Questions and Answers About the Constitution

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2 Questions and Answers About the Constitution Legal scholar Jethro K. Lieberman, author of The Evolving Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning (1992), provides some fundamental background to the United States legal system in answering a series of questions about the U.S. Constitution. Lieberman discusses the constitutional issues involved in the internment of Japanese Americans during World War II ( ) and considers how the framers of the Constitution expected their document to be interpreted. Questions and Answers About the Constitution Q: To what extent did the American constitution benefit the elites and upper class citizens in the society? A: You have asked a very broad and very general question. In many ways the Constitution, as it was originally drafted, was a constitution for everyone. For example, by barring the states or federal government from enacting ex post facto laws, the framers were not assuming that one particular class of people would benefit more than another. But in at least two particulars, it's fair to say that the framers had elites in mind. First, the Constitution did not abolish slavery, and it contained numerous provisions that enshrined slavery as a legalized practice. Second, the bankruptcy clause of Article I was written to prevent the states from giving debt relief to the debtor class and poor citizens, and to benefit the wealthier citizens whose ability to collect on the amounts that debtors owed to them would otherwise be put at risk.

3 Q: Did the framers of the Constitution of the United States expect its interpretation to change over the years? A: The framers were undoubtedly aware that any legal text, especially the Constitution, would be subject to interpretation that might change over the years or according to circumstances. Whether they expected later interpreters to stick as closely as possible to the intended meaning of the words and phrases they used is open to question. It does seem clear that the framers did not collectively expect or require later interpreters to do so, for the Constitution itself is remarkably silent about how it should be interpreted. Only in the Ninth Amendment is there any direction about interpretation: The courts are admonished not to deny rights of the people simply because certain rights are not enumerated. Many of the framers stated in ratification debates their understanding that interpretation would always be necessary and that interpretations might change. However they differed over whether interpreters should look to the meaning of the framers (or the understanding of that meaning by those who ratified the Constitution) or to the outward signs of that meaning, namely, the words of the Constitution themselves. Q: How does the First Amendment make the United States unique? A: The First Amendment, as interpreted by the courts for more than 80 years, makes the United States unique among the world s nations by barring governments at all levels (federal, state, and municipal) from dictating what people must profess, how they may worship, with whom they may associate, and what they may ask of their officials. Many countries, of course, have a tradition of free speech, worship, and association, but in none is the right of the individual upheld as much as in the United States. For example, the U.S. Supreme Court has held that a government official or a public figure may not recover a judgment in a libel suit unless the person making the statement knowingly uttered a

4 falsehood or recklessly disregarded the likelihood that it was false. In no other country are newspapers, other media, and even individuals protected to this extent. Q: Is regulation of racially hateful statements and publications consistent with the First Amendment guarantee of free speech? A: For the most part, the Supreme Court has concluded that no matter how repulsive racially hateful statements and publications may be, regulation of such speech is not consistent with the First Amendment. General claims about the superiority of one race and professions of beliefs about the characteristics of individuals of one race or another are political speech, protected by the First Amendment. Despite many attempts by states and municipalities to regulate such speech, the courts have generally disapproved. A limited exception is for fighting words : States and local governments may regulate hate-filled statements aimed at a particular person and reasonably calculated to incite a breach of the peace. Q: Did the relocation of Japanese Americans during World War II violate the Constitution of the United States? A: To its shame, the Supreme Court in 1943 and 1944 upheld both a curfew and the relocation and internment of more than 120,000 Japanese Americans, 70,000 of them citizens of the United States. Although the Court announced that regulations that turn on race must be subjected to the most rigid scrutiny, the Court upheld the U.S. military s claim that it feared potential sabotage. But there never was proof that any of the people relocated had in fact committed sabotage or were likely to do so, and in 1944 the Court also ordered one particular Japanese American to be released because the government conceded she was a loyal citizen. Although the curfew and relocation decisions have never been formally overruled, it seems clear from scores of cases decided later in which the Court has invalidated laws and regulations that

5 turn on color, race, and national origins that the orders would not be held constitutional today. In 1988 the United States Congress formally apologized and offered a $20,000 payment to each surviving internee. Q: Are lawyers really required to defend clients they know to be guilty? A: Lawyers are generally not required to defend clients whom they know to be guilty, although lawyers may legally do so if they wish. That is the meaning of the right to counsel: All defendants, even the guilty, are entitled to legal representation. This right is older than the Constitution. The reason for this right is straightforward: The government must prove the defendant guilty beyond a reasonable doubt, and the defendant s lawyer helps ensure that the government will live up to its obligation. An individual lawyer who first meets a potential client and discovers that the client is guilty may decline to represent the client. However, once the trial begins, the lawyer may not back out on finding that the client is probably guilty. The lawyer s obligation, except in rare circumstances, is to finish representing the client until the jury decides. The lawyer is not allowed to help the defendant commit perjury or to put witnesses on the stand knowing that they will be committing perjury. Q: If the O. J. Simpson trial was the trial of the century, why didn't it go to the Supreme Court? A: The Simpson verdict could not be appealed to the Supreme Court for the reason that Simpson was acquitted. It is a fundamental principle of the Constitution, dictated by the Double Jeopardy Clause of the Fifth Amendment, that a person acquitted of criminal charges by a judge or jury must go free, and that the government may not seek to have the verdict set aside, even if it thinks that legal errors were committed during the trial.

6 Q: How can the Supreme Court allow regulation of obscenity and pornography when the First Amendment protects freedom of expression? A: In 1957 the Supreme Court ruled for the first time that the First Amendment does not protect obscene and pornographic writing as freedom speech because historically the meaning of freedom of speech simply did not include such categories of expression. The real difficulty is not whether the First Amendment permits regulation, or even outright censorship, of the pornographic and obscene, but rather how to define these types of expression. On that question, the debate has been long and loud, and it continues still. Q: Are nonstandard belief systems, such as atheism and secular humanism, covered under the U.S. Constitution and the Bill of Rights? To my knowledge, no court has ever established that these unconventional beliefs are religions, per se. For example, if I wanted to deduct money from my taxes as a contribution to a society of secular humanists, would that be the same as a donation to a church? Would a building that housed an atheist organization be tax exempt, like a church? Where is the line drawn for religions, under the law? A: Several issues are lurking in the question as you posed it. (1) The Supreme Court has never specifically ruled on whether atheism and secular humanism are religions. (2) No clear line has ever been drawn constitutionally between religious organizations and ideas and nonreligious ones. The Supreme Court has said that for certain purposes (like draft exemption), a belief in a supreme being is not a necessary element of a belief system that would qualify the prospective draftee for exemption. (3) Religion has nothing to do with whether or not a contribution to an organization espousing such beliefs would qualify for a tax deduction. Tax-deductible contributions can be made to lots

7 of nonreligious charitable organizations; if a secular humanist organization were a registered charitable organization, then anyone could make a tax-deductible contribution to it. Nothing in the Constitution prevents the Internal Revenue Service (IRS) from granting tax-exempt status to an organization espousing a certain belief. Indeed, the Constitution would probably prevent the IRS from denying tax-exempt status to an organization that is otherwise qualified to be designated as such, simply because of the beliefs espoused. Q: Why isn't it legal for public schools to teach creationism as well as, or instead of, evolution? A: The Establishment Clause of the First Amendment bars public institutions from promoting or endorsing particular religious ideas. As generally understood, creationism is a claim that the universe was created and life began in the manner spelled out in the Book of Genesis in the Old Testament of the Bible. By advancing this proposition as true or worthy of belief, a public school is thus promoting a particular religious idea. Biological evolution, on the other hand, is a scientific explanation of the origin of species and is not covered by the Establishment Clause. Q: Does the Second Amendment guarantee the right to own a gun? A: It depends on whom you ask, because scholars disagree about what right is protected. The Second Amendment states that the right of the people to keep and bear arms, shall not be infringed. If that were all it said, the debate over the constitutional right to own guns would not be as intense as it is. The Second Amendment couples the right to bear arms with A well regulated Militia, being necessary to the security of a free state. The answer thus seems to turn on whether the right belongs to each individual, for whatever purpose to which the individual personally wishes to put a privately owned gun (hunting, self-protection, target practice), or only to individuals insofar as they will be called up into a militia of the state for protection against external enemies or rebellion. The Supreme Court has never definitively ruled on this issue, but

8 it has upheld certain regulations on gun ownership. In United States v. Miller (1939), one of the few Supreme Court cases to consider the meaning of the Second Amendment, the Court upheld a federal law requiring registration of sawed-off shotguns and noted that sawed-off shotguns could not be considered part of the weaponry needed by a militia. Even if there is a personal right to own guns, the lower courts have suggested in several cases that that right is secure only from infringement by the federal government, and that the states remain free to regulate gun possession and use. However, that issue, too, remains far from settled and continues to be hotly debated. Q: How does the United States Supreme Court decide which cases to hear? A. In all but a narrow category of cases, the Supreme Court has discretion to decide whether to hear a case on appeal from a lower court. The rule that the Court has generally followed is known as the Rule of Four. If four justices vote to review a case, the Court will grant certiorari that is, agree to hear the appeal. Generally speaking, the Court will review a case when it poses significant constitutional or legal questions, is of overriding political importance, or will permit the Court to resolve an issue that has received conflicting answers in the lower courts.