a way of cleansing ourselves of sin and, as it were, perfecting our individual creation.
Legal cultures, too, must seek to perfect themselves. They cannot exist simply as the product of will. When legal cultures lose sight of their natural end of bringing a reign of justice and harmony to human affairs, they decline into corruption and the arbitrariness of power. The German philosopher Gustav Radbruch defined the ideal of Law as the practice of establishing rules in the pursuit of justice.4 Communal life seeks, through law, to perfect itself. This secular idea parallels the eschatological aim of perfecting the creation of the world under God’s reign.
Seeking redemption under the law cannot simply be a desire for one’s parochial values to triumph in the courts. It matters which values are in play. And it matters how these values are debated in the legal culture. Debate about legal issues must be open and robust, and the very process of legal argument must communicate respect for the opposition. At the end of a legal argument, both sides must have the sense that they have been listened to, and that the dignity of the losing party is affirmed in the process of decision. Here, as well, we have much to learn from the model provided by the Jewish tradition of Talmudic debate. When a rabbi questioned how two of the greatest sages, Rabbis Hillel and Shammai, could persistently disagree, the response was: “These and these are the words of the living God.” Although Rabbi Hillel’s views are generally followed, Rabbi Shammai is treated, in defeat, with the greatest respect.
It is not surprising that when the established authority’s respect for the political opposition is debased, the legal culture invariably suffers. This is most noticeably clear in dictatorial societies where legal debate is reduced to little more than efforts to placate the powers that be. Although the National Socialists purported to rely on legal forms and administrative regularity, their contempt for free and mutually respectful discourse led to a corruption of the legal culture. The Nazis’ conception of law fluctuated between two unpalatable extremes. Sometimes the slogan was that law was what Hitler wanted and commanded (Recht is das, was der Führer will). At other times, utility to the German people was the ultimate source of legitimacy (Recht is das, was dem Volke nutzt).5 The National Socialist Party’s manipulation of these slogans and their observance of legal forms served only to bring the culture to a deeper level of corruption.
It is an extraordinary feature of postwar German culture that a new generation of jurists managed to save, to redeem, their concept of law from its racist and Nazi associations. In the wake of their unforgettable crimes against humanity, the West Germans, too, sought redemption in the rule of law, in the Rechtsstaat that they have cultivated along with economic prosperity. Living by the law, and seeking justice within the law, redeems the humanistic side of German culture. It has suppressed the romantic will to break all restraints for the sake of glory in power.
The Germans, too, have a civil code that has united them, since 1900, through the transitions from Bismarck, to Weimar, to the Third Reich, to the present. Yet, under the National Socialists, the code, which contains the provisions on family law, became tainted with notions of racial purity. Jews and Aryans could not marry. Of course, this stain disappeared in the postwar reform, but the memory remains of a corrupted civil code. Not surprisingly, then, Germans have sought redemption by promoting both a new constitution, enacted in 1949, and the rule of law in a united Europe. More than any country seeking redemption under law, the Germans identified their new constitution, the Grundgesetz, as the focal point of state authority. The sanctity of the constitution—and not the personal head of state—became the interest protected under the reformed law of treason. When West Germans felt their infant postwar republic endangered by Communist subversion, they appointed an agency to protect the integrity of the government. The announced aim of the agency was to protect the constitution (Verfassungsschutz).
The preamble of this charter, called the Basic Law (Grundgesetz), repeatedly reminds Germans of the imperative to atone for the sins of the past:
Conscious of its responsibility before God and humanity, possessed of the will to serve the peace of the world as an equal member of a United Europe, the German nation [Volk] commits itself, by virtue of its inherent constitution-making authority, to the following Basic Law.6
No other constitution, so far as I know, stresses its sense of “responsibility” and declares as one of its primary purposes “to serve the peace of the world.” These gestures recall the descent of the German nation into the evils of aggressive war and crimes against humanity.
The first article of the Basic Law invokes the humanistic Kantian underpinnings of German culture: “Human dignity is inviolable. All state power is obligated to protect it and respect it.” This provision provides the backdrop for interpreting all the basic rights guaranteed under the constitution. The protection of human dignity is the fundamental value suffusing the entire legal order. The highest virtue of the postwar German constitutional order, then, was precisely the greatest casualty of the Nazi regime. The path to redemption lay in reclaiming the liberal and humanistic values most systematically violated in their darkest hour. The point is carried forward in the second article: “Everyone has the right to flourishing of his or her personality. . . . Everyone has the right to life.”
These are provisions that enabled Germans to redefine their identities. They would no longer be the people devoted to the Volk above all. They would become the nation of human dignity that served the cause of human flourishing and the sanctity of human life. For the postwar Germans, then, the law, and particularly the Basic Law became the means for suppressing evil impulses and returning to the promises of an earlier national self. This is what redemption means in a secular legal world.
The redemptive impulse leads national courts to place an emphasis on values that resonate against past sins. The German Constitutional Court has made a number of controversial decisions that make sense primarily as efforts to resolve the burden of memory. The court decided to uphold a law abolishing the twenty-year statute of limitations for concentration camp murders.7 It invoked the constitutional “right to life” to strike down a liberal abortion law that permitted abortion on demand in the first trimester.8 And, more recently, the court rejected an East German statutory justification for border guards who shot at their own citizens trying to flee the country for the West.9 All of these decisions brought to the fore fundamental values of protecting life and punishing those with contempt for life. Yet, the particular German emphasis on these values would probably not appeal in the same measure to other European courts.
The Germans themselves have coined a unique, hard-to-translate phrase to describe the controversies that have driven their system of justice for the last fifty years. They call it Bewältigung der Vergangenheit—“overcoming” or “coming to grips with” the past. Settling accounts with the past provides a critical perspective on the process of redemption from evil. We cannot avoid the past, for we are all prisoners of it. In real life, we cannot reenact the forty years of wandering in the desert that the Hebrews had to endure before they could shake off their ingrained ways and a new generation could seek redemption under the law. In the world of practical politics, we must act now, and criminal punishment often provides the mechanism for distancing ourselves from the past so that we can start anew.
Civil War as the Path
to Redemption
As France and Germany had their experiences of seeking redemption after reigns of terror, Americans, too, indulged in the mammoth bloodletting on the killing fields of the Civil War. When Lincoln sought to resupply Fort Sumter in Charleston harbor, and General Beauregard chose in response to fire on the federal fort, the long-simmering feud between North and South bled into brothers’ killing each other at close range. They fired their canons on Fort Sumter, they fixed their bayonets at Little Round Top, they lobbed shells onto Vicksburg until troops could seize the forts reigning over the Mississippi, they burned down Atlanta, and under William Tecumseh Sherman they scorched the earth on their march to the sea. The blue and the gray fell everywhere. And they were not sure why. They only had abstract ideas in their heads—some died for the Union, others for their separate nation. Over six hundred thousand lives stained the ground, more than all the former and subsequent American wars put together.
Having barely won reelection midway in this slaughter, Abraham Lincoln could only say of the reign of terror, “Woe unto the world because of offences!” We had descended into the bloodiest war of our history without clear purposes or any understanding of how it might end. “For it must needs be that offences come; but woe to that man by whom the offence cometh!” The self-inflicted pogrom is seen as a “woe” and a “scourge” inflicted for the terrible “offence” of slavery. Lincoln’s second inaugural address prayed for redemption. The nation had bled its sins onto its own soil and craved a rebirth of American civilization.
The survivors turned to law. One year into the war, after a string of Union defeats, Lincoln learned that the old Union could not possibly survive. “A new one had to be embraced.”10 And the new Union would have to be based on a new constitutional order. A nation of free Americans, including emancipated slaves, would bear responsibility for rebuilding the United States on the basis of a constitution acceptable to all. Formally speaking, the original charter of 1787 would remain in place, but it would be so radically transformed that it would stand to the ancien United States as the Code civil related to the French feudal order or, as any redeemed legal culture compares to the brutality and chaos that precedes it.
The American hope for a new beginning lay in the Reconstruction Amendments—the Thirteenth, Fourteenth, and Fifteenth—all enacted in quest of a new definition of freedom and equality under the law. The first clause of the Fourteenth Amendment specified who would be a member of the new polity: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. . . .” With a single stroke the new constitution erased the effects of one of the worst blemishes in American constitutional history—the Dred Scott decision of 1857, which held that persons of African descent could never become citizens of the United States. In the new United States, there would be no discrimination based on blood. The only question that mattered was whether you were born within the polity and whether you were therefore likely to come to maturity with the language and consciousness of American culture.
With just boundaries of the new nation-state properly defined, the highest order of business was to define the basic rights of its citizens. The structure of these rights follows the pattern established in the Declaration of Independence: life, liberty, and the pursuit of happiness. Yet, there was a new recognition that the inalienable rights of all Americans were now to be realized not in the state of nature but under the rule of law. The naturalistic “pursuit of happiness,” celebrated in the Declaration, gives way to the quintessential creature of the law’s definition—property. Yet, the basic rights of life, liberty, and property are inalienable without being absolute. The ideal must be adapted to the practical demands of competing claims. The legal system would have to decide when individuals could fairly be deprived of liberty or property or even of life; thus, the coining of the famous and influential clause of the American Constitution, namely that no “State [shall] deprive any person of life, liberty, or Property, without due Process of law.” The law would define the content and the limits of the inalienable rights celebrated in the Declaration of Independence.
Also, for the first time, the law would define duties incumbent on the states. The individual state governments must not only guarantee due process for all persons within their jurisdiction, they must also secure “the equal protection of the laws” for all to whom their power extends. True, the original Constitution places some limits on the legislative competence of the states. They must defer to the supremacy of federal law and recognize the privileges and immunities of the citizens of all other states.11 And there were specific restrictions: They could not enact bills of attainder, ex-post facto laws, or any “law impairing the obligation of contracts.”12 In the postbellum constitutional order, however, the states acquired a pervasive duty to treat their residents—those subject to their jurisdiction—decently.
This was a revolutionary change. The states were no longer the autonomous sovereigns that they thought they were when they claimed the right of secession. They were now, in fact, servants of their people. Governments existed to guarantee due process and equal justice for all. The local law was no longer simply a creature of the states. The states themselves were enmeshed in the law and subordinate to it.
In addition to embedding the states in the rule of law, the new constitutional order embarked on an affirmative program to ensure equality among those citizens subject to the jurisdiction of the United States. The heart of the new consensus is that the federal government, victorious in warfare, must continue its aggressive intervention in the lives of its citizens. It must protect the weak against the risk that they would slip into states of subordination resembling the past from which they sought to escape. According to the Thirteenth Amendment, there could never again be relationships of slavery or involuntary servitude in the United States. The federal government would have to be ever watchful to insure that this kind of slippage would never occur in the private relationships among citizens. Furthermore, under the “equal protection clause,” the states must recognize and promote the equality of those subject to their jurisdiction. To round out the commitment to equality, according to the Fifteenth Amendment ratified in 1870, the states could no longer deny voting rights to citizens on the grounds of their race, color, or previous condition of servitude.
These objectives and guarantees are insufficient in themselves to create a constitution, a framework of government. One needs, in addition, a definition of legislative empowerment that would enable the federal government to realize its commitments. This definition is laid down in all three of the postbellum amendments. All three grant the power to Congress to enforce the basic framework “with appropriate legislation.” True, the new Congress takes as a given many of the provisions of the original Constitution. The new order inherits an operating Congress, Executive, and Judiciary. They would be recast in new functions, but the forms remained the same.
The argument, then, is that the three Reconstruction Amendments enacted a second American constitution. The terms of this constitution, as culled from the amendments—with some rearrangement and leaving out historically specific clauses—can be stated in a few words:
The Second American Constitution
§1. 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.
§2. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
§3. No State shall deprive any person of life, liberty, or property, without due process of law.
§4. No State shall deny to any person within its jurisdiction the equal protection of the laws.
§5. 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.
§6. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
§7. The Congress shall have power to enforce the foregoing provisions by appropriate legislation.
These seven propositions summarize the enduring content of the Reconstruction Amendments.13 The key provisions of these amendments define political membership, articulate basic rights, and provide an ambit of legislative competence. So reformed, the American system of government would be able to protect individual rights as well as promote the equality of all persons who survived the war. Of course, we must assume a set of institutions—a Congress, an Executive, and a Judiciary—that will continue to function according to the terms of their initial creation.
Still, there is something missing in this filtering off of the three Reconstruction Amendments and calling them a separate constitution. The missing factor is the consciousness of setting forth a new framework of government, a structure based on values fundamentally different from those that went before. To find that consciousness, we need to turn, I wish to argue, to the critical message of the Civil War, the address that would generate a new normative world in which to make sense of the epic war that consumed America from the firing on Fort Sumter to the surrender at Appomattox. The new Nomos, the new framework of values that necessitated a new constitution, comes forth in one of the great prayers of the American civil religion, the Gettysburg Address. It is worth recalling some of the enduring phrases of this civil prayer, the incantations that reverberated in American consciousness:
Four score and seven years ago our fathers brought forth on this continent a new nation. . . .
[This nation was] conceived in liberty and dedicated to the proposition that all men are created equal.
From these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion.
We resolve that these dead shall not have died in vain, that this nation, under God, shall have a new birth of freedom. . . .
Government of the people, by the people, for the people shall not perish from the earth.
In the ensuing chapters, we will look at these words and the entire address in greater detail. For now, I wish to make the unusual claim that these revered words serve as the preamble for the constitutional order that emerged from the unification of the nation. They are a preamble in much the same sense that the language beginning “Conscious of our responsibility before God and humanity” provides the organizing principle of the new German constitution or the following words echo in memory as the convening of the Philadelphia Constitution:
We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Constitutional preambles speak in prophecy. They set forth a vision of the future—for the broad purposes of the national charter that they introduce. And, most important, they define who the people are who share in the constitutional vision. The original preamble in the Philadelphia version stressed the position of “We the People” as the enactors of the Constitution. For Lincoln, the body politic expressing itself in the new constitution included the prior generations who “four score and seven years ago” adopted, with great courage, that proposition of equality that gave birth to the American nation. Those represented in the new order included the dead at Gettysburg and at all the battlefields of the war who, if the new order is realized, “shall not have died in vain.” And, furthermore, because he avoided all partisan references in his address, he clearly meant to articulate a conception of the nation that included the South as well as the North, black as well as white. Ultimately, the beneficiaries of the new order would be the future generations of the nation, those who would flourish under “a new birth of freedom.”
To say that the Gettysburg Address provides the preamble to a new constitutional order is, to say the least, a bold claim. When Lincoln took the train up to Gettysburg in November 1863, he had in mind only to comfort the mourners of those who died in the fierce four-day battle in early July. The bodies were being pulled together from the battlefield and spared further decay. The soil was turned and the dead laid to rest. The battle had turned the tide of the war—just barely, mind you—and it was time that the president began to articulate the meaning of the long suffering that culminated in the gruesome hand-to-hand fighting in the Gettysburg fields.
At the ceremony dedicating the Gettysburg cemetery, Lincoln was designated the second speaker. The renowned orator Edward Everett spoke for two hours before the president mounted the podium. He had a written text with him that amounted to about 268 words.14 Perhaps Everett prepared the audience to absorb the poignancy of Lincoln’s message. Perhaps the very brevity of Lincoln’s words lent them additional power. The impact of the address was felt not only by the mourners gathered at the new cemetery but by an entire country yearning for a sense of meaning in the bloodshed.
True, the Gettysburg Address was not legally binding, but preambles are never meant to have the status of positive law. They are designed to explain why it is necessary for the government to bind itself to certain objectives. Lincoln’s preamble, accepted in the hearts of the nation, explains the meaning of the war and provides a guide to the building of a constitutional order based on nationhood, equality, and democracy. The setting of clear goals in inspiring language—this is all one can expect of a constitutional preamble.
This constitutional order stands in radical contrast to the Constitution drafted in Philadelphia and amended by the Bill of Rights in 1791. It defines membership in the American nation, it brings the principle of equality to the fore, and it initiates the process of extending the franchise to virtually all adult citizens. The original Constitution did none of these things. It slighted the problems of nationality and citizenship, it sidestepped the problem of equality, and it minimized the significance of popular democracy.
The Irrelevance of
Original Intent
At the outset, I should be clear about the claims I am not making and the methods I am not using. Above all, I am not making an argument about the “original intent” that lay behind the Reconstruction Amendments. Nothing strikes me as intellectually and morally more impoverished than the current trend in constitutional scholarship to believe that the wishes, desires, and intentions of the founders should determine the content of our Constitution. There are two major hurdles that the advocates of this method have never negotiated. First, we need an argument about whose wishes, desires, and intentions really matter. If we think we are bound by a certain take on the world that prevailed in 1787, 1791, or 1868, then we should decide whose sentiments matter. Should we look to the people who wrote the document, to the majority who voted for it, to the states who ratified it, or to the “people” as a whole for whom these various democratic agents acted? Among all these possible sources of “original intent,” there was intense conflict. I would imagine that even those who actually voted for and against various drafts suffered from doubt and changing sentiments. But even if each person voting had a concrete intention to support every sentence he or she endorsed, there is no coherent way of finding a common denominator among their divergent positions. A single intent cannot unify the inevitable cacophony of desires that stand behind every piece of legislation. But let us suppose there was a single intent of the group. We then encounter a more basic question: Why should we care what the founders actually thought?
The best political theory to support the relevance of original intent would be to think of the lawgiver as something like a military commander.15 The commander wants us to do something, and has used the language of the law to move us toward action. We should try to figure out what these purposes are and execute them. And if we don’t? Well, the commander cannot really punish us, but somehow we would be breaking faith with the framers if we don’t act with the appropriate subservience or at least act as though we were submissive to the original intent of the founders. This, I regret to say, is the best reconstruction I can offer for a view that never seems to get articulated; namely, why we should pay so much attention to the wishes and desires of the agents who bequeathed to us the words we live by.
In great historical moments of law making as well as literature, writers choose words that resonate far beyond their original context. When the representatives of the colonies “pledged their sacred honor” in July 1776 to a document that included the words “All men are created equal,” they may merely have intended to stress the equality of all “collective” peoples: the new Americans had as much right to choose their form of government as did the British. They also could have had the limited purpose of arguing that they were of the same moral status as King George III. If all men are created equal, then no one of them can claim to be anointed as ruler by divine right. The only source of legitimacy, as the Declaration argues, is the “consent of the governed.” Whatever their intentions as individuals or as a group may have been, their words had lasting significance. They bequeathed a great maxim to the American people—a maxim that would in due course serve as the battle cry of emancipation.
When the drafters and ratifiers of the Fourteenth Amendment adopted a commitment to equality under the law, they did not think particularly about whether they wanted to bring about integrated schools. Yet, a vast literature has grown up around the question of whether the “original intent” of the Fourteenth Amendment was to integrate the schools—an event that the Court did not mandate until 1954 in Brown v Board of Education.16 The dispute seems to be entirely irrelevant.17 The complex body of national and state legislators who drafted, passed, and ratified the Fourteenth Amendment did not think about a single system of education for blacks and whites. There were too many other issues on their minds. We cannot attribute to them an intention to have all Americans study together in the same classroom, nor can we burden their memory with a commitment to keep black and white forever apart.
Those who frame constitutions and constitutional amendments obviously have some purpose in mind, but the purposes are typically abstract. If they want to bring about equality among all Americans, they do not want to be bothered with working out precisely what equality means at each stage of historical evolution. If you had asked them whether, ninety years later, the schools should be desegregated, they would have been nonplussed by the question. “Well, that is the reason we have courts,” would have been the typical reply. The Fourteenth Amendment established an ideal, it affirmed an idea that has roots in the Declaration of Independence. The drafters implicitly endorsed the principle that all men are created equal and because they are created equal, they are entitled to equal treatment before the law. What this language should mean in practice was not their concern. Together with scholars who reflect on the ideas behind the law, the courts assume responsibility for the proper interpretation of the language that constitutes a shared heritage of government principles.
I never cease to be amazed that legal scholars, particularly in the United States, continue to be confused about the relevance of the framers’ original intent. Secular legal systems could not possibly be more demanding, more deferential to authority, than religious cultures that believe that their binding legal principles were declared by God. Yet, a story from the Talmud beautifully illustrates the folly of invoking original intent in a dispute about the meaning of God’s commandments. A group of rabbis were engaged in a debate about whether a particular earthenware oven was kosher or not. One of them, Rabbi Eliezer, said no; the other rabbis said yes. Rabbi Eliezer proceeded to invoke a variety of fantastic signs to support his view: at his command, a carob tree was uprooted and flew across the field, a stream flowed upstream, and the walls started to collapse before they were halted. The rabbis were not impressed by these signs. Then Rabbi Eliezer, desperate and alone, invoked the argument of original intent: “If I am right, let heaven be the proof.” A heavenly voice then proclaimed: “How dare you oppose Rabbi Eliezer, whose views are everywhere the law.” Rabbi Joshua arose and quoted Deuteronomy: “It is not in Heaven.” Rabbi Jeremiah explained the reference: Ever since the Torah was given at Mount Sinai, “we pay no attention to heavenly voices, for God already wrote in the Torah at Mount Sinai.”18 The point is that once the language is released and given to jurists to fashion to the needs of their time, the task of lawgivers is finished. Their intentions and desires cannot rule—either from the grave or from heaven.
The intention of those who framed the Reconstruction Amendments should, therefore, not control their interpretation today. But what about the intention of Abraham Lincoln, when he mounted the podium on November 19, 1863? There are some who will say that if Lincoln did not intend specifically to articulate the preamble to a new constitution, then the words spoken at Gettysburg could not possibly be, as I claim, the preamble to the postbellum constitution. If Roosevelt did not intend to amend the Constitution with his court-packing plan, then the resulting changes in Supreme Court attitudes could not constitute a de facto amendment, a radical transformation of American law.
Here we take a page from British constitutional history to understand how a practice can be become part of the accumulated historical constitution without this being the purpose of those who initiated the practice. The British Constitution remains, as is well known, famously unwritten. Customary rules determine the role of the Crown in a system that has evolved as a constitutional monarchy. Only the accepted practice of generations prescribes that the queen must sign legislation for it to be binding as law or that the queen may intervene, under certain circumstances, to break a party deadlock and select a nominee for prime minister.19 In all systems of customary law, the relevant perspective is not that of those who first engage in the practice but rather of those who witness the pattern of the past and adopt it as binding on themselves. So it is with the Gettysburg Address. The right question is not what Lincoln intended, but rather what the words meant to those who looked to them as the explanation of the war and as a charter for freedom and equality for all Americans. If the address had been ignored, it would not have mattered what Lincoln intended. But because these 268 words20 were adopted into the civil religion of the United States—the secular meditation on who we were and what we were about—their life after formal recitation by the president determines their constitutional status. They are the preamble to the constitutional order because we came to understand them as nearly sacred. And although we did not until now think of this secular prayer as the preamble to a new order of nationhood, equality, and democracy, that is what they became.
These words are, in fact, better known in the United States than the preamble to the first Constitution. Schoolchildren routinely recite them and thereby imbibe the intuition that these words defined America after the Civil War. Yet, because we know these resonant phrases, we rarely stop to listen and ponder the meaning of each well-crafted line. Let us now put ourselves among the crowd of mourners at Gettysburg. Let us transport ourselves back into the frame of mind of those suffering losses, those looking for the meaning of brothers slaughtering brothers.
Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great Civil War, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But in a larger sense, we cannot dedicate—we cannot consecrate—we cannot hallow this ground. The brave men, living and dead, who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain, that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.
