Protecting our Constitutional Rights: A Constitutional Lawyer’s Perspective

SAM_0762.JPGGuest blog post by Maurice MonroeL.L.B., L.L.M.  

From 1980 to 1985, Maurice taught law at the University of Birmingham. From 1985 to 2014, Maurice was a law professor at Western Michigan University Cooley Law School where he taught constitutional law, federal civil rights law, contracts law, torts law, and employment law. During this time, he received numerous teaching and service awards. Maurice retired from WMU-Cooley in 2014.

“[You have] a Republic, if you can keep it!” (Benjamin Franklin)

Today, rights are at the center of public debate, and as a constitutional law professor, and a citizen, I am glad! For even in the absence of grave injustice or heartbreaking tragedy, the meaning of individual rights should be foremost in our public consciousness, because rights are an essential ingredient of our free society.

And if we agree that our Constitution provides the framework for governing our country and organizing our society, we should also agree that constitutional rights must be protected.

What is a Constitutional Right?

Constitutional rights protect our freedoms from government restrictions. However, not all freedoms are constitutional rights. For instance, I have the freedom to own a home, but the Constitution allows the government to impose numerous legal restrictions on how I enjoy my property. For example, in Lansing you cannot construct a fence higher than six feet in your back yard, and in East Lansing you cannot keep chickens in your garden without a permit. Now these regulations may be for the public good, but they also restrict the freedom of property owners.

Some of our freedoms, however, are fundamental and are protected by our Constitution as rights. Many of these rights, including the 1st Amendment right to free speech, are listed in our Constitution. And while there is a strong presumption that government laws cannot restrict rights, the Supreme Court has long held that these rights are not absolute. “…[T]he liberty secured by the Constitution…does not import an absolute right in each person to be at all times and in all circumstances wholly freed from restraint.” (Jacobson v Massachusetts). For example, if a law restricts freedom of speech, the law is unconstitutional unless the government can prove it has a sufficiently important purpose to justify the restriction.

Who Protects Our Constitutional Rights?

What do we do if we believe that a state law (actual or proposed) unconstitutionally restricts our rights?

Do we first look to the courts for protection? “Hey, let’s get a judge to strike down the law.” But how many of us can afford to file a legal suit, or navigate the complex court system? And did our nation’s founders intend us to protect our rights with a barrage of lawsuits?

We are a Republic: a self-governing people.

The world over, people consider America the most inspirational (and long-lived) example of a nation designed at birth with the ideal of freedom at its core.

Let us try this thought experiment. Why aren’t our laws more restrictive than they are? Well here’s the answer. “[T]he will of the people is the only legitimate foundation of government” (Thomas Jefferson). So, our Constitution was written with ideals shared by ‘We the People’, it was approved by ‘We the People’, and it can be amended only with the consent of ‘We the People’. And our Constitution created a Republic and guarantees to each state a republican form of government. A republican form of government means that ‘We the People’ are sovereign, and we govern ourselves through our duly elected representatives.

By virtue of our republican form of government, we are empowered, as citizens and communities, to protect our cherished freedoms. So, we have the right to vote, lobby our representatives, speak freely to influence our neighbors, march in the street to draw attention to our cause, and enter associations with others to press our cause more effectively. We also have the right to run for elected office. In this way, we ensure that, at the state and federal level, our freedoms, are protected. You see, it is we, not our judges, who are the prime guarantors of our liberty.

Here’s how our system works. Suppose that California passes a law restricting signs on residential property. Following a legal challenge, the Supreme Court finds that this law is constitutional because California has a sufficiently strong reason for restricting a home owner’s freedom of speech. Does this mean that home owners in Michigan are prohibited from placing such signs on their property? Well no, so long as ‘We the People’ of Michigan have either passed no laws restricting this freedom or passed laws protecting this freedom. Bear in mind that while we cannot limit our rights, we can expand our freedoms beyond them!

So, if we wish to protect our freedoms, we should, as our first order of civic duty, participate in the democratic process. We are the guarantors of our own freedom, and if we leave it to the judges, we cease to be a ‘self-governing people.’

Protect Your Rights by Informing Yourself, Pressing Your Case and…Listening!

So, protecting freedom is not so much a legal matter as a political one, and it is our job as citizens to do the hard work that this entails. “Those who expect to reap the blessings of freedom must…undergo the fatigue of supporting it” (Thomas Paine).

To exercise our right of self-determination and protect our freedoms, we must engage in discussion and debate. But, our debate should be informed, and we must remember that rights are not absolute. So, a statute that restricts a cherished freedom does not necessarily violate a constitutional right.

We must also remember that “Freedom has never relied on uniformity of opinion” (President Kennedy). For each of us has an equal interest in “life, liberty and the pursuit of happiness” and your idea about freedom may not be the same as your neighbor’s. So as a state and as a nation, we may have to strike compromises. As President Nixon noted, “We can maintain a free society only if we recognize that in a free society no one can win all the time, no one can have his way all the time, and no one is right all the time.”

Our founders gave us a Republic. It is our job to keep it!