My Turn: Powerful but fragile protections of our Constitution


Monday, April 10, 2017

We began with the iconic words, “We the People.” On a recent Sunday evening at the Haymarket Café in Northampton, a large group gathered to read the United States Constitution. The thought was, we frequently talk about the Constitution but rarely actually read it.

Section 1 of Article I says, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” Section 8 of that article specifically lists the kinds of laws Congress may enact. The enumeration clause, as it is called, establishes the boundaries of the central government’s power.

The Tenth Amendment, the last provision in the later-adopted Bill of Rights, puts an exclamation point on that limitation by reserving all rights not explicitly granted the federal government “to the states respectively, or to the people.” That amendment makes President Trump’s executive order to federalize and commandeer the local police as immigration enforcement agents unconstitutional.

Another enumerated power is the authority “to declare war.” But Congress long ago ceded that power to the president. It has not issued a formal declaration of war since the day after Pearl Harbor.

We then came to section 9, which includes the emolument clause, recently made famous by Donald Trump. “[N]o person holding any office . . . shall . . . accept . . . any present [or] emolument from any King, Prince, or foreign state.” Emolument means compensation or prerequisites, or — an old definition — “advantage.” It was impossible to not consider the Trump family holdings.

Article II begins, “The executive power shall be vested in the President of the United States” and then describes the Electoral College: “Each state shall appoint . . . a number of electors equal to . . . number of [the state’s] senators and representatives.”

Some audience members shook their heads. How could a candidate who lost the popular vote by over 3,000,000 votes become president? Did the founders really envision that result?

Section 2 of that article invests in the president “the power, by and with the advice and consent of the Senate to appoint . . . judges of the Supreme Court.” Nothing in the Constitution suggests that this provision is suspended during the last year of a presidential term.

Impeachment is first mentioned in section 2 of Article II, a provision that gives the president the power generally to grant pardons for all manner of transgressions. It makes one exception. Pardon is not possible “in cases of impeachment.”

Soon after reading those words, an acknowledgement of familiarity greeted the reading of section 4: “The President . . . shall be removed from office on impeachment (essentially an indictment from the House of Representatives) for and conviction of (by the Senate) treason, bribery, or other high crimes and misdemeanors.”

Article III creates the Judicial Branch. There impeachment is mentioned again. “The trial of all crimes, except in cases of impeachment, shall be by jury.” The prominence of impeachment in the Constitution made it impossible to not think about Trump and Putin.

My part of the reading was the Bill of Rights, the first ten amendments. The drafters at the Constitutional Convention couldn’t agree on including those protections in the document itself but worked out a compromise: the states would ratify the Constitution first; a Bill of Rights would be drafted and approved by Congress and sent to the states for adoption soon thereafter. And that’s what happened.

The First Amendment provides that “Congress shall make no law respecting the establishment of religion (the establishment clause) or prohibiting the free exercise thereof (the free exercise clause); or abridging the freedom of speech, or of the press.” With these words on the page in front of me, I couldn’t help but reflect on, and cringe at, the derogation of religious freedom caused by Trump’s Muslim ban. Reading the First Amendment also conjured Trump’s threats to destroy the free press by allowing the media to be sued to death, not to mention his overt attempts to disembowel the public’s right to know.

The concept of privacy is deeply embedded in the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons . . . [from] unreasonable searches and seizures.” Trump’s criminal justice plan, you will recall, is to institute a nationwide stop and frisk policy that would allow any cop to stop (seize) and frisk (search) any person for any reason, or none. It would shred the Fourth Amendment as well as the Fourteenth Amendment’s promise of equal protection.

The reading of the amendments allowed us to follow the path of greater voting rights — the prohibition of voter suppression on the basis of “race, color or previous condition of servitude” (the XV Amendment); or “on account of sex” (the XIXth); or with a poll tax (the XXIVth) or for 18-, 19- and 20-year-olds (the XXIVth). Hearing the promise of these amendments made us all the more fearful of Trump’s and attorney general Jeff Sessions’ policies to suppress voting.

That Sunday evening was inspiring. We shared the words, some read by immigrants and a refugee, that created an infrastructure of freedom — to be sure with its horrifying condonation and propagation of slavery and its treatment of women as chattel.

But the evening also was disheartening. Reading the entire document displayed its limitations and fragility and put under klieg lights the potential impermanence of, what the Preamble describes as, “secur[ing] the blessings of liberty to ourselves and our posterity.”

William C. Newman is director of the Western Regional Law Office of the American Civil Liberties Union of Massachusetts.