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The Magna Carta

Civil liberties (not to be confused with civil rights), revolves around the fundamental freedom of an individual within a geopolitical unit. This is typically defined as a constitutionally enshrined set of laws that protects an individual against an abusive or tyrannical government (or its agents).

1The modern concept of civil liberties can be traced back to the Magna Carta (initially known as The Great Charter of the Liberties of England, and of the Liberties of the Forest) of 13th century England. The ruling monarch of the land, the deeply unpopular King John Lackland of House Plantagenet (famously depicted as the villainous king in the tales of Robin Hood), faced a revolt from the feudal classes and clergy owing to his temperamental, incompetent and dictatorial rule.

With his coffers dry from successive wars that stretched back from the reign of his father, King Henry II, and brother, King Richard the Lionheart, and coupled with the growing threat of a French invasion led by King Louis, King John capitulated to the demands of his barons and entered the negotiating table. After a highly acrimonious and contentious negotiation, the Magna Carta was signed by King John and 25 of his most senior barons on June 15, 1215, at Runnymede, on a meadow along the banks of the river Thames.

2The Magna Carta severely limited the King’s royal powers and granted personhood to every single one of his subjects. Essentially, the Magna Carta guaranteed the following:

(i) The right of habeas corpus (Latin, you have the body), which stipulates that every man accused of an offence must be subjected to due process under the law, and members of the royalty in breach of the law will also be subjected to the same punishment applicable to commoners.
(ii) The separation of Church and the government, giving the Church freedom from unilateral government interference in making ecclesiastic appointments.
(iii) Establishment of the Great Council of the Realm, an elected body consisting of candidates drawn from the feudal class (barons, knights, etc.). Many consider this Council as the conceptual precursor of the House of Lords.
(iv) Matters of taxation and levies must be discussed with the Great Council of the Realm.
(v) Failure of the King or sovereign to adhere to these stipulations grants the Great Council of the Realm the option of using force or waging a war against the monarchy.

It was a revolutionary concept at the time, especially in light of the fact that the monarchy and the church have for centuries proclaimed that the Kings of England held their throne by divine right, and those who questioned their right to rule also questioned the will of God, and are thus branded as heretics.

The euphoria did not last long, however, as King John renegaded on the treaty as soon as he had managed to consolidate his position and secured his safety. Nevertheless, the Magna Carta is widely credited for its influence on the future constitution of England, along with those of its colonies centuries later, by virtue of the underlying principles of personhood and civil liberties contained within its framework.

The Conceptual and Philosophical Growth of Civil Liberties

johnlockeThe concept of civil liberties detailed in the Magna Carta evolved gradually over the course of the next five centuries, before eventually reaching its intellectual zenith during the Age of Enlightenment. The Enlightenment, a sociocultural movement between the 17th and 18th century that swept through Europe and featuring some of the most brilliant thinkers of the age, weaved the concepts of natural law and natural rights into civil liberties. It was perhaps best explained by the Father of Liberalism himself, John Locke. In his Second Treatise of Civil Government (Chapter 2, Section 4, Of the State of Nature), Locke contends that,

"To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another
; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty."

Locke's writings heavily influenced reactionaries within the political elite who were neck-deep in a bitter dispute with the monarchy. There was an urgent need to reframe the constitution to prevent a recurrence of the English Civil War (1642-1651), but King James II resisted efforts to push through formal legislations that require the monarchy to submit to the parliament. This ultimately culminated in the Glorious Revolution of 1688 that saw to his overthrow and the ascension of the joint-rule of his sister, Mary II, and her husband, William III, the Prince of Orange.

The parliament, drawing heavily from Locke's two treatises, passed the Bill of Rights of 1688 (later re-dated to 1689), a legislation that is widely held as one of the most influential in the western world and credited as a key philosophical element of the French Revolution (resulting in the French Declaration of the Rights of Man and the Citizen of 1789, the American Declaration of Independence of 1776 (and subsequently, the Bill of Rights of 1791), and the United Nations' Universal Declaration of Human Rights of 1948.

Civil Liberties In the United States

It was 1776, and the still-abstract United States of America was in the midst of a revolutionary war with its colonial masters, the British Empire. Following the Second Continental Congress held a year earlier, which saw the revolutionaries explicitly rejecting their allegiance to the throne of King George III, representatives from the thirteen colonies' Provincial Congresses met to officially adopt and announce the Declaration of Independence on July 4, 1776.

A committee was tasked with the creation of a legitimate rule of governance, and resulted in the creation of the Articles of Confederation and Perpetual Union (AoC), which became the governing doctrine of the embryonic nation and provided the legal framework for the establishment of the United States of America, the political and geographical entity comprising the thirteen colonial states.

It wasn't long, however, before the young Congress noticed disturbing flaws in the AoC, and the need for immediate constitutional reforms. Two overriding concerns dominated the discussions over the proposed reforms, namely, civil liberties and fiscal solvency. However, elements within the federal and state government were against these reforms, and discussions reached an impasse.

Matters came to head; however, when Captain Daniel Shays, a respected veteran from the Revolutionary War, organized an armed uprising against the state government of Massachusetts over charges of corruption and abuse of power, even as the state stood on the brink of an economic meltdown. Now known as Shays' Rebellion, the movement was in protest of the government's economic mismanagement, arbitrary and high taxation, abuse of power and the non-payment of salaries for civil servants (including soldiers). Shays pitchfork-waving militia, consisting of farmers and other unpaid war veterans from neighboring counties, terrorized the bureaucratic machinery of the local government in the surrounding areas for almost half a year.

The Governor of Massachusetts, James Bowdoin, declared that negotiating with Shays Army would only lead to "a state of anarchy, confusion, and slavery" and ordered a force of almost 5,000, led by General Benjamin Lincoln and General William Shepard, to deal with the 'rebels'. Shays and his men were summarily defeated, and many of them were condemned to death in resulting trials, accused of being traitors and agents of the British Empire (note: most of the men would later receive amnesty).

Despite their defeat, and other less publicized uprising in the country, Shay's rebellion brought the issue of civil liberties and fiscal responsibilities to national consciousness, forcing Congress and the States to take another look at the subject. The fact that several of the Founding Fathers, most notably George Washington, Thomas Jefferson and James Madison, threw their support behind the 'traitors', hastened the pace of the debate.

A protracted battle between the governing Federalists and the emerging Democrat-Republican Party ensued, but in the end, the AoC was replaced by the U.S. Constitution to act as the central legal document governing the nation. The new Constitution was formally ratified on September 17, 1787, in Pennsylvania. More importantly though, less than two years later, Congress approved the Bill of Rights and the ten amendments to the Constitution became law.

It is the Bill of Rights that has shaped and protected our rights as individuals since, and any attempt to understand the extent and scope of our civil liberties requires a thorough understanding of these ten amendments.

Challenges to Civil Liberties

There have been historical swings between periods of heightened legislative activism involving civil liberties throughout the country's history, as exemplified in the periods surrounding the Declaration of Independence, Civil War, World War I and II, Korean War, Vietnam War, and most recently, the War on Terror. Revocation and restrictions of civil liberties are usually followed by an easing off period that acts as a natural counterbalance.

We will refrain from commenting further, and instead, proceed to the candidates' position on the matter.

Current President of the United States

Barack Obama

Presidential Candidate Barack Obama
Obama Position on Civil Liberties

Civil libertarians and civil rights activists had high hopes that an Obama presidency would signal a reversal of the legislative challenges to civil liberties that were enacted during the Bush administration, specifically in relation to homeland security laws. However, there is a growing sense of disenchantment with the President over his perceived capitulation in the face of the ‘soft on terror’ charges made by his political opponents. So much so, Obama, with his long history of supporting civil liberties causes, is now seen as siding with the hawkish elements of Congress.

Legendary actor and prominent social and political activist, Harry Belafonte Jr., a noted Obama supporter, expressed his disappointment in the president’s approach to civil liberties while speaking after the screening of his autobiographical film at the Paramount Theater in Charlottesville on January 24, 2012.

“More important,” he said, are “the homeland security laws, which were written to such extremes that they defied imagination that anyone could have thought of those laws.”

That those laws made their way through Congress and were signed by the President, he said, “was an absolutely stunning experience for all of us, and certainly for some of us who saw it in the depth of its villainy.”

Looking out over the audience, Belafonte painted a darkly dramatic picture of the effect of laws like the USA PATRIOT Act and the recently passed National Defense Authorization Act (NDAA), signed on December 31 by President Obama.”
January 25, 2012: The Examiner, Belafonte criticizes Obama on civil liberties in Charlottesville

Obama’s signing of the wide-ranging $662 billion national defense bill, H.R. 1540 (National Defense Authorization Act for Fiscal Year 2012), in particular, has riled up civil liberties group. They accuse the President of abandoning his principles over political expediency. While a veto from him would not necessarily prevent a subsequent passing of the bill by Congress, it would establish his moral authority on the subject.

Activists are particularly concerned with Title X (Subtitle D, Section 1031-1032) of the Act, which authorizes the military to participate in domestic law enforcement and bypass the judicial process, which they believe is a direct infringement of the Fifth and Sixth Amendment, as well as the Posse Comitatus Act (U.S. Code § 1385), which states,

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
White House insiders, meanwhile, argues that eliminating these provisions from the bill would have prevented its passing in Congress, and create another legislative battle that would affect the nation’s defense budget, including the wages for our military personnel, and the President had to make a pragmatic decision.
“I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed. In hundreds of separate sections totaling over 500 pages, the Act also contains critical Administration initiatives to control the spiraling health care costs of the Department of Defense (DoD), to develop counterterrorism initiatives abroad, to build the security capacity of key partners, to modernize the force, and to boost the efficiency and effectiveness of military operations worldwide.

The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists…

… Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people.”
December 31, 2011: Obama announcing the signing of the NDAA

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