Burlington High School
Burlington, Kansas
Teacher: Devra Parker
The Constitutional Rights
By: Brenda Fry
12th grade
The government today rules our lives with different thoughts on how politics and life should work. Some may wonder if they have too much control and that we are under attack by the vicious politics that run our administration against the Constitution. Others believe that these changes must be done, and they are supported by our Constitution. As for me, I agree that the government is following the meaning of the constitution.
First, Mr. Pilon does make some good points. For the most part, he stresses how it used to be instead of looking at how it might have been wrong back then. “The early years saw numerous attempts to expand government’s powers, but the resistance mostly held. In 1794, for example, a bill was introduced in the House to appropriate $15,000 for the relief of French refugees who had fled to Baltimore and Philadelphia from an insurrection in San Domingo, whereupon Madison rose on the floor to say that he could not ‘undertake to lay [his] finger on that article of the Federal Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents,’” said Mr. Roger Pilon. He shows how this keeps the old ways. Others might look at this as denying those people safety and ignoring their needs. It does not show that someone was right and someone was wrong, but it does show that something else might have happened if the Congress had taken a different path.
Second, Mr. Pilon focuses on the fact that our Constitution does not support these moves and that the government is going away from what the Framers intended. Though, it is not the Constitution’s job to follow exactly what the Framers intended for the Framers are not here today. They had no idea what would happen to us when they wrote it; therefore, claiming that we are going against them is impossible to actually measure. However, they did make the Enumerated Powers to help us continue our Constitution no matter what changes we went through. Wikipedia states, “The concept of enumerated powers implies that the legislature may exercise only those powers that are stated in the Constitution, limited, of course, by the Bill of Rights and the other protections found in the Constitutional text.” As long as we follow the original rules, then the government is not technically doing anything against the Constitution. This is also thought to be as the implied powers which are supported by enumerated powers, the necessary-and-proper clause, and the taxing and spending clause. The implied powers, for example, can make laws concerning computers even though computers were not created back when the Framers were around.
Third, Roger talks about how we have lost our freedom and government seems to be taking control. He pressures the people to believe that we have given away our power. Honestly, the people did that for the changes they wanted. Maybe instead of pointing fingers at the government, we could try finding a way to teach generations to start working in our original market system instead of relying on the administration to give us what we need. However, there are cases when we do need help. “Monopolies are often distinguished based on the circumstances under which they arise; the broadest distinction is between monopolies that are the result of government intervention and those that arise without it,” says Wikipedia. That is a perfect example of when they must step in to help the people before they become controlled by a company. If they did not help, the people would be under a market dictator who controlled everything by consumer products. Without most amendments, our freedom would be long gone.
However, instead of doing what Pilon intends the people to do, we should teach future generations not to rely on government to solve all of their problems. As I stated above, we need to start now with a plan today instead of waiting for tomorrow. Instead of thinking that our constitution is completely failing us, we should think about how the people should not fail the Constitution.
Thus, I disagree with Mr. Roger Pilon when he states that “most of the what the federal government does today is unconstitutional.” He does not have enough evidence to back what he is saying. It is all based on theories instead of actual fact. He is changing words to fit his beliefs. It is impossible to tell what the Framers wanted unless we magically obtain a time machine and make our way back. They wanted it to change to fit each generation. A living constitution is extremely important to keeping our country safe and orderly.
Q1- Explain what Roger Pilon means when he speaks of a bifurcated Bill of Rights. Describe what happened in 1938, according to his testimony.
Bifurcated Bill of Rights means a divide between two branches therefore he wants to set it as a separate part. According to his testimony in 1935, the Court invented a bifurcated theory of judicial review. It has to deal with rewriting of the General Welfare Clause. It also gives a more complete picture of this constitutional revolution.
Q2- Give three examples of what is described in the testimony as fundamental rights and three examples of nonfundamental rights. Which of these rights do you, after reading portions of Dr. Pilon's testimony, believe should be subjected to strict scrutiny?
Three examples of what is described in the testimony as fundamental rights are in the famous United States Vs. Carolene Products with the rights to speech and voting. The new deal is also considered to be fundamental. Nonfundamental rights are about property, contract, or the rights people exercise in regular relations. I believe that both rights should have some sort of strict scrutiny because either one could be taken out of hand. I understand that Dr. Pilon’s thinks that it is already out of control and should be changed, but either way it could head downhill for the enumerated powers.
Q3- Define:
Enumerated power means powers that are expressed and granted by the constitution. It implies that the legislature must have limited powers.
Living constitution can mean the ability for the constitution to change through amendments; it must be read broad and in a liberal manner to adapt to the changes in the world... It can also mean the protection of everyday life for Americans.
Politicizing the constitution means to make more political the constitution instead of focusing on the actual details.
Q4- Why does Roger Pilon claim a living constitution is worse than no constitution at all?
Roger claims that a living constitution is worse than no constitution because it is interpreted to maximize political discretion. Which this releases the political force instead of restraining them like the constitution was originally for. He intended that it will make a decline in respect for the law next.
Q5- Explain what is meant by moral legitimacy, political legitimacy and legal legitimacy. Give your own example of each.
Moral legitimacy means the knowing of concerns for the rights and wrongs, This means for it to deal with the law. Political legitimacy deals with how the government looks towards the law. Legal legitimacy is what is actually written in the law. An example of moral legitimacy is in the case of abortion that concerns the rights and wrongs of how morally it stands. An example of political legitimacy is how the politicians look up on the right that is near what the law actually has such as contracts between two nations. An example of legal legitimacy is the right of free speech which is in the constitution.
Q6- Dr. Pilon spends some time enumerating five implications of an illegitimate constitution. Name the five implications and state why one seems to be the most serious in your personal opinion.
1) Loss of legitimacy
2) The chaos that follows the law.
3) Disrespect for the laws themselves.
4) Loss in discipline the constitution is designed to impose on Government.
5) The economic implications the unlimited government can have.
The loss of legitimacy seems to be the most serious due to the fact that that is the basis for all of the other five implications. If that one could be fixed then the other reasons would not be needed.
Q7- When he says "those true to its conception as a means of founding, maintaining and promoting a great nation in the public good.", is Mr. Frankfurter talking about the wisdom of enumerated powers or the constitution's preordained destiny as a living document?
I believe Mr. Frankfurter it talking about the constitution’s preordained destiny as a living document because it needs to be maintained or changed to become more of a document that helps support the changing world around us.
Q8- Do you agree, with Felix Frankfurter, that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution?
I do not agree with Mr. Frankfurter that the Founding Fathers refused to write limitations and qualifications into the U.S. Constitution. As a matter of fact, there are limitations for every branch of government so that neither side can become too powerful with the checks and balances. It’s just these checks and balances need to keep working for the good of the people. It was also probably hard for the Founding Fathers to do so considering they had to agree on what went into the Constitution, thus we still had slavery even though many of the men wanted to abolish it.
Q9- Compare the manner in which the U.S. Constitution was changed after the Civil War with the way changes were made to the Constitution during the New Deal era.
The U.S. Constitution was changed after the Civil war with the Amendment to abolish slavery causing a change between federal government and the states. Therefore it expanded federal power and disciplined state power. This strays away from the document’s principle. The New Deal and the Civil War changed the rules. The Civil War did it through the ratification process and the New Deal generation chose the latter. Now, the Constitution disciplines the government and the people within their daily lives.
Q10- U.S. Constitution prevents legislators from making the needs of Americans their priority. This paragraph claims that the expressed purpose of the U. S. Constitution is
______to protect the people____. (fill in the blank)
Q11- FDR made a political speech for the times; the eve of WW II. References were made in his speech that may be relevant to our position in the world today. Comment on the similarities.
The similarity is that the Constitution is now turned over on its head by what FDR did. Because of that, the same problems are coming up today on what is constitutional and what isn’t. Plus the problem of people not really seeing the problem at all.
Q12- Comment on whether you think the "new idea" come to "dominate thought about government" is still the dominate idea or has the past 70 years turned it into an old idea that needs to be reformed? Make these comments brief as this question is the crux of the paper you will be preparing for submittal.
I believe the new idea is still a good idea that helps us keep up with the times. It helps keep relieve off the people to keep us alive and well.