Amendments: Absolute Or Not?

The US Constitution is a mutable document that serves as the foundation of the US government and outlines its duties and responsibilities towards its citizens. It is meticulously designed by the Founding Fathers to be the rule of the land. The Constitution includes amendments, which are changes or additions to the Constitution. These amendments are not absolute and can be changed, nullified, or added to. Nearly every idea in the Bill of Rights, including the First Amendment and Second Amendment, comes with restrictions and limitations. For example, while the First Amendment guarantees the right to free speech, it does not protect all forms of speech, such as extortion, threats, defamation, or speech that may be harmful to children. Similarly, the Second Amendment, which safeguards the right to bear arms, does not grant an unrestricted right to keep and carry any weapon. The interpretation and enforcement of these amendments are subject to the Supreme Court's rulings and can be influenced by the elected officials' interpretations.

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The Second Amendment and the right to bear arms

The Second Amendment to the United States Constitution, ratified on December 15, 1791, protects the right to keep and bear arms. The original text of the Second Amendment is as follows: "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."

The Second Amendment has been a subject of debate and interpretation, with some arguing that it guarantees an individual's right to own a gun for self-defence, while others emphasise the role of militias in the context of the amendment. In District of Columbia v. Heller (2008), the Supreme Court affirmed the individual right to possess firearms for self-defence, while also acknowledging that the right is not unlimited and does not prevent certain prohibitions or restrictions.

The historical context of the Second Amendment is important to consider. Early Americans had various uses for arms, including suppressing insurrection and allegedly, slave revolts, although this specific intent is disputed. The notion of average citizens possessing weapons predates the Constitution, with the English Bill of Rights in 1689 allowing Protestant English citizens to "have arms for their defence [sic] suitable to their conditions and as allowed by law."

The inclusion of the Second Amendment in the Constitution was influenced by concerns over the shift of military authority from states to the federal government, with Anti-Federalists worried about potential government usurpation of individual rights. The Federalists, however, asserted that militias would remain functional and that citizens' rights to possess weapons were natural and inherent.

While the Second Amendment protects the right to bear arms, it is important to note that no right is absolute or unrestricted. The Second Amendment has limitations and restrictions, just like other amendments in the Bill of Rights. The interpretation and application of the Second Amendment continue to be a subject of discussion and legal debate in the United States.

The First Amendment and free speech

The First Amendment to the US Constitution guarantees freedom of speech, freedom of religion, freedom of the press, and the right to assemble and petition the government. It states that "Congress shall make no law...abridging the freedom of speech". However, the interpretation of what constitutes protected speech has been a challenge for the US Supreme Court.

The First Amendment protects both direct and symbolic speech. For instance, in West Virginia Board of Education v. Barnette, the Court upheld the right not to salute the flag. In Tinker v. Des Moines, students' right to wear black armbands to school to protest a war was protected. The use of offensive words and phrases to convey political messages has also been deemed permissible, as in Cohen v. California. Additionally, the First Amendment allows for commercial speech with some restrictions, as seen in Virginia Board of Pharmacy v. Virginia Consumer Council and Bates v. State Bar of Arizona. Symbolic speech, such as burning the flag in protest, is also protected, as ruled in Texas v. Johnson and United States v. Eichman.

However, there are limitations to freedom of speech. For example, inciting imminent lawless action, as in Brandenburg v. Ohio, and creating or distributing obscene materials, per Roth v. United States, are not protected by the First Amendment. Furthermore, while students have free speech rights, schools retain some authority to regulate student speech, as demonstrated in Hazelwood School District v. Kuhlmeier, where a school administration objected to articles printed by students in a school newspaper.

While some argue that constitutional rights are absolute and should remain unaltered, others disagree. The interpretation and application of the First Amendment's protection of free speech have evolved through court rulings, demonstrating that the Amendment is not absolute in practice.

The Supreme Court's role in interpreting the Constitution

The Supreme Court is the highest court in the United States, and it plays a crucial role in interpreting the Constitution. Article III of the Constitution establishes the federal judiciary, including the Supreme Court, and grants it the authority to interpret and apply the Constitution. The Court's power of judicial review allows it to review the constitutionality of governmental actions and determine whether a right is protected by the Constitution or if a Constitutional right has been violated. This power was established in the early days of the nation in the landmark case of Marbury v. Madison (1803), where the Court asserted its authority to interpret the Constitution and declared that the federal judiciary is supreme in interpreting the law of the Constitution.

The Supreme Court's role as the final arbiter of Constitutional meaning is further strengthened by the Fourteenth Amendment (1869), which expanded the application of the Bill of Rights to the states. Before this amendment, the Bill of Rights only applied to the federal government. Now, the Supreme Court can rule on cases where a Constitutional right has been violated by state governments as well. This expansion of the Court's jurisdiction has solidified its role in interpreting the Constitution and ensuring that the rights enshrined within it are protected at both the federal and state levels.

The Court's power of judicial review is not explicitly mentioned in the text of the Constitution but has been derived from the Court's interpretation of its role. This power allows the Court to declare a Legislative or Executive act unconstitutional if it violates the Constitution. The Supreme Court has original jurisdiction over certain cases, such as those involving multiple states or ambassadors, and appellate jurisdiction over a wide range of cases involving constitutional or federal law. When exercising its appellate jurisdiction, the Court has the discretion to decide whether to hear a case or not.

While the Supreme Court plays a significant role in interpreting the Constitution, it is important to note that other branches of the government, such as Congress and the President, also have a role in interpreting the Constitution independently of the judiciary in certain circumstances. This concept is known as popular constitutionalism, which posits that elected representatives and even ordinary citizens have a coordinate authority to interpret the Constitution. However, the Supreme Court's interpretations of the Constitution are generally regarded as the supreme law of the land, and it has the final say in determining the Constitutionality of laws and government actions.

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The mutable nature of the Constitution

The Constitution of the United States is a mutable document. It was designed to be changed and adapted over time, as demonstrated by the inclusion of the amendment process. The very existence of amendments shows that the Constitution is not absolute. For instance, the 18th and 21st Amendments, which respectively prohibited and then re-allowed alcohol, illustrate that an amendment can be undone by another amendment.

Nearly every idea in the Bill of Rights comes with restrictions and limitations. The First Amendment, for example, guarantees the right to free speech, but this does not include the right to make threats or spread defamation. Similarly, the Second Amendment right to bear arms does not include the right to keep and carry any weapon whatsoever.

The Supreme Court has ruled that no right is absolute, and it can decide what the Constitution means. This is exemplified by the interpretation of the First Amendment, which does not warrant full protection in specific areas like commercial speech, defamation, and speech that may be harmful to children.

The Constitution is subject to different interpretations, and it is the job of the courts to resolve matters concerning these interpretations and their limitations. The Constitution was meant to be changed, and it is our collective agreement that we benefit from it.

The limitations of Constitutional rights

The US Constitution's Bill of Rights outlines a number of rights that are afforded to US citizens. However, nearly every idea in the Bill of Rights comes with restrictions and limitations. The Ninth Amendment states that the listing of specific rights in the Constitution does not mean that people do not retain other rights that are not explicitly mentioned.

The First Amendment guarantees the right to free speech, assembly, and worship. However, this right is not without limitations, as demonstrated by cases of local governments or school boards preventing individuals from wearing religious clothing or facial hair, or denying zoning permits to religious institutions. The Second Amendment, which protects the right to keep and bear arms, has been a subject of debate, with some arguing that this right should not be restricted, while others point to the danger of allowing civilians to possess weapons capable of mass destruction.

The Fifth Amendment provides several protections for people accused of crimes, including the right against self-incrimination and the protection from double jeopardy. The Sixth Amendment further protects the accused by guaranteeing the right to a speedy and public trial, an impartial jury, and legal representation. The Seventh Amendment extends the right to a jury trial in Federal civil cases. The Eighth Amendment prohibits excessive bail and fines, as well as cruel and unusual punishment.

The Fourteenth Amendment addresses due process and equal protection under the law, ensuring that no state can deprive a person of life, liberty, or property without due process, nor deny them equal protection of the laws. This amendment has been interpreted to allow states to impose significant regulations on businesses without violating due process, as long as the penalty is not "so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable". The Fourteenth Amendment also allows for statutes of limitations, which impose a time limit on bringing legal cases, as long as they do not unreasonably limit the opportunity to enforce a right by suit.

While the Constitution guarantees certain inalienable rights, it is important to recognize that these rights exist within a broader legal and societal context and may be subject to limitations to ensure the protection of public safety, health, morals, and the collective good.

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