The Bill of Rights as the Centerpiece of Constitutional Order - Essay Example

Constitutional Issues Question The Bill of Rights The Bill of Rights has been described as the “center piece” of “constitutional order” in the US (Amar, 1131). The Bill of Rights establishes restraints on state power and at the same time protects the individual’s right in the criminal and civil process and permits several fundamental freedoms ranging from freedom of expression, the right to privacy, the right to bear arms to the right to due process (US Constitution). Collectively, the Bill of Rights establishes a standard for constraining the powers of the government and protecting the fundamental freedoms and rights of citizens (Rubin, p. 833). The most effective way of achieving this balance between governmental power and individual freedom is arguably the procedural fairness provided for under the Bill of Rights. In this regard, the procedural fairness provided for in the Bill of Rights is arguably its most important value. Procedural fairness is important because it preserves unto the individual the right to freely participate in political and economic life (Nueborne, p. 83). Moreover, procedural fairness counter-balances the fact that the freedoms and rights contained in the Bill of Rights are not absolute. In other words, there are exceptions to the right to free expression in that the government may curtail freedom of expression in situations where the speaker utters words that can be construed as hate crime or incitement to riot. Thus procedural fairness permits the speaker the right to a fair trial and the right to confront his or her accusers and to defend his or her right to free speech. Procedural fairness recognizes that any government can overstep its power to the detriment of the governed (Nueborne, p. 83). With entitlements to the right to privacy, protection of private property, the right to a fair trial, the right to bail, and so on, the Bill of Rights plays a supervisory role in the constitutional order. In other words, the Bill of Rights by providing for procedural fairness does not merely trust the government to legislate and govern and to respect the individual freedoms and rights of the population. The Bill of Rights provides for procedural fairness and in doing so, provides for “institutional enforcement mechanisms” of the rights and freedoms contained in the Bill of Rights (Nueborne, p.84). Institutional enforcement mechanisms are captured by procedural fairness by allowing for judicial review of the exercise of powers by the federal government, state governments and their agents. Even at the state level, state and state agents’ conduct is scrutinized by state judges by reference to the rights and freedoms contained in the Bill of Rights. Thus, as Nueborne puts it, procedural fairness establishes a “nationwide network” that are “engaged in constant surveillance of the activities of the governing majority” so that the rights and freedoms articulated by the Bill of Rights “are respected in everyday life” (Nueborne, p. 84). Procedural fairness is all the more important since the rights and freedoms contained in the Bill of Rights are not expressed in uncertain terms. Many of these rights and freedoms are “ambiguous” so that they can be open to interpretation (Nueborne, p. 84). Procedural fairness curtails the risk of inconsistent interpretations of the rule of law in relation to the individual rights and freedoms contained in the Bill of Rights. In promoting procedural fairness judges interpret and apply the Bill of Rights by reference to a system of precedents and thus assures consistency and greater uniformity of rights and freedoms for all (Nueborne, p. 85). In the final analysis procedural fairness ensures that in addition to ensuring that the government treats all individuals equally, procedural fairness also ensures that the government exercise its powers fairly and consistently and that any departure from the fundamental freedoms and rights contained in the Bill of Rights is done so in a way that is only necessary in a democratic society. Question 2: Marbury v Madison Marbury vs. Madison was an important Supreme Court decision because it interpreted Article III of the US Constitution which establishes the judicial branch of government as conferring upon the judiciary the right to review the exercise of powers by Congress. Thus Marbury vs. Madison ruled that the court is not bound by a law passed by Congress if that law was passed improperly and outside of the boundaries of the powers enunciated in the Constitution. Thus, the decision in Marbury v Madison contributes significantly to the constitutional order by holding that Congress and other governmental branches are bound by the Constitution and cannot enact a law or implement a policy that is inconsistent with the Constitution (Dooley, p. 151). On the facts of the case, outgoing President John Adams made last minute appoints to the judicial branch of the US. Some of the commissions, although signed by President Adams and authenticated by the Secretary of State had not been delivered before President Adams office tenure ended. One of the effected appointees, William Marbury took action under the Judiciary Act 1789 which allowed for an original action of mandamus to the US Supreme Court (Marbury vs. Madison). Although Marbury sought to have his commission recognized and enforced, the US Supreme Court dealt with the underlying issues. Those issues were tied to Marbury’s right to a remedy under the Judiciary Act 1789. In particular, the issue was whether or not the original jurisdiction of the Supreme Court as provided for under the Judiciary Act 1789 was consistent with Article III of the US Constitution. The US Supreme Court ruled that the power contained in the Judiciary Act 1789 was inconsistent with the powers of the Supreme Court as articulated under Article III of the US Constitution. The US Supreme Court ruled that Article III of the US Constitution specifically states that the US Supreme Court will have original jurisdiction in cases involving public officers and cases in which the party is a state. There was no discretion for the legislators to distribute power between the judicial branches. The court reasoned that if the Constitution intended to confer upon the legislators a discretionary power to distribute power, Article III of the Constitution would be rendered entirely ineffective (Marbury vs. Madison). Marbury vs. Madison therefore establishes that the judicial branch of US government has the authority to conduct judicial review of acts of Congress and therefore can check the exercise of those acts against the constitutional premise of the U.S. Constitution. This ruling was reinforced and exemplified by the US Supreme Court in City of Boerne vs. Flores 521 US 507 (1997). In City of Boerne vs. Flores, Congress passes the Religious Freedom Restoration Act 1993. The Act allowed for exceptions to the exercise of the right to religious freedom in circumstances where it was in the government’s interest to further state interest or where it was the only way to further the interest of the state (City of Boerne vs. Flores). The US Supreme Court ruled that the 1993 Act was inconsistent with the 14th Amendment to the US Constitution. The 14th Amendment provides for equal protection of the law and the protection of life, liberty and property without due process. Section 5 of the 1th Amendment confers upon Congress the right to enforce the rights enshrined in the 14th Amendment. The US Supreme Court Ruled that the 1993 Act was inconsistent with the 14th Amendment in that it was a justified and proportionate response to the protection of the rights contained in the 14th Amendment (City of Boerne vs. Flores). Essentially, City of Boerne vs. Flores, like Marbury vs. Madison holds that Congress/legislators are bound by the US Constitution. The City of Beorne vs. Flores goes a bit farther to reinforce the parameters of the exercise of powers by Congress. Question 3: Women and the Reform Movement of the 19th Century Urbanization and industrialization in the US during the 19th century gave way to a number of reform movements in response to cultural, economic and social changes attributed to urbanization and industrialization. Although the abolition of slavery was among the most contested issues, the plight of women became a central issue as women became increasingly active in the labor market (Volo and Volo, p. 4). American women were therefore reconsidering their overall participation in domestic, social, economic and political life (Volo and Volo, p. 5). The women’s reform movement during the 19th century became a public issue in 1948 when Lucretia Mott, Elizabeth Stanton and other political activists assembled at Seneca Falls in New York to debate issues effecting women in the US. The most important concerns was the marginalization of women both economically and politically. At that time the “Declaration of Sentiments” were drafted, giving voice to and setting the tone for reform for women (Bucki, p. 316). The reform movement that followed was referred to as the “women’s rights” movement, marking the pre-launch of feminism which followed in the 20th century (Bucki, p. 316). As a movement itself, the Women’s rights movement can be seen as a pathway toward more elaborate changes for women and the US as a whole. The changes in the 20th century would benefit not only American women, but would also coincide with reforms that benefited Black Americans including Black women. The women’s rights movement during the 19th century can be seen as a movement that heightened awareness of the plight of women and the marginalized in American political and economic life generally. It would gather momentum for change going into the 20th century. The women’s reform movement during the 19th century drew attention to the reality of women’s lives in America and the idealized biblical stance with respect to women. Women were increasingly joining the workforce and holding them to the domesticated and wholly feminine role dictated by the bible and religion was unsuitable and inappropriate. Women were said to have a more prominent role to play in political and economic life and therefore had a right to be treated fairly and to have equal opportunities to participate in economic and political life (Morita, p. 68). The underlying premise of the women’s reform movement of the 19th century was that women and men were equal and there should be no distinction between them in political and economic life. Women were just as entitled to the right to vote, the right to work and the right to participate in activities outside of the home. This line of argument would be made against a background in which it was largely accepted that men and women were not equal and that some things were unsuitable for women and should be left to men. The most obvious and contentious issue for the women’s reform movement was the right to vote and participate on the labour market. Women were increasingly joining the workforce but were excluded from some forms of work and were therefore relegated to low wage jobs. In the meantime, women were not allowed to vote (Morita, p. 69). By drawing attention to the unfair treatment of women when in fact, women were no different from men, a broader issue was raised: the discrimination against all marginalized groups including black women. Thus the women’s reform movement of the 19th century raised the stakes for larger reform that would give a voice to all minorities going into the 20th century where widespread changes would influence changes granting women the right to work and promoting equality for all Americans regardless of race and gender. It can therefore be argued that the 19th century reform movement laid the ground work for improving the social, economic and political lives of all American women regardless of race Works Cited Amar, Akhil Reed. “The Bill of Rights as a Constitution.” The Yale Law Journal, Vol. 100(5), (March 1991): 1131-1210. Bucki, Cecelia. Social History of the United States. Santa Barbara, California: ABC-CLIO, Inc., 2009. City of Boerne vs. Flores 521 US 507 (1997). Dooley, Patricia, L. The Early Republic: Primary Documents on Events From 1799 to 1820. Westport, CT: Greenwood Publishing Group, Inc., 2004. Marbury vs. Madison 5 US 137 (1803). Morita, Michiyo. Horace Bushnell on Women in Nineteenth-Century America. Lanham, MD: University Press of American, 2004. Neuborne, Burt. “An Overview of the Bill of Rights.” In Alan B. Morrison (Ed.). Fundamentals of American Law. Oxford, UK: Oxford University Press, 1996. Rubin, Peter, J. “Square Pets and Round Holes: Substantive Due Process, Procedural Due Process, and the Bill of Rights.” Columbia Law Review, Vol. 103(4), (May 2003): 833-892. US Constitution. Volo, James, M. and Volo, Dorothy Deneen. Family Life in Nineteenth-Century America. Westport, CT: Greenwood Publishing Group, Inc., 2007. Read More