Constitution of the United States

C

6

Other Civil Liberties

The Constitution protects many other civil liberties besides the freedom of speech and religion, the right of privacy, and the rights of the accused. Notable among these other liberties are freedom of assembly, freedom of association, the right not to associate, freedom of belief, and the right to petition the government—all protected by the First Amendment. Protected as parts of due process are the rights to marry, to have children, and to raise them in accordance with parental beliefs.

VIII

Interpreting the Constitution

The success of the Constitution lies in its flexibility. But it is flexible because it speaks in broad and sometimes murky phrases. What, for example, does “due process” mean? The Constitution does not define the term. If a judge’s salary consists in part of fines he hands out against traffic violators in his court, has due process been violated? (Yes, said the Court in Tumey v. Ohio in 1927, because it is unfair to give a judge a monetary incentive to find people guilty.) The ambiguity of the Constitution means that it cannot be applied automatically, and that its provisions must be subject to judicial interpretation.

For more than two centuries justices, scholars, and people on the street have debated the proper method of interpreting the Constitution. Advocates have sparred over several contrasting approaches: strict, or narrow, versus broad construction (interpretation); conservative versus liberal; interpretivist versus noninterpretivist; and activist versus nonactivist. In general this is a debate between those who believe that the wording of Constitution should be read narrowly and those who argue that in many instances the words themselves provide no guide to the outcome of a case.

These different approaches can lead to different outcomes. The abortion decision Roe v. Wade is an example of a broad reading; strict constructionists find no right to abortion. Decisions upholding the death penalty exemplify strict readings; only a broad reading would render capital punishment unconstitutional.

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No single method has found favor. Moreover, these labels are misleading and not always consistent. Although strict constructionists are often politically conservative, they need not be. Justice Hugo L. Black, who served on the Supreme Court from 1937 to 1971, adhered to a strict constructionist approach. He argued that only if a right was mentioned should it be observed. But this view led him to a very broad and liberal interpretation of freedom of speech; he insisted that even obscene works should be permitted. The First Amendment, he declared, means just what it says: The government shall make no law against freedom of speech. By contrast, some judges wish to give the government broad power to curb speech, a conservative position perhaps, but not a strict one. On the other hand, Black dissented in Griswold v. Connecticut, the birth-control case, insisting that no matter how silly the law was, the Constitution contains no right of privacy and the judges ought not invent one—not a liberal position, but a strict one. By contrast, several usually conservative judges discerned a privacy right in the due process clause, interpreting the Constitution liberally and not strictly.

In recent years a somewhat different debate has arisen over whether the Constitution should be interpreted according to the framers’ intent. Those who favor the so-called original intent of the framers argue that the Constitution must still mean what those who wrote it meant in 1787. If the framers intended that the death penalty be used, they argue, then it cannot be unconstitutional.

This approach has several difficulties. First, the historical record is far from clear about what they meant by many constitutional phrases. Second, in many important cases today, it is impossible to know what the framers intended because the modern world was unknown to them. They never conceived of television. How, then, could they have had an intent about whether rules regulating cable television violate the First Amendment? Third, whose intent should we look to? The framers did not agree on all the issues. Indeed, their disagreements led them to write the Constitution in words that have many possible meanings. Moreover, if the key is intent, then perhaps we should look instead at the intent of those who ratified the Constitution, for it was they who chose to put it into operation. But how can anyone determine the single intent of hundreds of people who chanced to come together in state ratifying conventions and did not leave records? Fourth, referring to original intent makes sense only if the framers themselves intended that later generations do so. But there is no evidence that they wished future citizens to do so. In addition, the Constitution does not say how its meaning should be interpreted. Fifth, the framers might have intended for later generations to interpret the constitutional text broadly, in light of the novel problems that would undoubtedly arise in later eras. It is this last approach that has often won. Regardless of theory, there can be no doubt that the meaning of the Constitution often changes with the times.

IX

Amendments to the Constitution

Article V spells out two methods for amending the Constitution. Congress may, by a two-thirds vote in each house, propose a constitutional amendment. It must then be ratified by three-quarters of the state legislatures or special state conventions, whichever Congress specifies. State conventions have ratified a constitutional amendment only once, the 21st Amendment, which repealed Prohibition. In the other method of amending the Constitution, two-thirds of the states may call a special constitutional convention. Amendments proposed by such a convention must then be ratified by the legislatures in three-quarters of the states. This second method has never been used; all amendments to date have originated in Congress. The president has no legal role in amending the Constitution.

In more than two centuries, members of Congress have proposed thousands of amendments, but only 27 have made it all the way to ratification. The first 12, including the Bill of Rights, were in place by 1804. Not until 65 years later were the 13th, 14th, and 15th amendments ratified, all as a direct consequence of the Civil War. The 13th abolished slavery. The 15th gave blacks the right to vote, though it was not widely enforced until the 1960s. The 14th Amendment has often been called a second constitutional revolution because it shifted power from the states to the federal government, giving the federal government authority to enforce individual rights against the states. This shift in power paved the way in the long run for a vast expansion of civil rights and civil liberties.

Several later amendments dealt with the right to vote. The 16th Amendment authorized the federal income tax. Other amendments altered the method of electing the president, limited his term of office, and set rules for presidential succession.

The most recent amendment, the 27th, specifies that a change in congressional pay can go into effect only after an intervening election for the House of Representatives. The amendment took 203 years to be ratified. It was the second of 12 separate amendments, then called articles, originally proposed in 1789. Articles III through XII were ratified and renumbered as the Bill of Rights in 1791. (The first of the 12 original amendments would have increased the size of House districts.) But through the 1790s only six states had ratified the pay amendment. Then, as dissatisfaction with Congress mounted in the 1980s, the states rediscovered it; and by 1992 the requisite 38 states had ratified it, putting it at last into the Constitution.

X

The Constitution Today

The Constitution has endured for more than 200 years, and it continues to shape the country’s most pressing social and political controversies. Some constitutional issues, such as the appropriate balance of authority between the state and federal governments, remain as unsettled as they were when the Constitution was adopted in 1788. Some issues, seemingly settled, are still being tested—for example, the debate over abortion continues. So, too, is the debate over whether the states may curb a proliferation of hate speech that vilifies minority groups. The courts must also adapt and interpret the Constitution to confront issues never anticipated by the framers, such as privacy rights on the Internet.

Sometimes political problems develop that seem impossible to tackle without constitutional change. One such issue, growing since the 1980s, is campaign finance reform. Candidates for president, Congress, and many state offices raise huge sums of money to run for office. The fund-raising practices often cause concern that these leaders will be beholden to special interests when they take office. In 1976 the Supreme Court ruled in Buckley v. Valeo that some limits on campaign spending violated the First Amendment and cannot be enforced. In the subsequent two decades political candidates used these exceptions to get around spending caps, all but eliminating any real limit on campaign spending. Stopping these campaign-financing abuses seems to require limits, but the Court’s decision bars such restrictions. The issue remains a continuing source of controversy.

When presidents appoint new members to the Supreme Court, the change in composition of the Court sometimes leads to dramatic turns in constitutional interpretation. One area of interpretation that seems to be changing is the Court’s approach to federalism. For more than a century, the Court consistently maintained the supremacy of the federal government over the states. But in U.S. Term Limits v. Thornton (1995), a case involving state efforts to limit the terms of members of Congress, four dissenting justices declared in effect that sovereignty rests with the states. Under this reasoning, the federal government’s authority is limited to the powers explicitly granted in the Constitution. The states assume powers assigned to them as well as any powers not mentioned in the Constitution, except those explicitly prohibited. The Court majority rejected this view, but it is entirely possible that the debate that has opened up may ultimately lead to a new definition of federalism, with results that no one today can safely predict.

XI

Text of the Constitution

A

Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

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