Revision Update: US Politics: Exemplar Answer: Protection of Rights in the USA

Discuss the view that rights are not adequately protected in the USA today.In the aftermath of the bombs at the Boston marathon, there is a possibility that there could be a knee jerk reaction from the authorities which could see national security concerns override individual rights. It should be recognised however that the USA has a well-established rights culture which would suggest this will not be the case.

Developments since 9/11 clearly illustrate the fragility of rights in the USA and suggest that they are not adequately protected. Most recently, the National Defense Authorization Act 2012, paved the way for indefinite detention of US citizens without trial due to alleged association with terrorist groups. There are even first amendment free speech concerns relating to journalists’ ability to criticise the government owing to the vagueness of the act. This concern was the basis for the Supreme Challenge in Hedges v Obama which decided in favour of the government in 2013.

The Roberts Court has failed to protect rights as outlined in the Bill of Rights. The composition of the court has a conservative bias. The Bush appointment of Alito was critical in this regard as the departure of Justice O’Connor allowed GW Bush to replace a centrist with a conservative. The above ruling and others such as Florence v Board of Chosen Freeholders 2012 allowing strip searches for any offence contrary to privacy rights established under the fourth amendment, Wal-mart v Dukes 2011 which prevented a case to prove sex discrimination contrary to equal protection 14^th amendment rights and Baze v Rees which allowed lethal injunction contrary to 8^th amendment rights which prevent “cruel and unusual” punishments.

The situation on Guantánamo also shows rights are not adequately protected. Due process Fifth Amendment rights, 6^th amendment rights to a lawyer and 7^th amendment rights to a speedy trial as well torture via waterboarding in violation of the 8^th amendment have all clearly been violated in the name of national security. Many of the c160 detained have been cleared for release but are still detained. Only 3 have had a military commission’s trial. The “rule of law” via the Geneva Convention, the Bill of Rights and United Nations Declaration of Human Rights have not provided an adequate of protection of rights.

However this only presents a partial evaluation of a complex situation. The Supreme Court does provide an adequate protection of rights. This is true both of the past and the present. It may be case that liberals regard the Warren Court as the ultimate champion of individual rights with landmark rulings such as Brown v Board, Miranda v Arizona, Gideon v Wainwright and Mapp v Ohio. The Burger with Roe v Wade also ensured a woman’s right to choose was given constitutional protection. In the last term, it was notable that the Roberts Court was able to provide protection of individual rights in several cases such as Hosanna Tabor v EEOC (religious freedom), US V Jones (need for a warrant for GPS tracking devices under the 4^th amendment) and Maples v Thomas and Lafler v Cooper protected 6^th amendment rights to a lawyer.

The issue of Guantanamo is complex in that the problem of release is that no countries are willing to accept those released. President Obama has clearly indicated that he would like to close the prison indeed he issued an executive order to this effect as soon as he was elected. Congress has thus far prevented its closure. President Obama has also ordered the end to the use of waterboarding.

Pressure groups have also provided a level of scrutiny which ensures rights are protected. The ACLU have been to the fore in defending free speech presenting cases and amicus curiae briefs to the Supreme Court in cases such as ACLU v Reno. Other groups such as Human Rights Watch and Amnesty International monitor the situation on GITMO closely. NOW help ensure women’s rights are protected and the NAACP and La Raza protect the rights of minority groups.

The headline case of NFIB v Sebelius was evidence of the Court protecting social rights with regard to healthcare. In times of national security threats however the rights of the majority to protection may result in individual rights being ignored. The internment of Japanese Americans in World War II following Korematsu v US would suggest this is a regular phenomenon. In the longer term, these violations are likely to be addressed. The Supreme Court in Hamdi V Rumsfeld, Hamdan v Rumsfeld and Boumediene v Bush responded to the plight of those held at GITMO and forced the Bush administration to adopt different procedures. The fact though that these rights can be so easily ignored does suggest that rights are not adequately protected. They be more than “paper rights” i.e. rights which only exist on paper but not in practice, but that is not to say that they are adequately protected.