Monthly Archives: June 2023

The Declare War Clause

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When the Constitution was originally written in 1787, the Antifederalists became fearful that the new Constitution would give too much power purely to the President, so the new government would resemble a monarchy more than the democratic system promised. The Antifederalists opposed the US Constitution because they believed that it did not balance powers. The Declare War Clause addressed the power the President had when addressing declarations of war against other nations.

The Declare War Clause was initially written with the purpose of limiting the President’s use of the USA’s military forces without Congress’s clear approval. The clause was a preventative clause to insure the President couldn’t abuse their powers. The approval of Congress was thought necessary for both formal declarations of war and for smaller uses of force in 1787. Modern Presidents have used military forces without formal consent from Congress. In 1950, President Truman ordered for US forces to enter Korea without approval from Congress. Constitutional scholars argued that, regardless of the original intention of the clause, there is now a modernized practice that allows the President considerable power to use military forces. Some constitutional scholars believe that Presidents have full authority when responding to an attack on the USA, while others think that the President controls offensive and defensive attacks. 

Generally, a majority agree that presidential actions pursuant to Congressional authorizations are constitutional, although there is debate regarding how broadly any particular authorization goes. Presidents have claimed authorization from informal congressional actions such as Congress’s failure to object to ongoing hostilities. This has caused controversy surrounding the clause and how effective or respected it is.

Some Presidents have decided independently on approving military action, while others stayed true to the Declare War Clause. Many scholars believe that no matter what the original purpose of this clause was, it has transformed into a more modern understanding that allows the President more independent power. Scholars believe that Presidents are allowed to initiate the use of military force without formally declaring war, but that Congress’s exclusive power is issuing the proclamation of war. In the 1863 “Prize Cases”, the Supreme Court stated that as a defensive measure, President Lincoln’s blockade following an attack was ambiguous regarding whether the authority for said blockade came from specific statutes of Congress. Court noted that the President couldn’t begin hostilities without Congress’s approval. Now courts avoid deciding cases based on limits on what types of disputes courts can resolve, including political questions. As a result, the precise implications of the Declare War Clause remain unanswered. Leaving room for debates and disputes. The “Prize Cases” show that the basics of this clause remained upheld because it was decided that the President couldn’t begin a war or use military sources without Congress’s approval.

In history, we have learned about the causes of revolutions in France and America, and the main cause for both revolutions was fear of a monarchy and the concentrated power that comes with a monarchy. The Declare War Clause guards a piece of power against being a single man’s decision and therefore aids in protecting the USA against a monarchy.

Alessandra – Amendment VIII

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The eighth amendment is a part of the rights of the accused. It supports the 5th amendment: due process. The concepts were first seen in the British bill of rights in 1689. George Mason included it in the draft of the Bill of Rights in 1776, and it was ratified in 1791. This amendment reflects the Enlightenment ideals of individual rights, and an attempt to limit federal government power. It echoes Voltaire’s ideas of fair treatment of individuals. It was added to protect criminals from excessive punishment. It is important to note the connections between the 5th through 8th Amendments: specifically the fifth, being due process, which the 8th is a big part of.

The clause grants protection over excessive bail, fines, and cruel and unusual punishments. This clause was needed because there was fear of unproportional repercussions for small crimes. The meanings of the first two concepts in the amendment are generally self explanatory, but the third one, the phrase ‘cruel and unusual’ has debated meaning because the Constitution does not directly tell us what it means. Two main viewpoints have evolved on interpreting this phrase. 

The first, being the originalist mindset, supports that the definition of cruel and unusual should be upheld from 1791, when this amendment was ratified. For example, Justice Thomas and former Justice Scalia believe that the standards of cruelty from the year this amendment was ratified should continue to be the standard for what is okay today. They also believe that the Clause does not ban disproportionate punishments, but only extremely brutal ones; they believe that the death penalty is fine because in 1791 it was commonly used and it is included in the constitution, in the due process clause.

The non-originalists believe the opposite: that the definition of cruel and unusual should grow and change as the nation does. I personally agree with this and I believe that an addition, clarifying that the current justices in the Supreme Court should be able to decide what constitutes cruel and unusual, would be helpful. I think it is unfair to keep standards for punishments from 1791, a time in which much more was widely accepted, such as slavery and the mistreatment of Native Americans. I believe the Constitution should have room to grow and change as society does.

One Supreme Court case that illustrates the 8th Amendment is Graham vs Florida. A 16 year old was sentenced to life in prison for armed robbery, and it was argued that this was cruel and unusual punishment for a juvenile. The Supreme Court ruled in favor, and he was resentenced to 25 years in prison. This case set a new precedent that sentencing juveniles to life in prison with no parole for a non homicidal offense is unconstitutional. This gives us one definition of cruel and unusual, being sentencing somebody who still has a chance for rehabilitation given that they are not yet an adult.

Article V // Gabe Ponichter

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In Article V, the Constitution’s framers gave America’s future leaders a way to make changes to the Constitution based on changing times of the future. In simpler terms, Article V of the Constitution says that If two-thirds of the Senate and the House of Representatives agree, they can put amendments for the Constitution to vote. Another way amendments could be proposed is if 2 thirds of all the state legislatures agree to present some during a convention. To approve amendments, either ¾ of all the state legislatures must agree or ¾ of conventions convened in each state, based on Congress’ choice. There are two caveats; amendments to the Constitution could not change the 1st and 4th clauses of the 9th section of the 1st Article of the Constitution until 1808. Additionally, amendments could not strip a state of its right to vote in the Senate unless that state would be partial as well. Being able to make amendments to the Constitution allowed for debate between Federalists and Anti-Federalists to be settled by compromising on amendments eventually being added to the Constitution. Leading up to the ratification of the Constitution, there was one principal opinion about making amendments to the Constitution held by some Anti-Federalists. These people, looking to ensure enough power for the states and the people rather than just the central government, supported Article V because, through amendments, a Bill of Rights could be added to the Constitution, guaranteeing basic protections for Americans. 

Throughout the more recent history of Article V, some controversy has arisen over whether or not states can rescind their ratifications of certain amendments to the Constitution. Article V does not expressly state that states can do this; however, in the case of amendments like the Equal Rights Amendment (ERA) of 1972, which was never ratified, six states still voted to rescind their ratification. In the case of Coleman v. Miller (1939), the Supreme Court decided it would be at Congress’s discretion to determine whether a state could rescind its ratification, seemingly on a case-by-case basis. In the ERA’s case, it became irrelevant that states rescinded their ratifications because the amendment was not passed before the 7-year limit agreed upon in Congress. However, through countless decisions like Kirchberg v. Feenstra (1981) or J.E.B v. Alabama (1994), the Supreme Court was able to achieve the same effect of the ERA, declaring it unconstitutional for women to be discriminated against by American laws. The ability to make amendments to the Constitution connects to the core values of the Enlightenment Period, in which modifications to the thought of the “old regimes” were necessary for the common people to gain knowledge and a voice for themselves. As such, Historians can view Article V as a reassurance that if changes need to be made to the Constitution to protect the agency of Americans, they can be made, just like the Bill of Rights first did during America’s creation.

 

Works Cited

American Civil Liberties Union. “Timeline of Major Supreme Court Decisions on Women’s Rights.” In ACLU Women’s Rights Project. Last modified 2023. Accessed May 31, 2023. https://www.aclu.org/wp-content/uploads/legal-documents/101917a-wrptimeline_0.pdf.

 

Annenberg Classroom. “The Annenberg Guide to the United States Constitution.” Annenberg Classroom. Last modified 2023. Accessed May 31, 2023. https://www.annenbergclassroom.org/constitution/.

 

Rappaport, Michael B., and David A. Strauss. “Interpretation and Debate: Article V.” National Constitution Center. Last modified 2023. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-v/interpretations/277.

 

Oliver – The Fourth Amendment

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In Britain, a common practice was to put out “general warrants” that allowed law officials to search anyone’s house regardless of if there was cause. In the colonies, instruments similar to “general warrants” were used to ensure that the taxes placed on the colonies were enforced. Thus, when the bill of rights was drafted, the fourth amendment was made to address search and seizure by the government.

The commonly understood meaning of the fourth amendment is that it prohibits the government from apprehending or searching a person or their property without a warrant that is granted due to probable cause. There are many cases of dispute over the fourth amendment. However, the majority involve the idea of how technologies having been invented since this amendment was originally penned, factor into government monitoring of those technologies.

In 1967 the supreme court did rule that, in the Katz vs. The United States case, wiretapping of even public phones violated the fourth amendment. This is a direct example of a moral interpretation of the 4th amendment as the wiretapping of phones is not directly covered in the fourth amendment. While this may just be one case being referenced here, it does point to the idea that the fourth amendment is largely understood through moral interpretations instead of textual interpretations. However, while the debates about if wiretapping of phone calls violates the 4th amendment have died down, new debates regarding how the 4th amendment applies to the internet.

Legal scholar Orin Kerr makes the claim that only public internet activity (such as social media posts) should be able to be used without the warrant that would need to be required by the fourth amendment if it were to apply. He suggests that a balance must be obtained that mirrors that of the physical world where some data, which would already be apparent to all, can be obtained without a warrant but data that is not distributed by the investigated person should require one (similar to one’s private property). In opposition, Barry Friedman argues that, since, in searching for digital evidence, every action by the government must be targeted at a specific person, warrants should be required in all cases.

I personally agree with Orin Kerr because, since the information being put intentionally on the internet was deliberately put there for anyone to see, warrants should only be required for monitoring data not released to the public. Despite the disputes that can arise over it, I would not want to amend the fourth amendment as it lays the groundwork for ideas that can be applied in many different times. Finally, an area of study this year that is in stark contrast to this is the ideals of Tokugawa Japan. In Tokugawa Japan, not only were citizens encouraged to report on any changes discussed by people in their area but, also, in direct opposition with the idea of probable cause, citizens were told that logic could be violated to uphold the broader law. 



Kavi – The Sixth Amendment

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The Sixth Amendment in the Bill of Rights is the Right to Speedy Trial by Jury, Witnesses, Counsel. The creation of this amendment was motivated by the disorganization of the legal system in the United States in the 1770s and 80s. Prior to the Bill of Rights, there was no such thing as a public prosecutor, and trials were primarily shouting with neither side having a lawyer.

Additionally, juries were often biased, and familiar with both sides, resulting in biased decisions and injustice at trial. The Sixth Amendment states that in any and all criminal cases, the defendant has a right to an unbiased jury from the state in which the crime was committed, to interact with the witnesses to be used against them, to have legal counsel regardless of economic circumstances, and to have all of these in a timely manner.

Among other things, this amendment laid the groundwork for the modern legal system in the United States, indirectly founded the idea of public defenders, and helped establish legal procedures regarding evidence and witnesses. One of the most impactful debates regarding the Sixth Amendment was about the extent to which the stated rights apply. In Gideon vs Wainwright, a Supreme Court case from 1963, Clarence Gideon was charged with a felony in Florida State Court. After requesting representation and seeing his request denied, Mr. Gideon was convicted and sentenced to five years in prison.

Mr. Gideon filed a petition arguing that the state court violated his right to representation. This sparked a debate regarding whether or not the right to government funded representation for the defendant includes felonies. Ultimately, the Supreme Court ruled unanimously in favor of Mr. Gideon, setting the precedent that the aforementioned right does extend to felony defendants. However this decision also fueled further clarification on the responsibility of a court-appointed lawyer.

Most believed that the defender must provide an adequate defense for the defendant, and although the court ultimately ruled as such, action is rarely taken due to the subjective nature of the defense. The majority of the discussion on the Sixth Amendment was not heated debate, but about the need for further clarification for some of the more subjective portions of the amendment, and the previous decision is a prime example of this.

Ultimately, this amendment served its purpose. The justice system is no longer made up of shouting matches in place of trials, unrepresented defendants, and biased juries. This amendment also connects to several ideas of Enlightenment-era philosophers. In Montesquieu’s Spirit of the Laws, in addition to presenting the three branches of government which was later adopted by the United States, he provides one primary reason why a government of three branches may not be able to function: If the justice department is disorganized, and effectively controlled by either the executive or legislative branch. This would increase the risk of bias and unfair rulings. The Sixth Amendment seeks to address this issue by streamlining the trial process, and thus strengthening the justice department.