Uncategorized

The Eighth Amendment: What are the limits?

Video

Written Component

When the Constitution was ratified, it gave the federal government significantly more power than the Articles of Confederation had had. One of these powers was to decide what constituted a federal crime, and what the subsequent punishment would be. There were worries that the government would create and use torture to oppress citizens. For this reason, the Eighth Amendment was added. In its most basic form, the amendment stops the federal government from doing anything too harsh or barbarous; examples pointed out by debaters at that time include the Spanish Inquisition. Torture as a means of punishment was deemed unconstitutional, as was torture as a means to gain information or a confession. Additionally, the amendment prohibits the federal government from making bail money too expensive and from fining citizens excessively.

Despite the previous two points, the majority of debates surrounding the Eighth Amendment focus on the point surrounding punishment. When discussing this amendment, scholars argue if courts should judge punishments by the 1791 standards that were present during the amendment’s creation, or by modern standards. One scholar, John F. Stinneford, makes a case that the Eighth Amendment should be viewed through 1791 standards. He says that a more modern interpretation would allow the Supreme Court to use the vague interpretation to accomplish their own partisan goals, pointing to Judges Scalia and Thomas’s severely narrow definition of the Eighth Amendment to prove his point. On the contrary side of the argument, Bryan A. Stevenson argues that the Eighth Amendment should be updated in the minds of the court, in order to preserve equality and adjust to the standards of decency in America as they evolve over time. Stevenson uses concrete examples to point out that these notions have changed over time in the past, pointing out how, for example, whipping is now considered unconscionable.

In this fashion, the court needs to prohibit modern punishments that did not exist in 1791. He points out the practice of extended solitary confinement as an example of a punishment that had not been implemented in 1791, but he thinks would be considered cruel. He says that the Amendment serves the country well, but that it must be extended to more than just its historical context. Ultimately, Stevenson’s argument is more convincing, utilizing extremely relevant and specific examples of how the Eighth Amendment’s vagueness has been detrimental. Stinneford makes an interesting point on potential abuse in the Supreme Court, but we have some major disagreements – the main one being that he is worried about the abolition of the death penalty, which he argues is a justifiable punishment. Fundamentally, I disagree with that conclusion, as does Stevenson. Additionally, Stinneford argues that the Eighth Amendment has protected Americans from the federal government, but I’d argue that it has not actually stopped cruel and unusual punishments from occurring: one only needs to look at the government practicing solitary confinement, drug cocktails, the electric chair, or waterboarding. I certainly find these punishments cruel and unusual, and I can find no constitutional or moral justification for any of them, no matter the context surrounding the Eighth Amendment. Either the federal government admits that it does not follow this amendment, or the meaning of “cruel and unusual” is expanded and these practices are stopped.

The Ninth Amendment – Arabella Moffitt

Video

Written Component

During the Constitution’s ratification process, a group emerged known as the Anti-Federalists. This group favoured a strong state government and a weak central government. The Anti-Federalist’s primary fear was that the new American Government would have too much power over states and individuals and threaten individual liberties. On the other hand, a group known as Federalists, who believed in a strong central government and a weak state government, firmly believed that the Constitution did not need the addition of a Bill of Rights. One notable Federalist, James Wilson, argued against including The Bill of Rights. Wilson insisted that adding a Bill of Rights would imply that any right that was not mentioned did not exist. Despite this, the Federalists agreed to add amendments to the Constitution to protect the rights of the people and to satisfy the demands of the Anti-Federalists. After the ratification of the Constitution on September 25h, 1789, a Federalist name James Madison proposed 12 different amendments to the Constitution to Congress, 10 of which were ratified by the states and became collectively known as the Bill of Rights.

The Ninth Amendment is commonly understood to mean that the rights listed in the Bill of Rights should not be used to conclude that American Citizens do not have any rights beyond those outlined. However, much debate is over what James Madison meant by “Rights retained by the people”. It is believed that James Madison intended that “Rights retained by the people” referred to people’s natural rights. For example, in Madison’s notes for his proposed amendments, he refers to the freedom of speech as a natural right and that the people retained it due to its standing as a natural right. On the other hand, Roger Sherman believed that “rights retained by the people” referred to people’s individual rights, which are given to them upon their entrance into society. This included acquiring property, pursuing happiness and safety, and press freedom. However, since only some of these individual rights were included in the Bill of Rights, based on the Ninth Amendment appears to have been designed to prevent others which are not included from being taken away by the government.

The legal effect of the Ninth Amendment, in its original meaning, is that it serves as a rule of construction. It tells people how not to interpret a written Bill of Rights, specifically that just because specific rights are listed or mentioned does not mean they are any more important than those not mentioned. Due to this, the Ninth Amendment is inconsistent with one of the footnotes in The United States V Carolene Products (1938). The footnote suggests that when a law goes against the rules stated in the Constitution, especially the Bill of Rights, there is less room for assuming that the law is conditional. This opinion goes against the Ninth Amendments’ rule of construction by downplaying rights that are not explicitly included. If allowed to amend the Ninth Amendment, I would not. The vague nature of the Ninth Amendment allows for flexibility in recognition of new rights that could emerge over time, reflecting society’s evolving needs and values. Amending the language of the Ninth Amendment would hinder the flexibility that it provides.

Lambroza- Suspension Clause

Written Component

Article 1, Section 9, Clause 2 of the Constitution, otherwise known as the Suspension Clause, grants prisoners the right to habeas corpus. This concept originated as an English law that stated that an imprisoned person has the right to challenge the legality of their sentencing. If a court finds that the reasons for their punishment were unlawful, the prisoner must then be released from their detainment. Originally, this was created as a way to protect a prisoner’s rights and freedom, as monarchs were known to send people to jail without a trial. However, it was largely ignored in England until Parliament passed the Habeas Corpus Act of 1679. Thus, the Framers of the constitution were likely trying to protect those who were unjustly sent to prison, and limit the government’s infringement on a citizen’s right to due process.

This clause is commonly interpreted as granting U.S. citizens detained by America and non-citizens detained on U.S. soil the writ of habeas corpus, except in cases of rebellion or domestic invasion, where granting this right to prisoners could be detrimental to public safety and security. However, one major disagreement among Constitution scholars is the scope of whom this clause applies to. For most of its history, it has not applied to non-citizens imprisoned outside of the country, as it was not explicitly stated in the text, as well as there being no precedent for courts having this jurisdiction. A key example of this is Johnson v. Eisentrager (1950), in which the Supreme Court ruled that 21 german citizens detained by the US Army in Germany did not have the right to challenge the legality of their sentence. Despite this, it was ruled in Boumediene v. Bush (2008) that a group of soldiers held in Guantanamo Bay had the ability to petition for a writ of Habeus Corpus. As such, this newly established precedent granted courts the ability to extend the writ of Habeus Corpus to non-citizens detained outside America if the courts deem it reasonable.

The origins of this clause are rooted in the authoritarian power of the English monarchy, in which it was fully within a king or queen’s power to send someone to jail without the benefit of a trial. In putting a check on the monarch’s power, Parliament asserts its political power over the “Divine Right of Kings”; in short, the monarchy of England justified its existence and position by claiming to be divinely chosen. This proved ineffective, as during the English Civil Wars (1642-1652), the monarchy was overthrown and the King was executed. Though it was eventually reinstated, the fact that Parliament could institute restrictions on the supposedly boundless power of the King was a reflection of the developing Enlightenment ideals of the time. This included a shift toward logic and de-centralized power and away from authoritarianism, ideals which both Parliament and the framers of the Constitution seeked to embody in their governments.

Amendment VI – Julian Shapiro

Video

Written Component

Amendment VI:

 

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.

 

The 6th Amendment of the United States Constitution provides a set of rights for the accused that are crucial to America’s legal and prosecution process. These rights, since their original uses in the context of the 18th century, have evolved and been interpreted by the Supreme Court. In the late 18th century, cases were most often debated with the prosecutors and defendants themselves. The 6th Amendment built on this, with the purpose of allowing both the prosecuting and defending sides to each present their own arguments and evidence, resulting in a more equal process with less emphasis on the court itself investigating the case. 

 

One of the most significant rights which the 6th Amendment outlines is the right to a “speedy and public trial.” The importance of this right is that it helps provide fairness to the defendant; it creates a swift system preventing the defendant from being held under unproven accusations for long periods of time and making sure all evidence is presented before it is altered or lost. The right generally requires that the case starts within a certain duration of time after the incident, or the defendant can dismiss the case. A “speedy” trial is, however, subjective, and the Constitution does not provide a more specific duration, causing divergent interpretations. It was most significantly debated in the 1972 Barker v. Wingo case. In 1958, Two men, Manning and Barker, who killed a couple were indicted. The state, however, convicted Manning first, as there was more evidence against him, and he would later have testimony to help convict Barker. Barker was finally convicted in 1963, five years after the crime, and claimed he had been denied the right to a speedy trial. The Supreme Court unanimously rejected Barker’s claim, saying a “speedy” trial is not firmly defined and depends on the circumstances. In this case, though it was long, there was no prejudice against Barker in the trial and he had not actually requested a faster trial during the case.

 

The right also provides publicity to the trial. The basis of this is that it is open, allowing for more people and media to have opinions on the case, as well as preventing corruption and judicial bias that may occur in a private case. Another right the 6th Amendment provides for the defendant’s benefit is the compulsory process clause, requiring witnesses requested by the defendant to attend the court. Additionally, prosecutors’ witnesses must be “confronted” against the defendant in person, in order to require evidence that can be questioned by the defendant and jury under oath.

 

The final and most debated right described in the 6th Amendment is the assistance of counsel, which guarantees the defendant a lawyer if they wish. Those who can afford to can hire a lawyer of their choice, while those who cannot are entitled to one paid for by the government. The extent of this clause has been debated, most significantly in the 1963 Gideon v. Wainwright case. Gideon, who had been the defendant in a state court, requested a lawyer, however was denied the right as it was not a part of the state’s laws for a trial court. The case reached the Supreme Court, who unanimously decided in Gideon’s favor, extending the right mentioned in the 6th Amendment to be extended to defendants state courts. The decision was a milestone in the protection of legal rights, as most cases are in state courts rather than federal ones.

 

The 6th Amendment is a crucial democratic legal right that has been often changed through the Supreme Court. I believe the amendment still needs change, specifically in clearly defining the amount of time in which a trial must start, to better ensure a fair case.

Amendment II

Video

Written Component

The Second Amendment or popularly known as The Right to Bear Arms was originally created to allow citizens to protect themselves against the attacks of the militaries of other nations. When the amendment was created the United States had just fought Britain and was worried that Britain would retaliate against them at any moment.   The amendment was created because it would take too long to get the national military together to fight back against surprise attacks. However, since its original creation, the interpretation of this amendment has changed significantly. In the modern day, many perceive this amendment to say that citizens are allowed to own guns.  

One side to the argument is that the Second Amendment should stay as long as it is used to the original purpose of the amendment.   Because the amendment was vague, many people misunderstood the amendment and each person understood it in a different way. Questions have risen over parts of the amendment that were not mentioned in the constitution such as the right to bear arms in public and which type of guns were allowed to be owned by a common citizen.  

The other side to the argument is that similar to the First Amendment there is a point where reason overrules the amendment. For example, despite the notion that there is freedom of speech, one cannot commit perjury or fraud. Also despite the right to bear arms one cannot possess a nuclear bomb.   Many agree with the amendment in which it means that a law abiding citizen can own a gun and protect themselves against opposing governments or criminals. The controversy begins with which type of guns can be owned and by who. Many people who disagree with the Second Amendment believe that guns can be allowed to be owned by citizens but it should be more difficult to purchase a gun.  

Originally there was a law in Washington DC that stated that all guns must be registered and that all guns stored at home must be unloaded and locked. Police Officer Dick Anthony Heller was denied the right to own a handgun but was denied. He then sued the District of Columbia.   The supreme court reversed this law as it was a violation of the Second Amendment. This shows that even hundreds of years after the creation of the constitution, the constitution is still looked at to decide laws around guns.  

While I believe that this amendment should remain, I think that there needs to be stricter guidelines and restrictions around who can own guns where they can carry them. For example I think that it should be more difficult to purchase a gun and if you are not a part of the military or a police officer, it should be illegal to possess a gun outside of your property. While in many areas it is already illegal to carry a loaded gun, the punishment for doing so should be harsher.

The Treason Clause Is a Catch-22

Video

Written Component

The tensions rising between Great Britain and the American colonies in the 18th century, such as taxes disproportionately rising for the colonies, fueled dissent among the colonists against the monarchy. Yet, such dissent—whether it was simply ideological or political—that threatened the power or prevailing order of Great Britain was widely categorized as treason, particularly in the case of the colonists. The Framers of the United States Constitution, directly encountering the injustices of treason charges, clearly defined treason and established safeguards that protected the freedom of expression and thought of those being tried for the crime in the Treason Clause in Article III, Section 3. The Clause, however, is a catch-22: compelling and particular proof is required to convict one of treason, complicating the process and resulting in very few cases ever convicted of treason. Simultaneously, this process protects those being wrongfully convicted.

Though the Framers aimed to stray away from any ambiguity that may engender an abuse of power, the constitutional protection of the Clause narrows the scope of the offense, making it an umbrella term for many other similar crimes. The two types of actions that are defined as treasonous are: (1) “levying war” against the United States, or (2) “adhering to [the] enemies [of the United States], giving them aid and comfort.” The testimony of two witnesses or a confession from the person being tried is also required as part of procedural requirements. Scholars Paul Crane and Deborah Pearlstein identify the distinction between treasonous action versus thought the Framers weaved in the Clause, increasing the complexity of convicting one of treason as they must have taken concrete action against the national security of the United States. In Cramer v. United States (1945), the lawyers of Anthony Cramer, being tried because he assisted German soldiers in invading American land, argued treason charges should be reserved in times of war. This made convicting one of treason complicated because “levying war” implies one must have been unequivocally involved in an armed rebellion against the United States, and this would occur usually only in times of war. Requiring the testimony of two witnesses or either a confession, the Clause becomes even more complex as further evidence is required rather than solely circumstantial evidence that may convict an innocent person. Thus, what may seem as treason is subverted to, as Pearlstein says, “treason by any other name.” Frequently, cases of suspected treason that do not meet the particular needs of the Clause are convicted of espionage. This is seen in Rosenberg v. United States (1953), when couple Julius and Ethel Rosenberg were convicted of espionage rather than treason for revealing atomic secrets to the Soviet Union solely because they did not meet all the safeguards of the Clause.

Today, the Clause still remains complex. The January 6 insurrection of Capitol Hill by supporters of Donald J. Trump, though widely considered treason by the left-leaning American population, has not yet been tried for treason. Scholars believe the complexity the trial imposes legally, as well as the historically few cases convicted of treason, causes prosecutors to shy away from advancing with their argument. This implores us as Americans to think: Has the day come to modify the Clause to portray modern day America in context of the January 6 riot? How do we reconstruct a Clause that is free of political bias and inclusive of all Americans and their political views?

The bibliography of this written component has been submitted on Google LTI. 

Amendment 10 (Noor Nassar)

Video

Written Component

The 10th Amendment is commonly understood to mean that powers not explicitly given to the federal government in the Constitution are given to state governments or the people. Essentially, the federal government’s power is only derived from the Constitution. The amendment does not change the relationship between the powers given to state governments and federal governments, but it emphasizes that state governments may establish and practice their own laws, as long as they do not conflict with the jurisdiction of the federal government. 

In 1787, the original draft of the Constitution did not include a Bill of Rights. This is because federalists strongly believed that the Bill of Rights would imply that the federal government has powers beyond what is explicitly given in the Constitution. They argued that the federal government had limited and strictly enumerated powers and therefore there was no need to clarify individual rights. However, without a Bill of Rights, several states refused to ratify the Constitution because they believed that people’s individual liberties needed to be explicitly protected to ensure the American people couldn’t be taken advantage of by the federal government. The 10th amendment serves the purpose of addressing the Federalists’ concerns by stating that the federal government can only exercise rights explicitly stated in the Constitution. 

The Supreme Court often relied on the tenth amendment to push back against assertions of national power. Additionally, historians argue that the tenth amendment has often been misinterpreted in political and moral contexts. The powers enumerated to state governments in the tenth amendment were abused because state governments justified the enforcement of racial inequality using the tenth amendment. In the Supreme Court case New York v. United States (1992), the Supreme Court stated that the tenth amendment is “essentially a tautology” and “is not derived from its text.” Other historians believe that the tenth amendment serves a similar purpose to any other amendment in the Bill of Rights. The tenth amendment reminds the federal government that federal powers cannot be inferred but have to be instead explicitly stated in the Constitution. 

One significant Supreme Court ruling to the tenth amendment was New York v. United States (1992). The federal government enacted the Low-Level Radioactive Waste Management Act in 1985 which required states to dispose of radioactive waste within their state’s borders. However, disappointed with these efforts, New York State filed suit against the federal government and argued that the federal government does not have the authority t o regulate state radioactive waste management. The decision was 6-3 for New York because the provision that state governments were forced into the service of the federal government was seen to violate the tenth amendment. This case illustrates the tenth amendment’s importance in making the division of powers between federal and state governments far more concrete and distinct. 

The first debated interpretation is far more persuasive because it signifies the usage of the tenth amendment only when it is convenient to the federal or state government’s case. The idea that state legislators can use the tenth amendment to justify pieces of legislation that promote racial inequality is extremely appalling. The Supreme Court arguing that the tenth amendment should be interpreted as a “tautology” allows for drastic misinterpretation of the law. It allows for the federal government to interpret and gain more power than is explicitly stated in the Constitution. 

Emma Zuzunaga – Article III, Section 3

Video

Written Component

Article III, Section 3 of the United States Constitution defines treason, as well as the criteria for convicting people of treason, who decides the punishment for treason, and what punishment for treason is prohibited. Treason against the United States is defined as being one of two things, either levying war against, or offering aid and comfort to the enemies of, the United States. To be convicted of treason, two witnesses must give testament to witnessing the same act, or the accused must confess in court. Once convicted, the constitution says it is the job of Congress to decide the punishment of the criminal; however, Congress is not allowed to prohibit the descendants of the criminal from inheriting property from them after their death. 

This clause was created to establish a concrete definition of treason to prevent the government and politicians from using treason accusations to repress and silence political beliefs that did not align with their own. In Federalist No. 10 by James Madison, one of the founding fathers, Maddison discusses the potential harms of faction, especially to a young nation. This sentiment was likely reflected in the writing of the treason clause, which prevents powerful or ruling factions from shutting down those who do not agree with them, which could lead to social unrest. 

The motivation for the treason clause’s creation, the desire to prevent dominant parties from oppressing others and politically isolating them, also reflects the french revolution. The third estate at the estates general was oppressed by the first and second estates because they were consistently outvoted, and were politically isolated because they were eventually locked out of the room as punishment for attempting to stand up for themselves and their people. This led to an extremely violent revolution, which could have influenced the framers to try to prevent similar infighting through this clause. 

The last line of this clause directly opposed Britain’s law, which prohibited the descendants of traitors from inheriting their belongings. 

The 1945 Cramer v. United States case properly illustrates the most controversial aspect of this clause. Cramer v. United States case ruled that mentally adhering to America’s enemies was not the same as offering them aid and comfort, and so that was not given, no treason was committed. On the opposing side of this case, the Government side of the court, who lost, argued that offering America’s enemies aid and comfort should be interpreted loosely to provide a more applicable version of the law which could be used during times of war. Modern scholars argue that the restraints the clause illustrates actually prevent traitors from being charged with treason on technicalities, and treason is now very difficult to prove. 

I believe that the Government’s interpretation of the treason clause is more compelling and should be the interpretation we use because it makes the law much more applicable in a modern context. The Constitution should be a living document, and our definition of treason should be different than the framers of the Constitution. 

Commerce Clause – Eileen Li

Video

Written Component

Context

In 1781, five years after the colonies became free from British rule, the Articles of Confederation were implemented. This document was an agreement between the 13 states that attempted to establish the functions of the national government. The Articles allowed each state to have power over their own trade. They worked independently and competitively against each other, and even established trade barriers. Congress was prohibited from regulating any commerce, so the rising inflation rates could not be controlled, and America’s economy grew weak. In response to these economic problems, a convention was held in 1789. 

 

Common interpretation

The Commerce Clause was formed here, which gave Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is commonly interpreted as giving Congress power to regulate international and interstate commerce, and trade with Indian Tribes, as well as prohibit states from interfering with Congress’ decisions. 

 

Matters of Debate

However, the undefined meanings of the words “to regulate”, “commerce” and “among the several States” make this clause open to interpretation. For example, in the case of Gibbons v. Ogden, the word “commerce” was argued to include people, not just goods. Thomas Gibbons, given permission by the federal government to operate steamboats between New York City and the New Jersey coast, sued Aaron Ogden, who was backed up by the State of New York to do the same, after Gibbons was denied access to these waterways. In the end, the Court ruled in Gibbon’s favor. The argument was that the definition of “commerce” included the people carried in steamboats, so steamboats would be considered as commerce, and the powers of Congress from the Commerce Clause could be applied. The reasoning of Chief Justice Marshall was that “commerce” was not only buying and selling, but also intercourse and thus navigation. 

Another matter of debate was introduced in United States v. Darby, where the meanings of “to regulate” and “among the several States” were expanded. The FLSA (Fair Labor Standards Act) was passed in 1938, and set minimum wages, maximum hours, etc. Darby, a lumber manufacturer, was arrested after shipping lumber out of state while violating the FLSA. In this case, the Court reaffirmed this Act to be constitutional, which gave Congress the power to prohibit manufacturing goods inside states with the FLSA. Another reason why Congress was given this power was because intrastate commerce would affect interstate commerce, which the government was already in charge of by the Commerce Clause. Previously, the common interpretations of “to regulate” and “among the several States” led to Congress regulating commerce between two or more states. However, these meanings were expanded in the case of United States v. Darby, giving Congress the power to regulate interstate and now intrastate commerce.

 

Significance

The concepts of the Commerce Clause connect to some ideas of early modern enlightenment philosophers such as Rousseau, as they both emphasized the importance of a strong central government. Personally, I would not change this clause because I think this idea is extremely important. If Congress wasn’t in charge of states’ trade, the free market wouldn’t exist, and America’s economy would worsen.