Constitution USA with Peter Sagal

(Peter Sagal) Travel around America, and you're bound to run into the Constitution.

It seems to be everywhere.

(Sarah Palin) The Constitution... (Barak Obama) Our Constitution... (Rachel Maddow) The Constitution... (Pat Buchanan) You haven't read the Constitution...

This little document-- it means everything to us.

It's like the Big Bang.

It's the most momentous thing to happen in the modern world.

(Peter) The Constitution has been around for more than 225 years.

But many of us don't have any idea what it says.

Of course, that's never stopped us from arguing about what it means.

I'm Peter Sagal, and I am taking a journey across the country to find out how the Constitution works in the 21st century.

We should have the same right to drink out of a water fountain, to drive a car, and to marry each other as anybody else has.

(Peter) In this episode... we are all created equal.

That's one of our nation's founding principles and one of our highest ideals.

But it's not in the Constitution, at least not as it was drafted in 1787.

It took another 80 years, a bloody civil war, and a constitutional amendment before equality became a written guarantee.

The 14th Amendment, it's so important, it's such an important part of how we understand ourselves as Americans.

(Peter) For more than a century, the 14th Amendment has also been at the center of every fight for fairness.

We are here, and we ain't gonna let nobody turn us around.

It's at the heart of almost every hot-button issue of our time, Including a few that may surprise you.

(Peter) So you think you're sort of strangely civil rights pioneers.

Strangely, yes.

(Peter) But not everyone feels like they're being treated fairly.

The city made a race-based, conscious decision to discriminate against our civil rights I served my sentence, I came back to the community, they still wouldn't let me vote.

(Peter) In our struggle for equality, have we gone too far... or not far enough?

Let's do it!

[motorcycle motor purrs] [guitar, drums, bass, &piano play in bright rhythm] Hello.

Citizenship class is upstairs?

(woman) 2nd floor.

Thank you so much!

(male teacher) So when was the Constitution written?

(class) 1787.

(teacher) 1787, okay, and what does the Constitution do?

(class) Sets up the... (teacher) Sets up the government.

(Peter) Like me, these people are learning about the Constitution.

But they're doing it in order to get something I already have.

They want to become citizens of the United States.

(teacher) What is an amendment?

(class) A change in the... (teacher) Yeah, a change to the Constitution.

And how many amendments, how many changes have there been?

(class) 27.

(teacher) 27, okay.

(Peter) Before they can qualify for citizenship, these students will have to pass a test.

But they do get the chance to practice first.

What do we call the first ten amendments?

What is the supreme law of the land?

What's one or right or freedom from the First Amendment?

Speech.

Yup, speech, good.

Can I interrupt for a second?

Let me just say, I'm supposed to know this stuff, and I would be so terrified sitting across from you I don't think I'd know anything.

I always tell the students that I could go out on the street right now and ask anybody these questions and 9 times out of 10 they wouldn't be able to answer them.

And they're American citizens.

Okay, I'm game.

Let's see how I do.

I did highlight a few here.

What year was the Constitution written?

Ah, 1787.

What's one power of the federal government?

Ah, making war.

Declaring war.

How many voting members are in the House of Representatives?

Ah, I was gonna say 500, but that's in the Senate, I just want to say again that just you going into this mode, my anxiety level just skyrocketed.

It's crazy how that happened.

(Peter) I'm feeling the pressure, and I have nothing at stake.

They have a lot more riding on this.

But the prize is worth it.

They took all kinds of different paths from all over the world to get here to this room in Chicago, but in the end they are all after the same thing.

(male teacher) The first three words of the Constitution?

(class) "We the people"... (teacher) "We the people,"right.

(Peter) Three little words-- for these aspiring citizens, becoming an American is really about becoming part of the "We."

They want to be able to look at that phrase and know that they're included.

But when the Constitution was written in 1787, a lot of people-- women, African Americans, and Native Americans weren't fully included.

And joining "We the People" has been a little more complicated than just getting a passport.

In fact, the story of America is really the story of a struggle for inclusion a struggle for equality, for fairness.

And we can pinpoint the exact spot in our Constitution where that struggle shifted into high gear.

It's the 14TH Amendment.

Akhil Amar, who has studied the Constitution his whole life, doesn't think the 14th Amendment simply changed the document.

He thinks it remade our country.

Our modern Constitution is the product not just of the founding and not just of the Bill of Rights, but of the 14th Amendment.

It's the most important provision in the constitution.

How did it change the country?

How did it change how we the people saw our rights?

It takes the deep idea of Declaration of Independence that all men are created equal and now puts it in the constitution.

And now it's at the heart of the Constitution, at the foundation of the whole enterprise.

(Peter) So the 14th Amendment is a very big deal.

In fact, it's been cited in more court cases than any other amendment.

But to understand what it's all about you have to go back to a crucial moment in our history.

In 1865, the country was emerging from the ashes of the Civil War.

And it was time to deal with a Constitutional problem that had been left unsettled by the founding fathers-- slavery.

(Akhil) Slavery is this basic contradiction at the heart of the Constitution.

Most people have all these rights and liberties and yet, slaves have none.

Slavery is this cancer in the Constitution and it grows and it grows and it grows.

And eventually, the system breaks because of this contradiction-- it fails-- the Civil War.

The cancer almost kills the patient, and when we finally cut it out, we can begin to heal.

(Peter) To help the patient recover, a new set of "founding fathers" came forward at the end of the war.

Many of our original Founders were slaveholders, Washington and Madison included, but the so-called Radical Republicans of the 1860s were staunch opponents of slavery, Congressional firebrands like Charles Sumner, John Bingham, and Thaddeus Stevens-- they actually called him "Thad the Rad."

They were ready to remake the nation to punish the South for its rebellion, and remove the stain of slavery.

They would do it by amending the Constitution.

The 13th Amendment was spearheaded by Lincoln himself in the last months of the war and near the end of his life.

It abolished slavery once and for all.

With its ratification, four million slaves were suddenly free.

But that wouldn't be enough.

No sooner had the war ended, than the old regime in the South retained power, and passed laws to restrict the rights of their former slaves.

The Republicans would have to take extraordinary measures to insure those rights to make certain that African Americans would be respected as citizens.

But the Supreme Court, in its infamous Dred Scott decision of 1857, had declared that black people couldn't be U.S. citizens.

Chief Justice Roger Taney wrote that they were considered "...so far inferior that they had no rights which the white man was bound to respect."

That decision had to be undone.

(Akhil Amar) The first sentence of the 14th Amendment, it makes everyone born in the United States a citizen on the day of his or her birth.

Was that intended specifically, for African Americans, for former slaves, to make them citizens, ka-boom or was it, there was a larger purpose in that?

It was both about making sure that African Americans were citizens on the day of their birth, but it's written in broader language.

Ultimately, it's about us all-- black or white, male or female, Jew or gentile; whether your parents are citizens on the day that you're born, or whether they're not.

Everyone born in America is born a citizen.

That means that they're born an equal citizen.

(Peter) The key word there is "equal."

The 14th Amendment guaranteed everyone "equal protection of the laws."

That was unprecedented.

But even today, a century-and-a-half later, not everyone feels equal.

[motor purrs] Kristin Perry and Sandy Stier make their home in Berkeley California, with their sons.

Kris and Sandy have been a couple since 2000, and for the past decade they've been riding a matrimonial roller coaster.

So you two got together when?

We met in 1998, no we met earlier than that.

Right, we met in 1997.

We met in 1997.

You're smiling, you're not gritting your teeth, you're smiling.

No, I am smiling!

It was a fun meeting!

It was a fun meeting.

(Peter) In 2004, when the mayor of San Francisco announced that he would give out marriage certificates to same-sex couples, Kris and Sandy practically sprinted down to City Hall.

They were among the first to get married.

But when they got back from their honeymoon, they found that the city's action had been overturned, and their marriage was null and void.

Did you have to give back the gifts?

No.

We didn't do that, but it had an effect on us in a more lasting way than we knew at the time.

It was upsetting for all of us, and just sort of oddly humiliating.

You know, here we had this great celebration with all our family and friends-- and then to have it taken away?

(Peter) Then, in 2008, California voters approved Proposition 8, a ballot initiative amending the state constitution, to declare that marriage would only be legal between a man and a woman.

But "Prop 8,"as it was called, soon faced a legal challenge.

Kris and Sandy filed suit, and the case would end up in the U.S. Supreme Court.

Becoming plaintiffs in a federal case, is a pretty big deal.

That must have been a difficult decision to go ahead with.

It's been incredibly different to take on a public role versus just privately suffer.

That's what it's been like for many many years, since 2004 we've just sort of privately suffered, feeling like we'll never get to be like other people.

What about the idea that these guys are like, hey, this is my state, we had an election, I voted my conscience, my side won.

And then you're gonna take away the results?

I mean, isn't that undemocratic-- what about their rights as voters, as citizens of California?

We don't believe they had the right to take away our rights.

We didn't think the voters should have even voted on the issue.

You can vote in anything you want if enough of you want to.

That doesn't make you right, it just means there were more of you.

So if you're a minority, and you're never going to be the majority, you will never win your rights.

This is, that's why there's a Constitution.

I imagine you guys have had occasion to read the Constitution.

Have you read the preamble-- "We the People?"

What do you think of when you read that?

Oddly enough, because I've been gay my entire adult life, I have had a hard time feeling like it includes me.

(Peter) Really?

Yeah.

So you're like "we the people."

and you're like, not me.

"We the people," and then in parentheses, I wish I were part of this.

I aspire to be "we the people," part of the "We,"and for me this fight for marriage equality is like entry into "We."

And without I don't believe I belong, I mean, I don't.

The Constitution, and we've been reading it, doesn't say anything about marriage-- gay, straight, or otherwise.

So how can you say that there's a constitutional right to do something you want to do, just 'cause you want to do it?

Equal protection... it's about equal protection.

Because whether it's marriage or something else, we should have the same right to drink out of a water fountain, to drive a car, and to marry each other that anybody else does.

So that's what we're really, really fighting for.

That's what our case is based on.

(Peter) Of course, Equal protection is guaranteed by the 14th Amendment.

And in fact, there was a landmark case that linked marriage and the 14th Amendment.

That was back in 1967.

And the case was appropriately named Loving versus Virginia.

It involved a couple named Mildred and Richard Loving.

At the time, the state of Virginia had an anti-miscegenation law, banning interracial marriage.

The Lovings were found to be in violation of the law, and they were ordered to leave the state or face a year in prison.

I think that marrying who you want to is a right that no man should have anything to do with.

It's a God-given right I think.

(Peter) The Lovings sued the state of Virginia, and the Supreme Court ruled in their favor.

The Supreme Court says that marriage is one of the basic civil rights of man.

Under the Constitution, the Court held today, unanimously, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by racial discriminations.

(Peter) The Court based its decision on the equal protection clause of the 14th Amendment.

So if the Supreme Court has ruled that the Constitution protects the right to marry someone of any race, it should also guarantee the right to marry someone of any gender.

Right?

Legal scholar Robert George says no.

We're meeting at the Princeton University chapel a popular site for weddings, both gay and straight.

You had a fundamental problem with anti-miscegenation laws and that's they were just rooted in a system of racial subordination and oppression.

The whole purpose of 14th Amendment, the whole purpose, was to undo that kind of racial discrimination, and that's why the Court was entirely right in my view in using its 14th Amendemnt powers to overturn state anti-miscegenation laws.

Well, you know that advocates for same-sex marriage, marriage equality, are saying it's an analogous case.

The reason that doesn't work is that they're helping themselves to the very conclusion that they need to prove.

It's true that sometimes you have laws that are clearly rooted in bigotry, and we should be able to say that that's true when that's true.

But people who have conservative ideas about sex and marriage are not bigots.

No one cooked up the conjugal conception of marriage, which emerges from a deep history, and in many traditions, on the basis of bigotry.

That's that's just false to the historical facts.

And now, they can have a view, that's, that's fine.

They can compete for their view, and if they can win a majority of their fellow citizens in a fair debate, then their views should prevail.

But people on the other side have exactly the same right.

And if they can persuade a majority of their fellow citizens, then they should prevail.

What we shouldn't be able to do, Peter, either side, is to go into court to short- circuit the democratic process.

(Peter) Whether or not you agree with Robert George, he's right about one thing-- the 14th Amendment is not a blanket guarantee of equality.

History has shown that our government draws distinctions between different groups of people all the time and treats them unequally.

You have to be a certain minimum age to get a driver's license-- that discriminates against the young.

And you have to have certain abilities-- blind people aren't alive to drive.

Or how about taxes-- your tax bracket and the rate you pay vary depending on your income level.

That's a kind of discrimination, too.

And even when the Courts consider Equal Protection cases, they don't always come down on the side of "more equality."

Take poverty-- the Supreme Court has ruled that because poverty is not what it calls "an immutable trait" a permanent characteristic like race, the Equal Protection clause doesn't provide much protection.

And what about voting?

You might think that's a fundamental right for all Americans, protected by the 14th Amendment.

But the 14th left voting rights up to the states.

For freed slaves it took another amendment the 15th to declare that no one could be prohibited from voting because of race.

And of course, that didn't cover women.

They would have to fight for their own amendment, the 19th, to give them the vote.

Native Americans were made citizens by an act of Congress in 1924, but they still had to win voting rights from the states.

And in 1971 at the height of the Vietnam War there was yet another constitutional amendment to extend suffrage to everyone over 18.

So providing equal protection hasn't been a simple process and it hasn't been quick, even for the group that was most in need of protection after the Civil War.

The 14th and 15th Amendments merged the Declaration of Independence into the Constitution.

Thomas Jefferson's beautiful poetry about all men being created equal finally had the force of law.

But just because equality was now written into the Constitution didn't make it real.

There were still a lot of people in this country who were less equal than others.

(Peter) African Americans had been freed from slavery and given rights, but those existed mainly on paper.

For another century after the Civil War, state laws, especially in the South, kept millions of African Americans out of the voting booth with property and poll taxes, and mandated segregation in public places.

Black citizens remained.

second-class citizens.

For anyone who dared to defy the rules, the penalties could be brutal.

It would take a long struggle to overcome deeply-rooted racism, and rouse the conscience of the nation.

When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir.

We've come to cash this check-- a check that will give us upon demand the riches of freedom and the security of justice.

[loud cheering] (Peter) Finally, the Civil Rights Act of 1964 reinforced the 14th Amendment's guarantees of equality, outlawing racial discrimination in public accommodations.

And very next year, Congress passed another bill, the Voting Rights Act to make sure that the voices of all Americans would be included in the democratic process.

You might think that with all that struggle, the right to vote would today be sacred, enjoyed by every American without exception.

You'd be wrong.

In some states convicted felons are deprived of the right to vote, and getting it back can be difficult or impossible.

One of those states is Kentucky.

Tayna Fogle knows about that firsthand.

I need to let you know right now there is 243,000 people, plus, that have in Kentucky that has lost the right to vote.

240,000?

A quarter of a million people in Kentucky, cannot vote.

(Peter) The reason they can't vote is built into, of all places, the 14th Amendment.

It stipulates that states can deny the vote to anyone guilty of "...participation in rebellion or other crime."

The "rebellion"part referred to ex-Confederates.

But the "other crime"part can apply to anybody convicted of a felony.

And today that keeps more than five million Americans from casting their votes.

The laws vary from state to state.

Maine and Vermont allow felons to vote even from prison.

But in a dozen states they can be barred for life.

In Kentucky, only an executive pardon can give them back the vote.

Tell me Tayna, why this issue is so important to you, this issue of felons getting the right to vote.

Well um, the main issue, and the reason why it's so important to me is because I'm an ex formerly incarcerated person.

And so I know how hard it is in order for someone to get their voting rights back because I went through that process.

(Peter) Tayna played as a star forward on the University of Kentucky basketball team.

But a few years after college she was in prison for drug trafficking and writing bad checks.

As a convicted felon she lost the right to vote, and she worked hard for 13 years to get it back.

What do you say to people who say that's the law-- if you don't if you want to vote, don't commit a felony.

Don't be a criminal, why should we let these criminals, you criminals, you know, exercise their franchise .

How can we trust you?

Well, here's the deal.

Once we're released and we've served our time in this community, then that shouldn't be a lifelong sentence.

I served a 10-year prison sentence.

I'm not saying that I shouldn't have been charged.

I'm not making any excuses.

I'm saying I did exactly what the judge told me to do.

I served my sentence, I came back in the community, started contributing, stopped taking from the community, became a model citizen, and they still wouldn't let me vote.

A lot of my people died for the struggle, to give me the right to vote.

[with emotion] When my mom first took me down to sign up, she told me how important it was to have a voice.

And she said if you don't do anything else, make sure you go to the poll.

And I remember going to the poll the first time with her, and so ah... ever since she took me to the poll, even though I've had things happen in my life, it was something about pulling that lever, it was an empowerment.

I've held that dear to my heart, even though I made bad choices that landed me where I was landed, but that's in the past, God has seen something in my future, and he has given me ability to speak out and not be afraid.

(Peter) The 14th Amendment was intended to expand and protect rights.

It's ironic that it deprives some people of their rights and their voices.

Michelle Alexander argues that it ends up coming down hardest on the very group it was originally meant to help.

The problem is, is that we live in the era of mass incarceration.

You know, in the past few decades, we've quintupled our prison population, and in cities like Chicago, more than half of working age African American men now have criminal records.

In the United States today if you have been labeled a criminal or a felon you are deemed ineligible for many of the basic civil and human rights that were supposedly won in the civil rights movement and that so many of us take for granted.

If you have to check the box for the rest of your life on employment applications asking have you ever been convicted of a felony, you're unable to get housing even access to public housing, you're not able to even to get food stamps, and if you say it's okay to deny all of those folks their basic civil and human rights, what you're doing is creating a new second-class status.

If we're going to be of, by, and for the people, it should include each and every one of us.

So what's the failure here?

Has the Constitution failed or have we failed it in this regard?

The words of the Constitution itself um, are a promise that has yet to be fully fulfilled.

It's not up to the lawyers and the judges alone, to make those words meaningful, it's up to all of us.

If we want the 14th Amendment to guarantee equal treatment for all, it's going to take a movement of ordinary people defining what equal treatment really is.

(Tayna) Raised my grandchildren, we sent them off to school every day.

This is my sister Margaret .

Pleasure to meet you.

Nice meeting you.

(Peter) These days, Tayna Fogle is working to change Kentucky's state laws, to make it easier for ex-felons to regain their rights.

We're building a place for everybody who has served out their time and who has a right to vote to become full holistic citizens.

(Peter) Michelle Alexander and Tayna Fogle will tell you that the struggle to achieve equality is far from over.

But there are others who say that our efforts can go too far.

Affirmative action programs began in the 1960s, in the wake of the Civil Rights movement.

They're intended to give minorities a leg up, and to increase diversity in hiring and education.

But giving preferential treatment to one group may take away opportunities from another.

Here in Connecticut a few years ago, a group of firefighters filed a discrimination suit.

They said they were being judged on their race, and not on their skills.

I said, skills?

What skills?

You go to the burning house, you spray water on the glowy parts, what skills do you need?

So these guys showed me.

You gotta be prepared for everything, and that's what firefighter safety and survival is about.

Let's do it.

Deep breath.

(Frank) You're up Peter.

Straight through the wall this way to make sure nothing's on the other side of the wall-- as hard as you can.

There you go.

You're hired.

All right man.

Where's the fire?

[Frank laughs] (Peter) Frank Ricci is a 15-year veteran of the New Haven Fire Department.

Not long ago he was made a Lieutenant.

Throughout your whole career you prepare for promotion.

It's like studying for the Bar Exam.

I studied up to 13 hours a day.

While working as a firefighter?

While working as a firefighter.

How do you manage that?

You don't carve pumpkins with your kids, you don't do the birthdays, you simply study.

(Peter) But in this case, all that studying seemed to go to waste.

After Frank Ricci took his exam, the city of New Haven threw it out, along with the tests of all the other candidates.

The city decided that not enough African American firefighters had qualified for promotion, and feared it could face a discrimination lawsuit.

So to avoid that risk, it declared that the test was flawed, and invalidated all the results.

And then the city was sued-- by Frank Ricci and 19 of his colleagues, all of them white or Hispanic.

They contended that they were the victims of discrimination.

(woman) They've become known as the New Haven 20.

They say they were denied promotions because of their race, and their lawsuit against the city will now be decided by the U.S. Supreme Court.

We undertake this action for firefighters across the country and for public safety.

The city made a race-based, conscious decision to discriminate against our civil rights.

Tell me what the Constitutional argument is.

Equal protection-- it's very simple-- equal protection under the law-- the laws of the nation should apply to everyone regardless of race.

So did you feel at that time, well, discriminated against?

Well, I think that America fails whenever we take people and put them in racial groups.

The government, because of the equal protection law, and because of our Constitution, has no role in dividing people up in racial categories.

(Peter) It would be up to the Supreme Court to decide whether New Haven's action was justified, or whether it was guilty of reverse discrimination.

Did you come to understand in any way, I mean, not necessarily agreeing, but maybe just seeing the point of view, why they city did what they did in that regard?

No, because it when someone calls 911 they don't care if the person who responds is white, black, or Hispanic.

They only care that the person gets there quickly, is competent and respectful, and can do the job.

(Peter) In the end the Supreme Court found against the City.

It said the Civil Rights Act's prohibition against racial discrimination applied to all races.

And the Fire Department had to accept the results of the exam.

Which meant that Frank Ricci finally got his promotion.

Maybe we still haven't figured out how to make good on the heady promises of the 14th Amendment.

After all, it was designed to fight discrimination against freed slaves.

Now, ironically, Michelle Alexander says it discriminates against their descendants.

And Frank Ricci complains that our efforts to fight injustice lead us to discriminate against whites!

So in spite of the 14th Amendment, or perhaps because of it, there still seems to be a lot of disagreement about who is protected and who isn't.

[marching band plays] [people cheer] Friday night, Tyler, Texas, the Homecoming game-- What could be more American?

(Peter) Everybody who's anybody in Tyler is here tonight to see the big game, with their favorite team, the John Tyler High School Lions.

They take their football seriously here in Tyler.

And nobody's more serious than the Lopez family.

So who here attended this high school?

That one and this one and those two down there.

You went to JT, didn't you?

We grew up on the other side of town, by downtown, about 7, 8 miles.

My parents still live there.

When JT and Lee would play, when our kids were younger, we'd make the game, and it was a big time rivalry even around the house.

They'd go down with their rebel flags, Yeah, it was ah, it was ah, it was something to see.

(man) Touchdown, John Tyer!

[cheering] (Peter) The Lopez family, quintessentially Texan, which means quintessentially American.

But that wasn't the case 35 years ago.

In Texas today testimony begins in a federal court in a case challenging a state law that prohibits funding of education for the children of illegal aliens.

(man) Every night hundreds of Mexicans enter Texas illegally.

Texas schools contain at least 10,000 children of illegal aliens, and officials fear more will come.

Their presence is becoming a major source of dilution of resources.

(Peter) Back in the 1970s, the Lopez family was among those illegal aliens.

Jose came first, crossing over from Mexico.

He found work in Tyler, and a few years later his wife Lydia joined him with their four children.

But when they enrolled Alfredo, Faviola, and Noe in the local public school, they ran into a big problem.

Texas had just passed a law requiring that parents prove their kids were here legally, or pay $1,000 per student for the privilege of attending public school.

Jose and Lydia Lopez couldn't afford to pay.

So they risked exposure and deportation by going public, to join a class-action suit against the local school board.

(man) Alfredo, how would you feel if you couldn't go to school?

I would feel terrible because I would need an education to get a job somewhere.

Eventually the case made its way up to the Supreme Court, where it would become a test, not only of immigration policy, but the meaning of the 14th Amendment.

It will make a mockery of the law if the Court suggests that the 14th Amendment extends benefits to people illegally in the country.

(Peter) The Justices ruled that the Texas law was unconstitutional.

The reason?

According to the 14th Amendment: equal protection isn't just for citizens, but for "any person."

So state governments can't pass laws that apply only to one class of people.

That means that even though illegal immigrants aren't citizens, they're protected by our laws, as persons, on an equal basis.

Texas had to provide a public education for the Lopez kids, just as it did for the kids of American citizens.

If we lost the case, we would have had a bunch of illiterate kids running around here.

But I still say "wow!"

(Peter) Everybody wants kids to get a good education.

But if the 14th Amendment even made illegal immigrants part of "We the People," where do we draw the line?

[motor purrs] This amendment was a huge leap forward for America, but It's been a real struggle to apply its simple ideals to our very complicated world.

The 14th Amendment does more than tell us who is included in "We the People."

It lays out the privileges of membership: defining what rights will be protected and who will do the protecting.

Most of the amendments written before the Civil War were designed to place limits on the federal government.

(Akhil Amar) Note how the Bill of Rights begins-- First Amendment: "Congress shall make no law..." But the Reconstruction Amendments have this very different feel.

13th Amendment, last sentence-- "Congress shall have power."

14th Amendment, 15th Amendment, last sentence-- "Congress shall have power."

Power to do what?-- Power to end slavery; to provide for equality; to provide for fundamental human rights against states.

The original Bill of Rights protects Americans only against Congress, only against the federal government.

Because they had just fought a revolution against a central government.

They were worried about abuses by the central government.

But after the Civil War, it becomes clear that states can misbehave too, that we need a Bill of Rights, a second Bill of Rights, in effect, against states.

Who's gonna enforce that second Bill of Rights?

The national government.

The 14th Amendment is sweeping power to enforce a vision of liberty and justice for all.

So in effect, what it's saying is, no state can mess with fundamental freedoms.

Now the question is what's a fundamental freedom, and who decides that?

It doesn't say you have a right to have a pet dog or to play the fiddle or to wear a hat or to enjoy conjugal happiness with your spouse, but of course you have those rights, this is America!

(Peter) Yeah!

This is America!

I can enjoy conjugal happiness while wearing a hat and playing a fiddle.

And my pet dog can dance a jig at the foot of the bed.

Maybe we'll leave the dog out of it.

But still, as long as I do what I want in the privacy of my bedroom it's nobody's business but mine.

Right?

Well, it sounds right; we assume it's Constitutional.

But how do you find out for sure?

Well, You talk to an expert on the subject while shopping for bedroom furniture in lower Manhattan.

We wanted to talk to you here because what do they have here but beds and bedrooms, and this is, we understand, your specialty as a law professor.

Well, when you teach Constitutional law, you spend a lot of time talking about bedrooms.

You do really?

Does that like come up like the articles of bedrooms and bedroom amendments and the bedroom clauses and stuff like that?

Well, so much of the Constitutional law that's important today that we argue about, that we think about, has to do with right to privacy.

The really early cases dealing with the right to privacy had to do with the marital bedroom in particular.

(Peter) This is really such a powerful symbol of privacy, I guess.

Everybody thinks like, this is my business, in my bedroom, you know, everybody thinks everybody is basically an adolescent boy, it's my bedroom-- stay out!

Is there some sort of invisible force field that keeps the federal government from getting involved in whatever we choose to do in our beds?

There's no constitutional right to do whatever you want so long as it's in your bedroom.

There's a Constitutional right to do certain kinds of things, and when it starts out in the early 1960s, we're talking about married people using contraceptives.

That's associated with the bedroom.

(Peter) Jamal Greene is referring to a 1965 case about birth control.

The Supreme Court struck down a Connecticut state law that prohibited contraception.

In a groundbreaking decision, Justice William O. Douglas said that the law violated "the right to marital privacy."

He argued it was a fundamental freedom built into our culture even if it's not explicitly spelled out in the Constitution.

Giving married couples the right to contraception seems uncontroversial today, just like the general proposition that the Government can't snoop into what you do in your bedroom.

But in a lot of privacy cases dealing with more divisive issues like homosexuality or abortion the Court ventured into the heart of the storm.

In a landmark ruling, the Supreme Court today legalized abortions.

(Peter) No privacy case has been more contentious than Roe v. Wade.

That 1973 decision struck down a Texas law that prohibited abortions except to save the life of the mother.

Again the Justices went straight to the 14th Amendment when they said that a woman has a right to privacy and a right to choose to terminate her pregnancy.

That decision touched off a battle that is still being fought today.

It's not a fetus, it's a human life!

It's not a dog.

It's not your choice!

(Peter) The two sides on these issues seem to have starkly opposing views of where the zone of privacy begins and ends.

The words liberty and equality are obviously in the 14th amendment, but the words abortion are not, the words homosexuality are not, the word sodomy, or contraception, or any of these things we're talking about are not in the Constitution.

So how do you decide?

If we're talking about the liberty to do something, especially if it's a liberty to do something that the founders probably didn't envision.

This is, the $64,000 question-- how do you decide?

You have one set of people who say look to the-- what did the framers intend, when they put this language in the Constitution, other people say well, the framers lived in a very different world, very different set of values, a very different technology, totally different world, so we have to look to what our own understanding is today of what liberty really means.

And so that's always going to be the battle on the Court, that's the battle over abortion rights, that's the battle over same-sex intimacy, that's the fight that people are having.

(Peter) Given how sensitive some of these issues are, it's no wonder that they're so difficult to resolve.

Curt Lash believes that when the courts get involved, it only makes matters worse.

Some scholars interpret the 14th amendment as a period of time when we actually gave power into the hands of the courts, to define liberty, however the court thinks liberty ought to be defined.

And from its framers' perspective, that isn't what they were trying to do with the 14th amendment.

They wanted to carefully delineate certain rights and liberties without opening the door to judicial or legislative tyranny.

It's the supreme court that then goes beyond that and begins to come up with expansive ideas of liberty that have nothing to do with rights actually enshrined in the constitution.

The question is, how can that be a problem?

How can expansive visions of liberty be a problem?

Well, they're a problem when they interfere with the people's decisions about what kind of policies they want to enact, and when they want to enact a policy that they have never intended to constitutionalize.

When you constitutionalize something you actually take it out of political debate.

You constitutionalize, you make it sort of part of the constitution as read into it you can't change it.

You can't change it!

No matter how much political majorities might want to go back and forth on it, you've actually ended voting on the matter.

You've ended discussion on the matter.

(Peter) The Court just can't seem to leave the 14th Amendment alone.

It's been interpreted and reinterpreted, as Kurt Lash says, to "constitutionalize" rights that aren't mentioned in the text.

But unlike privacy, there's another right that's spelled out more clearly in the Constitution, economic liberty.

And it was reinforced in the 14th Amendment to protect the rights of former slaves to do what they had been unable to do before: earn their own bread by the sweat of their own brow.

But our notion of economic liberty has evolved over time and sparked fierce debate.

The current quarrels about it can lead you to places you might not expect.

[deep, resonant ring of a bell] About an hour north of New Orleans is St. Joseph Abbey.

It's a place of prayer and contemplation, reflection and serenity.

[loud whirring] Well, so much for serenity!

These monks have found an unusual calling.

They've added carpentry to contemplation.

But they are still preparing for eternity.

Come right in.

Sure.

Oh, so this is your showroom.

How luxurious!It's not very large.

And as you see here, this is our traditional casket.

People usually choose this model for their loved ones.

This isn't much of a, this isn't much of a showroom in terms of like, you know, retail "zing."

No.No.

You need a slogan.

We do.

Like, how aboutSt.

Joseph's Caskets-- Make it a Habit!

[laughter] There you go.

And you started making these for yourselves, right?

We did, we have been making caskets for ourselves for as long as the monastery's been here, which is over 100 years.

And it's only recently that we began to market them.

How many of these do you sell these days?

We're averaging about 20 a month.

And so this, this business, to the extent that it is a business, really exists only to support the monastery.

That's correct.

It's to help us to meet particularly the healthcare needs and the, of the elderly, and the educational needs of the younger men coming in.

Why would anybody have a problem with you doing this?

Well, we asked the same question in 2007.

When we initiated St. Joseph Woodworks, I received a cease and desist letter from the State Board of Funeral Directors and Embalmers, instructing us that we were in violation of a state law, which we had no idea about.

(Peter) The problem was this: If you want to sell caskets in Louisiana, you have to be a funeral director, licensed by the state.

That's the law, and it gives Louisiana funeral homes a monopoly on the casket business.

The monks have nothing against funeral directors, but they'd like to be able to sell their own nice wooden boxes as well.

And their supporters insist that they should have that right, because the 14th amendment guarantees them economic liberty.

The monks of St. Joseph aren't the only ones who've been fighting against government- sanctioned monopolies.

So are hairdressers in Utah and cab drivers in Denver.

When you started this fight, did you see it as a constitutional issue?

As I got to know more about the issue and worked with our attorneys at the Institute for Justice, I began to realize and to see that it was, is a constitutional issue.

And we as a community of monks really became committed that we're not only fighting for our right to sell caskets but for the right of others to sell caskets or to share any form of economic freedom that we felt we were being denied.

So it became more of a constitutional issue for us all.

I can only imagine, I don't know what life is like at the monastery, but I assume you don't really deal with legislative and political issues all that much in the course of your day.

We don't.

Ever!

But um, this time it really affected what we do, basically do, and that is our own craftwork.

So you think you've, sort of, strangely, civil rights pioneers.

Strangely, yes.Not a role you saw for yourself.

Not something we ever saw.

(Peter) When the monks' case made its way to federal court, they won.

The judge said that Louisiana's casket monopoly had no rational basis--it didn't serve any useful purpose, except for the benefit of funeral directors, and the monks had a right to make and sell their wares.

So the monks could get back to business and enjoy their economic liberty, courtesy of the 14th Amendment.

As we've seen, the 14th Amendment is a big toolbox.

It provides the means to do all sorts of things, like expanding equality, protecting rights enhancing liberty-- the basic stuff America is made of.

The 14th Amendment, it's such an important part of how we understand ourselves as American.

And it's not supposed to be easy, we have disagreements about things, those are often good faith disagreements.

The great legacy that the framers have left to us is a framework.

And I don't know of any way to work out disagreements other than through a process of give and take.

(Peter) So the 14th Amendment doesn't solve every problem.

And it doesn't guarantee that everyone gets what they're after.

Kristin Perry and Sandy Stier recognize that fact.

It was going to go to you!

(Kristin) It's all arm, Sandy, it's all arm.

(Peter) Let's say, cause I know your case is being appealed, and it'll be in front of the Supreme Court.

Let's say that they rule against you.

That they find no Constitutional right to same-sex marriage-- would you accept that?

Well, we would have to live with it, and we wouldn't agree with it.

But we would live with it.

I think what you do is, you accept the life you've been given and the life we've been given is, we don't get to be married.

I've done that my entire life already.

Not every country has a constitution, I feel like, fortunate to live in a country that does have one.

Um and, I feel like I've got a great deal of faith in it.

Despite all the things that people do and don't agree upon.

The one thing that we all have in common is the Constitution, and it's the one place we can all go to find out how to solve problems or how we're connected.

(Peter) For Akhil Amar, that connection we all share is expressed most vividly in the opening words of the 14th Amendment.

(Akhil Amar) The first sentence makes everyone born in the United States a citizen on the day of his or her birth.

We push a reset button every generation.

So even if your parents weren't here legally, you're born here, you're one of us.

And I think that's pretty amazing.

Now, cards on the table, maybe I feel that way because that's what makes me a citizen.

On the day that I was born, my folks aren't citizens, they're not even Green Card holders.

They weren't here illegally, but they were here just as students.

And they were supposed to have to go back, but because of this Constitution, I'm a citizen on the day I'm born.

It's this great gift that this country gave to me, and I spent the rest of my life trying to pay that gift back by giving my life to this Constitution.

(Peter) The gift of birthright citizenship is a rare thing.

Among developed nations only the United States and Canada offer it.

But, of course, that's not the only route to citizenship.

If you want to make the effort and if you pass the test you can become a naturalized citizen.

And that is a big draw.

In the past century and a half, millions of immigrants have gone through the process of naturalization including my grandparents.

Today here in Chicago, a brand-new batch of prospective citizens is waiting to be sworn in.

It's always been my my greatest wish to be an American.

This is my place, this is where my family is, so this is where I want to be.

You think about the Constitution, does it mean something to you?

Yeah.

What does it mean?

Freedom of speech, freedom of religion.

That's great.

What's the first thing you're gonna do when you're a citizen?

I would like to register to vote.

Today I'm gonna be a citizen, I'm really happy about it.

(Peter) They came here from Africa or Asia, from Latin America, the Caribbean.

They all have one thing in common-- they made a conscious decision to become Americans.

(woman) I hereby declare on oath... (all) I hereby declare on oath... (Peter) In a few seconds they'll have something else in common.

Wait for it... (woman) You are now citizens of the United States.

Congratulations to you all!

[cheers, applause, &whistles] Congratulations, we're glad to have you.

Congratulations.

Thank you so much sir.

You're very welcome.

and I really feel grateful for what I have today.

That's great.

What are you gonna do now?

Ah, take my dream to another level.

There you go!

(Peter) These new citizens have traveled a long way to become part of " and our march to equality continues.

Because America has always been...a work in progress.

Our Constitution has endured for over 225 years.

This document isn't just about what happened in 1787, but what's still happening.

(Peter) But is it up to the challenges of the 21st century?

So we just walked through an entire congressional district in one block!

Or is it time for a makeover?

Your constitutional provisions are no match for me!

Next time on "Constitution USA" with me, Peter Sagal.

(woman) To learn more about the Constitution visit the series website... "Constitution USA" with Peter Sagal is available on DVD.

To order, please visit shopPBS.org or call... CC--Armour Captioning &TPT