The Peoples’ Constitution
By Ben LenhartIn today’s world, the Constitution is more relevant than ever, with almost daily headlines in many hot areas ranging from gun rights, abortion, and freedom of religion to the power of the President and the division of war powers. Welcome to a new column on the Constitution of the United States. Americans can truly be proud of this amazing document, which has endured for more than 200 years and has safeguarded the country through thick and thin. Each column will look at one of today’s most urgent Constitutional topics, and explain how our Supreme Court has interpreted it. My goal is to explain the Constitution without taking sides or offering political opinions. I have taught Constitutional Law at Georgetown Law Center for more than 20 years, and my hope is that over time this column will give the reader a solid understanding of our nation’s most important document. Here are some key facts about the Constitution.
The Oldest Constitution. Drafted in Philadelphia in 1787, the Constitution is now 230 years old and is widely regarded as the oldest written constitution in the world in use today. While a few countries (such as England) have older documents that form part of their founding principles, no country has an older constitution still in use contained in a single written document.
Short and Stable. At just 10 pages the Constitution is stunningly short, especially when its goal is nothing less than laying out the fundamental governing principles for our nation. It gets right to the point. For example, many books have been written on freedom of speech, but the Constitution cuts to the chase by stating: “Congress shall pass no law … abridging the freedom of speech.” Those 10 words are a core part of what it means to be an American. With very few exceptions, Americans can say what we want even if it means sharply criticizing those in power. In many countries around the world, you would be thrown in jail or worse if you dared to criticize the President or other powerful leaders, but in the U.S., that right is fiercely protected by the Constitution.
The Constitution is remarkably stable. The Bill of Rights—the first 10 Amendments—was added in 1791, very soon after ratification. Since then, the Constitution has been changed a mere 17 times in more than 225 years. Two of those 17 Amendments banned and then “un-banned” “intoxicating liquors,” four of the Amendments extended voting rights, and many of the other amendments dealt with election procedures and political succession. Two of the most significant Amendments resulted from the Civil War, with the 13th Amendment abolishing slavery, and the 14th Amendment—probably the most important Amendment since the Bill of Rights—ensuring that all Americans would have equal protection of the law and due process of law (more on these in later columns).
Virginia’s Big Role. Virginians can be doubly proud of the Constitution—no state played a bigger role in shaping our founding document. Key Virginians include George Washington (who presided over the Constitutional Convention), Thomas Jefferson (whose ideas on liberty and small government were important influences informing the Constitution), George Mason (who attended the Constitutional Convention as Virginia delegate and demanded that the Constitution include a list of fundamental rights), and, last but not least, James Madison (who had a leading role in drafting the Constitution and is often called the “Father of the Constitution”). Other Virginias who influenced the Constitution or its ratification include Patrick Henry, Edmund Randolph, and Richard Henry Lee. With its outsized role, Virginia could easily be called the “Constitution State” (although Connecticut has already claimed that mantle).
The Second Constitution. Our current Constitution is actually our second. Our first, the Articles of Confederation, was ratified in 1781 and replaced by the current Constitution in 1788. Its short lifespan can be chalked up to its many shortcomings: no executive or judicial branches, no effective way for the federal government to collect adequate revenue, no real power to enforce a “common market” among the states, and no Bill of Rights. These flaws were all fixed in the new Constitution.
Slavery. As great as our Constitution is, it is not perfect, and one of its most glaring flaws is slavery. While the word “slavery” appears nowhere in the Constitution, there are no less than four provisions in the Constitution dealing with slavery, and in fact slavery is singled out for favorable treatment in Article Five, which prohibits any amendment that would ban the importation of slaves prior to 1808. Many founding fathers fought to abolish slavery, or at least to eliminate its recognition in the Constitution, but those efforts failed in the face of intense political pressure in the opposite direction. In the end, most of those involved came to realize that for the new Constitution to have any chance of ratification, they would need to compromise on slavery. The question of slavery would finally be resolved 70 years later in the bloodiest war in the nation’s history.
Liberty. Liberty is a central principle enshrined in the Constitution and is guaranteed by the very fabric of the Constitution. The 5th and 14th Amendments promise that your “liberty” can’t be taken away without due process of law. The Preamble tells us that a core purpose of the Constitution is to secure the “blessings of liberty.” The Constitution separates the powers of government into different branches and gives each branch checks and balances over the others. It does this to avoid tyranny, corruption, and the unjust exercise of power, but in so doing it also protects the liberty of each American. But liberty is not free and is often the first victim to fall when the dictator takes power or the rule of law is lost—a lesson taught time and again by troubled nations around the globe. That is why Americans must be eternally vigilant in protecting and upholding our Constitutional safeguards. Without them, we risk losing the fundamental rights and liberties that we have come to take for granted in America.
The Peoples’ Constitution: The Top 10 Cases
Part I in a two-part series.Over the 230-year history since the ratification of the Constitution in 1789, the Supreme Court has weighed in on many big issues, from free speech, abortion, and discrimination to freedom of religion, gun rights, and the powers of the president. Here is a list of 10 of the most important Constitutional cases of all time. While people will surely differ on the exact make-up up this list, most would agree with many of these choices. Final point: this is not a list of the “best” or most admirable cases, but rather a list (in no particular order) of those that had the greatest impact on how we interpret and understand the Constitution.
1. Marbury v. Madison (1803): Marbury forms the bedrock of our Constitutional system. At one level, Marbury was a mundane case: Mr. Marbury wanted a modest job given to him in the waning hours of John Adams’ presidency, but the new president, Thomas Jefferson, refused to let Marbury have the job. At another level, the case is of towering importance. The Supreme Court, led by Chief Justice John Marshal), held in Marbury that the Constitution is the supreme law of the land, and the Supreme Court— not the President or Congress—has the final say in its interpretation. This famous ruling helped establish judicial review and rule of law in America by establishing the Court’s power to (A) order a President to obey the law (in this case, the power to order Jefferson to give Marbury the job), and (B) invalidate any law passed by Congress that contradicts the Constitution (in this case a law that improperly let Marbury bring his case directly to the Supreme Court). The clear messages of Marburyis that no one is above the law and the Supreme Court has the final say on the Constitution. Over the history of America, the Court has gone on to strike down hundreds of actions by Congress and the President because they ran afoul of our most fundamental protector of liberty: the Constitution.
Relevance today: Marbury allows the courts to protect our fundamental liberties from unlawful actions by the President or Congress, or by state or local officials.
2. Brown v. Board of Education (1954): Brown was the culmination of a decades-long battle to end racial segregation in school. In Brown, a unanimous court led by Chief Justice Earl Warren held that racial segregation in schools was “inherently unequal” and thus violated the guarantee of “Equal Protection” set out in the 14th Amendment. Brown started a contentious and sometimes violent decades-long effort across the nation to integrate public schools.
Relevance today: Today, no public school can deny admission to a student based on race (and thanks to civil rights laws and court rulings, this prohibition also applies to private schools). We take this for granted today, but it was the reality for millions of children prior to Brown.
3. Youngtown Sheet and Tube v. Sawyer (1952).In the famous “Steel Seizure” case, the Court found that President Truman had exceeded his executive power when he seized steel mills during the Korean War. Truman argued that the mills were needed to support the war effort. In Youngstown, Justice Jackson created the key test—still used today—for determining whether an act of the President is lawful, and here the Court found that Truman’s actions were contrary to both the will of Congress and the Constitution itself.
Relevance today: Youngstown serves as a guide when the Court is faced with the weighty question of whether the President’s actions are within his Constitution powers. For example, if the President today tried to end Medicaid, the Court could use Youngstown to rule that such an action is unlawful because it is beyond the power of the President.
4. Lochner v. New York (1905): The infamous case of Lochner is included not for its own merit, but rather for the line of cases that overturned Lochner. Lochner had struck down a worker-protection law limiting the work of bakery employees to no more than 10 hours a day. Citing principles of laissez-faire capitalism, the Court ruled that such a law violated freedom of contract. With Lochner as a guide, the Court went on to strike down numerous “New Deal” laws championed by President Franklin Roosevelt in his effort to pull the country out of the Great Depression. However, the death of Lochner was foretold by Justice Oliver Wendell Holmes, who dissented in Lochner and famously declared that the Constitution does not adopt any particular economic theory. As the Depression worsened, Lochner’s support faded. By the 1930s the Court rejected Lochner’s core premise—that the Constitution enshrines pure laissez-faire capitalism and forbids Congress from intruding in that sphere—and instead ruled that Congress had wide latitude to pass labor and economic laws under its Constitutional power to regulate interstate commerce.
Relevance today: Workers today benefit from a host of federal laws—minimum wage, workplace conditions, overtime, collective bargaining, etc.—that have their roots in the Lochner period.
5. United States v. Lopez (1995): Just as the anti-Lochner cases stand for a very wide view of Congressional law-making power, Lopez reins in that power. Lopez involved a law banning guns within 1000 feet of schools. While the court said that this may very well be a sensible law, it simply had nothing to do with interstate commerce or with any of the other powers granted to Congress under the Constitution. The law was invalid not because it was a bad law, but because the Constitution had no power to pass the law.
Relevance today: Lopez does two things; it protects Americans today from an overreaching Congress, and it reminds America of a central principle of our founding: that our federal government has those— and only those—powers given to it by the Constitution. All other powers remain with the states. This ties directly back to America’s founding, and to the “Federalist/Anti-Federalist” debates over whether to ratify the Constitution. Having just fought a war of independence against a country with an all-powerful, centralized ruler (King George III), the Anti-Federalists insisted that the newly created American government must not be too powerful and that key government powers must remain at the local level. Lopez reinforces this central premise of the Constitution.
The Top 10 Case (Part 2)
In Part 1, we looked at such foundational cases as Marbury v. Madison and Brown v. Board of Education. Here in Part 2, we look at several more recent cases including Roe v. Wade and the recent Heller case dealing with gun rights.
6. Roe v. Wade (1973)
Perhaps one of the most well-known of all Supreme Court cases, Roe is important for two reasons: First, Roe established a Constitutional right to abortion under certain circumstances. Second, and more interesting from a Constitution perspective, Roe found this right even though it is not mentioned by name in the Constitution. Rather, Roe relied on the idea that certain fundamental rights exist and are protected by the Constitution—such as the right to privacy or the right to travel— even though the Constitution does not identify them. This idea referred to as “substantive due process,” is founded in the Constitution’s promise to not deprive any person of “life, liberty, or property without due process of law.”Some argue that these fundamental rights are grounded in the essence of liberty, while others point to the Ninth Amendment, which says that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Both sources harken back to the famous line in our Declaration of Independence: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights . . .”
Relevance Today: Hated by some, cherished by others, Roe remains the legal bedrock for the right to abortion. But Roe also stands for the idea that the fundamental rights enjoyed by all Americans are not limited to those listed by name in the Constitution.
7. Brandenburg v. Ohio (1969)
With World War I raging, Congress passed several laws banning a wide range of speech, including statements criticizing the war effort or inciting scorn for the American form of our government. By simply expressing their political views, many people ran afoul of these laws and were given long jail terms. This approach was challenged when two of our greatest justices, Oliver Wendell Holmes and Louis Brandeis, began questioning the wisdom of jailing people based only on their speech. How, they asked, could a nation that truly believed in free speech punish people merely for peacefully expressing their views, especially when there was no sign that the speech would lead to law violation. Holmes/Brandeis wrote a series of famous dissents sharply criticizing the Court for failing to protect speech. They demanded that the Court respect the sweeping command in the First Amendment: “Congress shall pass no law … abridging the freedom of speech.” The Brandenburg case (holding that a racist speech by the KKK was protected by the Constitution) was the culmination of a decades-long effort to strengthen the protection of speech, and represents the triumph, long after their deaths, of Holmes’s and Brandeis’s pre-speech position.Relevance Today: Americans can justly be proud of the amazing strength and power of our freedom of speech. The Constitution protects our right to criticize, in the strongest possible terms, our leaders or their policies, as well as our right to propose new ideas (even if that means fundamental change). This vibrant marketplace of ideas makes American stronger. One need only read the news to see, sadly, that in many nations today, people are thrown in jail for exercising the very free-speech rights that we take for granted in America.
8. U.S. v Carolene Products (1938)
As obscure as Brown v. Board is famous, Carolene Products has one very important claim to fame: footnote 4. That footnote suggested that the Court should give an extra careful review to laws harming members of “discreet and insular” minorities because those members may not always be able to rely on the normal political process to protect their rights. Carolene Products gave birth to the idea of “strict scrutiny,” which the Court now applies to any law—federal, state or local—that seeks to legislate on the basis of race or ethnicity. Strict scrutiny means the Court will take a hard and skeptical look at such a law, and is usually means that the law will be struck down.Relevance Today: Starting with Carolene Products, legal discrimination—that is, laws that discriminate on their face based on race—have been virtually eliminated from America. That is no small feat given the widespread use of Jim Crow laws and other blatantly discriminatory laws that existed in American well into the 20th century. (Affirmative action laws are an important exception in this area and will be discussed in a later article.)
9. District of Colombia vs. Heller (2008).
A seminal ruling on the meaning of the Second Amendment, Heller addressed the constitutionality a handgun ban in Washington, DC. The opinions—both majority and dissent—are amazing history lessons, and recount the hugely important role played by local militias around the time of the Revolutionary War and the drafting of the Constitution. That history is critical to understanding the unusual text of the Second Amendment, which says: “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.” In a sharply divided 5 to 4 ruling, the majority held that the right to keep and bear arms was personal and was not limited to militia or military service. However, the majority also acknowledged that certain limitations on guns rights would be consistent with the Second Amendment, stating: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Future courts now face the task of interpreting this language.Relevance Today: Simply put, Heller is today the bedrock for the Constitutional right to private gun ownership in America.
10. The United States v. Nixon (1974).
As the Watergate crisis deepened, President Nixon refused to turn over secret tape recordings that had been subpoenaed by a special prosecutor. Nixon argued that, as President, he could ignore the subpoena because he had an absolute “executive privilege” covering his communications with his staff. An unanimous Court ruled against Nixon and ordered that he produce the tapes. The Court agreed that the President does enjoy an executive privilege, but that privilege is not absolute and must give way when necessary to provide access to important evidence that is not otherwise availed. This is all the more true when, as here, the evidence did not involve national security or sensitive diplomatic or military matters. Shortly after the ruling, Nixon resigned.Relevance Today:The Nixon cases stands clearly for the principle that “no man is above the law.” While it will not do so lightly, the Court has ruled against the President on many occasions, and on host of issues, when if finds that the President’s actions are contrary to the Constitution or other laws. Holding our President accountable to our laws sets America apart from many other nations, and is one of the most important ways that we protect the liberty of all Americans.
Conclusion. Many other cases could easily be included in this list, including Virginia Military Institute (gender equality); Citizens United (free speech); Plessy (separate but equal); Curtis Wright (foreign affairs); McCulloch (congressional power); Chadha (separation of powers), and NY Times v Sullivan (free speech and libel), just to name a few. A common thread runs through all of these cases: a profound commitment in America to the Constitution and to rule of law. What does this mean? While messy and never perfect, it means that every person and every institution is bound by the law. And it means that the Court stands above Congress and the President and acts as guardrails should they veer too far off course. As John Adams put it: “We are a nation of laws, not of men.”
Rudyard Kipling said the same thing in poetry:
“All we have of freedom, all we use or know—
This our fathers bought for us long and long ago.
Ancient Right unnoticed as the breath we draw—
Leave to live by no man’s leave, underneath the Law.”
One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)
THE PATRIOT
"FIGHTING FOR FREEDOM AND LIBERTY"
and is protected speech pursuant to the "unalienable rights" of all men, and the First (and Second) Amendment to the Constitution of the United States of America, In God we trust
Stand Up To Government Corruption and Hypocrisy
Knowledge Is Power And Information is Liberating: The FRIENDS OF LIBERTY BLOG GROUPS are non-profit blogs dedicated to bringing as much truth as possible to the readers.
Knowledge Is Power And Information is Liberating: The FRIENDS OF LIBERTY BLOG GROUPS are non-profit blogs dedicated to bringing as much truth as possible to the readers.
NEVER FORGET THE SACRIFICES
BY OUR VETERANS
Note: We at The Patriot cannot make any warranties about the completeness, reliability, and accuracy of this information.
The Patriot is a non-partisan, non-profit organization with the mission to Educate, protect and defend individual freedoms and individual rights.
Support the Trump Presidency and help us fight Liberal Media Bias. Please LIKE and SHARE this story on Facebook or Twitter.
COMPLAINTS ABOUT OUR GOVERNMENT REGISTERED HERE WHERE THE BUCK STOPS!
GUEST POSTING: WOULD YOU LIKE TO BE PUBLISHED ... DO YOU HAVE SOMETHING ON YOUR MIND?
Knowledge Is Power - Information Is Liberating: The Patriot Welcome is a non-profit blog dedicated to bringing as much truth as possible to the readers.
Big Tech has greatly reduced the distribution of our stories in our readers' newsfeeds and is instead promoting mainstream media sources. When you share with your friends, however, you greatly help distribute our content. Please take a moment and consider sharing this article with your friends and family. Thank you
Please share… Like many other fact-oriented bloggers, we've been exiled from Facebook as well as other "mainstream" social sites.
We will continue to search for alternative sites, some of which have already been compromised, in order to deliver our message and urge all of those who want facts, not spin and/or censorship, to do so as well.
Keep on seeking the truth, rally your friends and family and expose as much corruption as you can… every little bit helps add pressure on the powers that are no more.
Keep on seeking the truth, rally your friends and family and expose as much corruption as you can… every little bit helps add pressure on the powers that are no more.
Those Who Don't Know The True Value Of Loyalty Can Never Appreciate The Cost Of Betrayal.
No comments:
Post a Comment