4.4 The protection of civil liberties and rights in the US today

Question 1

Why does the Supreme Court usually have the final say in the issue of rights?

Answer 1

• Entrenched constitution
• Power of judicial review
• High priority given to enumerated rights in the Bill of Rights

Question 2

Vagueness of rights

Answer 2

• Magnifies the Supreme Court’s power

- Allows justices greater freedom in deciding when and how civil liberties should be protected

Question 3

Battles and conflicts over the issue of civil liberties?

Answer 3

• Has long been an issue in the US - political battles both to protect and deny certain rights

Question 4

Freedoms in the Bill of Rights

Answer 4

• Freedom of religion
• Freedom of speech
• The right to bear arms
• Freedom from unreasonable searches and seizures
• Freedom from cruel and unusual punishment
• The reserved rights of states

Question 5

Freedom of religion

Answer 5

1st amendment:

• Sought to protect people from religious discrimination - by preventing establishment of an official and therefore dominant religion
• Been used to prevent school prayer in govt schools to protect all religions

Question 6

Freedom of speech

Answer 6

1st amendment:

• Freedom of expression (protest/organisation and speech) seen as a cornerstone of liberal democracy
• Controversial cases: flag burning, campaign finance

Question 7

The right to bear arms

Answer 7

2nd amendment:

• Meaning much disputed - disagreement over whether it gives individual a constitutional right to a gun
• Many argue - the original intention was to promote power of states to protect themselves from the federal govt or foreign invasion
• DC v Heller 2010 - overturned state law banning handguns in Washington DC which set a precedent of applying the right to an individual

Question 8

Freedom from unreasonable searches and seizures

Answer 8

4th amendment:

• Warrants required to search private property + reasonable and specific reason
• Constitution vague - ‘probable cause’ to hold search - implies there must be factual reasons for believing someone’s committed a crime
• Upheld in Riley v California 2014 - prevented warrantless search of mobile phone for those who’v been arrested
• 2001 Patriot Act highly controversial

Question 9

2001 Patriot Act

Answer 9

• Suspends probable cause for some searches with federal courts issuing rulings that did not challenge this aspect of the act

Question 10

Freedom from cruel and unusual punishment

Answer 10

8th amendment:

• Hard to distinguish what is cruel and unusual
• Death penalty - not currently deemed as such
• Most recent cases focus on death penalty methods - Glossip v Gross 2015 - petitioners challenged use of a 3-drug method - argued that 1st drug doesn’t sufficiently prevent the pain of the other two - 5-4 ruling refused argument

Question 11

The reserved rights of states

Answer 11

10th amendment:

• Protects federalism and state power
• States that any power not possessed by federal govt reserved for the states
• Used successfully in Printz v US 1997 to protect states from requirement to create gun restrictions under the federal Brady Act of 1993

Question 12

Rights protect by further amendments after the Bill of Rights

Answer 12

• Equal protection (14th) - preventing racial discrimnation
• Due process (14th and 5th) - preventing people’s life, liberty to property from being restricted without fair legal processes
• Right to vote (race) (15th) - protects voting regardless of race
• Right to vote (gender) (19th) - protects voting regardless of gender

Question 13

1907 - Chief Justice Hughes

Answer 13

‘We are under a Constitution, but the Constitution is what the judges say it is’

• Many rights enumerated - dispute about the way in which the Court has chosen to apply these to certain circumstances

Question 14

Shelby County v Holder

Answer 14

2013 - overturned section of the Voting Rights Act 1965

• Majority protected states’ rights - minority see this as unjustified - it ignores the ongoing importance of protecting racial minorities
• Gives states greater control over electoral laws (fed govt can’t scrutinise any changes to ensure no discriminatory outcome)

Question 15

Roe v Wade

Answer 15

1973 - protected right to an abortion under the right to privacy under the due process clause of the 14th amendment

Dissenting judges (2) openly criticised the majority in establishing a right that they felt had no constitutional basis

Question 16

Obergefell v Hodges 2015

Answer 16

• 5-4 majority - ruled that gay marriage bans unconstitutional under the due process and equal protection clauses of the 14th amendment
• Kennedy (writing in majority opinion) - wrote that the due process clause should ‘extend to certain personal choices central to individual dignity and autonomy’
• Also stated that the ban on gay marriage broke the equal treatment clause due to creating discrimination

Question 17

From what 3 perspectives can the effectiveness of the SCOTUS be viewed in protecting rights?

Answer 17

• Power
• Will
• Ideology

Question 18

How much power does the Supreme Court have to protect civil liberties?

Answer 18

• Extremely powerful position due to entrenched Constitution and judicial review
• Many rights placed in Constitution - allow Court to play prominent role in protecting civil liberties
• But: Court can be constrained - e.g., by amendments (rare)
• Brown v Board of Education - landmark ruling ignored - states failing to desegregate until Civil Rights Act 1964

Question 19

How much willingness does the Supreme Court have to protect civil liberties?

Answer 19

• Vagueness of Constitution - gives huge amount of personal control to justices
• Often interpret Constitution in a manner that doesn’t promote liberties apparent in it
• Plessy v Ferguson 1896 - SCOTUS - separate facilities didn’t break the Constitution
• Shelby ruling 2010 - arguable failure to protect racial minority rights

Question 20

Impact of ideology on protection of civil liberties by Supreme Court

Answer 20

• Individual case - may be competing views about whether or not a right exits in the Constitution
• Difference between rights and constitutional rights
• Roe and Obergefell - rights, not constitutional rights (arguably)
• Debate between liberals and conservatives
• Each ideology - claims their preferred rights apparent in Constitution - debates over gun rights, for example