Re: legal precedent
Michael F. Bowman (mfbowman@CAP.GWU.EDU)
Sat, 29 Oct 1994 20:46:18 -0400
In your posting you wrote the following:
> The other dangerous part is that the legal precedent of innocent
> until proven guilty is being overturned in the case of child abuse. Some
> one says that the Constitution does not guarentee such a right. He is
> right to say it does not explicitly state such a right, but the
> interpretation of the Constitution for the past two hundred years has
> considered that to be its meaning. He is also forgetting the clause that
> says our rights are not limited to those mentioned in the Bill of Rights.
> I could point out many things which are considered to be part of the
> Constitution, but are not explictly stated: beauracracies, abortion,
> welfare, and the Supreme Court's right to declare a law un-Constitutional
> for a few.
I am the person who posted the long dissertation that you were discussing.
You should be aware that it was addressed to a particular issue and not a
general explanation of the entire Constitution. As a practicing attorney,
I am more than a little familiar with Constitutional law and am concerned
that there are many misconceptions of what our Constitution says and
doesn't say. I am equally concerned that not many understand the
relationship of the Courts in interpreting the Constitution. As a
Citizenship in the Nation Merit Badge Counselor, one of things that I
always try to do in the discussions mandated by requirement 1 concerning
the Constitution is to make sure Scouts know what the Constitution says
and how Constitutional interpretation has expanded the reach of the
Your posting is interesting, because it demonstrates all too clearly the
need to be aware of what the Constitution is all about.
The Constitution only guarantees the right to due process in Article V.
Until the post-Civil War amendments were added that right only extended to
actions of the Federal Government. And unless a State had a similar
protection in its own constitution, there was no requirement in the law
that an individual charged with a crime be presumed innocent until proven
guilty. This changed with Amendment XIV which made due process applicable
to State actions. However, this was not really clear until several Court
cases interpreted the Constitution in the late 1800's and early part of
this century. So the concept of being presumed innocent, requiring the
state to show guilt beyond a reasonable doubt is relatively new in this
country. You should note that this concept has only been applied to
criminal law cases and that there is no presumption of innocence in a
civil or administrative proceeding like those involving child protection.
You are correct in asserting that Constitution does preserve rights not
specifically enumerated in the Bill of Rights, but be aware that this
language did not create any new rights. To understand what these rights
were you have to go back to 1788 and look at what they understood those
rights to be.
In making your argument you cited examples of what you thought were things
considered to be part of the Constitution, but not explicitly stated:
In Article I, Section 8 of the Constitution, the Congress is given explicit
authority to "make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers vested
by this Constitution in the Government of the United States, or in any
Department or Officer thereof." This is generally regarded as the basis
upon which Congress has authority to authorize and fund the many Government
departments and agencies that are termed bureaucracies.
You also cited as examples of things considered to be part of the
Constitution both welfare and abortion. I don't think that any legal
scholar would agree that they are part of the Constitution. Various
groups have made arguments that there is legal entitlement to welfare or
abortion and just as many arguments to the contrary have been made. As it
stands now there is no Constitutional Right to welfare or abortion per se.
In entitlement cases there are arguments that one can acquire a property
right to welfare and that it can't be taken away without due process,
which means a hearing before an impartial arbiter with the opportunity to
present evidence and not a lot more.
You also included the Supreme Court's right to declare a law
unconstitutional, which was granted in Article III at Section 2.
Jason, I hope that this will help clarify some of things in my earlier
posting for you and that this will help you understand why I was motivated
to point out how dangerous some of the coming new laws might be. Given
all of this, I agree with your conclusion and share your concern.
Yours in Scouting, Michael F. Bowman, a/k/a Professor Beaver
Deputy District Commissioner Exploring, GW Dist., NCAC, BSA
Speaking only for myself, but with Scouting Spirit . . .
____ mfbowman@CAP.GWU.EDU ____
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City