The Bill of Rights in Modern America

David J. Bodenhamer, James W. Ely, Jr., James W. Ely

• Publisher: Indiana University Press
• Year: 2024
• Print ISBN: 9780253060716
• eBook ISBN: 9780253060730
• Edition: 3
• Topic: Politik & Internationale Beziehungen
• Subtopic: Nordamerikanische Geschichte

As the 2020s began, protestors filled the streets, politicians clashed over how to respond to a global pandemic, and new scrutiny was placed on what rights US citizens should be afforded.

Newly revised and expanded to address immigration, gay rights, privacy rights, affirmative action, and more, The Bill of Rights in Modern America provides clear insights into the issues currently shaping the United States. Essays explore the law and history behind contentious debates over such topics as gun rights, limits on the powers of law enforcement, the death penalty, abortion, and states' rights.

Accessible and easy to read, the discerning research offered in The Bill of Rights in Modern America will help inform critical discussions for years to come.

PART I

The Nature of Rights

ONE

RIGHTS CONSCIOUSNESS IN AMERICAN HISTORY

DANIEL T. RODGERS

IT IS A TRUISM OF contemporary American law practice that lawyers spend little time teaching their clients the importance of rights. From the minute seekers of legal aid cross law offices’ thresholds, they bring the rights-saturated language of their political culture with them. Anger, outrage, hurt, self-interest, and a vivid sense of injustice all flood into rights talk. Into rights talk, too, flow the opposite impulses: altruism, hope, selflessness, and loyalty. Intervening into the flood of rights talk, the everyday task of lawyers is to nudge their clients toward the pared-down case statements that the courts can be expected to admit.¹ But the language of rights—intense, abstract, expansive, and open-ended—has never been easily corralled.

For well over two centuries, rights consciousness has left an indelible mark on social and political relations in the United States. The consequences have not always been benign. Rights talk has sluiced complex issues of policy into competing rights claims, often at the expense of deliberation and compromise. It has swept key issues of democratic politics into the undemocratic rule of the courts and flooded every aspect of life with legalist argument. And yet rights talk has also been one of the most important ways in which Americans have infused their politics with a dimension beyond mere law or interests. Arguments about rights—essential, inalienable, human rights—have been among the key tools Americans have used to debate what a good society might look like, freed of injustice and the dead hand of the past. In its messiness, power, and contradictions, rights talk is one of the fundamental strands of US history.

Only a fraction of the historic contest over rights has taken place within the confines of the courts or the Constitution. Scholarship on the Bill of Rights has consistently exaggerated the place of that document in the dynamics of rights history in the United States. The courts have never been as imaginative producers of rights as those who have pressed their arguments on the justices or raised them on street corners or in churches or labor union halls. Rights talk in the American past has been the talk of town meetings, political rallies, newspapers, voluntary associations, religious assemblies, workmates, family gatherings, protest crowds, and electoral huckstering. In moments of crisis this broad diffusion of rights consciousness has ignited angry collisions of competing rights, as the rights of enslaved Americans have smashed up against the rights of other Americans to hold property in slaves, the breadline standees’ right to a job against the rights of free enterprise, the rights of pregnant women against the rights of the unborn. Popular politics in the United States has been the site of not only extravagant rights assertions but also endemic rights violations, perpetuated in the name of justice, security, patriotism, racial purity, or even in the name of rights themselves. Rights have been invented and repudiated, expanded and violated, striven for and struggled over. The current emotionally charged and politically polarized furor over the rights of asylum seekers, immigrants, and transgender persons is no historical aberration; its dynamics are among the most familiar in US history. Yet it is from this ongoing passionate, democratic debate over rights that the expansion of rights has historically drawn its primary energy.

As deep a feature of American political culture as it has been, rights consciousness has not been static. There are four key phases in its history. Each was marked by a moment of heightened rights consciousness and, by consequence, of fertile, even audacious, rights invention. The first of these phases, extending from the beginning of the struggle over English colonial policy through 1791, witnessed an explosion of popular rights claims, the habit of thinking about rights with the word natural as their key modifier, and a passion for rights declarations. That movement collided with a nervous counterreaction against popular rights construction to produce, scarred and circumscribed, a federal bill of rights. The period from the 1820s through the Civil War and Reconstruction saw a second eruption of rights claims, more radical in its focus on the social rights of workers, women, and enslaved people. A quite different dynamic governed the third phase, from the 1880s through the mid-1930s, as the courts moved aggressively into the creation of rights. Their wholesale construction of new property and entrepreneurial rights triggered a sharp reaction among many of those who had historically been key constituents of rights-based politics. Then out of the changed mental landscape of the Second World War and grassroots struggles for racial justice came yet a fourth era of rights invention whose reverberations still dominate contemporary US politics.

Waves of massive rights invention, passionate contests, partial success, and retreat—these have been the core dynamics of rights in America. A messier history than Bill of Rights mythology admits, it contains its own stories of heroism and inspiration.

UNALIENABLE RIGHTS

In 1776 there was nothing remarkable in the Declaration of Independence’s stress on the term rights. In a different historical context, colonists’ grievances over taxes and trade might have coalesced around other claims: custom, for example, or justice, or (as some of the phrases of the 1770s had it) the people’s general “happiness.”² Several factors combined, however, to press the fears and outrage of rebellious colonists into a language of rights. Most important was the precedent of 1688–89, the Glorious Revolution in which Parliament had deposed a king and forced the Declaration of Rights on his successor. Afterward, with each expansion of Parliament’s powers, the American colonial assemblies had been quick to assert “equivalent rights” for themselves. Some of the colonies had won statements of liberties and privileges from their governors, charters that the Americans had begun to imagine as local variations on the Magna Carta. Not surprisingly, then, when resistance to the heavy-handed imperial reforms intensified, the movement’s leaders were quick to denounce the new measures as violations of their “most essential rights and liberties.”³ From the Stamp Act Resolutions of 1765 through the Continental Congress’s declaration of rights in 1774 and beyond, the patriot leaders and publicists drummed home the point that the new measures endangered their chartered and constitutional rights, the historical rights due to every British subject.

What was striking in Thomas Jefferson’s phrase was the adjective unalienable—abstract, indistinct, and still novel in the 1770s. At the beginning of the colonial resistance, there had been little in the Anglo-American past to predict that the leaders of the rebellion would so quickly desert the safe ground of history and precedent for rights that were merely imaginary—natural rights, antecedent to law, indeed to history itself. But the move to establish rights not by sorting through the law but by imagining what the human condition must have been at the moment of its birth—or had to be by its very constitution—was quick to gather force. “The sacred rights of mankind are not to be rummaged for among old parchments or musty records,” Alexander Hamilton declared in 1775. “They are written, as with a sunbeam, in the whole volume of human nature.”⁴

The danger of departing from legally established rights to rights grounded in the original design of nature was not lost on the patriot leaders. Not the least of their fears was that such a move might allow the definition of rights to escape the control of lawyers and educated men and throw it open to any colonist with a philosophical bent. To the end of the Revolution, there were individuals who resisted open-ended declarations of rights. But the exigencies of argument pressed hard in the other direction, as escalating cycles of protest, repression, and outrage pushed the patriot demands beyond any sure foundation of precedent and constitution. Rights grounded in nature were rights that by definition constrained every government, even the emergency committees of safety that had begun to move into the revolutionary power vacuum by 1774–75. In practice, the American Revolution, like all revolutions, suppressed a great many rights, as experienced by loyalists whose property was seized, or whose buildings were burned, or who were harried out of their villages. Yet coming on the heels of a decade of petitions and declarations, the same revolutionary fervor that made liberty seem so fragile that rights had to be smashed to preserve it also impelled the patriots to put rights on paper. And, in the now deeply politicized process, risk a flood of new ones.

The first declaration of rights to bind a patriot government was Virginia’s, debated at length in May and June 1776. Its philosophical untidiness was witness to the diverse pressures on the revolutionary state. The Virginia Declaration of Rights was a compound of individual rights, legal and procedural rights, and collective rights (the right to a popular militia and the revolutionary right to abolish any government faithless to the “public weal”), together with general statements of political principles and pious statements of morality. In a gesture full of symbolic meaning, the Virginians claimed these rights not as grievances against the Crown but as the “basis and foundation of government” itself.

During the first years of independence, less than half the states followed Virginia’s example of rights declaration. How deeply the new rights talk had lodged in popular politics, however, became clear as early as 1778, when the Massachusetts town meetings rejected a constitution drafted without a bill of rights. Nowhere in late eighteenth-century America can one find so close a reading of public opinion as in the returns of the town meetings that discussed the constitution’s failings. Some of them bear the marks of bookish lawyers; others have the spelling of little-schooled farmers. What is striking is the breathtaking inventiveness with which people were now talking about rights: the inalienable right to follow the dictates of one’s conscience (though it meant disestablishment of the clergy); the right to absolute property in oneself (though it meant the death of slavery); the right to make public officials stand for annual election; the right of even poor or Black men to vote; the right “engraved in human nature” to a fairly apportioned legislature; the “unalienable right” of popular ratification of a constitution.⁵ Unhinged from history and formal law, loosed from the monopoly of learned men, the business of imagining rights had grown from an argumentative strategy to a volatile popular movement.

Rights talk of this sort was still alive when the Constitutional Convention met in 1787, and it is in this context that its failure to propose a federal bill of rights must be understood. Prudence, to be sure, was against the project, given how fiercely the clauses of the state bills of rights had been debated and with what diverse results. So was the exhaustion of the delegates by the time George Mason, author of the Virginia declaration, raised the issue in Philadelphia. The deeper instinct, however, was more conservative. The drafters had already carefully deleted every instance of the term rights from the Constitution in favor of more cautious references to immunities and privileges. As The Federalist’s lame and belated treatment of the issue made clear, the Constitution’s drafters were anxious to evade altogether the unpredictable popular talk of rights and focus debate instead on constitutional mechanics and national pride.⁶

When the Constitution came before the state ratifying conventions, however, it quickly became evident that the framers had miscalculated popular sentiment. The Anti-Federalists’ objections to the Constitution only began with the omission of a bill of rights. The sticking point was the power and scope of the proposed national government. By the time the ratification debate reached Virginia, however, the Anti-Federalists had made enactment of a bill of rights, prefixed to the Constitution, a condition of their acquiescence.⁷

It fell to James Madison in the First Congress to fulfill the bargain, though he was himself no partisan of bills of rights. When Jefferson wrote from France that “a bill of rights is what the people are entitled to against every government on earth,” a skeptical Madison responded that “parchment barriers” like Virginia’s rarely made much difference. In his opening remarks to an impatient Congress, Madison stressed not the philosophical value of a bill of rights but the expediency of one in the current moment as “highly politic, for the tranquility of the public mind, and the stability of the Government.”⁸ Had Madison had his way, the guarantees of the first ten amendments would not have stood out as a separate bill of rights but would have been woven unobtrusively through the body of the Constitution. Several of the rights that had gathered strong support in the ratifying conventions Madison let drop from his proposal altogether: the right of the people to “instruct” their representatives, a prohibition against chartered monopolies, and a constitutional limitation on peacetime armies. Other proposals succumbed to the caution of Madison’s colleagues. In response to the demand that the Constitution begin with a clear statement of constitutional principle, Madison proposed prefixing a clause acknowledging the people’s constitutional right to reform (though not abolish) their governments, but the proposal did not get past the House of Representatives. Following the language of the ratifying conventions, Madison proposed three substantial paragraphs elaborating the rights of free speech, assembly, and conscience. The House compacted them into two abbreviated clauses; the Senate bundled them into a sentence. The House would have preserved most of the newly articulated rights against both the state and federal governments; the Senate restricted the First Amendment’s scope to acts of Congress.⁹

It was no wonder that leaders of the bill of rights movement like William Grayson complained that their amendments had been “so mutilated and gutted that in fact they are good for nothing.”¹⁰ That turned out to be an exaggeration colored by disappointment. In time the amendments were to become,...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction
• Part I: The Nature of Rights
• Part II: Modern Rights in Controversy
• Part III: Individual Rights and Public Safety
• Part IV: Emerging Rights
• Part V: State Constitutional Rights
• Suggestions for Further Reading
• List of Contributors
• Index