Enquiry Topics 1) When the first congress met after the government was established under the constitution, legislation was introduced to add a bill of rights. Why this action was necessary so early after the government was established? Why is the Bill of Rights so important?…
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The debates in the state legislatures for ratification threw up serious concerns about the absence of protection of individual rights in the constitution which could lead to the government imposing tyrannical controls over its citizens. James Madison, the principal architect of the constitution, promised that the document would be amended to include individual rights. Several key states insisted on amendments and two states, North Carolina and Rhode Island refused to ratify the constitution without such amendments (Bill of Rights Institute1, 2010). This was the reason of urgency in introducing the legislation when the first congress met. The Bill of Rights is important because it guarantees what are termed the natural or inalienable rights of people. In the US Declaration of Independence, these rights include “life, liberty and the pursuit of happiness”. The ten amendments to the constitution that make up the Bill of Rights describe elements of these natural rights and ensure that the government cannot enact any laws that contravene these rights of the people. (Bill of Rights Institute 2, 2010). Though most people would name the First Amendment that guarantees freedom of speech, religion, assembly as the most important, the Fourth Amendment which protects citizens against unreasonable search and seizure has greater importance in distinguishing the US from a totalitarian state. This amendment ensures that no search or seizure can occur without a warrant issued on the basis of probable cause. The warrant also needs to describe the place to be searched and the persons or things to be seized (Archives.gov, n.d) 2) What test is used to determine whether a police officer’s conduct constituted a “show of legal authority”? What factors are relevant in applying this test? How does the court determine when a seizure occurred? Why is it often necessary for the courts to pinpoint the exact moment a seizure occurred? By case law, a police officer is permitted to stop, interrogate and frisk a person if he has reasonable suspicion of wrong doing or to prevent the possibility of a crime being committed. Such detention or seizure without a warrant is considered to represent a “show of legal authority”. The courts recognize that such police action is in violation of the provisions of the Fourth Amendment but have balanced this against the need to give the police some discretion for effective law enforcement. A police officer is permitted to approach an individual in a public place and ask if he will answer some questions. The individual may decline to do so and that cannot be the sole grounds for detaining that person. The person so stopped may be frisked for hidden weapons if the police officer believes there is danger to his person or to others from the individual. In stopping such an individual, there must be no excess display of force such as the police officer drawing a weapon or multiple officers surrounding the person (Gorton, 1970). In various cases, the Supreme Court has defined seizure of the person to occur when a reasonable person believes that he or she is no longer free to terminate the encounter with the police and leave. In the 1991 case California v. Holdari, D., the court has held that seizure occurs when an individual is subject to physical force or a show of authority and the person yields to such force or authority (Sullivan, 2010). It is important to pinpoint the exact moment when a seizure has occurred because the courts are required to exclude
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