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— P R E F A C E —
The Bill of Rights as Beacon
In the summer of 1787, delegates from 13 new American states, recently British colonies, met in Philadelphia to write a constitution for a unified nation. By September, they had produced a document that then began to circulate among the state legislatures for ratification. The new constitution provided a blueprint for how the national government would function, but it did not contain a section specifically outlining the rights of individual citizens. A public debate quickly arose. Advocates of the draft constitution argued that guarantees of individual rights were not needed. Others, however, aware of the explicit rights guaranteed in earlier documents such as the British Bill of Rights (1689) and the Virginia Declaration of Rights in 1776, believed that some specific provision stating the rights of individuals was necessary.
At the height of the debate, in December 1787, Thomas Jefferson, then serving as ambassador to France, wrote a letter to his friend James Madison, one of the chief authors of the new constitution. "A bill of rights," Jefferson wrote, "is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."
Jefferson's position gained advocates, and a compromise was reached. State legislatures agreed to ratify the draft document with the understanding that the first national legislature meeting under the new constitution would pass amendments guaranteeing individual liberties. That is precisely what occurred. By 1791, these 10 amendments, known as the Bill of Rights, had become part of the supreme law of the land.
Much about this controversy at the very beginning of the American experiment in democracy prefigures later developments in U.S. politics and constitutional law. Intense views on both sides were moderated by a complicated, yet highly pragmatic compromise. Also significant is that Jefferson saw explicit limits on government power as a necessity. In fact, the Bill of Rights can be read as the definitive statement of that most American of values: the idea that the individual is prior to and takes precedence over any government.
As the title "The Rights of the People: Individual Freedom and the Bill of Rights" suggests, this book is our effort to explain how the core concepts of individual liberty and individual rights have evolved under the U.S. legal system down the present day.
It is intended for a great variety of readers. One obvious use is in secondary school or university classrooms. To that end, we are creating an on-line Discussion Guide with accompanying questions and background references. Please look for it on the World Wide Web at: http://usinfo.state.gov/products/pubs/
A non-American reader may well ask, "But what does all this have to do with me? In my country we have a different legal tradition and there is no bill of rights."
It is true that the U.S. Bill of Rights is the historical product of a particular time and place. It arose out a long British tradition of enumerated rights within the British legal system that governed the American colonies. Some would say it has unique application to the circumstances of the United States.
Yet many others believe that the American Bill of Rights has transcended its historical roots. The concept of individual rights can be seen as one of the building blocks in any civil society. And in many times and many places, the Bill of Rights has served as beacon to those living under tyrants.
Consider the post-1989 revolutions that ended Communist control of Eastern Europe. Looking back on these events, Adam Michnik, the Polish journalist and Solidarity leader, posed the question of which revolution has been a greater inspiration for modern Europeans — the French Revolution or the American Revolution. His answer is unequivocal.
"The American Revolution," says Michnik, "appears to embody simply an idea of freedom without utopia. Following Thomas Paine, it is based on the natural right of the people to determine their own fate. It consciously relinquishes the notion of a perfect, conflict-free society in favor of one based on equal opportunity, equality before the law, religious freedom, and the rule of law."
We hold these Truths to be self evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed. — United States Declaration of Independence
Above: Thomas Jefferson and John Adams were two of the chief authors of the U.S. Declaration of Independence. Below: James Madison, generally seen as the ?father of the U.S. Constitution.?
These words from the Declaration of Independence have always had a special meaning for the people of America. It is one of our charters of freedom, recited at countless gatherings every Fourth of July, memorized by generations of schoolchildren, invoked by politicians of every party, and frequently cited by the courts in their decisions. Its message, which resonates as forcefully today as it did over two centuries ago, is that protection of the rights of the people is the antecedent, the justification, for establishing civil government. The people do not exist to serve the government, as is the case in tyrannical societies, but rather the government exists to protect the people and their rights. It was a revolutionary idea when first propounded in 1776; it still is today.
John, Lord Acton,The History of Freedom and Other Essays (1907)
Liberty is not a means to a higher political end. It is itself the highest political end.
In the essays that follow, I have tried to explain what some of the more important of those rights are, how they are integrally connected to one another, and how as a matter of necessity their definition changes over time. We do not live in the world of the 18th century, but of the 21st, and while the spirit of the Founders still informs our understanding of constitutionally protected rights, every generation of Americans must recapture that spirit for themselves, and interpret it so that they too may enjoy its blessings.
In 1787, shortly after the Philadelphia convention adjourned, James Madison sent a copy of the new U.S. Constitution to his friend and mentor, Thomas Jefferson, then American ambassador to France. On the whole, Jefferson replied, he liked the document, but he found one major defect-it lacked a bill of rights. Such a listing, Jefferson explained, "is what the people are entitled to against every government on earth." Jefferson's comment surprised some of the men who had drafted the Constitution; in their minds, the entire document comprised a bill of rights, since it strictly limited the powers of the new government. There was no need, for instance, of any specific assurance that Congress would not establish a church, since Congress had been given no power to do so. But Jefferson, the chief architect of the Declaration of Independence, believed otherwise. Too often, in the past, governments had gone into areas where supposedly they had no power to act, and no authority to be, and the result had been a diminishing or loss of individual rights. Do not trust assumed restraints, Jefferson urged, make the rights of the people explicit, so that no government could ever lay hands on them. Many people agreed with Jefferson's sentiments, and several states made the addition of a bill of rights a condition of approval of the new Constitution.
At the very first Congress, Madison took the lead in drafting such a bill, and by 1791 the states had ratified the first 10 amendments to the U.S. Constitution, commonly called the Bill of Rights. But they are not the only rights listed in the document, and many of the amendments since then have done much to expand the constitutional protection of the rights of the people.
As we shall see in the essays following, many of the rights in those amendments grew out of the experience of both the British and the American colonists during the period of British rule. All of them reflect the Founding generation's understanding of the close ties between personal freedom and democracy. The First Amendment Speech Clause, for example, is universally recognized as a foundation stone for free government; in Justice Benjamin Cardozo's phrase, written in 1938, it "is the matrix, the indispensable condition, for nearly every other form of freedom." The various rights accorded persons accused of crime, all tied together by the notion of due process of law, acknowledge not only that the state has superior resources by which to prosecute people, but that in the hands of authoritarian regimes the government's power to try people could be a weapon of political despotism. Even today, dictatorships regularly use warrantless searches and arrest, lengthy detention without trial or bail, torture, and rigged trials to persecute and crush their political opponents. How the government acts in matters of criminal justice is a good indication of how democratic a government is, and how strongly the rule of law pertains.
Over the years, the definition of some rights has altered, and new concepts, such as privacy, added to the constitutional lexicon. But however defined, the rights of the people are at the core of what it means to be an American. In this way the United States is quite unique, and its tradition of rights very much reflects the American experience. Other countries define their national identity, what it means to be a citizen of that country, primarily through things held in common — ethnicity, origin, ancestry, religion, even history. But in these areas there is very little commonality among Americans — the most diverse nation in the history of the world. U.S. citizens come from every continent, every country on earth; they worship not in one church but in thousands of churches, synagogues, mosques, ashrams, and other houses of prayer. The history of the United States is not just that of the country itself, but the histories that millions of immigrants brought with them. Although there are some Americans who can trace their ancestors back to the Mayflower voyage in 1620 and others whose great-great-grandparents fought in the Civil War, there are others whose families were wiped out by wars in Europe and Asia in the 20th century and who came here with little more than the shirt on their backs.
What binds this diverse group of individuals together as Americans is the shared belief that individual liberty is the essential characteristic of free government. When Abraham Lincoln, in the midst of a bloody civil war, called the United States "the last, best hope of earth," he did not mean that the country or its inhabitants were morally superior to other peoples. Rather, the ideal of free government resting upon and protecting the rights of the people had to be preserved so that democracy itself could take root and grow.
One thing that will be clear from these essays is that while there are large areas of agreement among Americans as to the importance of these rights, there is also disagreement as to exactly what some rights mean in practice. Does freedom of speech, for example, protect burning the American flag or posting pornographic material on the Internet? Does the ban against the establishment of a church mean that there can be no governmental aid to religion, or only that it must be given out on a non-preferential basis? Does capital punishment come within the prohibition against cruel and unusual punishment?
For Americans these questions are worthy of public policy debate, a debate that in no way indicates that people do not value these rights. In a diverse society, moreover, one would expect there to be multiple interpretations of rights. One way to understand not only what the rights mean but why the debates over meanings go on is to recognize that the concept of liberty, at least as it has evolved in the United States, is multi-faceted.
First, in all free societies there is a constant and unavoidable tension between liberty and responsibility. Every right has a corresponding duty. Sometimes the duty rests upon the person exercising the right; a common saying is that your right to swing your arm stops where my chin begins. Other times the exercise of a right by one person requires restraint on the part of others not to interfere; a man may be advocating radical ideas that do not sit well with his audience, but the police are restrained from interfering with his right to speak freely. The right to be secure in one's home means that the police are restrained from entering that abode unless they have secured a proper warrant.
Edmund Burke,on the difficulties of creating a free government (1790)
To make a government requires no great prudence. Settle the seat of power; teach obedience; and the work is done. To give freedom is still more easy. It is not necessary to guide; it only requires to let go the rein. But to form a free government; that is, to temper together these opposite elements of liberty and restraint in one consistent work, requires much thought; deep reflection; a sagacious, powerful, and combining mind.
This tension needs to be seen in most instances as healthy, because it creates a balance that prevents liberty from degenerating into anarchy, and restraint from growing into tyranny. In a democracy people have to respect the rights of others, if not out of courtesy, then out of the basic understanding that the diminution of rights for one person could mean the loss of that right for all people.
A second problem in the practice of rights is that we often do not have a good definition of what the right entails. Chief Justice John Marshall once described the Constitution as a document "of enumeration, not definition." By this he meant that although Congress had been given certain powers under the Constitution, the list of those powers did not define them. For example, Congress has control over interstate commerce, but for more than two centuries there has been a debate over exactly what constitutes "interstate" commerce.
One reason that the lack of definition has not led to turmoil is that the Constitution provided a mechanism that interprets the document. Even if people do not agree with what the Supreme Court — the nation's chief court — says about the meaning of a specific right, adherence to the rule of law requires obedience to that meaning. Since the Court's composition changes over time, and since the men and women who become justices understand and reflect evolving notions of rights, the Court has over the years been the chief agent for keeping constitutional rights pertinent to the needs of the time.
A third issue involves the breadth of the right. If one were to write a history of the United States, one could easily focus on how rights have evolved and reached out to cover more and more of the population. Voting for example was at one time restricted to white, male property-owners over the age of 21; it has expanded to include nearly all persons over the age of 18, men and women, whites and people of color, property-owners and those without property.
Even what appears to be the relatively straightforward provision guaranteeing the free exercise of religion raises questions of breadth. Clearly, it means more than just adherence to mainstream faiths; it assures dissidents and even non-believers that they will be left alone. But how far does one go in protecting sects whose practices, such as animal sacrifice or polygamy, are foreign to the nation's values? The Supreme Court has wrestled with these and related issues for more than 200 years, and as Justice Kennedy's comments, below, in a flag-burning case indicate, the Court is still faced with very difficult questions interpreting how far particular rights extend.
Justice Anthony Kennedy,concurring in Texas v. Johnson (1989)
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.
That, over the course of the nation's history, there have been lapses in the protection of the rights of the people cannot be denied. Mormons were hounded out of the Eastern states, and persecuted in the West until they abandoned polygamy. The black slaves freed by the Civil War soon found themselves caught up in an extensive pattern of legally enforced racial discrimination in the South known as Jim Crow. Fear of radicals led to Red scares that seriously curtailed First Amendment rights after both the First and Second World Wars. Japanese-Americans were rounded up and interned during World War II.
While all these events may sound strange in a country that is defined by rights, the lapses did not result from groups who wanted to abandon the Bill of Rights completely. Rather, they came from well-meaning people who found the restrictions of the Bill of Rights inconvenient when confronted by what they saw as either a greater objective or a major threat to American survival.
Another important issue relates to the standing of rights not spelled out specifically in the Constitution. Everyone agrees that those rights explicitly mentioned in the first 10 amendments and elsewhere in the document are clearly important, and fall within the ambit of constitutional protection. But what about rights that are not specifically listed? Do they exist? The answer depends on how one interprets the Constitution, and it is a measure of how seriously Americans take their rights that the meaning and interpretation of the Constitution is and always has been a major issue in public discourse.
On the one hand, there is a school that believes the Constitution means what it says, and no more. The rights enumerated are to be protected, but no new rights should be created without constitutional amendment. When the question of the right of privacy arose in the 1960s, Justice Hugo L. Black, a strict constructionist, declared that "I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision." But what about the Ninth Amendment, reserving unenumerated rights to the people? For some scholars and judges, the Ninth Amendment only refers to rights held by the people at the time of ratification in 1791, and without clear evidence of the existence of such a right at that time, then it cannot be imported into the constitution without the necessary amendment.
Opposed to this view are the adherents of what is often called "the living constitution," the belief that the Constitution must change and adapt to evolving political, social, and economic conditions in the country. Although interpretation still starts with the words in the text, the emphasis is less on the literal meaning of those words than on the spirit that animated them. For example, when the Supreme Court in the 1920s first heard a case involving wiretaps, a majority of the justices agreed that since the actual tap took place outside the building, then there had been no "search" within the meaning of that word as used in the Fourth Amendment, and therefore no need for a warrant. But eventually the Court recognized that new technology made it possible to invade the privacy of a home without actually entering it, so the Court reversed itself and ruled that wire-tapping constituted a search and required a warrant. In a famous remark, Justice William O. Douglas explained that the Framers could never have imagined a wiretap, because they had no idea of telephones. A "living constitution" takes these developments into account, and by finding that eavesdropping was in fact a search, expanded upon the intent of the Framers to guard the privacy of one's home. That same logic led a majority of the Court in the 1960s to agree that privacy had been one of the rights that the Founding generation had intended to protect.
Justice Robert H. Jackson,in the case of West Virginia Board of Education v. Barnette (1943)
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, to free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.