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A Constitution up for renewal

Published: April 26, 2013
Section: Opinions


The United States Constitution, first adopted in Philadelphia in 1787, is now more than 200 years old and today there are many people, myself included, who are impressed with the Constitution’s vitality and durability. The rules, frameworks and guiding principles of America’s founding document still define and shape modern American politics. Yet, one can’t help but feel that from a contemporary point of view, the Constitution was written for a drastically different time. Notwithstanding the views of extreme right-wingers, some of its 18th century values today seem like chokeholds on the progress of the American nation.

This conflict between the new generation and the founding era has visibly manifested itself in several areas of modern political discourse. From the Second Amendment’s right to bear arms to the Fourteenth Amendment’s provisions for adequate due process, constitutional controversies abound as the American government and political system tries to adapt to the challenges of the 21st century. One of the most striking examples of this conflict reared its head once again, tragically, in the aftermath of a terrorist attack during one of Boston’s most joyous and celebratory traditions—the annual Boston Marathon.

More specifically, the debate that this horrific event reignited is one surrounding the rights of the accused in the case of terrorism and related activities. It has already been announced that the only surviving suspect, Dzhokhar Tsarnaev, was questioned without having been read his Miranda rights by law enforcement officials. Miranda rights, originating from the Supreme Court case Miranda v. Arizona, must be read to suspects in order to count their testimony and actions as evidence in a court trial. These include Fifth Amendment protections against self-incrimination and Sixth Amendment rights to legal counsel. In the decision of New York v. Quarles (1984), a “public safety exception” was created to allow law enforcement officials to question a suspect without reading him the Miranda rights if the accused’s answers have immediate public safety implications.

This is not the first time this issue has come up during the Obama administration, which has already issued very broad legal interpretations of this exception to vastly expand the sphere of acceptable interrogation. There are even members of Congress who have advocated for the labeling of the Boston attacks suspect as an ‘enemy combatant’ under the laws of warfare. Such labeling has been used in the past to justify interrogating a terror suspect without reading him his rights or providing him with legal counsel.

Organizations such as the American Civil Liberties Union will, of course, howl at these claims until the end of time. But the issue doesn’t only debate whether or not such interrogations are constitutional, or even whether these actions are morally justifiable. This controversy, among other things, highlights the disparity between the Constitution written to govern an America that fought wars using muskets and cannons and the Constitution required to deliver justice and the appropriate legal protections in an era of terrorism, cyber warfare and other unconventional methods of fighting. This episode is a stinging reminder of the grave need to update the Constitution as it is currently written. Now, this essential update could take one of many forms. On the subject of rights of suspects related to terrorism, I favor a system whereby the right to legal counsel and Habeas Corpus requirements may be waived when dealing with cases related to terrorism, national security or treason.

However, I wish America was at the point where we could be discussing these specific remedies to the many constitutional conflicts that have already surfaced and will inevitably surface in the future. But that is a discussion for another day, another time or maybe even another generation. Right now, let’s focus on getting Americans to recognize the dire need to adapt the Constitution to the values and principles of 21st century America, whatever those may be.

If anyone thinks that there are too many loopholes that the president can exploit, then that person should be leading the effort to close those constitutional and legal loopholes. Most importantly, we need to convince the country’s leaders to take real action on this problem and we might even find ourselves quarrelling less among fellow Americans.