Future Constitutional Issues
In This Chapter
- Anticipated Supreme Court cases
- Possible proposed amendments
- Concern over a “political” Supreme Court
Cases related to the controversial issues of the day—many of them growing out of cases that have already been decided, or partially decided—are sure to be heard by the Supreme Court in the near or not-too-distant future. And some of those issues are already, or are likely to be, the subject of proposed amendments to the Constitution.
If an issue is in the headlines, if it leads the newscast, or if it’s trending, there’s a very good chance it is going to end up in the courts. If it poses constitutional issues, it’ll go before the Supreme Court.
Issues of race, especially related to voting rights and affirmative action, are far from settled. Criminal investigations, police conduct, the judicial process, and terms of incarceration always have been and will continue to be evolving legal issues. Climate change and the response to it have already raised constitutional issues, and no doubt will raise more, along with other environmental and public health and safety concerns.
It seems the court will sooner or later decide questions relating to immigration, class action lawsuits, union organizing, insider trading, and product liability for drug companies. Other issues that are not going away include presidential power, citizen surveillance, and religion in public life. You can probably name a half-dozen other issues you think will be before the Supreme Court—or that you’d like to see before the Supreme Court.
Here is a quick look at some issues that are likely to be taken up by the Supreme Court in coming terms.
Abortion
Like gun control, abortion is an issue that elicits passionate responses. People on either side have difficulty finding any middle ground, and so do the courts. A constitutional amendment banning abortion seems unlikely in the foreseeable future, considering it never has gotten any appreciable traction in Congress since Roe v. Wade in 1973. But the kind of sharp swing to the right across the country, and the sort of “moral renewal” envisioned by some Republican presidential candidates, could lead to proposals for an abortion amendment.
That’s not to say the abortion laws won’t continue to change, however, particularly as states pass laws that limit abortion availability and tighten requirements for both doctors and patients—and as appeals of those new state laws come before the Supreme Court.
On one hand, Roe v. Wade has been upheld by the Supreme Court on a number of occasions, and precedent counts for a lot in constitutional law. On the other hand, the courts have approved a number of laws and policies that restrict or limit abortion, and future court rulings could make it harder for women to obtain abortions even if Roe v. Wade is not explicitly overturned.
The death penalty is sure to continue to come under attack as cruel and unusual punishment under the Eighth Amendment. A growing number of individual states and foreign governments outlaw the practice, and the frequency of executions has declined in the states that still have the death penalty.
One factor in the decline of the death penalty has been the growing evidence that it is imposed unevenly and unfairly—more often against blacks than whites. Recent dissents by Justices Breyer and Ginsburg indicate that at least two members of the Supreme Court may be ready to declare the death penalty unconstitutional in all cases. Others among the court’s liberal wing could be satisfied with continuing to restrict how and whether the death penalty may be applied. For example, it was a narrow 5–4 ruling in 2015 that upheld the use of a specific drug that had been blamed for botching lethal-injection executions.
We the People
“I believe it is highly likely that the death penalty violates the Eighth Amendment,” Justice Breyer wrote in Glossip v. Gross, the lethal-injection case. “At the very least, the court should call for a full briefing on the question.”
The ultimate goal of death penalty opponents is to find the “perfect” case for that full briefing for the court to consider. They thought they may have found that perfect appellant in Shonda Walter, 36, a black woman on Pennsylvania’s death row for a murder conviction when she was in her early 20s. Her case was particularly attractive, supporters said, in part because her lawyers had done such a poor job of defending her. Why should she pay with her life simply because her lawyers made mistakes?
The Pennsylvania Supreme Court acknowledged the poor defense work but refused to allow her a new trial—another reason for the U.S. Supreme Court to grant the appeal. Instead, however, the high court turned down Walter’s appeal in January 2016, and death penalty opponents were left hoping for the next “perfect” case to present to the court.
In other sentencing issues, the growing national sentiment toward less incarceration could present more cases to the court that could extend its recent rulings limiting sentences for minors and the intellectually challenged. It also could further restrict no-parole sentences and use of solitary confinement in prisoners.
In terms of law enforcement, a number of legal scholars have said the Supreme Court may be moving toward overturning the exclusionary rule entirely, pointing out that only the guilty benefit directly from it and that people who are wronged still have the option of suing for monetary damages.
The Right to Petition
When asked to name the rights protected by the First Amendment, most people can come up with freedom of speech, freedom of religion, and freedom of the press. Some will come up with the freedom of assembly. Not many remember the fifth freedom—the freedom to petition the government. And no wonder.
In the scope of American history, the right to petition was a real issue only in Revolutionary times, when the colonists felt they had no way of getting the king and Parliament to listen to their complaints. The right “to petition the Government for a redress of grievances” was important when the Constitution was drafted in Philadelphia in 1787 and has been largely ignored since.
But the internet has breathed new life into the right to petition. It’s suddenly become much easier to gather signatures and fire off a petition to the White House or Congress. The White House website (whitehouse.gov) has a “We the People” section specifically for receiving petitions, with rules set up for how to submit and instructions for how to search the database of previously submitted petitions and sign one or more petitions yourself. When the site was launched in 2011, it required a petition to have 5,000 signatures to merit a response from a government official, but that was quickly raised to 10,000, and then to 100,000 signatures in 2013. Many of the petitions are serious, dealing with the major issues of the day, but many are less serious, such as the popular petition asking the government to build a Death Star like the one in Star Wars or the one filed by comedian Bill Maher demanding that President Barack Obama appear on his television show.
Despite the requirements for responses, some petitioners say they have been kept waiting months for a reply, or that the replies they received were little more than an acknowledgment that the petition was received. It is very possible that the Supreme Court may be asked to decide if the Constitution’s right to petition includes the right to a meaningful response from the government.
Free Speech and National Security
From Revolutionary days through the world wars—“Loose lips sink ships!”—through the Pentagon Papers to the Patriot Act, the American democracy historically has tried to balance national security against free speech and the public’s right to know.
New threats and new technology have added troubling dimensions to the age-old tensions in the twenty-first century. The advances of the internet and the digital world have made it easier for people around the world to communicate and share information—and to glorify, recruit, train, and manage terrorists who can stage sudden and deadly attacks.
The new technology and the new threats have led to calls for reconsidering the First Amendment and the long line of twentieth-century court cases, through Schenk and Brandenburg (see Chapter 6), which protect speech unless it specifically and directly incites violence—unless it presents “imminent danger,” in other words. Merely calling for revolution or overthrow—or jihad—or other acts of violence is protected by that long line of court cases.
But some politicians, legal scholars, and security specialists say the twentieth century standards do not apply to the twenty-first century. They call for certain internet sites and digital means of communication to be closed or restricted. In return, defenders of the First Amendment, many of them prominent lawyers and legal scholars, warn that limiting civil rights means giving in to terrorists who condemn American values such as the right to free speech and the freedom of religion.
“Never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way,” warned Eric Posner, a University of Chicago law professor who says current U.S. free speech protections need to be revamped.
We the People
Garry Wills, professor emeritus of history at Northwestern University, noted in 2007, “The wartime discipline imposed in 1941 has never been lifted …. World War II melded into the cold war, with greater secrecy than ever—more classified information, tougher security clearances. And now the cold war has modulated into the war on terrorism.”
Presidential Power
A looming issue, with implications for many political, social, and economic implications, is presidential power. The issue—is the president usurping his constitutional authority—came to the fore as a result of a number of actions by President Obama. Frustrated by an inability to get legislation through the Republican-dominated Congress, he sometimes resorted—on immigration, gun control, climate change, and other issues—to executive orders and regulations meant to put his policies in place without going through Congress.
Republican leaders in Congress and a number of states objected, of course, and turned to legal action that challenged him for exceeding his executive powers and violating the constitutional separation of checks and balances. Sometimes the court agreed with the Republicans. One notable example with potentially far-ranging impact, both in terms of the environment and in the way the U.S. government operates, came in a Republican-led challenge to Obama’s Clean Power Plan, an executive order growing out of the 2015 international climate agreement in Paris. Part of that agreement called for the United States to curb coal emissions, and Obama’s plan set rules for the coal industry to restrict emissions.
The legal challenge, brought by coal and utility companies along with more than two dozen states, included a request that President Obama’s plan be delayed until the federal courts could rule on its validity. A U.S. appeals court rejected the request for a delay, but the plaintiffs appealed to the Supreme Court and—to the surprise of many legal observers—the court not only accepted the case but ruled that the coal industry and states did not have to start implementing the plan and meeting its deadlines until the appeal had been decided by the courts.
It was a rare decision, some say unprecedented, in which the Supreme Court stepped in before the case had been decided by the lower courts. Even lawyers representing the coal industry said they were surprised. Environmentalists, sent reeling by the decision, feared that the Court’s decision to block President Obama’s plan meant that the conservative justices (the vote was the usual 5–4) were indicating that the case would indeed end up before them and they would indeed strike it down.
The Political Court
Election-year complaints that the U.S. Supreme Court has become more “political” raged through 2015 and into the election year 2016 on the heels of the court’s controversial 2015 decisions upholding the Affordable Care Act and legalizing gay marriage. Those decisions increased criticism that the court had become in general too political and—despite widespread understanding that five of the nine justices more often voted on the conservative side of issues—specifically too liberal. Nine “unelected lawyers”—or five, if you consider the 5–4 majority in the marriage equality decision—should not be deciding the fate of 320 million Americans, the critics said.
The controversy led to calls on the Republican primary campaign trail for changes to the Constitution to do away with lifetime tenure for Supreme Court justices. One proposal would have set “term limits” so justices had to step down after a certain number of years on the bench. Another called for having justices run for election—an idea that struck many as an odd approach to taking politics out of the judicial branch.
The makeup of the Supreme Court was a hot-button campaign issue in the early stages of the 2016 presidential campaign for both major parties. With four of the sitting justices 77 or older at the start of 2016, many Americans told pollsters they would cast their votes, both in the primary elections and in November, at least in part out of consideration that the next president could appoint several justices. The candidates themselves—again, oddly, for critics of politics on the Supreme Court—were quick to promise they would appoint only justices who would vote a certain way on issues such as abortion and campaign spending, even if that meant overturning precedent.
The politics of the court became even more of a national issue with the death of Justice Antonin Scalia in February 2016. Scalia, who was 79, had been on the Supreme Court nearly 30 years and was known for advancing “originalist” and “textual” views that often led him, as perhaps the most forceful and influential conservative voice in decades, to cite the exact wording of the Constitution and what he regarded as the intent of the framers in 1787. He relied on originalist arguments to reject many modern interpretations of the Constitution when the court was asked to consider changes in society in its decisions.
With 11 months left on his final term in office when Scalia died, President Obama vowed to move quickly to appoint a successor. And besides, it was his duty under the Constitution to nominate a new Supreme Court justice and submit the nomination to the Senate for confirmation. Leaders of the Republican-dominated Senate, however, urged Obama to wait and let the next president pick Scalia’s successor after the January 2017 inauguration. The threat was clear—if Obama submitted a nominee—any nominee—there was a real risk the Senate would reject the nominee. Republican leaders said the American people should have a say in who picks the next justice; Democratic leaders said the American people did have a say when they elected Obama.
Obama himself said the Supreme Court should not be hampered any longer than necessary by not being at full strength. Besides, the president added, Article II, Section 2, of the Constitution says the president “shall nominate” Supreme Court justices; it is the president’s duty, not an option. A number of Supreme Court observers suggested that Scalia, the originalist dedicated to the exact text of the Constitution, would have agreed with Obama—and would have pointed out there is nothing in the Constitution prohibiting lame duck presidents from nominating Supreme Court justices.
“To the extent that we know their views, the founders disagreed about most important matters, and generally understood the need to adapt to changing circumstances. Given that we are today a postindustrial society governed by a preindustrial document, thank heavens that the Constitution itself is often naggingly vague; it could not have otherwise survived … those who swear fealty to originalism play a legal fool’s game by pretending that most profound society changes somehow cannot or should not factor into present decisions.”
—Professor Robert J. Spitzer, SUNY Cortland, author of Saving the Constitution from Lawyers, in a letter to The New York Times
Future Changes to the Constitution
Frustration over what the Constitution says—or, more often, over what the Supreme Court decides it says—has led to calls for a small raft of constitutional amendments, via bills introduced in Congress and what would be the first constitutional convention since 1787.
Suggested Amendments
Retired Supreme Court Justice John Paul Stevens, in his book Six Amendments: How and Why We Should Change the Constitution, suggested amendments that would abolish the death penalty, impose tighter campaign finance regulations, soften the Second Amendment and impose strict gun control, block gerrymandering, give federal officials more authority over state officials, and give citizens the right to sue state governments. Other proposed amendments that have gathered high-profile support in recent years would establish a right to a good education and require Congress to balance the federal budget.
Campaign finance is another area of elections where we are likely to see more court rulings that call upon constitutional principles. We’ve already had a number of court rulings, of course, including decisions that uphold limits on how much a donor can give to a candidate’s campaign, but it is fair to expect more court challenges and more court rulings that set the rules on who can give what and how it can be given, along with when and how—and how much—money can be spent.
The following sections offer a quick overview of other suggested amendments you’re likely to be hearing about.
Late in the eighteenth century, even before he became president, Thomas Jefferson called for an amendment requiring the United States to operate under a balanced budget and prohibiting the country from deficit spending that ran up a national debt. He warned that deficit spending would allow presidents to wage undeclared wars and would economically cripple the country in the future. “Loading up the nation with debt and leaving it for the following generations to pay is morally irresponsible. No nation has a right to contract debt for periods longer than the majority contracting it can expect to live,” Jefferson wrote.
An amendment requiring a balanced budget first came before Congress in 1936 and has been revived periodically, particularly in times when the nation is running large budget deficits. Congressional hearings on balancing the budget were held around the country in 1979, and in 1982, a balanced budget amendment got the necessary two-thirds approval in the Senate but did not come before the House.
The one time the amendment came close to being put before the states for ratification was in 1996, when the economy was booming, we had a budget surplus, and the national debt was declining. The House approved a proposed balanced budget amendment, but it fell three votes short of the necessary two-thirds approval in the Senate.
New attention was focused on a requirement to balance the budget during the George W. Bush administration, when tax cuts and the war in Iraq combined to create record budget deficits.
Opponents of a balanced budget amendment say deficit spending causes no real long-term harm to an ever-growing economy and point out that instead of proposing a Constitutional amendment, Congress could simply stop appropriating excess funding for government programs and approve a balanced budget each year.
We the People
By 2016, the U.S. national debt was approaching $20 trillion—nearly $60,000 for every U.S. citizen. The interest on that debt is paid out of our tax dollars—and the tax dollars our kids will pay in the future.
One Man, One Woman
Perhaps the recent Supreme Court decisions most likely to be the target of a proposed constitutional amendment are rejection of the federal Defense of Marriage Act in the Windsor decision in 2013 and then the recognition of same-sex marriage in the Obergefell decision in 2015 (see Chapter 13).
Opponents of same-sex marriage have vowed to continue their fight to legally define marriage as between one man and one woman throughout the United States—and the only way that can happen, short of the Supreme Court suddenly reversing itself, is a constitutional amendment. Typical wording, lifted from a failed proposed amendment offered in Congress before Obergefell, might read like this:
“Marriage in the United States of America shall consist only of the union of a man and a woman.
“Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.”
Elections
As the 2016 election campaigns played out, the success of Texas Senator Ted Cruz as an early Republican frontrunner increased the chances that the federal courts would be asked to rule on his eligibility to serve as president—and the eligibility of any candidate not born with the borders of the United States. Cruz, born in Canada, insists he is eligible because his mother was American. Some legal scholars back him up, but others are not so sure.
The Constitution requires that “No person except a natural born citizen … shall be eligible to the Office of President.” The issue is the definition of natural born. Cruz supporters said he was “naturalized” because his mother was a citizen, but skeptics cited centuries of British common law holding that only people born within the boundaries of a country are “natural born” citizens.
Meanwhile, many other election issues were on the horizon, some inspired by new technology and some lingering concerns over the old technology and old voting system. If and when the basics of national elections are changed, it will have to be through an amendment to the Constitution. Some view the Electoral College as antiquated and outdated, arguing that we should be able to vote directly for president and vice president, and that they should be elected not by state-by-state electors but rather by a simple nationwide popular vote to avoid results such as the 2000 election, when Al Gore won the popular vote but George W. Bush became president by winning more states and more electoral votes (and one crucial 5–4 vote in the Supreme Court giving him Florida).
That key Supreme Court decision in the 2000 elections, which rejected Florida recounts before a winner could be declared, came in the case Bush v. Palm Beach County Canvassing Board in December 2000. In that decision, the court reminded us there is no constitutional right to vote for president; it remains up to the states to determine how their voters choose the members of the Electoral College.
Even if the Supreme Court had not cleared the way for Bush to win the election, a decision that came after a month of America not knowing who won the election or who would be the next president, the court indicated that the Florida legislature could have simply decided to throw all the state’s electoral votes behind Bush to give him the election.
Critics point out that the Electoral College was created in a time when the United States seemed too large and communications too slow and difficult for everyday citizens to become adequately informed about a presidential race. On the other hand, many others say our system of electing a president has worked pretty well for more than two centuries, so if it ain’t broke, don’t fix it.
Guns and Gun Control
Second Amendment absolutists have been buoyed by recent Supreme Court recognition of the right of everyday citizens to bear arms, but they remain unhappy with any attempts, at any level of government, to restrict gun ownership. And gun control advocates, citing the increase in mass shootings, want more restrictions by any means possible. A few of the more flexible thinkers on both sides have called for a new Second Amendment that would, at least in theory, make both sides happier.
The key language of the amendment would say, “The right of the people to keep arms reasonable for hunting, sport, collecting, and personal defense shall not be infringed,” and at least one version of the proposed amendment would require approval by two thirds of Congress in two consecutive sessions.
It remains to be seen, if and when a new Second Amendment is given serious consideration, how specifically it will outline what kind of restrictions federal, state, and local laws may impose on gun ownership and use.
Since the Supreme Court expanded the reach of eminent domain in 2005 in Kelo v. New London, making it easier for governments to take property from private owners, legislators and governors of a number of states have called for amendments to their state constitutions to limit the reach of eminent domain. Some members of Congress think a federal constitutional amendment is needed, too, to shore up the part of the Fifth Amendment that says “private properties shall not be taken for public use without just compensation.”
The New London decision expanded the definition of “public use” beyond the traditional park or highway the public would use directly, and said New London, Connecticut, could condemn and take away property to turn over to a private developer for a shopping mall.
A proposed constitutional amendment would limit the use of eminent domain for private purposes, such as a new shopping mall, that may offer indirect economic benefits.
We the People
To the surprise of many, eminent domain became a minor campaign issue during the 2016 Republican primary race. Libertarians and conservatives generally speak with one voice in opposing eminent domain, but Donald Trump, in one of several ways he bucked the traditional conservative wisdom, embraced the concept. In one Republican primary debate, Trump, who had used or tried to use eminent domain a number of times to acquire property for his developments, declared, “Eminent domain is an absolute necessity.”
A Constitutional Convention
So far, all the amendments that have been approved to the Constitution have been initiated by and preapproved by Congress. But what if Congress is the problem?
Critics who believe Congress has become the big problem in American government—and there are many who believe that—say a convention is the only answer because Congress will never fix itself. Under the Constitution, if 34 states demand a convention, Congress has to stage one. Historically, there’s never been much popular sentiment for a convention; the common thinking, under the “opening a can of worms” theory, is that a convention could consider anything and everything in the Constitution. Perhaps the most-cited fear is that a “runaway” convention might do away with the First Amendment. Those who think a convention is a good idea argue it would still take 38 states to ratify any changes or additions to the Constitution; it would take rejection by just one house in 13 state legislatures to kill any proposed amendment.
During the 2015–2016 election campaigns, Texas Governor Greg Abbott called for a new constitutional convention and quickly won the support of several other governors and Republican presidential candidates. Abbott proposed nine specific amendments, including several to limit the power of Congress and federal regulators over the states and others requiring a balanced federal budget, giving the states the power to overrule Supreme Court decisions with a two-thirds majority, and demanding a 7–2 “super majority” on the Supreme Court for any decisions striking down laws made by Congress or a state legislature. Abbott and other supporters were hoping that the results of the 2016 elections, both national and in the states, would yield more support for a constitutional convention.
The Constitution: Our Continuing National Conversation
This has been an admittedly cursory overview of the U.S. Constitution. But if you’ve gotten this far, you probably know quite a bit more about the Constitution than you did. And more importantly, you probably recognize how it has evolved and continues to evolve.
The Constitution represents a remarkable dialogue between a people and a process—between the American people and the U.S. government. Our experiment in democracy continues to work, sometimes better than others, as long as we continue to buy into the notion that we will participate as citizens to make it work.
Indeed, there is one significant benefit frequently overlooked in the often-heated national debates over constitutional issues: we become better citizens. When we think about fair trials for enemy combatants versus the war on terror, for instance, or the freedoms of speech and religion versus school prayer or national security, your right to marry the person you love versus my right not to help stage a gay wedding, we are participating in the ongoing American experiment in democracy under the rule of law. In learning, considering, and debating the issues, we are practicing exactly the sort of citizenship that the Constitution was designed to accommodate—and that the Constitution needs to survive and thrive.
- Many of today’s most pressing social, political, and economic issues are raising constitutional questions the Supreme Court may ultimately be asked to decide.
- Concern over the makeup of the Supreme Court, and that the court is “too political,” has itself become a political issue.
- A number of amendments may be proposed in the next few years—to ban abortion, define gun control, and balance the federal budget, among others—but enacting a constitutional amendment is a long and arduous process.
- A number of states are pushing to hold the first constitutional convention since 1787 in Philadelphia.