An Overview of the Bill of Rights

An Overview of the Bill of Rights

Description

Since even democratically elected governments are capable of violating individual rights, the founding generation insisted that the original text of the Constitution be expanded to include a catalogue of immutable rights that no government could ever ignore. The result was the adoption in 1791 of the first ten amendments to the Constitution-the Bill of Rights-designed to preserve religious liberty; free speech; personal privacy; private property; and procedural fairness against the power of the democratic majority. In the aftermath of a tragic Civil War (1861-1865), fought primarily over slavery, the Constitution was further amended by adding what many have called a second Bill of Rights—the Thirteenth, Fourteenth and Fifteenth amendments—designed to protect equality by outlawing slavery, guaranteeing equal protection of the laws, and assuring the right to vote to members of racial minorities. The protections of the Bill of Rights were expanded yet a third time in the twentieth century when the right to vote was assured to women by the Nineteenth Amendment (1919) and to youths 18 and over by the Twenty-fifth (1970). Broad as the protections of the modern Bill of Rights are, however, they are not boundless. Most importantly, the Bill of Rights, standing alone, does not protect individuals against misuse of private power. With the important exception of the prohibition against slavery in the Thirteenth amendment, the provisions of the Bill of Rights protect the individual against the government, not against other individuals. Nor does the Bill of Rights guarantee economic or social rights. The document concentrates, instead, on preserving the personal and political rights needed for the proper functioning of a tolerant political democracy, leaving the economic and social arena to the free play of democratic judgment. The Bill of Rights does not simply catalogue rights, trusting the legislature, the executive, and the electorate to respect them. Rather, the Constitution establishes an institutional enforcement mechanism—judicial review—that vests life-tenured, politically-insulated federal judges (culminating in the Supreme Court) with the power and duty to enforce the Bill of Rights against all government officials-federal, state and local. State judges, many of whom are elected, also measure state and local government action against the guarantees of the Bill of Rights. The result is a nationwide network of judges—state and federal; elected and appointed—engaged in constant surveillance of the activities of the governing majority to assure that the individual rights described in the Bill of Rights are respected in everyday life. Since the Constitution, including the Bill of Rights, necessarily speaks at a high level of abstraction, its text is often ambiguous. Reasonable people can, and often do, disagree vigorously about its precise meaning. American judges seek to resolve such disagreements in the course of deciding actual ‘cases and controversies’ brought by aggrieved individuals claiming that a particular exercise of government power violates the Bill of Rights. It is in the process of deciding such disputes that the American judiciary draws the critical line between the domain of the individual and the power of the state. In deciding a constitutional case, an American judge reads the Bill of Rights with the help of judicial precedents-written opinions issued by judges in earlier constitutional cases. Applying the rule of stare decisis (respect for precedent), a judge seeks to decide a contemporary constitutional case in a way that is logically consistent with the most analogous past precedents. While there are ‘easy’ constitutional cases, where a consensus reading of judicial precedent and constitutional text render one outcome clearly preferable, ‘hard’ constitutional cases often force judges to choose among several plausible readings of precedent and / or text. Much of the intellectual richness of American constitutional law flows from disagreements over the proper approach to such ‘hard’ cases. Some judges and academics argue that a literal reading of the constitutional text, using dictionary meaning as a guide, is the most appropriate way to decide a constitutional case. Others argue that the original intentions of the framers should be a primary source of guidance. Yet others argue that a search for morally superior principles embedded in the text and past judicial precedent should guide a judge. And some argue that ambiguities should be resolved in accordance with the felt necessities of the age. The precise meaning of the Bill of Rights is, therefore, the result of a three-cornered partnership stretching back more than 200 years uniting the text written by the founding generation, the interpretive efforts of generations of judges past, and an evolving reading of the constitutional text by the current generation of American judges. The original Bill of Rights (the first ten amendments) codifies thirty-one ideas. The first six ideas describe an ideal commonwealth of respect for individual conscience, mutual toleration and democratic self-government. The next twenty-three ideas, spread over the Second through Eighth Amendments, respond to a series of threats to the First Amendment's ideal commonwealth, providing structural antidotes for each perceived danger. The last two ideas, codified in the Ninth and Tenth Amendments, guide future readers about how to resolve ambiguities inherent in any effort to use words to describe rights and define powers.

Source Publication

Fundamentals of American Law

Source Editors/Authors

Alan B. Morrison

Publication Date

1988

An Overview of the Bill of Rights

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