Wednesday, February 23, 2005

The U. S. Constitution:It isn't about what people can do it's about what goverment can do

The right to privacy

The Constitution does not mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public's attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v. Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th's search and seizure limits, and the 5th's self- incrimination limit.

The separation of church and state
The phrase "separation of church and state" does not appear anywhere in the Constitution. Thomas Jefferson wrote that the 1st Amendment erected a "wall of separation" between the church and the state (James Madison said it "drew a line," but it is Jefferson's term that sticks with us today). The phrase is commonly thought to mean that the government should not establish, support, or otherwise involve itself in any religion, though it is more accurate to say that the 1st Amendment prohibits the government from establishing a national religion, and protects the individual's right to worship, or not worship, however the individual sees fit.

Jury of Peers
There is no such right as a jury of my peers mentioned in the Constitution. The Constitution does take up the issue of juries, however. It is the nature of the jury which is not in the Constitution. In Article 3, Section 2, the Constitution requires that all criminal trials be heard by a jury. It also specifies that the trial will be heard in the state the crime was committed. The 6th Amendment narrows the definition of the jury by requiring it to be "impartial." Note that no-where is a jury "of peers" guaranteed. Strictly speaking, it could be prohibitively difficult to gather juries of peers - the definition of a "peer" would have to be worked out. Is a peer someone of the same age, sex, race, religion, class, standing, or profession? Fortunately, juries need only be impartial, and not of one's peers, else the jury system would be unworkable.

Marriage

A lot of controversy swirls around the topic of marriage as homosexual marriage entered the news, again. In 1999, the Vermont Supreme Court ordered that the state must make accommodations for gay unions, bringing the issue into the public eye. Vermont created civil unions as a result. In 2004, the Massachusetts Supreme Court went a step further, and ruled that the state must accommodate not just an institution equal to marriage, as civil union was designed to be, but that gay marriage itself must be offered in the state. Subsequently, mayors in New York and California BEGAN to offer gay marriage in their towns and cities, citing civil rights concerns. Those opposed to gay marriage began to urge that an amendment to the Constitution be created to define marriage as being between a man and a woman only. Opponents of the amendment pointed to the failed Prohibition Amendment as a reason why such social issues should stay out of the Constitution. In the absence of any such amendment, however, marriage is not mentioned in the Constitution at any point.

Judicial Review

We often hear about the Supreme Court striking down a law or a provision in a law, or, more often, reaffirming some law or provision. Take a look in the Constitution - judicial review, as this is known, is nowhere to be found. It seems like a perfectly normal action - after all, what kind of check does the Judicial Branch have on the other two branches if laws and orders cannot be declared unconstitutional. But judicial review is not specifically mentioned. So how did judicial review come to be? In the landmark case of Marbury v. Madison (1803), Chief Justice John Marshall declared a federal law, the Judiciary Act of 1789, to be unconstitutional, and thus null and void. This was the first time a Supreme Court ruling overturned a law.

Life, Liberty, and the Pursuit of Happiness

Commonly attributed to the Constitution, it comes from the Declaration of Independence.
Of the people, by the people, for the people

Commonly attributed to the Constitution, it comes from the Gettysburg Address.


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