Fidelity to the Constitution

  • September 16, 2011

    by Nicole Flatow

    Supporting the U.S. Constitution “requires more than chanting slogans at a political rally,” Rep. Bruce I. Braley said in a statement recognizing Constitution Day.

    Emphasizing the document’s critical significance to American democracy, Braley urged those who wish to understand the Constitution to review “the whole document and what it means to our country,” rather than “just the portions that fit neatly with your personal political philosophy.”

    In a second statement on the House floor, Rep. Steve Cohen linked the Constitution’s rights and principles to critical moments in our history.

    “When I think of the Constitution, I think of Dr. Martin Luther King and the right to peacefully assemble, which is enshrined in the First Amendment,” he said. “That meant he could go to Selma, he could come to Washington and fight for civil rights and secure those rights for the people of this nation. I also think of women’s rights embodied in the Nineteenth Amendment when women were given the right to vote.”

    Tomorrow is the 224th anniversary of the U.S. Constitution, but many are observing the Constitution Day holiday today.

    During Constitution Week, ACS has continued its tradition of teaching a new generation of students about our founding document through the Constitution in the Classroom program.

    But this year, ACS has also launched a series of webinars geared toward adults, “What the Constitution Means and How to Interpret It.” The second webinar in the series will feature University of North Carolina law professor Bill Marshall, discussing the ACS Issue Brief released this week, The Framers' Constitution: Toward a Theory of Principled Constitutionalism.

    For more Constitution Week reading, see ACSblog’s Constitution Week Symposium, and two columns by ACS Executive Director Caroline Fredrickson, one in The Tennessean and another in The Huffington Post.

  • September 16, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde François, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.


    Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.  

    The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.

    In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional. 

  • September 16, 2011

    by Jeremy Leaming

    The Obama administration’s landmark health care reform law does not run afoul of the Constitution, which sets up a federal government with the ability to productively address a massive national concern, such as its health care system, ACS President Caroline Fredrickson writes in a column for The Tennessean.

    Fredrickson’s column appears beside a piece from Susan Lynn, a former state representative, who says the Constitution is strong, but that the document’s main concern is to constrain representatives from doing anything to promote and safeguard the Constitution’s genius.

    ACS’s Fredrickson says Tea Party rhetoric about the Constitution is seriously misguided. The founding document does include limits on the federal government, but it also provides for the congressional authority to act in a productive manner for the nation’s general welfare.

    The text of the Constitution tells us a lot. Fredrickson writes:

    Take a look at Article I, Section 8 of the Constitution. And then ask yourself is this a document that seriously limits our federal government? This section of the Constitution gives Congress the power to lay and collect taxes, to pay debts, and “provide for the common Defence and general Welfare of the United States.’’ It doesn’t end there, the Section grants Congress the power to regulate commerce, create uniform regulations on immigration on bankruptcies, to make money and establish its value, to “promote the Progress of Science and useful Arts,’’ to declare war, to raise and support armies, and to maintain a Navy.

  • September 15, 2011
    BookTalk
    Keeping Faith with the Constitution
    By: 
    Goodwin Liu, Pamela S. Karlan & Christopher H. Schroeder

    This post, first published September 15, 2010, is part of the ACSblog Constitution Week Symposium. The author, Pamela Karlan, a law professor at Stanford Law School and co-director of the law school’s Supreme Court Clinic. The book she coauthored with Goodwin Liu and Christopher H. Schroeder, Keeping Faith with the Constitution, provides the framework for a new ACS webinar series, “What the Constitution Means and How to Interpret It.”


    Keeping Faith with the Constitution wades into a long-running debate about how we should interpret our Constitution. This debate is an important part of public policy discussions on everything from judicial nominations to health care reform. For a long time, conservatives have framed this debate by portraying themselves as strict adherents to the text and original understanding of the Constitution, while claiming that liberals and progressives ignore the text and decide cases based on their own values or policy preferences.

    That characterization is, of course, a caricature. In our book, we approach the topic through a different set of questions: How have judges, elected officials and citizens actually gone about the process of constitutional interpretation? What explains the enduring character of our Constitution in light of the profound economic, social and political changes that our nation has gone through? And how does this 220-year-old document retain its legitimacy, authority and relevance over time? Simply put, our thesis is that the Constitution has endured because judges, elected officials and citizens throughout our history have engaged in an ongoing process of interpretation. That interpretation reflects fidelity to our written Constitution. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that sustain their vitality over time. Fidelity to the Constitution requires us to ask not how its text and principles would have been applied in 1789 or 1868, but rather how they should be applied today in light of the conditions and concerns of our society.

  • September 15, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. By Doug Kendall, President, and Judith Schaeffer, Vice President, Constitutional Accountability Center  


    As ACS members know, our Constitution is under attack from tea partiers and other self-professed “constitutional conservatives” who have claimed the document as their own and distorted it to support their ideological agenda. Over the past two years, they have made increasingly extreme, and in some cases absurd, claims about our Nation’s charter. They started with calls to repeal a number of Amendments, including the part of the 14th Amendment that protects citizenship at birth. They progressed to claims that Social Security, Medicare, and portions of the Affordable Care Act are unconstitutional. It’s gotten to the point where it seems that many in the tea party believe the entire 20th Century was unconstitutional. Talk about a bridge to the 21st Century!  The tea party movement seems to want to build a bridge back to the colonial era and the Articles of Confederation.

    There is no greater threat to progressive values than this effort to make progress itself unconstitutional. This week, Constitutional Accountability Center and our partner organizations, including the Center for American Progress and People For the American Way Foundation, launched a coordinated effort  -- Constitutional Progressives -- to take our Constitution back and rebut the constitutional fairy tales being peddled by tea party leaders. Our greatest assets in doing so are the text and history of the Constitution itself.

    Constitutional Progressives celebratethe Framers for creating the best and most durable form of government in world history, but believe the Constitution today is better than the document ratified in 1789.  Generations of Americans have made our country and our Constitution “more perfect” by ratifying Amendments that have eliminated slavery, protected liberty and equality, expanded the powers of the federal government, and secured voting rights for every adult citizen in America.   

    This story of constitutional improvement should inspire all Americans, and we’re asking people across the political spectrum to join Constitutional Progressives by signing the “Whole Constitution Pledge” --  a pledge to support the entire Constitution, including the Amendments adopted over the last 220 years. The Pledge can be signed on line, here. More than 15,000 people across the country have already signed. We’ve made a similar call to all Members of Congress, urging them on Constitution Day to reaffirm their constitutional oath of office -- their pledge to support the whole Constitution, not just the parts they like or find ideologically convenient.