People are supposed to be protected from an overly powerful government by the guarantees in the Bill of Rights.
While it was never intended to be a complete list of individual rights, it was written to curb the excesses colonial Americans experienced under the British king.
The Bill of Rights contains general statements of principle but almost no details. Sometimes Congress and sometimes the Supreme Court fill in the details.
A current case illustrates how this works. The First Amendment says the federal government cannot “prohibit the free exercise” of religion. Under the Religious Freedom Restoration Act, it cannot force religious organizations, opposed to contraception, to provide health insurance coverage for it.
The Affordable Care Act requires such organizations to inform insured employees that they do not provide this coverage but that it is provided without charge by insurance companies. Presumably, its costs are covered in the premiums charged to all employers.
Some say that even providing this notice forces them to support contraception and want the notice requirement lifted.
The Supreme Court has asked the organizations to consider simply negotiating insurance contacts without this coverage and notice requirement, leaving it to the insurance companies to inform their employees. The government says it would agree if this arrangement ends all lawsuits.
The Court has already found that, only when there is a “compelling” governmental interest, can the federal government override religious objections to a law.
For example, it ruled a Quaker must pay taxes, even if some of the proceeds support the military, because taxation is a “compelling” government function. Jesus’ statement, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” was about paying taxes.
Such cases show that religious freedom is not an absolute guarantee. Yet some disagree and believe that these rights are absolute. They say that government cannot take any action to limit them.
That is the essence of the current case. Can government take any action that would limit what a religious group considers the “free exercise” of its beliefs?
If the answer is that it cannot, then the Bill of Rights recognizes the authority of people outside of government to determine for themselves whether the law applies to them.
Does individual freedom overrule the public interest? The issue arises with respect to several parts of the Bill of Rights.
After decades of arguing about the meaning of the Second Amendment, the Supreme Court decided that it protects the right of individuals to own and use firearms. Some see this right as absolute, preventing the government from placing any limits on their use.
They ignore the Court’s decision itself, which states that, to protect public safety, government may place reasonable limits on this right. The opponents of this conditional decision, who seek to have government refrain from any limits, say that the presence guns themselves will be the best protection of public safety.
Perhaps most famously, the First Amendment says government can make no law “abridging the freedom of speech.” This is perhaps the broadest of the rights and one distinguishing the United States from most other countries.
The Supreme Court has decided that making political campaign contributions is “speech” and that, in effect, no limit can be placed on the amount of such contributions. Its decisions have given enormous power to a relative handful of extremely wealthy people.
In an earlier First Amendment case, the Court decided that a newspaper may report negatively on public officials provided it does so without knowingly misstating the facts. This was a major support for freedom the press.
But there are limits on freedom of speech. The government may pass laws to allow average people protection from outright lies, though public figures get somewhat less protection. And you cannot unjustifiably yell “fire” in a crowded theater, though the common belief the Supreme Court said so is not accurate.
In the current political scene, it has become more common to hear claims that the Bill of Rights contains absolute freedoms that government cannot limit. The so-called “originalist” view of the Constitution wants to apply the text literally and keep government out of picture.
That’s one reason why the next appointments to a delicately balanced Supreme Court are important. Ultimately, the Court decides on whether limits can be placed on rights and what those limits can be.
The next president will undoubtedly have the opportunity to appoint new justices to the Court. Much depends on the outcome of the presidential election for the determination of major constitutional questions that can affect everyone.