Fidelity to the Constitution

  • September 19, 2011
    Guest Post

    This post is part of an ACSblog Constitution Week Symposium. The author, Jamie Raskin, is a law professor at American University’s Washington College of Law, and a Lecturer at Yale Law School and a Maryland State Senator.  He co-founded the Marshall-Brennan Constitutional Literacy Project in 1999 with Professor Steve Wermiel. A Senior Fellow at People for the American Way, Professor Raskin is the author of We the Students: Supreme Court Cases for and About America’s Students.  He can be reached at Raskin@wcl.american.edu.


    If we don’t expect all romantic love to take place on Valentine’s Day or all gratitude to be expressed on Thanksgiving, why do we expect all public constitutional learning to take place on Constitution Day?   Surely no single day can bear the weight of this important endeavor.

    Tea Party activists have shown that constitutional advocacy throughout the year will be heard. The problem with their work is that the public cannot disentangle their constitutional claims from their political agenda. The Tea Partiers’ doctrinaire teachings about the Constitution only work for people who already agree with their politics.

    America needs a continuing program of non-partisan education about the nature of the Constitution and Bill of Rights. The American Constitution Society keeps lawyers and law students engaged through a program called Constitution in the Classroom. Since 2006, ACS has activated its extensive national network of lawyers and law students to visit high school, middle school and elementary school students and teach them non-dogmatic and non-ideological lessons about the Constitution.

    But one of ACS’ key partners in this effort -- the Marshall-Brennan Constitutional Literacy Project -- takes the Constitution directly into America’s high schools on a daily basis throughout the school year, teaching a full-blown course in “constitutional literacy” to young people.

    Across the country, from Boston to Baton Rouge to the Bay area, hundreds of law students from 16 different law schools are sharing their passion for the Constitution with students the age of their young brothers and sisters. They wake up early and, with no pay and precious little recognition, spread out to teach thousands of high school students--not once a year, but two or three times every week--before going to classes of their own.

    These unsung constitutional champions--law students at eighteen different schools, from American University to Yale--are the Marshall-Brennan Fellows. Launched at AU’s Washington College of Law (WCL) in 1999 with the widows and families of the late Supreme Court Justices Thurgood Marshall and William Brennan, the Project is designed not to bewail our nation’s overly-documented civic illiteracy, but to engage young people about what it actually means to be a democratic citizen.  Rather than lamenting that more teens know the names of the Three Stooges or the Backstreet Boys than can name the rights contained in the First Amendment--a favorite Constitution Day pastime of pollsters and drive-by pundits, the Marshall-Brennan Fellows are doing something impressive about it.

  • September 16, 2011
    Video Interview

    This video interview is part of an ACSblog Constitution Week Symposium. By Nicole Flatow


    The role of U.S. courts as a “corrective for the dangers of majoritarian abuse” has been stymied by conservatives and originalists, University of Chicago Board Chair Geoffrey R. Stone explains in a video interview with ACSblog.

    “I think one of the real problems that we have had in the last 40 years in the United States is that conservatives have effectively taken control of the public discourse and the academic discourse about the proper role of courts and of constitutional interpretation,” says Stone, chair of the American Constitution Society Board of Directors.

    This is dangerous not just because originalism and judicial restraint are “wrongheaded” on their own terms, but also because conservatives are misleading people about what the courts are actually doing, he explains.

    “The public actually tends to believe that conservative judges and justices behave in a way that can be explained and justified in terms of judicial restraint and originalism when in fact, the actual jurisprudence of the existing majority on the Supreme Court and many Republican-appointed judges on the lower courts does in fact not fit,” he continues.

    This problem is the subject of a new ACS Issue Brief by Stone and University of North Carolina law professor Bill Marshall, The Framers' Constitution: Toward a Theory of Principled Constitutionalism, which discusses how progressives can reframe the discussion about the Constitution and the courts.

    The Framers’ Constitution … is designed to illustrate why [originalism and judicial restraint] are deeply flawed, and why they don’t in fact put forth a coherent or persuasive theory of constitutional interpretation,” Stone explains.

    Watch the interview below.

  • 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.