Some Constitutional Issues and Points For Discussion
Based on Article V, amendments can be proposed by a two-thirds majority vote in Congress or at a constitutional convention called by two-thirds of the states.7 min read
[excerpted from 1996 material by the American Bar Assn.]
Amending The Constitution
1. According to Article V, amendments can be proposed by a two-thirds majority vote in Congress or at a constitutional convention called by two-thirds of the states. In order for a proposed amendment to become part of the Constitution, approval by three-quarters of the states is required.
2. More than 10,000 amendments have been proposed, but only 27 have become part of the Constitution. The first ten amendments, known as the Bill of Rights, were ratified in 1791. Amendment XXVII, which regulates congressional pay adjustments, was ratified most recently, in 1992.
3. The Equal Rights Amendment, passed by Congress in 1972, fell three states short of being ratified in 1982.
4. As many as 120 amendments are currently proposed, including several that would fundamentally alter our government.
1. What is the purpose of amending the Constitution and when is it appropriate? What other means exist for reaching the goals of a proposed amendment?
2. Is the amendment process too cumbersome and lengthy, or not difficult enough?
3. In the last several years, amendments permitting prayer in public schools, requiring a balanced federal budget, limiting terms of members of Congress, and banning flag burning have been advocated by various groups. Are these amendments necessary? What impact might they have on government and/or on rights guaranteed in other parts of the Constitution?
1. When the U.S. Constitution was ratified 200 years ago, the electorate included only a small portion of the total adult population. Since then, the right to vote has steadily been expanded. Eight of the 16 amendments to the Constitution adopted since the Bill of Rights has involved voting rights.
2. The Fifteenth Amendment (1870) stated that one's right to vote may not be denied on account of race, color or having been a slave; the Nineteenth (1920) extended the vote to women; the Twenty-fourth (1964) barred poll taxes in federal elections; and the Twenty-sixth (1971) extended the vote to eighteen-year-olds.
3. Despite constitutional guarantees, other restraints kept minorities from voting. By 1940 only three percent of Southern blacks of voting age were registered. Now, protective laws bar poll tests, mandate bilingual assistance where needed and prohibit the government from making policies that dilute the proportional representation of a racial or ethnic group. By 1992, 54 percent of Southern blacks of voting age voted--a proportion almost exactly at the national average.
4. The Supreme Court decision in Westberry v. Sanders, 376 U.S. 1 (1964), required states to draw congressional districts that are as equal in population as possible, ensuring proportional representation.
5. In 1982, the Voting Rights Act established a "results test," which outlawed drawing of voting district lines that resulted in discrimination against a specific group, whether or not discrimination was intended.
6. Many states have laws helping persons with disabilities, the homeless and others to vote.
7. The National Voter Registration Act ("Motor Voter Act") of 1994 requires states to streamline voter registration by allowing registration for federal elections by mail and at state drivers license facilities.
8. The 1992 presidential election showed the highest voter turnout since 1972. Yet only 55 percent of Americans of voting age (104,405,155 voters) cast ballots. And only 38 percent (73,152,131 voters) voted in the 1994 congressional elections.
9. The state of Minnesota traditionally has had the highest voter turnout: 72% of voting-age Minnesotans voted in the 1992 Presidential election; 53% voted in 1994.
1. Should homeless people be registered to vote?
2. In areas where the ethnic make-up of the population is rapidly shifting, such as Florida, how can fair proportional representation be maintained?
3. Should race alone be considered in drawing voting districts? Might that discriminate unfairly against other groups, such as senior citizens?
4. Should redistricting be based on total population or on registered voters?
5. Claiming that the Motor Voter Act unconstitutionally requires states to carry out a federal responsibility, several states have sued in U.S. Federal District Court. Does the federal government have the right to mandate state voter registration mechanisms?
6. Why don't more Americans vote?
Freedom Of Expression
1. The First Amendment has been held to address issues as diverse as prayer in the schools, hate speech, and school dress codes.
2. The Free Speech Clause of the First Amendment is intended to remove governmental constraints from public discussion and diversity of opinion, which are essential to decision- making in our democracy. The Supreme Court has interpreted "speech" to include such symbolic forms of expression as the wearing of buttons or armbands, as well as artwork and music.
3. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court held that burning the flag was a protected form of symbolic political speech.
4. In Tinker v. Des Moines School District, 393 U.S. 503 (1969), the Supreme Court held that the First Amendment protects public school students' rights to express political and social views. In this case, students had worn black armbands to protest the Vietnam War.
5. The U.S. Supreme Court has ruled that courts can regulate noise and create a no-entry, 36- foot buffer zone around the entrance to abortion clinics without violating protestors' free speech rights.
6. Several states and municipalities have tried to limit offensive speech through "hate speech" laws, legal constraints on what people may communicate to one another in spoken words, in writing or through expressive conduct. In 1992 the Supreme Court found a St. Paul, Minnesota hate speech law unconstitutional because it only banned selected types of "fighting words." The Court defined "fighting words" in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), as those that "by their very utterance inflict injury or tend to incite an immediate breach of the peace."
7. The First Amendment bars the government from establishing a religion and protects the free exercise of religion. The Supreme Court has often been called upon to reconcile the sometimes conflicting demands of the "free exercise" and "establishment" provisions of the First Amendment.
1. When is it constitutional to limit speech? Are laws regulating "hate speech" (e.g., making racial slurs or ethnic jokes, displaying burning crosses or swastikas) unconstitutional? If so, on what grounds? How far can the government go in forcing people to be "nice"? Does regulating such speech promote or inhibit diversity?
2. How would a constitutional amendment banning flag-burning or one allowing prayer in public schools affects the freedoms guaranteed in the Bill of Rights? Would such changes advance or inhibit a diversity of opinion?
3. Some school districts around the country have tried to control gang violence and other problems by imposing student dress codes. Are dress codes unconstitutional restrictions on free expression? Is restricting dress in one school and not in another an abridgments of the Fourteenth Amendment's Equal Protection Clause?
Due Process and Right To Counsel
1. In federal cases, the right to due process is guaranteed by the Fifth Amendment, which protects against self-incrimination and double jeopardy and provides that "no person shall be deprived of life, liberty or property without due process of law;" and the Sixth Amendment, which guarantees the accused in a federal criminal case the right to be informed of the nature and cause of the accusation, the right to confront witnesses against him, and the right to have "Assistance of Counsel for his defence."
2. The Sixth Amendment also guarantees that a criminal defendant the "right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed... ."
3. The right to counsel in state cases is guaranteed by the Fourteenth Amendment, particularly the Due Process Clause.
4. In Gideon v. Wainwright, 372 U.S. 335 (1963), Clarence Earl Gideon, a poor drifter accused in a Florida state court of felony theft, fought to have legal representation at his trial. The U.S. Supreme Court ruled that the right to counsel also extended to the state courts. Justice Hugo Black wrote, "(I)n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him..."
5. Argersinger v. Hamlin, 407 U.S. 25 (1972), extended the right to counsel to misdemeanor cases that might result in a person serving time in prison if found guilty.
6. Miranda v. Arizona, 384 U.S. 346 (1966), established that a person in custody has a right to legal counsel when being questioned by police or other law enforcement officials, based on the Fifth Amendment's self- incrimination protection. In In re Gault, 387 U.S. 1 (1967), the Court recognized the special need for juveniles to have a lawyer in trial-like hearings.
7. In McMann v. Richardson, 397 U.S. 759 (1970), the Court emphasized the right to effective legal assistance for the poor. Strickland v. Washington, 466 U.S. 668 (1984), made it difficult to prove ineffective legal assistance by narrowly defining a lawyer's lack of proper counsel.
1. Can a person receive "equal protection" and "due process" in court without a lawyer? In a civil case, can a person who is not represented by a lawyer get a fair result against a person who is?
2. In high-profile cases, is it really possible to find an impartial jury?
3. Should legal representation be a guaranteed right for all people, rich or poor? Given the costs of hiring attorneys, should middle-class people be entitled to subsidized legal assistance?
4. Should legal services for the poor be a federal responsibility, or should it be entirely in state or local hands?
5. Do differences in peoples' access to legal services lead to, or exacerbate, disparities among different groups in society?
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