The Political Ethics of Constitutional Change and Constitutional Stewardship

Vogelsang-Coombs, Vera

doi:10.1057/978-1-137-49400-9_8

Vera Vogelsang-Coombs²

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Abstract

Discussing the Constitution’s political history, this chapter explores constitutional changes from the Emancipation Proclamation and American Reconstruction through the Civil Rights Movement and the same-sex marriage debate to illustrate how returning to the document’s foundational ideas enables public servants, as constitutional stewards, to expand the Constitution’s protections of individual freedom and political equality to marginalized groups. The chapter then provides a decision-making framework, employing self-reflection and reliance on constitutional principles, as a guide for evaluating the ethical efficacy of policies, statutes, and practices, focusing on an example related to the Defense of Marriage Act. The central argument is that career public servants who employ such constitutional thinking aids can uphold the Constitution’s core value, as they promote significant changes resulting in greater political inclusion.

Fellow-citizens, we cannot escape history. We, of this Congress and this administration, will be remembered in spite of ourselves.… In giving freedom to the slave, we assure freedom to the free—honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth.

Abraham Lincoln, “Annual Message to Congress,” December 1, 1862

The more you make men free, the more freedom is strengthened, and the … greater is the security of the State.

Frederick Douglass, November 17, 1864

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Notes

1.
Roy P. Basler, ed., Abraham Lincoln: His Speeches and Writings (Cleveland, OH: World Publishing Company, 1946), 2:666.
2.
Robert Tannenwald, “Devolution: The New Federalism—An Overview,” New England Economic Review, May/June 1998, 11.
3.
Herman C. Pritchett, Constitutional Civil Liberties (Englewood Cliffs, NJ: Prentice-Hall, 1984),10.
4.
Timothy Huebner, “The First Court-Packing Plan,” Supreme Court of the United States (SCOTUS) Blog, entry posted July 3, 2013, accessed August 28, 2014, http://www.scotusblog.com/2013/07/the-first-court-packing-plan/.
5.
Texas v. White, 7 U.S. 700 (1869).
6.
Quoted in Herman C. Pritchett, The American Constitution (New York, NY: McGraw-Hill, 1959), 63.
7.
The National Union Party was formed to accommodate the “War Democrats” in loyal border states. In the 1864 election, Lincoln decisively beat his Democratic opponent (and his former Union general) George McClellan in the popular vote by more than 400,000 and in the Electoral College 212 to 21. Lincoln’s reelection was the first time an incumbent president achieved a second term since Andrew Jackson was reelected in 1832 (US Electoral College, 2014).
8.
Office of the Historian and the Clerk of the House’s Office of Art & Archives, “The Joint Committee on Reconstruction,” History, Art & Archives: United States House of Representatives, accessed August 25, 2014, http://history.house.gov/Historical-Highlights/1851-1900/The-Joint-Committee-on-Reconstruction/.
9.
Allen C. Guelzo, Lincoln’s Emancipation Proclamation: The End of Slavery in America (New York, NY: Simon & Schuster, 2004).
10.
Basler, Abraham Lincoln: His Speeches, 2: 690–91.
11.
Elsie Freeman, Wynell Burroughs Schamel, and Jean West, “The Fight for Equal Rights: A Recruiting Poster for Black Soldiers in the Civil War,” Social Education, 56, no. 2 (February 1992), 118–20. [Revised and updated in 1999 by Budge Weidman.] http://www.archives.gov/education/lessons/blacks-civil-war/.
12.
Michael Les Benedict, “Constitutional Politics, Constitutional Law, and the Thirteenth Amendment,” Maryland Law Review 71 (2011), 181.
13.
Civil Rights Act of 1866. 14 Stat. 27–30 (1866).
14.
Herman C. Pritchett, The American Constitution (New York, NY: McGraw-Hill, 1959), 377.
15.
Pritchett, Constitutional Civil Liberties, 11.
16.
William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, MA: Harvard University Press, 1988), 46.
17.
Robert W. Fogel, Without Consent or Contract: The Rise and Fall of American Slavery (New York, NY: W.W. Norton, 1989).
18.
Theodore B. Wilson, The Black Codes of the South (Tuscaloosa, AL: University of Alabama Press, 1965).
19.
“The Thirteen Amendment, Ratification and Results,” Harp Week, last modified 2008, accessed September 6, 2014, http://13thamendment.harpweek.com/HubPages/CommentaryPage.asp?Commentary=05Results.
20.
Lawrence Goldstone, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (New York, NY: Walker and Company, 2011).
21.
Pritchett, The American Constitution, 644, 640.
However, one does not have to reside in a State to hold national citizenship, as in the case of children born to American citizens living in foreign countries. This is the constitutional principle of jus sanguinis established in the Immigration and Nationality Act of 1952 (66 Stat. 63). Based on the Thirteenth Amendment, the 1952 statute gave the Congress complete discretion over the naturalization process, the power to exclude aliens, and the power to determine various classes of persons who are citizens by birth (jus soli) or by blood (jus sanguinis) (Pritchett 1959, 633, 640).
22.
Pritchett, Constitutional Civil Liberties.
23.
Robert L. Cord, “The Incorporation Doctrine and Procedural Due Process Under the Fourteenth Amendment: An Overview,” Brigham Young University Law Review 3(1987).
24.
John Rawls, “Justice as Fairness: Political Not Metaphysical,” Philosophy & Public Affairs 14, no. 3 (Summer 1985).
25.
Pritchett, Constitutional Civil Liberties, 15.
26.
Ibid., 14.
27.
Ibid., 14.
28.
Eric Foner, Reconstruction: America’s Unfinished Revolution (New York, NY: Harper Collins, 1988).
29.
Reconstruction Act of 1867 (March 2). 14 Stat. 428-30 (1867).
30.
Lawrence Goldstone, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865–1903 (New York, NY: Walker and Company, 2011).
31.
Foner, Reconstruction: America’s Unfinished Revolution, 446.
32.
Ibid., 447.
33.
Civil Rights Act of 1871. 17 Stat. 13 (1871).
34.
“Civil Action for Deprivation of Rights.” Codified at 42 U.S. Code §1983 (1982).
35.
H. W. Brands, “Presidents in Crisis: Grant Takes on the Klan,” American History, December 12, 2012.
36.
Pritchett, Constitutional Civil Liberties, 57.
37.
Civil Rights Act of 1875. 18 Stat. 335–337 (1875).
38.
Ibid., 251.
39.
Ibid., 252.
40.
C. Vann Woodward, The Strange Career of Jim Crow, commemorative ed. (Oxford, UK: Oxford University Press, 2002), 70.
41.
Ibid., 7.
42.
Lucius J. Barker and Twiley W. Barker, Civil Liberties and the Constitution: Cases and Commentaries, 2nd ed. (Englewood Cliffs, NJ: Prentice-Hall, 1975), 355.
43.
Woodward, The Strange Career of Jim Crow, 7.
44.
Ibid., 8.
45.
Ibid., ch. 3.
46.
Civil Rights Cases of 1883. 109 U.S. 3 (1883).
47.
Pritchett, Constitutional Civil Liberties, 253.
48.
Plessy v. Ferguson. 163 U.S. 537 (1896).
49.
Ibid.
50.
Barker and Barker, Civil Liberties and the Constitution, 355.
51.
David Bishop, “Plessy v. Ferguson: A Reinterpretation,” Journal of Negro History 62, no. 2 (April 1977).
52.
Pritchett, Constitutional Civil Liberties, 280.
53.
Woodward, The Strange Career of Jim Crow, 69.
54.
Ibid., 73.
55.
Ibid., 74.
56.
Ibid.
57.
Ibid.
58.
Bruce Ackerman, “The Living Constitution,” Harvard Law Journal 120, no. 7(2007), 1757–1758.
59.
Woodward, The Strange Career of Jim Crow, 9–10.
60.
Brown v. Board of Education of Topeka. 347 U.S. 483 (1954); 74 S. Ct. 686; 74 S. Ct. 753.
61.
Ibid.
62.
Barker and Barker, Civil Liberties and the Constitution, 356.
63.
Ackerman, “The Living Constitution,” 1763.
64.
Civil Rights Act of 1964. 78 Stat. 241 (1964).
65.
Civil Rights Act of 1957. 71 Stat. 634–638 (1957).
66.
Robert Caro, The Years of Lyndon Johnson: Master of the Senate (New York, NY: Alfred A. Knopf, 2002).
Robert A. Caro, “Johnson’s Dream, Obama’s Speech,” editorial, The New York Times, August 27, 2008, accessed July 4, 2014, http://www.nytimes.com/2008/08/28/opinion/28caro.html?pagewanted=all&_r=0.
67.
Caro, The Years of Lyndon.
68.
Civil Rights Act of 1960. 74 Stat. 89 (1960).
69.
Civil Rights Act of 1964. 78 Stat. 241 (1964).
70.
Pritchett, Constitutional Civil Liberties, 277.
71.
Charges of discrimination must be filed first with a state or a local fair employment practices agency within 60 days if such an agency existed. After that, charges can be filed with the federal Equal Employment Opportunities Commission (EEOC). The EEOC was empowered to take cases to federal district court for a finding of discrimination when they were not settled through conciliation. Complainants also had the option of pursuing class action suits for the enforcement of the Civil Rights Act. The leading case was Griggs, et al. v. Duke Power Company (401 U.S. 424) (1971).
72.
Elementary and Secondary Education Act of 1965. 79 Stat. 27 (1965).
73.
Pritchett, Constitutional Civil Liberties, 268.
74.
United States v. Price. 383 U.S. 787 (1966).
75.
United States v. Guest. 383 U.S. 745 (1966).
76.
Ibid., 281.
77.
Ackerman, “The Living Constitution,” 1883.
78.
National Archives and Records Administration, “Electoral College Box Scores, 1787–1996,” NARA, accessed August 31, 2014, http://www.archives.gov/federal-register/electoral-college/scores.html#1864.
79.
Ackerman, “The Living Constitution,” 1778.
80.
Barker and Barker, Civil Liberties and the Constitution, 374.
81.
Voting Rights Act of 1965. 79 Stat. 437 (1965).
82.
Voting Rights Act of 1970. 84 Stat. 314 (1970).
Voting Rights Act of 1975. 89 Stat. 402 (1975) (Amended 1982).
83.
The Voting Rights Act of 1970 precluded state governments from closing voter registration more than 30 days prior to a presidential election because these requirements had no “reasonable relationship to a compelling state interest” (Barker and Barker 1975, 378). Also, the 1970 law reduced the voting age from 21 to 18 for national, state, and local elections. However, in Oregon v. Mitchell (400 U.S. 112), the Supreme Court ruled that the lowering of the voting age for state and local elections was unconstitutional. Ultimately, the voting age for all elections was reduced to 18 under the Twenty-Sixth Amendment in 1971.
84.
Voting Rights Act of 1982. 96 Stat. 131 (1982).
85.
Jody Feder, “Federal Civil Rights Statutes,” Congressional Reference Service Web, last modified September 9, 2005, accessed September 15, 2014, http://fpc.Stat.e.gov/documents/organization/53772.pdf.
86.
Civil Rights Act of 1968. 82 Stat. 73 (1968).
87.
Pritchett, Constitutional Civil Liberties, 280.
88.
Pritchett, Constitutional Civil Liberties.
Ackerman, “The Living Constitution.”
89.
Barker and Barker, Civil Liberties and the Constitution, 354.
As Barker and Barker argue, the continuous struggle of black Americans for liberty, justice, and equality opened new dimensions in constitutional law that extended to women’s rights (including the adoption of the Nineteenth Amendment in 1921). Furthermore, the Supreme Court’s expansive interpretations of the Constitution and congressional legislation extended the rights of people with disabilities. However, the political ethics of the women’s movement and the Americans with disabilities movement are beyond this book’s scope.
90.
Tannenwald, “Devolution: The New Federalism.”
91.
Paul Peterson, The Price of Federalism (Washington, DC: Brookings Institution, 2012).
92.
Pritchett, Constitutional Civil Liberties, 329.
93.
Kenneth L. Karst, “The Freedom of Intimate Association,” Yale Law Journal 89, no. 4 (March 1980), 624.
94.
Griswold v. Connecticut. 381 U.S. 479 (1965).
95.
Ibid., 624–5.
96.
Quoted in Karst, “The Freedom of Intimate,” 624.
97.
Loving v. Virginia. 388 U.S. 1 (1967).
98.
Pritchett, Constitutional Civil Liberties.
99.
Zablocki v. Redhail. 1978. 434 U.S. 374 (1978).
100.
Ibid., 328.
101.
Ibid., 329.
102.
Quoted in Pritchett, Constitutional Civil Liberties, 360.
103.
Defense of Marriage Act (DOMA). 110 Stat. 2419 (1996).
104.
Justin McCarthy, “Same-Sex Marriage Support Reaches New High at 55 %,” Gallup, last modified May 21, 2014, accessed September 9, 2014, http://www.gallup.com/poll/169640/sex-marriage-support-reaches-new-high.aspx.
105.
National Conference of State Legislatures (NCSL), “Defining Marriage: State Defense of Marriage Laws and Same-Sex Marriage,” NCSL, last modified September 5, 2014, accessed September 7, 2014, http://www.ncsl.org/research/human-services/same-sex-marriage-overview.aspx.
106.
William Jefferson Clinton, “President’s Statement on DOMA,” Carnegie Mellon University School of Computer Science, last modified September 20, 1996, accessed September 9, 2014, http://www.cs.cmu.edu/afs/cs/user/scotts/ftp/wpaf2mc/clinton.html.
107.
Richard G. Wilkins, “The Constitutionality of Legal Preferences for Heterosexual Marriage,” in Marriage and Same-Sex Unions: A Debate, ed. Lynn D. Wardle, et al. (Westport, CT: Praeger, 2003), 227.
108.
Lyle Denniston, “Two More Bans Fall,” Supreme Court of the United States (SCOTUS) Blog, entry posted October 7, 2014, accessed October 7, 2014, http://www.scotusblog.com/2014/10/two-more-bans-fall.
109.
Andrew Koppelman, “Dumb and DOMA: Why the Defense of Marriage Act Is Unconstitutional,” Iowa Law Review 83, no. 1 (1997).
110.
McCarthy, “Same-Sex Marriage Support Reaches,” Gallup.
111.
The Gallup Poll, conducted May 8 to May 11, 2014, reported the following regional variations in support of same-sex marriage: East—67 %; West—58 %; Midwest—53 %; and South—48 % (McCarthy 2014).
112.
Kenneth L. Karst, “The Liberties of Equal Citizens: Groups and the Due Process Clause,” UCLA Law Review 55(2007), 102.
113.
Ibid., 102.
114.
Ibid., 142.
115.
Koppelman, “Dumb and DOMA: Why the Defense.”
116.
Ibid., 1.
117.
William Jefferson Clinton, “It’s Time to Overturn DOMA,” Washington Post, March 7, 2013, accessed September 9, 2014, http://www.washingtonpost.com/opinions/bill-clinton-its-time-to-overturn-doma/2013/03/07/fc184408-8747-11e2-98a3-b3db6b9ac586_story.html.
118.
Eric Holder, “Statement of the Attorney General on Litigation Involving the Defense of Marriage Act,” U.S. Department of Justice Office of Public Affairs, last modified February 23, 2011, accessed September 24, 2014, http://www.justice.gov/opa/pr/statement-attorney-general-litigation-involving-defense-marriage-act.
119.
Peter Baker, “For Obama, a Tricky Balancing Act in Enforcing Defense of Marriage Act,” The New York Times, March 28, 2013, accessed August 1, 2015, http://www.nytimes.com/2013/03/29/us/politics/for-obama-tricky-balancing-act-in-enforcing-defense-of-marriage-act.html?ref=topics.
120.
United States v. Windsor. 50 U.S. ___ (2013).
121.
“Same-Sex Marriage Laws,” National Conference of State Legislatures (NCSL), last modified June 26, 2015, accessed August 1, 2015, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx#2.
122.
United States v. Windsor, 50 U.S., ___ (2013). (Kennedy, A., concurring).
123.
Lyle Denniston, “Same Sex Marriage Reaches the Court Early,” Supreme Court of the United States (SCOTUS) Blog, entry posted August 5, 2014, accessed September 7, 2014, http://www.scotusblog.com/2014/08/same-sex-marriage-issue-reaches-the-court-early/.
124.
Lyle Denniston, “Analysis: Path to Same-Sex Marriage Review (Update),” Supreme Court of the United States (SCOTUS) Blog, entry posted November 7, 2014, accessed November 8, 2014, http://www.scotusblog.com/2014/11/analysis-pathsto-same-sex-marriage-review/.
125.
Rochelle Finzel and Susan Frederick, “Same-Sex Marriage Laws,” National Conference of State Legislatures, last modified February 9, 2015, accessed February 27, 2015, http://www.ncsl.org/research/human-services/same-sex-marriage-laws.aspx.
126.
According to Finzel and Frederick (2015), the remaining fourteen states that banned same-sex marriage were Arkansas, Alabama, Georgia, Kentucky, Louisiana, Mississippi, Michigan, Missouri, Nebraska, North Dakota, Ohio, South Dakota, Tennessee, and Texas.
127.
Obergefell v. Hodges. 576 U.S. _______. (2015).
128.
Lyle Denniston, “Opinion Analysis: Marriage Now Open to Same-Sex Couples,” SCOTUSblog, entry posted June 26, 2015, accessed July 3, 2015, http://www.scotusblog.com/2015/06/opinion-analysis-marriage-now-open-to-same-sex-couples/.
129.
Ibid.
130.
Obergefell v. Hodges, 576 U.S., _______, 3 (2015) (5-4 decision).
131.
Ibid., 33.
132.
Denniston, “Opinion Analysis: Marriage Now Open,” SCOTUSblog.
133.
Obergefell v. Hodges, S. Ct., (2015) (Roberts, C.J. dissenting).
134.
Ibid., 2.
135.
Brian Resnick, Lauren Fox, and Dustin Volz, “Why Four Justices Were against the Supreme Court’s Huge Gay Marriage Decision,” National Journal, last modified June 26, 2015, accessed July 4, 2015, http://www.nationaljournal.com/domesticpolicy/marriage-same-sex-gay-supreme-court-dissent-20150626.
136.
^. Lawrence Hurley, “Supreme Court’s Landmark Ruling Legalizes Gay Marriage Nationwide,” Reuters, last modified June 27, 2015, accessed July 3, 2015, http://www.reuters.com/article/2015/06/27/us-usa-court-gaymarriage-idUSKBN0P61SW20150627.
137.
Denniston, “Opinion Analysis: Marriage Now Open,” SCOTUSblog.
138.
David Masci, “How the Supreme Court’s Decision for Gay Marriage Could Affect Religious Institutions,” Pew Research Center, last modified June 26, 2015, accessed July 4, 2015, http://www.pewresearch.org/fact-tank/2015/06/26/how-a-supreme-court-decision-for-gay-marriage-would-affect-religious-institutions/.
139.
Obergefell v. Hodges, S. Ct. 2015, 28 (2015) (Roberts, C.J., dissenting).
140.
Denniston, “Opinion Analysis: Marriage Now Open,” SCOTUSblog.
141.
To enforce liability, the Supreme Court shifted from the standard of absolute immunity to the standard of qualified immunity for the official actions of public servants (except legislators and judges). This interpretation meant that public officials cannot be sued for monetary damages if they acted in good faith. The federal courts also expanded the constitutional rights of public employees, customers or clients, prisoners, mental health patients, property owners, and governmental contractors (including non profit agencies), thereby increasing the potential for tort violations (Rosenbloom 2012, 108).
142.
David H. Rosenbloom, “Public Employees’ Liability for ‘Constitutional Torts’,” in Public Personnel Management: Current Concerns, Future Challenges, ed. Norma M. Riccucci, 5th ed. (Glenview, IL: Longman, 2012), 105.
143.
Ibid., 115.
144.
Peter Schuck cited in Rosenbloom, “Public Employees’ Liability for ‘Constitutional,” in Public Personnel Management: Current, 106.
145.
Peterson, The Price of Federalism.
146.
David H. Rosenbloom and James D. Carroll, Toward Constitutional Competence: A Casebook for Public Administrators (Englewood Cliffs, NJ: Prentice Hall, 1990).
147.
David H. Rosenbloom, “The Constitution as the Basis for Administrative Ethics,” in Essentials of Government Ethics, ed. Peter Madsen and Jay M. Shafritz (New York, NY: Meridian Book, 1992).
148.
Ibid.
149.
Ibid., 64.
150.
Classification and intention are critical to an assessment of equal protection. Based on Title VII of the 1964 Civil Rights Act, the Supreme Court in its Griggs ruling developed the standards of disparate treatment and disparate impact. Disparate treatment occurs when discrimination affects a particular individual because of race, color, religion, sex, national origin, or other protected trait. Disparate impact occurs when discrimination affects an entire category of individuals who are members of constitutionally protected classes, and the disparate effect is intentional (Dresang 2009). If evidence exists that two individuals are identically situated but treated differently, then the remedy is due process, not equal protection (Rosenbloom 1992, 61).
151.
Norma M. Riccucci, “Affirmative Action,” in Handbook of Human Resource Management in Government, ed. Stephen E. Condrey, 3rd ed. (San Francisco, CA: Jossey-Bass, 2010).
152.
Rosenbloom, “The Constitution as the Basis,” in Essentials of Government Ethics, 59.
153.
Brian J. Cook, “Regime Leadership and New Public Governance,” in New Public Governance: A Regime Perspective, ed. Douglas F. Morgan and Brian J. Cook (Armonk, NY: M.E. Sharpe, 2014), 236–7.
154.
Toni M. Massaro, “Gay Rights, Thick and Thin,” Stanford Law Review 49 (November 1996).
155.
Andrew Koppelman, “Discrimination against Gays in Sex Discriminati,” in Marriage and Same Sex Unions: A Debate, ed. Lynn D. Wardle, et al. (Westport, CT: Praeger, 2003), 216.
156.
Similarly, when Lyndon Johnson narrowed the scope of the seminal 1957 Civil Rights Act, he removed from the law the thick morality associated with the freedom of Southerners to practice their racially segregated way of life under the states’ rights doctrine. Instead, Johnson crafted the legislative majority around the thin morality of advancing the voting rights of all Americans. In this way, Johnson mitigated the conflict over civil rights and overcame the political resistance of Southern Democratic leaders, thereby facilitating its passage.
157.
Koppelman, “Discrimination against Gays in Sex Discriminati,” in Marriage and Same Sex Unions, 217.

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Vogelsang-Coombs, V. (2016). The Political Ethics of Constitutional Change and Constitutional Stewardship. In: The Political Ethics of Public Service. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-49400-9_8

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