American Government and the Constitution Lecture Twelve

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

Current Constitutional Controversies

More than 225 years after the Constitution was ratified, there are many disputes today about how it should be interpreted and applied to important issues. Here are some of the biggest controversies concerning the Constitution today:

  • Same-sex marriage
  • Abortion
  • Gun rights
  • Property rights
  • Immigration
  • Free speech and campaign finance

Let's discuss each of these issues in connection with the Constitution.

Same-sex marriage

Liberals want the federal courts to declare that the Constitution establishes a constitutional right to same-sex marriage. The Constitution, of course, does not create any such right in the document. Same-sex marriage is contrary to the original intent of the Framers, and it is not supported by the text of the Constitution. Under any conservative approach to interpreting the Constitution, it does not establish a right to same-sex marriage.

But that does not stop the powerful liberal movement that wants same-sex marriage. Under an "evolving" theory of constitutional interpretation, liberals insist that the Constitution should "evolve" to establish a right to same-sex marriage. The vague language in the 14th Amendment about "equal protection" should be interpreted, according to liberals who support same-sex marriage, to include equal protection for people of the same gender who seek to be married to each other.

This is the biggest issue in the federal court system today. Numerous lawsuits are proceeding through the federal district courts and U.S. Courts of Appeals in an attempt to establish a constitutional right to same-sex marriage. Typically the lawsuits are brought by homosexual couples who say they want to be married, but the laws in most States do not yet allow them to be married. The couples argue that their constitutional rights are violated by not being able to get married. They insist it violates "equal protection of the law" for a state to allow traditional marriage between a man and a woman, but deny same-sex marriage between a man and a man (or between a woman and a woman).

The media (television, newspapers, magazines, etc.) have increasingly sided with same-sex marriage, heaping praise on anyone who supports it while speaking badly of anyone who opposes it. Over time, this has an effect on public opinion, which slowly shifts to the viewpoint preferred by the media. This fickleness of public opinion is one reason the Framers opposed democracies.

Under the "evolving" view the Constitution, the meaning of the Constitution should change as opinion changes. Conservatives oppose that view of the Constitution, but at this time conservative judges are in a minority in the court system. Lawsuits demanding a constitutional right to same-sex marriage have been winning nearly every time.

But in November 2014, a 2-1 decision by the U.S. Court of Appeals for the Sixth Circuit ruled against a lawsuit seeking a right to same-sex marriage. This created a "Circuit split," and virtually ensured review of this issue by the U.S. Supreme Court. It is expected that the U.S. Supreme Court will "grant cert" on this issue and render a decision by June 2015. If there is a delay either by the Court or by the attorneys handling the case, then a decision may not occur until next year's Term of the Supreme Court, ending in June 2016, which is also a presidential election year.


The Supreme Court shockingly established a constitutional right to abortion on January 22, 1973, in Roe v. Wade. A related decision issued the same day, Bolton v. Doe, expanded that new right to abortion to any time during pregnancy, all the way up to just prior to childbirth. "Late-term abortion" refers to abortions performed up until childbirth, which were allowed under these two decisions of the Supreme Court until the Court upheld a federal law against a type of late-term abortion in 2007.

For the first decade after Roe v. Wade, the pro-life movement sought to enact a constitutional amendment to overturn Roe v. Wade and prohibit abortion. But constitutional amendments require 2/3rds support in both the House of Representatives and the Senate before they can be sent to the States for ratification (and 3/4ths of the States are then required to ratify it). A "super-majority" of support did not exist for a pro-life amendment. The amendment approach was futile.

Abortions then increased dramatically in the United States, from a few hundred thousand per year to more than a million per year.

In the late 1980s, the pro-life movement shifted to a different, more effective approach, one that was based on federalism. Pro-lifers passed laws at the State level to require more safeguards before an abortion could be performed. A 24-hour waiting period after visiting an abortion clinic, for example, was required by some States to ensure that the mother was not making her decision too quickly. Laws were passed to require that more information be provided to women prior to having an abortion. The numbers of abortions began to decrease as these new State laws took effect.

In 2013, a special session of the Texas legislature passed a law prohibiting abortion by any physician who lacked admitting privileges at a hospital located within 30 miles of the abortion, so that he could help with any complications that his operation caused. Most abortion clinics do not take care of the harm they cause to the women. The clinics appealed all the way to the U.S. Supreme Court to block this law from going into effect, but the Supreme Court did not block it. This law went into effect, and about half the abortion clinics in Texas then closed because they were not in compliance with it.

In Missouri, there is only one abortion clinic remaining in the entire State, which is located in St. Louis, and very effective sidewalk counselors persuade women outside of the clinic, on public property, not to have an abortion. When the abortion clinic tried to have the sidewalk counselors prosecuted, they asserted their First Amendment rights of free speech, and won. In 2014, the U.S. Supreme Court used the First Amendment to invalidate a Massachusetts law that prohibited sidewalk counseling within 35 feet of the abortion clinic or within 35 feet of women going to the clinic for an abortion. Different States (and towns) have different laws to try to interfere with pro-life counseling of women in connection with abortion.

In 1973, in Roe v Wade, the Supreme Court was divided 7-2 in favor of abortion. Now, in 2014, the Supreme Court is divided 4-4 on the issue, and one Justice votes sometimes with the pro-abortion side, and sometimes with the pro-life side.

The longest running civil rights march in American history is the "March for Life," which attracts hundreds of thousands of people (including many teenagers) to D.C. each year in protest on the anniversary of Roe v. Wade. The next March for Life is on Thursday, January 22, 2015.

Gun rights

By now, you should know which part of the Constitution protects gun rights. Article I? No. Article IV? No. The First Amendment? Nope.

It is the Second Amendment that protects the right "to keep and bear Arms," which is the right to have a gun. Perhaps no other part of the Constitution is opposed by liberals as much as they oppose the Second Amendment.

For most of the 1900s, liberals insisted that the Second Amendment protects only a "collective" right to guns -- a right held only by a group of people, a militia. Only members who were in a militia, and only the militia itself, had gun rights under that view of liberals.

In 2008, in the case of D.C. v. Heller, a narrow 5-4 vote of the U.S. Supreme Court held that the Second Amendment establishes an "individual" right to guns. Under this decision, someone does not need to belong to a militia in order to have this constitutional right. That decision was the first time in about 70 years that the Supreme Court had issued a ruling on the Second Amendment.

Both prior to and after the Supreme Court decision, conservatives passed laws in States in order to protect and expand gun rights for law-abiding individuals. Nearly all states have a "concealed carry" law which allows citizens, upon obtaining a permit, to carry guns in public as long as the guns are concealed. Every year many conservative states consider broadening those laws to allow the carrying of guns in places formerly prohibited, such as on college campuses.

A few liberal areas of the country, such as Chicago, continue to attempt to deny law-abiding citizens their right to own guns, and this results in additional litigation in federal courts over the meaning of the Second Amendment. New Jersey still enforces some of the most restrictive laws against guns in the entire nation.

Why is there so much opposition to the Second Amendment? With a strong right to have guns, people are less dependent on government. In other countries, such as England, where the people have lost their right to have guns, the people became more dependent on government and tend to vote to expand government rather than narrow it. So the strength of gun rights has an influence on all other political issues, by determining how dependent the people will be on government.

Property rights

Some scholars have said that the real purpose of the U.S. Constitution was to protect private property rights. James Madison said:

Government is instituted to protect property of every sort .... This being the end of government, that is not a just government, ... nor is property secure under it, where the property which a man has ... is violated by arbitrary seizures of one class of citizens for the service of the rest.

Many other Founders felt the same way. John Adams, for example, said that:

The moment the idea is admitted into society that property is not as sacred as the laws of God ... anarchy and tyranny commence. Property must be secured or liberty cannot exist.

There were many "radicals" in the United States at the time of the American Revolution and afterward who were opponents of private property. Radicals took control of the French Revolution and much private property was seized or destroyed in that nation. A major motivation for writing the U.S. Constitution and establishing a strong but limited national government was to protect private property against radicals, and against tyranny.

Today, the Fifth Amendment is the primary protection for private property in the U.S. Constitution, and it is a constant source of lawsuits and controversy over how strong that protection really is. The "Takings Clause" of the Fifth Amendment protects against the taking of private property by government without "just compensation":

nor shall private property be taken for public use, without just compensation

What constitutes a "taking" and what constitute "public use" remain issues of continuing controversy.

The power of "eminent domain" has roots in pre-colonial England, dating all the way back to the Magna Carta in England in 1215.[1] Eminent domain allows government to take someone's land for a public purpose, such as building a road or City Hall. The Fifth Amendment to the Constitution ensures that the property owner receives compensation from the government for the value of his taken land. But in practice the owner of the land is often unhappy about the taking, because he receives only what the government (or a court) thinks the property is worth, not a higher number that the owner thinks the land was worth. And if the property owner had a business on the land, then he is not going to full cost of moving the business somewhere else.

There is also sentimental value to homes and lands, and some people (particularly older folks) do not want to give up the home that they especially like, or raised their family in. In the case of Kelo v. City of New London (2005), the town took Susette Kelo's home in order to provide it to a large corporation that wanted build a massive corporate complex. The town did this because it hoped to receive higher taxes from the corporate complex. But Mrs. Kelo did not want to lose her home in this manner. The Supreme Court, in a narrow 5-4 decision, held against Mrs. Kelo and in favor of the town's taking her home away from her (while paying her "just compensation").

The U.S. Supreme Court held that it was a "public use" for the City of New London to attempt to increase its tax revenues by converting a residential neighborhood into a corporate complex. That broad view of what would quality as a "public use" opened the door to other corporations causing towns to take people's homes for use by the companies. Accordingly, "public use" is no longer limited to building a road or a City Hall. Almost any use can quality for eminent domain by government today.

But illustrating the folly of many of these "takings" by government, the corporation (Pfizer) never build its corporate complex despite winning the case. It spent nearly $80 million in taxpayer money but ultimately abandoned the neighborhood and left property vacant. (The small pink house of Mrs. Kelo was saved by private supporters and moved, for historical purposes, to a different location in downtown New London, Connecticut.)

Public outrage against the Supreme Court decision in Kelo v. City of New London led to 43 State legislatures and 8 State supreme courts increasing protection of private property rights in their States. In addition, supporters of private property have defeated 44 new development projects that attempted to use eminent domain to take land and homes away from private property owners.

Like many other rights, private property rights are determined and protected mostly at the State and local level. The Supreme Court rarely decides a "Takings Clause" issue, and has not rendered a major decision on this topic since Kelo v. City of New London in 2005.


Perhaps the biggest political issue today is immigration, and whether rights of citizenship should be given to people who have entered our nation unlawfully. Article I of the Constitution grants to Congress the authority over "naturalization", but President Obama has been asserting authority under the executive branch to grant "amnesty" to illegal aliens[2] in the United States. Article I, Section 8, clause 4 states:

The Congress shall have Power To ... establish an uniform Rule of Naturalization ....

At the time the Constitution was ratified, some States continued their practice of granting citizenship to residents. But Congress then asserted its exclusive power to grant citizenship, and prohibited States from determining who or who is not a citizen.

Today there is a big controversy over how much States can do to protect themselves, and their residents, from illegal aliens. There are an estimated 12 million people in the United States illegally, many of whom are receiving benefits from the government and some of whom are committing crimes against American citizens. A few States and towns have passed laws prohibiting landlords from renting apartments to illegal aliens, for example, and requiring the landlords to check the citizenship of people before renting to them. Similarly, some States and towns have required employers to check whether a job applicant is in the United States lawfully, before offering him a job.

Pro-immigration groups tend to oppose State and local laws that restrict hiring or renting to illegal aliens. These pro-immigration groups have filed numerous lawsuits to block laws against illegal aliens from going into effect. One of the primary arguments of the pro-immigration groups is that Congress establishes rules for immigration and naturalization, and thus States and towns should not be imposing their own requirements against illegal aliens. But States and towns bear the burden of increased crime and costs association with illegal immigration. The town of Hazleton, Pennsylvania, located not far from New Jersey, passed an ordinance against illegal aliens after there was a surge in illegal immigration there, and an increase in shockingly violent crimes. The City of Hazleton passed the “Illegal Immigration Relief Act Ordinance” (“IIRA”) which:

  • would have imposed modest initial fines on landlords who rent to illegal aliens;
  • would have required tenants to register with City Hall and buy a rental permit; and
  • would have denied business permits to companies that hire illegal immigrants.

The law never took effect. Groups including illegal aliens sued in federal court to block the ordinances, and after seven years of litigation the U.S. Supreme Court "denied cert" on an appeal by the town.

The 14th Amendment begins with a Citizenship Clause as follows:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Many say that this Citizenship Clause grants "birthright citizenship" to the millions of Americans born in the United States to parents who are illegal aliens. Under this reasoning, if someone is born here, then he is automatically a citizen of the United States even though his parents were here illegally.

Not so, say opponents of illegal immigration. Only persons "born ... and subject to the jurisdiction" of the United States become citizens. If the parents are here illegally, then they are citizens of a different country, not the United States. Diplomats, for example, are subject to the jurisdiction of the country which they are representing. Children born here to diplomats are not subject to the jurisdiction of the United States, but are born subject to the jurisdiction of their home country. Similarly, under this view, the children of illegal aliens are should not automatically obtain "birthright citizenship" simply because they are born on American soil. True citizenship is not determined merely by where someone is born.

There are additional issues concerning citizenship that arise from time to time. Must someone renounce all allegiance to a foreign country in order to become a citizen of the United States? At one time, merely voting in a foreign election caused someone to automatically lose his American citizenship. Other issues concern whether dual citizenship should be allowed (it is allowed with some countries), and whether someone can renounce his citizenship (someone can under American law, but the traditional English view was that someone cannot unless the sovereign allows him to).

Free Speech and Political Campaigns

Every year there are new disputes over the issue of how much the Free Speech Clause of the First Amendment protects donations and expenditures in political campaigns for elections. An estimate is that candidates spent an overall total of $2.7 billion (that's billion, not million), in the recent midterm elections of 2014. In addition, outside groups are estimated to have spent $900 million. The overall total is estimated to have been $3.67 billion.

Some say that is too much. But it is just a small fraction of what was at stake. The federal budget is $3.5 trillion (that's trillion, not billion), with a deficit of about $500 billion. The federal debt is $18 trillion. That is far, far more than what is spent to elect politicians to manage the debt.

The media have no limits on how much they spend in news and commentary, much of it biased in the liberal direction, concerning elections. Should there be any limits on political spending by individuals or corporations?

There are limits on how candidates raise and spend money, and corporations are prohibited from donating to federal candidates. But in recent years the U.S. Supreme Court has expanded application of free speech rights to the context of political campaigns. In McCutcheon v. FEC (2014), the U.S. Supreme Court invalidated a federal law limiting how much an individual may contribute in one election cycle. Previously each American could not donate, in one election cycle, more than an overall total of $123,200 to federal candidates, political parties and committees. The Court held that limit to be a violation of the Free Speech Clause of the First Amendment, because the limit restricted the amount of "speech" by an individual in the form of contributing money to political campaigns.

Other limits on political donations continue to exist, and continue to be challenged by lawsuits asserting the First Amendment.

Additional Amendments

In less than eight years -- from 1913 to 1920 -- four major amendments were added to the Constitution: the 16th, 17th, 18th, and 19th amendments. We have already discussed the 16th and 17th Amendments (do you recall what they were?), so now we review the 18th and 19th Amendments.

It has been more than 40 years since a proposed amendment was passed by Congress and then ratified by the States (the 26th Amendment, which lowered the voting age to 18 nationwide). How is it that four major amendments were added to the Constitution in only about seven years, from 1913 to 1920?

The progressive movement was part of this, and it supported the 16th Amendment (income tax), 17th Amendment (direct election of senators), and 19th Amendment (guaranteeing the right to vote to women nationwide).

The 18th Amendment was the unique result of a movement by Christian women against alcohol. The harm on families due to alcohol was immense then, and now. The social movement to rid American society of alcohol began as early as the 1840s and even established a "Prohibition Party" that still exists in weaker form today. While the 18th Amendment is described as a failure today (it was repealed by the 21st Amendment), the "Roaring Twenties" was a fabulous success economically, culturally, and socially, and throughout that decade the 18th Amendment remained in effect. The 21st Amendment to repeal the 18th Amendment did not become part of the Constitution until 1933, when people argued that the sale of alcohol would help lift the nation out of the Great Depression (it did not - the Great Depression continued for nearly another decade anyway).

James Madison's rejected amendments for the Bill of Rights

Finally, in closing, it is interesting to look at two amendments James Madison wanted to be added to the Constitution, but which were rejected:

1. "No person religiously scrupulous of bearing arms shall be compelled to render military service in person." (i.e., protect the "conscientious objector" to war)

2. "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." (Madison thought this was the most valuable amendment, in protecting people against the States in these fundamental ways. His proposed amendment passed the House, but was rejected by the Senate. Many decades later the U.S. Supreme Court did apply these protections against the States as Madison wanted.)


Answer four of the following five questions, and begin studying for the final exam:

1. Review question: what is federalism, and how does the Constitution protect it?

2. Review question: what are the three branches of government, which parts of the Constitution establish them, and how do they "check and balance" either other?

3. Write about one of the current controversies concerning the Constitution.

4. Write about another current controversy concerning the Constitution.

5. What are the three most important parts of the Constitution, in your opinion? Explain.


Answer two of the following three questions:

6. Review question: how does the Constitution limit the power of the States?

7. Was it a mistake to add the 18th Amendment, or a mistake to repeal it? Explain your opinion.

8. What do you think of James Madison's unsuccessful amendments?


  2. "Illegal aliens" are people who are in the country illegally, such as those who crossed one of the borders without proper authority to do so, and then stayed here.