The Constitution and the People

Chad FlandersVisiting Fulbright Lecturer

Nanjing University

Should the government be able to?

• 1. Punish flag burners?• 2. Restrict noisy and obnoxious

demonstrations outside of cemeteries?• 3. Sentence a child rapist to death?• 4. Execute a 17 year old who has murdered an

old woman? • 5. Allow members of the same sex to marry?

The Supreme court says:

•1. No!•2. No!•3. No!•4. No!•5. We’re waiting!

What is the most important thing about the Constitution?

My survey results

• 1. Separation of powers• 2. Due process• 3. Freedom of speech• 4. Bill of Rights• 5. Freedom of religion• 6. Right to bear arms• 7. Judicial review

The conflict

• On the one hand, the Constitution is America’s fundamental law and guarantees certain rights and liberties in the Bill of Rights

• On the other hand, America is a democracy, where “we the people” rule: a government of the people, by the people, and for the people.

The countermajoritarian difficulty

• In short, American government has two sources of legitimacy:

• 1. The vote of the majority of the people• 2. The Constitution and “fundamental rights”

• When the two conflict, who should win, and why?

Rule of Law versus the Rule of Men

The Supreme Court

• In America, the authority to interpret the Constitution is given to the Supreme Court. (See Marbury v. Madison)

• But why should the Supreme Court get the final say over how a democracy should govern itself? Or should it be the legislature (the Congress) and the executive (the President)?

The Plan

• 1. The American Constitution: Principles and text

• 2. The countermajoritarian difficulty in two major areas of American law– Freedom of Speech (1st Amendment)– Cruel and Unusual Punishment (8th Amendment)

• 3. How to resolve the countermajoritarian difficulty.

The U.S. Constitution: Principles

• What is a constitution?• “A set of customs, traditions, rules, and laws

that structures the ways a government is organized and defines the relationship between government and its citizens.”

• We pride ourselves as having a written Constitution.

What does a constitution do?

• 1. Limit the powers of government (the government only has those powers that are written down).

• 2. Delegates power to different governmental branches, to the states, and to the people. Says what each branch can do.

• 3. Protects certain individual rights through the Bill of Rights.

The American Constitution

• Three branches of government

• 1. Legislative: makes the lawsHouse of RepresentativesSenate

• 2. Executive: enforces the laws• 3. Judicial: interprets the laws

The Bill of Rights

• First Amendment: No law abridging freedom of speech or freedom of religion

• Second Amendment: Right to bear arms• Fourth Amendment: Right against

“unreasonable” searches and seizures• Eight Amendment: Right against “cruel and

unusual punishment.”• Fourteenth Amendment: Equal protection of

the laws.

The right of judicial review

• Claimed by the Supreme Court in Marbury v. Madison. Court has the authority “to say what the law is.”

• But why should the judicial branch get the final say on what the law is?

• “We are not final because infallible, we are infallible because we are final.” (Justice Jackson)

Some cases

• Flag burning• Funeral protests• The death penalty• Life in prison without parole

Texas v. Johnson: the facts

The Court’s analysis

• 1. Burning the flag is speech, not just action. Rather, it is “expressive conduct.”

• 2. The Texas statute is directed against the idea that burning the flag represents.

• 3. Does the state have sufficient interests in punishing the speech?

State interests (48 states plus the federal government had a similar law)

• Texas asserted two interests

• 1. Breach of the peace/public disturbance• 2. Preserving the flag as a symbol of national

unity

The court rejects both

• 1. No real evidence of breach of the peace or disturbance in this case. Nor, in general, can the state prohibit ideas that might cause “a condition of unrest” or “stir people to anger.”

• 2. The state cannot prevent the expression of ideas that it disagrees with. It cannot say that hating America can be punished but loving America cannot. This is a content-based restriction.

Synder v. Phelps

• “God hates the USA/Thank God for 9/11”• “Don’t Pray for the USA”• “Thank God for IEDs”• “Thank God for Dead Soldiers”• “Priests Rape Boys”• “You’re Going to Hell”• “God Hates You”

The issue

• Can the family of the deceased soldier Synder sue for “intentional infliction of emotional distress”? Can they get a monetary award?

• Or is the speech protected by the First Amendment?

The court’s answer

• The speech is on a matter of public concern, and so is entitled to the highest degree of protection under the Constitution.

• The lawsuit fails: even “outrageous” and “offensive” speech is protected.

• Justice Alito in strong dissent: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.”

Kennedy v. Louisiana

• A man rapes his step-daughter, then lies about it and tries to cover his tracks.

• He is convicted in court, and sentenced to death.

• Is the death penalty for the rape of a child constitutional?

• The court had earlier held that the death penalty for rape of an adult woman was unconstitutional.

The record

• Six states had recently passed laws allowing juries to sentence those convicted of child rape to death (Louisiana, Georgia, Montana, Oklahoma, Texas, South Carolina).

• This emerging trend existed despite uncertainty over the court’s previous decisions: did the court ban the death penalty for all rape, or just rape of an adult woman?

The Court’s analysis

• Most states do not have the death penalty for child rape.

• There have been very few death sentences for child rape.

• Therefore, there is no “national consensus” that child rape is a crime that deserves death.

Why does this matter?

• The Eight Amendment forbids “cruel and unusual punishment.”

• But what does this mean?• A punishment is “unusual” if it is not common.• And the court says “cruelty” is defined by

society’s “evolving standards of decency.”• The court says: we as a society have evolved

past the use of the death penalty for child rape.

But is this right?

• The Louisiana legislature passed the law by majority vote.

• Other states had also passed similar laws, including Congress.

• “In terms of the Court’s metaphor of moral evolution, these statements might have turned out to be an evolutionary dead end. But they might also have been the beginning of a strong new evolutionary line.” (Alito)

Roper v. Simmons

• Christopher Simmons breaks into an old lady’s house, ties her up, and then pushes her into a river.

• Simmons is still very young! He’s under 18.• This case happened not far from where I live

in America!

The national consensus

• Many states allow the execution of juveniles for very serious crimes (for murder), but the trend is away from using the death penalty.

• And more states are repealing the death penalty for juveniles.

• Why? There is increasing scientific evidence that juveniles are impulsive, and can’t control their behavior.

Is this democratic?

• Who should be able to decide whether juveniles are executed?

• Should the court decide it?• Or should the legislature make the ultimate

decision?

The gay marriage cases

• Is this an argument about:

• Equal rights?

• Morality?

• Democracy?

Solving the countermajoritarian difficulty: two approaches

• 1. Some rights are preconditions of democracy (speech)

• 2. Some rights are supported by the majority, but they don’t know it yet (cruel and unusual punishments).

How to reconcile with democracy: free speech

• Free speech “concerning public affairs is more than self-expression: it is the essence of self-government.”

• Therefore, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and it entitled to special protection.”– Snyder v. Phelps

Democratic theory of the first amendment

• Allowing all ideas in the marketplace– Exposes us to ideas we might otherwise would not

have known about (which have a chance, however small, of being correct)

– Makes us work harder to defend our own ideas– May make us more likely to speak out on behalf of

what we think the truth is (the best remedy to speech is counter-speech)

No robust first amendment = no democracy

• In the project of self-government, people must feel free to speak out on ideas, however controversial.

• So we must– Protect ideas we might think of as hateful– Avoid “chilling” good speech that might not be

spoke for fear of governmental or private retribution.

Protecting rights is protecting democracy

• Certain rights, such as the right to free speech, are preconditions to the democratic project

• Without those rights, there can be no democracy• If the government could suppress ideas it did not

like, then the people could not successfully govern.

• We have chosen as a nation “to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

A democratic defense

• The point is not that free speech is a human right that we should protect, although it probably is.

• The point is to justify free speech in terms of democracy.

• Without free speech, a country cannot be democratic.

What is “cruel”?

• In deciding cases under the Eight Amendment, the Supreme Court tries to find society’s mature judgment about what is cruel and unusual.

• The way it does this is by looking at what states actually do.

• They find what the “national consensus” is.

What the court believes about America

• American society really believes that the death penalty should be used only for murderers, and not for any other crime.

• “The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes.”

The court leads public opinion

• In the case of the death penalty, the court may:

• 1. Try to understand what public opinion really is now: what the public really believes.

• 2. It may also try to predict where the public is going, and lead it in that direction: make a consensus where none may actually exist.

Current cases

• Is this what will happen on gay marriage?

• If the court decides for gay marriage, will there be a backlash?

• What is the most “democratic” decision?

The options

• 1. Agree with these solutions (preconditions, and lead public opinion).

• 2. Reject the Supreme Court’s power.• 3. Accept the Supreme Court’s power.• Or• 4. Continue to wrestle with the contradiction.

Some even more recent decisions

• What does the Supreme Court look like now?

Ages of the Oldest Supreme Court Justices

•Ruth Bader Ginsburg, 79•Antonin Scalia, 76•Anthony Kennedy, 75•Stephen Breyer, 73

Alvarez

The First Amendment

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Obamacare

A look ahead to tomorrow: Citizens United

Rejected a Challenge to Citizens United

• Justice Breyer:

• “[I]ndependent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana,”

Thank you!

• Chad Flanders• cflande2@slu.edu