We the people
Reflecting on the meaning of the Constitution
"The people make the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.” John Marshall, Chief Justice of The Supreme Court.
Kevin Schoonveld, Co-President of the Roosevelt Institute and a Posse Scholar, takes on the question of whether or not the Founders ever intended the Constitution to be interpreted in the first place:
There are various methods of constitutional interpretation, which undoubtedly lead to a surfeit of differing views regarding the true meaning of the constitution. Justice Scalia, a staunch textualist, would advise the court to utilize the most straightforward meaning of the text, giving little regard to the intent of the founders. Other justices will tell you that the true meaning of the constitution lies solely in the original intent of the founding fathers, which leads one to ask, what exactly was the original intent of the founders? The founders themselves were ideologically opposed in many respects, and did not provide one coherent ideological framework that could be carried through the ages. In fact, it is the same political bargaining that Americans condemn Washington for today, which was used to ensure that the constitution would be ratified. These back alley deals included the addition of the Bill of Rights and a promise made to Massachusetts Governor John Hancock that he would have a run at the presidency given the right circumstances. These statements are not intended to detract from the dignity or character of our constitution. On the contrary, the founders were sensible enough to understand (based off personal experience) that the constitution would require a great deal of interpretation and revision if it were to survive America’s cultural revolutions and inevitable progression. John Marshall, possibly the most notable Supreme Court Chief Justice in our history, stated that “the people make the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.” While this view of the Constitution may be less sanctified, it provides an important connection between the founders and the generations to come. This connection not only sheds light on the shared values of Americans, it also reveals our rights as citizens to disagree and interpret those values and ideals differently. Although this viewpoint is less romantic, it may be the most essential and timeless lesson the founders left us with.
Assistant Professor of Political Science Marcus Allen responds to recent challenges to the citizenship clause of the Fourteenth Amendment:
The 14th Amendment’s citizenship clause reads as follows: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” As many of us know, many conservative activists have questioned the validity of the 14th Amendment’s citizenship clause claiming that it does not apply to the children of illegal immigrants born in the United States. Their claim rests on faulty readings of the historic rationale for extending rights to blacks after the Civil War. While it is true the motive for writing the citizenship and due process clause had this historic oppression as its immediate referent, it does not mean the 14th Amendment’s application of citizenship rights is limited or bound to that specific group. In fact, the language of the 14th Amendment reads very clearly: Jus soli (citizenship by birthplace) has constitutional protection. Therefore, a call for limiting citizenship by Jus sanguine (citizenship by bloodline) is inconsistent with the tenets of American principles and the United States Constitution.
Assistant Professor of Political Science Jenna Lukasik considers the ever-evolving and complex issue of the separation between church and state, as expressed in the Establishment Clause of the First Amendment:
The First Amendment states, “Congress shall make no law respecting an establishment of religion.” While on the surface this clause is clearly written, the Supreme Court has really struggled to define the “wall of separation” between church and state that Thomas Jefferson so famously articulated. Would it be a solid wall prohibiting all forms of government support or aid for religion? Or would it be a more permeable wall allowing for nondiscriminatory aid and support? The Supreme Court has wrestled so much in defining this “wall of separation” that a more apt metaphor might be a welcome mat placed under a “no trespassing” sign. Though the Court has tried to clarify a constitutionally permissible relationship between church and state through use of the Lemon Test, this area of law seems to be in constant flux. The Lemon Test states that in order to survive an Establishment Clause challenge government aid to religion must have a secular purpose, a primary effect that neither advances nor inhibits religion, and must not foster excessive entanglement. However, this tripartite test has done little to clarify this area of law, as it has led to disparate outcomes, has been challenged by several competing tests, and has been intermittently ignored by a majority of the justices. The chaotic nature of Establishment case law is best embodied in the fight over religious displays on public land in which the Court has labored over lengthy and fractured opinions such as the one explaining why a menorah along with a Christmas tree is a constitutionally acceptable display of religion while a nativity scene alone is not.
The seemingly never-ending redefinition of the Establishment Clause by the Supreme Court has most recently come to the forefront in the case involving the Mojave Desert Cross. In a confusing case made more complicated by actions of Congress, the Supreme Court found themselves divided over the question of whether the cross can have a secular purpose, or as Stanley Fish of the New York Times put it “When is a cross a cross?” In a 5-4 decision containing six separate opinions, the majority decided that the cross had a secular purpose as a veterans’ memorial. Though a closely divided decision, this case has seemed to reignite those in favor of less separation between church and state. In fact, the Supreme Court will likely have a chance to reevaluate a long running dispute involving the display of the Ten Commandments in a public courthouse, and will potentially take the rare step of reversing a precedent only a few years old. Supreme Court expert Linda Greenhouse explains the case in a very simple yet accurate way: “Same commandments, new court.” Hence it appears that the Roberts Court has removed the “no trespassing” sign from over the welcome mat and has begun to invite more Establishment clauses challenges. However, if the past is any indication of the future, we shouldn’t expect the changes to be permanent. In Establishment case law there seems to be only one certainty, as the Court changes the relationship between church and state changes as well.
Associate Professor of Philosophy Stephen Mathis tries to navigate the controversy and confusion surrounding the Second Amendment:
The Second Amendment reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” A popular interpretation that has received more play with the rise of the Tea Party is the view that the Second Amendment guarantees citizens the means to rise up against the government should it become oppressive, namely by guaranteeing them the right to own firearms. Despite the current popularity of this view, as an example of constitutional interpretation, it’s ridiculous. First of all, it makes no sense for a nation’s founding document to guarantee citizens the right to overthrow the government that document helps establish, since revolution necessarily entails rejection of the whole governmental apparatus in the first place. Basically, the right of revolution cannot be guaranteed in the Constitution, because we can engage in revolution only when we are willing to throw away the Constitution and start from scratch. Second, the original purpose of the amendment seemed to be to provide each of the various states with some defense against the federal government coming in and taking over a particular state by force (either that, or provide for a decentralized, militia-based national defense instead of having a standing army and navy—though it’s important to note that the Federalist papers argued in favor of a standing navy, at least, and in favor of arming the states against federal intervention). The problem with carrying this likely original purpose into the present day is that since the Founding, we’ve had a Civil War in which the federal government attacked and subdued states that tried to secede, and we’ve seen a massive shift in power away from the states and to the federal government (via the 14th Amendment, the New Deal, and the increase in the power of the Presidency since 9/11). In other words, we Americans have radically changed our constitutional scheme since the Founding, especially as regards the balance of power between the federal and state governments, and in light of those changes, the original purpose of the Amendment has ceased to be relevant. Interestingly, no one seems to be clearer on this point than the conservative majority of the Supreme Court. This past summer, in the Court’s decision in McDonald v. City of Chicago, the majority put forward an understanding of the Second Amendment as guaranteeing the individual right to bear arms for individual self-protection. More interesting yet, however, is the fact that the Court’s reinterpretation of the Second Amendment in this case turns out to be a far more plausible and defensible interpretation, and one that makes the Second Amendment relevant to our lives today.