Category: American Constitution

You are visiting a local shopping mall when you slip on a puddle, and break your leg, this is considered a Tort. A tort is any wrongful act, or accident that leads to a legal liability. Torts can be broken into two categories: Intentional Torts, and Negligence. An example of intentional torts may be getting hit in the head by a bat with the intent to cause harm, if the victim was accidentally hit this would be considered negligence. Negligence is the most common type of tort because most of the cases are accidental and a result of carelessness. If a person gets injured by a defective product, this is an example of strict liability torts meaning one can be held responsible even if there is no proof of fault. There are four key elements for tort cases: duty, breach of duty, causation, and injury. The first element is the presence of duty; did the defendant take all the precautionary measures to prevent this from happening? Breach of Duty is the second element which asks “did the defendant fail to perform their duty?”. Following the breach of duty, the next step is to find the exact cause of injury. The final step is what are the damages, and life changing are they?

Almost all personal injury cases fall under torts, making it one of the largest classifications for civil litigation. Many countries have eliminated the practice of torts, but the United States holds onto the belief that if someone is injured, justice is due. When a plaintiff is filing a lawsuit against the defendant they sue for the amount of money they believe is owed to them to make up for damages. Some may decide to sue for punitive damages which is when the plaintiff is awarded beyond just the compensation but to punish the defendant and prevent them from committing the act again. For many victims the amount they may sue for is limitless, but in some states there is a cap to limit how much a victim can sue for damages, this is called Tort Reform.

Tort reform has been practiced since the 1970s when insurance companies and major corporations began to advocate for it, to protect themselves from future lawsuits. They had lobbied, and released advertisements publicizing that the civil justice system is biased towards victims. It had become a topic of controversy once again in 2010 when the Republican party won control of the House of Representatives. A promise made by the republicans was to ameliorate current tort laws. Tort Reform is created to prevent the verdicts from being too large as many of them are caused by foolish actions. The three goals of tort reform is to restrict people from filing lawsuits, place restraints on how much damages a victim may acquire, and prevent civil cases from going to court.

The most considerable type of law that tort reform has affected is Medical Malpractice. Medical Malpractice is when a medical professional causes damage to a patient through carelessness, or error. Tort reform in medical cases is intended to protect doctors, and hospitals from being sued by significant amounts of people. As one of the main goals of tort reform is to lower the amount of civil law cases brought to court, leading to victims choosing to settle out of court. Because of this, many lawyers are hesitant to take on a case as their contingency fee would be very minimal because their clients may only sue for a limited amount. An article published by Justia speaks about the current states that use Tort Reform for Medical Malpractice, this article reveals “In states that have implemented medical malpractice lawsuit caps, average malpractice insurance premiums have dropped because rates of litigation have fallen. In addition to caps, many states implement pre-suit litigation procedures to cut down on the number of lawsuits. These procedures require claimants to make a preliminary showing of medical negligence to a board or present an expert certificate to the court before pursuing a lawsuit against a medical professional.” States using Tort Reform have been very successful with limiting the amount of medical malpractice cases in their state. Although there is proof that tort reform works states are still skeptical which prevents Tort Reform from becoming a federal law. A study published in 2011 by Public Citizen examined the consequences of tort reform in Texas from its restraints on non-economic damages in 2003. They had concluded that medical malpractice lawsuits had declined, but insurance premiums had rapidly skyrocketed significantly higher than the national average. As a result, the amount of Texas residents with health insurance was elevated.

Tort Reform has been implemented in thirty-six states to date, most of those imposed caps are on medical malpractice cases. As reported by Doug Benet, writer for Merritt Hawkins the caps imposed on these states range from $250,000 to $2.25 million. Tort reform has been a controversial topic because it is believed that by enforcing limitations the legal system is protecting businesses, instead of victims.

The main pro of tort reform is it brings an end to frivolous lawsuits, as they are seen as a waste of time. By placing a cap on these cases it would eliminate the amount of punitive damages a plaintiff may sue for. The defense for this is that “The justice system is about making people whole. It should not be about making people become rich because of a mistake or unexpected circumstance.” according to Crystal Lombardo, in her article “11 Important Tort Reform Pros and Cons” published on Vittana Blog. There are cost efficient alternatives to court cases like settling through arbitration and mediation that would still reward the victim just in a quicker way. Having tort reform eliminates the focal point of a lawsuit being its monetary value. Instead this allows the judge to concentrate on the facts to determine who is at fault, and provide justice for the victim. One of the leading reasons for tort reform is restricting the amount of attorney fees a lawyer may receive. As it is foolish in some cases for the attorney to receive more than the victim.

Tort Reform has neglected to become a federal law because many still doubt the effectiveness, and how ethical it is. A huge reason for anti tort reform supporters is it can possibly create more injustices verses eliminating the possibility of causing more. By limiting punitive damages, it limits the punishment a defendant will face making it possible for them to repeat this injustice. By putting tort reform in place, it decreases the damages and fault the wrongdoer does regardless of how significant the tort was. The Good Samaritan Clause protects those who assist the injured party even if they were injured as a result of their assistance. Specifically, this clause protects healthcare providers, and medical professionals by reducing liability. By limiting liability it allows corporations to act unethical with little to no price to pay.

The main point of the US legal system is to provide justice to those who have been victims as a result of someone else’s negligence, implementing tort reform may possibly do the complete opposite. Victims will be forced to accept insignificant awards, settle outside of court, and prevent them from pursuing lawsuits. The United States constitution is made up of 27 amendments that protect the rights of American citizens. The 7th amendment assures that everyone has the right to a jury trial whether it be a civil or common law case. The right to a jury trial has been in practice for over 800 years, beginning at the signing of the Magna Carta of 1215. Tort reform poses a threat to the 7th amendment.

The massive majority of modern constitutions pronounce the rudimentary ideologies of the state, the structures and procedures of government and the fundamental privileges of the people in a higher law that cannot be individually altered by a regular legislative act. This superior law is frequently denoted as a constitution. The content and nature of various constitutions and how it relates to various political and legal order is different from country to country. This has made it very difficult to have one definition of the word constitution which goes uncontested.

To start off with this topic, let us take a look at how the Oxford dictionary of law defines the constitution. A constitution according to the Oxford dictionary of law is defined as, “the rules and practices that determine the composition and the functions of the central and local government in a state and regulate the relationship between the individual and the state”.

From the above definition we note that a constitution has been put in place to regulate the functions of government, to define the roles of the organs of government and also to establish laws that are very fundamental to the nation. These rules are obligatory to everyone within the state, including the lawmaking institutes. The constitution outlines the responsibility that has been placed on government concerning the different structures and operation of government institutions, political principles and it also gives government ample direction on how they need to deal with the people’s rights because the people are the custodians of the constitution.

The definition of the constitution coming from the oxford dictionary somehow does not do justice to the definition of the constitution because the dictionary was written in a land where they have an unwritten type of constitution. It is important to differentiate the variance between the constitution and constitutional law. A constitution is a document that houses the law which provides fundamental principles that govern a state and gives description to the various organs of government in a given state and also provides certain rights to the people. A constitution is there to guide the government and the people. It is a higher law.

They are many forms of constitutions and we are going to look at some of them and explain how they function. We have written constitution and unwritten constitution. A written constitution is codified and it contains all the fundamental laws governing a state in one written document. Zambia and the United States of America are among some of the countries that are using this type of constitution. The American constitution is one of the oldest constitutions in the world. It was written in 1789. The main reason this constitution was written was because people wanted a fresh start after gaining independence from British rule. The people of the United States did not want to go back into colonialism again and so they decided to formulate for themselves a constitution that was going to stand a test of time. An unwritten constitution on the other hand is uncodified. This does not mean that it is not written, what this means is that there is no formal document governing the state instead statutes, customs and conventions is what determines the law. The United Kingdom is one of the countries that is using this type of constitution.

We also have the rigid and the flexible constitution. A rigid constitution is one that cannot easily be changed. This is so because the process that has been prescribed to amend such a constitution is detailed and has a lengthy manner of execution. A flexible constitution on the other hand is one that is easy to change. It is the opposite of the rigid constitution. The legislative procedures that are used to changed this type of constitution are ordinary ones.

There is also a monarchical constitution which governs a monarchy. A monarchy is a type of government whose head of state is the King or Queen. A prime minister is also put in place to handle the administrative duties but directly reports to the crown.

A federal constitution is a constitution governing a federation. Federal constitution is a constitution that separates the power that the central government has from the power that the sub-divisions of government have. In a federal government some states stand autonomous and they are able to make rules and laws that govern that particular state. We can say they are partially self-governed.

The constitution has to undergo a process before a final constitution is signed and this process is called the constitutional making process. A seating president will appoint a commission following the demand from the people to either amend the current constitution or to do a total overhaul of the current constitution. The president then appoints a commissioner to head that commission. It is the duty of the commission to carry out the submissions that they have received from the people. It is important that constitutions are not made in isolation, they draw on the method, manuscripts and experiences of the constitutions that are already in existence in other parts of the world. In Zambia, the presidents since 1964 have all been using the inquiries Act to appoint constitutional review commissions.

After the commissions obtain the submissions from the people they then present it to the president who has to scrutinize the submissions before passing it on to parliament for debate. This is the weakness in this method of constitutional making process. Since the president is the one in charge of the choosing of the commission/commissioner, the president controls whatever the commission does and he has right to remove whatever submissions he deems not to favor his government or himself as an individual. I therefore submit that in my opinion the constituent assembly is a better process of formulating a constitution.

The constitution is the supreme law of the land. In article 1 (section 1) of the Zambian constitution it states that; “the constitution is the supreme law of the republic of Zambia and any other written law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency”. This statement shows us that which ever other law that exists outside the constitution can be overruled by the constitution. For example, customary laws may justify the marrying of a girl under the age of 16 as long as the bride price is paid and all the traditional marriage rites are observed. The constitution overrules that because it clearly states that everyone under the age of 16 is a minor and having canal knowledge with a minor is a criminal offence. The constitution is the only document that has the final say and rules above all other legal documents.

The authority of government to govern the people is given by the constitution. The preamble of the constitution of Zambia and of the US shows the supremacy of the constitution:

‘We, The People Of Zambia

Acknowledge the supremacy of God Almighty;

Declare the Republic a Christian Nation while upholding a person’s right to freedom of conscience, belief or religion;

Uphold the human rights and fundamental freedoms of every person;

Commit ourselves to upholding the principles of democracy and good governance;

Resolve to ensure that our values relating to family, morality, patriotism and justice are maintained and all functions of the State are performed in our common interest;

Confirm the equal worth of women and men and their right to freely participate in, determine and build a sustainable political, legal, economic and social order;

Recognise And Uphold the multi-ethnic, multi-racial, multi-religious and multi-cultural character of our Nation and our right to manage our affairs and resources sustainably in a devolved system of governance;

Resolve that Zambia shall remain a unitary, multi-party and democratic sovereign State;

Recognise And Honour the freedom fighters who fought for the independence of our Nation in order to achieve liberty, justice and unity for the people of Zambia;

And Direct that all State organs and State institutions abide by and respect our sovereign will;

Do Hereby Solemnly Adopt And Give To Ourselves This Constitution’.

The preamble of the United States of America reads as follows: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”.

Since the constitution is the reflection of the will of the people, the people are the ones that give government the mandate to govern. So, governments are expected to carry out their duties whilst respecting the people who elected them into office. Apart from supremacy this also shows us that the source of the constitution is the people and the constitution gives government the mandate and the power to carry out their duties whilst upholding the rule of law. The current South African President Cyril Ramaphosa noted on the South African Constitution that, “[South African constitution] belongs to all of us, not just the ruling party, or one section of South Africa. We all wrote this collectively with our blood, some with their lives, with tears and with our sweat. We claim it as ours, it enshrines the rights that make us live as South Africans and we will protect it because it belongs to us”.

Thomas Jefferson stated, “We hold these truths to be self-evident. That all men are created equal. That they are endowed by their creator with certain inalienable rights. That among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of those ends, it shall be the right of the people to alter or abolish it, and to institute new government, laying its foundations upon such principles, and organizing its powers in such form, as shall seem to them most likely to affect their safety and happiness”.

Why is it important to have a constitution or what is the importance of the constitution to a country? As Lutz notes; a constitution marries power with justice. The constitution exists to defend the rule of law and to put boundaries on the arbitrariness of power. It is the supreme law of the land that balances out the legal, political and social functions. It sets out And defines the duties, and the rights of the citizens of a nation e.g. freedom of speech, association, assembly, rights to be free from torture/physical abuse.

The constitution declares the sovereignty of the nation. The constitution of Ghana (1992) states that; “the sovereignty of the Ghanaian constitution resides in the people of Ghana in whose name for whose welfare the powers of government are to be exercised”. This clearly tells us that constitution protects peoples rights and it also outlines the duties of the people.

The constitution is a very important document because it promotes human equality. There is no greater person and there is no lesser person before the law, there is no male there is no female. We are all equal before the law. The constitution promotes gender equality and it protects the vulnerable of society. It is there to outline the rights of the people but also it outlines the punishment for anyone that breaks the law.

The constitution upholds the rule of law. It is the supreme document housing the laws of the land. All other laws are subject to the constitution. The constitution for example gives a right to every adult to vote. Adult citizens can participate in the electoral process which is a process where adult citizens are free to elect a leader of their choice without interference from the government or any other law enforcing agency. If a leader is voted into power today and the citizens feel that that particular leader is not delivering on his promise, they can decide not to give that individual or the entire party another mandate in office. It is a right of the citizens to choose leadership.

Part 3 article 11 of the laws of Zambia (1996) states that; “it is recognized that every person in Zambia has been and shall continue to be entitled to the fundamental human rights and freedoms of the individual, that it to say, the right , whatever his race, place of origin, political opinion, color, creed, sex or marital status but subject to the limitations contained in this part, to each and all the following, namely; (a) life, liberty, security of the person and protection of the law. (b) Freedom of conscience, expression, assembly, movement and association. (c) protection of young persons from exploitation. (d) protection for the privacy of his home and other property and from deprivation of property without compensation”.

The above rights come with responsibility. The constitution teaches the people living in the land responsibility. For example, no one is allowed to take away another person’s life unless that person is has been adjudged that he be sentenced to death, or maybe someone does it through self-defense which also needs to be proved before the courts of law.

The constitution provides for separation of power. It separates the three organs of into the executive, the legislature and the judiciary. The constitution gives independence to the three organs so that they operate autonomously. No one organ should interfere with the work of the other organ. The executive must not interfere with the work of the legislature and the judiciary and vice versa. The three organs have been put out there so that they can provide checks and balances to one another. The constitution is not just there again to make efficient the powers given to the executive, it is there to limit those powers. Power has the ability to corrupt and when you give the executive absolute power, the power will corrupt them absolutely! The constitution hence limits those powers of the people as they carry out the mammoth mandate of leading the people.

The constitution places down the national goals which makes the basic organization on which the nation respites. It is a road map that needs to be consulted from time to time as the nation continues to forge ahead in the agendas of national development, equity, good governance, accountability and transparency etc. It is important for the constitution to be consulted from time to time because it is a document that the founding fathers of the nations after consulting with the people came up with to charter the road map for the entire nation. That is why it is very important to consult and get submissions from the people before any amendment can be made to this sacred document. People should be consulted because the constitution is there for them and nothing that infringes on their rights should be documented as law. A constitution should not be forced on the people if that that constitution is going to have the respect of the people that it intends to guide and protect. The rights of the government to govern the people is obtained from the constitution. The constitution binds all persons of Zambia, state organs and state institutions. It describes the relationship that the aforementioned share with one another.

The constitution stands as a backbone of the nation. It makes the nation governable. Without the constitution they would be chaos in the nation. Chaos and disorder would be the norm of the day because there will be nothing to regulate the behavior of the people and the government. The constitution has come in to bring law and order and also to make the various countries around the world governable. The constitution being the backbone of the nation holds the nation together and gives power to both the people and the government to make right decisions that will respect other peoples rights. Without this important document there would be a lot of civil unrest in the country because there is no restriction and guidance as to how things should be done. There would be no legal systems for people to run to when they seek justice. Without the constitution people would lived like animals to the detriment of the beautiful earth.

The sovereignty of a state is declared in the constitution. This means that a nation can stand on its own and make independent decisions without interference from other countries. The country is able to stand by their decisions provided that decision is not infringing on human rights per se. If the constitution did not outline the sovereignty of a state, there would have been so much confusion among nations because nations would have been overstepping their boundaries to try and correct what the other is doing and this could have led to wars and a lot of disorder. The constitution sets out the boundaries for the nations relations with other international bodies. The constitution giving power to the three organs of the government also ensures that terrorism and corruption is curbed and tranquility is maintained in a state.

The U.S. Constitution: From Past to Present

The U.S. Constitution contains 4,400 words and is 17 pages long, or 4 parchments. Some people will say those 4,400 words are outdated for today’s modern society. When you look back in history, people such as Samual Adams and Patrick Henry were against the constitution. They were known as anti-federalists. Other people like John Adams and Benjamin Franklin supported the U.S. Constitution. They were known as federalists. The U.S. Constitution has been in strong debate since the day it was signed.

The U.S. Constitution is the backbone of America. It has provided both stability and flexibility enough to survive and remain effective in a world totally different from the one in which it was written (Cobalt,n.d.). It has been in use since June 21, 1788, and is still in use to the present day. The U.S. Constitution is still effective in spite of how old it is. It is effective because it gives us the legislative, executive, and judicial branches. It divides power between state and federal governments. The constitution protects our rights, and the final reason that the U.S. Constitution is effective is that it protects the people from an intrusion of the government. There are 3 reasons we have the U.S. Constitution and they are all in effect today.

One thing that proves that the U.S. Constitution is still relevant is that we still use the legislative, executive, and judicial branches. The legislative branch has the power to make new laws. The legislative branch is made up of Congress and a variety of different agencies. Congress is split into two separate sections, the senate and the house of representatives. Both the Senate and House of Representatives are voted by the people of each state. As of right now, there are 100 senators, 435 representatives, 5 delegates, and 1 resident commissioner. The different agencies that consist of the legislative branch are The Government Publishing Office and the Library of Congress. The legislative branch is one of the three branches.

The second branch is the Executive Branch. The executive branch is in charge of enforcing the laws that the legislative branches make. The President of America is in charge of the executive branch. The President gets assistance from the Vice President, the Cabinet Members, and the Head of the Independent Agencies. All the people involved with the executive branch have different roles to play. The President is in charge of the country and leads the military. The Vice President will become President if the current President can no longer perform his duty. The heads of the department are in charge of advising the President on issues to help make decisions on the government. Lastly, Independent Agencies are in charge of providing special services. The last branch is the Judicial Branch.

The Judicial Branch is in charge of deciding what laws mean, applying real-world situations, or whether a law is unconstitutional or not. The Supreme Court is the highest court in America. The Supreme Court is a part of the Judicial Branch. The Supreme Court is Made up of 9 Judges called Justices. The Justices are nominated by the President and are confirmed by the Senate. But the Judicial Branches’ main task is to decide whether or not something is constitutional or unconstitutional. There are 3 Branches and they are all still relevant in the present.

The U.S. Constitution divides the power between the state and the federal governments. The Federal and State governments have different responsibilities. The state’s responsibilities are ratifying different amendments, managing different public health and safety topics, and overseeing trade in the states. The Federal government’s responsibilities are producing money, declaring war, managing foreign relations, and overseeing trade. But, the State and Federal governments also share responsibilities such as making and enforcing laws, making and enforcing taxes, and borrowing money. The U.S. Constitution divides the State and Federal Government, which is still in use today.

The last reason the U.S. Constitution protects the citizen’s personal rights. The constitution says that our rights are god-given and can never be taken away. It doesn’t matter if our rights get ripped up or destroyed, we will never lose our rights. No one wants to hear that their rights could get taken away. That is another way how the U.S. Constitution is relevant.

The U.S. Constitution is the backbone of our society. As Sonia Sotomayor, U.S. District Court Judge, once said, “ I don’t believe we should bend the Constitution under any circumstance. It says what it says. We should do honor to it.” This is the type of attitude we should have towards the amazing document known as the U.S. Constitution.

References

1. Constitution Facts. (n.d.). Constitution Day Materials, US Constitution, Pocket
2. Constitution Book, Declaration of Independence, Bill of Rights. Retrieved from https://www.constitutionfacts.com/us-constitution-amendments/fascinating-facts/
3. Davis, K. (n.d.). The Executive Branch. Retrieved from https://bensguide.gpo.gov/a-executive
4. Davis, K. (n.d.). The Judicial Branch. Retrieved from https://bensguide.gpo.gov/a-judicial
5. Davis, K. (n.d.). The Legislative Branch. Retrieved from https://bensguide.gpo.gov/a-legislative
6. Davis, K. (n.d.). Apprentice: Federal Versus State Government. Retrieved from https://bensguide.gpo.gov/apprentice-federal-versus-state-government
7. NCC Staff. (2019). The day the Constitution was ratified – National Constitution Center. Retrieved from https://constitutioncenter.org/blog/the-day-the-constitution-was-ratified
8. Ubalt. (n.d.). The United States Constitution. Retrieved fromhttps://home.ubalt.edu/shapiro/rights_course/Chapter1text.htm

When the shift began, a Republican-dominated state from the early ’50s to the late ’80s. Various counties had shared both the Democratic label and the Republican label. Whereas, the electorate had power starting from the Democrats in the early ’40s to ’50s to the early ’50s to the ’80s dominated by the republicans. Since then, the heavy influx of Latino and Asian immigrants had gone back to the state. The difference between the Californian constitution is how the fundamentals can be added to the California constitution. Where the other difference, includes California having the initiative process that had helped create these changes for the California constitution to occur.

The California government and its constitution cannot violate any of the fundamental rights that are outlined in the US constitution. What California aids, adds various protections rather than the Federal constitution. Finding loopholes and getting around the rules that are drawbacks details a constitution that varies due to too many rules and regulations. The drawback to having a simple constitution and finding ways around is not clearly defined by direct democracy. Mechanisms too can be included in the state of California’s constitution. These three are initiatives, referendum, and recall. Included for the reason of democracy allowing people to vote and make changes to the Californian constitution in place. The Federal government does not have this process due to how many initiatives would be submitted.

The U.S. Constitution is what everyone abides by and has an amendment process. The procedural model of democracy is reflected by emphasizing participation universally. Also with equality and majority rule. Stating constitutions are supposed to be fundamental documents. Outlining basic enduring principles. The U.S. Constitution should be difficult to amend because it overlooks the individuals in the entire nation. The goal of proposition 13, stopping the ad valorem tax on private property was a success due to before proposition 13 agencies independently established the rates of tax where no limitations sought to achieve a limit that could be set on the tax and how the property owners estimate the amount of future property tax. The problem with Prop 13 is the value of the property that is residential and commercial is reassessed when sold. The fix measures call for a split tax roll requiring the commercial and industrial property to be reassessed regularly and taxed accordingly at the full value.

The direct-democratic procedures and ballot initiatives give individuals a chance to get involved in government to make a change. Before the Great Depression and even during the, no real government was as far as helping the people. The roles have changed completely. Now states have policies and programs in place to help people to avoid past problems. The types of Federalism like Dual Federalism would say that both the state government and the national government are both equally powerful. The government today still has many features of older acts still in effect today from social security that was created to food distribution and healthcare. The ones that are still in favor are social security and healthcare. The biggest one that has changed most recently was the Obama administration as he created the Affordable Care Act.

There are still places that are solidly Republican, and those would be the more rural areas of California, and that has more or less always been the case. The more populated areas generate a lot of votes to outweigh that, however. The differences in scope and detail between the constitutions reflect the different roles of state versus federal government because all states are allowed to expand on the rights in the constitution and provide more of them. They are allowed to expand as much as they want within their jurisdiction. The direct democracy mechanisms provided in the current California constitution let the people of California directly vote on proposed issues and enact them into policy. There are included there because those the made the California constitution were concerned with big business interests, and wanted the people to have more of a say in how the government was run for example the majoritarian model of democracy at work. This is unlike the US constitution where the framers were concerned that the majority would try to take away the minority’s rights, so they avoided direct democracy as much as possible for example the pluralist model of democracy at work. To amend the US constitution, it takes two-thirds of Congress and three-fourths of the states. To amend the California State Constitution, all that’s required is a ballot initiative.

The ease of amendment is a good counterbalance to that, and a way to make sure the California State Constitution is every bit as “living and breathing” as the US Constitution is. The goal was to provide tax relief for California citizens as property values were increasing extremely fast, and it was wildly successful because tax relief is something that everyone wants. The main problem with Prop 13 is that it cut off significant cash flow to schools. The proposition described the Chronicle as an antidote that would allow commercial and industrial properties to be reassessed and taxed at current value. Direct democratic procedures are a good idea because they let the people decide on the laws they really want and what’s best for them. A good idea to leave the majority of lawmaking to elected legislatures because usually regular people aren’t the most qualified to be making laws. During the Great Depression and onward, the federal government took a much larger role in the well-being of its citizens. The New Deal and Johnson’s Great Society greatly increased the degree to which the US could be considered a “welfare” state. State’s roles have changed accordingly, and power has been taken away from them.

Overall, the country has moved towards more of a dual federalism standard when power is taken away from the states and towards a cooperative federalism standard when power is given back. Today’s government still has a lot of the policies from the New Deal and Great Society, but they may have been rolled by slightly by the Reagan era. Medicare and social security are still “in favor” and direct “welfare” programs aren’t as much. An example of that would be when Aid to Families with Dependent Children was changed to Temporary Assistance for Needy Families, which devolved more power to the states and put on more requirements. healthcare definitely needs to be revisited. Currently, the Affordable Care Act puts on an insurance mandate that’s supposed to help lower costs, but it’s not enough. There should be a single-payer healthcare system that most other developed nations have right now. Our state has been dominated by both sides of the political parties for many years with Republican-dominated a couple and then Democratic-dominated as well. In elections most of the time the runners of the campaigns know which state has more voters leaned toward Republicans or Democrats which they treasure has helped them win the election in that particular state. Some states are more so in the middle that is where it is hard to determine what their outcome will be but usually, California since the late 90s to the present time has been Democratic as the majority vote. California State Constitution is able to be changed rather ‘easily’ compared to the US Constitution. The US Constitution goes through these huge processes that have to go through all the branches and have a legit reason for the Constitution to be changed or have something added. While the State Constitution of California is not so strict in the sense that they are able to add laws and policy because they are covering only the state of California not the whole country as the US Constitution does. As mentioned, the California State Constitution is made specifically for the citizens living in California or visiting to follow to ensure the safety of the people. Just as in other states that many go to visit or live in they have rules for their state that might be rather different from where you originally are from. US Constitution protects every citizen in the country at all times making sure that everyone knows their rights and is not being taken away from them. California may allow certain items to be legal in their state however if any person from the federal government is approached by that item they are still able to arrest you as it is against the federal law overshadowing the States laws. It is better to have a Constitution that is both vague and specific because we do not want to limit the power that is being established and we also do not want to control it either. With the amendment, we have freedom of speech and we already know that it includes press, voice, etc. It is pretty vague but does not limit certain aspects of speech. It also does not give so much power in letting people riot and such because of it.

Direct democratic procedures are good to have because it allows more say from the people to cause some change or bring justice to areas they seize it needs and the officials are lacking attention to those problems. There is also more influence through the people in the ability to make laws since they are the majority of the time created by the officials. The roles have changed drastically because as a country we have learned through the hardships of the Great Depression and the great influence it had on our country because of that occurrence we are very lucky not to have gone through such an economic fall as the Great Depression.

How does Locke describe the “state of nature” and what is his recommendation regarding the social contract? What is the primary purpose of government according to Locke?

According to Locke, the “state of nature” is a far more pleasant place to be than Hobbes’. He also gives Laws of Nature, “that mankind is to be preserved as much as possible.” This comes from the idea that we are God’s property and should not then harm one another. We must obey this law. While we must obey this law it does not follow that we would, like any law it requires an enforcer. The step Locke takes to solve this problem is to say, like Hobbes, that we are all equal and so we all have the authority to enforce the law of nature. At this point, we see how starting from the same premise of equality both make moves to separate conclusions, with Hobbes fitting within a negative framework and Locke a positive.

In applying the laws of nature man must do so to two effects; reparation and restraint. Locke believed that reason would enable the expression of collective rationality for anyone who breaks the laws of nature and has made himself an enemy to all mankind, and by definition to oneself. On this basis “every man hath a right to punish the offender and executioner of the law of nature”. He further goes on to say that a man who has received damage to his property in seeking reparation may be joined with other men who recognize the wrong he has done. Together they may enforce reparations proportionate to the transgression. The two problems Locke has with regards to impartiality and interpretation of the law, for the victim of a crime is unlikely to be proportionate in the application of punishment, which Locke himself does accept. But even with this problematic area, the state of nature is still far from a state of war. It may be one containing a few rogues and be occasionally guilty of the misapplication of justice, but man is still primarily rational rather than a desire-seeking species. Our rationality tells us to take no more than we need, to go beyond self-sufficiency is not required and so we need not be at war over resources just as we need not be at war over the fear of violent death, both of which contrast with the argument of Hobbes.

The problem Locke does identify with regard to resources is with the ‘invention’ of currency. Money allows for hoarding and instead of using what we need, we will hoard to meet our future desires. He does not view this as the beginning of the state of war, but the multiplication of the inconveniences of the state of nature. This argument of Locke’s is one that seems logically invalid though. For it does not follow that a species that expresses collective rationality would take a measure (invent currency) that allows for hoarding, which in turn contradicts his law of nature by threatening the preservation of mankind, or at least significant sections of it. For the appropriation and hoarding of currency will produce a have and have not population, and to have not is the means to the destruction of one’s self-preservation. So it would then appear that if anything man is expressing collective irrationality if rationality at all. Locke may argue that consent allows for this to happen but that does not free man from any charge of irrationality or of being an essential desire seeking to be. It perhaps even strengthens the criticism by illustrating man’s tendency towards felicity by creating a mechanism for producing richness.

The United States of America is a union of countries that teamed up to provide a consistent means of protection from outside threats and give us more economic power, more specifically at the time of the British King George III. We act as a country now, sort of, but we are not a true country, which causes much of the confusion and recent distress in politics. The proper role of the U.S. government is to stay out of the way of the American people. Federal government programs should be eliminated, the bureaucracy should remain small and limited, and the powers of every branch and political position should remain as is written in the Constitution. The States have or should have as said in the Constitution, the power over what is not specifically written to give to the federal government. The Constitution actually is supposed to limit the power of the U.S. government and give authority to the individual states. Unfortunately, we the people and the states have lost sight of this limitation and have invested the U.S. government with much more power than they constitutionally have. For example, one such issue is that Congress is the only group that can write a law, and yet we see that Congress has allowed other government independent agencies to write rules that are then treated as laws, such as The Food and Drug Administration (FDA) and the Environmental Protection Agency (EPA). The Great Depression is a large contributor to the power increase of the government when President Franklin Roosevelt created hundreds of new agencies to regulate various aspects of the national economy. World War II increased this even further, as a large increase in military power was wanted and maintained afterward. This created more programs for the government to regulate, and therefore, led to more power over the nation’s social and economic well-being. (“Chapter 11,” slide 5).

In society, the U.S. government makes policies, enforces laws, and allocates resources. Public policy can be generally defined as a system of laws and priorities concerning a given topic promoted by a government body or its representatives. When a law is being considered for passing, to give something priority or rule in a certain way, they do so because of public policy. The issue of gun rights is a matter of public policy. When gun laws are more strictly enforced, this is based on the opinion that stricter laws are likely to lower crime and keep guns out of the hands of criminals. When gun laws are looser and less restricted, this is based on an opinion prioritizing the rights of gun owners and on a belief that stronger gun laws will not be effective in stopping violence. Administrators also try to interpret policies in ways designed to simplify compliance with their requirements. As such, they possess and control the evidence of the policy’s impact. Natural catastrophes are a type of triggering device that can induce policy activity. Panic by sectors of society in response to natural catastrophes provokes government action. For example, agitation by coal miners who lost friends and family in mine cave-ins throughout the country led to government action. However, this is a natural occurrence. It is an accident, and many times it is not the fault of anyone, but simply a misfortune. The agitation of the public causes government agencies to look at the problem and think “I have to do something to fix this.” This is actually where the government should step out. The government is meant to stand as a stabilizer for society to function, not be a parent holding a child’s hand. While it is true some policies should be implemented, such as taxes or a speed limit on highways, other policies are not as necessary and end up affecting the economy and general population. The government’s spending and budgeting decisions have a large impact on the economy and can address priorities by directing certain resources such as funds to a specific problem. The government’s budget deficit can eventually affect long-term growth and interest rates (“Chapter 13,” slide 8). A mining accident or natural disaster can be devastating, especially to one individual’s family, but that individual’s family is not the government’s family. The government agencies setting these policies do not know these people personally, and these are not the government’s responsibilities. This emphasizes the problem that our society has weakened to the expectation that the government can fix everything, or at least holds that responsibility when originally they do not. What is not outlined in the Constitution is, again, not the government’s role. This is what was originally intended to be avoided, but it has been forgotten and pushed aside.

America’s foreign policy is the expression of its goals in the world and of how it proposes to achieve them, a reflection of the nation’s interests and a guideline of how to interact with other countries. Compared to every other liberal democracy though, the U.S. conducts foreign policy in an awkward way. Safety was built into the Constitution to prevent tyranny, yet they frequently make it difficult to develop and implement a cohesive foreign policy, create uncertainty as to what that policy is, and give foreign governments and special interests an opportunity to apply pressure at many points, not just one. As a result, the actors of foreign policy in the U.S. are often difficult to recognize. To most, the first goal of foreign policy is security. Traditionally, the U.S. has been concerned with hostile relations and the dangers of other nations, but today, we rely on a large military fleet to protect us (“Chapter 14,” slide 3). Up until World War II, we relied on isolation to shield us from foreign attack, but that clearly did not work as well as we had hoped for. Now, the United States has the biggest military force in the world. While this is all well and good, it isn’t the best priority when it comes to foreign affairs. A major goal for the United States is to promote economic prosperity. Maintaining foreign resource access is one way that can help achieve this, and it would not only help us economically but can strengthen relationships with other nations (“Chapter 14,” slide 7). It is best that we pay more attention to not only our relationships with our countries but also our border security. While there are many people that disagree with President Trump’s idea to build a wall, it is more of a vision than a reality. The symbolism of the wall is to restrict our immigration limits not so we stop it, but to regulate it. National security has always been and continues to be, one of our nation’s top priorities. Some may even argue national security is the highest duty a nation’s leaders are meant to ensure and protect. If this is true, then it is essential to pay attention to this because it is not just a problem anymore, but a crisis. The first step toward a solution is securing our border and fulfilling our duty to all Americans to provide a physically safe and economically prosperous country, even if the government is given more power to do so.

Introduction

The freedom of speech, protected under constitutional law, is a cornerstone of democratic societies worldwide. It serves as a safeguard for individual expression, public discourse, and the exchange of ideas. This essay will provide an analytical examination of constitutional law pertaining to freedom of speech. We will explore the legal foundations, key constitutional provisions, and landmark court cases that have shaped this fundamental right. By delving into the nuances and complexities of this topic, we aim to gain a deeper understanding of the delicate balance between free expression and the legitimate limits imposed by the law.

Legal Foundations and Constitutional Provisions

The freedom of speech is enshrined in various constitutional documents around the world, including the First Amendment of the United States Constitution, Article 10 of the European Convention on Human Rights, and Article 19 of the Universal Declaration of Human Rights. These provisions recognize the importance of free speech as a fundamental human right and emphasize its role in democratic societies. They grant individuals the right to express themselves, share ideas, criticize the government, and engage in robust public discourse without fear of censorship or retaliation.

Protected Speech and Limitations

While freedom of speech is a cherished right, it is not absolute. Constitutional law recognizes certain limitations and exceptions to protect public safety, national security, and the rights of others. Categories of unprotected speech include incitement to violence, hate speech, obscenity, and defamation. The courts play a crucial role in balancing the right to free expression with these legitimate restrictions, often relying on the principles of imminent lawless action, the clear and present danger test, and the harm principle.

Landmark Court Cases and Precedents

Throughout history, landmark court cases have shaped the interpretation and scope of freedom of speech. In the United States, cases such as Schenck v. United States (1919), Brandenburg v. Ohio (1969), and Citizens United v. Federal Election Commission (2010) have set important precedents regarding the limits and protections of speech. Similarly, in European jurisdictions, cases like Handyside v. United Kingdom (1976) and Müller v. Switzerland (2018) have contributed to the jurisprudence surrounding freedom of expression.

Emerging Issues and Contemporary Challenges

In the digital age, new challenges arise in the context of freedom of speech. Social media platforms, online hate speech, and the spread of misinformation present complex issues that require careful legal consideration. Questions of platform responsibility, content moderation, and the balance between free expression and public safety continue to be debated in courts and legislatures worldwide. Striking the right balance between protecting the integrity of public discourse and curbing harmful speech remains an ongoing challenge.

Conclusion

Constitutional law plays a vital role in safeguarding the freedom of speech. It establishes the legal framework that protects individuals’ right to express their thoughts and opinions freely. However, it also recognizes the need for reasonable limitations to maintain public order, protect vulnerable groups, and ensure the functioning of a democratic society. As society evolves and new challenges emerge, the interpretation and application of constitutional law pertaining to freedom of speech will continue to shape the boundaries of this fundamental right. Through an ongoing dialogue, legal analysis, and a commitment to democratic values, we can navigate the complexities and preserve the delicate balance between free expression and responsible governance.

I grew up on the frontiers of freedom. I lived in Kuwait and Estonia as a child; the former has been liberated by America and the latter is protected by America. Living a country fresh out of the prison house of nations (Russia), I never knew what America was. I had never even celebrated the Fourth of July, nor was I aware of its existence. My mother told me a story of how my brothers and I marveled at the sight of grass when we first landed in America after living abroad for so many years in such barren lands. Adjusting to the American way of life was trying, but soon I found myself whisked away by the historic culture of my country, and that’s when I truly learned about our Constitution and the ideals it engendered.

Birthed from a period of disunity and strife, our Constitution gave testimony to the libertarian underpinning of our nation. The summation of all Constitutional ideas – tolerance for competing ideas, compromise, representation, consensus, checks and balances – has molded the political conscience of each American. We cannot claim to love the fundamental freedoms of America while separating ourselves from the political conscience of America, as they are bound as one. If we rejoice in the grandeur of American life, we rejoice in the quintessential American ideals it embraces through the basic rights enshrined in our Constitution. Synonymous with the heart of the American Creed are Thomas Jefferson’s words that, “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”. Upon this, America is bound together in a band of brotherhood on the grounds of a mutual commitment to a timeless moral principle.

And from this moral principle, comes the preservation of America’s unity through a shared belief, to unite our efforts towards a higher level of good. Our Founding Fathers for twenty generations recognized our capacity for public virtue and our willingness to sustain the schoolhouses of democracy that bound us together as a nation, unmatched by the nations of the world. It is exemplified by you and me, the everyday American individual, by the volunteers who donate their time, by the after-school tutors, by the police officers, by the public librarians, by the soldiers who leave their children who count the steps they take when they walk away and the days until they come back home, soldiers like my father.

The authentic American ideals that emanate from our Constitution are embodied in each person who walk the streets, and I am proud to be amongst them. As citizens of America, we are inevitably tied to our recognition of a shared interest in the conception of good. The true aim of our government, liberty, has been succeeded by the Constitution by enabling us to employ our reason unshackled and cheka on governmental power, while dependent on our political conscience and public virtue.

USA will be a guiding basis of my research since the separation of church and state is a legal and political principle that advocates from the First Amendment of the United States Constitution ‘ the separation of church and state fails to be made available in the Constitution itself but trails itself so far back to Thomas Jefferson, an American diplomat, and Founding Father who served at the third president of the United States from 1801 to 1809. He wrote a letter to the Danbury Baptists which makes this significant since he stated the ‘First Amendment to the US Constitution created a wall of separation between the church and state’. The use of the ‘wall of separation’ was played out as a metaphor for Courts to dictate strict separation of church and state as seen in Everson v Board of Education 330 U.S. 1. (1947). This was the first case that applied the First Amendment’s establishment clause in which Courts relied upon Jefferson’s metaphor to declare a separation of church and state. The Danbury Baptists played a more significant role since they were fearful of the lack of explicit religious liberty laws in Connecticut’s state constitution. However, since the United States Constitution does not state in many words that there is a separation of church and state, then it makes it more adequate to say the Constitution promotes freedom of religion and prevents the federal government from inhibiting its citizens’ ability to worship as they wish.

The First Amendment of the US Constitution essentially warrants freedom regarding religious expression, freedom of speech, religion, assembly, and the right to petition. The First Amendment prohibits Congress from restricting an individual’s religious practices and the promotion of one religion above all others. An example of how the First Amendment was used was in the case of Prince v. Massachusetts 321 U.S. 158 (1944) in which the Supreme Court upheld a Massachusetts regulation that prohibited girls younger than the age of 18 years and boys younger than the age of 12 years from selling newspapers in the streets and in public places, declaring it was not a violation of the Fourteenth Amendment’s free exercise of the ‘religion’ clause. Justice Frank W. Murphy proposed the view, without doubt, the activity was a ‘genuine religious, as opposed to a commercial activity ‘. It constituted a ‘genuine religious’ owing to the fact that the nine-year-old child at issue, Betty Simmons, was a member of the Jehovah’s Witnesses and had been taught the tenets relating to that sect, many of which included the duty of publicly distributing religious tracts from door to door and on the road. In keeping with this religious duty in the company of the appellant, Betty was standing on a public street offering to distribute Jehovah’s Witness tracts to passers-by. This is transparent of there being no pecuniary profit to herself or the appellant since; moreover, the child did this out of her own inclination alongside the appellant’s consent. Religious activity, regardless of whether it is executed by a child or an adult, is protected by the Fourteenth Amendment against interference by the state. However, the issue here is were the state child labor laws constitutional? The Supreme Court asserted Prince’s conviction for violating the state child labor laws for involving her child in street preaching. The Court found the State had greater authority to protect children from their actions and treatment and the dangers of preaching on a public road since preaching and selling religious materials were not the primary use of the road. The ruling of this case is evident understand that the state child labor laws were constitutional and that the state’s interest in protecting children through child labor laws overrides the parent’s constitutional right to raise her children and the children’s constitutional right to practice any religion they desire. This emphasizes the importance of neutrality of the state’s individual religious liberty and the avoidance of any semblance of an official state religion.

Regarding the Church of Scientology, the federal government places no restrictions upon its activities as since 1993, the Internal Revenue Service (IRS) in the United States has formally recognized Scientology as a non-profit for tax purposes. However, there are reasons to question the federal tax exemption of non-profits as the IRS makes no effort to judge the theology of a self-proclaimed church and it is clear they will not try to regulate its membership or leadership. Has the IRS failed to manage and maintain section 501(c) of the Tax Code Act? This is congruent with the First Amendment which means public charities under section 501(c)(3) are subject to severe restrictions on ‘carrying propaganda’ and lobbying. This further means all efforts to faintly affect legislation may not explain for a ‘substantial part’ of the corporation’s operations through section 501(c)(3), exceeding the ‘substantial part’ peak places a corporation in jeopardy of depriving itself of its tax-exempt status. The divergent interests are transparent since religious organizations such as the Church of Scientology withstand any endeavor to restrict political activity as an ‘unconstitutional interference’ with the free exercise of religion whereas extensive political activity by religious organizations has revived the legal as well as the constitutional ultimatum of a strict separation between church and state. For churches and religious organizations, the legal requirements to be tax-exempt under section 501(c)(3) of the Internal Revenue Code are an organization must be organized and operated exclusively for exempt purposes and none of its earnings may condition to any private shareholder or individual. Section 501(c)(3) organizations are also restricted in how much lobbying, political, and legislative, activities they may conduct.

Fundamentally, the results suggest the Church is a non-profit organization but not a religion. Legal recognition becomes paramount when discussing tax exemption, especially in the Wiccan community to prevent ‘tax discrimination’ but also the question of tax exemption in the community for services, goods, and entitlement since without tax exemption this leads to a huge council tax bill on buildings amongst the community for worship and practices.

Dettmer v Landon 799 F.2d 929 is a prolific court case in the Wiccan community in which the United States Court of Appeals for the Fourth Circuit held that even though Wicca is a recognized religion in the eyes of the US law with the support of the First Amendment, it does not violate the First Amendment to strip a prisoner of its rights to practice the religion. Wicca is entitled to the First Amendment protection just as any other religion should be. The United States District Court for the Eastern District of Virginia expressed itself in favor of Dettmer; culminating Wicca was a religion whilst repudiating the position proposed by the Department of Correction that it was merely a ‘conglomeration’ of occult practices. In comparison with Prince, Dettmer shows that religious observances do not need to be uniform to merit the protection of the First Amendment as the Supreme Court recognized differing beliefs and practices are not ‘uncommon among followers of a particular creed ‘. This further advances on the take on prevention of state intervention as ‘Courts are not arbiters of scriptural interpretation ‘ which is directly similar to the Jehovah’s Witness religious tracts. The Church of Wicca’s doctrines teach ceremonies that are parallel to those of recognized religions the Church worship both individually and corporately such as in corporate acts of confessions and ritual acts which enrich the individual’s own worship, promising corporate inclusive worship and essentially expand on their practices are alongside recognized religions rather than reducing the Church of Wicca as just a mixture of the occult.

This case study is on the United States v Abel Fields. Abel Fields is under trial because he is accused of violating the Stolen Valor Act. In 2011, Mr. Fields attended a city meeting on public safety where he told everyone about his extensive military experience which he explained gave him the knowledge to speak on various public safety issues. While speaking on this, he also mentioned that he was also a recipient of the Purple Heart, an honored military award. However, each of these claims was proven to be untrue. Fields never served in the military nor received a Purple Heart. He was convicted under the Stolen Valor Act and charged with a fine. He appealed this decision and argued that the conviction was unconstitutional and violated his first amendment right, the sentence was then overturned. This is a complicated case, but I will use previous court decisions, and precedents, to decide Mr. Fields’ fate.

I will start by agreeing with Mr. Fields’ arguments that the Stolen Valor Act is unconstitutional and violates his freedom of speech. This Act is very broad and can set a precedent for blocking ALL forms of expression that disagree with another’s opinion. Where will we draw the line? According to Texas v Johnson, a person’s words and expressions cannot be suppressed solely because others disagree or do not like the point of view. Freedom of speech, however, is not unlimited and can be suppressed but only if it incites violence or is considered defamation. New York Times Co. v Sullivan rules that damages for libel can be recovered only if it can be proved that the statements were made with actual malice- defined as knowledge that it was false or with reckless disregard of whether it was false or not. Were Mr. Fields’ claims false? Yes. Did he know they were false when he made them? Yes. But were his claims actually malicious? Did he try to defame someone? No. He made these falsehoods about himself which can be easily reversed. People lie every day, should they all be charged?

According to Gertz v Welch, “There is no constitutional value in false statements of fact.” There are other laws that prosecute those who commit fraud, defamation, or libel with varying standards. I believe the Stolen Valor Act is much too broad and does not take into account varying standards per case. This leaves a potential to trample on a person’s fundamental rights. I hope my decision leads us to make some necessary changes to this act and help it to protect those that have served but also not infringe upon the rights of American citizens.