Political Science: An Introduction Rights

Political Science: An Introduction
Chapter 5
Rights
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Copyright @ 2012, 2010, 2008 Pearson Education, Inc. All rights reserved.
Constitutions in the Modern World
 Constitution – rules and customs by which a government
conducts its affairs
 Some constitutions are unwritten, made up of traditions,

customs, statutes, and precedents
 Many constitutions also specify individual rights and

freedoms, set forth government forms and limits, and
balance minority and majority interests
The General Nature of Constitutional Law
 Constitutions are fundamental, highest law of the land
 Often a constitutional court needed to interpret

constitutional provisions; constitutional law interpreted for
specific incidents
 Judicial activism – willingness of a court, conservative or

liberal, to strike down precedents
 Judicial restraint – reluctance of a court to strike down

laws or make law through broad decisions
Constitutions and Constitutional Government
 Constitutions can be similar, but countries’ political
culture can cause interpretations to differ
 Constitutions can essentially be idealistic fictions
 Constitutionalism – Degree to which government limits

its powers
 Magna Carta early effort to limit power of state; Magna

Carta also seen as tool to create democracy
The Purpose of a Constitution
 A statement of national ideals
 Formalizes government’s structure
 In a system in which there is a separation of powers , the
constitution divides authority and responsibilities among the
various branches of government; it also limits the power of each
branch
 Establishes legitimacy of government
 Constituent Assembly – a legislature meeting for the first time to
write a constitution; often established after overthrow of previous
regime to provide legitimacy of rule by new regime
What Is a Right?
 Jeremy Bentham declared “right is the child of law;” a right

only exists when it’s in statute or in a constitution
 U.S. founding fathers took “natural rights” as basis for human

rights, which can generally be formulated as “freedom from”
various forms of tyranny
 Civil rights – come with modern democracy, which needed

freedom to speak and vote for citizens; without civil rights,
dictatorship looms
 Economic rights – relatively new; a socialist idea of 19th

century, often expressed as “freedom to,” as in freedom to live
adequately or have a job
Can Constitutions Ensure Rights?
 Civil Rights and Civil Liberties
 As a reaction to World War II, the UN General Assembly adopted
the Universal Declaration on Human Rights
 Symbolic, with no powers of enforcement
 Establishes fundamental precepts and norms that most nations
are reluctant to violate openly
 Minority Groups and Civil Liberties

 Few nations are homogeneous; most have citizens from several
racial, ethnic, religious, cultural, or linguistic backgrounds, and
their civil or cultural liberties are often compromised
 Universal Declaration states that minorities have the right to
preserve their cultural uniqueness
The Adaptability of the U.S. Constitutions
 The Right to Bear Arms
 United States v. Miller (1939)
 District of Columbia v. Heller (2008)
 McDonald v. Chicago (2010)
 The Freedom of Expression

 Gitlow v. New York (1925)
 Pentagon Papers
 Citizens United v Federal Election Commission (2010)
The Adaptability of the U.S. Constitutions
 Free Speech and Sedition

 Sedition – criticism of the government or officials aimed at
producing discontent or rebellion
 Espionage Act (1917)
 Smith Act (1940)
 Internal Security Act (1950)
Rights for Terrorists?
 In 2006 and 2008, the U.S. Supreme Court ruled that

terrorist had habeas corpus rights
 Detainee may protest innocence before judge
 Patriot Act
 Remember context dependency when examining legal
restrictions on human and civil rights in U.S. or other countries

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Political Science: An Introduction

 Some constitutions are unwritten, made up of traditions,

 Many constitutions also specify individual rights and

 Often a constitutional court needed to interpret

 Judicial activism – willingness of a court, conservative or

 Judicial restraint – reluctance of a court to strike down

 Constitutions can essentially be idealistic fictions

 Constitutionalism – Degree to which government limits

 Magna Carta early effort to limit power of state; Magna

 Jeremy Bentham declared “right is the child of law;” a right

 U.S. founding fathers took “natural rights” as basis for human

 Civil rights – come with modern democracy, which needed

 Economic rights – relatively new; a socialist idea of 19th

 Minority Groups and Civil Liberties

 The Freedom of Expression

 Free Speech and Sedition

 In 2006 and 2008, the U.S. Supreme Court ruled that

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