The clash between the First and Second amendments in the US Constitution – the First guaranteeing free speech and the Second guaranteeing the right to bear arms – leads into a discussion of legal interpretations of the Second Amendment from 1791, when the states ratified the Bill of Rights, to the present. Using a corpus linguistic analysis of the Second Amendment, with a focus on "the right to keep and bear arms," and an examination of the US Supreme Court decision in District of Columbia v. Heller (2008), we see that, just like any other text, whether a literary work, a sacred book, or an everyday communication like a memo or shopping list, legal interpretation is always contingent, always subjective, and and always subject to reinterpretation.

The dispute over the Tariff of 1828 marked a turning point for interposition. State legislatures passed resolutions declaring protective tariffs unconstitutional, increasingly using more threatening language that echoed the doctrine of nullification John C. Calhoun advanced in the South Carolina Exposition of 1828. Calhoun’s arguments distorted Madison’s views and transformed traditional sounding the alarm interposition into an option for each state to nullify acts of the national government that it considered unconstitutional. Nullification prompted a national discussion about the nature of the Union, notably in the Webster–Hayne debate in the United States Senate in 1830. Nullifiers quoted the Virginia and Kentucky Resolutions and Madison’s Report of 1800 to justify their constitutional theory, but misunderstood Madison’s theoretical right of the people to interpose in the final resort and overlooked the sounding the alarm interposition of the resolutions. Madison rejected both nullification and secession and tried to explain what he meant by a complex federalism based on divided sovereignty, ultimately failing to correct misconceptions about his resolutions.

The new Constitution had existed for a short time before Madison and others became concerned about constitutional interpretations that were expanding the power of the national government. This early dialogue about federalism centered on what each state viewed as undesirable equilibrium: either forces that would weaken the relative authority of states or forces that would diminish national authority. Secretary of the Treasury Alexander Hamilton’s financial and economic policies were broad expansions of national powers including assuming Revolutionary War debts and establishing a national bank. Anti-Federalists and others viewed these policies as part of a dangerous trend towards national consolidation that would eventually annihilate the states. Southern states, in particular, thought that without constitutional amendments to constrain the powers of a Northern majority, the South would be unable to protect slavery. When Virginia’s legislature passed the nation’s first interposition resolutions and a memorial in 1790 to sound the alarm to other states and Congress, it faced Federalist criticism that it was illegitimately intruding into the federal government’s sphere.

As Americans have monitored federalism, they struggled with how a government based on sovereignty divided between nation and states might function. The Constitution’s shared sovereignty created an inherently dynamic federalism with almost continuous debates over the balance of power, making this testing of the balance of federalism and monitoring government central to the American constitutional order. Many constitutional debates involved the protection of slavery, yet other interests including debt, taxation, and police powers also played vital roles in shaping American federalism. State resistance to the national government utilizing the constitutional tool of interposition arose when the disequilibrium of federalism was most keenly felt and states needed to resist perceived constitutional overreaching by the national government. This state legislative resistance shaped the broader American political conversation about constitutional rights and jurisdiction and this debate over federalism is arguably a strength and not a weakness of the framers’ constitutional design,inviting each generation to determine what the appropriate constitutional balance should be.

Presidents Jefferson and Madison’s Republican-backed policies prompted new waves of state interposition. Federalist-dominated state legislatures in New England passed interposition resolutions that protested: Jefferson’s Embargo Acts (1807–1809); United States v. Peters (1809) emphasizing the Supreme Court’s finality over constitutionality; the recharter of the Bank of the United States; and Madison’s efforts to mobilize state militias before the War of 1812. After the controversy over the Alien and Sedition Acts and Jefferson’s election in 1800, Americans might have expected Republicans to advocate strict construction of national powers under the Constitution while Federalists would urge broader powers. However, defenses of states’ rights never belonged exclusively to one political viewpoint or party. Americans debated whether sounding the alarm resolutions and state interposition were legitimate state actions – and some asked if and when they would be justified in more forcefully resisting federal law, notably during the Hartford Convention in 1814 that called for constitutional amendments to reduce the power of Southern states and the repeal of the Three-Fifths Clause.

The Virginia and Kentucky Resolutions of 1798 that James Madison and Thomas Jefferson authored as a repudiation of the Federalist-backed Alien and Sedition Acts of 1798 are incorrectly viewed as originating the idea that John C. Calhoun would develop into his theory of nullification, that is, the right of an individual state to veto federal law. Although these interposition resolutions lacked support from other states, their interstate circulation mobilized a grassroots movement that helped elect Jefferson as President in 1800 and overturned Federalist policies. Despite their political success, what Jefferson and Madison meant by language they used in the resolutions burdened the future efforts of states seeking to monitor the governmental balancing of powers and resulted in a deeply troubling political legacy. Madison drew subtle but crucial constitutional distinctions, yet failed to explain what he meant by the theoretical right of the sovereign people to interpose in the last resort (expressed in the Virginia Resolution and in his Report of 1800). Moreover, Jefferson’s statements that unconstitutional laws were null and void seemingly foreshadowed the remedy of nullification.

This chapter analyzes historical and cross-national evidence to contend that the angry politics of populism does not simply reflect the autonomous preferences of voters shocked by the pressures of globalization. Rather, voters express right-wing identity issues only after politicians – especially mainstream center-right politicians – have accentuated appeals to cultural self-defense in their own electoral campaigns. In brief, the identity appeals of populism emerge as a product of mainstream political parties’ efforts to cope with the contradictions of capitalism and democracy in an age of high socioeconomic inequality. In this sense, the very notion of a cultural majority is itself politically constructed – an imagined community of ephemeral democratic normative weight, crafted by center-right political parties as they scramble to try win electoral majorities in an age of heightened socioeconomic inequality. While Madisonian political majorities have normative weight, cultural majorities do not. If correct, this argument suggests that a focus on addressing the economic roots of populism is pivotal as is developing a civic notion of citizenship, no matter the ethnicity or background of citizens.

Alexis de Tocqueville’s classic Democracy in America is widely recognized as one of the most definitive accounts of American society and political culture. However, his thoughts on the US Constitution have often been overlooked. In this chapter, Jeremy D. Bailey argues that this neglect is unfortunate insofar as Tocqueville’s view of the US Constitution diverges in significant ways from the authoritative rendition of The Federalist. Rather than echoing classic explanations of the workings of the US Constitution by James Madison and Alexander Hamilton, Tocqueville’s understandings of federalism, Congress, US elections, the presidency, and the Supreme Court are more influenced by the constitutional interpretation of Thomas Jefferson. Despite his extensive discussion of other parts of the US Constitution, however, Tocqueville has little to say about the Bill of Rights. This apparent oversight may be explained by the fact that he sees a respect for rights as emerging from political culture rather than any specific institutional framework.

Chapter 7 covers the federal constitutional debates and public debates on ratification, respectively. Substantial selections from Madison’s Notes of the Debates offer insight into the main subject of disagreement: Were the American people to be apprehended in their corporate capacity, at state level, or as a collection of individuals that happened to live various states? Corresponding to this theoretical dilemma, some delegates proposed the equal representation of the states in the national legislature, while others argued that the number of representatives should be based upon the population of each state. In the end, the Connecticut Plan offered a compromise between the two understandings of the people. In some respects, one could claim that the framers managed to recuperate and make permanent the Puritan legacy of the bi-dimensional covenant at a scale previously difficult to imagine. The second part of the chapter presents selections from both the Federalist Papers and the Anti-Federalists’ writings. These excerpts demonstrate the unique combination of theoretical perspectives in the American Constitution as well as lingering doubt about its practicality and legitimacy.

This chapter shifts the focus to the Constitution by tracking the emergence of historical readings of the Constitution and showing how debates over slavery drew attention to the historical realities of change since and distance from the founding era. The very act of producing a written constitution initiated this development. At first, the move to see the new Constitution as archival contributed to its status as a sacred document, but that move also had the potential to rapidly desacralize the Constitution by revealing that its roots rested in a distinct temporal setting. The death of James Madison in 1836 sparked efforts to publish and use his writings to interpret the Constitution. The slavery debates shaped that usage. Some abolitionists followed William Lloyd Garrison in using Madison’s Papers to damn the Constitution, but many antislavery constitutionalists advanced interpretations that emphasized the framers’ anticipation of eventual emancipation. Coupled with a stress on slavery’s unexpected spread and the sudden rise of the Slave Power, these antislavery accounts of original expectation cultivated a new sense of temporal dislocation from America’s most useful past.

This chapter explores the historical roots and purposes of the Free Speech and Freedom of the Press Clauses of the First Amendment. It shows that the most of the early conflicts in this area concerned press freedoms. Disagreements over these issues came to a head over the Sedition Act of 1798, which was used by the Federalist Party to jail its Republican opponents. Ultimately, out of this conflict the Republicans articulated a new model of citizenship, rooted in principles of popular sovereignty, which remains central to our system of government today. Freedom of speech, on the other hand, played a very limited role in early history. Regardless of its humble origins, however, the Framing generation agreed that Free Speech, like Freedom of the Press, was an essential element of democratic government. Unfortunately, these rights have often been ignored by our government and the judiciary during times of stress such as the Red Scare and the McCarthy era. Today, however, thanks to the influence of pioneering arguments by Justices Oliver Wendell Holmes, Jr. and Louis Brandeis, there is broad agreement that these rights are essential to democracy and so must be protected.

Chapter 2 explores how two rogue diplomats, Robert Livingston and James Monroe, obtained half a continent for the United States without shedding a drop of blood. Despite President Thomas Jefferson's instructions that Livingston and Monroe negotiate only for the city of New Orleans and as much territory east of that city as Napoleon Bonaparte's government could be persuaded to part with, they broke ranks and pledged $15 million for the transfer of the immense Louisiana territory from France to America. This act violated two of Jefferson's most cherished principles: economy in government and strict construction of the Constitution. Fifteen million dollars was a huge sum of money in 1803 - it vastly expanded the national debt - and there was no clause in the Constitution empowering the president to buy land. Livingston and Monroe risked their reputations, and possibly their lives, on the gamble that Jefferson would cast his scruples aside and submit the Louisiana treaty to the Senate. They were right, and, as a result of their disobedience, the United States doubled in size, acquiring 827,000 square miles of territory west of the Mississippi at a cost of three cents an acre. It was a mind-boggling bargain, and, like the treaty that ended the American Revolution, it grew out of American diplomatic indiscipline.

I originally penned this essay in the summer of 2018, stimulated by a Twitter exchange I had with Elon Musk, itself triggered by the SpaceX CEO’s previously announced decision to colonize Mars. This led me to wonder if this visionary had given any thought to what sort of government he would set up on the Red Planet and if he already had a team of social scientists working on the problem or whether he was just going to wing it when they got there. Surely not, but what source for research would a team of social engineers (let’s call them) working at SpaceX (or NASA, since it too plans to send people to Mars in the coming decades) access? There are no working models. Or are there? There are. Since it is Earthlings going to Mars, experiments in governance on the Blue Planet are a useful resource for lessons on how to govern the Red Planet. This essay, originally published in Quillette, is my modest contribution to future Martians on what they should take with them when they slip the surly bonds of earth.

Due in part to the influence of Michael McConnell, free exercise exemptionism is generally thought to be compatible with, if not dictated by, the founders’ church-state political philosophy. This article rejects that position, arguing instead that America’s constitutional tradition offers two distinct conceptions of religious liberty: the founders’ natural rights free exercise and modern moral autonomy exemptionism. The chapter aims to distinguish these two approaches by clarifying how they are grounded upon divergent philosophical understandings of human freedom and by explaining how they advance different views of what religious liberty is, how it is threatened, and, accordingly, how it is best protected. The article also attempts to demonstrate how our modern approach expands the protection for religious liberty in some ways but limits it in others.

The First Amendment’s religious clauses-“Congress shall make no law respecting an establishment of religion, or prohibiting the exercise thereof”-were adopted, somewhat begrudgingly, as an accommodation to the concerns of vocal religious minorities. Yet they also embodied a set of shared principles about church, state, and rights of conscience that had taken firm root in revolutionary America. Whereas “free exercise” had connoted limited grants to specific groups in particular areas, the term now referred to a broad freedom to assemble and preach. There was less consensus about what an establishment of religion entailed. However, the tide had clearly turned against exclusionary privileges. If the resulting constitutional language seemed somewhat ambiguous, it nonetheless clearly encompassed both an enlarged conception of religion and an unequivocal endorsement of liberty.

Chapter 1 examines how ordinary antebellum Americans cherished the Constitution for enshrining their “free institutions” of freedom of speech, press, and religion as well as representative democracy and local self-government. Indeed, Americans boasted that the Constitution had given them a form of government that was superior to any other in the world. At the same time that they gloried in the Constitution, mid-nineteenth-century Americans were divided by the Constitution. Slavery, more than any other issue, drove the division. Except for a tiny group of radicals, antislavery Northerners believed the Constitution was either antislavery or at least neutral towards slave labor. Northern conservatives and some moderate Southerners held that the Constitution countenanced slavery and they accepted this as the price for a constitutional union of free states and slave states. Most white Southerners believed that the Constitution was avowedly proslavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution. Southerners believed that the Constitution was avowedly pro-slavery. This three-way debate carried over to the lives and intentions of the Founders and the proper way to interpret their Constitution.

Unlike modern originalists, Justice Joseph Story (1779–1845) endorsed the maxim that “Christianity is a part of the common law,” and he seems thus to have considered Christianity deeply entangled with the Constitution. A Harvard graduate and Massachusetts Unitarian, he did not consider the Constitution bound to any specific Christian orthodoxy. Rather, by the Revolution, American Christianity itself had become tolerant of differences in doctrine and worship, while sharing an understanding of moral duty, embodied in the common law. Thus he could at once subscribe to the proposition that Christianity is a part of the common law and decide religion cases so as to uphold the separation of church and state, protecting church property from state interference, and protecting a municipally-run school from clerical influence. On the issue of slavery, his commitments to a living faith and to a settled Constitution collided, calling into question the Christian constitutionalism to which he devoted his professional life.