ETVT that the US constitution protects the rights of the individual Flashcards
Federalism they do
In many cases in the past the Supreme court has chosen to uphold individual rights over the states. The Bill of rights protects individual liberties and rights meaning that a lot of the time individual rights are protected over the states.
McDonald v City of Chicago 2010 was a landmark decision that found the 14th amendment or due process clause means that the 2nd amendment right to bear arms is enforceable on the states.
NY v Bruen 2022 ruled in a 6-3 decision that the NY state law was unconstitutional as it infringed on the right to keep and bear arms.
Obergefell v Hodges 2015 ruled that the equal protection clause of the 14th and equal protection clause required all states to perform and recognise same sex couples on the same terms and conditions of opposite-sex couples.
Federalism they dont
The constitution upholds the rights of the states, enumerated powers of the federal government are written in article 1 and 2 of the constitution, congress was to ‘coin money’ and president was ‘commander and chief’, concurrent powers such as the power to tax were given to both and finally the 10th amendment reserved all remaining powers to the states.
This means that often when the Supreme court acts as a umpire between the federal and state governments they are likely uphold state rights and in doing so impede on the right of the individual.
Dobbs v Jackson 2023 reversed precedent in Roe v Wade 1973, held that abortion was not a right explicitly protected under the constitution, and therefore gave states the power to legislate abortion as unconstitutional.
Most abortions are now banned in 14 states following the Supreme court decision, clearly giving power back to the states.
Glossip v Gloss 2015 ruled that it is the responsibility of the prisoner and not the state to demonstrate that the method caused severe pain.
Baze v Rees 2008, the court decided that lethal injection, the method used by the federal government and 35 states to execute criminals did not constitute a cruel and unusual punishment.
Buckwell v Precythe 2019, the 8th amendment does not guarantee a prisoner a ‘painless death’, effectively allowing states to decide whether the death penalty should be legal.
The death penalty is legal in 27 states and has been abolished by 25 others, the methods use vary from firing squad in South Carolina to lethal injection in Alabama, federalism means that the constitution and Supreme court has given them autonomy over this.
Congressional legislation they do
The constitution under article 1 and section 1 grants all legislative powers in a congress of the United States, this means that they are able to pass federal laws in order to protect rights.
The necessary and proper clause, also known as the elastic clause is part of section 8 article 1 in the US constitution, this clause arguably is one of the most important in the constitution and allows the supreme court to pass legislation pertaining to individual rights.
For example, the Respect for Marriage act 2022 codifies the decision in Obergefell v Hodges 2015 and repeals the Defence against marriage act, compelling all states to recognise the validity of same sex and interracial marriages.
In 1965 the voting rights act 1965 prohibits racial discrimination in voting, section 2 prevents the imposing of any rule that denies the rights of any citizen to vote based on the colour of their scheme, upholding the rights for all individuals to vote.
Congressional legislation they dont
Whilst congress can legislate in favour of individual rights, they can also impede on them.
It can be argued that after 9/11 the Patriot Act 2001 negatively affected individual rights, this authorises indefinite detention without trial, which is a arguable violation of a individuals 5th amendment rights of due process.
Furthermore, there was permission given to law enforcement to search property and records without a warrant, consent or knowledge, arguably this is in conflict with a individuals 4th amendment right.
Congress also showed they were willing to impede on the individuals second amendment rights, The gun free school zones act 1990 prohibited the possession of a firearm in a school zone, it wasn’t until 1995 where this law was struck down.
Partial-Birth Abortion Ban Act 2003, prohibted a form of late termination of pregnancy.
Growing politicisation in the court they are
Despite in 2020 the court being labelled as conservative, in Bostock v Clayton County 2020 the court ruled that the Civil rights act 1964 protects employees against discrimination because they are gay or transgender.
Gorsuch and Roberts both were among the dissenting opinion in Obergefell v Hodges 5 years prior that established the right to gay marriage, however they were both in the majority opinion in this case possibly meaning the court is in fact not politicised.
From 2005-2016 the court decided around 59% of cases unanimously, 9% by 8-1 and 15% by 7-2. Most of the time justices are able to not make politicised decisions, therefore they are neutral umpires, reaching consensus.
During his nomination hearing, Chief Justice John Roberts told the Senators, “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.”
Once the Supreme Court has made a decision, a justice from the majority must write an explanation demonstrating how it relates to the Constitution and previous decisions made by the Supreme Court. This requirement ensures that decisions are based on law and not on political or personal feelings.
Furthermore, arguments that politization can be beneficial, DC v Heller protects 2nd amendment rights, 5-4, US v Windsor ruled in 2013 that section 3 of the Defence against marriage act which denied federal recognition of same sex marriages as violation of due process of the 5th amendment.
Growing politication of the court they arent
and political leanings instead of the text of the constitution, article 3 gives the court power to legislate from the bench and therefore not protect rights.
Dobbs v Jackson 2022, recent conservative dominated court is leading the way in creating politically driven policy that undermines individual rights, 6-3 split, republican democrat split, clear politicisation of the court.
Thomas argued In his concurring opinion in Dobes v Jackson that the court should go further in future cases that granted rights based on due process, such as Griswold v Connecticut and the right to contraception, Lawrence v Texas and Obergefell v hodges.
