A Crash Course in Constitutional Law
I'm getting pretty damn sick of people discussing their preshus OMGRIGHTS without having any fucking clue what they are talking about. Apparantly the only lesson they learned about the constitution is that they are allowed to do whatever the hell they want regardless of its impact on other people or the ability of government to function. When they are informed otherwise, their "rights" are being trampled. No. No. And another no. That is not how the constitution works. It isn't.
I am nowhere near an expert on constitional law but I DO know a few things as a relatively informed citizen and as a person with a minor in criminal justice and a semester of constitutional law (taught by a devout Catholic, who btw had no problem with interpreting the establishment clause to mean he couldn't impose his religion on anyone else).
I've decided mostly that most people are just blissfully unaware of how our government works, even at a basic level, unless it somehow protrudes into their little bubble. This is usually not all that bothersome to me in particular, except I've been getting pretty worked up over several political things in the past months that seem to me especially laden with ignorance, even amongst the lawmakers deciding public policy. So I decided to write a little crash course in constitutional law, mostly to vent some of my frustration since nobody of any weight will actually read it, but also maybe to lend some credibility to my views on some political issues. Feel free to correct me on errors or discuss.
Here it is (in several parts):
We all remember a few basic things about our constitution. There is a Bill of Rights, that sacred cow that keeps us all “free”, and we usually recall that there is something called “Separation of Powers” between the branches of government. Beyond that, many of us have little understanding or knowledge of the document that has guided us since our nation was formed. Yes, we can repeat a few of the words from the text, but what are those without context or application into the real world? How many of us have actually read through a Supreme Court case instead of gleaning the highlights from a few lines in our textbooks?
In practical application, we quickly realize that all those rights given to us and the duties bestowed upon the different branches of government are not isolated bubbles but rather overlapping spheres where some balance must be struck between respecting the right of the state or the rights of individuals, and the right of government to protect its citizens and provide a stable society under which we can thrive and pursue those things listed in the preamble.
So let’s talk logistics here and set up some framework which we can use as a reference for further discussion on political issues related to the constitution in some way.
Part 1: The First Amendment
Part 2-? : Other Amendments (still writing)
I am nowhere near an expert on constitional law but I DO know a few things as a relatively informed citizen and as a person with a minor in criminal justice and a semester of constitutional law (taught by a devout Catholic, who btw had no problem with interpreting the establishment clause to mean he couldn't impose his religion on anyone else).
I've decided mostly that most people are just blissfully unaware of how our government works, even at a basic level, unless it somehow protrudes into their little bubble. This is usually not all that bothersome to me in particular, except I've been getting pretty worked up over several political things in the past months that seem to me especially laden with ignorance, even amongst the lawmakers deciding public policy. So I decided to write a little crash course in constitutional law, mostly to vent some of my frustration since nobody of any weight will actually read it, but also maybe to lend some credibility to my views on some political issues. Feel free to correct me on errors or discuss.
Here it is (in several parts):
We all remember a few basic things about our constitution. There is a Bill of Rights, that sacred cow that keeps us all “free”, and we usually recall that there is something called “Separation of Powers” between the branches of government. Beyond that, many of us have little understanding or knowledge of the document that has guided us since our nation was formed. Yes, we can repeat a few of the words from the text, but what are those without context or application into the real world? How many of us have actually read through a Supreme Court case instead of gleaning the highlights from a few lines in our textbooks?
In practical application, we quickly realize that all those rights given to us and the duties bestowed upon the different branches of government are not isolated bubbles but rather overlapping spheres where some balance must be struck between respecting the right of the state or the rights of individuals, and the right of government to protect its citizens and provide a stable society under which we can thrive and pursue those things listed in the preamble.
So let’s talk logistics here and set up some framework which we can use as a reference for further discussion on political issues related to the constitution in some way.
- It is not perfect and the framers never intended it to be static. They left us with ways to interpret its language and with ways to actually change it should it need changing. We shouldn’t go all willy-nilly with edits but it is no holy text. It was written by men who were limited by their own knowledge, experience, and place in history. They knew it and so should we. Just stop acting like because it is written there it is right for us for all time.
- Most of the constitution is concerned with separating the power of states from the power of the Federal government and making sure that the Federal government did not overrun the states nor favor certain ones. During the time that the Constitution was written, most people associated more strongly with their individual state rather than as citizens of one nation. We are the United States, indicating that we were an association of individual nations, not necessarily a single nation with practical borders like counties. People were afraid that Virginia would become more powerful than say, New York and try to seize control of the government.
Obviously times have changed. We are citizens of the United States first and residents of our states and cities second. This has altered the way we interpret the constitution, giving more leeway to federal powers and less emphasis on the states’ rights. Federal powers have expanded appreciably since the time of our founding and most of us are just fine with that, because we are first and foremost, United States Citizens. Let me be clear: saying that federal government has expanded is NOT the same as saying that the government has more control of YOU as an individual. Remember that most of the constitution is concerned not with the rights of individuals, but with the rights of states. States just have less sway than they used to for the most part. Lots of us will live in many states and most of us will visit many more. It is practical for our laws to be uniform across state lines.
SIDENOTE: The most widely used method the Federal Government employs to get states to comply with Federal regulations is by withholding federal dollars from state run programs. In many many cases (Medicaid, education, energy policy, highways and roads, etc), a state has the option to refuse federal dollars in order to exercise its right NOT to comply with what the federal government wants. This tactic is not illegal since states can opt out but it is pretty effective since a significant portion of state budgets are federal dollars these days. Similarly, non-governmental institutions may choose to opt-out of federal or state funds or a tax exempt status in order to duck having to comply with the requirements that the government sets. For example, Bob Jones University did not become desegregated until 1975 and did not lift its punitive policy against interracial dating until the year 2000, having fought off several attempts by government to reverse these policies. In Bob Jones University v. United States(1983), the court ruled that the government could remove the tax exempt status of the university (or other institution) whose practices go against compelling public policy.
This is an important distinction to make because a lot of what people assume are states’ rights issues are actually simply funding issues, so don’t confuse the two. Regardless of how we choose to feel about dollars which come with strings attached, states still have the choice not to grab the money. - Ok, let’s move on to individual rights. This is a complicated topic and seems to be the one most people become confused about during political discussion so we’ll need to get a little more detailed. The Bill of Rights (the first 10 amendments to the constitution) does lay out some pretty specific rights that were intended to protect individuals from Big Brother. Here’s the big secret though : The rights granted to you by the US Constitution are not unrestricted rights. Your rights end exactly at the spot where the rights of others and the right of the government to perform its basic functions begin. WHAT, you exclaim? Those rights are UNALIENABLE! Just hang with me, I’m not crazy.
First of all, don’t confuse the Bill of Rights with that earlier document, the Declaration of Independence. The Declaration is the place where we exclaimed that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” This is arguably the most important sentence in our Nation’s history and I certainly don’t discount its weight in the subsequent formation of our country’s constitution. But they aren’t the same thing. The word “unalienable” does not appear in the constitution.
Remember what the colonists were thinking when that document was sent. It wasn’t so much that they believed that the government couldn’t collect taxes or quarter their troops and all those other things that we learned in history class, it was that they didn’t have ANY say about it. “No taxation without representation!” they cried indignantly. The next time you start complaining about your rights being trampled, recall that the people making the laws were elected by you and your neighbors. The colonists had no such luxury. They just wanted the same rights that other people had over in England. Even if it was under the King (Interestingly, some colonists were in favor of making George Washington the King of the United States).
Now that we have established that nowhere does it say that your rights are “unalienable” in the document that set up our government, we can break down some of our most sacred rights and talk about the ways in which these rights are limited.
Part 1: The First Amendment
Part 2-? : Other Amendments (still writing)