The Constitution and civil liberties

                Few would dispute that the American Constitution provides a significant level of protection for our civil liberties. Some amendments are of course more important to the protection of civil liberties than others, but taken together, the Constitution can be said to defend the rights of American citizens against the abuse of power by the official authorities. When seeking to address the relationship between the codified document and civil liberties in the states; it is helpful to categorize into three areas; the rights of individuals, the rights of the majority and the rights of minority groups such as African-Americans. Let us consider each one in turn.

                The ethos of the Constitution (particularly the Bill of Rights and the fourteenth amendment) is very firmly upon defending the rights of individuals. Although the preamble makes reference to the general welfare and other elements of the common good, the framers of the Constitution placed the rights of the individual center-stage. This very clearly reflects a liberal mindset in terms of how rights are conceptualized; a point alluded to by the use of the phrase Bill of Rights. In ideological terms; the American Constitution clearly bears the stamp of liberal figures such as Thomas Paine, Baron de Montesquieu and Thomas Jefferson.

                The judicial branch has been able to use constitutional rights as a means by which to protect individuals against the abuse of power by politicians and law enforcement agencies. That said, the Supreme Court can only rule a law or action to be unconstitutional. It has no power of enforcement, and must wait for others to implement their decisions. This is a significant limitation upon the power of the judicial branch and by implication a significant limitation upon the ability of the Constitution to protect individual rights. Secondly, a decision taken in the Supreme Court may do very little to reverse previous abuses of power. Any judgment made on the basis of the Constitution does not necessarily provide any legal redress against that which has already occurred. That would require action by other levels of governance; including the states themselves.

                Any examination of constitutional rights must inevitably consider the inherent tension between the rights of the individual against those of wider society. There are few better case studies from the contemporary era than the 'war against terror.' The official authorities might legitimately claim that certain individuals pose a very real threat to our everyday liberties. As such, there may well be justification for employing extra-constitutional measures in order to protect the rights of the majority to go about their everyday lives. There is a lengthy history of administrations from both parties seeking to restrict the rights of certain groups, perhaps on a temporary basis; in order to serve the wider good. Moreover, this practice is hardly unique in the democratic world. Even the most die-hard libertarian would accept that certain individuals can pose a threat to our liberties and must be dealt with in an effective manner.

 

                The heart of the issue concerns what the Constitution intends to serve. The Bill of Rights (with the exception of the tenth amendment) was designed to protect the rights of individuals. That liberal discourse has been reflected in further amendments and rights that derive from judicial interpretations (such as Miranda rights in relation to the accused, or the right to privacy in regards to abortion). However, it is an undeniable fact that the rights of individuals have been suspended or curtailed when seeking to combat a war-time enemy. In the modern era, what makes the task more complex is how much substance there is to the claim that we are at war with terror. It is certainly not a war in the conventional sense of the phrase. However, there is a threat to our national security from hostile forces.

                Another related point is the tendency for those in power to impose ‘temporary’ measures that over time tend to become permanent. By their very nature, politicians seek power and are disinclined to throw it away. They are also inclined to exploit and exaggerate threats to our safety in order to maximize their own position in some manner. When people feel threatened or frightened, as the American public was after 9/11; they turn towards those in power to protect them and deal swift justice upon the perpetrators. The public are more willing to suspend certain rights and liberties in order to feel safe from possible harm. The Bush administration certainly enhanced the power of the federal government in the aftermath of 9/11, but it is somewhat telling that the Obama administration have been reluctant to reverse that process. Indeed, in some areas the power of federal forces has surely increased beyond that which would be permissible within the boundaries of the Constitution.