Why Does the Constitution Matter? with Anastasia Boden | BRI’s #ConstitutionDayLive

0:04 Hello, and welcome to this special Constitution Day edition of Primary Source Close Reads. My name is Kirk Higgins. And today we’re going to be celebrating Constitution Day by exploring these big principles of liberty and equality. In particular, I’m hoping going to examine what the Constitution has to say about how these principles interact with one another and how they function within the Constitution and how the Constitution helps to support them.

0:25 To help me with this task, I am excited to be joined by Anastasia Boden, the senior attorney at Pacific Legal Foundation. Welcome Anastasia. Thanks for having me. Absolutely. So, as you watch this video, please think of questions you’d like to ask Anastasia. We’ll be bringing her back live on Constitution Day to help to answer your questions. And if you want to follow the link below, you can submit those questions.

0:48 You also find a variety of resources there that can help if you’re looking to learn more about the Constitution or celebrate Constitution Day. So, honestly, my first question is a tough one. So, you are a constitutional lawyer with the Pacific Legal Foundation. Can you just tell us a little bit? What does that mean? Yeah, I sue the government when it violates our constitutional rights.

1:11 My area of expertise is representing people when they go to start a business or they go to get a job and they see a thicket of government regulations that basically makes their dream impossible. But I also represent people when they are forbidden from speaking as they’d like to speak, or when the government denies them equal treatment based on their race or the gender that they were born into.

1:33 Basically, I’m here to make sure that the government treats you equally and fairly under the Constitution. Very cool. So I’m already hearing big ideas about liberty, kind of people’s liberty to choose how it is that they can be an entrepreneur and make goods to sell, and also that equality piece, right? Making sure that we’re all being treated equally before the law. So this brings me to my big question for the day.

1:56 As we’re looking at the Constitution, the Constitution was written some 230 years ago. I guess my question is, as we’re thinking about liberty and equality and how the Constitution supports it, do we really have to look at the document itself? I mean, it’s kind of old. It was written in a time before computers were invented. What’s the point? Why should we go back and leave the constitution? Yes, I think arguably, the Constitution matters more than ever.

2:20 It establishes our rights and our role visa visa government. And as the government comes to play a bigger role in our lives, the Constitution will naturally come to play a bigger role as well. I mean, if you think about the pandemic, when the government was passing all sorts of regulations, we have to make sure that the government is acting reasonably, that it isn’t acting only to dole out favors or arbitrarily or unfairly.

2:46 We have to make sure that we have some autonomy over our lives and that we hold the government to the agreement set out in the Constitution in terms of it only having limited powers that respect our individual rights. I think kids sometimes tend to think that the government and the constitution is sort of an adult thing, that it’s something that only enters our

3:07 lives when we have big responsibilities that’s later on in life. But everyone has constitutional rights, and many supreme court cases have involved people under the age of 18 from the right not to say the pledge in school, or the right to speak freely both in school and outside of school, or the right to be free from random

3:27 searches or to be treated fairly if you’re accused of a crime. Everyone enjoys constitutional rights, and they’ll always matter as long as we exist in a society that’s governed by a government. All right, you’ve convinced me. And you’ve kind of pointed to there’s a big supreme Court case that just came down that has to do with students and schools and hopefully our Constitution Day itself.

3:49 You and I’ll be able to talk a little bit about that. But for today, since you’ve convinced me, let’s go ahead and take a quick, closer look at the Constitution and see what we can unpack there. So, Anastasia, I love to start these Close Reads out just with a little bit of historical context, because history is kind of my background, and it’s the thing that I love. So just to kind of set the table as we’re talking about the constitution, it was drafted in the hot summer of 1787.

4:11 It was set out for ratification on September 17 of 1787, which of course, is now Constitution Day. It went out for ratification simply meaning that the states had to debate it, talk about it in order to pass it, so they could formally replace legally the Arrows Confederation as the new social contract amongst the states. It’s broken down into these tiny seven sections, talking about the legislature,

4:34 the executive, the judiciary, sort of the nature of the union relationship among the states, the amendment process, the supremacy clause, meaning it’s the law that we all look to, and then laying out this ratification process. So in looking at that sort of jumble and then looking at all of the 27 amendments that have been passed since, if you’re going to tell me, all right, we know that the constitution is important

4:55 to look at, we’re going to look at two different clauses. Say, where would you point me to first? What should we take a look at? My personal favorites. And that’s a tough one because it’s a beautiful document. My personal favorites are the 9th and 14th Amendment. Which together means that there’s a presumption at all times that we are free to act as we want. And any time the government takes away any of our liberties from the liberties

5:19 that you see explicitly written out in the constitution. Like the famous ones. The right to free speech. The right to have a jury trial. The ones that we can all lift off the top of our head. From those to also the unwritten liberties that exist just as a matter of our being human and being born. The right to dress how we want.

5:40 When I woke up today, it was my right to choose how I dressed up, the right to, I don’t know, create a lemonade stand on the corner. All of those rights can’t be taken away without good reason and good processes. And so I think that’s a very important principle that is protected by the 9th and 14th amendments. All right, well, let’s take a close look

6:01 at the 9th amendment and see what it’s got to say here. So, 9th amendment, part of that original ten amendments that were passed called the bill of rights, says, the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people on stage. One of the first questions I have, too is why was this included in that first pack to the bill of rights?

6:22 What is it about the 9th amendment that we wanted to make sure that we got in there with the first amendment to the constitution? Yeah, well, when the constitution was being drafted, there were two main parties agitating for and against it, and those were the Federalists and the Anti-Federalists. And the anti federalists were especially afraid about an overreaching national government, and so they didn’t want to approve the constitution without

6:45 an express guarantee of rights or what we now know as the bill of rights. And so the federalists, however, said, hey, if we list out some rights, people are going to think that those are the only rights that we have, and we can’t possibly sit down and list out all the rights we have, because that list would be innumerable. We have the right to, as I was saying, to go out on the streets and a pink hat.

7:10 We have just a basic entitlement to liberty, and so we can’t set out all of the rights in a bill of rights. So James madison comes up with this genius solution to appease both the federalists and the anti federalist, and he says that, hey, we’ll add in some language that makes clear that just because we list out some rights, that shouldn’t be taken to mean

7:31 that we don’t have others or that others are entitled to lesser treatment. So it was this beautiful political compromise by James Madison that allowed us to come to a constitutional agreement and to get that constitution ratified. So is this something that the Supreme Court has appealed to in different cases, or is this one of those that it’s a good thing that’s there for us to look to and remember, but it’s not necessarily

7:54 been a part of the legal code or sort of our legal understanding. We have seen overall, the Supreme Court recognize the 9th Amendment and recognize rights that are not explicitly listed out in the Constitution. So, for example, you will see cases recognizing a right to privacy, but you can’t find the right to privacy listed out anywhere in the Constitution.

8:16 Yet there are several cases upholding that right. There are cases regarding the right to rear your children, to direct your children’s upbringing, to direct their education. One of my personal favorites, the right to earn a living, the right to combine your passion and your interests and your particular talents, and to go out into the world and to earn a living by providing a valuable service.

8:40 Hey, that’s not anywhere listed in the Constitution. And yet there are several cases recognizing that right and protecting that right. So overall, we do see cases enforcing the 9th Amendment, although I think we would be better off if there was even more protection for these unanimated rights, and courts really took them extremely seriously.

9:00 So I’m really fascinated by how you phrase that too, because, again, thinking about you as a constitutional attorney, I guess thinking about our big question again, why do we bother looking at the text, the 9th Amendment? It seems the way that you’re describing the relationship between the Supreme Court and between the different amendments and the clauses and things that are within the Constitution, it’s sort of a conversation,

9:21 like a constant debate and discussion between different legal minds. Thinking about this document and trying to interpret it in light of this understanding of liberty and equality. Is that sort of a fair way of characterizing, sort of the work that you do as a constitutional attorney, but also the work that we do as citizens and understanding the Constitution? I think that’s fair. And I think that’s why you sometimes see

9:43 disagreement among Justices about what the nineTH Amendment means. It’s because some of them don’t like some of the liberties that are recognized by the 9th Amendment, and they don’t really want to get in the business of deciding which liberties are protected with the 9th Amendment encompasses because they see it as encroaching upon the government’s ability to regulate.

10:03 They see rights is getting in the way. And so there’s been some reluctance by certain Justices to recognize the full breadth of the 9th Amendment and to establish what’s rights are protected. I personally think that we should do away with trying to designate out which right is protected and just acknowledge that we live in a free world, that we are free to act as we like within reason.

10:28 And anytime the government acts, that just puts the burden on the government to justify its action. But this is part of the debate is how strong of a protection do we give the 9th Amendment? Which rights are protected? What’s the court’s role in enforcing it? And that’s part of my job is to advocate for what we think is the proper reading of the constitution. Oh, that’s really awesome.

10:49 And what a cool job you have too. I’m jealous. And so the other one you mentioned was the 14th amendment. And I’ve called out section one of the 14th amendment here in particular because of this due process clause. Because as I understand it, due process is an important idea. And it’s particularly important when we’re talking about these rights and liberties that individual has.

11:12 There has to be this word due process involved whenever it is that rights and liberties are somehow in conversation with what government actually is. So can you sort of first just touch on what’s going on with this 14th amendment and then maybe a little bit about what due process really is? Yeah, so the 9th amendment sort of sets out our liberties and the due process clause is how they actually get protected.

11:37 The due process clause has been interpreted as having two aspects procedural due process and substantive due process. So those are big words. What do they mean? Procedural due process means that anytime the government takes liberty away, it has to be done through a fair procedure. That is, if we’re going to lock you up in jail, well, we have to have a trial first. That’s just fair.

11:58 And it can’t be some kangaroo court. There have to be some basic aspects of it that make it fair. So you have to have notice of what you’re being accused of. You’re entitled to counsel, you’re entitled to present evidence. They couldn’t just lock you up by, say, random lottery or by a five minute trial. That really gives you no protection at all.

12:18 The process through which they take away your liberty has to be meaningful. And that applies also to law making. So anytime Congress is making a law, that process has to be fair too. The legislators can just all get together and play a game of rock, paper, scissors and then whoever wins rock, paper, scissors gets to decide the law. The process by which laws are passed has to be fair.

12:40 So that’s procedural due process. But there’s also another aspect of due process which is called substantive due process. And it means that while the process of how a law is enacted or how your liberty is taken away, that’s a necessary component of a law being valid, but it’s not enough. The law also in and of itself has to be a fair one.

13:03 Otherwise it can’t really be considered a legitimate law. A law isn’t just anything. A valid law is one that’s fundamentally fair. And so what that means is, even if the law has gone through all of the proper processes, basically it has to be a good one. It has to be taking away your liberty for good reason.

13:24 It has to be taken away those liberties that we just mentioned in the 9th amendment for good reason in order to be valid. Yeah, so I think we’re touching a bit on that equality thing too, right thinking about liberty and equality are two big themes for the day. And particularly, again, me being a history guy, thinking about the 14th amendment being passed in 1868 in the wake of the civil war and the abolition of slavery,

13:48 recognizing african american men in this instance as being equal citizens of the United states, I think is really something that’s really powerful. And it seems like that’s what’s carried through with this idea of due process. I guess I’ll just ask you on this one, how has the due process clause been applied by the supreme court?

14:10 What is its significance? Why should we know about it? Yeah, I think that the importance of the history of the 14th amendment can’t be understated. It is so vital to understand where it came from. And that was that after the civil war, we recognized that the federal government needed to play a much stronger role in protecting our rights from abuse by the states.

14:32 Prior to the civil war, it was decided by the supreme court that the bill of rights only applied to the federal government, and that left states to be really a place of lawlessness, a place where people’s rights are being violated, particularly for African Americans. It was just a very bad place to be. And the federal government,

14:54 the Constitution, really didn’t have much to say about it. And so the 14th amendment says that all people need to be treated equally and fairly and that their rights cannot be taken away without good reason, and they can’t be treated differently without good reason. And I think that’s been a very powerful tool for civil rights.

15:16 However, there is one bone to pick I have with the supreme court, and that is that they have interpreted this amendment to give different levels of protection depending on the right issue. So they have said that where the right is explicitly enumerated in the constitution, where we see it written out, or where a right is considered

15:36 fundamental, then the court is going to take a really good look at the law to make sure that it’s necessary and worthwhile. But for other rights, for UNANIMA rated rights or rights that the court doesn’t think important, then they’re just going to subject it to a rather low level of scrutiny.

15:57 They’re going to presume that the legislature was acting constitutionally. They’re going to give it the benefit of the doubt. And it really gives us this dual treatment of rights that I think is not supported by the history of the 14th amendment. It’s not supported by the 9th amendment. I mean, you can see how this very much conflicts with what we just read about in the 9th amendment,

16:19 that some rights shouldn’t be treated as lesser than others. And so even though the due process clause has been an extremely significant tool for civil rights cases because it allows us to go into court and to sue the states and to say, hey, you’re taking away our liberty. Unfortunately, there is this dual treatment of rights that relegates some rights, like the right to earn a living to a lower level of protection.

16:44 Well, Anastasia, thank you so much. Coming back to our big question here, thinking about is the text of the Constitution still relevant today? I think it’s fascinating to look at this for a couple of reasons. Again. The way that you’ve outlined this and even in the complex sort of like.

17:05 Yes. But kinds of things that get woven in there shows. I think. The importance of understanding this document. But also the importance of all of us understanding it so that we can continue to contribute to this sort of ongoing national conversation about how we protect these rights and how we work towards the betterment of everyone. Which I think is exciting.

17:25 Especially on Constitution days. We think about the opportunity of everybody who’s watching this video, all of us in the United States having this opportunity to sort of continue this work and continue these conversations and continue to work to make the constitution live up to those principles of the declaration of quality for all and liberty for all, which, I don’t know, I get kind of excited about it. I think it’s a pretty cool opportunity.

17:48 Yeah, I mean, I would just follow up on that by saying that many places in the world have written constitutions, and yet they can be very big abusers of rights. There are totalitarian governments out there, russia and others, that have explicit protections for, let’s say, the right to press, the right to free press, and yet you see that those rights are being abused.

18:09 So I think that what really matters is not just having a written protection, but having a culture of the constitution. The reason that our rights are so protected in this country is because there has been a lot of engagement with people, with their constitution. We love it, we cherish it, we try to understand it. And I think that it’s this culture of understanding our constitution and appreciating our rights that are

18:32 listed out into it which lead to a free society. It’s not the document itself that’s enough. It’s really people being engaged with it that will ensure that we get to continue living our free way of life. Well attestation. Thank you again for joining me and all of you watching. What questions have you all had as we’ve been working through this?

18:54 If you have any, please share them in the link below. As I said, I was Anastasia will be back with me on Constitution Day to talk more about this. And I’m hoping to on that day that we can get into a case that just got decided this year. I’m having to do with a cheerleader from a school in that area and what she said on Snapchat sort of how rights play out and how the process of discussion and debating these rest.

19:17 So I’m really looking forward to that. But again, Anastasia, thank you so much. Thanks for having me. Absolutely. And we’ll see you all next time.