The protection of Civil Liberties and Rights in the USA today

The debate over how much the Constitution safeguards the civil liberties and rights of American citizens is highly contested. To guide your assessment, consider these key points: Most individual rights are outlined in the 1791 Bill of Rights, not the original document. Not all rights are equally secure and inherent. The extent of rights protection heavily relies on the Supreme Court's interpretation.

Many groups, such as individuals with disabilities, children, and LGBTQ+ Americans, do not receive specific constitutional protection. Recent human rights charters do not include social rights like education, healthcare, and housing. The concept of constitutional rights in the United States is inconsistent, selective, and often influenced by the era it was created in. Instead of constitutional protection, many groups rely on laws passed by Congress or individual states. To assess the effectiveness of these rights, one can examine the First Amendment. When visiting various National Parks in the US, it is common to see signs labeling them as 'First Amendment areas.' These signs encapsulate the complex relationship between the US and free speech - a blend of safeguarding and control. Free speech doesn't mean unrestricted expression in any circumstance. While nearly all opinions, regardless of how peculiar or morally questionable, should be safeguarded, expressions that incite lawbreaking or disrupt public order can be regulated and penalized.

The Bill of Rights has formed the basis of many Supreme Court cases. It is entrenched but it is also unclear- this has resulted in multiple debates and disagreements over not only its meaning by the extent to which the court should or shouldn't interpret its meaning. 

Rights Protected by the Bill of Rights

Rights Protected By Further Amendments

Rights protected by Supreme Court rulings

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

In 1907 Chief Justice Hughes 

While all Supreme Court cases have to be based in the Constitution, some rulings have been particularly controversial because the Court has been accused of `finding' rights that are not there.



The effectiveness of the Supreme Court in protecting rights

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

At first sight the  court appears to be extremely powerful  as a result of the entrenched Constitution and its power of judicial review and the many rights placed in the Constitution  as well as their vagueness which allows the Court to interpret the new rights as well as enforce old ones

 However, the Supreme Court can also be seen as very  be constrained — for example,

·     How much agreement is there in the court about civil liberties?

Justices disagree about states right and individual rights. They may be unwilling to push their view of individual right in a manner which inhibits state's rights.  In Plessy v Ferguson in 1896, the Supreme Court ruled that separate facilities did not break the Constitution (later interpreted as separate but equal). The Shelby ruling of 2010 could be seen as a failure to protect racial minority rights, a view taken by the four justices in the minority on the court. w while the majority saw it as a decision which protected state's rights. 

·  The court does not share the same ideology when applying the law.

 There is a difference between rights (as a moral imperative or belief) and constitutional rights. It is possible to argue that both Roe and Obergefell uphold rights but not constitutional rights, because gay marriage and abortion are in no way mentioned in the constitution- therefore if a right is not in the constitution it is not the role of the court to put it there.

Liberals argue gay rights and abortion are constitutional rights. Conservative claim that these are not in the constituion and making them right may infringe religious rights.  Conservatives claim that the Second Amendment gives an individual a right to a gun; liberals argue this is not based on the intentions of the Founding Fathers, who saw the right to bear arms essentially as a state right to organise a militia

In Bostock v Clayton  2020 LGBT Rights. The Supreme Court had to balance the 1st Amendment right of religious freedom and the 14th Amendment ' Equal Protection' right.'

Bostock v Clayton County 2020

2020 Supreme Courts LGBT Rights and DACA

First Amendment rights: Schenck v UnitedStates (1919)

In 1919, a notable case known as Schenck v United States saw two socialists convicted for distributing leaflets that encouraged people to disobey the draft in a peaceful manner. The Supreme Court, using the 'clear and present danger test,' ruled that speech not protected by the First Amendment includes that which could create an imminent danger of harm that Congress or another authority could prevent. Justice Holmes argued that the leaflets had the potential to disrupt the conscription process, likening them to falsely shouting 'Fire!' in a crowded theater.

First Amendment rights: Morse v Frederick(2007)

The case involved an Alaskan high school student who displayed a banner with the message 'BONG HiTS 4 JESUS' at a school-supervised event during the 2002 Winter Olympics torch relay. The student was suspended by the principal for allegedly promoting illegal drug use. The student later appealed the suspension, arguing that his freedom of expression had been infringed. However, the court ruled in favor of the school, stating that schools have the authority to regulate speech, especially when it interferes with the educational mission or jeopardizes student safety. If the banner had not been displayed at a school event or contradicted the school's anti-drug policies, the outcome might have been different.

How well does the US Constitution protect individual rights?

Key rights, such as free speech, fair trial, and newly discovered rights like equal protection and protection against cruel and unusual punishment, are protected in the Bill of Rights and Supreme Court judgments. These rights are difficult to overturn and can also be safeguarded through Acts of Congress, as seen with federal laws like the Equal Pay Act 1963 and the Americans with Disabilities Act 1990. The USA has effectively adapted to evolving rights concepts through judicial review and remains comparable to other democracies. Despite debates, such as those surrounding abortion, the country navigates through subjective and contentious rights issues.


Many rights and groups are not directly protected by the Constitution, such as free and fair elections, and the rights of children and people with disabilities. The Supreme Court's interpretations are subjective and can change over time, leading to uncertainties and contradictions. Laws passed by Congress can theoretically be reversed and do not have the same level of protection as constitutional rights. The United States has unique aspects in its treatment of rights. Unlike European democracies, the death penalty is still allowed in the US and there are no entrenched rights for gun owners.