Until recently, there was no time limit for protecting Constitutional rights. Where a Constitutional violation occurred, it was often possible to sue a government for enforcement of the Constitution and win. That all began to change in a famous religious separation case. Under a specific issue concerning the Establishment Clause of the First Amendment to the Constitution, an incredibly broad principle was introduced that may cause all of our Constitutional protections to expire.
COUNT OF JUSTICES SUPPORTING EXPIRATION
Currently, there are four Justices who solidly agree that Constitutional rights expire: John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito. Another, Stephen Breyer, is wavering. Earlier, Antonin Scalia supported this notion. If Neil Gorsuch is like Antonin Scalia on this issue, he too will join this group creating a clear majority willing to place time limits upon Constitutional rights.
THE TEN COMMANDMENTS CASE
The wall of separation between church and state has long been disputed in American law. In the 2005 Van Orden v. Perry case, the Court allowed a monument of the Ten Commandments in the Bible to stand at the Texas state capitol despite the religious Establishment Clause of the First Amendment. While the exact place to draw the line of “separation” has often been disputed, Chief Justice William Rehnquist provided a whole new line of thinking to make all Constitutional challenges more difficult:
The circumstances surrounding the monument’s placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments’ text as used on this monument conveys a predominantly secular message. The determinative factor here, however, is that 40 years passed in which the monument’s presence, legally speaking, went unchallenged (until the single legal objection raised by petitioner). Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their belief systems, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to establish religion.
Because too much time had passed, the ability to protect Constitutional rights expired. If this precedent had been in place from the beginning (or even from the Civil War), the Constitution would not have protected many of our most fundamental rights. For example, interracial marriage was illegal from the founding of the nation right through 1967 when the Court found these restrictions Unconstitutional. A time limit would have permitted states to continue to ban interracial marriages.
Antonin Scalia, Anthony Kennedy, and Clarence Thomas, all Republican appointees, joined the William Rehnquist portion of the opinion. Democratic appointee Stephen Breyer agreed with the conclusion, but he wrote separately, conceding some of the expiration argument:
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect …
BUILDING THE EXPIRATION NOTION
Justice Anthony Kennedy considered the time limit again in 2010 case Salazar v. Buono. This case found that a Christian cross on public land was not a violation of the Establishment Clause:
Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades … By then, the cross and the cause it commemorated had become entwined in the public consciousness… (Citing Van Orden v. Perry)
The two newer appointees, Chief Justice John Roberts and Samuel Alito, joined Anthony Kennedy in permitting the expiration of rights. Antonin Scalia and Clarence Thomas, who had already signed onto the time limit concept in the earlier case, agreed with the result but would have decided upon other grounds.
While the time limit has not been fully realized as a solid precedent, it is well on its way to becoming one with these two opinions legitimizing it.
ALL CONSTITUTIONAL RIGHTS AT RISK
The idea that Constitutional rights expire applies beyond these religious cases. Any right may be eliminated by expiration. For example, a victim of a government search without probable cause may choose to sue the government. The government could defend the case by admitting that it routinely searched people without probable cause, that some people knew the illegal searches were going on, and that nobody bothered to sue. And now, it is too late. This is purely analogous and would look like this:
The determinative factor here is that 40 years of government spying on electronic communications or telephone calls went unchallenged despite documents and papers available to the public indicating such activities were occurring.
This works for any Constitutional right. There is no distinction. Goodbye rights.