Justice under stress
''The Constitution does work. . . . The people who drafted it were wise enough to see that they were writing for an unlimited and unknown future of a new nation. (The Constitution) is not a traffic code.''
--Potter Stewart, recently retired associate justice of the US Supreme Court.
''It (the Constitution) still works. But it has been bent and interpreted in ways never dreamed of by its framers. The premise of the Founding Fathers was that government does nothing well.''
--US Rep. Philip Crane (R) of Illinois.
''The freedom of speech provision was written when there was hardly any speech. We are heading for a period when the problems of freedom of information and access to information will grow. . . . (It will be) a war for control of men's minds through access in the home. It could make World War II look pale.''
--Maurice B. Mitchell, educator, publisher, former member of US Civil Rights Commission.
The US Constitution--the oldest document of its kind among Western democracies--is once again being rigorously tested.
But this is not startling. Since its framing, it has been periodically tried--and sometimes battered. In recent decades, testing times have come in almost continuous waves. President Franklin D. Roosevelt's ''packing'' of the US Supreme Court in the 1940s, the McCarthy-era communist trials of the 1950s, the civil rights-related cases of the 1960s, the Pentagon papers case and Watergate affair of the 1970s all brought the nation to the brink of constitutional crisis , in which the validity of the law of the land was being called into serious question. But in each instance, the supreme law of the land--and its protecting Bill of Rights--met the challenge. An American system--based on justice for the individual and fastened with religious underpinnings--stood strong and, usually, proud.
But the system is still under constant challenge--not only from conflicting social and political currents but from emerging technology and the forces of global interdependence. A backlash that might alter the Constitution
Today's constitutional issues are many, varied--and often complex. Among those of immediate concern:
* President Ronald Reagan has stirred a hornets' nest of constitutional questions by suggesting that tuition tax credits be given to parents of children in private schools. If Congress approves this plan, a Supreme Court test is almost certain on the issue, on grounds that the government is favoring religion.
The high tribunal has already agreed to hear arguments on the thorny issue of tax exemptions for private schools that discriminate on the basis of race. Bob Jones University of South Carolina bars interracial dating. And the Goldsboro Christian Schools Inc. of North Carolina doesn't register blacks. For these reasons, both have been denied tax-exempt status by the Internal Revenue Service. A US Court of Appeals has refused to negate this order. The Supreme Court may settle the matter in the fall with a ruling that could have far-reaching civil rights and church-state implications.
A backlash against what some see as a quarter-century of ''too liberal'' court decisions now is embodied in a legislative thrust--led by US Sen. Jesse Helms--that would strip federal judges of the power to hear cases in the controversial areas of abortion, school prayer, and busing for purposes of school desegregation. If passed, these proposals would, in effect, change the Constitution without amending it. Some see a major battle brewing over the doctrine of separation of powers--setting up a clash between congressional and judicial prerogatives.
* Meanwhile, the court is already considering--or is likely to grapple with--a spate of issues involving book banning and control of pornographic materials. For example, it will soon decide on a case involving the suburban New York school district of Island Trees, where board members banished several books they deemed ''objectionable'' and ''offensive'' from the school library. Students challenged the move in court. A district judge dismissed the suit. But an appeals panel ordered a trial to probe the motivations of the board. With several similar cases across the nation--and widely differing decisions coming out of them--the US high court has agreed to referee.
And in the area of child pornography, the high court must decide whether a state can ban the sale of sexual materials involving children--even though they may not be considered legally obscene. The case comes on appeal by New York prosecutors who want to reinstate the conviction of an adult bookstore owner who sold films depicting sexual acts by young boys. New York is one of 21 states trying to combat child abuse by barring dissemination of material depicting children in this manner.
A Miami referendum, slated for November's ballot, will let voters decide if the city should permit pornographic films on the local cable television system. Observers say that if Miami decides in favor of censorship, a challenge is almost inevitable, based on the First Amendment freedom-of-speech guarantee.
* Two powerful balance-the-budget pushes are afoot. One calls for a constitutional convention--which would be the first in the nation's history--to consider an amendment forcing the federal government to match spending with income. This initiative to hold such a convention, which is being pushed by the National Taxpayers Union, is three states short of approval. At the same time, the National Tax-Limitation Committee (NTLC) is urging Congress to adopt a balanced budget amendment which would need ratification by 35 states. President Reagan says he likes the idea. Why change the Constitution?
Civil rights advocates insist that some of these issues are strong indications that the Bill of Rights (the Constitution's first 10 amendments) is under the greatest state of siege in the history of the American republic. They lay the blame at the door of staunch political conservatives, particularly those from the ''radical right,'' who seek to recarve the Constitution through amending it, pressuring Congress and the President to limit it, hampering the courts' ability to interpret it, and swaying public opinion about it.
On the other hand, the liberal left and those who advocate broad-sweeping socially oriented interpretations of the highest law of the land are seared by conservative critics. These critics blame liberals for underscoring individual freedoms to the detriment of the whole of society; for a soft stance toward violent crime; and for pandering to forces that many conservatives say tend to undermine morality and tear asunder family structure.
To these voices is added a relatively new and highly vocal one--that of the New Right, including religious fundamentalists--who insist that their evangelical calling includes reshaping the Constitution. A thicket of constitutional questions Hotly (and often emotionally) contested constitutional questions now facing Congress, the courts, the President, and American society in general, come under these headings:
* Criminal justice. A law-and-order bent Reagan administration insists that ''due process'' has in many cases become undue. In the face of rising crime statistics, it would, among other things, reinstate the federal death penalty, sharply limit the Fourth Amendment ''exclusionary'' rule (which sets aside evidence improperly obtained), and deny bail to persons who are thought to be dangerous. Opponents, including the American Civil Liberties Union, insist that the line on guaranteeing individual freedoms must be held. Their contention: If the liberty of one person can be abridged, then so can the liberty of anybody.
* Church and state. Parents rights vs. the state, prayer in schools, and tax credits and public funds for parochial schools are at issue. A particularly thorny question is whether so-called religious ''cults'' should be accorded First Amendment protections. Critics claim these cults exert a form of mind control over some of their youthful members. So far, the courts have been loathe to limit cult activities unless willful coercion and illegal procedures are apparent.
Among the advocates for religious liberty--but also for retaining the First Amendment's so-called ''wall'' between church and state--is Americans United for Separation of Church and State. Americans United holds that as long as government doesn't intrude upon religion (and vice versa), freedom of faith is assured. The ''Christian Right,'' which includes political groups such as Christian Voice and Moral Majority, takes an opposite stance. The latter hold that the schools and public sector ought to play a vital role in the teaching of religious values. These should not be confined to the family and church or synagogue (as ''separation'' advocates insist).
* Press freedoms. There are two thrusts on the federal level. One series of bills aims to restrict the federal Freedom of Information Act through which news media have been able to gain legal access to restricted government documents and policy papers. Another would make it a crime to reveal the identity of a covert CIA or FBI agent.
Expectedly, these moves are being vigorously fought by the media. But advocates say they are needed to shore up national security. And some admit they are aimed mainly at the big newspapers and networks. However, opponents--including the Reporters Committee for Freedom of the Press--insist that such legislation would limit the public's right to know and constitute a major blow to the First Amendment press freedoms. Also, some see a negative ''trickle down'' effect on local media, which are periodically engaged in battles over access to municipal meetings and other sources of community information.
* Human life debate. Perhaps there is no more emotionally fraught battle than the one over the issue of when human life starts and whether women should be allowed to make up their own minds on abortion. Right-to-lifers insist that human existence starts at the moment of conception. They consider abortion an affront to moral and church law and indicative of a promiscuous society that panders to the loose ways of young people. And some would strip the lower courts of jurisdiction in these matters. Pro-choice advocates argue that the matter should not be legislated or subject to adjudication--that it is of private concern and should be left up to individual conscience. And they oppose recent court decisions which deny public abortion funds to the poor.
The debate over conditions affecting human life continues--albeit in somewhat different form--long after birth. Much of the discussion centers on the question of individual choice: whether or not to accept certain forms of medication (vaccinations or doses of fluoride in drinking water, for example) and whether to employ extraordinary medical treatment to attempt to prolong human life.
* School busing. A decade ago the transportation of students for desegregation purposes was a linchpin of the civil right movement in the US. Now , the Reagan administration has taken the view that busing doesn't work. Congressional bills in the hopper would strip the lower courts of the power to use busing as a remedy for segregation. And the US Supreme Court is reviewing cases in Los Angeles and Seattle where busing has been suspended by referendums. Consequently, it appears that many school busing plans may be headed for the junk heap. A constitutional tug of war
The constitutional issues are likely to linger, however. In April, for example a posse of former US attorneys general and solicitors general (representing both Republican and Democratic administrations) signed a letter denouncing the anti-busing legislation as unconstitutional. They were unanimous in their view that Congress may not restrict the power of the federal courts to enforce the landmark desegregation ruling, Brown v. Board of Education (1954) which held that ''separate educational facilities are inherently unequal'' and therefore unconstitutional.
The US, then, is currently engaged in a tug of war between liberals and conservatives, between strict and loose constructionists, between those who advocate ''less'' government and those who see the federal establishment as a benevolent protector of minorities and have-nots. And another, even more long-standing issue has once again come to the fore: namely, what is the proper split of powers between the federal and state governments? Is the Constitution still relevant?
Underlying these questions is a more fundamental one. Can a Constitution drawn up almost two centuries ago work in today's complex technological society?
David Bazelon, senior circuit judge of the United States Court of Appeals for the District of Columbia succinctly pinpoints the problem of ''relevance'' in a paper prepared for the May-June issue of the magazine of the Center for the Study of Democratic Institutions.
Judge Bazelon explains that the First Amendment protection of speech and press was written long before television provided a forum which ''at least for now, combines enormous range and influence with limited access. . . .''
The Fourth Amendment guarantee against unreasonable searches and seizures was written before the automobile redefined our sense of personal space and bugging devices and telescopic lens cameras that made that space ever so much more tentative.''
The Seventh Amendment guarantee to a jury in federal civil cases was written before our technological society spawned lawsuits with issues so complex that even experts despair of understanding them completely.''
The Eighth Amendment prohibition of cruel and unusual punishments was written just as prisons first appeared on the scene as a new and revolutionary device for treating convicted criminals humanely and before those same prisons turned into dumping grounds for the refuse of a terrified society.''
Judge Bazelon calls for ''a systematic study of the entire range of issues facing us in the task of interpreting, or possibly revising, the Constitution.''
At least two such studies are already under way--the American Political Science Association's ''Project 87,'' which is now trying to identify the most critical issues facing the Constitution today; and the American Enterprise Institute's ongoing project on the role of the Constitution.
Next: Separation of church and state: A porus wall?
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