clause

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.

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. 

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.

The Declare War Clause and Its Multiple Interpretations

Video

Written Component

America’s primary military conflicts were fought without formal acknowledgment during the immediate post-ratification period. In the early post-ratification period, the Declare War Clause was interpreted to limit the President’s power to declare war independently. The Clause requires a formal declaration of war from Congress for the United States to use force against another country.

Many founders saw this clause as an essential limit on the President’s power and a way to ensure a formal acknowledgment of war was required before the country engaged in military conflicts. The meaning of this text, and its intention, is that The Constitution grants Congress the sole power to declare war. However, there have been various interpretations of the true meaning of the clause. There are four instances where the President can engage in military activity that complies with the Declare War Clause. First, the President may use military force if specifically authorized by Congress.

Second, the President can independently engage in disputes if it is in response to an attack on the United States. Third, the President may use the Commander-in-chief power and other constitutional powers to deploy U.S. forces in situations that do not amount to war. Finally, the President can use force under the authority of the United Nations, which some people have argued can substitute for approval by Congress.  

Scholars and commentators have multiple interpretations of this clause. Some commentators have stated that presidents have claimed authorization from informal or indirect congressional actions, such as approval of military spending, assent by congressional leaders, or even Congress’s failure to object to ongoing hostilities instead of formal direct authorization. In addition to attacks on U.S. territory, defensive responses can extend to attacks on U.S. citizens, forces abroad, or U.S. allies and U.S. interests. 

Multiple scholars have claimed that presidents can initiate the use of force independently without the consent of Congress. For example, President Truman ordered U.S. forces into combat in Korea in 1973, and President Obama used air strikes to support the ouster of Muammar Qaddafi in Libya. Regardless of the original meaning, these examples have established a modern practice that allows the President to have a good amount of independent military power. In the Prize Cases of 1863, the Supreme Court supported Abraham Lincoln’s decision to blockade the Confederate ports following the attack on Fort Summers. On April 19 and 27, 1861, Lincoln issued decrees authorizing a blockade of Confederate ports, yet Congress did not officially recognize a state of war until July 13.

People argued that Lincoln exceeded his constitutional boundaries, but the Supreme Court decided he acted within his rights. While Congress could declare war, it was the President’s responsibility as commander-in-chief to respond to attacks and resist insurrection. This clause offers a debate over a ruler’s constitutional power and how there needs to be a checking system to limit them. Monstisque highly agreed with the notion of checks and balances and concluded that the best form of government was one in which all branches of government were separate and kept each other in check to prevent any branch from becoming too powerful. Although this clause is not a direct product of the checks and balances, the sentiment is the same.

The Constitution gives Congress this executive power to ensure the President cannot abuse his position. The most convincing interpretation is that presidents can independently engage in disputes as a defensive measure to protect the nation’s security. If an external force poses a threat to the integrity of American citizens, a defensive reaction is mandatory for the safety of the country.

Analysis of the Free Exercise Clause in the First Amendment

Video

Written Component

The Free Exercise Clause states that Congress cannot make laws “prohibiting the free exercise” of religious beliefs. The clause is part of the Bill of Rights, ten constitutional amendments that listed rights the federal government must protect. It was a natural outgrowth of a long debate about religious freedom in the Thirteen Colonies, where some colonies restricted religion while others, such as Virginia, enabled religious freedom. Founding Fathers like Patrick Henry and Thomas Jefferson advocated for religious freedom, which was eventually instated in the First Amendment. 

The plain English interpretation of the Free Exercise Clause is that Congress may not pass laws that stop citizens from practicing their religion. However, the Supreme Court has interpreted this clause to allow some limitations. The central question for interpreting the clause is to what extent it protects religious actions considered harmful to society. In the case Reynolds v. United States, the Supreme Court decided that, while a law may not regulate religious beliefs, it can regulate actions that result from those beliefs. The Supreme Court revised the rules in Wisconsin v. Yoder to limit laws that regulate religion to situations where the public interest is “compelling,” meaning it must be absolutely necessary to protect the state or citizens. Further laws and cases have added that regulations on religious actions must use the “least restrictive means,” limiting religious expression as little as possible even if that makes enforcing laws harder. The result of these interpretations is a compromise between total adherence and disregard for the Free Exercise Clause

The debate surrounding the Free Exercise Clause reflects multiple themes from our class and throughout history. The American Constitution, including    a vision of religious tolerance developed by European Enlightenment thinkers like John Locke and Voltaire demonstrates history’s  interconnectedness. The clause also shows how laws reveal values, similar to how the Manden Charter in Mali provided a lens into that society. Finally, the Free Exercise Clause demonstrates the complexities of dealing with  the “Other,” protecting minority rights in the Constitution but allowing old white men with power to limit those protections through court cases.

Personally, when it comes to the Free Exercise Clause, I think both abolishment or literal interpretation would be dangerous. Without the clause, the majority could dictate the expression of beliefs of minority groups. A literal interpretation, however, would let people use religion as an excuse and make it impossible to protect society. The only solution is a compromise as the court has attempted to achieve, but it is challenging to find the perfect balance. This difficulty leads to the Supreme Court occasionally allowing unjust violations, like upholding President Trump’s “Muslim Ban” against many majority Muslim countries. It also sometimes allows religious practices that harm people, such as making it legal for employers to deny full healthcare due to religious beliefs in the case Burwell v. Hobby Lobby Stores. While compromises may be complicated and lead to some bad decisions, finding a balance is necessary to create a functioning democracy.

Jack Korngold — 1st Amendment: Freedom of Speech Clause

Video

Written Component

First Amendment — Freedom of Speech Clause 

“Congress shall make no law . . .  abridging the freedom of speech, or of the press.” 

The concept of free speech per the First Amendment is a critical principle introduced in the Bill of Rights in the Constitution. The historical context for this clause is rooted in the American experience with the oppressive government of the British Empire. Indeed, the Bill of Rights was added to the Constitution to satisfy the concerns of the Anti-Federalists to protect the rights of individuals from the power of the central government. Even before the Revolution, journalist John Peter Zenger was prosecuted by the colonial government of Massachusetts for printing unpopular truths about the Governor.

This prosecution reflected a suppression of free speech, which the colonists believed violated their inalienable rights. The common interpretation of free speech rights has been the duty to protect both an individual’s and groups’ ability to express themselves from government intervention across various mediums, including speech, print and online forums. This protection is quite broad and encompasses a variety of beliefs, and includes the protection of opinions that many Americans might find distasteful or offensive.

Even the burning of the American Flag as a form of political speech was protected by the Supreme Court as demonstrated in the ruling of the Texas vs. Johnson case in 1989. The broad interpretation of free speech rights is seen as necessary for the preservation of our democracy. A central debate about this Constitutional right is how restrictive our interpretation should be in its protection. One view is that free speech should be limited for national security purposes — in the Schenck v. United States case, the Supreme Court read the First Amendment in a restricted way so that people could not criticize the government in a time of war and argued that if there was “clear and present danger” to the country, then the speech could be restricted. In contrast, in the 1969 Tinker v. Des Moines Independent Community School District case, the court was less restrictive and ruled that high school students could protest the Vietnam War and that teachers could not stop the students from showing their opposition.

This concept of free speech in the First Amendment is clearly an example of an “inalienable right” that earlier thinkers, such as John Locke, thought must be guaranteed by a government based on the Social Contract. This right also reflects Rousseau’s view of the General Will as expressed in his conception of the Social Contract. With respect to how restrictive our interpretation should be, it would be necessary to have high standards for what constitutes a “clear and present danger” to the country as highlighted by the Schenck case.

The standards for enforcement must be strict, otherwise governments could unjustly suppress opposing points of view that represent no real threat to the country, but that interfere with an Administration’s political agenda. Some have also argued for the possibility of amending the language of this clause to remove the protections for “hate speech.” My proposal is that hate speech be more narrowly defined in the Amendment by words or images that incite or provoke violence or harm against a particular group purely because of their identity. Regardless of differences of opinion, the Free Speech clause of the First Amendment is a foundational element of American society, even though we might not always agree on how it is to be interpreted.

 

Bibliography

Vile, John R. “John Peter Zenger.” In The First Amendment Encyclopedia, edited by Middle Tennessee State University. Middle Tennessee State University, 2009. Last modified 2009. Accessed June 2, 2023. https://www.mtsu.edu/first-amendment/article/1235/john-peter-zenger.

 

There was no information on John Peter Zenger in the Oyez Archive, and so, I cited an outside source. All of the other cases however, are from the Oyez Archive.

Noah Khalid: Elections Clause

Video

Written Component

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.

The Establishment Clause

Video

Written Component

Context

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

Common Interpretation

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

Matters of Debate

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

Significance

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

George Lipton – Due Process Clause

Video

Written Component

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

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

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

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