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
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.
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.
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.
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.
Like Jefferson, many of the Founders feared the power of the federal government and demanded a bill of rights to limit its powers. They knew that the idea of a bill of rights had a long history that stretched back to England's Magna Carta in 1215. The English promulgated a Bill of Rights in 1689, and in America the colony of Pennsylvania adopted a Charter of Liberties in 1701. Shortly after independence had been declared, Virginia adopted a declaration of rights authored by George Mason that both Jefferson and Madison had in mind when it came to drawing up the federal amendments. But by then a significant change had taken place, and there is an irony in that Madison and others saw the importance of a bill of rights not so much in restraining the government but in restraining the people.
The original declarations of rights in both England and her colonies had been designed to protect the people from the small elite that controlled the government. In the American colonies, however, government became more democratic in the 18th century, a development that in some ways triggered independence and that picked up momentum in the 1780s. Political power now resided in the hands of the many, and those who ruled did so not by the right of birth or wealth alone, but because they had secured the consent of the majority. So now the focal point of a bill of rights shifted to protecting the minority from the majority.
This may sound strange to some, especially since democracy is often defined as rule by the majority. But "the majority" is a complex term. People who agree on one issue may strongly disagree on another. Democratic government is a series of compromises among shifting majorities so that in the end most of the people are satisfied with most of the results most of the time. But on any one issue, a person may be in the minority, so simple self-interest dictates that there be special protection for minorities. A person who demands that an unpopular speaker be silenced may some day find that he is the one advocating an unwelcome position; in order to safeguard his freedom to speak out against the majority, he must accede to protection for all other advocates of different views to be protected as well. Similarly, in order to preserve one person's right to free exercise of religion, one has to acknowledge the right of those with different religious views to be free as well.
In the pages that follow, there is frequent reference to decisions of the United States Supreme Court, and this is deliberate, because the Court has played a unique role in the expansion and protection of individual liberties. There is a certain irony in the fact that in a democratic society, nine persons named to their position for life, removable only for misbehavior, and unaccountable to the people, are the arbiters of what the rights of the people mean. But Constitutions and Bills of Rights need enforcers, they need someone to say that this is the meaning of free speech in this situation, or that is unacceptable behavior by the police. Chief Justice Charles Evans Hughes once commented that "the Constitution is what the Supreme Court says it is," and there is no question that the rights of the people have been largely defined by the courts.
The courts are, however, more than an enforcement mechanism. People may differ widely over what certain rights mean, but are willing to accept the adjudication of those rights from an impartial tribunal. The Court has not always been right, and the justices who have served on it for the last two centuries have not seen themselves as infallible. Some of their decisions have stood the test of time; others have given way to new developments. Above all, the Court has established what the ideals of our rights are, it has defined the place those rights play in our civic life, and on some occasions such as Justice Brandeis's exposition of free speech in Whitney v. California (1927) the eloquence of the exposition has become part of our very traditions.
But as the members of the Court would themselves acknowledge, neither democracy nor the rights of the people could survive without the deep attachment of the people themselves to those basic principles. These rights not only make a free society possible, they define who Americans are. That is no small thing.
Chapter 1: The Roots of Religious Liberty»