The Misunderstood Constitution

happy constitution day celebration read republicFrom May until September in 1787, 55 brilliant minds in the newly minted United States of America met daily in the old Pennsylvania State House to debate and draft what was to become the most important document in our history: the American Constitution. Today, 231 years later, our Constitution stands as the oldest surviving written constitution in the world, demonstrating its ability to endure for ages to come. This is even more remarkable when you consider that it was entirely the result of compromise; nothing in it was universally agreed upon.

Despite this amazing history, however, the ignorant discourse that permeates social media makes clear that many people (including lawmakers and lawyers) don’t really understand the Constitution. In my view, understanding the Constitution is critical to informing and broadening our perspective and analysis of the social and political issues we face today. With that in mind, here are some thoughts that may be helpful.

Why do we need the Constitution? To answer this question, we must look at how the Constitution differs from other laws. The most basic answer is that unlike other laws, the Constitution is very difficult (although not impossible) to change. While Congress or a state legislature seeking to repeal or change a law it has passed can do so by a simple majority vote, changing the Constitution requires a vote of two-thirds of both the House of Representatives and the Senate, then ratification by three quarters of the states. (Ironically, this makes the Constitution anti-democratic.)

Why, then, in a country that prides itself on the principles of democracy and “majority rules,” would we choose to be governed by something that is so difficult to change? The simple answer, as opined by constitutional scholar Laurence Tribe, is that the Constitution makes sure that “short-term feelings don’t cause us to lose sight of our long-term values.”

What conduct does the Constitution govern? While the Constitution protects all American citizens, it is critical to understand that those protections apply only to actions of the government. Behavior of non-governmental actors (private citizens and businesses) need not comply with the Constitution. Thus, if someone is terminated from a private company for speaking ill of the boss, that person cannot rely on his or her First Amendment right of free speech because that right does not apply to conduct between private actors. Conversely, if a public employee is terminated for criticizing his or her supervisor, that person could rely on his or her First Amendment right of free speech to challenge that termination.

To fill that void, Congress and state legislatures have enacted laws to enforce some of the Constitution’s protections (e.g., civil rights laws that prohibit private actors from discriminating against others based on race, sex, religion, etc.), but these laws are much narrower than the sweeping protections afforded under the Constitution.

Why is separation of powers important? The framers of the Constitution recognized that in times of crisis, there would be a great temptation for a nation to centralize its power. To combat this risk, the Constitution requires approval of two branches before the government can undertake any material action. We see this every day: laws must have the approval of both the legislative and executive branch before going into effect; enforcement of a law requires the executive branch (via law enforcement) to bring an action and the courts to convict; to get a search warrant, we need the executive branch to seek it and the judiciary to approve it.

The purpose of this concept and protection is critical for us to remember – particularly in those trying moments when we feel that “gridlock” is preventing us from moving forward – as that gridlock is a fundamental part of ensuring that the seeds of tyranny cannot easily grow.

Why are only some individual rights included? As Americans, we deem the rights contained in the Constitution (such as freedom of speech and religion), along with protections it grants (such as those against unreasonable search and seizure and cruel and unusual punishment), as so fundamental to our values that we will not permit them to be taken away by a simple majority vote of the legislature. This safeguard necessarily protects those citizens who may find themselves in the minority from the “tyranny of the majority” as described more fully by James Madison in Federalist Papers No. 51. That is the true beauty of our Constitution, in that it ensures both that a minority of the population can’t bind the majority, while at the same time ensuring that the majority of the population can’t infringe on the constitutional rights of the minority – at least without a fight.

What is the role of the courts with regard to the Constitution? Federal courts, and ultimately the United States Supreme Court, have the role and responsibility to interpret the Constitution (state courts play the same role for state constitutions). Understandably, many wonder why after all these years there are still so many points that need to be interpreted (and sometimes reinterpreted) in a document that has remained basically unchanged for over two centuries.

One reason is that many important issues are simply not addressed in the Constitution (e.g., executive privilege and firing of cabinet members). Another reason is that the Constitution was purposefully written in broad language and doesn’t define many of the terms it uses: what is “cruel and unusual punishment,” “due process,” or “speech”? Most importantly, however, courts need to interpret the Constitution because no right it gives us is absolute: for example, while we are guaranteed freedom of speech, we have no right to falsely yell “Fire!” in a crowded movie theater.

Since judicial review of the Constitution is our most important safeguard, many debates rage over the different judicial philosophies that judges apply when interpreting it – and the sometimes inconsistent results those differing philosophies produce. Thus, the Supreme Court’s interpretation of the Constitution has led to some of the greatest triumphs (Brown v. Board of Education) and failures (Dred Scott) of this country’s history.

I hope that this overly simplistic roadmap of the Constitution serves as a refresher and gives some context to its truly amazing role in our everyday lives. If you’re inspired to learn more, check out  this 2016 talk by Dean Erwin Chemerinsky (formerly of the University of California Irvine School of Law, now at Berkeley Law) called “The Constitution: What Students Should Know.”

By – Joe Campolo

Joe Campolo is a lawyer, Marine, Long Island business leader and philanthropist who serves as Managing Partner of Campolo, Middleton & McCormick, LLP, a premier law firm with offices in Ronkonkoma and Bridgehampton. Check out Joe’s blog, Off the Record, and other interesting content at http://joecampolo.com/, and sign up to receive new posts in your inbox!

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William Heino Sr.
5 months ago

In light of the recent ruling (6/4/21 ) by Federal judge Roger Benitez overturning a California firearms ban on assault weapons where he ruled it violates the Constitutional right to bear arms, his words, referring to the Second Amendment, I have a suggestion. In my thesis regarding the Second Amendment I think it will prove his ruling “..right to bear arms” has everything to do with a “militia” and nothing to do with a “person” or individual, which the following will suggest..

In some 225 years neither law professors, academic scholars, teachers, students, lawyers or congressional legislators after much debate have not been able to satisfactorily explain or demonstrate the Framers intended purpose of Second Amendment of the Constitution. I had taken up that challenge allowing Supreme Court Justice Amy Coney Barrett’s dilemma to understand the true intent of the Second Amendment.

I will relate further by demonstration, the intent of the Framers, my understanding using the associated wording to explain. The Second Amendment states, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Militia, a body of citizens organized for military service.

If, as some may argue, the Second Amendment’s “militia” meaning is that every person has a right to keep and bear arms, the only way to describe ones right as a private individual is not as a “militia” but as a “person.” (The individual personality of a human being: self)

The 4th Amendment reminds us, “The right of the people to be secure in their persons….”

The Article of Confederation lists eleven (11) references to“person/s.” The Constitution lists “person” or “persons” 49 times to explicitly describe, clarify and mandate a constitutional legal standing as to a “person” his or her constitutional duty and rights, what he or she can do or not do.

It’s not enough to just say “person/s” is mentioned in the United States Constitution 49 times, but to see it for yourself (forgo listing), and the realization was for the concern envisioned by the Framers that every person be secure in these rights explicitly spelled out, referenced and understood how these rights were to be applied to that “person.”

Whereas, in the Second Amendment any reference to “person” is not to be found. Was there a reason? Which leaves the obvious question, why did the Framers use the noun “person/s” as liberally as they did throughout the Constitution 49 times and not apply this understanding to explicitly convey the same legal standard in defining an individual “persons” right to bear arms as a person?

Justice Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s, of which 13 characterize either a gun or firearm. Her Second Amendment, “textualism” approach having zero reference to “person/s. Justice Barrett’s view only recognizes “person/s” in Barr, as well in her many other 7th circuit rulings. It is her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept language of “person/s,” mandated in our Constitution 49 times, to the Second Amendment.
Leaving Supreme Court Justice Barrett’s judgment in question.

In the entire U.S. Constitution “militia” is mentioned 5 times. In these references there is no mention of “person” or “persons.” One reference to “people” in the Second Amendment. People, meaning not a person but persons in describing militia.

Now comes the word “shall” mentioned in the Constitution 100 times. SHALL; ought to, must ..

And interestingly, the word “shall” appears in the Second Amendment. “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, and shall not be infringed.”

[S]hall not be infringed.” Adding another word “infringed” to clarify any misunderstanding as to the intent of the Second Amendment. Infringe. To encroach upon in a way that violates law or the rights of another;

The condition “Infringe” has put a stop as to any counter thoughts regarding the Second Amendment, as you shall not infringe or encroach on beliefs other to what is evident as to the subject “Militia.”

Finally, clarifying “..the right of the people to keep and bear arms…
People. Human beings making up a group or assembly or linked by a common interest.

In closing, I am not against guns, everybody has them. I’m against using the Second Amendment illogically as a crutch. If it makes those feel better so be it. Just what it deserves, use it with a wink.

William Heino Sr.

Murf Appling
3 years ago

Must agree with Mr. Berry & Mr. Brian B!! Taught American Government 4 20 yrs, @ the secondary level, N 2 public high schools – would differ with your writer’s opinions on a number of issues.

Ivan Berry
3 years ago

Amac should do a better job of vetting those whose articles appear hear and take care to note those views that are anathma to most who subscribe to consertive thinking.
Joe Campolo has some odd positions about smaller government and more government action on selective issues.
His proffessor of note on his blog referring the above article has an advocacy position on gay marriage that AMAC should not encourage as indicated by the views of our readers.
Mr. Campolo’s articles tend to be all over the board, mixing “feel good” and “pie in the sky” solutions to rectify common problems that have usually come with someone meddling where they had no business in the first place.

Brian B
3 years ago

The Constitution of the United States was written for a moral people. It’s unspoken roots lie in the Judeo-Christian values of the Ten Commandments. And it’s continued success is dependent upon a people whose majority is honest and moral. It’s not surprising that subversive organizations like the ACLU have sued to have representations of the Ten Commandments removed from courthouses and other public property. The Constitution is the only thing standing in the way of the secularism and slavery of a New World Government. And our adherence to the Ten Commandments is the only thing that protects and preserves the Constitution as a living/breathing document of a free people.

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