In America, the constitution and the bill of rights are enforceable by an independent judiciary, which has the power to prevent government and congress from enacting legislation, which violates the rights that the ‘bill of rights’ aims to protect. In 1803, the Supreme Court, led by Justice Marshall, in the case of Marbury v. Madison, gave one of the earliest rulings to affect human rights in the USA. In this ruling, the Supreme Court made it clear that it was the courts, and not the legislature that would enforce rights. The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since. The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights.
The US system has often upheld the rights of the states above those of the individual (except in cases of racism or serious prejudice based on sexuality (see Romer vs. Evans 1996) or gender). In a case in 1996 (Deshaney vs. Winnebago Dept of Social Services), a child was abused by his father and the system failed to prevent it, even though the child was known to be in danger. The case reached the Supreme Court but the court ruled in favour of the State. Chief Justice Renquist stated that the clause in the constitution was to protect the people from the state, not to ensure that the state protected individuals from each other. Although this seems a little unusual as each state employs police, state troopers and other law enforcement officers who are there in fact to protect both individuals and property from crime.
It has been argued that the bill of rights is too absolutist. Francesca Klug has stated that ‘the US system has failed to balance the rights of the individual with those of the common good and it has little focus on public health or public safety. The right to bear arms is a serious rights issue. Upheld by the constitution and protected by powerful lobbyists such as the NRA. The right was born out of the War of Independence when armed militias had the right to protect property and people. It must be said though that not all of the 50 states have easy access to guns. Some states such as Arizona do have more liberal firearm regulations and have a high per capita number of guns. State laws often mirror the demographic of the population with the large rural populations (Texas, Arizona, Montana, Dakotas) have retained a more relaxed attitude towards firearms than cities (New York, Massachusetts, Illinois). Gun ownership not only mirrors demographics but politics as well. States with republican majorities tend to have higher gun ownership and the NRA is both a powerful lobbyist and donor to the Republican Party.
The Supreme Court has not always acted to enforce individual human rights; it has often acted in a more collectivist manner, seeking to uphold the right of the federal government or individual states. The rights of individuals are often side tracked to protect the ‘greater good’. From a British perspective, this may not seem unusual, during wars and during periods of heavy terrorist actions, the rights of the individual in certain circumstances were restricted. But it may come as a surprise to many, that the US legal system has done much the same thing and differs little from some of the targets of its own criticism.
According to Dr Emmanuel Foroglou
,’ The Supreme Court has been instrumental in multiple violations of rights over the last two centuries. As long as the Supreme Court persists in practicing the contradiction between inalienable rights and the altruist-collectivist ethics, it is man's rights that will lose out.’
It has been suggested that the individualistic focus of human rights in the USA is a result of the actions of the Supreme Court, which has stipulated that rights are granted by society and can therefore be revoked whenever this would serve some social purpose. Pursuant to this line of reasoning, the Court has sanctioned the government's power to violate individual rights and has consistently ruled that it is legitimate to sacrifice the rights of some people for the sake of satisfying the needs of others. These elements have been present in all the instances where the Supreme Court has run roughshod over individual rights over the last two centuries. Although the US has a history of both good and bad application of Human and Civil Rights, there is an argument to support Dr Foroglou’s argument which suggest the USA has in fact a more collectivist approach to Human and civil rights than is first imagined from its individualistic culture.
Certain parts of the ‘bill of rights’ are used more than others for human and civil rights cases. Amendment 1 is the most commonly quoted and often the most badly applied of the amendments. Amendment s 13 and 14 have also been used many times in human and civil rights cases and the next section is an attempt to focus on these amendments and some of the examples where they have been applied in both an individualist manner (amendment 1) and in a collectivist manner (amendments 13 and 14) for the greater good of society or a large group within society.
Amendment 1:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances
The first amendment or the right of free speech as it is often simplified into is one of the best known, and badly applied. It has been interpreted by so called free-speech absolutists such as the ACLU who will defend the right of the Klu Klux Klan (KKK) so it can march through the streets of Afro-American neighbourhoods. Free speech absolutists will protect the rights of racists, pornographers, and any other person who wishes to express an abusive, aggressive or oppressive opinion. The ACLU’s approach to the first amendment and the absolute right to free speech, no matter what is said, led to many people cancelling their membership and it almost declaring itself bankrupt. The ACLU backed the Supreme Court when it ruled as unconstitutional any ban on swastikas and any other racist symbols.
Yet another aspect of racism has been protected by the Supreme Court. Cross burning was one of the most symbolic of the KKK’s actions. A burning cross was often placed on the property of a victim. The meaning of a burning cross was ‘ you are going to die’ or ‘we are going to get you’ and it is a feared symbol of the racism in the south of the USA. Many states and city councils have tried to ban cross burning to prevent its use by racists. But the constitution and amendment 1 have ruled any such bans as unconstitutional. The most recent of the cross burning and free speech cases is that of Virginia v. Barry E. Black, et al. The Virginian Law makes it a crime to burn a cross on private or public land when it is meant to intimidate any person or group of persons. The case involves 3 men who were convicted of burning crosses on 2 separate incidents in 1998. The main case is that of Barry Black who organized a KKK rally on private property and then burnt a cross which was witnessed by a large number of people, most of whom were not attending the rally. Black was arrested and charged with hate crimes. The ACLU represented the defendants and their right of free speech. The state lawyer defended the law, stating it simply seeks to provide ‘freedom from fear’. The Virginian State Supreme Court ruled that the law was unconstitutional. It further added that the court could ban intimidation but not by targeting the distinctive message of cross burning. The Supreme Court has agreed to look into the case to assess if, the Virginia statute that bans cross burning with intent to intimidate violate the First Amendment, even though the statute reaches all such intimidation and is not limited to any racial, religious or other content-focused category?
In this case, it is clear that the rights of the individual, Mr Black, have been protected. His right to free speech and expression have been upheld rather than the perceived greater good of protecting those intimidated by cross burning and the violent racism behind it. Free speech is a fundamental human and civil right and should always be protected but not come before the freedom from abuse and intimidation. If Amendment 1 allows neighbours to abuse each other, allows people to be abused because of their race, sexuality etc then it should always be interpreted for the greater good of society and often it has not. The individualistic aspect of rights in the USA are more obvious when Amendment 1 is used.
Amendment 13:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
The application and interpretation of this amendment has often raised questions about the Supreme Court’s lack of an individualistic approach. During the 1st world war, the United States an act came into effect called the Selective Services Act (SSA). This act sometimes called the ‘draft’ called men of voting age to serve in the military during a time of war. The 13th Amendment has been called the unlucky amendment as it is one of the hardest to be applied.
In 1918, a challenge to the SSA based on the 13th Amendment was rejected by the Supreme Court, acting in the interests of the nation, rather than the individual. On numerous occasions in the 1st World War, 2nd World War and during the Vietnam War the Supreme Court dismissed any case that suggested the ‘draft’ violated the involuntary servitude aspects of Amendment 13. Not only did the Supreme Court place the interests of the state above the individual in these cases; it also acted against the 1st amendment and 13th amendment when dealing with those individuals who acted to assist draft dodgers.
America’s draft ended in 1973, but the Selective Service System was maintained in a standby status, just in case a return to conscription became necessary during a crisis. After March 29, 1975, men no longer had to register and Selective Service was placed in "deep standby." But then, in 1980, President Carter reactivated the registration process for men in response to the Soviet invasion of Afghanistan and in reaction to reports that the standby Selective Service System might not meet wartime requirements for rapid manpower expansion of the active and reserve forces.
In 1944 at the end of the Falbo v. United States case when an individual
‘ failed to perform the duties required of him under the SSA Act of 1940’
and was jailed for 5 years; the Supreme Court again ruled that the SSA was legal and that Amendment 13 of the constitution did not apply in this case. Although the court ruled in favour of the United States (and the SSA) one judge was in dissent. Justice Murphy had the following to say about the ruling and its impact on individual rights:
‘ The case presents another aspect of the perplexing problem of reconciling principles of justice with military need in wartime. Individual rights have been recognized by our jurisprudence only after long and costly struggles’;
Justice Murphy went on to stress that individual rights should only be dismissed or struck down by the most significant need and that wartime need was not always enough justification, unless, without the act, there was a clear and present danger to the nation. Justice Murphy went on to defend the law (constitution) saying when it acts to protect unpopular citizens against discrimination and persecution.
None of these rulings suggest that there was a human rights problem in the USA per se, but that there have been cases and circumstances where the rights of the society as a whole have come before the individual.
In European countries where there has been a history of conscription and drafts, the biggest voices of dissent have been in defence of those individuals who deserted and or conscientious objectors, many of whom were executed as cowards. Patriotism and the protection of the nation were often far more important than the rights of a few deserters. Recent developments in Human Rights Laws in the UK have led to the families of such individuals seeking apologies from the Ministry of Defence and asking for pardons to remove the stigma of being labelled ‘deserter’s’.
Amendment 14
Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Linked to the ‘draft’ cases which were tried under amendment 13, are the cases in which woman’s groups have appealed that their exclusion from the ‘draft’ is unconstitutional and has been challenged in the courts.
A lawsuit brought by several men resulted in a 1980 U.S. District Court for the Eastern District of Pennsylvania decision that the MSSA’s gender-based discrimination violated the due process clause of the Fifth Amendment, and the District Court enjoined registration under the Act. Upon direct appeal, in the case of , 453 U.S. 57 (1981), the Supreme Court reversed the District Court decision and upheld the constitutionality of the exclusion, ruling that there was no violation of the due process clause of the . The Supreme Court based its decision largely on DOD’s policy that excluded women from combat. The Court reasoned that since the purpose of registration was to create a pool of potential inductees for combat, males and females could be treated differently. The Court also noted its inclination to defer to Congress since draft registration requirements are enacted by Congress under its constitutional authority to raise armies and navies, and observed that Congress had in 1980 considered but rejected a proposal to expand registration to women.
Amendment 14 was successfully applied in the 1996 case of Romer vs. Evans when the Supreme Court ruled as unconstitutional, a Colorado Law that would have excluded gays from the state’s discrimination laws. The drafters of this law were stating that gays were not a minority subject to discrimination and argued that they were in fact a powerful lobby within the state.
From an international viewpoint, the record of the USA is often considered to be questionable, compared to the Scandinavian countries and some of the more enlightened EU countries perhaps, but there must be a reason why the USA is viewed in the way.
The USA has ratified a number of the international human rights treaties, including the following:
The Convention on the Prevention and Punishment of the Crime of Genocide (1948)
The Covenant on Civil and Political Rights (1966)
The Convention on the Elimination of All forms of Racial Discrimination (1965)
The ratification of these treaties and many of the others that the USA has signed was accompanied with reservations, understandings, and declarations which can be summarised and simply state, that the USA can only abide by those provisions which conform with existing US law and the constitution. The USA will not undertake any treaty obligation that it cannot carry out due to a conflict with its own constitution. Any treaty that the USA signs and ratifies should include a ‘federalism clause’ so that it is left to the states to implement the treaty rather than have it enforced by the national government.
The evidence so far suggests that human and civil rights in the USA have been dealt with in an individualistic manner as well as a collectivist depending on the right involved and the affect its application would have on society. This suggests that the USA is not always individualistic and that all of the supreme case rulings on human rights have taken both the interests of the individual and of society and have ruled depending on the overall circumstances, society’s best interests and the affect of a negative ruling. To describe the style of human rights legislation in the USA as one type or another is far too simplistic. The USA has 280 million residents, 50 states, with 50 state governments. The laws are not uniform. Laws applied by the national government are often the most resented. What is evident, is that those responsible for enforcing, drafting, and protecting human rights and civil rights have acted in a pragmatic way, acting on one hand to protect the individualism so important to the USA, and on the other to protect the security and stability of the nation.
References/Bibliography
Cole & Dempsey Terrorism and the Constitution
FindLaw: Situations in Which the Amendment (13) is Inapplicable
Findlaw: United States v. O’Brien (1968)
Findlaw: US Supreme Court Arver v. US (1918)
Findlaw: US Supreme Court Falbo v. US (1944)
Forgolou, Emmanuel The Supreme Court's Violations of Individual Rights (The Checks Don't Balance Anymore!)
Hanby, Alonzo L. Liberalism and its challengers
Klug, Francesca Values for a godless Age
Lowi & Ginsberg American Government: Freedom and Power (1996)
McKay, David American Politics & Society
Mittal & Rosset America Needs Human Rights (1999)
Robertson, Geoffrey Crimes Against Humanity
LLM International Law Sean D. Usher
Sociology of Human Rights
