Eleanor Finch
The Constitution is routinely violated, and those who violate it are rarely held accountable. Public servants are immune to liability in their performance of public functions, and this immunity often turns into impunity. The First Amendment has been violated many times in the past two centuries by national leaders, particularly in times of crisis. The FCC's EEO rules were struck down as violating the 14th Amendment, depriving citizens of equal protection under the law, and yet the private sector continued to implement these rules. Presidents from both parties have refused to spend funds, but Richard Nixon abused this power, leading to the Impoundment Control Act of 1974. Trump has also been accused of violating the Constitution, with a federal judge calling his executive order to end birthright citizenship blatantly unconstitutional. While the State Action Doctrine requires government responsibility for a Constitutional violation, individuals can still take legal action against private entities for discrimination based on race, sex, gender, religion, disability, and/or sexual orientation.
| Characteristics | Values |
|---|---|
| First Amendment | Frequently violated, with no penalties for those responsible |
| Fourteenth Amendment | Violated by the FCC's EEO rules |
| State Action Doctrine | Violated by private companies in employment discrimination cases |
| Due Process | Violated by private companies in employment termination cases |
| Presidential Powers | Violated by President Richard Nixon and President Trump |
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What You'll Learn
Violation of the First Amendment
The First Amendment to the United States Constitution guarantees freedoms concerning religion, expression, assembly, and the right to petition. It is the first of ten amendments known as the Bill of Rights. The First Amendment forbids Congress from promoting one religion over others and restricting an individual's religious practices. It also guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. Additionally, it guarantees the right of citizens to assemble peaceably and petition their government.
Despite these guarantees, there have been several instances where the First Amendment has been violated. One notable case is that of Socialist Party of America official Charles Schenck, who was convicted under the Espionage Act for publishing leaflets urging resistance to the draft. Schenck appealed, arguing that the Espionage Act violated the Free Speech Clause of the First Amendment. However, the Supreme Court rejected his appeal, setting a precedent for the interpretation of the First Amendment.
Another example of a potential violation of the First Amendment is the case of McCutcheon v. Federal Election Commission (2014). The Court ruled that federal aggregate limits on how much an individual can donate to candidates, political parties, and political action committees violated the Free Speech Clause of the First Amendment. This case highlights the ongoing debate over the interpretation of the First Amendment and the role of the courts in defining its scope.
In addition to these cases, there have been instances where the First Amendment has been invoked in the context of flag desecration as a form of protest. In Street v. New York (1969), the Supreme Court relied on Stromberg v. California (1931) and found that a New York state law criminalizing "words" against the flag was unconstitutional. Similarly, in Texas v. Johnson (1989), the Supreme Court reversed the conviction of Gregory Lee Johnson, who was charged with violating a Texas law prohibiting the vandalization of venerated objects after burning an American flag during a demonstration. The Court affirmed that the government could not prohibit the expression of an idea simply because society finds it offensive or disagreeable.
The First Amendment has also been applied to state and local governments through the Fourteenth Amendment, guaranteeing the constitutional right to free speech and intellectual freedom. This extension has been significant in protecting criticism of the government, political dissatisfaction, and advocacy of unpopular ideas. However, it is important to note that certain categories of speech, such as obscenity, child pornography, defamatory speech, false advertising, true threats, and fighting words, are not protected by the First Amendment.
Constitutional Principles: Upholding the Founding Ideals
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Violation of due process
The Fifth Amendment of the US Constitution states that no one shall be "deprived of life, liberty or property without due process of law". The Fourteenth Amendment, ratified in 1868, uses the same wording, and this is known as the Due Process Clause. This clause applies to all states and all levels of the American government, and it ensures that the government must operate within the law and provide fair procedures.
Due process is required when the state acts against individuals "in each case upon individual grounds". This means that the due process clause does not govern how a state sets rules, but how those rules are applied to individuals. For example, the due process clause does not govern how a state sets the rules for student discipline in its high schools, but it does govern how the state applies those rules to individual students who are thought to have violated them.
In criminal trials, the Bill of Rights provides explicit answers to what constitutes due process. This includes the right to a hearing before an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials that would be relied on or to confront and cross-examine adverse witnesses, or a decision limited to the record thus made.
There have been several cases where the right to due process has been violated. For example, in Williams v. Pennsylvania, the Court found that the right of due process was violated when a judge on the Pennsylvania Supreme Court had, in his former role as a district attorney, given approval to seek the death penalty in the prisoner’s case. The Court held that there was an impermissible risk of actual bias when a judge had previously had a “significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case”.
In another case, Town of Castle Rock v. Gonzales, the Court considered whether police officers violated a constitutionally protected property interest by failing to enforce a restraining order obtained by an estranged wife against her husband, despite having probable cause to believe the order had been violated.
It is important to note that for an individual to be able to sue over a Constitutional law or right being violated, they must demonstrate that the government (local, state, or federal) was responsible for the violation, rather than a private actor.
The Police and the Constitution: What's the Connection?
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Police misconduct
The Department of Justice investigates and prosecutes allegations of constitutional violations by law enforcement officers. These violations most often involve the use of excessive force but also include sexual misconduct, theft, false arrest, and deliberate indifference to serious medical needs or a substantial risk of harm to a person in custody.
Excessive force refers to a situation where a police officer applies an unreasonable amount of force in the performance of official duties. This constitutes an unreasonable seizure under the Fourth Amendment. Whether a police officer's use of force was reasonable or unreasonable depends on the underlying circumstances. The only question is whether the use of force was reasonable or unreasonable, which will determine whether a police officer faces liability for their actions. Excessive force includes the excessive and unnecessary use of deadly force. Under federal law and California law, police officers are prohibited from using deadly force unless the person is an immediate threat of death or serious bodily injury to the officer or others. The use of unlawful deadly force violates an individual's right to be free from unreasonable searches and seizures protected by the Fourth Amendment.
False arrest or imprisonment is another common type of police misconduct that violates the Fourth Amendment. Unlawful detention occurs when police stop an individual without reasonable suspicion that a crime has occurred, and this can lead to false arrest if the individual is then taken into custody or the detention is excessively prolonged.
Section 1983 of the Civil Rights Act of 1871 gives citizens the right to file a lawsuit against a police officer if they violate their civil rights. This law makes it illegal for anyone acting under the authority of the government to deprive someone of their civil rights. It was originally passed to protect citizens from government officials as well as groups like the Ku Klux Klan.
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Employment discrimination
The United States Constitution does not directly address employment discrimination. However, the Fifth and Fourteenth Amendments limit the power of federal and state governments to discriminate. The Fifth Amendment explicitly states that the federal government cannot deprive individuals of "life, liberty, or property" without due process of law. This amendment also implicitly guarantees that the Fourteenth Amendment explicitly prohibits states from violating an individual's rights to due process and equal protection. These amendments protect federal government employees from discrimination.
The Age Discrimination in Employment Act (ADEA) protects individuals aged 40 or older from age-based employment discrimination. The Older Workers Benefit Protection Act amends the ADEA by establishing conditions for a waiver of its protections. Sections 501 and 505 of the Rehabilitation Act of 1973 protect employees and job applicants from discrimination based on disability. This law also requires federal agencies to make reasonable accommodations for known disabilities unless it causes undue hardship.
The Americans with Disabilities Act prohibits discrimination based on disability in all employment practices. It defines a person with a disability as someone with a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having a disability.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the job rights of individuals who leave their employment positions to undertake military service or certain types of service in the National Disaster Medical System. This Act prohibits employers from discriminating against employees for their past or present participation or membership in uniformed services.
State constitutions and laws also play a role in addressing employment discrimination. While some state constitutions expressly prohibit public and private employment discrimination, most only address discriminatory treatment by the government, including public employers. State statutes often extend protection to additional categories or employers beyond what is covered by federal laws.
Emoluments Clause: Constitutional Limits on Presidential Power
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Violation of the Fourteenth Amendment
The Fourteenth Amendment (Amendment XIV) to the United States Constitution, passed on June 13, 1866, and ratified on July 9, 1868, is considered one of the most consequential amendments. It addresses citizenship rights and equal protection under the law at all levels of government, guaranteeing equal civil and legal rights to Black citizens. The amendment has been frequently litigated, with the "equal protection of the laws" phrase being the most commonly used and litigated. This phrase has been central to several landmark cases, including:
Brown v. Board of Education (1954): This case prohibited racial segregation in public schools. The Court ruled that laws with a discriminatory purpose violate the Equal Protection Clause of the Fourteenth Amendment.
Loving v. Virginia (1967): This case ended interracial marriage bans, with the Court recognising that anti-miscegenation laws violated the Equal Protection Clause.
Roe v. Wade (1973): The Supreme Court recognised a substantive due process right to abortion under the Fourteenth Amendment. However, this holding was later overturned in Dobbs v. Jackson Women's Health Organization (2022).
Griswold v. Connecticut (1965): The Court struck down state bans on the use of contraception by married couples, finding that the laws violated the "right to privacy" inferred from the Fourteenth Amendment's penumbra of enumerated rights.
Bush v. Gore (2000): The Court ruled that no constitutionally valid recount of Florida's votes in the 2000 presidential election could be held within the deadline, effectively securing Bush's victory. This decision was based on the Equal Protection Clause of the Fourteenth Amendment.
League of United Latin American Citizens v. Perry (2006): The Court ruled that Tom DeLay's Texas redistricting plan intentionally diluted the votes of Latinos, violating the Equal Protection Clause of the Fourteenth Amendment.
The Fourteenth Amendment's Due Process Clause has also been a subject of debate and interpretation by the Supreme Court, with the Court recognising unenumerated rights that are not explicitly listed in the Constitution but are inferred from its penumbras or shadowy edges. This has led to controversial decisions, such as in Washington v. Glucksberg, where the Court rejected the right to physician-assisted suicide.
The Constitution's Promise: Equality for Immigrants
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Frequently asked questions
The State Action Doctrine is a legal doctrine that outlines the requirement for an individual or entity to be able to sue over a Constitutional law or right being violated. The doctrine states that the individual or entity must demonstrate that the violation was committed by the government (local, state, or federal) and not a private actor.
If your Constitutional rights have been violated by the police, you may have grounds to bring a civil suit. Police officers are considered "state actors" as they work for the government, and you are entitled to "due process" and the chance to present evidence in your defense.
There have been several instances of the Constitution being violated, including violations of the First Amendment and the Fourteenth Amendment. For example, the Trump administration was accused of violating the Constitution with an executive order purporting to end birthright citizenship, which a federal judge blocked as "blatantly unconstitutional".
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