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Archive for the ‘Constitutional Law’ Category

Common misconceptions about the Constitution

Saturday, June 14th, 2008

While a good number of American citizens can quote parts of the Constitution and Bill of Rights by heart, there are a whole host of common misconceptions that many people have when it comes to rights or privileges that aren’t really mentioned in either document. Often times, court rulings can build on existing aspects of the Constitution and Bill of Rights and create protections that the Founding Fathers did not explicitly spell out, but the belief that these protections are an original part of either document is false. Let’s take a look at just a few examples of rights we all take for granted each and every day that aren’t a part of the Constitution or the Bill of Rights.

Perhaps the most talked about and debated part of American life that isn’t really mentioned in either document is the right to privacy. While privacy in the traditional sense is nowhere to be found in these two guiding documents, there are aspects of privacy that can be found. Often times, the First Amendment’s provisions protecting Americans from a state-sponsored religion and its related section guaranteeing the right of religious expression is considered a form of privacy since it forbids any federal agency from interfering in one’s ability to worship how they please. Constitutional scholars also point to the Third Amendment that forbids the government from housing soldiers in private residents’ homes. Although there is nothing clearly spelled out here that guarantees a right to privacy, it is clear that the Founding Fathers viewed a private home as a space in which citizens deserved a certain degree of privacy. A final example of how privacy alluded to but not spelled out in the traditional sense is with the Fourth Amendment which protects citizens against unreasonable search and seizure. While the definition of the word unreasonable would be up for much debate, the Founding Fathers again clearly and unequivocally highlight their belief that a private home is just that, private. Based on the existing contents of the Bill of Rights and the Constitution, it is easy to see how so many people believe that privacy in a broader sense is guaranteed when it really isn’t.

There are a few other interesting rights that many of us take for granted that are not spelled out in the Constitution. As was seen in the case of Roe v. Wade, there is no mention of abortion in the Constitution. The governing principals that determine if such a procedure is legal or not is determined by the courts and by laws passed in various jurisdictions. There is also no inherent right to marry in the Constitution. While some may debate on why this is, it is likely because the Founding Fathers viewed marriage as a religious ceremony and not one that was any business of the state.

Most constitutional law scholars agree that the Founding Fathers showed remarkable vision when writing the Constitution and the Bill of Rights. They included provisions that have served as a guiding light even though 200 years have passed, but there are still many common misconceptions about rights and privileges that simply are not spelled out in the Constitution and the Bill of Rights.

How does the Supreme Court work?

Saturday, June 14th, 2008

Thanks to countless hours spent in high school civics class, most Americans are aware of the Supreme Court and the impact it has on our society. From helping to end discrimination in public schools to giving women the right to have an abortion, the impact the Supreme Court has had on American society is almost impossible to quantify. Let’s take a closer look at how this powerful body works and how people get to serve as a member of the court.

Thanks to cable news and the number of political blogs in existence, people today have a greater knowledge of how the Supreme Court nomination process works than ever before. During the 1980’s people everywhere got to see the nominations of Robert Bork, who failed in his attempt to become a part of the Supreme Court to Clarence Thomas who managed to be appointed successfully even though the nomination process was fraught with controversy. Before a person can sit in front of Congress in an attempt to join the Supreme Court, they must be first nominated to fill an existing vacancy by the President of the United States. One of the most underrated powers that the president has is that of nominating Supreme Court justices. Although a president can only serve two terms, the Supreme Court justices that they nominate can serve as long as they live, which can tip the court to either conservative or liberal perspectives for generations.

While history has shown that the nomination process is often clear sailing, it can be fraught with problems depending on the candidate that has been nominated. In the case of Robert Bork, a nominee can actual be turned down by the Senate Judiciary Committee and the president than has to nominate another person. A similar firestorm of controversy occurred with the appointment of Clarence Thomas to the Supreme Court, although much of that controversy revolved around personal issues and not his constitutional interpretations.

While more and more people are familiar with the nomination and approval process that is used to determine who serves on the Supreme Court, most people don’t understand how a case makes it to the highest court in the land to be heard. There are two main ways that the Supreme Court can choose to hear a case. If there is a dispute between two states, the Supreme Court can step in and choose to rule on the case. Although this happens very rarely, a recent example was when a dispute between New York and New Jersey over which state controlled historic Ellis Island. The other way that the court can hear a case is if a majority of members of the court agree to hear it. If they choose not to, the final ruling of the lower court is considered final.

The Supreme Court may be the most important, most complex and least understood part of American government, but thanks to advancements in technology, people everywhere are beginning to realize the momentous impact the court has had and will continue to have on society as a whole.

How the bill of rights applies to me

Saturday, June 14th, 2008

For people who study constitutional law for a living, or for casual fans, arguing about how the Founding Fathers interpreted the Constitution and the Bill of Rights is a favorite pastime. When Supreme Court justices are nominated, the first way they are usually described by is how they interpret the Constitution. Most observers would say that the Bill of Rights is one of the most important and far reaching documents in history and it is exciting to realize that even though the document was written a long time ago, court rulings and laws are constantly changing and altering the way those rights are interpreted and defined. Let’s take a look at some of the best known parts of the Bill of Rights and see how they are still being interpreted today.

It may come as a surprise to some, but there were prominent people arguing against the creation of the Bill of Rights as it was being crafted. Arguments usually centered around the idea that having a Bill of Rights inherently limits one’s rights because then the government can restrict any rights not listed on the document itself. A compromise on this topic was reached with the inclusion of the Ninth Amendment which clearly states that the government does not have the right to limit rights that are not clearly spelled out in other parts of the document. Since the Founding Fathers could not possibly have imagined the technology and lifestyles people would be living 200 years into the future, the inclusion of the Ninth Amendment showed remarkable vision.

Perhaps no amendment is sited and talked about more than the First Amendment. In one fell swoop, the Founding Fathers covered everything from religious freedom to freedom of speech to freedom of the press. It has taken law experts generations to adequately sift through the thousands of ways that this amendment alone impacts our daily lives and courts from California to Maine still debate this very topic on a daily basis. One part of the first amendment that is so often misinterpreted is the part about religion. Many people don’t realize that there are two distinct parts of the First Amendment that speak about religion. First, the amendment forbids the establishment of an official religion in the United States. The wording here is very clear but it hasn’t stopped many religious leaders from petitioning the government to declare the United States a “Christian” nation. The second part also forbids the federal government from passing any laws prohibiting the free exercise of religion. With one brilliant sentence, the government has given full rights to those that do not wish to be affiliated with one official religion and given the right to others to practice their religion as they see fit, assuming it doesn’t violate anyone else’s human rights. While other parts of the First Amendment are frequently discussed and dissected, the two sections regarding religion are often the most controversial and will likely continue to be into the future.

Important Supreme Court rulings

Saturday, June 14th, 2008

While outsiders may view law as a stagnant entity that changes slowly over time, enlightened observers take great joy in the realization that law is a liquid creation that is constantly being changed, molded and finessed by dozens of court ruling each and every day. Perhaps no other court in the land has caused more seismic shifts in the law than the Supreme Court. Since its inception, the court has ruled on some of the most important and defining issues of our time and the impact of those rulings is still being felt today. Let’s take a look at just a few of the most famous Supreme Court rulings in history.

While the Supreme Court has been making landmark rulings from day one, perhaps the best known court ruling of all time was Brown v. Board of Education. With this 1954 ruling, and the follow up case a year later, segregation in public schools was put to an end. Of course, the front line battles continued for years afterward, but this ruling was essentially the death knell for any sort of government sanctioned racism in the United States. Critics point to the fact that a ruling of this sort should not have been needed to end what is so obviously a horrendous practice, but sometimes, positive changes in society need to be given a push, and in the case of Brown v. Board of Education, the push completely changed the landscape of America.

As controversial as Brown v. Board of Education was at the time, there is a nation wide consensus that the ruling was correct and an important step socially for the country. In the case of 1973’s Roe v. Wade, the battle cries of both sides are still being heard loud and clear. The Roe v. Wade ruling is hailed by some as the most important human rights and woman’s rights ruling since women were given the right to vote, while critics claim is has caused a virtual holocaust of lost lives. Perhaps the most frustrating aspect of the ruling for so many is that while Brown v. Board of Education caused a decade or two of infighting before people everywhere realized the wisdom of the ruling, Roe v. Wade might be more contentious today than it was in 1973. The ruling has done nothing to help people on both sides to communicate and build an understanding of why the ruling that was made was correct. With the current formula of the Supreme Court leaning to the conservative side, supporters of the Roe v. Wade decision are fearful that the case may be reheard in the near future and that the practice of abortion will be made illegal once again. Regardless of whether that happens or not, the battle over women’s rights is still as passionate today as it was then and it shows no signs of slowing down.

It is impossible to quantify the impact that Supreme Court rulings have made on our daily lives, but we can tune in the next time a major case is being heard to catch a glimpse of what the future holds.

Little Known Facts about the Supreme Court

Saturday, June 14th, 2008

While networks like C-Span and political blogs have tried to interject a bit of excitement into what goes on in Washington D.C., the goings-on over at the Supreme Court tend to be remarkably dull. Often times, cameras are not allowed inside the Supreme Court so Americans sitting at home and school children in classrooms all across the country are not given a chance to witness how the system really works. Because of that, it is safe to say that the Supreme Court is the least understood branch of federal government. Let’s take a look at some little known facts that help to make the Supreme Court much more interesting place than most people realize.

Many people don’t know that the President of the United States has the right to argue a case in front of the Supreme Court. Since not every President has a background in law, this right isn’t exercised on a regular basis. The last time it happened was with former President Nixon arguing on behalf of a family who was suing Time Magazine for invasion of privacy. Perhaps one of the main reasons why a sitting president no longer tries to argue cases in front of the Supreme Court is the possibility that he will come out on the wrong side of the decision, which is exactly what happened to President Nixon when the court sided with Time Magazine.

Not all Presidents have come up short when it comes to arguing a case in front of the Supreme Court. Fans of the hit film Amistad remember that President John Quincy Adams argued on behalf of the slaves who won their freedom thanks to the ruling by the Supreme Court.

For a university to be able to brag to wealthy alums and to prospective students that their law school has churned out a Supreme Court justice is worth its weight in gold, but no other school can claim that two Supreme Court justices not only attended their school but did it at the same time. Stanford University has that honor with justices Sandra Day O’Connor and Chief Justice William Rehnquist being classmates. No word on if the two were pals.

Every year, the Supreme Court begins a new session where they decide on important cases to hear. Many people do not know that the annual Supreme Court session always begins on the same day. Every year, the first Monday in October sees the court reconvene for another year of landmark cases and critical analysis.

Due to the extremely sensitive nature of some of the cases heard before the Supreme Court, sometimes, false names are used to protect the identity of various participants. No false name is more widely known than plaintiff Jane Roe in the historic Roe v. Wade case that legalized abortion. In the years since the case was heard, the woman behind Jane Roe has spoken publicly about the case and her real name, Norma McCorvey is known, although not nearly as widely as her nom de plume

Understanding Constitutional Law and the Internet

Saturday, June 14th, 2008

As any first world resident knows, the Internet has completely changed the way many of us live our lives. We send email now instead of written letters and we play online games against hundreds of other people sprinkled throughout the world instead of board games at home. The sheer number of ways the Internet has impacted our lives is still being counted and quantified by experts all over the world, including lawyers who have found themselves on the front lines of constitutional law battles in cyberspace. Since the Internet is still the “wild, wild west” is so many ways, it can be difficult to even determine what laws have been broken and who has proper jurisdiction in certain cases. Let’s take a look at a few different fronts in which constitutional law battles are taking place this very day in the online world.

Perhaps the most publicized part of online constitutional law is cases involving free speech. The recent decision by search engine giant Google to start censoring their searches that are made from IP addresses that come from China stirred a significant amount of conversation when it comes to the debate of what you can and can’t say online. Since so many websites are created each and every day and only a fraction of them are linked to various search engines or other web pages, it is safe to say that the overwhelming majority of speech online never gets challenged, but for those websites that do have the tone, message or style of their site brought into question, what rights do website owners or bloggers have and which ones do they not? There are no easy answers here and just like other parts of law, the definitions of rights are constantly evolving and changing as rulings pour in.

A somewhat less controversial but still critical part of constitutional law online pertains to criminal law. Issues such as where a crime was committed in connection to where a website is hosted and how standing criminal law can be applied to online cases is an ongoing debate that shows no signs of slowing down. When you add in free speech components and esoteric ideas such as religious expression, the waters become even murkier. Recent rulings have changed the way that federal authorities can lure or trap a computer user into committing a crime and with a litany of other landmark court cases on the horizon, it will be interesting to see how constitutional criminal law online evolves in the coming years.

Easily one of the most frustrating parts of online constitutional law is the enforcement of copyrights. The speed and efficiently in which a copyrighted piece of material can be copied, altered and distributed is downright scary and when you broaden your search to include international copyright law, enforcement can grind to a standstill. Of all of the areas of online constitutional law, copyright law is easily the one in the most urgent need of an overhaul.