The Constitution Is Abused And Misunderstood But Still Going Strong
Published on September 13, 2018
There is a great amount of noise today over everything and calling out Constitutional rights is used by all sides as a reason for their point of view. The constitution was written by very smart men who understood the need to guarantee and protect the rights of the people from a despotic government. What it was not designed to do was lay down restrictions on private citizens or industry. This does not mean that private companies or individuals are free from legal constraints. What it means is there is a difference in the relationship a person has between the government and his employer. It means there is a difference between the relationship between the interactions a person has with the government and a private institution. Max Weber, a 19th century political philosopher put this in perspective in his work "Politics as a Vocation" when he defined the government as that entity in society that has "a monopoly of the legitimate use of physical force." In other words, your boss can only fire you the government can sentence you to death and execute you.
An example of this misunderstanding is the current discussion over NFL players kneeling during the National Anthem. First of all, I personally disagree with the basic premise used, the numbers do not support the claim of systemic police brutality against African-Americans. The fact that the protestors use it is however not relevant to the argument of their right to demonstrate. To begin this is not a first amendment issue, no one has said they have no right to their opinion or to express it. The issue that I see is that the players are employees of a private company and must adhere to the rules of that company. If any NFL player wishes to protest they are free to do so, just not on company time when the company says no.
This seems to be the problem our free society is facing, disagreement is construed as suppression of thought or word. A disagreement is just that, a disagreement. I do recall the day's when you could have a discussion and then go out together and socialize, those days are done. If this were a single incident I would just ignore it and move on, but it is not.
To make the point I will jump over some more recent examples and discuss Sandra Fluke. For those who do not remember Sandra Fluke was the Georgetown Law School Student who, in 2012 argued that Georgetown had no right to deny reproductive rights to its students by not covering birth control in its insurance plan. This may not seem out of the ordinary for a law student who supported President Obama's healthcare plan. As you may also remember Obama care did mandate birth control be included in all plans but allowed religious institution to opt out. Georgetown is a Catholic university and therefore a private institution, Fluke knew its insurance plan before she was accepted and enrolled. Now she had the ability to go to any other law school in the country but choose Georgetown.
Fluke did not argue for herself but for the poor students at Georgetown who may not be able to afford birth control, making it a civil rights issue. To start I am not sure how many poor students there are at Georgetown, I am sure there are a few on scholarship, and that there were ways for them to get birth control, this is now a reverse of the NFL issue. This time the opposition wants the private institution to lose its constitutional protection enshrined in the establishment's clause.
These are just two examples of how the constant harping of constitutional this or that is misunderstood and misdirected. To begin the constitution is the document that forms the government and gives it its power. The constitution is also revision 2 of the US government, the first attempt was the Articles of Confederation. The Articles of Confederation, written right after the Declaration of Independence gave most power to the states and restricted the federal government to control of the Army, foreign policy and other basic administrative tasks such as the Post Office and printing money. It soon became apparent that a stronger central government was needed as the new country grew. The new constitution then grew out of the failure of the Articles of Confederation, but with states still fearing the power of a monarchy. To that end the writers allowed for an amendment process and the first ten amendments were added, known as the bill of rights. The bill of rights set the stage for all relationships between the government and the citizens. The purpose of all amendments, save one, was to tell the government what it could not do. The one by the way was prohibition and we know how well that turned out.
People today turn to the government to stop others speaking and doing through the imposition of new laws. The result is that the constitution denies this and stops it from happening. The concern we should have is that the temper of the nation is showing signs of rejecting constitutional protections in favor of ideological purity. The right of NFL players to protest cannot be denied but the locations of the protests, during games, can be.
Why then is there a Supreme Court? For the constitution to work two arguments must be understood. The first is original intent, people who only argue this are call Originalist. Originalist believe that the constitution can only be interpreted through the intent of the framers, no more or less. Others see the constitution as a living document known as the Living Constitution. Those who support the living constitution claim pragmatism trumps centuries old concepts that the laws today need to reflect the current society. The reality, like so many truths, lay in the middle.
The foundation of the constitution was to form a government that worked and to keep that government from suppressing the people. Being honest we must admit it is working very well, while sometimes disagreeing with the rulings. In many recent rulings the court has used the provision of the 14th amendment calling for the equal protection of the law. This is the amendment that was used to make same sex marriage legal. Originalist will argue the purpose of the 14th amendment was to ensure that recently freed slaves were accorded full protection. Living Constitutionalist will say it has grown to ensure no government agency can ever refuse to enforce the laws fairly across the board. In the intervening years there were attempts to circumvent this, especially during the Jim Crow days of segregation. The attempt here was "separate but equal" which usually turned out only to be separate. The Supreme Court struck that down, rightfully so. The same argument was held for same sex marriage, same sex couples could not be denied the rights enjoyed by other married couples in such areas as taxes and insurance etc. I believe that marriage is the union between a man and a woman and that some accommodation of law could be made to give same sex couples the same rights, but that is separate but equal and we said no to that.
This has now become part of the argument on private businesses selling to the public goods and services. We know about the baker who would not sell a wedding cake to a gay couple, but do we know the whole story. In the beginning I was on the side of the guy couple believing this came under a concept of public accommodation, that is if you are open to the public and operate with a government license you must serve the public as they come through the door. I learned that not all states have public accommodation laws and the federal statutes only cover certain classes of "Public." These classes include the standard – race, religion, creed etc. The problem I found out was that the couple was not asking for an off the self cake but for the baker to use his abilities to create a unique cake. This the baker refused to do based on religious conviction. Had they asked for a standard cake the baker would not have a choice the court’s decision however was based on another amendment, the first. Evidence was presented that the Colorado state board showed hostility to the bakers' religious beliefs and therefore violated his rights. Does this however answer the question of can a private company doing business with the public deny service based on sexual orientation, the answer is stand-by. Like many of the Courts decisions this one avoided the main argument and decided along narrow grounds. This is how the court is supposed to work, it is not a law making or enforcing branch but the branch that interprets the law in context with the constitution. Chief Justice Roberts in his siding with the majority on Obamacare stated that the court does not decide if a law is good or bad just constitutional. In this case regarding the individual mandate is was decided that it was a tax and that the House of Representatives has the right to levy taxes under the constitution.
The constitution is a unique and brilliantly written document that has protected the citizens of the United States for over two hundred years. It has been abused, stretched and manipulated over the years but has kept us safe from excessive government intrusion in our daily lives. It is again under attack by those who do not understand its purpose. Maybe it’s time to reintroduce civics classes into our schools and begin the discussion of just how wonderful this country is instead of trying to make the other side evil and calling for laws to silence "the other guy."