The Constitution Today: The Bill of Rights
http://thedianerehmshow.org/shows/2010-10-25/constitution-today-bill-rights
The Bill of Rights is key to American law and government. It consists of the first ten amendments to the U.S. Constitution and contains guarantees of essential rights and liberties of individual citizens omitted in the crafting of the original document. A closer look at the Bill of Rights and the diverse interpretations it evokes today.
Guests
Jeffrey Toobin
staff writer at The New Yorker; senior legal analyst for CNN, author of "The Nine: Inside the Secret World of the Supreme Court" (Doubleday), and former Assistant U.S.Attorney in Brooklyn, New York.
A.E. Dick Howard
the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia.
Nina Totenberg
NPR's legal affairs correspondent.
Susan Bloch
professor of law at Georgetown University.
Comments
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The Bill of Rights actually amended the Constitution, fairly soon after its adoption, to be sure, but even so, as amendments they did not embody the original thinking of the drafters of that document . There is a debate now between Justices Scalia and Breyer over "originalism" vs what might be called the Common Law tradition of the Constitution i.e. the Constitution as "living document." Scalia's originalism would not seem to provide a place for Constitutional amendments, while Breyer's of course would easily accommodate them. How would Scalia's doctrine of originalism deal with legitimacy of the Bill of Rights, and for that matter any succeeding amendments to the Constitution?
The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...". Was Christine O'Donnell really incorrect when she stated, and I paraphrase, "Where in the Constitution does it state 'separation of church and state?'".
Dr. Tobin; As a Government teacher and having studied at Montpilier and the Constitution Center I am wondering if the founding fathers wrote the constitution for themselves. They recognized that as white wealthy, land owning educated men they realized that their numbers would soon be out numbered by the common man. So were they really concerned with the whole or a part? And as your guest just said the founders figured if we haven't said you can't do something then you can. The federeralists didnot think that a BOR was necessary. However when it came to ratification Mr. Madison was very astute in using it as a bargining chip to get VA and NY to radify. I tell my students he was the Peyton Manning of the Constitution. he could see the whole field and he new what needed to be done to win the game and if having a BOR was what NY and VA wanted then it was no big deal because the big thing was getting the Constitution passed before everything went down the drain. Jemmy Madison was a genious. He is my hero.
One of your commentators mentioned that the Bill of Rights was an attempt to codify what are known as "natural rights" or rights that are bestowed by nature, and not by governments. It appears to me that this means that these rights have been bestowed upon all people regardless of race, religion or nationality.
How, then, can our government justify their treatment of enemy detainees? Many detainees have suffered lengthy detainment, torture, and other practices that would be illegal under the Bill of Rights.
Virginian did NOT disband schools. One county in Virginia did away with public schools. I was in school in Richmond during this time and believe me we went to school. Nancy
Could the panel please give their best argument AGAINST a broad interpretation of the Bill of rights as Justice William O Douglas did? Why should we support a SCOTUS interpretation which narrows the protections based on a state police powers argument or any other reasoning?
(this is as a reply because i can't find a place for a new comment):
I think the 9th amendment implies intent by the founders to view the constitution and the bill of rights as a living document...
How does the principle of stare decisis stand with the idea of a living document especially with some ideals being overturned in periods of time as short as a few years
The Quakers established constitutional government in West New Jersey before Pennsylvania. Both serve as pre US Constitutional examples of the Rights of the citizen. The responsibilities of the government to the People.
Militias were well-regulated. This usually meant Quarterly musters, examination of weapons, powder distribution. It's forgotten that black powder needed to be kept in magazines should it explode. It was also protection against selling of firearms and powder to the Indians.
Any Anglo who has done much genealogy will usually find Quaker families in the late 17th and 18th centuries. They were still so numerous that the Constitution accommodated the Quakers. Swear or Affirm.
I wish you would have included in your talk about rights of free speech, the duties and responsibilties that come with free speech. We can say whatever we want, but there are repurcussions to some speech. So many people fail to recognize that with rights come privileges.
I would love to hear your guest's views on Brueswitz versus Wyeth -- the case the US Supreme Court is currently ruling on, to determine if it is constitutional for Wyeth to be able to avoid prosecution for damage done by the faulty design of the vaccines they sold.
Please explain to me what the seventh amendment means, when it states:
"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."
It's always seem to me that the rights of the vaccine damaged have been just blatantly stripped from them.
If Wyeth can do this, what is there in the law to hold anyone accountable for any harm their product might cause, to any American?
I would like to compliment Jeffrey Toobin, A. E. Dick Howard, Nina Totenberg and Susan Bloch for their professionalism on the show about the U. S. Constitution. It was so nice to hear intelligent people discussing the Constitution without saying the Constitution says X when the Supreme Courts says it says Y. Even when you could tell by their tone, that they did not agree with the Supreme Court, they always said the Constitution says what the Supreme Court says the Constitution says.
Now if politicians could understand that simple fact.
I found today's program wonderfully entertaining. The Bill of Rights, though relatively short, is extremely complex.
Freedom of religion is protected under the Establishment and Free Exercise Clauses of the First Amendment which is incorporated to the states under the Fourteenth Amendment. Reflecting on the history of America regarding religious persecution, the First Amendment sought to protect all religions from persecution. For example, in Virginia religious persecution was directed at Baptists. The Free Exercise Clause prohibits the government from punishing someone on the basis of their religious beliefs and the Establishment Clause prohibits laws concerning the establishment of religion. Now the government can pass a law providing preferential treatment to a religious sect though the law must be NARROWLY TAILORED to promote a COMPELLING INTEREST which would be reviewed using the standard of strict scrutiny. And from a practical point, a law reviewed using strict scrutiny is usually found invalid. Further, in Lemon v. Kurtzman, the Supreme Court established the three prong Lemon Test: (i) secular purpose; (ii) primary effect that neither advances nor inhibits religion; and (iii) no excessive government entanglement with religion.
Dear Diane,
Thank you for mentioning the 9th amendment, my personal favorite. It seems to be the forgotten most of the time. I consider it to be a political statement, as in citizens vs. government, and it conveys to us the quintisential american statement "I have a right!", which then of course proceeds to the 14th, the due process.
To aurdank (October 25, 2010 - 9:43 am):
While I do not agree with Scalia's "originalism", you are misunderstanding the term. It does not mean (as you seem to think) that the Constitution must be left as it was originally written in 1787 (and adopted in 1789), without regard to the later Amendments. That would be absurd, and contrary to the plain text of the document itself, which authorizes amendments.
Instead, Scalia claims that when interpreting or applying the Constitution, we must be bound by the "original understanding" of those who adopted it at the time they adopted it. So, in the case of the Amendments, where they changed the Constitution (as the Bill of Rights did), then that change controls the earlier text. However, in applying the Amendments we must be bound by the "original intent" of the people who adopted them.
Frankly, his theory is nonsense. There are provisions in the Constitution that are deliberately vague and open ended precisely because there could be no specific "original understanding" of the terms. As the great John Marshall wrote, a Constitution that could plainly and expressly address every specific and concievable situation would be incomprehensible.
Take one example beloved by conservatives, the Second Amendment. The "original understanding" of the term "arms" obviously didn't include any of modern weaponry. Does that mean we only have a right to flintlocks and muskets? Or, if you take a broader view, and say the term must "evolve" along with technology, does that mean we're all entitled to an ICBM of our very own?
In the end, Scalia's theory is simply a mask for the very subjectivism it pretends to reject.
frankkurowski on
October 25, 2010 @ 11:22 am asked: "Was Christine O'Donnell really incorrect when she stated, and I paraphrase, Where in the Constitution does it state 'separation of church and state?".
Part One
Yes. She was engaging in (or perhaps had fallen for) a bit of sophistry that many politicians engage in: the idea that a constitutional principle must be expressly stated in the document in order to exist. Consider the following words and phrases: "veto", "override", "separation of powers", "states' rights". None of them appear anywhere in the Constitution, but no one would deny the principles those terms describe are in it.
It's the same thing with "separation of church and state", that's simply a short description of principles that are in the Constitution, and which governed its creation. To use Jefferson's metaphor, the "wall of separation" has many bricks (not just the First Amendment).
The first brick is the complete absence from the document of the words "Jesus", "Christian", or any variant thereof, together with the absence in its legal provisions of any reference to a deity. "We the People" ordained and established the Constitution, no god was involved.
The next brick is the first of what I call the "three No's": Article 6, Section 3 - the "no religious test" clause. It means that anyone can be in the government (and even be President) regardless of their religion, or lack thereof.
Next, of course, is the First Amendment itself, containing the other two No's: no establishment of religion, and no prohibiting the free exercise thereof.
(It's after Jefferson's time, but I would add the equal protection clause of the 14th Amendment as another brick.)
To Be Continued
Part Two
Why are these "bricks" in the Constitution? Because as the Reverend Isaac Backus (Baptist minister and Founding Father) said: ". . . nothing is more evident, both in reason, and in the holy scriptures, than that religion is ever a matter between God and individuals" - Reverend Isaac Backus, The Debate on the Constitution - Part One (The Library of America, 1993), Page 931 (emphasis added).
In short, because there must be separation between church and state.
Howard Kirkland on October 25, 2010 @ 11:29 am asked: "How, then, can our government justify their treatment of enemy detainees? Many detainees have suffered lengthy detainment, torture, and other practices that would be illegal under the Bill of Rights."
The short answer to your question is hypocrisy. Consider slavery. Even as he was writing "all men are created equal", Jefferson was a slave owner, and continued to be one throughout his life. Similarly, the "rights" granted (or secured) by the Bill of Rights obviously didn't apply to slaves.
This is America's tragedy: she has not always lived up to her principles and ideals. But her glory is that she keeps trying, and gets closer all the time. Yes, the detainees have been mistreated. But many of those unconstitutional practices have been stopped by the Supreme Court.
(Of course, that's mainly because of the liberal justices the Tea Baggers would gladly remove from office. Consider that fact the next time you hear "Saint Sarah of Alaska" claim she believes in "limited government", and the Constitution.)
MICHAEL BRECHER on October 25, 2010 @ 11:53 am wrote: "I think the 9th amendment implies intent by the founders to view the constitution and the bill of rights as a living document."
Actually, the whole "is the Constitution dead or alive" argument is rather silly. As I stated in an earlier comment, parts of it were deliberately left vague and open ended. Then, too, trying to discern the "original intent" of the Founders in every specific situation is a fool's errand. (For example, Presidents Adams and Madison had vastly different ideas of what the First Amendment meant or required.)
However, the 9th Amendment is, and was intended as, a refutation of a theory conservatives like to sling around today: unless a "right" is expressly "enumerated" in the Constitution, it doesn't exist. The Ninth Amendment's rejection of that theory couldn't be more explicit: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."
Of course, deciding what those "retained" rights are is the big question.
Mark Slovensky on October 25, 2010 @ 11:57 amasked: "How does the principle of stare decisis stand with the idea of a living document. . . . "
Part One
Stare Decisis (Latin for "the decision stands") isn't part of the Constitution. It is a principle of judicial decision making which simply upholds the concept of "precedent": a legal principle applied today should also apply tomorrow to any similar situation.
Imagine if on Monday the rule was "stop on the red", but on Tuesday it became "stop on the green", etc. The chaos would be unimaginable, and people would soon lose all respect for the law. Hence stare decisis says the same rule applies throughout the week. (Actually, of course, traffic laws are creations of the Legislature, and stare decisis doesn't apply there. But I hope you get the point.)
The problem, of course, is what happens if an earlier court got the law wrong? Do we blindly follow stare decisis and continue the mistake? The classic example is segregation. The case of Plessy v. Ferguson ruled that treating blacks as second-class citizens constituted "equal protection of the law". (Just one of the ways that decision is perhaps the most dishonest in American history.) In Brown v. Board of Education the Supreme Court finally rejected that dishonesty. But note: the Court did not expressly overrule Plessy, instead it distinguished the case and ruled that "in the field of public education the doctrine of separate but equal has no place". In short, the Court carved out an exception rather than overturn the earlier case entirely. (Of course, over time the Brown exception has swallowed the Plessy rule.)
To be continued
Part Two
This, by the way, is a perfect example of treating the Constitution as a "living" and "evolving" document. Or, you could argue it's simply an example of correcting an earlier mistake. As a practical matter it makes no difference. Another reason why I consider the "is the Constitution living or dead" dispute to be silly.
Robin Borrelli on October 25, 2010 @ 12:05 pm wrote: "I would love to hear your guest's views on Brueswitz versus Wyeth".
This is a very complex subject, and I cannot say for sure that what I'm about to write is correct. However, you will note the Seventh Amendment applies to "suits at Common Law". This case involves a lawsuit under a statute, which means it is not "at Common Law".
A more relevant provision may be the Due Process clause, but that has been interpreted to allow alternative legal venues to the court system, provided basic standards of justice are followed. (I'm oversimplifying this considerably. But, for example, the Workers' Compensation Laws eliminate the ability to sue one's employer in court for on-the-job injuries. The compensation, and specialized "administrative courts" are considered an adequate substitute.) The same concept may apply here.
Elle E W on October 25, 2010 @ 2:15 pm wrote: "And from a practical point, a law reviewed using strict scrutiny is usually found invalid."
That may be an understatement. I believe there is no case where a law survived "strict scrutiny"!
Of the many fine programs you have hosted over the years, this, in my opinion, is the best. A wonderful argument for requiring a course in civics as a requirement for receiving a high school diploma. Keep up the good work.
A caller to the show, who spoke alarmingly about cocking his .45 whenever he heard talk of the Constitution, misquoted Aristotle's "Politics" as predicting the doom of democracy. In fact, as any of the panelists might have mentioned, Aristotle expressed particular concern about dictatorship, not democracy. His point was that any individual is so subject to strong emotion that putting him in charge of the state would be like putting a wild animal in charge. A similar argument could be made about the danger of using firearms to reinforce political beliefs.
It's a shame that once again, the show excludes a truly originalist interpretation of the Constitution from consideration. Judge Andrew Napolitano or Dr. Thomas Woods would have been good excellent guests.
Let me give my take: the Consitution is an extremely simply written document and we don't need highly educated judges to "interpret" it with mountains of legal nonsense. If we don't like what's in the Constitution, we should follow the amending process. Remember, the country used it to abolish slavery, allow for the income tax, and prohibit then allow the sale of alcohol. Today the courts have helped Congress make an end-around on our Constitutional protections by allowing the government to do virtually anything under the justification of the commerce clause. Lately, our lack of respect for the rule of law and due process has enabled our government to launch two unconstitutional wars, imprison innocent "enemy combatants" and even target American citizens for assassination without trial. We have allowed the government to escape the Constitutional chains - no thanks to statist enablers like Jeffrey Tobin.
Dear Zack F:
One of the annoying things about politicians (especially the Tea Bagging brand) is they tend to take refuge in empty slogans when discussing the Constitution. Your Comment is a prime example.
Since you don't specify how the "originalist" interpretation you favor would be applied to the Bill of Rights, it's impossible to judge the merits of what you say. But given the butchery Justice Scalia (champion of "originalism") made of the Second Amendment, I'm skeptical. (He essentially "rubbed out" the first half of the thing.)
Perhaps you should explain what you think the "originalist" interpretation of the commerce clause should be (though you might wait for an actual show that discusses that clause).
As for those "two unconstitutional wars" you mention (etc.), care to explain how Mr. Tobin was responsible for that?
Your crack about "statist enablers" indicates your own ideology: the mindless libertarianism of Ron Paul or Ayn Rand. You should remember that not only didn't the Constitution enact Herbert Spencer's Social Statics (the "bible" of Social Darwinism and celebration of pure laissez-faire) it also didn't enact Atlas Shrugged!
A ''Living Constitution'' is code for those in power interpreting the Constitution the way they see it, for example the Patriot Act has some parts which are clearly unconstitutional -- this is very dangerous for natural rights of the people.
Also why would the 23-enumerated powers (Art.1-Sect.8) have been listed if the Federal government was meant to have unlimited powers. For example education is not listed, so how can we have a Federal Dept. of Education. If the ''general welfare'' phrase was meant to include everything, then why have Art.1-Sect.8 and the 10th Amendment in the Constitution?
Diane, I look forward to each and every show on the Constitution.
I served in the military and stay politically active -- not because I ''love my country'' or my flag, but because I love my Constitution. I pledge allegiance to the Constitution of the United States of America, and to the principles for which it stands -- liberty and justice (as amended) for all.
Dear elkojohn:
Part One
No, that is a deliberate mischaracterization of what the term "Living Constitution" means. On the other hand, the whole "is the Constitution dead or alive" argument is silly.
For example, Justice Scalia (proponent of a "dead" Constitution) interpreted the words "A well regulated militia being necessary to the preservation of a free state" right out of the Second Amendment. As clear an example of "judicial activism" one could find, and this from a champion of "originalism"! Apparently he believes it was the "original intent" of the Founders to load the Constitution with words that don't mean a thing, and which can be utterly ignored.
To be continued
Part Two
As for your "enumerated powers" question, please note that the only place the term "enumerated" appears in the Constitution is in the Ninth Amendment, where it's purpose is plainly to demolish another phony argument "conservatives" love to make: that we only have such Constitutional rights as are specifically enumerated in the document. The Ninth Amendment plainly answers: No!
But, let me answer your question with a question of my own. Where does the Constitution give Congress the power to create an Air Force? Not in Article I, which only speaks of an army and a navy, and of land and naval forces. Nor in Article II, which states the President is Commander-in -Chief of the Army and Navy (and of the militia). But the words "Air Force" aren't to be found anywhere. So, why would the "enumerated powers" of Article I list an army and navy, if Congress is to have the unlimited power to create whatever military forces it wishes?
The answer, of course, is found in the very first paragraph of Article I, Section 8: Congress has the power "to lay and collect taxes, . . ., to . . . provide for the common defense . . . ." That's where the power to create an Air Force comes from, the power to spend money for the common defense.
But wait! What are those next three words I omitted from that quote? "and general welfare". That's right, Congress is authorized to 'tax and spend' for that too. So, if you want to deny Congress the power to spend money for the Dept. of Education, all you have to do is deny it the power to spend money on an Air Force, including ICBM's, spy satellites, and the global positioning system (none of which are "enumerated" in the Constitution either).