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

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:

http://learn.montpelier.org/courses_and_exercises

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

http://www.montpelier.org/center/radio

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:

https://online.hillsdale.edu/home/register

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:

http://www.marklevinshow.com/common/page.php?pt=The+Liberty+Amendments&id=4183&is_corp=0

The Amendments - Introduction

After a contentious battle to ratify the Constitution, hard questions remained in the minds of many, specifically the Anti-Federalists, led by Patrick Henry, Samuel Adams, Richard Henry Lee and Elbridge Gerry.  They were wary of a too-powerful federal government and wanted assurances that certain personal freedoms, liberties and rights would be protected.

Federalists, on the other hand, notably James Madison and Alexander Hamilton, did not initially see the need for a "bill of rights", being convinced that the states themselves would be sufficient to check the power of the federal government.

Several states, including Massachusetts, New York and Virginia, linked their ratification votes to the inclusion of such a bill, and eventually many of the Federalists came to support it.  In the first Congress, James Madison himself became the primary author of the set of amendments.  After another lengthy set of debates, where amendments were added, deleted and amended themselves, the final bill of rights was announced by Secretary of State Jefferson as being adopted as a set of ten on March 1, 1972.

We have talked before here about the necessity of amending the Constitution and here about the process for doing it.  Let's talk now about the actual intent and content of Amendments that have been ratified.

Generally, the main body of the Constitution is not terribly controversial (thought the every-four-years exercise of presidential elections always re-ignites the debate over the Electoral College, discussed here.  The amendments, however, and the first ten in particular, continue to plague us with controversy.  I would venture to say that Amendments 1, 2, 4, 5 and 10 have sparked more debate, follow-on legislation and lawsuits than the rest of the Constitution put together.  I have no empirical data to back up that claim, but it sure seems like it.

Before we dive into the specifics of each amendment (read the Bill of Rights here now - it'll only take a couple minutes), let's consider a couple big questions to keep in mind as we discuss them:

1.  Is there an absolute right to anything, without restriction?

2. Does the Constitution (and therefore, the federal governments) grant rights, or is its function to protect them?  There is a critical difference between the two ideas.

Discuss.

Next up - The First Amendment

Debt, Supremacy, Oaths and Ratification

Article VI of the Constitution, called "Debt, Supremacy and Oaths", is mostly an administrative, rather than structural, section.  Put simply, the first paragraph declares that all debts and contracts entered into by the Confederation shall also be valid with the newly-formed United States, ensuring those countries and other entities to which the former Confederation owed money and other obligations would have their conditions met.

The second paragraph declares that the Constitution, along with any amendments or treaties made under its auspices, shall be the supreme law of the land, not to be overruled by any state or local law, and that all judges and justices must defer to the Constitution at all times.

Finally, the third paragraph obliges all elected officials "...shall be bound by Oath or Affirmation, to support this Constitution..." and that no religious test of  any sort shall be administered or required for anyone to hold elected office or position of public trust.

Article VII sets forth the conditions for ratification - nine of the states must ratify it in order for the Constitution to take effect, and essentially, for the United States to in fact exist as a new nation.  On September 17, 1787, the Constitutional Convention concluded with the signing of the document by the delegates, and the ratification process was set in motion.  Almost immediately, The Federalist Papers began to appear, authored by Alexander Hamilton, John Jay, and this blog's namesake, James Madison.  By December of 1787, three states had ratified the Constitution already (DE, PA, NJ) and by early February, 1788, three more (GA, CT, MA - and Massachusetts by an extremely narrow margin! ).  In April and May, MD and SC added their approval and NH's vote in June made the required nine states to ratify.  VA and NY, both in excruciatingly tight votes, came on board in June and July.  NC voted to ratify over a year later, in November of 1789 and RI, by a margin of two votes, weighed in the next year, in May of 1790.  Finally, in January, 1781, VT made it unanimous.

We had a nation, all the states were on board (to one degree of enthusiasm or another), and George Washington had been installed as the first president.  So, the job was now finished and everyone was happy, right?  Not so fast - the Bill of Rights was far from a done deal.

Up next - the Amendments to the Constitution...

Happy Birthday To Me...and Us!

I'm here in Philadelphia on July 3rd - almost perfect timing!  But it's a good time to split the difference and wish America a Happy Birthday tomorrow (July 4th) and this blog a Happy Birthday yesterday (July 2nd).  The purist in me still maintains that our country's "real" birthday is September 17 (the date the Constitution was adopted and sent to the states for ratification).  Still, the Fourth of July is as good a date to celebrate as any.  I'd encourage all of you to read the Declaration of Independence today, just to remind yourself what it says and why it was written.  Here's a link for you if you don't have your own copy handy:

http://www.archives.gov/exhibits/charters/declaration_transcript.html

I know this is a blog primarily about the Constitution, but the Declaration was the first serious "shot across the bow" at the British and helped give the colonists the rallying point (not to mention some good talking points!) for the Revolution.  It really didn't establish anything in terms of a new government, but was simply what it says - a declaration "That these United Colonies are, and of Right ought to be Free and Independent States".  Think back to the immortal words Jefferson wrote:

We hold these truths to be self-evident, that all men are created equal..

...they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Excuse me, it just gives me shivers, reading such brilliant work...

So, this Independence Day (not merely "The Fourth of July"), think back to what the Founders were going through - their thoughts and feelings and the way they lived.  Then think ahead to the government they established a very tough eleven years later with the Constitution.  It's easy to get bogged down in the day-to-day nonsense we all too often see from our government at all levels.  Still, show me a better, longer lasting and more durable system.  Enjoy it and celebrate it today!

Article V - Amendment

Article V of the Constitution deals with amending the document.  The authors knew they had a very good product, but certainly not a perfect one, and they knew there needed to be a system for changing, or amending, the Constitution as times, conditions and the country itself changed.  Article V is very short and simple, but the process for amendment is not so much complex as it is difficult to accomplish.

In short, the Constitution may be amended in two ways: the usual way is for two-thirds of each legislative branch to vote in favor of the amendment and then have it ratified by three-fourths of the state legislatures; or, the states themselves may call for a Constitutional Convention.  Every amendment but one (so far) has been passed by the first method, and no convention has been called to propose an amendment since the ratification of the Constitution. The convention method has only been used once to ratify an amendment (the 21st Amendment, which repealed the 18th).  However, the convention system is still in place, no doubt as a safeguard against too much centralized power in the federal government.

For a discussion on the merits of amending the Constitution (or not), see my previous blog entry:
http://jamesmadisonandme.blogspot.com/2012/10/we-should-have-fill-in-blank-amendment.html

And for a discussion of just how amazing our Constitution is, since it has only been amended 27 times, see:
http://jamesmadisonandme.blogspot.com/2012/09/happy-birthday-america.html

So, not to re-hash what I've written before, but the fact that a document that is more than 220 years old has only been amended 27 times is quite remarkable.  Madison and his fellow Founders did an amazing job writing this durable, enduring work.

Not all amendments that are proposed are passed by Congress (more than 11,000 proposals to amend the Constitution have been introduced into Congress).  And not all that are passed by Congress are ratified by the states (six have been approved by Congress, but the requisite number of states have not approved).

Next: Article VI - Debts, Supremacy and Oaths

Article IV - The States

The Constitution is set up for the purpose of establishing a federal government, encompassing the entire nation.  However, the Founders knew that the states themselves were, corporately, the nation, and wrote a section of the Constitution to address the nature and status of the states, and the duties and obligations the states have to each other, and that the federal government has to the states.

In Section 1, the Constitution affirms that :

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State."

In other words, legal cases settled in one state must be recognized in others.  One state court may not re-open a case decided in another state, simply because the laws are different.  There are exceptions, of course, but they are few and limited, so the bottom line is that if I am convicted of a crime in my home state, I can't go to a neighboring state and be re-tried by its state courts because the law in that state doesn't find my actions illegal.

Section 2 begins:

"The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

This has been the subject of a lot of interpretation and speculation.  Does it mean that all citizens must be treated equally, no matter where they are?  Or that the rights of a citizen in one state must be recognized while travelling to another state?  The Supreme Court opines that it means that a state may not discriminate against a person of another state in favor of a citizen of its own state.  Again, many exceptions and exemptions apply, but that's the gist of it.  

The next part deals with extradition of criminals, and basically states that fugitives who cross state lines may be extradited to the state in which the crime was committed.

The third part of Section 2 became known popularly as "The Fugitive Slave Clause":

"No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due."

This allowed slave owners to demand the return of escaped slaves, even if the slave escaped to a free state.  The Thirteenth Amendment rendered this clause moot.

Section 3 addresses the admission of new states.  Any new state may not be created within the boundaries of an existing state, nor by the junction of any two existing states without the consent of the states involved and the federal government.

The second part of Section 3 deals with territory:

"The Congress shall have power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

The Congress ultimately has authority over all U.S. territory, but what exactly is "territory"?  In a series of decisions about the "Insular Territories", the Supreme Court ruled that territories belonged to but were not part of the United States.  This has led to the long-standing debate over the political status of Puerto Rico, for example.

Section 4 requires that every state establish a republican form of government.  It does not specify the precise form the government of each state must take, only that it be based on the principles of the consent of the governed.  In that vein, no state has a purely democratic government - all have a representative government of one style or another, and all are based on the federal model, with an executive, a legislature and a judiciary.  This section also required the federal government to protect the states from invasion and domestic violence.

Next up: Amendments