Category: American Constitution

The U.S. Supreme Court was created by the Constitution of the United States and was established in 1789 and recognised under the Judiciary Act of 1789 (Smentkowski 2019). When the Founding Fathers were drafting the Constitution, they were against having a central government. As a result, when writing the Constitution, they decided that it was important to have an institution that had certain checks and balances on the legislative and executive branches of government. This, therefore, resulted in the Founding Fathers bestowing federal judicial power in a single Supreme Court (Smentkowski 2019). As stated in Article 3 of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court…” (US Constitution, Art 3).

In terms of the structure and autonomy of the Court, the Supreme Court is fully liberated in terms of its decision-making and is independent from the executive and legislative branches. In addition, they also have the power to interpret and apply the law to any case, including cases that deal with national law, treaties, and cases affecting representatives of the state without any pressure from other establishments (US Constitution, Art 3).

Appointment of Justices to the Court

The justices of the Supreme Court are appointed by the President, with the advice and accord of the Senate. Nonetheless, the fact that they are appointed by the President does not wield any influence when it comes to the decision-making of the justices or their autonomous nature. This is because of the fact that other institutions of government are restricted from influences the justices in any way, once the judges are appointed (Smentkowski 2019). This appointment process of the justices is affirmed by Article 2, Section 2 of the Constitution. Aside from other institutions not being able to influence justices, the independence and the autonomy of the justices are further ensured given their job and financial security. Judges in the United States are life-time appointees, meaning that they cannot be removed from their position until their time of death. This is recognized by Article 3 Section 1 of the Constitution where the term “good behaviour” within in the Article indicates that justices cannot be removed at a specific age (US Constitution, Art 3; Busch 2018). In addition, justices are also compensated above average, where the amount they are compensated, while it can increase, it cannot decrease. This is recognised by Article 3, Section 1 of the Constitution: “The Judges, both of the supreme and inferior Courts…shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office” (US Constitution, Art 3).

This is important to consider as it prevents the other two branches of government from influencing the judges by threatening to remove them from their positions, threatening their salaries, or bribing the justices. For example, because justices have the security of tenure, where they cannot be removed from their position unless by retiring, resigning, impeachment, or death, it prevents justices from being corrupted or siding with the legislative or the executive due to the fear that they’ll lose their position. In the same way, because they are compensated way above average, where this salary cannot decrease, it prevents the justices from being bribed, or the executive or the legislative threatening to decrease their salary, which would put their financial security at risk (Gur-Arie & Wheeler 1999: 134-135).

Removal Process of Justices

There are four ways in which a judge can be removed from the Court which includes retirement, resigning, impeachment where they are convicted by the Congress, or death. This is established by Article 3, Section 1, where the term “good behavior” within the Article indicates that justices are to serve lifetime appointments, unless they decide to retire or resign. With relation to judges being removed in cases of impeachment, this is established by Article 2 Section 3 of the Constitution: “Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, trust or Profit under the United States” (US Constitution, Art 2).

Separation of Powers

The autonomy and the power of the Court is further affirmed in that not only are they co-equal to the executive and the legislature branches, but they are also distinct from these other two branches of government This is an important addition to the autonomy of the Court as it prevents a single branch wielding too much power, whereby it can then control or corrupt the other branches. For example, while the appointment of justices falls under the authority of the President, this power is balanced by the fact that the appointment of justices must be first accorded by the Senate. Similarly, while the legislative has the authority to make laws, this power is checked through the authority of the President to veto any law passed by the legislative branch. Likewise, while the Supreme Court has authority to deem laws as unconstitutional, this power is equalised through the ability of the legislative to be able to amend the law and overcome the obstacle of unconstitutionality (Mount 2010). These powers of the three branches of government are outlined Article 1, Article 2, and Article 3 of the Constitution respectively.

Judicial Review Powers of the Court

Furthermore, given that the Court also holds the power of judicial review, it further broadens their autonomy and independence. Judicial review is the ability of the Court to to review a legislation and deem it as unconstitutional, if it finds that legislation being passed violates the rights of individuals that are protected under the Constitution or the statute. Although the Constitution itself does not assert that the Court possesses judicial review powers, it was established in the case Madison v. Marbury that it in fact, does. In this case, the Court ruled that it is the right of the judiciary to say what the law is, given that the Constitution gave them the authority to interpret and apply the law (Overholser & Jamieson 2006: 1). In addition, the Court also has the authority to review statutes and treaties to ensure that they are consistent with the Constitution (Rupp 1977: 288). This is recognised by Article VI, Section 2 of the Constitution. In terms of the types of judicial review, the SCC possesses abstract review, concrete review by ordinary courts, and concrete review by individual complaint.

Access to the Court

All individuals and government have access to the Court. Whereas individuals can appeal their case to the Court, after exhausting lower court remedies, the government is also enabled to put forth Constitutional questions to the Court for clarification purposes. Nonetheless, the Court can also hear cases directly, if it believes that the case deals with an important constitutional question. This is established by Article 3 Section 2 of the Constitution.

Political Impact and Analysis

To analyze the Court’s political impact within the area of equal rights, mainly in terms of same-sex marriage rights, I will be mainly examining two cases; Windsor v. United States and Obergefell v. Hodges. In Windsor v. United Stated States, the Court nullified the Defense of Marriage Act (DOMA) and extended benefits to legally recognized same-sex couples in, where in Obergefell v. Hodges, the Court legalized same-sex marriage in all 50 states of the United States while also extending its own powers.

Windsor v. United States was a civil rights case, which dealt with the question of whether same-sex couples who were legally married under state law were also to be recognized as legally married under federal law (Archibald 2014: 696). The case began when Windsor was told that she had to pay over 350,000 in federal estate taxes upon inheriting her spouse’s estate (Archibald 2014: 698). The is because though her marriage was recognized in the state of New York, it was not federally recognized under Section 3 of DOMA. In other words, had her marriage been federally recognized, she would not have been required to pay anything in federal taxes (Thayer & Worley 2013: 469; Schwartz 2010; Johnson 2010). In response, Windsor took legal action by challenging Section 3 of DOMA, arguing that it violated her constitutional right of equal protection as guaranteed by the Fifth Amendment, given that she was being treated differently on the basis of her sexual orientation (Archibald 2014: 699). Upon the case reaching the Supreme Court, in a landmark decision, the Majority found Section 3 of DOMA as unconstitutional. Not only did the Court find that DOMA was contrary to the equal protection clause, guaranteed by the Constitution, but it also infringed upon liberty interest, guaranteed by the Fifth Amendment (Archibald 2014: 699 – 700). The Court reasoned that DOMA singled out same-sex couples in that it advocated that those who were in same-sex marriages were lesser than those who were not. As such, the Court found that the federal statute was invalid as the State is obliged to protect the dignity and personhood of those in marriage, not denigrate them (United States v. Windsor 2013: 20; Cruz 2014: 506).

This ruling of the Supreme Court was extremely significant and impacted politics immensely. In this case, the Court impacted politics and was quite powerful because the Court expanded the meaning of rights of same-sex couples and completely nullified DOMA, which led to the reform of over a 1000 federal statutes (Archibald 2014: 696). For example, the Supreme Court’s ruling meant that same-sex couples who were legally married under their state law were now able to obtain the same benefits as those enjoyed by heterosexual couples. Apart from that, this decision of the Supreme Court also meant that the marriages of the same-sex couples were to be recognized federally. In addition, this case also showcased the Court’s judicial review power, mainly concrete review by individuals. This is because after exhausting all judicial remedies, Windsor applied her case to the Supreme Court, where the Supreme Court made a ruling on the case. This, in essence, showcased the political effect of the Court’s constitutional review in that the Court’s ruling had a formal legislative impact in that the Court decided on a complete annulment of DOMA, thus invalidating the entire law. It also showcases the Court’s judicial review powers in that after the Court ruled DOMA as unconstitutional, the Government accepted the Court’s ruling without any dispute. This is evidenced by the fact that following the Court’s ruling, the Obama administration commenced extending federal benefits to same-sex couples that were otherwise only enjoyed by heterosexual couples. For example, the Social Security Administration extended social security spousal benefits for same-sex couples, which was something that was not protected by law prior to the ruling of the Supreme Court in Windsor (Smith 2014: 8-9). In addition, the Obama administration also announced that same-sex couples who were federally employed were eligible to apply for many benefits that were before only enjoyed by heterosexual couples including retirement benefits, dental, health and vision (Hicks 2013).

Moreover, this decision was also extremely important as by the Court ruling in favor of same-sex couples, it extended benefits and changed the laws in an area which that the Court had previously been reluctant to do so and deferred decisions to the Government. However, this ruling demonstrated that the Court was not afraid to interfere in Governmental policies if it infringed upon the rights of individuals.

Nonetheless, even though the Supreme Court’s ruling in Windsor was extremely significant as it extended several benefits to same-sex couples, its ruling only extended to those who were in lawful marriages. In other words, the Supreme Court’s ruling had no impact on the laws of the states that had banned same-sex marriage. However, this aspect of the law changed in 2015 in the case of Obergefell v. Hodges. Obergefell v. Hodges demonstrated the impact and the power of the Court as the Court not only expand the meaning of law and rights concerning same-sex couples, but it also increased its own powers. In this case, the Court ruled that the right to marry is a fundamental right that is protected both by the Due Process Clause and the Equal Protection Clause under the Fourteenth Amendment of the Constitution, where the banning of same-sex marriage concerned the latter (Isaacson 2015: 537). In fact, the Supreme Court specified in this case that the Constitution grants individual equal dignity, which is what the plaintiffs are mainly asking for in this case (Yoshino 2015: 147).

This case was extremely significant in terms of affecting politics as the Supreme Court’s ruling led to the expansion of meaning of rights of same-sex couples in that it established the legality of same-sex marriage in all of United States, where it obligated all 50 states to legally recognize and honor out of state same-sex marriage licenses and extend all rights that are enjoyed by heterosexual couples to same-sex couples. In addition, Windsor v. United States and Obergefell v. Hodges further impacted politics and further showcased the Court increasing its own power in that within this area, while the Court repeatedly had the opportunity to expand the law in its case law, it did not do so because of the legal tradition. In all of the history of the United States, same-sex marriage was always looked down upon, where it was illegal in the majority of the states in the United States. In fact, in the early 70s, the Supreme Court of the state of Minnesota in Baker v. Nelson had held that refusing to provide marriage licenses to same-sex couples was not a violation of the U.S Constitution. In the late 90s, as discussed above, parliament passed DOMA, which prohibited the federal Government from acknowledging the unions of same-sex couples. It was not until 2004, where numerous states began providing marriage licenses to same-sex couples, indicating some progress towards the legalization of same-sex marriage. However, these marriage licences were later nullified by the courts. While some states began to legalize same-sex marriage in the late 2000s, such as California in the case of Kerrigan and Mock v. Connecticut Department of Public Health, which was later overturned by a national referendum, real change in the issue of same-sex marriage arrived in 2013 in the case of Windsor v. United States and in 2015 in Obergefell v Hodges. This is because as explained above, the former extended benefits to same-sex couples whose marriages were recognized federally, where the latter obligated states to recognize all same-sex marriages in the United States thus establishing the legalization of same-sex marriage and instituting that treating same-sex couples differently was a violation of the Constitution.

The Supreme Court further expanded its powers, in that in deciding this case, the Supreme Court outweighed the democratic process, despite the state arguing that there wasn’t enough deliberation on the topic (Obergefell v. Hodges 2015: 181). The state argued that before the Court makes a decision in this case, there should be somewhat of a discussion on this issue, regardless of whether it is an academic debate or a debate between members of parliament. This is because the state argued that the issue was that of a matter that related to politics, and as such, only those who were elected by the majority of the population should have the power to decide. However, the Court found that while change is to occur through democratic processes, as stated by the Constitution, this is not the case if the Court uncovers a new fundamental right (Obergefell v. Hodges 2015: 181). It ruled that if it is the case that individuals are harmed, where that harm is protected by the Constitution, individuals are welcome to “invoke a right to constitutional protection”, even if it is the case where the majority of the public or the legislature disagrees with them (Obergefell v. Hodges 2015: 24). This was of huge significance as the Court essentially found itself a leeway in hearing cases, regardless of whether there has been a national deliberation on the issue, thus significantly increasing its own power. This ties into the concept of judicialization of mega-politics in that the Court weighted in on an important policy decision, which was that of whether same-sex marriage should be legalized.

Conclusion

This paper has analysed the Supreme Court of the United States and its impact on same-sex marriage rights. First, this paper highlighted how the Court was established and further explored the Court’s powers, review types, and its appointment and removal processes. After, this paper examined the political impact of the Court through the cases of Windsor v. United States and Obergefell v. Hodges. It emphasized how these two cases were extreme signs of the Court’s impact on politics and its power as while the Court ruled in the former that same-sex couples who were legally married in their respective states were to be recognized federally, leading to new legislations being adopted and the extension of several rights, it recognized same-sex marriage as a fundamental right in the latter and obligated all 50 states to legally recognize same-sex marriage.

While the proscription of same-sex marriage was deemed as unconstitutional by the U.S Supreme Court, leading to new legislation being adopted, it is important to emphasize the fact that this mainly occurred due to the Court’s significant power and autonomy. For example, in Russia, same-sex marriage is proscribed. In fact, violence and discrimination is allowed in Russia against same-sex couples, where same-sex marriage has even been described as “a very dangerous sign of the apocalypse” (Herszenhorn 2013). Moreover, the head of the Moscow Registry Office has previously stated that anyone who attempts to partake in same-sex marriage in Russia will fail as the people of Russia are guided by the federal law which clearly outlines that marriage consists between a man and a woman (Interfax-Religion 2011). This situation stands similarity to the case of U.S in that DOMA also defined marriage as that between a man and a woman. However, while Supreme Court in the U.S struck down the DOMA and deemed it as unconstitutional, the Russian courts have constantly upheld the proscription of same-sex marriage, despite same-sex marriage being guaranteed by Articles 8 and 12 of the European Human Rights Convention which Russia has ratified (Sputnik-News 2010; Council of Europe 2019). This, as one International Commission of Jurists report outlined, has to do with the fact that there are no safeguards against justices being appointed for indecorous purposes and that political sensitivity plays a significant role in the promotions of justices (International commission of Jurists 2014).

The Constitution was written in 1787 and is still used today. Over time, the meaning of the amendments has been interpreted differently due to technology and society advancing. The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. In simpler words, it’s the right to have privacy in your own living space. The problem is new technology is evolving and blurring the line between what is personal information and what can be shared. Many think that the information you choose to provide on the Internet should stay private. Others think that what you chose to share is no longer private. People are very divided on this issue, but by taking the time to research, one could find where they sit in the current debate.

Noah is a high school student, and like most, uses a cell phone. He gets home from school and flips through his social media. Noah stumbles across an advertisement for a pottery wheel. He finds this strange because he was recently searching on Google for a pottery wheel. This is because Noah’s search history is shared with other companies so they can show him advertisements for things he’s likely to buy. The problem here is Noah is unaware his search history and other aspects of his data are being shared. He believes everything he searches is private. This is true for most people young or old. “Roughly half of Americans do not trust the federal government or social media sites to protect their data”, says the Pew Research Center. Are companies violating the Fourth Amendment when they share your data?

The proposition for change is that phone and Internet companies should make it more known that the user’s data is allowed to be shared once they agree to the terms of service. Those arguing for change suggest that it should be the first thing one sees when utilizing any of these platforms. As seen in the court case Carpenter v. United States, the tracking of this man’s location without his direct consent or warrant present was in violation of his 4th Amendment rights of search and seizure. “The Fourth Amendment protects not only property interests but also reasonable expectations of privacy. Expectations of privacy in this age of digital data do not fit neatly into existing precedents, but tracking a person’s movements and location through extensive cell-site records is far more intrusive than the precedents might have anticipated”. People in favor of change argue that companies should make their intentions clearer, and some feel strongly that releasing any information at all is unconstitutional. 49% of Americans believe their personal information is less secure than it was five years ago. This tells us that more personal data is being shared and consumers are starting to feel that their right to privacy is being violated. Just as quickly as technology is growing, so is the demand for reform and the number of people that support it.

The opposition to change is that people are aware that their data can be shared. Many who oppose believe that if people are so concerned that their privacy is being invaded, they shouldn’t be so quick to just check the boxes without understanding the terms of service. In the court case Smith v. Maryland, Smith was accused of robbing a woman and then making threatening calls to her. The police use his call log as the reason for getting a warrant to search Smith’s home. The Supreme Court decided against Smith. “This reasonable expectation of privacy does not apply to the numbers recorded by a pen register because those numbers are used in the regular conduct of the phone company’s business, a fact of which individuals are aware”. Taking a look at today’s politics, it is easy to see that the number of conservatives is growing. Conservatives often use the issue of national security to justify invading people’s privacy. It is groups like this that would obviously be in opposition to stricter regulations of what data can be shared. The more society becomes dependent on technology, the quicker users are to agree to give away their information.

Thomas Jefferson would have never pictured his identity being stolen simply by writing it down somewhere. Although the Founding Fathers did not live in today’s society, they were able to predict that privacy would be an important issue in the grand scheme of things. Now that both sides have been presented, it is clear that Americans are very split on the issue of Fourth Amendment rights. It’s easy to see why people would argue for privacy because they want to feel that their individual safety is prioritized. It’s also easy to see how people would argue that your data should be shared because it keeps everyone safe on a national level. I think the information should be collected and shared in the presence of a warrant to assure citizens are safe. “The Fourth Amendment to the U.S. Constitution protects citizens’ homes, property, and effects from unreasonable searches and seizures by the government. The amendment, however, does not provide for what will or even what should happen when evidence of criminal activity is uncovered by virtue of a government actor’s violating this constitutional provision”. The Fourth Amendment will be an issue as long as technology keeps advancing. No one knows what the future may hold, but at least we have the Constitution to give us a strong backbone.

References

1. Carpenter v. United States. Oyez, 2017/16-402. https://www.oyez.org/cases/2017/16-402
2. Shulman, William L. Exclusionary Rule. https://issues.abc-clio.com/Search/Display/1499296?terms=exclusionary+rule&sTypeId=2
3. Smith, Aaron. Americans and Cybersecurity. 1/26/17. https://www.pewresearch.org/internet/2017/01/26/americans-and-cybersecurity/
4. United States of America 1789 (Rev. 1992). https://www.constituteproject.org/constitution/United_States_of_America_1992

Since its inception, America has gone through a myriad of changes. In its short life of just two-hundred-forty-three years, America has become an independent nation, expanded West, ended slavery, introduced and later abolished prohibition, established equal voting rights, ended segregation, and legalized gay marriage. When one sits down and thinks about it, that’s a lot of changes for one country to go through in such a short time. However, none of these changes happened overnight. In many cases, in fact, it took decades (sometimes even centuries) of desperate protesting and lobbying before any change could occur. Ultimately, it wasn’t just the pickets in the streets that allowed these changes to happen. It was pen, paper, the common-law judicial system, and the theory of living constitutionalism.

In the American government, law is constructed through a variety of mediums. In most cases, laws are drafted through legislation. First, a bill is proposed to Congress through one of its members (either a senator or representative). Then, Congress debates and votes on whether or not the law should be passed. After Congress has come to a decision, the President approves or vetoes the decision. If the President approves the bill, it becomes a law. In certain instances, however, laws can be changed or overturned. This can be done through the same process or a Supreme Court decision. Both processes are equally important in discussing how law impacts society and is changed by it. Written law creates a guideline, and as the needs of the public evolve, the Supreme Court makes adjustments.

When constructing written law, there is a variety of criteria a legislator should consider. According to legal philosopher Lon L. Fuller, eight criteria must be met for there to be a true rule of law: generalization, publicity, prospectivity, intelligibility, consistency, practicality, stability, and congruence. If a legal system fails just one of these criteria, it is a bad system or no system at all. When it comes to the language of the written law and its application, intelligibility, consistency, stability, and congruence are the most important of these criteria. This means that the law must be written in a way that people can understand it, it cannot contain any contradictions, it cannot be frequently updated or changed, and it must be consistently upheld in judicial administration. All in all, a good rule of law should furnish those subject to the norms with a calculable basis for running their lives or their businesses. Once written law has been properly constructed, there should be no confusion among the general public about how to follow it. There also should be no confusion among the judicial branch about how the law is applied. However, because of the way written law is applied in criminal and civil cases, the law may not always be applied in a way that is consistent or fair. The reason for this? No, it’s not corruption (usually). It is simply the fact that different justices have different ways of interpreting the law.

The first and most fundamental method of interpreting written law is by examining the literal definitions contained in the statute. In contract law, this interpretation is referred to as the plain meaning rule. The degree to which literal definitions are applied varies, but there are generally two schools of thought formalist justices prescribe to, the first of which is strict constructionism. Strict constructionism is the rigid adherence to the grammatical structure of how a law was written. The problem with this school of thought lies not only in the fact that it lacks flexibility for the wide scope of thought necessary for judicial rulings but also in the danger it poses to the accused. The late Supreme Court Justice Antonin Scalia gave an example of how this method fails in his journal, ‘Common-Law Courts in a Civil-Law System’. In Scalia’s example (which was based on a statutory case his court had previously handled), a man engaged in a drug deal and traded an unloaded gun for cocaine. The problem at hand was in the statute relevant to the case. According to the statute, a defendant would face increased jail time if “during and about a drug trafficking crime (the defendant) used a firearm”. Unfortunately for the defendant, six out of nine justices with Scalia voted to uphold this statute in sentencing, despite the defendant having used the gun as currency, rather than a weapon. This is the danger that lies in strict constructionist thinking. Because of the narrow-minded reasoning it espouses, there is too high a risk that a statute will be applied in a way that it is clearly not meant to be.

A more lenient approach to formalistic justice is textualism. Like strict constructionism, textualism focuses on the literal meaning of a written law, without context. It does not consider non-textual sources, original intent, original application, or judges’ personal rectitudes on a matter. The difference between textualism and strict constructionism is that textualism focuses on a word’s ordinary meaning rather than its literal definition. This allows the law to be construed reasonably, not strictly (or liberally, for that matter). This is the school of thought Justice Scalia prescribes in his rulings.

Another variant of formalist interpretation is originalism, which also dismisses what words in a statute are intended to mean. What separates originalism from textualism and strict constitutionalism is that originalism examines what the words in the law meant at the time of its drafting. One problem with the originalist school of thought is that the meaning of words may change over time, allowing a statute to be misinterpreted by the modern public. Another, more concerning problem originalism (and other formalist sentiments) faces is the disregard for context or extenuating circumstances in a case. Lon L. Fuller examines these dangers in his article ‘The Case of the Speluncean Explorers’. In the fictional (although inspired) case, a group of five men went exploring in some remote caverns. During their expedition, heavy boulders collapsed on the entrance to the cavern, and the explorers became trapped in the cave for several weeks after ten rescuers had failed to liberate them. Over time, the explorers ran out of food supply and became delirious with hunger. Realizing they had no other option than to resort to cannibalism, the group entered into a contract (a solution offered by group member Roger Whetmore) wherein each one of them would roll a die, and whoever landed on a certain unlucky number would be sacrificed. Before his turn, Whetmore backed out of the contract and requested someone else roll the die for him. Lo and behold, he was the one to roll the unlucky number and be sacrificed. When the remaining explorers were eventually rescued, they were tried for the murder of Whetmore. In reviewing their case, one of the deciding factors lay in the murder statute of their society. The statute in reference stated: “Whoever shall willfully take the life of another shall be punished by death”. If this statute were to be taken literally, the explorers did willfully take the life of Whetmore and were thus murderers who were legally required to be hanged. However, the defendants were also delirious, they were in a state of nature, and Whetmore had consented to his death when he signed the contract. All of these factors were ultimately disregarded in this case, and the court sentenced the surviving explorers to death because, as one justice put it, “the written law requires the conviction of these defendants”. This is the danger of formalist methods in judicial interpretation. While this is certainly an extreme (and grotesque) example, the message behind it is sound: literal interpretation of the law is simply too close-minded to be an ethical method for determining cases, especially in criminal cases where a person’s life lies in the balance.

One theory of judicial interpretation that stands in contrast to formalist schools of thought is expectational originalism. Unlike its similarly-named antithesis originalism, expectational originalism argues that the law should be applied as it was originally intended to be applied. The reasoning behind this theory is that it allows room for flexibility in cases like the aforementioned. After all, according to Scalia, “The primary object of all rules for interpreting statutes is to ascertain the legislative intent”. While this theory may seem foolproof at first glance (it solves a lot of the problems in formalist theories, after all), its vague catch-all nature poses potential for other sorts of problems, namely corruption. Behind the smokescreen of pursuing supposed legislative intent (that may or may not have been purported in the first place), common-law judges can manipulate statutes to their own personal liking. Besides, a society that governs by implied intent is tyrannical. As Scalia best put it, “Men may intend what they will; but it is only the laws that they enact which bind us”.

The universal flaw with each of the preceding theories is that they all offer the potential for inconsistent interpretation and application. Two important requirements of American procedural law are the right for a defendant to hear the grounds for a given decision in court and the right to an argument. The good thing about these requirements is that they provide order to both the legal system and the government as a whole. Because of this, courts can settle disputes about different ways the law can be interpreted to give the general public a guideline for just living. The bad thing about these procedural requirements is that they lead to low predictability and inconsistency, a direct violation of Fuller’s eight criteria for the rule of law. The problem therein is that depending on the theory of interpretation being applied in a case, a defendant could argue both “I didn’t do it” and “I did do it, but the thing I did is not necessarily against the law being applied to me”. Additionally, this right to argument granted in procedural law means that depending on the quality of a defendant’s lawyer, a good argument could set a guilty person free (e.g., O.J. Simpson) and a weak argument could send an innocent person to jail (e.g., Kirk Bloodsworth). This is especially true in criminal courts, where the verdict is determined by a jury. In the end, defendants can only make the best arguments they can afford. In a society where lawyers work for profit, it is difficult to regulate fairness in courts between the rich and the poor, because better lawyers can charge more, dealing the poor and innocent a very bad hand. The one shining light in all of this corrupt darkness is that predictability can change as the values of the people change. This is where living constitutionalism comes in.

Living constitutionalism is the judicial interpretation theory that the body of law grows and changes over the years to adapt to the needs of the evolving modern society. This stands in contrast to most originalist thought, where law is ideally based on the written law in the original Constitution, rather than modern needs. The foundation of living constitutionalism lies in the way the judicial branch is structured in America. As previously mentioned, once a bill is written into a law, its application in day-to-life is exhibited through its use in court. That is, exceptions to a given law can be established, or it can be written out entirely, depending on the ruling of a high-enough justice (typically, this means Supreme Court level). Once these decisions are made, they can establish precedent, where a future court case can reference the ruling as law, and use it as a baseline for future decisions and legislation. Through precedent, “a whole system of law is built up without the authority or interference of the legislator”. This process, known as common-law, makes up a large portion of written law in America. The mere existence of common law is support for living constitutionalist theory. Common law corrects errors in existing laws and adapts the written law for its application in modern society.

One primary reason for living constitutionalist theory is that the meaning behind written law (or the language within it) can evolve over time depending on the climate of a given culture. This could mean that a law written hundreds of years ago could be wrongfully interpreted to have a meaning it doesn’t carry, simply because certain words in it may have either changed meaning over time or disappeared entirely. In this case, how are these laws to be interpreted? When conducting their day-to-day lives, ordinary people think of how the legal system functions in the world, not necessarily how it is written. So much of law is hundreds of pages long and drenched in legalese that it would be incredibly unreasonable to expect the average Joe to be able to read and understand all of it. The judicial branch, however, knows the written law word for word and, because of varying interpretations, may apply it in a variety of ways. This creates not only a conflict of interpretation between the general public and the judicial branch but an immense risk of accidental violation of the law. With living constitutionalism, this confusion does not exist. Since living constitutionalism demands an interpretation of the law through a modern lens, the meaning behind these laws is unambiguous and crystal clear. This clarity also makes it much more difficult for corrupt judges and lawyers to abuse the written law. With this mindset in place, the law can be applied as it was meant to be applied: fairly and justly.

In addition to accounting for language changes, living constitutionalism accounts for changes in public opinion over time. After all, what may have been considered ethical or fair fifty years ago may not be ethical in the present time (for example, segregation). Living constitutionalism factors in the inevitable fact that societies and opinions change over time (often for the better). At present, an act of Parliament cannot alter because of time; but the common law may, since cessante ratione cessat lex (when the reason for the law ceases, the law itself ceases). With living constitutionalist thought, judges are less constricted to dated ideologies of years past and have the freedom to create great change in the judicial system. Some of the most radical civil liberties were achieved through common law. Brown v. Board of Education eliminated segregation. Roe v. Wade legalized abortion up to viability. Obergefell vs. Hodges legalized gay marriage in all fifty states. The list goes on and on. Without common-law and living constitutionalist thought, these changes may never have been made.

Originalists argue that the Constitution should be treated essentially as the Word of God and remain untouched, but even the Constitution has amendments. Some of these amendments were repealed over time, as sentiments changed. A version of the Eighth Amendment (revised in 1958), which addresses cruel and unusual punishment, even uses living constitutionalist reasoning in its construction, stating that the meaning behind what is “cruel and unusual” may change to reflect “the evolving standards of decency that mark the progress of a maturing society.” This sentiment – this acceptance of and even support for an evolving society – underscores the purpose of living constitutionalism perfectly. Society is bound to mature and adapt over time, so the best thing we can do is steer into the skid, rather than fight it and risk tumbling over.

Of course, living constitutionalism would not be a popular theory without at least some opposition. One of the most common arguments against living constitutionalism is that overall there is often very little agreement on what the guiding principle for evolution should be, meaning that there will often be too many varying opinions on which changes should occur to please everyone with this philosophy. To use this viewpoint as an argument against living constitutionalism, however, is bluntly, pointless and simple-minded. There will always be people who disagree on certain issues. This is why we have a two-party system in America. People choose sides on issues and vote for the person who most advocates for the changes they want to see. America has always ruled by majority opinion and will most likely continue to do so for a while. There is no use pleasing the few when the many are screaming for changes to be made.

Another argument against living constitutionalism is that the voice of the majority (the general public) is one that cannot be trusted. The reason why the Electoral College was established was to protect America from an uninformed majority, after all. Justice Antonin Scalia, a proud originalist vehemently against living constitutionalism, argued that “this [living constitutionalism]… is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority”. The very existence of the Electoral College, and its trump ruling over the popular vote, is inherently a violation of the ‘majority rules’ sentiment of the American government. There have been five instances in history where the Electoral College elected presidents who did not win the majority support from the public: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000), and Donald Trump (2016). This pattern does not show an error of a misinformed general public, but an abuse of power by those in the Electoral College, voting against the wishes of the majority for their own personal reasons.

If it weren’t for living constitutionalist theory, some of the greatest strides in progressive American history may never have been made. Seeing society through an originalist lens only stuns the growth of a nation and denies the inevitable evolution that occurs within it as mindsets change. Having different ways of interpreting the law should, in theory, be a good thing, allowing justices to voice different opinions and evidence when making decisions. However, too often this leads to corruption, confusion, inconsistent application of the law, and abuse of power. With a living constitution, America could foster the forward-thinking mindset so many citizens are begging for. Living constitutionalism is the one judicial interpretation theory that not only anticipates change, but embraces it, and with that mindset, it may be the one theory that allows America to truly become as great as it could be.

The presidency was suggested in Philadelphia at a Constitutional Convention by Virginia’s Edmund Randolph, as a major aspect of James Madison’s proposition for the federal government, which wound up recognized as the Virginia Plan. Madison offered a fairly crude plan of the official branch, letting open if what he named the national official would be an individual or a lot of individuals. He recommended that Congress select the official, whose powers also, expert, and even length of term of administration, were left to a great extent unclear. He additionally proposed a committee of amendment comprising of the national official and individuals from the national legal executive, which would survey laws gone by the governing body and have the intensity of veto (OpenStax Section 12.1).

Early consultations delivered assention that the official would be a solitary individual, chose for a solitary term of seven years by the lawmaking body, enabled to veto enactment, and subject to indictment and evacuation by the council. New Jersey’s William Paterson offered a substitute model as a feature of his proposition, ordinarily alluded to as the little state or New Jersey Plan. This arrangement called for simply revising the Articles of Confederation to take into account an official branch made up of a board of trustees chosen by a unicameral Congress for a solitary term. Under this proposition, the official council would be especially frail since it could be expelled from power anytime if a larger part of state governors so wanted. Unmistakably progressively outrageous was Alexander Hamilton’s recommendation that the official power be depended to a solitary person. This individual would be picked by balloters, would serve forever, and would practice expansive forces, including the capacity to veto enactment, the ability to arrange bargains and concede acquits in all cases aside from treachery, and the obligation to fill in as president of the military (OpenStax Section 12.1).

In 1803, the Supreme Court proclaimed for itself the power of judicial review, a capacity to which Hamilton had alluded however that isn’t explicitly referenced in the Constitution. Judicial review is the intensity of the courts, as a component of the arrangement of balanced governance, to see moves made by alternate parts of government and the states and decide if they are sacred. On the off chance that the courts observe an activity to be illegal, it winds up invalid and void. Judicial review was set up in the Supreme Court case Marbury v. Madison, when, for the first time, the Court proclaimed a demonstration of Congress to be illegal (OpenStax Section 13.1).

The first court in 1789 had six judges, yet Congress set the number at nine out of 1869, and it has stayed there from that point forward. There is one boss equity, who is the lead or most astounding positioning judge on the Court, and eight partner judges. Each of the nine serve lifetime terms, after effective assignment by the president and affirmation by the Senate.The present court is genuinely different as far as sex, religion Christians and Jews, ethnicity, and philosophy, just as length of residency. A few judges have served for three decades, though others were as of late selected by President Obama. Figure records the names of the eight judges serving on the Court as of November 2016, alongside their time of arrangement and the president who selected them (OpenStax Section 13.4).

Going before the insistence of the Constitution, the express governments’ capacity far beat that held by the national government. This course of power was the deferred outcome of a discerning choice and was reflected in the structure and game plan of the Articles of Confederation. The national government was restricted, lacking both a president to arrange family and outside game-plan and an arrangement of bureaucratic courts to settle question between the states. Constraining force at the national estimation gave the states a lot of authority over and opportunity from the central government (OpenStax Section 14.1).

Each state directing body picked its very own exceptional Congressional delegates, subject to review by the states, and each state was given the ace to gather charges from its occupants. Regardless, obliging national government control was not the pros’ single need. They additionally expected to shield any given state from beating the ace and self-guideline of the others. The experts at last tried to make an estimation playing field between the individual imparts that encompassed the confederation. For example, the Articles of Confederation couldn’t be changed without the help of each state, and each state got one vote in Congress, paying little notice to masses (OpenStax Section 14.1).

Till the 1930s, most strategy advocates contended that the most ideal path for the legislature to communicate with the economy was through a hands-off methodology formally known as free enterprise financial aspects. These policymakers trusted the way to financial development and advancement was the administration’s enabling private markets to work proficiently. Advocates of this school of thought trusted private financial specialists were preferred prepared over governments to make sense of which areas of the economy were well on the way to develop and which new items were destined to be effective. They likewise would in general restrict government endeavors to set up quality controls or wellbeing and security models, trusting shoppers themselves would rebuff awful conduct by not exchanging with poor corporate subjects.the financial analyst John Maynard Keynes, Keynesian economics aspects contends that it is feasible for a retreat to end up so profound, and keep going for such a long time, that the average models of monetary fall and recuperation may not work. Keynes proposed that financial development was firmly attached to the capacity of people to devour merchandise. It didn’t make a difference how or where financial specialists needed to contribute their cash if nobody could bear to purchase the items they needed to make. Also, in times of very high joblessness, compensation for recently contracted work would be low to the point that new specialists would be not able bear the cost of the items they created (OpenStax Section 16.5).

The mind-boggling segment of mandatory spending is reserved for privilege programs ensured to the individuals who meet certain capabilities, normally dependent on age, pay, or handicap. These projects, examined above, incorporate Medicare and Medicaid, Social Security, and real salary security projects, for example, joblessness protection and SNAP. The expenses of projects attached to age are moderately simple to evaluate and develop to a great extent as a component of the maturing of the populace. Pay and inability installments are more hard to evaluate. They will in general go down amid times of monetary recuperation and rise when the economy starts to back off, in decisively the manner in which Keynes recommended. A nearly little bit of the required spending pie, around 10%, is given to benefits assigned for previous government workers, including military retirement and numerous Veterans Administration programs. Parts of the financial plan not gave to mandatory spending are arranged as discretionary spending since Congress must pass enactment to approve cash to be gone through every year. Around 50% of the roughly $1.2 trillion put aside for discretionary spending going through every year pays for the greater part of the activities of government, including representative pay rates and the support of bureaucratic structures. It likewise covers science and innovation spending, remote undertakings activities, training spending, governmentally given transportation expenses, and a large number of the redistributive advantages a great many people in the United States have come to underestimate (OpenStax 16.5).

Foreign policy features a portion of the key subjects in U.S. outside approach, for example, national objectives abroad and the way in which the United States endeavors to accomplish them. Note too that we recognize outside arrangement, which is remotely engaged, from local strategy, which sets methodologies inward to the United States, however the two kinds of approaches can turn out to be very entwined. In this way, for instance, one may discuss Latino governmental issues as a household issue while considering instructive approaches intended to build the quantity of Hispanic Americans who visit and graduate from a U.S. school or college (OpenStax Section 17.1).

In a financial boycott, the United States stops exchange with another nation except if or until it changes an approach to which the United States objects. Stopping exchange implies U.S. products can’t be sold in that nation and its merchandise can’t be sold in the United States. For instance, as of late the United States and different nations executed a financial blacklist of Iran as it heightened the advancement of its atomic vitality program. The ongoing Iran atomic arrangement is a settlement in which Iran consents to stop atomic improvement while the United States and six different nations lift monetary authorizations to again permit exchange with Iran. Obstructions to exchange likewise incorporate levies, or expenses charged for moving merchandise starting with one nation then onto the next. Protectionist exchange strategies raise duties so it ends up troublesome for imported products, presently progressively costly, to contend on cost with household merchandise. Organized commerce understandings try to diminish these exchange hindrances (OpenStax Section 17.1).

Introduction

The Constitution of the United States holds a special place in the hearts of Americans, representing the principles and values upon which our nation was built. In this narrative essay, I will share what the Constitution means to me on a personal level, recounting my experiences and reflections that have shaped my understanding and appreciation for this essential document.

Body

Discovering the Constitution

As a student, I was introduced to the Constitution through my civics classes. I learned about its history, the Founding Fathers’ vision, and the rights and freedoms it protects. It was fascinating to delve into the intricate details and understand the significance of each amendment.

Freedom and Equality

The Constitution embodies the ideals of freedom and equality. It guarantees our fundamental rights, such as freedom of speech, religion, and assembly. These rights empower individuals to express themselves, practice their beliefs, and participate in shaping our democracy. The Constitution’s commitment to equality under the law ensures that everyone, regardless of their background, has an equal opportunity to pursue happiness and contribute to society.

The Constitution and Social Justice

Studying the Constitution opened my eyes to its role in advancing social justice. The Fourteenth Amendment, in particular, stands as a beacon of hope, providing equal protection and due process for all citizens. I realized that the Constitution serves as a framework for progress, empowering individuals and communities to fight for their rights and challenge systemic inequalities.

Historical Significance

Understanding the historical context in which the Constitution was written deepened my appreciation for its significance. The Constitution emerged from a desire to establish a government that was accountable to the people and to prevent the abuse of power. It represents the culmination of the American Revolution and the tireless efforts of the Founding Fathers to create a more just and democratic society.

Personal Connections

While studying the Constitution, I discovered its relevance to my own life. I recognized the impact it had on the lives of individuals like me, shaping our rights and freedoms. I connected with the stories of individuals who fought for civil rights and justice, realizing that the Constitution was not just a historical document but a living testament to the ongoing struggle for a more inclusive society.

Responsibility and Civic Duty

Learning about the Constitution instilled in me a sense of responsibility and civic duty. It reminded me that the Constitution is not simply a guarantee of rights, but a call to action. It requires active participation, engagement, and vigilance to protect and uphold its principles. Understanding my role as a citizen, I felt compelled to be informed, to vote, and to advocate for justice and equality.

Conclusion

The Constitution is not merely a legal document; it is a reflection of our shared values and aspirations as a nation. Through my journey of exploring its history and understanding its principles, the Constitution has become a guiding force in my life. It symbolizes the promise of freedom, justice, and equality for all. It reminds me of the progress we have made and the work that still lies ahead. The Constitution empowers me to be an active participant in our democracy and to strive for a society that embodies its ideals. It is a reminder of the enduring power of our collective voice and the boundless potential of a nation founded on the principles of liberty and justice for all.

The United States won the war against Great Britain during the Revolutionary War to gain independence. After the war, the country was having trouble due to military weaknesses, financial difficulties, and lack of cooperation with the state and the national government. Furthermore, during the Shays’ Rebellion, the people were frightened about the situation and convinced the leaders in all 13 states to make changes in the Article of Confederation. In 1787, 12 states met up in Philadelphia to make changes of the weaknesses of Article of Confederation to make new and more powerful national government. Additionally, they made the Constitution of the United States which it limit the power of the national government and protect people rights. The Constitution create a strong government, limited power, and protect rights for the people.

The Constitution could create a strong government. According to Article Six it mention in article six has high law of the land and be conflicted, it stated: “This Constitution and all laws and treaties of the United States government created… contrary (that stand in conflict with it)” (Document 1). This explains how the laws and treaties of U.S government could create highest law of the land and made any state to conflict the laws. According to “The Powers of the Federal (National) Government” it mention each articles talks about the power of national government and three different articles explains different powers, it stated: “Legislative Branch (Congress) of the United States can…’ (Document 2). This explains three articles and the government could control three certain powers. The Constitution could make the national government, but could make the government has limit power. The Constitution led the government to have limit power. According to “Separation of Powers” it mention how congress, president, and Supreme Court could do with the laws, it stated: “the legislative branch passes laws… executive branch carries out laws… and judicial branch interprets laws…” (Document 3). This explains each different branches could do anything with the laws.

The United States won the war against Great Britain during the Revolutionary War to gain independence. After the war, the country was having trouble due to military weaknesses, financial difficulties, and lack of cooperation with the state and the national government. Furthermore, during the Shays’ Rebellion, the people were frightened about the situation and convinced the leaders in all 13 states to make changes in the Article of Confederation. In 1787, 12 states met up in Philadelphia to make changes of the weaknesses of Article of Confederation to make new and more powerful national government. Additionally, they made the Constitution of the United States which it limit the power of the national government and protect people rights. The Constitution create a strong government , limited power, and protect rights for the people.

The Constitution could create a strong government. According to Article Six it mention in article six has high law of the land and be conflicted, it stated: “This Constitution and all laws and treaties of the United States government created… contrary (that stand in conflict with it)” (Document 1). This explains how the laws and treaties of U.S government could create highest law of the land and made any state to conflict the laws. According to “The Powers of the Federal (National) Government” it mention each articles talks about the power of national government and three different articles explains different powers, it stated: “Legislative Branch (Congress) of the United States can…’ (Document 2). This explains three articles and the government could control three certain powers. The Constitution could make the national government, but could make the government has limit power.

The Constitution led the government to have limit power. According to “Separation of Powers” it mention how congress, president, and Supreme Court could do with the laws, it stated: “the legislative branch passes laws… executive branch carries out laws… and judicial branch interprets laws…” (Document 3). This explains each different branches could do anything with the laws. According to “Federalism” it mention how differences and comparisons of national government and state, it stated: “The national government… foreign policy, states could establish local government and maintain school, and they both raise taxes and provide public warfare” (Document 4). This explains how the national government have similar and different powers. The Constitution could give limit power, but, lastly, protecting rights.

The Constitution have the Bill of Rights which it could protect people rights. According to “The Bill of Rights” it mention list of amendments and how the first amendment is main important right, it states: “Freedom of religion, press, assembly, speech, and petition… or restricted” (document 5). This explains the first amendment and how it describes it’s one of the important right in the Bill of Rights. According to “requirements for federal offices” it mention how the Senator use original Constitution. In document 6, it stated: “Original Constitution: elected by state legislature… state’s voters” (Document 6). This explains how the senator could select the Original Constitution, the Bill of Rights, by state’s voters. Thus, it creates the meaning of the Constitution and the purpose of it.

In conclusion, the Constitution has strong national government, limited power, and protect people rights, which make America what it is to this day. Therefore, people in United States should know the purpose of the Constitution. The main purpose of the Constitution is that it contains Bill of Rights and it contains the 13th amendments, which every rights could protect citizens. But, people could lose those rights by the congress if cause of a criminal action. Furthermore, the government have limited power and those powers could affect America.

Nowadays, it is common for people to have the right to free speech with the progress of societies. People can speak out about what they want to express in public and contribute their thoughts to the community. Thus, the community can create a healthy environment by listening to these efficient suggestions. The definition of free speech is that people can use their right to express information or opinions that do not cause violence to society. In the article “Student sues school District for Banning Anti-War T-Shirt” which was written by Alana Keynes, mentioned that there was a student wearing a T-shirt calling President Bush an “International Terrorist” in Dearborn High School, and the high school punished him by banning this student from wearing an anti-war T-shirt and sending him to home. However, the American Civil Liberties Union sued this high school’s behavior since the ACLU thought that there was no evidence showing the students would cause terrorism by wearing an Anti-War T-shirt. In my opinion, I agree with the ACLU that Dearborn High School should admit this student’s right to wear an anti-war T-shirt because it doesn’t show the student will cause violence by wearing an anti-war T-shirt, other students may not feel unsafe if one student wears an anti-war T-shirt, and students have the right of free speech which is protected by the First Amendment.

The student who wears an anti-war T-shirt does not show any implication that he will cause violence at school. People have the right to wear what they want since each person has a different preference for their clothes, and there is no evidence showing that people who wear clothes with controversial words or pictures will cause terrorism. In Keynes’s essay, she thinks that an anti-war T-shirt will not cause any problems for teachers and other students at school. She claims “[t]here was no evidence the T-shirt caused any disruption at school” (Keynes 582). From this quote, she mentions that the student wearing the anti-war T-shirt does not mean he will cause some terrorism on campus, and his school should not ban him from wearing the anti-war T-shirt since the T-shirt is related to his political ideas and does not show any disruption to his school. In this essay, the student’s intention of wearing an anti-war T-shirt is that he wants to show his political idea about the war between the United States and Iraq, and he may think that it is unnecessary for Bush to start the war since it can make a lot of innocent people die or have psychological problems and kids lose their parents. Thus, the anti-war T-shirt may not promote terrorism. and the school should allow him to wear an anti-war T-shirt.

Students and teachers may not feel they are in a dangerous environment because they will not fight with each other at school when they have different attitudes toward the anti-war T-shirt. We do not know if this is always true, but it appears to be the case in Barber’s situation. At school, it is common for us to see students wearing T-shirts with controversial words or pictures since this is a useful way for them to express their political ideas or information. Also, students and teachers may not fight with each other if they have different thoughts about the anti-war T-shirt even though some of them can feel angry about it. Thus, they can understand the student’s intention to wear an anti-war T-shirt and may not feel they are threatened by the anti-war T-shirt on campus. In Keynes’s essay, she thinks that students will not fight with each other even though they might have opposite thoughts about the anti-war T-shirt at school. She states, “There have been no instances of students causing problems by fighting with each other or teachers over the message conveyed in the T-shirt” (Keynes 582). From this quote, she mentions there is no experience that students will fight with each other or teachers if they have different ideas about the anti-war T-shirt since students have the right to deliver their political speech. Schools are a place where students can have the right to deliver their political speeches because this is a necessary way for them to learn and to become successful in society. Students are willing to accept others’ political opinions even though some of them can feel angry about those speeches. However, they may not fight with each other because political speeches do not offend a person’s race, religion, or culture, but try to express those political ideas. It is possible that people would fight over political ideas, but political ideas also have high protection under the First Amendment. Thus, I think Dearborn High School should permit the student to wear an anti-war T-shirt since it will not make other students and teachers feel dangerous at school.

Students have the right of free speech which is protected by the First Amendment, so the school cannot prohibit students from wearing an anti-war T-shirt. The student who wears an anti-war T-shirt wants to express his political opinions about the war, and the student has the right of delivering a political speech in public. According to the chapter “Are Limits on Freedom of Speech Ever Justified” which was written by Annette Rottenberg and Donna Winchell, they mention the First Amendment that Congress protects people’s right to free speech since everyone should have the freedom to speak out what they want to express in public. They use the quote from the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free expression thereof, or abridging the freedom of speech, or of the press” (Rottenberg and Winchell 580). The authors agree with the First Amendment to the Constitution of the United States that people should have the freedom to express their ideas or information in public without restrictions, and the First Amendment protects the people’s right to free speech. Thus, the school does not have the right to prohibit the student from wearing an anti-war T-shirt because this student has his right to deliver a political speech which is protected by the First Amendment. The Dearborn High School violates the law of the First Amendment because it does not allow the student to express his political ideas in public, so this high school should agree with the ACLU’s attitude which allows this student to wear an anti-war T-shirt.

In spite of this case which the ACLU thinks that the school should not prohibit the student from wearing an anti-war T-shirt, there is another case that the 6th Circuit Court of Appeals decides that the school doesn’t have the right to prohibit two Kentucky students from wearing Confederate T-shirts. In Keynes’ essay, she mentions that school officials ban students from wearing Confederate T-shirts even though they do not have the right to do it. She claims “[t]he 6th Circuit Court of Appeals’ decision that school officials could not ban two Kentucky students from wearing T-shirts with a picture of the Confederate flag to school” (Keynes 582). From this quote, she mentions that the 6th Circuit Court of Appeals thinks the school officials cannot prohibit two Kentucky students from wearing confederate T-shirts since students have the right to free speech which is protected by the First Amendment. Students who wear Confederate T-shirts want to express their political opinions, so the school officials do not have the right to ban them since students have the right to show what they want in public. Thus, the decision of the 6th Circuit Court of Appeals protects students’ right to free speech which is protected by the First Amendment. Students can wear Confederate T-shirts on campus even though some other students and teachers can feel uncomfortable with the T-shirts. They may feel offended by some students’ political opinions because each person has their own ideas about one thing. However, students have their right to free speech they can wear Confederate T-shirts on campus, and the school officials violate the First Amendment that it should not ban students from wearing Confederate T-shirts since students’ right to free speech is protected by the First Amendment. Thus, the 6th Circuit Court of Appeals makes a good decision for the school that it does not have the right to prohibit students from wearing Confederate T-shirts, and the school officials should not ban students from wearing Confederate T-shirts since they don’t have the right to prohibit students from the right of free speech which is protected by the First Amendment.

From my perspective, I think the ACLU’s decision is correct that Dearborn High School should permit the student to wear the anti-war T-shirt on campus. Also, I believe that the 6th Circuit Court makes the good decision that the school officials cannot prohibit students from wearing Confederate T-shirts even though some students and teachers may feel angry about the T-shirts. The reason is that students have the right of expressing their political opinions on campus which is protected by the First Amendment. Nowadays, it becomes more and more popular for people to discuss the topics about the right to free speech. People have the right to express their ideas, and information about one thing to society because their suggestions often can help society become better. At school, Students should know how to protect and use the right of free speech, and they can become braver to express their political ideas on campus since they are members of this community and should contribute their ideas to it. Thus, a school can become a healthier and safer place for students to stay. Also, schools should encourage students to use their right to free speech by speaking out their opinions in public and educate them to use the right of free speech correctly by making them know what topics can be discussed.

Work Cited

1. Keynes, Alana. “Student Sues School District for Banning Anti-War T-shirt.” Elements of Argument, 8th ed. Ed Annette Rottenberg and Donna Winchell. New York: Bedford, 2006. 582-583.
2. Annette Rottenberg and Donna Winch. “Are Limits on Freedom of Speech Ever Justified.” Elements of Argument, 8th ed. Ed Annette Rottenberg and Donna Winchell. New York: Bedford, 2006. 580-581.

The comparisons that were established during the implementation of the Communications Decency Act are significant because it forms regulations based on conditions that were current and protected by the First Amendment. The First Amendment has multiple factors including the right to freedom of speech for all individuals in the U.S. These comparisons are important because they are all different forms of communication types of speech that would be protected under the First Amendment. Adequate assessments and comparisons will allow lawmakers to make fair and effective regulations. The differences between libraries, televisions, and public places are the various forms of how information and speech are communicated to audiences. The library has articles, books, journals, online databases, and other sources to provide information and free speech to users (First Amendment, 2019). Television has TV programs, different shows, broadcasts, and advertisements to get a message across. The public places are areas such as local parks, auditoriums, street corners, etc., where individuals can assemble to communicate a message. The main similarity is that all of these methods of information transfer are protected under the First Amendment for freedom of speech. However, the First Amendment does not protect against violence speech, hate, racism, supporting terrorism, employment, intellectual property or copyright infringement, and threats (Holland, 2012). The internet has both similarities and differences from libraries, televisions, and public places. The internet is similar to libraries in that both sources provide vast amounts of information to users. In addition, most libraries now provide online databases and digital book formats. However, I believe a significant difference is the copyright laws at libraries are more regulated as compared to the Internet (Rose, 1995). This has brought rise to Internet monitoring and laws from law enforcement that punishes individuals to break these crimes. The internet is similar to television because of the vast amounts of videos that are uploaded to share a message with users. The same forms of communication from television are also present on the Internet through online video sites such as Youtube. The internet differs because video content can be uploaded by any individual as compared to television which shows and programs are chosen by the television station. The Internet regulations for this have created laws that protect against copyright infringement and also enforce websites to take down any content that breaks the law. Copyright laws such as the Digital Millennium Copyright Act (DMCA) also extend to anything that is posted online (Baase & Henry, 2018). Public places are similar to the internet in that locations could be accessed through both methods. A difference is that the internet is much faster and capable of delivering information; an example is live streaming. This has created internet regulations for users and streaming sites to abide by the laws and regulations.

These microchips implanted in pets are primarily used to contact an owner in case a dog/cat is lost and found. My pet also has a microchip implanted and the doctor stated these chips contain my contact information and can be scanned to retrieve my information and to contact me. However, there are risks associated if the same technology is used in children. The privacy implications here are to the privacy principles and risks. Key aspects of privacy are to have freedom from intrusion, control of personal information, and freedom of surveillance (Baase & Henry, 2018). There are some benefits to having this in children in case a child is lost, however, the benefits do not outweigh the risks. This is because the present risks here are if the child is too young to understand the uses of personal information, the risks of the chip being hacked by unauthorized users, theft of information by someone else with a scanner, and inadvertent leakage of this personal information (Baase & Henry, 2018). In addition, I do not believe it is constitutional and right for a parent to make the decision to have a microchip implanted in a child because it should be a decision made by the child. In addition, the child will be too young to understand the context and make an informed decision. If Congress wanted to pass a law to require implants in children under 5 years, I would not support it due to the inherent risks of personal information. More importantly, a parent should be responsible and not misplace their child instead of trying to put additional control to be negligent. Rather than a microchip, there could be more effective alternative technologies such as a smartwatch. It would be non-invasive, and information could be protected similarly to the protection from iPhone, and possible to have SOS functions as well as GPS tracking in emergencies.

The free market view allows consumers to have the freedom to decide on agreements, maintain personal preferences and values, respond to changing markets based on consumer demands, use contracts, and assess regulatory solutions (Baase & Henry, 2018). The perspective for consumer protection view consists of the uses of personal information, protection from errors that arise in databases, leakages in personal information, and protection from consumers’ own deficient skills, knowledge, and judgment (Baase & Henry, 2018). These two viewpoints differ in disclosing personal information about their customers as the free market view allows customers to make decisions based on personal information, whereas the consumer protection viewpoint aims to protect consumers even when they lack knowledge. An example of the free market is the phone application that allows users to check yes, and the user gives the program permission to access and share personal data. Regarding issues in errors of data that are shared by the credit bureau, the consumer protection view is in place to protect consumers from this information. Only banks, loan agencies, and credit card companies can contact and report personal information to the credit bureau; for example, if a bill is past due and not yet paid. In addition, these companies also protect consumers from issues such as fraud and identity theft.

An opt-in policy requires a collector of information may use the information only if the person explicitly permits the user, typically through a checked agreement box; an opt-out policy is where an individual must explicitly request, through a checked agreement box, for an organization to not use personal information (Baase & Henry, 2018). For example, filling out a magazine survey, the end of the survey could have questions of two types asking if;

“Check box to share this information to our data,” would be an example of an opt-in policy because the checked box agreement allows the use of information. By contrast, the end of the survey could state, “Check box to keep this survey information private and not shared,” which would be an example of out-out because checking this box does not allow the magazine to use the survey data and it must be kept private.

A negative right or liberty right is the right to act without interference from any other individual or party; examples include the right to life, the right to property, to be free from assaults and theft, the right to utilize skills, knowledge, exchanges, trading, and labor (Baase & Henry, 2018). Positive rights or claim rights are rights that impose obligations on certain individuals to provide to others; examples include the right to jobs means that a company must hire an individual regardless of a job voluntarily chooses to do so, the government providing job programs for individuals not able to find work, the right to life means that people with jobs will need to pay taxes in order to provide food and shelter for those who cannot provide for themselves (Baase & Henry, 2018). The Digital Millennium Copyright Act (DMCA) has two main provisions which are (1) prohibits the production, sharing, the creation of tools such as software or hardware to break through technological copyright protection systems and (2) includes copyright materials from the Internet for users to post materials online (Castro, 2014). The penalty for violating the above laws is serious offenses that often result in felonies.

The Fair Use Doctrine consists of four factors for consideration with each factor varying in significance based on specific circumstances; the purpose and nature of use, the nature of the copyrighted material, the amount and significance of the specific materials used, and the overall effects on the potential market and value of using the copyright materials (Baase & Henry, 2018). In both the RIAA vs. Napster and MGM vs. Grokster, copyright cases are related as they were both file-sharing services. This also created an emergence for users to easily copy, download, and share software, music, movies, programs, and other copyrighted materials. The framework of the two programs was also similar in that it provided efficient searching methods for users to find files such as music, movies, or programs from other users. These two cases are different in that Grokster did not have a centralized server that support the searches whereas Napster did have a central indexing system and created search results across Napster’s network (Case study, 2019). Since both companies argued because their site was peer-to-peer and that there were no files stored on-site, the website or search engine was protected under the DMCA and Fair-Use Doctrine. Both cases were also similar in the outcome as the courts found both companies liable to sue for all copyright infringement materials.

Deontological theories of ethics are often based on a philosopher name Immanuel Kant. This theory focuses on the act of duty and absolute rules regardless of a good or bad outcome, a concept of universal rules that are applicable to all individuals, ethical behaviors are based on logic and reason, and always treat others fairly and truthfully not as a means but as an end (Baase & Henry, 2018). An example of Deontological theory is not to lie. This theory of ethics differs from the Utilitarian theories of ethics, primarily based on philosopher John Stuart Mill; includes factors that assess an individual’s utility to satisfy personal needs and values, consideration of positive and negative outcomes to all affected people to calculate the overall utility (Baase & Henry, 2018). An example of this theory is the Robin Hood story in which Robin Hood steals from the rich to give to the poor. This is justified under this theory because of the utility of giving to the poor which consists of many people more than the wealthy victim losing money. A weakness in Utilitarian theory also differs from Deontological theory in that Utilitarian does not account for individual rights where Deontological theory does.

References

1. (2019). Case Study: A&M Records, Inc. v. Napster, Inc. Retrieved on October 19, 2019, from https://onlinelaw.wustl.edu/blog/case-study-am-records-inc-v-napster-inc/
2. (2019). First Amendment and censorship. American Library Association. Retrieved on October 18, 2019, from http://www.ala.org/advocacy/intfreedom/censorship
3. Baase, S., & Henry, T. M. (2018). The Gift of Fire. Pearson Education Inc. 5 ed.
4. Castro, F. (2014). The digital millennium copyright act. Chicago-Kent Journal of Intellectual Property. Retrieved on October 18, 2019, from https://studentorgs.kentlaw.iit.edu/ckjip/wp-content/uploads/sites/4/2014/04/03_3JIntellProp32004.pdf
5. Holland, D. M. (2012). 7 things the First Amendment doesn’t protect. Retrieved on October 19, 2019, from https://www.business2community.com/social-media/7-things-the-first-amendment-doesnt-protect-0129234
6. Rose, L. (1995). The emperor’s clothes still fit just fine. Retrieved on October 20, 2019, from https://www.wired.com/1995/02/rose-if/

In this era, the youth are both encouraged and feel more inclined to participate in politics than ever before. The internet, as well as public areas such as colleges and universities, all provide a space for self-expression. However, the media and youth have also taken it upon themselves to deem what is politically correct, leading to mass self-censorship amongst those who wish to express differences in opinion. Self-censorship can be defined as “an act of intentionally and voluntarily withholding information from others in the absence of formal obstacles, serves as an obstacle to the proper functioning of a democratic society” (Bar-Tal). One could almost express it as walking on eggshells, careful not to offend, face maltreatment, or be silenced. The fear-driven censorship of oneself not only is damaging to one’s conscience and hinders the tolerance of understanding others, but also as well as strengthening those in high power.

One of the founding principles of liberal democracy is the freedom of speech and the right to self-expression. This liberty is specially protected by the First Amendment of the United States Constitution, as it states that Congress is prohibited from ratifying laws against freedom of speech (“What Does Free Speech Mean?”). Despite this, many are taking it upon themselves as to decide a subjective matter: whether or not certain means of self-expression should be censored or not. “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.” (Douglas) Evidence of such a phenomenon is shown in a survey conducted by the Foundation for Individual Rights in Education, stating that forty-two percent of students are aware that the First Amendment protects hate speech, yet another forty-eight percent of students believe the First Amendment should not protect hate speech, which leads to the assumption that the rest of percentage disagrees with the latter or are unacquainted with the topic (“NEW SURVEY: Majority of college students self-censor, support disinvitations, don’t know hate speech is protected by First Amendment”). Executive director for F.I.R.E. Robert Shirley states how the study “…further solidifies the importance of FIRE’s mission. Free expression is too important to become a partisan issue in higher education,” further addressing the growing issue (“NEW SURVEY: Majority of college students self-censor, support disinvitations, don’t know hate speech is protected by First Amendment”). The favoring of one group of students’ view to silencing the other goes against core First Amendment principles; however, it is not students alone that are affected.

It is imperative that students be exposed to a diverse array of viewpoints and are capable of discussing controversial issues politically and maturely. As the press for censorship continues to rise, students in mock debates and professors are unable to prepare for expressing controversial topics in the classroom. This censorship has gone as far as to condemn Philip Adamo, a professor at Augsburg University, for a class discussion of a racial slur as presented in a book (Weiss). According to the article, the university practices academic freedom, which “encompasses the right of professors to decide whether, when, or how to approach controversial or deeply offensive material that is germane to the subject of the course” (Weiss). In spite of being no threat to immediate harm and the university’s policies for teachers to conduct their class however they wish, Adamo was fired from his position as a professor teacher honors and suspended until action takes place (Weiss). What this circumstance shows is how freedom of expression proclaimed by the university is being destabilized by what may be considered a social taboo. In order to create a future generation that is emotionally mature and educated, such things from history and reality in the present times must be recognized and capable of being addressed.

Although some may deem the lack of discussing diverse topics to be beneficial or create a safe haven for students; it could potentially be the opposite. The lack of emotional maturity from those refusing to discuss or hear controversial, or even simply differing political views, has led to backlash to people in real life and in the online realm of social media. This is harmful both physically and to one’s psyche, as there is the innate pressure to strongly seek peer approval, maintain followers, and remain safe. According to an article in Political Psychology, motivation for self-censorship is a socio-psychological phenomenon and therefore intrinsic as “Individuals adopt self‐censorship to maintain their positive self‐view” so that the societal members are not perceived as “slanderers and/or informants” (Bar-Tal). This inevitably promotes anxiety and self-consciousness in those expressing their opinions and could render a person feel helpless and devastate them from the inside.

Numerous overlapping audiences in the online world make it difficult to stick to one political standpoint which appeals to every individual. With that being said, online users face discrepancies in forming their identities when interacting with others. According to the International Journal of Communication, research has shown that a user’s “…conceptions of their audience and perceptions of political discourse shape decisions on whether and how to engage in online dialogue” (Powers). The 2016 presidential election illustrates perfectly just how social media had affected the youth’s perception of politics, having captured their attention in staggering numbers.

Research suggested that “Partisans’ views of the opposing party were more negative than at any time in recent history, and growing numbers viewed their political adversaries as a threat” and that “Partisan antipathy and political polarization made for ‘an exceptionally complex atmosphere for social media users’” (Powers). In a survey conducted by F.I.R.E., it was shown that seventeen percent of liberal students are more likely to feel more comfortable sharing their political opinions than their conservative counterparts (“Student Attitudes Free Speech Survey”). It is probable that such backlash has led to the inclination towards the party with the greatest amount of supporters, and it is likely these young minds molded themselves to stick to one side without being very exposed to the other while catering to an imagined audience.

Applying to both online and real life, this pressured inclination towards a certain political agenda has thus allowed government officials and news outlets to easily promote subjective standpoints in a society that continuously permits it. The trend supports those already in power to remain in their place while easily being able to manipulate an audience, along with silencing smaller voices. Research provided by the Emory Law Journal states that a whopping “sixty-eight percent of adults now get their news from some social media platform” (Elijah). As these numbers continue to increase, this suggests that these platforms could use their power to eradicate speakers and ideologies from the public eye. It is now a question of law whether or not there should be additional policing of the internet to prevent social media behemoths from pushing political beliefs onto others.

A Reason article presents an interesting notion with the line “…they must see themselves as above such dangers since they inevitably assign themselves the power to determine what is fit and unfit for public consumption” (Tuccile). A case brought to light by the Foundation for Individual Rights in Education at the University of Kansas’ art exhibit shows evidence of this governmental need for censorship towards those wishing to express controversial political opinions, where government officials of the state demanded that a piece of flag-related art was removed (Bonilla). The flag was flown in an art exhibit being held at the university’s campus, but was a controversial piece and thus requested to be removed. However, this goes against the many privileges brought on by the First Amendment of the Constitution. A video provided by Reason TV perfectly elaborates the rules of Free Speech provided by this Amendment and how it applies to this scenario, explaining that “students at public colleges may not be disciplined for their speech” unless it falls into “true threats of criminal attack or face-to-face personal insults that are likely to start a fight” (ReasonTV). The artist in no way posed a true threat nor threatened any of the students with the piece of artwork. Thus the jurisdiction in this setting is unjustified, leading to more unnecessary self-censorship amongst the masses.

In conclusion, self-censorship is damaging in that it promotes fear of unwarranted punishment and a stronger yearning for peer approval. It is a socio-psychological phenomenon that impedes personal growth and emotional maturity in that it does not allow students to be exposed to diverse political opinions or controversial topics. The press rooting for censorship allows no room for smaller voices to be displayed to the masses and continuous cancellation of self-expression is being fortified. If this does not cease, power will continue to be exploited by government officials. In order to come together as a society, people must be able to freely communicate in accordance with the law and freedoms granted to be able to learn to go to a peaceful understanding with one another.

Works Cited

1. Bragg, Austin., Volokh, Eugene. “College and the First Amendment: Free Speech Rules (Episode 7).” YouTube, uploaded by ReasonTV, 4 November 2019, www.youtube.com/watch?v=Bg4QLk64dGo.
2. Bar-Tal, Daniel. “Self-Censorship as a Socio-Political-Psychological Phenomenon: Conception and Research.” Political Psychology, vol. 38, Feb. 2017, pp. 37–65. EBSCOhost, doi:10.1111.
3. Douglas, Frederick “Narrative of the life of Frederick Douglass, an American slave” Boston, Anti-Slavery Office, 1849. pp. 100-102.
4. Bonilla, Peter. “Kansas officials demand the University of Kansas remove American flag artwork.” FIRE, 11 Jul. 2018, www.thefire.org/kansas-officials-demand-university-ofkansasremoveamerican-flag-artwork/. Accessed 8 Dec 2019.
5. FIRE. “NEW SURVEY: Majority of college students self-censor, support disinvitations, don’t know hate speech is protected by First Amendment.” FIRE, 11 Oct. 2017, www.thefire.org/new-survey-majority-of-college-students-self-censor-supportdisinvitations-dont-know-hate-speech-is-protected-by-first-amendment/. Accessed 8 Dec 2019.
6. FIRE. “Student Attitudes Free Speech Survey.” FIRE, 8 Jun. 2017, www.thefire.org/research/ publications/student-surveys/student-attitudes-free-speech-survey/student-attitudes-free-speech-survey-full-text/. Accessed 8 Dec 2019.
7. O’Kelley, Elijah. “State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms.” Emory Law Journal, vol. 69, no. 1, Dec. 2019, pp. 111–161. EBSCOhost,search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=139915141&site=ehost-live&scope=site.
8. Powers, Ella, epowers@towson.ed., et al. “Shouting Matches and Echo Chambers: Perceived Identity Threats and Political Self-Censorship on Social Media.” International Journal of Communication (19328036), vol. 13, Jan. 2019, pp. 3630–3649. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=ofm&AN=139171908&site=ehostlive&scope=site.
9. Tuccille, J.D. “Internet Censorship Is Only for the Little People, French Edition.” Reason, 6 Jun. 2006, www.reason.com/2019/04/11/internet-censorship-in-france/. Accessed 8 Dec 2019.
10. Weiss, Ryne. “FIRE calls on Augsburg University to reinstate professor suspended for in-class discussion about racial slur.” FIRE, 11 Feb. 2019, www.thefire.org/fire-calls-onaugsburg-university-to-reinstate-professor-suspended-for-in-class-discussion-about-aracial-slur/. Accessed 8 Dec 2019.
11. United States Courts. “What Does Free Speech Mean?” United States Federal Courts Online, www.uscourts.gov/about-federal-courts/educational-resources/about-educational outreach/activity-resources/what-does. Accessed 8 Dec 2019.

Introduction

The first amendment to the U.S. Constitution- in its entirety- establishes that “Congress shall make no law respecting an establishment of religion, 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.” On its own, the first amendment does little to define free speech, or otherwise outline what an impairment of free speech may look like. Instead, it was through rigorous judicial review over the last century that there became any indication that “free speech“ did not, in fact, refer to the explicit right to say whatever one wants whenever one pleases. Supreme Court cases like Chaplinsky v. The State of New Hampshire established an unprotected category of speech referred to as “fighting words,” and subsequent cases continued to narrow the definition of such words.

With only precedent to determine the liberties citizens can take with speech, the otherwise open-ended right leaves room for the discrepancy in how Americans feel they can speak to and about one another. In a time where political and social conversations are plagued by concerns over free speech infringement, it is now more important than ever to create a directly outlined definition for the types of speech that are actually protected under the first amendment and to further explore the impact of protections of bias-motivated speech. If political leaders and other public influencers feel empowered to publicly engage in hate speech, it can be reasonably expected that their constituents and followers will as well. That level of social influence is dangerous to both productive conversation and participation in government. In order to protect and promote these ideals, there needs to be a further interpretation of the first amendment right to free speech in the form of judicial review, as its current obscurity lends itself greatly to social and political discord.

Background or Context

It should be clarified that an action can only be considered a true violation of free speech if it is one that has been sanctioned by the local, state, or federal government in the form of legal action taken in response to a citizen’s chosen mode of expression. While this distinction is what truly matters in a court of law, the scope of the issue this exposition seeks to address encompasses both this definition, as well as the general public’s impression of what the obstruction of free speech looks like. More specifically, this is in reference to the common misconception that the immunity to legal action for engaging in hate speech extends so far as to shield individuals from the societal repercussions that may arise from it as well. In a recent case brought to the Supreme Court by Houston politician David Buren Wilson, the question presented was if the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech. The court ultimately ruled that no, censure resolutions by an elected body are not an obstruction of that member’s freedom of speech. In deliberation, multiple justices objected particularly to one insinuation by the defense that elected officials could be subject to censure for spouting racial slurs on the floor, but not outside of that setting in any case whatsoever. In response, the court reasoned that a censure resolution was no more than an exercise of free speech on behalf of the elected body.

This case reveals a major source of the misunderstanding Americans have of their first amendment rights, as it demonstrates that even elected officials fail to grasp the difference between the infringement of their rights and the mere consequences of their actions. Americans might be able to reach a more mutual understanding of their speech protections if there were more in the way of clearly outlined limitations, but as it happens much of the trouble with free speech is apparent in how it has managed to confound the justice system for decades. Attempts to categorize different types of speech have produced mixed results in numerous cases, but perhaps one of the most effective steps towards elucidating the types of speech meant to be protected by the first amendment was created by the Fighting Words Doctrine.

Government Connection

As defined by the Supreme Court of the United States in the 1942 case Chaplinsky v. New Hampshire, “fighting words” are “those which by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” The court continued that “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ This is known as the Fighting Words Doctrine. Fighting words are considered unprotected under the first amendment, and since the initial doctrine, have been redefined by the court to provide more clarity on several occasions. Most notably in the 1989 ruling of Texas v. Johnson, the Supreme Court narrowed the definition to mean words that are “a direct personal insult or an invitation to exchange fisticuffs.” In this case, Gregory Lee Johnson burned an American flag as part of a political demonstration in Dallas, Texas in protest of policies instituted by the Reagan administration. Because the burning of the flag was determined to be a form of symbolic speech, and also not meant as a direct insult or personal invitation to violence, it was ruled that the act did not constitute fighting words- and was therefore protected under the first amendment.

Similarly- in the 1971 case of Cohen v. California, the Supreme Court ruled that California man Paul Cohen was unconstitutionally convicted and sentenced for wearing a jacket that read “FUCK THE DRAFT. STOP THE WAR.” It was determined that the act did not constitute fighting words, as it was not directed at any person or group in particular, and that “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” The court deemed that while potentially offensive, Cohen’s jacket was protected under the first amendment. Through the tedious deliberation over each of these cases, the Supreme Court established that the first amendment protects the right to engage in symbolic speech like burning the flag in protest, but that actions of that nature could constitute fighting words if they are deemed to tend towards an incitement of violence. Furthermore, this distinction was contingent upon the presumed presence of any individual that may reasonably take personal offense to the speech or action in question.

A more recent case promoting a significant (and contrary) revision to the Fighting Words Doctrine was R.A.V. v. City of St Paul in 1992. The case initially involved a group of teenagers who assembled a rough-hewn cross, which they then burned on the lawn of a black family. One of the teens was charged with a local bias-motivated crime ordinance, which the U.S. Supreme Court ultimately ruled to be overly broad and facially invalid under the first amendment. The ordinance was initially invoked in conjunction with the excesses of the Fighting Words Doctrine- which the Supreme Court gave some merit to, but held invalid regardless on the basis that it ‘prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.” Justice Antonin Scalia provided in the majority opinion that upholding the ordinance would involve the court in viewpoint-based discrimination, reasoning that “under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards.” With this ruling, the court further revised that even if words are found to constitute fighting words, the first amendment will still protect against restrictions rooted in viewpoint discrimination.

Analysis

As it stands right now, the Fighting Words Doctrine (in alignment with its successive revisions) holds that speech can be prosecuted on the grounds of fighting words if it tends to incite an immediate breach of the peace if it is a direct personal insult or invitation to fisticuffs, and if there is no motivation to punish based on disapproval of the ideas expressed. These stipulations for classification as fighting words create a strong basis for an argument that many forms of hate speech should be classified as such. The case of R.A.V. v St. Paul provided the Supreme Court with an opportunity to expand the fighting words doctrine to include some of these types of speech within a specific set of circumstances. The court’s ruling on the matter, however, instead rendered the doctrine nearly useless against cases of harmful bias-motivated speech, simply based on the premise that speech itself is entitled to be bias-motivated.

The Supreme Court stated that the St. Paul bias-motivated crime ordinance “prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses” and fails to consider that the identity of the addressed contributes a great deal to how likely they are to feel insulted and threatened by a targeted expression of aggression. In alignment with the rulings of Cohen v. California and Texas v. Johnson, this is exactly the type of consideration that should be measured when assessing the potential of speech to escalate a situation to violence. While the concern of ruling in alliance with either of the viewpoints expressed is a present and valid one, it needn’t be considered here- as precedent holds that this was not as the court stated, “otherwise permitted speech.” In Justice Scalia’s example of the two signs- one berating all Jewish people and one berating all anti-semites- he fails to account for the atrocities committed against the Jewish People by anti-semites. For that reason alone, a person of Jewish heritage should reasonably be expected to have a strong emotional reaction to a sign that says “All Jews are bastards.” Scalia’s argument- which operates on the insinuation that the devotion of anti-semites to being anti-Semitism is comparable to that of the Jewish People to the world’s oldest monotheistic religion- seeks to frame viewpoint discrimination as unavoidable in this discussion. His hypothetical- which essentially formed the backbone of the ruling- fails to accurately parallel the actual facts of the case the court was presented with. The teenager’s ideology itself was never in question, and the action of burning a cross is one that has long since been used as a known intimidation tactic against Jews and African Americans. While the practice itself has been defended in courts on the grounds of free speech, the decision to burn a cross on the property of a particular African American family demonstrates very clear intent for direct personal insult. Additionally, given the associations of the act with countless violent crimes against black people in the past, it should be very reasonably expected that to target a black family with this action would promote an immediate breach of the peace. The court in no way needed to disapprove of the ideas being expressed in order to determine that the act could constitute fighting words solely on the premise of it being a targeted and knowingly evocative statement against a particular family.

This analysis of the Supreme Court’s deliberations in classifying types of speech isn’t necessarily intended as a criticism of their rulings, but rather as a means of showcasing the volatility of the precedents they set. Additionally, it serves to find that there are grounds for further applications of the Fighting Words Doctrine potentially in the realm of hate speech in the modern era. If not for the court’s abruptly contrary retraction of the Fighting Words Doctrine, the case of R.A.V. v. St. Paul could have opened up numerous successive discussions about protecting Americans from harmful modes of hate speech. Among the many potential considerations for if speech poses a danger could be the social and political authority an individual holds. This is to say that if a highly regarded politician or celebrity with a known loyal following were to publicly wish ill will upon members of a certain race or religion- and then members of said following felt moved to commit a hate crime against people of that group- that individual could theoretically be held accountable by virtue of the Fighting Words Doctrine. For a person to project ill intentions towards another person or group- armed with the knowledge that much of the general public looks to them as an example and could be moved to action by their words- would be an irresponsible use of that person’s established position of social authority that demonstrates the clear potential to cause harm to the targeted party. This perspective disregards entirely the ideologies of the individual to insinuate only that the words of a person of known influence should be subject to more legal scrutiny, and that there is a basis for this scrutiny under the Fighting Words Doctrine.

Conclusion

The precedent set by the court in both the matters of Texas v. Johnson and Cohen v. California was that the likelihood of those present to be moved to violence by a given speech or action does, in fact, matter in considering if said speech constitutes fighting words. Ultimately the court ruled in favor of protecting the bias-motivated speech in the case of R.A.V. v. St. Paul, as the justices resigned themselves to avoid engaging in viewpoint discrimination. The deliberation leading up to that ruling, however, provided some useful insight into understanding how the Fighting Words Doctrine could theoretically be applied to combating some instances of hate speech while remaining clear of viewpoint discrimination. Leaning heavily on the stipulations that speech can constitute fighting words if it tends to incite an immediate breach of the peace and if it is a direct personal insult or invitation to fisticuffs, a person of known influence could potentially be held accountable for publicly engaging in hate speech on the basis that their words are more capable of moving a group to action. If the court could further interpret the limitations of free speech to encompass an instance of this nature, it would prove incredibly beneficial to combating the spread and promotion of hate speech, as well as the subsequent effects that arise from the dissemination of these hateful ideologies.

Shielding the American public from hate speech is important as it would promote more productive and inclusive conversation, which lends itself to an overall more equitable and just government. If Americans are made to feel safe and respected in socio-political environments, they are more likely to feel inclined to participate in the conversation and contribute via civic duties like voting. As evidenced by the numerous Supreme Court cases invoking the tenuous Fighting Words Doctrine, implementing limitations on the protections of hate speech proves incredibly problematic and tedious- but not entirely impossible. If the courts could manage even the smallest step towards implementing limitations of this nature, it would open up the possibility for many a necessary conversation in further defining the first amendment right to free speech, and would ultimately promote a broader general peace among Americans.

Works Cited

1. Anastaplo, George. “Cohen v. California (1971); Texas v. Johnson (1989).” In Reflections on Freedom of Speech and the First Amendment, 133–39. University Press of Kentucky, 2007. http:www.jstor.orgstablej.ctt2jcjxf.22 This source summarizes the events that led to two major supreme court cases for the interpretation of free speech in America, and discusses their final rulings in detail.
2. “Chaplinsky v. State of New Hampshire.” Legal Information Institute, Cornell University, https:www.law.cornell.edusupremecourttext315568.
3. “Fighting Words.” Legal Information Institute, Cornell University, https:www.law.cornell.eduwexfighting_words.
4. Goldberg, Erica. “FREE SPEECH CONSEQUENTIALISM.” Columbia Law Review 116, no. 3 (2016): 687–756. http:www.jstor.orgstable43783393. This source helped me understand some of the different ways that the courts use free speech consequentialism to determine cases involving first amendment protections.
5. Juhan, S. Cagle. “FREE SPEECH, HATE SPEECH, AND THE HOSTILE SPEECH ENVIRONMENT.” Virginia Law Review 98, no. 7 (2012): 1577–1619. http:www.jstor.orgstable23333530.
6. Leader, Sheldon L. “Free Speech and the Advocacy of Illegal Action in Law and Political Theory.” Columbia Law Review 82, no. 3 (1982): 412–43. https:doi.org10.23071122070.
7. LII Staff. “First Amendment.” Legal Information Institute, Cornell University, 2 June 2021, https:www.law.cornell.eduwexFirst_Amendment.
8. Liptak, Adam. “Supreme Court Hears Free Speech Case on Politician’s Censure.” New York Times, 2 Nov. 2021, https:www.nytimes.com20211102uspoliticssupreme-court-free-speech-censure.html
9. Mannheimer, Michael J. “The Fighting Words Doctrine.” Columbia Law Review 93, no. 6 (1993): 1527–71. https:doi.org10.23071123082.
10. Scalia. “R. A. V. V. City of St. Paul, 505 U.S. 377 (1992).” Legal Information Institute, Cornell University, 22 June 1992, https:www.law.cornell.edusupcthtml90-7675.ZO.html.
11. Sebastian, Raymond F. “Obscenity and the Supreme Court: Nine Years of Confusion.” Stanford Law Review 19, no. 1 (1966): 167–89. https:doi.org10.23071227052.
12. This source provided me with insight into how the Supreme Court has handled other attempts to classify other types of unprotected speech like Obscenity.
13. Seidman, Louis Michael. “CAN FREE SPEECH BE PROGRESSIVE?” Columbia Law Review 118, no. 7 (2018): 2219–50. https:www.jstor.orgstable26524959. In this essay, author Louis Michael Seidman attempts to outline the ways in which the American notion of free speech is not conducive to actual progressive ideas.