Does the Constitution really say that corporations have rights? Could our nation’s founders have envisioned an argument about which bathrooms people should use? What is a “well-regulated militia,” anyway—and uh, how many articles are there again?
Even those of us who aced American government can sometimes feel out of our depth when it comes to applying Constitutional principles to the legal and political questions making headlines today.
But this fall, NYU Law students and Steinhardt education doctoral students are partnering with public school teachers on a new more in depth Constitutional history curriculum that invites New York City high schoolers to “think as lawyers,” exploring how different Supreme Court cases have shaped have shaped the way the nation’s founding document has been interpreted over time. With themes ranging from gerrymandering to executive power, the course modules, developed in collaboration by NYU students with the high school teachers who will teach them, will both introduce students to law as a profession and provide the tools for making sense of contemporary conversations and controversies around various constitutional principles.
“At a time when we have a U.S. president who is constantly accused of violating the emoluments clause, disrespecting the freedom of the press, and abusing the pardoning power, it is crucial that students understand the Constitution—and why it has been continually invoked by Trump's critics,” suggests Robert Cohen, the Steinhardt social studies professor overseeing the project. “Beyond this, since the Constitution is the fundamental framework of our government, students must understand it to function as citizens who participate in our democracy. And the idea of assisting teachers to teach the Constitution by having them partner with NYU Law students, who have attained great expertise on key court cases, seems a great way to share our knowledge.”
In celebration of Constitution Day, which commemorates the ratification of the U.S. Constitution in 1787, we asked the two NYU law students involved with the project to weigh in on some tricky recurring questions about our nation’s most precious—and often most understood—document. Their thoughts appear below.
Myth: The Constitution and founders are infallible.
There's this idea that, as if by divine intervention, a group of people crafted an infallible document. But the Constitution was not perfect, nor was the group writing it. Can it be said that the founders, an exclusive group of wealthy white men, represented the interests of the enslaved, women, or the lower class?
Obviously, the Constitution was not infallible, and there are amendments for a reason. In fact, Thomas Jefferson believed that the Constitution and the laws should be “updated” by every generation to reflect the core inalienable right of people to govern themselves. He actually used mortality tables from Europe to calculate that every generation would pass every 19 years. That’s when he thought the next generation would be self-governing and would jump in to revise the Constitution.
Jefferson wrote:
“Let us provide in our constitution for its revision at stated periods. What these periods should be nature herself indicates. By the European tables of mortality, of the adults living at any one moment of time, a majority will be dead in about nineteen years. At the end of that period, then, a new majority is come into place; or, in other words, a new generation. Each generation is as independent as the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself that received from its predecessors; and it is for the peace and good of mankind that a solemn opportunity of doing this every nineteen or twenty years should be provided by the constitution, so that it may be handed on with periodical repairs from generation to generation to the end of time, if anything human can so long endure." --Thomas Jefferson to Samuel Kercheval, 1816.
John Stewart, the former host of the The Daily Show, satirized this idea in his book America. Stewart, speaking as “Jefferson,” explains:
“I was looking forward to this opportunity to dispel some of the mythology surrounding myself and my fellow Founders—particularly the myth of our infallibility. You moderns have a tendency to worship at the alter of the Fathers. ‘The First Amendment is sacrosanct!’ ‘We will die to protect the Second Amendment!’ So dramatic. Do you know why we called them amendments? Because they amend! They fix mistakes or correct omissions and they themselves can be changed. If we had meant for the Constitution to be written in stone we would have written it in stone. Most things were written in stone back then, you know. I’m not trying to be difficult but it’s bothersome when you blame your inflexibility and extremism on us.”
The last time we amended the Constitution was in 1992, so it’s been 25 years.
Difficult truth: The Supreme Court—and the court system overall—works as a check to majority rule.
The central tension in our republic is about who has the authority to decide an array of issues—including deeply personal and sensitive social issues like abortion and LGBTQ rights. Are these issues left to individual autonomy, or can the majority regulate them? Can the government intervene to decide?
Our democratic process is governed by majorities, but democratic decision-making can lead to majority tyranny and oppression. Courts can step in and say that the issue in question is not for the majority to decide. But, that too has its problems. On what grounds, can a court come in and remove a question from the democratic process?
To use a very simple example, say there’s a class of 20 kids and 19 of them vote to shave little Timmy’s head. That’s not really fair to little Timmy. So a court would step in and say “that’s not cool,” to protect Timmy’s rights. But that’s also anti-majoritarian.
While democratic decision-making can lead to majority tyranny, courts intervening to protect minoritarian interests can also end up trampling on the democratic process. If courts are not careful, they can undermine their own legitimacy.
Identifying where courts should intervene is a complex question related to the hot-button issues of our time.
—Jason Pedraza (NYU Law '19)
Difficult truth: Even self-proclaimed originalists bring a contemporary lens to their interpretations of the Constitution.
There’s this idea that originalists base their decisions only off of what the framers would have done at the time of the writing of the Constitution. But so much has changed in our society since then. Take the Second Amendment: The framers would’ve been talking about muskets, but of course it doesn’t only aply to muskets. So whether you identify as a living constitutionalist or an orginialist, there’s always going to be the problem of translating the Constitution to the modern time.
Even Justice Antonin Scalia once said, “I’m an originalist but I’m not a nut.” What he meant was that even orginalists are going to have to blend in their own interpretations or their own translations of the Constitution. Everyone is faced with the problem of how much to read into things that aren’t strictly in the text.
Myth: The Second Amendment has always protected an individual right to bear arms.
It wasn’t until very recently, in a 2008 case called District of Columbia v. Heller, that the Supreme Court said that this was an individual right. Previously it had always been seen as the collective right to form a militia. A subsequent 2010 case called McDonald v. City of Chicago further clarified that this was an individual right that each person has and the states cannot infringe upon. This change is in part a product of society reconceptualizing what the right means, but the new doctrinal definition is actually very new.
Myth: The Separation of Church and State has always meant that the states couldn’t establish religions or involve religions in their governing.
In fact, the First Amendment was designed to protect a state’s right to establish their own church. It was only the federal government that could not establish a church. Now, of course, that’s been changed.
Difficult truth: Cases that reach the Supreme Court will never have easy legal solutions. Otherwise they wouldn’t have made it that far.
These are complicated questions where the Constitution as written doesn’t offer obvious answers. So how much of a role, then, do things like justices’ perspectives or political ideologies play?
—Carmen Tellez (NYU Law '19)