Monthly Archives: June 2023

Greyson Ward Articles 6 and 7

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Looking back at the Articles of Confederation, the framers of the Constitution created the Sixth and Seventh Articles in order to address the weaknesses of the Articles of Confederation, which allowed the states too much power, and to ensure the Constitution was passed by a supermajority. The 6th Article declares that all debt the states had accumulated would be transferred to the new federal government. The second clause of the Sixth Article creates a hierarchy of law in the United States with the Constitution being at the top followed by federal, state, and municipal laws.

All the laws proclaimed by the Constitution and federal government, including treaties, must be upheld by federal and state judges. The final clause illuminates how all government officials are duty bound to follow the Constitution and that officials are free to practice any religion. The 7th Article declares that consent from the convention of the nine states is necessary to pass the Constitution. The Constitution can be ratified if there is a vote where nine out of thirteen states approved the new Constitution. Mark Graber in “Why Nine Meant Thirteen” highlights his view of the Seventh Article, which was that it was made to prevent the blockage of acceptance votes by only one or two states seeking more favorable terms. On the other hand, Michael B. Rappaport states in the article, “Desirability of the Constitution,” that Article Seven was passed because

it was important to get a supermajority of the population behind the Constitution. He illuminates how the protection of states’ rights and the Bill of Rights was included in the Constitution because it reflected the factions in the supermajority, not just the majority. Rappaport’s argument was aligned with the framers, who had been influenced by John Locke’s concept of the protection of the inalienable rights along with Rousseau’s social contract, who wanted the supermajority because it was important that the new Constitution expressed the will of the people.

The Seventh Article was designed in a way that put pressure on states to ratify quickly, as the longer states held out, the less influence the state would have on the forming of the Constitution and the Bill of Rights. A case that challenged the Seventh Article was McCulloch vs Maryland, which was a feud over whether Maryland, a state, could tax a federal bank.

The outcome of the case was that the federal government held more power than a state government, resulting in a ruling supporting the view of McCulloch that a national bank is not required to pay a state tax. The case illustrates that the law of the Constitution, ratified by the states, stands atop the power pyramid of the United States, which demonstrates the enlightenment thinker’s view of the protection of the inalienable rights gained from the social contract, the United States Constitution.

A way to update this article would be to allow a state convention to repeal their vote for the ratification of the Constitution. Fortunately, the ratification process does not allow for this, as a repeal of their ratification vote would undermine the Constitution and destroy the rights Americans hold dear to their hearts. 

Natalia Marquez Preamble Video

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The Preamble of the Constitution is the introductory statement that sets forth the fundamental purposes and guiding principles of the document. It serves as an expression of the hopes, goals, and values of the people who drafted and adopted the Constitution. The Preamble of the Constitution emphasizes the sovereignty of the people and their purpose in creating a united and prosperous nation.

It captures the main principles of the Constitution and provides a guiding path for the development of the articles and amendments. The text in the Preamble of the Constitution reflects the historical forces and ideals that influenced its drafting; several key historical events contributed to the writing of the Preamble. The first historical force that’s highlighted in the Preamble is Enlightenment Philosophy.

The thinkers of the Enlightenment, such as Locke, Montesquieu, and Rousseau, influenced the framers of the Constitution. Enlightenment ideas described individual rights, natural laws, social contracts, and the consent of the governed. These concepts are described in the Preamble’s focus on the promotion of justice, the establishment of a more perfect union, and the securing of the blessings of liberty. The second historical force is the colonial resistance of the British.

The American colonies had a lengthy record of going against British authority, driven by unfair taxation, lack of representation, and other oppressive policies that ultimately resulted in the American Revolution. The mention of “We the People” in the Preamble symbolizes a departure from British rule and the establishment of a fresh governing system founded on the principle of popular sovereignty. Popular sovereignty, in the Constitution, is the principle that ultimate political power resides with the people.

It signifies that the authority and legitimacy of the government are derived from the consent and will of the governed. In British rule, the authority of the government was derived from a monarchical system where power was concentrated in the hands of the monarchy, with limited influence from the people. In contrast, the concept of government by consent means that the people have a significant say in the decision-making process and hold the power to elect representatives and policies of the government. The third historical force is the Articles of Confederation.

The Preamble is mainly responding to the failures of the Articles of Confederation. Before the Constitution, the United States operated under the Articles of Confederation, which proved to be ineffective in maintaining a unified nation. The weaknesses of the Articles, such as the lack of a strong government and the inability to address economic complications, led to a desire for a new Constitution. The Preamble reflects the need to form a more unified and powerful union. Overall, the Preamble reflects the historical context of the time, the ideals of the Enlightenment, the colonial resistance of the British, and the failures of the Articles of Confederation.

The inclusion of the Preamble aims to offer a succinct declaration of the principles, purpose, and aspirations that the Constitution aims to deliver. It functions as a significant foundational text for the Constitution that influences the interpretation, comprehension, and implementation of the Constitution over time. Scholars have interpreted the Preamble of the Constitution in different ways, leading to various debates and perspectives on it.

Some scholars emphasize popular sovereignty and argue that the Preamble underscores the ultimate power and authority of the people in the establishment of the government while others examine the specific language used in the preamble to extract nuanced meanings and intentions of the writers. The Preamble offers an informative introduction to the Constitution and I would not suggest altering it in the future.

William Safranek, 5th Amendment

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The Fifth Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The Fifth Amendment was one of the ten amendments that were part of The Bill of Rights, which was created in 1791 in order to make sure that the government didn’t abuse individual’s rights, appeasing Anti-Federalists, who were against a strong Federal Government. The Fifth Amendment addresses the rights of someone who has been accused of a crime, and grants them the right to a grand jury in order to have a fair trial; the right to not be charged for the same crime twice, also known as Double Jeopardy; the right against self incrimination, meaning that those charged with crimes will not be prosecuted for staying silent; and the right to due process, meaning that the government is not allowed to take a person’s freedom, possessions, or life away without going through a court system.

The Fifth Amendment also led to the Miranda Rights. When someone is arrested, the arresting officer must inform them of their Fifth Amendment right to stay silent. The Miranda Rights stemmed from the Supreme Court Case of Miranda v Arizona. Miranda was a man accused of kidnap and rape. He was not informed of his right to stay silent, and he confessed to the crimes and was sentenced to 20-30 years in prison. However, Miranda was granted early release because he was not informed of his constitutional rights. This case was used for the supreme court to set a precedent that the Fifth Amendment would be strictly upheld, and Chief Justice Earl Warren stated that it would be the police’s job to work within the confines of the Fifth Amendment, as well as other amendments from the bill of rights.

This case sparked fierce debates about the use of the Fifth Amendment, with some people believing the Fifth Amendment needs to be heavily enforced in order to limit the government’s power over the rights of individuals, while others believe that individuals’ rights are important, but the guilty should not be let free due to evidence gotten unconstitutionally, citing the Miranda case. Even the supreme court was divided on the matter, with the vote for Miranda to be released being 5-4.

The dissenting opinion written by Justice Tom Clark stated that he believed that strictly enforcing the Fifth Amendment would make the police’s job more difficult. Last year, Vega v Tekoh, a case very similar to Miranda v Arizona was brought to the Supreme Court. Tekoh was a male nurse who was accused of sexually assaulting a woman named Sylvia Lemus. Tekoh was interrogated by Los Angeles County Sheriff Deputy Carlos Vega, who did not inform Tekoh of his Miranda rights. Tekoh confessed, but that confession was not enough for Tekoh to be found guilty.

However, when Tekoh sued Vega under the 42 U.S.C. § 1983 action, which provides the right for individuals to sue government officials for civil rights violations, the claim was not approved, with a 6-3 vote in the Supreme Court against the claim. The majority opinion, given by Samuel Alito stated that a Miranda Right violation wasn’t the same as a Fifth Amendment violation. This ruling was the opposite of the Miranda v Arizona case, implying a less strict interpretation of the Fifth Amendment. Of the several views of how the Fifth Amendment should be interpreted, I believe that it should be strictly upheld. While the strict use of the Fifth Amendment could lead to a few of the guilty being freed, it is ultimately more important that individuals’ rights are protected, and the innocent aren’t unjustly punished by the very government that is supposed to protect them.

Austin Gordon – Fourth Amendment

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The Fourth Amendment is one of the most impactful constitutional amendments, with key implications throughout all 250 years of America’s history. The amendment provides people the right to not have their “persons, houses, papers, and effects”, or in today’s terms, themselves, their home, their papers, or any other property, searched or seized/detained by the government. In order for the government to do so, they must have a search warrant or probable cause to believe that a crime has been committed.

The amendment additionally states that any search warrant must be specific in describing what can be searched or seized by the government.This amendment is primarily in response to “writs of assistance”, which were general search warrants that allowed officials to search any location they deemed suspicious, issued by the British before the revolution. This allowed British officials to search essentially anything they wanted, allowing them to become massively intrusive and invade the privacy of colonists.

The fourth amendment was made to ensure that these abusive and unjust practices were not replicated by the new American government, and made sure that a point of revolutionary outrage was addressed in the Constitution. The requirement for search warrants to be highly specific made by the amendment is in direct response to the writs, as the Founding Fathers wanted to ensure that officials could not abuse search warrants to unnecessarily invade privacy.  In the nearly 250 years since the amendment was written, security, law enforcement, and technology have changed in ways unimaginable to the Founding Fathers, leaving it up to the courts to interpret the amendment and apply it to new situations. The most important fourth amendment case was Weeks vs United States in 1914, in which Weeks argued that the items that were seized from him illegally could not legally be used against him in court.

The court sided unanimously with Weeks, ruling that any illegally acquired evidence could not be used in court. This case created a consequence for violating the fourth amendment, and without it, the rights it provides could not be effectively upheld. More recent cases like Kyllo vs United States in 2001, in which Kyllo argued that the police’s use of thermal scans on his home without a warrant was a violation of the fourth amendment, and won. Cases like this one have allowed the fourth amendment to evolve and protect the people against new technology or policing practices.

Justices dissenting in cases like these will often argue the originalist interpretation of the amendment, arguing that we should only consider the amendment within the scope of the era in which it was created. I, as well as the majority of legal scholars, disagree with this theory, and believe that evolving fourth amendment protections is necessary to protect rights. One potential way to further protect people’s fourth amendment rights would be to encourage congress to create laws around new security practices or technologies to enforce compliance with the fourth amendment, as the courts can only step in once a violation has already occurred. But as long as our legal system stands, the fourth amendment will continue to protect the American people for years to come.

Leila – The Third Amendment

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The Third Amendment

The Third Amendment was ratified on December 15, 1791 as part of the Bill of Rights, providing that soldiers cannot stay in American citizens’ private homes without the homeowners’ consent. It was in response to British soldiers taking over colonists’ homes without the owners’ approval during the colonial period. The British had passed the Quartering Acts of 1765 and 1774 which made the colonists’ lives and the intrusion of the British soldiers into their homes even worse.

These Acts stated that colonists had to house soldiers in barracks, and, if that was not an option, soldiers would come into people’s homes where their necessities would be provided and paid for. These Acts also stated that British soldiers could take over uninhabited buildings and barns, allowing even more spaces to be commandeered by the British. The colonists saw this as an invasion of property and privacy. In addition, many soldiers were sick with diseases including smallpox. The Third Amendment was a response to these Acts, and an important protection for private property, life and privacy. 

There are several interpretations of the philosophy behind the Third Amendment. One interpretation focuses on the Third Amendment as giving more power to civilians than the militia or the government. Another interpretation centers on the right to privacy. These themes are consistent with concepts supported by Enlightenment thinkers such as John Locke who promoted similar ideas about Natural Rights, regarding a limited government and protected rights of the people such as life, liberty and property.  Locke believed that governments should be based on these ideas.

Although the Third Amendment comes up infrequently in case law, it has been brought up in a few legal cases. In Griswold vs. Connecticut in 1965, a case about the right of married people to purchase birth control, the Amendment is cited as a protection of Americans’ privacy. In cases related to abortion, the Third Amendment has been used to argue that abortion rights are protected by inference in the Constitution. [1] Specifically, the Third Amendment protects privacy rights, and freedom from government interference in people’s homes. This is important because a right to “privacy” is not explicitly contained in the Constitution. Challengers to abortion rights often argue that since the specific right to privacy is not mentioned in the Constitution, cases that protect important human rights under a “privacy” analysis can be overruled. The Third Amendment gives some weight to privacy protections though often does not apply to cases not involving soldiers and homes. An interesting modern interpretation even speaks to the right to “freedom from infection” contained in the Third Amendment. [2]  One question would be if the Third Amendment served its purpose. If it was truly intended to protect privacy why didn’t it state that more clearly. A house is just a place, but a home is a place where you are free with privacy.

    1.  The Bill of Rights Institute, “Griswold v Connecticut (1965),” The Bill of Rights Institute, 2023, https://billofrightsinstitute.org/e-lessons/griswold-v-connecticut-1965.
    2. Alexander Zhang, “The Forgotten Third Amendment Could Give Pandemic-Struck America a Way Forward,” The Atlantic, May 31, 2020, https://www.theatlantic.com/ideas/archive/2020/10/could-third-amendment-protect-against-infection/616791/.

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Alpha Conteh – Article 2

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The framers of the Constitution sought to create a balanced and effective system of government, which included the need for a strong executive branch. The failures of the Articles of Confederation, the previous governing document, highlighted the necessity for more centralized authority and a clear delineation of powers.

The framers recognized the importance of having an executive to provide leadership, represent the country both domestically and internationally, and enforce the laws enacted by the legislative branch. By outlining the President’s role, powers, and the process for selecting the President, the framers aimed to strike a balance between an effective executive and protecting against potential abuses of power. The second article aimed to establish a presidency capable of providing strong leadership and addressing the nation’s needs while being accountable to the people and limited by the checks and balances inherent in the Constitution.

This article outlines the President’s responsibilities as the head of state, commander-in-chief, and chief diplomat. Additionally, it highlights the process for electing the President through the Electoral College and sets the criteria for holding the office. Overall, it establishes the framework for a strong executive branch of the federal government and provides a system of checks and balances to prevent the abuse of power. By saying, “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”, the framers give lots of room for interpretation on what is a high Crime and Misdemeanors.

The interpretation of the provision outlined in the second article of the United States Constitution, particularly regarding the powers and limitations of the President, has been subject to divergent interpretations. They often point to historical precedents, such as the actions of past Presidents, and argue that a strong executive is necessary for effective governance. On the other hand, scholars advocating for a more limited interpretation contend that the Constitution grants specific powers to the President, with checks and balances provided by the other branches of government. They emphasize the importance of adhering strictly to the language and intent of the Constitution.

Article Two of the United States Constitution holds importance as it establishes the executive branch of the federal government. It outlines the powers, responsibilities, and limitations of the President, who serves as the head of state and commander-in-chief. The significance of Article Two lies in its role in balancing power and providing a framework for effective governance. It ensures that there is a single executive to lead the nation, execute laws, and represent the United States both domestically and internationally. 

Articles 5, 6, and 7

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Article V covers the legal process of Amending the Constitution. It was drafted in response to the hesitation of certain states to ratify the Constitution. When an amendment is proposed, ⅔ of both houses, the Senate, and the House of Representatives need to agree to an amendment to move to the next step. The amendment then goes to state legislatures and ¾ of all legislatures must ratify it within 7 years or it will lapse. Scholars disagree about whether a state can revoke their vote in favor of an amendment. Some scholars feel that states should not be allowed to take away their vote for an amendment as that power is not explicitly stated in Article V.

Opposing scholars do not see an issue as long as the state makes its decision within the 7 year limit. Article VI of the Constitution covers debts and supreme law. It states that all debts from the previous government under the Articles of Confederation are still valid under the new Constitution, and that all members of the three branches of the new government must take an oath of allegiance to the new Constitution. As a new nation, allyship and allegiance were important and this oath ensured that the government would stand with one another as a nation under the new Constitution.

This Article also states that federal law is more powerful than state law, and when in conflict federal law becomes the, “the supreme Law of the Land”. In McCulloch vs. Maryland (1819), the state of Maryland wanted to impose taxes on the Second Bank of the United States but the cashier of the Baltimore branch refused to pay. The Supreme Court unanimously decided that because the bank was a federally created and controlled institution, the state did not have the right to tax it. This is a clear example of the national supremacy clause, in a conflict of power between state and federal rights, the federal government has more power. Article VII covers the process of the ratification of the Constitution.

It states that in order to ratify the Constitution, 9 out of 13 states must agree to it. This article is a response to the Articles of Confederation which stated that all states were required for ratification. This provision created conflict between Federalists and Anti-Federalists. Anti-Federalists pointed out that the new constitution was not supreme law yet, as it had not been ratified and therefore the process in the Articles of Confederation still stood. Federalists argued that because there had been so many violations of the Articles of Confederation they no longer stood as supreme law and that Article VII was now the guiding principle for constitutional ratification. Through the conflict and disagreement that these Articles faced, they prevailed by reshaping the Constitution to what it is today. 

The First Amendment: Free Speech and Freedom of Speech

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In the constitution, the First Amendment in the Bill of Rights protects Americans freedom of speech. When the Bill of Rights was written in 1789, the American colonies had recently revolted against British rule. Previously, the British Monarchy had controlled the press and saying bad things about the British crown was a crime one that could be punished by imprisonment or death. However, in writing the Constitution, and adapting it with the Bill of Rights, the founding fathers attempted to enshrine important ideals of democracy — that people should be free to say what they wish and the press should be able to criticize public officials — with the First Amendment.

It is important to note that this does not apply to private companies, employers, or landowners. While the amendment refers only that Congress may not restrict freedom of speech, the Supreme Court has ruled that this applies to the entire Federal government. Moreover, in the case of Gitlow v. New York (1925) the Supreme Court ruled that the First Amendment also restricts the power of states and local governments. The protections of the First Amendment are not unilateral, however, and there are a few hotly debated exceptions of when free speech is, or is not, protected. Government officials, for example public school teachers, can be punished for certain kinds of speech not endorsed by the government.

Filters not based on the content of a message but rather can be based on some other quality such as noise or other kinds of disruption are sometimes not restricted, like in the case of Turner Broadcasting Inc. v. FCC (1994) but this is on a varying case by case basis. Finally, the Supreme Court has ruled that the government can restrict “low” speech. Defamation, threats, obscenities, and misleading advertising all constitute “low” speech that the government regulates.

The Supreme Court is extremely loath to use “low” speech. For example, the 1978 case of National Socialist Party of America v. Village of Skokie was one of the most controversial decisions in the history of the United States Supreme Court, wherein the judges defended the freedom of a neo-Nazi group that aimed to demonstrate in Skokie, Illinois. The NSPA argued that the Illinois Supreme Court violated the free speech clause of the First Amendment by restricting their right to protest. Today, the First Amendment is still a matter of hot debate.

An example of an important issue regarding the modern day application of the First Amendment arises from campaign donations in politics. The Supreme Court has held that political contributions are “speech” and are thus protected by the First Amendment. That said, the Supreme Court has ruled the government is allowed to regulate contributions if there is a risk of undue influence in Buckley v. Valeo (1976) and in McConnell v. The Federal Election Commission (2003) the Court ruled that the government could regulate corporation’s spending on political expenditure. All in all, these issues of free speech and the questions of what kinds of expression the government should, and should not, restrict extend into the present day and can have serious ramifications on everyday life, elections, and more. 

The Establishment Clause

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Context

The Establishment Clause in the First Amendment addresses the coexistence of the multiple prominent religions in American history. In the creation of the Constitution, James Madison, the principal author of the First Amendment, believed it best for the country if the government abstained from establishing a national religion and unjustly favoring specific religions. The clause reacts to the abuse of governmental power to promote religious beliefs and the forcing of spiritual practices in many southern colonies.

Common Interpretation

Most jurists believe the Establishment Clause prohibits the government from interfering with religious institutions if the action directly benefits one religion over others.

Matters of Debate

The main interpretations of the Establishment Clause either advocate for the separation of church and state or the equal support of all religions. Marci A. Hamilton, a supporter of the separation, claims that integrating religion with the government could lead to religious tyranny and abuse of power. She quotes influential American figures like Benjamin Franklin who expresses the hypocrisy of Christian sects which denounce persecution but still practice it against other groups and among themselves. In contrast, Michael McConnell supports impartiality to any one group instead of eliminating religion from the government because it allows all religions to flourish without having a dominant powerhouse. Under this ideology, he explains how the 2002 Supreme Court case Zelman v. Simmons-Harris was beneficial to the state and religion because it enabled the funding of religious schools and allowed families a greater range of choices for education. The case examined Ohio’s school voucher program which provided financial aid to families based on necessity, but the problem was that a majority of the aid went to religious schools. The final ruling governed that the program didn’t violate the Establishment Clause because the use of the financial aid was decided by the families, not the government. This case demonstrates that a violation of the Establishment Clause would require a direct inclination toward a religious school or religion.

Significance

The Establishment Clause was made to prevent the abuse and pressure of religion which contrasts to the European notions displayed in the Tempest. In the play, the Europeans were portrayed to be pushing their religion on the natives who are represented by Caliban. They gave no regard to his culture and justified their colonization with religion. The clause attempts to ensure the control of religion isn’t forced onto any citizen’s freedom. In my opinion, impartiality to religion is a more beneficial approach because it follows the clause in that no one religion is dominant, but it also allows the government to support religious freedom and institutes just like other public programs. If the clause were to be amended, I would suggest that the relationship between religion and the government be made clearer, perhaps with a portion signaling the main goal of the clause is to prevent preference of religion and not neglect. I think clarity of the purpose of the Establishment Clause can eliminate arguments and segway into the progression of religious freedom.

George Lipton – Due Process Clause

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The idea of due process had been around for a long time before the U.S. Constitution was ratified, even appearing in Britain’s Magna Carta in 1215. However, the U.S. throughout its history has made it more specified and strengthened its direct ability to protect people accused of crimes. The intention in both of those documents was to promise that the governmental powers would not infringe on the fundamental rights of life, liberty, and the right to property without a “fair trial.”

The due process clause is one of many assurances that the federal government would not be too powerful which was a major concern for the new country. The federal government cannot punish or take anything away from someone without a sentence that came from a trial. This clause also is a form of checks and balances over the executive and legislative branches when they create and enforce laws because within a trial, proving guilt is a process that is channeled through the judicial system. Throughout the country’s history, the due process clause has been used as a way to keep the government from acting outside of the law.

The term has now become interchangeable with the right to a fair trial, despite historically having broader implications. This leads to it often being confused with the 14th Amendment, which calls for equal protection under state laws rather than federal laws, also mentioning due process. The vagueness of the language of the amendment, the 5th amendment has been specified by numerous court decisions. One of the most famous ones is Miranda v. Arizona, a trial about self-incrimination without warning, which led to the creation of Miranda Rights. Another decision is Gideon v Wainwright, a case establishing the right to an attorney as a key part of due process. Over time the amendment has also created a constitutional rule called the vagueness doctrine which forces laws to be straightforward in their language in order to be enforced.

Finally, the concept of substantive due process, allows the supreme court to overturn laws that restrict citizens’ constitutional rights as a part of judicial review. Without due process of law, the government can arrest whoever they want without a proper trial which in a revolutionary context, could lead to a tyrannical government. Due process is a building block of the bigger concepts of the American Revolution seeking a government that fairly represented the people. This also relates back to Rousseau’s social contract because this puts a definition on the trade-off between freedom and security or the people and government. Due process is one of the many amendments that was related back to the argument over slavery because it is the legal aspect of abolition: to be enslaved is wrongful imprisonment without due process. This is why due process needed to be re-channeled in the 14th Amendment because states now had to guarantee due process in their courts as well.