Faculty, staff and students at Appalachian State University take the opportunity each year during the week of Sept. 17 to engage our campus community in discussions about the U.S. Constitution, its history and its meaning in today’s world.
Join us for a series of events and educational opportunities:
In honor of the U.S. Constitution’s 233rd birthday, Appalachian State University’s Department of Government and Justice Studies presents a Constitution question-and-answer video featuring the university’s pre-law faculty: Dr. Paul Lucas, assistant professor; Dr. Kirstin Morgan, assistant professor; and Dr. Marian Williams, professor. The Q&A session is hosted by Dr. Phillip Ardoin, department chair.
Dr. Phillip Ardoin: Hello, everyone. Welcome to Appalachian State University and the Department of Government and Justice Studies' 2020 celebration of the U.S. Constitution. We have three exceptional guests here for us today to answer some of your questions about the Constitution and then discuss the Constitution a bit more. So let me go ahead and let our guests introduce themselves. Dr. Williams?
Dr. Marian Williams: Hi, I am Dr. Marian Williams. I am a faculty member, obviously, in the Department of Government and Justice Studies. I'm currently teaching constitutional law and, next semester, I'll be teaching civil rights and liberties and those are basically my two most favorite classes to teach. I like talking about the Constitution, so I'm happy to be here.
PA: Dr. Lucas?
Dr. Paul Lucas: Hey, thanks for joining us. I'm Dr. Paul Lucas. I'm an assistant professor here in the Department of Government and Justice Studies. I teach courses relating to the court system as well as problem-solving courts and punishment and sentencing, and I have a background working in particular problem-solving courts as well.
PA: Dr. Morgan?
Dr. Kirstin Morgan: Hi, I'm Dr. Kirstin Morgan. I'm also an assistant professor here in Government and Justice Studies. I also teach a lot of classes on courts with a particular focus on juvenile justice, and I have a lot of background studying court reforms.
PA: Got it. I forgot to introduce myself. I'm Dr. Phillip Ardoin and I'm chair of the Department of Government and Justice Studies. I'm going to start off and ask Dr. Williams to answer our first question, and that is: What's the difference between the Declaration of Independence, the U.S. Constitution and the Bill of Rights?
MW: OK, well, the Declaration of Independence was ratified July 4th, 1776, to declare our independence from Britain, and it basically started the American Revolutionary War. It really has nothing to do with the Constitution or the Bill of Rights; it just essentially created our country for purposes of the war and converted our colonies to states in order to fight the Revolutionary War.
MW: After the Revolutionary War was over in 1783, we had a number of proposals to try to create a new government, but ultimately, our U.S. Constitution was ratified in 1789, and it was the blueprint of our government, the structure of our federal government, our three branches of government, the roles of the states in a federal system of government, and essentially, creating the federal government from the ground up.
MW: Our Bill of Rights was not ratified until 1791 and it contains the first 10 amendments to the U.S. Constitution and those were the results of ant-federalists — basically, individuals who didn't support the federal U.S. Constitution because they felt that the U.S. Constitution did not provide enough individual rights for citizens — and so as a compromise to get their acceptance of the U.S. Constitution, they agreed to help support the ratification of the Constitution if a Bill of Rights was ultimately added, and so James Madison essentially wrote the Bill of Rights, had the states ratify them, and they were in place in 1791.
PA: Thank you. Next question is: Have the first 10 amendments to the U.S. Constitution, known as the Bill of Rights, always been applicable to state governments and state court cases? Dr. Lucas?
PL: The short answer to that is no, they have not. As Dr. Williams was saying, the Bill of Rights, which was originally established in 1791 was a set of restrictions on federal power, not on individual state power, so the framers of the Constitution saw no need at that time to restrict the power of individual state governments through the federal Bill of Rights. Rather, they intended each state to create their own constitution on their own accord. This seemed to work fine until the era of reconstruction, which followed the Civil War.
PL: Essentially, after the Civil War, the federal government realized that state citizens need to have the same protections from their state governments as they were granted from the federal government, so as a result, the 14th Amendment was created to safeguard citizens from state tyranny. The due process clause within the 14th Amendment specifically forbids states from denying citizens due process of law or equal protection of the law.
PL: Now, importantly, the due process clause found in the 14th Amendment is identical to the due process clause found within the Fifth Amendment, so additionally, the equal protection clause, which is also found in the 14th Amendment, precludes states from making unequal, arbitrary and different distinctions between citizens and people within those states. Therefore, while the original Bill of Rights pertains solely to the federal government in federal cases, through the passage of the 14th Amendment, the federal Bill of Rights now applies to all citizens in each state within the United States.
PA: Thank you, Dr. Lucas. Next question is: Can the Supreme Court hear any case it wants? Dr. Williams?
MW: Yes and no. Technically, the U.S. Supreme Court is a federal appellate court and it can only have or hear cases dealing with the federal law and the U.S. Constitution, and so when we talk about the U.S. Supreme Court being the highest court in the land, it is simply the highest court dealing with those particular topics. Within those particular topics, the U.S. Supreme Court exercises immense discretion in choosing the cases at which it wishes to hear every term. On appeal and issues of review for the U.S. Supreme Court, every term the U.S. court gets upwards of 7,000, 8,000 requests for review, but every term, the U.S. Supreme Court always schedules arguments in about 80 of those cases, not 80%, 80 of those cases. So technically, the U.S. Supreme Court has vast discretion in terms of the cases that it chooses, but it is limited in jurisdiction to cases involving federal law and the U.S. Constitution.
PA: Thank you. What recourse do you have if you believe one of your constitutional rights has been violated? Dr. Morgan?
KM: Yeah, so really broadly, you have to take your case to court and it's a civil matter, not criminal, so you're going to go to a civil court. Usually, we're talking about a federal court, but sometimes, depending on the right that's been violated at the state level, you'll go through state courts first. You can hire an attorney, you can try to get someone to represent you for free as well. There are some organizations out there which are particularly focused on providing representation in civil rights cases, like the American Civil Liberties Union, and they may be willing to take your case through the court system.
KM: If you take your case to court, the Supreme Court has determined that there's two challenges that must be met to assert that some action has to be taken based on that violation. First, as the plaintiff, you have to identify the specific constitutional right which you're saying has been deprived. You can't just say "I think my rights have been violated broadly.” You have to identify was it something specific about your First Amendment right, freedom of speech, or Second Amendment right, to bear arms.
KM: Then you have to prove or state that the individual who deprived you of your right was acting as an agent of the government. This could include if that agent was abusing their power or acting outside of their lawful bounds, but they were acting as an agent of the government. You have to assert that as well. This also can sometimes cover private citizens working in conjunction with a government agency.
KM: Once you bring your case and you've stated those two things, the court is going to hear your case and decide if a right has been violated and they're also going to then decide, if it has, what the proper course of action, which in most cases is monetary damages because you can't bring the case until the right has been violated. For some people, this can also involve, though, a change in treatment, particularly for prisoners who are asserting that some of their rights have been violated in prison. It might result in their treatment being changed.
PA: Thank you. Does the Constitution prevent police from searching my apartment, searching my car, beating me up? Dr. Williams?
MW: No. This is a question I often get in my criminal procedure class. When students ask me, "Oh, I had a friend who was stopped by police," or, "We were having a party and the police showed up. Can they do this?" Now, the term you have to focus on is the word "can." Yes, police can do all of these things. They can, as we've seen, engage in deadly force and other types of force. They can search apartments, they can search cars, they can sick their police dogs on you. The question is: Is that behavior legal?
MW: The court system is responsible for determining if that type of action is legal and the U.S. Supreme Court has basically looked at the Fourth Amendment, that this amendment, the 14th Amendment due process clause, et cetera, to determine whether a lot of these police activities are, in fact, constitutional. And so, despite the fact that, for instance, the Fourth Amendment says that "No warrant shall issue but upon probable cause," the U.S. Supreme Court has designated certain types of searches and seizures can take place absent probable cause and absent a warrant, and so, in fact, the vast majority of arrests are made without a warrant and most searches and seizures are made without a warrant. And so when people ask "Can the police do this?" the answer is: It depends and it all depends on the circumstances of a particular incident and how the U.S. Supreme Court has ruled on that particular type of case and whether or not police can get away with constitutionally violating your rights.
PA: Thank you. Next, what is qualified immunity? Dr. Morgan?
KM: That's a really great question because this doctrine of qualified immunity has come up a lot in the news recently as we're dealing with issues of police violence. Broadly, qualified immunity was created by the courts to shield government officials or government agents from being held personally liable for constitutional violations unless that violation was what they said was a "clearly established law." The goal of that was to protect government agents when they acted in good faith, right, to provide them some means of like, "I was trying to act in good faith. There wasn't anything clearly established that said I couldn't do this.” So in practice, that means that unless there's a law that addresses the specific situation and a specific violation, neither the government nor the agent is going to be held responsible for any monetary damages. This is important because, again, as we mentioned in an earlier question, you can only bring your case to court after your rights have been violated, and for most folks, then the only remedy is monetary damages.
KM: To overcome this doctrine of qualified immunity, you have to meet a couple of standards. First, you have to find an already existing judicial decision with what they say, substantially similar facts, so again, something that looks pretty much exactly like what your situation looks like. Then before the courts will declare there to be a violation of a constitutional right, they're going to first actually though consider that issue of qualified immunity, and this has created what some have called a "Catch-22," because if cases can't get past that first barrier, right, we never actually create what we call "judicial precedent," so a case that resembles your exact situation, then they just dismiss the case, they don't ever get to the question of was there a violation of your rights, they just say "Nope, qualified immunity, we're done," so we're never creating that precedent; thus, when the second person brings the case, it's still getting dismissed on qualified immunity.
KM: Basically, no precedent equals no clearly established law equals no liability for the government, and as one nonprofit put it, the Institute for Justice says qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before.
PA: Thank you. How can the president send troops into conflicts without Congress declaring war? Dr. Williams?
MW: Yeah, so the Constitution in Article I suggests — doesn't suggest, it explicitly says — that Congress has the power to declare war, whereas Article II discusses how the executive branch of the president is the commander-in-chief of the armed forces, so what we have are two entirely different but similar powers, but what it has been interpreted as is that simply Congress declares war, and once that happens, the president and the executive branch kind of takes over and directs the action of the war. However, as we know, we have seen skirmishes and conflicts, et cetera, in which our military has gone into Afghanistan, or Iraq, or Central America, et cetera, and the questions are asked, "How can the president direct the military to go into these places if Congress hasn't technically declared war on these entities?" Well, the answer is that Congress gives the president the permission to do this.
MW: One of the things that we really don't see and talk about — except for in my constitutional law class, I do talk about this — is that Congress routinely gives some of its powers away to the other branches of government and once it does that, there's no getting that power back, and so for instance, the Patriot Act, which was passed after 9/11 in 2001, gave the president the power to use all necessary inappropriate force to go after individuals, nationalities, countries, groups, terrorist groups, et cetera, that were responsible for the 9/11 attacks. And so once Congress passes laws that give the president the power to do this, Congress simply cannot take that power back without any type of political or legal ramifications. So in essence, Congress has allowed the president to do these and pretty much cannot take that power back from the president.
PA: Has the right to an attorney always been granted by the Constitution to individuals accused of felony offenses at the state level? Dr. Lucas?
PL: Yeah, great question. The right to an attorney, often referred to as the right to counsel, refers to the right of an individual accused of breaking the law to having a lawyer assist in their defense even when the accused is indigent, meaning impoverished and cannot afford to pay their lawyer fees on their own. Now, this right is constitutionally granted through the Sixth Amendment for federal prosecutions. However, it did not include the right to counsel within prosecutions at the state level. It was believed that each state should govern itself, and therefore, each state would be able to grant, if their citizens requested it, the right to counsel as it would have been through the federal Bill of Rights and applied to federal cases. However, the right to counsel was not applied across the board to all state prosecutions for felony offenses until 1963 through the decision of the now-famous court case Gideon v. Wainwright.
PL: If you think about that, 1963 was only 57 years ago, so that means prior to 1963, if you were impoverished and could not afford your own attorney, then you had no constitutional right or basis to counsel during state felony prosecutions. This is not that long ago for a common right and one that I think we are all aware of, whether through TV or other readings for this right to be fully established only 57 years ago. So I think this shows the importance of having a system which allows change, especially when setting judicial precedent to ensure a more just system for all when we're talking about the adjudication process through the courts.
PA: Thank you. When does the right to counsel attach? Dr. Williams?
MW: Well, according to the U.S. Supreme Court, it attaches at "Every critical stage of a proceeding," and what that means depends on how the U.S. Supreme Court wants to interpret that, and so we've seen U.S. Supreme Court cases that have stated ... Well, OK, police interrogations. Miranda v. Arizona said that you have the right to counsel during police interrogations. That's considered custodial interrogation, and as a result, it is an important stage or a critical stage of the proceeding. However, that's not necessarily considered where the right to counsel attaches because people always look at this as a court-related right.
MW: But when we look at things like first appearances and bail hearings, even though those technically could be called "critical stages of proceedings," because a lot of people plead guilty at first appearance, or they have bail decisions that are made without an attorney present in those situations. It is common practice to not have individuals given attorneys then, and so what is happening is that a number of defendants are pleading guilty or they're getting unfavorable bail decisions and more at the early stages of a criminal court case after they'd been arrested, and as a result, they're being deprived of their rights.
MW: We also see the right to counsel attaching any time an individual is given some sort of incarcerated sentence, and so for a lot of misdemeanor defendants who aren't going to be incarcerated, who aren't going to be given jail time will only be given probation, or a fine, or something along those lines — the right to counsel for indigent defendants does not attach for those people. However, it should be said that if you can afford an attorney, you can have one at any stage of the case. It's just that the vast majority of individuals in the criminal justice system are considered indigent for purposes of counsel, and therefore, they need that attorney present at all of these stages, essentially for custodial interrogation onward through their appeal.
PA: Thank you. Last question: Do the rights granted in the Bill of Rights apply to private business? Dr. Morgan?
KM: Yeah. Again, this is one that I hear a lot in my classes, too. The guarantees of the Bill of Rights apply only to actions taken by state and federal governments and their agents. They do not limit what a company or person in the private sector may do in most cases. A great example of this, and you've all probably heard this, where some TV personality or radio host says something that many people find offensive and they lose their job because of it, right, or they lose their TV show, and in those cases, you've also probably seen the inevitable comments, "But you can't. Their First Amendment rights. They can say what they want." Right? We know offensive speech is protected. I'm allowed to say offensive things and the government can't stop me from saying them. However, in those cases, the business that employed that person is perfectly within their rights to fire them. The First Amendment does not protect you from the consequences of your actions if those consequences are enacted by private businesses who employ you.
KM: Now, there are broadly four exceptions to this. First, if the government is your employer, you do have some more free speech protections to not lose your job with the government, not unlimited, but generally, if you're addressing a public concern and it's clear you're doing it as a private citizen rather than a government employee, that speech is still protected. They can't fire you as the government for that. You can also use your free speech rights to do things like collective bargaining, right? So thinking how unions work to try to get better benefits or pay for their employees, that's protected. They can't fire you for that, so that's another way where the Bill of Rights does provide some protections from private pushback.
KM: However, if an employer's actions only impact a certain class of people, so what we call "protected classes." Protected classes include things like race, religion, national origin, disability, age and sex. If they only impact one of those groups specifically and don't impact everyone equally, if they don't apply the same standards, that is discrimination, right? That's a different kind of when they're going after you. That's not, "Hey, I can go after you because I don't have to apply the Bill of Rights.” You're discriminating.
KM: Finally, states can also make laws that go further than the Bill of Rights, so do be aware they can grant you protections from employers, just that the federal Bill of Rights does not technically apply to private businesses. But for example, California has provided, as a state, a lot of extra protections. They have a law that prohibits employers from discriminating against employees based on their political activities or affiliation outside of work, so that means you can't maybe put all your political stuff up in your office, but whatever you're doing on your own time, they can't fire you for that. Not every state provides those protections, though. There are states where they can require you to remove a bumper sticker or take something off your social media or you lose your job, and you're not protected from that, so just remember, the Bill of Rights only protects you broadly from state and federal government actions with a few exceptions.
PA: Well, thank you, Dr. Williams, Dr. Morgan and Dr. Lucas for answering some of our questions about the U.S. Constitution. We have a few minutes left and what I'd like to end on is maybe each of you could share with us a fun fact or issue about the Constitution that you might want to share with us. So we'll go ahead and start with Dr. Lucas.
PL: Yeah, so it took 60 separate ballots for the delegates to finally accept the Electoral College — something that has been in the news and has been the topic of recent debate. So, proponents believe that it was the best compromise between those who wanted to choose the president via direct popular vote and those who wanted a congressional vote, and since then, there have been more than 500 propositions to reform or eliminate the Electoral College, and certainly many more possibly in the near future.
PA: Dr. Williams?
MW: What I think is interesting is that our original Bill of Rights that were proposed were actually 12 instead of 10 Amendments. Ultimately, the first two were not ratified, so numbers three through 12 were actually ratified. The original First Amendment dealt with congressional representation, and the original Second Amendment dealt with congressional pay. Ultimately, our 27th Amendment, our last one that was ratified in 1992, was the original Second Amendment dealing with congressional pay. And so what I like to point out is that when students talk about free speech and press and the religion clauses of the First Amendment as being the most important in our Constitution and Bill of Rights, I like to remind them that it was actually number three in the original proposal, so they're probably not as important as people thought they were.
PA: Thank you. Dr. Morgan?
KM: Yeah, so kind of related to that issue, what's interesting, I always found, is that our Constitution is the shortest governing document of any nation today. It still is. I mean, we've added to it since it started, as Dr. Williams was just talking about, and it's still the shortest. It has seven articles, 27 amendments and that's it. It's also the oldest. Norway was second. They had theirs codified in 1814, but we were the first to do it and we've still kept it pretty short, which is really interesting when you think about other nations have added a lot more to their constitutions over time or started with a much larger constitution.
PA: I'll end up with … I've one fun fact that I like to always remind my students in American government is when we talk about the founding fathers and the Philadelphia Convention, I think it's important for us to remember that those delegates were not sent to Philadelphia to write a constitution. They were sent to Philadelphia to actually amend the Articles of Confederation, that initial sort of Federalists or Confederation loose/weak national government. That's one reason why they decided not to speak about what they were doing during the convention, because they knew that if their state legislators found out that they had scrapped the Articles of Confederation in creating this new government, which was going to be a new national government which was going to be much more powerful, they probably would have called them back.
PA: Some people say that the Philadelphia Convention was actually a rebellion or a revolt, and there are still some groups out there that might question the legitimacy of our U.S. Constitution, but we ratified it and it is our Constitution. We're very proud of it. It's served us well for over 230 years and let's hope it serves us well for at least another 230 years.
KM: We'll hope.
PA: Thank you all for participating in this and happy Constitution to all of you. Bye-bye.
MW: Thank you. Bye-bye.
App State Examines and Celebrates the United States Constitution
We the people...
Two hundred and thirty-three years ago, the 39 delegates to the Constitutional Convention met in Philadelphia's Independence Hall to sign the United States Constitution. Today, educational institutions across the country recognize this event on and around Sept. 17 with educational events and celebrations.
Signed into law in 2004, Constitution and Citizenship Day commemorates the signing of the U.S. Constitution on Sept. 17, 1787, and also recognizes “all who, by coming of age or naturalization, have become citizens.” Government officials are encouraged to display the flag of the United States on government buildings to commemorate Constitution and Citizenship Day, and the people of the United States are invited to observe the day “in schools and churches, or other suitable places, with appropriate ceremonies.”
In 2005, Congress determined that educational institutions that receive federal funds for a given year must hold an educational program on the U.S. Constitution on Sept. 17 of that year for the students they serve.
Faculty, staff and students at Appalachian have taken this opportunity to plan several events during the week of Sept. 17 to engage our campus community in discussions about the U.S. Constitution, its history and its meaning in today’s world.
As the premier public undergraduate institution in the state of North Carolina, Appalachian State University prepares students to lead purposeful lives as global citizens who understand and engage their responsibilities in creating a sustainable future for all. The Appalachian Experience promotes a spirit of inclusion that brings people together in inspiring ways to acquire and create knowledge, to grow holistically, to act with passion and determination, and to embrace diversity and difference. Located in the Blue Ridge Mountains, Appalachian is one of 17 campuses in the University of North Carolina System. Appalachian enrolls more than 20,000 students, has a low student-to-faculty ratio and offers more than 150 undergraduate and graduate majors.