John Locke, an influential Enlightenment thinker, played a significant role in shaping the political philosophy behind the United States Constitution. His ideas on natural rights, social contract, and limited government had a profound impact on the framers of the Constitution, laying the foundation for the principles and structure of the American system of government. This essay critically examines the influence of John Locke’s political theories on the Constitution, highlighting both the strengths and limitations of his ideas in relation to the formation and interpretation of the Constitution.
Body:
Natural Rights:
John Locke’s concept of natural rights, including life, liberty, and property, greatly influenced the framers of the Constitution. The idea that individuals possess inherent rights that cannot be infringed upon by the government is reflected in the Constitution’s Bill of Rights, which guarantees fundamental freedoms and protections to citizens. Locke’s emphasis on the protection of individual rights aligns with the Constitution’s commitment to safeguarding individual liberties. However, critics argue that Locke’s narrow focus on property rights may not fully capture the broader range of rights enshrined in the Constitution, such as freedom of speech, religion, and due process.
Social Contract:
Locke’s theory of the social contract posits that government derives its legitimacy from the consent of the governed. This idea influenced the framers’ belief in popular sovereignty and the principle that the government should serve the interests of the people. The Constitution, with its emphasis on representative democracy and the separation of powers, reflects this notion of a social contract between the government and the people. However, some critics argue that the Constitution falls short in fully embodying a true social contract, as it was drafted primarily by an elite group of white, wealthy men and did not initially grant equal rights and representation to all segments of society.
Limited Government:
Locke advocated for a limited government that operates within defined boundaries and respects the rights of individuals. This principle is evident in the Constitution’s establishment of a system of checks and balances, dividing powers among the executive, legislative, and judicial branches to prevent any one branch from becoming too powerful. Locke’s emphasis on limited government aims to protect individuals from potential tyranny. However, critics argue that the Constitution’s interpretation and application of limited government have been subject to debate and evolving understandings over time. Some believe that the expansion of federal power and the potential for abuse have challenged the original intent of limited government.
Property Rights and Economic Influence:
Locke’s emphasis on property rights and the importance of private ownership had a lasting impact on the economic aspects of the Constitution. The protection of property rights is reflected in the Constitution’s provisions regarding contract enforcement and the protection of intellectual property. However, critics contend that this focus on property rights can lead to inequalities and neglect other important social and economic issues, such as wealth distribution and social justice.
Conclusion:
John Locke’s political theories had a profound influence on the framers of the United States Constitution. His ideas on natural rights, social contract, and limited government shaped the foundation of American democracy. While Locke’s theories provide a valuable framework for understanding the Constitution’s principles, it is important to critically analyze their limitations and consider the evolving interpretation and application of the Constitution over time. By engaging in a critical examination of Locke’s ideas in relation to the Constitution, we can gain a deeper understanding of the strengths and weaknesses of both and foster ongoing discussions about the role of government, individual rights, and the pursuit of a just society.
Popular sovereignty is a fundamental principle embedded in the United States Constitution that establishes the power and authority of the government as deriving from the consent of the governed. This informative essay explores the concept of popular sovereignty in the Constitution, its significance, and its impact on democratic governance.
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Definition and Meaning:
Popular sovereignty refers to the idea that ultimate political power resides with the people. It is the belief that the government’s authority is derived from and subject to the will of the people. The Constitution establishes this principle by entrusting the power to make decisions and govern to the citizens through their elected representatives.
Influence of the Enlightenment:
The concept of popular sovereignty can be traced back to the Enlightenment period, which emphasized individual rights, reason, and the pursuit of the common good. Enlightenment thinkers like John Locke and Jean-Jacques Rousseau advocated for the idea that political power should be vested in the people. Their ideas influenced the framers of the Constitution and played a significant role in the inclusion of popular sovereignty as a core principle.
Representation and Elections:
The Constitution establishes a representative democracy, whereby the people exercise their sovereignty through the election of public officials. Through regular elections, citizens have the power to choose their representatives at various levels of government, from local to national. These elected officials are accountable to the people and are entrusted with the responsibility of making decisions and enacting policies on behalf of the public.
Amendments and Constitutional Interpretation:
Another manifestation of popular sovereignty in the Constitution is the provision for amendments. The Constitution can be amended through a deliberate and democratic process, allowing for changes to reflect the evolving will of the people. This mechanism ensures that the Constitution remains a living document, responsive to the needs and aspirations of the citizens.
Balancing Popular Will and Minority Rights:
While popular sovereignty places importance on the will of the majority, the Constitution also upholds the rights and protections of minority groups. The Constitution includes safeguards, such as the Bill of Rights, which protects individual liberties and prevents the tyranny of the majority. This balance between majority rule and minority rights is a critical aspect of democratic governance and reflects the commitment to inclusivity and equal protection under the law.
Conclusion:
Popular sovereignty is a foundational principle of the United States Constitution, emphasizing the power and authority of the government derived from the consent of the governed. Through elections, representation, and the provision for amendments, the Constitution ensures that the voice and will of the people are at the core of democratic governance. The concept of popular sovereignty reflects the democratic ideals and principles upon which the United States was founded and continues to guide the nation’s political system to this day.
When it comes to discussing what prompts people to behave in one way or another, it is crucially important to understand that, in order for them to be able to effectively interact with the surrounding environment; they must act as socially integrated beings. This is the reason why, as sociologists and psychologists are well aware of, it is in the very nature of the representatives of Homo Sapiens species to seek the affiliation with mind-likes.
By being the part of a group, consisted of people who share the same set of existential values, a particular individual is able to increase its chances to advance in life. Nevertheless, it is namely the specifics of people’s genetic constitution, which define the qualitative subtleties of their longing to become the part of a collective. In my paper, I will explore the validity of this statement at length, in regards to the documentaries People like us: Social class in America (Cnam2000, 2009) and The Devil’s playground (Lasrever, 2008).
Analytical part
The foremost idea that is being promoted throughout the video People like us: social class in America is that, despite its adherence to the principle of a social egalitarianism, American society continues to remain strongly stratified along the lines of class.
American citizens that belong to the upper class are the ones able to enjoy their lives to the fullest, while being in charge of designing this country’s domestic and foreign policies. On the other hand, those citizens that happened to be affiliated with lower social classes, do not merely experience a hard time, while trying to attain a societal prominence, but very often suffer from malnutrition.
Nevertheless, even though that the film’s creators deliberately withdrew from advocating their personal point of view, as to what causes Americans to remain socially stratified, People like us: Social class in America does contain a number of insights, as what should be considered the dialectical preconditions for people to strive to emphasize their affiliation with a particular social class. These insights can be outlined as follows:
a) There is a very little rationale in referring to the phenomenon of class-stratification within the American society, as solely the consequence of the national wealth being unequally distributed among the country’s citizens. For example, there is a memorable scene in the documentary, where a sloppy dressed man with a beer-can in his hands, expounds on how proud he is to belong to the ‘redneck nation’.
After having been asked whether he would consider changing his lifestyle of a ‘redneck’, if he was able to afford it, the interviewed person provided a negative response.
b) One’s financial riches do not automatically allow the concerned individual to become the part of a ‘high society’. As it appears from the video, the representatives of social elites apply a great effort into guarding their societal privileges, to which they are being entitled by the very fact of their belonging to the country’s ‘top class’.
This is being reflected by these people’s tendencies to regard the so-called ‘self-made’ individuals with a suspicion. As one of the interviewed persons noted; whereas, one’s wealthiness may be purely accidental; there is nothing accidental about the concerned individual’s ability to maintain it. In other words, in order for a particular rich individual to be admitted to the ‘club’, he or she would have to prove the sincereness of its commitment to the existential values, shared by the ‘club’s’ other members.
c) It is in people’s very nature to strive to accentuate their superiority. As it was implied in the video, people’s foremost priority in life can be well considered their genetically predetermined tendency to seek the confirmation of their existential worth. This is the reason why the people’s sense of greed knows no limits – the richer a particular individual happened to be, the higher is his or her likelihood to think of itself, as such that experiences the acute ‘shortage’ of money.
This, of course, deems the egalitarianism-promoting political ideologies conceptually fallacious – being nothing but hairless primates, in the biological sense of this word, people are naturally driven towards securing their ‘environmental niche’ in life, at the expense of depriving their competitors of the same opportunity.
This is the reason why parents strive to convince their children to pursue ‘prestigious’ professional careers (such as the career of a lawyer, for example) – these careers provide their affiliates with the opportunity to generate disproportionally large amounts of money, while applying a disproportionally small effort. Ideally, just about everyone dreams of not having to work at all, without experiencing any shortage of financial means.
This once again confirms the validity of the evolutionary theory, according to which people evolved from apes. After all, in the societies of primates, alpha-males have only one social ‘duty’ – to enjoy themselves in just about any way they choose to, in times free from imposing their dominance upon females and weaker males.
Just as it happened to be the case with the earlier mentioned documentary, the main theme of The Devil’s playground, concerned with exposing the lifestyle of Amish Christians, can be well discussed within the context of how it promotes the idea that people are naturally inclined to seek the sensation of ‘belongingness’.
Therefore, this film can be referred to as being ‘sociologically insightful’, as well, because after having watched it, viewers would be likely to come to the following set of conclusions, in regards to both: the very nature of a religious belief, as ‘thing in itself’, and this belief’s societal implications:
a) The more a particular individual happened to be religious, the more there are absurdist overtones to his or her existential stance. As it was shown in the documentary, Amish believers make a deliberate point in not taking a practical advantage of modern technologies. For example, they do not watch television. Instead of using cars, as the mean of transportation, they use horse-drawn carriages. The Amish justify such their lifestyle by referring to the Bible, in which Jesus prescribed true Christians to practice a ‘simple living’.
This points out to the fact that it is in the very nature of just about any monotheistic religion to strive to slow down the pace of a socio-cultural and technological progress. The reason for this is apparent – while being incapable of helping people to address the challenges of a contemporary living, religion has no other option but to try undermining the discursive soundness of what does provide people with the immediately felt life-enhancing benefits – science.
Given the fact that the U.S. is considered one of the most scientifically advanced countries in the world (which explains the high standards of living in this country), Amish believers could not think of anything better than secluding themselves within the communities of mind-likes, and proceeding to live as if they were ‘petrified’ in time.
b) Contrary to what it is being commonly assumed, one’s strongly religious upbringing creates objective preconditions for the concerned individual to end up choosing in favor of a strongly anti-social behavioral mode. According to the Amish tradition, after having reached the age of 16, the community’s teenagers (born and raised among the Amish) are allowed to travel to the ‘English’ world and to try what it is like living without having ‘God’ standing behind their backs 24/7.
Predictably enough, the majority of these teenagers end up being hooked on alcohol and drugs – while unaccustomed to the ways of the real world, these youngsters do not fully realize the actual implications of a drug/alcohol abuse.
This can also be explained by the fact that, while living in the Amish community, young people are forced to suppress their sexual desires. Therefore, when ‘out on the loose’, they naturally tend to act in the ‘hyper-sexual’ manner – alcohol and drugs come in particularly handy, in this respect.
Consequently, this eventually leads many of them to decide in favor of returning back to the Amish community and giving up on secular lifestyles, as ‘innately wicked’. In other words, the Amish community’s continual functioning is ‘fueled’ by the destroyed lives of young people, who were unfortunate enough to be born in the families of the perceptually arrogant Bible-thumpers.
c) One’s conscious choice plays an insignificant role, within the context of how he or she decides to affiliate itself with a particular group of people. As it was shown in the video, the Amish intentionally allow their teenagers to savor the taste of a secular life.
This is because; the community leaders want to rule out the possibility for ‘unfit’ individuals to be able to join the Church. The extent of one’s ‘fitness’ in this respect, is being evaluated in regards to the tested individual’s ability to remain arrogant, as to the fact that the Amish are nothing short of degenerates, in both: physiological and psychological senses of this word.
In its turn, this explains why the physical appearance of the interviewed young members of the Church (those that decided to return to the Amish community), bears the strongly defined marks of an anthropological atavism – bulging eyes, low foreheads, bad teeth and skin. This, of course, suggests that one’s willingness to join the Amish community is rather genetically then environmentally predetermined.
Conclusion
The earlier discussed documentaries confirm the validity of the suggestion that, in order for sociology to remain a discursively legitimate social science, its methodological apparatus must be observant of what are the biological determinants of people’s affiliation with a particular social group/organization/religion.
The reason for this is apparent – in light of recent discoveries in the fields of genetics and sociobiology, the qualitative aspects of how people go about addressing life-challenges, reflected by their socialization-related tendencies, appear to be genetically prearranged. As Dawkins noted: “We are all survival machines for the same kind of replicator – molecules called DNA” (21).
There are no ‘good’ or ‘bad’ genes, but only the ones that succeed in ensuring the survival of its replicas, and the ones that do not. Given the fact that genes have long ago been confirmed to define just about all the qualitative aspects of one’s behavior, there is nothing particularly odd about the fact that people are being naturally driven to socialize with those, whose their sub-consciousness deems genetically similar – even if this is far from being the actual case.
This is because, while in the company of mind-likes, people are more likely to predict the behavior of other group-members, with which they may end up competing for the same resource. In its turn, this explains why, as it was shown in People like us: Social class in America, those considered ‘old money’ do not seem to tolerate ‘new money’ people, while often denying them the prospect of being accepted socially.
The same thesis can be applied, when it comes to explaining the socialization-related tendencies, on the part of ‘rednecks’. Apparently, these people’s very genes ‘tell’ them that there is nothing purely accidental about their low social status, and that they would be much more likely to succeed in ‘spreading the seed’, while remaining within the boundaries of their class.
After all, the hypothetical attempt to attain a social prominence, on the part of a ‘redneck’, would be automatically perceived by the rich and powerful, as a threat to their own well-being – hence, potentially causing the latter to consider killing the newly emerged competitor.
This also explains why, as it was implied in The Devil’s playground, in order for people to be qualified to join the Amish community, they should not be merely familiar with the Biblical fables and emotionally comfortable with the community’s rules, but they in fact must be arrogant enough to think of these fables, as such that represent an undisputed truth-value.
Allegorically speaking, one’s de facto legibility to join the Amish Church is being reflective of the concerned individual’s endowment with the ‘gene of stupidity’. I believe that this conclusion correlates with the paper’s initial thesis.
Thomas Jefferson was elected as the president and took the oath of office as the third president of the US in 1801. He served for a two year term and retired in 1809. Before taking up the presidency, Jefferson had an active role in constitution making, and the drafting of the declaration of independence in 1776. The important nature of the Declaration of Independence cannot be overstated; it was through the statement that the 13 colonies in America declared their independence from the British Empire (Jewett 15).
Since its creation by Thomas Jefferson and other committee members appointed to the second continental Congress on July 1776, the declaration has been upheld by Americans as the single most important representation of what the United States should be (The charters of Freedom 46).
Although the statement underwent some editing where clauses regarding slaves were omitted much to be chagrin of Jefferson, approximately sixty percent of what he had written was retained (Henreta & Brody 153). A renowned author, lawyer and orator, Jefferson is credited with penning down the Declaration of independence which acts as a commitment by the government to respect democracy and give equal rights to all people.
This paper is of the opinion that inclusion of clauses on human rights and independence in a statement that was mainly meant to communicate the sovereignty of states. Jefferson perhaps understood more about society and development than most of his colleagues in the continental Congress did. A slave owner himself, his denunciation of slave trade must have come as a surprise to many.
However, considering that the first sentence in the declaration declared that “all men are created equal, they are endowed with certain inalienable rights, which include life, liberty and the right to pursue happiness” (Jewett 16), it is clear that may be Jefferson had realized the way to develop the entire society was to give everyone their inalienable rights regardless of their race, color or gender. Decades later, history proved that Jefferson was indeed right.
Jefferson further stated in categorical terms that governments are instated among people, and delivers powers from the same people (Hancock 3). As such, he stated that the people had the mandate to alter or overthrow a government which did not serve the good of the people and put a new government in the former’s place. To this day, this concept that a government must serve the interest of the electorate forms the basis of American democracy.
Fifty years after the declaration of Independence in 1825, Jefferson sought to minimize the level of political philosophy attached to the wording of the declaration. In a letter written to Henry Lee, he described the declaration as a plain appeal to the world, appealing the world’s assent to the independent stand that America had taken.
Jefferson further stated that the authority of the declaration of Independence lay on harmonized sentiments by people, which could be through the spoken word, written word or in philosophy. More so, he said the declaration was intended to be an honest expression of the way Americans thought at the time (Washington 75).
Conclusion
The Declaration of Independence remains as one of the important founding documents in the US history. Although it’s largely overshadowed by the constitution, it has served as an important resource for movements through out America’s history. Such include the universal suffrage movement, women rights movement, abolition of slavery movements and civil rights movements.
The declaration of independence influence on the 13th and 14th amendments, which banned slavery and consequently gave equal rights to former slaves, is also apparent, as is it influenced on the bill of rights which was later drafted by James Madison (The charters of Freedom 46).
Terrorism creates imbalances in the federal law. In the State’s judicial system, Supreme Court is the arbiter of the law. Hence settling disharmonizations, contradictions and inconsistencies are the mandate of Supreme Court.
In practice, this means that such issues are never resolved while others are held for years. Checks and balances in the constitutions belong to these complications (Scheppler 28). As a result, the state always finds itself in conflict among the three branches of the government.
At times, costs of these checks and balances are weighed in consternation and confusion against capricious and arbiter dictates with signs of permanent solutions. Currently the federal government is facing a lot of conflict among the executive, legislative and judicial systems.
The major causes of these contradictions include: The 1996 Health Insurance Portability and Accountability Act [HIPAA], the Financial Services Modernization Act [FSMA] enacted in 1999, the Homeland Security Act enacted in 2002, information-sharing, national security, antiterrorist legislation such as the USA-PATRIOT Act of 2001 and the Homeland Security Act enacted in 2002. Finally, there is the Family Educational Rights and Privacy Act [FERPA] of 1974 legislation.
In any democratic administration, the legislature passes laws that ensure individual’s privacy on information regarding medical care, education and finance questions which is protected by the judicial system. In contrarily, the federal government executive after 9/11 attack has fought against the legislature and the judiciary in a move to counter terrorism. The legislation body has been made to amend laws that allow collection of information by the executive.
This is carried out through cancellation of private bodies that were used to surrender information on requests. They have also expanded their investigation purview. Nevertheless, some people from the Information Technology sector and high education have joined hands with several other bodies to seek judicial redress on these contradictory legislative imperatives.
As a result, constitutional conflicts have risen between the legislature, executive and the justice system over the national security under Homeland Security and USA-PATRIOT. While the executive uses national security to maximize its security operations it violets the legislative privacy rights of institutions and citizens.
Constitutionally, citizens are entitled to confidentiality up to some levels. Nevertheless, the executive has found it very limiting to operate within the limits provided by judiciary, hence it pushed for the enactments of USA-PATRIOT and Homeland Security amendments (Scheppler 23).
Introduction
Under HIPAA, FERPA and FSMA, the judiciary protects citizen’s privacy as provided by the law. The arms of government recently are conflicting with each other as shown by example from FERPA operations. However, FERPA is closely tied to HIPAA through similar student and medical records policies.
Additionally, financial data from FSMA also works under the policies as FERPA and HIPAA. Executive moves towards handling students’ data are a practical picture on how all the branches of governments are ride against each other (Allen 56).
According to the constitution, FERPA is charged with ensuring maximum data security both non-electronics and electronic with enhanced standards of availability and confidentiality. The legislature expectations are that the executive body should provide these centers with backups through intuitional supports. The executive government can aid these bodies to software and hardware investments and also skilled employees’ provisions (Albrecht and McIntyre 115).
However, the first executive move was the enactment of Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA-PTRIOT Act) under the national security with powers beyond constitutional mandate. Since the September 11th attack, the government has created several amendments mostly under Homeland security aiming to eradicate and curb further terror threats.
Coincidentally, some of the amendments especially under the USA-PATRIOT have brought several legislative and judicial conflicts. Civil privacy legislation has been the most violated by the USA-PATRIOT Act steered by the executive. This paper analyses some of the conflicts that have occurred under national security amendments. The paper focuses on the conflicts that have arisen between USA-PATRIOT Act and PEFRA as one of the organs that have been affected under legislative rights (Levmore and Nussbaum 87).
National Security Legislation
Contrary to the expectations, the national security legislation moves in a different direction to civil legislation. Acts such as Homeland Security Act and Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (the USA-PATRIOT Act) were amended to enhance sharing of information by private bodies to the executive. This was to be carried out through enhanced surveillance, creation of efficiency in intra governmental information sharing and strengthening the criminal law in a move to curb terrorism (Henning 41).
Notably, Homeland Security Act has impacted on Civil Privacy Legislation in two major parts. The first is the Student and Exchange Visitor Information System (SEVIS) and also Naturalization Service. Secondly, Homeland Security actions over computer abuse, which causes harm through any mode such as hacking. Consequently, the executive surveillance through USA-PATRIOT Act is directed heavily over research, scholarship, higher education Information Technology resources and libraries (Scheppler 25).
The PATRIOT Act after amendments
On the FERPA health and safety exception, the USA – PATRIOT has additional terrorism exception. This has brought a lot of new dimensions to FERPA. Under FERPA, the law allows students’ privacy to be breached only for safety measures, such as searching email or Facebook for clues for a missing student by police.
After US-PATRIOT amendments, FERPA regulations can be neglected by the executive officers under claim of a terrorist investigation. In such cases, the amendments conflict with FERPA legislation while the judicial system is put in cross road between protecting the constitution and the executive powers (Levmore and Nussbaum 123).
Domestic terrorism is related to acts that violate human criminal law of a state or the United States and is dangerous to human life. The intension of such an act might appear to coerce or intimidate people, influence government policies, and affect government conduct through assassination, mass destruction and kidnapping within the State. The term ‘appear’ contradicts criminal law level of requisite.
After the executive intervention for the amendments, the expanded USA-PATRIOT domestic terrorism meaning is so wide that executive officers can easily infiltrate into FERPA legislations. The trend shows that students have very little or no privacy because their custodians might be required to disclose such information and terrorism related claims. In such a case, the custodians lack the legal backup and cannot turn to the justice offices for defense (Albrecht and McIntyre 81).
Foreign Intelligence Surveillance Act (FISA) of 1978 is the most affected act in USA-PATRIOT Act. FISA has been through several transitions in ensuring that terrorism activities are under control. Such requests are taken to the FISA court where the proceedings are hidden from the public. This is seen as a violation of the legislative system in a way. Recently, FISA Court ruled favoring the new standards and removed the Justice Department laws and practices, which generated the Chinese wall.
This created a separation of garden criminals and foreign investigation intelligence. After the amendment, there has been no clear divide between criminal and terrorist prosecution and investigation powers. The expected result is power collision at some point between the judiciary and the legislature (Albrecht and McIntyre 81).
Concerns have raised over some of these FISA amendments by different bodies. The library community, for example, raises alarm over section 501 of the business records. The FISA amendment in this section is that financial institutions will have no financial loses when their records are exposed to the executive body such as under FSMA.
This contradicts the fair information sharing privacy legislation and does not allow sharing of such information. Additionally, the legislation does not require institutions to have such information (Scheppler 33).
University and College counsel hence are sandwiched between two federal bodies, the legislature and the executive. While FISA amendment might require financial information from the counsels, FSMA will require a document validating such disclosure before ruling over its appropriateness. The counsels hence are under pressure to move against the law and keep records of such transactions.
Additionally, high confidentiality should be ensured by all the involved parties in such transactions. FSMA also is charged to update its documents and protocols under which such information discloser will be considered valid and invalid, however, this is not supported by the executive system as it seeks to ultimate power during its operations (FSMA 9).
Electronic Communications Privacy Act has undergone three amendments by USA-PATRIOT. There is an amendment on the emergency disclosures, computer trespasses for the sake judicial system and disclosure according to the executive powers.
Electronic operators have the right to disclose information to relevant authorities pertaining to death or injury to a person. Required discloser (rubber stamp subpoenas), however, is controversial the constitution. It requires no judicial injunction or Fourth Amendment but allows law enforces a lot of content or information (Henning 76).
Constitutional concerns arise over this amendment on the distinctions between electronic communication and telephonic conversational details. In the amendment, telephonic details without content are allowed by lesser Fourth Amendment and its standards to the third parties and the executive. At the same time, similar conversations on electronics such as internet, reveal some content through Protocol address mode in websites.
While drafting the amendments, either that the framers were not versed with electronic communication or under the influence of executive machinery. Civil libertarians are especially concerned with this amendment atop the antiterrorism amendments. In higher education, this debate has raised the greatest impact among counselors and data management team (Lock 67).
Computer operators are allowed under the trespass amendment, to report incidences of hacking and any other unauthorized computer entry into their system to the law enforcers with no regards to ECPA discloser liability. The amendments as well generate some conflicting ideas to the judiciary.
The first question in regard to the limits such as incidences should be reported as they frequently happen. Presently, there are no thresholds of reporting such cases clarified by the amendment. The next question is whether limit investigations can be controlled or countered once they start (Levmore and Nussbaum 118).
The provision of the amendment states that the right to privacy does not exist. In such a case, the power of the judiciary and the legislature is questionable as scholars interpret this as a direct attack on the Bill of Right in one way or another. It is also a matter of concern that this provision has no terrorism concerns on it.
This can imply that even before 9/11 the office of attorney had this provision in its waiting list. USA-PATRIOT Act hence was simply used as a vehicle for its enactment. The traditional Fourth Amendment protection’s legislative power is crumbled by this provision since the penalty for alleged perpetrators moves direct to capital punishment. The question left is whether the amendment was aimed at withdrawing the Fourth Amendment in the respect (Lock 38).
In normal senses, civil legislation of HIPAA, FSMA and FERPA should be the governing rule. On the other hand, national security, antiterrorism and sharing information through Homeland Security and USA-PATRIOT Acts are supposed to be exceptions. The deviations of USA-PATRIOT Act raise concerns of the possible swallowing of the legal privacy rule among constitutional scholars.
The resultant tensions between the legal structures cause apprehension among many citizens over overall privacy diminution. The impact is felt whether the causes are based on social norms, nature of information technologies or changes in the legal system (HIPAA 7).
The tension between national security and electronic security is an example of confusions arising between the judiciary and the executive. Intersections can be seen in the appropriation bills on cybersecurity research. The 2002 Cybersecurity Research and Development Act authorized a five years program worth nine hundred and three million dollars for ensuring that the states’ vigilance and ability to counter terrorism mechanism are enhanced on public and private computers.
Merging of the two wings can also be seen in the Research and Education Networking Information Sharing and Analysis Center (REN-ISAC). This body supports a research community by the provision of research aid and higher education through advanced security provision (Kimbrough and Bequette 112).
The synergies created by national security and electronic security should not, however, be synonymous. HIPAA, FERPA and FSMA share the goal of maintaining maximum privacy on their information. Hence, security is a need for such a privacy to exist. However, the security should be in a way that is consistent with the constitutional and judicial expectations. The USA-PATRIOT creates security only by ensuring information flow in a one way from owners to the executive.
It is clear that security concerns raised by the amendments have breached the privacy legislations. After 9/11, executive office requested verbally education records and several institutions responded. This was a direct violation of FERPA legislations and the judicial system at large. PEFRA responded by creating exception based on legal documents from the constitution as safeguarding tool against executive moves.
HIPAA and FSMA have not faced direct confrontation to determine how much they have been affected, but it is believed that the USA-PATRIOT Act has a fair chance to diminish their legislation and judicial pillars. This is based on the constant elimination of private sector liabilities and lowering of constitutional standards by the executive (FSMA 11).
Since the selected agents system was introduces under USA-PATRIOT Act, lowering in scales of academic research has been noticed. In Cornell University, for example, in the past there were eighty three projects for their agents selections, today only three projects are remaining after the USA-PATRIOT Act. Since naturalization and immigration laws were brought under Homeland Security Office, many foreign students have had delays in their projects and some have faced complete suspensions.
Of late, many academic bodies are unable to enter United States for their consultations, conferences and collaborations programs. Consequently, American higher education is constantly becoming more isolated and unwelcoming environment for inquiries and research. This has changed its twentieth century pillars of strong and vibrant academic ground (Lock 58).
Privacy is aimed at creating an all rounded autonomous and responsible citizen under a democratic government. When it has been withdrawn, most people are insecure and left with no responsibility in building their national trust. However, in the federal government the rights of individuals have been intertwined with the rights of the state. It can then be perceived that the principle of privacy underwrites the autonomy of institutions of higher education as separate bodies in United States from the market and the government.
While higher education is actively supposed to join the fight against terrorism under national security, there should be a line of distinction. National security should not override electronic security. On the other hand, academic researches should not be treated by national security as bioterrorism. Territorial protection should not be a barrier to students learning or exchange programs (Kimbrough and Bequette 87).
Universities and colleges should have the power to withhold their information from the executive unless under well-presented judicial papers. Such transactions should be documented for future references in case of further violation of privacy legislation. The parties involved must be forsworn to maintain and sustain the legislation of privacy. Supports from other bodies to the higher education are critical at this time.
Bodies such as American Association of Universities (AUU) and the American Association of University Professors (AAUP) need to put more pressure over Homeland Security Offices and Education Department.
Such pressures should be aimed at addressing the impact of the created restrictions and allow a collaborative research aimed at finding a constitutional harmony. Without proper address, USA-PATRIOT Acts will end up violating the privacy legislation to a point that citizens and institutions become both insecure under the State’s legal jurisdiction (Scheppler 27).
Conclusion
Security concerns have raised several conflict among the legislature, executive and judiciary. The controversies have resulted from the move by the executive to manage terrorism. The result has been a conflict, over the 1996 Health Insurance Portability and Accountability Act [HIPAA], the Financial Services Modernization Act [FSMA] enacted in 1999, the Homeland Security Act enacted in 2002, national security, information-sharing and antiterrorist legislation such as the USA-PATRIOT Act of 2001 and the Homeland Security Act enacted in 2002.
There is also the Family Educational Rights and Privacy Act [FERPA] of 1974. Most of these conflicts are in respect to civil privacy right. Following the amendments, FERPA has received a more direct impact from the executive influences.
As a result, privacy of an individual and institutions over issues such as record correction, relevancy, transparency, maintaining data disclosure and provision of FERPA legislative powers has been lowered. This has brought a lot of constitutional scholars and civil stakeholders fight for creation of governmental balances and checks.
Works Cited
Albrecht, Katherine and Liz McIntyre. Spychips: How Major Corporations and Government Plan to Track Your Every Move with RFID. Nashville Tenn: Nelson Current, 2005. Print.
Allen, Anita. Unpopular Privacy: What Must We Hide? New York: Oxford University Press, 2011. Print.
FSMA. Market Abuse Regime: A Review of the Sunset Clauses. London: HM Treasury, 2008. Print.
Henning, Anna. Government Collection of Private Information: Background and Issues Related to the USA PATRIOT Act Reauthorization. New York: DIANE Publishing, 2010. Print.
Levmore, Saul, and Martha Craven Nussbaum. The Offensive Internet: Speech, Privacy, and Reputation, Cambridge: Harvard University Press, 2010. Print.
Lock, Johnson. Bombs, Bugs, Drugs and Thugs: Intelligence and America’s Quest for Security, New York: New York University Press, 2000. Print.
Sanchez, Jessica S., Bonnie Boulanger, C. Alexa Abowitz, Janet L. Bledsoe, Jo Ellen Carson, Kathleen M. Dwyer, Peter F. Carr, and Phillip J. Trobaugh. Lawfully Managing Student Records without Violating Privacy Rights, New York: National Business Institute, 2006. Print.
Scheppler, Bill. The USA Patriot Act: Antiterror Legislation in Response to 9/11.New York: Rosen Publishing Group, 2005. Print.
United States. Congress. Senate. Special Committee on Aging. HIPAA. Medical Privacy and Transition Rules: Overkill or Overdue?: Hearing Before the Special Committee on Aging, United States Senate, One Hundred Eighth Congress, First session, Washington, DC, September 23, 2003. Washington: U.S. G.P.O, 2004. Print.
This article presents views against the US constitution as it was in 1787. The article focuses on the process through the constitution was enacted and its early status. The risks that the constitution posed to the general public are viewed.
Views against the US Constitution
The US constitution as it was back in 1787, as discussed by Breading et al. (1787), was a document which could lead the US into a path of tyrannical leadership. The constitution lacked counter checks on federal officials and bodies and thus gave them technically unlimited powers on what they could do.
It was open to manipulation of any kind unfortunately at the expense of the common people. It is also observed that it was not representative – a huge percentage of the populace was not guaranteed of representation of its views. The constitution even threatened the very existence of the states.
Lack of Counter Checks
The 1787 US constitution did not place a counter check mechanism on Congress. For instance, the powers that were vested in Congress were immense and left the body to check itself. It had an unlimited time of operation since the body was responsible for choosing the time for election of new members to Congress. It is also viewed that its legislative power could act as a precursor to greatly weaken the state governments.
Its judicial powers could engulf state judiciaries and this would be an act of consolidating all the states. It also had the mandate to levy taxes directly on the states. It can argued that this could act as a loophole for Congress to siphon resources from the states and there was a chance that this could be overdone leaving the state governments with no means of governance (Breading et al., 1787).
Unfair Representation
The representation of the people was deficient. It is necessary that the composition of a legislature has sufficient knowledge of the represented parts and is in good numerical numbers so that it can truly reveal the opinions and views of the represented populace. The 1787 constitution directed the number of House of Representatives members to be 65.
To form a quorum for discussion of government issues, 33 members were required. What this technically meant was that 17 members were the determinants. In the case of the senate, 14 members could make a quorum since the senate consisted of 26 members.
Out of the 14 senators making a quorum, 8 senators were enough to determine which decisions were to be made. This representation can be said to be unsafe for the vast area and millions of people represented (Breading et al., 1787).
Assigned Text
There are a number of things I disliked about the text assigned to me. First, the text was quite long – it almost took me two hours to read. Second, some of the words were not spelled well, for instance, the word control was written as controul. Third and last, the structuring of some of the sentences appeared to be a bit strange. Nevertheless, the text was quite comprehensive and covered the topic well.
Conclusion
The 1787 US constitution was not a good legislation for governance. It contained many loopholes which could easily plunge the US into a state of despair. In particular, Congress’ powers were unchecked and thus there was a wide room for abuse of power.
Reference
Breading, N., Smilie, J., Baird, R., Orth, A., John, H., Whitehill, J., … Lutz, N. (1787). The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents. Constitution Society. Web.
This paper is divided into two parts. Part one discusses ways in which the Watergate scandal challenged the constitution of the United States. To achieve this objective, the paper explains President Nixon’s acts which led to various arguments which had significant constitutional issues. Part two discusses the issue of federal system of government in the United States. This is done through elaborating on its history, how it is exercised and how it is evolving with time.
Constitutional challenges and the Watergate scandal
The beginning of Watergate scandal was marked by burglary activity at the “National Committee headquarters in June 1972” and it ended when Gerald Ford, the then president, forgave his predecessor, Richard Nixon, during the month of September 1974 (Cox 1). The whole process of Watergate outrage confronted the US laws in several ways.
Two significant issues were raised and they included president’s subjectivity to the legal procedure and the extent of his documents’ immunity (conferred by executive advantage) when undergoing investigations.
In the preliminary stages of the judicial process, Richard Nixon and his mentors denied any knowledge concerning the occurrence of the burglary activity. However, the cover-up was short-lived as some of the accused pledged guilty and informed that both the president and the White House had a prior knowledge of the criminal activity (Cummings and Wise 440).
This led to appointment of a specific prosecutor to facilitate the hearings. At his capacity, the prosecutor solicited for tapes recorded in the president’s office but Nixon dishonored the request.
The prosecutor continued to search for justice but Nixon tried to kick him out of office. However, his efforts were futile as the ‘attorney general’, Richard Kleindienst, the man in-charge of terminating prosecutor’s contract failed to do so and instead quit office. Another attorney general was appointed and refused to sack the prosecutor and resigned as well. However, the attorney general who was installed after the second one sacked the prosecutor and appointed another one.
These happenings brought up some issues regarding the constitution of the United States. At first, to what extent is the president of USA “subject to the rule of the law- to constitutional and other legal restrictions and obligations adjudicated by courts of law?”(Cox 1). According to the United States constitution, the courts have jurisdiction over individuals attached to the area where such courts are located.
So, a court has authority over all the individuals in its area of jurisdiction. However, Nixon’s acts challenged constitutionalism and tested people’s morality and political will to implement the laws of the land. The president is the chief executive of the country and he should act as a role model for others through respecting the rule of the law. Furthermore, the president must be treated by the law just like any other individual. However, in this case, Nixon tried to interfere with the judicial process right from the beginning.
The other issue questioned the president’s responsibility in providing evidence to the courts and the parliament when required to do so. At first, the president was unwilling to give the tapes although he finally accepted, but, what if he completely denied access to them? Also, the level to which the president is shielded by executive advantage against such interrogations may be questioned although he has to act in the best interest for the nation (Cox 1).
Such issues made people to seek clarification on the nature of presidency as well as its relationship to other executive institutions. Additional constitutional difficulties constituted defining crimes, intents and acts which may lead to impeachment. This was necessitated by Nixon’s refusal to provide evidence. Further, it was questioned if “a subsequent President can issue a pardon in the absence of either a conviction or an indictment” (Cox 7). Currently, the main question is whether the constitution was effective in this case or it failed.
Federalism in USA
Federalism is the embryonic rapport “between the states and the federal government of the United Stases” (Cox 18). Patrick et al (234) says that federalism is “the division of governmental powers between the national and state governments.” The regional administrations must always respect federal government laws in accordance to the constitution.
In case of differences, the superiority clause states that federal laws are absolute. The powers of federal administration are officiated in the constitution and the rest belong to regional governments. The regional governments exercise their authority over a demarcated geographical area while the national government encompasses all such states. Therefore, a USA citizen belongs to both the regional and federal governments.
Federalism in the United States has 5 distinct attributes. As such, it enables separation of power between “regional and central government” (Cox 18). However, overlap arises in some situations but the two forms of government still remain. In addition, regional governments are seen as subordinates of central administration in international issues and control of trade between states (Cox 19).
Furthermore, federalism enhances productive collaboration between regional and central administrations in activities like environmental conservation, education and infrastructure construction among others. Moreover, federalism enables individuals to enjoy dual citizenship and they are protected by laws of both the regional and central governments. Finally, federalism requires Supreme Court to settle cases involving the national and regional governments.
People in the USA express varying views regarding the effectiveness of federal and state governments. Some argue that regional governments are more effective in addressing “public policy issues” while others say that in times of major disasters, regional governments are incapacitated and they need help from national government (Patrick et al 233).
The pros of regional rights and autonomy argue that “the constitution is a compact between the states and the federal government” while the supporters of dual federalism argue that central administration cannot interfere with the powers conferred to state authorities (Patrick et al 222). However, the concept of federalism in the US keeps on evolving.
The standards established by federalism in United States in the 18th C were audacious and significantly influenced the United States history. The effects are still being felt today (Cox 20).
Towards the end of 1970s, there were heated arguments between “Federalists and Anti-Federalists” concerning the endorsement of the constitution which had some impacts on privileges and authority of regional governments in relation to the central administration (Patrick et al 221). The ideologies contained in ‘federalists’ work serves as foundations of civic culture in the US and such ideas are highly copied in foreign nations.
Since the inception of federalism, changes related to distribution of power between the two governments have been witnessed. According to Patrick et al (221), authority of federal government has been extended by “Supreme Court decisions, constitutional amendments, executive orders, and federal statutes.”
However, he notes that ‘new federalism’ observed from early 1970s to 1990s has tried to give more power to the regional governments as opposed to national government. Clinton’s administration conceded more power to state governments in 1996. As such, regional governments could have total control over their economy and social wellbeing.
Conclusion
Proper interpretation and application of the constitution is integral to effective functioning of any administration. Based on the principle of equality, all individuals should be treated equally under such laws regardless of social status, race or religion. In addition, good comprehension of the constitution is important for proper functioning of a federal type of government. This type of government is important as it enhances devolution of power and thus active democracy.
Works Cited
Cox, Archibald. “Watergate and the U.S. Constitution.” British Journal of Law and Society 2.1 (1975): 1-13. Print
Cummings, Milton C. and Wise, D. Democracy under Pressure: An Introduction to the American Political System. United States: Wadsworth Thomson Learning, 2001. Print.
Patrick, John J., Richard M. Pious, and Donald A. Ritchie. The oxford guide to the United States government. New York: Oxford University Press, 2001. Print.
The United States government was established immediately after the American Revolution. This means that the there was no American government before 1776. This also means that the American people were governed by the British for more than a century.
The founding fathers were not only aware of the abuses of the British Crown but also the problems that tyranny and the suppression of human rights has brought to the people of Europe and then in the New World. Thus, when after the founding fathers wrote the U.S. Constitution they added an amendment known as the First Amendment, a mere 45 words of legislature that ensured the basic freedoms of all Americans from the late 18th century up to the present.
The freedom that Americans experience comes at a price because there are conflicts and problems that arise from the interpretation and implementation of the First Amendment, however, many legal experts are saying that it is simply the price to pay for freedom. and with regards to children it is the responsibility of the parents to
The First Amendment can be argued as a safeguard against the rise of tyranny and even the abuses of the majority. The founding fathers knew fairly well what it means to be under the influence and control of the powerful few, the most influential and the elite.
They wanted to be sure that there will not come a time that the most dominant group can force others to do their bidding and perform acts against their conscience. More importantly the founding fathers understood the perils of having a national religion – even Christianity has different forms of expression – and made a way to prevent bloodshed and unnecessary conflicts. The First Amendment thus reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances (The First Amendment to the U.S. Constitution)
According to legal experts the First Amendment is just a short set of words and yet it has proven its effectiveness for more than 200 years (Smith, 2008). Consider the fact that “between 1971 and 1990, 110 of the world’s 162 national constitutions were either written or extensively rewritten” and that “an average of five new constitutions are adopted somewhere in the world” (Haynes et al., 2003, p.9).
Canada for instance had its most recent revision to its constitution completed in 1982 and the French have written and rewritten their own for a total of 15 times (Haynes et al., 2003, p.9).
The reason why the U.S. Constitution required no revision for the past 200 years can be partially explained by the brevity, simplicity and power of the First Amendment which has prompted French commentator and one of the most respected observers to American democracy Alexis de Tocqueville to exclaim:
Let us look to America … less to find examples than instruction; let us borrow from her the principles, rather than the details, of her laws. The laws of the French republic may be, and out to be in many cases, different from those which govern the United States; but the principles on which the American constitutions rest, those principles of order of the balance of power of true liberty of deep and sincere respect for right, are indispensable to all republics (as qtd. in Haynes et al., 2003, p.9).
Much of what Tocqueville wrote can be found in the First Amendment. His praise for the U.S. Constitution can be magnified even further as one begins to analyze the deeper meaning and implications of the First Amendment.
Consider for instance that this short stanza contains the following basic freedoms: the first is freedom of religion; the second is freedom of speech; the third is the freedom of the press; and the fourth is the freedom to demand that the government must stop doing wrong (Smith, 2008, p.8). The First Amendment assures that an American democracy is indeed a government by the people and for the people.
By creating a constitution that guarantees these four basic freedoms to future generations of Americans is like having a government handing over its power to its citizens. The Federal government is still powerful by all means but it can no longer abuse its power. It was as if the founding fathers made sure that the problems of Medieval Europe will never be replicated in America.
For more than 200 years this dream came true. There is no perfect system, there are still problems in this country but the government cannot impose its will on the populace. There are also citizens who abused these rights but on the brighter side, every U.S. citizen has the freedom to pursue his or her goals in life – in pursuit of happiness – without someone telling him how to do it.
It can be argued that without the First Amendment the United States may have become a free but weak nation. It could have been a weak government with a weak economy because its citizens do not have the license to experiment, to explore and to express what they felt inside. But more importantly the First Amendment guarantees against suppression of basic human freedom and would easily turn this country into a predictable and repressed society where ideas and innovations are stifled.
A legal expert was able to describe succinctly the consequences of a rule book without the First Amendment and he wrote: “Without the First Amendment, religious minorities could be persecuted, the government might well establish a national religion, protesters could be silenced, the press could not criticize government, and citizens could not mobilize for social change” (Buchanan, 2010, p.1).
In other words the First Amendment is a safeguard against the tyranny of the few or the many. The value of each member of society has been enhanced because of this amendment to the U.S. constitution.
Critique
However, there are problems when it comes to interpretation and implementation of the First Amendment and therefore it is inevitable for conflicts to arise. Take for instance the freedom of religion. This is an important component of the First Amendment if one will consider the history of religious persecution in Europe and even in the early days of the American colonies.
Therefore, freedom of religion became a major principle incorporated into the U.S. constitution. This means that the Federal Government cannot disrupt Sunday services if the President feels that a particular religion does not conform to his own belief system.
This is especially true when it comes to children (Saunders, 2003). There is an argument that children must be protected from the impact of First Amendment rights. For instance children walking past a store selling nude pictures this will have an effect on them but at the same time the store owner has the right to sell his merchandize.
There are also pornographic materials that are readily available through the Internet and a child will simply have to have a basic understanding of how a computer works in order to access these sites. However, many legal experts are saying that it is the responsibility of the parents to take care of their children.
Thus, freedom of religion gives peace of mind to every family who simply wanted to worship their own way. On the other hand there are those who would like to use this freedom to perform acts and establish a belief system that is offensive to the mindset of other people.
Take for example religious cults that allow leaders to totally dominate the lives of their members – taking their money and their personal freedom away (Snow, 2003). Think of the suicide cults that are responsible for the demise of innocent people. This is just an example of the problematic aspects of the First Amendment.
The freedom of speech is another important component of this tenet. This allows individuals and even organizations to voice out their concerns and beliefs. Everyone is entitled to express what he or she feels to be important. Consider for example the freedom to voice out an opinion or a discovery.
Without the First Amendment scientists can be ordered to keep their research findings to themselves. So the person who discovered the pollution effects of fossil fuel can be silenced by those who may find the report damaging to their business interests. Think of how the world will become if brilliant minds and people of substance are not allowed to speak.
The freedom of the press is also another critical component of the First Amendment because censorship can paralyze a democracy. Since a democratic country like the United States is run by elected officials then it is imperative for the voters and the general public to know what their leaders are doing.
This is especially important when it comes to government spending because the state collects taxes from its citizens. What if elected officials are able to smother the freedom of the press? Then there will be ample opportunities for corruption because no one is allowed to blow the whistle so to speak. There will also be a severe lack of accountability because no one will know.
On the other hand the press can abuse this right. Journalists can use their tremendous power to destroy the reputation of people. Journalists can be biased in their reporting and will not adhere to the principles of balanced and fair journalism. It is good to know that there are laws in effect that acts as a counterbalance to the freedom of the press.
The freedom to assemble is also another major facet of this principle. This freedom goes beyond safety and security. This freedom allows American citizens to complain about mediocrity.
In the previous discussion the basic freedoms protects the individual from the tyranny of the strong and the few but this time around the freedom to assemble and to petition the government to redress grievances is the reason perhaps why America is one of the most powerful in the world. It allows the citizens to continuously improve the kind of government that rules over them. However, peaceful demonstrations can easily turn into an ugly riot and disrupt peace and order in a certain place.
There are problems and conflicts when it comes to the interpretation of the First Amendment but one legal expert was able to put it in correct perspective when he said “Such difficulties are the price of freedom of speech and religion in a tolerant, open society” (Buchanan, 2010, p.1). Americans must see the big picture in order to appreciate the importance of the First Amendment.
Conclusion
The First Amendment is one of the most important amendments to the U.S. Constitution. By writing it down the founding fathers assured the stability and continuous progress of the United States. There are conflicts and problems that result from the interpretation and application of the First Amendment but if one will look at the big picture the bad outweigh the good.
This is because the First Amendment assures everyone that they have the freedom to think and to choose what they believe is right in the path towards success and happiness. The problems that may arise as a consequence of these liberties must be considered as the price to pay for freedom in a wonderfully open and tolerant society.
Works Cited
Buchanan, Brian. About the First Amendment. First Amendment Center. 25 Nov. 2010. Web.
Haynes, Charles et al. The First Amendment in Schools: A Guide from the First Amendment Center. VA: Association for Supervision and Curriculum Development, 2003.
Smith, Rich. First Amendment: The Right of Expression. MN: ABDO Publishing, 2008.
Snow, Robert. Deadly Cults: The Crimes of True Believers. Westport, CT: Praeger Publishers, 2003.
The American constitution plays a big role in the way current and past political processes play out. This is often not the case in all developed nations, as can be evidenced in Britain where the constitution does not play a big role in the way the political landscape is shaped (Darlington 2).
The United States (US) constitution has been a very stable document, as can be evidenced in the past 200 years where only 17 amendments have been made (Darlington 2). For purposes of this study, it is important to understand the fact that the American constitution separates the power of the government into the executive, legislature and the judiciary. These organs of the state work in synchrony and each can check each other’s powers.
In analysing the power of the constitution when defining the American political landscape, this study will evaluate the role of the constitution in establishing checks and balances in government from an analysis of the senate, office of the president, and the Supreme Court.
Since 1786, when the American constitution was enacted, the constitution has been able to stipulate the functions of the above state organs and in turn, these state organs have over the years changed the political landscape of the country. This study will further explore this observation in detail.
The Presidency
The president as stipulated in the American constitution has power over the executive, and in a wider sense, he/she is the Chief Executive Officer of the Country.
Though America’s founding fathers designed the constitution to avoid an imperialist presidency (which often resembles a monarchical system such as that exhibited in Britain), recent developments in world politics have greatly shifted the powers of the president in a huge way. The senate for example, has ceded a lot of its “checking” powers to the presidency; even though it was meant to be the least political organ of the state (Congress 14811).
Factoring in recent political trends in America (after the Second World War), it is clearly evident that there is a disconnect existing in the manner the constitution outlines the office of the president and the manner in which the presidency is informally handled today.
This trend has been identified by some researchers as symptoms of the ever-growing political, economic and social influence America has on the world stage (which gives immense powers to the American president) (Grant 76).
In a more general sense, the American president is arguably perceived as the custodian of the most powerful office on earth. This is the reason why the American presidency has been a highly contested political position which is often under scrutiny by the entire world. This observation can be traced to the power the American constitution gives the presidency.
As will be evidenced in subsequent sections of this study, the powerful nature of the presidency has often interfered with the working of other state bodies, such as the senate. In fact, many observers today note that the presidency has increasingly become imperialistic in nature. Such sentiments are held by Darlington who notes that:
“The balance of power between the Congress and the President has shifted significantly in favour of the President. This is evident in the domestic sphere through practices like ‘impoundment’ (when money is taken from the purpose intended by Congress and allocated to another purpose favoured by the President) and in the international sphere through refusal to invoke the War Powers Resolution in spite of major military invasions. Different terms for this accretion of power by the Presidency are “the unitary executive” and “the imperial presidency” (p. 39).
The Senate
Despite the fact that the American constitution gives immense powers to the office of the president, it is still important to note that the same constitution still gives a lot of power to the senate. Currently, it is arguably one of the most powerful upper-house in any legislative body in the world (Darlington 32).
Considering the immense powers of the senate, American politics has been keenly designed to consider who sits at the senate because important policies of the country are normally determined through the intervention of the senate. For example, budgetary allocation and government spending are approved by the senate and therefore, American politics has been tailored to consider this exception (Bardes 457).
This is the reason why successive presidents have endeavoured to have a strong influence on the senate. For example, in the past Bush administration, the president had to seek the consent of the senate to send American troops to Iraq.
It is therefore clear that despite the fact that the constitution makes the president the chief executive officer of the country, and indeed the commander-in-chief of the armed forces, the presidency has to still get the approval of the senate in carrying out important decisions affecting the country. This comes out of the regulative role that the constitution gives the senate in checking the executive as its most important function.
The Supreme Court
The American constitution recognizes the American Supreme Court as the highest court of the land. It also gives it immense powers over other organs of the state (but more so, the executive) (Watts 283). Among the function of the Supreme Court (as outlined by the American constitution) include the role of arbitration (in cases involving states), interpreting the constitution, and other similar roles (Luedtke 480).
However, it is important to note that America’s Supreme Court has a very political nature when compared to other Supreme Courts in other nations. For instance, the scope of abortion in America is often determined by the Supreme Court, but the scope of such a matter in other countries would be determined by the legislature (Darlington 32).
The political nature of the Supreme Court can be attributed to the powers the constitution gives the state body. In comprehending the political nature of the Supreme Court, it is important to understand that the president often nominates members who sit in the Supreme Court and each of these names is supposed to be approved by the senate.
From this point of view, it is equally easy to understand why the president often has immense concern over who sits at the senate, because if Supreme Court appointees are nominated by his/her office, they cannot be approved by the senate if members sitting in it are against him (Steven 2). This scenario therefore becomes a political issue as opposed to a matter of credibility.
The power the American constitution vests on the Supreme Court therefore illustrates the political nature of the court because the state organ has the power to even nullify executive decisions made by the office of the president. Moreover, it can amend the constitution in easier ways than those evidenced in formal amendment processes (Luedtke 480).
These are some of the reasons, why subsequent presidents have always wanted to have their appointees sitting in the Supreme Court, because in such a manner, they can have control of the state organ.
Conclusion
This study identifies the fact that the American constitution significantly defines the way American politics plays out today. Its articulation of the powers of the president, the senate and the Supreme Court practically explains why appointments in such offices are highly contested and virtually, very political in nature. These powers define the extreme political nature of the American governance system.
Works Cited
Bardes, Barbara. American Government and Politics Today. London: Cengage Learning, 2008. Print.
This amendment was approved on July 1868. The amendment contained two important clauses that marked the history of Civil rights movement in the US. These are the Equal protection clause and the Due Process clause.
The former guaranteed equal protection of the law while the latter protected individuals from deprivation of life, liberty and property by the state without the due process of law. This article looks into the various interpretations given to the Fourteenth Amendment, limitations to its applications and the affirmative action.
Interpretation of the 14th amendment
The problem that faced the court was in determining what could qualify as equal protection. The first attempt to interpret the Equal protection clause was made in the infamous case of Plessy Vs Ferguson (1896), which advocated for racial segregation. Justice Brown was concerned with the reasonableness of the clause.
He argued that when the court is reviewing state legislation it should consider regulation of public order and the tradition or custom of the people. “In short, the Court created a very lenient standard when reviewing state legislation: If a statute promotes order or can be characterized as a tradition or custom… the statute meets the requirements of the clause” (Peter, 1998, Par 3).
In Brown Vs Board of Education (1954) however, the Equal Protection clause was given a new meaning. Justice Earl Warren found that segregated facilities did not amount to equal protection in law. He stated:
“…the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment” (Brown Vs Board of Education, 1954).
Hernandez v. Texas (1954) the Court found that the Equal Protection clause to apply to not only whites and blacks but also other races and ethnic groups. Among these, other races were the Mexican-Americans. Since Brown case, women and illegitimate children have been included in the Equal Protection Clause.
“The Supreme Court accepted the concept of distinction by class, that is, between “white” and Hispanic, and found that when laws produce unreasonable and different treatment on such a basis, the constitutional guarantee of equal protection is violated” (Carl 1982. Par.2).
The Due Process Clause was not only meant to protect basic procedural rights but also substantive rights. In the case of Gitlow Vs New York (1925), protection of press from abridgement by the legislature was held to be some of the fundamental freedoms protected by the ‘due process’ clause of the fourteenth Amendment from infringement by the state. Here it was dealing with the substantive rights incorporated in the bill of rights.
However, the decision in Muller Vs Oregon (1908), showed that the state could restrict working hours of women if doing so was in their best interest. This decision was made in due regard to the physical health of a woman. It was held that the physical role of women in childbirth and their social role in the society is an issue of public interest permitting the state to regulate their working hours notwithstanding the ‘due process’ clause of the Fourteenth Amendment.
Affirmative action
Even though it offered a starting point, the Fourteenth Amendment was seen not to be enough to curb discrimination and racial segregation. More positive measures were needed to protect minority groups in the US.
“Affirmative Action refers to a set of practices undertaken… to go beyond non-discrimination, with the goal of actively improving the economic status of minorities and women with regard to employment, education, and business ownership and growth” (Holzer & Neumark 2005, Par. 1).
Affirmative Action was first introduced by President John F. Kennedy in the 1961 Executive Order 10925. Thereafter, several more orders were passed to deal with discrimination in employment. Other laws dealing with equal protection were subsequently enacted to outlaw discrimination such as the 1964 Civil Rights Act. Title II of the Act prohibited discrimination in public accommodations while title IV prohibited race and sex discrimination in employment.
Courts too have joined hands in the fight. For example in Davis vs. Bakke (1978), where the court found that Bakke had been denied equal protection of the law by the University of California by being refused admission in the school even though his grades were better than the minority’s admitted. This was done in line with a two-track admission system for blacks and whites. Even thought the decision overruled the affirmative action policy, it was viewed as a victory to proponents of affirmative action because it was a fight against racial segregation.
Affirmative action-together with anti-discrimination laws and legislation-has rendered rights of minority groups in the labor market as well as public academic institutions more apparent. Therefore we cannot bow to the critics propositions that affirmative action promotes discrimination and racism.
“Laws barring race- or sex-conscious behavior in hiring, promotions, and discharges are likely to undermine not only explicit forms of Affirmative Action, but also any prohibitions of discrimination that rely on disparate impact analyses for their enforcement” (Holzer and Neumark, 2006, Par, 11).
Conclusion
The Fourteenth amendment has been classified as the most far-reaching amendment in the history of the US constitution especially to the minority groups. “The Fourteenth Amendment itself was the fruit of a necessary and wise solution for a comparable problem” (Howard 2000).
It came at a time when civil rights movements were at the peak and has contributed significantly to the redemption of minority from past discriminatory activities. It created awareness to the whole world on the injustices of racial segregation and prompted the public to take corrective measures, which have no doubt yielded a lot of success.