Category: Constitution

The main US law that defines the rights and obligations of Americans is the American Constitution endowed with the supreme legal force. This document controls and regulates the action of the fundamental laws of the state. Since the US Constitution was adopted, the Congress of the country has received a number of projects for its amendment. Despite a large number of proposed draft amendments, most of them were rejected. From the variety of the proposed changes, only the 33 amendments were implemented, and five of them have not been ratified by the several states of the country (Collins and Chaltain 30). The American Constitution has existed for over 200 years, and during this time, it has only been slightly changed, notwithstanding the fact that the country has enriched its territory. This paper examines one of the proposed amendments and analyzes different aspects of it regarding the possible issues if the modification is adopted.

One of the latest proposals is dated July 30, 2015, and it is S.J.Res. 21: “A joint resolution proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States” (Vitter 1). It has been sponsored by the Republican David Vitter (Senior Senator from Louisiana) and referred to the congressional committee on the same date. After the committee reviews it, it will be further sent to the House or the Senate. The amendment refers to the national flag desecration as the intentional destruction or damage to the flag (Vitter 1). Such actions may have a protest character and be linked to the behavior that affronts the country’s national symbols. In addition, the flag is a symbol of power, and insulting behavior towards it may be regarded as disrespect to the authority.

It should be noted that in some countries, the desecration of the flag is recognized as a crime. For instance, in Russia, the desecration of the flag is prosecuted, but it applies only to the Russian flag meanwhile, the behavior of the citizens in relation to the foreign flag is neither limited nor penalized in any way (Collins and Chaltain 254). In addition, there are no restrictions with respect to this element of national symbolism for the citizens of Denmark, Norway, and Sweden, but inappropriate behavior towards foreign flags is banned in these countries.

It is worth mentioning that the national flag is one of the most important national symbols for Americans, along with the national anthem, which is honored and respected. However, the media highlights cases when the US citizens show disrespect to the flag, for example, activists, protesters, and even schoolchildren throw the flag on the ground and trample it underfoot (Collins and Chaltain 254). The press covered cases when residents burned the flag in their yards and uploaded photos of the process in their social accounts, which further resulted in judicial or police proceedings and provoked a response in the society. Many human rights activists believe that it was a radical way in which the dissatisfied Americans were trying to reach out to the authorities. However, in American society, the national flag is a very crucial element of history and national identity. For example, soldiers carry the flag-raising ceremony in the framework of important events; thus, the citizens often perceive the disrespectful treatment of this national symbol as a personal offense. In this regard, during several decades, many amendments to the Constitution were proposed that would protect the integrity of the American flag. Nevertheless, none of them has been approved so far.

On the one hand, I agree with those who would vote for the amendment protecting the national flag. Unique national denomination indicates the unity of the American people and denotes the authority, which is why it should be merited and defended accordingly. It is a symbol of self-identification, pride, and the country as one. On the other hand, I agree that the Constitution secures freedom of speech for people, and they may express their attitude in different ways. Nonetheless, the discretion of the flag is rather an action than speaking. Consequently, it is a controversial question whether the destruction or burning of the flag can be referred to as an act of speech expression. Moreover, the word discretion implies that the matter is sacrosanct and holy; however, the flag does not have any spiritual meaning. Thus, it can be stated the flag itself cannot be desecrated.

In conclusion, in 1988, the US Supreme Court ruled that in accordance with the country’s Constitution, the desecration of the American flag should be perceived as a manifestation of freedom of expression (Collins and Chaltain 358). Yet, for many people, this form of protest is unacceptable. In different states, there were cases when activists who dared to trample and burned the American flag lost their jobs. It should be noted that though the Old Glory is a symbol of the country, it is not the essence of America with its guaranteed freedoms. Thus, the proposed amendment would not guarantee any change in the minds of the American citizens and would not improve the overall situation in the country.

Works Cited

Collins, Ronald, and Sam Chaltain. We Must Not Be Afraid to Be Free, New York: Oxford University Press, 2011. Print.

Vitter, David. S. J. Res. 21 Joint Resolution 2015. Web.

The latest Constitution of France was accepted on October 4, 1958. It is characteristically called the Constitution of the Fifth Republic and reinstated that of the Fourth Republic dating from October 27, 1946. Charles de Gaulle was its key ruling power, while the text of the foundation was outlined by Michel Debré.

The Constitution also states methods for its own adjustment either by referendum or by the means a Parliamentary procedure, as a sign, that further revolutionary processes would be not required, if there is any need for amendment, the amendment process just goes with Presidential permission. The standard process of constitutional amendment is as follows: the amendment must be accepted in equal periods by both houses of Parliament, they must be either accepted by a simple mainstream in a referendum, or by 3/5 of a combined session of both residences of Parliament. Nevertheless, president Charles de Gaulle avoided the legislative practice in 1962 and straightforwardly sent a legitimate alteration to a referendum, which was accepted.

This was highly contentious at the time; nevertheless, the Constitutional commission ruled that since a referendum articulated the will of the sovereign people, the adjustment was accepted.

On July 21, 2008, Parliament passed constitutional modifications led by President Nicolas Sarkozy by a majority of one vote. These transforms introduce a two-term border for the government, give Congress a veto over some presidential meetings, end management control over parliament’s committee structure, permit parliament to set its own program, permit the president to deal with parliament in-assembly, and end the president’s power of collective apology.

The evolution of a constitution is arranged chronologically around eight “landmark” instants within British legitimate history, from the Glorious Revolution of 1688 to the Devolution Settlement of 1998. Moreover to these two occasions, historians also concentrate on the union between England and Scotland in 1707, the dominance of Robert Walpole as the first minister in 1721, the Great Reform Act of 1832, the Parliament Act of 1911, approval of the European Convention in 1953 and the UK entering the European Community in 1972.

Each of the main episodes turns around psychoanalysis of one of these occasions. Moreover, other related expansions are given deliberation. For instance, the chapter on the Great Reform Act also studies the later development of the franchise during the nineteenth and twentieth centuries. Likewise, the chapter on the adoption of the European Convention deals temporarily with the later parts of the Human Rights Act in 1998 “incorporating” Convention rights in the UK law.

This construction concentrates the reader’s curiosity on particular epochs when legitimate matters were at the fore of British politics whilst also attaining a broadly inclusive overview of the country’s legitimate development. nonetheless, it might be stated in passing that some topics such as the UK’s modification of constitutional contacts with what are now fellow associates of the Commonwealth stay largely unexplored in spite of the fact that the passage of, say, the Statute of Westminster Act in 1931 would emerge to offer a perfect “landmark” event around which to discover such matters.

Introduction

This paper takes a look at a South African case that presented certain constitutional matters to the court for determination. Among them are equity, equality, and unfair discrimination. The paper, therefore, seeks to summarize the case and analyze the important issues that arose therefrom.

The National Commissioner wished to fill the non-reserved post of a superintendent, prompting an advert placement in December 2005. Ms. Barnard was among the 7 applicants who wished to fill the position. Although she was the highest-ranking candidate after the interview, she did not receive the promotion position. Eight candidates, including Ms. Barnard, were selected for an interview to fill a level 9 position that was announced vacant.

Again, she ranked highest during the interviews and was highly recommended for the position by the interviewing panel. For the second time, even after glowing recommendations from various quarters, the National Commissioner declined to appoint her, stating representativity as one of his primary considerations. The post was, therefore, re-advertised, but Ms. Barnard did not apply again. She filed a complaint following the Police Service procedure on the same, asking to be appointed to the last post that she had applied for, and she received a letter setting down the reasons for not selecting her. The letter once again mentioned the issue of representativity as having been key in informing the National Commissioner’s decision.

The CCMA received a dispute regarding the discrimination issue on April 11, 2007, but the police service disobeyed an order to present itself in the meeting. She finally resorted to courtroom litigation. She contended that she had been unfairly discriminated against on the grounds of race and that she should be appointed retrospectively to the position of the superintendent as from 1 December 2005. The police service argued that the National Commissioner had been justified in his decision because he was following the Employment Equity Plan and that since making appointments was his prerogative, he was not bound by the recommendation of the panel. The Labour Court upheld her claim, stating that the reasons given by the National Commissioner were scant and insufficient. Upon appeal, the Labour Appeal Court upheld the appeal stating that no discrimination had occurred because the National Commissioner had not filled the vacancy with another candidate. The Supreme Court of Appeal, on the other hand, reinstated the decision of the Labour Court stating that Ms. Barnard was entitled to compensation.

Comments of the Judges on Applicable Law

The South African Constitution, in as much as it pursues equality and discourages discrimination, does not aim for mere formal equality because the country has had a history that was marred by racial injustices. It, therefore, calls upon the citizens of the country to take positive steps to secure the substantive equality that is envisioned. The achievement of equality is, therefore, a delicate balance that looks out for the needs of those that were previously disadvantaged while at the same time not unduly invading the human dignity of those that are affected by them. Essentially, the historical discriminatory problems could only be resolved by affirmative action which has been said to be a means to an end and not an end in itself. This end is the creation of an appropriate environment that will allow the addressing of social, political, and economic inequalities in the long term (Kennedy-Dubourdieu, 2006).

The Employment Equity Act, which is one of the legislations that the applicant sought to rely on, has the objective of eliminating unfair discrimination at the workplace to redress the adverse effects that were brought about by past discrimination. It does so by first and foremost requiring designated employers to take affirmative action. The police service has the mandate of bringing equality in the various groups by hiring qualified employees in those segments in an unbiased manner. Other policies that regulate the way police service promotions should be handled include the National Instruction issued by the National Commissioner in 2004 and the Employment Equity Plan, which was a collective agreement adopted in 2001.

The decision of the Supreme Court of Appeal was, therefore, centered on these laws, policies, and principles. The court recognized that the transformation that was envisioned in the Constitution was a process that could at times be faced with profound difficulties. The court remained conscious of the fact that some people would not escape the consequences of attempting to safeguard equality. The most affected persons would be those who enjoyed an advantage in society previously. This was evident from Ms. Barnard’s case because she had been denied the promotion simply because she was white and consequently belonged to a previously advantaged group.

It stated that although the race was one of the factors along, which many people were discriminated against in the past, there was a danger in focusing too much on remedying it, and this could lead to a situation where not only those that have not been selected for a position are disadvantaged, but also those that were chosen. It is for this reason that the court also stated that in implementing the provisions of affirmative action and equality, persons should be keen to ensure that the measures that are adopted to reach this goal are constitutionally compliant. Ideally, the objective should not only be to adopt affirmative action measures but also to ensure that these steps amount to fair action. The court stated that the vision of the country should be towards a time when the country shall look beyond race.

Judge Van der Westhuizen, in addressing the same issue, drew parallels from the attempts that the United States had made in dealing with the historical injustice of slavery using affirmative action. He highlights the problems that arose there, from which were identified by even those whose interests the affirmative action measures were meant to serve. He mainly referred to Professor Stephen Carter, who despite being one of the so-called “affirmative action babies” was nonetheless dissatisfied with the fact that he had been able to join law school simply because he was black. Even though he asserted that representativity was not the only factor that needed to be considered in making decisions of this nature, he was also of the opinion that the appeal should succeed because the decision of the National Commissioner was not unlawful.

Analysis and Conclusion

Affirmative action is a measure that is usually taken to remedy the unfairness and injustice that a particular group of people in the society have had to contend with which has led to them not receiving benefits that they would have otherwise been entitled to (O’ Cinneide, n.d). The adoption of such measures has been justified on the grounds of subtle forms of discrimination where there is the apparent application of neutral criteria of selection of individuals for a particular position, which criteria inherently yields disadvantageous results for a particular group (O’ Cinneide, n.d). Drawing from the experience that the United States has had with Affirmative action, it is noteworthy that these measures do not always yield the results that they are intended to or rather, are limited in their outcomes. It has been argued that affirmative action only serves to diversify the subjects of a job but cannot go further to ascertain whether or not they will be efficient in doing that job (Thomas, 1990).

Quintessentially, it is therefore of utmost importance that the employers who opt to adopt these measures strike a much-needed balance between just diversifying the workforce and ensuring that they are not merely blocking out more qualified applicants to achieve this end. The United States has adopted the ‘strict scrutiny’ test to aid it in coming to this desired end. In essence, this test provides that there must be compelling government interest in achieving the aim of the preferential measure adopted and further, that this preferential measure is as narrowly tailored as possible. The lesson that is drawn from this is that because affirmative action seeks to treat one group of persons more favorably than others, there is a need to ensure that the use of such preferential treatment is minimal and necessary to avoid tilting the scales unfavorably with regards to another group of persons.

In conclusion, Ms. Barnard’s case was important because it brought certain truths to light. The first is that, where the Constitution provides that everyone should be treated equally and advances the use of affirmative action measures, it is not enough that these measures are blindly adopted but also, it is beneficial to ensure that how these measures are adopted is fair and just to all groups involved. Secondly, albeit it is important to ensure that all groups in society are represented in a specified labor force, this should not be achieved at the expense of service delivery because that would render the adoption of these measures counterproductive.

References

Kennedy-Dubourdieu, E. (2006). Race and inequality: world perspectives on affirmative action. Farnham, UK: Ashgate Publishing Ltd.

O’Cinneide, C., (n.d.). Positive Action. Web.

South African Police Service v Solidarity obo Barnard [2014] ZACC 23.

Thomas, R. R. (1990). From affirmative action to affirming diversity. Harvard Business Review. Web.

Introduction

Killing someone without going against the constitution has been a controversial legal topic since the reinstatement of death penalty in 1976. In fact, statistics reveal that over 1200 convicts have been legally put to death since 1976 and the number is likely to rise. Elder and Terkel (2010) illustrate that “if the death penalty is not abolished, the population of death row inmates in the US will exceed 4,000 by the end of the decade” (p. 191). There is no doubt that this is a staggering number.

Legal Issues Raised

An examination of the methods used in death penalty reveals that many states use a lethal injection system for execution of convicted criminals. This is because of the unconfirmed belief that this mechanism of death, which does not offend the constitution, is least cruel and non-violent. The main challenge comes up when “an inmate facing lethal injection contends that the method is unconstitutional because the procedure causes unusual pain and suffering” (Elder and Terkel 2010).

According to Nisbet (2010), “the Eight Amendment of the Constitution ratified in 1791 as part of the Bill of Rights states that excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This implies that this mechanism of killing goes against the Bill of Rights. Furthermore, whereas there is widespread that the lethal injection gives one a chance to die a quiet life, this is not always confirmed and might not be true.

The recent case in which the U.S. Drug Enforcement Administration (DEA) confiscated some lethal injection drugs from the state of California is an indicator to the fact that these drugs do not work as quietly as widely believed. In fact, the application of the 3-drug method leaves out a number of legal issues concerning lethal injection. The fact that a person does not cry or move during the entire process does not mean that there is no feeling of pain and suffering.

The Tenth Amendment on the other hand asserts that no cruel and unusual punishment should be inflicted on anybody. Nisbet (2010, p. 6) illustrates that “some executions have lasted between 20 minutes to over an hour and prisoners have been seen gasping for air, grimacing and convulsing during executions.” This confirms the fact that lethal injection is a cruel mechanism of death.

Resolution of these Issues

The only way to resolve the problem of legal issues arising from lethal injection is to uphold the Eight Amendment of the constitution by denouncing all forms of capital punishment. This is because we live in a civilized society in which justice should not be viewed as a form of revenge.

There is need to uphold human values and denounce all forms of execution. Whereas another alternative solution to this problem involves finding a certified human method of capital punishment, the legal issue of drug importation still arises because suppliers of the lethal sodium thiopental will not ship it to the US. Third, the financial cost of a prisoner appealing to death penalty raises the legal cost of the entire process.

References

Elder, R.K. and Terkel, S. (2010). Last Words of the Executed. Chicago: University of Chicago Press.

Nisbet, J. (2010). Lethal Injection. NY: Overlook Press

Abstract

The objective of this paper is to provide a brief legal analysis of the United States Constitution from the point of criminal procedure regulation. The analysis is supported by the description of several pivotal appeal cases. The appellate case decisions, included in the paper, explain the historical evolution of procedural doctrines. The view of the role of the judiciary and the rule of law in society is also provided in the paper.

Introduction

The judicial system plays an important part in administering justice and governing the constitutional rights of US citizens. In order to ensure that all stages of the case processing are conducted without prejudice, a number of laws were established to govern the criminal procedure.

Criminal procedure is a term that describes the broad set of rules overseeing the processing of a criminal case (Ingram, 2008). These rules are outlined in several sources of law including the US constitution. The US constitution establishes the basic rules regarding case processing, outlines pre-trial and trial procedures, the role of Jury and a Grand Jury, safeguards the rights of the convicted, and covers such issues as double jeopardy and the death penalty. Provisions that regard the law of criminal procedure are mainly outlined in Amendments IV to VII.

In addition, Amendment XIV establishes that no person can be deprived “of life, liberty, or property, without due process of law” (The Constitution of the United States, amend. XIV). The provisions affect federal courts in their entirety, and only fundamental rights are protected by these provisions in state courts. One of these fundamental rights is the right to be free of unreasonable searches and seizures which is outlined in the Fourth Amendment. In Mapp v. Ohio appeal case the Supreme Court established that if evidence was gathered in violation of the US constitution, it is considered inadmissible (Mapp v. Ohio, 1961, par. 1).

Another fundamental right is the defendant’s understating of their rights to remain silent, which is outlined in the Fifth and Sixth Amendments as the privilege against self-incrimination (The Constitution of the United States, amend. V; The Constitution of the United States, amend. VI). In Miranda v. Arizona appeal case, it was established that the police must warn the defendant about their rights before questioning (Miranda v. Arizona,1966, par. 2). These court cases provide insight into the evolution of law.

The Supreme Court, in particular, has shown to provide procedural history. The rulings of these cases directly affected the way the criminal law was enacted in the following years. This highlights a dynamic dimensionality of procedural doctrines, as the Supreme Court rulings changed the way the judicial system administered justice (Ho & Ross, 2010, p. 650). The law is responding to the changing ideas and infuses the old and the new, thus allowing our society to progress.

The judiciary, or the system which oversees delivering justice, plays a pivotal role in a democratic society (Piersol, 2007, p. 444). A democratic society relies on the rule of law to establish justice and protect human rights. In other words, democracy is a government limited by law. The judicial system, which encompasses a network of courts, acts as a mechanism that upholds order by applying the law to resolve disputes and provide justice to parties involved in an argument. “By marshaling and defending the best concepts of the past, the law affords civilized society the all-essential qualities of stability and order” (White, 1959, p. 198).

References

Ho, D. & Ross, E. (2010). Did Liberal Justices Invent the Standing Doctrine? An Empirical Study of the Evolution of Standing, 1921-2006. Stanford Law Review, 62(3), 591-668.

Ingram, J. (2008). Criminal Procedure: Theory and Practice (2nd Edition). New York: Pearson Education.

Mapp v. Ohio. (1961). Web.

Miranda v. Arizona. (1966). Web.

Piersol, L. (2007). Speech: The Role of the Judiciary in a Democratic Society. South Dakota Law Review, 52, 444.

The Constitution of the United States. (1787). Web.

White, J. (1959). The Warren Court Under Attack: the Role of the Judiciary in a Democratic Society. Maryland Law Review, 19(3), p. 181-199.

The Constitution of the state of Florida is similar to the bill of rights, yet distinct in a variety of freedoms and protections it offers. There is a number of articles in the Florida’s constitution that hold a similar meaning to the first 10 amendments. For example, the 9^th section of the first article of the state’s constitution is similar to the 4^th and 5^th amendments. The US constitution protects the citizens against both unwarranted searches and the possibility of testifying against oneself separately. However, for the constitution of Florida the two are generally similar. Instead of singling out undue searches and arrests, the constitution makes it clear that any case of unlawful prosecution is prohibited, while also protecting a person from worsening their own legal standing.

A difference exists in the precise wording and meaning of the two legislations. While the amendments of the US constitution are aimed at protecting people from actions of the law enforcement that are considered unnecessary, the state’s legislation instead guarantees people the due procedures and protections if they are definitely suspected to be criminal. Therefore, the main difference lies in the inclusion of “due process” as the main consideration for Florida’s legislation, which refers to the predetermined proceedings of law enforcement and other structures of power in regards to a person’s deeds.

The 9^th amendment to the constitution, similarly, holds meaning that is closely associated with but different from, section 2 of the first article. The ninth amendment states that persons within the United States are entitled to a number of inalienable rights that should not be denied by the constitution. In particular, the amendment notes that the inclusion of specific rights into the constitution should not be used as a way to deny other rights to people. The particular legislation can be used as a way to protect people from discrimination in an emerging and changing political climate. The 2^nd section, then, is similar to this amendment. It states that both men and women living in the state of Florida are equal before the law and have rights inseparable from their persons. The rights are listed as the ability to enjoy life, pursue happiness, acquire compensation for their work and others.

The two legislations take opposite routes towards protecting and ensuring the freedoms of people. While the constitution of the United States uses a more vague description to secure the rights of individuals, Florida’s constitution chooses instead to outline its message clearly. The difference between the two serves to display that the protections of freedoms can be different, as well as the understandings of people’s inherent rights that are crucial to their autonomy (Moore, 2018). Both approaches have their own benefits. The latter is much easier to understand and interpret, as it gives clear examples of inalienable rights and protections. On the other hand, the former is easier to adapt into the modern reality to suit the changing needs of the population.

References

Cananea, G. della. (2016). Administrative due process as a general principle of public law. Due Process of Law Beyond the State, 155–178. Web.

Moore, A. D. (2018). Privacy, interests, and inalienable rights. Moral Philosophy and Politics, 5(2), 327–355. Web.

The First Amendment established the fundamental rights of citizens and political associations-parties, unions, associations, and denominations. It is meaningful to note that section 5 in the Illinois Constitution has titled the right to assemble and petition (Greenberg & Page, 2018). It states that citizens may peacefully assemble and consult on matters essential to the community’s common good. However, the Illinois Constitution establishes that citizens also have the right to petition the government to stop malpractices and request that specific problems be resolved. Thus, it could be argued that the State Constitution adopted the fundamental rights of the First Amendment to provide freedom for citizens to decide public issues.

It is also essential to mention Article Three of the Illinois Constitution, which established the suffrage of citizens and the right to elections. It is important to note that the origins of this can be seen as far back as the First Amendment because it laid the groundwork for creating parties (Siddali, 2019). Although Article 3 of the Illinois Constitution is more developed because it established that every citizen over 18 years of age has the right to vote, and prisoners for felonies lose their vote. In addition, the Illinois Constitution establishes the exact procedure for the election, specifically states the need for an election commission and begins how the Governor can be recalled.

At the same time, the article contains provisions that all elections must be free and equal; thus, this provision is per the fundamental principles laid down in Amendment 1 of the U.S. Constitution. Therefore, Article 3 of the Illinois Constitution, concerning suffrage, is more developed in accordance with the derivative of Amendment 1. While Article 1, Section 5 of the Illinois Constitution is almost identical to Amendment 1.

The First Amendment has the most crucial character and profound meaning because it deals with many rights, including freedom of speech, the press, peaceful assembly, and religion. At the same time, the Illinois Constitution also has similar provisions in sections 3 and 4. It is vital to note that they are stated in more detail and list those essential points missing from the Bill of Rights. Among them is freedom of conscience, which in turn should not be interpreted as an excuse for wrongdoing. Furthermore, the right to religion, which enshrines the equality of beliefs and the prohibition of preference for any denomination, has been interpreted in more detail. Section 4 of the Constitution, in turn, analyses the right to freedom of speech, writing, and publication, while at the same time establishing liability for its abuse.

Correspondingly, the amendments to the Bill of Rights and the Illinois Constitution have a similar provision on the right to privacy. The Bill of Rights states that people’s homes, papers, and possessions must be protected from searches that have no necessary legal basis. If there is such a need, the Amendment also has a list of conditions that must exist for a warrant to be issued. Section 6 of the Illinois Constitution, in turn, is much like the 4th Amendment, but at the same time, there are differences. The technological process prompted the Illinois Constitution’s more detailed interpretation of the right to privacy (Magliocca, 2018). In addition to the general concept, it also mentions the interception of communications by eavesdropping devices or other means.

Thus, both the Bill of Rights and the State Constitution have the same provision, but at the same time, the latter interprets it in more detail. They have minor differences, but their main feature is that they expand rights, not narrow them. This certainly has a positive effect, for the Illinois Constitution has adapted a fundamental right, giving it an even more profound meaning and thus making the individual more protected.

References

Greenberg, E. S & Page, B. I. (2018). The Struggle for Democracy, 2018 Elections and Updates Edition. (12th ed.). Pearson.

Magliocca, G. N. (2018). The heart of the constitution: How the bill of rights became the bill of rights. Oxford University Press.

Siddali, S. R. (2019). Creating the Land of Lincoln: The History and Constitutions of Illinois, 1778â 1870 by Frank Cicero Jr. Indiana Magazine of History, 115(1), 60-61.

First, one has to understand what a constitution is, a constitution is a set of rules or principles that defines or shows how a country is governed. Many of the constitutions are written that is, are found in a document. Unlike these constitutions, Britain has its constitution unwritten that is, it cannot be found in any document but the country is still governed lawfully. Britain has her constitution from various sources that include statutes like the Magna Carta, laws, and parliament customs or political conventions. In addition, case laws, which are matters that are constitutional and decided in a court of law and, constitutional experts that have written on some subjects. Britain also has two basic principles, which are the rule of law and parliament supremacy (History Learning Site, 2000, par. 1-5).

Britain’s governance is one of the best though it does not have a written constitution. Some rules like the bill of rights, act of settlement, and that of the union are still upheld in Britain. This constitution may seem to contradict especially to other nations who use the written constitution. Britain has surpassed all those odds and has always been stable politically with this type of constitution. Some of the rules are written in different places and not in one document (Dorothy, 2002, par. 4).

Over the last thirty years, the rise of the urge for democracy has gone up especially after the cold war and the fall of the Berlin wall. The issue of democracy in many states has led to a lot of criticism of the unwritten constitution in Britain because the disadvantages accompanying it are viewed to make it look bad. Although besides its disadvantages, Britain has used this constitution for so long and it is good democratically compared to many other states.

There are various difficulties associated with this constitution. These involve uncertainty whereby, people do criticize its nature of ambiguity. Most people argue that it is not easy to know or understand what exactly this constitution is talking about. Therefore, this nature makes many understand differently and seems as if it is made as they go along. Another issue, is that it is easily changed therefore, those governments that are elected democratically may change it to suit their needs and thus, form a dictatorial kind of government. Many argue that in Britain, it seems that there is no fair competition among parties, as it is only the Labor party has taken control. This is seen as part of a constitution that is highly flexible and one that can be changed any time the party wishes (John, 2006, par. 3-4). This may lead to a change without considering the interests of the people but only favoring those people in power.

In the unwritten form of the constitution, there seems to have weak people’s rights protection because there is nothing forcing the government to abide by the law and, it seems they do it at their own will. The critics say that this is a serious issue because; a government can come into power and be so strange that it may start violating human rights by not protecting them well. These are most of the criticism mainly given by individuals who normally think that an unwritten constitution is dictatorial. In the last thirty years, many changes have taken place worldwide and most of the nations have adopted a written constitution as a way of their governance. America being a superpower has influenced most of the countries into having a written constitution, because they use it and, view it as the best mode of governance. This has led most countries especially, the developing nations to adopt a written constitution (Bill, 2004, p. 5).

These forms of criticism are not merited. Britain has been stable since its existence without any type of constitutional problem. Her people’s sense of patriotism has made it more stable and far much better in the world. Britain has a royal institution that is part of the leadership and still does exist without any problems. An unwritten constitution is not a problem in any country but it all depends on the people, and also the leadership in it. Britain has emerged as an influential country in the world and the unwritten constitution seems not to affect her democracy and governance. Many countries use the written type of constitution and still are not stable because of dictatorship, coups, and other related political problems. Britain has not had any problem in terms of a constitutional crisis and still they respect the institutions as they are. Britain has also been able to solve its internal issues without the interference of other nations, therefore; this shows how she is strong despite having an unwritten constitution. The criticism of the British kind of constitution is not merited because as far as it has its disadvantages, the written constitution has also its disadvantages. A written constitution has the major disadvantage of being rigid in that it takes time to change even in a crisis. Therefore, it all depends on a nation and Britain has proved to do it with an unwritten constitution (Chris, 2009, p. 3).

Reference

Bill, J. (2004). Politics UK. UK: Longman.

Chris, T. (2009). Law express: Constitutional and administrative law. Wesley: Longman.

Dorothy, S. (2009). Key principles of the British unwritten constitution. Web.

John, H. (2006). The British Constitution. Web.

History Learning Site (2000). The British Constitution. Web.

The biggest problem, within the context of the American legal system interacting with today’s objective reality, is the fact that this system is based on the principles of euro-centrism, whereas America is now being officially declared a multicultural country. The metaphysical essence of notions of justice, freedom and intellectual excellence in this country, directly derives out of European mentality and out of European sense of religiosity; therefore, these notions can hardly be thought of as universally applicable to all the citizens of this country. The close reading of the Declaration of Independence reveals it as essentially the legal instrument of insuring cultural and racial homogeneity of the American nation, because our founding fathers, such as Thomas Jefferson, were rightly pointing out to British colonial rule as having a counter-productive effect on America’s national integrity: “He (King George III) has excited domestic insurrections amongst us and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions” (Jefferson 1776). Nowadays, the writings of American founding fathers are being commonly referred to as containing essentially humanist undertones. This, of course, cannot be doubted. However, these humanist ideas only applied to those who founding fathers considered as humans, in the full sense of this word – White Americans of Anglo-Saxon descent. This is the reason while discussing the principles of education in his “Notes on Virginia”, Thomas Jefferson implies that only educated people, capable of utilising their sense of rationale (essentially euro-centric concept), are in a position of exercising a political authority in this country: “Every government degenerates when trusted to the rulers of the people alone. The people themselves, therefore, are its only safe depositories. And to render even them safe, their minds must be improved to a certain degree” (Jefferson 1785). In a multicultural society, such Jefferson idea loses its actuality, simply because there can be no criteria for “intellectual improvement” by definition (the practice of IQ testing is now being commonly dismissed as racist). The same applies to the concept of justice – whatever some individual may perceive as a crime, the other individual may very well perceive it as a “celebration of cultural uniqueness”. Those who laid the fundamental principles of justice in America never thought that judges’ ability to be governed solemnly by the word of law, during the course of making legal decisions, would correspond to their racial affiliation, as it is often the case today (O.J.Simpson being found non-guilty on two charges of murder in 1995). Therefore, we can say that the relation of America’s legal system, based on the notion of European rationality, to the reality of the U.S. becoming increasingly multicultural, is now being marked by a high degree of conceptual inconsistency. Today, many Americans do not think that there are good reasons for them to revere the existential philosophy of American founding fathers, given these fathers’ racism and sexism. The spiritual essence of the American Constitution is firmly based on ideals of freedom of speech and freedom of private gun ownership. In their turn, these ideals are now being publicly ridiculed by the very people whose professional responsibilities consist of protecting the American Constitution. We can say that America had ceased to be the country, where the continuous application of the euro-centric concept of law and justice can make any sense. Nowadays, American citizens are being expected to be preoccupied with the “celebration of diversity”, as their foremost social duty. However, their allegiance to the principles of multiculturalism can only derive out of their negative attitude towards what the American legal system was originally meant to stand for – protection of cultural and racial integrity of Protestant Anglo-Saxon society in the New World.

Bibliography

Jefferson, Thomas. 1785. Notes on the State of Virginia. Electronic Text Center, University of Virginia Library.

Jefferson, Thomas. 1776. The Declaration of Independence. Archiving Early America. Web.

The Fourth Amendment to the United States Constitution prohibits warrantless searches or seizures (Currier & Eimermann, 2010). The amendment demands that for a search to be constitutional, it must be authorized by a judge or magistrate. In Katz v. United States, 389 U.S. 347 (1967), this amendment was reaffirmed when the United States’ Supreme Court ruled that before the rights of a citizen under the Fourth Amendment is breached, government authorities must obtain a warrant from a Judge or magistrate who is neutral. Fifteen years ago, drugs found during a warrantless search were not admissible in court. However, today they are. Hemmens, (2010, p. 78) says, “The National Security Agency has a secret backdoor into its vast databases under a legal authority enabling it to search for US citizens’ email and phone calls without a warrant.” It means that there have been fundamental changes in the principle and spirit of the law. In this paper, the researcher seeks to explain these changes and their relevance in the fight against drug trafficking and other criminal activities within the country.

The presumption of innocence till proven guilty as defined in the United Nations’ Universal Declaration of Human Rights that was adopted from English Common Law and Justinian Codes was integrated into the United States’ Constitution (Currier & Eimermann, 2010). This principle demands that one should be considered innocent until a fair trial in a court of law proves otherwise. As an innocent citizen of this country, the Fourth Amendment protects one from warrantless searches because it infringes one’s right to privacy. This is a golden principle that has been held for several years. However, Hemmens (2010) says that some unscrupulous citizens have been abusing this right by engaging in criminal activities such as drug or human trafficking and organizing terror activities among others. The events following the September 11, 2001 Al Qaeda Attack in the United States changed the principle of this law. It became apparent that people were able to commit crime, because deaths of innocent people, harm many others, and destroy properties worth millions or even billions of dollars.

Currently, drugs which are found during a warrantless search are admissible in court (Currier & Eimermann, 2010). It has been confirmed beyond any reasonable doubt that there are cases when the officers cannot afford to obtain a warranty and still be able to make an arrest. For instance, if officers are convinced that an individual is ferrying drugs in a van, plane, or sea vessels, it is not reasonable possible to go get the warrant from the magistrate or judge because by the time the warrant is issued, the criminal will be gone. That is why it is now illegal for the officers to conduct a warrantless search if they are convinced that any time wastage would jeopardize their ability to succeed in making an arrest. In California v. Acevedo, 500 U.S. 565 (1991), the Supreme Court ruled that the police may search automobiles for contraband goods or evidence (Hemmens, 2010).

References

Currier, K. A., & Eimermann, T. E. (2010). Introduction to paralegal studies: A critical thinking approach. New York: Aspen Publishers.

Hemmens, C. (2010). Criminal procedure and the Supreme Court: A guide to the major decisions on search and seizure, privacy, and individual rights. Lanham: Rowman & Littlefield Publishers.