Debated whether to put this in GD (no pun intended), but I hope there might be a factual answer based on the findings of the Supreme Court and the lower courts. Unfortunately my knowledge of SCOTUS case law history and nowhere near enough to notice any pattern in it.
Basically the question is as the title - over the years the Constitution has been found to have been violated in one way or another. Are there any Amendments, clauses, rights or otherwise set down in the Constitution that have been breached by the U.S. or state government more than others?
My guess: The equal protection clause in the 14th Amendment. This was the basis on which the Supreme Court declared segregation to be unconstitutional in Brown v Board of Education, and segregation had interfered enormously with the lives of millions of people over many years.
(This answer, of course, assumes that by “violated the most” you mean “applied in an unconstitional way to the largest number of people, irrespective of whether they litigated the question or not”. If, however, you mean “has led oto the largest number of cases in which the Supreme Court ruled something unconstitutional”, then your answer might differ.)
I might like to add, though, that the question raises interesting philosophical problems about positivism and the effect of court rulings. To illustrate this again with the example of segregation: “Separate but equal” segregation was famously ruled to be constitutional by the Supreme Court in 1896 but unconstitutional in 1954. Does this mean that it actually was constituional in 1896 but constitutional in 1954 (even though the text of the Constitution had not changed), and that there was some magical line at some time between 1896 to 1954 (when exactly?) when the constitutional assessment changed? Or was it simply that the 1896 Supreme Court got it wrong and the 1954 Court right, and that segregation had been unconstitutional ever since the enactment of the 14th Amendment without people realising it? Sounds like hairsplitting, but such questions may havge a bearing on the answer to your question.
I’ll have to go with the 14th Amendment and Equal Protection of the Laws. Violated in just about every courtroom in America several times a day. The good news is that it is safe from judges on Saturdays and Sundays. Cops and agencies are frequent violators too. It is a bedrock principle of America, much like “All men are created equal” was in the Declaration of Independence and signed by a bunch of slaveholders.
I was thinking of the number of laws, statutes, proclamations by the local sheriff etc. that have been found to violate it rather than the numbers of people it applied to, although admittedly this is an arbitrary distinction on my part.
I guess this would be the same as other interpretations, e.g. the ‘cruel and unusual’ punishment mentioned in the VIIIth Amendment, in that what was cool 200 years ago might not be now, as was intended. I wasn’t thinking the violations should count retroactively, simply because I think that question would be nigh-on impossible to answer.
I’ll agree that it took almost a hundred years before we started taking the 14th seriously, but I’d have to go with the Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Or the Ninth, for that matter. You could probably find hundreds of examples on this board alone of people construing the enumeration of certain rights to deny or disparage the existence of other rights, even though the Constitution explicitly says that this Shall Not be Done.
OK, seriously though I was wondering though if people who did keep an eye on judiciary matters had noticed any sort of pattern emerge where it was obvious that one part of the Constitution kept cropping up over other parts, maybe the courts kept finding laws in violation of the LXVIIth Amendment more than any others.
Since we’re in GD I’m guessing no such pattern is evident or obvious.
My guess is thousands of decisions over more than 200 years. And I was incorrect; you wouldn’t need just to research court decisions that considered constitutional issues. You would need to read every court decision to see if it involved constitutional issues and then make a judgment whether that decision violated the Constitution. And of course what one court decides is constitutional might be considered unconstitutional by another court at the same time, another court in a later decision or even the same court in a later decision. (Easiest example: The decision in Dred Scott v. Sandford is now considered incorrect.)
In short, what you’re asking is impossible to achieve. (Note that IANAL or legal scholar so I may just be talking out of my ass.)
Article I, Section 1: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
The separation of powers doctrine of the Constitution is pretty clear, Congress would write the law, the President would see that it was carried out, and the courts would interpret it.
Non-delegation of legislative power was always assumed, but since about 1825 and certainly since 1928, Congress, abetted by the courts, has been happy to essentially delegate both legislative and interpretive powers to the executive branch. It lets Congress pass laws that sound great and then blame the President for the unintended consequences. The President gets to do what he wants as long as he can vaguely tie an action to said legislation. Bureaucrats get to exercise petty power over the populace without having to muck about with actually getting elected. Big business gets to manipulate the law for their benefit. It’s a win for everyone!
The U.S. violates terms of treaties fairly often, and thus we violate that part of the Constitution that says that treaties are part of the “Supreme Law of the Land.”
My cite is Okrent’s recent book. Prohibition made heavy drinkers out of some huge number of people who otherwise might never have had more than a few casual drinks - it was one of the most widespread social rebellions of all time, not just ignored by all classes, but actively flouted even if they had to go out of their way to do so.
Nitpick: all the 18th Amendment did was give the Federal government an explicit authority over the regulation of alcoholic beverages. A specific act of Congress under that authority brought about Prohibition. In fact, the 18th was probably the last time it was considered necessary to amend the Constitution to expand federal authority without violating the 10th Amendment.
