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Mitchell Hamline Professor Afsheen John Radsan: The Constitution is a monument to faith in our country’s potential for greatness

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Mitchell Hamline Professor Afsheen John Radsan: The Constitution is a monument to faith in our country’s potential for greatness

Editor’s note: Over the next several Sundays and in the months to come, Twin Cities law professors from diverse backgrounds and perspectives will write about timely constitutional ideas and issues. Here’s more about this series.


In 1787, 55 founding fathers gathered in Philadelphia to write a new charter for an independent nation. They expected other citizens, eventually, to read what they were writing. James Madison, more important to the drafting process than General George Washington, had read many philosophers but he still had the good sense to write more clearly than they did. For his proposals to be ratified by a necessary nine out of 13 states, the Constitution could not be too long or too technical. If citizens were confused by any provisions, they would assume the worst.

Madison knew that if the states did not ratify a new constitution, they would be left with the disorder from their Articles of Confederation. These articles had governed since the Declaration of Independence from Great Britain in 1776. A basic flaw was that they barely allowed any central power to resolve disputes between and among states.

Madison succeeded. Our Constitution, with fewer than 30 amendments, has endured more than two centuries. Modern citizens, however, have lost their impulse to read it. Why should this be? My pocket version covers just 35 pages. The Constitution is special to me as the son of two Iranian immigrants who came to the United States in 1962 to pursue their American dreams. For both citizens and newcomers, the Constitution, as much as the Statue of Liberty, stands as a monument to their faith in this country’s potential for greatness.

If you have not read it or if you who have would like to return to what you read years before, what are the highlights? We might all ask whether the Constitution has lived up to what historian Joseph Ellis describes as a “blueprint for political and economic success for the nation-state in the modern world.” Does it deserve credit for turning a “wholly peripheral outpost of Western Civilization” into a superpower?

 

Start with the preamble. It explains that the Constitution was established to form “a more perfect Union.” Note the phrase “We the people.” The states, of course, through their people, were transferring power from the Articles of Confederation. By 1819, Supreme Court Chief Justice John Marshall, in a famous case about a national bank, would claim that the bedrock of constitutional power rests with the people, not with the states — one of many steps toward more federal control of our lives. The Constitution’s secondary goals are stated: justice, tranquility, the common defense, the general welfare, and liberty. Back then, citizens expected far less from their government. They viewed government as much as a threat to their liberty as a means for enhancing their freedom. The founders’ Constitution did not promise healthcare or education or subsidized meals.

 

After the preamble, look at the first five articles. They are an outline for how our government is supposed to work. While the Constitution fails to answer all questions, it provides a reasonable framework for answering these questions. A basic aspect of our “rule of law” is settling disputes through dialogue rather than violence.

 

The first three articles lay out the branches of federal government in descending order of importance. They are based on ideas from Montesquieu and Locke about checks and balances on political power.

First, and most important, comes the legislature, Congress. Next is the executive branch or the presidency. Third is the judiciary or the Supreme Court.

By a great compromise in Philadelphia, Congress is divided into two parts: The House of Representatives, based on population, favors the big states; and the Senate, ensuring two senators per state regardless of their populations, favors small states. Accordingly, today California has the largest representation in the House while California and Wyoming still have an equal number of senators. Today, as a result of gridlock and dysfunction, Congress has become relatively weaker. So citizens look elsewhere for assistance in handling their problems.

Article Two describes the presidency. Given the country’s need for decisive and unified action against various threats — pirates, terrorists, or pandemics — presidential power has surged. Critics warn of an “imperial presidency,” a reminder that the founders rebelled against a king. Defenders of a strong presidency reply with the concept of a “unitary executive.” They see a parallel to the overall goal of a more perfect union.

The Supreme Court, covered in Article Three, has also surged in importance. The founders would be shocked at how Americans today look to nine unelected justices to decide some of the most important issues in our lives. Fewer moral choices are thus left to state legislatures and ordinary citizens. More choices are framed as matters of “rights.” Rights, of course, cannot be voted upon and are protected by the courts from majority excesses. Take unsegregated education, a right guaranteed in 1954 in Brown v. Board of Education. Or the right to end a pregnancy at some point before the birth of a fetus (Roe v. Wade in 1974). Or the right to same-sex marriage (Obergefell v. Hodges in 2015).

Article Three does not state how many justices need to be on the Supreme Court. It is up to Congress. Although the number of justices can be changed without an amendment to the Constitution, there is a longstanding tradition of nine justices; the last time there was a different number on the Court was in the nineteenth century.

 

Glance at Article Four. It breaks down barriers between states. The “full faith and credit” clause helps explain why a Minnesota driver’s license is accepted when we cross into Wisconsin. Or why a couple who is married in California is not required to get remarried when they move to Minnesota. And the “privileges and immunities” clause helps explain why Wisconsin cannot exclude Minnesota residents from employment in Wisconsin.

 

Look at Article Five. This is where you can step outside of the Constitution, where we can go back on everything that has been decided. This article covers the process for amending the Constitution.

By design, it is more difficult to amend the Constitution than it is for Congress to pass a law or statute. Just so, laws that come out of Congress are “ordinary” statutes. The Constitution, by contrast, is a higher or more fundamental law. The Supreme Court, through its judicial review, decides whether a challenged statute or another challenged action is consistent with the Constitution, something established in the famous case of Marbury v. Madison in 1803.

Now that the Supreme Court has decided that the Constitution provides a right to same-sex marriage, for example, those who say marriage should be available only to couples of different sexes have limited options for change. They can hope a new group on the Supreme Court will “undiscover” or “overrule” this right. Or they can attempt to amend the Constitution concerning marriage. As a comparison, think how the “right” to drink alcoholic beverages was once prohibited by amendment and then renewed by another amendment.

 

After the articles, skim the first 10 amendments. These amendments, also called the Bill of Rights, were necessary to get the Constitution ratified. Madison originally said that individual rights were already protected by the checks and balances embedded in the first three articles. He considered a bill of rights redundant. Yet Madison, ever practical, relented when he saw that he did not have the votes for a simpler document in the state-by-state votes on ratification.

The Ninth Amendment takes care of a concern that Madison, in listing some rights, may have overlooked others: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Constitution, in other words, includes these rights but is not limited to them.

The Tenth Amendment is almost as short as the Ninth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” The founders, through their paradoxical innovation of “federalism,” believed they could provide more freedom for the people by providing two layers of government; the state governments would check the federal government at the same time the federal government checked the states. Further, this amendment makes clear that the federal government does not have all power. Some things must be left to the states. Citizens and politicians, to this day, have argued about the appropriate balance between federal and state power. Think of mask mandates during the pandemic. Did we need a national standard? Or was it better to let the states serve as “individual laboratories?”

 

Of all the compromises at the founding, nothing was more important than the dirty deal on slavery. Slavery is not mentioned by name in the original constitution. Still, everybody in Philadelphia knew it was the price of getting slave-holding states to join the union. The Southern states drove a hard bargain. They protected their power through the anti-democratic features of the Senate as well as an “electoral college” for selecting the president. Slaves, treated as property, still counted concerning the size of a state’s delegation in the House of Representatives. The Southern states also made clear that slavery could not be abolished by law or by amendment before 1808.

Some of the founders believed time was on their side. They hoped that slavery would soon disappear as an economical institution and would no longer create disputes between citizens and states. That belief proved insanely optimistic. It took four years of Civil War as well as 600,000 lives to end slavery in the United States.

The constitutional victory was enshrined in the Thirteenth, Fourteenth, and Fifteenth Amendments, the most significant overhaul of the Constitution since the founding. These amendments are so significant that somebody, like me, who pushes for an “originalist” interpretation of the Constitution, should be asked why the appropriate reference is 1787 rather than 1870. The “Civil War” amendments took the nation from a place where some human beings could be abused and tortured as property to an expectation that “we the people” includes everyone, no matter color or creed.

Afsheen John Radsan is a professor at Mitchell Hamline School of Law. He is a former federal prosecutor as well as a former assistant general counsel at the Central Intelligence Agency.

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Jackknifed tractor-trailer closes Interstate 70 eastbound at Eisenhower Tunnel

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Jackknifed tractor-trailer closes Interstate 70 eastbound at Eisenhower Tunnel

A jackknifed tractor-trailer shut down Interstate 70’s eastbound lanes Sunday morning at the Eisenhower Tunnel, according to the Colorado Department of Transportation.

The eastbound interstate was closed between mile markers 206 and 213 around 8 a.m. and is expected to reopen around 10:15 a.m., according to CDOT.

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Denver barbecue restaurant Smōk opens in Fort Collins

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Denver barbecue restaurant Smōk opens in Fort Collins

Smōk opened a location Monday in Fort Collins at the Foothills shopping district.

This is the third site for the barbecue restaurant and the first outside of its Denver base. The 3-year-old chain has locations in RiNo and at Junction Food Hall.

Executive chef and owner Bill Espiricueta worked with Chef Steve Redzikowski at Acorn in Denver and at Oak in Boulder. Prior to that, he worked at Nobu in Dallas and Bluestem in Kansas City, Missouri.

Smōk’s rotating menu includes burnt ends, turkey, pork spareribs, chicken, brisket, wings, sausages, smoked meat sandwiches and “southern-influenced sides [and] house-made pickles,” a press release said.

“Chef Bill executes an easy-going barbecue-joint vibe with the high expectations of a fine-dining chef,” the release said.

Beverages include beer, “boozy slushies and balanced cocktails.” There are eight TVs and room for 155 people in the restaurant and on the patio.

© BizWest Media LLC

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Woman rescued Saturday after roughly 30-foot fall from Bear Canyon Trail in Boulder

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Woman rescued Saturday after roughly 30-foot fall from Bear Canyon Trail in Boulder

A 74-year-old hiker was rescued Saturday afternoon after falling down a roughly 30-foot embankment on the Bear Canyon Trail, just west of Mesa Trail in Boulder.

According to a Boulder County Sheriff’s Office news release, authorities were notified of the hiker’s fall at 12:23 p.m.

A ranger from City of Boulder Open Space and Mountain Parks was first to arrive and found the hiker on the hillside hanging on to a tree, the release said. The Rocky Mountain Rescue Group arrived and secured the hiker with a rope to keep her from sliding farther down the embankment, according to the release.

The woman was secured into a litter and carried back up the slope to the Bear Canyon Trail, where she was then carried a short distance to an American Medical Response ambulance and taken to a Boulder-area hospital. The rescue took approximately two hours.

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