Theories of Constitutional Interpretation, Essay Example

Connections and Disconnect

The Criminal Justice system, and specifically law enforcement, have a very large responsibility when it comes to fulfilling their role of getting offenders of the law off streets and into the penal system where they can be punished and rehabilitated. In addition, law enforcement can be held to an even higher level of scrutiny simply due to the nature of their jobs. There are very strict procedures in order to ensure the rights of the accused, found in the Fifth Amendment, are preserved–in addition to the rights given to the people outlining searches and seizures in the Fourth Amendment. However, this job can become difficult, in-depth, and full of necessary procedures in order to make sure the case cannot be scrutinized–or lends itself to the least amount of scrutiny–when going to the actual trial.

In fact, in many cases the presentation can depend on different and open-ended Constitutional interpretations Judge by Judge. There are also legislative hurdles that law enforcement agents must be mindful of in order to preserve the prior decisions in the American court system, or precedent cases. The American courts have an inconsistent amount of actual power–protections for the accused imbedded in the Constitution that absolutely must be preserved by law enforcement, as well as procedures that must be followed due to prior court cases and decisions are just some jobs the Courts are responsible for–however tainted by different constitutional interpretations, as well as unwelcome political alliances.

In the American political tradition, the Legislature is designated to make law, the Judicial System review law and hand down decisions, and subsequently the Executive–or its extensions–enforces those laws. Such is the separation of powers written into the framework of the Constitution, placed to ensure no one branch became too powerful. to better understand how these three arms or branches of the government coexist, we need to understand each branch, its functionality, roles and limits

The Legislature comprises of the US Senate, the House of representative and also importantly, the different agencies that work to support congress. The primary role and function of the US Senate and the House of Representatives is to compose, debate and pass bills that are then forwarded to the president who will the decide whether to approve or veto them. If a bill is passed by the president, it automatically turns into law. However if vetoed, the house can with two thirds majority in both the Senate and the House of Representatives supersede the president’s veto.

The judicial system or the judicial branch is appointed by the president, however it is the senate that confirms these appointed member of the judiciary. Congress, according to Article III of the US Constitution, has the power to determine the structure and shape of the judiciary, giving the congress the power to watch the judiciary and provide balance.th judges in the federal justice system can be removed only through impeachment by the House of Representative. This is the followed conviction by the senate. This ensures a process that is protected from political motives and only driven by justice. The Supreme Court has original jurisdiction as provided for in the constitution, one that cannot be stripped off by congress.

The courts are not allowed to try controversies, only actual cases. This means that the party that is accusing has to prove that they have been caused harm in order for a suit to be brought to court. In essence, the court cannot provide advisory opinions on the legality of actions or the constitutionality of laws. Most of the cases brought to the judiciary come from the district court.

The federal courts have the sole authority to translate the law, define the constitutionality of the law and apply these interpretations and translation to separate and specific cases as the court deems constitutionally correct.

The first Ten Amendments to the Constitution, the Bill of Rights, outlines civil liberties afforded to all Americans, with its own Amendment regarding the rights of the accused. The protections found under the 4th and 5th Amendments must be maintained. There are many factors that can get in the way of this system however, rendering the judicial ideal powerless and tainted. The Supreme Court, more recently allowing for more liberties for law enforcement, has shown it can interpret and enforce the Fourth and Fifth Amendments in vastly different ways. However, looking through history, there is substantial proof for the ineffectiveness of the Judicial System as a whole.

Some of these ideas do indeed have merit to them, and examples can be found in history to prove as such. Perhaps the earliest example in American history of the Judicial System being circumvented is during the Presidency of Andrew Jackson. Known as a large supporter of states rights over Federalism, Jackson went so far as to publically challenge the Court System on an issue that he differed in opinion. In 1831, in the case of Worcestor v. Georgia, the Supreme Court affirmed that the State of Georgia did not have the right to govern interaction between Native Americans and citizens of the State (Oyez, 2013). President Jackson is reported to have said something to the effect of, the courts have given their decision, and so let them enforce it.  This is not the correct way the Justice System was set-up to work–however, the door was left open for Jackson to do what he did–there was virtually no oversight for the Commander-in-Chief other than impeachment–used sparsely in American history as a tool of Congress to remove a President.

These harsh words used by Andrew Jackson to describe John Marshall’s decision were a direct reaction to the power Marshall himself had asserted in previous decisions. Marshall had taken the power of Judicial Review himself–being the first Supreme Court Chief Justice. Jackson saw his Presidential powers elite to any powers the Court maintained, and proved it by challenging Marshall to enforce his own decision. Naturally there is no military wing of the Supreme Court, making Marshall’s literal enforcement laughable and impossible. This is one of the main arguments against the relevancy of judicial decisions in criminal justice–there is no empirical way to actually enforce their own decisions. As the first Chief Justice, Marshall asserted the power of Judicial Review–something Jackson saw way beyond the scope of the Court–in the earliest court cases and most prolifically in Marbury v. Madison. The President’s words were a statement towards judicial review as a whole, as well as a mocking commentary towards its effectiveness.

The first use by large-scale law enforcement of voice recorders and wiretapping was in the years when Rudy Giuliani was a Prosecutor, and actively pursuing the Italian Mafia in New York City. This coincided with a new RICO Statute that allowed for a case to be made against the intricate criminal organization as long as they could prove the cohesiveness of the organization. Over a period of close to a decade, Giuliani’s used the massive amounts of evidence collected–much of it in the form of wiretaps or bugging conversations–to gradually pick apart the Four Families of the Italian Mob in New York City (National Geographic, 2013) in a constitutional way.

Looking contemporarily, it is true that warrantless wiretaps are unconstitutional, however when presented to the Supreme Court this has not been the case–upholding law enforcement’s right to wiretap under certain circumstances that are not clearly outlined. An originalist would see this as inherently unconstitutional–the 4th Amendment clearly protects a citizen against “warrantless search and seizure”. However, things have evolved dramatically since the reign of George W. Bush and the attacks of September 11th, 2001. The recent whistle blowing by NSA subcontractor Edward Snowden affirmed the extent of American secret intelligence–and truly the extent to which the Federal Government has been trampling all over the Fourth Amendment.

The Patriot Act, eventually struck down, allowed for digital wiretaps on virtually anyone in America. This is a post-911 United States, where the fear of the masses has allowed for infringements on civil liberties in certain circumstances. This is outlined in no better place than in the recent events taking place on a global scale due to the fallout left by former-NSA subcontractor Edward Snowden. Before eventually being granted asylum in Russia, Snowden sent the United States on a global manhunt to catch the man who leaked so much of United States intelligence to the general public. He exposed the extent to which the United States had the capability to spy on virtually anyone, at any time, and did so very frequently. Even governments of other countries, including allies, were not spared from the list of places and people the United States government was spying on.

The Fifth Amendment has come into question as well in recent cases revolving primarily around the US Military Base at Guantanamo Bay, Cuba. This remote base in an unfriendly area is home to a detention center for people–some American citizens–who have been accused of, or known to be, terrorists. The problem with this is for the citizens–and even the legal aliens–that sit in the prison, there was no 5th Amendment at all. The Guantanamo bay prison was built after the 9/11 incident. The prison though was built to detain very dangerous prisoners in a setting that ensures total security and also to prosecute war crime prisoners. The former prisoners and the current ones complain and report torture and abuse. The judiciary has shown little interest in suspending and/or closing the Guantanamo bay prison for security reasons.  Many who support the controversial techniques that are employed in the prison claim that the al-Qaida and the Taliban do not have the right to be given the same treatment as prisoners of war. This is because, according to them, these guerilla fighter do not serve under an official chain of command and do not don a distinct insignia. these were the opinions of Jim Phillips a member of The Heritage Foundation.

First of all, many have been detained without clear charges being levied against them–clearly violating habeus corpus. There was no Miranda Rights, or any semblance of proper due process or even a trial when dealing with Guantanamo Bay–the Fifth Amendment was just ignored. It may be being ignored still as long as that base remains open at its capacity. As long as someone was deemed an “enemy combatant”, it seems any hope for the rights of the accused are ignored, regardless of the promises to close the base. The prisoners at the Guantanamo bay prison have been branded illegal combatants and not prisoners of war. This was the justification that provided the guards grounds to subject them to inhumane acts that essentially deprives them of all their human rights as stated in the Fifth Amendment. The detainees have also claimed to have their religion abused. Furthermore the detainees claim that they were subjected to sleep deprivation, indefinite detention and beatings. All these are a violation of human rights, which is against the Fifth Amendment. Of note are the events of 2005 when detainees went on a hunger strike and were allegedly forced to feed through insertion of feeding tubes in their noses. Following these claims, the Department Of Defense invited the United Nation Special Rapporteurs to the Guantanamo Bay prison. This was however under the condition that the human rights representatives that would accompany the Unuted Nations envoy would not be allowed to conduct interviews privately with any of the detainees. The Unite Nations declined this offer.

Although the Supreme Court leans towards the conservative right anyway, there are some true Originalists on the Court that should by their beliefs disagree with these wiretaps–however they vote along the party lines they seek to appease. The politically affiliated judge adds another dimension to the question of the relevance of the Court. A good example would be the Election of 2000, when Al Gore’s presidency was stolen by the Supreme Court, and handed to Bush. As a rule, The Supreme Court is not supposed to decide on what is defined as a “political question”. If the decision directly affects the results of an election, it is clearly a political question. However, the Court chose to take the case, and place their fellow Republican George Bush in office.

Though there were many opposing arguments presented, that does not mean the system is broken. It was not even a lifetime ago the Court made such landmark decisions as Brown v. Board of Education–reversing the decision in Plessy v. Ferguson that asserted “separate but equal” in the African-American community. There are more contemporary examples of the courts’ relevance in real life–contrary to the opposition.

Simply looking at the Joseph Goldstein, as well as the Reuter’s articles, they revolve around New York City’s controversial “stop and frisk” law that allowed for unreasonable searches and seizures based on nothing besides law enforcement intuition. The entire stop and frisk dilemma outlines the main ideals of this thesis perfectly, outlining both the affirmative and opposing arguments perfectly–a law was enacted to stop a certain type of crime, and the law was abused. The law then went in front of a judge who agreed on its abuse, and used Judicial Review to strike it down. This is a perfect and unrivaled metaphor for the impact the judicial system can have on law enforcement.

Stop and frisk is a program within the New York Police Department (NYPD) where the Police have the right to stop any pedestrian, question them and frisk them for any weapons or contraband. This policy was effected was effected by the Criminal Procedure Law section 140.50. This law was triggers by the decision of the United States Supreme Court owing to the case of Terry vs. Ohio.

This policy and law that is employed has solicited quite a number of opposing and proposing views. The policy is greatly championed by most NYPD officers and the Supreme Court as it helps to address the great social problem that faces the city and state of New York, i.e. insecurity. It is undoubted that this policy has gone to great lengths to help curb levels of insecurity on the city and state of New York. However, this has also been faced with opposition.

Arguments against the Stop-and-Frisk policy state that the policy has been used as an instrument of racial profiling. This is clearly seen in the fact that over 80% of all the pedestrians who are stopped and frisked are of African-American or Latino decent. This has been the biggest and most significant flaw of the policy. Activist groups claim that the policy has gone as far as instituting illegal stops and violating citizens’ rights to privacy, this is withstanding that individuals from the African-American and Latino community are victimized by the policy. In many ways, the policy affects individuals from the minority groups and how the policy is being misused by the NYPD. This is because amid the 21^st century revolution for equality, there remains certain aspects of the society that is even engraved in the Law that still allows for racial segregation in the form of racial profiling

Most police officers, as well as the Mayor and the Police commissioner disagree with the Federal Judge’s decision–but that does not by any stretch of the imagination imply that they do not still have to follow her words to a tee, preserving the American Criminal Justice System. Once a judge strikes down a law or previous decision, in the adversarial United States Court system, that law or decision becomes void. It certainly remains to be seen whether this decision was similar to Marshall’s–pretty on paper, but never actually heeded or given and mind to.

Although there is an argument for both sides for the modern day relevance of the Court’s relevance in the larger atmosphere, it seems there will be a constant struggle between the factions of government for power–which will have a waning and cresting impact on the rulings of the justice system with regards to criminal justice.

References

Goldstein, Joseph. “Judge Rejects New York’s Stop-and-Frisk Policy.” Nytimes.com. N.p., 12 Aug. 2013. Web.

“Judge Names Research Group Chief to Help Reform New York Police ‘Stop and Frisk’ Policy.” NYtimes.com. Reuters, 04 Sept. 2013. Web.

“Fifth Amendment.” LII. N.p., n.d. Web. 13 Sept. 2013. <http://www.law.cornell.edu/wex/fifth_amendment>.

“Fourth Amendment.” LII. N.p., n.d. Web. 13 Sept. 2013. <http://www.law.cornell.edu/constitution/fourth_amendment>.

“National Geographic Society.” National Geographic Channel. N.p., n.d. Web. 19 Sept. 2013. <http://channel.nationalgeographic.com/channel/inside-the-american-mob/galleries/taking-down-the-mob/at/giuliani-1776667/>.

“Theories of Constitutional Interpretation.” Theories of Constitutional Interpretation. N.p., n.d. Web. 13 Sept. 2013. <http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html>.

Worcester v. Georgia. The Oyez Project at IIT Chicago-Kent College of Law. 12 September 2013. <http://www.oyez.org/cases/1792-1850/1832/1832_2>.