Powers and Rights of the Constitution Institutional

¶ … Powers and Rights of the Constitution

INSTITUTIONAL POWER: The Constitution gives the federal government the right to form a military service, including what is now the National Guard (Army National Guard, 2011), though it does so in cooperation with the states and localities to serve their interests as well. This section is important for a number of reasons, including the fact that it reinforces the differences between the state and the federal government without weakening the role of the states to protect and defend themselves. It also helps ensure that the troops and resources are readily available in each locality when urgent issues of various kinds result. They can be used for natural disasters, various forms of social control, helping in other times or need, as well as to address more complicated issues like war and terrorism. This latter issue has become most important recently as localities look to be less vulnerable to certain kinds of attacks and to help form better relationships between law enforcement and the public (Docobo, J., 2005).

PERSONAL POWER: The right to peaceably assemble is guaranteed as part of the First Amendment. As noted on one site, this right encompasses, "The right of a citizen to peacefully 1) parade and gather or 2) demonstrate support or opposition of public policy or 3) express one's views is guaranteed by the freedom of speech and the right to peaceably assemble" (Bancuk, L., no date). Various court opinions have guaranteed this in a way that has made the demonstration and free speech elements critical, which can be seen in the recent Occupy movements going on at this time around the country. In addition, it can be said that this personal power helps establish the right of privacy that has been interpreted to be part of the Constitution -- an issue of importance again because the right of privacy was found by the courts because it helped to ensure that people could use their unique abilities to earn money from their abilities.

INSTITUTIONAL POWER TO REMOVE: Not necessarily remove but modify: the right to bear arms. It seems completely unnecessary to have this right written in a way that doesn't allow for cataloguing the weapons, monitoring their sales, or otherwise for determining if a person or organization is doing more than seeking to protect themselves. A key part of the Constitution is ensuring that individuals have the right to be armed to protect their interests. But this assumes that if a larger battle happens, it will be done by using the country's military; and if there is a need to change to protect individual rights, that the system will allow that to happen.

PERSONAL POWER TO REMOVE: What needs to be removed is the Right of Privacy, replaced perhaps in favor of a Right of Participation. There is no right of privacy in the U.S. Constitution. This right or at least various elements have given to us by interpretations of the Courts as being required expectations for other elements of liberty. One important element of this was then and is today our right to keep the value of what we do intact so that we can earn a living and sell our inventions. While this right is still cherished by most people today, in reality we give it away to other companies. Every time we accept a User Agreement for a new piece of software, or when we sign on to Facebook, or even agree to carrying cellular phones, we accept in reality that we will be participating in a corporation's privacy, not necessarily our own. Though we expect that these transactions with be fair and just, in reality we don't know this and have given up our guarantees of this. Rights of Participation could be created by us all to ensure that this new form of connectivity remains true to the meaning of liberty. (See the Electronic Freedom Foundation, https://www.eff.org/).

B. Popular Expressions of Art or Popular Culture

THE ART OF DEATH IN WAR: Near the city of Lafayette, California, the owner of a piece of property started several years ago to put white wooden crosses on his site in a way that allowed them to be highly visible to the large amount of automobile and public transportation traffic that went by daily. This Crosses of Lafayette presentation was seen as political but also as a piece of art (Crosses, 2007). He and the project's many followers did this specifically to draw attention to the true cost of the lives of Americans who were at war. The project grew quickly over the years and now has about 5000 crosses. The crosses have had many local impacts. One being that the area in California is seen as part of the liberal Bay Area, but also has many conservative religious areas. Thus the artist not only draws attention to the war and the war dead, but to the progressive side of the religious community that takes exception to the war. The crosses are obviously religious and make a Christian statement, which brings up other issues about diversity of faith and belief. The crosses went up during the Bush administration but are still there today even with Obama's moves to end the Iraq war.

REALITY TELEVISION SHOWS: There has been an explosion of television shows that were designed to showcase people living their real lives. While this idea was not entirely new, shows like Survivor, Amazing Race and American Idol exploded the concept to the front pages. What was less recognized about this trend was the creation of a broad range of public discussion television shows that involve a team of people talking about what they believe. Shows like The View, for example, are the most visible of examples of this format. They have gathered impact because they are open discussions of major issues, including war, terrorism, the American military and its impact on the view of our nation to the rest of the world. This approach followed similar trends online where blogging, posting, even media like Facebook and Twitter allowed everyone who wanted to have a voice where potentially thousands could be heard. This has likely influenced the way a Democrat president would decide some of his actions.

C. Identification of Two Pre-9/11 Homeland Security Events

Cuban Missile Crisis: Though somewhat obvious as a nuclear threat, the real issue of importance with this incident was the fact that at that time it was a direct threat to having foreign troops on our soil. The government, on many levels, reacted accordingly and did the best that it could to respond with counter military actions, and our elected representatives changed the laws to allow for more military power, the existence of public education campaigns and the like, not much different from what the Patriot Act does now. Except that in the past these actions often occurred out of sight and the public was lead to believe that the idea of the special nature of America was something we had to defend together.

War on Drugs: The Cuban crisis brought the forces of war to the forefront. But they also drew attention to the idea that America had an internal source of support that was important -- a psychological weapon of strength. It was because of the influx of drugs and an acceptance of their influence on the minds and sense of control of the nation's young people that many people saw this as a true attack on America's power. The young people talked about confronting "the establishment" and lawmakers were very concerned that these attitudes and the drugs were coming in from other countries whose real mission was to weaken our national unity.

D. Legal Counsel Exercise

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?

The Constitution gives the president the direct power to protect the people from internal and external threats. In addition, the War Powers Resolution and its reinterpretation and expansion after Sept. 2011 have affirmed this right, though there are many other interpretations about his command authority that have similarly established this right.

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 is called Rendition. As of 2009 appears that the step is legal from the viewpoint that the President of the United States has kept the right to use it (Savage, 2010). It is controversial and the public dislikes much of the idea, but the power is still available to the president.

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?

The chances of this depend on whether or not a successful act of terror actually occurred. If one did occur, the U.S. court system basically requires that the person or persons would get the chance to face their accusers, which means a case in the U.S. federal court system would involve courts in the general local where the terror occurred. So far this has not been allowed because the public responds dramatically to the idea of extending rights in this manner. Accordingly, the chances are that our people would have to use the military tribunals.

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?

Military tribunals are courts of justice that occur inside of the structure of the armed forces using various methods and rights allowed to those charged. The system is basically designed to give persons inside the military the right to certain degrees of protection from outside and unfair charges. However, because the military is a unique organization that relies on top-down command authority, the idea behind this system is to ensure that order and authority are maintained, and to guarantee that any actions that are prosecuted do not have to make public national security information. America's court systems are public trials and it is very difficult to keep any information in those types of cases secret.

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?

Technically, the U.S. does not spy on its citizens. It cannot do that for a variety of reasons relating to freedom of speech, the right to peaceably assemble, etc. However, the U.S. government through various law enforcement agencies does have the ability to infiltrate certain types of groups that can be shown to have an intention to break a criminal law. This includes the likelihood that even one or more individuals will engage in terrorism by themselves or in association with an outside group such as ours.

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?

Under current international law it could only be justified if the U.S. actually attacked, or if the UN recognized that the situation was such that a war was going to happen and then we acted with their permission (Lee, 2004). In reality, countries often defend their rights and that is usually an overriding justification if the country has the power to uphold the claim.

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 Constitution is the controlling document that sets up their government. It provides for the basic philosophies of the government, most of which include the ideas of liberty and freedom and the people having a democratic say in whom the members of their government are. It basically established three elements of government: the Congress, the President and the Courts. Congress is made up of elected representatives (two branches that are determined based on the rights of each state and the number of people who live in the states) whose job is to convey the thoughts of the public. This group then makes the laws. The president is the chief executive officer. He oversees the many departments, and administers how the laws are implemented. This includes all of the various offices that oversee everything from providing essential services to running certain criminal courts and law enforcement activities. In addition, however, he is given the authority to be the singular civilian leader of the military. It is prohibited for the president to be a member of the armed forces so that there can be no danger of his using the military establishment inappropriately. As a result of his administrative and command powers, he has the right to offer opinions and make recommendations on the forming of laws, policies and regulations. The third element is the court system. Its job is to administer the criminal justice system overall and to determine if the laws passed by Congress and approved (or not) by the President are allowable by way of the Constitution or past laws and legal practices.

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