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The Free Exercise Clause

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The Free Exercise Clause in the Constitution stems from freedom sought by early American colonists who left religious persecution in Europe for a place where they would be free to practice their faith without interference from the government or established churches. The Massachusetts Bay Colony, founded by the Puritans, is one such example. The Founding Fathers recognized the importance of religious freedom and codified the right of individuals to freely express their beliefs, worship as they wished, and organize religious communities without government interference in the Constitution. In 1791, the “Free Exercise Clause” was included in the First Amendment of the Bill of Rights and its intent was to ensure that the government would not establish a national religion or impede the exercise of religious freedom by its citizens. 

The Free Exercise Clause protects citizens’ rights to: practice religious beliefs without government interference, follow their religious convictions, participate in religious rituals, attend religious services, and express their faith without fear of persecution or discrimination. What the clause does not specify is when the government may limit the exercise of religious freedom and thus leaves room for interpretation. The Supreme Court established a precedent that the government may impose restrictions on religious practices if they serve a compelling governmental interest and are applied in a neutral manner.

In Reynolds v United States (1878), the Supreme Court ruled against the practice of bigamy and found that free exercise protects belief but not all conduct. “Laws are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices.” In Cantwell vs Connecticut (1940), the Supreme Court found that state law requiring a permit for religious solicitation violated the Free Exercise Clause. Cantwell established that the government must generally allow individuals to freely exercise their religious beliefs without unnecessary restrictions. Citing Reynolds, the Court emphasized that “[c]onduct remains subject to regulation for the protection of society.”

In Employment Division v. Smith (1990), the Court found that free exercise did not relieve people of the obligation to comply with a “valid and neutral law of general applicability.”  Reacting to that decision, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993, providing religious exemptions from laws that place a “substantial burden” on religious exercise unless the government demonstrated a “compelling interest.” Relying on RFRA, the Supreme Court ruled in Burwell v Hobby Lobby (2014), that Hobby Lobby was exempt from a law that required health insurance plans to cover abortion-inducing medications.

In many ways, the Constitution’s Free Exercise Clause was the culmination of the successful struggle for religious and personal freedom that compelled people to emigrate from Europe and found the thirteen colonies. Ideals such as the freedom of religion and the individual being entitled to natural rights, even when governed by a social contract, are exemplified in this clause and served as catalysts for the drafting of the United States Constitution.  

 

Freedom of Speech Clause

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The Freedom of Speech clause, written in the First Amendment of the United States Constitution, is a foundational pillar of American democracy. James Madison, the author of the Bill of Rights created the Freedom of Speech clause. Because Madison viewed a free republic as ultimately dependent on public opinion, this clause gave people the right to communicate with one another without fearing any form of reprisal. The Freedom of Speech clause is a cornerstone of a free and open society. It recognizes that the exchange of ideas, even controversial or unpopular ones, is vital for progress, the pursuit of truth, and the functioning of a democratic society.

The commonly understood meaning of this section in the constitution (the First Amendment, specifically the Freedom of Speech clause) gives the right to freedom of both religion and speech, it is the basis of self-fulfillment and gives the right for someone to express their own thoughts and communicate freely with others. The scope of the Freedom of Speech clause is extremely broad, encompassing many variations of expression. It also protects written communication, different forms of art like film, video, painting, or poetry, and even nonverbal gestures or manners that convey a particular message like American Sign Language (ASL).

There are many ways to interpret this amendment, in different circumstances invoking the Freedom of Speech clause can be seen as either legal or illegal. For example, a “true threat” can be punishable by law if speech threatens to incite violence or gives the possibility of any physical, unwanted action, thus making it illegal. However, the Supreme Court repeatedly defends the ability to voice dissenting viewpoints, even when they contradict accepted standards or cause controversy. This occurred in the case Schenck v. United States (1919), where the state used the clause against Schenck.

The Supreme Court has acknowledged that speech, in all of its manifestations, acts as an essential catalyst for the discussion of ideas, the search for the truth, and the advancement of society. Even though there are many examples of Supreme Court trials that uphold the Freedom of Speech, the government can refuse to acknowledge the Freedom of Speech clause only if it is intended or likely to produce imminent lawless action. This was decided during Brandenberg v. Ohio (1969), the first instance where the Supreme Court interfered with the First Amendment. 

The First Amendment of the Bill of Rights is very similar to the Declaration of the Rights of Man and the Citizen, made by France during their revolution. It was created in 1789 exactly one hundred years after the Bill of Rights. Both documents share a similar foundation in advocating for fundamental human rights and freedoms. Both the Declaration and Bill of Rights imprint Freedom of Speech as a base for many different clauses established thereafter.  It is crucial to remember that both the Declaration of Rights of Man and the Bill of Rights acknowledges that this freedom has some restrictions, such as those against defamation, incitement to violence, and speech that presents a clear and present danger.

Jacob Sorett – Article 1 Section 4 The Elections Clause

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The Elections Clause was made to solely manage the election of the House and Senate, not the president. According to, Micheal T. Morley and Franita Tolson, it was written to ensure that all states hold elections for Congress and that their procedures for said elections are fair.

 The main purpose of the text is to balance the power of the state and of Congress in voting for representatives. More specifically, the clause is known to establish that each state can set its own conditions in which voting takes place, but that these conditions can be lawfully changed by Congress. 

Even with a common interpretation of the election clause, there are several divergent perspectives about its contents. An example of the above would be how some states more widely distribute power and create “independent redistricting commissions”. This was done in order to prevent the division of voters and keep current members of Congress in their offices. This viewpoint includes the idea of “independent redistricting commissions” being ideal for the Elections Clause for it displays that there is a fairer way to hold elections than what the clause outlines. An example specifically in the court would be Cook v. Gralike. Don Gralike came before the court and argued for the Congressional Term Limit Amendment. It permitted for warnings to be written next to the names of previously elected representatives who opposed Congressional term limits.

However, the supreme court declared that the Elections Clause prevents the state from doing so due to how the amendment is clearly biased towards candidates that support term limits. This serves as a perfect example of different interpretations of the election clause. From the perspective of the court, the Elections Clause should protect members of Congress by preventing the state from going against officials opposing term limits. From the perspective of Don Gralike, the clause allows for the state to still express the manner in which the process is done, and this manner he believes should include warnings next to candidates’ names.

Another case where the Elections Clause was debated was U.S. Term Limits, Inc, v. Thornton. The side of Thorton argued that states should be able to neglect to print the names of candidates who had served in Congress for three terms. Again the supreme court prevented this and declared that the Elections Clause requires all candidates to be displayed on ballots. The supreme court had yet again ruled in favor of Congress and its present officers, once again displaying the court’s interpretation of the clause. 

I find the Supreme Court’s interpretation of the election clause to be more reasonable and persuasive. The Elections Clause’s ultimate goal is to give Congress the power to keep the state in check, preventing unfair and corrupt voting procedures. With more lenient interpretations this is not the case, and this includes arguments such as the one in Cook v. Gralike. States shouldn’t be allowed to make such changes that are clearly in favor of specific candidates, and I think that the view of the supreme court entails this point. If I were to amend this clause, I would allow Congress to alter where the votes are made, as the Elections Clause currently bands this. The state could manage to make change the voting turnout by setting the location of the ballots to specific places. For example, if the state of New York changed all of its ballot locations to extremely far upstate, that would not reflect the vast majority of New York’s votes. This is because most residents don’t live upstate. I think Congress should be able to regulate this to ensure the right amount of voter turnout. 

Lucy – Third Amendment

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In the constitution the Third Amendment was written to go against quartering of soldiers.  This started during the revolutionary war. This amendment implies rights to domestic property and protects citizens from soldiers entering their homes without consent. 

During English wars their government wanted to make sure that at all times they had their military in nice homes being fed and sleeping in a real bed. Their military was not in barracks, and instead was in private homes, inns, ales, or barns. In England there was a law called the Anti-Quartering Act that banned soldiers from quartering in peoples homes and when England expanded to America those laws did not follow.  The first quartering act was published in 1765, which made it so the colonists had to house the British soldiers by finding barracks for them to stay in. If no barracks were available the colonists had to accommodate the British soldiers and find them another place to live like an inn or even their own home. Colonists were very upset and distraught by the huge number of RedCoats in Boston. With the British troops invading Boston, a very poor relationship came out which led to catastrophic and beginning events of the revolutionary war like the Boston Massacre.

The colonists were being rowdy outside of a store and the British troops shot and killed 5 people. These ongoing problems between the colonists and the English led to the Intolerable Acts of 1774 which included a quartering act that made British soldiers be offered even nicer housing from the colonists. The revolutionary war was meant to fight against these unequal laws that were put in place and remove the colonies from under British rule and after the Bill of Rights and the constitution were passed the colonies got freedom from England. 

The motivation for including this article in the constitution is to not have soldiers have to stay in other people’s houses. Having soldiers live with someone if they don’t have a very large house can take up lots of valuable space, soldiers can eat a lot of one’s food and cause someone to starve, and especially if the soldier is of an opposing group can be a major threat to that person because soldiers have weapons. When soldiers would come not only would they be a threat to colonists as an opposition but also by bringing deadly diseases to towns. The newly formed government needed to add this amendment into the Bill of Rights so that soldiers wouldn’t enter peoples homes and cause a ruckus. 

The third amendment connects to the enlightenment philosopher John Locke and his ideas that everyone should have the right to life, liberty, and property. The third amendment is making sure that every American citizen has the right to their own home and that soldiers can’t intrude without consent of the people who live there.  

 

Noah Khalid: Elections Clause

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 The Elections Clause is in the United States Constitution, specifically Article I, Section 4, Clause 1. The motivation behind the Elections Clause was to establish a balance of power between the federal government and the states in regulating elections for members of Congress. The founding fathers of the Constitution sought to create a system that would ensure fair and consistent elections while preventing abuses and potential corruption.

The Elections Clause is a constitutional ‘provision’ that gives states the primary responsibility to regulate and control elections for the U.S. House of Representatives and Senate. States have the power to determine the “Times, Places, and Manner” of these elections, but Congress can make or alter state regulations. However, Congress has the ultimate authority and can pass federal laws that can override state statutes. This Clause was created to prevent unfair election policies and to make a functioning national government. However, both states and Congress have limitations on their power, like not being able to violate other constitutional provisions or to impose substantial burdens on the right to vote.

The Constitution grants states the power to establish electoral rules, an important factor that can significantly influence election outcomes. By manipulating factors like district boundaries, measures to protect electoral integrity, and vote counting standards, the people in charge of setting election rules can favor one political party over another. The founding fathers of the Constitution initially assigned the state legislatures and eventually Congress with regulating congressional elections, but the modern Supreme Court has expressed doubt in the ability of partisan legislatures to look over the process in a fair way. Thus, the suitability of elected partisan legislatures for making such decisions is debatable compared to supposedly nonpartisan bodies. Historically, Congress has rarely used its power to override state regulations, which allowed election administration to be primarily handled by the states. However, in recent times, Congress has more often imposed requirements on states for federal elections, like the criteria for districting and voter registration standards.

The Arizona v. Inter Tribal Council of Arizona case is a great example of how congress can step in and override state regulations. Despite this example, Congress generally respects state laws and assumes they will control the practical aspects of federal elections. The Supreme Court has recognized that the Elections Clause gives Congress significant power to regulate federal elections without a conflict with state law. The Court has also highlighted the state’s authority to structure federal elections within the boundaries of their own laws. Although states have individual power, the final authority depends on the Congress, which creates a unique relationship between the states and the federal government in election regulation.

The Elections Clause reflects the Enlightenment principles like popular sovereignty and democratic government by allowing the state legislatures the power to regulate the “Time, Place, and Manner” of congressional elections. This clause also includes the belief that political authority should be received from the consent of the government and that fair electoral processes are vital to ensuring a representative government. I personally don’t think that the elections clause should be amended, however, I think that the congress should step in and take more action. They are granted with a lot of important power but do not seem to use it in effective ways.

Daya: Article 3 Section 3 The Treason Clause

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The treason clause is the only crime explicitly defined in the Constitution. It was not included to insure loyalty of citizens, but rather was included as a precautionary measure to prevent against the government’s misuse of treason prosecutions to stifle legitimate political opposition. By specifying the terms necessary for one to be convicted of treason, trials were focused on the narrowly defined terms of treason and prevented the punishment of cases without sufficient evidence.

The Treason Clause states that treason can only be prosecuted under two circumstances: levying war against the United States or providing enemies with aid and support. In order for an individual to be convicted, there must be testimony from two witnesses of the overt offense or a confession in open court. Additionally, the clause states that Congress is responsible for determining the punishment for treason while also saying that the punishment cannot extend beyond the convicted person’s life. This means that there can be no forfeiture of wealth and property.

In 1807 a case called Ex parte Bollman & Swarthout emerged. The case focused around an alleged plot by former Vice President Aaron Burr and two associates to overthrow the government in New Orleans. However, due to the strict definition of treason, they were not convicted. The Supreme Court decided that conspiring to levy war, such as drawing plans, recruiting troops, and finding maps, was different than having a group of people ready to commit the treasonous act. 

In another treason case, Cramer v the United States in 1954, the defendant, Cramer, was prosecuted for allegedly helping a Nazi soldier who had snuck into America during World War II. The court decided that in the case, there was both concrete action and intent to betray the nation, and therefore Cramer was convicted. This set the bar very high for other treason cases because it required both evident action and intent to betray the nation. In this case, the government attempted to argue that the Treason Clause should be interpreted leniently for wartime use. The court held true to the Framers’ beliefs and dismissed the idea of leniency during wartime, saying that treason cannot be the primary legal weapon to protect national security. While Cramer was convicted for treason, the court told the government that they could pursue other charges such as the  violation of the Espionage act, or the Trading with the Enemy Act without having to go through the specific Treason Clause. This ruling made it much harder to convict someone for treason in the future as there had to be evidence of support for the enemy and intention to betray the nation.

This begs the question, is the Treason Clause still relevant. Firstly, someone can still commit treason, which was the case for Adam Gadahn who was indicted for treason in 2006. Secondly, the Treason Clause represents the original values of the Framers. The strict procedure to convict someone is a reminder that the Framers did not want the government to suppress political opposition with threats of treason and wanted to safeguard individual rights. In America, the rise of the public sphere meant that different political ideas were freely circulating. In addition, today, with the widespread usage of social media, many political ideologies are discussed frequently. In both of these cases, the Framers’ original intentions prevent these discussions from having any repercussions.

Josie Hsieh – Free Speech in the First Amendment

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Ratified on December 15, 1791, the Freedom of Speech Clause was imposed as part of the Bill of Rights, the first ten Amendments to the Constitution. The clause, which was written alongside laws disclosing matters of establishing and exercising religion and the right to petition the government, is most basically understood to state that that the government cannot convict people or organizations on the basis of what they say or write. However, the First Amendment only protects citizens against government officials and agencies, not private corporations or individuals. Free speech is not a limitless right, but the Constitution never clearly defines its boundaries.

The ambiguity in the use of the terms “speech” and “press” have made the amendment susceptible to controversy, as the vast scope of interpretation of these regulations have resulted in political backlash as to what should be deemed acceptable or not. “Speech” also applies to circumstances of the Internet and most forms of expression. Symbolic speech is also protected, as seen in West Virginia State Board of Education v. Barnette (1943) which determined that forcing students to recite the pledge of allegiance violated their first amendment rights, and Texas v. John (1989) that determined that flag burning was not prohibited in the Constitution, and could not be punished.

In most circumstances, decisions on free speech are made based on past court cases and the history of governmental regulation. Political and symbolic speech are regularly safeguarded under the Constitution, as is hate speech. However, over time, specific categories were classified as “low-value”, establishing them as unprotected by the First Amendment. These categories have been deemed non-essential to expression of ideas, but what is within these categories is still subject to debate. Schenck v. The United States (1919) was the first Supreme court case to establish a “low value” category under the conditions of speech that created “clear and present danger”, after Schenck persuaded people to not join the war. 

Following that, Chaplinsky v. New Hampshire (1942) deemed “fighting words,” face-to-face personal insults which are expected to instigate immediate fights, unprotected, although it is unclear whether Chaplinsky’s insults could actually incite a fight today. Defamation was instated as unprotected in 1964, after the New York Times was charged for containing minor inaccuracies in an ad about a public figure in New York Times v. Sullivan. Obscenity was initially established as unconstitutional under the First Amendment in Roth v. The United States (1957), claiming that Roth’s mailing of obscene content was “without redeeming social importance.”

Deciding these cases depends on whether one wants to uphold individual liberty or social order. Opinions on what should or is constituted as “low value” speech are still debated in the twenty-first century as the rise of new technology gives people the opportunity to say anything anonymously or with little consequence. 

 

Article IV: The Guarantee Clause

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The Guarantee Clause (Article IV) responds to and prevents oppressive types of governments like monarchies. The Guarantee Clause reflects the framers’ aim to ensure democratic principles in the United States and maintain a representative government in each state. The Guarantee Clause states that every state must have a republican form of government. This ensures that no state inflicts a monarchy, dictatorship, aristocracy, or stratocracy. The clause does not detail the conditions of the republican government (specifically regarding voting requirements), but it does guarantee federal protection to all states from foreign invasions and domestic violence. 

Some scholars interpret this clause as a finite check on the federal government’s interference with the states’ autonomy and, specifically, enabled each state to set appropriate requirements for state and local elections. Others interpret this provision to explain that the federal government can interfere with states’ voting requirements if the conditions disenfranchise part of their population. Scholars argue that post Reconstruction Era, specifically in places where African American’s made up at least 40% of the population, the Guarantee Clause was not upheld, disenfranchising African Americans.    

Texas v. White (1891) provides some context for this interpretation, as the ruling dictated that the newly freed African Americans would become part of the people; thus, they were included in the republic and entitled to vote. Subsequently, Chin utilizes Ratliff v. Beale, which explained how and why Mississippi disenfranchised African Americans.

They declared that the newly enfranchised race (who were greater in numbers) lacked the intelligence and governmental instinct to complete these public services. This acknowledges Mississippi’s “problem” because African Americans comprised most of the population. Furthermore, the elected government personnel would not reflect who the white people desired to hold power in the state. By claiming that Black people did not have sufficient intelligence, the Mississippi Constitutional Convention addressed this problem by creating literacy tests and poll taxes to prevent African Americans from voting.

With these two cases in mind, African Americans, who made up the majority of the population, did not vote; thus, allowing Mississippi and other former Confederate states to run on the minority vote. Finally, in United States v. Mississippi (1965), the United States acknowledges the systematic disenfranchisement of African Americans and, ergo, states running on the minority vote.

The Supreme Court case Oregon v. Mitchell (1970) ruled that Congress could change the age requirement only for federal elections, not state or local ones, as it was beyond Congress’s authority. This ruling supports interpretations regarding states’ autonomy as it prevented the federal government from impeding Oregon’s rights.

Although the 24th Amendment (1964) abolished literacy tests and polling taxes, Chin’s claim extrapolates to current forms of disenfranchisement like gerrymandering. It provokes readers to question if the federal government’s allowance of states’ gerrymandering violates the Guarantee Clause. The Guarantee Clause reflects Lockean ideas of popular sovereignty in that each state runs on a republican form of government where the people have control through elections. Similarly, the provision incorporates Rousseau’s idea of the general will, as the clause guarantees that states govern according to the majority vote.

The Treason Clause – Lauren Nam

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The Constitution’s framers’ intention by writing the treason clause was not to enforce strict loyalty to America onto the citizens but to prevent the abuse of treason prosecution. Recognizing the historic misuse of accusations of treason to stamp out political oppositions, in order to avoid forming a repressive government, this clause attempts to expressly define the act of treason and enforce restrictions for prosecution. 

Article III, Section 3, Clause 1 constitutes treason against the United States only as two types of actions. The first act considered treason is declaring war. The second act is assisting and abetting an enemy of the United States. The second half of this clause establishes safeguards against prosecution of treason. To be convicted of treason, this clause requires at least two witnesses to testify to have seen the same explicitly treasonous act or the defendant to confess in open court.

Although these two umbrellas of actions may seem vague, the Court has interpreted this clause very narrowly, in line with the Framers’ original intentions, and has only indicted one person of treason since 1954. By writing this clause, the Framers limited Congress’ ability to define treason and instated difficult parameters to proving the crime.

The Court’s interpretation of the definitions of treason over the years have remained specific, with the Court, in many cases, reaffirming the distinction between conspiring to and actually levying war. In the case of Ex parte Bollman & Swarthout (1807), which pertained to the covert plot of Aaron Burr to overthrow the New Orleans government and tried two of his associates, both defendants were dismissed of their charges.

The necessity of concrete action and not just sentiment or expression against the United States in order to convict a person of treason, is a protection of the first Amendment and the rights of citizens. Under the treason clause, the Court found that the actions of Bollman and Swarthout were insufficiently carried out to be considered treasonous acts, establishing that intent alone cannot incriminate someone. However, as illustrated in subsequent cases, intent is pivotal in meeting the strict parameters that the Treason Clause requires to meet.

Article III, Section 3, Clause 2 grants Congress the power to decide the punishment of treason, however, protects the right of the family members to inherit property of those convicted of treason after such person has died. The clause specifically mentions, “Corruption of Blood”, a reference to English Common Law. In order to diverge from English Common law, in which Corruption of Blood was the automatic punishment of attainder for treason, the Framers prevent the consequences of treason beyond the convict’s life. 

While the Framers were trying to prevent the abuse of the treason clause, the French were on the brink of revolution. The French Revolution, specifically the reign of terror, unfolded in events that the Constitution was actively fighting against. The paranoia and fear of counter revolution which characterized the period led to mass executions and public unrest. The bloody events of the reign of terror is a testament to the necessity of the treason clause.

Mehela Noel: Amendment V

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The Fifth Amendment includes double jeopardy, grand jury, self-incrimination, and eminent domain. The Due Process Clause of Amendment V claims that no individual shall be deprived of life, liberty, or property without due process. Due process is still heavily used in courts to this day. There are two types of due process seen today in court; Procedural and Substantive Due Process. Both Procedural and Substantive Due Process are commonly seen in court cases affecting individuals of their life, liberty, and property. 

Procedural Due Process is the legal procedure that must be followed when governments are depriving individuals of their life, liberty, or property. Procedural Due Process is still seen today not only in court, but daily through Miranda Rights. Miranda Rights are stated when individuals are in police custody. These rights imply the right to remain silent, the right to an attorney, and the right to be appointed an attorney. Miranda Rights are a representation of Procedural Due Process because it is a requirement that happens before they are in the custody of the police, which is a legal procedure that must be followed before individuals are deprived of their life, liberty, and property.

The roots of Miranda Rights date back to March 2, 1963, when an 18-year-old woman from Phoenix filed a police report that she was kidnapped and taken to a desert, then sexually assaulted. Ernesto Miranda––the defendant of this case––confessed to kidnapping and rape during the police’s interrogation. However, prior to Miranda’s confession, the police did not inform him of his right to counsel and his right to refrain from self-incrimination. The detectives and officers did not acknowledge that Miranda had that right, therefore he was able to recant his confession, and not have it used against him in court. Ernesto Miranda’s confession was just one of many “forced confessions” during this time period. The Supreme Court determined that without certain warnings in interrogation, including the right to remain silent and the right to counsel, statements that are made during a custodial interrogation, are inadmissible during a trial.

Substantive Due Process focuses on liberty and whether there are fundamental rights implied when life, liberty, and property are being taken. Substantive Due Process is still a very prominent topic, especially in the landmark Supreme Court case, Roe v Wade. This case began when Jane Roe, a pregnant single woman in Texas, wanted to get an abortion. She was unable to get an abortion due to Articles 1191-1194 in the Texas Penal Code, denying her ability unless it was a deathly matter. Roe challenged this, stating that the Penal Code was unconstitutional, and a violation of her fundamental rights, referring to the Substantive Due Process Clause. This argument led to massive debate, and under Roe, the Courts rejected the claim that a woman is not able to terminate her pregnancy (this was later overturned in 2022). This Supreme Court case shows the importance and connection the Due Process Clause still has to the modern day.