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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.

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. 

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.

The Free Exercise Clause and Arguments for and against Religious Exemptions

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The Free Exercise clause is a clause in the First Amendment to the United States Constitution. This amendment was ratified alongside nine others. These first ten amendments are collectively known as the Bill of Rights. By providing the people with guaranteed natural rights in these amendments, the government hoped to appease opposition to the Constitution on the grounds that it would give the federal government far too much power. The Free Exercise clause is a section of the First Amendment that protects freedom of religion. Many early Americans viewed religious freedom as one of the most important and fundamental natural rights because several American colonies had been created by religious groups fleeing from persecution in Europe.

By using the specific phrasing of “free exercise of religion,” Congress, which wrote the Bill of Rights, made it clear that it was protecting not just religious convictions but also practices. Using this clause as their argument, many religious groups have sought to receive exemptions from laws on the grounds that they interfere with their religious convictions or practices. In different time periods, the Free Exercise clause has been interpreted differently in order to either permit or disallow religious exemptions. In 1972, the Supreme Court decided in the case Wisconsin v. Yoder that governments could not apply laws that go against religious beliefs to the holders of said beliefs unless they had a “compelling interest” to do so. This ruling allowed for religious exemptions to occur for many laws. However, in 1990, the Supreme Court ruled in Employment Division v. Smith that religious groups could not be exempted from religiously neutral laws that disallow religious practices or enforce doctrine contrary to religious classes.

One large reason for this ruling was the fear that by being exempt from laws just because of religious beliefs, people would be above the law. The argument of whether or not to grant religious exemptions is one of the greatest areas of dispute about the Free Exercise clause. To argue in favor of religious exemptions, it could be said that in most cases, awarding these exemptions results in practically no detriment to anyone and therefore it would only be a benefit to religious individuals who want to comply with their beliefs. On the other hand, James Madison, one of the most influential writers of the Bill of Rights and Constitution, wrote that while people should not be mistreated on account of their religion, no special privileges should be given for religious beliefs. Based on this information, an argument can be made that the intended meaning of the Free Exercise clause was not to permit religious exemptions, and therefore none should be given.

While it may be true that the Framers may not have intended for the Free Exercise clause to be interpreted in a way that allows for religious exemptions, the manner in which they wrote it seems to evoke the idea. Additionally, when a religious exemption does not cause any harm to other people, there is no reason not to support it. It is simply ridiculous to say that no one should get religious exemptions even when they cause no harm to anyone else. James Madison may have thought otherwise, but it is perfectly fair to give religious exemptions in cases where there are no adverse effects.

Aniya S. – The Tenth Amendment

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Common Interpretation:

The Tenth Amendment of the United States Constitution states that powers not given to the national government are granted to the states and general public. It highlights the limited and enumerated powers of the national government, while reminding of the essential role that the states and people play in the constitutional republic. The Tenth Amendment illustrates the relationship between the federal and state governments by demarcating their respective authorities. The main purpose of incorporating the Tenth Amendment into the Bill of Rights was to warn the national government about inferring or assuming powers that are not explicitly stated in the Constitution. 

Historical Context:

The Tenth Amendment was also made due to the lack of restrictions on national government exercising unauthorized powers over the citizens and states in the original Constitution. The Framers of the Constitution found it pointless to include a Bill of Rights for an already limited government, and even found the inclusion of a Bill of Rights to be potentially dangerous. They believed a Bill of Rights would be useless and that its vagueness would leave room for misinterpretations of certain rights. Despite the concerns, the inclusion of the Tenth Amendment showed that it did not change the nature of national government. Legal scholars believe that the Tenth Amendment was included in the Bill of Rights to clarify the limits of national government to the American citizens (at the time of the adoption of the Constitution). 

Matters of Debate:

One interpretation of the Tenth Amendment is that it adds nothing substantial to the Constitution, as it simply defines the concept of “federalism”. The Tenth Amendment is simply a truism. Similarly, one matter of debate is whether the Tenth Amendment should serve as an independent source of constitutional principles of federalism. Another interpretation holds that the Tenth Amendment restores a degree of balancing the powers of federal and state governments, as the enumerated powers of national government are often misunderstood. In this way, the Tenth Amendment acts as a backdrop to the governing structures outlined in the Constitution, giving some legal scholars reason to say it has “constitutional value”. The Supreme Court case, Bond v. The United States illustrates the latter interpretation, as the Court unanimously agreed that Bond should not be charged under a federal statute that violates the powers reserved to the states (Pennsylvania). It was agreed that the federal statute was beyond the enumerated powers of the national government, and therefore a constitutionally invalid law. Bond had every right to challenge the constitutionality of the federal statute. 

Significance:

The Tenth Amendment bears some similarities to the themes of Rousseau’s Social Contract, which asserts a relationship between individual liberty and the liberty of the government. In the “social contract”, the government maintains political authority, but must respect the people. Similarly, the Tenth Amendment holds that the national government has its designated powers, but so do the states and people. That said, I find the second interpretation of the Tenth Amendment to be most persuasive because the Amendment defines the balance of powers between the national government and states. I believe the Tenth Amendment has no reason to be further amended when it fulfills its purpose of outlining federalism in the constitutional republic. In other words, it serves its purpose well

Amalia – The Establishment Clause of the First Amendment

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The Establishment Clause of the Bill of Rights was an agreement of the populous that there should be no federally established church. This decision was reached because before the revolution the Church of England was federally mandated in the southern colonies, while the northern colonies had their Puritan establishments. These different establishments bred dissenters, who were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. The topic of religion caused conflict in the years before the revolution, dividing the people of this new country instead of bringing them together under one previously imagined, now real, community and shared identity.

The Establishment Clause of the Bill of Rights is commonly understood to have prohibited the government from establishing a state-mandated or federal religion for the nation, effectively separating church and state in the United States. 

This clause has been publicly understood to have separated the church and state in the United States, however many people have had interpretations of this clause as it regards government funding and government-sponsored prayer. Many of the matters of debate that spawn from this clause connect to religion and how it should interact with public education, all according to how the courts interpret the constitution. In relation to government funding, some argue the government must remain neutral between religious and non-religious institutions that provide education or other social services. Others argue that taxpayer funds shouldn’t be given to religious institutions if they might be used to further religious ideas because it violates the separation between church and state that the clause set in place. Through Everson v. Board of Education (1947) and Board of Education v. Allen (1968) all students of religious schools gained access to transportation and textbook funds. As well, Rosenberger v. University of Virginia (1995) deemed it unconstitutional under free speech and free exercise principles to exclude otherwise eligible recipients from government assistance because their activity is religious in nature. On the topic of government-sanctioned prayer the courts determined it unconstitutional for public schools to lead students in religious activities, even voluntary in Engel v. Vitale (1962) and Abington School District v. Schempp (1963). These decisions, though controversial to much of the public, were not to the Justices: it would have been seen as government sponsored religion which goes against the Establishment Clause’s separation between church and state.

The Establishment Clause protects citizens rights to practicing their religion freely, without persecution, also ensuring that the government of the United States isn’t biased towards certain religions. This clause ensures that the obligatory religion that the colonists experienced under the monarchy could not happen in their new nation. The Establishment Clause also protects those facing religious persecution. With religious tolerance being written as an amendment to the Constitution, America became a place of refuge for those experiencing religious oppression; many Jewish people in the early 20th century who fled pogroms (planned massacres of Jewish people in eastern Europe) were able to make a safe life for themselves and their families in the United States. The religious tolerance that the Establishment Clause implemented has had a long lasting impact on the peoples and cultures that make up America to this day as well as how cases pertaining to religion are handled in federal Courts.

Amendment V – The Due Process Clause

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The right to due process clause of the Fifth amendment in the Constitution guarantees that no person can be deprived of life, liberty, or property without undergoing due process of law. This clause originated in a desire to protect individuals from excessive governmental power and secure fundamental rights. American colonists were subjected to arbitrary arrests, unfair trials, and property seizures without a fair trial under British rule. Evidence of their discontent under British rule is evident in situations such as the Shaysite Grievances. The clause was a response to the oppressive practices of British rule and a reflection of the belief that no one should be forced to incriminate themselves or suffer without proper legal procedures.

 

The clause states that individuals have the right to a fair trial in a court of law, a defense attorney, and freedom from self-incrimination. This is known as procedural due process. The concept of “life, liberty, and property” in the clause connects to our discussions of ideas that originated from the Enlightenment. It had many thinkers who argued that people have unalienable rights, including John Locke, responsible for “The Second Treatise of Government”, where the quote “life, liberty, and possession” can be seen. He argued that these were basic human rights, and his words heavily influenced colonists to rebel against British rule. They were thus integrated into the documents that were made when the nation was founded, such as the Constitution.

 

However, there has been controversy to what extent the justice department can exercise the overturning of laws. This is where a term called “substantive due process” arises. It is a legal argument that attempts to interpret how much the due process clause of the Constitution protects certain fundamental rights that are not explicitly listed in the text. The clause implies that the government cannot infringe on the rights of life, liberty, or property, even if no specific provision explicitly defines those terms. They recognize that individuals possess inherent rights that are fundamental to their liberty, such as the right to privacy, bodily autonomy, and freedom of expression. However, it has been a subject of controversy, since some argue that it grants too little power to the judiciary branch. Others argue that substantive due process is essential in ensuring that the government does not restrict fundamental rights. The divergent interpretations revolve around the extent of due process protections, particularly concerning balance between individual rights and societal interests. 

 

A case that is illustrative of the tensions around substantive due process is Roe V Wade. Recently, the case has been a controversial discussion regarding the right to abortion. This is where substantive due process becomes a significant basis for the argument that there is a fundamental right to privacy that the government should not have the authority to restrict.  In 1973, it was decided that privacy encompasses a woman’s right to have an abortion based on these principles. The case has arisen again after the ruling was overturned, but this clause is still a justification that women have a right to bodily autonomy. 

 

At present, this clause does not require amending, because it ensures that everyone is granted a fair trial with an impartial jury and a defense attorney. Altering a clause that has historically protected so many from having their rights limited by excessive governmental control could be detrimental to the concept of the Fifth amendment itself. 

Alex – The Eighth Amendment

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Context

Ratified on December 15, 1791, the Eighth Amendment states that, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The history of the ideas in this clause can be traced back to even before the Articles of Confederation were written; in 1689, the British government adopted a bill of rights that included protection against cruel and unusual punishment. The original United States Constitution did not offer the same protection, instead giving the federal government the power to create federal crimes and punish perpetrators. However, many opponents of the Constitution expressed the fear that giving Congress this power would eventually lead to corruption and the use of punishment as a method of oppression. As such, the Constitution was amended to include protection against cruel and unusual punishment. 

 

Common Interpretation

As suggested by its title, the Eighth Amendment forbids Congress from imposing unjustifiably harsh punishments on criminal defendants. This protection can be divided into two categories: cruel and unusual punishment, which refers to penalties that involve unnecessary infliction of pain or suffering, and disproportionate punishment, which refers to penalties that are disproportionate to the severity of the offense committed. “Cruel and unusual punishments” are commonly interpreted as punishments that are fundamentally barbaric or lack a legitimate penological purpose; these are the types of punishments that would violate the Eighth Amendment. However, the courts’ definition of what constitutes excessive barbarism has shifted throughout the time since the Eighth Amendment was ratified.

 

Matters for Debate

The vague language of the Eighth Amendment has allowed for certain debates to consistently surface in contemporary discussions regarding cruel and unusual punishment. One of these debates questions what the current standard is for determining if a punishment is barbaric enough to violate the Eighth Amendment—whether the most important consideration is what was accepted when the Amendment was ratified in 1791, current public opinion, or the subjective morality of the courts. One progressive argument relies on the concept of “evolving standards of decency,” which asserts that the Court should consider contemporary shifts in societal attitudes and public opinion, rather than the originally intended meanings of America’s Founding Fathers. However, another prominent argument is that a punishment can be judged by its length of practice; essentially, a punishment deemed acceptable by multiple generations of Americans is still Constitutional until it falls out of practice for multiple generations, at which point it can be labeled cruel and unusual.  

 

Significance

Some of the ideas in the Constitution, but particularly in the Eighth Amendment, reflect ideas expressed by John Locke in his writing. Locke asserted that individuals possess certain inalienable rights, and that the primary purpose of the government is to protect these rights. As such, he proposed a separation of powers in order to ensure no one branch of government becomes too powerful and threatens individual liberty. This is, in essence, the goal of the Eighth Amendment: to ensure the federal government does not have enough power to oppress individuals through cruel and unusual punishment.

The 9th Amendment

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The context that gives rise to the 9th amendment is the inclusion of the bill of rights in the constitution. The anti-federalists were adamant that the bill of rights be included in the constitution because if it wasn’t, the central government would have too much power. The Federalists did not want a bill of rights because they felt that every liberty could not be written and it was best to trust the government to protect the people’s liberties. The bill of rights was a list of rights that James Madison created in 1791, that lists freedoms like the first amendment. The founding father took the federalists and anti-federalists views into account when creating the 9th amendment as it was a compromise. The bill of rights was included in the constitution but the 9th amendment was created which made both parties content as the anti-federalists got a list of specific rights the federal government can’t deny them while the federalists got reassurance that natural rights would be protected. This leads to the common interpretation of the law, which is that the fundamental rights that are not enumerated in the constitution are protected under this law. The 9th amendment safeguards against the narrowing of rights by the government by ensuring that the individual liberties that are fundamental to society are protected.

The 9th amendment is very clear and nobody argues about the fact that laws that are fundamental that are not enumerated are protected. Recent discussion has arisen because of the question, “Which rights are fundamental?” There are a couple of different views on what the 9th amendment is supposed to protect. In the literalist interpretation of justice, Samuel Alito, only the rights “deeply rooted in the Nation’s history and tradition.” Abortion, along with several other important liberties, does not fall under the 9th’s protection with this interpretation. The progressive view of the 9th amendment is that it includes “individual privacy and personal autonomy.” These differences in interpreting what law is fundamental has led to some of the most famous court cases as in Roe vs Wade, three justices said that the 9th amendment justified their decision to side with Roe as they interpreted the right to an abortion was protected by the 9th amendment? This wasn’t the first the 9th amendment had been utilized in the court of law as in Griswold vs Connecticut. The right to buy contraceptives while married was deemed as protected by the 9th amendment.

The 9th amendment correlates directly to the debate we had in class about whether to include the bill of rights in the constitution or leave it out. The inclusion of the bill of rights in the constitution was one of the main reasons the federalists and anti-federalist could not ratify the constitution. The 9th amendment solved that problem. The 9th amendment connects to the broader theme of the struggle between the power of the nation government and the people. The power struggle takes place throughout most all the constitution as the two main parties, the federalists and anti-federalists, compromised in the constitution’s drafting. Recently, I have leaned towards the progressive view of the 9th amendment as I view it as fundamental that laws that are necessary to society are protected. One change I would include in this amendment is the addition of laws that are deemed fundamental because it gives a starting point for future court cases that interpret if laws are fundamental and protected by the 9th amendment, or if they are not.

Roe V. Wade and Supreme Court Abortion Cases. Last modified September 28, 2022.

     Accessed May 30, 2023. https://www.brennancenter.org/our-work/

     research-reports/roe-v-wade-and-supreme-court-abortion-cases.

 

 

 

 

 

 

   

 

Aaron – The Tenth Amendment

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The Tenth Amendment establishes the boundaries for the power relationship between the states and the federal government. It was added to the Constitution as a mechanism for keeping the federal government in check by allotting most of the power to enact laws in the hands of each state, a system known as federalism. Today, federalism allows diverse political, cultural, and ideological views to be expressed differently based on the preference of the voters in each state. This system also has its downsides, even when most Americans agree on certain issues, the federal government has no way of enforcing these ideas onto states with opposing views.

Due to the tensions between the state and the federal government, this amendment has been the focus of numerous court cases that have more clearly defined the relationship between the state and federal government. For instance, Wickard v. Filburn (1942) was a precedent that showed that the federal government has more power than once thought inside states. The case concerned a Kansas farmer who had produced a surplus of wheat. His wheat was ruled to be a subject of the commerce clause. The court’s decision for this was based on the fact that his surplus was able to influence the price of wheat elsewhere and therefore needed to be regulated under the clause. This clause was originally meant for the federal government to be a mediator in inter-state commerce but resulted in the federal government claiming that every transaction of commerce-related issues could be regulated by them. This interpretation of the Tenth Amendment vastly expanded the boundaries in which the federal government had power as they now were able to regulate almost all commerce.

Recently, judges have started to revert to a more limited central government. The overturning of Roe v. Wade (2022) set a precedent that state and local governments decide all public health issues. Additionally, another very important case with modern applications is Printz v. United States (1997). In this case, the supreme court used the Constitution’s “anti-commandeering” clauses to rule in favor of states’ rights to not enforce federal laws. 

The majority of the time the Tenth Amendment protects people from a super-powerful central government. On the flip side, however, it has also allowed many states to continue to promote things such as racial inequality. During this time the federal government sometimes couldn’t implement laws promoting racial equality in states even when the majority of Americans were in favor of racial equality. This is because the power to regulate these types of laws was given to the state by the Tenth Amendment.

To summarize, the interpretation of the Tenth Amendment has varied dramatically, but it has always set the boundaries between the state and federal governments. Although the Tenth Amendment has not always been used to do good things, it continues to protect people from an all-powerful government and it allows for the diverse views of the people in different states to be expressed.