America’s Most Common Myths and Misconceptions about the Constitution

You wouldn’t think a few sheets of parchment with 4,400 words would be the source of so much controversy. But that’s what you get when you make that document your “supreme law” and build your nation around it. From court cases to Congressional hearings to political parties, it seems arguments about our Constitution are everywhere in the news. So, I can’t fault people for sometimes being a bit misinformed about the text, especially with cases like:

The Constitution was written by the same people as the Declaration of Independence

 

 

 

 

 

 

Actually, there were only five people who signed both documents: Benjamin Franklin, Roger Sherman, George Read, Robert Morris, and George Clymer.

Nope. George Washington didn’t sign the Declaration of Independence; he was too busy fighting the British. And no, Thomas Jefferson didn’t sign the Constitution; he actually opposed it. Apart from those five people, the Continental Congress that drew up the Declaration was a very different body from the Constitutional Convention.

The Continental Congress was a sort of 18th-century activist group that put itself in charge of the growing Revolution, whether anybody wanted it or not. It was made up of left-wing political radicals who were upset at King and Parliament. They elected a smuggler as their Chairman and some of its members had a history of inciting mob violence. They openly entertained radical ideas about “liberty” and “natural rights” that were unheard-of in generations prior.

The Constitutional Convention, in contrast, was filled with conservative establishment-types who felt the social experiments unleashed in the Revolution had gone too far. The outbreak of riots in Massachussets was their primary motivation for meeting – America needed some sort of “new normal”.

The tricky part is that both sets of people are called “the Founding Fathers”. In fact, that term, “Founding Fathers”, is so vague it could be referring to anything from a select group of key figures like Washington, Jefferson, and Franklin to that entire generation of Americans. To cut down on the confusion, some scholars specify “the Signers” for signers of the Declaration and “the Framers” for the people who wrote the Constitution.

The Constitution was intended to protect the states from an overpowering central government

Actually, the Constitution was intended to create a powerful central government that could keep the states in check. If you read the Federalist Papers – a collection of the major pro-Constitution arguments during the fight to ratify the document, it is all about how the states would tear each other apart if left to their own devices.

Between the end of the Revolutionary War and the adoption of the Constitution, the newborn U.S. was much more like the European Union. Each state was fully sovereign, with its own currency, military and legal system. They were bound together through a treaty – the Articles of Confederation – establishing a Congress that represented the states abroad and could pass laws for the alliance. But Congress’s laws needed the unanimous approval of the states and depended on the state governments for enforcement. Congress couldn’t issue any taxes, either; its funding came from the states.

Many in the Constitutional Convention thought this system was far too weak, and decided a strong central government was what America needed. They intentionally gave the new government broad powers like “regulating commerce between the several states” that could be interpreted to cover a wide range of situations, so the federal government had some legal teeth to keep states in check.

This was a decision opposed by many, including Thomas Jefferson. After the Constitution was ratified, “Anti-Federalists” rallied together to limit the powers of what they saw as this great leviathan that had been born. Thus was the beginning of the libertarian current in American politics: the argument that the federal government should be kept as weak as possible, and the Constitution interpreted as strictly and literally as possible. In a bizarre twist, over the centuries libertarians have done an about-face on the Constitution – no longer the monster they once saw it as, they now see it as their chief tool for advancing their agenda. “If it wasn’t in the Constitution, the Founding Fathers didn’t want it,” they say.

The First Amendment means we can say what we want without consequence

Actually, the government can, and does, restrict what we can and can’t say. And it is totally Constitutional, according to numerous Supreme Court cases.

The issue is what, exactly, “freedom of speech” means. It is obvious that our Founding Fathers (there I go again) didn’t share our idea of freedom of speech: they passed the Sedition Act of 1798, which criminalized criticism of the government and punished violators with a five-year jail sentence. The Act was eventually repealed, of course, but it is a good illustration.

It appears from the writings of people at the time that “freedom of speech” meant that you couldn’t be prevented from speaking. Being punished after you’ve already spoken was another matter.

Today, we can criticize the government all we want, unless it endangers our national security. We also can be punished for revealing government and military secrets, or for using “fighting words” to incite violence. And there are plenty of restrictions on advertising, pornography, juries during court cases, and so on.

And, of course, the First Amendment runs headlong into copyright issues. If you remix someone else’s song without their permission, and then try to sell said song, they can sue you for not paying them royalties. If, however, you appropriate some material for a nonprofit educational purpose, like this blog, that is considered “fair use“.

I just wanted to make that clear.

And while we’re on the subject of the courts:

The Constitution gives the Supreme Court the right to declare laws “unconstitutional”

Actually, the Supreme Court gave itself that right.

Thank Chief Justice John Marshall and the case Marbury v. Madison for our favorite phrase to describe laws (and other situations) we don’t like.

John Adams lost his attempt at re-election in 1800, but it would be a few more months before he left office. To make life difficult for the guy who defeated him (a certain Thomas Jefferson), Adams pushed through Congress a law that let him appoint a suite of new judges. Literally hours before the inauguration, Adams’s appointments were approved by the Senate and the certificates were sent out to the appointees on the double. Unfortunately, this was before we had cars, computers, or cell phones, so not all of the appointments made it in time. Thomas Jefferson took office and his Secretary of State, James Madison refused to deliver the last few appointments. Jefferson’s Congress then repealed the law that allowed these last-minute judicial appointments to take place.

William Marbury, one of the would-be judges whose commission wasn’t delivered, sued. Under the Judiciary Act of 1798, the case would have fallen under the Supreme Court’s original jurisdiction, meaning that the case was sent immediately to the Supreme Court instead of going through an appeals process.

Chief Justice Marshall heard the arguments of both sides. He then wrote the court’s decision. They ruled that, yes, Madison had to give Marbury his commission by law. But Marshall, who liked to set verbose precedents, went into a tirade about the Judiciary Act of 1798. According to Marshall, the Supreme Court’s jurisdiction was set in the Constitution, and acts of Congress could not add or detract from anything the Constitution said.

The Constitution did not say this case fell under the court’s original jurisdiction. Any act of Congress making it so was void, because it was, you guessed it, “unconstitutional”. The decision was controversial, to be sure, but Congress and the President went along with it, as they have ever since.

Information from my high school and college U.S. Government classes, Law 101: Everything you Need to Know About the American Legal System by Jay M. Feinman, and Wikipedia.

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