Government Assignment: Democratic Constitutionalism PDF

Amelia may 10/29/24 assignment:Government **Secondary Source: Robert Post & Reva Siegel, \"Democratic Constitutionalism\"** The Constitution is the law of lawmaking. It structures and limits the powers of government. It provides, for example, that the "Senate of the United States shall be compos...

Amelia may 10/29/24 assignment:Government **Secondary Source: Robert Post & Reva Siegel, \"Democratic Constitutionalism\"** The Constitution is the law of lawmaking. It structures and limits the powers of government. It provides, for example, that the "Senate of the United States shall be composed of two Senators from each State." Constitutional controversies are relatively rare when the Constitution speaks in this concrete, rule-bound way. The Constitution gives Congress the power "to regulate Commerce... among the several States," and it forbids Congress from making any "law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech." But by the end of the 20th Century, congressional commerce power had expanded beyond anything the Framers foresaw or imagined. Congress now routinely enacts laws establishing social security, enforcing fair labor standards, and prohibiting discrimination in employment. Constitutional change of this kind is commonplace. For over 120 years, the First Amendment's reach was quite limited.Government could use criminal law to punish persons who published seditious libel, which is speech that challenges public authority. But through cases decided in the last eighty years, we have come to understand that the primary purpose of the First Amendment is to protect from criminal sanctions speech that criticizes the government. This view of the Constitution is well illustrated by Justice Scalia's dissent in the recent case of [*[Obergefell v. Hodges]*](http://www.oyez.org/cases/2010-2019/2014/2014_14_556) (2015) in which the Court held that the Due Process Clause and the Equal Protection Clause prevent states from refusing to marry same-sex couples. Objecting to the Court's opinion, Justice Scalia asserted: *When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision---such as 'due process of law' or 'equal protection of the laws'---it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.* In this passage Justice Scalia adopts a view of constitutional interpretation that is called "originalism." Originalism holds that the Constitution should be interpreted as a contract whose meaning is fixed at the moment of ratification. the Equal Protection Clause came to be interpreted to prohibit sex discrimination. For more than 130 years after the ratification of the Constitution, states treated women unequally to men. State laws prevented women from becoming lawyers and obtaining many other forms of employment, and even denied women the right to vote.But women organized, first to obtain the right to vote, and then to secure legislation guaranteeing equality of treatment by government and employers. Although an attempt to amend the Constitution to prohibit sex discrimination failed, the Court nevertheless in 1973 signaled that the Equal Protection Clause would henceforth be interpreted to require the equal treatment of women. (1954), which interpreted the Equal Protection Clause to forbid racial segregation, reflects exactly this kind of sensitivity to altered popular values. Those who ratified the Fourteenth Amendment did not understand the Amendment to require desegregated public schools. But racial discrimination had become unacceptable to most Americans in the years after our struggle against Nazism in World War II. In our own time, Justice Kennedy's opinion for the Court in *Obergefell* struck down prohibitions on same-sex marriage in part because of the extensive national "deliberation" that the Court believed had caused the country to change its views regarding the justice of same-sex marriage. [*[Brown v. Board of Education]*](http://www.oyez.org/cases/1950-1959/1952/1952_1/)