Constitutional Principles and America's Original Sin
James E. Fleming & Linda C. McClain Constitution Day Lecture
The prevailing conception in the United States, University of Texas Professor of Government Gary Jacobsohn noted in beginning the inaugural James E. Fleming & Linda C. McClain Constitution Day Lecture, is that we are a nation constituted by our constitutional principles. The U.S. Constitution, the story goes, is the ur-text of a civic religion, a vital, formative component at the very heart of American national identity. That this reverential narrative exists is undeniably true; whether the narrative is entirely true, however, is up for debate.
Over the course of his September 17 talk, Prof. Jacobsohn laid out how a comparative examination reveals that the U.S. Supreme Court—and thus the U.S.—in fact has a far more equivocal relationship with constitutional principles than a number of other nations. Take the case of India. The basic structures doctrine in its constitution, which stipulates that some features of the constitutional project are so integral that they must remain immune from change, is very much derived from Article IV of the U.S. Constitution, which “guarantee[s] to every State in this Union a Republican Form of Government” (the Guarantee Clause). But whereas, in India, this principle is applicable at or to all levels of government, the U.S. Supreme Court, beginning with Luther v. Borden (1849), has repeatedly interpreted the Guarantee Clause in a way that limits, rather than extends, its application. As Prof. Jacobsohn explained, understanding the origins of the ruling in Luther is critical to fully grasping the decision’s jurisprudential significance. That the Guarantee Clause was deemed—that the Court could not define for or dictate to a state what republican principles were constitutionally immutable—was not only a victory for federalism but one that was pregnant with relevance to slavery. John C. Calhoun in particular saw Luther’s petition to expand the franchise in Rhode Island via republican appeal as a threat to slavery and, in turn, saw the Luther decision as a defense of the institution in that it protected states’ rights against the threat of federal meddling and, in doing so, cut off at the knees the abolitionist argument that slavery was unconstitutional because it repudiated the republican principles that were outlined in the Declaration of Independence and subsequently incorporated in Article IV.
And Prof. Jacobsohn pointed out that this was neither the first nor the last time that regime commitment to federalism constrained the reach of constitutional principles. In 1833’s Barron v. Baltimore, the Court unanimously ruled that the Bill of Rights’ 5th Amendment did not apply to state governments, while the 20th and 21st centuries have seen a number of pro-state sovereignty decisions compromise the mandates of the 1965 Voting Rights Act. And whether directly or indirectly—Barron, like Luther, was seen as a blow to abolitionist arguments—these and many other instances show how the Court’s commitment to preserving federalism often traces back to the historical blight of racial injustice in America.
In addition to this question of federal vs. state applicability, Prof. Jacobsohn went on to note how questions of public vs. private applicability likewise underscore the United States’ comparatively limited reliance on constitutional principles. For example, he described a recent ruling in Germany that determined constitutional provisions regarding human dignity and freedom to be both vertically and horizontally enforceable (a) as a “juridical coup d’état” for the universal constitutional protection of the highest republican ideals; and (b) as an instance of extending constitutional principles un-matched in U.S. jurisprudence. 1989’s DeShaney v. Winnebago County was one of many decisions he turned to in illustrating how, in accordance with state action doctrine, the United States’ high tribunal has upheld the interpretation that the protections, rights, and privileges established by the 14th Amendment apply to and restrict state and local governments but not private entities (i.e., that equality and citizenship are enforceable vertically, but not horizontally).
Though Deshaney might appear cleansed of any connection to America’s original sin, there is no doubt that the limited reach of foundational principles that it and other contemporary decisions advance still carry the stain of a history of racial injustice that, in terms of the Constitution, can be mapped as far back as the unamendable protection that the framing document provided to the slave trade. Because of this tainted connection, Prof. Jacobsohn closed, we should revisit the narrative with which his lecture began and which has become so widely accepted–the narrative that national identity is so inextricably intertwined with the Constitution. In its place, he posited, we should perhaps consider what Yale University Knight Professor of Constitutional Law Jack Balkin has proposed: that the Declaration of Independence is our Constitution, and that its dedication to the proposition of liberty is what we are truly constituted by.
Gary Jacobsohn received his B.A. from City College of New York and his M.A. and Ph.D. from Cornell University, and he currently serves as Professor of Government and Malcolm Macdonald Professor in Constitutional and Comparative Law at University of Texas at Austin. His interests and work lie at the intersection of constitutional theory and comparative constitutionalism, and his publications include Pragmatism, Statesmanship, and the Supreme Court (Cornell University Press, 1977); The Supreme Court and the Decline of Constitutional Aspiration (Rowman and Littlefield, 1986); Apple of Gold: Constitutionalism in Israel and the United States (Princeton University Press, 1993); The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton University Press and Oxford University Press-India); and Constitutional Identity (Harvard University Press, 2010). He is also co-author, with Donald Kommers and John Finn, of American Constitutional Law: Essays, Cases, and Comparative Notes (Rowman and Littlefield, 2009), and co-editor, with Miguel Schor, of Comparative Constitutional Theory (Elgar Press, 2018). He has held fellowships from the Woodrow Wilson Center for International Scholars, the Fulbright Foundation, and the NEH; is a past President of the New England Political Science Association and former co-editor of the Rowman and Littlefield series on Studies in American Constitutionalism; and was the Woodrow Wilson Professor of Government at Williams College, prior to joining the faculty at Texas.