The protection of Civil Liberties and Rights in the USA today

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,

  • By constitutional amendments that overturn its rulings (although this is rare).

  • They have no power to enforce their decisions -In addition in the Brown v Board case, their landmark ruling was ignored, with states failing to desegregate until Congress passed the Civil Rights Act in 1964.

  • They are bound by precedent- stare decisis

  • They have limited resources and can hear very few cases.

  • They are not proactive and can only hear cases which come to them

· 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