The Difficulty of the Amendment Process of the Constitution of the United States of America and Freedom of Speech and its limits
Term Paper (Advanced seminar) 2004 23 Pages
2. The ratification of the Constitution
2.1 How the Constitution can be changed - the amendment process
2.1.1. ERA as an example for amending the Constitution
3. Freedom of speech and its limits
3.1. Cases dealing with freedom of speech
3.2. Slander and libel
3.2.1. Symbolic speech
3.3.1 Child audience
Abbildung in dieser Leseprobe nicht enthalten
From the beginning on Americans have proclaimed liberty, have fought wars in its name have evaluated events and institutions and politics in the light of liberty. They were convinced that they are free people and they always wanted to serve as a model for the rest of the world. Besides the Declaration of Independence, the Constitution, ratified on the 17th of September 1787, is the fundamental document that symbolizes this freedom and that serves as a legal basis of the juridical system of the United States. This original document does not include speech freedom and freedom of the press, which are two of the most important liberties a free nation should have. The Bill of Rights that includes these liberties was added later, as amendments to the original document.
However, the Constitution and its amendments serve as more or less strict guidelines, as the text is not unambiguous. It is difficult to interpret the twisted language of it and as I will show in this work, the opinions reach from one extreme to the other. Justices of the Supreme Court play a leading role in interpreting the Constitution, therefore a lot of juridical cases deal directly or indirectly with the interpretation of the Constitution and are a subject of this term paper. General interpretations of the Constitution, such as "original intent" and other interpretations form no part of this work, only the opinions according to special cases are analyzed.
In this term paper I am going to show how the original Constitution was finally ratified, and how difficult it is to change this document. The aim of the Framers was to make the changing of the Constitution as challenging as possible. The difficulty of the amendment process is explained with the help of an example; The Equal Rights Amendment. After discussing the basis of the amendment process I will analyze how freedom of speech and freedom of the press has been interpreted since the ratification of the Bill of Rights. I will explain that speech freedom does not mean unlimited freedom of speech, and will introduce cases that step by step show how complete freedom of speech was allowed or how for example the "clear and present danger test" and the "bad tendency test" limited it. Then I will go into further detail and examine cases that deal with slander, libel and obscenity, expressions that are not protected by the First Amendment. It is impossible to introduce all cases that deal with these issues, therefore I tried to pick out the most important ones that deal with limitations of freedom of speech and the press.
Discussing the interpretation of Freedom of Speech is a wide topic and I was forced to leave out some aspects. The Sedition Act of 1798 and the debate around it is not discussed in this paper. Sedition, criminal conduct such as bribery, pre jury, or incitement to riot does not or only partly form part of this term paper.
The quotations taken from other sources than German or English I am going to translate in the footnote.
Besides the cases and the Constitution of the United States of America I also used other historical documents that are related to the topic, to round up my work: the Declaration of Independence and the Federalist Papers. In addition to these primary sources I will quote from some - in my opinion - important secondary works.
2. The ratification of the Constitution
Written in 1777 and ratified in 1781 the Articles of Confederation had established a loose union of states and a national congress with few powers. In seven articles, the Constitution of the United States of America established the fundamental institution for a national government that ruled just under 4 million people. "With the addition of twenty-six amendments, that same document today helps to govern a nation of more than 242 million" (Gitelson 1991:18).
After the Constitutional Convention in 1787, a so called ratification debate followed. Serious resistance to the new Constitution did emerge in at least seven of the thirteen states: Maryland, New Hampshire, New York, North Carolina, Rhode Island, South Carolina and Virginia. The great debate over ratification divided Americans into two groups. The Federalists were led by many of the founders and supported the Constitution. The support of this group came mainly from merchants and others in the cities and seaboard regions. The Anti-Federalists opposed the new Constitution. Their strongest argument was that the Constitution lacked a Bill of Rights. They were afraid that the government might take away the political rights won in the Revolution. Inland farmers and laborers, who feared such a strong national government, supported this group.
However, in a number of states the Constitution passed quickly, since for example the smaller states were already pleased with their equal representation in the new Senate, and until the spring of 1788 nine states voted to ratify. This is the number of states Article VII requires as sufficient for the Establishment of the Constitution. Its proponents knew that the new government could only function effectively if the remaining states - Virginia, New York, North Carolina and Rhode Island - also joined the union. After heated debates and close votes, the states Virginia and New York did so during the summer of 1788. Rhode Island was the last state that ratified the Constitution in 1790. It did so, because the other states were threatening with economic boycott and even military action.
The last but one state that joined the Union was North Carolina.
In August 1788, North Carolina's ratifying convention voted to stay out of the Union until it was certain that a Bill of Rights would be added to the Constitution. Five of the eleven states that had ratified the Constitution earlier did so because of promises that the document would be amended to include guarantees of individual liberties. North Carolina waited until the newly formed Congress actually proposed a Bill of Rights to the states before it voted in November to ratify the Constitution (Kaminski in Gitelson 1991:25).
This Bill of Rights, a term usually applied to the first ten amendments, which were added to the Constitution in 1791, guarantee the fundamental liberties of citizens such as freedom of religion, speech press, the right to bear arms, the right to a speedy and public trial and so on. Just why no protection of this kind was specified in the original Constitution is unclear. Most historians argue that the framers simply felt that a listing of rights and liberties was unnecessary. "The federal government was to have only the powers granted to it, and the Constitution did not give the new government any power to infringe on the people's liberties" (Gitelson 1991:78, see also Hamilton 1954: 194). Others call this "the one great tactical miscalculation of the Convention" (Friedrich 1954: lv). Furthermore the Federalists "also claimed that a Bill of Rights was not needed since eight states already had such bills in their state constitutions" (Remy 1987: 54). Again others argue that a Bill of Rights was left out because of lack of time, there was no time to argue about such things. However, at least six of the states felt it necessary to have such Amendments in the Constitution and so the Federalists promised to add a Bill of Rights to the Constitution later on.
To fulfill the promises made during the ratification, James Madison introduced a set of amendments during the first session of Congress. Twelve amendments were approved by Congress and ten of them were ratified by the states in 1791. These first ten Amendments came to be known as the Bill of Rights (Remy 1987:55).
2.1. How the Constitution can be changed - the amendment process
The Constitution of the United States of America can be described as a "living document" because its Framers wrote it so that it could be changed to meet future conditions. However, the Framers did not make amending the Constitution easy. Article V deals with this procedure that requires approval of state and national governments. The history of the past two centuries shows the difficulty of the amendment process: more than six thousand constitutional amendments have been proposed in Congress but only twenty-six have passed.
There are two ways of proposing an amendment: by a two-third majority of both houses of Congress or by a national convention called by Congress at the request of two-thirds of the states (see also figure 2.1 in Gitelson 1991: 27). This proposal is the first step in the amendment process. The first method is the one that has been used so far. Dozens of proposals are introduced in Congress every year. In the last few years the topics of the proposals have been differing widely from the ones that had been ratified until 1971. Putting limits on income taxes, limit the terms of members of Congress or giving states complete control over oil deposits are just few of the issues Congress had to deal with. A national daily newspaper in Hungary even reports that George W. Bush would support the idea of having an amendment that forbids the marriage of people belonging to the same sex (see Szombathy 2004:20). Such an amendment would really be at odds with the rest of the document. None of these proposals have been approved by Congress so they never got further than the first step of the amendment process.
The proposed amendments must be ratified by either three-fourths of the sates legislatures or by conventions in three-fourths of the states. This is the second step. Congress decides which of these two methods shall be used and until which date the states will have to ratify an amendment. Normally a proposed amendment will not go into effect unless it is ratified within seven years.
It is an interesting question why only twenty-six amendments have been ratified in the last two-hundred years. The two-third majority for the proposal and the three-fourths majority for the ratification is clearly a significant majority that is difficult to achieve. Furthermore, it involves the development of public opinion in favor of the amendment and it often takes a long time to achieve the majorities requested in both national and state level. Therefore it is extraordinary difficult to amend the Constitution and once an amendment has been ratified it is equally difficult to remove. As Kathleen M. Sullivan remarks; the Constitution "should be amended sparingly, not used as a chip in short-run political games" (Sullivan 1997: 62). It should not be politicized, or as "Justice Oliver Wendell Holmes, Jr., once wrote, `a constitution is not meant to embody a particular economic theory´" (Sullivan 1997: 64). Therefore the original intention of the Framers, to make the amendment process difficult was a foresighted policy that fortunately helped to keep short-term politics out of the Constitution.
2.1.1. ERA as an example for amending the Constitution
The Equal Rights Amendment is an excellent example to show how difficult it is to make the aforementioned two steps to amend the Constitution. The ERA would have made unconstitutional any laws that grant one sex different rights than the other. It has never been ratified. As already mentioned the amendment process requires large majorities and to fulfill the demand of Article V, it is often necessary to convince masses and change people's mind. The central language of the amendment states: "Equality of rights under the law shall not be denied or abridged by the United States of any state on account of sex."
The first version of ERA was introduced unsuccessfully in the twenties of the last century and reintroduced each year in different forms for the following forty-nine years. During this time such amendments had little support. However, the civil rights movement during the sixties gave the Equal Rights Amendment supporters new hope. By the early 1970´s many religious, labor and other groups supported the ERA, so that in 1972 it received the needed two-thirds majority of both houses, including the votes of all but eight senators. It was sent to the State legislatures for ratification. Although the supporter's campaign, the amendment was never ratified. A strong opposition to the ERA had developed. A group called "Stop-ERA", founded by Phyllis Schlafly, changed peoples mind about the amendment. He alleged that the ERA would force women to take on roles normally reserved for men and that equal rights meant women would give up the "privileges" of womanhood. Thanks to the persuasiveness of the Stop ERA group, the required majority for ratification was never achieved, although Congress extended the deadline for ratification until 1982 so the States had plenty of time to think about the question.
 The process of removal is basically the same like the one of amending the Constitution. Example: the Twenty-first Amendment removes the Eighteenth.
 The Eighteenth and Twenty-first Amendment are exceptions.
 see also 2.1. How the Constitution can be changed - The Amendment Process. It mentions that a proposed amendment normally does not go into effect unless it is ratified within seven years.
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- Martin Luther University – Institut für Anglistik und Amerikanistik
- Difficulty Amendment Process Constitution United States America Freedom Speech American Past Present