Eleanor Finch
The framers of the American Constitution were visionaries who sought to establish foundational principles that would sustain and guide the new nation into an uncertain future. They defined fundamental freedoms in general terms, such as freedom of speech, due process of law, and equal protection of the laws. The framers understood that majority rule was the best system of government, but also recognised its imperfections, including the potential for political majorities to enact laws that consolidate their power and the risk of prejudice and intolerance towards minorities. They intended for the courts to play a central role in addressing these concerns and ensuring the protection of individual rights. The process of interpreting the Constitution should be guided by the framers' values, concerns, and purposes, recognising their understanding of the document as a set of general principles rather than specific rules.
| Characteristics | Values |
|---|---|
| Visionary | Addressing challenges facing the nation during their lifetimes |
| Establishing foundational principles to sustain and guide the new nation | |
| Defining fundamental freedoms: freedom of speech, due process of law, free exercise of religion, equal protection of the laws, and protection from cruel and unusual punishment | |
| Setting forth governmental powers: regulating commerce, executing laws, and authorizing courts to decide cases and controversies | |
| Concerned with representation | Proposing a system of representation in the national legislature based on state population or revenue contribution |
| Compromising on the election of the president by a group of "electors" chosen by state legislatures or the people of their states | |
| Believed in the importance of an independent judiciary | Recognized the role of courts in addressing concerns of political majorities enacting laws that entrench their authority or sacrifice fundamental freedoms |
| Aimed to shape the interpretation of the Constitution in line with contemporary problems and values | |
| Believed in limited government | Included the ability of the president to veto a bill passed by Congress and confined the powers of the federal government to certain areas |
| Believed in protecting the Senate from radical changes | Structured elections so that only one-third of the Senate is up for reelection during any single election year |
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What You'll Learn
Freedom of speech
The First Amendment to the United States Constitution, ratified in 1791, protects the right to freedom of speech, religion, the press, and the right to peaceably assemble and petition the government. The text of the amendment is as follows:
> "Congress shall make no law respecting an establishment of religion, or 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."
The right to freedom of speech allows individuals to express themselves without government interference or regulation. The Supreme Court interprets the extent of protection afforded by the First Amendment and has ruled that all American speech cannot be infringed upon by any branch or section of the federal, state, or local governments. The First Amendment also protects more recent forms of communication, including radio, film, television, video games, and the internet.
The right to freedom of speech may be exercised directly (through words) or symbolically (through actions). It is worth noting that private organizations, such as businesses, colleges, and religious groups, are not bound by the same constitutional obligation to uphold freedom of speech. Additionally, the government may prohibit speech that may cause a breach of the peace or incite violence, including advocacy of illegal action, fighting words, commercial speech, and obscenity.
The right to petition the government, which is closely related to freedom of speech, has a long history, with early references dating back to the Magna Carta in 1215 and the English Bill of Rights in 1689. The framers of the Constitution believed that elected officials would be prevented from favoring only a select few by constantly receiving petitions from the general public.
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Due process of law
The framers of the American Constitution were visionaries who sought to address the challenges facing the nation during their lifetimes and establish foundational principles to guide the new nation into an uncertain future. One of the fundamental freedoms defined in the Constitution is the right to "due process of law".
The concept of due process has evolved over time and has been interpreted in various ways. It can be traced back to the Magna Carta in England in the 13th century, where King John promised his noblemen that he would act only in accordance with the law and that all would receive the ordinary processes of law. The phrase "due process of law" first appeared in a statutory rendition of Clause 39 of the Magna Carta in 1354 during the reign of Edward III of England. It stated that no man, regardless of his state or condition, shall be deprived of his lands, taken, disinherited, or put to death without being brought to answer by due process of law.
In modern times, due process continues to play a crucial role in ensuring fairness and justice. It has been interpreted as limiting laws and legal proceedings so that judges, rather than legislators, may define and guarantee fundamental fairness, justice, and liberty. This interpretation has been controversial, as it gives judges significant power in interpreting and applying the law.
Due process also intersects with other areas of law, such as welfare benefits, which have been deemed to amount to "property" with due process protections. Additionally, the concept of substantive due process has been hotly contested, with different methodologies proposed by legal scholars and the Supreme Court for determining which rights should be protected under this category.
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Freedom of religion
The framers of the American Constitution were visionaries who sought to address the challenges facing the nation during their lifetimes and establish foundational principles that would sustain and guide the new nation into an uncertain future. One of the most fundamental freedoms they sought to protect was freedom of religion.
The First Amendment of the U.S. Constitution, drafted by James Madison, protects freedom of religion by prohibiting laws establishing a national religion or impeding the free exercise of religion for its citizens. This amendment enforces the "separation of church and state," a phrase that does not appear in the Constitution itself but was used by Thomas Jefferson in a letter to a Danbury Baptist Church community. This separation means that no political figure holds office by virtue of an ecclesiastical appointment and vice versa.
The constitutional framers understood that religion was a precious aspect of how people understand the world and relate to each other and to the ultimate source or sources of meaning and value. They wanted to protect the rights of religious people of all faiths and beliefs against predation by the national government and, in some cases, by the states. This included protecting the right to live authentically and with integrity in view of one's beliefs, both in private and public life.
The absence of a bill of rights in the original Constitution disappointed many Americans, who wanted explicit protections for their rights. The First Amendment, adopted on December 15, 1791, addressed this concern by providing constitutional protection for individual liberties, including freedom of religion. The Fourteenth Amendment, adopted in 1868, further extended religious freedom by preventing states from enacting laws that would advance or inhibit any one religion.
While the framers of the Constitution sought to protect freedom of religion, they also viewed Indigenous people of the Iroquois Confederacy as inferior, demonstrating a complex and contradictory approach to religious and cultural differences.
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Equality before the law
The concept of equality before the law also extends beyond national boundaries. For instance, Article 26 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory, states that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law." Similarly, Article 7 of the Universal Declaration of Human Rights (UDHR) declares that "All are equal before the law and are entitled without any discrimination to equal protection of the law."
The principle of equality before the law is incompatible with systems that incorporate legal slavery, servitude, colonialism, or monarchy. For example, before the passage of the Reconstruction Amendments, American law did not extend constitutional rights to Black Americans, and the Supreme Court's 1857 Dred Scott v. Sandford decision determined that Black men had no legal rights under the Constitution at the time.
The ideal of equality before the law continues to be a goal pursued by various social movements, such as feminism, which seeks to achieve not just formal legal equality, but also substantive social equality between women and men.
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Protection from cruel punishment
The Framers of the American Constitution were visionaries who sought to address the challenges facing the nation during their lifetimes and establish foundational principles that would sustain and guide the new nation into an uncertain future. One of the most fundamental freedoms defined in the Constitution is freedom from "cruel and unusual punishment". This freedom is protected by the Eighth Amendment, which was adopted on December 15, 1791, along with the rest of the United States Bill of Rights.
The Eighth Amendment prohibits the imposition of cruel and unusual punishments, excessive bail, and excessive fines. This amendment serves as a limitation on the state or federal government's ability to impose unduly harsh penalties on criminal defendants before and after a conviction. The phrases in this amendment originated in the English Bill of Rights of 1689.
The interpretation of what constitutes "cruel and unusual punishment" has evolved over time. Initially, the Supreme Court determined whether a punishment was cruel and unusual by looking at historical precedents from 1789. However, in Weems v. United States, the Court concluded that the framers intended to prevent the authorization of coercive cruelty through any form of punishment. This case established that the Eighth Amendment must draw its meaning from evolving standards of decency that mark the progress of a maturing society.
The concept of proportionality has played a significant role in interpreting the Eighth Amendment. In O'Neil v. Vermont, Justice Field argued that the Eighth Amendment condemns punishments that are greatly disproportionate to the offenses charged, whether due to excessive length or severity. In Solem v. Helm, the Supreme Court held that incarceration could constitute cruel and unusual punishment if it were "disproportionate" in duration to the offense. The Court outlined three factors to be considered in determining if a sentence is excessive: the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for the same crime in other jurisdictions.
The Supreme Court has also addressed specific instances of cruel and unusual punishment, such as in Furman v. Georgia (1972), where the Court struck down the arbitrary and capricious application of the death penalty, leading to a nationwide moratorium on capital punishment until states reformed their laws. In Trop v. Dulles, the Court emphasised the evolving standards of decency and the need to interpret the Eighth Amendment in light of contemporary norms and values. The Court acknowledged that societal attitudes towards cruel and unusual punishment may change over time, ensuring that the prohibition remains relevant and meaningful.
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Frequently asked questions
The constitutional framers were visionaries who sought to address the challenges facing the nation during their lifetimes and establish foundational principles that would sustain and guide the new nation into an uncertain future. They defined fundamental freedoms and governmental powers in general terms, such as freedom of speech, due process of law, and the separation of powers between Congress, the President, and the courts.
While the framers of the Constitution considered majority rule to be the best system of government, they also recognised its imperfections. They understood that political majorities might enact laws that entrench their authority and that prejudice and intolerance could lead to the marginalisation of minorities.
The constitutional framers intended for the courts to play a central role in safeguarding against the potential drawbacks of majority rule. They recognised that a bill of rights would be crucial in protecting the rights of minorities and ensuring that political majorities could not infringe on fundamental freedoms.
One of the significant challenges during the Constitutional Convention of 1787 was deciding how to elect the president. The framers struggled with this decision due to their misgivings about democracy and their fear that the people might not make wise choices. Ultimately, they agreed to a compromise where the President would be elected by "electors" chosen by state legislatures or the people of their individual states.
