Bibliography Abrams v. United States, 1919, Holding Gov't May Criminalize Anti-American Speech [online]. 'Lectric Law Library, accessed 28 March 2007; available from http://www.lectlaw.com/files/case19.htm. Benedict, Michael Les. The Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition. New York, New York: Houghton Mifflin Co., 2006. Curry, Lynne, Barry Riccio, and Christopher Waldrep. The U.S. Constitution and Nation, Second Edition. New York: Forbes, 1998. Hamilton and the U.S. Constitution [on-line]. PBS, 2000, accessed 27 March 2007; available from http://www.pbs.org/wgbh/amex/duel/sfeature/hamiltonusconstituion.html. Human Rights Campaign. Statewide Marriage Laws [on-line]. Human Rights Campaign, 2006, accessed 23 March 2007; available from http://www.hrc.org/template.cfm? Section=Your_Community&Template=/ContentManagement/ContentDisplay.cfm&Cont entid=19449. Illinois Fact Sheet (Census 2000) [on-line]. US Census Bureau, 2001, accessed 26 March 2007; available from http://factfinder.census.gov; Internet. Lawrence v. Texas [on-line]. Ithica, NY: Cornell Law School, accessed 13 March 2007; available from http://www.law.cornell.edu/supct/html/02-102.zs.html; Internet. Lazarus, Emma. The New Colossus [on-line]. New York, New York: National Park Service, 2000; accessed 27 March 2007; available at http://www.cr.nps.gov/history/online_books/hh/11/hh11a.htm; Internet. Office of the General Counsel. Defense of Marriage Act. Washington, D.C.: General Accounting Office, 1997. Seigel, Neil S. Beware the Anti-Freedom Amendment. The News & Observer, 06 June 2006. Strasser, Mark Phillip. On Same-Sex Marriage, Civil Unions, and the Rule of Law: Constitutional Interpretation at the Crossroads. Westport, Connecticut: PraegerPublishers, 2002. U.S. Code: Title 28, 1738C. Certain acts, records, and proceedings and the effect thereof [on-line]. Ithica, NY: Cornell Law School, accessed 25 March 2007; available at http:// www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001738---c000-.html;
Internet. U.S. Congress 110. H. J. RES. 12.: Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States. Washington, D.C.: U.S. Congress 110, 11 January 2007. U.S. Congress 110. H. J. RES. 19.: Proposing an amendment to the Constitution of the United States to establish English as the official language of the United States. Washington, D.C.: U.S. Congress 110, 18 January 2007. U.S. Congress 110. H. J. RES. 22.: Proposing an amendment to the Constitution of the United States relating to marriage. Washington, D.C.: U.S. Congress 110, 6 February 2007.
Amending American Liberties More than most American's realize, their lives are moderated by an aged document known as the United States Constitution. Whether fortunate or not, many Americans are becoming more and more aware of this fact, as several amendments to the Constitution are progressing through the proper channels amendments that are the first of their kind. Through this point in history, most of the twenty seven existing amendments have expanded the freedoms afforded to Americans and none of them have limited freedoms. i Currently Congress has several amendments on its docket which would limit the freedoms and liberties granted to Americans. Existing Amendments When the United States Constitution was first ratified in 1789, it was considered by many to be incomplete or very limited. In fact, the first two political parties in American history were formed as a result. ii Federalists, the party who aligned themselves with Alexander Hamilton, largely supported the Constitution as it was released, but Anti-Federalists thought that the document gave too much power to the central government and wanted to amend it to limit federal powers and especially ensure public liberties. iii As a result of the case made by Anti-Federalists, the first United States Congress drafted and presented for ratification what is known as the Bill of Rights: the first ten amendments to the Constitution. iv The first amendment prevents the US Congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. v The second amendment ensures that the people (though arguably only those part of a well-
regulated militia) have the right to keep and bear arms. vi citizen's households from intruding American soldiers. vii The third amendment protects The fourth amendment regards search and seizure; protecting citizens from unreasonable search and seizures without probable cause and a specific goal. viii The fifth amendment grants a defendant rights in the court of law: they cannot be forced to be a witness in their own trial, nor can they be tried twice for the same crime. Additionally, private property [shall not] be taken for public use without just compensation. ix The sixth amendment ensures that defendants are given quick public trials before an impartial jury of their peers. x The seventh amendment preserves the right of citizens to a fair jury trial. xi The eighth amendment serves to protect defendants from excessive bail or fines and from cruel and unusual punishment. xii The ninth amendment and tenth amendments state that all powers not delegated to the federal government are reserved to the states or to the people. xiii There have been many other amendments that also expanded the rights and privileges afforded to Americans, especially: The thirteenth amendment, which prohibits servitude anywhere under American control; xiv The fourteenth amendment, which defines citizenship more broadly than previously to include Freedmen over the age of twenty-one; xv The fifteenth and nineteenth amendments, which ensure every American has the right to vote, regardless of race or gender (respectively); xvi and the twenty-third, twenty-fourth, and twenty-sixth amendments, which ensure every American's right to vote is not inhibited by such factors as locale, tax history, or age (changing the voting age from twenty-one to eighteen). xvii At this point in history, each amendment allows for further freedoms and none limit freedom. The only exception to this was the only amendment to limit freedom, as well as the only amendment to have been repealed: the short-lived eighteenth amendment, which prohibited the sale and consumption of intoxicating liquors but was repealed by the twenty-
first amendment. xviii While all of the surviving amendments expand freedoms, this may soon change. Congress currently has a number of proposed amendments on the agenda which would greatly limit the freedoms and liberties granted to United States citizens. These include an amendment to declare English the national language, xix an amendment that prohibits the desecration of the American flag, xx and an amendment that defines legal marriage as a union between a man and a woman. xxi Making English the Official Language Some Americans argue that an amendment to the United States Constitution that officially declares English to be the language of the Unites States is no big deal; because it is already the primary language by far, such an amendment would not noticeably impact society. Supporters cite a variety of reasons, most of which relate back to a negative view of immigration. Some Americans see immigrants only as job competition or even a nuisance to communicate with. An alternate point of view is that the amendment is wholly unnecessary. Making English the official language would not affect the majority of American society but it would serve to hurt the non-english speaking minorities. Currently, most manufacturers that distribute in the United States publish important information including warnings and safety information, instructions, and ingredients in three languages: English, Spanish, and/or French. Such an amendment would give these manufacturers a very compelling reason to utilize that package space for marketing purposes and could lead to greater risk and injury when consumers cannot read safety warnings.
If it is any indication of who could be affected by such an amendment, according to the 2000 census a surprising 17.9% of Illinoisans do not speak English at home. xxii These are mostly immigrants who have either not developed a full understanding of the complexities of the English language or who simply feel more comfortable speaking their native language at home. Either way, it would be unfair for any person to be hurt simply to make our nation's current language preferences official. The inscription beneath the statue of liberty, which welcomed immigrants to Ellis Island for nearly a hundred years, begins Give me your tired, your poor / your huddled masses yearning to breathe free. xxiii What kind of opposing message would such an amendment send? Penalties for Flag Burning Another amendment to the United States Constitution that would limit American's rights is one that would create penalties for flag burning. xxiv While this amendment does not create as much controversy as a national language or redefining marriage, and has not been discussed too frequently in the nation's news media, the amendment certainly serves to limit freedoms instead of expanding them. Supporters of this amendment see flag burning as a sign of disrespect and an insult to not only the nation but the those who have fought and died for it. Flag burning is a concept with legal precedent, in this case the 1988 case of Texas v. Johnson. xxv Texas v. Johnson determined that flag burning is protected by the first amendment, which protects the freedoms of speech and expression. While the word expression is not part of the first amendment, legal precedents have expanded it to include any words or acts that express one's feelings or beliefs. Americans' first amendment rights are considered (also by legal precedent) to extend as far as they do not infringe upon
another's, and burning a flag can hardly infringe on another person's rights. Persons who support this amendment often cite wartime legislation that provides penalties for actions that oppose government policy. An example is the 1919 case of Abrams v. United States, where the defendants were convicted under the 1917 Espionage Act and the 1918 Sedition Act for publishing literature which urged Capitalistic (American) workers to stop working to produce arms and ammunition which may be used in the war. xxvi Regardless of what has already been ruled, of course, an amendment would create a new Constitutional precedent one that seems unnecessary. Flag burning is not a strong enough issue to validate a Constitutional amendment to restrict the freedom and liberties of Americans, because while some may find flag burning offensive, that is exactly how flag burning is used: to evoke a strong response without harming another person. Redefining Marriage The last and best example of an amendment that would limit American freedom instead of protecting it is the amendment to define marriage that has been proposed by President George W. Bush and has been backed by many. xxvii Supporters of this amendment tend to be conservative people of faith or individuals who are simply homophobic who consider marriage to be a sacred institution that can be tainted by inclusion of same-sex couples. No matter what the reason to back this ideology, such an amendment could very negatively affect individuals who simply wish for the freedom to choose who they love. The American Declaration of Independence includes the much cited line 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. xxviii Due to the effect of the fifteenth and nineteenth amendments, every single American is
equal in the eyes of the law and has had the ability to pursue happiness largely unaffected by governmental intervention. xxix A new amendment that would redefine marriage as has been proposed could only serve to disrupt the lives of those Americans who choose to engage in a homosexual lifestyle. The amendment, in its most recent revision on February 6, 2007 reads as follows: Section 1. Marriage in the United States shall consist only of a legal union of one man and one woman. Section 2. No court of the United States or of any State shall have jurisdiction to determine whether this Constitution or the constitution of any State requires that the legal incidents of marriage be conferred upon any union other than a legal union between one man and one woman. Section 3. No state shall be required to give effect to any public act, record, or judicial proceeding of any other State concerning a union between persons of the same sex that is treated as a marriage, or as having the legal incidents of marriage, under the laws of such other State. xxx The language of the amendment leaves little (if any) room for rights to be granted to samesex couples by any courts or legislation. If this amendment were to pass in any form, but especially in this form, same-sex couples could still live their lives together, but could not receive any of the benefits of being legally married. xxxi The following benefits, as laid out by the U.S. General Accounting Office, are just a few of the one thousand and forty-nine benefits the federal government provides and would be inaccessible to same-sex couples: assumption of spouse's pension, immigration, insurance breaks, medical decisions on behalf of partner, sick leave to care for partner, social security survival benefits, tax breaks, veteran's discounts, and visitation of partner in hospital or prison. xxxii The one thousand and forty-nine benefits provided by the federal government does not even include the additional benefits provided by States or even businesses such as the neighborhood dry cleaner. Of course, while an amendment to the United States Constitution redefining marriage could very negatively affect Americans, it is important to note that an amendment does not
have to read as it has been proposed. As of November 2006, only a single State (Massachusetts) issued marriage licenses to same-sex couples and only four states (New Jersey, New Mexico, New York, Rhode Island, as well as Washington, D.C.) have no explicit provision prohibiting marriages between individuals of the same sex. xxxiii There is always room for improvement by creating an amendment protecting the right of same-sex couples to marry or requiring all States to acknowledge same-sex marriages that occur in other States. Unfortunately, while precedents have supported continued protection for liberty when it comes to speaking non-english languages and flag burning, the precedents in this case do not show as much hope. In 1986, Bowers v. Hardwick upheld sodomy, or homosexual sex, as illegal despite rulings at the same time legalizing birth control and abortion. xxxiv In 1992, Colorado voters passed a constitutional amendment prohibiting laws that protect homosexuals from discrimination. xxxv The 1996 Defense of Marriage Act signed into law by President William Clinton established that no State had to recognize same-sex marriages performed by other States and the federal government would not recognize the same where it had jurisdiction, even in States where same-sex marriages are legal. xxxvi Surprisingly enough, President Clinton also fought on behalf of homosexuals in the military in 1994 when he attempted to end dishonorable discharges of homosexuals due only to their sexual preferences (though he only succeeded in instituting a don't ask, don't tell policy). xxxvii Several years later, homosexuals were given a few breaks in that both Bowers v. Hardwick and the Colorado Constitutional amendment were reversed. xxxviii The latest victory for gay rights activists is in the 2003 case of Lawrence v. Texas, which ruled anti-sodomy laws unconstitutional. Justice Anthony M. Kennedy wrote for the majority, when homosexual conduct is made criminal by the law of the state, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the
public and in the private spheres. xxxix Throughout history, and especially during the progressive early twentieth century, conservatives have always sought moral reform. xl This tendency is evident today, as it is the conservatives who are pushing hardest for legislation and amendments such as marriage reform. xli In the instance of marriage reform, it is odd that conservatives are pushing for such a change at the national level. xlii Conservatives have traditionally been advocates for States' rights and States have traditionally regulated marriage within their own borders. xliii How could such amendments effect our nation's image? Its people? Whether they are a result of good intentions or not, amendments that place limitations on the American people's independence of action, thought, and lifestyle should be regarded with a wary eye. When the United States Constitution was written, its Article V allowed for amendments, which allow the "living document" to be modified to fit the times and goals of the people of the United States. However, one can argue that our founding fathers intended for amendments to expand freedoms, as the first ten protected citizens from a potentially tyrannical government, not limit their freedoms or rights. Changing this precedent is a dangerous proposition, as two amendments in consideration would very effectively legislate discrimination on the bases of native language and sexual orientation. If these amendments are allowed to pass, our nation would have reverted over fifty years prior to the Civil Rights movement of the 1960s and the corresponding legislation. We should learn from our past and think carefully before amending our Constitution to narrow its promises of liberty and equality. This is not to say we should never amend the Constitution to limit freedom the past is not an infallible counselor to the present. But we
should make sure that a need for such an amendment exists before we pursue a path with a dubious history [and potentially dubious future]. xliv
i Beware the Anti-Freedom Amendment, (The News & Observer, 06 June 2006),1. ii Hamilton and the U.S. Constitution [on-line] (Boston, MA: PBS, 2000, accessed 27 March 2007); available from http://www.pbs.org/wgbh/amex/duel/sfeature/hamiltonusconstituion.html; Internet. iii Hamilton and the U.S. Constitution iv Hamilton and the U.S. Constitution v Lynne Curry, Barry Riccio, and Christopher Waldrep. The U.S. Constitution and Nation, Second Edition. (New York: Forbes, 1998), 98. vi The U.S. Constitution and Nation, Second Edition, 98. vii The U.S. Constitution and Nation, Second Edition, 98. viiithe U.S. Constitution and Nation, Second Edition, 98. ix The U.S. Constitution and Nation, Second Edition, 99. x The U.S. Constitution and Nation, Second Edition, 99. xi The U.S. Constitution and Nation, Second Edition, 99. xii The U.S. Constitution and Nation, Second Edition, 99. xiiithe U.S. Constitution and Nation, Second Edition, 99. xiv The U.S. Constitution and Nation, Second Edition, 285. xv The U.S. Constitution and Nation, Second Edition, 315. xvi The U.S. Constitution and Nation, Second Edition, 316, 399. xviithe U.S. Constitution and Nation, Second Edition, 471-472. xviiithe U.S. Constitution and Nation, Second Edition, 399. xix U.S. Congress 110, H. J. RES. 19.: Proposing an amendment to the Constitution of the United States to establish English as the official language of the United States. (Washington, D.C.: U.S. Congress 110, 2007), 1. xx U.S. Congress 110, H. J. RES. 12.: Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States. (Washington, D.C.: U.S. Congress 110, 2007), 1. xxi U.S. Congress 110, H. J. RES. 22.: Proposing an amendment to the Constitution of the United States relating to marriage. (Washington, D.C.: U.S. Congress 110, 2007), 1. xxiiillinois Fact Sheet (Census 2000) [on-line] (US Census Bureau, 2001, accessed 26 March 2007); available from http://factfinder.census.gov; Internet. xxiiilazarus, Emma, The New Colossus [on-line], (New York, New York: National Park Service, 2000; accessed 27 March 2007); available at http://www.cr.nps.gov/history/online_books/hh/11/hh11a.htm; Internet. xxivh. J. RES. 12.: Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States., 1. xxvthe U.S. Constitution and Nation, Second Edition, 495. xxvithe U.S. Constitution and Nation, Second Edition, 389. xxviih. J. RES. 22.: Proposing an amendment to the Constitution of the United States relating to marriage., 1. xxviiithe U.S. Constitution and Nation, Second Edition, 59. xxixbeware the Anti-Freedom Amendment, 2. xxxh. J. RES. 22.: Proposing an amendment to the Constitution of the United States relating to marriage., 1. xxxioffice of the General Counsel, Defense of Marriage Act, (Washington, D.C.: General Accounting Office, 1997), 1. xxxiidefense of Marriage Act, 18-75. xxxiiihuman Rights Campaign. Statewide Marriage Laws [on-line], (Human Rights Campaign, 2006, accessed 23 March 2007); available from http://www.hrc.org/template.cfm? Section=Your_Community&Template=/ContentManagement/ContentDisplay.cfm&ContentID=19449. xxxivmichael Les Benedict. The Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition. (New York, New York: Houghton Mifflin Co., 2006), 376. xxxvthe Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition, 349. xxxviu.s. Code: Title 28, 1738C. Certain acts, records, and proceedings and the effect thereof [on-line]. (Ithica, NY: Cornell Law School, accessed 25 March 2007); available at http://www.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001738---c000-.html; Internet. xxxviithe Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition, 382. xxxviiithe Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition, 409. xxxixlawrence v. Texas [on-line] (Ithica, NY: Cornell Law School, accessed 13 March 2007); available from http://www.law.cornell.edu/supct/html/02-102.zs.html; Internet. xl The Blessings of Liberty: A Concise History of the Constitution of the United States, Second Edition, 235. xli Beware the Anti-Freedom Amendment, 2. xliibeware the Anti-Freedom Amendment, 2.
xliiibeware the Anti-Freedom Amendment, 2. xlivbeware the Anti-Freedom Amendment,1-2.