7) SEVERAL PROVISIONS OF THE CONSTITUTION THAT HAVE SEEN DRAMATIC CHANGE.
a) Free speech
i) the primary concern was protecting political speech – the ability to speak out against or for government policies
ii) Clearly their concern since gaining independence from King George’s oppressive policies. This includes certain types of “expressive” actions to communicate political speech.
b) Fee exercise of religion
i) From early American legal documents, the political practices of the Framers, and the authoritative statements of leading Founders, Justice O’Connor drew three general conclusions. First, “these early leaders accorded religious exercise a special constitutional status.”59 Second, “all agreed that government interference in religious practice was not to be lightly countenanced.”60 Third, “all shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’”61 These significant historical sources, Justice O’Connor concluded, led to the finding that:[T]he Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.
c) Establishment of religion
i) The concern was the establishment of a national religion – The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."
ii) did not even apply to the States until 1947 Everson v. Board of Education
iii) This was not understood as a prohibition government aiding religion – in fact, the founders, as we’ve seen, thought religion indispensible to the operation of their new government
d) Due process
i) 14th Amendment Clause 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
ii) Process means notice of a hearing and opportunity to be heard. Today we call this procedural due process – what procedures are required to meet the constitutional requirements for taking life, liberty, or property? Next week we’ll talk about something new known as “substantive due process.”
e) Commerce clause - Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
i) With foreign Nations and the Indian Tribes is pretty clear
ii) The understanding of “Congress shall have the power . . . to regulate Commerce . . . among the several states”
iii) Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose
(1) Among the several States" meant between persons of one state and another;
(2) "To regulate" generally meant "to make regular"-that is, to specify how an activity may be transacted-when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations."
iv) In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
8) CHANGES IN CONSTITUTIONAL MEANINGS SINCE DRAFTING
9) Constitutional Interpretation
a) What’s the method? In other words, what principles do we look to in order to apply the Constitution to unforeseen circumstances not expressly addressed and how do we understand what is express in the text?
i) Strict construction – not in the text, it doesn’t exist – for example, speech and press mean just that – no other means of publication are included
ii) original intent – what did the founders intend
(1) At first blush, this sounds reasonable – but what do you do when the records indicated that different founders had different intents?
(2) Example: federalist vs. anti-federalist and the compromises each made – Adams intended the portions of the constitution touching on federalism to give more power to the federal government and Jefferson meant for those same provisions to limit the power of the feds and preserve the power of the states.
iii) Textualism - The interpretation cannot go beyond the boundaries of the text – the interpretation cannot change until the text, that is the law, changes
iv) Originalism – original understanding of the text at the time it was drafted
(1) Textualism informed by originalism – discovering what the plain meaning of the text was at the time it was drafted (looks at many of the same resources as original intent)
b) Judicial Review
i) Marburry v. Maddison
(1) First case – 1803 – to talk about judicial review – we need to clarify what that means:
(2) Basically to review acts of the other branches of government in light of their powers under the constitution – if it’s within their powers, it’s ok. If not, they can’t do it
(3) So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
ii) Federalist #78 described judicial review: The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
c) Judicial activism is another term we need to define. It is not the same as judicial review. When the court determines that a law conflicts with the constitution on a legitimate constitutional basis, it is doing its job. However, when it goes outside the text and meaning of constitution to create something that is not there or distort something that is already there – that is judicial activism.
i) I would argue that it is not judicial activism to ignore the principal of stare decisis when the precedents have departed from proper action by the court.
ii) Marshall’s understanding of the limits of the judiciary is expressed in the closing lines of the Marbury case: Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and those courts, as well as other departments, are bound by that instrument.
d) The Dredd Scott case – the Missouri Compromise adopted in 1820 prohibited slavery in the upper half of the western territories. Dredd Scott sued for his freedom
i) First time in 50 years (since Marbury) that the court struck down a federal law
ii) The court took this action by determining that if a slave owner in the south has a property right recognized by the constitution and then moves to a northern state, the Missouri Compromise would deprive him of his property and was thus outside the boundaries of proper legislative action (taking away what the constitution says cannot be taken away without due process)
e) Oliver Wendell Holmes – championed sociological jurisprudence at the beginning of the 20th century (1902-1932) – the law is means of progressing – social Darwinism applied to the law. The role of the judge is to figure out what is socially expedient and what the views of the dominant social group are and make decisions on those basis.
i) By combining judicial review with sociological jurisprudence, he created a theory known as judicial deference – since the judge is supposed to rely on the views of the dominant social group, and since the legislature ought to accurately reflect those views, the judiciary should defer to the legislature, even if the legislature is in violation of the constitution –
ii) Roscoe Pound, dean of Harvard Law school during the same period took the same approach
f) The Warren Court – judicial activism matured - Important decisions during the Warren Court years included decisions holding segregation policies in public schools (Brown v. Board of Education) and anti-miscegenation laws unconstitutional (Loving v. Virginia); ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut); that public schools cannot have official prayer (Engel v. Vitale) or mandatory Bible readings (Abington School District v. Schempp);
i) Griswold v. Connecticut - Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. The Connecticut statute conflicts with the exercise of this right and is therefore null and void.
ii) Maybe we should have a right to privacy, but that’s not the point – the point is that when we go beyond the constitution’s text and plain meaning when adopted, the courts rather than the citizens get to choose – we can always amend the constitution to add a right of privacy
10) Fee exercise of religion
a) From early American legal documents, the political practices of the Framers, and the authoritative statements of leading Founders, Justice O’Connor drew three general conclusions. First, “these early leaders accorded religious exercise a special constitutional status.” Second, “all agreed that government interference in religious practice was not to be lightly countenanced.”60 Third, “all shared the conviction that ‘true religion and good morals are the only solid foundation of public liberty and happiness.’”61 These significant historical sources, Justice O’Connor concluded, led to the finding that:[T]he Free Exercise Clause is properly understood as an affirmative guarantee of the right to participate in religious activities without impermissible governmental interference, even where a believer’s conduct is in tension with a law of general application.
b) Sherbert -7th day Adventist was fired because she would not work on Saturdays and then was denied unemployment benefits. Court ruled strict scrutiny applies:
i) State action must be justified by a compelling governmental interest, and be narrowly tailored to advance that interest.
c) Smith – American Indian fired for using peyote in his religious practices and unable to obtain unemployment benefits – established a new standard (said Sherbert was limited to unemployment cases that require individualized consideration of religious activity – Smith dealt with a generally applicable rule)
i) Laws of general applicability are only subject to rational basis test: state action must only be justified by a rational relationship to a legitimate state interest
ii) Strict scrutiny will apply when religion is targeted or free exercise is combined with another constitutional right
iii) Whether or not the decisions are that limited, they at least have nothing to do with an across-the-board criminal prohibition on a particular form of conduct. Although, as noted earlier, we have sometimes used the Sherbert test to analyze free exercise challenges to such laws, see United States v. [p885] Lee, supra, 455 U.S. at 257-260; Gillette v. United States, supra, 401 U.S. at 462, we have never applied the test to invalidate one. We conclude today that the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the test inapplicable to such challenges. The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, "cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Lyng, supra, 485 U.S. at 451. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" -- permitting him, by virtue of his beliefs, "to become a law unto himself," Reynolds v. United States, 98 U.S. at 167 -- contradicts both constitutional tradition and common sense.
d) Church of Lukumi Babalu Aye v. City of Hialeah
i) Establishment of religion
ii) The concern was the establishment of a national religion – The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."
iii) Here we’ve been getting consistently bad rulings that continue to separate religion from the public square – relegating religion to the realm of the private.
e) SANTA FE INDEPENDENT SCHOOL DISTRICT v. JANE DOE The Court distorts existing precedent to conclude that the school district's student-message program is invalid on its face under the Establishment Clause. But even more disturbing than its holding is the tone of the Court's opinion; it bristles with hostility to all things religious in public life. Neither the holding nor the tone of the opinion is faithful to the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God...."
11) Due process
a) 14th Amendment Clause 1: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
b) Process means notice of a hearing and opportunity to be heard. Today we call this procedural due process – what procedures are required to meet the constitutional requirements for taking life, liberty, or property?
c) Substantive Due Process
i) Dredd Scott – here we have the court specifically stated that the due process clauses of the 5th and 14th amendments dealt with more than process – they didn’t mention process, only the property rights of slave owners
ii) Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.
(1) First, it gives the federal courts unqualified discretion to decide what substantive rights are protected under Due Process and how extensive that protection is. There are two ways the Supreme Court does this:
(a) Under the substantive wing of the "Incorporation" doctrine, where the Court adopt selected provisions of the Bill of Rights and apply them to the states under Due Process. This can be called "Substantive Incorporation."
(b) Under the "Fundamental Rights" theory, where the Court adopts whatever substantive rights it thinks are so basic, natural and fundamental that they must be protected even without reliance on any particular provision of the Constitution. Instead the Court is said to root these guarantees directly in the word "Liberty" in the Fourteenth Amendment’s Due Process Clause.
(2) Second, once the federal courts decide what substantive rights are protected buy Substantive Due Process, it can use Judicial Review to enforce these rights by reviewing all state legislation for compliance with these rights. (provided a case is properly before it)
12) The redefining of liberty
a) By trying to “expand” the rights protected by the constitution, the court has taken control of drawing the lines between what we can and cannot do
b) For every new right it finds, there is a corresponding restriction on the ability of the people to govern themselves
c) By granting a right to abortion, we have lost the right to protect the unborn
13) Commerce clause - Article 1, Section 8, Clause 3: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
a) With foreign Nations and the Indian Tribes is pretty clear
b) The understanding of “Congress shall have the power . . . to regulate Commerce . . . among the several states”
c) In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another.
d) This was the case until the New Deal and FDR.
i) In response to the court striking down a series of his new deal laws, FDR proposed a court packing scheme which ultimately lead to a swing vote on the court moving from the previous 5-4 majority to join the four who supported the new deal legislation
ii) Now, rather than following the natural rights basis for the right to contract expressed in the Constitution and the limited view of the commerce clause, the court began to uphold laws that limited contractual rights and gave a broad interpretation of the commerce clause
e) Previously, the feds were limited by the commerce clause to regulating the actual trading of goods and service across state lines. This did not cover manufacturing or any other element related to them
i) States were allowed to do whatever they wanted with all the other aspects of business and also control trade within their borders as long as it did to obstruct commerce between the states
f) Now, the courts backed off and allowed congress to begin to regulate all aspects of trade, even trade within state borders
g) This opened the gate to federal regulation of almost every area of life via the commerce clause
14) SO WHAT DO WE DO?
a) Chuck Colson is fond of saying that politics follow the culture, not the other way around.
b) Greg Cunningham from the Center for Bioethical Reform talks about how to end abortion this way:
i) A constitution amendment is the only solution
ii) We’ll only have that when the state legislatures feel the pressure to do so
iii) They’ll only feel the pressure if public opinion changes – so Greg is working to change public opinion about abortion
iv) I would add the following – public opinion will not change until we have revival
c) We are the agents of the needed change
d) We need to engage spiritually
e) We need to become outposts of biblical thinking,
i) Our concept of what is real must match what scripture tells us
ii) We then need to develop Godly beliefs and values which result in righteous livings
f) The recent debates in congress demonstrate that if we are willing to stand for the principle without compromise, we can begin to effect change
g) Nullification actions by the states
i) The states preceded the union and were sovereign
(1) Read a biography of George Washington and listen to one of his biggest complaints as commander of the revolutionary forces – getting money and men from the various states – it was like herding cats
ii) The Constitution is a pact agreed to by the individual states
(1) ratified by the states
(2) Only amended by the states
iii) The federal government only has the power delegated to it by the states – regardless of what it wants to declare that it has
(1) If the Supreme Court – a branch of the federal government - has the power to declare what the law is without question or recourse, the government has become a tyrant