🫡State and Federal Constitutions Unit 16 – Constitutional Law: Current Issues

Key Constitutional Principles

• Separation of powers divides the federal government into three distinct branches (legislative, executive, and judicial) to prevent any single branch from becoming too powerful
• Checks and balances system allows each branch to limit the powers of the others, such as the president's veto power over legislation and Congress' ability to impeach and remove the president
• Federalism is the division of power between the federal government and state governments, with the Constitution granting specific powers to the federal government (enumerated powers) and reserving the rest for the states (reserved powers)
• Supremacy Clause (Article VI, Clause 2) establishes that the Constitution, federal laws, and treaties are the "supreme law of the land" and take precedence over state laws and constitutions when there is a conflict
• Due Process Clause (Fifth and Fourteenth Amendments) protects individuals from arbitrary government action and ensures fair legal proceedings
  • Substantive due process protects fundamental rights from government infringement
  • Procedural due process requires fair procedures when the government seeks to deprive someone of life, liberty, or property
• Equal Protection Clause (Fourteenth Amendment) prohibits states from denying any person equal protection under the law, which has been used to combat discrimination based on race (Brown v. Board of Education), gender (Reed v. Reed), and sexual orientation (Obergefell v. Hodges)

Historical Context and Evolution

• The Constitution was drafted in 1787 by delegates to the Constitutional Convention in Philadelphia, who sought to create a stronger federal government than the one established under the Articles of Confederation
• Ratification debates between Federalists and Anti-Federalists led to the adoption of the Bill of Rights in 1791, which added the first ten amendments to the Constitution to protect individual rights
• Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth) were adopted following the Civil War to abolish slavery, ensure equal protection under the law, and protect the right to vote for African American men
• Progressive Era (early 20th century) saw the adoption of the Sixteenth Amendment (income tax), Seventeenth Amendment (direct election of senators), Eighteenth Amendment (prohibition), and Nineteenth Amendment (women's suffrage)
• New Deal era (1930s) witnessed a significant expansion of federal power as President Franklin D. Roosevelt implemented programs to combat the Great Depression, leading to a series of Supreme Court cases that initially struck down New Deal legislation (Schechter Poultry Corp. v. United States) before ultimately upholding it (West Coast Hotel Co. v. Parrish)
• Civil Rights Movement (1950s-1960s) led to landmark Supreme Court decisions (Brown v. Board of Education) and legislation (Civil Rights Act of 1964, Voting Rights Act of 1965) that sought to end racial discrimination and protect voting rights
• Constitutional amendments have been used to address societal changes and expand civil rights, such as the Twenty-sixth Amendment (lowering the voting age to 18) and the Twenty-seventh Amendment (regulating congressional pay raises)

Current Hot-Button Issues

• Abortion rights and the potential overturning of Roe v. Wade (1973) following the Supreme Court's decision to hear Dobbs v. Jackson Women's Health Organization, which involves a Mississippi law banning most abortions after 15 weeks of pregnancy
• Gun control and the scope of the Second Amendment right to bear arms, with recent mass shootings reigniting debates over background checks, assault weapon bans, and red flag laws
• Voting rights and the constitutionality of state laws that impose restrictions on voting, such as voter ID requirements, purges of voter rolls, and limitations on mail-in voting, which critics argue disproportionately impact minority voters
• LGBTQ+ rights, including the Supreme Court's decision in Bostock v. Clayton County (2020) that extended Title VII protections against employment discrimination to LGBTQ+ individuals and ongoing debates over transgender rights in schools and public accommodations
• Police brutality and racial justice, with the deaths of George Floyd, Breonna Taylor, and other African Americans at the hands of police sparking nationwide protests and calls for reform, such as ending qualified immunity for officers and establishing civilian review boards
• Immigration and the constitutionality of policies such as the Trump administration's travel ban (Trump v. Hawaii), the Deferred Action for Childhood Arrivals (DACA) program, and the separation of families at the U.S.-Mexico border
• Presidential powers and the limits of executive authority, particularly in the context of national emergencies, foreign policy, and the use of executive orders and memoranda

Landmark Supreme Court Cases

• Marbury v. Madison (1803) established the principle of judicial review, which allows the Supreme Court to strike down laws and executive actions that violate the Constitution
• Gibbons v. Ogden (1824) affirmed the federal government's power to regulate interstate commerce under the Commerce Clause
• Dred Scott v. Sandford (1857) held that African Americans were not citizens and could not sue in federal court, a decision that was later overturned by the Fourteenth Amendment
• Plessy v. Ferguson (1896) upheld the constitutionality of racial segregation under the "separate but equal" doctrine, which was later overturned by Brown v. Board of Education (1954)
• Schenck v. United States (1919) introduced the "clear and present danger" test for determining when speech is not protected by the First Amendment, a standard that was later replaced by the "imminent lawless action" test in Brandenburg v. Ohio (1969)
• Korematsu v. United States (1944) upheld the constitutionality of Japanese American internment during World War II, a decision that has been widely criticized and was formally repudiated by the Supreme Court in Trump v. Hawaii (2018)
• Gideon v. Wainwright (1963) held that the Sixth Amendment right to counsel requires states to provide attorneys for criminal defendants who cannot afford them
• Griswold v. Connecticut (1965) recognized a constitutional right to privacy and struck down a state law banning the use of contraceptives, paving the way for later decisions on abortion (Roe v. Wade) and same-sex marriage (Obergefell v. Hodges)

Constitutional Interpretation Methods

• Originalism is an approach that seeks to interpret the Constitution based on the original understanding of the text at the time it was adopted
  • Original intent variant focuses on the intentions of the Constitution's framers
  • Original public meaning variant emphasizes how the Constitution's text would have been understood by the general public at the time of ratification
• Living constitutionalism views the Constitution as a dynamic document that should be interpreted in light of contemporary values and societal changes
• Textualism is a method that prioritizes the plain meaning of the Constitution's text, often rejecting the use of external sources like legislative history or social science data
• Purposivism seeks to interpret the Constitution in a way that promotes its underlying purposes and values, such as individual liberty and democratic self-governance
• Structuralism focuses on the Constitution's overall structure and the relationships between its various provisions, such as the system of checks and balances and the division of power between the federal and state governments
• Precedent and stare decisis involve adhering to prior Supreme Court decisions to promote stability and predictability in the law, although the Court may overturn precedent in rare circumstances (e.g., Brown v. Board of Education overturning Plessy v. Ferguson)
• Balancing tests are used to weigh competing constitutional interests, such as the government's interest in public safety against an individual's right to free speech or privacy

Federalism and State Constitutions

• Tenth Amendment reserves powers not delegated to the federal government to the states or the people, providing the constitutional basis for state sovereignty
• Police powers allow states to regulate health, safety, welfare, and morals within their borders, subject to constitutional limitations
• Dormant Commerce Clause prohibits states from discriminating against or unduly burdening interstate commerce, even in the absence of federal legislation
• Preemption occurs when federal law supersedes conflicting state law under the Supremacy Clause, which can be express (stated in the federal law) or implied (inferred from the law's structure and purpose)
• Cooperative federalism involves the federal and state governments working together to address common issues, often through federal grants that incentivize states to adopt certain policies (e.g., federal highway funding tied to state drinking age laws)
• New federalism, associated with the Rehnquist Court, sought to limit federal power and restore a greater role for the states in areas like commerce and civil rights
• State constitutions can provide greater protections for individual rights than the federal Constitution, and state courts can interpret their constitutions independently of federal precedent
  • Example: Some state constitutions explicitly protect the right to privacy or the right to education, which are not expressly mentioned in the federal Constitution

Civil Liberties and Rights Debates

• First Amendment freedoms of speech, press, religion, assembly, and petition are essential to democratic self-governance but are subject to certain limitations (e.g., defamation, obscenity, incitement to violence)
• Second Amendment right to bear arms has been interpreted to protect an individual right to possess firearms for self-defense (District of Columbia v. Heller), but the scope of permissible gun regulations remains contested
• Fourth Amendment protects against unreasonable searches and seizures, with evolving debates over issues like warrantless surveillance, stop-and-frisk policies, and border searches of electronic devices
• Eighth Amendment prohibits cruel and unusual punishments, with ongoing debates over the death penalty, solitary confinement, and prison conditions
• Fourteenth Amendment's Equal Protection Clause has been used to combat various forms of discrimination, but there are disagreements over the appropriate level of judicial scrutiny for different classifications (e.g., race, gender, sexual orientation)
• Right to privacy, though not explicitly mentioned in the Constitution, has been recognized as a fundamental right in cases involving contraception (Griswold v. Connecticut), abortion (Roe v. Wade), and same-sex relationships (Lawrence v. Texas)
• Voting rights remain a contentious issue, with disputes over the constitutionality of voter ID laws, partisan gerrymandering, and felon disenfranchisement

Future Challenges and Potential Amendments

• Climate change and environmental protection may require novel constitutional arguments or amendments to address issues like carbon emissions, renewable energy, and conservation
• Artificial intelligence and other emerging technologies raise new constitutional questions related to privacy, free speech, and due process (e.g., the use of algorithms in criminal sentencing or content moderation on social media platforms)
• Electoral College reform or abolition has gained attention in light of discrepancies between the popular vote and electoral outcomes in recent presidential elections
• Overturning Citizens United v. FEC (2010) and regulating campaign finance to address the influence of money in politics may require a constitutional amendment or a change in the Supreme Court's composition
• D.C. statehood and Puerto Rican self-determination have implications for congressional representation and the balance of power in the federal government
• Reforming or expanding the Supreme Court, such as by imposing term limits on justices or increasing the number of seats, could be pursued through legislation or constitutional amendment
• Balanced budget amendment to require federal spending to match revenue has been proposed as a solution to rising national debt and deficit concerns
• Equal Rights Amendment to prohibit discrimination based on sex has been ratified by the requisite number of states but faces legal challenges related to the ratification deadline and subsequent state rescissions