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

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.

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.

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 become 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 Fifth Amendment protects against the taking of private property by government without "just compensation." What constitutes a "taking" is the source of continuing dispute.

Immigration

Perhaps the biggest issue today is immigration, and whether any rights 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 in the United States.

The power of "eminent domain" has roots in pre-colonial England, and it 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 only receives 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 raised their family in. In the case ofKelo v. City of New London (2005), the town had 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").

Then, illustrating the folly of many of these "takings" by government, the corporation (Pfizer) spent nearly $80 million in taxpayer money but never built the planned corporate complex, and ultimately abandoned the neighborhood. (But the small pink house of Mrs. Kelo was saved by private supporters and moved to 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 the protections for 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 property owners.

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

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.]

Homework

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

1. Review question:

2. Review question:

3. Current controversies question

4. Current controversies question

5. Short essay question.

Honors

Answer two of the following three questions:

7.

8.

9.