Thread: If Freedom Isn't Free ....

Constitutional Rights and Freedoms and the Limitations Thereunder Indeed the various platitudes uttered regarding freedoms or rights can create an unnecessary amount of confusion. Traditionally speaking, such freedoms or rights refer to a citizen's fundamental rights as enumerated in the Bill of Rightsor the first ten amendments to the United States Constitution. These rights are oft times referred to as negative rights because they limit, or prohibit governmental entities from encroaching upon said rights. Needless to say, such rights are not unlimited. In other words, there exists certain extenuating circumstances, where the government can limit the scope and breadth of these rights. For example, the First Amendment's Freedom of Speech does not extend to yelling fire in a crowded theater, when there is, in fact, no fire in the immediate vicinity of the theater. The reasoning behind this is because taking such an action can cause significant bodily injury, or even death, in the ensuing panic. Further, the government can require protestors to apply for a certificate or permit, in order to protest on public property. However, such limitations must be content neutral. That is to say, a person, or group of persons cannot be denied such a permit on the basis of their speech. Of course, abuses are bound to occur, and that is the reason why we have a legal process to address and hopefully limit such abuses. However, the scope of the application of one's rights are never as clear-cut as we might like. As with most legal rights, a delicate balance must be struck, and the fluid nature of human life means that any such balance will be challenged from time-to-time. In regards to the specific mosque addressed in that 2010 CNN article, I remember the case well, as I was in my final year of law school, and used that particular case as an example of potential zoning law concerns. State governments possess a wide array of so-called plenary powers which the Federal government, by its very nature, lacks. The Feds have to trace their law-making authority back to a specific enumerated power found in Article I 8 of the U.S. Constitution. Plenary powers, essentially refers to a form of absolute or unbridled power. State governments are afforded this, because that form of government predates the national government. With this being said, there are, of course, certain limitations to plenary powers. And, such power is limited to state governments by their respective state constitutions, as well as certain federal laws, which I will discuss in further detail later. Municipal or city governments can have plenary powers, when two conditions are satisfied 1 The state legislature authorizes it and, 2 The municipal charter claims such powers. Despite this, the state legislature can overrule any particular municipal power, via a state enactment. Just as the Federal government can limit certain state powers by 1 Passing a statute or act via an enumerated federal power, pursuant to Article I 8 of the U.S. Constitution, i.e., most often pursuant to the Commerce Clause found in Article I 8, Clause 3 and, 2 When the Federal legislature has the intent to supersede the state's authority, as per Article VI's Supremacy Clause. Now, all that aside, the Due Process Clauses of the Firth Amendment pertaining to Federal acts, and Fourteenth Amendment pertaining to state and local acts require that no legislation can encroach upon the Constitutional rights of the citizens. The same amendments apply to Equal Protection rights as well prohibiting discrimination against certain classes of people. Of course, this too encompasses a tiered system of review. Race, religion and national origin must meet the standard of strict scrutiny. Therefore, the government must demonstrate a compelling interest in limiting an individual's, or group of individuals' Constitutional rights. This is the highest level of judicial scrutiny, and the government carries the burden of proof. The next level of scrutiny applies to gender, and sexual orientation. This level of scrutiny is known as Intermediate Scrutiny. Again, the government carries the burden of proof to demonstrate that it had an important interest in limiting an individual or class of individuals' Constitutional rights, in that particular case. This standard is much less arduous than the compelling interest standard imposed by Strict scrutiny, but is, nonetheless, extremely difficult for the government to satisfy. The final and lowest level of judicial scrutiny is known as Rational Basis. This applies to everyone else, or in cases where the court determines that the amount of discrimination is minimalsay, in the case of the mosque, if New York City's zoning ordinances also prohibited the construction of a Christian Church, Jewish synagogue, or Buddhist temple, then the applicable level of scrutiny will be that of Rational Basis. Under Rational Basis, the complainantthe one filing suitmust demonstrate that the government's actions were arbitrary or capricious. In other words, the government possessed a rational basis for implementing the statute, ordinance or act in question. This is a tough standard for the complainant to succeed under. If memory serves me correctly, there were certain zoning restrictions applicable to the Mosque, and that the City Government prohibited the construction of any type of religious facility within the vicinity of Ground Zero. Precluding preexisting such houses of worship. Therefore, the Rational Basis standard would apply, and the group seeking to build the Mosque would probably lose the case. Also, your initial framing of the subject as anti-freedom of religion actually applies here, in the legal context. I know it seems odd, but the purpose of the Mosque was religious in nature, and therefore it is the Free exercise of religion clause that would apply in that case. Assuming that it was a governmental entity preventing the mosque from being built. It is important to note that there is another crucial distinction which must be made, with regard to issues of freedoms and rights. Typically speaking, Constitutional protections do not extend to discrimination against one individual or group of individuals, by a private entity. That makes sense, when one considers that the main purpose of the Constitution is to set the standards for governmental activity. Nevertheless, there are certain laws which all levels of government can enact to prohibit certain types of private discrimination. However, any such laws must be narrowly construed, in order to ensure that they do not infringe upon said private entity's fundamentally protected rightsas here you have a governmental entity, creating a law. Therefore, if it is a private contractor who denied the mosque's construction in his development plan. Unless there is a city or state ordinance prohibiting such discrimination, then there really is no legal recourse by the mosque, unless there is no other suitable location within the limits of the city, in which to erect their house of worship. The same is true with regards to the public outcry against the Coca-cola ad during the Super Bowl. Does Coca-cola have the right to run that ad? Of course! But, on the other hand, the general public also has the right to voice their opinions over whether they like, or dislike the adno matter how bigoted, or short-sighted such arguments may be. It makes sense that Constitutional protections don't apply to private individuals. If they did, we would in essence, have no freedom of speech, as there would be constant litigation over infringements and hurt feelings. The wording of the First Amendment also delineates to whom the Amendment actually refers Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or of the press or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances. emphasis added. What we see here, is the intent of the Founders, for First Amendment Protections to merely apply to governmental institutions. It limits the scope of applicability to laws, and the enforcement thereof. Thus, for the most partunless there is a criminal law or statute prohibiting private discriminationprivate entities are free to be as hateful and bigoted as much as they want, unless it leads to violence or death. Is this necessarily a good thing, in the scope of human nature? Probably not, but it is necessary that we draw some sort of a distinction between to whom, and for what, Constitutional rights apply. Otherwise, we are left with utter chaos.