LESSON 2

Constitution, Civil Rights, Law

 

The 1787 American Constitutional Convention was not convened to solve philosophical questions, but to discuss the following: how to organize a new government, immediately resolve the brink of potential economic, political and social crisis, and find a long-term solution to solidify the foundation for the country’s freedom and democracy. The problems discussed by the founders of the United States in 1787 still exist today, except the solutions have changed somewhat due to the change of the times and circumstances.

 

Of course, in a democratic country, the law is a reflection of society and its epitome. In the two hundred years of American history, occasionally the Constitution went through major changes such as the emancipation of slaves and the 19th Amendment in 1920 that allowed women to vote. Both instances have undoubtedly brought about long-term and  drastic impact on the Untied States. However, except for some particular legal and circumstantial changes, the several issues that are introduced in this Lesson can be said to be the perpetual themes in the Constitution.

 

      Section 1.  The Relationship between the State Government and the Federal Government

 

The United States of America was a name the thirteen original colonies decided upon, so from the start, the drafters of the Constitution had to consider whether or not to let the thirteen colonies preserve their individual authority and independence. The Constitution’s Article 1 Section 8 confirms that the Constitution enumerates the power granted to the Federal Government; all the power not specifically enumerated remain with the state governments.

 

The distribution of powers in the United States government was different from any other country in the world at the time. Power in most countries was allocated from the central level downward. The United States central government, by contrast, came form the collective approval of local governments. 

 

The Democratic Party (later Republican Party) led by Thomas Jefferson consistently advocated avoiding a strong central government with weak individual state sovereignty. Generally, Jefferson represented the eighteenth century farmers, landowners and rural citizens.

 

On the other hand, the Federalist Party led by Alexander Hamilton emphasized establishing a strong central (national) government. Otherwise, in their opinion, given the situation of the fragmented thirteen colonies, there would be no way to solve problems relating to national defense, trading and finances. Opposing Jefferson, Hamilton represented urban citizens, industrialists, and businessmen. Those supporting the Federalist Party wanted a unified transportation system, a unified form of currency and a tax system. Therefore, they saw a need for a strong central government. 

 

From the founding period to the present, the United States political debate has always revolved around the federal government being too strong, having too much power, and whether the individual state’s authority and freedom are overshadowed by the federal government.

 

Every state in the United States has its own constitution and state government. Unless the state government's policy or the state’s constitution contradict the federal Constitution or laws, the federal government or the Supreme Court have no right or power to interfere. There are periods when the Supreme Court has been very active and “nosy”, but there are also periods when it tried its best not to get involved in the affairs of the states.

 

Up until now, the United States has only two major parties competing. In general, the Democratic Party tend to favor a strong central government.  They point out that if Abraham Lincoln did not insist on uniting the North and South, slavery would not have been voluntarily abolished.  Without the central government persisting in the execution the Civil Rights Act in the 1950’s and 1960's, American society may still remain in the stage of racial segregation today. 

 

By contrast, the Republican Party generally believe that the federal government has too much power, strangling the independence and autonomy of state governments. They advocate the restoration of states' rights.

 

                         Section 2.  Separation of Powers and their Checks and Balances 

 

Even those who have only studied world history in primary and high school probably know that the United States political system and Constitution are based on the separation of legislative, judicial and executive branches with a system of checks and balances as their principles.  Indeed that is the theory, but the actual implementation is not easy to explain, which is another characteristic of the American political system.

 

Defense is very typical example. The most important authority and responsibility that the government has are national defense. The United States Constitution deliberately splits the defense responsibilities between two groups: the President, who is the Commander in Chief and a diplomatic leader, and the Congress who controls the national defense military expenditure. Congress is also the only body that has the authority to declare war. On December 7, 1941, the Japanese attacked Pearl Harbor and severely damaged the United States Pacific fleet. The same day, President Roosevelt called for Congress to convene. In this instance, Congress unanimously voted to declare war on Japan. That was one actual example.

 

Headed by the President, the government must submit the federal government’s work plan and budget every year, and Congress allocates the funds. Congress has no power to order the President what to do and what not to do, but it has the power to allocate funds. If Congress does not want the government to do something, they do not have to fund it. This would make it difficult for the government to proceed. In general, for the government to implement something, a majority vote in Congress and a signature from the President can resolve the matter. If the President opposes a bill from Congress , the President can choose to not sign, or veto the bill. A bill that has been vetoed by the President will be sent back to Capitol Hill for a vote. Congress must have a two-thirds majority vote to override the President’s veto and put the bill into motion by forcing the President to execute the bill. Usually, if the President uses his veto power, it must be because there is more powerful justification. Congress will most likely seriously reconsider the President’s views. Therefore, a deadlock does not usually arise. This is a key mechanism of checks and balances between Congress and the President. 

 

However, a situation in which the President and Congress are unable to compromise can still appear.  For example, at the end of 1995, the Congress and President Clinton began a stalemate over the budget and both sides refused to budge. Congress did not pass the budget proposal and passed another budget instead.  The President would not compromise and announced that the federal government had to shutdown. This was the fifth time since the 1980’s when a compromise could not be found and the government shut down. However, in previous instances, after a one day or a half-day shut down, the issue would have been resolved. This shut down lasted over twenty days. If at the end the Congress and the President still could not agree on a compromise, then the issue is referred to the Supreme Court to determine the outcome.

 

We are spending some time to discuss the American government’s division of powers and functions to point out that all the operations in the United States have to be according to the law.  The Congress and the President also have to abide by the law. Everything is based on the Constitution. And the ultimate interpreter of the Constitution is the United States Supreme Court.  Therefore among the three branches of government, the judicial branch seems to have the most power. However the justices on the Supreme Court are nominated by the President, appointed by Congress and the courts are funded entirely by the Congress, so they are also in the checks and balances by the Congress and the President.

 

Therefore, even though the United States president is considered one of the most powerful leaders in the world, he still does not have the power to affect everything within the country’s political system. Even in national defense and foreign affairs, which are within the specific scope of his duties, the president still has to make tremendous efforts to lobby or coerce or to cajole Congress, or directly seek the support of the people, before he can push ahead policies. We used to have a saying, “Living in the capital city Sian is difficult”, but in the United States the saying will be more like, “Living in Washington D.C. is not easy” or, “Being the President of a democracy is not easy!”.

 

          Section 3.  Law Protects Indivduals Against Government Restrictions and Oppression

 

The independence movement by the Anti-British American colonials originally started with resentment against King George III who disregarded the freedom and human rights of the colonies.  So after the First Continental Congress convened in 1787, the first order of business was to pass the First through Tenth Amendments, known as the Bill of Rights. The Ten Amendments are closely related to every aspect of American lives. They reflect the lessons learned from the abuses of the government of George the Third.  The Bill of Rights were enacted to limit the oppression of the federal government. Their contents include the forbidding of quartering of soldiers in private homes without the owner's consent and requiring payment for things that are taken.  

 

It must be pointed out repeatedly that the American Constitution, including the Bill of Rights, were originally designed to organize a federal government but concurrently restrain the federal government from oppressing the people.  In the early period of the founding of the United States, the federal Constitution could not alter the policies of the states.  Particularly in the management of black slaves, each state government was independent. The domination of the federal Constitution over the policies of black slaves in the states was accomplished only after a brutal Civil War.  

 

The biggest turning point in American history, of course, was the outbreak of the Civil War in 1863. The most important impact on civil rights and the laws was enabling the passing of the Fourteenth Amendment in 1868. Part of the Fourteenth Amendment states in part: 

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Today, if the resident of any state believes that the government of the state where he lives has enacted or executed laws that discriminate or oppress him, or damage his human rights, he can file a complaint with the federal court based on the Fourteenth Amendment of the federal Constitution and accuse that particular state government of violating the federal Constitution.  Before the Fourteenth Amendment was enacted, this resident could only seek relief from the courts of his own state and according to that state's constitution. The protection of the minority and every individual person is the purpose of the American Constitution.

 

                                            Section 4. The Rights of Blacks and Minorities

 

The first African slave arrived in North America in 1620 from East Africa. In 1787, when the United States Constitutional Convention convened, African slaves accounted for about 20% of the United States population of four million. At that time, aside from a handful of "free" black people, most blacks were slaves. George Washington, Jefferson  and James Madison resided in the State of Virginia and owned slaves. Jefferson who drafted the famous phrase in the Declaration of Independence that “all men are created equal”, was supposed to own a female slave who bore him six children. An American film entitled “The Life of Jefferson”, depicted the legendary Jefferson’s colorful life and his era. During his time, several states in the North were against slavery, but the Constitutional Convention did not propose to abolish slavery or even attempt to resolve  the slavery disputes. The seeds were planted for the civil war seventy years later.

 

When talking about individual rights under the United States law, we must trace the development of the civil rights movement. 

 

After the Civil War, the victorious Federal Government of the North passed by overwhelming majority votes in 1865 the Thirteenth Amendment which abolished slavery  forever. The newly defeated South were powerless to object, but they passively protested by refusing to ratify the Amendment. One hundred and thirty-three years after the Civil War concluded, in March of 1995, Mississippi’s state legislature finally officially ratified this constitutional amendment that abolished slavery. In other words, by 1995, all 50 states of the United States truly and unanimously accepted the abolition of slavery. 

 

Even in the 1960’s, during the height of the Civil Rights Movement, a majority of Americans still opposed banning segregation completely. In 1963, black civil rights protests reached their climax. On the other hand, particularly in some Southern states such as Alabama, Mississippi, and Louisiana, the anti-civil rights movement among the white people had become increasingly intense. The governments of these states openly refused to implement the Federal Government’s Civil Rights Act.  In that year the governor of Alabama was even preparing to block the entry of blacks to the University of Alabama himself on June 10. 

 

According to the narrative of Richard Reeves’s President Kennedy: Profile of Power, when this period was filled with tension, like an arrow on a fully stretched bow, the Vice President Lyndon Johnson from Texas advised President Kennedy that he had to stand firm very clearly. Otherwise, although the blacks fully believed he supported the Civil Rights movement, the whites (especially the Southerners) would think that Kennedy’s decision to support the movement was only to win more votes; his heart favored the white people.  Johnson meant that Kennedy had to show an unequivocal and clear support for the civil rights movement.  If he lost Southern votes because of that, it was a price that had to be paid.  It just could not be helped.

 

President Kennedy listened to Johnson’s advise and resolutely made his decision. On June 10, 1963 he announced officially to the nation on television that he fully supported banning all racial segregation and would bring racial equality to fruition. In addition, he asserted that the decision was not based on political or legal considerations, but purely on moral ground. He believed Americans had to decide what kind of people they wanted to be. After Kennedy's made his firm position clear, several Southern states saw the situation as irreversible and resistance was futile. Violent acts against civil rights began to die down. Three months later, Kennedy was assassinated. Vice President Johnson became the new President and pushed forward racial equality. He became the standard bearer of the civil rights reform. Under Johnson's leadership, the Congress passed a series of civil rights legislation that became the cornerstone of the modern civil rights.

 

When the United States declared its independence, there was a question whether the blacks people should be included in the population census. The Southern states originally demanded that the slaves were included.  After heated debate, the Congressional representatives reached a compromise.  They decided that in calculating a census of the population, a black person should count as 3/5 of a person for the purpose of determining the number of Congressional representatives. Thus the black people, who had no human right or voting right nevertheless were deemed the fifths of a "person".  That was forever a symbol of humiliation for the American black people and was forever a blotch on American constitutional history.

 

                                     Section 5.  The Historical Evolution of the Bill of Rights

 

In the year President Clinton took office, he nominated two Supreme Court justices. One of them was Judge Breyer. During the Senate Judiciary Committee hearing, one senator asked Breyer, “Out of all the past Supreme Court's decisions, which one do you believe is the most important cases relating to the United States Constitution?” Breyer responded without hesitation, “Brown v. Board of Education”.

 

The case Brown v. Board of Education (hereinafter referred to as “Brown") mentioned by Breyer occurred in 1954 and is hailed as an important milestone in the civil rights movement. The case ended the policy of segregation which had continued since the nation was founded, and launched the civil rights movement for the next thirty years.  

 

Why does “Brown” have such a strong significance? Let us look at two cases involving racial issues that preceded this case.

 

The first was the Dred Scott vs. Sanford case that took place before the Civil War (hereinafter referred to as “Scott”). In “Scott”, the plaintiff was an African American who accused his master in the Missouri federal court and demanded his freedom. This lawsuit lasted until it reached the United States Supreme Court in 1857 where they made the final decision that is summarized as followed: 

 

First, since the founding of the United States, low class blacks, slaves and descendants of slaves are not considered citizens of the Federation, so they have no civil rights. If individual states choose to emancipate slaves or give civil rights to slaves, it is limited to the boundaries of the state. Second, slaves are the owner's property. The property is protected by the Federal Constitution, so the government cannot deprive the owner of his property. In other words, in the Federal Constitution, blacks are not considered humans. 

 

Scott demanded the restoration of freedom, but it was dismissed in court. This decision has some parallel to the incident in Shanghai, China, where foreigners put up a sign outside their parks in the Foreign Settlement saying, “No dogs or people allowed”. The incident made many Chinese feel an unforgettable humiliation similar to that of the blacks in America. Several years after the ruling of the “Scott”, the Civil War broke out. President Lincoln decided to emancipate the slaves, and the decision became interwoven with the entire evolution of American history and society.

 

After winning a victory of the Civil War, the new federal government was aware of the unfairness of “Scott”. Therefore, Congress passed the Fourteenth and Fifteenth Amendments to the Federal Constitution. The Fourteenth Amendment announced that anyone, including descendants of slaves, as long as they were American-born, could become a United State citizen and has the right to life, liberty, and equality of legal protection. The Fifteenth Amendment gave African American the right to vote in elections.

 

However, the abolition of slavery by constitutional amendment did not really eliminate racial discrimination. Particularity in the defeated South, the situation for blacks became worse than before. By the late nineteenth century, the political, cultural, economic and other factors only intensified racial discrimination. Now, the victims were not only blacks, but also the Chinese who arrived in the New World to look for gold mining jobs and road construction work. In addition to a series of Chinese Exclusion Acts, in several states in the West, the Chinese were endlessly beaten and massacred. Designed to make Chinese immigration into the United States difficult, the Angel Island immigration station was set up and built in 1900.

 

The "Scott " case marked the plight of the black civil rights struggle for equality before the Civil War, but the 1896 “Plessey vs. Ferguson” case (hereinafter referred to as “Plessey” marked a retreat in the post-war civil rights movement.

 

In “Plessey”, a black man accused the state of Louisiana implementing racial segregation, such as dividing train cars into black only cars and white only cars, and blacks could not enter the white cars. Plessey accused the state government of segregation, violating the Federal Constitution’s Fourteenth Amendment which ensured the protection of equal rights under the law. Since the complaint related to the Constitution, the Fourteenth Amendment case went to the Supreme Court. The Supreme Court ruled in 1896 that as long as the state of Louisiana devoted train cars and schools for blacks, then there was no segregation and it was not unconstitutional.  Although the blacks were being isolated, it was still equal. Since the ruling of “Plessey” in 1896, all kinds of so-called “separate but equal” divisions were implemented in the United States, especially the Southern States, for half a century.

 

Why was the previously mentioned Supreme Court ruling in 1954 of "Brown" so important to the development of the civil rights movement? The plaintiff in “Brown” was a Kansas state young girl named Linda Brown. She tried to enter a white elementary school but was refused so she filed a complaint. In 1954, the Supreme Court voted nine votes to zero in the “Brown” case and overturned the ruling of “separate by equal” in “Plessey” and denied the legality of the segregation policy under the Federal Constitution. Further the Court reaffirmed the principle of racial equality. At the time, the lawyer who represented Brown, Marshall, went on to become a liberal Justice in the Supreme Court. He was appointed by President Johnson to be the first black justice in the United States Supreme Court.