Civil Liberties Cases 1
Civil Liberties Cases
Student’s Name
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Civil Liberties Cases
Introduction
The rule of law is the process that kernel the equality of all people in the country before the law by use of the power to rule (Habermas, 2017). Therefore, this implies that the creation of the rule of law is above everyone in the country despite the position that one held in the state. It also includes on how specific laws should be conducted in the country and certain qualities and characteristics that rule of laws hold.
Does a civil court have power over a military tribunal?
The military tribunal or commission as stipulated in the constitution of the country may use the rules as amended by the court-martial which might not be the right procedures of handling the cases or which might not be the in court tribunals. Contrarily, military tribunals do not enforce jurisdiction on the people who are asserted to be the citizens a country that was claimed to break the criminal laws of the country just like the case of Lambden P. Milligan who was sentenced to death by the military commission for being disloyal.
According to Justice David Davis, it was unconstitutional to hold trials of civilians by presidentially created military commissions more so through the military tribunal in the presence of the civilian court. Therefore, the military commission did not have the mandate to pass death sentences. To Milligan instead, he was to be released and be free by the constitution.
Just as amendment 5 states “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in limb or shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without process of law or shall private property be taken for public use, without being compensated”. Therefore, it was unlawful to pass a death sentence to Milligan as the constitution is clear on safeguarding the rights of the civilians (Habermas, 2017).
Did Schenck conviction under the Espionage Act for criticizing the draft violate his First Amendment right to freedom of speech? According to the constitution in amendment 4 it states “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be convicted, and no warrants shall issue, but upon possible cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Justice Oliver Wendell Holmes justifies that it was unconstitutional to convict Schenck who was against the constitution that was in the stake (Matsuda, 2018). Therefore, this violates Schenck’s first amendment right to freedom of speech.
Despite Schenck criticizing the draft, he was able to employ peaceful demonstration by the people against the draft and urging them to disobey it. As stipulated in the constitution he did not violate the first amendment right to freedom of speech as he used that formula to pass his grievances. From amendment 6 which states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall commit, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him to have compulsory process of getting witnesses in his her favor and to have the assistance of counsel for his defense”, this follows that Schenky has the responsibility to enjoys some of the freedoms as stated from the constitution.
In another hand, every citizen must enjoy some freedoms as peacefully indicated in the constitution. Just like the case of Schenk, he deploys peace ways of dealing with his grievances which does not hurt the government.
Do President and Congress go beyond their war powers by implementing exclusion and restricting the rights of Americans-Japanese descent?
According to amendment 5 which states that “no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, apart from the cases arising in the land, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be taken in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be jailed of life, liberty or property, without any process of law; nor shall private property be taken for public use, without just compensation”, this shows that the Present and Congress deed the right thing by implementing exclusion and restricting the rights of American of Japanese descent.
Korematsu violated amendment 14, section 1 that states “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside (Waldron, 2017). No country shall make or enforce any law which shall hinder the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life or property, without any process of the law; nor deny to any person within its jurisdiction the equal protection of the laws” since he does not possess American citizenship. Therefore, Justice Jackson argues that the exclusion order legitimized racism that violated the equal protection clause of the 14 Amendment which is the right thing as stipulated from the constitution.
In conclusion, a person under arrest should be brought before the court or the law to be charged guilty as stipulated by the constitution that governs the country. Not only that but also clear laws should be put in place to govern the country in all aspects of the political, economic social and religious rule (Habermas, 2017). Also, constitutions should be clear on the rights and freedoms of her people in the country, but also people should have the right procedures of practicing their liberty which does not victimize the government in whatever way. Consequently, the court has to be fair while handling cases by following the constitution of the country.
Reference
Habermas, J. (2017). On the internal relation between the rule of law and democracy. In Constitutionalism and Democracy(pp. 267-276). Routledge.
Matsuda, M. J. (2018). Public response to racist speech: Considering the victim’s story. In Words that wound (pp. 17-51). Routledge.
Waldron, J. (2017). Is the rule of law an essentially contested concept (in Florida)?. The Rule of Law and the Separation of Powers (pp. 117-144). Routledge.