Upfront Home
In This Issue
News and Trends
Times Past
The Ethicist
Teen Voices
Upfront Topics
Magazine Info

Upfront's Guide to The Constitution

Even some of our leaders could use a refresher on the nation's founding legal document. Here's a primer on the most quotable constitutional amendments.

By Veronica Majerol

During a debate before November's midterm elections, Christine O'Donnell, the Republican candidate for the Senate in Delaware, asked her opponent, Democrat Chris Coons, "Where in the Constitution is the separation of church and state?"

Coons correctly pointed to the First Amendment, which states that "Congress shall make no law respecting an establishment of religion." Later in the debate, however, Coons (who ended up defeating O'Donnell) also stumbled when he couldn't name the other four freedoms guaranteed by the First Amendment.

O'Donnell and Coons aren't alone when it comes to flunking Constitution 101. In 2008, when Vice President Joe Biden was still Senator Biden, he said, incorrectly, that the Vice President may preside over the Senate "only in a time when in fact there's a tie vote. The Constitution is explicit."

Actually, the Constitution (in Article 1, Section 3) says that the Vice President may preside over the Senate at any time but can vote only to break a tie; as far back as the 1790s, Thomas Jefferson often took the gavel when he was John Adams's Vice President.

With our leaders setting the bar pretty low, it's no wonder that so many Americans are also uninformed about constitutional basics. For example, in a recent poll only 6 percent of adults knew that the First Amendment guarantees the right to petition the government.

Since you're unlikely to memorize all 4,543 words of the Constitution, what are the most important things to remember? It's the amendments to the Constitution, including the Bill of Rights, that most often make headlines, and directly or indirectly affect our daily lives.

So here's Upfront's guide to 10 amendments you really want to be familiar with, along with key Supreme Court cases that have helped define their meaning over the years. Get a handle on these, and you're a lot less likely to get caught flat-footed in class—or when you decide to run for public office.

First Amendment (1791)
What it says: The government can't establish a national religion (the "establishment clause") or prevent citizens from worshipping as they choose; freedom of speech, press, assembly, and the right to petition the government are also guaranteed.
Background:> After fleeing the tyranny of England's King George III and religious persecution in Europe, the Framers wanted explicit protection of basic liberties, and guarantees that the public could challenge the policies of their leaders.
Key cases: Tinker v. Des Moines (1969): The Supreme Court ruled that, within certain limits, students are allowed free expression in schools; Texas v. Johnson (1989): Flag burning is protected expression; New York Times Co. v. United States (1971): In most cases, the government can't censor the press.

Second Amendment (1791)
What it says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Background: The debate over whether "the people" refers to individuals or members of militias lasted 217 years.
Key cases: District of Columbia v. Heller (2008): The Supreme Court ruled for the first time that the Second Amendment applies to individuals, overturning a Washington, D.C., ban on guns in homes; McDonald v. Chicago (2010) applies Heller to the states, not just to Washington, which is under federal jurisdiction.

Fourth Amendment (1791)
What it says: It limits the power of law enforcement to arrest people and search or seize their property without "probable cause."
Background: This Amendment was a reaction to several cases in England and the Colonies during the 1760s in which the rights of the accused were abused.
Key cases: New Jersey v. T.L.O (1985): School officials may search a student's property—including backpacks and lockers—if they have "reasonable suspicion" that a law or school rule has been violated; Board of Education v. Earls (2002): Random drug testing of students involved in extracurricular activities is permitted; Arizona v. Gant (2009): Police may not search a suspect's car after an arrest without a reasonable expectation that they will find evidence related to the arrest.

Fifth Amendment (1791)
What it says: Criminal defendants have the right not to speak in their own defense ("taking the Fifth"), and they can't be tried twice for the same offense ("double jeopardy"). They can't be denied "due process of law"; serious criminal charges must be screened by a grand jury.
Background: The Fifth was a reaction to practices by the British royal court, which often coerced confessions from defendants.
Key case: Miranda v. Arizona (1966): Police must inform criminal suspects at the time of their arrest of what are now known as "Miranda rights": the right to remain silent and to obtain an attorney (from the Sixth Amendment).

Eighth Amendment (1791)
What it says: You're protected from excessive criminal fines and "cruel and unusual" punishment. Some people believe capital punishment violates the Eighth Amendment.
Background: A similar right is found in the Magna Carta, issued in England in 1215.
Key cases: Roper v. Simmons (2005): The death penalty for juvenile offenders is unconstitutional; Graham v. Florida (2010): Life imprisonment without parole for non-capital crimes is unconstitutional for juvenile offenders.

Tenth Amendment (1791)
What it says: The states have all powers that the Constitution doesn't specifically reserve for the federal government.
Background: British oppression made the Framers careful to curb federal power.
Key case: Though this amendment has been the subject of no recent cases, the Tea Party political movement has invoked the 10th to challenge federal authority, particularly about the recent health care law.

Fourteenth Amendment (1868)
What it says: People born or naturalized in the U.S. are American citizens, and individual states can't deprive them of their constitutional rights (the "equal protection" clause).
Background: The 14th Amendment voided a clause in the 1857 Dred Scott decision that stated that Africans imported as slaves and their children—slave or free—couldn't be citizens. Today, some people argue that the Amendment encourages illegal immigrants to have children in the U.S. ("anchor babies") and should be repealed.
Key case: Brown v. Board of Education (1954): The Court overturned Plessy v. Ferguson (1896), ruling that segregation in schools is inherently unequal and therefore unconstitutional.

Fifteenth Amendment (1870)
What it says: Gives African-Americans the right to vote.
Background: The 15th is the last of the "Reconstruction" Amendments (along with 13 and 14), which were meant to enfranchise former slaves after the Civil War.
Key case: Guinn v. United States (1915): Oklahoma's "grandfather clause," which denied voting rights to those whose ancestors could not vote (thereby excluding former slaves), is unconstitutional.

Nineteenth Amendment (1920)
What it says: Gives women the vote.
Background: The Constitution had no explicit restriction on women's voting rights, but many states did. Women's groups had been agitating for suffrage since 1848.
Key case: Minor v. Happersett (1874): The Court rejected the claim of a Missouri woman who argued that the 14th Amendment gives women the right to vote. Citizenship, the Court said, does not guarantee suffrage. The 19th Amendment nullified that decision.

Twenty-Sixth Amendment (1971)
What it says: Lowers the voting age from 21 to 18.
Background: Young men drafted during the Vietnam War argued that if at 18 you're old enough to die for your country, you should also be old enough to vote.
Key case: Oregon v. Mitchell (1970): The Justices ruled that Congress's 1970 decision to lower the voting age from 21 to 18 applied only to federal elections. The 26th Amendment made 18 the voting age for all elections.

(The New York Times Upfront, Vol. 143, January 10, 2011)