America's History of Amending the Constitution to Expand Democracy (And Overturn the Supreme Court)

Although Congress and the American people have been very careful to preserve the Constitution throughout our history, they have not hesitated to amend it in order to correct harmful Supreme Court rulings and to promote popular democracy. That is precisely the purpose of the proposed 28th Amendment, which would overturn cases like Citizens United and enhance political democracy and the First Amendment by allowing Congress to ensure that the voices of the people are heard in campaigns. In fact, 7 of the 17 amendments to the Constitution adopted since the Bill of Rights — more than 40% —corrected dangerous Supreme Court decisions which, like Citizens United , undermined popular democracy, whether by undermining the ability of some Americans to participate in our democratic process, or by limiting the ability of all Americans to address issues of pressing national concern through the political branches of government. These have included some of the most important amendments in U.S. history. Specifically:

  • The 13th and 14th Amendments, which banned slavery and required the states to provide equal protection of the laws, were enacted after the Civil War to overturn the disgraceful Court decision in Dred Scott v. Sanford, 60 U.S. 393 (1857), which had claimed that blacks were inferior to whites and upheld slavery.
  • The 19th Amendment, which granted women the right to vote in 1920, reversed several court decisions, including the Supreme Court’s ruling in Minor v. Happersett, 88 U.S. 162 (1875), which disenfranchised women and ruled that they did not have the right to vote under the Constitution.
  • The 24th Amendment in 1964 abolished poll taxes that literally taxed people who wanted to vote, reversing the Supreme Court’s decision in Breedlove v. Suttles, 302 U.S. 277 (1937), which had ruled that such taxes were constitutional.
  • The 26th Amendment made clear that all U.S. citizens 18 years of age and older have the right to vote in 1971. That overruled the Supreme Court’s ruling in Oregon v. Mitchell, 400 U.S. 112 (1970), which said that Congress could not reduce the voting age from 21 to 18.

Opponents claim that the 28th Amendment would be different than these amendments because it would allegedly restrict rather than expand rights. But the defenders of political inequality protested that granting women and young people the right to vote violated their own rights, just as corporations and the ultra-rich today claim a “right” to spend unlimited amounts on elections and drown out the voices of the people. Moreover, even accepting the opponents’ narrow interpretation of expanding or diminishing “rights,” several constitutional amendments have overturned damaging Supreme Court decisions and did not “expand” rights. Specifically:

  • The 16th Amendment in 1913 gave Congress the authority to enact  income taxes, overturning the Supreme Court’s ruling in Pollack v. Farmers’ Loan and Trust Co., 157 U.S. 429 (1895), which said that Congress could not do so. No one would claim that having to pay income taxes expands individuals’ rights. But the Amendment was adopted so that the people through their Congressional representatives could make that decision, just as the 28th Amendment would restore that authority concerning campaign finance reform.
  • The 11th Amendment in 1795 overturned Chisholm v. Georgia, 2 U.S. 419 (1793), and provided that a citizen of one state could not sue another state in federal court. That amendment clearly took away a “right” that the Court said that citizens had. But shortly after the founding of our republic, Congress and the people felt that providing such sovereign immunity to states was very important to our new democracy, and reversed the Supreme Court. The 28th Amendment is even more important today in order to restore the damage done recently by the Court to our popular democracy.

In truth, SJ Res 19 is only the latest in a long American tradition of constitutional amendments enacted to overturn dangerous decisions handed down by our nation’s highest court.

PFAW Foundation

North Carolina School Board Votes to Keep ‘The House of the Spirits’ in Curriculum

Last October, a parent at Watauga High School in Boone, North Carolina asked the local school board to remove Isabel Allende’s internationally-renowned The House of the Spirits from the curriculum. After making its way through a multi-step county review process, last week the school board voted 3-2 to uphold the teaching of the book.

The fight to keep the book in the curriculum was backed by many supporters – including the author herself. In a letter to the Watauga County Board of Education, Isabel Allende wrote,

Banning books is a common practice in police states, Like Cuba or North Korea…but I did not expect it in our democracy.

PFAW Foundation president Michael Keegan also spoke out against censorship to the school board. In his letter, Keegan wrote:

We trust that as educators you will uphold the right of all students in Watauga County to receive a competitive, rigorous education free from censorship. While individual parents have every right to decline reading material for their own children, they should not be allowed to censor the curricula for all students in the county.

The House of the Spirits is not the first book PFAW Foundation has fought to protect. In addition to speaking out about Allende’s novel, in the past year PFAW Foundation has advocated against censorship attempts aimed at Invisible Man, Neverwhere, and The Bluest Eye.
 

PFAW Foundation

NC Committee Upholds Teaching of Challenged Allende Novel

After Isabel Allende’s internationally-renowned novel The House of the Spirits was challenged by a parent this October, PFAW Foundation wrote to members of the Watauga County, North Carolina Board of Education, urging them not to remove the book from the county’s high school curriculum. Now, following a sustained outcry at both the local and national level – including from Allende herself – a county appeal committee has unanimously voted to uphold the teaching of the book.

Last week’s vote was the second round of review the book has faced. Parent Chastity Lesesne appealed an earlier decision of a school committee to retain the book as part of the curriculum, and it is not yet known if she will appeal the most recent decision. If she were to do so, the Watauga County Board of Education would issue a final decision.

Community members in Watauga County have been speaking out against censorship of the book, including through a teach-in earlier this month at Appalachian State University. Lynn Schlenker, president of the Watauga High School parent teacher organization, told the School Library Journal that she was concerned about potential “ramifications on all curriculum at the high school.” Schlenker noted,

We need to explore ideas on how to provide the framework for book challenges in a way that doesn’t trample the rights of the other students.

PFAW Foundation

Isabel Allende Fights Against Banning of Her Own Book

When the teaching of Isabel Allende’s internationally renowned novel The House of the Spirits was challenged in a North Carolina school district last month, advocates from all corners spoke out in its defense, including PFAW Foundation president Michael Keegan and North Carolina Poet Laureate Joseph Bathanti. Now, Isabel Allende herself has joined the conversation.

Yesterday the School Library Journal reported that Allende has mailed a letter, along with copies of her book, to the Watauga County school board, superintendent, and the principal of Watauga High School.

After acknowledging that being in the position of defending her own book is “unusual and awkward,” Allende points out in her letter that The House of the Spirits is “considered a classic of Latin American literature and it is taught in high schools, colleges, and universities in all Western countries, including the USA for more than two decades.” She expresses concern about the practice of book censorship in general:

Banning of books is a common practice in police states, like Cuba or North Korea, and by religious fundamentalist groups like the Taliban, but I did not expect it in our democracy.

Allende’s letter comes as the book undergoes a multi-step review process in the county. Last month an advisory committee comprised of teachers, students, and parents voted unanimously not to remove the book from the curriculum, but that decision has been appealed.

PFAW Foundation

Remembering Bobbie Handman

Barbara “Bobbie” Handman, a former Vice President of PFAW and PFAW Foundation, died on Thursday. For years, Bobbie’s creative energy and fierce commitment to the First Amendment shaped the organizations’ free expression work from New York City, where she was based. Bobbie’s long record of advocacy for free expression and the arts was recognized in 1998 when she received the National Medal of Arts from President Bill Clinton.

Hillary Clinton, Bobbie Handman, Bill Clinton

Bobbie’s years at PFAW were part of a long life of political activism. Time after time she responded to would-be censors by rallying well-known actors and writers to participate in public events that affirmed the value of artistic freedom. You can read more about Bobbie’s life and work in the obituary that appears in today’s New York Times. It ends with this quote from Norman Lear: “Bobbie was a lifelong lesson in perseverance. She made New York happen for People For the American Way. And she made everything grander. She dealt in grand.”

People For the American Way extends its heartfelt condolences to Bobbie’s husband Wynn Handman and the rest of their family.

PFAW Foundation

NM School District Restores ‘Neverwhere’ to Curriculum Following PFAW Foundation Advocacy

Last month, PFAW Foundation sent a letter to a school district review committee in Alamogordo, New Mexico urging them to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum. Yesterday a local television station, KRQE News 13, reported that the book will indeed be put back into the Alamogordo High School curriculum. A district spokesperson told the School Library Journal that in the review process the book was found to be “educationally suitable, balanced, and age-appropriate for high school students.”

The School Library Journal’s Karyn Peterson provides the backstory:

Use of the novel, which had been a part of the AHS English department’s curriculum for nearly 10 years, was suspended from classrooms in early October after a mother complained to the school board about what she characterized as the book’s “sexual innuendos” and “harsh” language—occurring on a single page of the 400-page novel.  The district then created a review committee and opened a public comment period...

PFAW Foundation was one of the groups that weighed in, encouraging the review committee to uphold the right of all students to “to receive a competitive, rigorous education free from censorship.”

The full text of our letter is below.

October 25, 2013

Dear Members of the Review Committee,

We urge you to reject attempts to remove Neil Gaiman’s Neverwhere from the English curriculum.  We understand that the novel was temporarily removed from the curriculum following the complaint of a parent and will be reviewed by this committee.

Neil Gaiman, whose awards include the Newbery Medal for outstanding children’s literature, is an acclaimed author whose work has been taught in the district for many years. We recognize that school leaders often face difficult decisions that require balancing the concerns of parents with the educational development of students.  However, according to English teacher Pam Thorp’s recent letter in the Alamogordo News, the child of the parent bringing the complaint was offered alternative reading material. While parents have every right to decline reading material for their own children, they should not be allowed to censor the curricula for all students.

Many works of literature tackle mature or challenging topics. Attempting to shield high school students from challenging works robs them of the opportunity to learn from and engage with literature, and sets a dangerous precedent.

We trust that as educators you will uphold the right of all students in Alamogordo public schools to receive a competitive, rigorous education free from censorship. For over 30 years we have worked with school districts to protect students’ right to learn, and are happy to serve as a resource for you in this and any future challenges to school curricula.

Best wishes,

Michael Keegan
President, People For the American Way Foundation

PFAW Foundation

Senate hears testimony on government surveillance

The Senate held a hearing Wednesday to discuss government surveillance programs, with particular emphasis on Section 215 of the USA PATRIOT Act and Section 702 of FISA, which have respectively served as NSA’s justifications for bulk phone records collection and online communications surveillance, and have recently been the subject of some disturbing disclosures about the extent of government intrusion into Americans’ personal lives.

Pressed on these disclosures, representatives from the DOJ, NSA, DNI, and FBI sought to defend the programs as legitimate, arguing that such intelligence-gathering is necessary to prevent terrorism; is not as novel and broad as has been reported; and is checked by the FISA Court, congressional reauthorization, and executive compliance audits.

Critics, however, contested each claim.

When FBI Deputy Director Sean Joyce argued that “[e]ach and every tool is valuable [for counterterrorism],” Senate Judiciary Chairman Patrick Leahy (D-VT) noted:

Contrary to the administration’s public claim of 54 foiled plots, for example, my own recent review of the classified list found nothing close to that number ... after receiving the classified document on plots foiled by 215, I’m far from convinced that it’s been necessary.

Further, after DOJ Deputy Attorney General James Cole pointed to the limited nature of phone database queries in 2012, ACLU Deputy Legal Director Jameel Jaffer contended:

Even if the government ran queries on only 300 unique identifiers in 2012, those searches implicated the privacy of millions of Americans … analysts are permitted to examine the call records of all individuals within three “hops” of a specific target. As a result, a query yields information not only about the individual … but about all of those separated from that individual by one, two, or three degrees. Even if one assumes, conservatively, that each person has an average of 40 unique contacts, an analyst who accessed the records of everyone within three hops of an initial target would have accessed records concerning more than two million people.

Finally, in responding to the claim that the public, through Congress, had granted authority for the surveillance through the PATRIOT Act and FISA, Senator Al Franken (D-MN) reasoned:

There’s a balancing act between security and privacy, but when almost everything is done in secret, the public has no way of knowing whether we’re getting the balance right.

And today, the balance has tipped much too far away from our fundamental freedoms. Urge Congress to repeal the PATRIOT Act.

PFAW

PFAWF: More Attention on Colorado Censorship Campaign

Last week, People For the American Way Foundation joined a campaign to fight book censorship in a Colorado school district. The censorship battle began when a group of parents launched a petition to keep Toni Morrison’s The Bluest Eye out of the Legacy High School curriculum. Legacy High student Bailey Cross started a counter-petition emphasizing the dangerous precedent that this censorship would set and encouraging the school district to keep the book on the approved reading list.

PFAW Foundation sent a letter to the Adams 12 Five Star School District Board of Education showing support for the student’s campaign and urging the district to reject the attempts at censorship.

The efforts of the Foundation were highlighted by the Denver Post yesterday. Staff writer Yesenia Robles wrote that the parents involved claim the book is “developmentally inappropriate” and should be kept out of the classroom.

People For the American Way Foundation disagrees. Robles reports,

"We do understand this book has themes and content that are really challenging, but that's why it should be taught," foundation spokesman Drew Courtney said. "An important role of classrooms is to help students and young adults deal with that, to have those conversations in an intelligent way in the classrooms. Offering an alternative assignment is appropriate, but banning a prize-winning novel isn't prudence. It's censorship."

See the full Denver Post article here.

PFAW Foundation

PFAW Supports House Amendment Against NSA Spying

The House will soon be considering an amendment to the Defense appropriations bill that would impose much-needed limits on the NSA's unconstitutional surveillance program that indiscriminately collects the phone records of millions of Americans.

With bipartisan sponsors Justin Amash (R-Mich) and John Conyers (D-Mich), the amendment would limit the federal government's collection of records under Section 215 of the so-called Patriot Act to those that pertain to a person or organization that is already subject to an investigation under that provision. Under current practice initiated by the Bush Administration and continued into the Obama Administration, the government engaged in bulk acquisition, collection, storage, retention, and searching of telephone communications “metadata” for all phone calls using the networks of any of the major American telecom companies.

Every 90 days, the government tells the FISA (Foreign Intelligence Surveillance Act) Court that it needs the data, no one is made aware of the request, no one provides an alternative view to the court, and it reliably gives permission for the collection to continue. No search warrants are required.

PFAW is among those organizations that have filed suit in federal court against the program, arguing that it violates the First, Fourth, and Fifth Amendments.

The issue isn't simply whether this program stops terrorism. The issue is the type of society we want to live in, and whether we will continue to adhere to the decisions of our nation's founders that freedom is a paramount right that must be cherished. We decided in the 1790s that police cannot simply break into your home and conduct a search without a search warrant issued by a judge. Yes, it means that many crimes go unsolved, but it also means that we do not live in fear of a police state. Similarly, we adopted the First Amendment's free speech protections knowing full well that we were giving license to noxious and even harmful speech. But that is the price of freedom.

PFAW is supporting the Amash Amendment, because we support the First, Fourth, and Fifth Amendments.

UPDATE: When it came up for a vote by the full House on July 24, the amendment failed by only 12 votes.  The 205-217 vote showed strong support for the measure within both parties, with 94 Republicans and 111 Democrats voting in favor.  When the amendment was first introduced, many thought it would be defeated easily.  However, the close margin and significant level of bipartisan support took many by surprise, signaling that this issue is not going away.

PFAW

DOJ’s Seizure of AP Phone Records Affronts Constitutional Principles

This week, the Associated Press reported that the Department of Justice had seized two months of phone records for its editors and reporters without any prior notification to the news organization, thereby denying it the opportunity to negotiate or challenge the seizure in court.

While it's true that there are complicated issues at stake in balancing the right to privacy and First Amendment protections for the media against the government’s obligation to protect national security, the Attorney General’s office has in place its own guidelines on subpoenas of news media for evidence and testimony – guidelines that they apparently failed to follow in this case.  If true, the actions taken by the Department of Justice are beyond the pale of our Constitutional system. The right of all persons to feel secure that their privacy is protected is fundamental to our nation's character; we should pay special heed to that guarantee when it involves the freedom of the press, an essential bulwark of our democracy.

Any government requests for media records should be subject to automatic  judicial review, and whatever exceptions to that principle that may exist should be extraordinarily limited in scope. According to reports, neither was true in this instance.

In response to this revelation, the White House has appropriately reiterated its support for more robust shield laws to protect journalists from undue government intrusion. Even without those laws in place, the Department of Justice should have understood that its actions in this instance were a gross violation of important Constitutional principles.

 

PFAW