I wonder whether those who believe that the work of judges is concerned with uncovering and expounding the Constitution’s principles—whether expressed or implied—rather than interpreting its meaning, would have any difficulty if one of the earlier drafts of, say, the Fourteenth Amendment had been ratified instead of the version actually ratified. That is, does the actual structure and meaning of the written Constitution make a difference? If enough buzzwords and catch-phrases find their way in that allow us to riff on them and remake the legal and political order without the need to resort to further cumbersome amendment-making, why would we ever look back?
The logical implication is, of course, that if the Constitution our courts are to interpret is the version that is unwritten, then the exercise of drafting, debating, revising, resubmitting, and ultimately ratifying was an exceptionally pointless endeavor. If the words are all there, why should a bit of rearranging impede our work in realizing true Justice? As Congressman Hale of New York said:
The ingenuity of the argument was admirable. I never heard it paralleled except in the case of the gentleman who undertook to justify suicide from the Scripture by quoting two texts: “Judas went and hanged himself”; “Go thou and do likewise.”
Consider a few of the early drafts of the Fourteenth Amendment and decide whether the words and their content and arrangement meant anything to those who ultimately ratified the final product. First, Congressman Bingham’s Committee submission, January 12, 1866:
The Congress shall have power to make all laws necessary and proper to secure to all persons in every State within the Union equal protection in their rights of life, liberty, and property.
Subcommittee’s submission to the Joint Committee on Reconstruction, January 20, 1866:
Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States, in every State, the same political rights and privileges; and to all persons in every State equal protection in the enjoyment of life, liberty, and property.
Mr. Bingham’s proposal to the Committee, January 27, 1866:
Congress shall have power to make all laws which shall be necessary and proper to secure all persons in every State full protection in the enjoyment of life, liberty, and property; and to all citizens of the United States, in any State, the same immunities and also equal political rights and privileges.
After the Committee rejected the above proposed amendment, Mr. Bingham moved to substitute the following version on February 3, 1866:
The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all prilveges and immunities of citizens in the several States (Art. 4, sec. 2); and to all persons in the several States equal protection in the rights of life, liberty, and property (5th amendment).
This version was introduced to the Congress; it never made it out of the House.
The Committee prepared a new draft amendment on April 21, 1866:
Section 1. No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.
. . . .
Section 5. Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Sections 1 and 5 of the Fourteenth Amendment as ratified, July 9, 1868:
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
. . . .
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.