The Bill of Rights

More than an indestructible wall limiting the power of government, the Bill of Rights is a testament of hope.

By Roger K. Newman
Published July 22, 2003 7:47PM (EDT)

Huckleberry Finn, so far as we know, had not read the First Amendment. Here he was in anguish because he was harboring the runaway slave Jim. Knowing that he was breaking society's rules and sure that God disapproved, he wrote Jim's owner, Miss Watson, to turn him in. But he recalled their adventures on the river and Jim's kindness then, and he could not bring himself to mail the letter. He tore it up, certain that he would be damned forever: "All right, then," Huck said to himself, "I'll go to hell."

The passage is more than wonderful literature. Only when Huck let his mind travel did he discover what he really thought about equality. The First Amendment, which guarantees freedom of expression, allows that free flight, that necessary journey of self-discovery. In the words of one of its staunchest champions, Justice Hugo L. Black, that amendment -- along with the nine others that make up the Bill of Rights -- protects, or attempts to protect, "individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures." Its framers had seen numerous examples of human depravity, abuses of governmental power by colonial authorities, that led them to build indestructible walls limiting government.

The Bill of Rights gives hope because it is based on hope and on the belief in potential human virtue. Along with the U.S. Constitution, it inaugurated a new regime in human affairs.

The lack of specific guarantees of certain fundamental rights was the most substantial argument against ratification of the Constitution. Many framers thought them unnecessary and dangerous. Some people, such as Alexander Hamilton, argued that their protection ultimately rested not on paper guarantees but in the hearts and minds of the nation's citizens. Nevertheless the Constitution was adopted with the understanding that consideration of appropriate amendments would be the first business of the First Congress in 1787. Soon Thomas Jefferson, then ambassador to France, wrote James Madison, who guided the Constitution to passage, that "a bill of rights 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."

In September 1789, Madison introduced to Congress 12 amendments to the Constitution. "If they are incorporated into the constitution," he said, "independent tribunals of justice will consider themselves in a peculiar manner the guardian of those rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive." This was the intention of the framer. The first two amendments, which concerned the number of constituents for each representative and the compensation of congressmen, were not ratified. Articles 3 to 12 were ratified by three-fourths of the state legislatures and constitute the Bill of Rights.

What are these rights? A partial list would include the First Amendment's rights of speech, press, religion and peaceable assembly and to petition the government; the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's right to due process, privilege against self-incrimination, and prohibition of double jeopardy; and the Sixth Amendment's right to counsel and to a speedy and public trial by jury. These rights today are in the news even more than, to pick a topic totally at random, American (mis)adventures in foreign lands.

One proposed amendment, which Madison called "the most valuable amendment on the whole list," provided that no state shall infringe "the equal rights of conscience, the freedom of speech or of the press, and of the right of trial by jury in criminal cases." The Senate deleted it, however, and this omission led to nearly two centuries of litigation. In 1833 the Supreme Court expressly rejected the argument that the Bill of Rights also applied to the states. This limitation took on a new urgency with the enactment of the 14th Amendment in 1868. During a 50-year period starting in the 1920s, the Court incorporated most, though not quite all, of the Bill of Rights into the 14th Amendment. It was not an easy achievement. Opponents such as Justice Felix Frankfurter, in the 1947 case of Adamson vs. California, complained that nationalizing the Bill of Rights would "tear up by the roots much of the fabric of law in the several States, and would deprive the States of opportunity for reform." Justice Black, presenting massive historical evidence in the case, contended that the framers of the 14th Amendment specially intended to make the Bill of Rights applicable to the states, and ultimately he won the day.

In 1961 the Court declared that evidence illegally seized by police could not be used at trial. In 1962 it ruled that public school students did not have to recite state-written prayers. In 1966 in Miranda vs. Arizona it held that the police must advise persons suspected of a crime of their constitutional rights before they are questioned. These decisions helped lead to a backlash that propelled Richard Nixon to the presidency and that we are still feeling today. And in 1965, in the landmark birth control case Griswold vs. Connecticut, Justice William O. Douglas created the constitutional right of privacy from the First, Third, Fourth, Fifth and Ninth Amendments. This created a basis for the Court's decisions in Roe vs. Wade and the just-decided homosexual rights case, Lawrence vs. Texas.

These decisions and many others, especially those concerning speech and press, indicate if nothing else that without enforcement by an independent judiciary the Bill of Rights would be a meaningless concatenation of hoary shibboleths. They illustrate the negative rights that the Bill of Rights lays down - fences or "thou shalt nots" prohibiting the government from specified actions against individuals -- that give us the psychic space for productive lives as well as the necessary operating room to adopt positive rights -- jobs, food, housing, education, health -- those things that make for a good and just society.

The Bill of Rights is radical in the original meaning of the term: It gets to the core. In fact, it is so radical that polls over the past half-century and more raise serious questions whether the Bill of Rights as originally proposed would pass today. Indeed, such a proposal probably would not even get past a congressional committee. But while the original Constitution has been amended a number of times, to give the vote to women in 1920 for example, the Bill of Rights has never been amended. Our security lies easily as much in this inheritance of freedom and in practicing it daily while holding the government responsible for its infractions as it does as in our armaments. At the same time the Bill of Rights protects the rights of the accused, it grants to others a journey within and the ability to look beyond. Attaining our dreams is up to us.

Roger K. Newman

Roger K. Newman is the author of "Hugo Black: A Biography" and editor-in-chief of "The Constitution and Its Amendments." He teaches freedom of the press at the Columbia University Graduate School of Journalism.

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