The Constitution of the United States may be a major issue in the next Presidential election (2024). The Democrats will make it so if they can. They think that will help Biden defeat Trump. Probably not, but maybe.
In this Jack’s Journal article, I refresh your memory and mine about the history of the Constitution. Then I discuss some remaining Constitution issues, especially free speech.
Before the Constitution, the United States operated under the Articles of Confederation, adopted in 1777. However, the Articles created a weak central government, no executive branch, and not even authority to levy taxes. The new nation faced economic turmoil, social unrest, and instability.
Delegates from twelve of the thirteen states (Rhode Island was missing) convened in Philadelphia in May 1787 for a Constitutional Convention. James Madison and Alexander Hamilton were leaders. There were 55 delegates, 35 were ‘lawyers’ (not all with law degrees), three physicians, eight merchants, five planters, and two college Presidents.
The Convention began on a high note; the Preamble states the new Constitution’s purpose is “to establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.” Wow! Wonderful goals!
Then with long, bitter debates and painful compromise, the framers produced seven neatly organized Articles:
- Article I established the Legislative branch, outlining the powers, responsibilities, and composition of the Congress, comprising the Senate and the House of Representatives.
- Article II established the Executive branch, defining the powers and duties of the President, the Commander-in-Chief of the armed forces, and the head of the executive branch.
- Article III established the Judicial branch, defines the federal court system, led by the Supreme Court, and outlines the jurisdiction of the federal judiciary.
- Article IV guaranteed a ‘republican’ form of government; that is, the power of government is to be held by the people. The people give power to leaders they elect to represent them and serve their interests. The representatives are responsible for helping all the people in the country, not just a few people. [Or just themselves.]
- Article V outlines the process for amending the Constitution. It takes two-thirds of Congress to start the process, and three-fourths of the States must approve. (Not likely today.)
- Article VI establishes the Constitution as the supreme law of the land and requires public officials to take an oath to support it.
Each of these Articles has a number of Sections that go into great detail about such issues as eligibility to serve as President or in Congress, impeachment, elections, taxes, a militia, civilian control of military, and so on. The framers were very thorough. The Constitution was ratified in 1788, New Hampshire being the state that made it official.
This original Constitution continued the immorality of slavery. A huge mistake, but the framers believed that concessions on slavery were the price to be paid to get the support of southern delegates for a strong central government. They were convinced that if the Constitution restricted slave trade, South Carolina and Georgia would refuse to join the Union. The Constitution also prohibited Congress from outlawing the slave trade for twenty years. And a fugitive slave clause required the return of runaway slaves to their owners.
A country that makes as giant a moral mistake as slavery would surely pay a high price, and we have. And still are.
The framers were thorough, but the document as ratified was incomplete in several ways. Almost immediately there were Amendments proposed. Back in that day, Amendments could still be approved and in 1891, the first ten were adopted: the so-called Bill of Rights. They, and many of the other Amendments are so important to our democracy!
In this Jack’s Journal, I am only going to summarize the most important Amendments. It’s a matter of space.
Amendment 1 establishes freedom of religion. “Congress shall make no law establishing a religion. [The principle of separating church from state was integral to the framers’ understanding of religious freedom.] Also, granted were freedom of speech, assembly, and to petition for redress of grievances. [Wow! Just holy Wow!] [More about Freedom of Speech later.]
Amendment 2 establishes a ‘well regulated’ militia and the right to keep and bear arms. [We’re still trying to figure out what this one means.]
Amendment 4 protects us from unreasonable search and siezures.
Amendment 5 requires a grand jury for indictments and does not allow double jeopardy.
Amendment 6 ensures speedy trials.
Amendment 7 ensures the right of trial by jury.
Amendment 8 prohibits excessive bail.
Amendment 10 says any powers not given to the Feds are given to the States. [Example: abortion. Another ongoing issue.]
In addition to the remarkable Amendments in the Bill of Rights, there are other profoundly important Amendments. Here are some of them:
Amendment 13 abolishes slavery in the United States. It was ratified in December, 1965. The Emancipation Proclamation, declared by President Lincoln in 1863, only freed slaves held in confederate states.
Amendment 14, Section 3, says that anyone who has ‘engaged in insurrection or rebellion against the U.S., or given aid or comfort to its enemies’ cannot be a Senator, Representative in Congress, or elector of President. [Seems like that applies to Trump, though I don’t know what ‘elector’ of President means.]
Amendment 15 says the right to vote cannot be denied because of ‘race, color, or previous condition of servitude.’
Amendment 18: Prohibition.
Amendment 19: Women can vote!
Amendment 20 says Amendment 18 is void. Can drink again.
Amendment 24 says the right to vote cannot be denied because you didn’t pay your taxes.
Amendment 26 lowers the voting age to 18.
Amendment 27 is the last one – but I have no idea what it means.
Freedom of Speech.
Freedom of speech is granted to us in Amendment 1. Many, most, of the writings about the First Amendment (that one can reach via Google) say something like the following: the First Amendment extends its protection beyond just the spoken and written word. It encompasses various forms of expression, including symbolic speech and expressive conduct.
No, it doesn’t. The First Amendment says nothing about freedom of expression. Even so, another writer says Freedom of expression is at the core of the First Amendment of the United States Constitution. No, it isn’t; the First Amendment says nothing about freedom of expression.
Nevertheless, it is accepted today that free speech does include freedom of expression; that is, non-speech conduct or behavior is protected by the First Amendment along with speech (spoken or written word). This means that individuals have the right to engage in peaceful protests, demonstrations, and other expressive activities to convey their ideas and beliefs. The recognition of symbolic speech ensures that individuals can communicate messages through actions, gestures, and artistic expressions.
When and how did this extension of freedom of speech to include freedom of expression come to happen? I don’t know, though I have spent hours trying to find out using Google and even chatGPT. It could only have happened as the result of Court cases, but I can’t find the first or critical case or cases that made the extension. It may well have happened in drips and drabs, little bit by little bit. For example, a 1971 case upheld the right to wear a jacket bearing an expletive message. And a 1989 case affirmed that flag burning is a protected form of expression. I have not found earlier cases, though they surely exist.
There are a few limits on freedom of speech. Justice Oliver Wendell Holmes said that the First Amendment does not protect falsely shouting “Fire” in a crowded theater. Also unprotected: obscenity, child pornography, defamatory speech, false advertising, fraud, true threats, speech integral to illegal conduct, speech that incites imminent lawless action, and fighting words. (I think a ‘true’ threat must be one you really mean. Is that how Trump gets away with his threats?)
Freedom of expression is also limited. The Supreme Court has ruled, for instance, that a physical assault of another person is not protected. Similarly, there is no constitutional protection for protestors who engage in property damage, trespassing, or blocking entrances to buildings.
So: Freedom of Speech/Expression is limited – but it is a Constitutional right that is a hallmark of our precious democracy.
Just Sayin’.
John R. Dixon 