Analysis of The American Constitution

TASK 1

Analysis of the American Constitution

The bill of rights in the American constitution is an important part that safeguards and protects the rights of the American people. The constitution of any given country is the highest law in the land and surpasses any other law. This principle also applies in the United States. The entrenchment of particular rights in the constitution ensured that these particular rights cannot be infringed upon and that any process of the law cannot remove them. While this is a great way on ensuring that the rights of the American people are protected, some of the amendments made to the American constitution are too important and have to be protected at all costs. On the other hand, some of the rights in the same constitution have been surpassed by events since their inception. These particular laws need not be in the constitution. These can either be removed from the constitution, or placed in other minor legislations.

Most Important Rights in the Constitution

Amendment I

The first amendment is the most important amendment in the constitution. This is because it safeguards one of the most important fundamental universal rights and freedoms. That is freedom of speech and expression. This particular amendment strictly forbids the U.S government from making any laws that may seek to curtail on infringe on these two freedoms. The amendment makes strict reference to religion as one of the means of expression that the government cannot touch. This is important for it ensures that there is versatility and that no specific religion or religious group is targeted (Fallon, 2013).

The amendment further safeguards the right of the Americans to engage in free speech. This gives Americans the right to speak without fear of persecution or prosecution. While there are some exceptions to this particular right, ensuring that citizens can speak out without fear ensure that they can speak up against their government if they feel that it is not performing. The third part of this amendment involves the press and its freedom. While the press in some or most cases tends to exaggerate facts, the press is in most cases the eye of the people. This is because they report on matters that touch on the lives of the American citizens. Safeguarding press freedom ensures that the citizens are able to access unbiased information. The final part of this particular amendment protects the citizens’ right to peaceful assembly (Konvitz, 2001).

This particular amendment was created with the sole intent of protecting any citizen whose intention is to address a particular grievance to the government. This particular therefore foresaw, the governments’ potential to use force in trying to suppress reports or complaints against it.

Amendment IX

The ninth amendment is also an important amendment for it addresses all the other civil rights not outlined in the constitution. This amendment is important for whist the other eight outline the powers of the federal government and seeks to protect the people from the federal government; this particular amendment addresses the rights that are not in the federal governments hands. While there was a great debate on whether or not to include the full bill of rights in the American constitution, a conclusion was reached that against fully incorporating it. However, the ninth amendment was included to ensure that these rights were specifically included. The wording of this amendment is such that it acknowledges that there are other civil rights not mentioned in the constitution that still have to be respected (Farber, 2007).

Thus, this amendment makes provision that bar the denial of certain enumerated rights on the basis that they are not expressed in the constitution. Thus this particular amendment makes provision for other laws including natural rights, implied rights or any other laws accorded to the American citizen either naturally or by laws other than the constitution.

Rights that may be removed

Amendment II

Over the years and specifically in recent years, there has been uproar over the second amendment and its implications in the United States. This is due to the resultant effects of this particular amendment. This is because the amendment grants American citizens the right to carry firearms and that this particular right should not be infringed upon. This particular law has been created so that no other legislative body can restrict the owning or carrying of a firearm

This right has however brought more harm than the good it was intended for in the first place. This is because this amendment was created in the era where there was need to carry the arms in defense of the sovereignty of America against Britain. Back then, America was not a confederate state and there was no established military to fight on behalf of the country. This meant that the citizens had the right to form militias and fight for their country. This particular has however changed and the united states now have a well established military that can fight on behalf of the country (Charles, 2009). Thus, this amendments purpose has been surpassed by events and does not necessarily have to be in the constitution as a right.

Amendment IV

This particular was created to be able to protect the property as well as the privacy of the American citizens. However, this right has been subject to a lot of abuse in one way or the other. This is because; it has given law enforcement a hard time in obtaining evidence that may play an important role in the administration of justice (Amar, 2005)..

Over the years, the courts have been able to establish exclusionary rules and principles to this amendment. These principles have however not been easy. With new technological advancements, this amendment has been able to be bypassed by law enforcement agents as well as the court. The greatest breakthrough regarding this amendment is the USA Patriot Act which was passed in recent years and which lessens the strength of fourth amendment. While this particular right is important, this particular right has been taken advantage of over the years and the courts and legislators have been able to come up with ways around it.

Right that would be included

The right to privacy

There have been conventional issues as to the real position of the constitution regarding citizens’ rights to privacy. The American constitution does not clearly refer to the term individual privacy. It however mentions privacy in a number of other rights and by doing so protects some aspects of privacy. Over the year, American courts have established that the right to privacy is a fundamental human right. The same courts have outlined that this right is covered by the ninth amendment. However, this fundamental right has come to the public eye with controversial subjects such as contraception such as the Griswold and Eisenstadt cases in the Supreme Court. Other contentious matters include the Roe v Wade abortion case and the intermarriage issues as was the Loving case (Rossum & Tarr, 2009).

Thus, the incorporation of a well outlined and defined right to privacy would encompass all issues that deal with the infringement of this particular right. This would also strengthen some of the other amendments that deal with the protection of privacy such as the Third, Fourth and Fifth Amendment.

 

TASK 2

Homeland Security Issues in Art or Popular Culture

Introduction

Prior to the 9/11 terrorism attack on the United States, homeland security was not a common topic in the minds of American. However, since the terrorist attack, homeland security has been on the spotlight and outlined not only in normal day to day interactions but has also infused in art and popular culture. This comes in form of music, books and comics, the internet and the film industry. Society has been able to use these mediums to create mediums where they can articulate their concerns on issues touching on homeland security.

The Film Industry

Since the 9/11 attack, there have been a number of movies that have been created that have illustrated multiple attacks on the United States. Most of these movies show the role that homeland security plays in either encouraging or thwarting these attacks or attempts. However, prominent in the film industry are the series. These are made and either merely touch on or fully concentrate on homeland security and its issues. One of the very first series that fully concentrated on homeland security was the 2003 series THREAT MATRIX aired on ABC. In the trailer to this particular movie, the president receives a report every morning detailing all international and domestic threats against United States. The justification is because “our nation is a target; Al-Qaeda and other deadly enemies are determined to destroy our way of life; [and] an attack could come at any time, from anywhere around the globe,” this makes the president decide to create “a highly specialized, elite task force trained and equipped to counter anyone or anything that threatens our nation.” The show did not do well and was cancelled due to bad ratings.

 

However, over the years, there have been other series on Homeland Security, which including one titled HOMELAND SECURITY aired on NBC in 2004. The most successful series made on the topic was titled 24, aired on FOX in 2001, and which lasted for six seasons. The series depicted a fictitious CIA counter terrorism unit that usually has twenty four hours to stop terrorist attacks on American soil. Thus the plot is narrated on the view of a fictitious homeland security. Some sections of the series depict the steps taken by the ‘homeland security’ in stopping the terrorist attacks which left questions in the minds of the viewers.

What is evident in these films is that Americans are worried about the security of their nations and the fact that America has so many enemies both internal and external who wish to the country harm (Boyd, 2008).

    

Comic books and strips

Like the film industry, comic books and strips are a larger part of the American culture. This is because comic are loved by Americans of all ages. Thus, it was not odd that some of the comic characters and stories touched on homeland security issues. While some of the topics are not purely specified on homeland security issues, once or twice a comic strip series touches on contentious issues.

The Captain America v.4 #1-3 comic was changed 2002 to focus on the national responsibility as well as violence rather than the previous World War II. Other includes Civil War created in 2007 from Marvel by Mark Millar and Steve McNiven. In this comic book, hero fights hero as legislation passes to make the registration of identities and powers requisite. Over the years, there have been other comic strips illustrate issues that touch on homeland security (Bragard, Dony, & Rosenberg, 2011).

Conclusion

The infusion of homeland security issues in art and popular culture illustrates the level of awareness that Americans on these issues. It also illustrates the trust or lack of that the citizens have in their department of homeland security.

 

 

TASK 3

Two Pre-9/11 Homeland Security Events

America has been target to terrorism attacks from both internal and external and internal forces. The natures of these attacks vary from one attack to the other. The reasons for these attacks also vary from one group to the other. Whichever reason a group has to mount an attack, homeland security has tacked these attacks before or after they happen. However, some of the attacks mounted have been able to share similarities with the most fatal and memorable attack in Americas history.    

I920 Wall Street Bombing

A non-descript man driving a horse drawn cart stopped the animal with its heavy load in front of the U.S. Assay Office. This office was across the J. P. Morgan building which was the heart of Wall Street. The driver was then said to have quickly gotten down and walked into the crowd. Minutes later, the cart exploded into thousands of metal fragments that instantly killed more than 30 people and injured more than 300 more. What was sadder is the fact that in days to come, more and more injured people succumbed to their injuries from the bomb. The number of victims was high due to the fact that the bomb went off during lunch hours.

Terrorism as a motive was first ruled out. This is because; the scene was cleaned up without detailed investigation on the crime. However, evidence latter revealed that the attack was from an anarchist group referred to as the "American Anarchist Fighters". Investigations into the bombing found that prior to the attack a mail carrier had found crudely spelt and printed flyers from the group that had demanded the release of political prisoners. These fliers were similar to others that had been used in other bombings from the group (McCormick, 2005).

Similarities

There are a number of similarities between this particular terrorist attack and the 9/11 attack. First being that, both attacks were both carried out by extremist organizations. In the former, it has never been established exactly which precise group claimed the bombing. The later was clearly claimed by the al-Qaida organization. In both the attacks, there had been warnings of terrorist attacks. In the former, there were flyers while in the latter there had been intelligence reports and warnings. Both attacks were directed towards the government and both organizations had demands to the government.

1993 World Trade Center Bombing            

This particular attack occurred at the parking lot of the world trade center. Six people were instantly killed from the attack. However, a very large number of people were injured from the attack. Unlike the 1920 attack, investigators suspected that this was a terrorist attack. A search at the bomb site revealed a rented vehicle identification number that belonged to a famous Muslim fundamentalist. Further investigations uncovered other plots planned by cells of Muslim extremists. By making the arrests, the FBI had unknowingly thwarted other similar terrorist attacks which included simultaneous attacks on major land marks. Upon the arrest of the leader, it was established that the groups’ intention was to topple one tower to collapse on the other (Gard, 2003).

Similarities

Islam extremist groups carried both the 1993 and 9/11 bombings. However, while the former did not have a particular name, the later was well organized. It should be noted that in both there was intention to carry out multiple simultaneous attacks. Finally, both attacks were aimed at the world trade center with the resultant impact intended to be fatal.  

TASK 4

1)    If the United States learns about the Scorpions' plan, is President Obama empowered to order a military attack against us? If yes, how would he most likely justify his actions?

President Obama is empowered to order a military attack against the group. This is because over the years, there have been a number of state sponsored terrorist attacks on the country. While, the military will not be able to fully fight terrorism, the international community is encouraged to fight back. Thus president Obama can use international law as a justification to order military attacks on the group (Pillar, 2001).

The law allows the United States to mount attacks on high level militants as a matter of self defense. This might be a problem for them in this case because there are no commanders in the scorpions group. However, they may come after the sub-commanders who are the next in the hierarchal chain. Furthermore, the military is justified under international law to carry out military raids on terrorist bases, safe havens and training camps (Murphy, S. D. (2002).

Based on past military attacks by the United States on countries known to support terrorist attacks on countries that have supported attacks against them, there is a pattern established. This pattern involved resorting to military force as a last resort. However, if forced to the United States may use its military as an act of self defense.

2)    If U.S. Army soldiers detain our fighters and transfer them to Saudi Arabia (a country known to torture people) for questioning, what is this process called? Does U.S. public policy allow for such a practice? If the current U.S. policy is to allow such a practice, is this policy lawful?        

The process of transferring a prisoner, especially one convicted of terrorism to a foreign country for extracting information from them is referred to as ‘Extraordinary Rendition’. Prior to the Obama administration, this practice used to go on. It is believed that despite Obamas’ promise to make changes in the existing interrogation and transfer policies that stop the torture, the practice is still ongoing. These changes would ensure that the receiving country would not torture the prisoners (Nowak et.al, 2010).

Under international law and more specific humanitarian law, prisoners of war are to be treated in a humane manner by whoever has captured them. Similarly, international instruments on torture strictly forbid this act. However, the united states have been able to bypass this in their military manuals by extraditing the prisoners to countries where torture is legal. This act is illegal under international law and legal instruments. Over, the years there have been an international outcry to stop this act by the European Union and other entities including the ICRC (international committee of the Red Cross). Thus, even if the current United States policy were to allow such a practice, it would be illegal under international instruments (Paglen & Thompson, 2006).

3)    As part of its Global War on Terror, the Bush Administration took many captured fighters to Guantanamo Bay, Cuba. If our soldiers are taken there, is it likely that they—none of whom are United States citizens—will be able to access the U.S. federal court system and wage litigation warfare? What is the background and current status of this issue?

Currently, the Obama administration is taking steps to shut down Guantanamo bay. Previously, and in the Bush administration, prisoners detained in Guantanamo could only access justice through military commissions set up. However, there has been a recent shift by the Obama administration that allows the prisoners to be tried in federal criminal courts. Currently the United States Supreme Court has made a ruling in Boumediene v. Bush/Al Odah v. U.S. that Guantanamo Bay prisoners can challenge their detention in federal courts (Jennifer K. Elsea. (2011). 4) What is a military tribunal? Has the United States used military tribunals in the past? Is the United States currently using military tribunals and, if so, what is their status?

A military tribunal is a type of court formed by the military to try members of the enemy forces during war. These types of courts operate outside the conventional norms of criminal and civil courts. In these courts the case is brought by the military, prosecuted by the military and judged by the military. The sentencing is also carried out by the military. In 2006, an Act of congress titled the Military Commission Act of 2006 was passed that legalized the creation of these commissions. However there have been challenges to this system including the fact that it violated the four Geneva Conventions and the uniform code of military justice, making this illegal even under U.S law. Since the introduction of this particular Act, there have been controversies as well as cases filed in the Supreme Court protesting military tribunals. One major breakthrough was the Boumediene v. Bush (2008). In 2009, president Obama made an executive order stopping all proceedings in the military tribunals. His decision was however over-turned by Guantanamo military commission judge, Army Colonel James Pohl. Currently, the military tribunals are still active (Barbara, 2011).

5)    Is it true that the United States spies on its own citizens? What are some of the governmental organizations/agencies involved in doing this? Is it lawful for the military to participate in this type of domestic activity?
         

Recent events have shown that indeed the united states have been spying on its citizens. It has been discovered that there have been internet and telephone spying programs. Some of the governmental agents linked to this activity include the Federal Bureau of Investigations (FBI) and the National Security Agency (NSA). This activity is justified under section 702 of the Foreign Intelligence Surveillance Act. It is however not legal for the military to participate in this activity for while the act grants homeland security the authority to do so, the army is not a part of homeland security (Hirsch, 2012).

6)    If we believe the United States is going to attack us, is it lawful for us to attack them first? How would we justify it?  

International humanitarian law as well as article 51 of the UN charter provides that there is an inherent right to act in self defense in the situation of an armed attack. This attack would be justified as preemptive self defense. A case in the international court of justice titled the Caroline affair established rule for preemptive war. This is the kind of war launched to prevent a potential threat. However, there are certain limitations in using this defense. The first is that there must be belief that the threat was real and that the force used was proportional to the anticipated harm (Sebastian, 2010).

7)    We understand the United States has a document called the Constitution. Describe its framework and the main concepts, powers, and rights that it contains?  

The American constitution is the supreme law of the land. This means that it is the highest law in the land and that any other law made that contradicts this law in void. This constitution reflects the wishes of the citizens and is there to protect the best interests of the American people.

The document highlights the sovereignty of the nation and its citizens. It outlines the rights granted to the people as well as puts in place mechanisms that ensure that the rights of the citizens are dully respected. It sets out a system under which the American people can be governed as well as outlines a system in which the people can choose the people who govern them. The constitution also sets up institutions responsible for the protection of the American people as well as outline how these institutions operate and limits their the powers. In general, the American constitution ensures the protection of all the interests of American citizens (Stephens & Scheb, 2012).

8)    Which branch of the U.S. federal government is the most powerful?

All three branches of government are equal. The constitution was created so that there is a system of checks and balances between the three branches of government. This ensures that no branch is more powerful than the other is.

PART 5

Statute Drafting

FIREARMS CONTROL AND REGULATION ACT

To control the type of fire arms being manufactured and sold to the general population, to set up and strengthen existent rules and regulations that control the distribution of fire arms in the general population. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,     

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS

(a) SHORT TITLE– this act may be cited as the ‘Regulating and Controlling of Firearms Distributed in the General Public through the Generation of New and the Strengthening of Already Existent Regulations (FIREARMS CONTROL AND REGULATION ACT) Act of 2013.

TITLE I—REGULATION OF FIREARMS MANUFACTURED FOR THE PURPOSE OF                      DISTRIBUTION TO THE GENERAL PUBLIC

SEC. 101. REGULATORY BODY

1. ESTABLISHMENT; AVAILABILITY—there is hereby established a regulatory body under the Homeland Security Department also referred to as the ‘Council of the Regulation of Firearm Manufacture and Distribution’ which will be a body corporate with perpetual succession and a common seal.
2. The Council shall be capable in corporate name of—
3. Inspecting and regulating the patents as well as the models of firearms manufactured for the purpose of distribution to the public;
4. setting standard that would allow an individual or individuals to purchase a firearm;

• setting the maximum number of ammunition magazines allowed for purchase by the public;

1. listening to complaints on matters that deal with firearm distribution and regulations;
2. suing and be sued on behalf of the government regarding matters to do with firearm control and regulations;
3. setting up the penalties for individuals as well as manufactures who default on the regulations set up regarding firearms;

• unfreeze and strengthen gun violence research.

1. The implementation of rules and regulations set out in the council shall be carried out by the Department Of Justices’ Federal Police Department.
2. The council shall consist of---
3. A Director who a person well versed in the matter of guns and gun control and who shall be impartial in the running of this particular department and who shall be answerable both to the head of homeland security and the president;
4. representatives from the different stakeholders including firearms manufactures, the people, non-government organizations, homeland security, the military, and congress;

• representatives from the different states;

1. the Attorney General; and
2. a representative judge from the Supreme Court.

  

 

 

 

 

 

 

References

Amar, A. R. (2005). America's Constitution: A biography. New York: Random House.

Barbara O, Center For Constitutional Rights (2011). Secret Trials and Executions: Military Tribunals and the Threat to Democracy. Seven Stories Press

Boyd, J. K. (2008). Introducing the future now using memetics and popular culture to identify the post 9/11 homeland security Zeitgeist (Doctoral dissertation, Monterey, California. Naval Postgraduate School).

Bragard, V., Dony, C., & Rosenberg, W. (2011). Portraying 9/11: Essays on representations in comics, literature, film and theatre. Jefferson, N.C: McFarland.

Charles, P. J. (2009). The Second Amendment: The intent and its interpretation by the states and the Supreme Court. Jefferson, N.C: McFarland & Co.

Fallon, R. H. (2013). The dynamic constitution: An introduction to American constitutional law and practice.

Farber, D. A. (2007). Retained by the people: The "silent" Ninth Amendment and the constitutional rights Americans don't know they have. New York: Basic Books.

Gard, C. (2003). The attacks on the World Trade Center: February 26, 1993, and September 11, 2001. New York: Rosen Publ. Group.

Hirsch, B. M. F. H. (2012). Anticipative criminal investigation: Theory and counterterrorism practice in the Netherlands and the United States. The Hague: T. M. C. Asser Press.

Jennifer K. Elsea. (2011). Comparison of Rights in Military Commission Trials and Trials in Federal Criminal Court. DIANE Publishing

Konvitz, M. R. (2001). Fundamental rights: History of a constitutional doctrine. New Brunswick, NJ [u.a.: Transaction Publ./Rutgers Univ.

McCormick, C. H. (2005). Hopeless cases: The hunt for the red scare terrorist bombers. Lanham, Md: University Press of America.

Murphy, S. D. (2002). Terrorism and the Concept of Armed Attack in Article 51 of the UN Charter. Harv. Int'l LJ, 43, 41.

Nowak, M., Schmidt, R., & Ludwig Boltzmann Institut für Menschenrechte. (2010). Extraordinary renditions and the protection of human rights. Wien [Austria: NWV, Neuer Wissenschaftlicher Verlag.

Paglen, T., & Thompson, A. C. (2006). Torture taxi. Hoboken, N.J: Melville House.

Pillar, P. R. (2001). Terrorism and US foreign policy. Washington, D.C: Brookings Inst. Press.

Rossum, R. A., & Tarr, G. A. (2009). American Constitutional Law, Volume 2: The Bill of Rights and Subsequent Amendments. New York: Westview Press.

Sebastian, P. (2010). Pre-emptive self-defence: "in an age of international terrorism, the law on self. S.l.: Grin Verlag Ohg.

Stephens, O. H., & Scheb, J. M. (2012). American constitutional law. Boston, MA: Wadsworth Cengage Learning.

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