The framers’ organized the legislative branch to “contribute to the governmental power, to promote popular consent for the new government, and at the same time to place limits on the popular political currents that many of the framers saw as a radical threat to the economic and social order” (We the People).
The framers wanted to ensure the people that the Constitution would not be a danger to them, by stating any power not listed were not going to be granted at all (We the People). Expressed powers are specific powers granted to the Congress in the Constitution. In order to create an active and powerful government, like the framers intended, they also incorporated the elastic clause (necessary and proper clause), “which provides Congress the authority to make all laws necessary and proper to carry out the other powers given to Congress” (We the People). Also, “the elastic clause suggested that the enumerated powers were meant to be a source of strength to the national government, not a limitation” (We the People) or weakness.
Respect for the Framers’ Constitution requires us to recognize that although the Framers thought majority rule to be the best system of government, they knew it to be imperfect. They understood that political majorities may be tempted to enact laws that entrench their own authority; that in times of crisis people may panic and too readily sacrifice both fundamental freedoms and structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities. The Framers intended courts to play a central role in addressing these concerns (The Framer’s Constitution).
The framers had a conservative way of thinking, in that they had a narrow mind. They wanted to believe that relying on the people to have the power would be a good thing. In some cases, it may, but in others, it may be a horrible idea. Dividing the powers is a much more reasonable and logical way, that way no one area has too much power or responsibility, and another is not left out in decision making.
The framers’ also had a concern with national supremacy. The concern was stated in the supremacy clause, “which states that laws passed by the national government and all treaties ‘shall be the supreme law of the land’ and superior to all laws adopted by any state or any subdivision” (We the People). Also, this clause bound the representatives of all state and local governments as well as the federal government to take an vow (oath) of office to support the national Constitution, meaning each action that was taken by the United States Congress would have to be applied within each state, as if it were in fact state law (We the People).
The Constitution not only gives power to the National Government, it also limits it. The framers wanted to protect the government “against possible misuse of that power” (We the People). The framers combined two key philosophies into the Constitution: “the separation of powers and federalism. A third set of limitations in the form of the Bill of Rights, was added to the Constitution to help secure its ratification when opponents of the document charged that it paid insufficient attention to citizens’ rights” (We the People). An important aspect of the separation of powers was to give each of the branches a noticeably diverse constituency, or community. Federalism was a “step toward greater centralization of power” (We the People). It created two rulers, the nation and the states, hoping the rivalry would limit power for both groups. The Bill of Rights was thought to be adopted because “greater powers needed greater limitations” (We the People).
The Constitution is not taken or construed the same exact way by each person. The framers intended it to be interpreted a certain way, and not the way we go about taking its meaning into our own ways, using our own definitions.
Constitutional interpretation is not a mechanical enterprise. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, changing social, economic, technological, and cultural conditions, and the practical realities of the times. It requires restraint, wisdom, empathy, intelligence, and courage. Above all, it requires recognition of the judiciary’s unique strengths and weaknesses, a proper appreciation of the reasons for judicial review, and a respectful understanding of our nation’s most fundamental constitutional aspirations and how we hope to achieve them (The Framer’s Constitution).
It is important to realize that the Constitution was written during a time when there was a lack of structure and stability in the nation. It was written to bring that structure and stability for the people, and to guide us to do what the framers believed was appropriate at the time.
#3. Review in detail the basic Civil Liberties outlined in the “Bill of Rights”. Explain how these rights have evolved and changed over the past 200 years. Analyze the Fourteenth Amendment and explain the impact that it has on the Civil Liberties outlined in the “Bill of Rights”. Take a specific issue(s) (such as gun control, free speech, voting, gay marriage etc.) and relate this issue with the Constitution. Provide an argument in favor of adding too or changing the Bill of Rights.
Civil liberty is areas of personal freedom with which governments are prevented from interfering. “The Declaration of Independence defined three inalienable rights: ‘life, liberty, and the pursuit of happiness”’ (We the People). Civil liberties are continuously a focus for “judicial interpretation”, their requirements are delicate, and need to be very carefully protected, especially during a time of threat to national security or war (We the People). Both civil liberties and civil rights are very similar. “They both relate to the ability of citizens to exercise personal freedoms and because they both arise from the Fourteenth Amendment” (We the People).
Civil Liberties as outlined by the Bill of Rights are what guarantee average citizens their freedom. It outlines the freedoms and rights that citizens have, for example when a citizen is on trial they have the right to a fair trial, before trials were often unfair and innocent people were found guilty. Just like the United States has changed and evolved over the past 200 years, certain rights that are addressed in the Bill of Rights have also changed. Some do not really even relate to today. Amendment three for example does not really have any relativity today. Back then housing troops was a major issue but today it is not. The Bill of Rights was written in an era completely different than ours. Issues were different and with that there were different situations that would arise.
For more than 200 years, the Constitution has been a “working” document, preserving the original principles upon which our nation was founded, while at the same time, adapting and changing with the country, as reflected in its amendments. While the United States Constitution itself outlines the basic structure of the federal government, its twenty seven amendments address many subjects, but primarily focus on the rights of individual American citizens (The Bill of Rights).
The right to privacy is the right to be left alone, which has been interpreted by the Supreme Court to entail free access to birth control and abortions (We the People). “It is important to emphasize that the preference for privacy rights and for their extension to include the rights of women to control their own bodies was not something invented by the Supreme Court” ( We the People). This protects women because they do not have to tell anyone what they want to do and also protects them against having to explain or justify their actions to anybody without being questioned.
The Fourteenth Amendment was adopted in 1868, bringing civil rights to be a part of the Constitution. “The Fourteenth Amendment guaranteed equal protection and due process” (We the People). The Fourteenth Amendment has a clause, which is the equal protection clause, “No State shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws” (We the People). This guarantees citizens “the equal protection of the laws” and is the foundation of protecting the civil rights for everyone (We the People). It forbids states from treating individuals differently based on permanent or unchangeable characteristics, such as race, gender, and nationality (The Bill of Rights).
Double Jeopardy is a protection to prevent a person from being tried more than once for the same crime. This protection from double jeopardy was at the core for the Palko v. Connecticut case, which was in 1937. The court decided that double jeopardy was not one of the provisions in the Fourteenth Amendment as a restraint on the powers of the states. It took over thirty years for the court to finally nationalize the constitutional protection against double jeopardy.
Gun control or the right to bear arms is different than it was in 1791 when the Bills of Rights were ratified on the United States Constitution. Weapon access then and now are two completely different scenarios. The Second Amendment covers the right to bear arms: “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” (Modern Day Gun Control). The weapons of those times compare in no way to those of our present times. During the time at which the right to bear arms was established, the weapon of use was a musket.
Muskets were very slow to load, highly inaccurate, and frequently unreliable. A well-trained soldier could prime, load, and fire a musket three times in one minute, and the process of firing just one shot was a 12-step one. Muskets did not fire bullets; they fired round lead balls, some of which were the size of a quarter. At short ranges these lead balls could inflict horrible damage on soldiers, as they smashed against a person's body; however, one could not hit a target more than 50 meters away, directly in front. During the time when a musket was a soldier's only weapon, he did not aim his weapon, but instead pointed it in a general direction and hoped for the best (Modern Day Gun Control).
Meanwhile, today we hear about AK-47s and TEC-9s, among others, which are weapons that can kill large numbers of people in simple seconds, with one swift sweep of the arm.
We know without hesitation that the weapons available to the common street person today make the muskets of that time look like toy guns. Also, we must keep in mind that it was for those very “toy guns” for which the Right to Bear Arms was created. Today, we have too many weapons in the hands of too many people. Likewise, we live in a country with one of the highest murder/manslaughter/homicide rates in the world, and we have a National Rifle Association (NRA) that is frequently saying that gun ownership creates security, in some crazy way. In a country that has a lot of violence and crime, possibly we should start questioning these very laws that allow the general public to be as well armed as our police and military forces. If we revisit these out-of-date laws, maybe we can create new laws, laws that address new times, and laws that can assist this country in beginning the progression towards becoming less impulsive and vicious (Modern Day Gun Control).
Marriage is a civil and religious institution, which is protected by the equal protection under the Fourteenth Amendment. “The Fourteenth Amendment's guarantee of equal protection under the laws suggests—to some—that all people, regardless of sexual orientation, should be protected in their right to marry” (Gay Marriage). Supporters of gay marriage argue that equal protection requires equal access to civil benefits of marriage. Opponents of gay marriage argue that there is a legitimate rational basis for limiting marriage to heterosexual couples (Gay Marriage). In terms of gay marriage, the critical issue becomes the level of scrutiny that laws affecting gays and lesbians should receive. They should be protected by the Fourteenth Amendment. They should not be scrutinized on their sexual preference.
Free speech is the First Amendment in the Bill of Rights. “Congress shall make no 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 (We the People). Although we have freedom of speech, it is limited and some things are not protected by this amendment. Libel and slander, obscenity and pornography, fighting words, and commercial speech are not protected by the First Amendment (We the People).
I believe that the Bill of Rights needs to change as the times change. 200 years ago they did not have the issues of searching people when going through the airport because of the fear that there might be some kind of danger. There are certain rights that are just as relevant now as they were 200 year ago, yet the ones that no longer pertain to us should be taken out and replaced with new ones that would serve the people of our better. The Patriot Act which was enacted to protect citizens from terrorism seems like it has limited basic rights more than it has protected. Citizens are passing up their rights in order to feel protected. Although, there are people out there that feel giving up certain rights are necessary for the greater good.
If I could change the Bill of Rights I would just make a little more relevant to the issues of today, and have rights in there that would benefit citizens. With so many different events going on today it is a hard to have rights that were from 200 years ago, be applicable today. Although, many of them are relevant, they need to be amended so they can be as close as possible to our current situation in our country.
Works Cited
"Bill of Rights." Justice. N.p., n.d. Web. 18 Oct. 2012. <www.justice.gov/usao /press.../Civil%20Rights%20Book-NE-2.pdf>.
"Gay Marriage." Shmoop. N.p., n.d. Web. 21 Oct. 2012. <http://www.shmoop.com/equal-protection/same-sex-marriage.html>.
Ginsberg, Benjamin, Theodore J. Lowi, Robert J. Spitzer, and Margaret Weir. Eight ed. New York & London: W.W. Norton &, 2011. Print. Essenstial Edition.
"Modern Day Gun Control." N.p., n.d. Web. 25 Oct. 2012. <http://yahoo.com/moderndayguncontrolamericabill-rights-306996.html?cat=9>.
Stone, Geoffrey, and William Marshall. "The Framers Constitution." Democracy Journal. N.p., June 2011. Web. 26 Oct. 2012. <http://www.democracyjournal.org/the-framers-constitution.php?page=all>.
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lmaldjian (student)
