Here is a sad fact. I cannot remember what I had for dinner last night but my head is currently full of all kinds of arcane law because I have taken the bar exam in three different states. (For more on this poor life planning, see here http://www.goodandawkward.com/moms-take-a break/). You want to know about corporate governance? I gotcha. You want to know the common law elements of burglary? I’m your girl. Unfortunately, most of you rightly and sanely show no interest in these matters. However, I have noticed lately that there is one legal subject in which everyone is interested – the Constitution. The raging debate over the Second Amendment, in particular, is making everyone into a Constitutional scholar. My social media feeds are full of statements that begin with “The Second Amendment guarantees that….” This got me thinking about the Constitution and how we as citizens are never really trained to read it with any depth of understanding. This should not be so. In this spirit, I’d like share what I know about reading the Constitution. As you read and think about our communal rights, my hope is that you understand the Constitution more broadly and that this framework would help you listen to your fellow Americans in a more nuanced, open-minded way.
I’ll start at the beginning. When the founding fathers got together and decided to form our nation, they argued, in the Declaration of Independence, that certain truths were self-evident. This may have been a little disingenuous since the Declaration is a rather long document that does plenty of explaining about our self-evident rights. They didn’t stop there. It took 4,543 words to make up the original Constitution of the United States of America, a document in which the nature of our rights is further explained. In addition, we’ve amended our Constitution a few times because we didn’t get it entirely right at the outset. Finally, we have an entire branch, the Supreme Court, dedicated to telling us what the Constitution means and how it should be applied. Okay…snort….Thomas Jefferson…self-evident is a little cheeky, dontcha think? As Ricky said to Lucy, you clearly had some “splaining” to do.
This is, in part, why it is often a mistake to start any argument with this premise: “The constitution is clear that…” Sometimes it is. However, more often than not the words of the Constitution are layered with decades of accompanying judicial rulings bearing witness to the fact that when courts apply the Constitution to a specific circumstance, things get….arguable. Instead of thinking about the Constitution as something that can be proof-quoted to demonstrate our particular, isolated point, it is helpful to think about it as a document where competing priorities and groups are given license to collide in a perpetual, democratic struggle. The goal? Hard-fought compromise.
Given this context, the Bill of Rights is not just a list of easily defined, firm boundaries that the government cannot cross. For instance, the Fourth Amendment guarantees that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizure, shall not be violated…” This is lovely but what is an “unreasonable” search? It turns out that according to existing caselaw, a search is unreasonable if it violates a citizen’s privacy interests without a warrant….unless certain exceptions apply where police don’t need a warrant because they are acting in good faith or there is an emergency. You see? “Reasonable” often turns out to be a very specific thing. It is often only clearly defined after a court has balanced the interests of citizens against the interests of law enforcement with respect to the facts before them. Similarly, we have the right to free speech under the First Amendment but it isn’t an unlimited right. There are times when the government can constitutionally tell us how and where we can say things. The Constitution allows certain speech restrictions to be laid on the public when the government has a compelling interest in conducting its activities without interruption — say, inside a courthouse or a on the grounds of a military base. Other times, and in other places, the rights of the citizen will prevail because the type of speech they are engaging in is fiercely protected — for instance, the right to criticize the government in a place held open for public discussion. Each right in the Bill of Rights is like this. The government has interests to protect but their interests are pitted against the rights of the citizen. Sometimes the government wins and sometimes the citizen wins, depending on what happened and precisely how the facts at issue unfolded.
If you study the Constitution as a whole, you can see that the founders knew one basic thing and insisted that it run through the document like a strong, defining, binding thread: In a democracy, nobody gets everything they want but everybody gets something they want. When representative government is working well, nearly everyone bears some disappointment but nobody feels invisible. We would all do well to remember this next time we engage in political debate. If the Constitution is in your favor, it is also very likely that it has something to say in favor of your neighbor. If you think it limits the government, it probably does, but only sometimes. When we use the Constitution as a sword, we must remember that it is also a shield. If you ask it a question, even one that, on its face, conflicts with itself, the answer is usually “yes”. The Constitution is that person you know who likes everyone. Perhaps that is precisely why it begins, “We the people.” “We,” I am glad to say, includes everyone and “everyone” includes your political opponent. If you think the Constitution makes your point and your point only, please stop thinking so because you are patently wrong.
Coming back to the Second Amendment, for instance, the leading case interpreting this provision is D.C. v. Heller. The holding in Heller can be used to defend both pro-gun control arguments and anti-gun control points of view. Heller holds that, “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” However, it also holds that, “[l]ike most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…” see https://www.law.cornell.edu/supct/html/07-290.ZS.html for the full opinion. When we debate this right, we must hold these ideas in tension in order to truly honor the nature and spirit of our founding document. “Self-evident” has taken over two hundred years to figure out. We’re not done yet.
Nancy Kirk says
Amy, that is just stunning. THANK YOU!
Charles Barnes says
Thoughtful and helpful for the nonlegal minds among us. It is remarkable that something old in historic terms continues to guide us in the 21st century. It all seems so … sensible … both sword and shield. Loved it.
Janell says
Thanks for your well written informative post. Good food for thought.
Leslie Branyon says
Compromise is the key and we sometimes forget that part! Well written article Amy.