Mr. Barack Obama presented a fine picture at his inauguration. He exhibited the degree of gravitas appropriate to the office of President of the United States. It is a pity then that his inaugural speech contained at least one significant historical error, one on which he seems to have justified his first executive decision.
It was in the part of the speech in which he sought to distinguish himself from his predecessor over Guantanamo Bay. He followed this by his first executive decision, which is to suspend action on the prosecutions at Guantanamo.
His difficulty is that it is not worth the bother to have the accused, including the alleged mastermind of the Bali bombing, prosecuted in the US criminal courts.
If they are not tried by military commissions, he might as well let them go. His problem is that intelligence advises they will then be just as likely to engage in more terrorism. The evidentiary and procedural safeguards which have been built up in the American criminal justice system in recent years would make prosecution in the American courts pointless.
That is why President George W Bush went down the military commission path.
The part of his speech which contains the historical error states: “Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations.”
The suggestion is that during the War of Independence, the Founding Fathers developed the Bill of Rights. That at least is how talk back radio interpreted this sentence. What else could he have meant about the Founding Fathers being “faced with perils we can scarcely imagine”?
Apart from unjustly maligning the British – the thirteen colonies were the freest colonies the world had ever seen – this is just not so. The Founding Fathers did nothing of the sort.
The War of Independence ended in 1783. The draft of the Bill of Rights was not introduced until 1789, six years after the conclusion of the war. Surely the vast team of advisors who wrote the speech were aware of this?
When it became clear that a union of all the thirteen colonies could not be achieved because of suspicions about the power of the new federal entity, the Constitution was amended by what is now called the Bill of Rights. This is made up of the first ten amendments to the American Constitution. The amendments were introduced in 1789, six years after the War of Independence ended. They were finally ratified in 1791.
The only reason for the Bill was that without it there would have been no United States. It had absolutely nothing to do with protecting individual freedoms during the War of Independence. So who slipped this fiction into the inaugural speech?
Based on the British Bill of Rights, the American Bill of Rights was not even intended to bind the thirteen colonies, now the thirteen states, or to create individual rights. It was only intended to restrain the new federal entity.
The Bill of Rights was certainly not intended to play the role the courts have subsequently given it. But that is another issue.