Individual Freedom and the Bill of Rights contents chap.1 chap.4 chap.7 chap.10 page 7 page 28 page 51 page 74 THE ROOTS OF RELIGIOUS FREEDOM OF THE PRESS TRIAL BY JURY CRUEL OR UNUSUAL PUNISHMENT LIBERTY chap.2 chap.5 chap.8 chap.11 page 14 page 36 page 58 page 81 RELIGIOUS LIBERTY IN THE THE RIGHT TO BEAR ARMS RIGHTS OF THE ACCUSED EQUAL PROTECTION OF THE LAW MODERN ERA chap.3 chap.6 chap.9 chap.12 page 20 page 44 page 66 page 88 FREEDOM OF SPEECH PRIVACY PROPERTY RIGHTS THE RIGHT TO VOTE Author: Melvin Urofsky / Executive Editor: George Clack Managing Editor: Paul Malamud / Art Director: Thaddeus A. Miksinski, Jr. Illustrator: Richard Anderson ABOUT THE AUTHOR: Melvin I. Urofsky is professor of history and public policy at Virginia Commonwealth University in Richmond, Virginia. He has written widely on constitutional rights, and is the co-author of the leading text on constitutional history, “A March of Liberty.” ABOUT THE ILLUSTRATOR: Richard Anderson, the illustrator, lives in Mamaroneck, New York. His work has appeared professionally in many formats, including magazines, posters, books, and other media. His cover art has graced national publications such as U.S. News and World Report, TV Guide, and AARP magazine. preface The Bill of Rights as Beacon n the summer of 1787, delegates from 13 new As the title “The Rights of the People: Individual American states, recently British colonies, met in Freedom and the Bill of Rights” suggests, this book is our IPhiladelphia to write a constitution for a unified nation. effort to explain how the core concepts of individual liberty By September, they had produced a document that then and individual rights have evolved under the U.S. legal began to circulate among the state legislatures for ratifica- system down the present day. tion. The new constitution provided a blueprint for how the It is intended for a great variety of readers. One obvi- national government would function, but it did not contain ous use is in secondary school or university classrooms. a section specifically outlining the rights of individual citi- To that end, we are creating an on-line Discussion Guide zens. A public debate quickly arose. Advocates of the draft with accompanying questions and background constitution argued that guarantees of individual rights references. Please look for it on the World Wide Web at: were not needed. Others, however, aware of the explicit http://usinfo.state.gov/products/pubs/ rights guaranteed in earlier documents such as the British A non-American reader may well ask, “But what does Bill of Rights (1689) and the Virginia Declaration of all this have to do with me? In my country we have a dif- Rights in 1776, believed that some specific provision stat- ferent legal tradition and there is no bill of rights.” ing the rights of individuals was necessary. It is true that the U.S. Bill of Rights is the historical At the height of the debate, in December 1787, Thomas product of a particular time and place. It arose out of a Jefferson, then serving as ambassador to France, wrote a long British tradition of enumerated rights within the letter to his friend James Madison, one of the chief authors British legal system that governed the American colonies. of the new constitution. “A bill of rights,” Jefferson wrote, Some would say it has unique application to the “is what the people are entitled to against every government circumstances of the United States. on earth, general or particular, and what no just govern- Yet many others believe that the American Bill of Rights ment should refuse, or rest on inference.” has transcended its historical roots. The concept of individ- Jefferson’s position gained advocates, and a compro- ual rights can be seen as one of the building blocks in any mise was reached. State legislatures agreed to ratify the civil society. And in many times and many places, the Bill draft document with the understanding that the first of Rights has served as beacon to those living under tyrants. national legislature meeting under the new constitution Consider the post-1989 revolutions that ended would pass amendments guaranteeing individual liberties. Communist control of Eastern Europe. Adam Michnik, the That is precisely what occurred. By 1791, these 10 amend- Polish journalist and Solidarity leader, posed the question ments, known as the Bill of Rights, had become part of the of which revolution has been a greater inspiration for mod- supreme law of the land. ern Europeans – the French Revolution or the American Much about this controversy at the very beginning of the Revolution. American experiment in democracy prefigures later “The American Revolution,” says Michnik, “appears to developments in U.S. politics and constitutional law. embody simply an idea of freedom without utopia. Intense views on both sides were moderated by a compli- Following Thomas Paine, it is based on the natural right cated, yet highly pragmatic compromise. Also significant is of the people to determine their own fate. It consciously that Jefferson saw explicit limits on government power as relinquishes the notion of a perfect, conflict-free society in a necessity. In fact, the Bill of Rights can be read as the favor of one based on equal opportunity, equality before the definitive statement of that most American of values: the law, religious freedom, and the rule of law.” idea that the individual is prior to and takes precedence over any government. 1 introduction 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 hese 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 cen- Tturies 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 spe- cific 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, gov- ernments 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 2 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 pro- tection of the rights of the people. s 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 Afoundation 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.