Does the American Constitution guarantee freedom?

A presentation by Group 3

What the US constitution is and why it was made

The freedoms within the first amendment

The Bill of Rights

The right to bare arms and how this relates to freedom

The patriot act and Guantanamo Bay

Judicial Review

We will consider…

The American constitution is arguably the single most important document in US politics.

It is a guidance for effective, but not oppressive governance in America.

The constitution is dynamic as it can be formally amended or revised with consideration of economic and political progression.

Is the constitution about freedom or security?

What is the American Constitution?

The constitution was influenced by John Locke’s ideas which opposed the concept of ‘Divine Right of Kings’ and stated that each man has natural rights.

The constitution was designed to protect these basic natural rights, such as life, property and most importantly freedom.

Another of Locke’s ideas was that governments heavily rely on the consent of the people.

So the constitution was aimed towards maintaining the independence of the citizens, whilst allowing America to move forward.

The Philosophy behind the Constitution

The purpose of the separation of the powers was to prevent despotism and tyranny.

It was vitally important that none of the institutions had too much power because otherwise the people would not have a say, and their freedom would be threatened.

Rational, autonomous beings should be allowed to make choices for themselves, others do not know best.

The Separation of the Powers

The Bill of Rights

What is the Bill of Rights?

Bill of rights is a collective name for the first 10 amendments to the constitution.

They serve to limit federal governmental powers and protect the natural individual rights of Americans and their property.

Why was the Bill of Rights needed?

Growing fear of creating a strong dictatorial government resembling the pervious British rule.

This is what sprung the anti-federalist movement into action.

Too little to late: Constitution was already being ratified and no alterations could be made.

So they proposed a set of individual rights that limited federal governmental powers and their jurisdiction.

Strong anti federalists like James Madison asserted that the bill of rights was both necessary and proper.

He contended that the major danger to personal liberties came from congress rather than the executive.

‘all powers necessary and proper to carry into effect the foregoing powers’Article 1, Section 8, Paragraph 18: Implied Powers Clause

James Madison, 4th president of United Sates of America

What freedoms does the Bill of Rights refer

to? The amendments were drawn because the constitution did not clearly state what the federal government were not to do. Therefore, the bill of rights carries a theme of ‘freedom from’

Republican freedom = Freedom from domination. Individuals lose their freedoms even when they are not subject to interference.

Does the Bill of Rights guarantee freedom? The bill of rights has stood the test of time and has been able to adapt to changing America. There has been great social and economic change since its existence. In recent years, these 10 amendments have been appealed to more so then ever before.

First Amendment – protects the freedom to believe and practice any religion peacefully. This is guaranteed in a series of Supreme court rulings.

Fourth Amendment - to restrict unreasonable search and seizure of property by governmental authorities.

The Right to Bear ArmsA guarantee of freedom or simply a security

measure?

The Second Amendment

Amendment II of the American Constitution: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

There has been much debate about what should be considered as a ‘well regulated militia’ and whether the ‘the right of people to keep and bear arms’ is only when involved in this militia.

The wording

The operative statement of the amendment is ‘the right of people to keep and bear arms’. So the right to bear arms is protected in the constitution but is this only to provide for a state militia? The amendment does not mention the need for arms for hunting, self-defence or enjoyment. It is simply said that the right to bear arms is needed for a militia.

In the modern world

Militia groups within the USA claim to be protecting the constitution and are willing to fight against an oppressive government. However they are often considered a form of domestic terrorism and are classed as such by the FBI.

Gang crime

Supreme Court

Found that:

‘The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defence within the home’

A guarantee of freedom?

While at the time of writing the right to bear arms was needed in case of future oppression or invasion, the amendment is now archaic as militia groups are no longer made up of the ordinary citizens they used to be. The right to bear arms is now used to excuse the mass manufacture and sale of weapons. This is a problem with written constitutions, as they are harder to adapt to the modern world of automatic weapons and gang crime.

The Patriot Act andGuantanamo Bay

The Patriot Act Is a highly controversial piece of legislation,

passed by the U.S Congress and signed by president George W. Bush on 26 Oct, 2001.

This act, was the legal response to the September 11 attacks, granting increased powers to law enforcement and antiterrorism agencies.

Most aspects of it are still in effect today.

Main aspects

Lifted many legal restrictions from law enforcement agencies concerning the collection of intelligence, domestically in the United States.

Allows law enforcement and immigration agencies to detain and deport individuals suspected of terrorism-related activities.

Broadened the ability of the Secretary of the Treasury to regulate financial institutions, in an attempt to fight money laundering, both in the US and internationally.

Concerns and Criticism While the US Congress passed this Act almost

unanimously following the 9/11 events, a large percentage of the public disagreed with the increased powers the government received, and on repeated occasions described the Act as “unconstitutional”.

Critics of the Patriot Act support the law has made it too easy for law enforcement to spy on people. “The law cuts too deeply into personal liberties and privacy rights”.

What about immigrants? Under Section 412 of the Patriot Act it states : “An

alien detained....may be detained for additional periods of up to six months”. The article ironically is named : “Limitation on Indefinite Detention”.

So where do these suspected-terrorist prisoners go, for 6 months?

Special holding facilities?

US public prisons?

?

US Naval base, Guantanamo bay, Cuba. “The Legal Black hole.”

Not exactly.

General information-Established in January 2002, still active.

-Considered outside U.S. legal jurisdiction.

-Detainees do not have the right to any

lawful representation or fair trial.

-Detention time is only determined by the authorities managing the base, in accordance to the provisions of the Patriot Act.

-Many former prisoners have complained of torture and mistreatment occurring in the camp.

Unconstitutional?

Most definitely. -It is not a matter of personal opinion.

Arresting someone without charges and keeping them imprisoned indefinitely with no chance of fair trial, is simply against the constitution and what it was meant to provide.

-The US Supreme Court, in 2008, ruled that the proceedings in Guantanamo Bay are unconstitutional and that the prisoners there

have the right to Habeas Corpus, i.e. the right to be brought before a judge after being arrested (Which is guaranteed in the 4th, 5th and 6th amendments).

Judicial ReviewDoes judicial review coincide or just interfere

with the constitution?

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.

Amendment 1 of the American constitution

Cohen v CaliforniaWas this case a violation of his right to freedom of speech?

Cohen was arrested after wearing a t-shirt brandishing the words ‘Fuck the Draft’ as a policeman found it offensive as families were present

it was a violation of section 415 of the California Penal Code

Judicial reviewa judicial re examination of the proceedings of a court

Alexander Hamilton- Judicial review helps the courts ensure that the will of the whole American population is supreme over the will

of legislature.

Few other countries allow for the same authority and none have

exercised it as strongly as America

In conclusion…

The American constitution carefully balances freedom with the need to live in a civil community, and if this

means having to allow for judicial review then so be it for the good of the people.

But…

As shown in the bill of rights there can be contradictions

It is outdated and in some ways cannot be updated

And, some practices within America have not followed the constitutional law, so how can the constitution be

guaranteed when it is not followed strictly.

Thank you for listening