the Nature of the United States’ Constitution

Chapter 3: United States of America’s Position 3.1 Nature of United States of America’s Constitution We had discovered on how Malaysia and United Kingdom’s both constitution protect the human rights and liberties of people. Now, we are going to explain how United States of America (USA) Constitution works to protect liberties of people. First, we must understand the nature and history of USA constitution.

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In USA, the constitution is the supreme law of the land. In other words, it is the rule of law in USA. Thus, any provision of laws is ultra vires against USA Constitution will be strike down. It has the same position with Malaysia’s Constitution and they are called as codified written constitution. Before the federation of USA is formed, thirteen states are colonized by the Kingdom of Great Britain. In 1775-1783, there is a revolution leaded by George Washington began as a war between both parties. This revolution is called as American Revolutionary War, or the American War of Independence, or Revolutionary War. [1] After Revolutionary War ended up, these states were free of the British monarch’s claim of sovereignty. Then, they went through a pre-government phase. At this phrase, there a group of man known as the Framers, who were come from all the states and having a meeting which is called as Convention. In this Convention, they were discussing and arguing what should include in a brand new Constitution. After the Convention, the drafting of Constitution had to be approved. Initially, only nine states had agreed to, and the remaining three states did not want to ratify the Constitution, because it did not contain of Bill of Rights. [2] However, USA Constitution was ratified on June 21, 1788. [3]Later, as the new Constitution took effect in practice, the concern over individual liberties gave rise to the amendment of the Constitution. Eventually, the Congress proposed the Bill of Rights, which contains 12 lists of Articles. In 1791, only 10 lists were accepted and being added to the Constitution. These ten changes are called as the first ten amendment of USA Constitution. [4] 3.2 Bill of Rights of USA Constitution As mentioned early, the first then amendments of USA Constitution is a Bill of Rights. As compared to Malaysia, Malaysia’s Constitution did have few articles on the provision of liberties and rights of people, but the articles are not as comprehensive as the ten amendments of USA Constitution. According to the Freedom in the House’s report, USA is recognised as a Free State. Besides that, the Freedom Rating in USA is 1.0 (1=best, 7-=worst). [5] From the report, we can see that the people in USA seem to having enjoyed great liberties. This is because the Bill of Rights had given comprehensive rights to the people in USA. The Amendments I-X are the Bill of Rights. For example, the Amendment I stated that: ‘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.’[6] This amendment had limited the power of Congress to make any provision of law to prohibiting the freedom of speech, of the press, the right of the people peaceably to assemble, and the right to establish a religion. Next, the Amendment II had given a huge right to people to bear arms, as it stated as following: ‘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.’ [7] In respecting the right of self-defence, USA Constitution had allowed the right to bear arms to the people. However, the people are can only keep and bear allowed weapon, as prescribed by the law. Amendment VI also provides right to fair trial to the people. [8]In this aspect, natural justice had been achieved and guaranteed by USA Constitution. Besides that, the Bill of Rights also protect other liberties, such as rights in criminal cases, right in civil cases, right retained by the people, and also even States’ rights. 3.3 Issue of Invasion of Privacy in Telecommunication According to Amendment IV of USA Constitution, it had provided the provision on search and arrest. It protects the right of people to be secure in their persons, houses, paper works, and effects, as to against unreasonable searches and seizures. [9]From this, public authorities cannot simply search and seizure any person or any property, unless it is reasonable and laws allow it. However, recently, it is reported that the USA government is spying on the people through their computers, phones, via mobile scanners and drones, and in many others ways. [10]The way of spying done by the government is destroying the right of privacy. All information of the people is obtained by the government in a manner of unauthorized, or we called it as unreasonable searches and seizures. There are many reported cases on the issue of invasion of privacy. In Mapp v Ohio[11], the plaintiff was requested by the defendant (police office) for permission to enter plaintiff’s house. However, she rejected due absence of search warrant. Later, the defendant and another two police officers broke in her house and search her house for a bombing suspect. She was arrested, prosecuted for possession of pornographic. The issue of this case was whether the evidence that was obtained in way of absence of search warrant is a lawful evidence that to be use in a trial. In this case, the Supreme Court ruled in favour of plaintiff, and applied the exclusionary rule to the states. According to this rule, it requires the courts to reject from evidence that was obtained in violation of the constitution’s ban on unreasonable searches and arrests. From this decision, we can see that the court tried to apply the Amendment IV to protect people’s right of privacy against unjust unreasonable searches and seizures. There is another issue of invasion of privacy in telecommunication rose in the case of Katz v United States[12]. In this case, the plaintiff was making a call to transmit illegal gambling wagers. However, the FBI was recording his telephone conversation via an electronic eavesdropping device contacted to the exterior of the phone booth. Later, he was convicted based on these recordings record. The issue of this case was whether the unauthorised recording of telephone conversation can be used as evidence in court and whether the right to privacy extend to the telephone booths and other public places. Again, the Supreme Court rules 7-1 in favour of Katz. It was held that a conversation is protected from unreasonable search and seizure under the Fourth Amendment, and the recording is unconstitutional due to absence of warrant. In short, according to two cases above, we can found that the judges of USA tried to interpret the provision of Amendment IV of USA Constitution as widely as possible. For example, in the case of Katz, the court ruled that wiretapping of telephone conservation without warrant is violated the right of privacy and the courts are favour in prohibiting any unreasonable search and seizures. Thus, the right of privacy in USA is highly protected and secured by the judges. 3.4 Issue of Rights to Bear Arms As stated above, the second amendments had provided the right to bear arms. It means that everyone in USA have the right or liberties to own and brings an arms. However, it causes a lot of problems. First problem is the right to bear arms is the main causes of murder cases. According to FBI’s report, in 2000, there are estimated 66% of the 15,517 murders were committed with firearms. [13] More than half of the murder cases are having connection with firearms in the tear of 2000! Besides that, it is reported that the residents who having a gun is 5 times more likely to commit suicide than residents who without arms. [14] Eventually, some citizens and politicians are arguing that the right of bears arm should be removed. From the statistics above, we can know that this liberty is triggering so many cases of murder and suicide, then why the government of USA still refused to remove this right. In order to answer this issue or question, we have to look at what Judge Richard Posner had said. He stated that whether the eighteenth-century American well understood the effect of incorporates this right into the Constitution is not material, but the Supreme Court had agreed that the right to bear arms is important for self-defence, which is as important at outside the house as inside. [15] From him, we can summarize that the right of bear arms is an important civil liberties for American, and it cannot be removed. Next, there is an important decision upheld or ruled by the Supreme Court in the case of District of Columbia v Heller[16], in order to answer the issue of removing right to bear arms. It stated that, in the sense of liberties, the Second Amendment right is not absolute, and it is not a right to keep and carry any weapon at all, in whichever manner whatsoever and for whatever purpose. The Court also suggested that the concealed weapons prohibition should be upheld or listed under the such amendments or any state law or any written law, in condition of do not violate the basic right to bear arms. From this decision, the right to bear arms is not being repealed, but being restricted to conform public order, in order to restrict people to having concealed weapons, and in the sense of liberties, they are allowed to bear some simple protective arms for the purpose of self-defence. 3.5 Civil Rights and Liberties in United State Although there are some infringement issue on the right of people in USA, but from the cases stated above, we can see that the judges had tried to give favour in the citizens to uphold their rights and liberties, according to what the Constitution had provided. Whatsoever, there must a reasonable restriction imposed on the rights and liberties of people, in a modern democratic society. However, we can conclude that USA has a vibrant civil society that enjoys strong constitutional protections.

[1] Michael T.Moe, Matthew P.Hanson, Li Jiang, and Luben Pampoulov, ‘American Revolution 2.0’ (GSV Asset Management, 4 July 2012) <> accessed 6 January 2014 [2] Crag Walenta, ‘The Constitution For Kids’ (6 August 2010) <> accessed 6 January 2014 [3] U.S. Department of State, ‘The Constitution of the United States of America with Explanatory Notes’ (2004) <> accessed 6 January 2014 [4] Ibid (2) accessed 6 January 2014 [5] Freedom House, ‘Freedom in the World’ (2013) <> accessed 6 January 2014 [6] Ibid (3) accessed 6 January 2014 [7] Ibid. accessed 6 January 2014. [8] Ibid. accessed 6 January 2014. [9] Ibid. accessed 6 January 2014. [10] WashingtonsBlog, ‘The Government Is Spying On Us Through Our Computers, Phones, Cars, Buses, Streetlights, At Airports And On The Street, Via Mobile Scanners And Drones, Through Our Smart Meters, And In Many Other Ways’ (WashingtonsBlog, 23 September 2013) <> accessed 6 January 2014 [11] Mapp v. Ohio – 367 U.S. 643 (1961) [12] Katz v. United States – 389 U.S. 347 (1967) [13] Anonymous, ‘Case Study: GUNS IN THE USA’ BBC World Service, <> accessed 7 January 2014 [14] Jason, ‘A Case for Gun Control’ <> accessed 7 January 2014 [15] Awr Hawkins, ‘CONCEALED CARRY COMING TO ILLINOIS: FEDERAL COURT STRIKES DOWN BAN’ (Breitbart, 11 Dec 2012) <> accessed 7 January 2014 [16] District of Columbia v. Heller, 554 U.S. 570 (2008)

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