Constitutional Interpretation

David Salyer

English 1B

Keener

June 25^th 2014

Constitutional Interpretation:

How Interpretation of America's Founding Documents Create Discord

The United States of America is considered a land of many things; the land of opportunity, the land of equality, the land of diversity- a melting pot, or even “the land of the free and the home of the brave” (Key). The founding of this country, (and many believe our very rights as citizens), were initially given by the Constitution of the United States of America over two hundred years ago. It is true that this document is very old, and some would argue a little outdated. Thankfully, the founding fathers had the forethought to add one simple article to their constitution; Article V. “The Congress […] shall propose Amendments to this Constitution, or, […] shall call a convention for proposing Amendments-” This simple passage means that the constitution is constantly changing to adapt to modern times. The Constitution, in conjunction with the Bill of Rights, (these first ten amendments,) is not only the source of our foundation, but also outlines distinct freedoms and liberties individuals must have, along with strict rules that the population is to adhere to. The real trouble with a document this old, much like the spawn of several types of religion off of the single book of the Bible, is that there will always be different interpretations to what the Founding Fathers possibly intended when writing this so long ago. The trouble is not only applying these 'ancient' concepts to modern day situations like the Internet or pornography, but interpreting the old concept in a modern light.

One may ask however, if amendments are constantly changing the constitution with the times, how can there possibly be any debate or confusion as to what the constitution is trying to state? The first, and possibly most infamous amendment to the constitution, simply because it often sparks some of the most heated debate, is Amendment II. Most Americans simply knows this as “the right to bear arms,” but can it really be as simple as that? What the second amendment actually says is, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Founding Fathers 93)

First, a little history; in the time period this document was formed, it was the duty of every citizen in each state, to be a soldier for that state. It was believed to be necessary, not only for the security of the state from outside invaders, but also from the power of the federal government. Federal government is the “supreme Law of the Land” (Founding Fathers 90), and it was feared that they may possess too much power over the states. Indeed, this was one of the contributing factors that led to the American Civil War; measures by the federal government to end slavery, and in essence, change the entire economy of the Southern states.

The Founding Fathers did not just fear invasion by the federal government however; tight regulation diminishing their power was also a fear. The portion of the second amendment that protected against that was “the right of the people to keep … Arms, shall not be infringed.” (emphasis added) This is an issue that arises time and time again whenever new gun regulation is proposed, and it’s this fear that the government will come knocking on your door and take your gun away from you, that keeps reform at a standstill. This is no small populace either; citizens on one side fear 'mad gunmen,' but still other citizens on the other side fear the idea of the government intervention that would go into place if regulation was enacted. Perhaps for some it is not so much on this issue alone, but what it may lead to in terms of government interference in other aspects of our daily lives. Rest assured however, even if tighter regulation was enacted, the president himself has assured the public that you can keep your existing registered guns with no added complications. (Obama 2013)

The truly interesting part is not the ending however, but the beginning. “A well regulated Militia, being necessary to the security of a free State…” The one part most proponents of the second amendment conveniently leave off. One may wonder if this is naivety as to what the constitution states, or simply intentionally overlooking the details as to keep their 'arms'.

Another hot-button issue seems to be that of personal privacy. Although it is commonly assumed that the constitution protects our right to privacy, the word 'privacy' is never actually mentioned in the constitution, or any of the following amendments. The word 'private' is mentioned once in Amendment V, but only in regards to monetary compensation for private property seized by the government. (Founding Fathers 94) Amendment III and Amendment IV briefly allude to the concept of privacy however, even if it may not be mentioned specifically. The Amendments are as follows:

Amendment III: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Amendment IV: “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.” (Founding Fathers 94)

Amendment III gives us protection against a soldier staying unwelcome in our place of residence. This undeniably grants us at least a right to our privacy in this very specific regard. Amendment IV protects us from unwarranted search and seizure. In other words, the police cannot (on a whim) search your property, or seize any of your belongings without a warrant; (a legal piece of paper). If they achieve a warrant through the police department however, they can then look around your property and take your things, (but only the specific things listed on the warrant). This typically only happens if you are the suspect of a crime however; the common citizen should not have anything to fear. Certain exceptions that people should be aware of do exist to these laws however, including but not limited to, one's car. This, being out in the open, may be searched without a warrant.

Many people are concerned, and quite frankly, often a little freaked out about their technology “stalking” them. This, of course, reference to GPS enabled devices, or devices using the camera to take secret photographs. They claim that their right to privacy is being violated, but that is when we bring into question what their right to privacy entails. It appears to be in clear violation of the fourth amendment right against unreasonable search. One may claim that once your information goes to the cloud, (off-site remotely connected massive servers storing your information,) it comes into a new jurisdiction of data management. This may cover the data stored on sites like Foursquare or Facebook, but what about the GPS and phone data monitored by the government and other third-parties? This is still a very legitimate concern from a lot of people, and requires serious consideration if this is a clear and blatant violation against our rights.

We of course have things like the Patriot Act, which revokes some of our freedoms and privacy in return for the comfort of feeling safer against the threat of terrorist attacks, (Patriot Act 2001) and on the other side, we have the recent 2013 leak of the National Security Agency monitoring our phone calls and Internet activity.

No government is without it is flaws, and with such a vastly detailed document at the heart of our foundation, we could not have asked for better circumstances. It may be true that it is old, but in the array of other countries, two hundred some-odd years is a fairly recent formation. We are constantly adding these amendments, and revising laws. Nothing is permanent or irreversible, as evidence by the 18th and 21st amendments, that both made alcohol illegal, an then reversed that ruling less than 15 years later. (Founding Fathers 99-102) If something is imperfect, we will make another law. That is the beauty about this system: it is constantly improving. We have been adding amendments since 1791, and have added them as recently as 1992. The problem comes when the interpretation of this legal jargon to the common man becomes misconstrued. That is not to say that there are not legitimatize concerns however, as exampled by the NSA surveillance. In some cases it appears that the interpretation of the constitutional laws are as important as the laws themselves. We must ask however, if the constitution is not only protecting our rights, but upholding them. It is only once it starts violating them, that the system is beyond repair, and we need to start from scratch.

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” (Jefferson 262)

Annotated Bibliography

The Founding Fathers "The Constitution of the United States of America" A World of Ideas: Essential Readings for College Writers. Ed. Lee A. Jacobus. 9th ed. Boston: Bedford/St. Martin's, 2013. 75-107. Print.

The founding paperwork for the new nation that became known as The United States of America. Within are lists of new protected freedoms, previously unknown to the formerly British settlers, along with rules and laws in order to maintain a peaceful lifestyle.

Seeing as how this is the original source that has spawned much interpretation, this source will be used as a control, with all the original laws, in their original wording contained within.

Key, Francis S. Defence of Fort M'Henry. 1814. Print

A poem written after the United States' involvement in The War of 1812, about their victory. The poem was later set to music and adopted as the National Anthem of the United States of America. Known to almost every citizen of the United States, and beyond, this iconic poem has lasted for centuries as undoubtedly one of the most patriotic songs in the history of our nation.

The final line in this piece demonstrates not only the sentiment after the war, but what many people believe to be among some of the United States' chief concerns as a country.

President Obama Participates in a Fireside Hangout on Google+. Perf. Barack Obama. Youtube.com, 2013.

“President Obama answers questions during a virtual interview with Google+ and Americans from around the country to discuss his State of the Union Address. February 14, 2013.”

As one of the final statements on the portion of my article dealing with the second amendment, this statement from the current leader of our country is pivotal to convince the American people that there is nothing to fear if gun control is enacted, and cement my position.

USA Patriot Act. Pub. L. 107-56. 115 Stat. 272. 26 Oct. 2001. Print.

The US Patriot Act, or “The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001” is an act of congress that, simply put, exchanges our privacy for our security. We're able to be monitored, but this monitoring of ordinary citizens, supposedly suspicious ones, will, in theory, catch a threat before it happens.

This act, in conjunction with MAINWAY, (the NSA surveillance), is essential to calling into question our right to privacy, and weather it's being upheld by the government, or weather the government is in direct violation of its own laws.

Thomas Jefferson "The Declaration of Independence" A World of Ideas: Essential Readings for College Writers. Ed. Lee A. Jacobus. 9th ed. Boston: Bedford/St. Martin's, 2013. 75-107. Print.

Jefferson speaks on behalf of the entire United States of Americas when he declares his independence against the tyranny of King George III in Great Britain.

This piece is essential as a closure to the essay. It parallels the government of Great Britain and that of America, calling the reader's thoughts into question about weather or not we're lining in the government that Jefferson is describing when he talks about Britain.