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Nia and Aughie continue their discussion of the text of the U.S. Constitution. This episode focuses on rights that are (and are not) enumerated in the text.
This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
Nia Rodgers: Hey Aughie.
John Aughenbaugh: Good morning Nia. How are you?
Nia Rodgers: I'm good. How are you?
John Aughenbaugh: Well, I'm lovely, of course, because I get to talk about one of my favorite documents of the United States Constitution, and [OVERLAPPING]
Nia Rodgers: Which we have established you sleep with underneath your pillow at night.
John Aughenbaugh: Yes.
Nia Rodgers: If it's seeps into your brain, isn't how it works to study for things? I'm pretty sure some of your [LAUGHTER] students study that way. They put your class notes under their pillow and hope for the best.
John Aughenbaugh: Learning by osmosis.
Nia Rodgers: It's right. [LAUGHTER]
John Aughenbaugh: Listeners. This is Part 2 of an episode where we are discussing things that are not in the constitution.
Nia Rodgers: Yes. If you're curious about the previous episode, that was things that didn't make it in because they've got dissed. Like Madison came up with all these flowery things, and then later on other people came up with flowery things and said, "Hey, let's put these in the Constitution," and everybody else went, "No we're good." [LAUGHTER]
John Aughenbaugh: Yeah, the previous episode was the proposed amendments that for whatever reason or reasons just didn't make the grade.
Nia Rodgers: Now what we're talking about, if you've seen the movie, "The Princess Bride."
John Aughenbaugh: Yes.
Nia Rodgers: One of the characters regularly says, inconceivable, and then another character says to him, I do not think this word means what you think it means. [LAUGHTER] First of all, that's Mandy Patinkin is a gem in our acting sphere. [OVERLAPPING].
John Aughenbaugh: One of the greatest American actors of the last half century.
Nia Rodgers: He's marvelous. Also, I think sometimes about the Constitution. I do not think that means what you think it means. I think when people say certain things about the Constitution, I hear him in my head. Because I think that people think there's a lot of stuff in there that's not in there. I know that you have a list that you want to talk about if things that are not in there that you think are in there. Can we start with my favorite?
John Aughenbaugh: Yeah, go ahead.
Nia Rodgers: My favorite is I have a right to privacy.
John Aughenbaugh: I hate to break this to any listeners. The founders didn't give a tinkers darn about your privacy or anybody's privacy. They did not have the concept of privacy for a variety of reasons. One, whole bunch of people living in a relatively small space.
Nia Rodgers: You have servants or slaves or what have you living in those spaces with you. They just were not alone. They didn't have privacy in that way. The other thing is, they also lived on farms that were distant from other people. [OVERLAPPING] Then they have the insulation.
John Aughenbaugh: You can go weeks if not months-
Nia Rodgers: Exactly.
John Aughenbaugh: -without seeing any official from the government.
Nia Rodgers: Or without seeing anybody neighbor-wise unless you saw them on Sunday at church. There's no [OVERLAPPING]
John Aughenbaugh: Yeah, fair point, but in terms of the right to privacy, the right to be left alone.
Nia Rodgers: By the government?
John Aughenbaugh: Yeah, by the government intrusion.
Nia Rodgers: You saw that guy once a year when he came to collect taxes.
John Aughenbaugh: That's it.
Nia Rodgers: You saw the postal delivery guy who didn't have any interest in what you were doing with your mail. He just had a job to do, he was showing up handing you stuff and moving on.
John Aughenbaugh: Yes. Their concept of privacy it just didn't exist the way it exists now, and so, am I correct that there is absolutely no evidence of the word privacy in the Constitution?
John Aughenbaugh: That is correct. There is no specific reference to privacy in the Constitution. However, because of various Supreme Court rulings, we now have a right to privacy that according to the court, can be traced to a number of amendments. For instance, Nia, the 9th Amendment states that just because there is a listing of rights in the Bill of Rights, does not mean the people don't possess other rights.
Nia Rodgers: Sorry.
John Aughenbaugh: Okay.
Nia Rodgers: Got you.
John Aughenbaugh: But of course that begs the question, what are these other [OVERLAPPING]
Nia Rodgers: Other right.
John Aughenbaugh: Other enumerated rights not listed in the Constitution? Well, according to the Supreme Court, starting with the case of Griswold versus Connecticut in 1965, the court has developed and expanded, this right to privacy. In Griswold, it was the right of married couples to choose or not to use contraception.
Nia Rodgers: That's the thing that shouldn't be anybody else's business. [LAUGHTER]
John Aughenbaugh: By the way, a strong majority of the court agrees with you, Nia.
Nia Rodgers: That's because I'm right. [LAUGHTER]
John Aughenbaugh: Of course.
Nia Rodgers: I mean, hello.
John Aughenbaugh: But [LAUGHTER] what was interesting was that there was a majority opinion and four separate concurring opinions because they could not agree where to locate or base the right to privacy.
Nia Rodgers: That's awesome. It's not in here technically, but it's in here implied somewhere. We're all going to choose different places that we think it's implied. [OVERLAPPING] That 1965 see, that's a very modern. [OVERLAPPING]
John Aughenbaugh: It is a very modern conception. [OVERLAPPING]
Nia Rodgers: [OVERLAPPING] Because if Madison had the conception of a right to privacy, one could argue that he would have written it in there explicitly.
John Aughenbaugh: Yes.
Nia Rodgers: Implied means that he just assumed, well, of course you have privacy. How would you not have privacy? [LAUGHTER] He also couldn't see a future where I mean, think about the cities then we're just not nearly the size that they are now. People are living on top of each other the way they are now, the government wasn't nearly as intrusive is, and it wasn't ever in his mind intended to be intrusive. This is that whole Anti-Federalist the government shouldn't be this intrusive overseer that knows all the things including, "Oh my goodness, your contraceptive habits," which is just mind-blowing to me that anybody would have to bring a legal case to have a discussion about who should know about your reproductive habits in that way? [OVERLAPPING]
John Aughenbaugh: Marital relations.
Nia Rodgers: Yeah, no.
John Aughenbaugh: Then two years later, the Supreme Court in the case of Katz versus United States, which was a 4th Amendment case, went ahead and said that the 4th Amendment protected people not places, and that the standard to judge the government conducting searches and seizures should be a reasonable expectation of privacy, acknowledged or accepted by the public. This is where you begin to see- [OVERLAPPING]
Nia Rodgers: They can't do a full body cavity search of your person for a traffic stop.
John Aughenbaugh: Yes.
Nia Rodgers: Because that would be considered an invasion of your privacy and boy, would it because that would happen on the side of the road too which will be [OVERLAPPING]
John Aughenbaugh: I mean, and again, this gets to this notion of expectation of privacy.
Nia Rodgers: Or non expectation of privacy. Because if you're out in public, I mean, I know there have been cases about you can't take my picture because lots of businesses and governments have cameras set up all over a city to watch for crime, to do all kinds of things. There's lots of reasons why you would do that, but that if you go out in a city, you don't really have an expectation that you can prevent people from taking your picture. If you're outside, then you've let go of the right of privacy.
John Aughenbaugh: Or I mean, the classic example is, let's say the police bring you in for questioning. Can they go ahead and record your conversation or anything that you say? Sure. Because you have no reasonable expectation of privacy [LAUGHTER] in a police station. However, if your attorney shows up, then says to the cops, turn off the recording devices because I'm going to have a confidential conversation with my client, than the cops have to.
Nia Rodgers: I wonder if the out lawyer doesn't ask for that.
John Aughenbaugh: Well, technically, they could probably try to get around it, but if they get the wrong judge, the judge would say, come on now.
Nia Rodgers: You knew that there was an expectation [OVERLAPPING] of privilege between a client and the lawyer. It gets complicated, but I think it's interesting in your case that you brought up is 1960s and when we go a long time without there being this question.
John Aughenbaugh: Yes.
Nia Rodgers: Because people don't assume a right to privacy. They don't assume that their neighbors and their police officers and their town officials don't know what everybody's doing. And just speaking as a person who comes from a small town, they do know what everybody's doing. If I had committed a crime downtown by the time I got home, my parents would be ready for a beating because everybody between downtown and my house, would have called my parents and said, you don't know what she did down here, but I saw her doing graffiti, and the next thing you know, I'd be in for whopping because there's no expectation for privacy in a small town. [LAUGHTER]
John Aughenbaugh: Yeah. I mean, the cops never had to get search warrants in my small hometown. [LAUGHTER] All they had to do is just sit back and wait for the rumor mail, the conversation mail to get back to a police officer who might be at the local Dunkin' Donuts. By the time I would get home, my mother knew, my sisters knew, my grandmother knew, my uncles knew, and all of them wanted to have conversations. I'm using air quotes, "Conversations with me." [LAUGHTER]
Nia Rodgers: Which is just funny because that's a whole separate vigilante question. [OVERLAPPING]
John Aughenbaugh: Of course Nia before we move on from the right of privacy, the big one, the right to privacy was extended by the Supreme Court in Roe v. Wade, claiming that the right to privacy included a woman's right to choose whether to have an abortion or not.
Nia Rodgers: I didn't know that's what that was founded in.
John Aughenbaugh: It is rooted [OVERLAPPING] in the right to privacy.
Nia Rodgers: [OVERLAPPING] Interesting.
John Aughenbaugh: Yes.
Nia Rodgers: That's 73, 74?
John Aughenbaugh: Seventy-three.
Nia Rodgers: Within a decade, we go from not having a clearly recognized right to privacy, to the Supreme Court [LAUGHTER] issuing ground breaking rulings that say.
John Aughenbaugh: You do have these expectations.
Nia Rodgers: You have these expectations. But here's the thing. This conversation that you and I are having is pointing to how nebulous the right to privacy truly is. Because if the membership on the court changes, you get a whole bunch of strict constructionists on the court. They can go ahead and quite easily say,
John Aughenbaugh: It's not in the Constitution.
Nia Rodgers: It is not in the Constitution.
John Aughenbaugh: Implied isn't the same thing as being in there.
Nia Rodgers: Explicitly stated. They could quite easily say, as strict constructionists are fond of saying, if the people want a change to the Constitution. There's a way to do that.
John Aughenbaugh: There's a way to do it and we're not it. [LAUGHTER]
Nia Rodgers: You would need to look at the legislature, you would need to be giving side eye to the legislative branch because it is in fact their job to do that not the laws. That's where that may turn again.
John Aughenbaugh: Yes.
Nia Rodgers: But there are some things that are immutably not in there.
John Aughenbaugh: Yes. The people repeat claim all the time and when they do Nia, it takes everything I have not to go ahead and just play devil's advocate with that.
Nia Rodgers: Cite your source. What part of the Constitution is that in? [LAUGHTER].
Nia Rodgers: I'm going to need you to tell me which of the articles you found that in and when they go. Until you've read the document, don't tell me what's in it. The Constitution and the Bible fall into these categories. [OVERLAPPING]
John Aughenbaugh: Okay, fine. Where is it in the Bible?
Nia Rodgers: Exactly.
John Aughenbaugh: And they are like, and I said, No seriously. Because like I said, I've read and studied the Bible and you're making a claim of which I'm unfamiliar. Likewise with the Constitution. I've studied, researched it, taught it for years. I'll just give you one of the examples. Innocent until proven guilty. That's not in the Constitution. It is not in the Constitution.
Nia Rodgers: The Constitution actually technically, correct me if I'm wrong Aughie, but I think that the Constitution doesn't care whether you're innocent or guilty. It cares what can be proved in a court of law. Your innocence or guilt is not actually relevant except as to going to prove what legally happened.
John Aughenbaugh: The emphasis in the Constitution and I tell my students this all the time. I said if you look at the fourth, fifth, sixth and to a certain extent the eighth amendments, those are the amendments that give you rights if you're accused of crime. The Constitution doesn't care if you actually committed the crime. It gives you rights that force the government to jump through hoops to demonstrate that you did.
Nia Rodgers: They have to prove a thing.
John Aughenbaugh: Yeah, they have to prove a thing. It's an adversarial system.
Nia Rodgers: Which is good. We don't want the system to be assuming guilt and then you have to prove your innocence because that's a lot more expensive and oonerus on the individual. It should be up to the state to prove that you are guilty because it has the larger resources to do that. It puts the financial and social burden on the party that has more of the resources than on the other party.
John Aughenbaugh: Because in effect Nia, the state is claiming you harm the community.
Nia Rodgers: You harmed the state. The state being everybody else around you.
John Aughenbaugh: Yeah, because the government represents the collective and this is an individual right. It basically goes ahead and says to the state, if you're going to claim that Nia, is this no good blah-blah-blah who did x, you're going to have to jump through hoops because otherwise, we assume she's a member of good standing.
Nia Rodgers: That doesn't come from the Constitution though. That concept.
John Aughenbaugh: Is British common law. Judges sometimes.
Nia Rodgers: I'm assuming that you're a decent person until someone proves otherwise.
John Aughenbaugh: Yeah and if you route it into political philosophy Nia, it comes from classic republicanism. Small r, not Republican Party. Classic republicanism emphasizes the collective but the constitution protects the individual. That's classic liberalism, small l. Of course my students are just like, and I say, you are guaranteed a process. It's called due process of law. If the government wants to bridge your life, liberty or property, by the way, if they take you to court and you're found guilty, you may lose your liberty and your life and in some cases, if you spend enough time in jail, your property. The burden is on the government. The system itself does not necessarily assume that you are innocent. The system doesn't care.
Nia Rodgers: The system only cares what it can prove.
John Aughenbaugh: Yes. Likewise, people believe that they have a right to a fair trial. Nia you've heard me say this before. Fair is a four-letter dirty word as it comes to the US constitution.
Nia Rodgers: That's right. In George Carlin's list of dirty words, fair should have been one of them as far as the constitution is concerned. Fair could not be more subjective. That's the problem with that concept is that fair is wildly subjective. What I think of as a fair trial and what you think of as a fair trial would be wildly different.
Nia Rodgers: You're guaranteed a speedy trial. They can't just make you languish waiting for legal redress.
John Aughenbaugh: Nia what you're referencing is the fact that the Sixth Amendment in particular has a number of, if you will write, or those accused of crime are correct. I'm going to start to use correct here because we're right.
Nia Rodgers: Exactly.
John Aughenbaugh: You have various rights if you're accused of crime like looting, go ahead Nia.
Nia Rodgers: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.
John Aughenbaugh: That's right. So these are all things that you have access to. Notice Nia what you just read. Did it ever say a fair trial.
Nia Rodgers: Nope.
John Aughenbaugh: No. So technically, could the state give you a trial with all those elements and the trial still be "unfair".
Nia Rodgers: Oh, I think so.
John Aughenbaugh: [LAUGHTER] of course.
Nia Rodgers: They have to give you a public and speedy trial by an impartial jury?
John Aughenbaugh: Yes.
Nia Rodgers: Where the crime happened. They have to allow you to call witnesses and they have to allow you to have an assistance. You have to have assistance for your counsel and you get to confront your witnesses meaning you get to ask them questions.
John Aughenbaugh: That's right.
Nia Rodgers: But all of that could be met without being fair. What people would consider to be fair and usually what people consider to be fair is what goes in their favor. That's the other thing is that whenever you lose, you're like, that is not fair.
John Aughenbaugh: I'll ask, why is it not fair. It's like a conversation I have with my daughter.
Nia Rodgers: Because I lost. That doesn't make it inherently unfair sweetie. [LAUGHTER]
John Aughenbaugh: It reminds me of a funny anecdote. The first time her basketball team played a game, they lost and she comes mopping off the court and I said, "what's up Mackenzie?" And she goes, "That wasn't fair." I said," Because you lost" and she goes, "Yes". She looked at me like.
Nia Rodgers: What's wrong with you? Of course, that's obvious. [LAUGHTER].
John Aughenbaugh: You got to play four eight-minute quarters. Did the refs call fouls? Yes.
Nia Rodgers: Did they call them on both sides? Yes.
John Aughenbaugh: She looked at me and she goes, "But we lost?", and I said, yes, but it was still fair. It was a fair game. You just lost. No biggie.
Nia Rodgers: Yeah, you just lost. [OVERLAPPING]
John Aughenbaugh: But there's a related one that you mentioned as you were listing the rights in the Sixth Amendment and that is, people believe that the constitution protects a right to a jury of your peers. No, it doesn't.
Nia Rodgers: It's an impartial jury.
John Aughenbaugh: Yes.
Nia Rodgers: It says nothing about your peers. [OVERLAPPING]
John Aughenbaugh: About a jury of one's peers, because [OVERLAPPING] the reality is, it would be almost impossible for a court system to get an exact replica of your peers to serve as a jury.
Nia Rodgers: I'm going to need you to get all female librarians in their 40s and 50s [OVERLAPPING].
John Aughenbaugh: Who grew up in a small rural town in North Carolina, blah blah blah, who was raised in a religious family. Look at all those disqualifying variables [OVERLAPPING]
Nia Rodgers: Exactly. What's interesting is that, that question comes up a lot in terms of race.
John Aughenbaugh: Yes.
Nia Rodgers: In juries where they will say the defendant is African-American and there were no African-Americans on the jury, they only require that the jury be impartial, not that the jury be the same race as the individual being tried.
John Aughenbaugh: Yes. In fact, here too, for Nia, the Supreme Court has held that there are only two criteria, they cannot be used for discriminatory purposes in putting together a jury and you actually mentioned one race, and the other one is gender.
Nia Rodgers: They can't keep persons of color off the jury, and they can't keep women off the jury deliberately.
John Aughenbaugh: Or vice versa. You can't go ahead and say, well, because the victim was a person of color, then everybody on the jury has to be a person of color. No. Likewise, you can't exclude women because you believe that women will always vote a certain way in a certain type of trial. No, you can't do that, but those are the only two criteria. Otherwise, it has to be an impartial jury. That's why when you are called for jury duty, and if you get actually called to be a potential juror for a case, you get asked a whole bunch of questions by the defense attorney, by the prosecuting attorney, and in some cases, the judge, to ascertain whether or not you can be impartial. [OVERLAPPING] The last time I got called for jury duty, my number got called to be a potential juror in a case, and when the defense attorney asked for my educational background, and I related, the judge excluded me for cause and I went ahead and asked why am I being excluded for cause, and the judge goes because, you know more about the jury system than probably all of us do. You can't be impartial [LAUGHTER].
Nia Rodgers: Well, I wanted to serve for years and was not called. I was finally called for jury duty and I was so excited. I went and I read through the document. I was going to a conference later that week and it was one that would have lasted two weeks. They expected it to last two weeks. One of the disqualifying factors was if you can't serve every day. I called the court and I told them that and then I went in and had to tell the judge that. Because you go in and you-all sit on these rows and then if they're removing you, are you taking a care of a dependent individual, meaning you can't be here in court all day long.
John Aughenbaugh: Yes.
Nia Rodgers: There are certain things like that then people will get up and leave. Then they said, does anybody have anything else and I stood up and I said, as I have said to the court before I am due at an academic conference that's been paid for by the state at the end of the week, and she looked through the papers and she found mine and she said then you're dismissed. I was really upset because I wanted to serve in that way because I think people shouldn't avoid jury duty. I don't think it's something to get out of. I think you get a far greater understanding of a system if you sit in it marinate in it. It's one of those things where I've learned more about grievances at the university, having sat on panels where you hear people's stories and then you're like, oh, there's whole different dimensions here that I didn't even think about. But the other thing is it was a child molestation case and so in some ways I'm grateful that I was not part of it because that's a horrible thing to have to hear. That's the flip side of that jury thing. I understand why people want to get out of certain kinds because they just don't want to hear man's inhumanity to man thing. But I would encourage anybody who gets a jury notice to serve if you can. I think it's a good way to see how the judicial system works and in some cases doesn't work.
John Aughenbaugh: Though I got excluded the last time I was called, I've actually served on three juries. As you pointed out, not only was I predisposed to want to serve, because I am a believer that we have obligations as citizens to participate in the functioning of our society. But in one of the cases was a date rape case and it was not by any stretch a positive experience as a jury member. But nevertheless, if there was ever going to be potential justice for the victim, the individual had to be prosecuted, there had to be a jury and we had to keep an open mind. We had to keep an open mind. You have to hear all of the parts of it.
John Aughenbaugh: Speaking of citizen obligation segue, many Americans believe that in the original Constitution, there is a clearly identified right to vote. [LAUGHTER] There is not. There is no explicit right stated. [OVERLAPPING]
Nia Rodgers: Sorry, I laughed because the founders were wealthy, landowning, educated, white males. They would have thought, well, we're the ones to vote we're the ones to make the decisions for the rest of the country. We don't want the unwashed masses chiming in. [OVERLAPPING]
John Aughenbaugh: In the original Constitution, qualifications, restrictions, the time, place, and manner of voting was left to the states. Because the assumption of many framers was the states would actually protect and have a better idea about who could vote, instead of having a uniform national, if you will, set of criteria.
Nia Rodgers: Well, it's interesting you've used the word, in our original Constitution. You've used that phrase now a few times. Do you mean non amendments Constitution? Is that what you're referencing when you say original? [OVERLAPPING]
John Aughenbaugh: When scholars refer to the original or main text, they're talking about the document that was drafted in Philadelphia in 1787 and was ratified by 1789.
Nia Rodgers: They're talking about the three articles. They're talking about that document. They're not talking about [OVERLAPPING].
John Aughenbaugh: Yeah, the seven articles.
Nia Rodgers: They're not talking about when you get to the amendments? [OVERLAPPING]
John Aughenbaugh: The bill of rights which are the first 10 amendments. Now interestingly enough [OVERLAPPING] it is with certain amendments that we have expanded the right to vote. For instance, the 15th Amendment says that voting cannot be denied to those that were previously enslaved. You're talking about former male slaves were given the right to vote with the 15th.
Nia Rodgers: I was going to say only males.
John Aughenbaugh: Only males. Now, we get the 19th amendment which gave women the right to vote. Subsequent amendments, for instance, gave 18-year-olds the right to vote. Certain Amendments also prohibit certain practices that made it more difficult to vote. There was an amendment passed in the 1960s that prohibited poll taxes. The where you had to pay a tax before you could vote. But nevertheless, there is nothing that clearly states in the US Constitution that individuals have a right to vote in the United States.
Nia Rodgers: Which is weird because they do talk about electors. They talk about Congress in terms of being elected. So it's not that they were ignorant of the process of election, they understood voting.
John Aughenbaugh: No, it's just that they left it to the states. As we discussed in a previous podcast episode, very early on, many states did what you describe, Nia. They limited voting to land-owning white males. Now, there were some states that allowed women to vote, but that quickly ended. [LAUGHTER] I mean, this country has a checkered history with voting [OVERLAPPING] I tell my students this, who wants to talk about all the debates about state laws that make it easier or tougher to vote and I'm like, guys, this is not a brand new debate. We have been debating who can vote and how easy it should be to vote for the entirety of our country's history, and they are like, well, there should be one set uniform standard and I said, if you are in Virginia you have no problem with California voting laws. Or I said, or you're comfortable with New York, because New York actually has some of the more stringent voting laws in the country. They're like, well that can't be right in New York's a liberal state, and I'm like, it doesn't matter if it's liberal or conservative. Because as I said at times, liberal states enacted restrictive voting laws.
Nia Rodgers: Right.
John Aughenbaugh: If it serves the purposes of that dominant party, then they will use the authority given to states in the constitution to make it more difficult for their opponents to vote. They were like, well, that ain't right and I said, probably it isn't right. But, you know what would change it? There were like what? I said, wait for it amend the Constitution.
Nia Rodgers: Right.
John Aughenbaugh: They're like, Oh man. [LAUGHTER]
Nia Rodgers: [NOISE] Now you're talking about a huge thing. One of the reasons that it's hard to amend the Constitution is because you don't want it to happen, willy-nilly. [OVERLAPPING] You want there to be national buy-in.
John Aughenbaugh: Yeah, it's permanent change that becomes the supreme law of the country.
Nia Rodgers: Right.
John Aughenbaugh: [OVERLAPPING] By the way, you are ready to move on to one more.
Nia Rodgers: I am. Which one do you want to move on to?
John Aughenbaugh: The one that I hear a lot from my friends who were born in other countries and come to the United States. They're fascinated by the bigness, the sheer size of the country. Because they assume that Americans have what right? The right to travel and I'm like, you know, that's not a constitutional right and they are like there's all those movies where Americans just get in cars and they drive up to Maine or they drive out to California or they drive out [OVERLAPPING]
Nia Rodgers: Get In the car kids were going into the Grand Canyon.
John Aughenbaugh: I'm just going to escape my crappy living conditions and x town and x city and I'm just going to drive. You guys got to a right the travel. I'm like, there's no constitutional right to travel and they just blows their mind. Because there is nothing in the US Constitution that says you have a right to travel.
Nia Rodgers: There's nothing in the US Constitution that says that a state cannot close its borders.
John Aughenbaugh: That's correct.
Nia Rodgers: I'm sure that the lawsuit would be based in the Commerce Clause.
John Aughenbaugh: Sure would-be.
Nia Rodgers: [LAUGHTER] But because everything on the slide comes back to the Commerce Clause, [OVERLAPPING] he eats it for breakfast. But until that lawsuit estate could say, you're not coming here. In fact, during the pandemic, [OVERLAPPING] we had states that we're doing that we had states that were saying, oh wait, you're from a highly contagious place. You can't come here without proof that you're not sick or whatever.
John Aughenbaugh: Or if you do come here [OVERLAPPING] you're going to get a quarantine for 10 to 14 days.
Nia Rodgers: Right.
John Aughenbaugh: We have former students who went to other states for graduate school or law school and they email me. They're like, I just got to Pennsylvania and I was basically told I had to quarantine for 10 days. [LAUGHTER] Welcome to law school. [LAUGHTER]
Nia Rodgers: I mean, if there was an automatic right to travel, they wouldn't be able to do that because that's up to the states. They can close off travel if they want to. Now, does it hurt them? Probably, it probably hurts them financially, it probably hurts them socially, but it also might protect their citizenry from, who knows what.
John Aughenbaugh: Once again, Nia, who has interpreted the Constitution to give us at least some notion of a right to travel.
Nia Rodgers: The Supremes. [OVERLAPPING] They always falls into the lap of the Supremes.
John Aughenbaugh: The Supreme Court in 1958, in the case of Kent versus Dulles, went ahead and said that one could find a right to travel in the liberty part of the due process clause. [OVERLAPPING].
Nia Rodgers: I said those words and immediately thought, awooga that's a mistake. Awooga. [OVERLAPPING].
John Aughenbaugh: What's that from, awooga?
Nia Rodgers: It's a submarine diving. Awooga. Dive, dive. Awooga. You have a mistake.
John Aughenbaugh: I'm thinking there's a Disney movie that I've endured watching countless times with my daughter.
Nia Rodgers: Probably something from my childhood. A cartoon or a movie that where that danger Will Robinson danger.
John Aughenbaugh: But some scholars say that a right to travel, once again, could be rooted in the 9th Amendment. It's an unenumerated right. You have this right in nature.
Nia Rodgers: Right [OVERLAPPING] or correct. [LAUGHTER] Sorry I keep saying right because that's my agreement word. [OVERLAPPING].
John Aughenbaugh: There's a whole generation of Americans. Much to the chagrin of English teachers that learned how to give affirmation to right.
Nia Rodgers: Exactly [OVERLAPPING] as opposed to correct and now correct sounds a little formal and stiff to that generation impedance. [OVERLAPPING]
John Aughenbaugh: But there's a whole bunch of English teachers that would go ahead and tell us write the notes direction. Correct means somebody has been affirmed, right?
Nia Rodgers: Correct. [LAUGHTER]
John Aughenbaugh: Then you give the correct answer. You don't give the right answer because Mr. Aughenbaugh right denotes direction. Yes, Sister Mary Agnes.
Nia Rodgers: I'm just going to say, it's got to be a nun, but also they are correct. [LAUGHTER] You can see it in part of the liberty idea of the founding of the country. That the founders just assumed the right to travel. They just assumed that you could go wherever you wanted to go. That's the whole point of coming here, was that you could show [OVERLAPPING] up and get off the boat, start walking.
John Aughenbaugh: Yeah, because many of the colonists were leaving Great Britain or other European nations because their liberty, whether it'd be religious, economic, or just a desire to no longer serve as a surf in a feudal economic system was limited.
Nia Rodgers: Right. [OVERLAPPING] You can come to the United States and starve here, but you can do it as a free person. [OVERLAPPING] [LAUGHTER] Basically, what the promise of the early country was.
John Aughenbaugh: Yeah.
Nia Rodgers: What the promise of the early country is that the promise of it now, which is, you can come here and make something of yourself in a way that a previous system may or may not have let you, which is why we still have immigration today. We have this idea of I will go there and make a different life for myself, I will.
John Aughenbaugh: Yes, and that's why we are [OVERLAPPING]
Nia Rodgers: I will through the power of my hard work [OVERLAPPING] to create a new existence.
John Aughenbaugh: That's why there are a number of political scientists and economists who believe that voting with one's feet is probably the most effective way of voting. That if you don't like what's going on in a particular state or particular, for instance, city. If you really want to send a really strong message to the powers to be, you move.
Nia Rodgers: Yes, as is happening with 3/4 of the population in California, which seems to be moving to Texas.
John Aughenbaugh: [LAUGHTER] Or Wyoming or Montana.
Nia Rodgers: Right. They are like, hack with this mess, and then they're getting out. [OVERLAPPING]
John Aughenbaugh: Yeah, and of course now the locals in Texas, Wyoming, and Montana are saying, [OVERLAPPING] "What are carpet baggers doing coming into our pristine land?"
Nia Rodgers: But you get after the depression, you get Okies.
John Aughenbaugh: Yes.
Nia Rodgers: People from Arkansas and Kansas who moved to California, looking for work, [OVERLAPPING] and there's all that issue there. So I want to ask you about something else that's not in the Constitution, but I think people think is in the Constitution.
John Aughenbaugh: Okay.
Nia Rodgers: That is what you just alluded to with the Supreme Court. The Supreme is having the right to decide anything. Because as we have noted in past, the Supreme Court article in the Constitution is almost after 30.
John Aughenbaugh: Oh, it's very limited. It's extremely narrow. [OVERLAPPING] It's like an afterthought.
Nia Rodgers: We need some courts. Let's put in a note about the court, but it is hot in here, so keep it short because I want to go home and not be in this small room with you, 80 lunatics, or whatever.
John Aughenbaugh: Attention.
Nia Rodgers: It's not even in the Constitution that judicial review will be a thing that the Supremes can look at something and decide whether it's constitutional or not. We have an episode on that. That's Marbury V. Madison. That's John Jay, is it John Jay?
John Aughenbaugh: John Marshall.
Nia Rodgers: John Marshall. Thank you sorry. John saying, "You know what, we really should have the right to look over something and see if it's constitutional. I think we'll take that right". Everybody going, "Yeah, that's great". Because at the time they saw their purpose,
John Aughenbaugh: In at least initially, not everybody thought it was great.
Nia Rodgers: Well.
John Aughenbaugh: Recall, Thomas Jefferson basically knew that he won that case [OVERLAPPING] but he lost the war. [LAUGHTER] Because now you've got an entire branch of the federal government that is holy, unaccountable to the public.
Nia Rodgers: It gets to decide the authority of the constitutionality of something.
John Aughenbaugh: Yeah, the meaning of the Constitution. [OVERLAPPING] Let's have the final word.
Nia Rodgers: Yeah, that's huge. It's such a beautiful move. When you go back and listen to that episode, you can hear my admiration. I'm like, "Oh, that was beautiful". [OVERLAPPING] That was such a gorgeous power grab. The demon look like one at the time and has become a thing that now we all assume is just true. We just assume, of course, the Supremes will decide a thing. [OVERLAPPING] There's absolutely no constitutional reason that they should be deciding what's constitutional and what's not.
John Aughenbaugh: Non-constitutional. Because if the framers thought that this was so got off on board, [OVERLAPPING] they treated as a power. [LAUGHTER]
Nia Rodgers: Exactly.
John Aughenbaugh: On the other hand, again, [LAUGHTER] is we have discussed in a number of episodes, the framers of the US Constitution didn't create a perfect document. They left stuff out of it to where today we're just like what was going on in Philadelphia in 1787? [LAUGHTER] They didn't think that they should go ahead and include X in their judicial review is one of those. Now there are some scholars in here who believe that the framers assumed that every court would exercise judicial review. Because every state court at that time exercised judicial review. On the other hand, as Jefferson pointed out, it is in a number of letters to Madison after Marbury versus Madison, this was a power grab. This was your garden variety a court saying, "We're going to go ahead and do X and it's not in the Constitution". So if you're a strict constructionist, judicial review should give you pause.
Nia Rodgers: If you're a strict constructionist, you shouldn't be on the Supreme Court. [LAUGHTER] I'm just saying, in your face, strict constructionists,
John Aughenbaugh: Did you say reconstructionist or strict reconstructionist?
Nia Rodgers: Strict constructionists. But the other part of my hind-brain that listens to you, I know you think I don't, but I do, is that we really do need a court that stands above the other courts because if you get into, and we have this on a regular basis, courts dispute at the state levels. Two state courts here or two different cases and they come to two different conclusions about the Colorado River or something that we will discuss in a podcast.
John Aughenbaugh: By the time you hear this, we will have discussed it, but I'm not sure it'll be out yet. But if Colorado and Wyoming decided to do different things with the river, someone has to settle that dispute. There does have to be an overarching core [OVERLAPPING] it's a paragraph, but it's also a not unreasonable thing once you get 50 states who are all complaining and jostling and trying to get their way on things.
Nia Rodgers: Yeah, and it's one of the justifications Marshall writes in the Marbury case. Which is, if the Constitution is going to be the supreme law, there has to be some institution that says what that supreme law means. We can't leave it up to 50 states. R
John Aughenbaugh: ight. Because we have 50 different users or something.
Nia Rodgers: We can't leave it up to one session of Congress which acts in a different way than a previous session of Congress. We can't have every new president claiming the Constitution says X, and then it changes when we elect a new president. Okay?
John Aughenbaugh: Right.
Nia Rodgers: Yeah, that's not a democratic form of government. It's a messy form of government. [LAUGHTER]
John Aughenbaugh: Well, yeah, it's bordering on anarchy.
Nia Rodgers: Right. [LAUGHTER] Then it becomes deal-making. Like then what starts to happen is state will start to make deals.
John Aughenbaugh: Then, the meaning of the Constitution is left up to which groups can cut the best deals.
Nia Rodgers: Right. [OVERLAPPING] Or have the most power. [OVERLAPPING] Yeah that just turns into a mess. For our final two things that are not in the constitution. I think they go together.
John Aughenbaugh: Yes, they do.
Nia Rodgers: You alluded to one earlier, which is the right to procreate?
John Aughenbaugh: Yes.
Nia Rodgers: There is no right to procreate or in the case of the privacy case, not procreate, Griswold V. Connecticut. There's no right of procreation, and there's nothing in the constitution that says if you have a child the state will support it.
John Aughenbaugh: Yeah, there's nothing in the Constitution that says states should allow you to have kids. [LAUGHTER]
Nia Rodgers: There's nothing in the constitution likewise, it says that states can prevent you from having children.
John Aughenbaugh: [OVERLAPPING] That's correct.
Nia Rodgers: Right, which becomes a case where people have disabilities.
John Aughenbaugh: Yes.
Nia Rodgers: There have been eugenic questions about whether they should have children or not. That's not up to the state.
John Aughenbaugh: That's correct.
Nia Rodgers: That's not an ethical or moral decision that the state should be involved in. The Constitution steers clear of that by saying, the state has no business in your.
John Aughenbaugh: Again, this then touches upon what are the historical legal traditions of the country, which is extremely nebulous, but again, we're talking about a country that before it existed as a country, were a set of colonies. In some of the charters with the British crown, there was actually a language about procreation.
Nia Rodgers: They're going to go forth and have children.
John Aughenbaugh: Yeah, because [OVERLAPPING]
Nia Rodgers: they will be subjects of the crown and that [OVERLAPPING].
John Aughenbaugh: Any of your offspring will also be subjects of the crown that have to comply with the charter that this particular colony has with the Crown. Again, you're talking about a different economic system, Nia, you and I talked about how the United States, when it was Agrarian, kids were not viewed as quote unquote, autonomous individuals that may grow up and do whatever they want. Kids were viewed as.
Nia Rodgers: Property.
John Aughenbaugh: Workers.[OVERLAPPING].
Nia Rodgers: Property of their parents.
John Aughenbaugh: Yeah. Their role was to go ahead and make the farm work.
Nia Rodgers: Because they died in drugs, you had a bunch of them.
John Aughenbaugh: That's right. [OVERLAPPING] discussion in the Constitution about you individually having a right to have kids or the state's ability, not having the authority to restrict it.
Nia Rodgers: But I want to point something out in your notes because it's fascinating to me. That the state if a state band procreation or required licenses for procreation, it would not violate the Constitution. I rather jokingly, because I am not parent, often say to people, there ought to be a licensed for that the way there's a license to get it, to be a driver, you shouldn't be allowed [LAUGHTER] to just go random out making babies without having some basic knowledge of how that should work. There's nothing that says the state can't do that, that you have to [OVERLAPPING]. You're going to be apparent male or female. They find out you're going to be apparent, that you are required to take some course in child development, in childhood danger. How do you prevent [OVERLAPPING]. It would be great.
John Aughenbaugh: Well, think about this Nia. There is actually a corollary to that. Many states require parents who adopt children go through.
Nia Rodgers: Exactly.
John Aughenbaugh: Classes.
Nia Rodgers: Exactly.
John Aughenbaugh: Yes.
Nia Rodgers: Those families get regularly checked on to make sure that everything's going well, at least in the first few years.
John Aughenbaugh: Yes.
Nia Rodgers: Maybe that should just be the case for all families and then that way there would be, I would think there would be less child abuse, and you would know about problems earlier and you might be able to solve them earlier rather than [OVERLAPPING]
John Aughenbaugh: Or think about if that was a requirement in high-school, the number of young people who would be less [LAUGHTER] likely.
Nia Rodgers: To have children before they're ready to do so. What I think of is ready to do so. Likewise, I'm not entirely certain that there should not be licenses for getting married in the sense of you have to take a class. Now, some religions require that. Like I know that in the Catholic Church, if you're going to get married, you have to see a priest and there's work that you have to do ahead of time in order to make sure that you're both on the same page and you understand what marriage is about and that kind of thing, which I think being led by people who may or may not be married seems a little weird, but whatever, it's not my faith, and it's all cool. But I'm wondering if the state of Virginia could do that for everybody. They could say before we issue this license, here's how to be married to another person and deal with all of that class.
John Aughenbaugh: There's nothing that would say that they couldn't do that right?
Nia Rodgers: Yeah, because there is no right to marriage in the Constitution. Lot of my students end up being shocked when I go in and tell them that according to states, it's a privilege. In many states, marriage is basically a contract. There's not a right. Like any contract, could a state put conditions before you enter into the contract? Sure. But they can't put the condition of. They cannot discriminate based on race, and because of Obergefell versus Hodges on sexual orientation.
Nia Rodgers: Loving v Virginia is the case about race.
John Aughenbaugh: The United States Supreme Court in the Loving versus Virginia case, 1967, said that states cannot prohibit interracial marriage.
Nia Rodgers: It's not because they cared a huge amount about the race issue as much as they cared about the quality issue. If you're not telling to white people they can't get married, then you can't tell a black and a white person that they can't get married [OVERLAPPING]
John Aughenbaugh: Because what you're talking about, a government practice that would violate the Equal Protection Clause of the 14th Amendment.
Nia Rodgers: Got it.
John Aughenbaugh: But as a number of constitutional scholars have pointed out, could a state ban marriage for all of its citizens? Theoretically the answer is yes.
Nia Rodgers: I'm starting a single state. I'm going to carve off, I don't know where I'm going to carve off a piece of.
John Aughenbaugh: Because theoretically Nia, everybody would be treated the same.
Nia Rodgers: no one here can get married. [OVERLAPPING] it's not based in race, it's not based in sexual preference or to your identity or anything else?
John Aughenbaugh: No.
Nia Rodgers: None of it. Nobody. Nobody here can be married.
John Aughenbaugh: By the way, I get asked this question where she by a lot of my young [inaudible].
Nia Rodgers: I actually wouldn't do that. That wouldn't be fun. Marriages are good for a lot of people.
John Aughenbaugh: Some people.
Nia Rodgers: They thrive [OVERLAPPING].
John Aughenbaugh: Yeah, they flourish.
Nia Rodgers: Some people thrive multiple times during marriage. They marry multiple people and they have thriving marriages while they're good, and that's I mean [LAUGHTER] a tailor got married 8 times and she was happy all 8 times, I think when she got married.
John Aughenbaugh: Well, then you got to make it work.
Nia Rodgers: That's hard.
John Aughenbaugh: But here's the other thing that the other question I get asked about marriage as we conclude this episode, Nia is, by some of my younger students, why is it that states can place age thresholds on when you can get married. I said it flows from the state governments police power because They can make decisions to regulate for public health and safety. I said in remember guys, young people, children do not have the full scope of rights and privileges that adults enjoy.
Nia Rodgers: Your daughter cannot enter into a contract?
John Aughenbaugh: No, not a ten years.
Nia Rodgers: Because she's assumed to not have the ability to consent?
John Aughenbaugh: Yes.
Nia Rodgers: To a contract and that's what marriage is. She might fall in love with one of the BTS singers. One of the K-Pop boys [LAUGHTER] and he might fall in love with her and they might decide they want to get married. Although that's weird because they are in their 20s, but you know what I mean. She doesn't have the mental capacity theoretically under the law, to consent to understanding what that actually means, what it means getting married, those signs, the contract or whatever.
John Aughenbaugh: Yeah, the concept in law is informed consent.
Nia Rodgers: Right?
John Aughenbaugh: But again.
Nia Rodgers: But man, some states set that marriage can inform consent at 14, which I think is criminal personally.
John Aughenbaugh: The trend is actually to raise it up to at least 16, if not 18.
Nia Rodgers: Good. It should be. Frankly, that's a big decision to make for a person who's not [OVERLAPPING] who hasn't gone to prom yet.
John Aughenbaugh: In the course listeners does that mean that the potentially rare young person who's mature and knows what they want has their interests and desire is limited by the government.
Nia Rodgers: Sure.
John Aughenbaugh: Okay. But again.
Nia Rodgers: You're protecting the larger group.
John Aughenbaugh: You're protecting the collective at sometimes the expense of the individual.
Nia Rodgers: Hardly anybody has ever died from waiting to get married.
John Aughenbaugh: That is true.
Nia Rodgers: I mean, it doesn't seem to be a thing that ends in, except for Romeo and Juliet, it does not end in complete failure most of the time. Thanks Aughie, this has been a good one.
John Aughenbaugh: We could probably do an entire episode on the political science critique of Romeo [LAUGHTER] and Juliet. But that's for a different episode.
Nia Rodgers: Yes, that's for a different episode and years off.
John Aughenbaugh: I really enjoyed this conversation, and listeners, this was a topic that Nia has wanted to do for a long time, and we finally got around to doing it.
Nia Rodgers: If there are other things that you think are in the Constitution or you think other people think are in the Constitution and aren't e-mail us because we can always do a follow-up episode because there's more. There are always things that people will say to you in an argument. It's in the Constitution. If you say that to me, just be aware that the first thing I'm going to say is where? [LAUGHTER] Cite your source, where in the constitution is it? If you can't answer that question, I'm going to make fun of you. Thank you so much Aughie, and we'll talk again soon.
John Aughenbaugh: All right. Thanks Nia. Bye.
Nia Rodgers: Bye.
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