Constitution Day is a federal observance of the day the nation adopted the Constitution, Sept. 17, at the 1787 U.S. Constitution Convention in Philadelphia.Cons
The University of Idaho celebrated the holiday with a panel discussion in the Law School Courtroom titled “Sex, Drugs, Guns and Spies.”
The four UI professors and law scholars on the panel presented one of the four topics ranging from gay marriage, marijuana legislation, gun control and the legalities concerning exposure of confidential documents. Each speaker was given 10-12 minutes to give a brief history of the constitutionality of the issue, as well as their personal take on future developments.
The panel was followed by a brief 30-minute question and answer period.Sex — What did the court really decide on DOMA?
The panel began with a discussion of sex, but more accurately, same-sex marriage and equality.
Professor of political science Don Crowley discussed the recent legislation considering two U.S. Supreme Court cases, U.S. v Windsor, to consider the constitutionality of the Defense of Marriage Act; and Hollingsworth v Perry, to challenge California’s controversial Proposition 8 measure.
The Supreme Court decision ruled against an article of DOMA earlier this year. DOMA was introduced in 1996 — restricting the legal definition of marriage to be between a man and woman. In essence, Crowley said, the Supreme Court could have made a decision on same-sex marriage but didn’t.
“To those audiences who were anticipating a blockbuster answer as to the constitutionality (of DOMA and same-sex marriage) — you’re probably disappointed,” Crowley said. “I suppose (supporters of same sex marriage) had come away feeling like they had won in a sense, but it’s hard to tell who won.”
Between both landmark judicial decisions and the ongoing changes following the rulings, Crowley said the legalities of same-sex marriage are going to be a continually convoluted issue.
“DOMA defined marriage between a man and woman for all federal laws and federal contexts,” Crowley said.
But the Supreme Court overturned it, as it was considered a deprivation of individual liberties.
“My guess is Kennedy is just stalling,” Crowley said. “This person is not going to ever argue that states can hold people back from getting married.”
Drugs — Marijuana legislation not up in smoke
Colorado and Washington became the first two states to pass legislation legalizing recreational marijuana use in last November’s election.
College of Law professor and Associate Dean for Faculty Affairs Richard Seamon said the expected development of a state marijuana market hasn’t happened yet — and it may not happen until there is more consistency between federal and state law.
“What happens when state law says one thing, and federal law says another?” Seamon said.
According to the current structure of the executive branch of government, the President is the primary enforcer of all constitutional laws, but he has the power to delegate the enforcing to the attorney general. Seamon said Attorney General Eric Holder took on much of the responsibility in enforcing marijuana legislation, and sent a memorandum in August describing the prosecutors jobs when criminalizing those breaking federal marijuana laws.
“In consultation with President Obama, (it’s clear they have) bigger fish to fry than to go after these recreational marijuana users from Colorado and Washington,” Seamon said.
Seamon said the progression of marijuana legislation will be premised by the states making sure the drug doesn’t get into the wrong hands. Both states currently have strict laws against use or possession of marijuana by minors, undocumented growing, gang selling and organized crime surrounding the drug.
“The situation is quite fragile — it should be interesting to watch just how Washington and Colorado set up their systems of distribution,” Seamon said. “For the moment it’s fine, but this thing could change tomorrow. All of this is made possible by our wonderful Constitution.”
Guns — Packing heat, legal tensions
Idaho has been considered a longtime “red” or more pro-gun state said law professor Shaakirrah Sanders.
“This has not been one of the sexier (amendments) in our history,” Sanders said. “But it’s gotten me very excited, primarily it just didn’t seem to be as important as the other amendments, historically.”
Sanders said there were 283,000,000 guns circulating in civilian hands in the U.S. — almost one per person — and that doesn’t include firearms carried in the hands of law enforcement.
It wasn’t until 2008, Sanders said, that gun control and the limitations of the Constitution’s Second Amendment became an important issue in the development of society.
In the landmark Supreme Court case District of Columbia vs. Heller, justices decided the Constitution protects an individual’s right to possess a firearm for lawful purposes, such as self-defense. Later, the court heard McDonald vs. Chicago in 2010, and decided the Second Amendment also protects an individual’s right to keep and bear arms for self-defense, but only on a state level.
“But should things start to go down on the street or in your home in particular,” Sanders said. “Your right (to have a firearm) is not absolute.”
Sanders said the largest arguments surrounding future discussions of gun control continue to be whether the individual is protected at home or in public, whether the firearm is concealed or unconcealed and whether the firearm is loaded or unloaded. She said these issues will continue to influence further legislation concerning firearms.
Spies — Keeping secrets seems no easy feat
Michael Park, a recent addition to the School of Journalism and Mass Media faculty, is a law scholar and teaches media law.
Park said the Obama administration is continuing to carry out an unprecedented attack on government employees who leak confidential information to the press, despite having campaigned on increased protections for whistleblowers.
“To what extent does national security support the suppression of free speech?” Park said. “It’s essentially about accountability and speech related to accountability.”
The publishing of the classified Pentagon Papers was the first time confidential government documents had been published in efforts to give civilians information.
While the Senate is currently deciding what will legally and officially constitute a “journalist,” and who then deserves the protections offered by the First Amendment, Park said there is a fine line between unleashing information that could become a threat to the country’s national security and fleshing out information the people deserve to hear.
Park said these employees who have leaked classified documents are privy to the illegitimate and unconstitutional behavior of some government agencies, and know the power behind the information.
“Why did they leak?” Park said. “Did they hate the country? No, it was to hold the country accountable. The idea of the fourth estate, as (Thomas) Jefferson said, is he would rather have newspapers without government, than government without newspapers to keep the governments honest.”
Chloe Rambo
can be reached at