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Connor Smyth – The Election Clause and Suspension Clause

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Election Clause: The Election Clause, located in Article I, Section 4, Clause 1 of the United States Constitution, addresses the regulation and conduct of elections for Senators and Representatives. It says that the “Times, Places, and Manner” of holding elections shall be determined by state legislatures while still granting Congress the authority to make or alter regulations, except for the selection of Senators’ places. The content of the Election Clause reflects the framers’ intent to establish a federal system that respects the freedom of individual states while ensuring a degree of federal oversight. By granting primary authority to state legislatures, this allows each state to tailor its electoral system according to its unique circumstances and demographics. The significance of the Election Clause lies in its role in safeguarding the democratic principles of the United States. It allows states to administer elections and shape their own voting regulations. Simultaneously, the clause empowers Congress to intervene if necessary to protect the fairness of federal elections or ensure the fair treatment of voters. This authority enables Congress to pass laws that establish uniform standards, address discriminatory practices, and guarantee the protection of voting rights.The Election Clause has played a significant role in defining the limits of state and federal authority, particularly through landmark decisions such in the case of the Voters Act of 1965, which involved the protection of free voting rights for all. This provision remains a cornerstone of American democracy, ensuring the protection of voting rights and the integrity of the electoral system.

 

Suspension Clause: The Suspension Clause, found in Article I, Section 9, Clause 2 of the United States Constitution, addresses the power to suspend the privilege of the writ of habeas corpus. It states that the right to habeas corpus, the requirement that someone that is arrested must be brought before a judge or into court, may not be suspended or delayed unless in the case of rebellion, invasion, or if the public may be in danger. The Suspension Clause sets a high threshold for suspending this privilege, permitting it only in cases of rebellion or invasion when public safety is at risk. By requiring such exceptional circumstances, the clause ensures that the writ of habeas corpus is not casually or unjustly suspended, preserving the right to challenge one’s detention before a court. The clause acts as a check on executive authority, requiring a legitimate and urgent threat to public safety before the suspension of habeas corpus can occur. Throughout history, the Suspension Clause has been invoked during times of crisis, such as the Civil War and World War II, to address threats to national security. Legal interpretations and debates have revolved around the scope of the clause, including questions of its applicability to non-citizens, the extent of judicial review, and the duration of suspension. The Suspension Clause continues to be relevant today, as issues such as terrorism and national emergencies prompt discussions about the delicate balance between civil liberties and security. 

Reese C-Constitution Project-The Declare War Clause

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The Declare War Clause is a part of the eighth section of the first article of the Constitution of the United States. The clause states “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” The framers of the Constitution wished to include this clause to create a concrete limit on the power of the executive branch and disallow a single person from controlling such a momentous decision as Declaring War, unlike the British Monarchy where the king can declare war.

By vesting the power to declare war in the hands of Congress, the framers guaranteed that there would be checks and balances to the decision as Congress would need to vote to instigate a war. The clause has commonly been understood as vesting the power to declare war in Congress in order to limit the power of the Executive Branch and add a democratic process into the steps to declare war However, it is slightly contested among scholars as a majority of scholars agree that Presidents cannot instigate wars without the permission of Congress while a minority believes that the Declare War Clause only gives Congress the power to make formal declarations of war and as a result, the President can declare war.

To support this point, some scholars have looked carefully at the language of the clause and argued that the power to “declare war” can be thought of as a formal declaration and not the use of military force. As well, these scholars have looked into the historical practices of the clause: In response to attacks on American Ships in the Bey of Tripoli during Thomas Jefferson’s presidency, Jefferson responded by sending ships to the Bey but instructed them to not attack the enemy ships and to only subdue them.

Jefferson felt that by commanding his ships to not attack the enemies, he wouldn’t be violating the Declare War Clause. In response to Jeffersons’ actions, former Secretary of the Treasury, Alexander Hamilton, stated that he found the clause to be vesting the power to declare war in the hands of Congress, but if another country had initiated a war, as the Tripolitans had in this case, then the country was already in a state of war and due to this, no declaration was needed to initiate war and use violence.

Using Jefferson’s actions and Hamilton’s view, scholars have argued that Presidents are allowed to deploy troops that are not involved in combat and initiate war if it is in response to attacks on the country. In the 1863 Prizes Case, the Supreme Court sustained President Lincoln’s blockade of southern states’ ports, without the permission of Congress, in response to the state’s attack on Fort Sumter. The court concluded that the blockade was constitutional because a state of war was in place as a result of the attack, therefore, the permission of Congress was not needed. The case clearly illustrates the President’s power to initiate war in the case of an attack on the country.

The Declare War Clause distinctly exhibits the separation of powers, which was heavily implemented by the French in their constitutions and it represents how both the American and French constitutions were heavily influenced by each country’s negative experiences under monarchs. I find that the scholars who believe that the Declare War Clause only gives Congress the ability to formally declare war are a minority for a reason: It seems backwards to think that the framers of the Constitution would not add a key separation of powers and that instead, that they were only talking about formalities.

I believe this because the concept of separation of powers is one of the backbones of the constitution and so I feel that it is more reasonable that this clause is using the concept. If I had the ability to amend the clause I would opt to add a section stating that the President cannot declare war unless the country has been attacked or they have the permission of Congress. I think this adds a lot of clarity and prevents any future President from feeling like they could not use the full force needed because they were trying to follow the clause so carefully. 

 

Parker – Eighth Amendment

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The Eighth Amendment of the United States Constitution is interesting and especially difficult to grapple with because of the lack of clarity in the writing of it. It reads, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Prior to the Revolutionary War, the Americans had been under British rule and had witnessed different forms of harsh punishments. They also wanted to protect individual liberties as much as possible and by preventing “Excessive bail,” they took some power away from the government because ultimately, the colonists were still afraid of giving too much power to the government. Although confusing, there are only so many possible interpretations of such simple writing. A common one is that bail should not be priced at a very high amount and that there would be a prohibition of inhumane and barbaric punishments and consequences.

The problem with the phrasing of the Eighth Amendment is the phrasing is overly simple to the point where it is nearly impossible to know how the author of this section intended for it to be interpreted. For example, Some people think that a “Cruel” punishment is going to jail in the first place and others think that the death penalty falls under “Cruel” punishments. A common claim made by legal scholars is that the treatment of the Eighth Amendment should evolve over time as society changes. Obviously the definition of “Cruel and unusual” will change and has changed over time. When the constitution was being written, people were still getting branded and hanged in public. Those forms of punishment haven’t been used in the states in an extremely long time. 

A famous court case that involves the Eighth Amendment is Atkins vs. Virginia. The case dealt with the question: is it cruel or unusual punishment to sentence people with intellectual disabilities to the death penalty? Ultimately, it was deemed cruel and or unusual because it was decided that people with intellectual disabilities lacked understanding of what the causes of their actions were and that they did not understand the consequences of them. A major factor in the decision of this case was in fact, the eighth amendment because ultimately, putting mentally challenged people to the death penalty was deemed “Cruel and unusual.”  

This year, we have learned about many forms of harsh and brutal punishments, so this was especially interesting to see that a country tried to mitigate them. It’s also fascinating to see how hard the authors tried to move away from British themes and practices; such as “Cruel and unusual” punishments. Out of all the arguments surrounding the Eighth Amendment, I find that the perception of it should and will continue to change over time. In my opinion, it is completely irrational to treat the Eighth Amendment like it was treated back in the eighteenth century because we’re not living in the eighteenth century. Dealing with issues from an eighteenth century perspective today, in the twenty-first century, is almost laughable if you think about how much has changed in the last 250 years. If I could, I would keep this clause in the constitution, but I would make sure to change the language to something more specific and have it reflect the current time period. It would also make sense to add something like, “The eighth amendment will be amended every 50 years” or something of that nature. Overall, I do think that the Eighth Amendment is important to the constitution, but with some changes, it could be much more valuable and applicable to solving different cases.

Molly – The Second Amendment

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The Bill of Rights was created following the American Revolution and the creation of the Constitution. The Second Amendment was crucial because the Founding Fathers wanted to legally give Americans the right to protect themselves and their security through the use of firearms and weapons. The amendment is responding to the desire for protection amongst the American people against unlawful violence. Most people understand the Second Amendment as being the individual right to bear arms. There is some divergence between who this right belongs to as some believe it is the right of the people while others believe it is the right of militia organizations. 

 

As for matters of debate about the Second Amendment, some believe that there is room for flexibility due to the evolution of weaponry. These legal scholars believe that, as the world evolves, gun control is increasingly necessary to provide order in society. Scholars that believe there should be regulations make the point that gun control isn’t exactly a new concept because, during the Founding Era, there were laws that regulated weaponry.  These laws banned untrustworthy people from possessing guns and required people to have guns that were appropriate for military service. Ultimately, the Second Amendment is about ensuring public safety. Others, however, believe that this amendment should be followed rigidly. They maintain the belief that the right to bear arms shouldn’t be restricted. The Second Amendment is like the First Amendment in that it is an inalienable right that everyone has. Gun control laws, while they aim to save lives and prevent crime, ultimately infringe on the individual freedom that all American citizens have. District of Columbia v. Heller demonstrates is just one example of the issues that come about with this debate. This case is illustrative because it shows how gun control may be violating the Second Amendment. Heller, a D.C. special police officer, was allowed to have a firearm when on duty but he wasn’t allowed to get a license for a handgun to keep at home. He argues that needing a license for a personal firearm infringes on his Second Amendment rights as an American citizen. 

 

This provision connects to the theme of individual rights that come up very often during the course of history. I think the most persuasive matter of debate is the argument that advocates for gun control because of the danger that is posed to so many people without gun control. With the increase of gun violence in America, better gun control laws are incredibly necessary and strictly abiding by the Constitution as time and technology evolve just isn’t viable.  This amendment is already such a major topic of discourse in America, especially today with the rise of gun violence. I would say to advocate for your beliefs on this amendment, go to protests and, most importantly, educate yourself on the topic. I would suggest this adaptation because it is incredibly important to form your own opinion based on unbiased information and to support it.

First Amendment – Freedom of Speech Clause

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The Freedom of Speech Clause is found in the First Amendment and has been highly important since it was ratified in 1791, and continues to be relevant in the present day. The first amendment was created with the original intent to protect each individual’s values and their right to expression. The Freedom of Speech clause prevents the government from ridding the people of their own opinions and from having total control over the way the people are able to interact with others.

It is primarily to state the allowance for people to criticize their own government without retribution. In many countries people face severe repercussions for presenting judgment to their government but this clause enforces the people’s abilities to speak their mind. This amendment was first put in place because the people wanted a written document stating their rights. The Freedom of Speech Clause is commonly understood as the law that gives all people the right to express any idea or opinion they possess openly without any risk of punishment, no matter what the view may be.

Additionally, that they can display these thoughts freely in any manner of expression. But, what a lot of people don’t realize, is the specificity of the amendment and the limitations within it that it holds. This clause presents the right for all people to publicly share their ideas freely without the fear of being punished by the government.  However, the Freedom of Speech Clause does not just give all people the right to say whatever they please to whomever.

The limitation is that people are solely protected from consequences being given from the government, and not others. For example, people can still legally be fired from a job as a result of expressing an opinion unless they are government employees. Freedom of Speech is highly debated as it is disagreeable among many whether or not any ideas should be acceptable to be expressed. This clause has been and continues to be controversial with the argument over making exceptions for what cannot be said publicly.

Most can agree that hate speech and words evoking violence shouldn’t be presented. But it gets difficult to incorporate that message into a law as it is difficult to create the limitation as all people have different views and different definitions of what they find offensive or politically correct. With this clause, the speech that gets the strongest protection is political speech. Praise or criticism of any political happenings are almost always protected by the First Amendment.

It has what is classified as ‘Preferred Position’ which is that all regulations, laws, and executive acts that will limit political speech are almost always shut down by the courts. A very impactful court case on the freedom of speech was Brandenburg v. Ohio in 1968. A Ku Klux Klan leader was delivering speeches that were extremely offensive and could be considered threatening to many people. Since it was political, the court ruled that it was protected by the First Amendment.

Something we also studied this year that can relate to the Freedom of Speech Clause is John Locke and his enlightenment ideas. Both were formed with the intention of giving more rights to the people. John Locke argued that people have the right to life, liberty, and property. The first amendment and John Locke’s enlightenment ideas share similar roots as they both allow people to have more agency and ability to express themselves. The Freedom of Speech Clause has impacted history greatly and continues to be relevant in the present day. 

Article II, Section 4 (Impeachment Clause)-Mira Gulati

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The impeachment clause in Article II, Section 4 of the Constitution is one of the most important powers given to Congress. It embodies the key principles of separation of powers and checks and balances embedded in the document. These principles were created by Baron Montesquieu, an Enlightenment thinker, who said that separating the branches and holding each other accountable was essential to preventing abuse of power that denied people their liberty. 

The objective of the impeachment clause was to provide Congress with another safeguard for this abuse of power, stating that “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.”  An earlier draft of the impeachment clause held that officials could be impeached for “Treason, Bribery, or maladministration” James Madison and the Philadelphia delegates objected to the wording and said that its obscurity would result in unreasonable impeachments. As a result, the word ‘maladministration’ was removed in favor of ‘other high crimes and Misdemeanors’ With these new revisions, congress instituted a clause that allowed the House of Representatives to bring charges against any official that has committed a crime or worked against the will of the American people. The exclusion of ‘maladministration’ makes it clear that unfitness for the post is not a valid reason for impeachment. However, the full grounds for impeachment are still not clarified with the new phrase and the meaning of ‘high crimes and misdemeanors’ is still debated today. 

The different interpretations came into play during former President Bill Clinton’s impeachment in 1999. The impeachment arrived after it was revealed that Clinton had lied under oath about his affair with White House intern Monica Lewinsky. The Senate, however, did not find him guilty of the counts of perjury and obstruction of justice Many Democrats advocated that while Clinton’s behavior was morally punishable, it did not affect the public so it did not constitute impeachment. That it was not a ‘high crime’ On the other side of the aisle, Republicans argued that his actions betrayed the trust of the nation and were therefore liable for conviction. 

The Clinton case raised a lot of questions surrounding the conduct of government officials. Many people wondered whether he set a precedent that only wrongdoing related to the President’s decisions involving the nation would constitute an impeachment. Whether only crimes prosecutable by court apply to the clause or misconduct and dishonor did too. If the original clause is to be maintained, only time and more impeachments will answer it. 

An alternate solution, however, lies in an amendment that would revise the last phrase of the Constitution so that the ‘high’ in ‘high crimes’ is removed. This would help clarify whether any crime that an official commits is applicable for impeachment. It does not make sense to have a range of crimes that an official is allowed to commit as they need to be held to the same standards as everyone else in America. The system of checks and balances that are meant to retain the citizen’s liberty holds no power if they do not.

Amendment V

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One of the most important rights guaranteed by the Bill of Rights comes from the fourth clause of the fifth amendment: the right to due process of law. The basis for this right dates back to the Magna Carta, a charter of english liberties granted by King John to his citizens in 1215. Clause 39 of this charter reads, “[n]o free man shall be arrested or imprisoned . . . except by lawful judgment of his peers or by the law of the land.”

The ideas of “lawful judgment” and “law of the land” evolved into the due process clause, which is the reiteration that the government must abide by the law and its process. However, it is important to note that the fifth amendment only applies to the federal government while the fourteenth amendment addresses due process in relation to state governments. Over time, two subdivisions of due process emerged: procedural and substantive.

The former addresses the fairness of the process by which the law is executed, an example being the right to fair notice. Most importantly, this right establishes the vagueness doctrine, which is the idea that the Court can deem a law not valid if it is unclear. The logic is that, if too vague, the law does not give people fair notice as to what it is stating. In contrast, substantive due process prevents the government from restricting certain natural rights that are not explicitly stated in the Constitution. This branch of due process has caused a lot of controversy.

Some believe it protects rights that should be guaranteed. Others think it has no Constitutional basis and impedes the government’s power as it controls what rights it can and cannot restrict. Regardless, the due process clause is a manifestation of several key principles of the Constitution. The first one it embodies is separation of powers as it gives sole jurisdiction of restricting the rights of life, liberty, and property to the judiciary.

The removal of these rights can only be done through the legal system, meaning the executive and legislative branches have no power in this regard. Additionally, the debates over substantive due process are reflective of the struggle to balance a strong national government with individual rights that has existed since debates between Federalists and Anti-Federalists during the drafting of the Constitution. While some believe substantive due process is not truly founded in the Constitution, it should be more widely seen as a legitimate interpretation.

The Constitution was written over two centuries ago, meaning it was written with a society that existed during that time, not the present one, in mind. As the times change and our social laws adapt, the interpretation of the Constitution must as well in order to ensure the continued protection of natural rights.

Kavi Bharara- The Commerce Clause

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The years following the declaration of independence and the adoption of the Constitution, marked incredible economic fragmentation and disorder among the 13 different states. The nation’s economy was deeply divided by the conflicting state legislations and trade policies/agreements, leading to a lack of cohesion and efficiency. Such economic turmoil and dissatisfaction voiced a need for changes to be implemented. 

Consequently, to address the intertwined economic and commercial challenges existing within states, the Commerce Clause was implemented into Article 1, section 8 of the Constitution. Essentially, the clause allows the United States Congress to regulate commercial activity and trade among states, foreign nations and Native American tribes. This shift of power to the central federal congress promotes a free market/enterprise among states and a unified framework for overseeing this interstate commerce. The clause also evidently creates a more level playing field among individual states, as it prohibits any regulations or laws at a state level that would interfere with national economic growth. Ever since its implementation back in 1789 however, the Commerce Clause has been subject to extensive interpretation and debate. The extent of congress’ ability to exercise such legislative power of state commerce, has been a part of an ongoing controversy, particularly in the context of conflicting Federalist/Anti Federalist ideals. As the framers never explicitly defined the word “commerce”, a wide-range of arguments and debates have ensued over what powers are exactly granted to congress. Some argue that the word reflects a narrow, limited definition of simply trade and exchange, while others claim it contains a more broad meaning of commercial and even social intercourses. While both interpretations have been argued, in our history, courts have generally adopted a border interpretation of the clause; for better or worse. Most notably, in the 1824 Supreme Court case Gibbons v. Ogden, the court ruled that Congress could regulate all interstate commerce and forbid any state legislation that would interfere with this power; an illustration of outright congressional power over states. How might this have sat with passionate anti-federalist thinkers who advocated for stronger state powers and were apprehensive of such a centralized federal power? In addition, a few years prior this, in 1808, the Commerce Clause was utilized to a broad extent when it gave Congress the power to abolish the slave trade with other nations; an example of the clause extending beyond economic matters to address significant social issues.   

It is important to note however, that the clause has also been witness to more narrow interpretations by the Supreme Court, particularly in a period between 1905 and 1907. During this period, courts explored the notion that the Commerce Clause did not grant Congress the power to implement laws obstructing an individual’s right to business contracts. Following this period however, courts began to return to overarching broad interpretations of the clause. 

 Evidently, the implications of the Commerce Clause have had a lasting impact on not only the political and economic landscape of the nation, but also its social fabric. We have seen its merits become invoked across an array of social contexts including desegregation, addressing interstate discriminatory practices and even slavery; all topics covered/witnessed in this curriculum. With that being said, due to its established precedent and overall positive social effect, the broader interpretation of the Commerce Clause is a more compelling, transformative argument. 

Declare War Clause: Article 1, Section 8

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When the Constitution was created, Article 1, Section 8 dealt with federalism, the separation of the powers on the national level versus the state level. The common interpretation of this section has changed over time, and one can generalize them into four broad categories in chronological order. At first, this section was perceived as Enumerated Rights Federalism, which meant that the national government was characterized as a government with limited powers. The national government had power as far as the enumeration in Section 8 went, but the states had everything else that was left over. State power was not given by outlining them directly, but instead by outlining the power of the federal government.

The second category was Fundamental Rights Federalism, where after the Civil War and the Civil Rights Act, the federal government was given the power to override state legislation in order to protect the fundamental rights of American citizens. The third category was New Deal Federalism, which ended Enumerated Rights Federalism, because this gave the federal government the power to regulate the states themselves in terms of intrastate commerce.

Now, enter into the modern era, where courts are trying to find a way to draw lines in order to identify where Congress’ powers end and where states’ powers start. Such efforts include preventing Congress from interfering in noneconomic intrastate activity. This is called State Sovereignty Federalism, where courts try to carve out a zone of autonomy for the states. Federalism has been debated for a long time, whether it be the amount of rights delegated to the national government and Congress versus the states. Some are staunch supporters of giving states the vast majority of rights, pointing to how individual states can establish different legislative/economic systems as a form of experimentation to see which sort of system works best.

Some argue that the methods of the court in terms of determining federalism based on the sovereignty of the states is not a method that adequately takes into account the intricacies of the relationship between the federal and state governments. When talking specifically about the Declare War Clause in Section 8, the common interpretation of that also falls into debate. However, the two sides of the debate are a bit different from the federal vs state government debate.

The debate in this clause specifically is between the executive branch and the legislative branch. The wording of the clause states that Congress can “declare war”, make legislation about conquering on land and water, authority to permit privateers to use force upon an enemy, and authority to legalize the seizing of another foreign nation’s property as repayment for debt. Up until the modern era, it has been unclear whether the Declare War Clause permits the executive branch to respond to sudden violent attacks.

In the case of The Bey of Tripoli, when war was declared upon the United States, President Thomas Jefferson sent frigates in response. However, Congress never formally declared a state of war with the Bey of Tripoli, and ever since, it has been unclear to what extent the executive branch can respond with force to a threat without the authorization of Congress, if at all. Judicial courts have also largely left this issue alone, so the executive branch and Congress have simply needed to reach a state of compromise and agreement with each other.

The Sixth Amendment

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The Sixth Amendment was a response to the multiple factors of the justice system that caused a lack of order and effectiveness in handling criminal cases. There were various issues with the legal process prior to the amendment including a lack of professional police forces and no professional representation for victims and defendants. The author’s motivation for including this amendment in the constitution was to reform certain processes of the justice system with the goal of making it more fair, orderly, and thorough. The Sixth Amendment advocates for new measures around trial, legal representation, and police forces. It outlines a need for individuals to be represented by professional lawyers and judged by a fair and impartial jury. It also emphasizes the importance of procedure in court and sets a standard for effective and comprehensive trials.

One topic of debate around the Sixth Amendment is the idea of defendants being entitled to disclosure of their potential consequences if they include deportation. Scholars Jeffrey L. Fisher and Stephanos Bibas argue for the right to an appointed lawyer being restricted to more serious misdemeanors and ones that can result in severe punishments like deportation in order to relive the burden of public defense lawyers.

The also explain importance of defendants, specifically those who could face deportation depending on the legal route they take, to have the right to an appointed lawyer and an extensive opportunity to understand the potential consequences of a deal and make the best choice for how to move forward. Fisher provides evidence in the form of a court case: Padilla v. Kentucky. The events of this case took place in 2009 and 2010. It consisted of a defendant, Jose Padilla, being sent to a judge based on three counts of drug related crimes and one count of operating a tractor without a weight and distance tax number.

He entered a guilty plea for the three drug count in return for dismissal of the other count. Following this, he filed for post conviction relief on the grounds that he had not been informed of the potential for deportation by his lawyer. His ruling was reversed by the Kentucky Court of Appeals and sent for an evidentiary hearing. The ruling was then reversed back by the Kentucky Supreme Court which stated that collateral consequences, and consequences around immigration were not required to be shared by counsel under the Sixth Amendment.

This court ruling illustrates the lack of clarity around the Sixth Amendment, and the contrast in views of that information lawyers should be required to disclose to their clients. This provision has a lack of clarity in some cases, such as this court case, which can connect to themes of inequality for immigrants in the legal system throughout history. I believe that if deportation is a potential consequence of a deal, defendants should be made aware of that because their lawyer should be working in their defense and their best interests completely; and this rule should be implemented in the clause.