American Government and the Constitution Lecture Twelve

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
• Voting rights

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 right to same-sex marriage 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 that the law does not yet allow them to be married. They argue that their constitutional rights are violated by not being able to get married. They insist this violated "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 somewhat as public 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 Fall 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, which ends in June 2016, which is also a presidential election year.

Abortion

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, in 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 Supreme Court upheld a federal law against 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 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 as a result, 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 that required more safeguards before an abortion could be performed. A 24-hour waiting period, for example, was required by some states to ensure that the mother was not making her decision too quickly. Requirements that more information be provided to a woman in connection with a decision to have an abortion were passed. The numbers of abortions began to decrease as these 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 woman. 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 (located in St. Louis), and very effective sidewalk counselors persuade woman 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 speaking 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 by 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 for the anniversary of Roe v. Wade. The next March for Life is on Thursday, January 22, 2015.

James Madison's rejected amendments for the Bill of Rights

1. "No person religiously scrupulous of bearing arms shall be compelled to render military service in person." (a conscientious objector)

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 called this guarantee, extending protections of the First Amendment and the jury trial right of the Sixth Amendment to the states, "the most valuable amendment in the whole lot." It passed the House, but was rejected by the Senate.]

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.

The numerous amendments to the Constitution

A 27th Amendment??

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