Take This Fun Constitution Quiz!
This isn’t a ‘scientific’ test or, really, even a particularly objective one; I’m simply using the ‘quiz’ format as a vehicle for conveying a few basic points about U.S. Constitutional law.
You’ll gather that I’m not terribly impressed with ‘conservative’ arguments as regards Constitutional law and the proper role of the judiciary. I do respond to a few ‘liberal’ views here as well, but for the most part ‘liberals’ don’t have any major objections to the Constitutional right of privacy. Since I’ve written other essays the purpose of which is the exposition and defense of that right, I’m naturally focusing on currently fashionable ‘conservative’ views.
1. Who or what confers rights on you?
- God — and He can take them away, since He’s sovereign and omnipotent.
- No one; I have rights by nature. Even if God created me, God could no more create a human being without rights than He could create a square circle.
- The government, through the courts’ interpretation of the Constitution and other laws. Without laws there are no rights.
If you said A, you’re well aligned with the so-called ‘religious right’; if you said C, you’re well aligned with the ‘secular left’. In neither case are you well aligned with the framers and ratifiers of the Constitution, who subscribed to a generally Lockean view of ‘natural rights’.
Despite the best efforts of some ‘conservatives’, this point doesn’t necessarily divide people along religious lines. Even for religious believers, the issue here is whether rights are created by arbitrary divine fiat as ‘optional extras’ (so to speak) or whether they come as standard features. The former seems to conflict with the view that our rights are intelligible and susceptible to rational understanding, as well as with our tolerably clear sense that some ways of treating each other are just wrong.
The standard ‘religious right’ argument here (‘you can’t have rights without God’) seems to me to confuse two separate claims: (1) the existence of God is necessary as ametaphysical ground for our possession of rights, and (2) belief in God is necessary as an epistemological ground for a justified belief in rights. Even if the first is true (a point on which I’m taking no position here), the second isn’t equivalent to it and doesn’t follow from it. A rough analogy: even if the existence of God is ‘metaphysically necessary’ in order for there to be laws of physics, surely one doesn’t have to be a theist in order to understand the laws of physics. Why should ethics be any different?
The Declaration of Independence, in contending that we are ‘endowed by [our] Creator’ with such rights, is also careful to note that these rights are ‘unalienable’ (meaning that we can’t ‘alienate’ them, i.e., transfer them away; they’re ‘part of us’). Thomas Jefferson’s view would thus appear to have been B: our ‘Creator’ ‘endowed’ us with rights by creating us as beings who possess such rights by nature, and could not be what we are without possessing them.
Of course we also have some ‘positive rights’ as well (that is, rights conferred by law or government). For example, the right to trial by jury is probably one specifically conferred by the Constitution itself; in a Lockean ‘state of nature’ we wouldn’t have any such right. But even the ‘positive rights’ conferred by the Constitution are supposed to safeguard our ‘natural rights’.
2. Which of the following statements best describes your view of your rights under the Constitution?
- I have only those rights expressly listed in the Constitution and the Bill of Rights.
- I have a broad spectrum of liberty rights whether or not these are specifically listed in the Constitution or the Bill of Rights, but the ones that are listed are more important than the ones that are not.
- I have a broad spectrum of liberty rights whether or not these are specifically listed in the Constitution or the Bill of Rights, and the ones that are not listed are just as important as the ones that are.
The framers and ratifiers of the Constitution would have said C; that’s why the Ninth Amendment is in the Bill of Rights. It specifically states that rights aren’t to be disparaged or denied merely because they aren’t enumerated.
In fact, one of the great worries about having a Bill of Rights at all was that it might be misunderstood as surrendering to the government any rights not specifically withheld. The purpose of the Ninth Amendment was to make sure this interpretation was excluded.
Some ‘conservatives’ know this but forget to apply it when one of their pet issues is at stake. For example, if a judge plants a giant stone sculpture of the Ten Commandments in a courthouse, some ‘conservatives’ will defend the action by saying, ‘All the First Amendment says is that “Congress shall make no law.” The judge isn’t Congress and he’s not making a law.’ Whatever other arguments might be offered on the judge’s behalf, the flaw in this argument is that the Constitution doesn’t protect us only against actions by Congress just because the First Amendment mentions only actions by Congress. We have rights against the judiciary too, and under a strict interpretation of the Ninth Amendment, those rights can’t be denied or disparaged just because they aren’t expressly set out.
(Note: Obviously I based that last example on Judge Roy Moore. But he was a state judge and I didn’t want to complicate matters by introducing a Fourteenth Amendment issue. We’ll talk about the Fourteenth Amendment further down.)
3. Which of the following statements best describes your view of the federal government’s powers under the Constitution?
- The government has all the powers that the Constitution doesn’t specifically deny it.
- The government has only those powers that the Constitution grants it.
- The government has any power it wants to claim, independently of whether the Constitution grants it.
The framers and ratifiers of the Constitution would have said B; that’s why the Tenth Amendment is in the Bill of Rights. (However, the Tenth Amendment doesn’t require the government’s powers to be specifically or expressly ‘enumerated’; the Necessary and Proper Clause allows the government to assume some powers not expressly delegated to it.)
Generally speaking, powers are the flipsides of rights; if the government has a ‘power’ to do X, we don’t have a ‘right’ against it that it refrain from doing X. With respect to Congress, for example, the idea is supposed to be that unless a law is ‘necessary and proper’ for the exercise of one of its enumerated powers, Congress doesn’t have the authority to pass that law. However, over the years, very broad interpretations of the Interstate Commerce Clause (and other clauses) have ceded to Congress a correspondingly broad authority to legislate.
Apropos of privacy rights, Justice Hugo Black wrote as follows in his dissenting opinion in Griswold: ‘I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has the right to invade it unless prohibited by some specific constitutional provision.’ (Unsurprisingly, Mark R. Levin quotes this passage with approval in his ill-argued best-seller Men In Black, which I review elsewhere on this site.)
The error in this statement is, of course, that the government is prohibited from doing anything unless it is granted the requisite power (‘right’ is the wrong word) by some constitutional provision. Justice Black’s (mis)reading of the Constitution here is exactly what the framers were trying to prevent by including the Ninth and Tenth Amendments.
The general principle is easy to state though devilishly hard to implement: according to the Ninth and Tenth Amendments, courts interpreting and applying the Constitution are supposed to be very generous in recognizing liberty rights and very stingy in recognizing government powers. Too many ‘conservatives’ read it the other way around.
Consider again our judge and his big Ten Commandments statue, and the argument that his action is permissible because the First Amendment says only that ‘Congress shall make no law’. We’ve described this error in terms of ‘rights’, but it can be described equivalently in terms of ‘powers’: the Constitution doesn’t delegate any power over religion to the judiciary, so the judge is acting outside the scope of his Constitutional authority.
4. Which of the following statements best describes your view of the rights of noncitizens under the Constitution?
- The Constitution protects only U.S. citizens.
- The Constitution protects U.S. citizens to a greater degree than it protects noncitizens.
- The Constitution protects citizens and noncitizens to the same degree.
The framers and ratifiers would probably have said B. Of course all persons have ‘natural rights’ and the government is not free to violate them, nor does the government have any powers not delegated to it by the consent of the governed. Thus the government is, in a sense, more limited in what it can do to noncitizens (who have not surrendered any natural rights or delegated any powers to it) than to citizens. Moreover, the language of the Fifth Amendment refers to ‘persons’, not ‘citizens’, so that the government appears to be expressly bound to follow due process even when dealing with noncitizens. However, the Constitution does confer certain ‘privileges and immunities’ specifically on citizens — for example, the right to travel freely between states.
Answer A, of course, is the ‘right-wing nutjob’ answer, and you’ll hear it pretty frequently as some ‘conservatives’ continue to use the war on terror as an excuse to curtail civil liberties. Answer C is officially the ‘loony liberal left’ answer but it has more to commend it than A has: in some important respects (notably due process), noncitizens are entitled to approximately the same protections against the government as citizens are.
5. Which of the following statements best describes your view of Constitutional interpretation?
- Justices and other judges should stick as closely as possible to the literal meaning of the text.
- Justices and other judges should exercise judgment in applying broad Constitutional principles to current circumstances even if this sometimes means going beyond the literal meaning of the text.
- Justices and other judges should never consider themselves bound in any way by the literal text of the Constitution. Language is always approximate at best, and new circumstances always call for the fresh exercise of human judgment free of preconceptions.
If you said A, you’re probably a fan of Ed Meese, Robert Bork, and Justice Antonin Scalia. (If you said C, you may be a fan of Derrida or Baudrillard or Rorty or postmodernism or something.) But B is probably the answer that best matches the understanding of the framers and ratifiers. The framers were mostly lawyers and they were trying very hard to put together a document everyone could agree on. They therefore deliberately left some ‘play in the joints’ so that courts could have some room to interpret various clauses according to circumstances and current understanding. Besides, the Ninth Amendment is practically an invitation to ‘go beyond the text’ in protecting rights not expressly enumerated.
6. Which of the following statements best describes your view of the role of an independent judiciary?
- The framers of the Constitution didn’t intend to create such a monstrosity.
- The judiciary is supposed to express the ‘will of the people’ and judges should be impeached when they fail to do so.
- The judiciary is supposed to be independent of the ‘will of the people’ precisely so that it can protect liberty rights against the tyranny of the majority.
The framers and ratifiers would have gone with C here. They were very much alive to the tyrannical aspects of ‘majority rule’ and they specifically devised a judiciary that would be to a large degree isolated both from the changing fashions of popular sentiment and from the ‘political’ influences of the other branches of the government.
In most of the other questions, I’ve tried to include a Constitutional answer, a ‘right-wing nutjob’ answer, and a ‘loony liberal left’ answer. Here, though, both A and B are ‘right-wing nutjob’ answers, and you’ll see both of them with alarming frequency if you lurk on ‘conservative’ discussion forums. Each view is generally accompanied by polemic about reigning in those black-robed terrorists in the rogue judiciary.
7. Which of the following statements best describes your view of ‘judicial activism’?
- ‘Judicial activism’ amounts to legislating from the bench and it is a clear violation of the Constitution’s separation-of-powers scheme.
- ‘Judicial activism’ is a nonsensical phrase that ‘conservatives’ apply to judicial decisions they don’t like.
- The Constitution is deliberately designed to allow a certain degree of principled ‘judicial activism’ in defense of liberty and in curtailment of the powers of the legislative and executive branches.
The framers and ratifiers would most likely have chosen C, but there’s some room for argument because the term ‘judicial activism’ is so malleable: one person’s ‘judicial activism’ is another person’s ‘strict construction’.
As for the separation of powers: it’s true that the framers rejected a judicial veto (in which the federal judiciary would have been directly involved in the legislative process), but they also overwhelmingly expected the federal judiciary to exercise what we now call ‘judicial review’ (as indicated by their remarks as recorded in James Madison’s Notes of Debates in the Federal Convention of 1787; Randy Barnett has a nice analysis of this point in Restoring the Lost Constitution). To the extent that ‘judicial activism’ can be given a clear meaning at all, it’s not a violation of the separation of powers; each of the other branches gets a ‘bite at the apple’ before a law ever has a chance to reach the judiciary. (Congress can decide not to pass a law; the President can decide to veto it.)
I think it’s also true that the Supreme Court hasn’t done all that wonderful a job of keeping the other branches of the government reined in. But why this failure should be called ‘judicial activism‘ is more than I can fathom; it seems to me to involve undue passivity as against the (constitution-stretching) ‘activism’ of the other two branches.
8. What do you think about having a ‘living Constitution’?
- That pernicious doctrine is just an excuse for liberal judges to legislate from the bench. The rule of law requires that we stick to the original, literal meaning of the text.
- Having a living Constitution beats the heck out of having a dead one. Broad Constitutional principles are fine but they will always need to be adapted to current circumstances.
- There is no alternative to having a ‘living Constitution’. The Constitution is a text, and like any other text it is subject to fluid interpretation.
As I suggested a couple questions back, the framers and ratifiers deliberately left some ‘play in the joints’ so that courts would have room for interpretation. That means they would have favored answer B. (And again, the Ninth Amendment is there to make sure the courts are not limited to protecting the rights expressly enumerated.)
If you said A, you probably also answered A to Question 2. In strict logic, you should also object to the Court’s extension in Katz v. U.S. (1967) of Fourth Amendment protection to wiretapping and electronic surveillance. On your view, the Constitution doesn’t mention electronic surveillance, so the police don’t need a warrant to engage in it. Of course the Constitution also doesn’t mention ‘breakfast’, so by that argument you don’t have the right to choose what to eat for your morning meal. (So much, too, for the usual ‘conservative’ argument about the right of privacy.)
All of this takes us back to principles we’ve elaborated above. It’s pretty much all the same whether we regard Katz as expanding the meaning of the Fourth Amendment term ‘search’ or as relying on an unenumerated Ninth Amendment right; either way, the Constitution does not protect only those rights expressly enumerated in it. The idea of a ‘living Constitution’ isn’t (always) a pipe dream of anti-American wackjobs; it is (or can be) a straightforward recognition that the application of the Constitution may vary with time, circumstance, and understanding. By and large, that’s what we want it to do, and it’s certainly what its framers and ratifiers intended it to do.
9. Which of the following statements best describes your view of the effect of the federal Constitution on state law before the ratification of the Fourteenth Amendment?
- The Constitution bound only the federal government; state governments could do whatever they wanted, no matter how tyrannical.
- The Constitution bound only the federal government, but state governments were still expected to respect the same rights under their own constitutions and it was up to the people of each state to make sure they did so.
- The Constitution bound the federal and state governments, and conferred on the federal government at least some authority to review and overturn state laws that failed to respect Constitutional rights.
Predominantly, the framers’ and ratifiers’ answer would have been B. Certainly none of them believed it was simply all right for state governments to violate natural rights. (The free states and the slave states did disagree about whether the institution of slavery constituted such a violation. In general the existence of slavery resulted in quite a few Constitutional compromises — and, eventually and somewhat indirectly, in a war ostensibly over ‘states’ rights’ but in which, by what must seem a remarkable coincidence to those who insist that the Civil War wasn’t ‘really’ about slavery, all the slave states were aligned on one side.)
However, at the Constitutional Convention, James Madison (who drafted the original version of the Bill of Rights) proposed an amendment that specifically bound the states. His proposal was rejected. (Madison himself later came to agree that such rejection was proper.) There was probably never universal agreement that the Bill of Rights bound only the federal government (that is, did not grant the federal government any authority to ‘police’ state laws for constitutionality), but the Supreme Court did hold as much in Barron v. Baltimore (1833).
As a result, prior to the ratification of the Fourteenth Amendment, the federal government exercised no real Constitutional authority over state laws.
10. Which of the following statements best describes your view of the effect of the federal Constitution on state law after the ratification of the Fourteenth Amendment?
- The Constitution binds only the federal government; state governments can do whatever they want, no matter how tyrannical.
- The Constitution binds only the federal government, but state governments are still expected to respect the same rights under their own constitutions and it is up to the people of each state to make sure they do so.
- The Constitution binds the federal and state governments, and confers on the federal government at least some authority to review and overturn state laws that fail to respect Constitutional rights.
There is a great deal of argument about whether the Fourteenth Amendment was originally intended to apply the entire collection of Constitutional rights to the states, and we won’t be able to settle the question here. Michael Kent Curtis makes a strong case for that claim in No State Shall Abridge, and so does Randy Barnett in Restoring the Lost Constitution. Raoul Berger makes the best-known case to the contrary in Government By Judiciary (and is thus much beloved by ‘conservatives’ even though he was himself a ‘liberal’). I agree with Curtis and Barnett but there’s room for disagreement.
There is no real question, though, that the Fourteenth Amendment did something to give the federal government some sort of authority over state law. Even if nothing else, it expressly gave Congress the authority to enforce the Amendment through legislation.
Today there is a complex body of Fourteenth Amendment law that binds the states. The details don’t matter for present purposes, but here’s the general idea.
The Fourteenth Amendment’s Due Process Clause requires the states to respect some (but not all) of the express provisions of the Bill of Rights through the doctrine of ‘incorporation’ (according to which certain rights are said to be ‘incorporated’ by the Fourteenth Amendment). Moreover, the Due Process Clause protects other substantive rights (not expressly listed in the Constitution) through what is called ‘substantive due process’. (The phrase has sometimes been characterized as oxymoronic, but it really refers to the procedural protection of substantive rights.) Finally, the Equal Protection Clause prohibits the states from enacting and enforcing ‘discriminatory’ laws.
A ‘substantive due process’ analysis generally begins by asking whether the right in question is a ‘fundamental right’. If it is, then state laws limiting its exercise are subjected to a very high level of scrutiny; if not, then a much less demanding ‘rational basis’ test is applied. Similarly, an ‘equal protection’ analysis begins by asking whether a state law relies on a ‘suspect classification’ (like race) or a ‘fundamental interest’ (like voting). If it does, the state has to show a compelling interest in the legislation; if not, a ‘rational basis’ is enough.
Moreover, there isn’t any question that the Fourteenth Amendment applies the First Amendment to the states, including the Establishment Clause and the Free Exercise Clause. Originally, when the United States was founded and the Constitution was written, the states already had their own established religions and the framers didn’t think it was wise to try to make them ‘disestablish’; they would simply have refused to ratify the Constitution. But the framers did hope the states would disestablish (and some of them, notably Madison, were very active in arguing for such disestablishment). All the states eventually did so, and most state constitutions are now even stricter than the First Amendment about government involvement in religion. At any rate, the passage of the Fourteenth Amendment did bind the states to observance of the First Amendment and ‘lock in’ disestablishment once it had occurred.
SCORING: You’re kidding, right? This wasn’t really a test. But if you like, I’ll give you TEN POINTS — whee! — if you keep rereading it until you agree with me about everything.
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