The Constitution
The Constitution does three major things:
1. Sets up the government
The US Constitution divides government power between the federal government and state governments. The name for this division of power is “federalism.” Federalism was designed in response to the inadequacies of the Articles of Confederation, which gave very little power to the federal government. This is structured similarly to today’s European Union.
2. Defines the government
The Founding Fathers wanted to limit the powers of the government, so they separated the powers into three branches: executive, judicial, and legislative. The Constitution defines each branch and its given powers.
3. Protects basic rights
The Constitution also includes additions or changes, known as “amendments.” The first ten amendments are called the “Bill of Rights.” The Bill of Rights established many of the individual rights of American citizens.
The Constitution Center along with scholars from the Federalist Society and the American Constitution Society created this interactive Constitution that is very informative.
Constitutional Amendments
Constitutional amendments are incredibly rare and hard to pass. There have only ever been 27 ratified amendments in U.S. history (including the first ten, the Bill of Rights), with the most recent amendment successfully ratified in 1992.
Ratifying an amendment to the Constitution requires a two-thirds majority in both the Senate and House. The amendment is then passed to the states, and must be ratified by three-fourths (38) of state legislatures or state ratifying conventions. Congress determines which state ratification method is used (legislature or convention), however, the convention method has only ever been used once.
The Constitution does not specifically address time limits to ratification. However, beginning with the 18th Amendment, Congress has chosen to include a time limit for ratification on most proposed amendments.
The Equal Rights Amendment is an example of a proposed Constitutional Amendment. It has been ratified by the required 38 states as of January 2020, however, there are multiple questions of legitimacy in the balance. Five states have since chosen to rescind their ratification. Additionally, the ratification from some states occurred after the congressionally-determined time limit.
Bill of Rights
In 1789, James Madison introduced twelve amendments to the First Congress. Ten of the twelve would go on to become what we now consider to be the Bill of Rights. One of the remaining two amendments never passed, while the other, which pertains to Congressional salaries, was not ratified until 1992, becoming the 27th Amendment.
The Bill of Rights guarantees such rights as the freedoms of speech, assembly, and the right to practice your religion. It lists some of our civil liberties (like protection from unreasonable search and seizures), which are distinct from what we call “civil rights.” Civil liberties provide basic rights and freedoms to all people, while civil rights protect against discrimination based on certain characteristics.
Conflict of Rights
The question of what happens when the rights of two individuals conflict is a careful balancing act that varies across jurisdictions. This blog analyzes some scenarios, and although it discusses UK law, the ethical framework is the same for any liberal democracy, including ours. This is the reason there are religious exemptions for birth control insurance coverage mandates, why affirmative action is not roundly illegal, and why female-only sports teams are allowed. In each instance, public policy is trying to balance a conflict of rights.
Franklin D. Roosevelt identified four fundamental freedoms that everybody ought to enjoy: Freedom of speech, freedom of worship, freedom from want, and freedom from fear. This all requires a balancing of rights. For example, freedom from fear - protecting the population from the threat of violence - necessarily involves negotiating between the value of safety and the value of freedom.
