USA Flashcards
Entrenched rights USA
Like Australia, the United States is a federation of states.
The United States Bill of Rights is the name given to the first 10 amendments to the United States Constitution Act 1791.
In addition to the Bill of Rights, other amendments have been made to the United States Constitution and have extended the range of rights entrenched in the Constitution.
Types of rights protected USA
Mainly civil and political rights
• Freedom of religion (1st amendment)
• Right to bear arms (2nd amendment)
• Protects against double jeopardy and due process (5th amendment) • Rights of the defendant in a criminal trial (6th amendment)
• Declares the fundamental rights exist outside the Constitution (9th
amendment)
• US Supreme Court has also recognised implied rights (such as, the
right to privacy)
Limitations USA
There are no limitation clauses, just like Australia.
How are rights enforced or interpreted USA
The rights are fully enforceable. This means that legislation which infringes any of those rights can be declared invalid by the US federal courts. Similarly, Australia’s constitutionally protected rights are fully enforceable – any legislation which infringes one of the rights can be declared invalid by the High Court which happened in Australian Capital Television v The Commonwealth.
How can rights be changed and to what extent USA
The Bill of Rights itself cannot be changed, however, a new amendment can be made to override it provided that 2/3 majority of Congress and 3⁄4 majority of states vote in favour
Rights protected USA
Most of the rights set out in the US Constitution are stated as restrictions on the power of the government. The rights in the Constitution are mainly concerned with civil and political rights. The bill of rights includes rights such as freedom of speech, of press, of religion, of assembly.
Bill of rights
It also states that the Bill of Rights should not be interpreted as a comprehensive list of all rights belonging to Americans, but rather a list of the most important rights such as the right to freedom of speech and the right to keep and bear arms.
Implied rights
The US Supreme Court has read implied rights into the US Bill of Rights. For example in Griswold v. Connecticut (1965) the Supreme Court found that legislation forbidding the giving of advice on contraception for married people infringed an implied constitutional right of privacy. Similarly, Australia has an implied right the right to free political communication established by Australian Capital Television v The Commonwealth.
4 similarities of the approach to constitutional protection of rights
In the US ights can only be altered, removed or added by amending the Constitution (and the procedure is complex). Rights are fully entrenched.
The bill of rights and how it compares to Australia
The protected rights are set out in the Bill of Rights that takes the form of a series of amendments to the US Constitution. The Bill of Rights contains a comprehensive or extensive list of rights. Implied rights can be written into the bill of rights as well such as in Griswald v Connecticut which established the right of privacy.
Australia does not have a constitutionally protected Bill of Rights. Australia’s Constitution does not contain a comprehensive list of protected rights, just the five express and the implied right.
Changing the bill of rights
The rights are entrenched. This means that a right can only be abolished if the Constitution is amended. This is a much more complex process than used in Australia, and involves separate referenda being held in states. The five express rights are also entrenched in Australia and can only be removed through a referendum to amend the Constitution. The existence and scope of the implied right to free speech depends on how the High Court interprets the right. The right was further refined in Lange
Flexibility of rights
The rights are entrenched. This means that a right can only be abolished if the Constitution is amended. This is a much more complex process than used in Australia, and involves separate referenda being held in states. The five express rights are also entrenched in Australia and can only be removed through a referendum to amend the Constitution. The existence and scope of the implied right to free speech depends on how the High Court interprets the right. The right was further refined in Lange v Australian Broadcasting Corporation.
Adding rights
The list of protected rights can be added to through constitutional amendment for example, slavery was abolished after the Civil War. Similarly, in Australia we could add to the list by amending the Constitution.
How does the constitution protect rights 4
Entrenched therefore difficult to change
Enforcable
Change requires the people
implied rights allow for new rights to be discovered
