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Kieran Constitution Project

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The First Amendment of the United States Constitution guarantees the fundamental right to free speech: a key to American democracy. The First Amendment was primarily created to protect American citizens from a totalitarian government. As disagreements heightened between Great Britain and the colonies, Jefferson became one of the key American revolutionaries fighting for the representation of those being silenced in governmental decisions. Even before the formation of the United States Constitution, Jefferson was no stranger to directly advocating for free speech.. Free speech was a huge priority to Jefferson as he began to design the framework for the United States, thus, leading to the First Amendment. 

However, in a modern democracy, there are incidents where the First Amendment can come into question. The events of January 6th, 2021, at the United States Capitol have ignited a heated debate about whether former President Donald Trump can be held accountable for his role in inciting the storm on Capitol Hall. Essentially, the First Amendment’s Freedom of Speech Clause protects people’s rights to express their opinions, ideas, and beliefs without fear of government censorship. It covers various forms of expression, such as speech, press, assembly, and petition. This timeless right ensures that citizens can engage in public discourse, challenge authority, and freely express differing opinions. However, there are instances where the first amendment’s protection can be taken away. For example, there’s an Incitement exception which states  that if speech is used to incite violence it would no longer be protected by the first amendment. This clause plays heavily into the ongoing debate of the accountability of Donald Trump. His actions leading up to the January 6th incident have been a subject of intense debate. There are two main perspectives each utilizing the first amendment to aid their argument, here are the two sides:              

Incitement and Responsibility:

One viewpoint states that Trump’s accusation of election fraud, his  “Stop the Steal” rally before the storming of capital hall, and his refusal to accept the election results created the atmosphere that led to five people being killed during the violence and many more being injured. People that believe Trump should be held accountable argue that his words and actions broke the incitement exception and therefore were no longer protected by the first amendment, as he  encouraged his followers to engage in unlawful behavior. They argue that Trump, as a public figure and the President at the time, had a responsibility to use his platform responsibly and promote peaceful resolutions.

Protected Political Speech:

Others argue that Trump’s claims, although controversial and provocative, could be classified under protected political speech. They strongly emphasize that the First Amendment holds the right to express strong opinions and engage in heated political discourse. Supporters of this perspective claim that holding Trump accountable would set a dangerous model for restricting free speech. They strongly emphasize the importance of protecting political discourse, even if it includes statements that some may find objectionable. On top of this they argue that no direct statements asking for his supporters to storm capitol hill, were made by Trump. I believe that Trump should be held accountable for his actions because although he did not directly state that his supporters should attack, he did imply it by saying that this was a “test of strength.” In conclusion, the debate surrounding the accountability of Donald Trump for the events of January 6th reflects the complexities of applying the First Amendment’s Freedom of Speech Clause.

 

2022-2023 Constitution Project 10th Amendment

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The 10th Amendment was ratified in 1791 by the Federalist delegates, who deemed a Bill of Rights necessary. After recently winning the Revolutionary War, the United States began to create a new government. Many were worried that the Constitution gave the central government too much power. The 10th Amendment was added after the Federalists declared they would create amendments based on the states and people’s wishes. This amendment is focused on how the federal government can interpret the Constitution, as opposed to the first eight amendments that give rights to the people. The 10th Amendment clarifies that power is not allotted by the Constitution to the federal government; this power belongs to the states or the people.

Debates surrounding this amendment concern the amendments’ failings to protect the power of the people. Legal scholars Gary Lawson and Robert Schapiro claim that different interpretations are often credited to the final portion, “the States respectively, or to the people.” Although “the people” are mentioned, when invoking this amendment in cases, individuals have rarely been able to protect themselves, where states have often succeeded. Two separate state sheriffs invoked the 10th Amendment to challenge a gun control law passed by Congress. The Supreme Court ruled in favor of the sheriffs in Printz v. United States because state officials are not under the administration of the federal government. This case demonstrates how this amendment does not protect the people and favors states. A case that demonstrates that an individual person is unable to invoke the 10th Amendment to challenge the federal government is that of Bond v. United States. Bond was denied the right to appeal an act by Congress that she believed went against the 10th Amendment, so she went to the Supreme Court to have her appeal heard in state court. She then lost in the appellate court, which ruled in favor of the act being constitutional. This demonstrates how the protection of the 10th Amendment typically only reaches the states and not an individual.

This provision contains concepts seen in the Declaration of the Rights of Man and of the Citizen. Both were written after revolutions against monarchies by men attempting to protect individual rights. The French document stated that all positions of power are not able to overexert the power they were not given. The interpretation that the people’s power is not protected by the 10th Amendment is more persuasive because, although the amendment states that power should be given to the people, an individual’s power is only considered at the state versus federal level. If a state invokes the 10th Amendment, it is because the power belongs to the state. Whereas if an individual person is unable to defend themselves by invoking the 10th Amendment, it is because the amendment lacks specificity and does not place power in the people’s hands. This amendment needs to be fixed to better suit the power given to the people. For example, by specifically stating the grounds on which individuals have power, they can invoke the 10th Amendment when these powers are abused. This adaptation would allow the people’s voices to be heard and further prevent the federal government from overstepping upon the power given to them by the Constitution.. 

Maddy Kim’s Constitution Project

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According to the Establishment and Free Exercise Clauses in Amendment I: the federal government will not have a state religion, or support or restrict any religion or religious practice. In the original articles, Article 6, Section 3 provides the only reference to religion and prohibition of a religious test for holding office.

 

The Establishment Clause sought to address the religious tyranny of the British. During England’s reign over the colonies, the Church of England legally required southern colonists to pay religious taxes and often attend church services. Some scholars interpret the clause as a check on religious tyranny. Additionally, due to most of the framers being Deists, the meaning of the clause based on the intentions of the framers indicates that the Establishment Clause aims to avoid persecution. Other scholars assert that the clause is a co-guarantor of religious freedom, designed to reduce the role of religion in American life, and promote the free practice of a variety of religions. These interpretations are two of a variety that have been used in some of the Supreme Court’s best-known Establishment Clause based decisions. In Engel v. Vitale (1962), the Court deemed it unconstitutional for public school children to be led in prayer or read from the bible as the government had no business drafting any formal prayers for any part of its population. 

 

The Free Exercise Clause states that Congress will not prohibit the free exercise of a religion. The clause was responding to the fact that much of the population of colonial America consisted of immigrants and oppressed peoples who sought to escape religious persecution and regarded the protection of religious exercise an inalienable right. The freedom to worship in accordance with an individual’s belief was widely supported by many of the American population. The Free Exercise Clause has been interpreted as a claim that religious liberty is equal liberty, and also that free exercise provides necessary protection for diversity and freedom. As explained by Frederik Gediks, a professor of law, the guarantee of free religious exercise was to prevent government discrimination or abuse on the basis of religion. Others maintain that this clause protects human diversity. Though the clause may seem very short and simple, there have been a variety of supreme court cases involving the Free Speech Clause that contradict each other. When discussing religious exemptions including Amish and Jewish practices, the Supreme Court has changed its perspective multiple times (as explained in my video!).

Carly Schreiber – Sixth & Seventh Amendment

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The United States Constitution’s Sixth Amendment declares that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” This amendment developed as a result of the British colonists’ experiences, who repeatedly subjected them to arbitrary arrests and unfair trials. The founding fathers intended to create safeguards to defend the rights of people facing criminal charges and guarantee fair and just trials. 

The Seventh Amendment of the United States Constitution says, “In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.” This amendment’s origins can be found in English common law traditions, where jury trials were crucial for settling civil disputes. 

In federal criminal cases, the Sixth Amendment guarantees the right to a speedy, public, and impartial jury trial that takes place in the state and district where the alleged crime was committed. The defendants are entitled to legal representation, have to be made aware of the allegations against them, and have the right to answer questions and present their own witnesses. This ensures that defendants are given the chance to present their case and are judged by a fair and impartial jury of their peers, and are not subject to arbitrary or extended detention. 

If the dispute is worth more than twenty dollars, the Seventh Amendment guarantees the right to a jury trial. It also forbids the re-examination of jury-decided facts unless specifically permitted by law. It emphasizes the importance of maintaining the traditional role of juries in resolving civil disputes and forbids courts from overturning jury verdicts unless they do so in alignment with the common law’s rules. 

Legal scholars and court rulings have disagreed in the past on how to interpret these clauses. The Sixth Amendment has sparked debates about what constitutes a “speedy” trial and what requirements should be used to assess whether the right of a defendant to a single trial has been violated. The extent of the jury trial guarantee provided by the Seventh Amendment and its relevance to modern civil litigation has also been questioned. In Barker v. Wingo (1972), the Supreme Court established a four-factor balancing test to determine whether a defendant’s right to a speedy trial had been violated. This case serves as an example of how the Sixth Amendment is applied in court. This case exemplifies the ongoing debate about the specific requirements and circumstances defining a “speedy” trial.

 

Bibliography

 

“Barker v. Wingo.” Oyez. https://www.oyez.org/cases/1971/71-5255.

 

“Gideon v. Wainwright.” Oyez. https://www.oyez.org/cases/1962/155.

 

“Miranda v. Arizona.” Oyez. https://www.oyez.org/cases/1965/759.

 

“Right to Speedy Trial by Jury, Witnesses, Counsel.” National Constitution Center. https://constitutioncenter.org/the-constitution/amendments/amendment-vi.

 

“Sixth Amendment Rights in Criminal Prosecutions.” Cornell Law School. https://www.law.cornell.edu/constitution-conan/amendment-6.

Giselle Barker – Final Constitution Project, Article 2, Section 4

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The second article in the Constitution constrains the elements of the executive branch, which is one of the three established in the Constitution. The fourth section in the article, gives power to the people by allowing impeachment to elected officials, as well as allows the other branches to check the executive system. The section states that reasons for impeachment can be “Treason, Bribery, or other high Crimes and Misdemeanors”, the motivation for including this within the Constitution is to prevent any corruption from taking place in office.

This connects back to the fear that many Americans and public leaders had of undergoing the American Revolution again because of the abuse of power from King George. The common understanding of section 4 is that Congress has the power to vote on the removal of the President, Vice President, or other elected officials.

However, matters of debate on the clarity of this section of the article have been interpreted differently, the particular line “high crimes and Misdemeanors” have been regarded as not specific enough to be a claim. Since high crimes and misdemeanors could include misdemeanors as small as littering to a first-degree misdemeanor charge, many scholars debate that this statement is too vague and could mean that littering could qualify as an impeachable offense.

As an example, scholars use the impeachment trial of Bill Clinton in 1998 when Bill Clinton was being tried under the statement of “high crimes and misdemeanors” after lying under oath about an affair. The question arose of whether or not certain crimes could be an impeachable offense, especially since the misdemeanor occurred under unofficial matters and was heavily based on how protected his private life by lying. This example shows how the statement “misdemeanors” could be confusing and not allow for a filter of what is considered impeachable or not. 

Based on both the common and divergent interpretation, I understand how the language used in the 4th section can come off as confusing and is too vague to be able to cause the impeachment of an office official. An adaptation that I believe would be beneficial would be to add the word first degree misdemeanors instead of just the word misdemeanors. This allows for confusion around the term misdemeanors to be eliminated and stops the idea that the section’s vagueness makes impeachment hard to apply. As well, this adaptation could be very helpful for possible upcoming impeachment trials and save the debate of whether the offense is considered impeachable. 

Sorochi Constitution Project – 8th Amendment

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Sorochi Sunday Ms. Lafuse World History I 2 June 2023 By granting powers not included in the Articles of Confederation, the Constitution strengthened the federal government. Federal crimes were established in the Constitution, and Congress had full power to define them and determine the appropriate punishments.

Congress’ authority over federal crimes worried some American leaders. At the time, no part of the Constitution regulated the punishments for federal crimes, leaving the possibility of Congress abusing their power. In response to fears of the federal government issuing oppressive punishments, the 8th Amendment was added to the Constitution. Part of the 8th Amendment prohibits “cruel and unusual punishments,” meaning criminals should not receive inhumane penalties for their crime. 

Debates have risen concerning how the words “cruel” and “unusual” should be interpreted. After defining these terms, the following question is: which standard, 1971, when the Bill of Rights was created, or modern day, should punishments be held to. Supreme Court Justices Clarence Thomas and Antonin Scalia believe that any punishment that was permissible in 1791 cannot be considered cruel or unusual. With their interpretation, capital punishment, while now controversial, would be considered Constitutional, since it was used in America during 1791.

Additionally, they believe that a punishment being disproportionate to crime committed does not necessarily mean the punishment is cruel. Conversely, Chief Justice Earl Warren believes interpretation of the clause should evolve over time to fit the changing standards of decency. He argues that a change in interpretation marks progress in society. Legal scholar John F. Stinneford disagrees with both Justices Thomas and Scalia, and Chief Justice Warren. He believes the meaning of cruel and unusual should fit the original public meaning.

According to him, the standard of cruelty the general public held in 1791 should be the standard judges use as they interpret the Constitution. In an attempt to preserve the original meaning, he also argues “unusual” should be interpreted as new or unprecedented, rather than rare. He claims that his interpretation is founded off of research into the original meaning of the 8th Amendment.  I find Chief Justice Warren’s interpretation most persuasive.

The other two interpretations discussed require one to understand the minds of people living the era of the Constitution, whether that be the framers or everyday people. However, both tasks seem very difficult to achieve in reality. Even with detailed research, discovering the exact thought process of the framers as they wrote the 8th amendment, let alone the average American in 1791, is improbable. Further, while historians have a better chance, with the brief and vague language of the 8th amendment, the average expertise of a judge may not be enough to reach a well-founded conclusion of any true original meaning. 

If I could amend this section, I would specify what is meant by “cruel”. To do this, I would list out some of the ways a punishment could be cruel, like so: a punishment that includes intentional torture or elongated killing, or is disproportionate in severity to the seriousness of the crime. I feel the word “cruel” is more important to the clause than “unusual”, as a punishment can be grossly inhumane, but also common.   

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.