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Mitchell Hamline Professor Mike Steenson: The Constitution gives freedom a voice

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Mitchell Hamline Professor Mike Steenson: The Constitution gives freedom a voice

Editor’s note: This series of explanatory columns began last Sunday with an overview by Professor John Radsan and continues today with a discussion of “rights” from Mitchell Hamline Professor Mike Steenson. Here’s more about the series.


We all have different concepts of what our basic rights are. We might think we have a right to a living wage, or a right to adequate housing, or a right to food security.

Constitutional rights are a little different.

The Constitution does not give us a right to demand something from our government. Rather, the Constitution gives us certain freedoms from government interference for certain actions we might take (or refuse to take). In general, government (federal, state, or local) must act in order for us to have a claim that it has violated our constitutional rights.

 

The Constitution was adopted in 1789, but it did not include what we commonly refer to as the Bill of Rights.

There was a dispute at the time the Constitution was being considered for ratification by the states. There were serious concerns that the broad power given to the federal government would make it easy for the government to infringe on important rights and liberties.

The Federalists, supporters of the Constitution as originally written, argued that the United States government would have only the power given to it in the Constitution and that the Constitution did not give government power to interfere with those basic rights and liberties.

The opposition, the Anti-Federalists, argued that it was important to be more specific in ensuring that the government would never have the power to interfere with those rights.

James Madison introduced in Congress proposed constitutional amendments that addressed the concerns of the Anti-Federalists. Ten of those amendments, what we call the Bill of Rights, were ultimately ratified by the States in 1791.

The Bill of Rights includes many, but not all, of our basic constitutional rights. Most of them are familiar to us.

 

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.” This amendment is loaded. It provides for freedom of religion and speech and also freedom of the press, the right to assemble peaceably and to ask government to correct complaints we might have without fear of retaliation.

There is an important point in viewing this and other amendments to the Constitution. The First Amendment seems to be written in absolute terms. It says “Congress shall make no law …” Well, it seems clear that Congress may make various laws that interfere with freedom of religion and speech. As an example, you may have a right to stand on a street corner and speak out against certain government action; you do not have the right to make your case on a bullhorn at 2 a.m. in a residential neighborhood.

 

The Second Amendment provides that “the right of the people to keep and bear arms, shall not be infringed.” There are strong disagreements about what this protects. The amendment says that the right to keep and bear arms shall not be infringed, but this is open to interpretation. Does it include the right to have a firearm for personal protection in your own home? Does it include the right to carry an automatic machine gun in public? The degree of protection afforded by the Second Amendment is hotly debated today.

 

The Third Amendment, which provides that government cannot quarter soldiers in our houses without our consent, is not much of a concern. I can’t remember the last time the government tried to quarter soldiers in my house.

This was an important amendment at the time, however, because of abuses by the English government that led to the inclusion of similar language a century earlier in the English Declaration of Rights.

The English experience with and response to invasions of personal liberties is the source of many of the rights in our Bill of Rights. That is why you will often see references to Magna Carta as a basic source of the rights that are in our Constitution.

 

The Fourth Amendment is very familiar, especially if you have watched any of the numerous police procedural programs on television. The first question someone typically asks if police ask to do a search is, “Do you have a warrant?”

The Fourth Amendment guards against unreasonable searches and seizures by government.

 

The Fifth Amendment includes various rights, among them the right against self-incrimination. That means that we cannot be compelled to testify against ourselves in a criminal case.

It is the source of the requirement of police to give Miranda warnings to those they are arresting.

In criminal cases the Fifth Amendment provides for the right to a speedy trial. It is also the source of the very important “due process” clause, which provides that no person “shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Due process does not mean that people cannot be incarcerated or, in some cases, be subjected to the death penalty. It does mean that they have to be given certain procedural rights before that can happen. Government can take your property for certain public uses but if it does, government must provide adequate compensation to the persons whose property is taken.

 

The Sixth Amendment provides for the right to a “speedy and public trial, by an impartial jury.”

 

The Seventh Amendment provides for the right to trial by jury in civil cases where the matter in controversy exceeds $20.

 

The Eighth Amendment prohibits cruel and unusual punishments. It also prohibits excessive bail and fines. All punishments appear to be cruel, including the death penalty. The Eighth Amendment provides that they cannot be cruel and unusual, however. That makes it hard to argue that the death penalty is unconstitutional because it has been part of our long history.

 

Very importantly, the Ninth Amendment provides that just because certain rights are set out in the Bill of Rights or elsewhere in the Constitution, the recognition of other rights retained by the people is not foreclosed.

There are important rights that are not specifically mentioned in the Bill of Rights. For example, the Supreme Court has held that there is a fundamental right to marry, to control how your children are raised, and to keep your family together. There is a fundamental right to vote. Those rights are not specifically mentioned in the Constitution.

 

Finally, the Tenth Amendment states that powers the Constitution does not give to the United States are reserved to the States respectively, or to the people.

Good enough. The Court has also held that there is a fundamental right to privacy, including marital privacy. In 1973 the court extended that privacy right to a woman’s right to decide to have an abortion. That is Roe v. Wade, a case that virtually everyone recognizes.

Roe has been the subject of litigation since it was decided in 1973. Increasingly restrictive abortion laws have been passed in many states with the goal of presenting the Supreme Court with a case in which it will overrule Roe. The Supreme Court may decide that question this term in Dobbs v. Jackson Women’s Health Organization.

 

As enacted, the Bill of Rights applied only to the federal government. The passage of the Thirteenth, Fourteenth, and Fifteenth Amendments changed the Constitution so fundamentally that scholars have referred to it as a “second founding.”

 

The Thirteenth Amendment abolished slavery.

 

The Fourteenth Amendment provides that no person shall be denied due process of law or the equal protection of the laws. Note that the Fourteenth Amendment’s due-process and equal-protection clauses apply to persons, not just citizens. The due process clause of the Fourteenth Amendment effectively opened a window permitting the transfer of many of the Bill of Rights to the states through a doctrine of selective incorporation, and of unenumerated rights as a matter of substantive due process.

 

The Fifteenth Amendment provides that the right of citizens to vote “shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”

 

Constitutional rights are not limited to rights protected by the federal constitution. State constitutions also contain constitutional protections.

The Declaration of Independence required states to draft their own constitutions. Those constitutions provided broad protection for individual rights and liberties.

Prior to the adoption of the Fourteenth Amendment, the state constitutions were the primary source of protection for individual rights against state encroachment. With the adoption of the Fourteenth Amendment and the Supreme Court’s application of most of the Bill of Rights to the States, along with other unenumerated rights, the rights guaranteed under the state constitutions may seem superfluous.

Not so. In many instances state supreme courts have provided broader protection for individual rights than the federal constitution provides. As an example, in Minnesota, the state Supreme Court has interpreted the Minnesota Constitution to provide broader protection for religious liberty than has the Supreme Court of the United States under the First Amendment.

In one case, the Minnesota Supreme Court held that the State could not constitutionally compel Old Order Amish to place bright and orange rectangular slow-moving-vehicle signs on their horse-drawn wagons, even though the result would likely have been different under the federal constitution. The Minnesota Supreme Court has also provided for broader protection for protection of rights in criminal cases, among others.

Rights, then, are guaranteed by the federal and state constitutions. Those rights are involved only where government acts in a way that infringes on those rights.

The constitutional rights that we have are given great weight, but they are not absolute. They have to be balanced against government’s interest in protecting us from infringements of individual rights by others. Where there is a difference of opinion, we ask the courts, federal and state, to resolve those differences. The Supreme Court of the United States has the last word in interpreting the United States Constitution.

 

On a personal note, the importance of these freedoms, including freedom of speech, was accentuated for me in 1989, when I was in China at the time of the Tiananmen Square demonstrations. One evening, at the university where I was teaching for part of that summer, I saw a student, a young woman, standing on a platform in the twilight, speaking to a surrounding crowd of students. She said, “We may not know the exact meaning of democracy, but in our hearts, we know what freedom is.”

Her plea for freedom is what we all feel in our hearts. The Constitution gives freedom a voice – our voices.

Mike Steenson is the Bell Distinguished Professor of Law at Mitchell Hamline School of Law, and a former law clerk for the Honorable Miles W. Lord.

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Fallen Sailor honored as body returns home

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Fallen Sailor honored as body returns home

ST. LOUIS – Hospital Corpsman 3rd Class Bailey Tucker was one of five U.S. Navy sailors killed in a helicopter crash in the Pacific Ocean on Aug. 31. His remains were recently recovered from the ocean floor and arrived at St. Louis Lambert International Airport Friday. 

A procession of military backers and supporters led the family from the airport to Baue Funeral Home in St. Charles County.  

Tucker was a 2018 graduate of Parkway North High School. Among those who stood near the Cave Springs exit off I-70 was Robbin Wolf. She said the Tucker family lives in her neighborhood and has always offered support to others.  

“The family is a giving family and loving,” Robbin Wolf said. Her husband also came to show his respects.  

“He showed up for us,” said Scott Wolf. “So, we are going to show up for him.” 

Several area fire departments raised American flags on overpasses as the procession traveled along I-70. 

“We’re just here to honor Bailey,” said Jason Meinershagen, Central County Fire Rescue public information officer. “We recognize that we wouldn’t have the freedoms and be able to do the things we do without him.”

Navy veteran Jodene Reppert traveled to St. Charles County to show her appreciation for Bailey’s service to his country.

“You need to be honored and your family should be honored and thanked for their sacrifice,” she said. 

The MH-60S crashed on Aug. 31 about 70 miles (112 kilometers) off San Diego during what the Navy described as routine flight operations. It was operating from the deck of the aircraft carrier USS Abraham Lincoln. 

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Keeler: Move over, Vic Fangio. Colorado State’s Steve Addazio is the worst clock-manager in town. And he just joined you on the hot seat.

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WATCH: CSU botches last-minute field goal attempt against Utah State

For a second there, you almost felt sorry for Steve Addazio. A little. At least until he started throwing his own players under the bus, one by one.

“I would say to you is they got caught up in the emotion of the game and took off on the field,” the CSU football coach said of the insanity that made up the final 11 seconds of Utah State 26, Rams 24. “I’m like, ‘Who sent them on?’

“And no one sent them on. So, it just happened. Which means that it’s my responsibility, because that can’t happen.”

Oh, but it did. Dazfoonery. Absolute insanity. A clown show in cleats.

Spike the ball!

Spike it! What are you do …

In a sequence they’ll be talking about for years, probably with calliope music playing in the background, the Rams had bravely and methodically driven the ball downfield, trailing by two.

Quarterback Todd Centeio, with no timeouts, had Elwayed CSU to the Aggies’ 24-yard line with half a minute on the clock.

Then all heck broke loose.

Or rather, the Rams’ field-goal unit broke loose.

With 11 seconds left, instead of spiking the ball or throwing a prayer to Trey McBride or Dante Wright, the CSU sideline turned into Piccadilly Circus. The offense, while still on the field, expecting a spike to stop the clock, saw their special-teams compatriots racing to the line of scrimmage, shooing them off.

Chaos ensued. CSU kicker Cayden Camper rushed onto the spot and rushed a 42-yard attempt with a second remaining on the scoreboard. It sailed wide left, and the stunned Homecoming crowd at Maverik Stadium erupted at their fortune.

“Having said that, we were perfectly set up and ready to kick the field goal,” Addazio continued. “I don’t believe that had any impact on that field goal whatsoever.”

Vic Fangio, you owe this man a beer. Or six.

Fangio, the besieged Broncos coach, uses timeouts in crunch time the way a toddler uses a plate of spaghetti. But compared to Addazio, Uncle Vic is the second coming of Bill Walsh.

They’re also both so in over their heads as head coaches here, it’s pitiful. In some alternate universe right now, Fangio is serving as Urban Meyer’s defensive coordinator. Addazio is coaching Urban’s offensive line.

Alas, we’re all stuck with this reality. And it bites.

“I could tell that they were obviously disorganized,” Utah State coach Blake Anderson told the CBS Sports Network immediately after the tilt. “It just didn’t look organized.”

The kicker to the kicker? Anderson admitted that he was going to call a timeout to try and ice Camper.

Instead, the Rams iced their own guy for him.

Spike the ball!

Spike it! What are you do …

“It’s frustrating,” said McBride, the tight end whose six receptions, along with tailback David Bailey’s 159 rushing yards, went for naught. “It’s heartbreaking.”

Especially given the stakes. Inside track within the Mountain West’s Mountain division. A 3-0 start to league play. More than halfway home to bowl eligibility.

What we got was an evening marred by the hallmarks of poor coaching, from preparation to execution: Painful, silly CSU penalties — nine in all, at least six of them on offsides calls — and ever sillier mental mistakes.

CSU sacked Aggies quarterback Logan Bonner eight times. The power and leverage advantages along the line of scrimmage were palpable. The bigger, badder Rams (3-4, 2-1 Mountain West) would win a slugfest with Utah State  (5-2, 3-1) 11 times out of 10.

But the Aggies weren’t interested in a stand-up brawl — Anderson wanted to duck and weave, to rope and to dope, and tire the heavyweight Rams into doing something dumb.

Team Daz, sadly, obliged. Repeatedly.

And we can’t say the Boston College faithful didn’t warn us: Since 2013, Addazio-coached teams are 9-18 in games decided by six points or fewer. Since 2018, they’re 0-6.

With Boise State (3-4) at home up next, a wounded franchise that CSU hasn’t beaten in 10 tries, followed by Wyoming (4-2) on the road and Air Force (6-1) at home, those aren’t exactly the kind of stats that inspire confidence along the Poudre.

Nor, frankly, did Friday. The Rams were having so much fun leading with their fists that they forgot, too often, to use their heads.

Four first-half penalties and two turnovers early gave the smaller, quicker and pass-happy Aggies seven first-half possessions to CSU’s six. And two of those came in the final five minutes of the second quarter thanks to the Aggies’ special teams. USU kicked a field goal, then lobbed the ensuing kickoff into a gap within the Rams’ return unit, recovering the rock at the CSU 24.

And because the Daz chose to sit on his timeouts at the end of the half rather than stop the clock on USU’s stunning post-kickoff possession, the Aggies got the ball three different times between the final six minutes of the second quarter and the first five minutes of the third quarter — while the Rams had it only once.

Guess what Daz did with that possession? He took a knee to run off the final 25 seconds of the first half. The hosts, meanwhile, turned those extra cracks with the pigskin into nine points, ducking and jabbing their way to a 23-14 lead that forced the Rams into catch-up mode.

“I don’t know, I don’t know,” Addazio said after the game about his thinking, or lack thereof, during that mid-game juncture.

“I just (felt) like we had too many penalties in the first half, we turned the ball over twice …”

Defense and a run game travel well on the road. Stubbornness and stupidity, however, do not. And never will.

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A refreshed Casa Bonita could accelerate redevelopment along West Colfax corridor

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A refreshed Casa Bonita could accelerate redevelopment along West Colfax corridor

Casa Bonita’s relaunch under new ownership won’t necessarily trigger a revival along the West Colfax corridor, but it could speed up one already underway and if done right, provide a model on how to both refresh and preserve an iconic tourist draw.

The Mexican restaurant with real cliff divers, faux shootouts and so-so food has served as a draw for generations of families ever since it opened in 1974 in a shuttered JCPenney’s store in a suburban strip mall sandwiched between Kendall and Pierce streets along West Colfax Avenue.

The restaurant shut its doors early in the pandemic and owner Summit Family Restaurants sought bankruptcy protection in April. But last month Summit finalized a sales agreement with a group headed by Colorado natives and “South Park” creators Trey Parker and Matt Stone.

“While retail has had its challenges over the years, the ‘South Park’ creators’ rumored grand vision for Casa Bonita’s future could be a boon for local commercial and residential real estate in the West Colfax area. If anything, Trey and Matt’s purchase may serve as a model for preserving history throughout West Colfax,” said Philip Kranefuss, head of Colorado real estate for the brokerage firm Homie.

Parker and Stone made the restaurant legendary among their global fan base when they featured it in a 2003 episode of their animated series and they have continued to highlight it over the years.

Kranefuss said the restaurant is a Denver-area institution and a rite of passage for local children that could see its draw as a tourist attraction expand to the legions of “South Park” fans. Its preservation and continuation are not only a big deal for the nearby neighborhood but also the larger metro area.

He expects the neighborhood will look much different 10 years from now, and that Casa Bonita will be part of that transformation.

“We are very enthusiastic about what is happening with Casa Bonita. Anything that reactivates the restaurant is a good thing for us,” adds William Marino, board chair of the 40 West Arts District. “Good things are happening on West Colfax. There is real momentum and we need it to continue.”

The arts district, established in 2011, has purchased a building in the parking lot next to Casa Bonita that once housed a Denver Drumstick Restaurant. The once-popular eatery, known for a model train that ran around the restaurant, has sat vacant for about 20 years, a symbol of the larger decline the neighborhood was suffering, Marino said.

One goal of buying the building is to provide permanent gallery space for area artists so they don’t get priced out as the neighborhood stages its comeback, avoiding a pattern seen in some of Denver’s one-time artist havens, Marino said.

Lamar Station Plaza, the strip mall that houses Casa Bonita with its distinctive pink stucco bell tower, saw its revitalization start when Broad Street Realty acquired the dilapidated JCRS shopping center in 2014 for $8 million. In the late 1800s, the Jewish Consumptive Relief Society or JCRS treated tuberculosis patients on that site.

The shopping center, once limping along with a 30% vacancy rate, now houses a Planet Fitness and a Dutch Brothers, but also discount retailers and thrift stores catering to the area population.

“It is really about the redevelopment of commercial spaces. The general idea is to hold onto the funkiness of Colfax and the positive energy that comes with it,” said Robert Smith, Lakewood’s economic development director.

Lakewood has a total of 91 commercial and residential projects recently completed or underway, according to a development map the city maintains. Of that total, 38 were completed last year, 17 wrapped up this year and 15 residential projects and 12 commercial projects are currently underway.

Many of those projects are concentrated in the north end of the city, between the W light rail line and the Colfax corridor, which at one time served as the major connecting throughway for travelers driving between the Midwest and California and was filled with motels and eateries.

Once the wider and faster Interstate 70 to the north became the main highway, Colfax started to see more used car dealerships and pawnshops and vacant buildings.

Part of the challenge of redeveloping the area is that it was designed with setbacks and parking lots to accommodate a car culture. But the preference now is for denser and more walkable neighborhoods with amenities nearby.

“The West Colfax corridor is undergoing a renaissance,” Smith said, adding that the “South Park” purchase, which is awaiting approval in bankruptcy court, has done great things for marketing Casa Bonita. “Part of the value of that restaurant is that it has such a storied history. All parties involved want to maintain that legacy, augment and enhance it.”

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