Kevin Washburn: Constitutional myths about Indians
Monday, September 15, 2008
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Kevin K. Washburn, a member of the Chickasaw Nation and professor law at the University of Arizona James E. Rogers College of Law, contributes to an article about constitutional myths.
"The U.S. Constitution grants Congress and the president authority over American Indian tribes.
MYTH. The U.S. Constitution only gives Congress the power to manage commerce with the Indian tribes and gives the president, with the consent of the U.S. Senate, the power to make treaties with Indian tribes. In a now-infamous 19th century case called United States v. Kagama, the Supreme Court said that it could not find an explicit provision in the Constitution that recognized federal authority over Indian tribes, but nevertheless concluded that the power must exist.
This notion, later labeled "the it-must-be-somewhere doctrine" conflicts with the more traditional understanding that the Constitution should be viewed as a document granting only limited and enumerated powers. As a result, the federal authority over Indian tribes is built on a tenuous constitutional footing. Nevertheless, Indian tribes have generally acceded to the exercise of federal power as long as the United States continues to meet most of its treaty obligations and continues to support their more limited independence.
The Supreme Court has repeatedly recognized that Indian tribes pre-existed the United States and the states themselves. Thus, their powers are inherent powers arising from their own "tribal sovereignty," not from the Constitution."
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Constitutional mythbusters
Tucson, Arizona | Published: 09.14.2008
The U.S. Constitution, signed by its 39 framers on Sept. 17, 1787, established our nation and government built on ideals such as liberty, equality, justice and commitments to the rule of law. During the last 221 years, the debate, interpretation and reinterpretation of this incredible document have spawned myths and misunderstandings. • As a prelude to Constitution Day, faculty at the University of Arizona James E. Rogers College of Law offered their comments debunking some of the of the myths surrounding what is generally accepted as the world's oldest working Constitution.
The right to privacy is guaranteed in writing in the Constitution.
Myth. No where in its text does the Constitution establish a right to privacy. Several parts, however, directly restrict the government's power to intrude into the private affairs of individuals.
For example, the Fourth Amendment restricts the power of law enforcement officials to search private homes. Citing this protection, the great Supreme Court justice Louis Brandeis described "the right to be let alone" as "the most comprehensive of rights and the right most valued by civilized man."
Starting in the 1960s, the Supreme Court began to interpret the Fourteenth Amendment to provide a right to privacy more expansive than a protection against illegal searches. In one case, the court struck down a Connecticut law that restricted the right of married persons to use contraceptive devices. The Supreme Court found lurking in various amendments to the Constitution "zones of privacy" that placed the marital bedroom off-limits to government intrusion. The court subsequently extended this right to unmarried persons.
Importantly, the Supreme Court remarked, "if the right to privacy means anything, it is the right of the individual . . . to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." This language laid the foundation for Roe v. Wade, the decision establishing a woman's right to terminate her pregnancy and perhaps the most important and controversial application of the right to privacy.
Currently, the right to privacy generally protects individuals in choices regarding intimate and personal matters — including, for example, an individual's sexual orientation — from government intrusion.
David Marcus,
Associate Professor of Law
The First Amendment prevents all censorship.
Myth. The view that the First Amendment prevents all censorship represents a misconception that there may be absolute rights. No modern society offers absolute rights and the freedom of speech in the United States is no exception.
The intuition behind this principle is that an absolute right may give a person the freedom to hurt others beyond the level that the legal system and society are willing to tolerate. No constitutional right allows an individual to use his property to create any type of nuisance that will make his neighbors miserable.
Similarly, the First Amendment is not an absolute shield. Obscenity and classified information related to national security are two primary categories of expressions that the First Amendment does not protect.
The First Amendment is not a defense against charges for dissemination of classified information related to national security. The First Amendment also does not prevent the federal government and states from fighting against child pornography and other types of obscenity (although people in the "industry" regularly argue that the First Amendment should protect them). The scope of the First Amendment varies over time with changes in social values. The First Amendment, however, never prevented all censorship and will never do so.
Barak Y. Orbach,
Associate Professor of Law
The U.S. Supreme Court decides any legal question, including questions of state or local law.
Myth. Despite popular belief, the U.S. Supreme Court does not have the authority to decide every legal question that can arise in litigation across America.
The Constitution limits the jurisdiction of the Supreme Court and the lower federal courts to specific "cases" and "controversies" that the framers believed were appropriate for federal court resolution. These include cases arising under federal law (such as constitutional or federal statutory claims) and controversies between certain parties (such as disputes between states or lawsuits against the United States).
In our system, the Supreme Court has the last word on questions of federal law, and the court's holdings on federal law bind the lower federal courts and state courts alike.
For example, all federal and state courts are bound by the court's decision in 2005 that the Eighth Amendment bars capital punishment for people who were minors at the time of their criminal offense. In contrast, the high court of each state has the last word on questions of state law, and the Supreme Court has no power to overturn such rulings unless a federal right is implicated.
On the other hand, if state law violates the Constitution or conflicts with federal law, the Supreme Court can decide the case. In its upcoming term, for instance, the Supreme Court will decide whether federal drug labeling laws trump state tort law in a lawsuit brought for injuries allegedly caused by unsafe drugs. In other words, the Court will decide whether federal law preempts state tort law to bar such litigation.
Barbara Atwood,
Mary Anne Richey Professor of Law
The U.S. Constitution guarantees the right to vote.
MYTH. I suspect it will shock many Americans to learn that our precious right to vote is not protected by the U.S. Constitution.
The Constitution obviously establishes a democratic form of government and provides mechanisms for electing the president and members of Congress. It also contains provisions about apportioning legislatures and counting votes. But nowhere, either in the body or in the amendments, does the Constitution expressly guarantee the basic right to vote.
When the U.S. Supreme Court decided whether the Constitution protects the right to vote, the court concluded that it does. Even though the right is not expressly protected by the text of the Constitution, the court reasoned that it is implicitly understood as part of our framework of government.
Therefore, the right to vote is a "fundamental right" that cannot be taken away by the states except for the most compelling of reasons.
That the court recognized a fundamental right to vote ushered in a search for other rights that might be "fundamental" and implicitly guaranteed by the Constitution. The court has refused, however, to recognize some basic human needs, such as the right to sustenance or to housing, as rights protected by the Constitution. Such rights, the Supreme Court found, were not sufficiently tied to the constitutional text.
The right to vote in the 18th century, of course, was exceedingly narrow. Only white, male property owners enjoyed the prerogative. But the subsequent two centuries witnessed a continuing and relentless expansion of the franchise.
Examining the 17 amendments enacted since the original Bill of Rights (the first 10 amendments) reveals a surprising trend. Not only do amendments prohibit denying the vote on the basis of race (the 15th Amendment) and on gender (the 19th Amendment), but also five other amendments extend citizenship to all persons born in the United States; provide for the direct election of U.S. senators; grant citizens of the District of Columbia a voice in presidential elections; prohibit poll taxes; and extend the right to vote to any citizen who is 18 years of age.
We can take pride in this development, through the majoritarian process of amending the Constitution, of a more inclusive political community.
Robert Glennon,
Morris K. Udall Professor of Law and Public Policy
The U.S. Constitution grants Congress and the president authority over American Indian tribes.
Myth. The U.S. Constitution only gives Congress the power to manage commerce with the Indian tribes and gives the president, with the consent of the U.S. Senate, the power to make treaties with Indian tribes. In a now-infamous 19th century case called United States v. Kagama, the Supreme Court said that it could not find an explicit provision in the Constitution that recognized federal authority over Indian tribes, but nevertheless concluded that the power must exist.
This notion, later labeled "the it-must-be-somewhere doctrine" conflicts with the more traditional understanding that the Constitution should be viewed as a document granting only limited and enumerated powers. As a result, the federal authority over Indian tribes is built on a tenuous constitutional footing. Nevertheless, Indian tribes have generally acceded to the exercise of federal power as long as the United States continues to meet most of its treaty obligations and continues to support their more limited independence.
The Supreme Court has repeatedly recognized that Indian tribes pre-existed the United States and the states themselves. Thus, their powers are inherent powers arising from their own "tribal sovereignty," not from the Constitution.
Moreover, tribal governments may have inspired the formation of the United States itself. Only after spending time among the Six Nations of the Iroquois did founding father Benjamin Franklin realize that states could both maintain independent sovereign existence and also form a "more permanent union." This idea, borrowed from the Iroquois, has produced one of the powerful nations in world history.
Kevin K. Washburn,
Rosenstiel Distinguished Professor of Law
The U. S. Constitution is the supreme law of the land and no state law can supercede it.
An incomplete truth. The U.S. Constitution is the Supreme Law of the Land. Article VI, Clause 2 states that:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
But the vast majority of the law in the United States, of all types — public (such as environmental or criminal law) and private (such as contract or property law), is not directly controlled by the U.S. Constitution, but by state laws (in state constitutions and statutes), and, to a much lesser extent, federal statutory law (which addresses a more limited set of questions).
Even on matters to which the U.S. Constitution does apply, states are free to be more generous in granting their citizens rights or to be more restrictive on what government can do. Thus the Federal Constitution sets a "supreme" floor in critically important but limited areas of law and power.
Even the powerful and familiar metaphor of a Federal floor has been questioned in recent scholarship. (See Marc Miller and Ronald Wright, Leaky Floors: State Law Below Federal Constitutional Limits, 50 Ariz. L. Rev. 227 (2008), available on the University of Arizona James E. Rogers College of Law Web site:
www.law.arizona.edu ).
Marc L. Miller,
Ralph W. Bilby Professor of Law
Bankruptcy is a legal right provided for in the U.S. Constitution.
Myth. The Constitution gives Congress the power to enact uniform bankruptcy laws, but does not require that it do so.
For more than a hundred years, Congress passed short-term bankruptcy laws after financial panics but repealed them in good times. Since 1898, however, we have continuously had bankruptcy laws in place, so bankruptcy has come to seem like a right.
Individuals usually file either in chapter 7, which typically involves a discharge of most debts in less than six months, or in chapter 13, which usually requires a three-to-five-year plan to repay some old debts.
Congress passed complicated changes to bankruptcy law in 2005, in part to push debtors with relatively high incomes into chapter 13. But most over-indebted persons still have access to chapter 7, especially if their income is below median ($40,945 for a single person and $66,903 for a family of four in Arizona).
Most people who file are below median income and are driven into bankruptcy after job loss, illness or marital breakup. Even those with somewhat higher incomes can often still file in chapter 7, particularly if they have larger amounts of home and car debts or legitimately high expenses, such as for care of a disabled family member. A bankruptcy lawyer can help debtors negotiate the new complexity and get surprisingly good results for many who could not otherwise get out of debt.
Jean Braucher,
Roger C. Henderson Professor of Law
Nancy Stanley, assistant dean for External Relations at the University of Arizona James E. Rogers College of Law, contributed to this article. For more information about the law college or to contact any of the authors, go to
www.law.arizona.edu www.azstarnet.com/allheadlines/257155.php