Tuesday, November 18, 2014

An Entertaining Diversion

Discussing the Constitution can be serious business, but once in a while, I run across something that just tickles me.  The Onion has some of the best comedy writers in the business, and I love their material.  As you all know, I'm a passionate defender of the Constitution.  Hopefully, a better one than this guy:


I hope you all had fun pointing out all the (hilarious) errors in this satire piece.  Next time, we'll be back to business.

By the way, I took yet another pilgrimage to the National Constitution Center today.  I encourage all of you to put it on your must-see list if you ever get to Philadelphia.  It's like taking a shower for me - feels like I've been cleansed of my sometimes-too-well-exercised political cynicism (which I try not to let out in this blog).  But really, check it out, or at least their web site:


Wednesday, November 12, 2014

Wrapping Up The Bill Of Rights - Amendments 9 and 10

The last two amendments in the Bill of Rights are short, deceptively simple, and of course, controversial.  What else is new, right?

Amendment Nine:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.

So, what does this actually mean?  It addresses a concern that many people, including our Mr. Madison, had.  The concern was that by enumerating or identifying certain rights in the Bill of Rights as being specifically protected from interference by the state, anything left unmentioned would be assumed to be fair game for an ambitious government.

We must remember that the Bill of Rights - and the Constitution in general - does not grant anyone any rights.  It protects rights already assumed to exist against infringement upon them by the government ("Congress shall make no law..."  "...shall not be infringed."  "No State
shall make or enforce any law which shall abridge..."  "...shall not be denied or abridged..." (that last phrase appears no less than four times in various amendments)).

In short, just because a natural right is not mentioned in the Bill of Rights, it is by no means assumed that the state has the power to abridge that right.

Amendment Ten:

The powers not delegated to the United States by the Constitution, nor prohibited by it to
the States, are reserved to the States respectively, or to the people.

This one gets tricky and is consistently one of the most controversial of all the amendments.  We often hear about "states' rights" when the federal government appears to be especially overbearing and interferes with the internal workings of a state.  A strict and literal reading of the amendment would seem to support the claim by the states that the feds are getting too involved in state matters.  The idea here is that the federal government is delegated a certain amount of power, and certain areas in which it may exercise that power.  We call that "enumerated powers".  The assumption is that any power not specifically named by the Constitution as a federal power is therefore not authorized for the federal government to exercise.

People will make the case that many, many federal departments and agencies are, under a literal understanding of the Tenth Amendment, unconstitutional.  These may include the Departments of Education, or Housing and Urban Development, or a host of others whose purposes are never mentioned in the Constitution.  It may also be fair to criticize the federal government for trying to overrule state laws on marriage, drugs, alcohol, speed limits, and a thousand other things, again, based on the Tenth Amendment.

The view of the individual states as "laboratories of democracy" - a term coined by Supreme Court Justice Louis Brandeis - was intended to allow the states to experiment without overbearing federal interference.  This, presumably, would lead to the best and most efficient systems of doing things being adopted voluntarily by states after seeing what works and what doesn't in other states, as opposed to a one-size-fits-all federal mandate.

If there is any amendment that will likely be the one to cause controversy for as long as our Constitution stands, I nominate the Tenth.  The continuous tension between the state governments and the federal is one that, I think, absolutely must continue, or else we are no longer the United States of America, just the country of America.

Thursday, September 11, 2014

Horton, Hillary, Hobby, Hamburgers and Humanity

"A person's a person, no matter how small," wrote Dr. Seuss in "Horton Hears a Who!"  We all remember the story of the kindly elephant who protects the microscopic community Whoville from harm.  We see that indeed, a person, no matter the size, still has value and relevance.  This, and recent judicial, economic and political goings-on got me wondering about the very nature of personhood.  What, exactly, constitutes a "person"?  Is a person a person no matter how big?  Can something artificially constructed become a "person" or at least be considered to have the basic characteristics - and attendant rights and protections - of a person?

Don't worry - we aren't going to get into a discussion of abortion today.  Nor are we going to ponder the nature of personhood through some excellent science fiction movies, like "Blade Runner" or "Her" (both of which I highly recommend - but only for mature audiences).  No, today's topic is "corporate personhood".  Can a corporation be considered, at least in some ways, a person?  The recent Supreme Court decisions on Citizens United and Hobby Lobby, combined with the latest business news concerning Burger King all lead us to ponder this question.

A brief review to set the stage:  In 2009, the Supreme Court decided in Citizens United that a part of the 2002 Bipartisan Campaign Reform Act (known most often as "McCain-Feingold") was unconstitutional.  There was a group called Citizens United that sought to screen a movie that was critical of Hillary Clinton during the 2008 Democratic primaries.  The BCRA forbade "electioneering communication" within 30 days of a primary and 60 days of a general election, and specifically forbade them being paid for by corporations or unions.  In short, this restriction was found to be unconstitutional, though it left intact the vast majority of the BCRA.  For more details, see here

Critics of the decision said that this conferred "personhood" on corporations, in terms of exercising First Amendment protections.  They maintained that corporations are not people and should therefore not be afforded the constitutional rights and protections of a person.  This theme was continued in the Hobby Lobby decision that we discussed here in a previous post.  Again, the argument was that businesses are not people, and should not be treated as such, no matter the size of the company or how "closely held" (to use the Supreme Court's terms).  Corporations are not people, went the argument once again.

Which leads us to today.  In business news, Burger King is the latest corporation to announce a plan for an "inversion" merger, in which a company from the United States purchases or merges with a company from outside the U.S., then moves its corporate headquarters to that foreign country, presumably to take advantage of that country's more favorable tax climate.  Critics of this maneuver accuse Burger King and others of lacking "economic patriotism" for trying to lower their tax liabilities by performing this type of merger.

Here's where the discussion gets interesting.  Patriotism is an individual virtue, practiced by those who profess loyalty or fealty to their native land.  Someone exercising patriotism may serve in the military, run for public office, perform service to his or her country in myriad ways.  But it remains an individual behavior.  Yet, the critics of Burger King (and others) maintain that the company exercise the individual virtue of patriotism, while in fact they are acting like a business - trying to improve their bottom line and shareholder value.  (As an aside - Burger King strongly maintains that tax reasons are not the motivation for the nature of their merger with the Canadian company Tom Hortons, but it is certainly reasonable to think that taxes are at the very least a big side benefit to the merger.) So, here's the problem:

If companies are simply companies and cannot be assigned any attributes of individuals, then the critics of Burger King have no basis for their characterization of the company as somehow unpatriotic.  And in that case, they critics of Citizens United and Hobby Lobby may have a good case for saying corporations are not people.

On the other hand, if the critics of Burger King are right and companies can - or even should - exercise individual virtues, then they can be considered, at least under certain conditions, people, and therefore have some measure of protections of an individual under the Constitution.  In that case, Hobby Lobby and Citizens United were decided correctly.

So, are corporations simply businesses, or are they people acting corporately?  Both?  Neither?  I'd love to hear your thoughts, my friends.

The famous ad line from Burger King comes to mind now - "Have It Your Way!"  The question is: can you have it both ways?

Sunday, August 24, 2014

The Fourth through Eighth Amendments - Your Day in Court

Due to the unforgivably glacial pace at which I’ve been updating this blog, I’ve decided to speed up the process by combining multiple amendments that have similar characteristics into single entries.  Otherwise, I’d get through all the amendments by, oh, the country’s Tricentenial or so…

Today, we’ll look at the Fourth through Eighth Amendments, or as I would call them, the “Your Day in Court” amendments.  They all have to do with crime and punishment and due process and justice, so here we go:

The Fourth Amendment

“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”

In a nutshell, the government must have reasonable suspicion that you’ve been part of a criminal activity and must offer evidence of such suspicion to a judge in order to obtain a warrant to search you or your property.  This was a reaction to the British practice during Colonial times of issuing “writs of assistance” or general warrants that did not expire, permitting law enforcement officials to search pretty much whatever they wanted whenever they wanted under authority of the crown.

In a very recent Supreme Court case, Riley v California, the court brought the amendment’s provisions into the digital age by holding in a strong 9-0 decision that police may not search a suspect’s cell phone during an arrest without a warrant.

Of course, as we’ve discussed before, there is no absolute right here.  In other words, not every search requires a warrant.  A police officer who pulls you over for speeding and sees a bag of white powder in plain view on the passenger seat may reasonably suspect that you are a drug dealer/trafficker and conduct further searches.  Likewise, if illegal weapons are in view, a search is not only permitted but quite reasonable.
But in the vast majority of cases, if the police of other governmental authority wants to search you , your house, your office, your documents or any other personal property, they must have a warrant, and you are well within your rights to demand they produce one.  There is nothing “uncooperative” about requiring to see a warrant before admitting any government official into your home or place of business if they indicate they want to search it.  That’s the law, and we all benefit when we all understand it and follow it.

The Fifth Amendment

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Anyone who has ever watched a cop show on TV is familiar with the litany, “You have the right to remain silent…”  The Fifth Amendment’s provisions against self-incrimination were made famous by the landmark Miranda v Arizona case, which compelled police to ensure that suspects placed under arrest were properly informed of their right to not testify against themselves and to have an attorney work on their behalf.
A more recent case, Kelo v New London, infamously tested the “takings” clause when a Connecticut woman’s house was condemned and transferred to use by a development company.  She sued on the basis that private economic development was not “for public use”, according to the Fifth Amendment.  The Supreme Court decided in New London’s favor in a 5-4 decision, which sparked outrage nationwide.  Forty-four states modified their “eminent domain” laws in response to Kelo.  In New London, the developer abandoned the project for lack of financing, Ms. Kelo’s former lot is still vacant and  the city of New London eventually issued an apology to her, though she had moved away from New London in the aftermath and has not returned.

And finally, despite what you’ve seen on TV with Alex Trebek, “double jeopardy” is prohibited by the Fifth Amendment.  Not, not the big-money part of the game show, but the provision that one cannot be tried again for a crime of which he or she had been previously acquitted.  As an example, even if solid evidence were to appear that O.J. Simpson was without a doubt the murderer, he could not be tried again in criminal court on those charges, as he has already been acquitted.  On the other hand, a convicted criminal may certainly be granted a new trial if evidence of his innocence comes to light.  In short – if you’re found guilty, you can be tried again and found not guilty, but if you’re found not guilty at first, you can’t be tried again to be found guilty.

The Sixth Amendment

"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, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Simply put, this amendment guarantees that an accused will simply not “rot in jail” while waiting for a trial that may or may not happen.  Also, the accused must know the precise nature of the accusation and to face the witnesses against him in a public court.  No secret trials, no anonymous witnesses – everything out in the light of day.  And as we discussed in the Miranda case above, the accused must have legal counsel available to help in his defense and the opportunity to present defense witnesses.  No one is compelled to face a criminal trial without a lawyer in his corner (civil trials are a different story).  While this amendment is extraordinarily important to our justice system, it is also, thankfully, one of the easiest to understand.

The Seventh Amendment

"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."

The Seventh Amendment makes for a good bar bet or dinner party trivia quiz: what is the minimum amount of money at stake that guarantees the plaintiff the right to a jury trial in federal civil cases?  Yup – you read it right – twenty bucks.  One little Andy Jackson or a pair of Alexander Hamiltons gets you the chance to plead your federal civil case in front of a jury.  How about that?!  In practice, of course, no one goes to a jury trial over twenty dollars, but isn’t it cool that you could?

But perhaps the more important provision of the Seventh is that no federal judge can overrule findings of facts by juries in federal civil cases.  The jury (a minimum of six people, as required by the Colgrove v. Battin case, 1973) is the final authority in civil cases.

Interestingly, the Seventh Amendment is one of the few amendments not “incorporated” against the states.  In other words, most of the amendments have been found by the Supreme Court to bind the states as well as the federal government, but this one stands out as not being one of them.  The states can determine their own criteria for state civil cases regarding minimum amounts of money at stake and jury trials.

The Eight Amendment

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

This shortest of the amendments we are discussing today is also one of the most open to interpretation.  What, exactly, is “excessive” bail?  Does it depend on the nature of the crime, or the ability of the accused to pay?  Can two people accused of the same crime be required to post different amounts of bail?  The answers to those questions have not been defined by either the Congress or the Supreme Court, and remains a very subjective judgment on a case-by-case basis.

So, what is “cruel and unusual” punishment?  Again, very subjective, but at least there are a few cases to look at, though clearly the Supreme Court’s idea of “cruel and unusual” can change, and often quickly.  The Furman v Georgia case of 1972, while not explicitly outlawing capital punishment, effectively ended it, but just four years later, Gregg v Georgia led to the re-introduction of the death penalty, famously in the case of Gary Gilmore, as depicted in Norman Mailer’s Pulitzer Prize-winning book, "The Executioner’s Song".
The question of what precisely constitutes “cruel and unusual” continues to be hotly debates, especially as regards the death penalty.  Recent cases of executions by lethal injection that took what seemed to be excessive amounts of time for the condemned to die have re-ignited the debate on the morality and methods of capital punishment.

In less-than-lethal cases, the argument can be – and has been – made that poor prison conditions may constitute cruel and unusual punishments, along with certain types of forced labor by prisoners. 
Again, the shortest, but perhaps least clear of all the “Your Day in Court” amendments.

Thanks for reading.  Discuss.

Next up – the Ninth and Tenth Amendments

Wednesday, July 2, 2014

Hobby Lobby, The Supreme Court and Strict Scrutiny

It's been said that in polite society, one does not discuss religion or politics.  Over the last couple of days, however, every media outlet in our society seems to have been quite impolite in discussing religion and politics, specifically regarding the Supreme Court decision involving retail chain Hobby Lobby and the Department of Health and Human Services mandate for contraception coverage under the Affordable Care Act ("Obamacare").  So, in the spirit of polite society, let us take the religion and politics out of the discussion for a while and focus on the process by which the Supreme Court judges cases like this and the tests they apply in order to come to their decisions.

In a case like this, where there is a fundamental Constitutional protection at stake, the justices will generally apply a set of tests known as "strict scrutiny".  This method of analysis requires the defendant (almost always a governmental entity) to prove three things:  One - is there a compelling governmental interest at stake?; Two - is the law narrowly tailored to advance that interest?; and Three - is this the least restrictive means of executing that interest?   Let's look at each element and see what they mean.

Is there a compelling governmental interest at stake?  In other words, is there something the government wants to do that is considered critically important to the country as a whole?  Is it more than simply a preferred course of action or something "nice to do"?  The government lawyers must convince the court that there is a national need so important that it may require the curtailment of some individual liberties.  That, of course, is a tough case to prove, but rightly so - none of us wants the government restricting our Constitutional protections for just any reason.  It must be a "compelling" reason (though, to be clear on it, the court has never "brightly defined", to use a legal term, what exactly constitutes a "compelling" interest, leaving it up to a case-by-case basis).

Next, the government must also prove that the law is narrowly tailored.  It cannot be an over-broad or blanket rule.  The focus of the government action must be specific to the compelling government interest at stake and can't encompass a wide range of actions.

Finally, if the government proves the first two cases, it must also prove that the law under review is the least intrusive means of employing it.  If there are other means of accomplishing the government's goal that do not interfere with Constitutional protections, or at least interfere minimally, then the court will likely direct that those methods be employed, rather than the one under protest.

Now, as an exercise, put yourself in the place of the government lawyer arguing before the Supreme Court (remember, the burden of proof in these cases is on the government, not on the plaintiff).  How would you argue that the mandate under question is a compelling interest of the government?  Could you make the case that birth control leads to fewer unwanted pregnancies, and therefore likely lower welfare payments for the government?  Sure - sounds like a reasonable argument.  But can you make the case that is a compelling national interest - one so important that it can potentially supersede someone's freedom of religion?  That's a tougher case to make.  But let's say you're super-lawyer and you make the case.  The justices agree that the reasons above and others you put forward are justification enough to show a compelling governmental interest.

Next, you need to prove that the law is narrowly tailored.  Is it specific enough that it can't be reasonably interpreted to cover other areas?  If the law is written clearly, this is likely the least problematic of the three questions to answer.  Let's say you prove this case, as well.

Now, the grand finale - is this the least intrusive way of accomplishing the government's interest?  Is there no other way than this to do what the government says must be done?  This is where, I think, many of the cases fall apart.  With apologies to our feline friends, there's more than one way to skin a cat, and it's a tough sell to say, "Your Honors, there is no other possible way to do this."  Again, this is a very high bar to set, but thankfully so.  It's a great throttle on government power, and this is the kind of thing the Supreme Court was really set up to do (or if not specifically set up to do, it assumed that power in the landmark Marbury v. Madison case).  It's no wonder the government bats well south of .500 in strict scrutiny cases - they are very tough to prove (though, interestingly, given the current case, the government has historically done better than average in religious freedom cases).

But even if the court applies strict scrutiny and rules in favor of the government, they can still make bad decisions, such as in the infamous Korematsu (Japanese-American internment) case during World War II.  The court members, after all, are human, and therefore prone to error, just like the Legislature and the Executive.  After all, that's why we have three co-equal branches of government.

I hope this (very brief) explanation has provided some clarity about the judicial process, and that no matter which side you've taken in the Hobby Lobby case, you can at least appreciate the procedure and the tests that the court applies in matters of fundamental Constitutional liberties.


Sunday, June 22, 2014

The Third Amendment

For those of you old enough to get the reference, the Third Amendment is kind of the Rodney Dangerfield of the Bill of Rights - it gets no respect, no respect at all...  This is probably the least-well-known (which is bad) and least-litigated (which is good) of all the amendments.  A quick reading will probably tell you why:

No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, nor in time of war, but in a manner to be prescribed by law.

Pretty simple, isn't it?  The government can't use your house to quarter troops.  They need to find their own shelter.  Seems rather silly, doesn't it?  I mean, has this ever happened to you or to anyone you know?  No, it has not.  This amendment has never been tested or ruled on by the Supreme Court, though it has been referenced from time to time as supporting evidence for a more general "right to privacy", but that seems a bit of a stretch, if you ask me.  Lawsuits have been filed that have alleged Third Amendment violations, but none have been found to have enough merit to actually make it to the Supreme Court.

So, why is this even in the Bill of Rights?  Remember, during colonial times, the British would essentially commandeer people's houses for their troops.  After all, why go to the effort and expense of building barracks when yo can just "appropriate" already-built houses and demand food and shelter, in the name of the King?  Thomas Jefferson addressed this problem in the Declaration of Independence:

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
For Quartering large bodies of armed troops among us.

The Bill of Rights was in some cases as much a  reaction to the previous actions of the British as it was to the worries about the new American government, and this seems to be one case.  Could this amendment ever come into play in the modern U.S?  Theoretically, of course, but Congress would have to pass a law authorizing it (which would be a tough sell).  Also, the modern U.S. military is so mobile and has such great capabilities of its own for feeding and sheltering itself, it makes the idea of using civilian housing this way rather a moot point.  Perhaps in the case of an enormous disaster, it could happen, but then again, look at the previous disasters (Katrina, Sandy, et al) - civilian homes were unusable, anyway.  Not to say this could never happen, but among all the amendments and provisions of the Bill of Rights the government could violate, this seems the least likely.  Sadly, it seems this poor little amendment has been relegated to the status of "great trivia question".  Sleep soundly in your home.

Thursday, April 17, 2014

The Second Amendment

I have no hard data to back this up, but my sense is, if we were to rank the amendments to the Constitution in the order that they have inspired controversy, debate, litigation and indeed anger, the First and Second Amendments would likely be numbers one and two, and I'm not sure in which order.

Last time, we went through the First Amendment and its limitations on both the government ("Congress shall make no law...") and on those who exercise these rights (no yelling "Fire!" in a crowded theater, libel and slander laws, etc...).  I think we can agree that, at least Constitutionally speaking, there are no absolute (that is, no limits whatsoever can be placed on them) rights.  But in order to place any limitations on rights, the government must demonstrate exceptionally compelling reasons for doing so.

That said, let us move on to the Second Amendment and begin with the text:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Clearly, the amendment protects the right of individuals to have arms for their own private, lawful uses.  Simple enough.  Next topic...

Oh, wait - I see some of you are not convinced.  Well, the Supreme Court sees it this way, as well (Heller and MacDonald decisions - both very recent).  In fact, the Supreme Court really didn't weigh in on the question until the Heller case in 2008, when it ruled that the Second Amendment does protect an individual right to "keep and bear arms".

"But Mr. Madison blogger," you say, "how can that be?  It says right in the amendment 'a well-regulated militia'.  So, doesn't that mean that only people in the National Guard or other military are covered by this?"

I see we have some work to do.  Let's begin with the basics.  First of all, we see that this amendment is in The Bill of Rights.  Remember, that this set of amendments was specifically written to limit the federal government's ability to infringe upon the natural rights of the citizens.  It did NOT grant rights - it protected rights already already understood to be inherent in every citizen.  If the right to keep and bear arms is not an individual right, but some "collective" right, based on membership in the military, it would not need to be in the Bill of Rights, as there is no need to guarantee a right to be armed for someone in the army!

Second, the use of the word "right" in the Constitution is always used in the context of an individual right.  It is never associated with any federal governmental entity or function.  The Founders were quite aware, and wrote their words specifically to show, that only people have rights.  Governments do not.

But what about this whole "militia" business? you ask.  The first clause is what is called a prefatory clause.  It announces a purpose (but not necessarily the sole purpose) of the clause to follow, which is called the operative clause.  In other words, the operative clause by itself ("the right of the people to keep and bear arms shall not be infringed") can stand on its own as a complete thought, but the preceding clause cannot.

But who are "the militia"?  In the context of the time, it generally referred to free males of military service age who could be organized to bear arms for whatever purpose was necessary.  Many of the Founders were leery of a standing army (because of the British experience - and that experience found its way into the next amendment, as well), but they knew there could not be complete lack of armed men in case of emergency (including their own national army turning on them, in an extreme case).  Again, that was a reason for the amendment, but not the sole reason.  Congress already had the power to raise armies (Article One), so there was no reason to add an amendment simply to say "the people" could raise more armies.  In any case, the amendment does not say "The right of the militia to keep and bear arms" - that would be ridiculous - it says "the people".  Remember how precise these men were with their words.

Now, in the spirit of fairness and giving a hearing to other possible interpretations, let us assume for a moment that the national guard reading holds some water.  As a 21-year national guard veteran, I can state categorically that I did not have a right to keep and bear arms as a guardsman.  In fact, I had no right at all to even be IN the guard.  I could have been rejected for service for many reasons, but once in, I still had no right to carry a gun.  I may have had a duty to do so, but a duty is not a right.  Very different concepts.  There are numerous military specialties that do not require the bearing of arms and even a couple that are specifically prohibited from doing so (chaplains, medics).  Remember, too, that as a military member, I am acting as an agent of the government, and as we have already established, governments have no rights, only people do.  There is simply no Constitutional right to bear arms while serving in the military, so once again, that interpretation just doesn't work.

OK, but aren't there - or can't there be - limits?  Of course there can be, and are.  There are more than 20,000 federal, state and local laws dealing with firearms alone (to say nothing of other types of  "arms" like knives, bows, explosives and so on).  Much as I might like to, I can't own a fully-armed M-1 Abrams tank or an A-10 Warthog fighter or a B-52.  Despite what you may have heard in the media, I can't own an actual assault rifle without extensive background checking and special licensing.  Felons and minors aren't allowed to own guns.  Most of these restrictions aren't particularly controversial.

So, then, where does the controversy lie?  Just like in First Amendment issues, the question is not whether the government can place certain restrictions on the rights guaranteed in the amendment, but to what extent.  Where is the line drawn between what lawmakers might say is a compelling government or public interest and the rights of the individual?  Is that line fluid, changing over time?  Who actually gets to determine where that line is - the Congress?  The President?  The Courts?

My sense is that, just like the First Amendment, we have seen nowhere near the end of the controversy surrounding the Second.

Thursday, February 13, 2014

The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting thefree exercise thereof; or abridging the freedom of speech, or of the press; or the right ofthe people peaceably to assemble, and to petition the Government for a redress ofgrievances."

Sounds simple - "Congress shall make no law..."  Congress shall not impede our right to speak, assemble, worship or petition the government.  What could be controversial about that?  Well, as I put forth a couple blog entries ago, is there in fact an absolute right to any of these things?  Can I truly speak, write, assemble or worship without restriction?  What, if any, restrictions can - or should - the government put on these rights?  And if the government can restrict them, can we truly call them "rights"?  Difficult questions, my friends...

Of course, the answer is no, there is not in our country an absolute right to any of these.  Most famously, this does not give one the right to shout "Fire!" in a crowded theater.  Generally speaking, one's right to do x ends when it infringes on another person's rights.  Your right to shout "Fire!" is subordinate to my right not to be trampled in a panic.  My freedom to speak my mind ends when it truly injures (not merely offends or insults) you, which is why we have libel, slander and perjury laws, in effect codifying the "Thou shalt not bear false witness..." edict of Ten Commandments fame.  We do have what most would consider "reasonable restrictions" on these right, but what is "reasonable"?  Is it reasonable to remove certain books from public libraries?  How about school libraries?  How deep can the government penetrate into my own affairs for the "common good"?  Excellent and difficult questions, all.

We could bring up a million case studies about various aspects of the First Amendment, so let's narrow our focus and look at a current event and talk about how the First Amendment applies.  There is a pending Supreme Court case involving the retail chain Hobby Lobby.  The store has filed suit under the First Amendment challenging the Affordable Care Act ("Obamacare") mandate to provide contraception coverage under their employee insurance plan.  The owners of the company maintain it is a violation of their religious beliefs to do so, as artificial contraception is counter to their faith.  The government, on the other hand, says that a corporation is not a person, so the First Amendment protections don't apply, especially to a secular business.  (By way of comparison, the Supreme Court just issued an injunction exempting an order of Catholic nuns from the mandate.  One might ask why the government thinks nuns would need contraception in the first place, but that's not really the point...).  Churches and houses of worship are exempt from the mandate,  but businesses affiliated with them are not - a Catholic church is exempt but a Catholic hospital is not, for instance.  So the question is - at what point does one's freedom of religion stop?  At the door to the business?  When you step outside your front door?  When you hire people who may be of a different faith background than you?  Or does it ever stop?

Again, we have certain restrictions on all of these rights - we can't yell fire in the theater as an expression of free speech; we can't hold human sacrifices as part of freedom of religion; we can't have a violent riot as freedom to assemble (though note that the amendment specifies "peaceably to assemble").

The First Amendment seems so very clearly written, but as with the Bible, the difficult part is in the interpretation.  Going through all the possible permutations of it can - and does - fill thousands of volumes of legal argument, theory and history.  How much can the government restrict these rights, and under what circumstances and to what end?  (These questions also apply to subsequent amendments and will be discussed there, as well.)  If there are to be restrictions placed on my right to speak my mind or practice my faith, what compelling reason must there be for doing so?  I would argue that there must be an actual threat of harm to another before restrictions can be enforced, not mere inconvenience or embarrassment or disagreement.

To take it a step further, can these freedoms be applied to new technologies that the founders (except maybe Ben Franklin) never dreamed of, like TV, radio, telephone and internet?  Clearly, we do accept that these new media are covered under the First Amendment.  No one would seriously claim that "freedom of the press" applies only to those who own and operate a physical movable-type Gutenberg-style printing press.  But with new technology always comes new issues.  Still, the Founders were wise enough to know that times and technologies would change and they wrote the Constitution in general enough terms to be durable for the long run, yet specific enough to be useful in everyday life.

Pure Genius.  Discuss.

Next up - The Second Amendment

Wednesday, February 12, 2014

An Educational Interlude

Happy New Year, Madisonians!  It's been entirely too long since my last entry.  Perhaps this severe winter weather has sapped my motivation, but it's time to crank it back up.  My last post was an introduction to the Constitutional Amendments, and I'll get to that next, but first, a pitch for further education.

I hope you've found this blog at least somewhat interesting and thought-provoking, but I also hope it's been educational.  Still, I'm no world-class expert on the Constitution, so I thought I'd bring some in to help you deepen your knowledge and appreciation of the Constitution.

I was the fortunate recipient of a couple of great gifts recently that I'd like to pass on to you.  My parents took an educational trip to Virginia a couple months ago and one of the stops was, of course, Montpelier, Madison's home.  The magazine they brought home for me included information on the Montpelier web site, which has a fantastic educational section.  They have free online courses you can take to further your Constitutional education (and why not learn from the master, right?).  For any of you who are teachers, these courses can earn you continuing education credits (a small fee is required to get the certificate).  You can access it here:


They also underwrite an excellent weekly radio show called "Your Weekly Constitutional" that you can access here:


I listen to it on podcast religiously and strongly recommend it.

Another fantastic online program is offered by Hillsdale College.  Their free online offerings include two courses on the Constitution, two History courses and a new one on Economics.  I've done the two Constitution courses and can recommend them with the greatest enthusiasm.  Their courses generally consist of around ten lectures by their professors (each about an hour or so video), lots of links for further study and quizzes to test your retention and comprehension.  Again, these courses are free (they will ask for a donation, but it isn't mandatory) and you can find them here:


Finally, my wonderful wife gave me an excellent book, "The Liberty Amendments", by Mark Levin.  Many of you may know Mr. Levin for his talk radio show.  He is also a lawyer who graduate summa cum laude and Phi Beta Kappa from Temple University and is President of the Landmark Legal Foundation.  His book deals with the out-of-control growth of the federal government - far beyond what the Framers could have imagined, or feared.  Whether you identify as Left, Right, or Center, I think the evidence for a far-too-large federal government is beyond question.  Levin proposes amendments to the Constitution to remedy much of what he identifies as the worst of the problems.  Again, you may agree or disagree with him, but his proposals are worth hearing and definitely worth discussing.  The Number One question I guess I would ask is: "If the government is so big and out of control and far exceeding its Constitutional mandates (that is to say, if the people who are supposedly representing us are far exceeding their Constitutional authority), how would more amendments really help?"  Normally, I'd say this kind of book isn't a "beach read", but I in fact read this while soaking up some sun on a Hawaii beach, so there you go...  I thought this book would be an appropriate recommendation as we begin to discuss the Amendments, starting in the next blog entry.  The web page for his book is here: