The Political Construction of Human Rights in the United States

Abstract

American constitutional scholarship was inspired but seriously sidetracked by the Warren Court, which was viewed as a lonely warrior battling intolerant majorities on behalf of the powerless. History and empirical evidence have defeated this romantic view. In fact, the modern Court is less likely to support human rights in the face of public opposition and as compared to Congress and, in any case, its effectiveness in doing so is limited. Recent scholarly developments - the popular constitutionalism and regime politics movements - properly recognize that human rights are politically constructed and dependent on popular and elite support. Empirical evidence, such as that offered here, more specifically reveals that the Supreme Court’s propensity to favor rights claims is strongly influenced by the partisan identity of both its members and the president making recent appointments. Thus, when it comes to rights, elections matter immensely. Courts nonetheless contribute importantly and uniquely to the ongoing and multi-party American dialogue over its constitutional values.

Keywords: Supreme Court, Regime Politics, Human Rights