The constitution of America has received a lot of ideas from analysts on how it should be treated and used by the people. The constitution was written many years ago yet it is always going through various amendments to ensure that it satisfies the current needs of the citizens. Despite some of the rigid laws that are presented in the document, they are usually subject to different interpretations depending on the lawyer or judge that is dealing with a certain case. This has been the main point of argument between two analysts, Antonin Scalia and Stephen Breyer on whether the original meaning and interpretation should be adopted or not. Scalia has presented valid arguments that support the fact that the original meaning should be used in interpretation while Stephen has presented arguments in disapproval of the same. In this paper, we focus on their arguments and a general opinion on the same.
According to Antonin Scalia, the judges must find out what the people that originally wrote the constitution meant before making any further interpretations. This is basically because what many be used to define some of the sections may not necessarily be what the current society feels is right. As a solution to any misinterpretation of the law, basically because of the probable fact that times have changed and that the original meaning may not make sense, there is usually room for amendments that can be utilized. He considers the instances where almost every lawyer and judge has their interpretation of the document as an abuse of it. It is the original meaning that will enhance its proper use and ensure that the citizens that are relying on it for justice get the same on its original form.
On the other hand, Stephen Breyer feels that the constitution should be interpreted following the changes taking place. In support of his arguments, he says that what was originally placed on the papers was to favor the kind of life that the people of that time lived which can not apply to the current society. About amendments, he observes that a case may not be left pending in court simply because the parties are waiting for a certain section that affects them to be amended. In such situations, the judges have to take urgent action and pass the necessary judgment after critically looking at the situations that surround the case. This does not however give a loophole to any individual that is in the wrong to simply interpret the law in their favor. There is usually the judicial system which is the sole determinant of the direction that a certain case will take.
In my opinion, I tend to agree and at the same time disagree with the points that have been raised above. As much as it is necessary to consider the original meaning of the sections in the constitution before using them, they may completely be meaningless in the current society. A lot has changed and is still changing and no matter how many times the constitution may be amended, it will never completely satisfy the needs of the changing society. However, it provides a platform through which both lawyers and judges can place their arguments and reach a decision towards a certain case. On the other hand, finding the original meaning of the constitution will help the judiciary to relate to the scenarios happening around and hence make the correct judgment.
Personal jurisdiction concerns a courts ability to make a ruling on the individual who is being a defendant in a courts case, and whether the establishment is equipped to deal with them adequately. The United States Constitution states that a party must have certain minimal connections with the forum in which the court sits before a court can exercise authority over them. If a plaintiff opens a case against a defendant, the defendant might object to the lawsuit by claiming that the court lacks an understanding of his temper and circumstances, and are therefore not qualified for the procedure. Personal jurisdiction is rarely called upon unless prompted, meaning that a defendant should claim personal jurisdiction violation themselves, otherwise ation is unlikely to be delivered. An example of personal jurisdiction would be suing and hearing the case of a certain states citizen within the boundaries of this state.
Subject-matter jurisdiction refers to the need of the court to have authority over a specific topic or subject matter. Parties to a lawsuit can relinquish personal jurisdiction but not subject-matter jurisdiction. A suggestion to dismiss the suit for lack of subject-matter jurisdiction is a preferred defence in federal court under the Federal Rules of Civil Procedure, and it can be presented at any time in the litigation process. Even if the parties have previously contended that the subscription model existed. In reality, the court may reject a case for lack of subject-matter jurisdiction on the spot if the contents of the case transpire the limits of the courts jurisdiction. This may be identified as an indirect reason for the existence of multiple types of courts, depending on the area in which the claimed offense was committed. An example of this would be any of the civil courts not being authorized to hear a military case, that is instead sent to a tribunal hearing.
The long-arm statute may be described as a circumstantial exception from the personal jurisdiction example outlined above. It allows the court of the foreign state to obtain personal jurisdiction over a member of another state on the basis of certain facts and claims. Independently of the gravity of the offense claimed, the long-arm statute can only occur if the defendant has a form of connection with the state where the hearing is set to happen. In order for the long-arm statute to be granted, the defendant would have to have participated in a systematic and continuous activity within the state in question. Alternatively, there would have to be the course of action arising from this activity. To give an example, for a citizen of Illinois to be judged in another state, the court of the other state in question must request a long-arm statute.
The case of Nestle, Inc and Doa, heard in the Supreme U.S. Court in December 2020 concerns the allegation from the respondents, who claim to have been trafficked as child slaves to produce cocoa. The hearing itself is primarily focused on contesting jurisdictions and authorities to judge the claims within different levels of the U.S. court system. Nestle is claiming corporate immunity, but is denied it, and the case is decided to move forward for the next hearing in the District Court. I believe this case to be influential to the U.S. business environment as it highlights the unfortunate tensions that exist between large corporations and some of the most basic human rights. Other companies might become aware of the corporate immunity denial and focus on ensuring fair practices regardless of the scale of production. I agree with the decision of the court and only regret that further action was impossible to undertake considering the given level of jurisdiction.
Reference
Nestle USA, Inc. vs Doe et al., 19-416, (U.S. Sup. Ct., 2020), Web.
Zoning of ordinances has become a common battlefield between landowners and the local government in Georgia. Zoning laws are essential to help the local government subdivide areas into various zones for further development. If these laws aggrieve anyone, he/she can use Article 6 of the Georgian Constitution that allows people to appeal any ordinance they believe is inconsistent with public safety and morality. However, this appeal must be made within 30 days after the zoning board has enforced the law (Derek, 2011, para. 6). The local government has established ways which can be used by a person in order to challenge zoning ordinance; this can be followed by Irene Lopez.
Irene Lopez is a resident of Atlanta who is upset because the local government has passed the zoning ordinance that hinders her from establishing a daycare in her residence. She intends to challenge the ordinance. However, challenging the Federal government can be rather tough. According to Atlanta jurisdictions, the local government requires anyone who proposes to appeal against the zoning ordinance to pass all exhausted administrative remedies before bringing the matter to court. However, there is an exception if the local government board does not have the jurisdiction to grant relief from the zoning ordinance.
Lopez can challenge the constitutionality of the existing zoning ordinance if she can prove it does not comply with public safety and morality. However, it must be noted that even if she brings the matter to court, the local government in Atlanta still has the benefit of the doubt. Therefore, Irene Lopez can only be able to overcome an invalid ordinance if she can provide clear and convincing evidence that the decision of zoning ordinance is detrimental and inconsistent with public safety, morality, welfare, and health (Lindstrom, 2011). Thus, Irene Lopez must be able to prove beyond reasonable doubt that the zoning ordinance is detrimental to her. The local government in Atlanta can be compelled by the court to justify the zoning ordinance if Irene Lopez can demonstrate that it has caused financial losses and contradicts public interest. However, if she cannot prove that the zoning ordinance has adverse effects on her and it is insubstantial to public safety, her case will be bound to fail. Therefore, the burden of prove lies with Irene Lopez to show that the zoning ordinance is harmful to her. This is one of the toughest responsibilities she has to overcome to make her case valid. Peter, Jenkins and Olson (2012, para. 8) argue that many cases fail because landowners cannot be able to demonstrate significant damages such as DeKalb Co. v. Dobson. The court argued, The financial loss was insufficient to show substantial damages (para. 6). Therefore, for this law firm to win the case, it must be able to prove that Irene Lopez will suffer significant harm because of this zoning decision.
The Federal government in Atlanta obtains its zoning ordinances from the state constitution. Specifically, it relies on Supreme Court precedent and the local ordinances in Atlanta. For instance, Judd and Swanstrom (2015) argue that the Supreme Court has given the local authority in Atlanta more power after the case of the City of Atlanta v. TAP associates (p. 256). The delegation of power to the zoning board is in line with the constitution and has been supported by Supreme Court jurisprudence. The Constitution has delegated the legislative authority to the zoning board in the local government. However, the zoning boards decisions are subject to the Constitution that requires equal protection and following of due process.
In summary, it is recommended that Irene Lopez should be able to prove beyond reasonable doubt that the zoning ordinance is detrimental and insubstantial to public safety before bringing the matter to the court. Moreover, she should prove economic losses as a result of the zoning ordinance.
References
Derek, J. (2011). When zoning regulations violate due process. Web.
Judd, D., & Swanstrom, T. (2015). City politics : The political economy of urban America. London New York: Routledge.
Lindstrom, M. (2011). Encyclopedia of the U.S. government and the environment history, policy, and politics. Santa Barbara, Calif: Abc-Clio.
The Constitution of 1878 was supposed to define the balance of power in the state between the states. Lawyers, political, and public figures have faced the question of the states position in the hierarchy and their status. The constitution itself proposed a federation model, securing the central importance of the center of government, from where important laws were to emerge. Federalists believed that only with a robust center could the country develop and grow rich. The anti-federalists were against the adoption of the constitution, at least in its original form. The anti-federalists believed that the legal status of the states should remain high and that the states had every right to self-government. On this basis, a clash of two parties arose, having opposite views on the building of the state.
The most critical differences between federalists and non-federalists are attitudes towards human freedom, labor and trade, origin and occupation, representation, and organization. The anti-federalists saw human freedom as the highest value and, putting forward demands for the freedom of states before the center, took this as a basis. In promoting such values, anti-federalist Madison proposed amendments; they became what we know today as the Bill of Rights (Bilder, 2018, p. 144). Federalists gave the leading role to a prepared government in decision-making and neutralized the position of human freedom. The anti-federalists believed that small traders should not obey anyone but should only develop their business. The federalists were adherents of big business, and they gave it their preferences. The anti-federalists were often themselves small traders and small farm owners by occupation. Federalists were often prominent figures in public affairs, lawyers, travelers, etc. In addition, unlike anti-federalists, federalists often came from aristocratic families. In conclusion, the federalists were well organized, as they understood the details of the political and legal mechanisms. The anti-federalists, despite their stated values, lacked organization and representation. The most famous federalists are George Washington, John Adams, and Alexander Hamilton; notable anti-federalists include Patrick Henry and James Madison.
References
Bilder, M. S. (2018). The Ordeal and the Constitution. The New England Quarterly, 91(1), 129-146.
The seventeen Shotoku Taishi 604 article constitution mainly talks about Buddhism and Confucianism. Confucianism is the teachings of Confucius that stress the social order and members fulfilling their mission in their society. The 17-article constitution is based on the people of Japan; however, some non-Japanese influences have been mentioned in the law code. For instance, in article 3 of the Shotoku Taishi 604 constitution, the imperials who are non-Japanese influence the people of Japan. They are seen to issue commands, and one is expected to follow them to the letter. The power of the emperors is held similar to that of Heaven. In that, just as the Lord, who is Heaven commands its subject, should obey, the people of Japan should pay heed to their imperial powers and submit to avoid harsh consequences, which are otherwise termed as a ruin in the article. It says, consequently when you receive the imperial commands, fail not to carry them out scrupulously&and ruin is the natural consequence. The article further explains that when the imperials lead and the people submit, good things flourish. It says, Heaven overspreads, and earth upbears. When this is so, the four seasons follow their due course, and the power of nature obtain their efficacy. Therefore, the emperors have a set of commands that the people of Japan are expected to adhere to.
Similarly, non-Japanese influence is also seen in article 7, where knowledge and wisdom are essential to the world. The article asserts that few people are born with the ability to obtain wisdom; one should undergo intense and solemn meditation. These people then come out as agreeable and should be sought to hold office. It says, In this world, few are born with knowledge: wisdom is the product of earnest meditation& find the right man, and they will surely be well managed: on all occasions. These said knowledgeable and wise men should be made leaders to avoid disaster befalling the earth. The constitution further says, In this way will state be lasting and the Temples of the Earth and Grain will be free from danger. Therefore, non-Japanese influence in this article is depicted by the general effect from the leaders in the world to the good of the world.
In centralized authority, specific groups of people at the top are given the decision-making power and responsibility as the other people comply. This power is retained at the headquarters or head offices, and all the other subordinate and junior offices receive authority from the head office. The concentration of power at the top gives a transparent chain of command to the subjects under it. In Japan, the law tries to centralize the collection of taxes from the people. According to article 12, the law advocates for one government that rules the whole country to levy taxes on the people and not the provincial authorities to levy taxes as the government also does. It says, The sovereign is the master of the people of the whole country. The officials are all his vassals. How can they, as well as the government, presume to levy taxes on the people? In this way, the people of Japan know who to give their taxes to since the authority is centralized. Therefore, Japan was a centralized government, where all other offices in the country reported to the master of the people.
The national government has an enormous responsibility of ensuring that its citizens receive enough security to guard their lives and property against any form of violence or aggression. The provision of national security is an inalienable right that citizens deserve from their government. National security is more than physical fights and wars; it involves complex interrelationships of government branches and foreign countries. State of national security depends on the cooperative function of the three branches of government, viz. judiciary, legislature, and executive. Moreover, international relationships in terms of foreign policy, treaties, intelligence gathering, and international agreements are also critical in determining the safety of citizens. However, the relationship among the three branches of government and international relationships significantly influence legislations and policies of national security. At international and national jurisdictions, laws and constitutions usually have inconsistencies that compel the executive, legislature, and judiciary to find an appropriate harmonization for the effective and smooth implementation of national security policies and laws. According to Mitrano, Marbury v. Madison set the precedent of judicial law review that empowered the judiciary to be a final arbiter in settling constitutional inconsistencies of statutes (52). Thus, Marbury v. Madison formed the basis of judicial review. This essay examines the potential points of conflict between the judiciary and legislature concerning national security relative to Marbury v. Madison and the United States constitution.
Marbury v. Madison
The case of Marbury v. Madison became a landmark case from which the concept of judicial review emanated. In 1803, there was a change in regime in the United States as Thomas Jefferson defeated an incumbent president, John Adams, in an election. To retain power, John Adams expanded the judiciary and appointed a number of judges, famed as midnight judges because they assumed their responsibilities during the last period of John Adamss regime. When Thomas Jefferson took power in 1803, he ordered the attorney general not to offer more appointments, and thus other judges did not receive their appointments, as John Adams wanted. William Marbury was one of the judges who did not receive his appointment. William Marbury filed an appeal wanting the Supreme Court to compel James Madison, a secretary of state, to honor his appointment. Chief Justice then, John Marshall, ruled that the judiciary Act 1789, in which William Madison has based his claim, is unconstitutional. Walter asserts that the judiciary Act that mandated Supreme Court to issue orders was inconsistent with Article III of the United States constitution (3). Therefore, when an Act is not consistent with the constitution, the constitution takes precedence. Marbury v. Madison is a precedent that formed the basis of judicial review not only in the United States but also across the world.
Judiciary and legislature are two branches of government that function cooperatively in ensuring that government formulates and applies laws effectively for the common interest of citizens. However, conflicts usually arise when the legislature formulates laws that are inconsistent with the constitution because the judiciary has the mandate to review and reject them as may be necessary, as stated in Marbury v. Madison. On the other hand, the legislature has the mandate to formulate laws for the sake of citizens because they are representatives of the people; thus, judicial review of laws, which are passed by the legislature, is an act that diminishes the powers of the legislature. Thus, powers vested in the judiciary of determining constitutionality laws passed by Congress influence legislative powers of the legislature. In Marbury v. Madison, the Supreme Court held that statutes or treaties are only valid to the extent of their consistency with the constitution. Hence, if the legislature makes laws that are not consistent with the constitution, it would not stand judicial review, hence void. According to Walter, the decision of Marbury v. Madison asserts that Supreme Court has the power to determine the constitutionality of statutes that Congress passes (4). Article III of the United States constitution bars Congress from expanding the original jurisdiction of the Supreme Court; hence, in the case of Marbury v. Madison, John Marshall decreed that the Supreme Court lacked original jurisdiction to expand the mandate of appellate courts.
Potential Points of Conflict
Review of Acts
Based on Marbury v. Madison and the United States constitution, legislature and the judiciary have potential points of conflict with regard to review of Acts in issues of national security. The three branches of government have defined powers that do not overlap; however, the concept of judicial review as depicted in Marbury v. Madison shows that the judiciary is infringing on both executive and legislative powers. Congress represents diverse views of citizens and has the responsibility of formulating laws that are in tandem with the security status of a country. Since the judiciary has the constitutional mandate, according to Article III, to review the congressional Acts, it means that security Acts passed by Congress are subject to judicial review. Therefore, the legislature is limited in formulating laws that seek to protect citizens. Issues of national security require immediate response in that, whatever Congress passes, the judiciary needs to adopt and apply it expediently to protect citizens from any security threats. However, the process of judicial review is an obstacle that slows down the process of implementing laws passed by Congress. McClory argues that the constitution has distributed national security powers effectively between the legislature and executive, which provide enough checks and balances of security powers (3). Inclusion of the judiciary in reviewing Acts passed by Congress does not enhance checks and balances but complicates formulation and implementation of national security legislation.
Since the United States is facing impending threats of terrorism, legislature and executive are particularly alert and ready to adopt new laws that would enhance national security. For instance, during the terrorist attack of September 11, 2001, on World Trade Center, the legislature rose to their occasion in time and formulated the PATRIOT Act, which provided the basis of war on terror. Mitrano argues that the PATRIOT Act enhanced the powers of the United States of gathering information even if it means infringing on personal level privacy (53). The Patriot Act emphasizes the need for national security over privacy rights. It means that the police or security personnel can make unreasonable search and arrest of terrorist suspects contrary to the fourth amendment to the United States constitution. If the judiciary were to review the Patriot Act, it would declare it unconstitutional no matter what form of security threat that Americans would be facing. Thus, judicial review of Acts passed by Congress concerning matters of security hampers security and creates conflicts between the judiciary and legislature.
Given that the legislature has the sole responsibility of formulating laws, judicial review is a hindrance to the process of formulating and adopting laws. Usually, the legislature formulates laws through a rigorous process that does not need any further review in terms of constitutionality. Moreover, when Congress passes a bill, presidential assent makes it an Act, a fundamental law that forms part of other laws that the government uses in performing various activities. However, the introduction of judicial review, as portrayed by Marbury v. Madison, is going to complicate the legislation process. In view of Marbury v. Madison, the judiciary has powers to determine the constitutionality of acts and statutes and declare them void if they are inconsistent with the constitution. If the judiciary adopts full responsibility for reviewing Acts, it means that Congress has no essential role rather than formulating haphazard laws since the judiciary is going to review them. Therefore, regarding matters of security, the judges will have to review every law that appertains to national security and determines its constitutionality. Eventually, judicial review would interfere with the legislative process and affects formulating of the laws that relate to national security.
Autonomy of Branches
Legislature has its own checks and balances during the process of legislation; thus, it does not need the judiciary to aid it in determining the constitutionality of Acts. The Congress has standard procedures that it employs while making laws as its primary responsibility. Given the exigency nature of security laws, it is imperative that Congress plays an active role in ensuring that it passes essential laws in time to counteract any impending security threats. Judicial review of laws pertaining to national security creates conflict between the judiciary and legislature because; each branch of government is trying to gain sufficient autonomy to enable its proper functioning. Legislature requires own autonomy of formulating laws without undue interference from executive and judiciary; likewise, the judiciary needs to attain autonomy of interpreting and applying the law. However, the concept of judicial review, as depicted in Marbury v. Madison, shows that the judiciary is infringing on the legislature by determining the constitutionality of its statutes and acts, yet the legislature does not interfere with the functions of the judiciary. Thus, legislation of laws concerning national security is a potential source of conflict between the legislature and judiciary.
Marbury v. Madison and Article III of the United States constitution empowered the judiciary to determine the constitutionality of statutes and acts. The power of the judiciary to determine the constitutionality of statutes and acts is not in line with the essence of separating functions of government. Each branch of government needs to have sufficient autonomy for it to perform its functions optimally. However, the concept of judicial review denies legislature to make a wide range of legislations because the judiciary imposes restrictions on it and thus hinders it from performing legislative functions optimally. Given that matters related to national security are urgent in that it requires expedient executive, legislative, and judiciary actions, the judiciary seems to be a limiting factor because it is more conservative in its interpretation and application of the law, in addition to reviewing it. According to Reinhardt, the judiciary is inherently a conservative institution with conservative judges who do not want to get entangled with controversies, change, and risks in matters of security (1309). Giving the judiciary mandate of reviewing the constitutionality of laws pertaining to national security is quite detrimental. Judiciary has the basic responsibility of interpreting and applying the law, but reviewing acts is an additional responsibility that does not only interfere with legislative function but also expedient legislation of laws that national security needs.
Differential functions of the legislature and judiciary are paramount because it differentiates the formulation and implementation of laws. Judicial powers of reviewing Acts give judiciary excessive mandate that makes it interfere with legislative functions. In essence, autonomy is a potential point of conflict between the judiciary and legislature. Legislature does not perceive judicial review as a way of enhancing the constitutionality of acts but perceives it as a judicial threat to its autonomy. Fundamentally, functions of the judiciary and legislature should not overlap or interfere with each other because it will diminish the essence of autonomy. Since laws appertaining to national security are sensitive and urgent with regard to human safety and rights, enhanced powers of the judiciary would have a negative impact on the formulation and adoption of laws. Thus, for effective formulation and implementation of security laws, the legislature needs to have sufficient autonomy that is free from any interference by the judiciary through its judicial powers of review.
Ramifications
Judicial review does not enhance check and balances of the legislature but interferes with legislative functions. Essentially, the judiciary and legislature should have unique responsibilities that are not duplicated but rather complementary. However, the concept of judicial review of determining the constitutionality of Acts reflects the excessive powers that the judiciary has over the legislature. In this case, the legislature has the extra power to review acts, in addition to interpreting and implementing them, while the legislature only remains with the responsibility of formulating. In matters of national security, if the judiciary determines the constitutionality of laws enacted by Congress, judicial review would not only hamper the nature of laws but also increase the bureaucracy of formulating laws.
Although judicial review may seem like checks and balances of regulating legislation, it is an obstacle for it interferes with the functions of the legislature. Differentiation of functions of the legislature and judiciary is extremely significant as it prevents duplication of responsibilities and interference. In this case, judicial review interferes with legislation that the legislature makes despite the fact that they have undergone a rigorous process. For instance, if the legislature formulates laws, which need urgent attention due to security reasons, the judicial review becomes an impediment because it may slow the implementation and invalidate the timely and proper application of the laws due to their unconstitutionality. Security issues need radical measures that focus on exigent issues at hand, and thus judicial review, as depicted by Marbury v. Madison, hinders the formulation and implementation of security laws.
Concerning autonomy, if the judiciary has the mandate to review all Acts that Congress passes, it means that the legislatures role in formulating laws diminishes. The power of the judiciary to perform judicial review encroaches into the autonomy of the legislature and enhances the powers of the judiciary. Fundamentally, the legislature would have no reason to formulate laws that the judiciary would declare void. With regard to national security, since security laws mostly emanate from the nature of security threats, for instance, terrorism activities of September 11, 2001, led to the formulation of the Patriot Act, legislature plays a pivot role in formulating laws based on congressional votes. Passage of a bill through the Congress and presidential assent are rigorous processes that do not need review. However, allowing the judiciary to enforce its powers of review would curtail legislature from making laws and subsequently affect the formulation of laws relating to national security.
Conclusion
Since national security is tremendously crucial in ensuring the safety of lives and property, the government uses all means at its disposal to guarantee its citizens safety. Three branches of government, viz. judiciary, legislature, and executive, function cooperatively and in a complementary manner. However, a lack of harmony in the functioning of the three branches of government affects the formulation and implementation of laws and policies relating to national security. The case of Marbury v. Madison reflects how the judiciary can interfere with legislative functions by determining the constitutionality of its Acts. Judicial review powers can significantly affect legislations of security laws since two main points of contention are a review of acts and autonomy of legislature.
Works Cited
McClory, Toni. United States Constitution: National Security. Congressional Research Service, 2006: 1-5.
Mitrano, Tracy. Civil Privacy and National Security Legislation: A three-Dimensional View. Educause Review, 2003: 52-60.
Reinhardt, Stephen. The Judicial Role in National Security. Boston University Law Review 86.4(2006):1309-1313.
Walter, James. Marbury v. Madison (1803) . Law Review, 2008: 1-11.
The Articles of Confederation failed to unify the nation because in this document, the empowerment of the government of the United States was utterly limited. This made it almost impossible for the state officials to fulfill their daily duties in economical, political and social areas. In particular, the government had no empowerment to tax which meant that the state had no financial means for solving different problems which regularly occurred. Besides, inner and foreign commerce could not be regulated by the Congress as it had no empowerment for this. Moreover, there existed no executive establishments and state regulative organizations which could control the implementation of Constitutional regulations. Finally, there was no state system of courts which paralyzed the government in the area of law enforcement. Although the above-mentioned establishments and organizations existed on a local level, it did not help to solve numerous issues existing in the country. What is more important, the absence of law enforcement structures on a state level led to the lack of integration in the nation.
To solve such considerable difficulties, a number of important regulations concerning governmental empowerment were to be included to the Constitution. Particularly, the state executive and judicial branches were to be foreseen. In addition, the regulations concerning economical empowerment of the government were to be adopted. Also, the legislative norms establishing excessive empowerment of individual states authorities and the lack of economic empowerment of the federal government were to be removed from the Articles of Confederation. For example, the following regulation was to be removed: the taxes for paying that proportion shall be laid and levied by the authority and direction of the legislatures of the several States within the time agreed upon by the United States in Congress assembled (Articles of Confederation, n. d., para. 16).
The Bill of Rights
According to Bill of Rights (n. d., para 3, 4, 8, 11, 13-15):
The 1st Amendment guarantees the right for freedom of speech, press, assembling, making petitions, and choosing religion.
The 4th Amendment guarantees the right for privacy and protection from unwarranted search and seizure by any type of law enforcement organizations.
The 5th Amendment guarantees protection against governmental authority abuse during legal procedures. The 5th Amendment states that no one may force an individual to give testimony against him- or herself.
The 6th Amendment guarantees the right to receive legal assistance and council during all the stages of a criminal procedure. If the person is not able to pay for the legal service the government will offer its assistance.
The 8th Amendment does not allow cruel and unusual punishment, and guarantees the right for reasonable and fair bail.
Evaluating all the above-discussed Amendments along with the current debate concerning them existing in the society, I would choose to surrender the 4th Amendment. Today, the 4th Amendment and the Exclusionary Rule based on it have lost their meaning in modern society. Instead of offering people necessary help, this Amendment causes a lot of problems for the law enforcement agencies which become limited in their actions directed to control the level of crime in the country. Besides, the 4th Amendment is connected to a number of issues including its inability to protect the rights of the citizens on the reason of exclusions from it.
Article III of the US Constitution governs the appointments, remuneration, and term of federal judges office. According to it, the Supreme Court members are appointed by the President with the Senates confirmation. Their term of office is lifelong, and the amount of remuneration is fixed during all the course of their work. Judges can also be removed from office only through the impeachment process. Despite the fundamental reasons for establishing such conditions by the framers of the Constitution, the appointment has been causing more and more controversy among the public in recent years.
The main motive for creating Article III was the desire to protect the judges of the Supreme Court from the need to participate in political events, which excludes their bias. Thus, if the judges were required to participate in the elections every few years, this would inevitably lead to their desire to make more popular decisions. Nevertheless, several problems are connected with this, since the administration of a particular president appoints a certain judge. Judges are not retiring, waiting for a successor with similar views, which increases their term of office. In this regard, many supporters of changing the rules refer to mental decrepitude as a primary issue. On the other hand, judges are protected from motivated retirement, which gives them more political and financial independence. Another significant criticism of such a system is the assertion that life appointment violates democratic ideas, thereby, alienating the court from people. Thus, the advantage of the existing rule is the complete protection of judges from political and economic bias. However, the disadvantages are the violation of democratic orders and the possible effects of mental decrepitude.
In my opinion, the framers of the Constitution made the right choice by introducing such an article. The Supreme Court makes important decisions that require special experience and knowledge from its members. The age of the judges, in this case, is more an advantage than a disadvantage. From their experience, they can make impartial and fair decisions. Moreover, judges do not need to participate in the race for votes, which frees them from worrying about their works political aspects. Therefore, I think it is an effective model of supreme justice.
The Declaration of Independence and the US Constitution are the two documents that define this nation more than any other. One stated the causes that prompted the patriots to take up arms against Britain during the Revolutionary War, and the other outlined the carefully balanced government that continues to exist up to this day. It would be no exaggeration to say that the Declaration and the Constitution define what it means to be American. For me, these documents not only embody the core values and base assumptions of this nation but also heavily influence the language in which we speak about the matters of importance.
I understand fairly well that any personal perception of the Declaration or the Constitution, including mine, cannot be objective. As an American citizen, I know that the Continental Congress adopted the Declaration in 1776 to list the long train of abuses and usurpations of the British Crown that caused the Revolutionary War ( Declaration of Independence ). I also know that the Constitution was drafted by the Constitutional Convention in 1787 after the Articles of Confederation had proven woefully inadequate. Naturally, I am aware that the Constitution, as the countrys supreme law, relates to me directly. Yet discussing what either of them means for any contemporary American goes far beyond the analysis of the documents themselves, as the Constitution and the Declaration are the cornerstones of American national mythology. This is what makes it more difficult and yet more interesting to reflect on what they mean to me: the contemplation is not about two documents, but about two building blocks of American identity.
As for me, the most meaningful thing about the Declaration of Independence is its adherence to the principle of equality. The first words of its second paragraph are probably the most important ones in the entire document: We hold these truths to be self-evident that all men are created equal ( Declaration of Independence ). The gendered language of this preamble will likely appear limiting and discriminatory to a contemporary observer. However, it does not detract from the fact that, when outlining their cause for the world to see, the patriots based it on the assumption of equality and unalienable rights. For me, the Declaration is the manifestation of this wholly American idea: people have rights that no one should be able to take away, and people are equally entitled to these rights.
Yet proclaiming a principle, however noble, is one thing, and implementing it is something else entirely. Throughout more than two centuries of its existence, the US Constitution has gradually approached the idea of equality outlined in the Declarations preamble. Step by step, it overcame racial barriers toward social and political rights in the 15th Amendment and gender barriers in the 19th Amendment ( Constitution of the United States ). While the road to equality was by no means easy or straightforward, the Constitution codified the progression on this path. For me, the Constitution is, first and foremost, the necessary complement to the core values of the Declaration: the notions of equality and irrevocable rights. These ideas lie at the core of American identity as I understand and experience it in no small degree due to these two documents.
There is still much more to the importance of the Declaration or the Constitution apart from shaping American identity, they also influence how the people speak. Whenever a group seeks to make a case against the perceived violation of its rights, it is likely to mimic the Declarations language. The most notable example would be the Declaration of Sentiments signed by the womens rights convention that took place at Seneca Falls in 1848. The first paragraph repeats that of the Declaration of Independence almost word by word, and the second starts with the premise that all men and women are created equal ( Declaration of Sentiments ). I think this is one of the greatest things about the Declaration of Independence: it is so central to American political culture that people inevitably use its wording when discussing important political matters.
The Constitution also influenced the way people talk in the US and they invoke it much more often than the Declaration. When someone feels their rights and liberties are threatened, they will likely say that the threat is unconstitutional. The first ten amendments, collectively known as the Bill of Rights, indeed, outline many liberties, from the freedom of speech to the states rights ( Constitution of the United States ). Yet, for me, the habit of labeling perceived injustices as unconstitutional is more than merely a legal statement rather, it is an important unstated assumption about the Constitution. While understanding that no law can be perfect, Americans me included still trust their Constitution to be fundamentally just and view it as a main line of defense against the violations of their freedoms.
As one can see, the Declaration of Independence and the US Constitution mean many things for me. On the one hand, they are the cornerstone of American identity and the twofold representation of this nations core values: equality and protection of rights. On the other hand, they define the language the people speak whether in political statements or in everyday discussions of perceived injustice.
I found Beards interpretation of the Constitution surprising yet thoughtful and interesting. I cannot fully agree that the Constitution is not an ideological but a completely economic document; however, I support many of Beards points. For instance, Beard noticed many individual connections between the people who were creating the Constitution and certain regulations. The Constitution seems to only have followed the desires and aims of these 55 men. It is important to note that 40 of these people had some valuable property when they entered the Constitutional Convention. This fact already makes me believe that the economic perspective must have been one of the most important (if not the most important) angle when working on the Constitution.
This is supported by the shocking fact that four major groups were completely disregarded in the process of negotiation of the Constitution. Women, black people, indentured servants, and people who did not own property were missing from the Constitutional Convention. This means that the Constitution was not created by people of the US instead, it was written by a small group who established a set of rules for their own benefit. Beard, as well as many other historians, realizes that any historical process is shaped by clashes in society and between people. Particularly, there is always a great tension between the rich and the poor. This is what was happening during the formation of the Constitution rich people did everything for their own benefit, completely disregarding the needs of the less wealthy. It is also important to take into account corporate capitalism which was prospering at the time. Following its principles, the 40 framers with valuable property had a motive to come up with a document which could help them gain more resources and occupy more land.
The primary aim of the Constitution was to unite the nation and create a number of regulations suitable for all kinds of people, which is why the framers tried to reach compromises in every question. However, some decisions were rather confusing with most remarkable example being the one about slave trade. This issue was significant at the time as most of the country was still accepting slavery. The framers could not decide whether to count slaves as property or as citizens. Thus, they developed a solution known as three-fifth compromise, which established that one slave was going to be counted as three-fifth of a person. Judging from a nowadays perspective, this decision seems to be a severe human rights violation. I think it is extremely hard for the black race to recover from the fact that they were once counted as only a third of a person.
However, this is not the most confusing part. The framers decided to count slaves as people, and they established that they will tax them. Nevertheless, they determined that fugitive slaves had to be brought back to their owners which means counting slaves as property. Thus, it is safe to say that the compromise was not reached. Subsequently, institution of slavery prospered, and it is important to note that most of the framers had a personal interest in the issue as they were slave owners. Once again, this justifies Beards claim that the Constitution is an economic document. The framers of it were driven by material forces and the usage of the document ensured the protection of the assets of those parts of the society which were represented in the convention.
Except from many questionable regulations, the process of creating the Constitution raises many concerns. First of all, nobody ever voted to call the convention. It was an initiative of the men who, after the creation of the document, directly benefited from implementation of the new set of laws. Second, what came as quite a shock to me was the fact that less than one-sixth of men voted in the process of ratification of the Constitution. In general, the voting process was confusing as if the framers did not care to ask people from different states their opinion on the new document. This fact proves that the framers had their personal intentions which they strived very hard to accomplish.
These major problems that were brought about by the approving of the Constitution are reflected in the contemporary world up until now, as there are still issues with establishing and protecting the rights of black people and women. Many movements, such as #MeToo or Black Lives Matter support my claim. The Constitution was created 233 years ago, yet different movements appear today, signifying that the problem has not been solved since 1787. The unfortunate compromises are mirrored in the statistics between white and black people to this day. For example, African Americans still occupy fewer working places, they earn less, and the crime rate among Afro-Americans is higher than among white people.
In conclusion, Beards thesis confirms that there has always been a class division in the US and the power elite has always implemented the policies they wanted. I think Beard destroyed the illusion the Founding Fathers were trying to create that the Constitution was made for the sake of peace and equality, and that new regulations would have benefited all. Instead, rich people became richer and poor people remained not represented, suppressed, and, subsequently, got poorer.