Northwestern University Law Review : Colloquy : 2008 : Hardy
The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights
David T. Hardy[*]
Few if any legal figures in the early republic held the status of St. George Tucker. Educated in the law by William and Mary's George Wythe, Tucker succeeded him as the College's professor of law, a post he held from 1790 until his appointment to the bench in 1804. While at William and Mary, he produced an edition of Blackstone's Commentaries, annotated in light of American law. The text became "the standard work on American law for a generation" and Tucker remained the most frequently cited American legal scholar for over two decades. Tucker's role in American legal scholarship was likewise striking. He has been termed "the first modern American law professor" and creator of the American law degree.
Tucker had exceptional opportunity to observe the legal events at the Founding. His closest friend, John Page, and his brother Thomas Tucker served in the first House; they and others kept him informed, by correspondence, of its events. He was temperamentally suited to analyze the Framing period. His edition of the Commentaries was far from a reprint of the original; Tucker documented at length where the American States had refused to adopt common law principles, and where the new Constitution and Bill of Rights diverged from them. While Blackstone had seen the common law as supra-personal and beyond improvement, Tucker delighted in documenting how Americans of his time had improved upon it and eliminated its shortcomings.
Largely forgotten today, Tucker returned to some legal prominence last Term, when the majority in District of Columbia v. Heller cited his annotated Blackstone's Commentaries as proof that the Second Amendment had originally been understood as an individual right to arms. The dissent also invoked Tucker's lecture notes to argue that, during the Framing period, he had seen it as a militia-related right of States.
Tucker taught his law students from extensive handwritten lecture notes, compiled in bound volumes. His notes were preserved, and today are archived in the Tucker-Coleman Collection of the Earl Gregg Swem Library at the College of William and Mary. The following is a transcription of the portion dealing with the Bill of Rights, which follows Tucker's discussion of the limits placed upon Congress by Article I, Section 10. The main text appears to date from 1791–92, with some marginal notes added later. Given his position and their dating, Tucker's notes are exceptional evidence of original public understanding and indispensible tools for originalist interpretation.
Given contemporary adherence to originalist interpretation, and the likelihood of future conflict—as demonstrated in Heller—between varieties of originalist analysis, dissemination of Tucker's hitherto unpublished lecture notes may offer an important contextualization of the Bill of Rights during the Founding period. It is my hope that working to democratize, as it were, the availability of these documents will assist future historical and legal analysis.
In the following transcript, Tucker's words are italicized and indented. Indecipherable words are denoted by blanks, and probable but uncertain ones by brackets. Tucker refers to the Amendments by their original numbering, identifying the First Amendment as the Third Article. His original "footnotes" (actually written on the blank facing pages) are so identified. His pagination (which is consecutive throughout the books) is in brackets. For ease of access, I have prefaced Tucker's remarks with the relevant Amendment and, where salient, a brief introduction.
Tucker begins by itemizing the restrictions upon Congressional power found in Article I, Section 10, and then turns to those imposed by the Bill of Rights.
I. Amendment I
Tucker takes a very robust view of freedom of religion and the Establishment Clause; separation of government and religion is indispensable to domestic tranquility. The words he uses to describe the concept—"[T]o separate them by mounds which can never be overleap'd"—resembles Jefferson's later and more elegant invocation of "a wall of separation between Church and State." Whether Jefferson took the metaphor from Tucker, with whom he was in frequent contact and considered among his "earliest and best friends," will never be known. It has been argued that a more likely source is the English Whig writer James Burgh, who referred to "an impenetrable wall of separation between things sacred and civil." Whatever the ancestry of Jefferson's words, Tucker's similar phrasing suggests that metaphors of this type were not uncommon at the time. At the very least, we cannot regard Jefferson as an outlier, and thus cannot conclude that just a "few Englishmen or Americans appear to have demanded separation of church and state during the late eighteenth century . . . ."
B. Speech and Press
The American concept of freedom of expression was, in Tucker's time, undergoing a transition. Some held to the view that it went no further than prior restraint: writers took the risk of seditious libel prosecutions, or civil actions, once they were in print. Others were beginning to see freedom of expression in a broader light, a view that did not really take hold until the Sedition Act of 1798.
Tucker is ahead of his time, taking a robust view of Americans' rights. Even in time of "national struggles" limitations on freedom of expression are traps rather than benefits and marks of tyrannical tendencies; Tucker cites as illustrative Virginia's wartime limit on pro-British expression. Tucker's reference to freedom from exemption from "coercion" brings to mind the modern concept of "chilling effects." In all these things, the eighteenth-century academic is surprising modern: he seeks no "clear and present danger" test, even in wartime. While we cannot know how he would view modern issues such as obscenity, civil defamation, or political campaign regulation, his equation of freedom of thought with freedom of expression, and his repudiation of wartime Virginia statutes suggests that he would find the modern First Amendment tests, if anything, to be overly permissive of regulation.
C. Assembly and Petition for Redress of Grievances
Tucker here argues the First Amendment's language is too narrow: the citizenry should be able, not only to petition, but to instruct, their legislators. The right to instruct had been guaranteed in several State constitutions, and in the First Congress, Tucker's brother Thomas proposed its addition to the Federal Bill of Rights.
II. Amendment II
The present controversy over the Second Amendment relates to whether it protects a right to arms for individual purposes such as self-defense, or only a right to arms when serving in an organized militia. Last Term, in District of Columbia v. Heller, the Supreme Court ruled for the former interpretation. The Heller ruling was a narrow five-to-four.
Tucker's lecture notes provide strong evidence for the Heller majority. He considers the right to arms the palladium (in eighteenth-century terms, the ultimate protection) of liberty and to be derived from the natural and individual right of self-defense.
One wonders how the Stevens dissent in Heller could have argued, from these lecture notes, that "St. George Tucker, on whom the Court relies heavily, did not consistently adhere to the position that the Amendment was designed to protect the 'Blackstonian' self-defense right . . ." or that the notes suggest the Second "Amendment should be understood in the context of the compromise over military power represented by the original Constitution and the Second and Tenth Amendments."
The brief answer appears to be that the dissent relied uncritically on the portions of the lecture notes quoted by Saul Cornell in a 2006 article, which the dissent cites as authority. The article sets out the quotations cited by the dissent and argues that they reflect Tucker's "earliest formulation of the meaning of the Second Amendment," and "casts the right to bear arms as a right of the states."
In fact, the article's quotations are misleading; they come from Tucker's discussion of the militia clauses of the original Constitution, which predictably deal with military power and the States. Tucker argues that the States have the power to arm their militias should Congress not do so since such power is not forbidden to States by the Constitution and hence is protected by the Tenth Amendment, just as any arms given would be protected by the Second Amendment. When, less than twenty pages later, Tucker does discuss the Bill of Rights, the language he uses closely parallels his 1803 Blackstone's Commentaries, usually down to the word.
III. Amendment III
The Third Amendment is the "nonstarter" of the Bill of Rights: in two centuries, precisely one case has had cause to seriously consider it (the suit failed on qualified immunity grounds, the Second Circuit finding that, unsurprisingly, its dimensions were not clearly established). Tucker is rather skeptical here, seeing the guarantee as evidencing a tolerance of standing armies.
IV. Amendment IV
Tucker's understanding of the Fourth Amendment is interesting from a historical standpoint. The Supreme Court has long considered the Amendment's warrant requirement as a subset of reasonableness—that is, a warrantless search is, unless justified, unreasonable and thus unconstitutional even if probable cause existed. Professor Akhil Reed Amar has argued that the Fourth Amendment's warrant or probable cause requirement stems from the legal immunity given the person executing the search, protecting against the original strict liability for an unreasonable search. Hence, probable cause was originally intended only to apply to searches authorized by warrants; warrantless searches need only be "reasonable." Tucker's discussion appears to be to the contrary, treating probable cause and warrant issuance as components of reasonableness.
V. Amendments V, VI, VII
A. Criminal Rights
Tucker's discussion of the criminal aspects of these amendments is cursory. He makes clear, however, that he feels the right to jury trial could bear expansion, to ensure that jurors are chosen from the vicinage rather than the State. In the early Republic, this would have meant that a defendant was essentially judged by jurors who knew him and the party bringing charges, and the reputation of both.
B. Taking of Property
Tucker interestingly ties the Fifth Amendment's takings clause to Revolutionary War impressments of supplies and equipment. Supplying armed forces had long been a problem approached through the impressment power (Virginia statutes authorizing impressments date as far back as 1677). A 1781 statute authorized the governor to impress clothing, equipment, slaves, and horses for military use, adding that all property taken shall be appraised by two neutral persons with a certificate given to the owners, and "[a]ny person making impressment contrary hereto shall forfeit and pay double the value of the thing impressed."
Tucker's understanding of the purpose of the takings clause sheds at least some light on the issue raised in Kelo v. City of New London, relating to whether property may be taken for private but publicly beneficial use. The Virginia impressment statutes related solely to public use, and the earliest of them barred takings for public use or otherwise.
VI. Amendment VI
Tucker, as with other rights related to criminal procedure, is cursory here. One might suppose that his heart lay with the civil rather than the criminal side of law practice.
VII. Amendments IX and X
Tucker's discussion of the Ninth Amendment stresses its importance. He displays admiration for Publius, the then-anonymous authors of The Federalist, but not for their position denying the necessity of a bill of rights. Tucker's justification of a bill of rights includes its explaining to every citizen the nature of their rights, a consideration that underscores original public meaning as an interpretative approach. Tucker's treatment of the Tenth Amendment foreshadows later conflicts over Federal pre-emption, and the dormant Commerce Clause.
Tucker's lecture notes give remarkable insight into how an American jurist and academic understood the Bill of Rights immediately after its ratification. Tucker agrees with Jefferson that the Establishment Clause erects a powerful barrier between church and state, a view the Supreme Court would not take until the Twentieth Century. He sees freedom of expression as broadly, indeed absolutely, protected against federal interference, and as linked to freedom of thought. Even in wartime, he sees suppression of dissent or subversion as the path to tyranny, a view the Court would not take until 1969 (and has not fully taken to this day).
Tucker views the Second Amendment as an individual right derived from the natural right of self defense, a position that the Court only accepted in 2008. And he describes the general Fourth Amendment reasonableness test as incorporating its warrant and probable cause requirements, a step not taken until 1948. Tucker's lecture notes, in brief, indicate that this Framing period scholar was astonishingly modern.
Tucker's notes guide us toward an originalism that takes a very robust view of the Bill of Rights. If he condemned measures against pro-British speech taken in the darkest days of the Revolution, it is hard to see how he would countenance modern "hate crime" legislation, campaign limitations, or other restrictions upon expressive rights. His derivation of the Fifth Amendment's takings clause from wartime impressment statutes is at least suggestive that he did not see it as permitting takings of property for private benefit. Tucker's notes may thus bring originalism in a full circle.
*. J.D., University of Arizona 1975.
1. See generally Craig Evan Klafter, St. George Tucker: The First Modern American Law Professor, 6 J. Hist. Soc. 133 (2006).
2. St. George Tucker, Blackstone's Commentaries with Notes of Reference, to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia (St. George Tucker ed., Lawbook Exchange, Ltd. 1996) (1803) [hereinafter Tucker's Blackstone], available at http://www.constitution.org/tb/tb-0000.htm (link).
3. Paul Finkelman & David Cobin, Introduction to 1 Tucker's Blackstone, supra note 2, at xii.
4. Klafter, supra note 1, at 133, 145–46. Klafter identifies the American law degree as unique among common law jurisdictions in that its holder has received a broad education in the law and is capable of practicing without further training. See id. at 145–46.
5. See 1 Annals of Cong. 95 (Joseph Gales & W.W. Seaton eds., 1834) (Mar. 4 & Mar. 14, 1789), available at http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=001/llac001.db&recNum=51 (listing Thomas Tucker and John Page as Congressmen from South Carolina and Virginia, respectively) (link); Mary Haldane Coleman, St. George Tucker: Citizen of No Mean City 35, 113–14 (1938); see also Creating the Bill of Rights: The Documentary Record from the First Federal Congress 293, 300 (Helen E. Veit et al. eds., 1991) (providing examples of letters from Thomas Tucker and John Page keeping St. George Tucker apprised of developments in the Congress).
6. See Klafter, supra note 1, at 142.
7. See id. at 140–43.
8. 128 S. Ct. 2783 (2008).
9. Id.at 2805.
10. Id.at 2839 n.32 (Stevens, J., dissenting). The majority's response, id. at 2805 n.19, assumes that the passage quoted by the dissent is in fact Tucker's discussion of the Second Amendment. In this both majority and dissent were misled. See infra Part II.
11. Tucker's legal papers are presently being edited into a two-volume edition, due for publication in 2011. Omohundro Institute of Early American History & Culture, http://oieahc.wm.edu/tucker/index.html (link).
12. Tucker refers to the Bill of Rights as ratified, which places the notes at 1791 or later. Earlier in his notes he devotes a lengthy discussion to whether the States may arm the militia if Congress failed to do so, a point mooted by enactment of the Militia Act of 1792, 1 Stat. 271. St. George Tucker, Ten Notebooks of William and Mary Law Lectures 126–28 [hereinafter Tucker, Law Lectures] (unpublished Tucker-Coleman Papers, located at the Earl Gregg Swem Library at The College of William and Mary) (copies on file with the Northwestern University Law Review). But the marginal note at page 145 refers to the Alien Act of 1798, 1 Stat. 570, indicating that some such notes were later additions. See infra note 34 and accompanying text.
13. I have located only two mentions of Tucker's lecture notes. Professor Klafter refers to them in discussing Tucker's teaching technique, and quotes one paragraph. Klafter, supra note 1, at 141–42 & nn.42–46. Professor Cornell briefly discusses their relevance to the right to arms and quotes one paragraph. Saul Cornell, St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings, 47 Wm. & Mary L. Rev. 1123, 1129–30 (2006).
14. Letter from Thomas Jefferson to Nehemiah Dodge, Ephraim Robbins & Stephen S. Nelson (Jan. 1, 1802), reprinted in The Life and Selected Writings of Thomas Jefferson 332 (Adrienne Koch & William Peden eds., 1944).
15. David T. Hardy, Armed Citizens, Citizen Armies: Toward a Jurisprudence of the Second Amendment, 9 Harv. J.L. & Pub. Pol'y 559, 612 (1986).
16. See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation Between Church and State 81 (2002); Isaac Kramnick & R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness 83 (1996).
17. Philip Hamburger, Separation of Church and State 59 (2002).
18. "Is" appears to be omitted here.
19. Most likely 24. The Act to Establish Religious Freedom formed chapter 24 of the Virginia laws of 1785. See An Act for Establishing Religious Freedom (1785), reprinted in 12 Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619, at 84 (William W. Hening ed., 1823) [hereinafter Hening, Laws of Virginia], available at http://www.vagenweb.org/hening/index.htm (link).
20. Leonard W. Levy, Origins of the Bill of Rights 104–32 (1999).
21. In modern terms, no prior restraint: a libel prosecution could only be brought after publication. 2 Jean Louis de Lolme, The Rise and Progress of the English Constitution, ch. 9 (1781).
22. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 28–29 (1998).
23. 128 S. Ct. 2783, 2839 n.32 (2008).
24. Cornell, supra note 13.
25. 128 S. Ct. at 2841.
26. Cornell, supra note 13, at 1130.
27. Tucker, Law Lectures, supra note 12, at 127–29.
28. E.g., Tucker's Blackstone begins its discussion of the Second Amendment with "The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." Tucker then proceeds to a condemnation of the British game laws. 1 Tucker's Blackstone, supra note 2, app. note D, at 300.
29. Tucker's understanding of the British game laws was dated. The Game Acts forbade all but major landowners from hunting or owning tools that might be used for poaching. The 1671 Game Act added firearms to that list, but they were deleted by the 1692 Game Act. See Joyce Lee Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 69–75, 125–26 (1994).
30. It is noteworthy that Tucker sees the Second Amendment as far more extensive than the British guarantee, whose qualifications in his eyes rendered it nugatory. Tucker's favorite thesis is that, while American rights may have British common law origins, Americans' rights-consciousness has advanced far beyond them.
31. Engblom v. Carey, 677 F.2d 957 (2d Cir. 1982).
32. See Johnson v. United States, 333 U.S. 10, 14–15 (1948).
33. Amar, supra note 22, at 68–71.
34. In "Of the Constitution of the United States," note D to the appendix to his Blackstone, Tucker adds at this point an argument that the Alien Act, ch. 58, 1 Stat. 570, (1798) (expired 1800), passed by the Fifth Congress, violates the Fourth Amendment. See 1 Tucker's Blackstone, supra note 2, app. note D, at 301–04.
35. An Act Restrayning the Impresse of Tymber, &c. (1677), reprinted in 2 Hening, Laws of Virginia, supra note 19, at 415 (forbidding impressments of timber "for the publique use or other purpose, use, or intent"). A later statute authorized militia officers, called out to deal with invasion or insurrection, to impress boats, carts, digging implements, as well as sailors, blacksmiths and carpenters. An Act for Making More Effectual Provision Against Invasions and Insurrections (1727), reprinted in 4 Hening, Laws of Virginia, supra note 19, at 197.
36. An Act for Giving Certain Powers to the Governour and Council, and for Punishing Those Who Shall Oppose the Execution of Laws (1781), reprinted in 10 Hening, Laws of Virginia, supra note 19, at 413–16.
37. 545 U.S. 469 (2005).
38. We break here with Tucker's sequence; in the original he discusses takings after discussing the Sixth Amendment. See Tucker, Law Lectures, supra note 12, at 145–47.
39. Cf. Schenk v. United States, 249 U.S. 47 (1919) (upholding conviction for distributing anti-draft leaflets during World War I); Brandenberg v. Ohio, 395 U.S. 444, 447 (1969) (reversing conviction for advocating illegal behavior, but acknowledging that prosecution would be possible "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action").
40. District of Columbia v. Heller, 128 S. Ct. 2783, 2797 (2008).
41. Johnson v. United States, 333 U.S. 10, 14–15 (1948).
42. Originalism's first major expositor was Professor Robert Bork, who saw it as a judicial restraint. See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). More recent expositors, in particular Professor Randy Barnett, have seen it as a source for expansive readings of individual rights. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty (2004).
Copyright 2008 Northwestern University
Cite as: 103 Nw. U. L. Rev. Colloquy 272 (2008).
Persistent URL: http://www.law.northwestern.edu/lawreview/colloquy/2008/48