The protection by the Supreme Court is the third way that the Americans civil liberties are at least to some extent protected. As the most powerful judicial body in the whole country, it has the power of judicial review and so can declare the actions of president, congress or state unconstitutional. By doing this they are able to control amendments and protect civil liberties. Although in theory it is possible for congress to overrule the Supreme Court in practise it is near on impossible due to the majority required. It is also felt to be politically unfavourable to even attempt it. The Supreme Court has dealt with cases involving the freedom of press such as, in the New York Times (NYT) Vs United States (1971). The court upheld the right of the NYT to publish the so-called ‘Pentagon Papers’ which were secret defence papers concerning the Vietnam war. This shows the Supreme Court protecting the 1st Amendment – the freedom of press thus protecting civil liberties.
The constitution is only partially successful in protecting civil liberties. Although I have shown that the constitution is often extraordinarily able regarding the civil liberties of American citizens, it is infinitely less so when dealing with foreigners or people who are seen as foreign.
The African American experience shows clearly that the constitution is not always successful in protecting civil liberties. The constitution from the beginning in 1787 contained racist elements that undermined civil liberties for the African- Americans and American Indians. In Article 1 it allowed the “untaxed Indians” to count for nothing and the phrase “all other persons” was an indirect reference to the African slaves who were only counted as 3/5 of a person. The Native Americans were deprived of property rights during the nineteenth century. The constitution also condoned slavery and permitted it to continue which can be seen in Article 6 which honoured all “debts contracted and engagements entered into” which was a reference again to the African slaves who were already ‘owned’. Another way that the African Americans civil liberties were violated was that even after the Civil War and following the 13th Amendment abolishing slavery, the Deep South were allowed to adopt a series of laws called the Jim Crow laws which allowed a formal segregated South which prevented the African Americans from voting. This violated the constitution as in 1896 the vote was extended to African Americans but this was ignored by many states. Lynching and other attacks upon the African Americans were common, and as no one stopped the Klu Klux Klan it was a violation of Amendment 5 which states that a person “ cannot be deprived of life, liberty or property without due process of law’’. It is clear that at first the African Americans did not have their civil liberties protected by the constitution and were subject to a very different experience than most. Later the constitution was more successful in protecting the civil liberties of African Americans, for example in 1964 Amendment 24 which stopped states using the failure to pay poll tax as a reason for an African American being unable to vote. Another example is the Brown vs. Board of Education, that was seen as a landmark decision of the United States Supreme Court, when it declared state laws establishing separate schools for black and white students unconstitutional.
The constitution also failed to protect the Japanese Americans after the Pearl Harbour attack. This is seen as another major infringement on civil liberties. As soon as Pearl Harbour took place in 1945, Roosevelt authorized internment for all Japanese Americans. They were a perceived threat as they were seen to be loyal to Japan over USA. The government were also worried that they were spies and also that Japan was preparing for a full-scale attack on the US. The solution to this problem was to allow military commanders to designate “military areas” which were to be the “exclusion zones”. It was said that “any or all persons maybe excluded” and were locked up without trial and the government temporarily removed their rights in states such as California and Oregon. This was a violation of amendment 5 as there was no “due process cause”. The Supreme Court ruled that it was constitutional and in 1945 only paid for the train fair home. Eventually the court case Korematsu V’s USA disagreed and in 1988, $1.6 billion pounds was given out as compensation. This shows that even the USA were willing to admit that what happened to the Japanese Americans was unconstitutional and an infringement on their civil liberties however initially the constitution had failed to protect them.
Another situation where the constitution failed to protect civil liberties was after 9/11. This is the most recent example of a breach of civil liberties. After 9/11 in 2001, many people were taken to black sites if they were seen by the government to be a threat to national security. They were taken with out trial and their rights were suspended to help win the war. A court case reflecting this was Hamdam V’s USA (2006). Salim Hamdem, a prisoner at Guantanamo Bay, challenged the legality of U.S President Bush’s intention to try him via a military commission. The Supreme Court ruled that the president must either operate a regular court – martial or get congressional permission for military commission to proceed. This shows that before Salim Hamdem appealed, he was going to be tried illegally and so an infringement on his civil liberties occurred. On the other hand, it could be shown that the Supreme Court in this case were protecting his rights, as it was unconstitutional to allow him to be tried via a military commission. However later in 2006, the Military Commissions Act was passed which allowed Bush explicit and legal permission to carry out military commission on inmates of Guantanamo, which in turn shows us, that although the Supreme Court ruled against the President in the court case, that this primarily was seen as unconstitutional. The constitution failed to protect Guantanamo inmates in the long run. Further more, in 2008 the Intelligence Authorisation Bill, or the Torture Bill was passed by Congress. This was designed to limit interrogation techniques used on suspected terrorists to 19 methods and one example it ruled out was waterboarding. Bush vetoed the Bill and Congress could not gain the supermajority necessary to overturn it. Within the constitution it sates “cruel and unusual punishments” are not permitted and it is down to the Supreme Court to state what is cruel and unusual. So although many would say torture was cruel and unusual, it was never officially unconstitutional and so never seen as an infringement on basic civil liberties.
`In conclusion, although in theory the American constitution appears to protect all American civil liberties without fail because it is codified, entrenched and protected, in practise it has only been partially successful in this. It has been interpreted differently to infringe others rights. The three examples of this are the treatment of the African Americans un till the late 1960’s, the treatment of the Japanese Americans after Pearl Harbour and the treatment of the suspects in the war on terror. In theory the Supreme Court should have protected them but initially did not.
