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.
In his historical play, Henry V, Shakespeare talks about casting our glance back through history, and compressing the events of many years “into an hourglass.” In the 21st Century, it is easy to think of the debates on the abolition of slavery as having taken place with the relative-rapidity of the passage of Obamacare, but in reality this debate happened over the course of nearly an entire century of the nation’s founding years. Read more
“Conscience is the Most Sacred of Property”: James Madison’s Essay on Property
by Tony Williams
On January 24, 1774, James Madison wrote to a college friend praising the Boston Tea Party, which had occurred only weeks before. He praised the Boston patriots for their boldness in “defending liberty and property.” Equating political and civil liberty, he warned that if the Church of England had established itself as the official religion of all the colonies, then “slavery and subjection might and would have been gradually insinuated among us.” Read more
On January 1, 1802, President Thomas Jefferson received a thirteen-foot mammoth cheese weighing some 1,200 pounds. It was delivered by dissenting Baptist minister and long-time advocate of religious liberty, Reverend John Leland, who then preached a sermon to the president and members of Congress at the Capitol two days later. Jefferson took the opportunity to compose a letter to the Danbury Baptists on the relationship between government and religion that would shape the course of twentieth-century jurisprudence. Read more
President George Washington’s famous letter “To the Hebrew Congregation in Newport, Rhode Island” of August 18, 1790, is a response to a letter of the previous day penned by Moses Seixas on behalf of Congregation Yeshuat Israel. Seixas’s letter gives thanks to God for the religious liberty afforded at last by a government “erected by the Majesty of the People” and an “equal and benign administration.” This, after centuries of persecution and oppression of the descendants of Abraham by governments worldwide. Read more
America’s Founding generation well understood the principle that, in order to maintain individual liberty and freedom of conscience, civil government must be limited in its purpose and its power. They also knew the history of widespread and bloody religious conflict behind that principle. At the same time, many Americans believed that government should support religion because religion promoted virtuous lives and nurtured the social order needed for self-government. Balancing these concerns was a matter of great significance. Read more
The Founders’ proclamations on fasting and prayer are relevant today
by George Landrith
Today, many Americans think that government and even public life must be strictly separated from religious life and faith. Few know what the Constitution actually says about religious freedom or what the Founders believed about the concepts of liberty, God, and religion. But our history paints a very clear picture.
On March 16, 1776, the Continental Congress meeting in Philadelphia issued a proclamation calling for a day of fasting and prayer. Read more
The Virginia Declaration of Rights is one of the key source documents of the U.S. Constitution. This first American declaration of rights includes multiple provisions later echoed, and even copied, by the authors of the U.S. Constitution. The Declaration’s chief author, George Mason, and one of the two other main contributors, James Madison, played extremely prominent roles in both the writing and ratification of the Constitution and the movement culminating in the Bill of Rights, so the resemblance is no surprise. Read more
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
After the Civil War came the Reconstruction Amendments. Thinking about the Civil War leads to thinking about the compromises in the Constitution over slavery, which in turn leads to thinking about the Declaration of Independence. The Declaration embodied the principles that were compromised, “the proposition that all men are created equal.” The Reconstruction Amendments in a sense constitutionalize the promise of the Declaration and represent a “new birth of freedom,” eliminating the compromises in the Constitution over slavery. While the 13th Amendment prohibits de jure slavery and the 15th Amendment secures voting rights, the 14th Amendment is as a guaranty against de facto slavery.
The Constitution of 1789 contained a few key limits on state action. No state could enter into treaties, coin money, pass bills of attainder or ex post facto laws, impair contracts or confer nobility, impose tariffs, conduct foreign policy or make war. Citizens of each state were entitled to the privileges and immunities of citizens in the several states, but states had the power to determine who was a citizen. Every state was guaranteed a Republican form of government.
States could make laws with respect to almost any other subject matter, and enforce them as they saw fit, subject only to the state constitution. The states had broad latitude to shape their laws, to determine issues with respect to fairness and rights, and therewith shape the habits – the virtues and vices – of their peoples. This latitude included, by intention, the power to impose and protect slavery (and by extension other social and political perversions, short of monarchical government). The 14th Amendment fundamentally changed this.
Section 1 of the 14th Amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The citizenship clause extinguished the ante bellum issues created by Dred Scott v. Sanford (1854) on questions of citizenship. The privileges and immunities clause placed alien and resident persons in a state on equal footing. The due process clause guaranteed fair procedure in an actions under state law. The equal protection clause provided for federal oversight as to the equal application of laws to persons within each state. Additionally section 2 of the 14th Amendment eliminated the three-fifths compromise provisions regarding apportionment of representatives.
As a federal guaranty of certain rights, the 14th Amendment subjects states to federal supervision with respect to fairness and basic rights, whether or not state constitutions already provide such guarantees. That oversight has provides the federal government – in particular the federal judiciary – with great power to shape the institutions and character of people where once the states had almost exclusive authority.
Judicial construction of the 14th Amendment has changed over time and with it the direction of federal influence over state affairs. Cases such as Lochner v. New York (1905) and Adkins v. Children’s Hospital (1923) upheld “freedom of contract” as a protected right until the doctrine was reversed in West Coast Hotel v. Parrish (1937). Equal protection case Brown v. Board of Education (1954) profoundly changed – indeed rescued — the American social landscape, dismantling racial segregation. Equal protection case Hernandez v. Texas (1954) created protected classes of racial and ethnic groups. Through 14th Amendment cases the First, Second, Fourth, portions of the Fifth, Sixth and Eighth Amendments have incorporated against the states under the doctrine of “substantive due process.”
Also through the 14th Amendment, the judiciary has incorporated rights against the states that are implied by “penumbras” and “emanations” of other express Constitutional provisions. For example, Griswold v. Connecticut (1965) established a right to privacy which limited the right of a state to prohibit the use of contraceptives. And there is Roe v. Wade (1973), a 14th Amendment case, famously establishing a national rule over the regulation of abortion, where previously each state had set its own rules, including prohibiting abortion in many states. These last two cases raise an important question. Was the 14th Amendment intended to displace the state legislatures with the nine justices of the Supreme Court to the extent it has in practice?
J. Eric Wise is a partner in the law firm of Gibson, Dunn & Crutcher LLP, where he practices restructuring and finance
May 6, 2012
Amendment XIV, Section 5:
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 5 of the Fourteenth Amendment seems unprepossessing, but it has become the focus of some of the most important constitutional disputes in recent decades. That section gives Congress the power to enforce the Fourteenth Amendment “by appropriate legislation.” But what kind of legislation is “appropriate”?
It seems obvious that these words were added to allow Congress to pass civil rights laws; indeed, the Amendment was partly written in response to President Andrew Johnson’s assertion that the Civil Rights Act of 1866 was unconstitutional. By allowing Congress to pass legislation to protect the “privileges or immunities” of all Americans, along with their rights to due process of law and the equal protection of the laws, the Fourteenth Amendment’s authors hoped that the new guarantees would give real substance to the nation’s “new birth of freedom.” The 1866 Civil Rights Act was followed by others in 1871 and 1875. But the latter Act—which prohibited racial discrimination in “public accommodations” like theaters and restaurants—was held unconstitutional in an 1883 decision called the Civil Rights Cases. The Supreme Court ruled that the Amendment only allowed Congress to prohibit state governments from racial bias, but that Congress could not forbid private citizens from discriminating. The only dissenter in that decision was Justice John Marshall Harlan, who years later would also write the only dissent in Plessy v. Ferguson. He argued that the Civil Rights Acts should still be held constitutional under the Thirteenth Amendment, because racial discrimination was a component of the “slavery” that that Amendment prohibited.
After the Civil Rights Cases, Congress began relying on another constitutional provision for power to prohibit discrimination: the Commerce Clause. The Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and other laws bar businesses from discriminating or impose other restrictions on them do so only on the theory that their activities have some effect on interstate commerce. Although in the 1976 case of Runyon v. McCrary, the Court seemed to agree with Justice Harlan that the Thirteenth Amendment allowed Congress to ban private racial discrimination, Congress and the courts have still continued to rely on the Commerce Clause.
The difference between using Section Five of the Fourteenth Amendment and using the Commerce Clause became especially important in the wake of a 1990 Supreme Court decision involving religious freedom—a decision that provoked a showdown between Congress and the Court. That case, Employment Division v. Smith, was interpreted by some religious conservatives as watering down the First Amendment’s protections for religious liberty. Congress responded to those by passing the Religious Freedom Restoration Act, which tried to instruct courts on how to address First Amendment Claims. Congress said it was using the powers given to it by Section Five, because the law was designed to provide greater protection for federal civil rights. But the Supreme Court disagreed in a follow-up case called City of Boerne v. Flores. It ruled that Section Five does not give Congress limitless power to protect rights in whatever way it pleases; in order to qualify as “appropriate legislation,” a law passed under this Section must be “congruent and proportional” to the harms that Congress wants to prevent. Congress cannot simply create new “rights” under this provision, or alter the meaning of existing rights as understood in judicial precedents. It can only remedy specific wrongs to actual, existing rights.
This “congruence and proportionality” rule for deciding what laws are “appropriate” under the Fourteenth Amendment has remained controversial ever since. On one hand, it makes sense, because the Amendment was meant to give Congress power to enforce the constitutional guarantees that states had regularly ignored before the Civil War, not to dictate what those rights mean, let alone to give federal lawmakers limitless power to implement whatever programs they see fit. On the other hand, the Constitution contains no explicit “congruence and proportionality” requirement, and allowing judges to decide what laws are “congruent and proportional” seems to weaken Congress’s ability to check or balance the courts. City of Boerne is a prime example: Congress perceived the Smith case as a threat to constitutional values, and enacted what it hoped would be a remedy—but the Court struck down that law, also, thus creating a constitutional trump card. When Congress responded to that decision with yet another law expanding protection for religious freedom, it did so under a different constitutional provision entirely.
The conflict between the Commerce Clause and Section Five has also been at the center of recent cases involving the principle of “sovereign immunity”—the long-standing legal privilege under which states cannot be sued without their consent. The Supreme Court has held that Congress cannot simply eliminate this privilege, except under Section Five of the Fourteenth Amendment, if doing so meets the “congruent and proportional” test. Thus in Nevada v. Hibbs (2003), the Court ruled that Congress could nullify the state’s legal immunity in order to enforce federal laws that were “narrowly targeted” against sex discrimination by employers. The law in question there was the Family and Medical Leave Act of 1993, which requires employers—including state governments—to give employees time off to care for sick family members. But the same law requires employers to give workers time off for their own medical needs. When a Maryland state employee was denied leave to care for his own medical condition, he sued the state, which tried to have the case thrown out on sovereign immunity grounds. The case went to the Supreme Court, which ruled against the employee last month. The self-care provisions of the Act, wrote Justice Anthony Kennedy, were not the same kind of civil rights protections that were at issue in the Hibbs case. That meant that “abrogating the States’ immunity from suits for damages for failure to give self-care leave is not a congruent and proportional remedy.”
Decisions like these show how the constitutional tensions that led to the Civil War live on. In the wake of an awful war caused in part by the states’ resistance to federal authority, the Fourteenth Amendment’s authors wanted to give Congress power to enforce the civil rights of all Americans. But they also preserved the autonomy of state governments, because they understood that a decentralized federal system can be essential to protecting individual freedom. Today, courts and Congress struggle to find an acceptable balance between different constitutional clauses and between different conceptions of the role of government in safeguarding civil rights.
Timothy Sandefur is a principal attorney at the Pacific Legal Foundation and author of Cornerstone of Liberty: Property Rights in 21st Century America (Cato Institute, 2006) and The Right to Earn A Living: Economic Freedom And The Law (Cato Institute, 2010).
Friday, May 4, 2012
Essay # 55
Amendment 9 – Construction of Constitution. Ratified 12/15/1791.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The 9th Amendment to the Constitution was one of twelve submitted to the states for ratification in fall, 1789. Ten of the twelve were ratified by December 15, 1791, and came to be known as the “Bill of Rights.” An eleventh, the 27th Amendment, was ratified May 7, 1992. The final of the twelfth, applying the relevant terms of the “Bill of Rights” to the states was never ratified. However, the Supreme Court in the 20th Century adopted a doctrine of “incorporation” which imported many of the guarantees of the “Bill of Rights” as applying against the states through the 14th Amendment, adopted during the process of Reconstruction following the 1861-65 War for the Union.
The context for interpreting the 9th Amendment, therefore, is focused on the controlling ideas informing the “Bill of Rights.” The Supreme Court has never provided clear guidance concerning the 9th Amendment itself. A fundamental principle of constitutional interpretation, however, is that every article bears some intentional meaning which remains significant in understanding at minimum the intentions of the framers and the design of the institutions of self-government framed by the Constitution. In that sense, we may take the 9th Amendment to refer primarily to the question of the breadth of the guarantees mentioned in the other articles of the “Bill of Rights.” This follows the debate that took place over the ratification of the Constitution, in which the Antifederalists chiefly criticized the draft constitution as over-broad and threatening the rights of the people and their state institutions with the prospect of an unlimited federal/national government. The defenders of the Constitution (the Federalists) responded that the guarantees of individual rights familiar in most of the state constitutions of the founding era should not be included in a federal constitution precisely because the federal constitution was not designed to convey the kind of police power (health, safety, and morals) that would imperil individual rights, reserving that jurisdiction to the states. That argument is made most forcefully in essay number 84 of The Federalist Papers. An additional argument made there is the argument that any determinate listing of guaranteed rights would bear the unfortunate implication that any specific guarantees omitted in the process of listing specific rights would imply the existence of a governmental power that had not been intended.
Once, therefore, the political compromise of adding a bill of rights to the constitution had been accepted, the authors of the amendments (mainly James Madison) thought it important to do everything possible to avert any unintended consequences of such an enumeration of rights. The 9th of Amendment is the first of two deliberately intended to restrict the breadth of the application of those guarantees in such a manner as neither to imply unlimited power in the federal/national government nor to imply individual rights were exhausted by such an enumeration. In that sense, the 9th Amendment creates a shadowy, unspecified realm in which certain additional rights may be discovered as reserved to the people and, to that extent, thus brought under the controlling language of the 1st Amendment, namely, that “Congress shall make no law respecting” such additional rights. It is in that spirit that the Supreme Court in the 1965 Griswold v. Connecticut, 381 U.S. 479 decision discovered a constitutional “penumbra” within which a “right to privacy” sheltered and served to proscribe state prohibition of access to contraception. It was because of the incorporation doctrine through the 14th Amendment that the Court was able to make use of the “Congress shall make no law respecting” the unspoken right to privacy language to enunciate a limit upon the states. Though the Court has never said so, it should logically follow, therefore, that such a proscription against state policy can only be considered authoritative to the extent that it operates with equal effectiveness against the federal/national government. For the language of the 9th Amendment is primarily a language of restriction on the federal/national government, as are all of the “Bill of Rights”, and in the absence of ratification of the drafted 12th amendment, applying the same terms to the states, the primary meaning of all such language must be that it is a limitation upon the government of the United States. Besides contraception, the areas in which such application has occurred have been the parental right to educate children, the right to study a foreign language, the right to make and enforce contracts, etc.
W. B. Allen is Dean Emeritus, James Madison College; and Emeritus
Professor of Political Science, Michigan State University
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April 10, 2012
“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”
Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.” So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.
During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes. They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders. And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.
After the war, this practice (as our saying now goes) got old in a hurry. By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?” Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.” By occupying the property of private landowners, the British Army acted as if a law unto itself.
Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes. Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.” Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.
The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight. After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments. One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia. Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.” With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.
Notice the important caveat. Times of extreme emergency may require the risk and burden of quartering troops in private homes. Accordingly, Congress provided that the practice might be renewed by legislative act. The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them. Then and only then would a Congress or a state legislature dare to enact such a measure.
Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense. It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained. It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures. The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.
March 7, 2012
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.
Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State
When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.
Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.
There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:
To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….
Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:
The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.
Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”
The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.
To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.
Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”
Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.
Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.
If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
March 5, 2012
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.
In the American political tradition, we often refer to the freedoms of religion, speech, press, and assembly as our “first freedoms”; first not only because they are protected by the First Amendment to our Constitution but also because the freedom to speak, write, worship, and assemble peacefully is central to any conception of liberty worthy of the name. As Justice Benjamin Cardozo noted in an important Supreme Court case in 1937, the “freedom of thought and speech” is the “matrix, the indispensable condition of nearly every other form of freedom.”
But simply declaring, as the First Amendment does, that “Congress shall make no law respecting an establishment of religion” or “abridging the freedom of speech, or of the press or the right of people peaceably to assemble” does not immediately settle our current debates about the shape this freedom should take in political life. For the government will, as it always has, make some speech—libel, fraud, perjury, etc.—subject to criminal sanctions. The question we are constantly wrestling with is where the line between protected an unprotected speech is to be drawn. Just last week, for example, the Supreme Court heard oral arguments in United States v. Alvarez, a case challenging a congressional act that made it a crime to claim falsely to have won a military honor.
Xavier Alvarez, an elected member of a local government board in eastern Los Angeles County, told a group of people in 2007 that he was a retired marine of 25 years and that he had been awarded a Congressional Medal of Honor for his heroic military service. Although he and his lawyers admit there was no truth to these claims, Alvarez nonetheless insists he had a constitutional right to make them. Whatever the Supreme Court decides, the outcome will depend on answers to some weighty questions– What is the purpose of the freedom of speech? Why do we have it? And are some types of speech beyond the pale of what is legitimately protected by the Constitution? The same may be said about the limits of religion and assembly, for we are always debating these anew. Is the Obama Administration’s mandate that religious organizations cover contraception, abortafacient drugs, and sterilization in their health insurance policies an affront to religious liberty? Should religious employers be subject to federal anti-discrimination laws? Is there a right to picket at the funerals of military servicemen? Can people simply campout in public spaces without appropriate permits?
To begin to answer these questions, it seems we must think through and understand our entire scheme of constitutional government. In a regime that seeks to protect the rights of individuals and create space for the vital institutions of civil society, we must balance the legitimate need for law and order against principled limits on government power. As the Founders were well aware, a legislature, made of ambitious and imperfect men, will, if left unchecked, draw “all power into its impetuous vortex.” The freedoms in the First Amendment stand as a bulwark against this type of concentration of power, first by protecting the liberty of conscience and the rights of religious and civic organizations and, second, by reminding successive generations about the rights that are indispensable to a free society. The power and force of the First Amendment is muted, however, if citizens are not educated and engaged. As the principal author of the First Amendment, James Madison, acknowledged, the “only guardian of true liberty” in a republican regime is, at the end of the day, the widespread “advancement and diffusion of knowledge.”
Justin Dyer, Ph.D. teaches political science at the University of Missouri, and he is the author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press).
Friday, March 2, 2012
It is a commonplace to trace the origins of the right to petition the government for a redress of grievances to Magna Carta in 1215. There, Barons displeased with King John’s pretension to absolute, forced him to agree to specific limitations on his authority in deference to that of the nobility. Chapter 61 of the Great Charter (http://www.constitution.org/eng/magnacar.htm) provides:
Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. [Emphasis added]
Philip Kurland and Ralph Lerner’s invaluable The Founders’ Constitution contains in its section on the First Amendment the report (http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys6.html) of the 1688 “Trial of the Seven Bishops for Publishing a Libel.” The bishops were accused of libel when they attempted to petition King James II in protest of his declaration of limited religious freedom for Catholics and other dissenters from the Church of England. They were found not guilty after a trial in the Court of King’s Bench in which Justice Holloway told the jury:
Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be: so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king’s command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.
The 1689 Bill of Rights (http://www.fordham.edu/halsall/mod/1689billofrights.asp) explicitly protected “the right of the subjects to petition the king” and said “all commitments and prosecutions for such petitioning are illegal.”
By the time the first amendments to the new United States Constitution were being considered in 1789, the right to petition was well established in U.S. practice. The colonies had widely recognized and employed the right of citizens to petition their government. The Declaration of Independence (http://www.archives.gov/exhibits/charters/declaration_transcript.html) singled out the Crown’s treatment of colonists’ petitions for redress (“Our repeated Petitions have been answered only by repeated injury.”) in its list of grievances. The debate over the initial proposal of the First Amendment recognition “that these rights belonged to the people” and the drafters “conceived them to be inherent; and all that they meant to provide was against their being infringed by the government.” The First Amendment’s explicit protection of the right from Congressional interference was not a novel development.
After John Quincy Adams left the presidency in 1829, he became embroiled in the most significant right of petition controversy in U.S. history. He had been elected to Congress and began presenting petitions in behalf of citizens calling for the abolition of slavery in the District of Columbia. In the 1830s, a swelling number of petitions from abolitionists were being presented to Congress and the practice at that time of considering all petitions made the growing number seem unmanageable to some. Additionally, defenders of slavery preferred to silence the clamor over the terrible practice. In 1836, Congress adopted (117-68) a resolution: “That all petitions, memorials, resolutions, propositions, or papers, relating in any way or to any extent whatever, to the subject of slavery, or to the abolition of slavery, shall, without being printed or referred, be laid upon the table, and that no further action whatever shall be had thereon.” Adams called this new “gag rule” “a direct violation of the constitution of the United States, the rules of this House, and the rights of my constituents” and worked for eight years to see it repealed. In 1844, Representative Adams moved a resolution to revoke the rule (which had become a standing rule in 1840) that was adopted 108-80. This marked the high water mark of petitioning and in the aftermath, the right was “little exercised in the aftermath of the gag rule.” David C. Frederick, “John Quincy Adams, Slavery, and the Right of Petition” 9 Law & History Review 113 (Spring 1991).
These stories trace in broad outlines the “rise and fall” of the petition right; more accurately, the slow development, acceptance and constitutionalization, and relatively swift descent into disuse of this valuable right. Since the antebellum period, the right of petition has been largely neglected, though it is occasionally the subject of litigation and the U.S. Supreme Court decided a petition clause case, Borough of Duryea v. Guarnieri, in 2011 (http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf).
Joseph Story describes the petition right as resulting “from the very nature of [the] structure and institutions” of “a republican government.” (Joseph Story, Commentaries on the Constitution, vol. 3, §1887 at http://www.constitution.org/js/js_344.htm) This comment may provide a clue to the relative disuse of the right since the Civil War. With the extension of the franchise to more and more Americans, the ability to directly communicate desires and disapproval to elected representatives by voting and through political parties, has probably eclipsed the importance of petitioning. Coupled with the enhanced status of the right of free speech and advances in communications technology, which fill many of the practical roles (such as providing information to legislatures and allowing citizens to express their opinions) that formal petitions served, the practice of petitioning Congress is not likely to make a resurgence.
This is not to say that the principles it protected are not still vital. The tendency of courts and the executive branch to make decisions previously understood to be only the province of the legislature, threaten the principles of representative government and can serve to exclude all but the most well-connected from influencing government. A proper understanding of what the right to petition was meant to protect could be a helpful spur to citizens to insist that its spirit—the ability of citizens to affect the legislative process—be respected and re-enthroned as a foundation of constitutional government.
William C. Duncan is director of the Marriage Law Foundation. He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.
March 1, 2012
The Right to Effective Citizenship
Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.
Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution. These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others. Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.
But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?
The right to assemble in public did not prevail in most places, in most times. Public assemblies endanger rulers. They can endanger the peace. During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion? In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”
But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent. In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so. After all, he argued, do men not meet peaceably every day in local markets? Do they not circulate freely on the streets of cities? Why then do rulers fear religious assemblies? “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous…. Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”
Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.” Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.
Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution. The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison. In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done. “If people converse together, they must assemble together,” one Member quite sensibly remarked. But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.” That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others I will begin to see things I had overlooked. This is the advantage of deliberation in common over mulling things over by oneself. Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.” We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved. The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens. Therefore, the same Member concluded, “the people have the right to consult for the common good.”
When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government. Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England. But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining. Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people. Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?
Not so in America, Tocqueville saw. There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments. Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary. To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’ In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do. Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less. Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.
Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.
February 29, 2012
“Congress shall make no law … abridging the freedom of … the press ….” Those words, along with all others in the First Amendment to the Constitution of the United States, are engraved in the 74 foot high marble wall on the front of the Newseum on Pennsylvania Avenue in Washington, D.C. The words are simple. Enforcing those words – though not always easy or successful – is crucial to our democracy.
I recently saw a friend touring the Newseum who told me of a Russian visitor’s observation about our freedoms. The visitor said, “We have freedom of the press in Russia too. The difference in America is you remain free after you publish.” His comment is both humorous and profound.
Many countries have a Bill of Rights. Very few have mechanisms to enforce and preserve those rights. What distinguishes our system of government from most others in the world? What breathes life into our Constitutional freedoms? We are indebted to our founders for the brilliant system of checks and balances of power built into our Constitution. One of the most important checks on power is an independent and free press, “designed to serve as a powerful antidote to any abuses of power by governmental officials” as the Supreme Court noted in Mills v. Alabama (1966).
How do the mechanics and the design of the “powerful antidote” work? Suppose Congress does make a law that abridges the freedom of the press. In the United States, the press is free to challenge the law not only in print and other media, but also in court. Once in court, an independent Judiciary is free to declare such a law unconstitutional and preserve the press’ freedom. If Congress attempts to undercut the power of the Judiciary by, for example, requiring judges to explain their decisions to a Congressional committee or face impeachment for an unpopular decision, the press can expose the attempt and bring public pressure to bear on Congress. Such critical analysis, coupled with an engaged and educated public can prevent the evisceration of an independent Judiciary (in this example) or other intrusions by one branch on another’s responsibilities. The mechanics are circular and the gears work – most of the time.
Our history is certainly full of examples of a free and independent press exposing abuses of power by governmental officials. Unfortunately, there are also examples in our history in which we have failed to enforce the freedom of press embodied in the First Amendment.
Only seven years after the ratification of the First Amendment, a Federalist-dominated Congress passed the Sedition Act of 1798, a tool used to suppress the contrary views of Democratic – Republican newspaper editors. For example, Matthew Lyon, a member of the U.S. House of Representatives from Vermont and newspaper owner, was put in jail for referring to President John Adams’ “unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.” It became abundantly clear that the Act was unconstitutional, and a new Congress allowed the Act to expire in 1801 but not before several egregious suppressions of a free press had occurred.
There are several other examples of suppression of the press in our history, notably during periods of war. Abolitionist newspapers were torched in the 1830’s. During the Civil War, the Lincoln Administration ordered the closure of several newspapers and the arrests of several newspaper editors who opposed the Union efforts. During World War I, Congress passed the Espionage Act of 1917, President Woodrow Wilson invoked it aggressively to suppress publications opposing to the draft, and in 1919 the Supreme Court unanimously upheld the convictions of Charles Schenck and Elizabeth Baer who had been convicted of violating the act when they printed leaflets urging draftees to resist the draft. Similarly, the mailing privileges of the Milwaukee Leader were revoked by the Postmaster General during World War I because he concluded that their articles were interfering with the military’s efforts. The Supreme Court upheld the Postmaster General’s actions.
In retrospect, it might appear that many of these historic suppressions of a free press could not occur in the United States today and that we have made significant progress and learned from those experiences. During times of conflict, however, our country has compromised on freedom of the press. Whether these particular examples could be repeated or not, they demonstrate that even with the protections clearly provided in our Constitution, and even with the best form of government ever devised to ensure those protections, ultimately the best defense of our Constitutional freedoms depends on an attentive, educated and engaged citizenry.
That is why the civic education efforts of Constituting America and the Freedom Forum are so vitally important to our future.
James C. Duff is the President and chief executive officer of the Freedom Forum and CEO of the Newseum and the Diversity Institute. Mr. Duff is the former Director of the Administrative Office of the U.S. Courts, former Counselor to Chief Justice William H. Rehnquist, and former Chairman of the U.S. Supreme Court Fellows Commission.
February 28, 2012
February 27, 2012 – Janine Turner Interviews Andrew Langer, President of the Institute for Liberty on The Janine Turner Radio Show!
Listen to Andrew & Janine discuss Andrew’s essay: The First Amendment: Congress Shall make no law….abridging the freedom of speech!
Congress shall make no law… abridging the freedom of speech.
In our free republic, fewer rights are more cherished, or more important, than those enumerated in the First Amendment. It is the hallmark of a free society that the people can speak their minds without fear of retribution from the government or other citizens. Fundamentally, there are always two questions that accompany any dissection of free speech rights: what is their seminal role in our society (ie, why do we have them?), and what are the limits to free speech?
People say things with which we might vehemently disagree. They may make us angry, they may make us outraged. And the feeling might very well be mutual. Yet both their speech, and your own, are equally protected under the US Constitution. For the United States, this creates a true marketplace of ideas. A marketplace that has the benefit of allowing ideas that are reasoned, thoughtful, and valid to take hold, while ideas that simply aren’t (reasoned, thoughtful, or valid) to wither and die.
It is the latter that is perhaps free speech’s greatest asset in our society. Justice Louis Brandeis wrote that, “sunshine is the best disinfectant,” and this is especially true when it comes to speech that, were it outlawed, would fester or become cancerous when kept behind closed doors. In fact, when you look at societies within which free speech was outlawed, when those societies ultimately moved towards freedom, the forces of hate simply exploded on the scene, because for so long there had been no open debate or airing of the stilted beliefs of extremists groups.
In the US, we want people with the most hateful, horrible ideas to be able to say them, loudly and publicly. That way, we can not only challenge them directly (if we want), but we know which people to avoid, if we want. It’s as though they’ve put on the brightest, most-garish sign around their neck, saying, “AVOID ME,” and we’d be wise to heed their warnings.
Just as important, however, are the limits to those free speech rights. It is one of the most basic hallmarks of our society that the exercise of rights is only justly limited by their direct and harmful impact on others. In other words, I may have the right to swing my hands around wildly, but that right ends at the point where my hands meet someone else’s nose.
Though the adage still prevails that “sticks and stones may break my bones, but names can never hurt me,” the truth is that words can and do hurt—and the law has made several important carve-outs for speech that is not protected by the 1st Amendment.
One of the most basic carve-outs is for speech that is considered defamatory—which, in laymen’s terms, is essentially knowingly spreading falsehoods about a person for the purposes of harming that person’s reputation—destroying a person’s personal life or ability to make a living. Other restrictions are placed on speech that works to incite violence, or immediate wanton lawlessness—the concept that someone can neither work to provoke people to an immediate riot, or, likewise to yell “fire” in a crowded theater. Commercial speech, and speech over the public airwaves, can also be regulated—generally under the concept that people cannot make false claims about the goods that they sell, and that because the government assigns space on the public airwaves, the government can prohibit certain kinds of content from being broadcast if it can be deemed offensive.
But by that same token, one of the most controversial debates over free speech today if found in the realm of whether or not corporate interests have free speech rights in the same manner that individuals do. The Supreme Court ruled in their well-known Citizens’ United decision that, in point of fact, corporations do have these rights—a decision that many progressives have decried, and are attempting to undo.
Should they succeed, it would create a very dangerous situation—not only because these corporations are taxed and regulated very similarly to individuals (and, in some cases, more stringently), and therefore ought to be able, as affected entities within a society, to speak out on their own behalf, but many corporate institutions serve valuable purposes within our civil society.
If we fail to extend free speech protections to corporations, what is there to prevent an angered government, upset with a news company’s coverage of their actions, from shutting down that news organization’s business? While some might argue that the government would be prevented from silencing the individual journalists within that organization, should the government succeed in closing down the corporation’s tools, the journalists will have been silenced.
Dissent is the hallmark of any free society—and whether that dissent comes from individuals or corporations, it is an essential element in civil discourse. As a people we require free speech to allow good ideas to prevail, and bad ideas to be defeated.
February 27, 2012
Watch or Listen to Janine Turner Read: The First Amendment: The Free Exercise Clause – Guest Essayist: Eric Rassbach, Deputy General Counsel at The Becket Fund for Religious Liberty
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”
The Free Exercise Clause is perhaps the least commonly understood part of the First Amendment. The mythical “average American” presumably understands what freedom of speech means – we protect the right of almost anyone to say almost anything – and the Establishment Clause has been given the catchy, if mostly inaccurate, shorthand of “separation of church and state.” But were one to ask this hypothetical average American what protecting free exercise of religion means, she might respond with a blank stare.
So why is the Free Exercise Clause so unknown, and what does it really mean today? Some blame for the Clause’s obscurity must lie with its checkered history. That history can be divided into roughly five stages. The first stage lasted 87 years, from 1791 to 1878, and was characterized by judicial silence. Although the Clause was ratified as part of the Bill of Rights in 1791, the Supreme Court had no occasion to address it, other than to say briefly, in 1842, that it applied only to the federal government, not states and cities. This silence does not mean that the Clause had no public meaning; indeed, it was cited time and again in debates over religion in the public square. But it did not appear in court, and its meaning remained rhetorical and political, not legal.
That first phase came to an end in 1878, with the Reynolds case. In that case, the Supreme Court held that the Free Exercise Clause did not protect the practice of religious polygamy. Thus began an unsettled period for the Court’s Free Exercise jurisprudence. Two separate strands of caselaw emerged—one rooted in Reynolds and limitations on religious exercise, and another rooted in the ability of churches, synagogues, and other religious institutions to manage their own internal structures and their property.
The tensions in Free Exercise jurisprudence became apparent in a series of cases involving Jehovah’s Witnesses during the 1940s. These cases at first resulted in at first narrow readings of the Clause and then increasingly broader readings that provided protections to the Jehovah’s Witness plaintiffs.
This second and turbulent stage ended, and the third began, with Sherbert v. Verner, decided in 1963. In that case, the Court took a very strong stand in favor of individual religious liberty, holding that a Seventh-day Adventist could not be denied unemployment benefits because she was fired from her job for observing the Sabbath. The Court said that any government-imposed “substantial burden” on religious activity would be very difficult for the government to justify. This standard, extremely protective of religious liberty, represented a high-water mark in the history of the protection of Free Exercise.
The Clause’s course took a sharp turn in a less religion-friendly direction 28 years after Sherbert was decided. In Employment Division v. Smith, decided in 1990, the Court held that Native Americans who had been convicted for smoking peyote in accordance with their religious beliefs did not have a right to state unemployment benefits. Because the Oregon anti-narcotic law at issue was a “neutral rule of general applicability” the Free Exercise Clause would provide no protection to the religious plaintiffs.
This was true even though, like the Sherbert regulation, the rule imposed a “substantial burden” on their religious activity. The Smith ruling represented a dramatic shift in the law of Free Exercise, making it much more difficult for religious people to protect themselves against religion-restrictive laws. For a time, it seemed that the only way to evade Smith’s rule would be by convincing Congress and state legislatures to provide relief in the form of civil rights statutes protecting religion.
But in 2012, the Court announced a fifth and entirely new stage of the Clause’s existence in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In Hosanna-Tabor, the Court held, in a 9-0 decision,that federal and state employment discrimination laws do not apply to “ministerial” positions. The Court thus made clear that Smith’s rule did not apply in the same way to religious institutions as it did to religious individuals. Indeed, religious activities related to “internal church decisions” would fall outside the Smith rule entirely, a result that shocked many long-time observers of the Court’s religion decisions.
The next steps for the law of Free Exercise are not clear, but they are much more hopeful for religious people and institutions than they were before Hosanna-Tabor was decided.One could argue that this up-and-down history shows a kind of national, or at least judicial, schizophrenia when it comes to the place of religious people in public life. But that schizophrenia may simply mirror Americans’ uncertainty about the role of religion in public life, especially given the increasing religious diversity of our nation. The law could move in the direction of France or other Western European countries that have in effect attempted to drive religion out of public life, or to control it directly. But the law might also move in the direction of increasing religious freedom for every American, and decreasing government interference with religious people.
So what should the Free Exercise Clause mean, at its most fundamental level? There is a case to be made that the Clause stands for the idea that every person, and every religious group, gets to decide for themselves what they believe about the good and the true, and to act on those beliefs in public. In that sense, the Clause carves out a kind of sacred space in the American body politic—a place where Americans can work out their relationship with God free from government interference, indeed, a place where the government must fear to tread. By its nature, religious freedom cannot be without limits. But by the same token government cannot be without limits, and some areas must remain completely free from government influence.
But this sacred space is under siege in today’s ever-growing regulatory state. As they expand their influence over more and more areas of American life, governments at the federal, state, and local levels increasingly run roughshod over the claims of conscience. Prominent recent examples include the federal government’s attempt in the Hosanna-Tabor case to take over some ministerial and hiring and firing decisions, as well as the recently-issued healthcare mandates that would force Catholic, Protestant, and other religious groups to violate their consciences by paying for drugs and devices they believe cause abortion. State governments have made similar attempts to limit the conscience rights of religious institutions like churches and homeless shelters, as well as the conscience rights of individuals like pharmacists and doctors who object to participating in certain medical procedures.
These conflicts will only grow in size and number as government expands and becomes more aggressively secular. Therefore it will be important for religious Americans in coming years to fight for the sacred space staked out by the Free Exercise Clause, because government will not stay out on its own.
Eric Rassbach is Deputy General Counsel at The Becket Fund for Religious Liberty, a non-profit law firm based in Washington, D.C. that defends the free expression of all religious traditions. He led the Becket Fund team that litigated the Hosanna-Tabor case.
February 24, 2012
Watch or Listen to Janine Turner Read: The First Amendment: The Establishment Clause – Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.
The First Amendment: The Establishment Clause
The Establishment Clause of the First Amendment might be less well known today than “the wall of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter. This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.
In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means. In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty. Unlike England, America would not have an official church. This is good for government, and good for religion. Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.
In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation. Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities. As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach . . . .”
Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools. Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.
The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions. For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall. State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.
For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions. Religion was affirmed as a public good, not an evil to be kept private. Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution. That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.
Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole. “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.
Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789. Nor was it first in the list the Congress sent to the states in September of that same year. When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.
The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church. In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.
David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. Hillsdale’s free online course, “Constitution 101,” starts this week. The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.
February 23, 2012
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”
In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.
So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.
There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).
But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.
Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.
The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.
Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.
February 21, 2012 – Essay #2
1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
The Fourteenth Amendment and a Return to Federalism
The Fourteenth Amendment to the United States Constitution was enacted in 1868, just three years after the Civil War. For obvious reasons, Congress didn’t trust the Southern States to voluntarily provide former slaves with all the benefits of U.S. Citizenship, so it specifically required them to do so via the federal constitution. Subsection 1 of the Fourteenth Amendment states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
This amendment greatly undermined federalism since before the enactment of the Reconstruction Amendments, civil rights were largely protected by state constitutions. The Bill of Rights applied only to the federal government, which was smaller, and had less power. In fact, some Southerners still maintain that the Civil War was not about slavery, but about State’s rights and the power of the federal government.
Justice Harlan described this nationalization of civil liberties as a “revolution…reversing the historic position that the foundations of those liberties rested largely in state law.” Walz v. Tax Com. of New York, 397 U.S. 664, 701 (1970) (Harlan, J., dissenting). Beginning in 1897, the Supreme Court began interpreting the Fourteenth Amendment’s prohibition on depriving any person of “life, liberty, or property, without due process of law” as incorporating the Bill of Rights in to the amendment so that they also applied to the states. See Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) (incorporating the Fifth Amendment).
The Free Exercise Clause of the First Amendment was incorporated in 1940 in Cantwell v. Connecticut, 310 U.S. 296 (1940). Given the history of the Fourteenth Amendment, it’s assumed the Court thought it necessary to apply the Free Exercise Clause to the states because they could not be trusted to protect religious freedom with their own constitutions and statutes. But those roles are now reversed.
The Supreme Court’s 1990 decision in Employment Div., Dept. of Human Services v. Smith drastically weakened the federal Free Exercise Clause by holding that general, neutrally applicable laws do not violate religious freedom. In that case, a general law prohibiting ingestion of a hallucinogenic drug called peyote applied to everyone, so the fact that it also restricted the freedom of Native Americans who use it during religious ceremonies did not violate the federal constitutional. Smith has had a profoundly negative impact on church religious freedom in such diverse areas as land use and the ability speak out on political issues. As a result, States are now increasing the protection they provide to religious freedom because the federal courts can no longer be trusted to protect it.
To date sixteen (16) states have taken it upon themselves to enact Religious Freedom Restoration Acts protecting their citizens: Alabama, Arizona, Connecticut, Florida, Idaho, Illinois, Missouri, New Mexico, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. And at least twelve (12) states have interpreted their constitutions to provide the heightened protection applied by the Supreme Court of the United States prior to Smith: Alaska, Indiana (possibly), Kansas, Maine, Massachusetts, Michigan, Minnesota, Montana, North Carolina, Ohio, Washington, and Wisconsin.
So states now provide the real protection for religious freedom – an interesting return to the federalism that was undermined when it was thought states couldn’t be trusted to do so.
 Alabama – Ala. Const. amend. 622, § V(a); Arizona – Ariz. Rev. Stat. § 41-1493.01(B) (2003); Connecticut – Conn. Gen. Stat. § 52-571b(a) (2000); Florida – Fla. Stat. ch. 761.03(1) (Supp. 2003); Idaho – Idaho Code § 73-402(2) (Michie 2003); Illinois – 75 Ill. Comp. Stat. 35/15 (2001); Louisiana – La. R.S. § 13-5233 (2010); Missouri – Mo. Rev. Stat. § 1.302 (2009); New Mexico – N.M. Stat. Ann. § 28-22-3 (Michie 2000); Oklahoma – Okla. Stat. tit. 51, § 253(A) (2003); Pennsylvania – 71 Pa. Stat. Ann. § 2403 (2002); Rhode Island – R.I. Gen. Laws § 42-80.1-3 (2002); South Carolina – S.C. Code Ann. § 1-32-40 (Law. Co-op. Supp. 2002); Tennessee – T.C.A.§ 4-1-407 (2009); Texas – Tex. Civ. Prac. & Rem. Code Ann. § 110.003(a) (Vernon Supp. 2004-2005);Virginia – Va. Code § 57-2.02(B) (2007).
 Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994), Cosby v. State, 738 N.E.2d 709, 711 (Ind. App. 2000) (“Indiana Constitution may demand more protection for citizens than its federal counterpart”); Stinemetz v. Kansas Health Policy Authority, (KS app., May 4, 2011), Rupert v. Portland, 605 A.2d 63 (Me. 1992), Attorney Gen. v. Disilets, 636 N.E.2d 233 (Mass. 1994); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990); Davis v. Church of Jesus Christ of Latter Day Saints, 852 P.2d 640 (Mont. 1993); Matter of Browning, 476 S.E.2d 465 (N.C. App. 1996); Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992) (en banc); and State v. Miller, 549 N.W.2d 235 (Wis. 1996). See generally Angela C. Carmella, State Constitutional Protection of Religious Exercise: An Emerging Post-Smith Jurisprudence, 1993 B.Y.U. L. Rev. 275 (1993).
Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.
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.
The last amendment in the Bill of Rights, the 10th, is an apt bookend for the 1st. In fact, taken together with the 9th Amendment, it can be said that the entire vision the founders had for the United States can be found in these two amendments.
The Founders were inherently skeptical of concentrated government power—it is why we were initially conceived as a loose confederacy of sovereign states. When that ultimately collapsed, the Founders looked towards federalism, a political system in which power is diffused among various branches and levels of government. As the Supreme Court said only 20 years ago, “federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”
What was envisioned was a system of “dual sovereigns,” separate, but (at least as conceived) co-equal systems of government, a system in which the federal government had carefully enumerated powers, the states had carefully enumerated powers, and that which had not been delegated would be retained by the people. In other words, power flows from the people to the government, and as the High Court said 70 years ago: “The amendment states but a truism that all is retained which has not been surrendered.”
Abuse of the Commerce Clause led to a near-ignoring of the 10th Amendment by federal authorities for decades. It was only in the 1990s that there began a resurgence of these principles, as the High Court finally began to recognize that the Founder’s vision of the nation had become rather twisted. They began to restate that vision, and the reason why, re-affirming that efforts to grow federal power should only be undertaken with great deliberation. In one of the most poetic Supreme Court passages ever written, Justice Sandra Day O’Connor wrote:
[T]he Constitution protects us from our own best intentions: it divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.
How often have we seen federal power enlarged, or attempts made to grow federal power, for just those reasons?
Many of the cases brought to the Supreme Court in the 1990s and beyond have centered on the problem of Congress essentially compelling the states to act in a particular manner—or forcing those states to act as agents of the federal government. There are a number of problems with this, from a basic “good government” perspective—not the very least being it forces those states to spend money on federal priorities, rather than their own. Moreover, it removes policy prioritization an additional level away from an impacted population.
Again, as the High Court said in New York v. United States:
States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government. The positions occupied by state officials appear nowhere on the Federal Government’s most detailed organizational chart. The Constitution instead “leaves to the several States a residuary and inviolable sovereignty,” The Federalist No. 39, p. 246 (C. Rossiter ed. 1961), reserved explicitly to the States by the Tenth Amendment.
Since the 1990s, there has been a line of cases in which these principles have been reasserted by the High Court. In 1995, the Supreme Court finally found a limit to the Commerce Clause by striking down the Gun-Free School Zones act in United States v. Lopez. Two years later, in Printz v. United States, the Court struck down portions of the “Brady Bill”. The court has repeatedly stated now that regardless of how well-intentioned a federal law might be, Congress cannot ignore the Constitution’s precepts on limiting federal power and not forcing a state to substitute federal priorities for its own. The federal government can encourage, it can even “bribe” with federal funds, but it cannot out-and-out compel a state to act in an area in which the states hold their own sovereign power.
In New York v. United States, Justice O’Connor called the 10th a “tautology”, a restatement of what is obviously true. But given the erosion of the 10th Amendment over the course of the republic’s history, and the even greater erosion of constitutional knowledge, this so-called tautology needs to be restated. When discussing the principles undergirding our founding, regardless of the audience, it is helpful to reiterate the following, as underscored by the 10th Amendment: government does not have rights. People have rights. Government has powers—powers that we have narrowly and carefully ceded to it by limiting some measure of our rights. All that we have not surrendered, we have retained, and we must defend those rights earnestly and vigorously.
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”
Despite 220 years of constitutional interpretation, there really isn’t much one can say about the Ninth Amendment. And that’s just what James Madison and the Framers intended.
The Ninth Amendment is that rare creature in American politics, a success story conceived in humility. The first eight amendments of the Bill of Rights established freedom of worship, the freedoms of assembly, speech, press and petition, the rights to bear arms, to be free from government intrusions into citizens’ homes, to due process and to a jury of one’s peers, and many others. Having penned what may have been the finest articulation of the rights of man in human history, Madison and his colleagues could have been forgiven for giving way to hubris and capping it with a rhetorical flourish. Instead, they added a caution, by way of an afterthought. The Ninth Amendment’s quiet caveat has done much more to protect fundamental rights from government encroachment than its humble phrasing would suggest.
The Bill of Rights exists because a compromise was required to satisfy the Anti-Federalists and States that were cautious about ratifying into existence a federal government of broad powers. The Ninth Amendment exists because another compromise was necessary to satisfy those in the Federalist camp who believed that an enumeration of rights would tend to negate recognition of rights left unmentioned. Madison, Alexander Hamilton and other Federalists contended that a Bill of Rights was unnecessary because the federal government’s powers were delineated by and limited to those set forth in Article I, Section 8 [link to John Baker’s blog on this provision – https://constitutingamerica.org/category/analyzing-the-constitution-in-90-days-2011-project/article-i-section-08-clause-01/ ] Hamilton’s Federalist 84 queried, “Why declare that things shall not be done which there is no power to do?” But the Anti-Federalists, led by Thomas Jefferson, prevailed, and history has affirmed their wisdom as through expansive interpretations of the Necessary and Proper Clause and the Commerce Clause the mantle of federal power has come to envelope virtually every aspect of life from the light bulbs in our ceilings to the “individual mandate” to purchase health insurance. The enumeration of rights stands as a bulwark against that tide of federal authority in the sphere of private life, speech and conduct. On the other hand, the Ninth Amendment lifts its staying hand against the argument that these rights, and only these, stand between the citizen and his seemingly omnipotent (and, with digital technology, increasingly omnipresent) government.
That the rights enumerated in the first eight amendments are not all the rights we possess may strike one at first as a challenging notion. For rights that went unenumerated at the time, but became “self-evident” (in the words of the Declaration) much later, consider the right to be free, expressed in the Thirteenth Amendment prohibiting slavery (1865); the right to vote (Amendment XIV in 1870); and the right to vote for women, which came a half-century later (Amendment XIX in 1920). Except for the salutary effect of the Ninth Amendment, it might have been presumed that no other fundamental human rights existed outside of those enumerated in 1789 – that the “canon of human rights” was closed, not subject to further elaboration through constitutional amendment. Or perhaps what is worse, it might have been supposed that all “rights” secured by the people through amendment of the Constitution subsequent to the Founding were not “fundamental” human rights, but only positive political rights secured through an effective application of the Social Contract. For unenumerated fundamental rights that have yet to be affirmed in the written constitution, consider the right of conscience; the right of parents to raise and educate their children outside of the government school system (unrecognized in parts of Europe and elsewhere), or the right to be free from genetic manipulation.
Mark Twain quipped, “Some compromise is essential between parties which are not omniscient.” Our generations, and generations to come, will have to struggle with the meaning of rights enumerated and unenumerated, and with the wisdom of further constitutional amendments. Thankfully, because the two great forces in the making of the Constitution were willing to admit their fallibility and broker resolutions, we have the wisdom of the Bill of Rights, and the wisdom of the “Bill of Other Rights” – the Ninth Amendment.
Steven H. Aden is the Senior Counsel for the Alliance Defense Fund, http://www.alliancedefensefund.org/ .
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Perhaps more than any other Amendment, the 6th Amendment protects the liberties of the American people most directly. It is so effective in carrying out this goal that most Americans give its protections little thought or consideration.
By setting up the framework which limits the ability of the government to arbitrarily accuse and incarcerate the citizens at large the 6th Amendment minimizes the likelihood that criminal charges will be filed against political enemies of the state. In America no one can be arrested, tried, sentenced and imprison without it occurring under a set of rules in public, with a written record that can be accessed by the public and members of the media. Prior to the adoption of the 6th Amendment, these protections didn’t exist for large parts of Europe and Asia.
There are seven elements of the 6th Amendment:
Speedy Trial: As recognized by the Supreme Court this provision has three obvious benefits to the accused
- To prevent a lengthy period of incarceration before a trial. In other words the accused won’t be giving unlimited detention without having been tried and convicted.
- To minimize the effects of a public accusation. Undue suffering from a false accusation shouldn’t occur for more than an absolute minimum amount of time.
- To ensure that too much time didn’t lapse making it harder for the accused to defend himself either as a result of death or sickness of witnesses or due to loss of memories by needed witnesses.
Public Trial: Under its terms the trial must be open to the public and accessible by the media. Interestingly, this right predates English common law and possibly even the Roman legal system and has been thought to be essential to ensure that the government can’t use the court system as an instrument of persecution because the knowledge that every criminal trial is open and accessible to the public operates as an effective restraint.
Impartial Jury: Unlike a trial in which a judge or panel of judges make a decision, a jury trial is a legal proceeding in which the jurors make the decision. Interestingly the size of the jury is universally assumed to be 12 but in state criminal trials it can be as few as 6 individuals and in Ancient Greece a criminal trial might include over 500 persons in the jury. No matter the actual size, it is essential that the individuals who make up this jury be free of bias and prejudice. They should be representative of the population at large from which the accused comes from but should not be his immediate family or close friends.
Notice of Accusation: It is not sufficient that the state merely take the time to accuse an individual. The government must also inform the accused of the specific nature and cause of the accusation and do so in a way which makes it reasonably possible for the accused to mount a defense against the charge. Additionally all of the charges must be outlined and must include all ingredients necessary to constitute a crime.
In other words, the government can’t secretly charge you with speeding or tax fraud and yet not let you know specifically how or when you committed the crimes. They must be specific and precise in order to make it possible for you to explain, justify or otherwise defend yourself against the charges.
Confrontation: The right to directly question or cross-examine witnesses who have accused a defendant in front of the jury is a fundamental right which like the impartial jury and public trial requirement pre-dates the English legal system. A variation of this right is referenced in the Book of Acts which describes the Roman governor Porcius Festus, discussing the proper treatment of his prisoner the Apostle Paul: “It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges.”
Compulsory Process: Like the confrontation clause, the right of “Compulsory Process” protects Americans from unfair criminal accusations by allowing them to be able to obtain witnesses who can testify in open court on their behalf. Even if a witness does not wish to testify, compulsory process means that the state can subpoena him and force the witness to testify or be in contempt of court. If a person did not have compulsory process, witnesses who know of your innocence but who simply didn’t wish to be involved could lead to a guilt conviction of an innocent person. Embarrassment or fear are not legitimate excuses to avoid compulsory process because this right is designed to ensure the accused has the opportunity to present his strongest defense before the jury.
Counsel: Perhaps the most meaningful of all of the 6th Amendment rights, is the right to select the attorney or counsel of your choice to represent you in a criminal case. While much attention has been focused on the issue of when and whether every accused person must be provided with a minimally competent attorney, the framers felt that the greatest threat was not being able to hire the advocate of your choice. As early as the year 1300 there was an advance trade made up of individuals who represented or advocated on behalf of accused individuals or individuals who needed to make special pleadings before the government. At the time of the founding of the United States most of the colonies had adopted a policy of allowing accused individuals in all but the rarest cases the right to hire the counsel of their choice to aid in their defense. In other words the framers emphasized the importance of the accused having the option either through his own resources or through that of his friends and family to hire the best and most talented advocate and to prevent this would be considered an injustice. Even though modern litigation over this provision focuses more on the need to insure that every one is provided an attorney “even if they can not afford one” the greatest benefit of this provision is that every individual may choose to expend any or all of their resources to find the most capable lawyer they desire.
The 6th Amendment embodies much of the Founder’s concerns about the potential abuse of the individual by the government. The founders were quite familiar with the list of abuses by the English monarch. It is interesting to note that of the 26 rights mentioned in the first through the eighth amendments, 15 of them have something to do with criminal procedure and notably 7 of those 15 are found in this amendment.
Marc S. Lampkin is a Vice President at Quinn Gillespie
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
In the realm of constitutional law, obscurity knows no better companion than the Third Amendment of the U.S. Constitution. No direct explication of the Amendment appears in the reams of opinions the Supreme Court has issued since 1789. In fact, save for Engblom v. Carey (1982), no explication offered by the whole of America’s judicial branch directly engages the tenets of the Amendment. And yet, the significance of the Third Amendment lives on as a jewel that has an inherent value which cannot be augmented or diminished by present-day utility.
The common law lineage of the Third Amendment stretches deep into history. Early Anglo-Saxon legal systems held the rights of homeowners in high regard—viewing firth (or peace) to be not a general thing encompassing the entire community, but rather a specific thing comprised of “thousands of islands . . . which surround the roof tree of every householder . . . .” But Saxon-era legal institutions never had to contend with quartering issues. This is due primarily to the absence of standing armies and the reliance on fyrd—a militia to which all abled bodied men owed service for a period normally not to exceed forty days in a given year. Not until the Norman Conquests of 1066 did popular grievances against quartering (also known as billeting) begin to manifest.
Attempts to codify provisions against quartering predate the Magna Carta—most notably appearing in 12th century charters like Henry I’s London Charter of 1131 and Henry II’s London Charter of 1155. But early attempts to prevent involuntary quartering by law proved inadequate, especially as armed conflicts transitioned from feudal Saxon-era fyrds to monarchs hiring professional soldiers. Men of questionable character comprised the bulk of these mercenary armies. Kings pressed criminals into service in exchange for having crimes and misconduct forgiven. Though they fought well, these men would draw little distinction between friend and foe and would continually mistreat civilians.
As time drew on, other efforts to quell quartering fell well short of success. The problem compounded exponentially under Charles I, who engaged in expensive and wasteful wars that spanned across Europe. Charles I conducted these wars without receiving approval from Parliament. Parliament balked at the idea of financing Charles’ wars—forcing the soldiers in Charles’ army to seek refuge in private homes. By 1627, the problem became severe enough that Parliament lodged a formal complaint against quartering in its “Petition of Right.”
But the “Petition of Right” did nothing to change quartering practices. During the English Civil War, both Royalists and Roundhead armies frequently abused citizens through quartering—despite the official proclamations that damned the practice. During the Third Anglo-Dutch war, conflicts between soldiers and citizens erupted over forced quartering. In 1679, Parliament attempt to squelch concerns by passing the Anti-Quartering Act, which stated, “noe officer military or civil nor any other person whatever shall from henceforth presume to place quarter or billet any souldier or souldiers upon any subject or inhabitant of this realme . . . without his consent . . . .” James II ignored the Act and the continued grievance over billeting helped propel England’s Glorious Revolution. Upon William II’s ascension to the throne, Parliament formulated a Declaration of Rights that accused James II of “quartering troops contrary to law.” Parliament also passed the Mutiny Act, which forbade soldiers from quartering in private homes without the consent of the owner. Parliament extended none of these limited protections to the colonies.
In America, complaints against quartering began surfacing in the late 17th century. The 1683 Charter of Libertyes and Privileges passed by the New York Assembly demanded that “noe freeman shall be compelled to receive any marriners or souldiers into his house . . . provided always it be not in time of actuall warr in the province.” The quartering problem in the colonies grew exponentially during the mid-18th century. The onset of the French-Indian War brought thousands of British soldiers onto American shores. Throughout much of Europe, the quartering issue had dwindled due to the construction of permanent barracks. Colonial legislatures recoiled at the thought of British soldiers having such accommodations and repeatedly denied British requests for lodging.
The close of the French-Indian War brought about even more challenges. In an attempt to push the cost of defending the colonial frontier onto the colonists, Parliament passed the Quartering Act of 1765. The Act stipulated that the colonies bear all the costs of housing troops. It also legalized troop use of private buildings if barracks and inns proved to be insufficient quarters. In an attempt to secure the necessary funding for maintaining the army, Parliament passed the Stamp Act—“as a result, the problems related to the quartering of soldiers became entwined with the volatile political issue of taxation without representation.”
Quartering issues continued to surface, worsening gradually with each occurrence. In 1774, Paliament passed a second Quartering Act that was more arduous than the first. Due to its specific legalization of quartering in private homes, the second Quartering Act would become one of the “Intolerable Acts” lodged against the King and Parliament. Grievances against British quartering practices appeared in a series of declarations issued by the Continental Congress: the Declaration of Resolves, the Declaration of Causes and Necessities, and the Declaration of Independence.
After successfully gaining independence from Britain, many states enacted new constitutions or bills of rights that offered protection against involuntary quartering. As had been the case in England, the quartering issue was entwined with the maintenance of a standing army. The 1787 Constitutional Convention, and the Constitution that arose from it, gave Congress the power to raise and support armies. The Constitution focused little attention on individual rights. That omission troubled many delegates both at the Convention in Philadelphia and at the ratification debates throughout the states.
Chief among the concerns pertaining to the military provisions of the Constitution was a fear that the new American government might be as oppressive as the British one it aimed to replace. As Patrick Henry noted:
“one of our first complaints, under the former government, was the quartering of troops upon us. This was one of the principal reasons for dissolving the connection with Great Britain. Here we may have troops in time of peace. They may be billeted in any manner—to tyrannize, oppress, and crush us.”
The Anti-Federalists routinely stressed the Constitution’s lack of protection against standing armies and involuntary quartering. Many states echoed the concerns of the Anti-Federalists. Of the ninety types of provisions submitted to Congress, only seven appeared more frequently than provisions addressing quartering.
But James Madison and the Federalists viewed such provisions as unnecessary. Any Constitution that provides a democratic process for the maintenance of a standing army will, by consequence, solve any quartering issues that may arise. As Madison noted during the Virginia ratification debates:
“He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us. This is not the whole complaint. We complained because it was done without the local authority of this country—without the consent of the people of America.”
Madison also expressed skepticism about the need for a bill of rights. In a letter to Thomas Jefferson, Madison eschewed bills of rights as “parchment barriers” easily trampled by an overwhelming majority in a respective state. Nevertheless, Madison took up the challenge of constructing a federal bill of rights and among his proposed amendments, which he derived from the previously mentioned state proposals, was an amendment addressing quartering.
The House debate on the Amendment was short. A few members wished to edit the text of the Amendment, imbuing in it a stronger protection of the homeowner, but all such measures were defeated and the Amendment became one of the ten enshrined in the Bill of Rights.
As mentioned before, the Third Amendment is one of the least litigated provisions of the Constitution. Perhaps this lack of legal cases is due to the self-evident nature of the Amendment. As Justice Joseph Story notes, “this provision speaks for itself. Its plain object is to secure the prefect enjoyment of that great right of the common law, that a man’s house shall be his own castle, privileged against all civil and military intrusion.” Yet the absence of litigation does not itself entail that the Amendment has at all times existed without violation.
Involuntary quartering on the part of United States soldiers appears to have happened during the War of 1812. While Congress did declare war on England, thus giving itself the authority to regulate quartering, it failed to provide any regulations governing the practice of billeting. After the war, Congress did provide payment to those whose property was used “as a place of deposit for military or naval stores, or as barracks . . .”
The Civil War brought about another instance of quartering under the Third Amendment—though its case is substantially more complicated than the War of 1812. Congress did not declare war on the Confederacy and it is unclear how periods of insurrection affect the Third Amendment’s distinction of peace and war. Regardless, even if a de facto state of war existed, Congress never issued any regulations governing the practice of quartering. Yet instances of the Union Army quartering in private homes appear in both loyal and rebel states. The question of whether this action violated the Third Amendment is unsolved and is likely to remain so, as no Third Amendment case ever arose out of the Civil War era.
The lack of litigation and judicial action has left open some interesting questions about the applicability of the “self-evident” Third Amendment. One of these questions involves the Amendment’s applicability to the states. Today, America’s troops enjoy barracks and accommodations so sufficient that it seems unlikely that troops would ever need to be garrisoned in a private home. Yet the question remains that, if an issue did somehow arise, would a state’s National Guard regimen be obligated to follow the Third Amendment (if no such provision existed in a state’s Constitution)? That question arose in 1982 with Engblom, yet the question still lacks a definitive answer.
Though it is sometimes ridiculed and is rarely discussed, the Third Amendment enshrines a right with a common law history as rich as any. Quartering abuses committed against the colonists propelled America into the Revolutionary War. After victory, the Founders worked to protect the public against any future abuses. The onset of the modern military tactics has seemingly thrown the usefulness of the Third Amendment into doubt, yet the Amendment still provides interesting and unanswered questions about federalism and the interaction of overlapping constitutional protections.
 This sentence paraphrases a metaphor from Grounding for the Metaphysics of Morals in which Immanuel Kant describes a good will as “a jewel … which has its full value in itself. Its usefulness or fruitlessness can neither augment nor diminish this value.”
 Bell, Tom W.. “The Third Amendment: Forgotten but not Gone.” William and Mary Bill of Right’s Journal 1, no. (1993): 117-118.
 Fields, William S., Hardy, David T., “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History .” American Journal of Legal History 35, no. (1991): 395-397.
 English Historical Documents: 1042-1189, at 945 (David C. Douglas & George W. Greenway eds., 1953) (“Let no one be billeted within the walls of the city, either [a soldier of the King’s household] or by the force of anyone else.”)
 Fields & Hardy supra note 3 at 403
 The late Tudors had a bit of success expanding and improving the traditional militia system, but this system collapsed under James I, a pacifist who favored the repeal of militia statutes.
 Hardy, B. Camron. “A Free People’s Intolerable Grievance: The Quartering of Troops and the Third Amendment.” Virginia Calvacade 33, no. 3 (1984): 127
 Fields & Hardy supra note 3 at 403 – 405
 Great Britain. Statutes of Great Britain. London: , 1950. Print.
 Bell supra note 2 at 123
 Schwartz,Bernard. Roots of the Bill of Rights. Bernard Schwartz. 1980
 Fields & Hardy supra note 3 at 417
 Id at 417-18
 The Founder’s Constitution. 1 ed. 5, Amendments I-XII. Philip B. Kurland and Ralph Lerner. Indianapolis: Liberty Fund, Inc., 217
 Fields & Hardy supra note 2 at 424
 Kurland & Lerner supra note 14 at 217-18
 Id at 218
 Bell supra note 2 at 136
 Little, Charles. “Statues at Large Vol. 3.” A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 – 1875 . Available from http://memory.loc.gov/ammem/amlaw/lwsllink.html. Internet; accessed 22 May 2011.
 Bell supra note 2 at 137
 Id at 141-142
Robert Chapman-Smith is the Instructional Design Associate at the Bill of Rights Institute, an education non-profit based in Arlington, Virginia. He holds a Bachelor of Arts in Philosophy from Hampden-Sydney College.
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.
First Amendment to the U.S. Constitution
Perhaps the most important and the most contentious portion of the United States Constitution, the First Amendment to the U.S. Constitution—the first of the Bill of Rights—was instrumental in ensuring that the new Constitution would be accepted by citizens of the fledgling United States at the end of the eighteenth century. The Constitution set up a government of limited, enumerated powers. “Enumerated powers” meant that the federal government, as originally envisioned, could take no action unless the Constitution explicitly granted the government the power to take that action. In theory, then, the federal government could not restrict freedom of speech because the Constitution did not give Congress permission to restrict freedom of speech. Many American citizens, however, having just fought a war resulting from Britain’s disregard for their rights, were leery of entrusting their newly-won freedom to a government with no explicit protections for individual rights. They did not believe that the “lack of permission” for Congress to act was strong enough protection. To address these concerns, twelve articles, known as the Bill of Rights, were submitted to the states for ratification as amendments to the Constitution. Of these twelve articles, the last ten were ratified in the eighteenth century (the second article of the Bill of Rights was ratified in 1992 as the 27th Amendment to the U.S. Constitution). Unlike the main text of the Constitution, the articles of the Bill of Rights are explicit prohibitions on the government, designed to prevent the federal government from being able to trample on the rights of states and citizens.
The First Amendment famously begins, “Congress shall make no law….” The First Amendment originally limited only Congress and, thus, the federal government. State and local governments were not limited by this (or any other) amendment to the Constitution. The First Amendment was considered to only apply to the federal government until 1925 when the Supreme Court, in Gitlow v. New York, held that the Fourteenth Amendment, which applies to the states, “incorporated” the First Amendment.
Following the statement that the First Amendment applies to Congress are five clauses, each protecting one aspect of the flow of ideas. These five clauses are the Establishment Clause (“…respecting an establishment of religion”), the Free Exercise Clause (“or prohibiting the free exercise thereof”), the Free Speech Clause (“or abridging the freedom of speech”), the Free Press Clause (“or of the press”), and the Assembly and Petition Clause (“or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).
The first two clauses of the First Amendment protect religious liberty. The Establishment Clause, a reaction against the abuses of the Church of England, was originally intended to prohibit the government from establishing an official national religion or supporting one religious denomination over another. This clause has since been re-interpreted to say that government may not favor religion in general, thus leading to increased attempts to secularize society, including banning any possibly perceived “endorsement” of religion by the government. The Free Exercise Clause is the counterpoint to the Establishment Clause. While the Establishment Clause prevents the government from establishing a religion, the Free Exercise Clause prohibits the government from interfering with individuals’ religious expression.
The Free Speech Clause of the First Amendment protects the expression of ideas. Not all speech is equally protected, however. Political speech is afforded the greatest protection under the First Amendment. Commercial speech—speech done to make a profit—is given less protection. The guaranty of freedom of speech does not extend to certain types of speech, such as obscenity or speech that incites immediate violence. The government is also allowed to place some reasonable limits on when, where, and how speech can take place, but these limits cannot be used to favor one viewpoint over another. For example, a government can prohibit the use of megaphones at night near residential areas, or a government can prohibit a demonstration from walking through a secured military base. If, however, the government allows one group to use a megaphone at night near a residential area, then the government cannot prohibit another group from doing so based on the viewpoint that the second group espouses.
The Free Press Clause is closely related to the Free Speech Clause, but applies to printed communications. This clause has also been used to strike down taxes that specifically target newspapers and laws that require “fairness” in reporting.
Finally, the Assembly and Petition Clause protects the right of people to assemble together and to petition the government. This clause is important in a republic because petitioning the government is one of the main ways the citizenry exercises its sovereignty. While this clause protects the right of the people to petition the government, it does not require that government officials actually listen to or respond to any petition attempt.
Ultimately, a true republican form of government cannot exist apart from the free flow of ideas. Additionally, this amendment ensures that the government cannot impose a state orthodoxy, violating the conscience of those who hold unpopular views or forcing them into intellectual submission. This amendment also ensures that open debate is not thwarted, for as John Milton said, “Though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.”
Kelly Shackelford, Esq., is President/CEO for Liberty Institute, a post he has held since 1997. A constitutional scholar, Mr. Shackelford has argued before the United States Supreme Court, testified before the U.S. House and Senate on Constitutional issues, and is on the Board of Trustees of the United States Supreme Court Historical Society.
Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Mr. Butterfield graduated from Harvard Law School in 2007. He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.
Article I, Section 4, Clauses 1-2
1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5 unless they shall by Law appoint a different Day.
Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17th Amendment, Congress may supersede state law.
This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?
Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.
The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.
In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.
Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.
Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.
Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.
Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”
When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”
Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.
State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/ .
Hello from Mt. Vernon Virginia! As Janine mentioned in her essay last night, we have been very busy over the past few days reading essays and poems, viewing short films and public service announcements, listening to songs, and looking at artwork, all submitted by a diverse group of young people across the country, with theme of how the Constitution is relevant to them today!
The good news is that we received an overwhelming response for our first “We The People 9.17 Contest!” The entries have been inspiring! The contest entrants all worked hard and put forth their very best efforts and creativity!
The bad news is that there are only so many hours in a day, and I have discovered that every now and then, I actually need to sleep! I have missed writing essays on Federalist Papers for a few days, but have been greatly encouraged by the knowledge of, respect for, and dedication to the United States Constitution by the young people who entered the contest.
Stay tuned for updates on the “We The People 9.17 Contest,” including the announcement of our distinguished panel of judges, and September 17 activities in Philadelphia where we will reveal the contest winners!
Federalist No. 59 discusses the advantages of the federal government regulating its elections. As someone who has worked in federal campaigns, I believe it makes sense to have uniform federal election laws, and the only way to achieve uniformity, is to regulate these elections federally.
Through a series of legislative acts, beginning in 1867 when Congress passed a law prohibiting officers from soliciting political contributions from Navy Yard workers, Congress has passed laws to require public disclosure of federal campaign contributions, set limits on individual contributions to federal campaigns, prohibit certain sources of campaign donations, restrict certain types of federal campaign expenditures, and in certain cases, limit federal campaign expenditures if public financing is accepted. Because of abuses that occurred during the Watergate era of our country, the Federal Election Commission (FEC) was established in 1975 as an independent agency, with civil enforcement jurisdiction, authority to write regulations, monitor compliance, and serve as a centralized source of information about federal elections, federal campaign committees, and federal campaign donors.
If you have never taken a few minutes to explore the Federal Election Commission website: www.fec.gov, I highly recommend it. You will find it fascinating! With a few clicks (“Campaign Finance Reports and Data” on left sidebar, and then “Search the Disclosure Database”) you can search Federal Campaign Contribution Data in a variety of ways. You can also read about the latest campaign finance laws and regulations and a history of the FEC.
Like all other congressional powers, our founding fathers devised checks on Congress’s regulation of Federal elections. One check, the States’ power to appoint U.S. Senators, was removed with the adoption of the 17th Amendment. This was an important structural check, noted by Hamilton in Federalist No. 59 as “that absolute safeguard which they (States) will enjoy under this provision.”
While the States have lost their power to have a voice in Congress’s power to regulate federal elections, the judicial branch is still actively engaged. The Supreme Court’s recent decision in Citizens United vs. the Federal Electio Commission (holding that the First Amendment prohibits restrictions on corporate financing of independent advertising in federal election campaigns) is one example.
Of course the most important check is our vote. As Janine Turner stated in her Fox News Op-Ed, Your Vote is Your Voice . Ues it! Research how your member of Congress votes on Federal Election Law issues. Do you agree or disagree? Let your vote be your voice on November 2, 2010!
Monday, July 19th, 2010
The very first part of the First Amendment to our Constitution reads as follows: “Congress shall make no law respecting an establishment of religion…” What does this text (commonly known as the Establishment Clause) mean? Does it mean the same thing today as it did when it was enacted? Today’s post will focus on this topic.
The first ten Amendments to the United States Constitution were adopted because many of the Founders feared that the new federal government they were setting up would become tyrannical. Other Founders did not share that fear, because the federal government was to have only enumerated powers and not general powers to do anything it deemed to be in the general welfare. [Today many in Congress seem to believe that the federal government has just this plenary power – perhaps this is a tribute to the prescience of the “anti-Federalists” who insisted on inserting these amendments.] As regards the establishment clause, it is clear that at the very least it was meant to prevent the federal government from creating a new Church, on the model of the Church of England – let’s call it the “Church of the United States.” The fear was that this church would be “established” and funded with taxpayer dollars throughout the land. The creation of a compulsory, or even a subsidized, American church was precisely the kind of British model that the founders all wished to avoid, and so James Madison (who was one of those who felt there was no real risk of federal expansion anyway) was quite content to accede to the requests of his more nervous colleagues and write this prohibition into the Constitution. No federal church was established, of course, but the same people who adopted the Establishment Clause also created a national day of prayer, named Chaplains for the military academies and allocated moneys for the evangelization of Indian tribes. A few (notably Thomas Jefferson) wrote that government should be totally divorced from any religious actions, but even Jefferson as President allocated money to pay for priests and churches on Indian reservations, if the Indians so requested. Again, support for religion in general, without preference for any specific sect, was the order of the day.
But if an established federal church was to be prohibited by the clause, it is clear that established state churches were not to be touched (one early version of the clause also affected the states, but it was quickly abandoned). All the New England states (from Connecticut north), and all the Southern States (from Maryland south) had established churches at the time the First Amendment was adopted – different Protestant denominations in each state. Jews and Catholics suffered under various legal disabilities in different states until all were removed in the mid-nineteenth century. The states were quite clearly to be free to continue in this path – recall that the Clause states only that “CONGRESS shall make no laws…” After the Civil War, other amendments were adopted to ensure that the new American citizens (the freed slaves and their descendants) would have full citizenship rights in every state, and one of these Amendments, the Fourteenth Amendment (about which someone else will be blogging) was interpreted by the Supreme Court as incorporating most (likely all) of the limitations of the first ten Amendments against all the states. As the “incorporation” doctrine became entrenched, the case law concerning the Establishment Clause increased.
This case law slowly veered Establishment Clause jurisprudence away from non-preferentialism and toward antipathy to religion. In the 1879 Reynolds case (in which a Mormon unsuccessfully claimed a religious right to practice polygamy), the Supreme Court opined (though it did not have to decide this question to resolve the case at hand) that Jefferson’s declared view (that the federal government should not even acknowledge religious activity) was the authoritative meaning of the Establishment Clause. American legal history was replete with examples to the contrary (not only most Founders’ declarations, the national prayer day, the chaplaincies and the Indian missions, but also the declaration of Christmas as a national holiday and the mentions of God on our money and on our Supreme Court building). In 1947, the Everson case allowed states to pay for school busses for all students (even those who frequented religious schools) but signaled that governments’ recognition of citizens’ religious choices could go little further. Since then cases have denied the right of public school boards to have ecumenical invocations before solemn events. Last week a federal judge struck down National Prayer Day – though this had been an institution since the time of the Founding!
In God We Trust is a maxim many of us hold dear. Most of our Presidents finish their speeches by asking God to bless our people. Our Supreme Court itself is adorned with multiple sculptures depicting the Ten Commandments, and the Justices begin each and every session with the intonement, “”God save the United States and this honorable court.” Will these reminders of the ultimate authority of the values upon which America was built be one day banned? The answer to these questions and more ultimately will be resolved by the Supreme Court’s interpretation of the U.S. Constitution and the Bill of Rights.
April 27, 2010
Professor of Law
George Mason University School of Law
Arlington, Virginia 22201
Howdy from Texas. Day 5 of the Constitution! As my daughter, Juliette said, “Technically it’s day 6 but the first day was like a “xii” in a book.” I thank you for joining us today. I am having a WONDERFUL time and I am just rather thrilled to have this opportunity to study the United States Constitution with “y’all” – as we say in Texas. I hope you are reading the daily readings with your children and/or loved one! Please tell your children about our, “We the People 9.17 Contest.” Scholarships, prizes, travel!!!
I want to thank Michael Krauss for his superb essay today on the Constitutional Amendments! I am glad Michael focused on the First Amendment because I am absolutely intrigued with it and I believe it is incredibly relevant today.
I have been writing on the First Amendment quite a bit lately. As I explained in my daily video podcast today, (I do one every day), I have always thought of the First Amendment as “freedom of speech.” Of course, this is one of our most treasured rights. However, I am also starting to recognize the First Amendment as, “freedom of religion.” The beginning of the First Amendment is well known and has been parlayed into the (misconstrued) American mantra of “separation of church and state.” It is as follows, “Congress shall make no law respecting an establishment of religion..” However, the six words that follow are rarely discussed and little known,
“or prohibiting the free exercise thereof..”
“Or prohibiting the free exercise thereof..” Amazing. With these six words, the First Amendment states that it is our right as Americans to express our religion. Both of these statements stemmed from the religious persecution in Europe. Our European ancestors were forced to abide by a mandated religion and were not allowed to freely express their personal religious beliefs.
Thus, this amendment is brilliant and paid for by the blood, sweat and tears of our ancestors. No law may stipulate that an American citizen must follow a certain religion. Great. But also, no American may be denied his/her right to exercise his/her religion – anywhere. The First Amendment does not state, “You may express your religion – but only in certain places.”
I believe that these six words, “or prohibit the free exercise thereof” need to be promulgated across America. They need to become the new American mantra. Our forefathers did not deny God, the Divine Providence, or our Creator a place in government then – nor should He be denied that place now.
16 Responses to “April 27, 2010 – The Amendments to the United States Constitution – Janine Turner”
Julie Bedard says:
Very interesting perspective…I never thought about the phrase “or prohibiting the free exercise thereof” in this manner until now. You are dead on Janine in your analysis of this Amendment. Let us all remember separation of church and state does not mean “Freedom from Religion”. I no longer will feel as if I have to hide my faith!
Bob Greenslade says:
I am surprised the preamble to the Bill of Rights did not get the attention it deserves because the first paragraph discloses the intent of the Amendments.
It states the sole purpose of the Amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended.
Based on the wording of the preamble, the Amendments, when adopted, placed constitutional prohibitions on the powers of the federal government to prevent that government from “misconstruing or abusing its powers” concerning the rights of the people. Thus, a document that restrains the powers of the federal government cannot be the source of the individual rights of the American people.
The Amendments would be easier to understand if they had been titled the Bill of Prohibitions or Bill of Restraints. In the case of individual rights, the Amendments enumerate rights that exist independent of the Constitution and deny the federal government the general authority to legislate or encroach upon those rights. The Amendments are simply an extension of the system of limited government in an enumerated form.
Unfortunately, the preamble to the Bill of Rights remains one of most overlooked provisions of the Constitution.
Vince Scaramozzi says:
I Have the two volume set of the “The Debates on the Constitution” from the Classics of Liberty Library. They are arranged in chronological order and contain both the Federalist and Anti-Federalist papers. I have read most of them. They are a difficult read. Actually, the Anti-federalists were the primary reason the Bill of Rights were presented and subsequently ratified. The Constitution would not have been successfully ratified without the support of the Anti-federalists. They understood that there was a need to clarify aspects of the constitution to prevent misinterpretation and subsequent abuse. The preamble to the bill of rights verifies this purpose.
With regard to the 1st Amendment and its religious clause; I agree that the purpose was to prevent Government from interfering with the peoples’ Right to worship or not worship as they chose. The first part of the clause. (in part) “Congress shall make no law respecting an establishment of religion,” should be considered very carefully. This was the basis Jefferson’s “wall of separation between church and state.” statement to the Danbury Baptist Association. Considering that ‘morality’ is an establishment of religion; could it not be construed that the clause may be understood to also mean no law establishing morality or immorality shall be established?
I have heard the argument that ‘murder’ and other injurious actions are immoral. I agree but there is also the fact that they are also harmful and obviously exhibit perceptible harm. However, there are many actions that are considered immoral but do not inflict perceptible harm. Therefore, these actions should not and do not constitute criminal behavior. Immorality is an individual’s personal perspective and is not subject to state intervention. Actions that inflict perceptible harm or injury upon another human being or their property is a criminal act! Prostitution is immoral. However, it is also a contract between two consenting adults. In the event no physical involuntary harm comes to either party; no crime has occurred. The same goes for recreational drug use. If no harm results then no crime has occurred. However, if an individual inflicts harm due to their impaired state it is imperative that they are punished for that crime regardless or their impairment.
By taking away our “RIGHT” to choose an action based on morality or immorality is an infringement upon our unalienable rights.
hollis ramsey says:
as a nontheist, i am of course interested in the right to freedom from religion. i believe that the Ninth Amendment implicitly gives me the right to be free of religion. the unenumerated rights are i think the most important phrase in the entire Bill of Rights. if we paid more attention to the Ninth Amendment, we wouldn’t need several of the lateramendments — slaves would be free, all men and women would have the right to vote, prohibition would never have happened, e.g.
the Bill protects individual citizens from the tyranny of the federal government. it is a list of “they shalt nots” — not “thou shalt nots.” as such, the Ninth Amendment is probably the most important of them all. and notice that it is placed — deliberately, i believe — ahead of the Tenth Amendment’s guarantee of states’ rights vs. federal rights. placement matters. the rights of the individual trump the rights of the state or of the federal government.
and, in the light of the Ninth Amendment, i plead with you to keep god out of government, including out of theConstitution and Bill of Rights. i do not have a favorable opinion of any gods, including the judeo-christian one so often quoted. we are not a nation “under god” as long as i — and the 12-14% of my fellow americans share that opinion. how can we be indivisible if there are those of us who are not “under god”? the Ninth Amendment gives us the right to be free of god and religion. i am not godless — i am god-free. and i have that right, thanks to the unenumerated rights of the Ninth Amendment.
Hollis: I’m sorry, but you do not have a right to be free “from” religion. The Constitution is very explicit in stating that. You have a right to expect your federal government not to establish a preferred national religion, under the original meaning of the Establishment Clause, but even at the time, several of the original 13 stated did have an established state religion. The argument that religion and government were to be kept apart was aimed only at the federal government, not the state governments.
The restrictions on government inherent in the Establishment Clause were not technically made applicable to thestates until the 14th Amendment was ratified in 1868, and it was not until 1947 that the Supreme Court began interpreting the Establishment Clause as applicable to state laws regarding religion. As for the current trend of trying to remove all reference to religion in the public sphere, that didn’t start until well into the 1980s.
And those efforts are incorrect, and are caused largely by misreadings of the First Amendment.
The United States is not an atheist nation, nor is it a Christian nation, nor an Islamic nation. It is a nation of ALL religions, a place of religious pluralism where the Free Exercise Clause demands of every citizen tolerance of the peaceable exercise of religion by every other citizen, regardless of the form or beliefs involved. While it is true that you can be “god-free” in your own life, your preference for living without reference to or involvement with God does not impose upon anyone else a burden to hide their faith or protect you from exposure to their expressions of religion. To argue that the Establishment Clause gives you the power of the dissenter’s veto, allowing you to suppress the free expression of religion by others defies the purpose of the Free Exercise Clause, which expressly protects the right to place one’s religion on display in the public square.
The stricture of the Establishment Clause is limited to government agents, who, according to the Supreme Court case “Lemon v. Kurtzman” are required to maintain strict religious NEUTRALITY, not religious hostility. Indeed, the Free Exercise clause places an affirmative duty on all levels of government to defend the exercise of religion against suppression by anyone, including government.
Thus, the requirement of the Constitution is that we must all tolerate the peaceable acts of others, and may not misuse the law to suppress the expression of religion by others, who have an individual right to use and enjoy their public lands and property, within reasonable limits, while doing so.
While you do indeed have a right to be an atheist, you do not have a right to use that atheism to suppress the religious beliefs or practices of others.
An excellent example of this constitutional requirement for tolerance by all is Devil’s Tower, Wyoming. Several Indian tribes venerate and worship this geological formation, which they call Bear Butte, as a place of religious power, and have done so for many hundreds, if not thousands of years.
But Devil’s Tower is a national monument and therefore belongs to all the people of the United States, who have an equal right to use and enjoy it in a reasonable and peaceable manner according to their own desires, consistent with the laws intended to conserve the area.
The feature is a popular spot for rock climbing, and many hundreds of climbers scale the butte every year. Indians object to this activity because they consider the butte to be sacred, and this is particularly true in June, when the tribes hold religious observances around the butte.
This is a classic example of the collision of secular activities and religious activities in the public sphere. Many atheists feel that religious observances should not be allowed, since approving them and issuing permits constitutes “establishing” religion by lending government support to religious activities on public lands. But this is not the case, as the Supreme Court lays out in “Lemon v. Kurtzman” where it set forth a three-pronged test to determine whether a particular government act violates the Establishment Clause.
The test consists of three questions:
First, the government’s action must have a legitimate secular purpose.
Second, the government’s action must neither advance nor inhibit religion.
Third, the government’s action must not “excessively entangle” the government in religion.
If any one or more of the prongs is violated, the government’s action violates the Establishment Clause.
So, may the government prohibit the free exercise of religion by the Indian tribes in venerating and worshiping Bear Butte at particular times by denying them a permit? No, because that would violate the second prong of the test by inhibiting their right to free exercise of religion.
Can the government issue them a permit for such activity? Yes, it can, because issuing a permit for a religious meeting is a ministerial duty that has a secular purpose of protecting the resource which neither advances nor inhibits religion, since permits are required for all group activities at the monument.
Can government prohibit climbers from climbing on Devil’s Tower to protect the sacredness of the butte, either generally or during the June religious observances by Indians? No, because that would advance the religious rights of the Indian tribes over the secular rights of the climbers to use and enjoy their public lands, which violates the second prong of the test.
Thus, while the Indian tribes must be permitted to worship, they must tolerate the climbers, and likewise the climbers must tolerate the religious expression of the Indians, even though both activities make use of the same public land.
Vince M says:
With what I just read when I went to school we said “The Pledge of Allegiance”, now due to “other” religious beliefs forced upon us, it has been taken out of our public schools. I am sorry but I get confused, whose country is this?
Hollis….just as placement is important, so too is wording. It is Freedom “OF” Religion….not “FROM” Religion.
Jeremy Ervin says:
I hate to burst your bubble, but there is no such thing as non-religion. That position is absurd on its face. Your unstated (and apparently unrealized) religion is secular humanism. Please hear me out. I agree that we would retain much more liberty if we actually adhered to the expressed-powers Constitutional structure as intended. However, your foundation for these statements is incoherent without understanding the Source of law.
God cannot be kept out of government as you suggest. If you believe, as you say, that the 9th amendment or any of the amendments “gives” you any rights, then the Constitution (i.e. the men who wrote it) becomes the lawgiver, and therefore is your god. So then, if man is the ultimate arbiter and authority of his rights, then man has become his own god. This is an inherently humanistic religious notion. On the contrary, the Constitution does not create rights. It simply guarantees rights that were correctly understood at the founding the united States by setting the scope and limitations of the federal government. Where do rights come from in the first place? The founders believed they come from the Lawgiver, who is God. They believed “that all men…are endowed by their Creator with certain inalienable rights…”
While I would agree that one cannot be coerced to worship God in any other way than according to the dictates of his own conscience, the Bill of Rights specifically guarantees freedom OF religion. It was John Adams who said, “Ourconstitution was made only for a moral and religious people. It is wholly inadequate for the government of any other.” This was not a minority view or understanding, but can be found throughout the statements of the founders in general.
Also, you can’t keep God out of the founding documents because He is explicitly included. Besides the fact that unanimous consent is given “in the Year of our Lord “, the Constitution points directly to the charter of the nation, namely the Declaration of Independence. Therefore, you can’t somehow leave out the critical import of the Declaration, which specifically refers to God as man’s Creator, appeals to the Supreme Judge of the world, and relies upon the protection of Divine Providence. Both documents are full of principles and precepts taken straight from the pages of Holy Scripture. This was not a mistake or simply the politically expedient road based on the times in which the founders lived. It was based on firm, deeply held religious convictions about the nature of God and mankind.
If we are not “under God”, then it is only because we have left our national religious moorings. I would suggest that our only alternative is to return to that same commitment to Almighty God that was the firm reliance of our founders, or else we are doomed to the driving winds and tossing waves of the open sea. Without an unchanging Lawgiver, rights are simply what someone else decides is acceptable for you, AKA tyranny.
Jeremy Ervin says:
Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other. “The Lord” specifically refers to the God of the Bible, and the founding fathers knew this. It was not that they thought non-religion was in any way acceptable. Rather, they understood the distinction between Church and State and their respective jurisdictions. Corporeal matters (man’s duty to man) was the jurisdiction of state government, and spiritual matters (man’s duty to God) was the jurisdiction of church government. Each sphere of government was directly accountable to God and did not have authority over the other.
Therefore, the plain statement was made in the first amendment that the federal government could in no way force man toward his religious duty to God. Not that man was absolved from that duty, but that the State had no jurisdiction there because that was a matter of the heart. The Church, however, did have that jurisdiction. And thus many presidents and other political leaders publicly called the people to repentance for their sins and pleaded for God’s grace upon the nation. They did not privatize their religion, but demonstrated it openly in their governance. They invoked the name of Almighty God, rightly understanding the Source and sustaining Power of law and judgment.
The prevailing notion today that we are pluralistic is incorrect. Neither does majority opinion on the matter make it correct. Perhaps we have turned into a pluralistic society over time, but that is only due to a lack of understanding and application of our national birthright. The entire root and foundation of the united States of America is Almighty God, the Creator of heavens and earth, not deism or a mystical feeling of some god-like entity out there somewhere, or anything else. I think it is impossible to find such notions in the writings of the founders. Instead we find prayer and supplication to God, and a clear recognition of His supervision all throughout.
E E Keller says:
As you do not have the right to you use your expression of religion to suppress beliefs or practices of others; which religious zealots do all the time.
The genius of the Founders is in their deep philosophical and political thinking and debate about the fundamental principles of government and society, and their discovery of principles of liberty and constrained government that resulted in the creation of the most successful political and social model in the history of the world. We don’t see that kind of careful political thinking on original principles much today, and that’s why, at least for me, the Founding Fathers are revered, not as supremely intelligent, but as unusually skilled in deep political and ethical thinking, far beyond most of what we see today. They were not more intelligent, they were simply more wise and careful thinkers.
For those who do not believe in deity, who are non-theistic in their beliefs, I believe that there is an objective, scientific and philosophical basis for what the Founders attributed to deity. For non-theists, the practical effect of referring to a Creator, and the assertion that our rights are granted by God, not man, is to ensure that the rights that we enjoy are not derived from the ever-changing political philosophies of man, but are an inherent part of our nature as living beings and thinking humans. It is the inherent nature of our rights that makes them unalienable, and non-theists must have an objective, intellectual basis for finding those rights to be inherent if we are to avoid having our rights characterized as state-granted and subject to the whims and caprices of the public will.
The Founders took as a principle that a Creator exists, and they wisely decided that because subjective rights, those that are subject to the whims and caprices of the ruling class, were not effective in protecting individuals against the tyranny of despots and their fellow men. So, they moved rights beyond the power of either man or government to grant or deny, into the philosophical realm of “natural rights” precisely in order to prevent what they rightly saw as the dangers of despotism and majoritarian tyranny that inevitably occurs when one man, or one group of men, are permitted to determine what rights another man, or group of men, may enjoy.
The Founders resorted to deity and religion because such beliefs were ubiquitous in their time and they did not see any need for any other rational basis for such rights. But it is true today that there are many Americans who are not theistic by nature, and it is likewise true that they ought to enjoy the same rights as any other person, and that therefore we should seek an objective, rational basis for our unalienable rights.
In the context of Creator versus Nature, whether a Creator exists or not is not terribly relevant to the philosophical construct of natural rights. Rights, in that non-theistic sense, accrue simply by virtue of our existence as human beings and the necessities of nature for social constructs to regulate behavior in communities. Rights are clearly a product of our intellect, but this does not mean that their origin cannot be derived from observations of our natural world and natural behavior. Natural rights are founded in natural principles, which is what gives them their intellectual strength when applied to human behavior outside the theistic realm.
For that reason I have for some time been trying to construct a logical and rational argument that derives our inherent rights as a function of natural processes, which I see as a companion to theistic belief, not in opposition to it. I call these derivations the Organic Rights, which are derived from organic laws of nature and natural behavior.
Every organism needs life, autonomy, the resources to survive, and the ability to reproduce in order to exist both as an individual and as a species. The Organic Rights are expressions of these fundamental organic needs as applied to human society, and it is my claim that human society cannot survive unless it respects those fundamental organic needs of all human beings any more than a species itself cannot survive if it does not fulfill the underlying organic needs. Thus, I express those fundamental organic needs as the Organic Rights, because without societal recognition and protection of those rights, individuals cannot survive and society cannot exist.
Every organism on earth seeks to preserve it’s own life. This instinct is seen everywhere in the natural world as a function of evolution. Every individual organism seeks autonomous life in that it will defend itself and its life when attacked by another organism. Therefore, the First Organic Law is that all living creatures pursue autonomous survival and will engage in self-defense to prolong life. From the First Organic Law I derive the following Organic Rights:
The First Organic Right is the right to life, for without the right to life, there is no purpose for any philosophical construct, and death is the result.
The Second Organic Right, the right to individual liberty, emerges because all living creatures strive for organic autonomy and individual liberty.
The Third Organic Right is the right to self-defense, because all living creatures naturally defend their lives when attacked, to one degree or another.
Next, we observe in nature that all living creatures will seek to find and obtain that which is necessary for their survival. Fundamentally this is energy, which comes in many forms. In addition, higher creatures will seek out shelter against the elements as well, as a part of the necessities of survival. From this natural behavior I derive the Second Organic Law; all creatures seek to obtain and secure to their own use the resources necessary for survival.
From this Second Organic Law I derive the Fourth Organic Right; the right to seek out, obtain and reserve to one’s exclusive use the resources necessary for survival, which is more simply stated as the right to the exclusive ownership and use of private property.
The Third Organic Law is that all creatures seek to reproduce and pass on their genetic material as a function of evolution.
From this I derive the Fifth Organic Right, which is the right to reproduce, more complexly stated as the right to form a relationship with a mate, engage in reproductive behavior, create a family and raise one’s children to adulthood.
Thus, I derive natural rights directly from natural behavior, without resort to deity or a Creator, but rather simply by reference to our nature as living beings. Those rights are inherent, and superior, and unalienable, and not derived from any social construct of mankind because they are necessary components of our very existence and being, without which no man, and no living creature, can survive and flourish.
This places at least these five Organic Rights above any inferior human social construct, and therefore places them beyond the power of others to disparage or deny as a matter of general social policy. Society may not morally deprive an individual of his Organic Rights absent some misbehavior on the part of the individual that makes it necessary to do so.
This construct does not disparage the concept of a Creator, or of God, but rather it simply describes the basis of superior unalienable rights from a non-theistic direction, for the benefit of those who choose to exercise their religious freedom non-theistically. It also serves to resolve the objections of non-theists to idea that our rights are divinely inspired, but without disparaging the beliefs of those who adhere to the firmly religious historical context of the Founders.
Jeremy writes: “Seth, I agree with your arguments, with the exception of one point (respectfully). This nation was specifically founded as a Christian nation and none other.”
Jeremy, I’m afraid I must disagree. Thomas Jefferson explicitly debunked this assertion in saying, “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed by inserting “Jesus Christ,” so that it would read “A departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by the great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mohammedan, the Hindoo and Infidel of every denomination.”
There existed at the time of the Constitutional Convention the adherents of many different religions within the bounds of the nation, and it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society. Of course the predominant religion of the nation was Christianity, but within that context there were endless denominations and congregations who had differences in their beliefs and practices. That this nation was founded BY Christians (predominantly) does not mean that it was founded exclusively FOR Christians, much less that our system of law and government is intended to favor Christianity over any other religion. The First Amendment makes that perfectly clear.
You are correct in saying that religion and government have their separate spheres and each citizen has a duty to each distinct from his or her duty to the other, but the Founders were perfectly clear that while they personally attributed the opportunity to found a new nation, based on new principles, to the grace of God and his divine inspiration (and I will not dispute this point), and they expressed this gratitude and opportunity firmly to God, they were determined not to recreate precisely the sort of theocratic tyranny they had just expended the precious blood and treasure of the inhabitants of America to escape.
So, it is true enough to say that the Founders themselves worked to create the Constitution based in part upon their beliefs and obedience to God, who they believed had called them to this task, but it is not true to say that the nation, and the Constitution that flowed from that inspiration, be it divine or worldly, makes the nation an exclusively “Christian Nation.” The express declarations of the Constitution and the many statements of the Founders themselves belie this construction.
Certainly Christianity is the predominant religion, but in our Constitution, it takes its place in equality beside all other peaceable religious beliefs.
Ralph T. Howarth, Jr. says:
it was the express desire of the Founders to extend to each and every person the right to worship as their conscience called them to do so, subject only to such worship being peaceable and tolerant of the like right of others to worship differently.
This is what I mean when I say this is a religiously pluralistic society.
An absolute pluralism is an impossibility with religion when it comes down to the governance of behavior that theConstitution does not touch. That is the civil moral code of law. You cannot have pluralism when it comes to religion in moral law. An example is that the Christian says murder is wrong; but the Islam says, honor killing is right. There is no plural moral ground to meet there. The Constitution only addresses what are temporal affairs to which air affairs that are not moral in nature. What the Constitution did establish was a trans-denominational public square where: 1) The right of conscience is the most sacred of property; and 2) because of the Christian belief system that one must live by faith and not be coerced into what is against there conscience. This in turn is where we have the freedom of worship, prayer and liturgical rites. An Mohammedan, Hindoo or Infidel is welcome and free to do as they please here as long as they abide by the moral civil code of the Judeo-Christian ethic. That is where the Lemon test goes wrong and freedom of religion is abused. When it comes to the question of worship and such, then it is liberty; but when it comes to matters of behavior, then it is touching morals and no longer is liberty. Breaching morals is called license; but many today confuse license for liberty to which they say, “Don’t force your religion on me” when what they actually are saying “Don’t force your morals on me…it burns my conscience.”
The 1st Amendment never advocated license in any received sense and jurisprudence dictates that one must consult what is the probable view of the legislator who passed the law over that of any court opinion that follows thereafter. A court ruling is an opinion and not law: that is why it is a called an “opinion”. The Capital building being federal property was used for Sunday church services in the House of Representatives up to about the times of the Civil War, and Thomas Jefferson advocated the establishment of the nation’s first trans-denominational university, attended services in the capitol frequently, and his abridged Bible on the morals of Jesus Christ sent to the Indian tribes on federal lands. Such persisted up to about 1900 where federal funds was used to support Catholic missionaries to the Indian Tribes. In addition, that same Congress that passed the First Amendment is the same Congress that passed the Northwest Ordinance saying: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
Howdy from Texas. What another great day of national conversation about our United States Constitution. I thank you for joining us and I hope you read Articles IV-VII with your children and/or friend or loved one!!
Don’t forget to tell your children or children you know about our We the People 9.17 Contest! Entries due July 4th. Scholarships, travel, prizes!!
I thank Joerg Knipprath for his most detailed description of Articles IV-VII. What a blessing it is to have so many wonderful Constitutional Scholars grace us with their dedication and knowledge.
What I found fascinating about today’s reading has not actually been mentioned. It is in Articles VI and VII. In Article VI it states:
“The Senators and Representatives before mentioned and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several states, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public trust under the United States.”
First of all it states that EVERY government officer is bound by oath or affirmation to “support” the Constitution. Another intriguing aspect is the part about how “no religious test shall ever be required as a Qualification to any Office or public trust under the United States.” This seems logical due to the fact that not only was the religious persecution from overseas still fresh in their minds, but also because free enterprise does not grow when stifled by laws of religion.
However, Article VII states:
‘..done in Convention by the Unanimous Consent of the states present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eight seven…’
It is very obvious with the usage of the words, “Year of our Lord,” that our forefathers were not afraid to mention
God in their thesis, documents and/or governmental realm. They were brilliant men and they knew that every word of the Constitution would be analyzed in the future, down to the last comma. They also wrote the Constitution to be an everlasting document that was to be eternally preserved, protected and defended.
Thus, no love, or lack, of God could prohibit one from serving in government but that did not mean one was prohibited from referencing his or her God in governmental affairs. There appears to be no mention of separation of church and state.
This is reiterated in a slightly different way in the first amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free
But we will discuss this one tomorrow.
I am also intrigued about how much our forefathers were concerned about treason.
Did anyone watch the History Channel’s, “America: The Story of Us” last night?” It was wonderful. The recounting of the revolutionary era reminds one that our forefathers were most sensitive to the tyrannical aspects of government intruding into citizens’ lives and as they recounted our “revolutionary” war tactics it reminds one that if we had, “played by the rules,” then we would have never won the war.
Thoughts to ponder…
More tomorrow. Blessings,
April 26, 2010
8 Responses to “April 26, 2010 – Articles IV-VII – Janine Turner”
Celeste Munoz says:
I have often wondered why the ‘separation of church and state’ has been such a huge issue in these modern times. It wasn’t until the 60′s I think that it became an issue. I remember when Kennedy was running half the country thought he would just be a papal puppet and were highly suspicious of his Catholicism though they had nothing against a good old christian. A sign of the times perhaps.
Louis Palermo says:
The First Amendment and the Fourteenth Amendment are two very important Amendments and two of my favorite. The First Amendment provides the most fundamental freedom to speak! It allows the people to assemble, practice their own religion and for freedom of the press to conduct their business. Recognition of this freedom curtails the power of the government. The founding fathers’ insight by this amendment was to limit the power of the government over the people.
The Fourteenth Amendment affords the people and the states valuable protections. It is the vehicle by which many statutes and laws are filed against the Federal government. If you will, it is the engine that maintains the system of checks and balances.
Looking forward to the Federalists papers.
I didn’t know where to leave you a note, so I’ll just do it here. Love your new website, and I appreciate what you and your partners are doing here!! Keep it up, and I’ll help spread the word.
Cliff Unruh says:
A key point to consider that may help explain our present situation:
Prior to 1912 the members of the U. S. Senate were not elected by popular vote but were appointed by their respective state legislatures (Article 1, Section 3). Under the original draft of our constitution the U.S. Senate represented the interests of the divers states and their respective state governments. The U. S. House of Representatives represents the people. Can you imagine any U.S. Senator who was appointed to his/her seat by the legislature back home ever voting for anything harmful to the local state government? In the absence of the 17th amendment would the health care bill have ever seen the light of day in the Senate? Obviously not. However, thanks to the 17th Amendment, the U.S. Senate was transformed into a “Super House of Representatives,” with the same concerns about winning reelection by popular vote. The interests of the individual states are no longer of importance to members of the U.S. Senate and we have all suffered as a result.
Debbie Beardsley says:
Whoa, hold on here. I do not think there was any reference to God intended by placing Year of our Lord after a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.
Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.
I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.
Dirk Newnam says:
Back to Debbie B. Letting the founders speak for themselves on the issue of their intent, from your last sentence.
“We have no government armed with power capable of contending with human passions unbridled by morality and religion…Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”…John Adams
“It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians: not on religions, but on the gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”….Patrick Henry (He does not exclude other beliefs but does emphasize our foundation is Christian)
“Providence has given to our people the choice of their rulers, and it is the duty as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers”…John Jay (First Chief Justice of the United States Supreme Court )
There are literally hundreds of other quotes to choose from that strongly confirm our founders intent to be motivated and directed by God’s Word through the Bible.
Last I encourage anyone who reads this to read the stinging rebuke delivered by Ben Franklin on June 28th 1787 during the Constitutional Convention’s first days after little progress had been made writing the Constitution. It is on page 108 of the book “The Myth of Separation” by David Barton 1992. Read the follow two pages to find out the incredible turn of events that followed. If only it could be reprinted on the front pages of our nations newspapers. What a change we might see in how we go about governing.
The quotes above are from the same book. He’s written several other since on this subject.
As a side on “Year of our Lord” can you imagine the phrase being used today by our watered down courts, government, or our media! It might remind of of where we came from, as a nation.
Constituting America says:
Today, our guest Constitutional Scholar of the day, Mr. Troy Kickler’s, insightful essay states, “Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”
I find this quote intriguing, especially the section ”..duty would bind the representatives to the Constitution and public opinion.” This singular line encapsulates wisdom and inspires reflection.
The first reflection is upon the word, “duty.” Duty seems to be a word that is lost in our American culture today. As the decades descend from World War II, the sense of duty to ones country appears to be diminishing. I looked up the word, “duty,” and found the following definition: ”a social force that binds you to a course of action demanded by that force. ” The definition was followed by a quote by John D. Rockefeller, Jr., ”every right implies a responsibility; every opportunity an obligation, every position, a duty.” Today the focus of America’s representatives as well as many Americans and the American culture seem to be one of self-interest. With the blessing of the Providential rights that are secured for us in our Constitution lay a responsibility. One of those responsibilities is to know, respect and understand the United States Constitution, as well as to encourage others to do so. The same should apply to the American Culture. How far we have drifted from the days when patriotism and love of country were, as President Ronald Reagan said, “in the air.” Is our country perfect? No. But as the Former Senator Patrick Moynihan said, “show me a better one.” We, as patriots who love our country and appreciate the founding principles upon which she was founded, need to rise to counter the palpable negativity that permeates our air today. One has to question whether our Congressional representatives are bound to their duty of their country and constituents, or to themselves.
The second reflection is upon the statement that duty would bind representatives to the “Constitution.” “..bind one to the Constitution.” The more I read the United States Constitution and the Federalist Papers, the more I realize how much we have strayed from the Constitution in cultural thought, personal awareness, legislative acts and supreme court rulings. This slow usurpation is due to a lack of knowledge and by a lack of pressure applied on our representatives to uphold the Constitution’s principles. As a Republic we rule through our representatives, thus, our vote is our voice. The checks and balances of our government begin with us. Thus, I suppose, there is a responsibility that we, as patriots, must own – if our representatives have grown callous and irreverent regarding the Constitution, it is because we have allowed it by our lack of diligence and duty to hold them accountable. How well do they know the United States Constitution? How do they intend to abide by its stipulations? These should be the questions of paramount importance.
The third reflection is upon the two words, “public opinion.” “Duty would bind the representatives to the Constitution and public opinion.” Public opinion seems to be virtually ignored by our representatives today. As mentioned in Federalist Paper No. 22 and in previous papers, Publius had a respect for the “genius of the people.” The American people have a genetic disposition and inherent ability to seek the truth and know the truth and American patriots rise to the challenge of duty. ”The experience of history” has proven this to be a tried and true trait of Americans. All of the attempts by the current branches of government to “reason” their way around the Constitution and govern a Republic without respecting the Constitution, and the history of the American spirit, will do so in vain. Duty to preserve our great country, founding principles, bill of rights and free enterprise will be the Paul Revere ”call to action” of our day.
May 28, 2010