The Creation of the United States Constitution
The Creation of the United States Constitution
According to the book, A More Perfect Union: The Creation of the United States Constitution (Bruns, R. A. , 1986), the acceptance of the US Constitution has gone difficulties, to cite, because the opposing block of Congressmen constantly accuse the drafted Constitution as means to pave the way for the domination of the US government, as they were apprehensive of consequential effect that may resemble the British violation of civil rights prior to and throughout the British-American revolution.
As further cited, (Bruns, 1986), the opposing Congressmen demanded a bill of rights that would provide protection of individual citizens. Numerous state conventions during the ratification of the Constitution asked for amendments and other ratified the Constitution hoping that the amendments would take place. Finally, as cited (Bruns, 1986), the first Congress of the United States on September 25, 1789 proposed the legislation of twelve amendments to the Constitution that has been strongly argued. However, it was only ten amendments known as the “Bill of Right” that was approved.
Meanwhile, Articles 3 and 12 were disapproved. The said articles were proposed by constituents for each Representative as well as the compensation of Congressmen. Discussions on the Bill of Rights’ Amendments After the First Congress passed the 10 Amendments to the Constitution on September 25th 1789, the Bill of Rights was ratified on December 15, 1791. The following are the 10 Amendments that constitute the Bill of Rights, from the American Homepage web site: Amendment I: Freedoms, Petitions, Assembly.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. What rights this amendment guarantee or protect? This Amendment protect the rights of every individual citizen on their religious belief, the enjoyment of their freedom of language and of speech, the civil liberty in creating an assembly, and the peaceful petition to address issues of concern involving governance and participation to democratic processes.
¬Pros Firstly, the separation of Church and State is being certified and recognized by the Congress through respect on people’s rights for their religious worship and may be supported by the government in terms of funding. Secondly, Congress is prohibited from organizing and influencing the creation of such and does not jeopardize the liberty of people’s religious beliefs, the redress of grievances, and the peaceful congregation. Moreover, the Congress may not propose a law that prohibits the people to ask reprieve on unjust action of the government. Cons
A more democratic space is attributed by this Amendment that may affect the people’s judgment and may be used by individual in their political interests. The freedom of speech and religious beliefs may turn to be an instrument to justify the actions brought about by ideologies. Amendment II: Right to bear arms. A well regulated Militia, being necessary to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed. What rights this amendment guarantee or protect? The underlying provision to this Amendment constitute the people’s right to acquire arms and armed themselves.
Pros The arming of the civilian populace may be understood as responsive to the eventual need of the State for civilian armed groups in times of external aggression wherein the people’s lives and the interest of the government is at risk. Cons Bearing arm may not be deterrence to crime since loose firearms and ammunition may be used for individual commission of crimes and criminal activities, and could defeat the purpose to safeguard the people’s lives and as well imposing potential vulnerabilities and risk to the State in maintaining a people’s militia.
Amendment III: Quartering of soldiers. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. What rights this amendment guarantee or protect? The prisoner of war shall be protected with their right to live and retained with the dignity, as presumed that soldiers were captives as prisoners, they were supposed to be quartered and given welfare that constitutes the human rights (Rodley, N. S. , 1999). Pros
Unlike the British occupation wherein the captive American soldiers were engaged by the British officers for their household and personal chores, the quartering of soldiers constitutes humane treatment of prisoners although they are treated as elemental enemies that are caught within the circumstance of war. These prisoners of war are bound by the due prosecution of a provost marshal, known as military court and tribunal, in so far as commission of crime shall be attributed to be a war crime and a gross violation on the conduct of war (Yale University, 2007). Cons
To single out the war criminals, they may have the chance to avoid convictions in a fair trial for the reasons of insufficient evidences on the process of prosecution. On the other hand, quartering of prisoners may incur and contribute substantial expense of the government. Amendment IV: Search and arrest. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What rights this amendment guarantee or protect? The legal aspect on the conduct of this Amendment has been required by the US Supreme Court through obtaining of search and seizure order from a Judge that is the only authority to issue search and arrest warrants in order to applying the due process of law, and the right of the arrested violators to defend their circumstance in a court proceeding. Pros
The government is being provided with authority to conduct investigation and that searching and seizure of suspected contraband and arresting of violators are enjoined through a fair trial. In this regard, the due process of law is the chance of the criminals to defend them. Cons The government’s enforcement may be minimized and affect their mobility to conduct entrapment operations and risk the secrecy of pursuit to the suspected criminals. Amendment V: Rights in criminal cases.
Presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
What rights this amendment guarantee or protect? The application of Amendment 3 on the conduct of search and arrest is being upheld with protective measures of this Amendment. Wherein the prosecution of suspected violators are rendered with a due process through a court proceeding. The Federal government has adopted the court proceeding to have a people’s jury that would form part of the prosecution and dealing with penalty. The right to be heard before the court is the right of a suspected criminal to undergo a fair trial.
In which case, the people’s jury (composed of individual citizens) observes and interprets the process of court hearing on the circumstance and presented facts against the accused. The application of this process form part of the jurisprudence that serves the gravity and degree of verdict on the prosecution. Pros The people’s jury (known as grand jury) serves as the pleading chance of the accused to defend the circumstance of the crime.
During this litigation, the human rights of the accused is being protected and the safeguarding of property that is also dealt in question, in cases of plunder, to be preserved and may not be used by the government and be declared as an imminent domain (known as to becoming state-owned after an embargo). It would be then the people’s jury that would render the indictment for the court to issue the punishment (Rapczynski, J. , 2000). Cons
The court trial as comprised by a grand jury may influence the documentation of the case being conducted by the presiding Judge. What it meant to influence the documentation process is it may be overruled upon the verdict of the grand jury. Likewise, there may be the chance of the accused to influence some individual members of the grand jury that could substitute the verdict to shallow punishment. Amendment VI: Right to a fair trial.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
What rights this amendment guarantee or protect? The right to a fair trial supplements the right during criminal cases. During application of due process in criminal prosecution, the court must maintain the transparency of the court proceedings and be it known as a public knowledge. Another form of the fair trial at the dispensation of public awareness and transparency is well supported by documenting and putting into archive the process of the trial in order to derived full transcription of the case.
Pros The fair trial provides the indicted person the right to an attorney. Meaning, the accused has also the right to remain silent without a defense counsel during the pre-investigation process, and that the state shall provide a lawyer from which the accused may not afford. Further, this process as supported with archiving of the court proceedings would provide the accused to seek further pleadings through an appeal for re-investigation or re-opening of the case in a Court of Appeal.
However, the appeal may be reviewed and determined as to be substantiating to the gravity of indictment wherein capital offense that is punishable by reclusion perpetua, otherwise known as life imprisonment, and heinous crimes that is punishable by death undergo slim chance of appealing to the Court of Appeal. Cons The accused, publicly known as a criminal, is still enjoying the chance to defend oneself in the court of laws. The prosecution may be substituted with impartiality as may be accorded by the social influence of the accused.
Amendment VII: Rights in civil cases. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. What rights this amendment guarantee or protect? The inclusion of the people’s jury may be determined by the Court as provided in capital offense. This particular Amendment constitutes the procedure in civil suits to be opting to include a people’s jury.
The civil suits may be discretionary to include a people’s jury at the circumstance of involve amount, in cases of money laundering and alleged malversation, that exceeds twenty dollars (Rapczynski, 2000). Pros The civil suit may be extra-judicially settled and may avoid presumed expense in a court proceeding. A reconciling endeavor to settle conflict of financial obligation may also be rendered. A private agreement to settle the conflict may also avoid public scandal and preserve the morality of both parties involved. Cons
The court proceeding is deviated and some degrees of deviation may compromise the existing laws on civil settlement. The procedure to extra-judicially settle the obligations and liabilities may be an anti-precedent to the prescribed rules of court and may neglect the morality aspects of justice. Amendment VIII: bail, fines, punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. What rights this amendment guarantee or protect? The Court guarantees an indiscriminate penalty and imposition of punishment.
As provided by Amendments 5, 6 and 7, the due process and indictment regard humanitarian treatment to the accused in which this particular Amendment 8th constitutes the bailment of the accused. Pros The gravity of offense is being determined by the Court to be granted with bailment and classify the amount of monetized penalty that temporarily hold the incarceration of the accused while court proceeding is in process, although the non-bailable crimes are those determined by the Supreme Court to be dealing with capital punishment and custody in jail of an accused at the proceeding of court trial (Rapczynski, 2000; in Furman vs.
Georgia, 1972). Cons By virtue of the bailment, a suspected criminal may inflict further harm to the accuser while being at large. The procedure of bailment may unable to fully protect the accuser from a possible harm. Amendment IX: Rights retained by the People. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. What rights this amendment guarantee or protect?
This Amendment ensures that the articulation on the Bill of Rights may not be misrepresented, be used to misinform and misguide the people. Pros The State is adherent to the fundamental interest of the people in which upholding the Bill of Right is the protection of the people’s lives, preservation of dignity and enjoyment of liberty, in which the government must not misinterpret the application of the Bill of Rights for its own caprice. Cons
People may feel insecure and apprehensive because the Bill of Rights has not listed other rights that may be perceived as non-protective and does not support the bill of rights. Amendment X: States’ rights. 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. What rights this amendment guarantee or protect? The rights retained by people in Amendment 9th are empowered by this Amendment that is reassuring the people’s interest above the government’s interest.
Meaning, the power that is bestowed upon the authority of the government has emanated from the will of the people from which the government itself is composed by minority people in authority that must promote the majority interest of the people. Pros The majority interest of the people is the pre-disposal element of the State to govern, implement laws and regulations, and secure the moral responsibility in governance, and above all, to always provide the democratic processes.
This amendment validates the retention of people’s power having not fully bestowed to the government. Cons The retention of power to the people may in some degree affect the political will of the government. For example, the government’s foreign diplomatic relation to adopt such foreign policies for economic and political prosperity may gone through difficulties of adoption as taking to account people’s support and recognition. Proposed Amendment Brief Presentation of Issue
The 9/11 tragedy has led the US Federal Government to enact laws of national security that crosses all boarders. On October 2001, the US Congress has passed into law the US Patriot Act which formulates homeland security measures and combating burdens of the State on vulnerabilities and risks of present and future terrorist threat. The US Patriot Act of 2001 was the first enacted law that legally addresses the strong counter-terrorism measures of the US government that empowers all rules and regulations of the state’s homeland security.
All US government agencies were enjoined to formulate a national and international operating guidelines relating to addressing a firmer global counter-terrorism policies and strategic sharing of burdens of information with allied international governments. The timeline of enforcement of the US Patriot Act of 2001 has accounted serious human errors in the conduct of enforcement to which the standard operating procedures constituted by the rules of court have been summarily neglected and to the point of being grossly deviated, specifically in serving search and arrest warrants that is likewise violating the 4th Amendment of the Bill of Rights.
The issue of encroachment of the rules of court in issuance of search and arrest warrant has become a constitutional concern of the US Congress and the United Nation’s Commission on Human Rights (Leggiere, P. 2004). Framing of An Amendment to Search and Seizure Order The above cited issues has come the proposal to supplement the 4th Amendment of the Bill of Rights that constitutes the provision on search and seizure. The 4th Amendment may be therefore supplemented with an enabling clause as an Amendment on specific provision that states: “Constitutional liabilities in the issuance of search and seizure order.
” A Brief Resolution of the Proposed Amendment The following proposed resolution formulates and creates the enabling clause of the Amendment: “Whereas, be it known that the facade of human error in the conduct of search and seizure may infringe the performance and call of duty in safeguarding the national security and protecting the lives of citizenry, and may violate the civil and constitutional rights of every citizens of the state and the immigrants;”
“Whereas, be it further known that deviation and neglect in issuing search and seizure order may not constitutionally uphold the enforcement of such law and jeopardize the 4th Amendment of the Bill of Rights;” “Be it resolved, as it is hereby resolve that the proposed amendment shall state the provision of Constitutional liabilities in the issuance of search and seizure order,” that shall egally address the unauthorized and illegal search and seizure prior to the proceedings of proper and appropriate Court of laws. ”
Thus, the Amendment on “Constitutional liabilities in the issuance of search and seizure order” seeks to uphold the constitutional right of every state citizen and immigrants and deterrence to commission of human error of conducting authorities. Exploratory Issues to the Amendment The “constitutional liabilities in the issuance of search and seizure order” emanates an action that supplant the human error, as may be singled out in the performance and call of duty, and the flaws of government directives, authorization and function that engages constitutional liabilities in the conduct of search and seizure.
Given the fact that despite the continuing violation of human rights, the human error and flaws of authorities are not given due response by the Court of law due to the absence of fundamental and legal precedents that shall interpret the violation. Likewise, the human error itself defeats 6th Amendment of the Bill of Rights wherein the fair trial composes the right of a person to be served with proper procedure prior to prosecution.
To cite a relative incident, we can quote the disclosure of Phil Leggiere (2004) who stated in his investigative article, that: “ the US Congress and Senate approve the Military Commissions Act, which authorizes torture and strips non-US citizen detainees (suspected of terrorist ties) of the right of habeas corpus—which includes formal charges, counsel and hearings—and also empowers the US president at his discretion to declare US citizens as enemy combatants and subject to detention without charge or due process”.
The above cited disclosure further stated that, in so far as the US Court of law is concerned, the constitutional liability of the US government authority that has been directly involved is still pending for court interpretation and documentation of circumstantial facts. Obviously, the violation boils down to the presumed call of duty and in the name of national security to which the constitutional liability is impeded to surface (Leggiere 2004). Pros and Cons Pros
The primary advantage of adopting the proposed Amendment would enable a legal precedent that shall formally address the constitutional liability of the human error and the fine tuning of the US government authorities in the conduct of enforcement. The Court of law shall then recognize the pleadings of human right violations from the circumstance of complex conduct of search and seizure. The parliamentary procedure and judicial process may use the proposed Amendment as an examining tool on the extent and scope of violations wherein qualification and determination of offense shall be dealt with both civil and criminal punishment.
Above all the benefits of the proposed Amendment is the articulation and emphasis of the search and seizure application to which the people, and specifically the victims of mistaken identity, shall be safeguarded from harm of circumstantial neglect, denial and justification of acquiring national security measures. Cons What could be claimed as a disadvantage upon the passage of the proposed Amendment is the dysfunction in covert and strategic operation in homeland security management.
The dysfunction could be a vague issue but could be a burden in gathering of intelligence information for suspected terrorists and enemies of the state. However, in today’s application of advanced cyber-technologies, the US authorities may ultimately resort and rely on such expensive tools that may be useful enough for intelligence reconnaissance. Although it is still a common knowledge and understanding that the CIA still rely on the so-called open-source information relative to legal, Para-legal and covert extraction (Elsea, J. K. 2004).
At this point of view, the covert extraction of information from sources (which could have been a result of torture), would be employed by the proposed Amendment. In which case, expose’ of information in the open court may bring vulnerability of covert operation. However, in that regard, there may be a venue to contain the inquiry on constitutional liabilities. Conclusion The Bill of Rights represents the people itself in the annals of democratic fundamentals. It is where the Constitution is made to uphold the moral virtues of citizenry and the government that represent them.
Without the moral virtues of a constitution, a volatile and fragile democracy negates the human rights. It is therefore a moral obligation of every citizen in various governments to protect and lead into vanguard the proliferation of moral ascendancy for their rights above all the creation of the fundamental law of the land. References American Homepage. The Bill of Rights. Retrieved February 14, 2008 from http://ahp. gatech. edu/bill_of_rights_1789. html. Bruns, R. A. (1986). A More Perfect Union: The Creation of the United States Constitution.
National Archives and Records Administration, National Archives Trust Fund Board, Washington, DC. Retrieved February 14, 2008 from http://www. archives. gov/national-archives- experience/charters/print_friendly. html? page=constitution_history_content. html&title=NARA%20%7C%20The%20Constitution%20of%20the%20United%20States%3A%20A%20History. Human Rights Watch (2004). Immigrants’ Rights under Attack in House Bill (H. R. 10). Retrieved February 14, 2008 from http://www. hrw. org/english/docs/2004/10/06/usdom9469. htm. Jennifer K. Elsea, J. K.
(2004). U. S. Treatment of Prisoners in Iraq: Selected Legal Issues. CRS Report for Congress. Retrieved February 14, 2008 from http://www. us. gov/RL32395/pdf. Leggiere, P. (2004). Bill of Rights Under Bush: A Timeline. Mondo Globo Alpha. Retrieved February 14, 2008 from http://mondoglobo. ning. com/group/questionauthority/forum/topic/show? id=1509099%3ATopic%3A2937. Rapczynski, J. (2000). Search and Seizure. Yale-New Haven Teachers Institute. Retrieved February 14, 2008 from http://www. yale. edu/ynhti/curriculum/units/2000/2/00. 02. 04. x. html.
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