4.4 The protection of civil liberties and rights in the US today Flashcards
Why does the Supreme Court usually have the final say in the issue of rights?
- Entrenched constitution
- Power of judicial review
- High priority given to enumerated rights in the Bill of Rights
Vagueness of rights
- Magnifies the Supreme Court’s power
- Allows justices greater freedom in deciding when and how civil liberties should be protected
Battles and conflicts over the issue of civil liberties?
- Has long been an issue in the US - political battles both to protect and deny certain rights
Freedoms in the Bill of Rights
- 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
Freedom of religion
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
Freedom of speech
1st amendment:
- Freedom of expression (protest/organisation and speech) seen as a cornerstone of liberal democracy
- Controversial cases: flag burning, campaign finance
The right to bear arms
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
Freedom from unreasonable searches and seizures
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
2001 Patriot Act
- Suspends probable cause for some searches with federal courts issuing rulings that did not challenge this aspect of the act
Freedom from cruel and unusual punishment
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
The reserved rights of states
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
Rights protect by further amendments after the Bill of Rights
- 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
1907 - Chief Justice Hughes
‘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
Shelby County v Holder
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)
Roe v Wade
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
Obergefell v Hodges 2015
- 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
From what 3 perspectives can the effectiveness of the SCOTUS be viewed in protecting rights?
- Power
- Will
- Ideology
How much power does the Supreme Court have to protect civil liberties?
- 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
How much willingness does the Supreme Court have to protect civil liberties?
- 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
Impact of ideology on protection of civil liberties by Supreme Court
- 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
