The USA is always viewed in extremes. It is on the one hand, a bastion of freedom, but has a chequered history of civil and human rights and on the whole, certainly in 2002, its citizens – men, woman, children, black, Asian, and gay certainly have more freedom than many other countries in the world. Some of the individual states offer freedoms comparable to those in Scandinavian nations, such as gay marriage, others still retain strict legislation dating back to the 19th century. The USA criticizes and receives criticism in equal measure.
The USA has often been the driving force behind many of the more enlightened international bodies to deal with human rights. During the Nuremberg trials after World War 2, it was the American prosecutors who insisted on a ‘fair’ trial for the accused. The British and Russians had proposed execution without trial. Firstly, any comparison of human rights in the USA with those of its western peers and even some of its Asian peers requires a brief look at why Individualism is such a vital part of American culture. Individualism is a well-entrenched aspect of US culture.
The most obvious incarnation of individualism is the ‘American dream’ as well as its national and local politics (the cult of personalities rather than political parties) and its interpretation of its place in the world and the civil and human rights of its own people. People are encouraged to work hard and told they will make it. In reality this is more propaganda than truth. For every person who makes it to CEO, there are thousands of low paid, non-unionised workers living in poorly served ghettos. But this dream persists and most Americans have faith in this dream.
In the USA the aspects of life we associate with European collectivism such as trade union membership have failed to establish themselves. American society has in it a sense of reliance on the ‘self’ rather than the group or the state, which is unlike any of its European allies. It can be said that this individualism evolved from the Puritanism, which came to the USA during colonial times and established itself in postcolonial times. This is combined with an attitude that dislikes ‘welfare’ scrounging and the acceptance of job insecurity and other more employer friendly laws, which would be totally unacceptable in the UK or France.
Surveys have proved that Americans prefer private to public institutions and the ‘state’ is held in low esteem compared to Italy, Germany and Holland. David Mckay (1995) has suggested that economic individualism has been imposed on American society by the need to keep capitalism working. A casual observer of the US legal system and its lack of the more employee biased laws of which Europeans and, to some extent, Britons, are familiar with, suggest that the American system of laws, rights, and rules are all there to keep big business and the economy running smoothly.
The principal of individual rights came about at the framing of the constitution along with the concepts of federalism and separation of power. Individual rights were meant to protect the individual from the government by giving the individual an identity. Individuals are given rights and these are claims to identity to property and to the “pursuit of happiness”. These rights are supposedly protected and cannot be denied unless the public interest or the needs of the government prove, beyond doubt, to be greater.
The examples in this paper hopefully show that the needs of the government and the public interest have won out, far more than the rights of the individual. Although the overall culture is driven by individualism this is not totally representative of the way of life in the USA or its implementation of human rights laws. There is a perception outside of the USA that its human rights laws are individualistic and that the institutions in the USA responsible for dealing with human rights, Congress, The Supreme court et al, act only in an individualistic manner.
It can be argued that since its founding, the USA has a mixed track record of both an individualistic application of human and civil rights laws; as well as many examples when these laws have been applied in a collectivist manner, best suited to the interests of the nation and large groups within it, rather than the interests of the individual. Individual rights, human and civil rights are perceived to be protection from the bill of rights, the 10 amendments to the constitution, which were ratified in 1791. It is this ‘bill of rights’ which Americans feel fiercely proud of.
The ‘bill of rights’ covers a whole range of issues. The Supreme Court has always been the highest authority in the USA dealing with rights. It decisions whilst not always popular, have upheld the rights, of blacks, woman, gay men and woman. The controversial Roe vs. Wade ruling in 1973 gave woman the right to choose abortion if they so wished. But the case in fact stopped the states preventing abortions within the first 3 months of a pregnancy. The ruling is often sited as a landmark ruling on woman’s rights, no matter what side of the fence you stand on the subject of abortion.
Other groups have presented cases to be dealt with and had their rights re-inforced, protected and re-instated. The Supreme Court handles up to 150 cases per year. Most are mundane cases, dealing with parking laws, zoning, state taxes and other minor political issues. But some of the cases it has handled have had the most profound impact on American society. After 1950, the court decided that segregation in schools was illegal and a gross abuse of civil rights. It ruled that any person arrested should be provided with a lawyer at the government’s expense.
One of its more unusual rulings related to civil rights was ruling that it was a constitutional necessary to bus black children to ensure schools became de-segregated. These rulings and their application in US cities led to riots, deaths, arrests and social strife, but these rulings were significant ensuring basic human (civil) rights in the USA, that were guaranteed in the constitution were upheld. 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.