Misconceptions about our Constitution

By Judge David Langham

One of the best parts of my occupation is that I get many opportunities to engage in conversation with brilliant lawyers and other members of the workers compensation community. Their musings and prognostications are frankly fascinating. I find myself agreeing, disagreeing, or asking questions; sometimes all three. Mentally it is great exercise.

I recently had such a conversation in which my views on rights were challenged. An individual explained to me, in much kinder words, that someone of my intellect would be lucky to discern my own head from a hole in the ground. The dismissive tone, combined with a look of sheer pity in the speaker’s eyes, combined for a persuasive effect. The speaker felt so sorry for me that I almost began to feel sorry for myself. BUT, then I realized that this person was so far off base that it was not even baseball anymore!

The individual explain to me that there are rights which are both constitutionally protected and “absolute.“ Government, the individual explained, can never impair a fundamental right. In the speaker’s reality (more accurately described as a “perspective”) any legislation or regulation which in any way impairs a right is seen as clearly and absolutely unconstitutional.

In fairness, there is a chance that I am just not as bright as this individual. But, it is a near certainty that my memory of law school is probably more effective. My opportunities to teach constitutional law since my first exposure so many decades ago perhaps also play some role.And, I find it most helpful to pound these keys periodically in an attempt to take what is complex and confusing and try to boil it down to something that can at least be swallowed. Not to say it will not sometimes make you sick to your stomach, but you can at least swallow it. 

The fact is that no right is absolute. No right is beyond the potential for encroachment by government, or other people. That last part is really critical. Our constitutional recognition of rights generally inhibits government from impairing them. Our fellow humans might impair our rights at will. And, it is critical to see this as an inhibition of government power, not a prohibition.  

Despite our constitutional construct’s clarity, some people continue to struggle with understanding it. Some key points:

1. “We hold these truths to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights.” Declaration of Independence (many think that quote is from the Constitution itself).

2. Thus, we believe you have rights because you exist. In a parallel to the old saw “I think, therefore I am,” our belief is that “you exist, therefore you have rights.” No government gave them to you, and therefore no government should take them away. 

3. Further, the phraseology in the Bill of Rights, and other amendments, is often directed at government: “Congress shall make no law,” Amend. I.; “No soldier shall,” Amend. III.; “answer for a capital, or otherwise infamous crime,” Amend V. The prohibitions are against what lawyers and judges have come to call “state action.” Even when not so phrased, courts have required state action regarding other stated rights. 

4. The rights stated in the Constitution are some of the rights we enjoy, but not all: “endowed by their Creator with certain unalienable Rights, that among these are.” That is critical, “among these are.” The Declaration does mention some (“Life, Liberty and the pursuit of Happiness”), but the courts have interpreted protections for more than those mentioned. 

5. Government has power because the people gave it. The governments of the U.S. were empowered by the people. Thus, we see support in Amend. IX. for the existence of other rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” We also see that in the all-too-infrequently cited Amend. X.: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” What we have not given is ours indeed. 

Thus, we have a general construct that recognizes that we have individual rights, that they will not be infringed by government, and that it is we who give power to government. 

There arise disputes where some action (by legislation, regulation, or enforcement) of government affects a right. The oppressed person is then in a dispute with government over the conflict between power and right. We might see such a dispute as a tug-o-war in which we alternatively pull and are pulled, in momentary success or trial, until victory or defeat is ultimately reached. Tug-o-war, between the individual and government, is a valid illustration of this interaction. 

For some, the simplicity of that illustration is comforting. Unfortunately, the conflict of rights and powers is rarely between two individuals, competing across a linear conflict. I have therefore suggested, that such conflict may perhaps be better visualized as a tug-of-war among many, each pulling in her/his own direction with a network of rope reminiscent of a spider’s web. Visualize that each of the spokes of the web might essentially be viewed as a point upon which competing interests might pull, with varying persistence and strength. 

In this illustration you might note that it may be possible for one to receive aid from some cohort that is not necessarily directly on one’s side of an argument, but whose interests somewhat parallel. Pulling on that tangential string may move one a bit off their center, but may also help in pulling against the opponent. This parallel cohort may not stand for exactly one’s argument, nor be willing to pull on one’s particular strand, but in pulling upon their somewhat parallel strand, they nonetheless provide us aid. Before we can be individually too comforted by that potentiality, we must understand and accept that our opponent may likewise receive the aid and comfort of some similarly tangentially related cohort arrayed against us; a great many, pulling in various directions, and all acting primarily in their own best interest. 

Perhaps a useful example of fundamental rights is that of freedom of expression. There are those who believe that Americans have an absolute right to freedom of expression (such as the one who lectured me so superciliously recently). However, the United States Supreme Court has repeatedly upheld limitations upon speech. Examples include hate speech, fighting words, certain advertisements, and words creating a clear and present danger (inciting “imminent lawless action”).

Comedian Steve Martin had an interesting take on the latter in the 1970s. It is perhaps instructive. He queried audiences as to whether it was “ethical to scream movie in a crowded firehouse.” Of course, that is a ridiculous construct. However, the corollary has been addressed: “is it appropriate to scream fire in a crowded movie house?” Even a casual observer would likely accept that screaming fire could result in panic, stampede, and injury. Thus, may a government validly prohibit the uttering of such words? Absolutely.  And that leads us back to my recent pitying lecturer and the espoused views that fundamental rights are protected “absolutely.”

In fact, government can impair our rights. We see it in restrictions on free speech, the carrying of firearms, our security in our homes, civil penalties replacing “criminal” prosecution subject to speedy trial and confrontation, and more. Government does impair our rights. And, when it does, our courts are asked to determine very complex questions. To do so, they use “standards of review,” of which there are several. But primarily, three are most often applied. 

The most constricting upon the government is “strict scrutiny.” This is used when government is discriminating based upon race or national origin, and when a fundamental right (whether listed in the Constitution or not) is infringed by government. In these settings, the legal action is presumed to be unconstitutional and government has the burden of proving two things (1) a compelling governmental interest in impairing the right, and (2) that its solution is “narrowly” constructed to address that proven interest. 

There is another, called “intermediate scrutiny” that is employed when the government is discriminating based upon gender (because of the absence of gender protection in the Constitution on a similar plane as the race and national origin protections in Amend. XIV.). In“intermediate scrutiny,” government must demonstrate an “important interest” is being addressed, by a method or means that is “substantially related” to the interest. It is not as complex or difficult as “strict scrutiny,” but it significantly limits government action in various contexts. 

The third major category is “rational basis.” Under this maxim, the government’s actions are presumed to be constitutional. By deciding to review an action under this standard, the court will have determined that the question does not address circumstances that dictate one of the “heightened” standards already mentioned. Using “rational basis,” most action would be deemed acceptable. 

And, thus, in the right circumstances, with an appropriate demonstration of both “interest” and “method,” government can in fact impair individual rights. This remains a truth regardless of how fundamental those rights might be perceived. The distinction lies in how burdensome the proof will be for the government. The more critical or fundamental the right impaired, the more difficult the government will have to strive to demonstrate its “interest” and the appropriateness of its solution. 

The concepts are not easy, in theory or practice. If anyone tells you that it is, perhaps you might doubt them. If the state can regulate your speech, which was important enough to be recognized in the very first amendment, it should be conceivable that government can impair any right. That is not to say it may do so at will or without justification. But, the conclusion that there are rights that are so fundamental that they cannot be impaired is simply indefensible. 

In the end, these analyses will perhaps be of use in understanding the various constitutional challenges we read about regarding workers’ compensation. In concluding that the “grand bargain” was mutually both beneficial and detrimental to everyone involved, the U.S. Supreme Court held it to be constitutional. But, recent history illustrates that overall view of the concept does not mean that various aspects within it are beyond a court’s reproach.