Quick Review:
- Your rights started with a document written by human beings.
- Those smart guys made it flexible by setting up a system for changes (amendments).
- They also erected a strong fence/barrier/moat between the national government (that would be Washington) and state governments (legislators where you live).
But if the president, along with other representatives of the national (federal) government, is restricted by the Constitution in certain ways—meaning that he or she does NOT have unlimited powers—can the lawmakers in your state do whatever they want to do? The answer is no.
If the Constitution (in your view) can be interpreted to mean that you, an ambitious girl who likes playing football, have the right to play on your school’s all-boys football team when there’s no girls’ team, what happens when your state or local government, or your local school board, disagrees?
This, my young friend, is where the real fun begins.
And also where the craziness, the anger, and the whole gamut of other human emotions come in…
See, there is a third party involved in defining your rights in this great land: the court system.
If you watch my program, you know that I frequently rant and rail against court decisions that—IN MY VIEW—are ridiculous, dangerous, or just plain wrong. (Don’t get me started!)
But I respect the SYSTEM—at least, the intent behind the system, as the Philadelphia gang saw it. See, there has to be a referee, an umpire, when your state lawmakers pass a law that other free citizens believe is unfair. The buzzword, as you certainly know if you have been following public life in this country, is unconstitutional.
Let’s go back to that train we talked about earlier…
You’re on your cell phone shouting louder and louder because we’ve entered a tunnel, or your friend’s signal is breaking up: “Hello! HELLO! I CAN’T HEAR YOU!!”
Can your school board keep girls from playing sports on an all-boys team? © AP/Ron Schwane
Meanwhile, I am trying to read and concentrate on, say, the latest edition of The Collected Thoughts of Paris Hilton. (A very heavy book.)
Does the law help us here? Well, it might, and it might not. Suppose it’s vague, something to the effect that passengers should respect one another’s rights. That’s not going to help us very much.
So, one of us, annoyed with the other, might get a lawyer to go to the courts for an interpretation of the law. And our argument will be that it has to be interpreted by the ideas of the men who wrote the Constitution—that’s what’s called “original intent.”
If our local court in New York disagrees with me, I can take the case up to the top court in the state. And if THAT court disagrees with me (and I still have enough money left for the lawyer), I can take it all the way to Washington to the Supreme Court.
There, one of two things is likely to happen.
They can refuse to hear my case because they don’t think the Constitution applies directly to it or because they have better things to do or for no reason at all. (The nine judges—the Supremes, as some people like to call them—don’t have to explain why they won’t hear a case.)
Or, they can decide to hear it. By a simple majority of only 5–4, say, they can interpret the law so that it applies to every one of us, no matter where we live. And we have to obey the law, or we could be punished.
That is the real power in the USA.
Okay, this will help you remember how the Supreme Court works…
Let’s say that four of the judges always agree on one side of an issue, and four others always agree on the opposite side—no matter what the issue is. This doesn’t take much imagination, because it has happened a lot.
Now this takes some imagination: I have been appointed as the ninth judge!
Think about it…Bill O’Reilly, your humble TV journalist, is now the so-called swing vote on the Supreme Court of the United States.
No, no, don’t wake up screaming yet.
Think about it.
You probably wouldn’t be reading this little book if you didn’t know something about me, my program, and my opinions.
Your worst nightmare! Judicial robes © Glyn Jones/Corbis. Photograph of Bill O’Reilly courtesy of Lynn McCann.
Death penalty?* I’m against it, for many reasons. Equal opportunity in jobs and education? I’m for it.
So when a case comes before the court, my vote is the only one that counts, and you can pretty much guess how I’m going to vote. Again, imagine me in my black robes as the swing vote on the Supreme Court and you can see how important these guys and gals can be. In fact, a lot of experts believe that the most important act of any president is his or her choice of judges to nominate for the highest court in the land.
Okay, you can wake up now…
And that is why people on all sides work so hard to make sure that the judges selected and approved are at all levels smart, honorable, and fair—if that’s possible. These men and women can have the last say about your rights in a million situations.
!BREAKING NEWS!
This just in from our Sad News for Teens Reporter. Listen up, kids…The trend in American court decisions is to favor the rights of schools to prevent you from doing just about anything that they regard as distracting from the educational process. Does sexy clothing distract other students from their math homework? (Well, duh.) Does a political statement on a T-shirt distract someone who disagrees with you? This is the kind of thing that causes many controversies. Bottom line from the Sad News Staff: Usually, you kids don’t win.
ARE THE SUPREMES YOUR FRIENDS?
Having trouble sleeping lately?
Then try reading some court decisions, especially those of the Supreme Court. I mean, how do they keep themselves awake while writing these things?
Okay, they’re not writing for you and me; they’re trying to define a right very, very clearly, and they’re trying to justify a decision by interpreting specific parts of the Constitution. And that’s only the beginning.
Your eyes are glazing over already…
So I’m not going to go into the details of a decision on paddling, say, that could run on for twenty pages.
But here are a couple of examples that will help you understand how tricky things can get.
Way back in 1975 (I know, I know, you weren’t even born yet), the Supremes agreed to listen to a lawsuit brought by nine Colorado kids who felt that they had been expelled from school without being given a hearing. (The technical way to say this is that they were denied due process under the Fourteenth Amendment to the Constitution.)
In brief, the majority of the judges decided that schools should be required, usually, to discuss a student’s proposed suspension quickly and listen to his or her side of the story before taking action.
So, by a vote of 5 to 4(!), the Supremes did a solid for you: Kids had to be given a hearing before they were kicked out. And in hearings, sometimes minds can be changed.
Two years later, two Florida boys filed a lawsuit against school officials to argue that being paddled on the butt was against the Eighth Amendment—in other words, it was “cruel and unusual punishment.”
They also argued that they should have had a hearing to explain their side of the story before being paddled. Again, their lawyers were talking about “due process” in the Fourteenth Amendment.
(Are you on to my wicked plan yet? I’m trying to convince you that these dull old phrases in eighteenth-century English are right up-to-the-minute in your daily school lives.)
As it happens, Florida school officials had been very precise in their use of paddling. For example, according to a regulation, the instrument involved should be “a flat wooden paddle measuring less than 2 feet long, 3 to 4 inches wide, and about 1/2 inch thick.” These people meant business. (And I believe I have your attention here.)
The majority of the judges decided that (1) they weren’t going to agree that paddling is necessarily “cruel and unusual” and (2) they weren’t going to insist that officials have a hearing before paddling because that would be “a significant intrusion” into the educational process.
Yep, the decision was 5 to 4. This time, the Supremes, you might think, were not on your side. In some schools, kids who misbehave can be paddled! Usually, the local school board decides. You’ll never get paddled in liberal San Francisco. But in conservative Mississippi, watch your butt, literally.
Here’s another instance where you could ask whether or not the judges are on your side.
The Supreme Court Justices. Seated in the front row from left to right are Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice of the United States John G. Roberts, Associate Justice Antonin Scalia, and Associate Justice David Souter. Standing from left to right in the top row are Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Associate Justice Ruth Bader Ginsburg, and Associate Justice Samuel Alito Jr. © AP/J. Scott Applewhite
In 1996, the Supremes nixed the Communications Decency Act, which was created by Congress to limit kids’ access to pornography on the Internet.
Two years later, Congress tried again with the Child Online Protection Act. The idea was simple: Make it a crime for anyone to run a Web site that lets kids in to see “harmful” material.
“Harmful”? Well, Congress was trying. See, it’s very difficult to define pornography in a way that most people will agree with. Bet even you and your friends can’t! In fact, there’s a famous line from a Supreme Court judge who said, “I can’t define it, but I know it when I see it.” Nice try, Your Honor.
But we pretty much know what Congress was attempting to do. Still, a federal judge knocked down the law as unconstitutional. His argument: “Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”
In other words, he felt that, in trying to protect kids from porn on the Internet, this law interfered with the free-speech rights of adults. (That would be you, in a few years.) So, you can download porn now, if that’s your thing, because otherwise adults wouldn’t be able to.
So, what do you think of that logic? Even if you never ever want to download porn, not ever, you the kid now or you the adult in the future, what does this decision mean to you? Is it necessary? Does it leave children exposed to harm?
I don’t want my children exposed to such filth, but I’m the type of parent who makes sure they don’t go near it. The real concern here is for children who don’t have parents with the will, the time, the means, or the smarts to monitor Internet activity. What about them?
I’m asking you to think about this and come to your own conclusion. This is not a book, as you’ve already discovered, with simple answers. This situation is what scientists call “a thought problem.” Think it out. Talk it out. You might be surprised at how many different reactions you get to this story.
So, The Supremes: Friends or Not?
There’s no easy answer. And each time, just that one vote made the difference in cases that greatly affected kids’ lives. In Ohio, the suspensions were for ten days. You know what that can do to a kid’s school year, on all levels. These are big deals. As for paddling, you have your reasons for avoiding the swats, and some of you have parents who agree with you. They might even argue that their parental rights include the right to protect you from physical punishment. But that’s another, uh, court case.
So, again, let’s review:
The smart guys in Philly set down a Vision in the Constitution for protecting Americans and for being fair…then they created a device for amending that Vision over time…they also gave the states and the national government separate powers to enact laws…and THEN they gave the courts the job of determining whether or not (in their judgment) each law is actually constitutional.
I’ve oversimplified the process (and you can thank me for that), but the above paragraph, basically, explains what you need to know in order to understand just what your rights are in this country.
!BREAKING NEWS!
This sixteen-year-old kid down somewhere in the Southeast has a license from his state to ride his motorcycle…which he bought with his own money after working hard at the local Wal-Mart for several months…and his parents have agreed to let him ride the thing during daylight hours if he always wears a helmet—BUT!!—his high school principal won’t allow anyone to ride a motorized two-wheel vehicle to school and park it on school property. See, she believes that the stats on motorcycle accidents prove that the bike is about twice as dangerous for a kid to ride in traffic as a car. Is the principal correct? Does it matter? Does the kid have a right to ride his bike onto school property since he’s clearly fufilled all legal requirements? Well, he could go to court, but he would likely lose. The principal determines what happens on school property. The kid has followed all the rules, except one: her rule. In this case, that’s the one that counts more than any of the others.
In many ways this situation is a lot like the train situation we talked about earlier. You will recall that because the train is private property, the train company has the right to make rules such as “no loud noise” provided these rules are reasonable, intended for the good of the passengers, and do not discriminate against any one specific group.
Like it or not, noisy commuters need to pipe down or walk.
Similarly, school administrators, more often than not, have the right to establish rules on closed campuses, provided they, too, are reasonable rules, serve the greater good of the student body, and do not discriminate against any one specific group, even if the school is a public institution.
Here’s an example that upsets a lot of people: students, their parents, their lawyers.
It involves an important constitutional concept called “probable cause.” Just as the phrase “I know my rights!” is often used and misused on cop shows, so, too is this phrase, although you probably have to listen closely to hear it. Usually, the stern judge or worried district attorney is questioning the cops about whether or not they had probable cause to take some action that uncovered vital evidence in a crime. If there was no probable cause, then the evidence gets tossed.
But here’s the thing for you, kid. The definition of probable cause for a student on school property is much looser, much wider, than it is for adults in similar circumstances outside of school.
I’m serious! Your school officials can use a different concept to justify searching you, your car, or your locker for, say, weapons or illegal drugs than the police can use to search an adult they think possesses one of those things. The term that applies to you kids is reasonable suspicion.
Define, please.
Well, don’t even try. You don’t need that kind of headache at your time of life.
See, the definition of reasonable suspicion (and of probable cause, but that’s another can of worms) is going to depend upon what your principal thinks, what your school board has decided, and what local courts have said in disputed cases.
You’re not happy about this…Or are you?
On the one hand, if you are determined to bring a concealed ninja weapon to school, reasonable suspicion means that you are more likely to be searched—and have that evidence stand up in any legal proceeding—than an adult would be doing the same thing in a mall. If he or she conceals the weapon cleverly, there may be, in that situation, no probable cause to search him or her. Your school official, though, needs only to feel reasonable suspicion. So, maybe you think this is unfair.
On the other hand, if you’re a student who does not want to be walking down the hall next to someone carrying a concealed ninja weapon (no matter how, uh, cool that is, right?), you might think that this “reasonable suspicion” thing is pretty fair. It gives more weight to your rights as a sane, decent kid than to the rights of the nut case with the throwing star.
We really should talk a lot more about the whole school thing and the rights you have there because, as you know, school is a major part of your life. Isn’t it? So let’s do that…
* The death penalty is too easy for Osama bin Laden and others like him. They deserve to suffer every day in a hard-labor situation. In my opinion, that would be a greater deterrent than a quick execution. Also, some innocent people have been executed. Not good.