Constitutional Rights the Constitution Serves Essay

Pages: 6 (1656 words)  ·  Style: APA  ·  Bibliography Sources: 3  ·  File: .docx  ·  Level: College Senior  ·  Topic: Business - Law

¶ … Constitutional Rights

The Constitution serves as the bedrock of American law. It is something that Americans know in their bones. It is something that Americans are proud of, something that indeed sets us apart from nations like Great Britain, that do not have a single Constitution but that must fashion the rights of the people from a sort of ragtag assemblage of common law, statutory law, simple custom -- or things much worse. We, however, we Americans have our Constitution and our Bill of Rights.

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Yes, this is all true. And the Bill of Rights (and the Constitution more generally) is a magnificent defense of the basic rights of humanity. And yet, as is true in all human affairs, there is a gap between the ideal and the actual. And while the ideals of the Bill of Rights (with the exception of that problematic Second Amendment) are impeccable, the ways in which these rights are uphold (or denied) in the course of everyday life can be less than ideal. This lack of achieving the ideal comes about in any number of ways, from carelessness to cupidity (to stupidity) to raw politics. An important (and indeed central) lesson in American politics is that while the rhetoric about the Bill of Rights and the Constitution is almost entirely lofty, the reality of the ways in which the ideals of the amendments are legislated and adjudicated -- and simply carried out in places as divergent as high school principals' offices to sheriffs' substations -- are often flawed. In this paper I look at some of the ways in which the rights expressed in the First, Fourth, Fifth, Sixth, and Fourteenth Amendments are administered in the United States today.

Essay on Constitutional Rights the Constitution Serves as the Assignment

Perhaps most dear to our concept of ourselves as a good democracy (except for those who believe that the Second Amendment is the only one that we really need) is the First Amendment, with its protections of free expression, a free press, free assembly, the right to petition the government without fear of retribution, and freedom from state religion. And yet, even the most cursory glance at the judicial record shows that while such freedoms may be established for us in what seems to be an inviolate way, this is simply not true in practice.

For example, the U.S. Supreme Court decision Hazelwood School District et al. v. Kuhlmeier et al. (484 U.S. 260 [1988]) found that student newspapers have a "lower level of First Amendment protection" than do other forms of expression. Given that both freedom of speech and freedom of the press are explicitly protected by the First Amendment, it is a little hard to fathom how the Court justified this ruling. However, it has been true for decades that the Court has not been shy about limiting the rights of students in public schools (arenas in which they have little choice but to spend thirteen years of their lives).

Another Supreme Court case, Lee v. Weisman (505 U.S. 577 ([1992]), however, upheld the rights and freedoms of public school students. In this ruling by the conservative Rehnquist court, the justices found that it was impermissible for schools to have religious leaders deliver sectarian prayers at graduations. Although the decision was at first perceived as a victory for those who wish to "include religion in the public square," it has turned out to be a strong defense of the secular state. The court in this case found that "Including a clergy-led prayer within the events of a public high school graduation violates the Establishment Clause of the First Amendment." (Student First Amendment Cases. http://www.nusd.k12.az.us/Schools/nhs/gthomson.class/PodCasts/Gov/bill.of.rights/student.1st.amndcases.pdf. Retrieved 6 December 2009.)

The Fourth Amendment protects individuals against unreasonable searches and seizures of their property. The courts have an uneven record on this amendment, often coming down strongly in support of it (for example, ruling that the possessions of a homeless person camping in a public place are protected because such an encampment was his home). However, in recent decades the courts have chipped away at the protections of this amendment. For example, searches along U.S. borders and at airports "can be conducted randomly without reasonable suspicion of a crime having been committed." (The Fourth Amendment, http://www.revolutionary-war-and-beyond.com/4th-amendment.html. Retrieved 6 December 2009.)

The courts have made a number of other exceptions to the protections of the Fourth Amendment, including the fact that school and law enforcement officials can search the property of public school students with a warrant -- although only if there is a "reasonable expectation" of finding evidence of a crime. (Although what is "reasonable" in this context has generally been what the schools want to do.) (The Fourth Amendment, http://www.revolutionary-war-and-beyond.com/4th-amendment.html. Retrieved 6 December 2009.) Other exceptions include the legality of warrantless searches of the personal property of federal employees at work and of the possessions of prisoners. In addition, most employees may have their work email and other electronic communications searched without a warrant (The Fourth Amendment, http://www.revolutionary-war-and-beyond.com/4th-amendment.html. Retrieved 6 December 2009.)

None of these holes poked into the protection fabric of the Fourth Amendment, however, can match the arguments made by the Bush Administration about the permissibility of wiretapping Americans' phone calls without warrants. That is such an egregious breach of the essence of the Fourth Amendment that it is hard to know where to begin a critique of it.

The Fifth Amendment protects Americans against testifying against themselves -- the right against self-incrimination. Many of the court cases surrounding this amendment (by necessity) involve how far police can go in trying to get a person to confess to a crime. How far is too far has varied greatly over time. For example, in the 1944 case Ashcraft vs. Tennessee, evidence gathered by police "was thrown out because of harsh interrogation techniques." These included the fact that "the accused individual [had been subjected] to interrogation under very bright lights for a period of 36 hours. The Court judged that his confession was forced and not admissible in court." (Fifth Amendment Court Cases -- Self-Incrimination Clause, http://www.revolutionary-war-and-beyond.com/fifth-amendment-court-cases-self-incrimination-clause.html. Retrieved 6 December 2009.)

Such respect for the Fifth Amendment evaporated in the last administration as Bush officials advocated torture to produce desired results -- something that they argued was permissible so long as suspects were first subjected to "extraordinary rendition," that is, sent to another country to be tortured.

Less famous than the Fifth Amendment (perhaps because there is no comparable image for the Sixth Amendment as that of Ollie North taking the Fifth), is the Sixth. This is nonetheless a key element in protecting the rights of the accused. (And given that anyone might be accused -- even if that person is innocent -- means that protections for the accused in the Constitution are in fact protections for us all.) The Sixth Amendment requires that "the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed" and that each person accused of a crime have the right to know the nature of the accusation, to know who the witnesses against him or her are, and to have subpoena power to gather evidence for his or her defense. The courts have generally been respectful of this Amendment, which was written to remedy some of the worst abused of British eighteenth-century policies.

However, as noted above, the past administration attempted to negate the protections of this amendment in the service of its "war on terror." For example, the American prisoners held at Guantanamo Bay have not been granted the right to a speedy trial. The right to a speedy trial is designed "to prevent long-term incarceration and detention without trial -- which amounts to a prison sentence without a guilty verdict" -- which is effectively what has happened… [END OF PREVIEW] . . . READ MORE

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