Our Consolation must be this, my dear, that Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.
–John Adams
Regarding the siege of Boston; Letter to Abigail Adams – Philadelphia [July 7th, 1775]

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing by every device the public debt on the principle of its being a public blessing.
–Thomas Jefferson
Letter to Elbridge Gerry (statesman and diplomat) [1799]

Democracy is messy business because humans are messy. We hear continued lamentations over how antiquated our Constitution is (although it was good enough to rise up the most powerful and prosperous nation in history) and how dysfunctional our Congress is, yet somehow we continue to govern ourselves in freedom and respect for the law. We have seen compromise win out time and again over the past ten years, in this time of supposed hyper-partisanship and “extremists” of each Party acting as terrorists (Biden’s words, not mine). The debt ceiling / deficit reduction compromise is the latest case in point. It is by no means perfect, but no compromise is. No one likes it, because every side had to give up something they desperately believe in. And it is only the first step in a very painful and protracted journey to get our financial house in order. But none of this changes the fact that our Constitution and, even if somewhat belatedly, Congress works as designed (or amended – see the Seventeenth Amendment).

If the federal government’s spending spree of the past ten years (and, truth be told, of the past fifty) proves anything about our Constitution, it’s not how antiquated it is. The lesson to be drawn, to those with eyes to see past their own petty paradigms and presumptions, is just how right the Founding Fathers were and how relevant their counsel still is. The Constitution in Article 1, Section 8 lays out the parameters of federal power, and the specifics were limited in their application to the whole (through the general welfare clause) so that Congressmen could not play favoritism. It is our excursions beyond the bounds of the Constitution that have gotten us into financial trouble:

• Social Security
• Medicare / Medicaid / Universal health care
• The Department of Education / No Child Left Behind
• The Department of Energy

These behemoth social welfare programs have squeezed our spending for the business the federal government should be about according to the Constitution:

• Defense
• Regulation of interstate commerce
• International affairs
• Scientific exploration
• The Post Office (and, by extension of the principle, building out and supporting the interstate infrastructure)

We have strayed from the Constitution’s bounds, but it still provides the governing superstructure for us to successfully resolve our differences in a peaceful way. The fact that our political process has become more slow and more prone to gridlock is indicative only of the many different areas of governance that Congress has stuck its nose in over the years that cannot be managed on such a large level. Regulation, the police power, health care, education – these are matters for the states because these are the things people are most passionate about. These are the things that impact their lives most day-to-day and the need for decision-makers to be close to the people is real. Also, these are areas where people with different worldviews (metanarratives) most violently disagree, so providing options among states is important. If people don’t like what one state is doing, they can fairly easily move to other states. It is easier to gain consensus and move into action at the state level. The machinery is more nimble and smaller scale.

The scale of the federal government is needed on matters of collective, continental interest.

Despite apocalyptic reports of the media, I see shoots if the next wave of bipartisan compromise taking root and growing. Those who have hysterically been wringing their hands over partisan gridlock over the past X number of years either do not understand how Congress works or are so impatient for results and action in the short-term that they are blinded to the realities of the nature negotiation and compromise – it takes time. Sometimes years and more than one attempt.

The country has real and growing problems to contend with at the federal level. Tough problems to solve because real people will be impacted by the decisions. But something must be done or the entire country will be compromised. So people keep trying. Witness: Just in the past week, we have seem bipartisan statements in the areas of immigration and the federal deficit.

• Immigration: the Utah Compact
• The federal deficit commission reported, and 11 member, a majority, approved its plan.

While there these are only the opening for negotiations on these two topics, these are important first steps that will start a process that is older than Washington itself. We need to remember this fact as the emotional roller coaster over these two issues threatens to overwhelm all objective sanity.

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of how projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

The Balkinization blog held a symposium the past week on Bruce Ackerman’s new book, The Decline and Fall of the American Republic. Stephen Gardbaum wrote one of the reflections on Ackerman’s book, and he also provides a nice recap for the uninitiated:

Bruce Ackerman’s The Decline and Fall of the American Republic is a profoundly important constitutional wake-up call. It presents a powerful, multi-layered, yet highly accessible argument that the body politic faces the serious and unprecedented structural risk of presidential extremism and lawlessness — and a series of new checks and balances that offer the rare combination of pragmatism and originality.

I have not read Ackerman’s book yet, so I cannot comment on it (I will remedy that oversight soon). However, I would like to comment on Gardaum’s essay, Empire Rises. Gardaum agrees with Ackerman’s assertion that the presidency has turned out to be the branch that has proven the most dangerous to republican government, but, unlike Ackerman, he does not want to let the Framers off the hook. He contends that the Framers had all the evidence they needed to draw the right lessons. They simply decided to institute a strong executive:

I think the Framers’ error went beyond this wrong guess to the governmental structure that they established. This structure was inherently and latently flawed at the outset in the way that has come to pass, not precisely of course but generally – and the knowledge to have avoided this was available to them at the time. For the republican revolution that they wrought was not entirely without precedent. The first took place in 510 B.C. when Rome expelled its last king and established the republic. The new republican constitution split both the executive and legislative branches of government into two or more. It replaced the king with two magistrates, the consuls, who were jointly endowed with full executive power, and separated/divided legislative power among several citizen assemblies. The Roman Republic, which became a superpower along the way, lasted for just under five hundred years before it fell when a concentration of power in just one person – Augustus – effectively returned the state to a monarchy under the Empire. In deliberately rejecting the plural executive of the Roman Republic, a far larger version of which was tried and failed during the Articles of Confederation, the Framers hewed too closely to the monarchical structure of government they were nominally rejecting. They effectively replaced the king with a president, and the distinctive British conception of separation of powers between King and Parliament with the analogous one between President and Congress. Hamilton’s Federalist 69 on the differences between the powers of King George and (likely) President George – including an absolute versus a qualified veto of legislation – is arresting in its strained, almost scholastic reasoning and “methinks he protests too much” quality.

I think modern technology, the Party system, and the nature of modern warfare have enabled the presidency to become much more powerful than even Hamilton could have imagined, but the seeds of the imperial presidency were enabled by the Constitution. I have often wondered at the vast number of similarities between the American presidency and the British constitutional monarchy of the eighteenth century. If this analogy is truly the root of the Framers’ conception of the presidency, then the implications for American constitutional principles are vast, e.g., the congressional power to “declare war” truly is only a legislative function and the authority — indeed, the expectation — to wage war rests with the executive. In seventeenth-century Britain, the legislative check on war-making was the power of the purse.

To provide true legislative oversight of the executive, the parliamentary system might, in some delicious irony, be the most effective structure. Without its separation of powers, parliamentary government provides the legislature the ultimate structural control of the executive: the Government comes from and answers to the majority of Parliament.

“We could say [the government is] spending like drunken sailors. But then that would be unfair to drunken sailors. Sailors are out spending their own money.”
–President Ronald Reagan

The Fourth Amendment, in many respects, is the closest thing to a right to privacy that can be found in our federal Constitution. This Amendment has become the bulwark of personal security and liberty in our country, even as we struggle to understand the limits our security should place on our liberty and the imposition that technology places on both. But in Chapter 4 of his book The Bill of Rights, Akhil Reed Amar argues that the Founders were not primarily building an individual right to security and privacy in the Fourth Amendment, rather they were providing another tool for civil juries to keep oligarchical and repressive governments in check.

Let’s walk through Amar’s development of his argument because, even if we do not wish to adopt the Founders’ interpretation of the Fourth Amendment — after all, there is a place for a right to privacy in our constitutional structure — there are principles the Founders’ view of the Fourth Amendment have to teach us.

The Fourth Amendment reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The use of the word “people” in this Amendment rings with echoes of the context of the other Amendments employing this word — the First, Second, Ninth, and Tenth Amendments. This is the clarion call to the sovereignty of “We, the People of the United States.” Amar imagines what the Amendment might mean for us if we take this popular sovereignty perspective alone in its interpretation:

On one reading, the amendment’s language of “the people” could be read as reminding us that we must be especially watchful of government efforts to use search-and-siezure powers to interfere with people’s political activities — circulating petitions (literally the people’s papers), attending political meetings (with the literal persons), assembling in a constitutional convention (which might be seen as a house of the people), and so on. But without more, this reading seems a bit too cute; surely, the main “houses” to be protected here are private abodes, not public assemblies.

Amar argues that the 1763 English case Wilkes v. Wood must have served as an influence for Madison:

Wood involved a famous cast of characters — both the target of the government, John Wilkes, and the author of the opinion, Lord Chief Charles Pratt (soon to become Lord Camden), became folk heroes in the colonies…. Wilkes, a champion of the people and a member of Commons, had used the press to communicate with his constituents and criticize George III’s ministry and majesty. When the government reacted by trying to use general warrants to suppress his political activity, breaking into his house and rummaging through his personal papers, Wilkes brought suit in Wood and successfully challenged the legality of those warrants. Wilkes also brought suit to challenge the “seizure” of his “person.” (The government had imprisoned him in the Tower of London.) In a companion case to Wood, the lord chief justice ordered Wilkes released on habeas corpus on the ground of his Parliamentary privilege from arrest.

Madison quickly turns from the “political to the personal, from the ‘the people’ out-of-doors in conventions and suchlike to “persons” very much indoors in their private homes.”

Yet even here, in taking the familiar talk of individual rights, we must be wary of anachronism and must not automatically assume that the right was essentially countermajoritarian. As with virtually every Bill of Rights provision thus far examined, the Fourth Amendment evinces at least as much concern with the agency problem of protecting the people generally from self-interested government policy as with protesting minorities against majorities of fellow citizens. A self-dealing and oligarchic government, after all, could threaten rights of the people collectively by singling out certain persons — opposition leaders like John Wilkes, for example — for special abuse. To counter this and other threats, the Fourth and Seventh Amendments armed civil juries, drawn from “the people,” with special weapons to protect both individual persons and the collective people against a possibly unrepresentative and self-serving officialdom.

Reflect, for a moment, on the fact that the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probably cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures — with various exceptions, such as exigent circumstances — as per se unreasonable. Otherwise, the Court has reasoned, the requirement that a neutral magistrate verify probable cause ex ante would be obviously frustrated — the special safeguards of the warrant clause would be all but meaningless.

But this conflation of the warrant clause with the probable cause clause is not what the amendment says and effectively rewrites the amendment by adding a second sentence: “Absent special circumstances, no search or seizure shall occur without a warrant.”

Amar invites us to rethink our assumptions:

To begin rethinking, consider the paradigmatic way in which Fourth Amendment rights were to be enforced at the Founding. Virtually any search or seizure by a federal officer would involve a physical trespass under common-law principles. An aggrieved target could use the common law of trespass to bring suit for damages against the official — just as Wilkes brought a trespass action against Wood. If the search or seizure were deemed lawful in court, the defendant would prevail; but if, as in Wood, the search were found lawful, the defendant government official would be held strictly liable. There was no such thing as “good faith” immunity.

The problem with the Supreme Court’s modern approach is that the proper role of the jury is displaced, and the role of citizens to act as a check on the professional judiciary and powerful magistrates has been hijacked. General warrants are too, well, general, and the ability of juries to review facts and determine appropriate awards and damages for cases in which they deem rights were violated is compromised. As in our loss of understanding of the militia, the modern jury is a sad shadow of its former energetic self and fundamental structural principles of the original Constitution have been lost.

For hundreds of years, human society has ordered itself around the institution of marriage. Men provided safety, security and sustenance for women, women ordered the household so that men could work out in the community, and the home the man and woman built provided the place for children to be raised in accordance with the expectations and standards of the community. Marriage has not been first and foremost about the happiness of the spouses. That has been a byproduct of a husband and wife reaching for their better selves and working together to become more than the sum of their parts, but the primary purpose has been one of social order and securing the propagation of society.

This all started to change in the twentieth century when women in Europe and the United States went into the workforce and changed the balance and characteristic of the home. Then with the advent of birth control and the Supreme Court decisions of the 1960s that institutionalized the right to privacy in the U.S., the link between marriage and the propagation of society was irreparably broken. Marriage was no longer necessarily about social order. The individual happiness of the people in the marriage was the first order concern of the institution. No-fault divorces became the laws of the land in the states, and everyone accepted the new conventional wisdom without much thought as to the ultimate logical conclusion.

So we should not really be surprised that the definition of marriage has been increasingly challenged over the past twenty years, now to the point where it is a question of equality under the Constitution. Of course it has nothing to do with equality because everyone is perfectly free to marry anyone of the opposite sex. Yet the question remains – if marriage is first and foremost about the happiness of the individual and no longer the primary concern of society, then what right does society have to restrict who can and cannot be married? And there you have it – the competing values that are at play in contemporary debates over the definition of marriage.

Those who defend the traditional understanding of marriage between one man and one woman see marriage still as the fundamental bedrock and foundation of society. Social order is protected by marriage, so society has an obvious interest in ensuring its health. Nevertheless, proponents of traditional marriage lost the debate before it really started. Once the link between marriage and propagation was severed in our minds, the primary reason for marriage to serve as a societal institution was lost.

Those who advocate for the expansion of marriage for same sex couples see the purpose of marriage as serving the personal interests and happiness of the parties of the marriage. It is a contract that can be entered and exited when it no longer suits the needs or interests of one of the spouses. Society has no business getting involved; the government should “stay out of the bedroom,” etc. Nevertheless, proponents of expanding the definition of marriage, along with all the rest of us, have lost the sense in which society is vested in the health of marriage. The future of humanity is bound up in the institution of marriage, and that fact can’t be changed, no matter how hard we try to ignore it.

The currents of history feel like expanding the definition of marriage is inevitable, but even is that plays out, society needs to simultaneously find a way to reunite marriage with childbearing and childrearing. Children with two loving parents who are plugged in and responsible are the best cure to inner city crime and gang activity, suburbian drug abuse, and substandard education across the board.

In any case, our fundamental misstep in this debate as a people was to allow the discussion to become federalized. Marriage and family have been regulated by the states since the inception of the Republic, and the federal Constitution delegates no authority to the federal government in the area of marriage. Allowing each state to decide for itself how to order and structure marriage would prevent the mistakes we have made with abortion — politicizing the issue, removing any room for democracy to drive debate and compromise, and smothering presidential elections with social issues that should not be the concern or purview of the U.S. president.

Are we so afraid of losing control that we can’t trust each other to come to the right answers? Is the constant, unending struggle for the political machinery in order to dictate and impose our own beliefs the only resolution to the question? God save us from ourselves if it is. The Founders, once again, knew better.

—
REFERENCES: the following are write-ups that analyze this issue from religious angles:

• Sinful?
• An Argument for Discrimination

The Military Amendments

In considering the constitutional state of war powers a few years back, I worried that “executive excesses would probably be tied to [the president using the military domestically], as might be the case if a President sought dictatorial powers through the imposition of martial law.” At the time, I was not prepared to offer a structural solution to prevent such a calamity, and for good reason. Smarter people than I have pondered this problem before me, including the Founding Fathers.

Their solution to the question was in the way they structured the Union’s military system. A standing, professional army as a dangerous concept to the Founding generation, having just fought the Revolutionary War to throw off the oppresive yoke of the British. Alexander Hamilton notes the danger in The Federalist 28:

[I]f the persons instrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which [the nation] consists, having no distinct government each, can take no regular measures for defense. The citizens must rush tomultuously to arms, without concert, without system, without resource….

The answer for the Founders was to be found in federalism, and the militia under the command and control of the state governments. Jon Roland helpfully reviews the original constitutional meaning of “militia”, which is important when considering that the Constitution in Article 1, section 8, clause 16 gives states the power of “Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

Amar expands this thought on page 50 of his book The Bill of Rights:

in the event of central tyrrany, state governments could do precisely what colonial governments had done at Lexington and Concord and Bunker Hill: organize and mobilize their citizens into an effective fighting force capable of besting even a large standing army.

Amar quotes Madison in The Federalist 46, which is worth repeating here to drive home the point of just how much the Founders were counting on the local militia:

[T]he State governments with the people on their side would be able to repel the danger…. [A standing army] would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.

The standing, professional army of the eighteenth century was often a hoarde of foreign mercenaries that had no allegiance or fealty to the people in the local countryside where they were ordered to fight. The very structure of the militia meant that it was composed of family members and neighbors who lived and worked together. Already tightly knit and bound to return to life together after war, the militia was bound together by trust and need, so picking their own leaders among them helped tighten their cohesion.

Yet this federalism check on military adventurism by the central government did not quell the objections of the Anti-Federalists. Many pointed out that Congress still had power “to provide for organizing, arming, and disciplining, the Militia.” The Second Amendment was designed to limit congressional manipulation of the militia and leave them available to arming by the State governments.

While the meaning of militia has morphed over 200 years, the core concepts of the Second Amendment are still applicable: the militia was composed of all the people capable of bearing arms, so “the people”, subjects of the federalism-based rights of the First Amendment, are also the subjects of the Second Amendment. And, as Amar argues, the “well-regulated” can’t mean the power to disarm, as this was the very power it sought to keep away from Congress. Localism was the very heart of the militia system and for that reason, along with the experiences of the ratifiers of the Fourteenth Amendment that relied on standing armies to preserve the Union against the tyranny and abuses of localities and states (ironically the opposite experience of the Founders), there is good reason to incorporate the Second Amendment against the states.

As an aside, Amar also argues that the conscription is unconstitutional because Congress circumvents the power of the State governments to appoint the officers of the militia and training the militia. “Under this reading, the federal government cannot directly flrst ordinary citizens into it’s army, but state governments can conscript, organize, and train their respective citizens — the militia — who can in times of emergency be called into national service.” (p 53)

The Third Amendment also acts to support civilian values against an overbearing military, working to subordinate the military to the civil power. Amar writes:

No standing army in peacetime can be allowed to dominate civilian society, either openly or by subtle intimidation. The Second Amendment’s militia could thwart any open military usurpation – say, a siege – but what about more insidious forms of military occupation, featuring federal soldiers cowing civilians by psychological guerilla warfare, day by day, house by house? Bostonians who had lived under the hated Quartering Act of 1774 knew that this was no hypothetical. Hence the Third Amendment was needed to deal with military threats too subtle and stealthy for the Second’s “well-regulated Militia.” (p. 59)

Modern jurisprudence has a tendency to use the Third Amendment to construct rights of privacy for the individual, but the original context of the Third Amendment placed further limits on Congress’ conscription power and further enforced separation of powers between the legislative and the executive. Congress’ conscription power was restricted because if civilians could not be impressed upon to limited service as Innkeepers and cooks for soldiers, then what sense does it make that civilians can be pressed into full military service? Separation of powers were further defined because it took Congress, not the executive, “in a manner prescribed by law” to conscript a person’s house.

So we see that the Second and Third Amendments work together to subordinate the military to the civilian power and to place checks against the executive’s misappropriation of the military for his own purposes. Combined with Congress’ complete power to raise and govern the military and to declare war, the Founders erected a wonderfully symbiotic system to ensure that all parts of society truly believed war was necessary before the nation was committed to war and, once it was, that the military would be used in a responsible manner.

Yet another lesson we have forgotten in our modern rush for convenience, efficiency and power.

Congress has the sole power to decide when, where, against whom, and to what extent the United State will go war, according to this paper from Saikrishna Prakash: Unleashing the Dogs of War: What the Constitution Means by “Delcare War”. For the Founders, Prakash argues that there was more than the formal way to declare war that we typically think of today. Attacking an enemy was considered a declaration of war, so the Constitution leaves it solely to Congress to decide whether the nation goes to war. The President, as Commander-in-Chief, has standing constitutional authority to defend the property, territory and people of the United States, but he does not have inherent authority to take offensive actions without authorization from Congress.

The paper does a superb job of looking at what “declare war” meant in the 17th through early 19th centuries and why the “formalist” theory of the war power – that the President is free to wage war as he sees fit and that Congress’ ability to declare war only changes the formal state of relations between two nations and triggers certain legislation at home – doesn’t make any sense and falls under its own contradictions.

If we held to this construction of war powers today, much of the consternation this blog has expressed regarding the war power would be moot.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….

The freedom of religion is one of the most cherished and most fundamental of American bedrock principles. One would have to look far and wide to find an American who would advocate support of a particular religion or sect by the government or, more still, would support the interference by the government in the right of a person to practice and observe — or not — his own system of belief. George Washington summed it up for all of us when he wrote to the United Baptist Chamber of Virginia in May of 1789:

Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience.

But these vague boundaries of the First Amendment’s two complementary religion clauses — the Establishment Clause and the Free Exercise Clause — are about the only things regarding the line of separation between State and religion that Americans do agree on. For while these are indeed complementary clauses (one cannot exist without the other), they are also clauses that live in constant tension, striving over against the other to gain dominance. Peace and balance can only be maintained in one not gaining dominance over the other.

This tension did not exist in the Framers’ original conception of the First Amendment, however. Amar makes clear their expectation that federalism would inform the interaction of State and religion, not the federal Constitution:

The establishment clause did more than prohibit Congress from establishing a national church. Its mandate that Congress shall make no law “respecting an establishment of religion” also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments. In 1789, at least six states had government-supported churches — Congregationalism held sway in New Hampshire, Massachusetts, and Connecticut under local-rule establishment schemes, while Maryland, South Carolina, and Georgia each featured a more general form of establishment in their respective state constitutions. Even in the arguably “nonestablishment” states, church and state were hardly separate; at least four of these states, for example — in their constitutions, no less — barred non-Christians or non-Protestants from holding government office. According to one tally, eleven of the thirteen states had religious qualifications for officeholding. Interestingly, the federal establishment clause as finally worded most closely tracked the proposal from the ratifying convention of one of the staunchest establishment states, New Hampshire, that “Congress shall make no laws touching religion.” (pp. 32-33)

The matter was simply excluded from Congress’ Article 1, Section 8 list of delegated powers and left to the states. So, Amar argues, the establishment clause should not necessarily be incorporated against the states through the Fourteenth Amendment, as the rest of the First Amendment rights should be:

Incorporation of the free-speech clause against states does not negate state legislators’ own First Amendment rights to freedom of speech in the legislative assembly. But incorporation of the establishment clause has precisely this paradoxical effect; to apply the clause against a state government is precisely to eliminate its right to choose whether to establish a religion — a right clearly confirmed by the establishment clause itself. (pp. 33-34)

Our federal establishment clause is the American equivalent to the 1648 European Treaty of Westphalia that established religious policy as a local matter, so the question presents itself – how can a requirement for locality on the matter be incorporated against the very localities empowered to decide the matter? In this way, the establishment clause is more akin to the Tenth Amendment, preserving states’ rights, than the rest of the Bill of Rights (whether they primarily protect majoritarian rights against repressive government or minority rights against overbearing majorities).

Seen as protecting states’ rights, it becomes easier to understand why the First Congress lumped the religion clauses and the rights to speech, press, assembly, etc all together in the First Amendment.

Thus our First Amendment opened with words suggesting an utter lack of enumerated power to regulate religion in the states or restrict speech — “Congress shall make no law” — in sharp contrast to the language of later amendments dealing with areas where Congress clearly did enjoy enumerated Article I power to “make … law.” (The militia and war power clauses of Article I gave Congress broad power over military matters addressed by the Second and Third Amendments; federal searches and seizures — the subject of the Fourth Amendment — clearly fell within Congress’ explicit power to regulate customs and captures, among other things; and Article I expressly authorized Congress to “constitute tribunals,” whose procedures werethe main subject of Fifth, Sixth, Seventh, and Eighth Amendments.)

The “Congress shall make no law” amendment’s precise location in the original Bill is also quite illuminating. The orginal First Amendment on congressional size modified Article I, section 2; and the original Second amended Article I, section 6, dealing with congressional salary. Then came our “no law” amendment, glossing the Article I, section 8 catalogue of enumerated congressional powers by suggesting that Congress lacked power to censor expression or regulate state religious policy — a kind of reverse “necessary and proper” clause…. When we remember that Madison originally proposed to interweave his amendments into the original Constitution rather than tack them on at the end, it makes sense that the order of amendments would track the order of the Constitution itself. (pp. 36-37)