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How is America's founding document holding up in light of recent events?
9 Minute Read
From the Center for the Constitution
The daily lives of Americans are affected by the Constitution in numerous ways. The rights, freedoms, and governmental structure that the document defined 230 years ago are the the basis for our modern society.
The Founders’ vision was to create a for-the-people by-the-people government. We’re accustomed to the idea of separate branches of government providing checks and balances on each other, but that was an entirely novel concept at the time. For more than a decade, Madison’s research-oriented mind had been busy studying the successes and failures of other governments, and his 1787 Virginia Plan became the springboard for the Constitution.
Though most of us realize the importance of a constitution, many of us haven’t ever taken the time to read and understand our own. At a little more than 4,500 words, the U.S. Constitution isn’t long by global standards, but the prose can be dense and difficult to decipher.
The Constitution and the Bill of Rights
While the Constitution provides the structure of the government, Bill of Rights, the first 10 amendments to the Constitution, draws the lines that the government is prohibited from crossing. Even in its purest form, the concept of a “right” isn't always as simple to understand as it sounds. “A right is the ability to stop the government from doing something to you,” explains Stewart Harris, Visiting Associate Professor of Law at the Duncan School of Law at Lincoln Memorial University. In other words, the Bill of Rights doesn’t necessarily offer protection from employers or other individuals.
“People today aren’t thinking about rights with the same fresh memory of the kinds of abuses that led to the adoption of the Constitution in 1787 or the ratification of the Bill of Rights in 1791,” explains David Rossman, Director of Criminal Law Clinical Programs and Professor of Law at the Boston University School of Law. “Today, we very often don’t realize that the rights that are set out in the Constitution are things that everyone relies on in order to go about their business with some sense of security.”
Where do one party's rights begin and another's end? That's why we have courts. It’s the judicial branch that interprets these rights and how they apply to individual situations, particularly as America has changed over the centuries, and will continue to change in the future.
How to interpret modern constitutional issues
The Constitution left many aspects of our governance and our rights intentionally vague, partially because it would have been impossible for the Framers to predict the evolution of society. While many of the issues we grapple with today have broad constitutional applications, the gray areas provide opportunities for deliberation and debate.
Constitutional issues continue to be at the forefront of social and political agendas, and it’s important we as citizens familiarize ourselves with both sides of major, modern constitutional arguments so that we can be as informed as possible about our rights, freedoms, and protections under the law.
And win your next dinner table debate.
Privacy, Assembly, and other 1st Amendment Rights
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
How do our freedoms that are protected under the 1st Amendment fare with regard to national security?
At times in American history national security has had to be tightened, sometimes very quickly. This prompts a core constitutional question: how much liberty are we willing to give up in pursuit of safety?
Our personal freedoms come first, always
A so-called "national security exception” sets itself up to be heavily abused. How can you stop the government from classifying a document as a national security issue when that government, in reality, doesn’t want information to be leaked that might be damning in other ways? Unfortunately, this happens all the time, and the 1st Amendment should give us the right to access all public records. How can we effectively participate in our representative democracy without true transparency? As Benjamin Franklin is thought to have said, “Those who would give up essential Liberty to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Our personal freedoms are secondary to the safety of the nation
The Founders would never want us to give away government secrets. Restricting public access to certain sensitive information is the most prudent route, as a leak of emergency response protocols or military tactics would be a disaster. In matters of national security, our rights come second for the good of the group.
What about my privacy?
Privacy isn’t specifically mentioned in the Constitution. With all the data being transferred and shared today, and the myriad ways to mine, analyze, and use said data, it’s an issue that didn’t exist in the analog world of the Founders. But is that spirit of privacy covered under other statements?
David Drexler, Wikimedia Commons
It certainly is
Privacy is at the heart of so many other rights, even though it’s not mentioned explicitly. Courts have evoked the 1st Amendment for privacy of individual thoughts, the 3rd and 4th Amendments for privacy in the home, and the 5th Amendment for privacy of self, particularly incriminating yourself. The 9th and 14th Amendments have even been said to imply rights to privacy. While the Founders never said the word, they sure meant it.
“The Supreme Court has said that there is a zone of privacy. They called it a ‘penumbra’ around an individual that cannot be pierced by the state,” says Ronald S. Sullivan, Clinical Professor of Law and Director of the Criminal Justice Institute of Harvard Law School. “Privacy has been interpreted to be a central tenet of the 4th Amendment.”
If you begin to think that privacy is implied within the Constitution through other amendments, that gives the Supreme Court the ability to make judgments on it. Like national security, if you value your own privacy over the safety of our country (see, the Patriot Act of 2001), you’re putting us all in danger.
Should pornography be protected?
Does pornography get a free pass under freedom of speech protections? Does the 1st Amendment cover morality issues?
Jacobellis v. Ohio
(1964), set the precedent that hardcore pornography could be forbidden under state obscenity laws, but ordinary pornography was protected constitutionally. The definition of obscenity, like that of art, is left up to the judge.
Yes, let the pornography persist
It stands to reason that the founders would want “freedom of speech” to be universal. Here, “speech” should cover, well, the uncovered. If everyone involved consented to make and watch the pornography in question, who are we to call it obscene? As Justice William O. Douglas wrote after the Supreme Court’s
Miller v. California
(1973), ruling, which established a test for what counts as offensive, “To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The 1st Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people."
No, that's obscene
The Founders meant the 1st Amendment to protect people who wanted to express their political views publicly without fear of legal retribution—they weren’t talking about porn. It makes sense for us to protect people from something that’s too offensive. So what if offensiveness is a subjective construct? Judges make rulings on a lot of other constitutional concepts that aren't clearly defined, like “due process” and “reasonable search.” If we are open to those being interpreted by the courts, we should be open to judges interpreting the laws as they see fit.
Occupy Wall Street Protesters. Courtesy of MWC Photo via istockphoto
What are the limits to protests?
In this case, it’s not about whether or not taking to the streets should be struck from the Constitution, but instead about the limits of assembly. The question, Peter Irons, Emeritus Professor of Political Science from the University of California San Diego, asks is, “What are the limits? Can you impose conditions on assembly to basically protect the rest of the public, and at the same time allow the protesters to express their messages?”
It’s the answers to that question that present the quandary.
Sure, let people assemble freely
Protesters who camp out in a public park or other approved spot are making a political statement, and the 1st Amendment’s central idea is the freedom to express your political views.
Hold on, there should be limits
Just like every constitutional right, assembly should have limitations. Protesters shouldn’t be allowed to do whatever they want. They can assemble, but they can’t occupy. There are infrastructure issues, sanitation issues…don’t the nearby dwellers or workers have a say as to what their neighborhood should be like? What if someone else wants to use that space for a different political protest? If a group occupies a site for an extended period of time, doesn’t that deny others of their 1st Amendment rights?
What "freedom" means in the context of the 1st Amendment will always be up for discussion. Where do one individual's freedoms end and another's begin? What type of materials are considered offensive? When is the government allowed to infringe upon personal freedoms to protect the republic? These ambiguities are left up to the interpretation of the courts, and will continue to shape social boundaries for years to come.
Gun Control, Gun Rights, and the 2nd Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Currently one of the most hotly-contested constitutional issues, the 2nd Amendment rears its head in nearly every political campaign. The near-constant barrage of gun violence in America keeps this at the forefront of debate across the country.
Court cases have varied in their interpretation of “well regulated militia,” “keep and bear arms,” and even “right of the people.” Alternate drafts of the amendment feature different punctuation and capitalization that have also played a part in trying to decipher the Founders’ intentions.
As Stewart Harris asks, “Is this a collective right involving militia, or is it an individual right to keep and bear arms? Do you read the two clauses together, or do you read them separately?”
Columbia v. Helle
r (2008), is considered a landmark case for firearm rights, with the Supreme Court ruling that bans on handguns are unconstitutional and that guns can be owned and used for lawful purposes by individuals unconnected with the military. However, with increased media coverage of large-scale shootings, such as the tragedies of Virginia Tech, Sandy Hook, and the Aurora movie theater, calls for gun control have become louder and more fervent.
We should all be able to own and use firearms
The “militia” part of the amendment is symbolic and not restrictive—we know that militias aren’t the only reason that guns are necessary, and they never have been. Historically, people have used firearms for a variety of reasons from personal protection to hunting. The Founders wanted us all to be able to protect ourselves, including from a runaway government, and not rely solely on the state and its official gun-holders (the police and the military), for our safety. Leaving guns to a “militia” puts our individual safety at risk in an emergency.
We should be able to form militias and use firearms for protection, not arm ourselves individually
The amendment begins with "a well regulated Militia, being necessary to the security of a free State.” But when proponents of gun rights want individuals to be able to arm themselves without being associated with a militia, they go outside of the intent of the Founders. Guns are too dangerous, encourage a culture of violence, and are responsible for too many deaths to leave up to individuals. An armed community, particularly one with semi-automatic weapons designed purely to kill multiple people more effectively, isn't at all in the spirit of forming a defensive militia to keep us safe from an abuse of power.
The unpredictability of the evolution of society and how firearms have changed make for a significant debate surrounding the 2nd Amendment. This puts the courts in the position to evaluate and "update" their constitutional interpretation to adapt to contemporary issues.
Executive Power and the Fear of Overreach
Article II, Section 2
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
Executive Order 6012. U.S. Government Printing Office
“Americans revere presidents who are heroic figures in our past,” says Russell Riley, Associate Professor and Co-Chair of the Presidential Oral History Program at the Miller Center at the University of Virginia. “But at the same time, perhaps our most fundamental governing principle is separation. Even in these instances where a president is leading us through a moment of great crisis, there is anxiety about the exercise of that power.”
Executive power has surged in the last two centuries, even though the only powers actually enumerated by the Constitution are the ones from Article II, Section 2.
People are questioning whether or not we should dial back the de facto powers to a more stripped-down, constitutional version of the presidency, limiting her or him to military command, pardoning abilities, and appointment power.
John Hudak, the Deputy Director of the Center for Effective Public Management and Senior Fellow of Governance Studies at the Brookings Institution, insists that “If an American citizen doesn’t understand what a president is supposed to do and not supposed to do, they won’t be able to identify violations of law and violations of the Constitution.”
Let the president keep doing what he or she can currently do
While checks and balances are a good thing and, ultimately, keep a president from becoming a dictator, the rest of the government is too slow to react in certain situations. Any bureaucracy will bog down in trying to reach compromise in matters of foreign policy, economics, natural disaster, or, in Thomas Jefferson’s case, just a really good deal on a big piece of land. We need the Executive Branch to be able to make quick decisions on certain things. The Founders didn’t expressly say a president
do some of these things; it just didn’t say he or she
Restrict the president back to these original powers and nothing more
Because the Constitution lays out specific powers for the Executive Branch, the Founders' wishes were for the president to remain completely within those powers. They had a good reason for restricting the office so—after so much time spent wrestling their country out from under what they felt was the tyrannical rule of King George, they were interested in setting up a government in which no one individual would have too much power. The number of appointees a president can make gives power enough, and with many more powers handed to the president these days, he or she is able to have a larger impact on the country’s well-being than was ever intended.
States' Rights & the Supremacy Clause, and the 10th Amendment
Article VI, Clause 2
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing [sic] in the Constitution or Laws of any State to the Contrary notwithstanding.
The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
What are these really saying?
After independence was declared in 1776, America failed in its attempt to function as a loose confederacy of sovereign states. The Articles of Confederation, the document which kept the states together but didn't provide any sort of federal structure, gave the young country no way to fund war debts, create a standing national army, or even support a common currency. James Madison saw this as an opportunity to create a federal Constitution, and ever since, we've debated whether we're the "
States" or the "United
State sovereignty is a tradition held by Americans since its earliest days, and the 10th Amendment makes it clear that a federal government can’t overstep those bounds. State laws should trump federal laws when not clearly stated otherwise in the Constitution. States, as the expression of government closest to citizens, should keep the federal government in check.
States come second
The Constitution's Article VI includes a Supremacy Clause that establishes the relationship between federal and state governments. “The first thing to understand about the Constitution is that federal law is supreme. The Supremacy Clause basically says that the Constitution and all laws and treaties made under it are the supreme law of the land, and that means states have to respect federal law,” says Jack Beermann, Professor of Law at Boston University School of Law. “But that doesn’t mean that states have to embrace federal law. So often states are pushing the envelope, trying to see what they can do. And they can always give people more rights than what the federal government wants, but what they can’t do is be less restrictive.”
In other words, the 10th Amendment ensures states have power but only to the degree that the Federal Government's own policies are not violated. Think about marriage equality—it doesn't matter that many state constitutions only recognize marriage between a man and a woman. The Supreme Court's actions have negated those policies. Federal protections always trump state restrictions.
DC Cannabis Campaign Volunteer. Courtesy of Matthew Vanitas, Wikimedia Commons
Marijuana and the Constitution
A perfect example of the conflict between state policies and federalism is marijuana. Marijuana isn’t mentioned in the Constitution, and for the Founders, hemp was a useful component of rope and even clothes. Today, pot may be legal in several states, but because it is still a federal violation, it sets up a conflict between Washington D.C., and states like Colorado.
My state says it’s legal, so I’m fine with it
Because state sovereignty is protected by the 10th Amendment, if a state legalizes pot, then pot is legal in that state. States are often called the laboratories of democracy, so it's no surprise that many are challenging federal regulations. If the federal government decides to enforce a ban on marijuana, judges should refer to the 10th Amendment and the right of states to determine their own smoking policies. If people want to get high, and they aren't hurting anyone, who cares?
Until the government legalizes it outright, I’m refraining
The federal government is still the supreme law of the land, and until it tells us all via law or Supreme Court ruling, I’m not going to mess with it, no matter what state I’m in.
The Equal Rights Amendment, Does It Help or Hurt?
Proposed Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
Jimmy Carter Signing Extension of Equal Rights Amendment (ERA) Ratification, 10/20/1978. National Archives and Records Administration
The Equal Rights Amendment (ERA), was Introduced in every session of Congress between 1923 and 1972. Yet, at the end of its decade-long ratification period, only 35 states had signed off. Many advocates still urge states to ratify the ERA, which has become a symbol for many women’s rights groups.
Yes, get it in there
How are we still arguing this? The Equal Rights Amendment provides the next logical step, from voting rights to the protection of all rights. It took more than a century for the Constitution to include the Nineteenth Amendment, providing women the right to vote. It shouldn't take another 100 years for women to be guaranteed the same rights as men in all other areas of their lives.
No, but maybe not for the reasons you’d think
It’s a slippery slope once you begin making changes to legislation that aren’t wholly necessary. The ERA isn’t necessary to guarantee rights. Now that women have the right to vote (which was previously denied to them in the Constitution), there aren’t any other rights that don’t apply to women now. The way the amendment is worded may actually take away some rights for women, like where they can work and what protections they might have under sexual assault laws. For the sake of all women, we should just leave it be.
It’s never a bad idea to go straight to the source whenever a politician, pundit, or your cousin starts slinging around terms like “violation of constitutional rights.” For the most part, the debates over certain issues are to be expected due to the Founders’ word choice. And, just as it was during the writing and ratification process of the Constitution and the Bill of Rights, it takes compromise, understanding, and discourse to keep our society moving forward.
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