People nowadays love to talk about the “Constitution.” Of course, I mean the United States Constitution. Here in Kentucky, we don’t talk much about the state constitution, except when we want to amend it for things like gambling and eliminating the Railroad Commissioner. The US Constitution is all the rage, though. It wasn’t always that way. Twenty or thirty years ago, you rarely heard people debating it, but they do now. I suspect that’s a good thing.
I’m lawyer, but I’m not a constitutional law expert. I don’t know anyone who is. Now, I do know lawyers who are skilled in certain areas like criminal procedure and civil rights. They have to know about the Constitution. I have occasionally dealt with constitutional issues, but it usually requires a fair amount of research on my part. With that disclaimer, I’m willing to bet I know as much about the Constitution as most folks. Even if I don’t, I still feel free to offer this handy guide to all you need to know about it.
One way to learn about it is to go to law school. Con Law, as we call it, is pretty dry stuff. You have to read a lot of case law. That’s a lot of work to do for something that people like Glenn Beck are free to opine about it without so much as a college education. No, you don’t have to go to that trouble. Here’s what you do: Read it. Then, realize that there is over 200 years of jurisprudence involved in interpreting and applying it. Pretty simple. But, if you’re American, it’s your Constitution, whether you went to law school or not. If you’re not American, go read whatever nutty thing you have in your inferior country.
Here’s what the Constitution won’t do for you: It doesn’t protect us from everything we don’t like. Just because we don’t like a law, for example, doesn’t make it unconstitutional. Let’s say the government brings back the military draft. It would be horribly unpopular, but it wouldn’t be unconstitutional. On the other hand, a popular law can be unconstitutional. Pretend for a moment that the government outlaws Islam. If, for one, would be horrified by that, but I know many people who would cheer. Sorry, but it would be unconstitutional.
Another point: the Constitution doesn’t guarantee “life, liberty and the pursuit of happiness.” That’s actually in the Declaration of Independence. The Declaration of Independence isn’t part of the Constitution and wasn’t written at the same time. It’s completely different and not the basis of anything important–except the breaking away from King George deal. Forget about it, except on the 4th of July.
The guts of the Constitution are in the seven articles that made up the original document. Don’t worry about that much. It’s just a bunch of details about how the federal government is set up, interstate commerce, elections and other minutia. It’s like the Books of Numbers and Deuteronomy. It’s important, but it’s mind-numbing. It’s the amendments that get everyone worked up. The Bill of Rights is the first 10 amendments, but there are a bunch more. Here’s a summary of all you need to know about them.
Most people know something about this one: Freedom of speech, freedom of the press, freedom of assembly and freedom of religion. Here’s how it works: The government can’t make it illegal for you to call your boss a son of a bitch. If you actually call your boss a son of bitch, the government can’t do anything to you. Your boss, however, can fire you. He’s not the government. There’s no constitutional protection against people getting pissed off at you. It also allows us to lie. That’s right. You have the right to lie. But, you don’t have the right to defraud or defame people. General lying, though, is okay.
Freedom of the press works the same way. That’s why you get so worked by what you read. The press is free to express whatever opinions it wants, whether popular or not. During World Wars I and II, we kind of trampled on speech and the press, but otherwise we’ve been pretty good about protecting these.
Here’s an important tip: You can’t threaten to kill people. Constitution won’t protect you.
Assembly: Hey, if you want to join the Ku Klux Klan, go right ahead. Now, of course, that doesn’t mean the rest of us can’t condemn you over it, but the government can’t throw you in jail.
Religion: The government will allow you to worship as you see fit and won’t establish a state church or religion. I know we spend all our time fretting about prayer in schools and contraception and the like, but this should be embraced by everyone. The government butts out of the religion business. Now, what the government can’t do–much to the chagrin of many–is declare the United States is a Christian, Jewish, Muslim or other nation. I know that chafes people, especially those that are unburdened by history, but it’s a fact. The Constitution itself does not make reference anywhere in it to being based upon Christianity or any other religion. In fact, just ten years after the Constitution was adopted, the United States entered into a treaty with the nation of Tripoli, which said:
Art. 11. As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Muslim] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
There is no record of even slight debate about President Adams signing the treaty. Rather than causing people to tear at their robes (to use a favorite Biblical image), we should all be glad. No one can tell us how or what or if to worship. It’s up to us. That’s good.
Another popular one, the right to keep and bear arms. We can own guns. Yes, there can be restrictions, just like there can be on speech, but the right exists. It doesn’t mean that there can’t crimes related to the USE of guns or restrictions on possession. The bottom line is that we can be–and are–armed to the teeth. Good thing about this one is that you can become a Second Amendment fanatic or advocate. It’s a full-time job for some people. Thank you, First Amendment.
Don’t worry about this one. It’s about being forced to quarter soldiers in your home. If that happens, you don’t have to put up with it. Once, I tried to become a Third Amendment fanatic, but I couldn’t get any followers.
This is a biggie. No unreasonable searches and seizures. The cops can’t just show up at your house and kick in the door. Understand though, that if they have a search warrant all bets are pretty much off. My criminal lawyer friends love this one and know all the ends and outs of it. You probably don’t need this one unless you are in serious trouble. If you are, I can give you a referral to a good lawyer.
This is also one of those “technicalities” often cited when charges are dropped or evidence excluded against an accused criminal. Remember that. This “technicality” is also the same kind of technicality that lets us own our guns and go to our churches.
Anyone who watches much TV knows this one–taking the “Fifth.” There used to be Ecclesiastic courts. They would accuse you of a crime and then demand that you prove you didn’t do it. We don’t do that. The government has to prove its case against you without your help. Again, if you need this one, you’re probably in a fair amount of trouble. (See the Sixth Amendment)
Due Process: You have the right to know what you’re charged with; the witnesses; speedy trial; right to an attorney. This is all good stuff. Government can’t hold you in jail forever without charging or telling you what you did. Folks like to say that criminals have more rights than their victims. They don’t. They have the same rights.
If you want to know what it’s like without this, check out the inmates in Gitmo. No Sixth Amendment, no rights.
If you get into any of the above trouble, you can have a jury under certain circumstances.
Government can’t inflict cruel or unusual punishment or excess fines. For example, if you have outstanding parking tickets, a law putting you in jail for 100 years is a no-no. Also, a fine of $1,000,000 probably is too harsh. This also eliminates such things as burning at the stake and drawing and quartering.
What about the death penalty, you say? No problem. It’s not cruel and we certainly can’t call it unusual. Of course, this depends on the method and the reasons. Hanging, electrocution, shooting, asphyxiation by gas and deadly drugs are all okay. Burning alive and ripping apart are not good. A friend of mine once suggested sticking the condemned’s head in a bear trap. That’s probably no good, either. Must be proportionate to the offense. Murderers are fair game. Treason? You bet. After that, it gets sketchy. We used to execute rapists, kidnappers, horse thieves and pretty much anyone who seemed problematic. It’s a little tougher now, which is probably good. Probably.
Just because something isn’t listed in the previous eight amendments doesn’t mean you might not have other rights.
A lot of people love this one. Essentially, it says that anything not granted to the federal government belongs to the states. WARNING: There is a mountain of case law about this. Militias and TV talking heads love this one. Anytime you hear someone pontificate about “states’ rights” this is what they’re talking about.
It has something to do with suing states in federal court. Basically, you can’t do it.
Fixes something screwed up about the electoral college. Move along. Nothing to see here.
Abolishes slavery. Nuff said.
States have to give you due process protection, too, not just the feds. Makes most of the first ten amendments applicable to the states, too. Oh, and the law applies to everyone equally. Has bunch of stuff in it, too, about dealing with the Confederacy.
Can’t prevent people from voting based on race, color or being a former slave.
Good news! The federal government can impose an income tax! If some nut tells you he can prove that the income tax is unconstitutional, he’s wrong.
Senators are to elected by direct votes, instead of being chosen by their state governors. Who cares?
Hello, Prohibition! Woo hoo! No alcohol in the US!
Women can vote! Woo hoo! (I guess)
Something about terms of office.
Goodbye, Prohibition! Woo hoo! (hic!)
President can only serve two terms
The District of Columbia gets to vote in the Presidential election. Big whoop.
No poll taxes. I don’t even know what that is.
This is about succession if the President dies or leaves office. TIP: Don’t even bother reading this unless the President and Vice President die.
You can vote if you’re 18.
This has to do with Congress’s salaries. To give you an idea of how hard it is to get an amendment dealing with Congressional pay, it took about 200 years to get this one ratified after it was originally proposed.
There you have it. The Constitution and all 27 amendments. You can readily see that the vast majority of these amendments are of no interest to anyone. Some–like the 13th–are a very big deal. Others, like Prohibition, are just plain stupid. The Bill of Rights is very important–except the 3rd Amendment.
It’s hard to amend the Constitution. That’s very important. It keeps us from cobbling together such things as bans against Americans holding titles of nobility and legalizing slavery, both of which never got much traction. If you want to see what a constitution looks like when it’s been frequently amended, read the Kentucky Constitution. It reads like the unabridged version of the Unabomber Manifesto.
If you’d like to learn about how the Constitution was adopted, watch the School House Rock video on the Constitution. It’s still the best thing I’ve ever seen or read about the subject.
Now, you’re an expert. Or not. But you have the right to pretend like you are. Thank you, First Amendment.