Settled Law and a Living Constitution

We are often told that we have a "living" constitution. I am a moderate and agree with this assessment. After all, if it were not so, we would still be living with a permanent decision in the Dred Scott case. Nobody is in favor of that.

A "living" constitution has given us most of the freedoms we enjoy today. Many of them are bundled within the 14th Amendment, which is somewhat akin to placing all your eggs in one basket. But that's another story......

This year there has been a sea change in our society surrounding the Roe v Wade decision, which was made under the auspices of the 14th Amendment. Several states, almost half at this point, have passed new restrictions on abortion, leading the Pro Choice crowd to talk of "settled law."

While I am pro choice, I am also a Constitutionlist and a believer in a "living" Constitution. After all, it was this belief in a "living" Constitution upon which Roe v Wade was predicated and upheld.

Settled Law implies that once the Supreme Court decides an issue, then it's settled. Court nominees have had to convince Congress that they believe Roe v Wade to be settled law. I do not believe in "settled" law.

So, how do I merge both beliefs, which may seem to be in opposition to one another? Let's explore this.....

A Living Constitution implies that changes made by Amendment will apply as the people change and society grows.

Some people will be saying that the changes to abortion law are all part of a "living Constitution", and there is merit in that argument.

Others will opine that "Settled" Law means there can be no changes made to law after a Supreme Court decision has been rendered. There is also some merit to that view.

To really decide this issue you have to look at which changes by Amendment have been successful and which have not. You don't have to look very far for the example. It was the Volstead Act, the 18th Amendment in 1920. It was a failure and repealed by the 21st Amendment in 1933.

Here then, is the dilemma we face.

If we believe in settled law then we should still have slavery under Dred Scott, or Separate but Equal. Since "settled" law is not possible with an amendable Constitution, we don't have those things anymore.

So, we would have to say we don't believe in settled law. We believe in a "living" Constitution which changes with the needs of the people. (Notice I say "needs" and not "wants.")

People wanted Prohibition, just as they once approved of slavery. We are not populists. So, the "living" Constitution is capable of changing its mind, just as it did with the Volstead Act.

This may seem as being in agreement with a reversal of Roe v Wade under the 14th Amendment, but it wouldn't be true.

The big difference in all of this argument, and the point which most often goes unsaid, is that "settled" law has only always applied to our being granted more rights under the law.

The one time they tried to use the Bill of Rights, which is comprised of all 27 Amendments, to tell us what we could not do, was a failure and needed to be reversed.

Abortion is a right granted, not removed. As such, "settled" law is not contradictory to our "living" Constitution. It is compatible with it.

Who is a Citizen Under the Constitution?

The current contretemps concerning who is a Citizen under our Constitution seems to be revolving around the term “anchor baby”, which is a way of referring to a child born on U.S. soil automatically being a citizen. Although that has long been our accepted policy, the Constitution is not crystal clear on this issue.

Since this topic is destined to dominate the news for a couple of days, at least, I thought it might be helpful to post the 2 places in the Constitution where Citizenship is mentioned. The first is from Article 1; while the second is from the 14^th Amendment, which seems to have become the “eye of the storm.”

I have synopsized the meaning of each quote from the Constitution in an effort to give them some historical context.

Article 1, Section 4:8 states “Congress shall have the Power to……Establish an Uniform Rule of Naturalization…”

This implies that Congress would be responsible for setting up a bureau to deal with the specifics of Immigration and Naturalization. Today we call that organization Immigration and Customs Enforcement, or ICE, as it is more commonly referred. At the time it was written many of our leading citizens; including some of the leading politicians of the time; were not born here; hence the need to define the term Citizen.

The 14^th Amendment states in Section 1; “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.

The point of contention here seems to rest not in the opening phrase that all persons born here are Citizens, but rather in the phrase “subject to the jurisdiction thereof.” The phrase was included as a way of addressing the issue of “Indians not taxed” in the 2^nd Section of the Amendment.

I hope that this information will prove helpful to the reader as the controversy rolls forward.

The 14th Amendment

On February 8, 1861 the seven Southern States announced their secession from the Union they had pledged to join under the Constitution which included Article 1 Section 2; and a 3/5 of a person rule as far as slaves were concerned. This gave the more rural Southern states representation based on a population that included many slaves; whose votes went to their owners under the 3/5 provision. This was of course changed by the 14^th Amendment in 1869.

The South violated the Constitution in seceding from the Union by claiming a Right under the 10^th Amendment; which gives the States rights over certain issues; or powers; not relegated to the Federal Government. It sounds nice; but seceding violated Article 1 Section 4 which prohibits states from leaving the Union.

The 14^th Amendment was, however, enacted under strange circumstances as the South was just getting back on its feet and re-establishing their state legislatures. North Carolina and South Carolina were the last 2 states to ratify the 14^th Amendment, and only did so under duress. The 39^th Congress made it mandatory for the states to ratify the Amendment as a condition of rejoining the Union. There are parts of the South where Amendment 14 is openly despised, and there has even been talk of trying to abolish it by Amendment, in much the same way as Prohibition; the 18^th Amendment; was later repealed by the 21^st Amendment.

This may sound far-fetched, but it’s really not. The crux of the argument for repeal would be that the states have a right under Article 1, Section 4; which gives the states the right to proscribe the time, place and manner in which to hold elections. That argument would hold that the state legislatures of the South; particularly North Carolina and South Carolina; were mandated to approve the 14th Amendment as a condition to re-join the Union. But a closer inspection of the text reveals that though they have that right, Congress may change or alter that law except for the choosing of Senators. Still, it would be a messy battle with much at stake.

As time went on the 14^th Amendment became the “go to place” to fit in every perceived “right” which Americans wanted to include. Although I am in agreement with the issues at hand, I also think the 14^th Amendment has become so overburdened that should it ever be repealed or amended it would affect many areas of our society. The 14^th Amendment has become the easy path for expanding rights in all sorts of instances.

This sort of overburdening was not begun until after Women’s Suffrage; the 19^th Amendment; which could have been added to the 15^th Amendment giving the right to Vote to all men of any race. The problem with that would have been the ensuing call for universal suffrage at a time when black men were still routinely barred from voting in the Southern states. The implication of the 19^th Amendment was that it had nothing to do with the precedent set up by the 15h Amendment. In other words; blacks were still not going to be able to vote. This is one of the instances in which bundling like-minded legislation would have resulted in a positive change.

Civil Rights and the Voting Rights Act both have their underpinnings in the 14^th Amendment, and these protections should have been tacked onto that Amendment; making it stronger.

But the 14th Amendment now holds the Miranda Decision; which should have been founded under the 5th Amendment; the right to have due process; which would include an attorney and the right to remain silent.

Abortion and Same Sex Marriage are both rights which should have been held to exist under the 9^th Amendment; “the enumeration of certain rights, shall not be construed to deny or disparage others retained by the people.”

This may all seem to be unimportant; and perhaps it is just a “parlor game” which I like to play when I have nothing better to do. But think of it this way; you’re mailing all of your valuables to a new home. Do you put them all in one envelope, or do you break it up into several packages so that you don’t lose it all in one shot? To put it more simply; you just don’t put all your eggs in one basket. This is especially true when there are other baskets lying around, waiting to be used.

Alabama Voter's Literacy Test - 1965

Lately there have been a lot of people; both Liberal and Conservative; who have called for the return of “literacy tests” to become eligible to Vote. This is in addition to the Conservative movement to roll back the Voting Rights Act of 1965. The photograph above was taken just after LBJ signed that bill into law in August 1965.  Among the people in the photograph are MLK and Rosa Parks.

Most people that call for the return of literacy tests are speaking in jest; more like exasperation at the views of the people who hold different political views than they themselves have. But, just for fun, I’d like everyone to take this 1965 Alabama test and see how they would score. Keep in mind that your level of education is far greater than that of the average African-American who would have been required to take this test in the 1960’s. And remember, in Alabama at the time education was a privilege and not a right for the people required to take this test.

The next time you hear someone talk about how “there ought to be a test for voting” whip this out and see how they would fare. You have about 15 minutes to complete the test and one wrong answer is a failing grade. You will be surprised at how little you think you know.

1. Which of the following is a right guaranteed by the Bill of Rights?

 _____Public Education

 _____Employment

 _____Trial by Jury

 _____Voting

 2. The federal census of population is taken every five years.

 _____True _____False

 3. If a person is indicted for a crime, name two rights which he has. ______________________ ________________________

 4. A U.S. senator elected at the general election in November takes office the following year on what date? _________________________________________________

 5. A President elected at the general election in November takes office the following year on what date? ______________________________________________________________________

 6. Which definition applies to the word "amendment?"

 _____Proposed change, as in a Constitution

 _____Make of peace between nationals at war

 _____A part of the government

 7. A person appointed to the U.S. Supreme Court is appointed for a term of __________.

 8. When the Constitution was approved by the original colonies, how many states had to ratify it in order for it to be in effect? _________________________________________

 9. Does enumeration affect the income tax levied on citizens in various states? __________

 10. A person opposed to swearing in an oath may say, instead: I (solemnly) ______________________________________________________________

 11. To serve as President of the United States, a person must have attained:

 _____25 years of age

 _____35 years of age

 _____40 years of age

 _____45 years of age

 12. What words are required by law to be on all coins and paper currency of the U.S.? ________________________________________________________________________

 13. The Supreme Court is the chief lawmaking body of the state.

 _____True _____False

 14. If a law passed by a state is contrary to provisions of the U.S. Constitution, which law prevails? ________________________________________________________________________

 15. If a vacancy occurs in the U.S. Senate, the state must hold an election, but meanwhile the place may be filled by a temporary appointment made by ________________________________________________________________________.

 16. A U.S. senator is elected for a term of _____ years.

 17. Appropriation of money for the armed services can be only for a period limited to _____ years.

 18. The chief executive and the administrative offices make up the ___________________ branch of government.

 19. Who passes laws dealing with piracy? ________________________________________________________________________

 20. The number of representatives which a state is entitled to have in the House of Representatives is based on _________________________________________________

 21. The Constitution protects an individual against punishments which are _______________ and _______________________.

 22. When a jury has heard and rendered a verdict in a case, and the judgment on the verdict has become final, the defendant cannot again be brought to trial for the same cause.

 _____True _____False

 23. Name two levels of government which can levy taxes: ________________________________________________________________________

 24. Communism is the type of government in: _____U.S.

 _____Russia

 _____England

 25. Cases tried before a court of law are two types, civil and _________________________.

 26. By a majority vote of the members of Congress, the Congress can change provisions of the Constitution of the U.S.

 _____True _____False

 27. For security, each state has a right to form a _________________________________.

 28. The electoral vote for President is counted in the presence of two bodies. Name them: _____________________________________________________________________

 29. If no candidate for President receives a majority of the electoral vote, who decides who will become President? ___________________________________________________

 30. Of the original 13 states, the one with the largest representation in the first Congress was ______________________________________________________________________.

 31. Of which branch of government is the Speaker of the House a part? _____Executive

 _____Legislative

 _____Judicial

 32. Capital punishment is the giving of a death sentence.

 _____True _____False

 33. In case the President is unable to perform the duties of his office, who assumes them? ___________________________________________________________________

 34. "Involuntary servitude" is permitted in the U.S. upon conviction of a crime.

 _____True _____False

 35. If a state is a party to a case, the Constitution provides that original jurisdiction shall be in ______________________________________________________________________.

 36. Congress passes laws regulating cases which are included in those over which the U.S. Supreme Court has ____________________________________________ jurisdiction.

 37. Which of the following is a right guaranteed by the Bill of Rights of the U.S. Constitution.

 _____Public Housing

 _____Education

 _____Voting

 _____Trial by Jury

 38. The Legislatures of the states decide how presidential electors may be chosen.

 _____True _____False

 39. If it were proposed to join Alabama and Mississippi to form one state, what groups would have to vote approval in order for this to be done? ________________________________________________________________________

 40. The Vice President presides over ____________________________________________.

 41. The Constitution limits the size of the District of Columbia to ______________________________________________________________________.

 42. The only laws which can be passed to apply to an area in a federal arsenal are those passed by ___________________________________________ provided consent for the purchase of the land is given by the _________________________________________.

 43. In which document or writing is the "Bill of Rights" found? ______________________.

 44. Of which branch of government is a Supreme Court justice a part?

 _____Executive

 _____Legislative

 _____Judicial

 45. If no person receives a majority of the electoral votes, the Vice President is chosen by the

 Senate. _____True _____False

 46. Name two things which the states are forbidden to do by the U.S. Constitution. ________________________________________________________________________ ________________________________________________________________________

 47. If election of the President becomes the duty of the U.S. House of Representatives and it fails to act, who becomes President and when? _______________________________________________________________________

 48. How many votes must a person receive in order to become President if the election is decided by the U.S. House of Representatives? _______________________________

 49. How many states were required to approve the original Constitution in order for it to be in effect? ______________________________________________________________

 50. Check the offenses which, if you are convicted of them, disqualify you for voting:

 _____Murder

 _____Issuing worthless checks

 _____Petty larceny

 _____Manufacturing whiskey

 51. The Congress decides in what manner states elect presidential electors.

 _____True _____False

 52. Name two of the purposes of the U.S. Constitution. _________________________________________________________________________

 53. Congress is composed of __________________________________________________.

 54. All legislative powers granted in the U.S. Constitution may legally be used only by ______________________________________________________________________.

 55. The population census is required to be made very _____ years.

 56. Impeachments of U.S. officials are tried by ___________________________________.

 57. If an effort to impeach the President of the U.S. is made, who presides at the trial? _____________________________________________________________________

 58. On the impeachment of the chief justice of the Supreme Court of the U.S., who tries the case? ________________________________________________________________

 59. Money is coined by order of:

 _____U.S. Congress

 _____The President's Cabinet

 _____State Legislatures

 60. Persons elected to cast a state's vote for U.S. President and Vice President are called presidential _________________________________________________________.

 61. Name one power which is exclusively legislative and is mentioned in one of the parts of the U.S. Constitution above______________________________________________.

 62. If a person flees from justice into another state, who has authority to ask for his return? _____________________________________________________________________

 63. Whose duty is it to keep Congress informed of the state of the union? _____________________________________________________________________

 64. If the two houses of Congress cannot agree on adjournment, who sets the time? _____________________________________________________________________

 65. When presidential electors meet to cast ballots for President, must all electors in a state vote for the same person for President or can they vote for different persons if they so choose? _____________________________________________________________________

 66. After the presidential electors have voted, to whom do they send the count of their votes? _____________________________________________________________________

 67. The power to declare war is vested in ________________________________________.

 68. Any power and rights not given to the U.S. or prohibited to the states by the U.S. Constitution are specified as belonging to whom? ______________________________

Here are the answers;

1. Trial by Jury only

 2. False (every 10 years)

 3. Habeas Corpus (immediate presentation of charges); lawyer; speedy trial.

 4. January 3

 5. January 20

 6. Proposed change, as in a Constitution

 7. Life (with good behavior)

 8. Nine

 9. Yes

 10. Affirm

 11. 35

 12. In God We Trust

 13. False

 14. U.S. Constitution

 15. The governor

 16. Six

 17. Two

 18. Executive

 19. Congress

 20. Population (as determined by census) less untaxed Indians

 21. Cruel and unusual

 22. True

 23. State and local

 24. Russia

 25. Criminal

 26. False

 27. Militia

 28. House of Representatives, Senate

 29. House of Representatives

 30. Virginia

 31. Legislative

 32. True

 33. The Vice President

 34. True

 35. The Supreme Court

 36. Co-appellate

 37. Trial by Jury

 38. True

 39. Congress and the legislatures of both states

 40. The Senate

 41. 10 miles square

 42. Congress; state legislatures

 43. Constitution

 44. Judicial

 45. True

 46. Coin money; make treaties

 47. The Vice President, until the House acts

 48. 26

 49. 9

 50. Murder

 51. False

 52. (Preamble statements) "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."

 53. House of Representatives and Senate

 54. Congress

 55. 10

 56. The Senate

 57. The Chief Justice of the Supreme Court

 58. The Senate

 59. The U.S. Congress

 60. Electors

 61. Pass laws, coin money, declare war

 62. The Governor

 63. The President

 64. The President

 65. They can vote for different people

 66. Vice President (President of the Senate)

 67. Congress 

 68. The states; the people

John Lewis and the Voting Rights Act of 1964

There’s lots of talk about repealing the Voter’s Rights Amendment to the Constitution lately. The photograph above was what I saw in 1965, when I was barely 11 years old. In the foreground is future Congressman John Lewis being beaten by an Alabama State Trooper for daring to exercise his rights of peaceful protest and free speech. The Voting Rights Act of 1964 was brand new; and it was the law of the land; but the Southern states were dragging their feet on enforcement of it, which led to the Selma-Montgomery marches of March 1965.

The first march took place on what became known as “Bloody Sunday”, March 7^th, 1965, which is when the photograph above was taken; 45 years ago yesterday. The marchers were attempting a peaceful protest by marching from Selma to Montgomery; and the state capitol. But first, they would have to cross the Edmund Pettus Bridge. This was; for some arbitrary reason on the part of the police; the line of demarcation which they could not allow the protesters to cross. To aid them in their cause they enlisted fire hoses, police dogs and tear gas; as well as billy clubs; to prevent the protesters from reaching their goal.

The initial march, on Sunday; by about 600 protesters  grew out of frustration over the inability of African-Americans to register and vote; as dictated by the 1964 law. The march was organized by the Dallas County Voter’s League and the SNCC, who both enlisted the help of Martin Luther King, Jr.

The second march grew out of the brutality of the police in preventing the protesters from crossing the bridge. That march was held the following Tuesday as 2,500 protesters turned out and forced their way across the Edmund Pettus Bridge, making their way to the other side before being turned back by a tidal wave of state and local police who were waiting.

It wasn't until March 16^th that the protesters  now stronger in numbers than ever; and backed by over 2,000 soldiers and federalized National Guardsmen, were able to begin the 40 mile march from Selma to the state capitol. At a rate of 10 miles per day, they arrived at their goal on March 24^th, where they were able to formally lodge their protest.

The move in the Congress and Senate today, which is based upon the assertion that the protection of the law is no longer needed to protect the rights of minority voters, is specious on its very face. It is nothing more than an attempt to turn back the clock in America. One of the more unusual aspects of this whole charade is the clamoring by the Right for the addition of the Voter ID requirement.

Democrats; who alleged widespread fraud in the 2000 election; are opposed to a National ID card of any type, including a Voter ID card. Republicans; who contend that there was no fraud in the 2000 election, and no problem in general; are adamantly for one. Neither side is consistent in its reasoning; therefore both positions are suspect.

Simply put, too many people have fought too hard and for too long to attain the Right to Vote for us to turn back the clock now. For us, as a nation, to return the sanctity of the voting process back to the Sates is an invitation to return again to the days when such a law was necessary, and people were beaten in the streets for asking for one.