So You Think You Know the Constitution?

The Constitution is central to the American political identity, so it’s at the heart of a lot of conversations not just about the law and politics, but how we go about our lives every day. However, sometimes the facts about our founding charter get distorted in the ensuing game of telephone. This Constitution Day, we are taking a look at some common misconceptions about the Constitution and what the document really says.

The First Amendment protects your speech from being shut down or limited by companies. 

Not really. The First Amendment prohibits the government from limiting your right to freedom of speech. That means private companies can restrict what you say, and penalize or fire you for speech they don’t like. It also means social media companies like Facebook can set whatever rules and limits they want for speech on their platforms, and block certain types of speech or kick off users as they choose. The Supreme Court has set some limits on speech restrictions directed at government employees, but has done so on the basis that the First Amendment protects speech from restrictions set by the government, not by an employer per se.

Falsely yelling “fire!” in a crowded theater is never protected by the First Amendment.

It depends. This famous and often-used example comes from Justice Oliver Wendell Holmes in the 1919 case Schenck v. United States, which set a standard that the First Amendment did not protect speech that created a “clear and present danger.” However, in the 100 years since Schenck, this standard has evolved and is now more rigorous: In 1969, the Supreme Court ruled in Brandenburg v. Ohio that the mere likelihood of creating imminent harm doesn’t put speech beyond First Amendment protections—speech also has to be “directed to inciting or producing imminent unlawful action” in order to not be protected. Justice William Douglas wrote in his concurring opinion for the case about the example of falsely shouting “fire!” in a crowded theater, emphasizing that the intent to cause a specific outcome, rather than what is said, is the critical factor.

The police can’t lie to you.

The Fifth Amendment provides you the right not to speak to police, even during a formal interrogation, but it doesn’t limit what the police can say to you. Although it can have a coercive effect and increases the potential for false confessions, the Constitution’s protection for due process (which the Supreme Court has ruled includes a prohibition on the government using involuntary confessions as evidence) does not stop police from lying to you, either in the field (yes, it turns out all those TV characters saying “Are you a cop? You have to tell me if you’re a cop!” aren’t giving sound legal advice) or during a formal interrogation. In fact, the Supreme Court has explicitly ruled that police are allowed to lie to a suspect about whether their associate confessed, or the existence of forensic evidence such as fingerprints. 

The word “slavery” appears in the Constitution numerous times before the 13th Amendment, which abolished slavery.

In fact, the first mention of the word slavery is in the 13th Amendment (ratified in 1865), despite the existence of slavery since the 1500s in settlements that would become part of the United States and the ratification of the Constitution in 1788. This may seem shocking since when the Constitution was created, more than 500,000 people were enslaved in the United States—many of them owned by the signers of our nation’s founding document. So how did the Constitution manage to evade mention of slavery for so long? Cunningly ambiguous wording. Take, for example, the infamous “three-fifths compromise.” Article I, Section 2, in apportioning seats among the states for representation in the House of Representatives, states that

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. [emphasis added]

Eleven clauses of the Constitution directly address slavery or hold implications for slavery, including provisions that prohibited Congress from abolishing the slave trade (Article I, Section 9) and required fugitive slaves to be returned to their owners (Article IV, Section 2). But each of these provisions was deftly crafted to avoid direct mention of the abominable institution of slavery, instead using euphemisms like “other persons.”

The president is the country’s commander in chief, and Congress cannot limit their authority in wartime.

Not really. Article 2, Section 2 of the Constitution provides that the president “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” The president does not have command power over ordinary citizens—and more importantly, Congress has as much authority as the president over matters of war and peace. Article I gives Congress the power to declare war; make rules related to wartime captures; raise, support, and make rules for governing an army and navy; and to define and set punishments for offenses against international laws and treaties. The Senate must also consent to treaties.

You’ll find “checks and balances” mentioned throughout the Constitution.

No, but you will find the concept woven into the structure of our constitutional democracy. The phrase is shorthand for the myriad mechanisms the Constitution sets out to ensure that each branch of government—executive, legislative, and judicial—serves as a check on the other, to guard against the accumulation of power into a single entity of our government. One example is that the power of Congress to legislate is checked by the veto power of the president. Another example is that the framers of the Constitution established the House of Representatives in Article I as a large body, in part to guard against corruption in the Senate, as it was believed that senators may be more susceptible to special interests (rather than the public interest) because of their small number.

Non-citizens are not protected by the Constitution.

No. The bill of rights refers to “persons,” not citizens, and most fundamental constitutional rights apply to all people within the United States. The major exception to this is the right to vote. The 15th and 19th Amendments (which extended the right to vote to racial minorities and women, respectively), the 26th Amendment (which lowered the voting age to 18), and the 24th Amendment (which abolished the poll tax) only apply to U.S. citizens. The Constitution also contains citizenship requirements for members of Congress and the president.

Presidents can pardon anyone convicted of a crime.

The presidential pardon power is broad, but it only applies to federal crimes. So the roughly 1.3 million people in state prisons—by far the majority of prisoners nationwide—are beyond the reach of the power. There’s also an open question about whether there are any situations in which a president can’t pardon a federal offense. The Supreme Court has left the door open to the idea that other parts of the Constitution could limit the power, and some scholars and advocates have argued that the power does not allow self-pardons or pardons that cover up a president’s own wrongdoing.

The Constitution doesn’t contain a “right to privacy.”

Although it doesn’t include the word “privacy,” it is a basic tenet of our Constitution that the Fourth Amendment provides a right to privacy from excess government surveillance and intrusions. The Fourth Amendment goes far beyond just warrants—its prohibition against “unreasonable searches and seizures” provides a range of privacy protections against intrusions in different situations. And as we’ve written, the Fourth Amendment’s guarantee that individuals will “be secure in their persons” goes beyond preventing the police from sifting through your pockets at will. It means we have a basic privacy right that limits how much the government can track the sensitive activities and associations in our lives.

The Constitution defines “treason” as spying for or providing aid to a foreign country, and makes the offense punishable by death.

No. The Constitution limits the definition of treason as follows:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

It leaves it to Congress to set the punishment for the crime. Someone has to intentionally help an enemy of the country to commit treason, and “enemies” refers only to actual wartime enemies of the United States—which is why most famous Cold War spies, from Julius and Ethel Rosenberg to Robert Hanssen, were convicted of espionage rather than treason.