Constitutional Issues

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Constitutional Issues

The Palestinian National Authority,

Palestine Constitution Committee

Headed by Dr Nabeel A. Shaath,

Minster of Planning and international Cooperation

Constitutional Issues

Constitutions in Modern World


The General Nature of Constitutional Law

Constitution and Constitutional Government.


A Statement of National Ideals

Formalizes the Structure of Government

Establishes the Legitimacy of Government


 Civil Liberties and Civil Rights

Collected by Dr Kamal Astal

Associate Professor of Political Science

Al-Azhar University of Gaza

Palestine Constitution Committee’s Member

Head of Peace Center for Community Training and Research (PEACE)

POBox (7039)-Khan Younis, Tel: 2051966, Telfax: 2054966, Mobile: 059843850


December 2002


The problem of establishing and limiting power exists in every political system. Government and the people both must have certain powers and rights. But their activities must also be limited to keep them form encroaching on the rights of others. The choices involved in determining a fair balance between government powers and civil liberties, between the welfare of the majority and the rights of minority, are not easy ones. For example. If air traffic controllers want higher wages. Do they have the rights to strike and inconvenience thousands of people until the federal government offers them a satisfactory raise? If Congress votes “legislative vetoes “into bills as a way to supervise the executive branch. Does the Supreme Court have the rights to declare them unconstitutional? If religious parents believe that children should pray in public schools, does this view conflict with the separation of church and state?

            These questions raise problems of rights and political power, and some of these problems are admittedly more difficult than others. Most of us would probably agree that a Supreme Court decision is law even if Congress doesn’t like it. We will probably disagree. Though, on the right of air traffic controllers to strike. It can be argues that the controllers should not be denied the right to ask for higher wages simply because they perform a public service. Yet a case can also be made that no one, including overworked air traffic controllers, has the right to deny the people such an important element of public safety. The question of whether children should pray in public school is also difficult. Which prayers would suit all religions? What about children who do not wish to pray at all?

            How does society determine how to limit political power and how to balance, in the most equitable fashion, the needs of the majority with the rights of individuals and minorities? Whereas decisions about who is right and who is wrong in specific cases such as those mentioned must always be made by the decision makers in office at a particular time, it is evident that governments need some guidelines in determining where this balance should fall. These guidelines are provided by traditions, by statutes, and by national constitutions, which lay down the basic ground rules for governing society.1 

Constitutions in Modern World

In common usage, we think of a constitution as a written document that sets forth the fundamental rules by which a society is governed. Political scientists. Though define the word more broadly: A constitution is that set of rules and customs, either written. Legally established or extralegal, by which a government conducts its affairs .2 by this definition. All nations have constitution since each nation operates according to some set of rules. Britain has no written constitution. But custom, law, precedent and tradition are so strong that the British government considers itself bound by practices that have developed over the centuries. Thus Britain is governed by a constitution.3

            In the modern world, nearly every nation has a written constitution, which establishes the forms, institutions, and limits of government and sets guidelines for balancing minority and majority interests. The Constitution of the United States is very short. It is limited to seven articles, most of which have to do which establishing the powers of each branch of government. And twenty-six amendments. In contrast, most of the nations that have won; independence since World Ware II have adopted constitutions of remarkable detail.4 The post- war Japanese constitution, which was drafted by the U.S military government after World War II, contain no less than forty separate articles outlining the rights and duties of the people alone.

          Among the individual rights enumerated are the rights to productive employment, a decent standard of living, and social welfare benefits —        a sharp contrast to the values of  “ justice, domestic tranquility, common defense, general welfare, and liberty ‎” outlined in the American Preamble. Article I of the German constitution (the Basic Law) also enumerates a long list of rights. These include not only fundamental rights, such as legal and political freedoms, but also a number of social and economic safeguards, including state supervision of the educational system and public control of the economy.

            If an established nation such as Britain is able to get by with no written constitution per se, and if another, such as the United States, manages to function with a very general constitution, why has almost every recently established nation (with the exception of Israel) found it necessary to commit itself to not only a written constitution but a very detailed constitution at that?


Most modern nations adopt written constitutions for the same reason that ancient Mesopotamian lawgiver Hammurabi codified the laws of Babylon: to establish a supreme law of the land. Constitutions state the fundamental laws of society and are not meant to be easily revised. They stand as a yardstick by which any activities of the government or the people are to be measured .5 A legislature can pall a law one year and repeat it the next, but basic constitutional provisions cannot be amended so easily.6 In Sweden , constitutional amendments must be passed by tow successive legislatures, with a general election  in  between. In the United States, amending the Constitution is even more difficult. The most common procedure is to secure the approval of two – thirds of both the Senate and the House of Representatives, and then obtains ratification by three – fourths of the state legislatures. The fact that our constitution has been amended only sixteen times since the adoption of the bill of Rights in 1791 illustrates how difficult the amendment procedure is. The Equal Rights Amendment failed to pall in 1983, for example, because fewer than three – fourths of the state legislatures voted to ratify it.

            The General Nature of Constitutional Law.  Since constitutions, no matter how detailed, cannot provide specifically for every legal or administrative problem that may arise, they must be fairly general in nature. The United States Constitution says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof “in Amendment I of the Bill of Rights. This is a very general statement. The way it will be interpreted in a specific case (such as the question of prayer in school or perhaps a satanic cult that believes that animal sacrifice or illegal drugs are necessary for the practice of their religion) must depend on the decision makers in power at time the case arises.

          Constitution law must be interpreted to be applied to specific incidents. Who is given the immense authority to decide what the general wording of a constitution means? In some thirty nations, including the United States, this responsibility belongs to the highest national court. The procedure by which the court rules on the constitutionality of a government act and declares null and void those acts it considers unconstitutional is known as judicial review.7 the power of judicial review is a controversial one. Many critics have accused the Supreme Court (most notably when Earl Warren was chief justice form 1953 to 1969) of imposing a personal philosophy as the law of the land. To a large extent, a constitution is indeed what interpreters say it is is, but the possibility of too subjective an interpretation seems to be a necessary risk taken by any nation that has one.8

            The courts do not always interpret a constitution in a consistent fashion. In the United States, the Warren Court best exemplified the type of judicial philosophy generally known as “judicial activism.” This does not necessarily mean “liberal.” It refers to a judge’s willingness to strike down certain laws and practices ion order to guarantee citizens’ rights. The opposite is that of “judicial restraint” ‏‏‏‏- a generalization that describes a Supreme Court that sees its job not as legislating but as following the lead of Congress. Justices Oliver Wendell Holmes and Felix Frankfurter, who counseled the Court on judicial restraint, were regarded by many as great liberals.

            Likewise, Germany’s Federal Constitutional Court is no stranger to controversy. Modeled after the U.S Supreme Court – except that it has sixteen justices the German court is mandated to make sure all laws conform to Basic Law. In 1975, the German court  found that a law permitting abortions conflicted with the strong right – to – life provisions of the Basic Law—which had been put in to repudiate the horrors of the Nazi era – and declared abortion unconstitutional . In 1979, the Federal Constitution Court found there was nothing unconstitutional about “worker codetermination” – that is, employees having nearly the same rights as owners and managers in determining the long- term future of businesses.

            Few nations give their highest court the power rule on the constitutionality of laws. In nations that do not have a clearly established procedure of judicial reviews, this itself makes the final determination of what is constitutional.

         Constitution and Constitutional Government. The meaning of a constitution depends largely on the way in which it is interpreted. Indeed, two separate nations could conceivably adopt the same constitution (with a few variations in wording or language) but have entirely different forms of government and allow their citizens very different rights. What is written in the constitution does not necessarily occur in practice. The Constitution of the Soviet Union set a framework for the nation’s government – a federal system with a bicameral legislature, with executive and administrative powers given to the cabinet like Council of Ministers – and accorded to its citizens along list of democratic rights.9 yet in actuality, the government was controlled by the Communist party, with little authority given to the states or to the legislature, and rights were totally dependent on the interpretation of the leaders in power.

          The government of Canada, Great Britain, and the United States are constitutional government; the government of the Soviet Union was not, although former party Chief Mikhail Gorbachev may have been trying to make it more constitutional. Constitutionalism refers to the degree to which the power of government is limited and individual rights are respected. In a constitutionally governed nation (whether it has a written constitution or not), government is limited by internal institution in such a way that the fundamental rights of citizens – such as freedom of speech, the right to practice one’s religion, and freedom form arbitrary imprisonment– are safeguarded form violation by either government or hostile minorities. In contrast, an authoritarian government is not limited by the guidelines of the constitution. In this government, the individual citizen and minority groups are assured no protection against arbitrary acts of government, in spit of what the constitution may say.


If many nations seem to pay no heed to what is written in their constitutions, why do some nations bother to write a constitution at all? Constitutions fulfill a variety of roles: they provide the symbolic function of putting in writing a statement of national ideals, they formalize the structure of government, and they attempt to justify the government’s right to govern.

            A Statement of National Ideals.   According to the Preamble of the U.S Constitution. Our nation is dedicated to six goals: to form a more perfect union to establish justice, to ensure domestic tranquility, to provide for the common defense, to promote the general welfare, and to secure the blessings of liberty. The Soviet constitution proclaimed the Soviet Union to be a “developed socialist society” dedicated to building a classless utopia. The constitution of the Federal Republic of Germany, seeking to divest the nation of any traces of Nazi rule. States its determination to “serve the peace of the world” and expressly proclaims that no group of people can be stripped of their German citizenship – a reaction to Hitler’s Nuremburg Laws, which declared hundreds of thousands of citizens to be non- citizens.

            Preambles and lists of rights are symbolic statements: they indicate the values, ideas, and goals that seem to best express the spirit of the national political culture. But the value statements in preambles are by nature very general and have no legal force. How are they interpreted? What does the U.S Constitution mean by a “more perfect union,” for example? There is considerable disagreement over this question; in fact debate over the meaning of this term led to the Civil War a century ago. What does the Constitution mean by “establishing justice”? What is justice, and is it the same for all citizens? If American blacks have been denied equal rights for two centuries, does this mean that it is just for them to be given an advantage now in admission to colleges, in hiring practices, or in securing low – rent housing? Or, again what does the Preamble mean by “promoting general welfare”? The question of what the general welfare is and how it is to be balanced against the rights of the individual or of a minority group are almost certain to produce different answers form everyone. Are children who wish to pray formally in school setting a precedent disruptive to the general welfare? Do laws allowing private citizen to purchase handguns like the “Saturday – nights special,” which are not accurate enough to have any legitimate use for hunting or target practice, harm the general welfare, even though the Bill of Rights seems to give citizens the right to bear arms?

            Although constitutions provide a statement of national ideals, the interpretation of these goals and values necessitates an active choice by the decision makers of government.

            Formalizes the Structure of Government.     In addition acting as a symbolic statement of national values, a constitution is also a blueprint. It is a written description of who does what in government, defining the authority and limiting the powers of each branch and providing for regularized channels through which conflict may be resolved. Articles I through III of the U.S. Constitution outline the duties of Congress, the president, and the judiciary. Congress may collect taxes and customs duties but is prohibited form taxing exports. The president is named commander in chief of the armed forces but must have the “advice and consent” of the Senate to conclude treaties. In a system in which there is separation of powers, the constitution divides authority and responsibility among the various branches of government; it also limits the power of each branch. No other constitution uses “checks and balances” like the American one in an elaborate attempt to limit power; most, in fact, specify the unification of power.

            A constitution also outlines the division of power between central and regional governments in a federal state. In a federal system of government, powers and responsibilities are divided between one national government and several regional or state governments. Germany and Australia, like the United States, are federal states. Their constitutions give their central governments control over certain areas of responsibility, such as foreign policy, foreign commerce, and coinage. Thus, the Land of Bavaria in the Federal Republic of Germany may not sign a treaty with Austria; neither may the state of Texas mint its won currency. Whereas certain powers are delegated to the central government, the constitution leaves others to the states. In the U.S. Constitution, this division is a general one; any powers not accorded to the central government are reserved for the states and for the people. Thus, the states traditionally control education, police protection, health and welfare services, and local commerce. Of course, this division of power has become less clear-cut, especially in recent years, as the federal government has taken on a greater share of financing the operations of education, health, welfare, housing, and scores of other services. But in spite of federal control of many of the purse strings, the states still retain predominant control of these powers.

            Establishes the Legitimacy of Government.  A third role of a constitution is to give a government the stamp of legitimacy. Although this function is undeniably symbolic, its practical utility cannot be denied. Many nations in the world community will not even recognize a new state until it has adopted a written constitution; it is a sign of permanence and responsibility.

            Most constitutions were written shortly after revolutionary upheavals, and their purpose was to help establish the new regime’s right to rule. The Articles of Confederation and subsequently the Constitution symbolized American independence by replacing British authority with tangible evidence of a new government. The French constitution of 1791 (which never went onto effect) tried to replace the divine right of Louis XVI with the sovereign right of the people. And the firs Soviet constitution of 1918 established a “dictatorship of the people” to replace tsarist rule. Constitutions proclaim the values of a new regime while also establishing in writing a permanent outline for the organization of government. As a symbolic statement of intentions with a practical outline of structure, a constitution helps to set stamp of legitimacy on a new regime. This is the primary reason why almost every nations, and especially new nations established since World War II, have adopted constitutions almost as soon as they have gained independence.

            Of course, a written constitution is not absolutely necessary for a legitimate, stable regime. Neither Great Britain nor Israel has found it necessary to commit their entire fundamental precepts and laws to writing in one document. Britain’s constitution consists of many documents, such as the Magna Carta, the Petition of Rights, and the Bill of Rights; judicial decisions, which have established precedents of common law; major acts of Parliament; and customs and traditions that have grown over centuries. Israel’s constitution is also an accumulated body of documents and precedents, some of which date back to biblical times.        

            Even in nations that have written constitution, there are countless traditions, customs and laws that are also a part of the constitutional order. For instance, no mention is made of political parties anywhere in the U.S. Constitution, yet our party system is an established part of the American political process; indeed, a change in the party system would very likely change the entire American political structure.10 Judicial precedents and government traditions, too, make up the fundamental laws of society. Thus, the body of constitutional law encompasses a wide variety of documents and traditions in all nations, whether they have “written” or “unwritten” constitutions.


The Adaptability of the Constitution


In 1789, when the American Constitution was adopted, the world was far different from what it is today. The United States was primarily agrarian, needing little in the way of technological services. The communications network was limited to little read newspapers and pamphlets, and mostly to word of mouth. There were no skyscrapers, automobiles, pollution, or internet systems. How can a constitution that was written to fill the needs of such a primitive world be adapted to the highly industrialized, urbanized, crime-ridden society of modern America? A look at the way in which the Constitution has adapted in two major areas of change- the “right to bear arms” in a violent society and the growth of “big government” in the twentieth century—might give some insight into the flexibility of this document.

The Rights to Bear Arms.  In 1789, the United States was a sparsely steeled frontier nation where people often literally had to fight for their lives. Guns were necessary to the settlers’ survival, and the Constitution reflected this requirement. Amendment II of the Bill of Rights (adopted in 1791) guarantees the rights of the citizens to “keep and bear arms.”

Today the United States is no longer sparsely settled: it is highly urbanized. Guns are no longer necessary to the average citizen’s survival; instead, they add fuel to the fire in an already tense and violent society. In recent decades we have witnessed the assassinations of President John F. Kennedy, Dr. Martin Luther King, Jr., and Senator Robert F. Kennedy. President Ronald Reagan and Alabama Governor George Wallace were seriously wounded by would be a assassin. Armed robbery and killings by drug dealers have reached alarming proportions. As a result, many concerned citizens argue that the age of the frontier has long since passed and that it is time to restrict drastically the sales of lethal weapons. Yet opponents of gun-control legislation argue that the Constitution ensures the right of every citizen to purchase and own firearms. Hunters, shopkeepers who find themselves constant victims of armed robberies and those who may feel their persons or property are in constitutional right to pursue a hobby or to protect their very lives will be jeopardized by gun-control legislation.

The “rights to bear arms” case illustrates that two-century-old constitution—at least in its traditional interpretation—may not provide the right answer for all the needs of modern society.11 if gun controls are necessary to limit violence in America (and there is by no means consensus on the issue), can the Constitution be interpreted to allow such legislation be passed? The Constitution is written in Amendment II reads, “a well regulated Militia, being necessary to the security of a Free State< the right of the people to deep and bear Arms, shall not be infringed.” Does this mean that the citizens can own guns privately or that they can own gun for the purpose of maintaining a militia, what we now call the National Guard? Due in large part of handguns, the U.S. murder rate is four to five times higher than European murder rates and three times higher than Canadian rate.

The Constitution has other clauses that make it flexible enough to keep up with changing times. The so—called elastic clause gives Congress the power to enact all legislation necessary and proper to carry out its enumerated powers. Under this clause, too, the Constitution might be interpreted to mean that Congress can impose restrictions on the people’s right to bear arms. So the general nature of the eighteenth – century Constitution does allow it to adapt to an age of violence even when it gives citizens the right to bear arms. How has the Constitution adapted to the more general shift form the sharp division between federal and state powers envisioned by the Founding Fathers to highly centralized “big government” of the late twentieth century?

            The Shift in the Federal Balance of Power.    The role of the central government has grown markedly in relation to the powers of the state governments since the era of the New Deal in the 1930s. This shift in balance stems partly from the changing needs caused by the Great Depression, which left around 12 million people out of work. They needed assistance in finding housing and in feeding their families, and the states could not afford to provide all of these services. In response, the federal government took on a broader range of education, welfare, health, and housing services than ever before, and this responsibility has grown since then. With the recent fiscal crises, which have hit all areas of American society form the cities to the farms, and with the great increase in the need for funds for environmental cleanup and the war on drugs and an endless list of other services, the role of the central government has continued to expand.

            The writers of the American Constitution never envisioned that the federal government would someday take on the tasks of feeding welfare clients, licensing communications networks, financing chemical and atomic research, or building highways. They assumed that the basic balance of power between state and central governments would remain relatively stable and that this balance would be quite even (or weighted more heavily toward the states). How has the document they wrote been able to adapt to the centralize system of modern American federalism?

            As it had been able to adapt to the growing undesirability of making the right to own firearms a basic right, so, too, the Constitution has been able to adapt to the increased role of the central government. Whereas the powers of the federal government have expanded into areas that the Founding Fathers couldn’t possibly have foreseen, the writers of the Constitution did have the foresight to realize that the nation would experience many changes and would develop many needs which they couldn’t specifically provide for in the document. So the Constitution was written in a deliberately flexible form, and the result is that it can still be interpreted to fit the needs of modern society and government. Feeding welfare clients and financing scientific research can  both be seen as promoting the general welfare (atomic and scientific research also helps to provide for the common defense), and licensing  communication networks falls under the powers granted to the Congress to lay and collect taxes and to regulate commerce.



The case of the rights to bear arms illustration that a constitution written for one age may not always provide the best solutions for another age. If this is the case, and if constitutions must constantly be reinterpreted to keep up with the times, how can they ensure the rights of citizen?

            Civil Liberties and Civil Rights.  In the 1930s, Joseph Stalin imprisoned some 20 million Soviet citizens in labor camps. Another 15 million or so were killed for resisting his agricultural collectivization program. At about the same time, Heinrich Himmler, at Adolf Hitler’s behest, began organized scientifically designed concentration camps, which would systematically exterminate thousands of lives every hour of the day. And halfway around the would, the Japanese armies of Hideki Tojo were raping and pillaging their way through China. After the war, the Chinese Communists under Mao killed countless millions of their countrymen.

            In reaction to the outrages of World War II, the world community took steps to try to prevent any future tragedies of such great magnitude. In 1948, the General Assembly of the United Nations adopted the Universal Declaration on Human Rights to guarantee basic rights to all the citizens of the world. As a symbolic statement to world opinion (with no real power of sanction), the Universal Declaration establishes fundamental precepts and ideals which most nations are reluctant to violate. Of course, if a nation does choose to violate the “universal rights” named in the declaration, there is little anyone can do, short of war, to stop them? The Universal Declaration’s value is symbolic.

            The Universal Declaration, patterned on the French Declaration of Rights of Man and Citizen, and on the American Declaration of independence and the Bill of Rights, affirms the basic civil and human rights thought by most Western political thinkers to be fundamental. It declares that all people have certain rights that government may not arbitrarily take away.12these include the rights to life, free assembly, freedom of expression, freedom of movement, freedom of religion, and freedom to participate in the political process by voting or holding office. In addition to the list of civil and political rights, the Universal Declaration provides for many of the economic and cultural needs of citizens of every land. It specifies that the rights to work and to receive equal pay for equal work; the right to an education; the right to marry, raise a family, and provide that family with a decent standard of living; and the right to live according to one’s culture is the heritage of every citizen. The Universal Declaration is not the only international list of fundamental rights and liberties: the organization of American States and the Council of Europe has also published similar documents.

            The overwhelming sentiment of the civilized would favor equal rights for all. Yet in spite the lofty declarations that have been published, the fact are that rights and liberties are different to define, and all nations restrict civil liberties in some way. The problem of minority groups is almost universally applicable as a case in point.

            Minority Groups and Civil Liberties.   Of the more than 180 nations that make up the world community, few are homogeneous. Most have citizens with a variety of racial, ethnic, religious, cultural, or linguistic backgrounds, and as a result, nearly every nation has at least one minority group whose civil or cultural liberties are compromised to some extent. Haitians living in Florida or Chicanos living in New Mexico are at a disadvantage unless they speak a language foreign to their culture.13 Indians and Pakistanis in Great Britain must conform to away of life far different from what they are accustomed to. It is the minority group that must adjust itself to the ways of the majority.

            The Universal Declaration states that minorities have the right to preserve their cultural uniqueness. But to make a statement such as this and to carry it through are two different things. Most difficult is defining exactly who or what a minority group is (can back militants speak for African—Americans? Can the radical Jewish Defense League speak for American Jews? And what its rights should be in a state controlled by a dominant group with different interests. It was easy to condemn South Africa because its discrimination against blacks was open and blatant.

But nations that grant all citizens a theoretical equality before the law may discriminate against minorities in other, more subtle ways. If German – speaking South Tyrolians are forced to use the Italian language, is their cultural heritage being stifled? Should Spanish Basques be permitted to set up their own school system to teach their children about their heritage? If so, should African-Americans be permitted to do the same, with state funding? What of Spanish-speaking Puerto Ricans in New York, or Mexican-Americans in the Southwest, or Italian-Americans? Assimilation of minority groups involves a compromise of traditions and culture and, therefore, sometimes one of equal rights. But is also true that a state that dose not assimilate its minorities stands little chance of remaining stable. Thus, despite the Universal Declaration’s denunciation of discrimination against minorities, some discrimination is inevitable in every society.

          In 1942, for example, some 120,000 Japanese-Americans on the West Coast were interned under the infamous Executive Order 9066. Robbed of their homes, businesses, and liberty without due process of law, they were sent to ramshackle, dusty camps surrounded by barbed wire and guard towers—in some ways similar to Nazi concentration camps. Not one case of disloyalty was ever demonstrated against a Japanese-American; they were victims of racism and wartime hysteria.14 German-and Italian-Americans suffered no such suspicions or punishment. Even Secretary of War Henry L. Stimson, who signed the order, feared it “would make a tremendous hole in our Constitution.” It did, but not until 1983 did a federal court overturn the legality of internment.15 the incident shows that even a well-established democracy can throw its civil liberties out the window in a moment of exaggerated and groundless panic. The 442ndRegimental Combat Team, recruited from Japanese-Americans, covered itself with glory and was the most decorated U.S. unit of World War II.


Freedom of Expression in the United States

“Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” So says Amendment I of the U.S. Bill of Rights. We think of freedom of expression as one of the hallmarks of any nation calling it democratic. Citizens who think the president or prime minister is ruining a nation’s economy have every right to say so to whomever they wish. And a surrealist antigovernment film should draw no interference or investigation from any agencies of government.

         But although freedom of expression seems at first glance to be a straight-forward guarantee, it is nit that simple. Dose freedom of speech gives a campus bigot the right to incite hatred of African-American students? Dose a newspaper have a right to publish information that might damage the security of the nation? Whereas we may all believe in the right of free expression, most of us would agree that this does not mean that anyone can say or write whatever one wants, whenever one wants, regardless of the consequences. In the example used by Justice Oliver Wendell Holmes, nobody should be permitted to yell “Fire!” in a crowded theater unless there really is a fire. Free speech does not necessarily include the right to spread dangerous or malicious falsehoods. Likewise, free speech dose not include the right to call police to advise them that there is a bomb in city hall when there is not.

          According to Justice Holmes, freedom of expression must also be restricted in cases in which statements or publications present a “clear and present danger” which Congress has a right to prevent. The Supreme Court in its 1925 Gitlow v. Now York decisions also upheld the conviction of a radical who had called for the overthrow of the government on the grounds that his words had represented a “bad tendency,” which could “corrupt morals, incite crime, and disturb the public peace.”

          The questions of what presents a “clear and present danger” and what is a “substantive evil” are, of course, open to very subjective interpretation. Many people today would see no danger in publicly advocating the violent overthrow of the government. And so the interpretation of the meaning of the constitutional guarantee of freedom of expression has varied considerably over the years since the Bill of Rights was adopted.16                                                      Controversies relating to free speech are never-ending. In 1994, in another First Amendment case, the Supreme Court struck down the ordinance of a posh suburb prohibiting homeowners from posting political signs on their property. Recently, some have argued that free speech has gone too far, especially if it deals in racism and pornography or throttles others speech in name of “political correctness”. 17


            Free Speech and Sedition. Sedition is defined in the common law as any criticism of the government or government officials designed to produce discontent or rebellion among the populace. The charge of sedition has been used by the American government to suppress some forms of radical expression during several periods of our history since the adoption of the Bill of Rights.

          Congress enacted the first Sedition Act in 1798, after the infamous XYZ affair. The law was aimed at the “Jacobins,” as American defenders of the French Revolution were called, at a time when the United States was in an undeclared naval war with France. The Sedition Act was supposed to expire the day that President John Adams left office (a curious coincidence, which indicates that its raison deter may have also had something to do with election contest). The act aroused controversy, but it lapsed without any test of constitutionality in the Supreme Court. The next Sedition Act went into effect during the Civil War, when President Lincoln acted under the war powers vested in his office to suppress Northern opponents of the Union effort. The president’s action was brought to the Supreme Court, which declined to judge on the legality of his action. Whereas the action went untested, all “political prisoners” were pardoned at the end of the war. It was not until the twentieth century that another that sedition act was passed in an attempt to tighten national security during World War I.

           Twentieth-Century Sedition Acts. It was the Espionage Act of 1917 that gave rise to Justice Holmes’s “clear and present danger” doctrine. At a time when socialists and pacifists were urging people to protest U.S. involvement in World War I by refusing to serve in the army and to disrupt the war effort in other ways, this act prohibited any attempts to interfere with the military recruitment policies of U.S. government. The Espionage Act resulted in several court cases in 1919. In one case, the Supreme Court upheld the law on  the grounds that free speech could be restricted if it created a “ clear and present danger” to national security.18 And so several hundred people, including Socialist party leader Eugene Debs, were imprisoned under the act, but most were pardoned as soon as the war ended.

          More recent sedition acts have been directed primarily against Communists. The Smith Act of 1940, the most comprehensive sedition act ever passed by Congress, made it a crime to advocate the violent overthrow of the government, to distribute literature urging such an overthrow, or to knowingly join any organization or group that advocated such actions. The Smith Act aroused much controversy but was not put to a constitutional test until 1951, when the Supreme Court upheld the convictions of the leaders of American Communist party even though they had not been charged with any overt acts of force against the government. “It is the existence of the conspiracy which constitutes the danger,” ruled Chief Justice Vinson, “not the presence or absence of overt action.” Since then, there have been other court rulings on the constitutionality of the Smith Act, and they have fluctuated. In Yates v. the United States in 1957, the Warren Court reversed the conviction of the American Communist party leaders on the grounds that there was no overt action, only abstract advocacy of rebellion.19 Four years later, in Scales v. the United States, the court upheld the section of the Smith Act that makes membership in the Communist party illegal—but this ruling also specified that it is active membership, involving the direct intent to bring about the violent overthrow of government, that is criminal. The Court was careful to point out that membership per se was not made illegal by the Smith Act.

          Probably the most stringent legislation ever enacted in our history to counter the threat of Communist subversion was passel during the McCarthy era after World War II. The  McCarran Act of 1950 ( the Internal Security Act )barred Communists from working for the federal government or in defense-related industries, established a Subversive Activities Control Board (SACB) to enforce the act, and required organizations declared by the SACB to be Communist-influenced to register with the attorney. The McCarran Act aroused a great deal of controversy. Its critics charged that the law not only encroached on he rights of free speech and free assembly but also violated the self-incrimination clause of the Fifth Amendment. Although the Internal Security Act in its entirety has never been declared unconstitutional, every action by the SACB demanding specific organizational or individual registration with the attorney general’s office has been declared unconstitutional. Finally, with the realization on all sides that the SACB was accomplishing nothing, it was abolished in 1973.

         The history of legislative action against sedition in the United States indicates that the guarantees of First Amendment have been interpreted to mean different things at different periods, varying according to both the general aura of national security and the president, Congress, and Supreme Court in power at the time. The Supreme Court recognizes the danger of subversion, and it acknowledges that government must have some powers to restrict the freedoms of expression and assembly for the preservation of society as a whole. But its interpretation of what is subversive has fluctuated. Whereas recent decisions have leaned toward the free exercise of liberties wherever possible, many of the decisions of earlier periods have been more protective of the state’s security. It is almost impossible to find a balance between the state’s need to safeguard its own security and the exercise of free expression and free assembly. And so the courts have never been able to produce a definitive statement on the extent to which government may restrict freedom of speech.

Government by Constitution: Does It Guarantee Anything?

In the quick look we have taken at constitutions, two observations are striking. First, almost every nation in the world has adopted a written constitution. Second, in spite of the almost universal use of written constitutions, the documents must depend to a very great extent on the interpretation given them by whoever is in power. After the Soviet Union adopted its 1963 constitution, which enumerated along list of democratic rights for its citizens, Stalin proceeded to strip those rights. And even in the United States, it is strikingly  apparent that the freedoms of speech and free assembly have mean very different times in our history, depending on the president, the Congress, the courts, the climate of American public attitude , and the general air of national security (or lack of it) which reign at the moment.

            The primary purpose of constitutions is not to provide inflexible guarantees of human rights. Indeed, there is sound reasoning behind the argument that a citizen’s wartime rights should be different form his or her peacetime liberties, for during periods of war the national security may be threatened and may require extra measures of protection. Nor is the primary purpose of constitutions to outline a structure for the organization of the government. The government of the Soviet Union could hardly be recognized form its description in that nation’s constitution; and the federal system of the United States is a far cry form that envisioned by the writers of the Constitution.

          Whereas in some countries, such as the United States, the constitution is the supreme law of the land, in almost all societies, written constitutions are more appropriately viewed as expressions of intention and ideals; they are embodiments of the highest goals of a people. A developing nation often feels that it must impose restrictions of its citizens’ right to publish criticism of government, even though its constitution gives them the right of freedom of the press. The United States may have placed restrictions on free speech during World War I, but this action reflected the prevailing opinion that there was a need for tightened national security rather than an all-out abandonment of the ideal of free expression. Because the needs of a nation vary so sharply between periods of war and peace and of depression and prosperity, the function of constitution must be symbolically rather than literally binding. And as a symbolic statement, its utility seems unquestionably to be borne out by its popularity. It is an accepted (if not quit universal) document of a nation’s legitimacy in the modern world. Its ultimate test is what is practical, not what is written.

Suggested Readings

ACKERMAN, BRUCE, We the People.Vol. I: Foundations. Cambridge, MA: Harvard University Press, 1992 A Yale professor of law and political science argues that U.S. constitutional democracy is quite different forms the European types.

BAILYN, BERNARD, ed. The debate on Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification. New York: Library of America, 1993. Massive study oh how difficult and close it was to get the U.S Constitution accepted.

 BURNS, JAMES MAGGREGOR, and STEWART BURNS. A People’s Charter: The Pursuit of rights in America. New York: Knopf, 1992. A noted scholar and his son explore the incomplete nature of U.S.political and civil rights.

 FREEDOEN,MICHAEL.Rights. Minneapolis; University of Minnesota Press, 1991. Explores how what we call rights actually became rights.

GIGLIO, ERNEST, Rightsliberties and Public Policy. Brookfield, VT: Avebury, 1995. An interesting comparison of British and U.S. civil

     rights and their political ramifications.

 GRAHAM, HUGH DAVIS. The Civil Rights Era; Origins and Development of National Policy, 1960-1972. New York: Oxford University Press,1990. The long and difficult struggle to implement equal rights for African-Americans and women.

LEVY, LEONARD W. Seasoned Judgment: the American Constitution, Rightsand History. New Brunswick, NJ: Transaction, 1994. A top Scholar demonstrates “original intent” of Framers is ambiguous and insufficient for applying the Constitution.

LEWIS, ANTHONE. Make No law: the Sullivan Case and the First Amendment. New York: Random House, 1991. The famous 1960 libel that case changed and broadened freedom of speech.

MURPHY, PAUL. L. The shaping of the First Amendment, 1791 to Present. New York: Oxford University Press, 1991. An excellent overview of the six rights guaranteed by the First Amendment.

SMOLLA, RODNEY A. Free Speech in an Open Society. New York: Knopf, 1992. A noted First Amendment specialist explores and worries about some recent controversies and cases.

 TRIBE, LAURENCE A. and MICHAEL. C. DORF. On Reading the Constitution. Cambridge, MA: Harvard University Press, 1991.a review and critique of various ways to interpret the Constitution.

 WALKER, SAMUEL. In Defense of American Laborites: A History of The ACLU. New York: Oxford University Press, 1991. The difficult but largely successful path of the American Civil

     Liberties Union since its founding in 1920.


  1. See    Charles   H.        McIIwain, Constitutionalism   Ancient and Modern (Ithaca, NY:  ConeII  University  Press, 1940);  William  Andrews, Constitutions and  Constitutionalism (Princeton ,  NJ: Van   Nostrand,  1961);  and  Herbert   J. Spiro ,   Government   by    Constitution (New  York:    Random   House,   1959).
  2. See Francis D.   Wormuth.     The Origins    of   Modern  Constitutionalism (New York:Harper&Brothers,1949), p.3.
  3. See the famous work of Walter Bagehot, the English Constitution (New York: Oxford University Press, 1936).
  4. The best compilation is Robert L. Maddex, Constitution of the world (Washington, DG: GQ Books , 1995).
  5. K.G. Whereas, Modern Constitution, 2nd ed. (New York: Oxford University Press, 1966), chap.
  6. Britain    is   a notable exception .

 Parliamentary       procedures    can    be

Changed by a simple legislative majority and the monarch’s approval The fact that they never have been changed without prolonged debate can be used to argue the point that truly constitutional rules need not be committed to writing. See Spiro, Government be Constitution,p.390

  1. Actually, the U.S  Constitution does not specifically give the Supreme Court the authority to rule acts of Congress unconstitutional . The precedent was set in 1803, when the Supreme Court under Chief  Justice  John Marshall declared a section of 1789 Judiciary Act to be unconstitutional in the case of Marbury v. Madison. Thomas Jefferson, Andrew Jackson, and Abraham Lincoln all expressed the view that the Supreme Court was not the sole or final arbiter of constitutionality. However , it has been commonly recognized as such since the Civil War. See David Deener, “Judicial Review in ModernConstitutional Systems,”American Political Science Review 46 (December 1952), 1070-99: also see William H.Riker, Democracy in the United Sates (New York: Macmillan, 1956).
  2. See Leonard W.Levy, Original Intent and the Framers’ Constitution (New York: Macmillan, 1988).
  3. See Robert Sharlet, The New Soviet Constitution of 1977: Analysis and Text (Brunswick, OH: King’s Court Communication, 1978).
  4. See the discussion in Seymour Martin Lipset, The First New Nation: The United States in Historical and Comparative Perspective (Garden City, NY: Doubleday, 1967),and Chap. 9.
  5. See Robert J. spitizer, The Politics of Gun Control (Chantham, NJ: Chatham House, 1995).
  6. For an exploration of human rights, see Jack Donnelly and Rhoda E. Howard, eds.International Handbook of HumanRights (Westport,CT:Greenwood, 1987).
  7. On the question of an official U.S. language, see Bill Piatt, Only English? Law and Language Policy in the United States (Albuquerque: University of New Mexico Press, 1990).
  8. Peter Irons,    Justice at War (New York: Oxford University Press, 1993).
  9. See Peter Irons, ed., Justice Delayed: The Record of the Japanese American Internment Cases (Middletown, CT: Wesleyan University Press, 1989).
  10. For accounts of the Supreme Court and First Amendment rights, see Robert L. Cord, Protest, Dissent and the Supreme Court (Cambridge, MA: Winthrop, 1971).
  11. See Stanley Fish, There’s No Such Thing as Free Speech: And it’s Good Thing, Too(New York: Oxford University Press, 1993), Catharine A. Mackinnon. Only Words (Cambridge, MA: Harvard University Press, 1993) and Cass R. Sunstein , Democracy and the Problem of free speech (New York :Free Press, 1993).
  12. For an application of the “clear and present danger” rule to the case of some World War I anarchists, see Richard Polenberg, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Penguin, 1988).
  13. For   accounts  of   the   Warren Court    and   the   First  Amendment, see Hilton   R. Konvitz. Expanding Liberties (New York: Viking Press, 1966);and Philip B. Kurland, Politics, the Constitution and the Warren Court (Chicago: University of Chicago Press, 1970).

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