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[excerpted from 1996 material by the American Bar Assn.]
AMENDING THE CONSTITUTION
1. According to Article V, amendments can be proposed by a two-thirds
majority vote in Congress or at a constitutional convention called by
two-thirds of the states. In order for a proposed amendment to become
part of the Constitution, approval by three quarters of the states is
2. More than 10,000 amendments have been proposed, but only 27 have
become part of the Constitution. The first ten amendments, known as the
Bill of Rights, were ratified in 1791. Amendment XXVII, which regulates
congressional pay adjustments, was ratified most recently, in 1992.
3. The Equal Rights Amendment, passed by Congress in 1972, fell three
states short of being ratified in 1982.
4. As many as 120 amendments are currently proposed, including several
that would fundamentally alter our government.
1. What is the purpose of amending the Constitution and when is it
appropriate? What other means exist for reaching the goals of a proposed
2. Is the amendment process too cumbersome and lengthy, or not
3. In the last several years, amendments permitting prayer in public
schools, requiring a balanced federal budget, limiting terms of members
of Congress, and banning flag burning have been advocated by various
groups. Are these amendments necessary? What impact might they have on
government and/or on rights guaranteed in other parts of the
1. When the U.S. Constitution was ratified 200 years ago, the
electorate included only a small portion of the total adult population.
Since then, the right to vote has steadily been expanded. Eight of the
16 amendments to the Constitution adopted since the Bill of Rights have
involved voting rights.
2. The Fifteenth Amendment (1870) stated that one's right to vote may
not be denied on account of race, color or having been a slave; the
Nineteenth (1920) extended the vote to women; the Twenty-fourth (1964)
barred poll taxes in federal elections; and the Twenty- sixth (1971)
extended the vote to eighteen-year-olds.
3. Despite constitutional guarantees, other restraints kept minorities
from voting. By 1940 only three percent of Southern blacks of voting age
were registered. Now, protective laws bar poll tests, mandate bilingual
assistance where needed and prohibit the government from making policies
that dilute the proportional representation of a racial or ethnic group.
By 1992, 54 percent of Southern blacks of voting age voted--a proportion
almost exactly at the national average.
4. The Supreme Court decision in Westberry v. Sanders, 376 U.S. 1
(1964), required states to draw congressional districts that are as
equal in population as possible, ensuring proportional representation.
5. In 1982, the Voting Rights Act established a "results test," which
outlawed drawing of voting district lines that resulted in
discrimination against a specific group, whether or not discrimination
6. Many states have laws helping persons with disabilities, the
homeless and others to vote.
7. The National Voter Registration Act ("Motor Voter Act") of 1994
requires states to streamline voter registration by allowing
registration for federal elections by mail and at state drivers license
8. The 1992 presidential election showed the highest voter turnout
since 1972. Yet only 55 percent of Americans of voting age (104,405,155
voters) cast ballots. And only 38 percent (73,152,131 voters) voted in
the 1994 congressional elections.
9. The state of Minnesota traditionally has had the highest voter
turnout: 72% of voting-age Minnesotans voted in the 1992 Presidential
election; 53% voted in 1994.
1. Should homeless people be registered to vote?
2. In areas where the ethnic make-up of the population is rapidly
shifting, such as Florida, how can fair proportional representation be
3. Should race alone be considered in drawing voting districts? Might
that discriminate unfairly against other groups, such as senior
4. Should redistricting be based on total population or on registered
5. Claiming that the Motor Voter Act unconstitutionally requires
states to carry out a federal responsibility, several states have sued
in U.S. Federal District Court. Does the federal government have the
right to mandate state voter registration mechanisms?
6. Why don't more Americans vote?
FREEDOM OF EXPRESSION
1. The First Amendment has been held to address issues as diverse as
prayer in the schools, hate speech, and school dress codes.
2. The Free Speech Clause of the First Amendment is intended to remove
governmental constraints from public discussion and diversity of
opinion, which are essential to decision- making in our democracy. The
Supreme Court has interpreted "speech" to include such symbolic forms of
expression as the wearing of buttons or armbands, as well as artwork and
3. In Texas v. Johnson, 491 U.S. 397 (1989), the Supreme Court held
that burning the flag was a protected form of symbolic political speech.
4. In Tinker v. Des Moines School District, 393 U.S. 503 (1969), the
Supreme Court held that the First Amendment protects public school
students' rights to express political and social views. In this case,
students had worn black armbands to protest the Vietnam War.
5. The U.S. Supreme Court has ruled that courts can regulate noise and
create a no-entry, 36- foot buffer zone around the entrance to abortion
clinics without violating protestors' free speech rights.
6. Several states and municipalities have tried to limit offensive
speech through "hate speech" laws, legal constraints on what people may
communicate to one another in spoken words, in writing or through
expressive conduct. In 1992 the Supreme Court found a St. Paul,
Minnesota hate speech law unconstitutional because it only banned
selected types of "fighting words." The Court defined "fighting words"
in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), as those that "by
their very utterance inflict injury or tend to incite an immediate
breach of the peace."
7. The First Amendment bars the government from establishing a
religion and protects the free exercise of religion. The Supreme Court
has often been called upon to reconcile the sometimes conflicting
demands of the "free exercise" and "establishment" provisions of the
1. When is it constitutional to limit speech? Are laws regulating
"hate speech" (e.g., making racial slurs or ethnic jokes, displaying
burning crosses or swastikas) unconstitutional? If so, on what grounds?
How far can government go in forcing people to be "nice"? Does
regulating such speech promote or inhibit diversity?
2. How would a constitutional amendment banning flag-burning or one
allowing prayer in public schools affect the freedoms guaranteed in the
Bill of Rights? Would such changes advance or inhibit a diversity of
3. Some school districts around the country have tried to control gang
violence and other problems by imposing student dress codes. Are dress
codes unconstitutional restrictions on free expression? Is restricting
dress in one school and not in another an abridgement of the Fourteenth
Amendment's Equal Protection Clause?
DUE PROCESS AND RIGHT TO COUNSEL
1. In federal cases, the right to due process is guaranteed by the
Fifth Amendment, which protects against self-incrimination and double
jeopardy and provides that "no person shall be deprived of life, liberty
or property without due process of law;" and the Sixth Amendment, which
guarantees the accused in a federal criminal case the right to be
informed of the nature and cause of the accusation, the right to
confront witnesses against him, and the right to have "Assistance of
Counsel for his defence."
2. The Sixth Amendment also guarantees that a criminal defendant the
"right to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed... ."
3. The right to counsel in state cases is guaranteed by the Fourteenth
Amendment, particularly the Due Process Clause.
4. In Gideon v. Wainwright, 372 U.S. 335 (1963), Clarence Earl Gideon,
a poor drifter accused in a Florida state court of felony theft, fought
to have legal representation at his trial. The U.S. Supreme Court ruled
that the right to counsel also extended to the state courts. Justice
Hugo Black wrote, "(I)n our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him..."
5. Argersinger v. Hamlin, 407 U.S. 25 (1972), extended the right to
counsel to misdemeanor cases that might result in a person serving time
in prison if found guilty.
6. Miranda v. Arizona, 384 U.S. 346 (1966), established that a person
in custody has a right to legal counsel when being questioned by police
or other law enforcement officials, based on the Fifth Amendment's self-
incrimination protection. In In re Gault, 387 U.S. 1 (1967), the Court
recognized the special need for juveniles to have a lawyer in trial-like
7. In McMann v. Richardson, 397 U.S. 759 (1970), the Court emphasized
the right to effective legal assistance for the poor. Strickland v.
Washington, 466 U.S. 668 (1984), made it difficult to prove ineffective
legal assistance by narrowly defining a lawyer's lack of proper counsel.
1. Can a person receive "equal protection" and "due process" in court
without a lawyer? In a civil case, can a person who is not represented
by a lawyer get a fair result against a person who is?
2. In high-profile cases, is it really possible to find an impartial
3. Should legal representation be a guaranteed right for all people,
rich or poor? Given the costs of hiring attorneys, should middle class
people be entitled to subsidized legal assistance?
4. Should legal services for the poor be a federal responsibility, or
should it be entirely in state or local hands?
5. Do differences in peoples' access to legal services lead to, or
exacerbate, disparities among different groups in society?
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