United States Human Rights Law
Constitutional Framework and the Bill of Rights
The United States approach to human rights is uniquely rooted in its constitutional structure rather than in international treaty obligations. The Bill of Rights, comprising the first ten amendments to the US Constitution ratified in 1791, serves as the primary source of civil liberties. The First Amendment prohibits Congress from making laws respecting an establishment of religion or prohibiting the free exercise thereof, and guarantees the freedoms of speech, the press, the right to peaceably assemble, and the right to petition the government for redress of grievances. The Second Amendment protects the right of the people to keep and bear arms. The Fourth Amendment secures the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, requiring probable cause for warrants. The Fifth Amendment guarantees the right to a grand jury, prohibits double jeopardy and self-incrimination, ensures due process of law, and requires just compensation for the taking of private property for public use. The Sixth Amendment guarantees criminal procedure rights including the right to a speedy and public trial, an impartial jury, the right to be informed of the nature of the accusation, the right to confront witnesses, the right to compulsory process for obtaining favourable witnesses, and the right to the assistance of counsel. The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual punishments.
The Incorporation Doctrine
The Bill of Rights originally applied only to the federal government, as confirmed by the Supreme Court in Barron v Baltimore (1833). The ratification of the Fourteenth Amendment in 1868 fundamentally altered this landscape through the incorporation doctrine. The Due Process Clause of the Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. Through a process of selective incorporation, the Supreme Court has held that most provisions of the Bill of Rights apply to the states through the Fourteenth Amendment. This process began with Chicago, Burlington & Quincy Railroad v Chicago (1897) regarding takings and accelerated in the twentieth century through cases such as Gitlow v New York (1925) (speech), Near v Minnesota (1931) (press), and Mapp v Ohio (1961) (search and seizure).
Equal Protection and Levels of Scrutiny
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall deny to any person within its jurisdiction the equal protection of the laws. The Supreme Court has developed a tiered framework of judicial scrutiny to evaluate equal protection claims. Rational basis review, the most deferential standard, requires only that the challenged classification be rationally related to a legitimate government interest and applies to most economic and social legislation. Intermediate scrutiny requires that the classification be substantially related to an important government interest and applies to classifications based on gender and illegitimacy. Strict scrutiny, the most rigorous standard, requires that the classification be narrowly tailored to serve a compelling government interest and applies to classifications based on race, national origin, and alienage, as well as to laws that burden fundamental rights. This framework was articulated in Korematsu v United States (1944), Craig v Boren (1976), and City of Cleburne v Cleburne Living Center (1985).
Substantive Due Process and Privacy Rights
The Supreme Court has recognised that the Due Process Clause protects not only procedural rights but also certain substantive rights that are fundamental to ordered liberty. In Griswold v Connecticut (1965), the Court struck down a state law prohibiting the use of contraceptives, finding a right to marital privacy emanating from the penumbras of the Bill of Rights. This right to privacy formed the basis for Roe v Wade (1973), which recognised a constitutional right to abortion under the Due Process Clause. In Planned Parenthood v Casey (1992), the Court reaffirmed Roe’s central holding while adopting an undue burden standard. However, in Dobbs v Jackson Women’s Health Organization (2022), the Court overruled Roe and Casey, holding that the Constitution does not confer a right to abortion and returning the regulation of abortion to the states. In Obergefell v Hodges (2015), the Court held that the right to marry is a fundamental right under the Due Process and Equal Protection Clauses and that same-sex couples may exercise that right.
Civil Rights Legislation
The Civil Rights Act of 1964 is the most comprehensive federal civil rights legislation. Title II prohibits discrimination on the basis of race, colour, religion, or national origin in places of public accommodation. Title VII prohibits employment discrimination on the basis of race, colour, religion, sex, or national origin, and has been interpreted to prohibit sexual harassment and discrimination based on sexual orientation and gender identity as held in Bostock v Clayton County (2020). The Voting Rights Act of 1965 prohibits racial discrimination in voting, including literacy tests and other devices used to disenfranchise minority voters, and requires certain jurisdictions with a history of discrimination to obtain federal preclearance before changing voting laws, though the coverage formula was struck down in Shelby County v Holder (2013). The Fair Housing Act of 1968 prohibits discrimination in housing on the basis of race, colour, religion, sex, familial status, national origin, or disability. The Americans with Disabilities Act of 1990 prohibits discrimination against individuals with disabilities in employment, public services, public accommodations, and telecommunications.
International Human Rights Treaties and the US Approach
The United States has ratified several core international human rights treaties, including the International Covenant on Civil and Political Rights (1992), the Convention Against Torture (1994), and the International Convention on the Elimination of All Forms of Racial Discrimination (1994). However, the US adopts a dualist approach: treaties are non-self-executing and require implementing legislation to create private rights of action. The US Senate routinely attaches reservations, understandings, and declarations (RUDs) to human rights treaties to limit their domestic effect, including the reservation that the treaty obligations are not self-executing and the understanding that the treaty does not create private rights enforceable in US courts.
The Alien Tort Statute (28 USC § 1350), enacted in 1789, grants federal district courts original jurisdiction over civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States. In Sosa v Alvarez-Machain (2004), the Supreme Court held that the statute permits claims based on a limited set of international law norms that are specific, universal, and obligatory. The scope of the statute has been narrowed in subsequent decisions, including Kiobel v Royal Dutch Petroleum Co (2013), which applied the presumption against extraterritorial application, and Jesner v Arab Bank (2018), which held that foreign corporations cannot be held liable under the statute.
The US Department of State produces annual human rights reports covering the status of human rights in every country, as required by the Foreign Assistance Act of 1961. These reports are submitted to Congress and serve as a key instrument of US human rights diplomacy.