Download rather than starting with a general statement about how

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Exploring the Philosophical and Historical Basis of the United States Constitution
and a Limited Comparative Analysis of the U.S. Constitution with the Constitutions
of other Selected Countries
by Michael Kennedy
Constitutions are the vehicles in which most modern governments function. They are
where the structure and processes of the state are drawn out, and they provide the source of
power for their government. Constitutional countries do not look to monarchs or abstract ideas
for their legitimacy, but rather, their sovereignty is present in the document made at their
founding. The idea of putting a country’s power behind an enumerated constitution began in the
Enlightenment and was first carried out in the American Articles of Confederation. New ideas
and the rebirth of classical ideology during this period paved the way for a shift in the way a
government was formulated. The idea of constitutions evolved and reached its final American
form in the Constitution of 1789, but constitutions continued and were written for almost all new
governments in the following two centuries. History is useful and important in looking at how
these documents came to be. It is through the study of the ideas that the constitutions were
founded on that one is able to understand the traditions and trends that formed the legal issues
present inside them.
Some of the most important ideas throughout the history of constitutionalism were the
rights constitutions guaranteed for the people. Ideas on these rights have existed throughout
history, however, Western tradition rediscovered them during the Enlightenment and the notions
of rights have been tried time again in the time since then. Many would consider the rights
outlined and protected by these founding documents to be the constitutions’ most important
function, and with good reason as shown by the great unrest the obstruction of these basic rights
have caused in the societies of the world. Constitutional governments have addressed important
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liberties, such as the freedom of speech and press, religion and assembly, and the right to due
process.
This paper looks into the constitutional sources and traditions of four countries to
examine and compare their attitude towards basic civil rights in their sovereign documents. This
paper shall first explain the philosophies that each society’s constitution is founded on. This
analysis will include political ideologies, historical background, and religious persuasion on the
constitutions of the United States, France, Iran, and China. One will see the effect these sources
had on the structure of government created and then how individual rights were approached.
Strong emphasis will be given to the United States’ Constitution of 1789, as it was the first
freestanding document of its kind that is still in active existence and has served as a model for
many of the world’s later constitutions. Constitutions and their origins are not the only sources
of law on the matters of fundamental rights and legislatures, and courts have further shaped each
of the above societies understanding of liberties. Those documents will come into this research
as well, for one must strive towards the whole picture in attempting to compare the cultures’
approach to the all-important topic of basic liberties which enable the individual freedoms so
cherished since the time of Rousseau, Smith, and Montesquieu.
Granted, one cannot begin to discuss all the sources of each constitution and its rights in
their totality, however, this paper will attempt to give an in-depth analysis of the four countries
bearing in mind that not every origin may be completely uncovered. After all, the understanding
of history and philosophy are constantly developing, and one cannot claim to unconditionally
determine the absolute source for even one provision in the many declarations of human rights,
yet this tall order will be thoroughly examined in the following pages. Special attention will be
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given to the American Constitution, as it was the first, and Iran’s enumerated rights, due to their
controversial status in the international community.
Each constitution has a long history but perhaps the most extensive and controversial is
the United States’ current constitution that was drafted in 1789. Three major sources can be
shown in the inclusion of a Bill of Rights outlining fundamental liberties of American citizens.
The first is the shared history of the American colonies and their mother country, Great Brittan.
At the time of the American Revolution, England was known as the most liberty loving country
in the world. The long development of the “common law” as a protection against the injustices
of powerful men in society is the foundation for the common Englishman’s idea of liberty.1
These ideas were expanded upon by several documents limiting the absolute power of the
English kings and established a strong tradition of individual freedoms in the British mainland.2
The Magna Carta, signed by King John in 1215, guaranteed the rights of due process and made
for protection against any arbitral or tyrannical actions by the king.3 The Petition of Right, passed
by Parliament and enacted by the king in 1628, further interpreted and expanded upon the
medieval concepts present in the Magna Carta and was added to the many documents that make
up England’s “constitution”.4 The Bill of Rights of 1689, further shaped England’s conception
of individual rights and was, as explained by Richard Perry in Sources of Our Liberties, a “direct
1
Michael Les Benedict. The Blessings of Liberty: A Concise History of the Constitution of the United
States. (Boston: Houghton Mifflin, 2006), 3.
2
Richard L. Perry. Sources of Our Liberties: Documentary Origins of Individual Liberties in the United
States Constitution and Bill of Rights. (American Bar Foundation: Chicago, 1961), 1.
3
Magna Carta. June 15, 1215. Quoted in Richard L. Perry. Sources of Our Liberties: Documentary
Origins of Individual Liberties in the United States Constitution and Bill of Rights. (American Bar
Foundation: Chicago, 1961), 11.
4
Petition of Right. June 7, 1628. Quoted in Richard L. Perry. Sources of Our Liberties: Documentary
Origins of Individual Liberties in the United States Constitution and Bill of Rights. (American Bar
Foundation: Chicago, 1961), 73.
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ancestor of the bill of rights adopted by the states at the time of the American Revolution”.5 This
began a tradition of putting sovereign power into documents that structured the power of
government, instead of simply naming the king as the sovereign over the realm.
These ideas on liberty traveled across the Atlantic with the settlers of the American
colonies and took root in the fertile soil of the New World. Americans believed themselves to be
simply transplanted Englishmen, a notion that created troubles after the Seven Years War. As
Englishmen building new societies in the wilderness, the Americans turned to the ingrained
English tradition of writing up constitutional documents to base their government upon. The
royal charters given to corporations attempting to make a profitable colony on the shores of the
New World, such as the First Charter of Virginia in 1606 or the Ordinances for Virginia in
1618, outlined the basic structures for governance in the newfound colonies.6 The Massachusetts
Body of Liberties outlined the first “bill of rights” in America, and served as a ratification of the
Magna Carta. The basic right to due process was once again defined and the document gives the
right to free speech in courts and public assemblies.7
The colonists’ break from the mother country was brought about by the question of
rights; however, freedom of speech, the right of free exercise, and due process were not points of
contention. The reasons for rebellion were many, both philosophical and economic. The general
consensus, however, as put forth by Bernard Bailyn in his landmark work, The Ideological
5
Perry. Sources of Our Liberties. 244.
The First Charter of Virginia. April 10, 1606. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights.
(American Bar Foundation: Chicago, 1961), 39, The Ordinances for Virginia. July 24, 1621. Quoted in
Richard L. Perry. Sources of Our Liberties: Documentary Origins of Individual Liberties in the United
States Constitution and Bill of Rights. (American Bar Foundation: Chicago, 1961), 52.
7
Massachusetts Body of Liberties. December 10, 1641. Quoted in Richard L. Perry. Sources of Our
Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. (American Bar Foundation: Chicago, 1961), 148.
6
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Origins of the American Revolution, the fundamental catalyst was that Americas believed they
deserved the same rights and liberties in Parliament as true Englishmen and that these rights,
supposedly guaranteed by the many documents of the English constitution were being abused by
the current Parliament.8 Therefore, there was not an ideological break with England’s old view
of basic liberties after 1776; in fact, the rights outlined in England’s old constitutional documents
would resurface in the same manner they were originally presented in the Constitution of 1789.
The main historical source on American basic liberties is the English tradition of
constitutional government and enumerated rights; however, the French Enlightenment period
brought these rights to the forefront of the Founders’ minds through their many novel treatises on
how man should be governed.9 Rhetoric akin to John Locke in his Second Treatise of
Government heavily influenced the revolutionaries in their thoughts leading up to 1776 and in
the government they set up after.10 The Enlightenment concept of “natural rights” was
influential in establishing a constitutional protection of each man’s fundamental rights.11 The
combination of Enlightenment intellectuals’ ideas and the strong British constitutional tradition
led American thought to the idea of enumerating the three basic rights of religion, speech and
press, and due process.
The notion of a free press developed as a result of the licensing of the press by the Star
Chamber of England. This system was cause for much dispute during the revolution, as the
rebellious American papers were not legally allowed by the crown. By this time and after many
abuses, it was a common conception on both sides of the Atlantic that, in order for a true free
8
Bernard Bailyn. The Ideological Origins of the American Revolution. (Cambridge: Belknap, 1967), 138.
R. C. Van Caenegem. An Historical Introduction to Western Constitutional Law. (Cambridge:
Cambridge Press, 1995), 171.
10
John Locke. “Second Treatise of Government” Quoted in Michael Les Benedict, Sources in American
Constitutional History. (Lexington: D.C. Heath and Company, 1996), 5.
11
Benedict. The Blessings of Liberty, 66.
9
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state, the papers must be free from corrupt government control.12 The philosophers of the French
Enlightenment agreed with the English societal reformers and supported a freedom of speech in
their intellectual quests for truth.13 They had dealt with the heavy censorship of mainland
Europe, and believed society would be most apt to flourish in its full capacity if individuals were
given the right to speak their mind, both out loud in public and through influential pamphlets.14
The 1776 Constitution of Virginia, a landmark document in the eyes of the other fledgling free
states, was the first to explicitly give the right to a free press in the founding document.15 The
remaining states soon followed, as evidence by the Constitution of Pennsylvania and Delaware
Declaration of Rights that stated that both freedom of speech and a free press should be
preserved.16
The novel idea of freedom of religion was put into action in the modern world by the
colonists. The idea originated in the Enlightenment thinkers’ beliefs in science and humanism
and spread to public policy by their distaste in practicing traditional religion, Deism was a much
more attractive philosophy for the men of reason.17 As explained by R. C. Van Caenegem in An
Historical Introduction to Western Constitutional Law, most of Europe had had an established
state religion since the days of the Roman Empire and much bloodshed had occurred in pursuit
12
Perry. Sources of Our Liberties. 306.
Benedict. The Blessings of Liberty. 31.
14
Perry. Sources of Our Liberties. 425.
15
Constitution of Virginia. June 12, 1776. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights.
(American Bar Foundation: Chicago, 1961), 312.
16
Constitution of Pennsylvania August 16, 1776. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights.
(American Bar Foundation: Chicago, 1961), 328, Delaware Declaration of Rights. September 11, 1776.
Quoted in Richard L. Perry. Sources of Our Liberties: Documentary Origins of Individual Liberties in the
United States Constitution and Bill of Rights. (American Bar Foundation: Chicago, 1961), 338.
17
Benedict. The Blessings of Liberty. 29.
13
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of this reality.18 The Charter of Maryland was a radical step towards the right of free practice of
religion eventually set forth by the colonists, for Lord Baltimore, its Catholic founder, included
in the Charter the disestablishment of a state religion.19 The Charter of Rhode Island and
Providence Plantations of 1663 was a groundbreaking departure from the political religious
attitudes of the past. While it was not the first law in the Americas promoting the tolerance of all
Christians, the Charter, provided the first time such rights were explicitly given in a founding
document. Rhode Island’s very constitution included a provision for religious liberty of all its
inhabitants.20 The first freedom of religion right was present in Rhode Island’s constitution and
would provide a framework for policies concerning the establishment of religion throughout the
colonies. The Carolinas, New Jersey, and Pennsylvania soon followed Rhode Island’s example,
and a tradition developed that made the inclusion of a right to practice religion a one’s choosing
a natural course to take in 1787.21
The sources of the American Bill of Rights are the British constitutional tradition and the
ideas of the Enlightenment. However, America would have had a long struggle for enumerated
rights ahead if not for a group of unsung heroes, the Anti-Federalists.22 These loosely organized
men had many grievances against the Constitution set forth by the convention and so aptly
defended by the Federalist writings. One of their main concerns was the Constitution’s lack of
enumerated rights. The Federalist defended their absence by putting forth the idea that the state
18
Caenegem. An Historical Introduction to Western Constitutional Law. 164.
Charter of Maryland. June 20th, 1632. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights.
(American Bar Foundation: Chicago, 1961), 105.
20
Charter of Rhode Island and Providence Plantations. July 8, 1663. Quoted in Richard L. Perry. Sources
of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill
of Rights. (American Bar Foundation: Chicago, 1961), 169.
21
Perry. Sources of Our Liberties. 166-167.
22
Caenegem. An Historical Introduction to Western Constitutional Law. 164.
19
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constitutions already guaranteed the basic liberties of the people.23 Alexander Hamilton, in
Federalist 84, feared that a bill of rights would make an exclusive list of rights for the people,
meaning that the government could infringe on anything not explicitly protected.24 The AntiFederalists, however, remembered the struggle with supposed tyrannical England and wanted the
founding document of the republic to actually guarantee basic individual rights.25 In their
stubbornness, one may see the influence of the now-ingrained tradition of setting the peoples
liberties in a state’s sovereign power.26 Due to the influential Anti-Federalist writings, the
Federalists had to back down from their previous position and agreed that once the Constitution
was put into effect ten amendments would be added, effectively enumerating the rights of the
American people.27 The tradition and ideas of basic liberties may not have been originally
included into America’s Constitution without the support of the Anti-Federalists, and the first ten
amendments to the Constitution included freedom of speech, free exercise of religion, and due
process.28
France has a separate historical tradition than the United States and therefore may trace
its constitutional rights in a different way. France, an absolute monarchy until its famous
James Madison. “Federalist Number 38,” Quoted in The Federalist Papers. (New York: Mentor, 1961),
235.
24
Alexander Hamilton. “Federalist Number 84,” Quoted in The Federalist Papers. (New York: Mentor,
1961), 510.
25
Bryan Samuel. “Centinel I,” Quoted in The Antifederalists: Men of Great Faith and Forbearance, ed.
David J. Siemers (New York: Rowman and Littlefield Publishers, 2003), 77, George Mason. “Objections
of George Mason to the Proposed Constitution,” Quoted in The Antifederalists: Men of Great Faith and
Forbearance, ed. David J. Siemers (New York: Rowman and Littlefield Publishers, 2003), 88.
26
The Pennsylvania Ratification Convention. “The Address and Reasons of Dissent of the Majority of the
Convention of the State of Pennsylvania to Their Constituents,” Quoted in The Antifederalists: Men of
Great Faith and Forbearance, ed. David J. Siemers (New York: Rowman and Littlefield Publishers,
2003), 99.
27
Perry. Sources of Our Liberties. 424.
28
First Ten Amendments to the Constitution. December 15, 1791. Quoted in Richard L. Perry. Sources of
Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. (American Bar Foundation: Chicago, 1961), 432.
23
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revolution, did not have the benefit of a tradition in constitutionalism that the British gave to the
American colonists; however, the French possessed the intellectual center of the Enlightenment,
Paris.29 The Enlightenment ideas were not fully discussed beforehand because of the greater
importance of British tradition in American liberties. France’s most important influence in their
Declaration of the Rights of Man and the Citizen was the intellectuals of their own
Enlightenment, therefore it is necessary to go into further detail on such philosophes as
Montesquieu and Rousseau.30 Since France was so heavily ingrained in the philosophy of
absolute power of the king, there was a significant push by the Enlightenment thinkers to
promote the idea that sovereign power existed in the people and not in the monarch.31 As
explained in the social contract theory of Rousseau, the people must give their consent in order
to be governed and they may suspend some of their natural rights for the greater good of
civilization.32 As explained by Albert P. Blaustein in Constitutions of the World, consent of the
governed was the novel idea of the Enlightenment and all the rhetoric involving fundamental
rights of the citizen stems from this premise.33 French thought concerning the enumeration of
rights was a natural result of the mentality of sovereignty coming from the people and being
placed in a founding document. Since governments would inevitably attempt to gain more
power than the people wanted to give it, as evidenced by France’s long history of monarchial
rule, the people needed to set their natural rights before ever handing over power to the
29
Caenegem. An Historical Introduction to Western Constitutional Law. 98.
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available from http://www.hrcr.org/docs/frenchdec.html; Internet;
accessed 23 April 2011.
31
Ibid. 99.
32
Jean Jacques Rousseau. The Social Contract or Principles of Human Right trans. G. D. H. Cole, public
domain, 1762.
33
Albert P. Blaustein. Constitutions of the World. (Littleton, Colorado: Fred B. Rothman, 1993), 5.
30
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government of their choosing.34 The philosophes entrenched their philosophy into Western
thought, as shown by the first five articles of the Declaration of Rights of Man simply restating
the idea of popular sovereignty.35
While the philosophy behind France’s constitutional background was their own, the
practical application of these grand ideas was first put into action by the American colonists.
France received translations of the original thirteen state constitutions and saw their own ideas on
rights reflected back to them through the liberties guaranteed in the Constitution of Pennsylvania.
In 1786, the French philosophe Condorcet published Of the Influence of the American Revolution
on the Opinion and Legislation of Europe.36 France’s Declaration of the Rights of Man is then a
result of the American enumerations of liberties, which were applications of Enlightenment ideas
and the American’s own experiences. The heritage of France’s rights is therefore tied in with the
British constitutional tradition of due process, as well as the American’s own convictions against
the establishment of a state religion.
The idea of the constitutional state developed in the Western world through the Western
ideas of the Enlightenment; however, all but six nations of the world now possess a single
constitutional document where their state’s sovereignty supposedly comes from.37 The
philosophy created by British constitutional tradition and the philosophes spread to the rest of the
world through the same way all Western ideas did: colonialism. The idea of a constitution was
34
Caenegem. An Historical Introduction to Western Constitutional Law. 171.
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available from http://www.hrcr.org/docs/frenchdec.html; Internet;
accessed 23 April 2011.
35
36
37
Blaustein. Constitutions of the World. 5.
Ibid. 9.
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brought to Asia through the imperial powers of Europe, which came into conflict with
Confucianism, the dominating philosophy of Chinese law and order. As explained by Thomas
Chiu in Legal Systems of the People’s Republic of China, the traditional Chinese approach to
justice systems was through the idea that the courts existed to serve the well being of the state.38
This contrasts against the Western philosophy that the judicial branch should protect the rights of
individuals.
Confucian tradition is based on the concept that people naturally function in society
through authoritative relationships. As explained by Lawrence W. Beer in Constitutional Systems
in Late Twentieth Century Asia, everything a person does in his or her life is aimed towards the
fulfillment of this “natural progression of relationships.” The original form of this system of
authority existed with the emperor on top and all other ranks of society below him.39 No person
could question the superiority or decisions of one higher up in the social hierarchy and the law
was set to maintain this natural reality.40 Alice Erh-Soon Tay in “Asian Values an Asian
Nationhood” maintains that Confucianism does not solely place the society above the individual
for there remains an emphasis on “the moral cultivation of the individual”.41 These ideas were
altered by the West’s entanglement in Chinese affairs during the era of imperialism; however,
this cultural tradition still influences the way individual’s rights are viewed in China.
38
Thomas Chiu and Ian Dobinson and Mark Findlay. Legal Systems of the PRC. (Hong Kong: Longman,
1991), 19.
39
Lawrence W. Beer Constitutional Systems in Late Twentieth Century Asia. (Seattle: University of
Washington Press, 1992), 17.
40
Chiu. Legal Systems of the PRC. 2.
41
Alice Erh-Soon Tay. “Asian Values and Asian Nationhood,” in Constitutional Cultures, Miroslaw
Wyrzykowski, ed., (Warsaw: Institute of Public Affairs, 2000), 96.
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Chinese constitutionalism is not a native thought. It was brought upon them by the
West’s high regard for countries with written constitutions.42 China was exploited economically
by the American and European powers from 1842 until 1945.43 The supposed superiority of the
West’s trading influenced Chinese thought on changing their law to better suit the interactions
with the monetarily rich constitutional countries.44 The first Chinese constitution came into
effect in 1912 when it “replaced the oldest of monarchies with the newest of republics”.45 A
founding document was passed in which the people gave their sovereign power to the
government in ratification to the ideas of the Enlightenment.46
The Islamic Republic of Iran, like the People’s Republic of China, draws their
constitutional tradition from two conflicting sources: the Western ideas of the Enlightenment and
their own historical philosophy of Islam. Asghar Schirazi explains that the ideas of
constitutionalism came to Iran in the same way the rest of the world received them, through the
imperialist actions of the European powers.47 According to Ann Elizabeth Taylor the people
who created Iran’s first constitution in 1906 went against the religious clerics’ by turning to the
Western tradition in making the people sovereign in the establishment of the state.48 These
clerics, known as ulama, believed that the Enlightenment ideas contradicted the shari’a, which is
the established law of Islam. 49 According to Nathan J. Brown in Constitutions in a
Nonconstitutional World, Muslim countries since the time of Mohammed had been founded on
42
Beer. Constitutional Systems in Late Twentieth Century Asia. 4.
Ibid. 5.
44
Chiu. Legal Systems of the PRC. 3.
45
Blaustein. Constitutions of the World. 51.
46
Ibid.
47
Asghar Schirazi. The Constitution of Iran: Politics and the State in the Islamic Republic. (London: I.B.
Tauris, 1997), 18.
48
Ann Elizabeth Mayer. Islam Tradition and Politics: Human Rights (Madison: Madison House, 1992),
46.
49
Mayer. Islam Tradition and Politics. 68.
43
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the principle that Allah was the source of rule and that an individual’s loyalty was to Islam
through the state rather than to the political entity itself.50 The Westernized elite in the former
colony decided that they would take the Western idea of a constitution in order to promote the
nationalistic tendencies a document would inspire and to give bring Iran into the modern world
as put forth by the West’s political ideology.51
This constitution lasted a considerable time. However, it was not respected by the
following regimes supported by Western powers and its enumerated rights were neglected.52 An
opposition coalition of liberals and conservative forced overthrew the government of the Shah in
1979 and a new rule was established. Due to the common Iranian position against Western
involvement and against the history of colonialism, the ultra-conservative forces won the
struggles of the post revolutionary period and their leader, Ayatollah Khomeini, shaped much of
the new approach to government.53 He returned to the Islamic tradition of placing the religion
above everything and went so far as to make the state leaders all clerics who required his
appointment before being elected.54 This ended the idea that the people were the source of the
state’s sovereignty and the law was placed under the shari’a as interpreted by Khomeini.55 As
stated in the Second Article of their new constitution, Iran had become a constitutional
theocracy; however, democratic elements remained in the document as shown in the First Article
when the people’s choice is shown as the foundation of the new government.56
50
Nathan J. Brown. Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for
Accountable Government. (New York: State University of New York Press, 2002), 185.
51
Mayer. Islam Tradition and Politics. 47.
52
Ibid. 4.
53
Ibid. 51.
54
Brown. Constitutions in a Nonconstitutional World. 189.
55
Ibid. 190.
56
The Constitution of the Islamic Republic of Iran. October 24, 1979. Quoted in Ann Elizabeth Mayer.
Islam and Human Rights: Tradition and Politics. Boulder, (Colorado: Westview Press, 1999), 193.
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While Enlightenment ideas were supposedly utilized in the constitution, Khomeini’s
approach to the idea of enumerated rights followed the pattern of traditional Muslim attitudes
concerning the concept of fundamental liberties.57 Allah is at the top of the authoritarian
structure in Islam, and the “pious Muslim” is supposed to simply follow the shari’a given by
God. In Iran, the shari’a is interpreted by the leader or council of clerics who are therefore able
to act above the constitution as they may construe the source of the document.58 The people
should look to the absolute rules given to the by the leader and must follow them in order to be
granted a happy afterlife.59 Therefore, if a person is allowed individual freedoms they are only
being led into temptation to disobey Allah or “use their own fallible human reasoning powers to
challenge the supremacy of religious teachings”.60 Enumerated rights were not struck from the
constitution; however, they were modified in order to become acceptable to the ulama.61 Article
4 of the constitution says it best when it states,
All civil, penal financial, economic, administrative, cultural, military, political,
and other laws and regulations must be based on Islamic criteria. This principle
applies absolutely and generally to all articles of the Constitution as well as to all
other laws and regulations, and the fuqaha of the Guardian Council are judges in
this matter.62
57
Schirazi. The Constitution of Iran. 17.
Ibid. 12.
59
Ibid. 63.
60
Mayer. Islam Tradition and Politics. 45.
61
Ibid. 69.
62
The Constitution of the Islamic Republic of Iran. October 24, 1979. Quoted in Ann Elizabeth Mayer.
Islam and Human Rights: Tradition and Politics. Boulder, (Colorado: Westview Press, 1999), 193.
58
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Simply put, the clerics may refuse to abide by the rights set forth by the constitution if they can
show that it contradicts the rule of shari’a, a concept that severely limits the power of the
constitution to protect the people’s “universal” liberties.63
There have been and still are Muslim thinkers who believe that fundamental rights
recognized by the rest of the world are compatible with Islam and that tolerance is even
supported by the Quran; however, this opinion was not held by Khomeini in 1979 or by the
regime today.64 In keeping enumerated liberties in the constitution, Muslim thinkers were not
recognizing them or planning to uphold them in the future. Iran’s clerics wanted to do away with
the rights guaranteed in the past in order to once again bring their brand of Islam to the forefront
of society. They believed that simply pretending to enumerate rights and not enforcing them in
practice was the easiest way to remove them from the public’s consciousness.65 Due to Iran’s
lack of free elections, the outside world has a hard time determining what the people of Iran
think about this breach of what the West thinks of as their rights.66 Recent unrest, however, has
revealed the ideological differences between the ruling clerics and the people’s interpretation of
the two conflicting traditions behind Iran’s constitution.
While an important step towards rights for all citizens was the enumeration of basic
liberties in a country’s sovereign document, a complete analysis of constitutional rights must
consider how these words on a piece of paper effect the country’s actual practice of ensuring
these liberties. This concept of rights in action is heavily valued by Western society, while
China and Iran take a different approach to the liberties supposedly guaranteed by their
63
Mayer. Islam Tradition and Politics. 30.
Ibid. 43.
65
Schirazi. The Constitution of Iran. 294.
66
Mayer. Islam Tradition and Politics. 16.
64
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respective constitutions. This essay now returns to an analysis of America in order to discuss
how enumerated rights are understood and applied.
Because of its founding on British common law, the American legal system has shaped
the rights outlined by the Founding Fathers in the Bill of Rights. Case law and the
interpretations of countless judges and justices has given society a more holistic understanding of
the freedoms expressed in 1789. As explained by Bernard Schwartz in The Great Rights of
Mankind: A History of the American Bill of Rights, the early history of the Bill of Rights notes
little conflict or interference from the federal government.67 Not until the time of the Civil War
was the notion developed that the federal government would intervene in the obstruction of the
rights given in the Constitution if the states were involved.68 A notable exception to this general
rule would be the legal proceedings concerning the Treason and Sedition Acts, where all words
from the press speaking ill of the government, congress, or president were criminally punishable.
The Supreme Court finally ruled on the case in 1964 and found that the law “first crystallized a
national awareness of the central meaning of the First Amendment”.69
The free exercise clause of the First Amendment was challenged in 1878, where the law
outlawing polygamy was being questioned by Jehovah’s Witnesses.70 The Court upheld the law,
citing the logic that if the outlawing of polygamy were unconstitutional then the illegality of
human sacrifice, another plausible yet horrendous religious custom, would also be called into
question. The “compelling state interest” doctrine was applied by to the free exercise clause by
67
Bernard Schwartz. The Great Rights of Mankind: A History of the American Bill of Rights. (Madison:
Madison House, 1992), 203.
68
Ibid. 204.
69
Ibid.
70
Ibid.
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the Supreme Court after its establishment in Shapiro v. Thompson.71 This meant that the
government had to have a compelling interest in limiting an individual’s rights in the exercise of
their religion. For example, in Sherbert v. Verner, the state of South Carolina refused to give
Adele Sherbet unemployment pay because she would not work on Sundays due to her religious
beliefs. The Court ruled that since South Carolina had no compelling interest in the limitation of
Sherbert’s unemployment because of her religious practice, the state could no longer refuse her
benefits.72
The establishment clause of the First Amendment has also been challenged in the
Supreme Court throughout the years. In Emerson v. Board of Education in 1947, the Court ruled
that children would continually be allowed government funded transportation to both public and
religious schools. They cited the reasoning that the establishment clause simply meant that there
must be a separation of church and state, meaning that the two may not be intertwined or directly
influence each other that would infringe upon the rights of individuals desiring to practice their
own faith. The Supreme Court used the same ideas in the 1960’s, when in Engel v. Vitale the
Court declared that mandatory daily prayer in public schools was unconstitutional as it
“excessively entangled” the government and a particular religion. Recently, the use of
religiously inspired displays in governmental buildings has triggered a series of lawsuits across
America, such as Van Orden v. Perry and McCreary County v. ACLU of Kentucky. These were
judged upon on a case-by-case basis; however, a statue or display had to posses a proven secular
71
Ibid. 222.
Sherbert v. Verner Et Al., Members of South Carolina Employment Security Commission, 374 U.S. 398,
S.Ct. (1963) available from http://supreme.justia.com/us/374/398/case.html; Internet; accessed 23 April
2011.
72
Kennedy 18
value and not just be a religious monument.73 The American understanding of the freedom of
religion had grown through the years since 1791, however, the Supreme Court’s rulings have
kept the same general spirit as the American colonists first had when they broke from the age-old
tradition of established religion.
The freedom of speech was revisited in the 20th Century in a series of cases limiting what
kinds of speech are protected under the Constitution. As determined in Thornhill v. Alabama, a
state may not outlaw all peaceful picketing or protests but a state must have a compelling interest
in limiting these demonstrations.74 Symbolic speech was ruled upon as well; however, that
controversy continues to this very day. In United States v. Obrien, the “Obrien Test” was
developed by the Court to determine if the statute in question was a compelling state interest and
not just in existence to limit a point of view.75 This ruling is why Americans may burn their
national flags in symbolic speech of dissent with governmental practices. As put forth by Barker
in Civil Liberties and the Constitution, other forms of speech are also not protected under the
Constitution; including obscenity, hate speech, and speech meant to damage one’s reputation.76
Many cases have further fine-tuned these rulings. In Cohen v. California the Court explained that
73
Van Orden v. Perry. 545 U.S. 677 (2005). available from
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-1500; Internet; accessed
23 April 2011. McCreary County v. ACLU of Kentucky. 545 U.S. 844 (2005). available from
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=03-1693;
Internet; accessed 23 April 2011.
74
Thornhill v. Alabama, 310 U.S. 88 (1940) quoted in Lucius J. Barker and Twiley W. Barker, Jr. Civil
Liberties and the Constitution: Cases and Commentaries. (New Jersey: Prentice Hall, 1975), 110.
75
United States v. O'Brien. 391 U.S. 367 (1968). available from
http://supreme.justia.com/us/391/367/case.html; Internet; accessed 23 April 2011.
76
Near v. Minnesota. 283 U.S. 697 (1931), quoted in Lucius J. Barker and Twiley W. Barker, Jr. Civil
Liberties and the Constitution: Cases and Commentaries. (New Jersey: Prentice Hall, 1975), 114, Lucius
J. Barker and Twiley W. Barker, Jr. Civil Liberties and the Constitution: Cases and Commentaries. (New
Jersey: Prentice Hall, 1975), 118.
Kennedy 19
a state could not pass a law outlawing the simple use of a swear word, making obscenity only
applicable in extreme cases.77
Due process has been a treasured liberty since its origins under the Magna Carta and like
the other rights protected under the Constitution, the oldest liberty Americans identified with has
been interpreted and expanded throughout the years. As the courts’ interpretations of this right is
so extensive, only a general overview will be given in order to present the current state of
American due process liberties. The government must go through a process in order to search or
seize any American’s property and the Fifth Amendment also provides that a person may remain
silent in order not to incriminate himself.78 Americans also hold that anyone accused with a
crime is entitled to the right to have an attorney.79 The second half of the 20th Century brought
more reform to those awaiting trial by working towards a less prejudicial jury. In Irwin v. Dowd,
the Supreme Court ruled that because of press coverage the jury had been too prejudiced to make
an unbiased decision and therefore overturned a criminal conviction.80
The Fifth Amendment’s applicability was called into question during the debates on
state’s rights in the years preceding the South’s secession. In Barron v. Baltimore, the Court had
originally held that the Fifth Amendment could not be used against an individual state’s
infringement upon rights; however, this changed with the Civil War.81 The Fourteenth
Amendment attempted to circumvent individual states obstructing justice by making the Bill of
Rights apply to their governments as well as the one in Washington. The idea of due process
was further expanded in the 1870s to include “substantive due process”. This meant that while a
77
Barker. Civil Liberties and the Constitution. 123.
Ibid. 263.
79
Ibid. 267.
80
Ibid. 277.
81
Benedict. The Blessings of Liberty, 139.
78
Kennedy 20
state or federal law may have went through all the right procedures to be enacted, it may still
infringe upon someone’s rights as the matter of the law itself may be an affront to an individual’s
liberties.82
These fundamental rights of religion, speech, and due process are treasured by the
majority of Americans. Recently there have been massive education campaigns, such as those
supported by the Ad Council, to show people that they posses these rights. America’s founders
were deeply concerned about these issues and many of their enumerated rights came from their
experience with England and their Enlightenment education. As mankind’s first written
Constitution, the “American experiment” proved to be an example to the Western world that a
people could put their faith into a document and believe their liberties safe from tyranny. As
shown by American Supreme Court history, however, the people had to struggle to preserve,
expand, and explain the rights cherished by the Anti-Federalists.
The protection of due process, as stated by the Declaration of the Rights of Man, is as
follows.
“No person shall be accused, arrested, or imprisoned except in the cases and according to
the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be
executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue
of the law shall submit without delay, as resistance constitutes an offense… As all persons are
held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable,
all harshness not essential to the securing of the prisoner's person shall be severely repressed by
82
Ibid. 223.
Kennedy 21
law.”83 Such rights of due process were unheard of during the arbitrary rule of French monarchs,
as evidenced by the amount of political prisoners freed in the Bastille, and the French people
enjoy the right to due process in trial to this day.84
The Declaration also addressed the issue of the “free communication of ideas and
opinions” by holding that it “is one of the most precious of the rights of man”. This approach
grew directly from the Enlightenment philosophes and provided the French people the freedom
to speak, write, or print their own opinions or fancies. The document, however, clearly states
that any abuses of this freedom are punishable by law.85 As explained in John Bell’s Principle of
French Law, the current government fully upholds the establishment set in the Declaration in the
case of newspapers or other works of print; however, the government may authorize and control
television for entertainment because its influence is “considerable”.86
Since the time of Charlemagne, France’s religious history consisted of the absolute rule
of the Catholic Church and its complete intertwining with the government.87 There were
frequent prosecutions of the Huguenots and other minority French Protestant groups. The
revolution radically put a stop to this and the Declaration states “no one shall be disquieted on
account of his opinions, including his religious views, provided their manifestation does not
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available from http://www.hrcr.org/docs/frenchdec.html; Internet;
accessed 23 April 2011.
84
Blaustein. Constitutions of the World. 19.
85
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available from http://www.hrcr.org/docs/frenchdec.html; Internet;
accessed 23 April 2011.
86
John Bell and Sophie Boyron and Simon Whittaker. Principles of French Law. (New York: Oxford
Press, 1998), 159.
87
Caenegem. An Historical Introduction to Western Constitutional Law. 100.
83
Kennedy 22
disturb the public order established by law”.88 The 1958 constitution expanded upon this idea by
stating, “France shall be an indivisible, secular, democratic and social Republic. It shall ensure
the equality of all citizens before the law, without distinction of origin, race or religion. It shall
respect all beliefs”.89 Current debates center around a law passed in 1905, when all churches in
France were confiscated by the government but all their respective religions were allowed to use
the buildings for no charge. As explained by Brigitte Basdevant-Gaudemet, many liberal French
feel that this gives the old established French religions an unfair advantage against France’s new
religions.90 Islam in France has turned into a source of major conflict between the established
French and Muslim immigrants. Some Muslims have been denied full access to cemeteries of
their choosing, have not been seen their religious rituals given the same respect present in
Christian traditions, and have several gripes with the French national system of education.91 A
2004 law banning prominent religious symbols at schools has also caused controversy
worldwide. This law could possibly limit both freedom of speech in the American sense that a
religious symbol is a form of “symbolic speech,” as well as limiting the practice of religion.
Although France is not run on a common law system, the French courts will be able to judge the
extent that the law will be carried out to.
France, having gone through a staggering sixteen constitutions, has kept the Declaration
of the Rights of Man and the Citizen at the heart of its constitutional law. As explained by James
T. McHugh in Comparative Constitutional Traditions, not only has the Declaration proved to be
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available from http://www.hrcr.org/docs/frenchdec.html; Internet;
accessed 23 April 2011.
89
French Constitution of October 4, 1958. available from http://www.assembleenationale.fr/english/8ab.asp; Internet; accessed 23 April 2011.
90
Brigitte Basdevant-Gaudemet. “Legal Status of Islam in France,” in Silvio Ferrari ed., Islam and
European Legal Systems. (Vermont: Ashgate, 2000), 105.
91
Ibid. 108.
88
Kennedy 23
a major influence in human rights throughout the world, but it still the document where France
references in protecting its basic rights.92 The rights enumerated in the 1946 Preamble take
second seat to the liberties drawn up in 1789.93 The use of these two documents remains
informal but in a practical matter the cultural and political effect make them the most prominent
sources of modern French liberties.94 France is still tied to the brilliance of its Enlightenment
through the radical ideas presented by the philosophes that most of the world now considers
authoritative on government from the people. France has remained true to the philosophical
underlining that shaped their first constitution, and although China seems to draw from France
and America’s example, it too retains its collectivist tradition on the subject of enumerated
rights.
China’s current incarnation is the People’s Republic of China and their constitution of
1982 seems share many of the structures and rights of Western governments.95 Article 35
enumerates the right of speech and Article 36 also allows for freedom of religion. Article 40
“guarantees the confidentiality of correspondence” and Article 41 provides for the right to be
critical of state officials.96 The People’s Republic of China even gives many due process rights
recognizable as Western traditions. The constitution states that arrests are only permitted with a
court order, unlawful searches are not permitted, the accused are allowed legal counsel, and
those accused are presumed innocent.97
92
McHugh, James T. Comparative Constitutional Traditions. (New York: Peter Lang, 2002), 152.
Bell. Principles of French Law. 157.
94
McHugh. Comparative Constitutional Traditions. 147.
95
Beer. Constitutional Systems in Late Twentieth Century Asia. 55.
96
The Constitution of the People's Republic of China. December 4, 1982. availablefrom
http://www.usconstitution.net/china.html; Internet; accessed 24 April 2011.
97
Beer. Constitutional Systems in Late Twentieth Century Asia. 77, Chui Legal Systems of the PRC. 92.
93
Kennedy 24
Unlike the majority of the Western world, China does not, in practice, use their
constitution to run their government. There is a wide disregard for the supposed founding
document in the way to quasi-communist state functions.98 Likewise, the Western thoughts on
enumerated rights are equally disregarded by the enforcers of the People’s Republic of China.99
Despite constitutional appearances, the current Chinese philosophy on civil rights remains
ideologically distant from the West. The foundational principle of Enlightenment thought on
liberties, the idea that universal basic rights exist and need to be protected, is not followed in
China.100 According to the Chinese representative at the World Conference on Human Rights at
Vienna, the Chinese believe their culture does not require the same rights and liberties granted to
others and this radical difference in rights philosophy has caused conflict with Western countries
hoping for a “moral” China.101
One does not need to look hard to find abuses of the supposed rights given by the
People’s Republic of China. Due process and free speech rights have been continually
disregarded, as evidenced by the trial of Wei Jingsheng.102 Wei Jinsheng was a leader in a vocal
student protest that criticized the way the government was running the country. Free speech was
an enumerated right in the constitution; however, Jinsheng was sentenced to fifteen years in
prison for speaking against the People’s Republic.103 Political prisoners are also supposedly
commonplace in China, many being held on trumped up charges in violation of their right to due
98
Beer. Constitutional Systems in Late Twentieth Century Asia. 72.
Beer. Constitutional Systems in Late Twentieth Century Asia. 56.
100
Alice Erh-Soon Tay. “Asian Values and Asian Nationhood,” Miroslaw Wyrzykowski ed.,
Constitutional Cultures, (Warsaw: Institute of Public Affairs, 2000), 85.
101
Ibid.
102
Beer. Constitutional Systems in Late Twentieth Century Asia. 78.
103
Ibid.
99
Kennedy 25
process104. More recently, the Chinese government has censored many popular expressive
websites such as YouTube and Yahoo!, much to the dismay of those hopeful of the internet’s
potential to inform the Chinese people of the Western ideas on rights.105 The Chinese
government also unduly influences the means of communication. In violation of their
constitutional rights of free speech and a free press, the Communist Party controls the media’s
responses to news throughout China and the world.
Religious freedom, although explicitly enumerated for their constitution, is also restricted
in China. The People’s Republic of China, due to communism’s disdain for religion in general,
attempted to fully destroy religious practices in their state during the Cultural Revolution. The
1982 constitution grants the freedom of religion, however, “religious bodies and religious affairs
are not subject to any foreign domination”.106 This means that the state must control all religions
practiced and therefore Roman Catholicism and Tibetan Buddhism come into severe conflict
with the Chinese authorities. All members of the Communist Party are supposed to be atheist
and while many disobey this mandate, their economic rights are thereby limited.107
The Chinese government’s understanding and utilization of basic civil liberties is limited
when looking through Western eyes. The Confucian tradition of the state’s rights over the
individual’s has been tried and tested throughout China’s five thousand year history. The
Chinese government and a good portion of their people believe that the state’s superiority is the
way China runs best, but change may be in the future. China originally adopted a constitution
104
Ibid.
Marc Gunther. “Tech execs get grilled over mainland China business: Yahoo, Google, Microsoft and
Cisco, facing attack in Congress, say they're doing more good than harm in China." (CNN. 16 February
2006.)
105
106
The Constitution of the People's Republic of China. December 4, 1982. available from
http://www.usconstitution.net/china.html; Internet; accessed 24 April 2011.
107
Beer. Constitutional Systems in Late Twentieth Century Asia. 78.
Kennedy 26
and enumerated rights in order to become familiar to Western powers they wanted to trade with.
As Chinese economic policy comes more in line with the capitalism of the West, there might be
a shift towards the political thoughts that began in the Enlightenment and China may finally
develop an actual respect for the fundamental rights recognized by most of the world.
The Islamic Republic of Iran and the People’s Republic of China share the concept of
enumerating rights in a constitution and then disregarding them in practice. Iran, however,
actually allows for the ignoring of these basic liberties through the use of small clauses at the end
of each right. Each supposedly fundamental liberty may only be protected as long as the
exercise of that right does not contradict the rule of shari’a law.108 For example, Article 24 of
the constitution states, “Publications and the press have freedom of expression except when it is
where there is infringement of the basic tenets of Islam or public rights”.109 This type of
enumeration allows for the Iranian government to tread on the rights of the people whenever they
feel the need to.
Almost immediately after Khomeini’s forces seized power, the repression of the
opposition press began. This movement was so effective as to limit the number of newspapers in
Iran from 444 in 1979 to 121 media sources in 1988.110 Two laws limiting the press were passed
by Iran’s government in the years after revolution. The first required all forms of media to
obtain a license from a special commission in order to spread news to the people of Iran and the
second gave that commission the power to continually watch over the country’s media. The
most prominent among the requirements of a state approved newspaper or television station are
108
Schirazi. Constitution of Iran: Politics and the State in the Islamic Republic. 17.
Constitution of the Islamic Republic of Iran. October 24, 1979 As Amended to 28 July 1989. Quoted
in Ann Elizabeth Mayer. Islam and Human Rights: Tradition and Politics. (Boulder, Colorado: Westview
Press, 1999), 198.
110
Schirazi. Constitution of Iran: Politics and the State in the Islamic Republic. 135.
109
Kennedy 27
the promotion of the Islamic Republic and the propagation of Islam.111 These stipulations point
to another abuse of a liberty the West takes for granted: the freedom of religion.
As put forth in the constitution’s preamble and continually referenced to throughout the
document, Iran is founded upon the tenants of Islam and is actively ruled by the interpreters of
the shari’a.112 The Western idea on disestablishment of religion has no hold in Iran; Islam is the
established state religion and receives active support from the government.113 Islamic law, not
the people, is where the government derives its sovereignty.114 Not only is Islam the state
religion, but also the practice of other religions is limited in ways not practiced in the West since
the Enlightenment. Article 23 of the constitution states, “The investigation of individuals' beliefs
is forbidden, and no one may be molested or taken to task simply for holding a certain belief”,
however, this freedom of religion or belief is regularly abused by those attempting to uphold
Islam’s dominance in Iran.115
Certain religious minorities are allowed to practice their beliefs in the Islamic Republic:
Christians, Jews, and Zoroastrians.116 Iran’s constitution only says that people are free to
“perform their religious rites and ceremonies, and to act according to their own canon in matters
of personal affairs and religious education.”117 Since Islamic law is above Iranian law, this idea
may be attacked and even allowed minorities have been persecuted since 1979.118 Iran’s abuse
of the right to free practice of religion goes beyond their attitudes in the past. The problem today
is that Islam rules the state as an ideology. This concept shows itself through the discrimination
111
Ibid. 136.
Mayer. Islam and Human Rights. 53.
113
Shirazi. The Constitution of Iran: Politics and the State in the Islamic Republic. 9.
114
Mayer. Islam and Human Rights. 53.
115
Constitution of the Islamic Republic of Iran. 198.
116
Mayer. Islam and Human Rights. 141.
117
Constitution of the Islamic Republic of Iran. 197.
118
Shirazi. The Constitution of Iran: Politics and the State in the Islamic Republic. 145.
112
Kennedy 28
of other religions including other branches of Islam besides Shi’ism, the accepted brand currently
in power.119
Another alien concept to the West would be Iran’s criminal prosecution of apostasy
against Islam.120 As evidenced by the rapidly growing numbers of Muslims in the world, few
want to convert out of their religion; however, the ban against conversion may apply to those
who have been of a different religion for generations.121 Minority religious groups may be
persecuted under the charge of apostasy if the idea exists that their ancestors once turned their
back on Islam for the minority religion.122 The shari’a does not call for the deaths of all
apostates; in fact, many Muslims believe their religion is grounded in the ideas of tolerance as
historical evidence points to. This may point possible abuse of Shari’a by the state to further
their goal of maintaining political power.123
In order to enforce Iran’s views on basic civil rights, the government abuses the right of
due process developed by British tradition and French Enlightenment thinkers. This is especially
prevalent in the persecutions of minority religious groups. Ann Elizabeth Mayer effectively
sums up the due process problem in Iran while saying,
It is well established that Baha’is are persecuted on the basis of their religious
beliefs, because the trumped-up charges of offenses against Iran’s secular laws
119
Mayer. Islam and Human Rights. 142.
Ibid. 149.
121
Ibid. 150.
122
Ibid. 151.
123
Ibid. 157.
120
Kennedy 29
have been dropped when and if accused Baha’is have been willing to repent of
their theological errors and proclaim their adherence to Islam.124
The founding philosophy behind the Islamic Republic of Iran is that the shari’a is above the
secular law; therefore due process rights essential to the Western legal systems are unheard of in
Iran. Ultimate authority rests with the Islamic clerics and their interpretation of the facts and the
shari’a125. Religious minorities and political dissidents are not allowed to choose their lawyer or
completely denied access to one.126
Critics throughout the world criticize Iran’s practice of the denial of human rights in
much the same way as they do to China. Many believe the idea that traditions in these countries
are so fundamentally different is simply a tool of “cynical elites” to prevent the people from
having the same rights as the Western world in order to continue with totalitarian
governments.127 After careful study of these non-Western societies’ approach to the topic of
basic rights, one must realize that tradition and its conflicts with other traditions have shaped
each civilization’s ideas on how their government should operate. China and Iran’s attitudes
towards rights may be attributed to their rejection of colonialism and the West’s involvement in
their societies.128 These two countries contrast with the individualistic notions of the
Enlightenment that are so cherished by Western culture. Their authoritarian traditions put the
state or religion before the rights of the individual people; however, each pays lip service to the
Western idea of basic liberties in their constitutions.
124
Ibid. 165.
Ibid. 53.
126
Ibid. 165.
127
Ibid. 28.
128
Ibid. 51.
125
Kennedy 30
The current Western view on fundamental rights is a tradition that began in medieval
times, grew in the Enlightenment, and was put into practice at the end of the 18th Century. The
sovereignty of the people is a cherished philosophy and enumerated basic rights are what shield
the people from encroachment of tyrannical government. The United States of America is a
powerful reflection of this ideology and the idea of fundamental liberties is deeply ingrained in
the mindset of the American People. France, although utilizing a different legal system than the
United States, also adheres to their own philosophes in the way their approach to rights is
structured and applied. Both the People’s Republic of China and the Islamic Republic of Iran
appear to uphold the freedom of religion, speech, and due process; however their application
lacks any sincerity in these provisions. This action of paying lip service to internationally
recognized rights hurts the societies’ claims that their tradition cannot recognize the Western
ideas on rights as they are attempting to cover up something. One can logically conclude if a
country is trying to hide its doings, then that country must believe, at some level, that their
ideology is not acceptable with the rest of the world.129
In typical Western-centric fashion one might put forth the notion that China and Iran have
not achieved the point in their cultural development when the people are given sovereignty over
the country instead of the government over the people. These countries have been influenced by
Enlightenment ideas through the abuses of colonialism and they once attempted government in
the Western style. Today there is pressure both internally and externally for these societies to
recognize the universality of Western thought on basic liberties. Both countries have had long
histories and their native traditions warn against giving the people freedom of religion, speech,
and the rights of due process; however, as the world becomes smaller, the governments of China
129
Ibid. 72.
Kennedy 31
and Iran will have a harder time keeping control of their population’s mindsets and the infectious
ideas of the Enlightenment will grow even in these two bastions of authoritative tradition.
Kennedy 32
Works Cited
Primary Sources
Bill of Rights. 1689. Quoted in Richard L. Perry. Sources of Our Liberties: Documentary Origins
of Individual Liberties in the United States Constitution and Bill of Rights. American Bar
Foundation: Chicago, 1961.
Charter of Maryland. June 20th, 1632. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. American Bar Foundation: Chicago, 1961.
Charter of Rhode Island and Providence Plantations. July 8, 1663. Quoted in Richard L. Perry.
Sources of Our Liberties: Documentary Origins of Individual Liberties in the United
States Constitution and Bill of Rights. American Bar Foundation: Chicago, 1961.
Constitution of Pennsylvania August 16, 1776. Quoted in Richard L. Perry. Sources of Our
Liberties: Documentary Origins of Individual Liberties in the United States Constitution
and Bill of Rights. American Bar Foundation: Chicago, 1961.
Constitution of the Islamic Republic of Iran. October 24, 1979 As Amended to 28 July 1989.
Quoted in Ann Elizabeth Mayer. Islam and Human Rights: Tradition and Politics.
Boulder, Colorado: Westview Press, 1999.
Constitution of the People's Republic of China. December 4, 1982. available from
http://www.usconstitution.net/china.html; Internet; accessed 24 April 2011.
Constitution of Virginia. June 12, 1776. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. American Bar Foundation: Chicago, 1961.
Delaware Declaration of Rights. September 11, 1776. Quoted in Richard L. Perry. Sources of
Our Liberties: Documentary Origins of Individual Liberties in the United States
Constitution and Bill of Rights. American Bar Foundation: Chicago, 1961.
French Constitution of October 4, 1958. available from http://www.assembleenationale.fr/english/8ab.asp; Internet; accessed 23 April 2011.
The First Charter of Virginia. April 10, 1606. Quoted in Richard L. Perry. Sources of Our
Liberties: Documentary Origins of Individual Liberties in the United States Constitution
and Bill of Rights. American Bar Foundation: Chicago, 1961.
First Ten Amendments to the Constitution. December 15, 1791. Quoted in Richard L. Perry.
Sources of Our Liberties: Documentary Origins of Individual Liberties in the United
States Constitution and Bill of Rights. American Bar Foundation: Chicago, 1961.
Habeas Corpus Act. 1679. Quoted in Richard L. Perry. Sources of Our Liberties: Documentary
Origins of Individual Liberties in the United States Constitution and Bill of Rights.
American Bar Foundation: Chicago, 1961.
Kennedy 33
Human and Constitutional Rights. “Declaration of the Rights of Man and the Citizen” National
Assembly of France, August 26, 178. available
from http://www.hrcr.org/docs/frenchdec.html; Internet; accessed 23 April 2011.
Locke, John. “Second Treatise of Government” Quoted in Michael Les Benedict. Sources in
American Constitutional History. Lexington: D.C. Heath and Company, 1996.
Magna Carta. June 15, 1215. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. American Bar Foundation: Chicago, 1961.
Massachusetts Body of Liberties. December 10, 1641. Quoted in Richard L. Perry. Sources of
Our Liberties: Documentary Origins of Individual Liberties in the United States
Constitution and Bill of Rights. American Bar Foundation: Chicago, 1961.
Mason, George. “Objections of George Mason to the Proposed Constitution,” Quoted in The
Antifederalists:
Men of Great Faith and Forbearance, ed. David J. Siemers. New York:
Rowman and Littlefield Publishers,
2003.
The Ordinances for Virginia. July 24, 1621. Quoted in Richard L. Perry. Sources of Our
Liberties: Documentary Origins of Individual Liberties in the United States Constitution
and Bill of Rights. American Bar Foundation: Chicago, 1961.
Near v. Minnesota. 283 U.S. 697 (1931), quoted in Lucius J. Barker and Twiley W. Barker, Jr.
Civil Liberties and the Constitution: Cases and Commentaries. New Jersey: Prentice
Hall, 1975.
The Pennsylvania Ratification Convention. The Address and Reasons of Dissent of the Majority
of the Convention of the State of Pennsylvania to Their Constituents,” Quoted in The
Antifederalists: Men of Great Faith and Forbearance, ed. David J. Siemers. New York:
Rowman and Littlefield Publishers, 2003.
Petition of Right. June 7, 1628. Quoted in Richard L. Perry. Sources of Our Liberties:
Documentary Origins of Individual Liberties in the United States Constitution and Bill of
Rights. American Bar Foundation: Chicago, 1961.
Rousseau, Jean Jacques. The Social Contract or Principles of Human Right trans. G. D. H. Cole,
public domain, 1762.
Samuel, Bryan. “Centinel I,” Quoted in The Antifederalists: Men of Great Faith and
Siemers. New York: Rowman and Littlefield Publishers, 2003.
Forbearance, ed. David J.
Thornhill v. Alabama, 310 U.S. 88 (1940) quoted in Lucius J. Barker and Twiley W. Barker, Jr.
Civil Liberties and the Constitution: Cases and Commentaries. New Jersey: Prentice
Hall, 1975.
United States v. O'Brien. 391 U.S. 367 (1968). available from
http://supreme.justia.com/us/391/367/case.html; Internet; accessed 23 April 2011.
Secondary Sources
Kennedy 34
Bailyn, Bernard. The Ideological Origins of the American Revolution. Cambridge: Belknap,
1967.
Barker, Lucius J. and Twiley W. Barker, Jr. Civil Liberties and the Constitution: Cases and
Commentaries. New Jersey: Prentice Hall, 1975.
Basdevant-Gaudemet, Brigitte. “Legal Status of Islam in France,” in Silvio Ferrari ed., Islam and
European Legal Systems. Vermont: Ashgate, 2000.
Beer, Lawrence W. Constitutional Systems in Late Twentieth Century Asia. Seattle: University of
Washington Press, 1992.
Bell, John and Sophie Boyron and Simon Whittaker. Principles of French Law. New York:
Oxford Press, 1998.
Benedict, Michael Les. The Blessings of Liberty: A Concise History of the Constitution of the
United States. Boston: Houghton Mifflin, 2006.
Blaustein, Albert. Constitutions of the World. Littleton, Colorado: Fred B. Rothman, 1993.
Brown, Nathan J. Constitutionalism in a Nonconstitutional World: Arab Basic Laws and the
Prospects for Accountable Government. New York: State University of New York Press,
2002.
Caenegem, R. C. van. An Historical Introduction to Western Constitutional Law. Cambridge:
Cambridge Press, 1995.
Chiu, Thomas and Ian Dobinson and Mark Findlay. Legal Systems of the PRC. Hong Kong:
Longman, 1991.
Erh-Soon Tay, Alice. “Asian Values and Asian Nationhood,” in Miroslaw Wyrzykowski ed.,
Constitutional Cultures, Warsaw: Institute of Public Affairs, 2000.
Gunther, Marc. “Tech execs get grilled over mainland China business: Yahoo, Google, Microsoft
and Cisco, facing attack in Congress, say they're doing more good than harm in
China."CNN. 16 February 2006.
Hamilton, Alexander. “Federalist Number 84,” Quoted in The Federalist Papers. New York:
Mentor, 1961.
Human Rights Watch. Guardians of Thought: Limits on Freedom of Expression in Iran. New
York: Human Rights Watch, 1993.
Madison, James. “Federalist Number 38,” Quoted in The Federalist Papers. New York: Mentor,
1961.
Mayer, Ann Elizabeth. Islam and Human Rights: Tradition and Politics. Boulder, Colorado:
Westview Press, 1999.
McHugh, James T. Comparative Constitutional Traditions. New York: Peter Lang, 2002.
Kennedy 35
Schirazi, Asghar. The Constitution of Iran: Politics and the State in the Islamic Republic.
London: I.B. Tauris, 1997.
Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights.
Madison: Madison House, 1992.
Siemers, David J. The Antifederalists: Men of Great Faith and Forbearance. New York:
Rowman and Littlefield Publishers, 2003.
Perry, Richard L. Sources of Our Liberties: Documentary Origins of Individual Liberties in the
United States Constitution and Bill of Rights. American Bar Foundation: Chicago, 1961.