Foreword by Justice Ruth Bader Ginsburg
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An Engaging, Accessible Guide to the Bill of Rights for Everyday Citizens.
In The Bill of Rights: A User’s Guide, award-winning author and constitutional scholar Linda R. Monk explores the remarkable history of the Bill of Rights amendment by amendment, the Supreme Court’s interpretation of each right, and the power of citizens to enforce those rights.
Stories of the ordinary people who made the Bill of Rights come alive are featured throughout. These include Fannie Lou Hamer, a Mississippi sharecropper who became a national civil rights leader; Clarence Earl Gideon, a prisoner whose handwritten petition to the Supreme Court expanded the right to counsel; Mary Beth Tinker, a 13-year-old whose protest of the Vietnam War established free speech rights for students; Michael Hardwick, a bartender who fought for privacy after police entered his bedroom unlawfully; Suzette Kelo, a nurse who opposed the city’s takeover of her working-class neighborhood; and Simon Tam, a millennial whose 10-year trademark battle for his band “The Slants” ended in a unanimous Supreme Court victory. Such people prove that, in the words of Judge Learned Hand, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court, can save it.”
Exploring the history, scope, and meaning of the first ten amendments-as well as the Fourteenth Amendment, which nationalized them and extended new rights of equality to all-The Bill of Rights: A User’s Guide is a powerful examination of the values that define American life and the tools that every citizen needs.
BY JUSTICE RUTH BADER GINSBURG
Drafted in 1787, the U.S. Constitution is the oldest written national constitution still in use. Many of the Constitution’s supporters (James Madison, the Constitution’s principal author, among them) had initially argued that a Bill of Rights was unnecessary. In Federalist 84, Alexander Hamilton wrote that bills of rights “are, in their origin, stipulations between kings and their subjects,… reservations of rights not surrendered to the prince.” No need, Hamilton asserted, for such a document in a constitution “founded upon the power of the people, and executed by their immediate representatives and servants”; here, “the people surrender nothing; and as they retain everything, they have no need of particular reservations.”
But Madison, Hamilton, and the other Federalists could not win over the opposition on this point. As one of the great compromises that helped assure passage of our founding document, the first Congress passed a terse Bill of Rights, adopting provisions submitted by Madison himself. Ratified by the states in 1791, the Bill of Rights contains ten amendments. Since then, the Constitution has been amended only seventeen times.
Neither the original Constitution, nor the Bill of Rights, bestows any rights on individuals. To the Framers, no document could perform that task. In their view, individual rights antedated the state and thus were not the state’s to confer. As Jefferson wrote in our principal rights-declaring document, the Declaration of Independence: “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.” Thus, the Bill of Rights assumes the existence of fundamental human rights—for example, freedom of speech, press, and assembly—and simply instructs the state not to interfere with those rights.
Madison recognized that if the Bill of Rights was not to be a mere “parchment barrier” to the will of the majority, the judiciary would have to play a central role. “If [a Bill of Rights is] incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark… naturally led to resist every encroachment upon rights.”
While that sentiment has brightened the spirit of the men and women privileged to serve on the federal bench, the judiciary does not stand alone in guarding against governmental interference with fundamental rights. Responsibility for securing those rights is a charge we share with the Congress, the president, the states, and with the people themselves. As one of our greatest jurists, Judge Learned Hand, put it, the spirit of liberty that infuses our Constitution—a spirit that is not too sure it is right, one that seeks to understand the minds of other men and women and to weigh the interests of others alongside its own without bias—must lie, first and foremost, in the hearts and minds of the men and women who compose this great nation.
It manifests no disrespect for the Constitution to note that the Framers were gentlemen of their time, and therefore had a distinctly limited vision of those who counted among “We the People.” Not until adoption of the post–Civil War Fourteenth Amendment did the word “equal,” in relation to the stature of individuals, even make an appearance in the Constitution. But the equal dignity of all persons is nonetheless a vital part of our constitutional legacy, even if the culture of the Framers held them back from fully perceiving that universal ideal. We can best celebrate that legacy by continuing to strive to form “a more perfect Union” for ourselves and the generations to come.
Ruth Bader Ginsburg
Supreme Court of the United States
A LIVING BILL OF RIGHTS
America is a nation based on an idea. That idea, as expressed in the Declaration of Independence, is that all people are endowed “with certain unalienable Rights” and that the purpose of government is “to secure these rights.” Rights are at the center of Americans’ national identity. Rights are why many people make America their home.
In 1791, Americans added a list of their rights to the Constitution. These first ten amendments became known as the Bill of Rights. But putting rights on paper is not enough. As the late Learned Hand, one of America’s greatest judges, said: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”1 In Hand’s opinion, the real protectors of liberty were not constitutions or courts, but citizens.
Justice William O. Douglas of the U.S. Supreme Court, in his book A Living Bill of Rights, agreed with Judge Hand:
What our Constitution says, what our legislatures do, and what our courts write are vitally important. But the reality of freedom in our daily lives is shown by the attitudes and policies of people toward each other in the very block or township where we live. There we will find the real measure of A Living Bill of Rights.2
The purpose of this “user’s guide” to the Bill of Rights is to help citizens make the Bill of Rights a living document in their everyday lives. Unfortunately, the Bill of Rights did not come with an instruction manual. The language of 1791 can often be difficult to understand and apply more than 200 years later. Therefore, this guide describes the history of each right in the Bill of Rights and explains how the Supreme Court interpreted those rights. It also tells the stories of many “ordinary” people who have helped keep the Bill of Rights a living document—not just an artifact stored under glass at the National Archives in Washington, D.C. Making the Bill of Rights come alive in our communities is the best way to secure those rights for generations to come.
THE BIRTH OF THE BILL OF RIGHTS
The first ten amendments to the United States Constitution became known as the Bill of Rights because they contained many of the fundamental freedoms vital to Americans. These rights were so important that the American people insisted they be added to the new Constitution written in 1787. But the Bill of Rights did not suddenly appear when it was ratified by the states in 1791. It was the result of more than a century of experience with rights in America, and many centuries before that in England.
To understand the Bill of Rights and its history, one must first understand the principles underlying the idea of rights. What is a right? Where do rights come from? Who protects rights? This section helps answer those questions. By understanding both the underlying principles and the historical background of the Bill of Rights, Americans can exercise more fully the rights it guarantees to them.
THE IDEA OF RIGHTS
Calvin, the boy in the cartoon below, thinks he has a “right” to give the wrong answer on his homework. “It’s a free country,” he says; “I’ve got my rights!” But what is a right, and where do rights come from? Does Calvin really have a right to ignore the rules of mathematics?
Even in America, a country based on the protection of rights, Calvin has to do his homework. His rights as an American do not include freedom from math. But there are many other rights that he does have because he lives in the United States. What are rights? Where do they come from? How are rights protected in the United States? The answers to these questions help define the rights of all Americans.
WHAT IS A RIGHT?
A right is a power or privilege that a person has a just claim to, that belongs to a person by law, nature, or tradition. The first part of this definition—a power or privilege that a person has a just claim to—means to some people that their own individual ideas of fairness determine their rights. That is why Calvin claims he has a right to ignore the rules of math. But one person’s belief that a right exists does not necessarily mean another person must respect it. Calvin’s teacher probably will not respect Calvin’s “right” to be wrong.
Therefore, the second part of the definition—a power or privilege that belongs to a person by law, nature, or tradition—is equally important. A right is supported by law, nature, or tradition and can therefore be enforced against others. Individuals can claim rights based on their own sense of fairness, but without the support of law, nature, or tradition, other people and the government may not recognize or enforce those rights.
WHERE DO RIGHTS COME FROM?
Are you born with rights, or does the government give them to you? The answer to this question determines how a society views rights. The first view, that people are born with rights, is the theory of natural rights. The second view, that rights come from the government, is the theory of legal rights.
Natural rights are based on the principle that all people by nature have certain rights simply by being human. These rights are higher than any human political system. Natural rights do not come from government. Because they do not come from government, government cannot legitimately take them away. But because they do not come from government, government does not always protect them either.
John Locke, an English political philosopher of the late 1600s, developed a very influential theory of natural rights. He believed that people do not give up their “rights of nature” when they create a government. Moreover, he said that government exists to protect the natural rights of its citizens. Locke’s idea of natural rights had a great impact on the development of rights in America. Thomas Jefferson relied on Locke’s theories when he wrote the Declaration of Independence. It stated that people have “certain unalienable Rights”—including “Life, Liberty, and the pursuit of Happiness”—and that the purpose of government is “to secure these rights.”
Legal rights come from the laws, statutes, and court decisions of a society’s government. A right is a legal right when it is protected by law. A popular saying in the law is “there is no right without a remedy.” This means that a right does not legally exist unless other people are required to respect that right or are held responsible if they violate it. Legal rights are rights created by the government. However, if a government gives a right, it can also take that right away.
FROM NATURAL RIGHTS TO LEGAL RIGHTS
In America, many natural rights have become legal rights as well. Since colonial times, Americans have wanted to make sure that their rights were protected by law. They began listing their rights in the written laws of the colonies and of the states created after independence from England. Americans relied on statutory law, the written codes or statutes created by their legislatures. England used the common law, which was based on custom and the decisions of the courts but was not written down in a legal code. Americans were afraid that if their rights were not written in the law, government officials could violate those rights. Therefore, the American people would not accept the new Constitution of 1787 unless a bill of rights was added. Rights were thus recognized under constitutional law, the highest and most fundamental law in a legal system.
The rights in the Bill of Rights are both natural rights and legal rights. The Bill of Rights differs from the Declaration of Independence in this respect. Because the Declaration of Independence is not a law, the natural rights listed in it are not protected by the government. For instance, a person cannot sue in the courts for violations of the right to the “pursuit of Happiness.” But the Bill of Rights is part of the U.S. Constitution, and the rights it contains are enforced by the courts. The Constitution and the Bill of Rights are the “supreme law of the land” that all other laws, including state constitutions and statutes, must follow.
However, state constitutions can grant more expansive rights than the U.S. Constitution. At times, the Supreme Court tended to protect fewer individual rights under the U.S. Constitution, so then more Americans pursued their rights under state constitutions. Thus, Americans have two sets of constitutional rights: those under the U.S. Constitution and those under the constitution of the state in which they live.
HOW ARE RIGHTS PROTECTED IN AMERICA?
The courts have a unique role in protecting rights in America. All government officials, including the president and members of Congress, take an oath to support the Constitution and the Bill of Rights. But what happens if they break that oath, or if they disagree about the meaning of a right? In such cases, the courts have the authority to decide what the Constitution requires.
Only the courts have the power of judicial review, which means that they can declare a law unconstitutional and make it void. The Supreme Court upheld the power of judicial review in Marbury v. Madison (1803).
In that case, William Marbury asked the Court to issue a writ of mandamus—a legal order forcing government officials to carry out their duties—as it had been authorized to do by the Judiciary Act of 1789. The writ would force Secretary of State James Madison to give Marbury his commission as a justice of the peace. Marbury was one of former President John Adams’s “midnight appointments”—judicial appointments Adams made as he was leaving office in an attempt to increase the influence of his political party, the Federalists. But in the press of business, John Marshall, Adams’s secretary of state, had failed to deliver seventeen of the commissions—among them Marbury’s. President Thomas Jefferson, a Democratic-Republican, ordered his secretary of state, James Madison, not to deliver the commissions that were still left when Jefferson assumed office.
Now on the Supreme Court as chief justice, John Marshall heard the case that resulted from his errors as secretary of state. Writing for a unanimous Court, Marshall held that the Judiciary Act of 1789 was unconstitutional. The act authorized the Supreme Court to issue writs of mandamus as part of its original jurisdiction—that is, people could go directly to the Supreme Court for the writ, without having to go to a lower court first and then appeal to the Supreme Court. But the Constitution clearly did not include writs of mandamus in the Supreme Court’s original jurisdiction; changing the Court’s jurisdiction required a constitutional amendment, not an act of Congress. By declaring the Judiciary Act of 1789 unconstitutional, Marshall and the Supreme Court established that “it is emphatically the province and duty of the judicial department to say what the law is”3 and that “a law repugnant to the Constitution is void.”4 Marbury did not get his commission, but the Supreme Court got its most important power.
Experts disagree about how the courts should exercise the power of judicial review. Some argue that judges should seek to apply the original meaning of the Constitution’s words when it was ratified in 1788. Otherwise, they maintain, unelected judges are just imposing their own political values on the rest of the nation. These “originalists” believe that constitutional change should come through the people via the amendment process, not because judges think a policy is a good idea.
Other scholars argue that the Constitution is written in broad terms, requiring judges to use their “judgment” to interpret and apply such language to modern cases. An unelected judiciary is designed to protect unpopular rights, they say, and if changes in constitutional interpretation are necessary to protect those rights, then such changes are within the judicial power. For example, segregated public schools were legal for many years before the Supreme Court ruled in 1954 that such schools violated the Fourteenth Amendment.
Experts also disagree about the role of politics in the judiciary. Some say that the law is, or should be, based on neutral principles. A good judge, they say, is immune to politics. Chief Justice John Roberts compared judges to umpires at a baseball game, not biased for any team. Others argue that no human beings, including judges, are ever immune to politics. According to these scholars, judges always interpret the law based on their own personal values.
The Supreme Court has shown certain liberal or conservative trends based on the philosophical leanings of its members. When the Court was led by Chief Justice Earl Warren (1953–1969), for instance, it tended to be more liberal. The Warren Court upheld many rights for criminal defendants and gave broad protections to civil liberties. The Court under Chief Justice Warren Burger (1969–1986) was divided, issuing both liberal and conservative rulings. During the term of Chief Justice William Rehnquist (1986–2005), the Court became more conservative, enforcing states’ rights and limiting the rights of criminal defendants. After Chief Justice John Roberts was appointed in 2005, the Supreme Court was divided, issuing liberal rulings on gay rights and conservative rulings on criminal justice.
THE SUPREME COURT IN ACTION
When the Supreme Court reaches a decision in a case, it issues an opinion—a written explanation of the reasons for the decision. The majority opinion gives the decision of the Court and the reasons why the majority of the Court supported it. A concurring opinion is written by justices who agree with the majority’s decision but for different reasons. A dissenting opinion is written by justices who disagree with the Court’s decision.
The Supreme Court, as the highest court in the land, has the final say on what the Constitution and the Bill of Rights mean. Congress cannot pass a law to change a decision of the Supreme Court on constitutional issues, nor can the president alter it. Only the people, by amending the Constitution itself, can change how the Supreme Court interprets a right in the Bill of Rights.
RIGHTS IN A DEMOCRACY
Rights take on added importance in a democracy, a form of government in which the majority rules. As James Madison, the principal author of the Bill of Rights, pointed out:
Wherever the real power in a government lies, there is the danger of oppression. In our government, the real power lies in the majority of the community, and the invasion of private rights is chiefly to be feared, not from acts of government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of constituents.5
Responding to Madison’s fear, the Bill of Rights is designed to protect the rights of the minority in a system of majority rule. It is a document in which “We, the People” have agreed to limit ourselves, to say that some rights are so important that they cannot be voted on by the majority. Thus, the United States has a constitutional democracy—a government in which the people rule, but with certain limits. The Bill of Rights sets forth those limits.
THE HISTORY OF THE BILL OF RIGHTS
Rights in America did not begin in 1791 with the Bill of Rights. Colonial Americans began protecting rights almost as soon as they arrived in the new world. This chapter traces the Bill of Rights from its roots in England, through its beginnings in colonial America, to its final form in the new nation.
James Madison, who played a key role in drafting both the Constitution and the Bill of Rights, wrote to a friend in 1834: “You give me a credit to which I have no claim in calling me ‘the writer of the Constitution of the U.S.’ This was not like the fabled goddess of wisdom the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.”6
- On Sale
- Apr 10, 2018
- Page Count
- 288 pages
- Hachette Books