Constitutional-Literacy-7

=**Section 7: Does the Bill of Rights Apply to the States?**=

Which levels of government are required to obey the Bill of Rights? The first amendment starts out stating that "Congress shall make no law..." and doesn't mention the states. It's specific to the Congress and what the Congress cannot do. Some of the other amendments are more vague. What were the intentions? Were the Bill of Rights meant to apply only to the federal government or to the states as well? In Barron v. Baltimore 1833, Barron owned a wharf. As the city was developing large amounts of sand accumulated in the harbor and some of the streams got diverted from his wharf. This ruined his property value.and deprived him of deep waters necessary for his business since ships couldn't get to his wharf. The Supreme Court sided with the city. Chief Justice John Marshall recounted that in nearly every ratifying convention there was a demand for the Bill of Rights for security against the encroachment of the general government, not against local government. Marshall said the amendments (Bill of Rights) contain no expression indicating that they are to be applied to state or local governments and the Supreme Court cannot apply them. Marshall said the Supreme Court had no jurisdiction in this matter since the Bill of Rights were not applicable to the states. He also noted that each state has its own set of bill of rights for each state to obey.


 * Comprehension Question: Did the ruling in Barron v. Baltimore say that the Bill of Rights applied to the states as well or not?**

What about today? Now, the states have to obey SOME, but not all...there's no logic! It's all based on what the Supreme Court says. An example is with the 5th amendment. The 5th amendment says there must be a grand jury for indictments, no double jeopardy, no self-incrimination (can't be forced to testify against yourself), due process of law (all treated fairly under the law), and government has the power of eminent domain (can take your property for government use). The grand jury part and the due process part each do not apply to the states. Says who? The Supreme Court. The 7th amendment doesn't apply to the states either. There is no major reason why based on original intentions or texts of those who debated and passed the Bill of Rights.

Changes came in 1868 with the 14th amendment. This amendment came right after the Civil War and was intended to ensure citizenship and equal rights for the former slaves.

Article XIV
1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its the equal protection of the laws. 2: Representatives shall be among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male  inhabitants of such State, being years of age, and citizens of the United States, or in any way, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such  male  citizens shall bear to the whole number of  male  citizens years of age in such State. 3: No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of of each House, remove such disability. 4: The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. 5: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article

The Due Process Clause in the first part is what the Supreme Court will use. In 1872 the Supreme Court ruled on the Slaughterhouse Cases. A company in New Orleans had a monopoly, which they were able to gain under Louisiana law, which was set up by the state. The lawsuit questioned whether or not this violated the 14th amendment. The Supreme Court ruled that it did not because the 14th amendment's purpose was to keep blacks from unequal treatment. In 1876 in United States v. Cruikshank dealing with the KKK, the Supreme Court did rule that the Bill of Rights only applied to the federal government. So, if the 14th amendment was intended to be for the states, it would've been seen in these cases especially since, at the time, the Supreme Court operated in the basement of the Capitol and had more access to the legislators.


 * Comprehension Question: What were the cases in the 1870s that also ruled that the Bill of Rights did not apply to the states?**

What happened? If the intent of the 14th amendment was to keep from discrimination and the Bill of Rights didn't apply to the states, what changed? Change took place from Supreme Court rulings in the 1920s. Nebraska had banned all foreign language instruction in their schools. A teacher was prosecuted for teaching German in a private religious school (it's a private school - parents would be paying for the schooling and knew what was being taught). In this case, Meyer v. Nebraska 1922, the Supreme Court ruled that the due process clause was more than a guarantee to a fair trial with proper processes and that it protected those privileges long recognized from common law as essential to the orderly pursuit of happiness by free men. This ruling meant that the Nebraska law was in violation of the 14th amendment. By ruling this way, the Supreme Court applied the 14th amendment to the states (the ruling is correct that such a law violates freedom, but the Nebraska state supreme court should have been ruiling this way, not the U.S. Supreme Court). In Pierce v. Society of Sisters of the Holy Names of Jesus and Mary in 1925 the Supreme Court ruled that an Oregon law banning all private schools was unconstitutional. One week later the court ruled in Gitlow v. New York in which an anarchist was convicted for advocating the overthrow of the government. He claimed freedom of speech and the press and that New York had to obey the federal Bill of Rights specifically the first amendment. The Supreme Court ruled against Gitlow (the anarchist), but didn't dismiss the case over jurisdiction (didn't rule that the Bill of Rights didn't apply to the states and the New York courts should rule based on the New York state constitution). The Supreme Court used wording from the Meyer and Pierce cases. The reasoning was "for present purposes, we may and do assume that freedom of speech and press...are among the fundamental personal rights protected by the due process clause of the 14th amendment from impairment by the states." This ruling was to be temporary in assumption, but is far from temporary. Over the decades, the Supreme Court has ruled that most of the Bill of Rights is applicable to the states.


 * Comprehension Question: How did the Gitlow v. New York case change the original intentions of the Bill of Rights and 14th amendment?**


 * Comprehension Question: Which two cases were parental-rights cases (that dealt with parents choosing their child's education) were the precursors of the incorporation doctrine - the doctrine saying most of the Bill of Rights apply to the states?**


 * Comprehension Question: What kind of rights (two freedoms) did the Supreme Court say were protected by the 14th Amendment's Due Process Clause after Gitlow?**

In D.C. v. Heller 2008 the Supreme Court struck down D.C.'s strict gun control laws, but D.C. is under federal jurisdiction, but stopped short of saying that the Bill of Rights was not applicable to the states. Most believe the Bill of Rights have always applied to the states. Every state has its own bill of rights in their own state constitutions. The federal Bill of Rights was never intended to be a one size fits all. For example, some states might allow "moments of silence" in schools while others might not, but the Supreme Court ruled for the whole nation that schools can't have "moments of silence" daily. McDonald v. Chicago 2010 established that the 2nd amendment is also binding on the states through the Due Process Clause of the 14th amendment.


 * Comprehension Question: How have recent cases failed to hold the original intentions of the Bill of Rights in terms of applying to the states?**


 * Discussion Question: Do you think the Bill of Rights should also apply to the states or only to the federal government and allow each state to rule based on their individual state constitutions (be sure to remember that all 50 states do have a constitution and do have rights and freedoms all listed)? What do you think was the original intentions of the Bill of Rights in terms of application to the states? Explain your thoughts.**

=**Section 6: Powers of the President** =

 The Constitution gives us a short list in Article II on the powers of the presidency. The president is commander-in-chief of the armed forces, can require reports from the cabinet, has the power to pardon, can make treaties, appoint senior officials and judges, and reports to Congress yearly on the state of the union, can recommend legislation, can call Congress into special session, and is required to faithfully execute the laws. Can the president send troops to war without a declaration of war? Can the president and executive agencies make executive orders and regulations that have the force and effect of law? Can the president enter into some kind of treaty without the consent of the Senate? Article I Section 8 says Congress has the power to declare war, therefore the answer to the first question is no...but the last time Congress declared war was WWII. Congress has authorized the recent wars that we were involved in, but that's not a declaration of war. Presidents have been able to put the troops into combat without a declaration of war. Article I Section 1 says all legislative (lawmaking) powers are in the hands of the Congress, so the answer to the second question should be no...but presidents issue executive orders, which have the force and effect of laws and the bureaus and agencies often issue regulations that have the force and effect of laws. Article II Section 2 says the Senate must approve of treaties...but the presidents have been able to develop executive agreements with foreign leaders that are like treaties, but don't need Senate approval, although executive agreements are only binding until a new president takes office.


 * Comprehension Question: What are two powers of the president that require the advice and consent of the Senate? **

 When the president issues an executive order or when bureaus and agencies issue a new regulation, this is known as administrative law. There are 200 books on executive regulations - 200 books never passed by Congress, even though Article I Section 1 says the legislative power shall be vested in a Congress. Since World War II, presidents have preferred to enter into agreements without the advice and consent of Congress. These are known as executive agreements. This term has no basis in international law. What this means is when a president enters into an executive agreement with a foreign leader, that leader and nation sees it as a binding treaty forever, even though in the U.S. executive agreements are not to be binding from president to president. The U.S. is part of 900 treaties that were ratified by Congress, but over 5,000 executive agreements that were never ratified by Congress. Presidents from both parties have done this and Congress has been okay with that. Why has the Congress allowed executive agreements and executive orders even though both of these require Congressional action? Why would the Congress be okay with the executive branch making regulations that have the force and effect of law?


 * Comprehension Question: Together, all of the presidents have issued over 13,000 executive orders. There are approximately 200 volumes in the Code of Federal Regulations, which contains the rules created by executive agencies under the president. Many of these executive orders and most of these regulations claim the authority of law to directly control private people's actions and property. What provision of the Constitution is being violated? **

 An example of what Congress does can give us some insight as to why. Congress passes a law - let's say a law saying they want a clean air policy. Then, the Congress creates broad rules and procedures and leaves the details in the hands of the EPA - the Environmental Protection Agency, an unelected executive agency in the bureaucracy. The role of the EPA should be simply to enforce the clean air policy passed by Congress. However, when Congress passed the law, they left the details of the law in the hands of the EPA. Therefore, the EPA makes the rules that all farmers and businesses are required to obey or be punished for violation of the law - the law that the EPA detailed. See what happened? Congress removed itself from all political liability if the new EPA regulations upset some people. It'll be easier for members of Congress to win re-election (keep in mind the EPA isn't elected - they get jobs through being hired like any of us). A representative or senator can look good by telling voters "I wrote a stern letter of concern to the EPA." No big deal - no consequence - business owners must comply though. The Congress comes out looking like the heroes wanting clean air, the unelected EPA takes the rap and there's no authority except the president over the EPA and a president unfriendly to business wouldn't stop the EPA. Take our coal industry and the EPA regulations that have led to layoffs in the coal industry. Those against these regulations are upset with the EPA, but can't do anything about it. If Congress had passed the laws that in effect the EPA did, members of Congress could be voted out. People can't vote the EPA out of office - Congress avoids responsibility. This is important when you're voting for a member of Congress - hold them accountable.


 * Discussion Question: How can you answer people who argue that if we required Congress to pass all of the laws, rather than allowed administrative agencies to pass regulations, Congress wouldn't have time to enact all of the laws we need? **

 What about presidents putting troops into combat without a declaration of war? Article 1 Section 8 gives Congress the power to declare war. Why does Congress allow this? Same basic idea as above. Congress doesn't take the responsibility. If we go to war when a president wants to, Congress can support it when it's going good and look good and criticize the president when it's going bad and STILL look good. This the case in the war in Iraq beginning in 2003. President George W. Bush sent troops into Iraq after Saddam Hussein. Congress authorized going to war, including votes in favor by high ranking Democrats such as John Kerry (who ran against Bush in 2004) and Hillary Clinton. When the war was lasting longer than expected, many of those who voted yes to authorize war became some of the most outspoken members of Congress against the war. When Congress doesn't take an official declaration of war vote, they avoid responsibility. The Supreme Court has not taken up cases on this matter. Lower courts have allowed presidents to commit troops into combat without a declaration of war when cases have come up. Vietnam was allowed since Congress approved the funding. Iraq was allowed since Congress passed authorization for the president to use force. In the court case Doe v. Bush, the authorization for war in Iraq was challenged (this wasn't at the Supreme Court - lower federal court) with a ruling that said no issue since Congress and the President weren't at odds about the war. This ruling makes it seem to be more of a president-Congress problem. This court ruling said it would only be an issue of the president and Congress were at odds about sending troops into combat.


 * Discussion Question: Why is it important for Congress to declare war, rather than for our nation to enter into war solely upon the decision of the president? **


 * Comprehension Question: Since World War II, a number of presidents have sent troops to war (Korea, Vietnam, etc) without making a declaration of war. What provision of the Constitution is violated by this practice even if Congress authorizes the funding and the action? **

 Executive orders are issued by the president or executive agencies. In 1952, Youngstown Sheet and Tube v. Sawyer was a court case based on a steel union that was going to strike during the Korean War. President Truman ordered the Commerce Department to seize the mills saying it was necessary for the war effort. The court ruled that this action was unconstitutional. The courts have upheld executive actions with congressional approval. In 1984, an environmental group sued Chevron for violation of EPA rules. The EPA claimed it had administrative discretion. The Supreme Court allowed them to make rules. Agencies are allowed to make rules (based on court decisions) as long as the Congress doesn't prohibit those rules. This means that the Congress can now give executive agencies a lot of power. This is not the original intentions of the Founding Fathers. This makes us less of a republic. Some argue that without the regulations made by executive agencies the Congress would be too busy. However, remember that the Congress has expanded its power through the Commerce and General Welfare Clauses. If Congress acted within the original intent of both of these clauses, it wouldn't be too busy.


 * Comprehension Question: How did the Youngstown Sheet and Tube v. Sawyer decision limit the president's powers? **

 Article 2 Section 2 says the president has the power to make treaties on the consent of 2/3 of the Senate. Executive agreements have been upheld by the Supreme Court as well. In 1933, Franklin D. Roosevelt granted recognition to the Soviet Union. In an executive agreement the U.S. agreed to turn over all Russian assets. A Russian insurance company had a large sum of money in a New York bank. The U.S. sued to take that money and give it to the USSR based on the executive agreement with Communist Russia. The Supreme Court ordered the New York bank to send the money to the USSR. FDR's private agreement with the USSR (executive agreements don't come with Senate approval) overrode New York's law protecting the company. The case was United States v. Pink 1942. Ever since then there have been over 5,000 such agreements - no Senate approval.


 * Comprehension Question: What are the "treaties" called by the White House and State Department that are made by presidents without Senate approval? How do these agreements violate the Constitution? **

 The Founding Fathers intended us to be a nation of laws, not a nation of men. Our institutions have been steadily growing in power as our individual freedom and our Constitution have been taking a hit.

 Presidents don't have constitutional authority to change existing law. However, as America has become more polarized, the public basically developed the position that if it's a policy I like, then I'll justify the policy, but if it's one I oppose then I cite the Constitution! A prime example was in 2016 the Supreme Court looking at President Obama's change to immigration law by executive order in terms of illegal immigrant students. Supporters of the president like the policy. It might be good policy, it might be bad policy, but it changes the actual law. The president is right that the Congress at the time, controlled by Republicans, would never pass what he wanted. The problem for the president is that the law he wants changed was passed by a previous Congress (and signed by a previous president). The Constitution doesn't give the president authority to change it...but the president's supporters do!
 * <span style="background-color: transparent; color: #000000; font-family: arial,helvetica,sans-serif; font-size: 13px; text-align: left; text-decoration: none;">Discussion Question: Why is it important to stay in line with the Constitution, even if we agree with a policy that the Constitution doesn't allow? **

<span style="background-color: transparent; color: #000000; font-family: Times New Roman; font-size: 13.33px; text-decoration: none;">**Overall: Summarize the main idea of this section and why it's important.**

Back to the Constitutional Literacy main page