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You Be the Judge: The Bill of Rights and the States
The Wilton Library and the Historical Society host William E. Nelson as he presents the final lecture in their Bill of Rights series on Sunday.
For someone who spends so much time analyzing legal cases and who is so well versed in history, William Nelson is all too willing to admit he'd be a terrible judge.
"If Obama came to me today and asked me to be a judge, my answer would be: 'President Obama, I don't know how to do it.'" he said.
Nelson is one of the nation's foremost legal historians and the Judge Edward Weinfield Professor of Law at New York University School of Law. He came to the Wilton Historical Society on Sunday afternoon to lead the last in a series of lectures on the Bill of Rights and discussed, in particular, how it relates to the 14th Amendment of the Constitution.
It bears mentioning that it is not always easy to keep up with such a learned professor of law when he expounds on the merits and detriments of our nation's legal and governmental structure. And, at times, Nelson's talk was a case study in confused looks, at least for this writer.
But there were many fascinating takeaways from his lecture even if an audience member wasn't able to quite keep up with every historic reference.
Nelson began by speaking of the Bill of Rights (the term used to describe the first ten amendments of the Constitution), which he pointed out is of somewhat uncertain origin.
"The historical process by which the Bill of Rights came to be is shrouded in mystery," he said.
Because of this mystery, it is difficult to determine exactly what its authors meant. Nelson pointed out that while most presume it to apply to citizens of the United States, the Bill of Rights actually never uses the word citizen and, instead, refers only to "people" (which, in turn, would leave it open to apply to anyone who happened into the country), one of many ambiguities in its verbiage.
Nelson then moved on to discuss the 14th Amendment, which covers states' rights under the Constitution. He noted, interestingly, that far from being a well thought out addition to the nation's laws, the 14th Amendment may well have been nothing but a political move.
"We have no way of knowing what many of the silent members of Congress were thinking when it was passed," Nelson said. For his mind, he believes in the possibility that "Congress' adoption of the 14th Amendment was a political act, not a legal one."
Essentially, Nelson said the Republicans of the time used states' rights as a platform for the elections of that year, a move that eventually helped them maintain a majority in both the House and the Senate.
Unfortunately, perhaps, for the rest of the country, the proposed Amendment was ultimately passed into law, ambiguous language and all. And this raised questions as to how the Bill of Rights, which essentially focuses on individuals' rights, should be implemented in terms of a state's delegation of authority.
Nelson provided a good modern example by referring often to Roe v. Wade, a landmark legal case involving the legality of abortion. Though many consider the case to be about states' rights and their power to supersede federal or individual rights, Nelson sees it differently.
"Roe v. Wade...I'm more inclined to see that being about women's right to control of their own bodies," Nelson said. "That's why I would never be confirmed for the Supreme Court - because I don't know what the right answer is."
Nelson wasn't speaking morally but, rather, in terms of how the framers of the 14th Amendment might consider abortion. That, he said to a laugh, is something he believes they probably didn't much consider when drafting the legislation.
In something of a stark contrast to his planned, erudite lecture, Nelson became quite engaging and animated during the question and answer session that followed. The most poignant moment of the afternoon came when one of the few younger children in attendance asked the best question of the day.
"I know how you said the language in the Bill of Rights is not as relevant now as in the 1800s," the young man said confidently. "So, do you think we should rewrite it?"
Nelson and the audience chuckled, acknowledging the fairness of the question. Nelson answered in two parts.
First, he referred to the recent example of the "underwear bomber" (Nigerian terror suspect Umar Farouk Abdul Mutallab who attempted to blow up a flight headed from Amsterdam to Michigan) and the debate about how the man should be treated in the court of law. Again, while some may argue that only citizens should be given the rights articulated in the Constitution (such as to fair trail and an attorney), the Bill of Rights once again refers only to "people," which would thus lead to Mutallab being included in that definition.
Secondly, and maybe more to the point, Nelson also admitted that he wasn't sure there was any chance today's politicians and lawyers could ever agree enough to coherently rewrite any of the Constitution.
In a sense, Nelson argued that this is precisely what makes the Constitution so great: that its ambiguity allows it to be so widely interpreted. And maybe, he said, lawyers and politicians alike should try to give the document a little more breathing room.
"We shouldn't be reading this document with the kind of precision that lawyers want to read legal documents," he said. "So we don't need to amend it...it gets amended in the way the public thinks about it."
A living document, indeed.
Comments (2) | Sign in to add your comment!
Christian, You have done an excellent job of reporting on this event. It was indeed an erudite topic and delivery especially for this gorgeous winter afternoon. Sitting in the back with your trusty laptop you captured the essence of this lecture. Hats off to the Historical Society and to you Christian for keeping the readers up to date on the events and very well informed. Good luck with the Patch. It certainly fills a need for out vibrant community.
Warm regards,
Ann McDonald (the lady seated in front of you on Sun)
Why thank you, Ann. You're too kind. I appreciate the well wishes and please keep reading!