The Supreme Court, Constitution & Bill of Rights of The United States - What History Says

As I recently struggled to put thoughts into words, a close acquaintance of mine mentioned that he thought I possess some very strong opinions. Perhaps a little too strong, he suggested. I responded to his observation by simply saying that I think something’s broken in the system. I went on to say, that if nobody tells anyone about the damage, whatever needs fixed could eventually lead to irreparable damage.

As my friend smirked and listened to what may have become a long, trance-inducing sermon, I started wondering, was it possible that I was wrong? Were my beliefs and views as narrow-minded as I felt were the ideas of my political, philosophical and spiritual foes? Is it possible that I’m just missing a few sections of the big picture, and we really should just… go with the flow? Should we really trust people like President George W. Bush and his political posse, without questioning their actions, intentions, motives and methods?

Using what I know or can find out about communication and media law, I’ll attempt to debate myself to discover if I can see things from the other side of my opinion. In fact, not too long ago, I allowed my opinion of the United States Supreme Court to be altered. While I once believed these nine people who were appointed to this judicial pedestal for life, were partisan puppets, whose strings were pulled by their respective political power mongers, I instead found that most of the decisions rendered by the high court, in my laic opinion, were based on careful thought, consideration and common sense. Granted, whether a Supreme Court Justice leans toward conservatism or tilts toward a liberal perspective of the law often reflects partisanship, it nonetheless has been my conclusion, based on analysis of case law precedent, that the interpretation of the meaning of the laws of America is well-balanced.

Now that I know my opinion is not immovable, I’ll begin this journey of enlightenment by visiting the patriarch of all things legal in our country, The United States Constitution. I’ve always been a patriotic citizen who thought America would be a more peaceful, greater, nation, if only the lawmakers and political policy makers would return the concept of our government, back to the original intent of the Constitution as when it was drafted in 1787. It says right at the top of the Constitution:

We the people, of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

These words alone, would lead me to believe that the intent of this document was to empower the citizens of the new nation, with the governance of that nation. The authors also seemed to desire perfection, justice, peace and security, with the ultimate goal of promoting the well being of its citizens, as well as ensuring them, their descendants and their fellow countrymen enjoyed the freedoms that the nation was founded on 12 years earlier. The Constitution goes on to outline the structure of governing the new nation by designating the three branches of Government as Legislative, Executive and Judicial.

The Congress of the United States of America would be made up of the House of Representatives and the Senate and they would be charged with initiating and enacting the rules of society, and their seats would be filled by elected representatives. The House and the Senate were designed to differ with each other in order to provide a system of checks and balances on the legislation they would implement. Since they were also empowered to raise and maintain the military, enable the development of roads and postage, institute and regulate the nation’s currency and tax laws, and were capable of overruling the President of the United States with a majority vote, the Congress had to be accountable to not only the constituents that elected them to office, but also to the other Chamber of the Congress, the Senate.

The Senate was to be led by the Vice President of the United States, who could only vote to decide a tie, and The House of Representatives was to be led by the internally elected Speaker of the House. Congress’ allotted power was determined by the number of persons residing in the areas they represented. One area of the Constitution with respect to the Legislative branch that I’ve considered unjust is that the Native American people only counted as three-fifths of a person when Congressional jurisdictions and numbers were established. Subsequent laws have since acknowledged the Native American individual as a whole person, which I find comforting. Needless to say, Congress, by design was intended to shoulder a huge responsibility, and the Constitution gave them the power needed to do what was best for the country.

By reading the words written in Article I of the Constitution, I am convinced that the welfare and development of the United States as a nation, was the top-priority of Congressional members. It is simply too well thought out and thorough, to have been a self-serving instrument of personal wealth and promotion.

The Executive Branch of the government of the United States of America is addressed in Article II of the Constitution. This is where the Electoral College started, but I hesitate to hold the framers of the Constitution responsible for dangling chads, blue and red states, uncounted and miscounted votes and inaccurate predictions of winners by the media frenzy.

This was an extremely efficient and logical method for electing The President of the United States and Commander in Chief of the branches of the military in 1787. With the growth of population since then, and a public that seem to exhibit signs of apathy and feelings of insignificance when it comes to electing our President, improvements can be imagined in the electoral process. The technology available to Americans 217 years later would enable us to institute a popular vote. This could also relieve feelings of doubt and encourage an increased level of trust surrounding elections. My theory is that if Google and Yahoo can accurately document the number of visitors that see their web site, the technology to count individual votes is also available to ensure Americans the election of the potentially most powerful man in the world. It could also be conducted without doubt about the integrity of the process.

The other branch of the Government of the United States is the one I’ll primarily be dealing with here in my self-examination of personal convictions. The Judicial branch is covered in Article III of the Constitution and is comprised of the institution charged with the interpretation of the laws implemented and enacted by the Legislative and Executive Branches. They are the nine members of the U.S. Supreme Court and their burden, which among other duties, is to tell us, as a society, how we are affected legally by the statutes enacted by Congress. This responsibility is monumental, and their decisions are vital to a peaceful, orderly co-existence in our world.

My pre-existing belief and the one I am attempting to change, is based on the premise that the Legislative and Executive Branches of American government have forgotten the honor that was bestowed on their office and earned by their character. Furthermore, I intend to examine why it seems that these two branches of our government have forgotten, or just simply disregarded the people who employ them, for the sake of personal and political egotism. They also seem to possess an extra large portion of greed for not only power, but for money also. Although the Constitution did a brilliant job of assigning and documenting responsibilities and jurisprudence for America, it did not include considerations for protecting the rights of the individual citizen.

Most of the framers believed that because the Constitution created a limited federal government, authorities wouldn’t think of trying to establish a national religion, censor a newspaper, or prosecute someone at a secret trial. These beliefs proved to be a strategic error, as the debate between the Federalists and the anti-Federalists about the need for a Bill of Rights to accompany the Constitution hindered ratification by the States.

This debate was not confined to partisan differences. Many religious groups joined the controversy in order to campaign for the need of specific protections regarding religion. The print media wanted assurances they wouldn’t be hindered from printing and distributing their products, and memories of how things were prior to the Revolution encouraged many to push for statutes that protected society from sweeping government searches, unlawful issuance of warrants and infringements on the publics right to due process.

Despite the continuing differences of the various parties with regard to the need of a Bill of Rights, it became obvious to most that a compromise would facilitate the enactment of the Constitution. Finally, on June 21st, 1788, the Constitution was ratified by New Hampshire, which prompted Virginia to follow suit by approving the Constitution five days later. With the two thirds majority of the States acceptance of the Constitution secured, New York, while insisting that a Bill of Rights be considered by the First Congress, acknowledged the adoption. North Carolina and Rhode Island stood by their convictions and refused to ratify without a national Bill of Rights.

James Madison, a dedicated advocate for the protection of personal liberties and freedom of the press, began working toward a Bill of Rights in 1776. He remained dedicated to the cause and kept the Bill of Rights debate alive in Congress after narrowly being elected to the House of Representatives based on a campaign pledge to continue fighting for individual rights. He finally was able to submit his plan to the House in June, 1789. Following significant compromise and debate, the House passed a Bill that was comprised of 17 proposed amendments to the Constitution. In fulfilling their responsibility to America, the Senate went to work scrutinizing and editing what the House had submitted. Both Chambers of Congress finally agreed on 12 amendments and passed them to the States for approval. The 12 amendments were pared down to ten and finally, after a fifteen year battle for the protection of personal rights, Madison saw The Bill of Rights ratified in 1791.

Because of those selfless efforts of our forefathers, we as American citizens are constitutionally guaranteed freedoms that ensure our continued growth and prosperity as a nation. The First Amendment to the United States Constitution says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Originally the Third Article of the Bill of Rights, the First Amendment was barely seven years old the first time it was blatantly violated. In 1798, as the United States anticipated war with France, Congress passed the Alien and Sedition Acts, which gave the Government broad powers to restrict free speech. In this legislation it was written:

That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor…”

The preceding statement of law doesn’t even mention the word Congress, so perhaps the American publics of the late 18th Century were unaware of the breech of agreement with regard to the First Amendment and interpreted the Acts as a necessary way of keeping their homes and families safe. The next section however, becomes a little less subtle. The second section reads as follows

That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government…”

My interpretation of this is that it says, “Don’t you dare scribble, write, accidentally read, print, or talk about anything that your beloved leaders find offensive to them or feel threatened by.” Furthermore, I interpret it to say, “if you don’t like anything about the way your duly elected officials are representing you, you better not express your unhappiness, verbally, written, or telepathically for that matter.” And finally, I’m confident that it means, “If you were to get together with a few similarly minded Americans and discuss what you might be able to peaceably do to address concerns that your legislators and policymakers may be out of line in the direction they’re taking your Nation, you could be punished severely by the same laws, that were enacted to protect your rights to do just that. Fortunately, for America at the time, the following safe guard was also included in the Alien and Sedition Acts:

Sec. 4. “And be it further enacted, that this act shall continue to be in force until March 3, 1801, and no longer...”

These laws were enacted during a period when a young country feared war. They were directed toward new citizens and journalists who favored the Democratic-Republican form of Government; the people with new ideas. The editors of newspapers supporting the Democratic - Republican Party were the only persons ever prosecuted under the original Sedition Act. These trials, along with an outraged society that was critical of the Senate’s tendency to intimidate with threats of contempt for any dissention, led to the Acts being repealed or allowed to lapse in 1801. Even though it wasn’t addressed by the courts at this time, the public outcry sounded loudly and echoed throughout the country. This anger led to some of the first tests of the limits Americans would tolerate with regard to violations of their First Amendment rights.

Now, I mentioned previously, that there are nine, very wise individuals that are appointed to represent the United States of America and to determine what exactly is meant by the laws and policies enacted by government. I have recently grown to respect the sage judgment of most of the Supreme Court Justices that I have had the opportunity to study. I’ve found them to strive to avoid partisan bias, and when that has not been the case, the prejudice has been expressed in the dissenting opinions of the minority and has not directly affected the law.

The U.S. Bill of Rights was not exposed to the thorough and intense scrutiny of the Supreme Court until after the Civil War, when the Court ruled in what is referred to as the “Slaughterhouse Cases of 1873.” This case didn’t set precedent in any way except to affirm that the 14th Amendment didn’t affect the first eight Amendments, effectively blocking any attempt to make the Bill of Rights binding on the States. By the 1960’s however, the Court had applied nearly all of the Bill of Rights to the state level.

In more recent history, liberty issues have been presented to the Supreme Court on a regular basis and the Justices have consistently ruled to maintain the Bill of Rights integrity as it was originally intended to protect personal freedoms. Unfortunately, a few dark periods in our country’s history have negated those noble intentions.

I’ve already mentioned the Alien and Sedition Acts of 1798 and how the government’s fear of war violated the rights of Americans. Unfortunately, we seem to exist as a society whose leaders are insistent on repeating the errors of their predecessors. Case in point, in 1917, legislation was enacted by Congress that was called the Espionage Act. This set penalties for people found guilty of “aiding the enemy, obstructing recruitment, or causing insubordination in the armed forces.” Considering the state of world tensions that prefaced World War I, this legislation could have nearly been considered acceptable. The Bill of Rights wasn’t corrupted too badly until the Espionage Act, through the powers of Congress, gave the Postmaster General powers of censorship of private correspondence. A year later, the lawmakers in Congress, sworn to look out for their constituents interests, proceeded to reach way back in the evolution of a great country, and resurrect the ghosts of the original Sedition Act of 1798 and implement it into the Espionage Act.

This could be considered a brutal rape of the First Amendment. This monster of legislation outlawed “any disloyal, profane, scurrilous, or abusive language intended to cause contempt, scorn, contumely, or disrepute” to the government, Constitution or flag.” The words are different than the Second Section of the Sedition Act of 1798, but 120 years later, America’s constitutional rights to speak their opinions were stripped away without benefit of Judicial Intervention. Furthermore, anyone who questioned policy was also stripped of the right to due process of the courts.

Well, I guess the times were pretty bad at a few points in America’s checkered past. Maybe I have been a little rough on today’s political administration. I guess I can see how the checks and balances provided by the Supreme Court to ensure truth and justice are administered, can be circumvented. I can probably understand how our over- privileged representatives in Congress; have gotten more concerned with padding their personal network of like minded associates instead of doing what they were elected to do. They make quite a bit more money than most of their constituents for doing less work, And to save their humble subjects from the fictitious Weapons of Mass Destruction and world wide terror threats, they’re quick to sign into law a Patriot Act that most of America’s elected representatives didn’t bother to read!

If they would have read it, it’s possible that someone like James Madison would have said, “Wait! This is wrong and it’s violating many of the rights that Americans are entitled to.” Perhaps, someone with the integrity of those early American’s would have noticed that many of the checks and balances that ensure privacy rights are not abused have been rendered powerless by the Homeland Security Act.

I guess my experiment to test the flexibility of my beliefs and opinions hasn’t been too successful. The more I read and learn, the more I’m convinced that I must continue to express my opinion. I feel the need to let every American I come into contact with know that the broken parts of the system need to be fixed now! And I feel a moral responsibility to convince others that its okay to think differently than the status quo wants us to. We must quit surrendering to intimidation and continued infliction of fear therapy as doled out by the people that don’t want people like me to share my ideas and beliefs and don’t want others to hear them. We’re doing the great United States of America a huge disservice by allowing our right to dissent to be quashed. If we don’t stand up and fight for these rights that our forefathers fought so hard to provide us with, we don’t deserve them.