The US Bill of Rights and Democracy
THE key events in the founding of the United States as a new nation took place over a span of roughly 20 years - beginning with increased national self-consciousness and militant protests over aspects of British rule in the early 1770s, and concluding with the successful introduction of new political institutions in the late 1780s and early 1790s. The ratification of the first 10 amendments to the US Constitution - popularly known as the Bill of Rights - 200 years ago this month was the last great event of the founding. The bicentennial has been accompanied by the publication of a raft of new books looking at the Bill of Rights, their legacy, and more generally at the democratic idea in America. Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Johns Hopkins University Press, 323 pp., $42.50 cloth, $10.95 paper), edited by Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford - three scholars who have guided the "Documentary History of the First Federal Congress 1789-1791" pro ject - is a legislative history of the progress of the amendments through the Congress's first session. Work on the amendments was completed in September 1789, at which point they were submitted to the states for ratification. Reading through the excerpts from the congressional debates reprinted in this volume, we are reminded again of the huge part played by James Madison in every stage of the drafting of the Constitution. Just as he had dominated the Constitutional Convention in Philadelphia two years earlier, so he steered the Bill of Rights through Congress in 1789, from his leadership in the House of Representatives. Madison had a long life (1751 to 1836) and a distinguished public career; interestingly, though, his major contribution did not come during the time of his greatest political power, his two terms as president (1809 to 1817). It came instead when, while still a young man, he managed better than anyone else to grasp and articulate the new political institutions the infant republic was seeking. The main pressure for a Bill of Rights came from the antifederalists - those who opposed the new Constitution. They argued that the amendments were needed to curb the national government, which they feared would be too strong and abusive of popular liberties. The Bill of Rights restrictions were written initially solely as checks on national authority, with no thought that they would apply to state government. Thus, the First Amendment requires that "Congress shall make no law respecting an establishment of religion... ." In fact, though, most court decisions in modern times based on the key provisions of the Bill of Rights - found in the First, Fourth, Fifth, Sixth, and Eighth amendments - have involved state, not federal, action. This has come about through a series of Supreme Court decisions handed down between 1925 and 1969, involving what is known as "selective incorporation." The court ruled that various specific guarantees of the first eight amendments were applied against state infringement through the due process clause of the 14th Amendment. That is, the latter's requirement that states may not deny any person "life, liberty, or property without due process of law" now means in American constitutional law that states may not curb rights of speech and press or pass laws respecting "an establishment of religion specific First Amendment provisions; let their law-enforcement officials engage in "unreasonable searches and seizures" as prohibited by the Fourth Amendment; or deny defendants in their courts access to coun sel for any reason, including indigency, a Sixth Amendment guarantee, and so on. The 200th anniversary of the ratification of the Bill of Rights is marked by the publication of A People's Charter: The Pursuit of Rights in America, a fine narrative history, by James MacGregor Burns and Stewart Burns (Alfred A. Knopf, 577 pp., $30). J. M. Burns is a long-time professor of political science and history at Williams College and a Pulitzer Prize winner; Stewart Burns is associate editor of the Martin Luther King Jr. papers at Stanford University. Those wanting a detailed exploration of the constitutional law surrounding the first 10 amendments must look elsewhere. "A People's Charter" instead tells the story of the quest for social and political rights in the United States in terms of leaders and groups in the rights movement, and evolving ideas of the rights of American citizenship. It is gracefully written and possesses the intellectual breadth and balance readers have come to expect in James MacGregor Burns's work. Crucible of Liberty: 200 Years of the Bill of Rights (Free Press, 215 pp., $22.95 cloth, $10.95 paper), edited by Raymond Arsenault, a historian at the University of South Florida, is a brief primer on civil-liberties litigation. Seven scholars contributed short essays, which review the evolution of Bill of Rights law. Unfortunately, these pieces give the appearance of having been dashed off to honor a commitment to yet another bicentennial publication. Nonspecialists will find useful the chronology of S upreme Court decisions - which reminds us of how little court action on civil-liberties questions there was prior to the 20th century and how such litigation became a prominent part of the court's agenda only after 1937. Visions of Liberty: The Bill of Rights for All Americans, by Ira Glasser, executive director of the American Civil Liberties Union (Arcade, 288 pp., $24.95), is a beautifully produced, well-written popular history of civil-liberties law that features striking photographs taken by documentary photographer Bob Adelman. The guiding perspective in this volume will not surprise any reader who is familiar with the commitments of the organization Glasser has long served. Glasser sees the Bill of Rights as the v ery linchpin of American democracy. But, in his judgment, for all their importance and grandeur, the amendments don't go far enough in their specification of individual rights - apart from the fact they often have not been properly enforced. Civil-liberties law, Glasser argues, now leaves far too many basic rights insufficiently protected. We get a very different perspective in Mary Ann Glendon's Rights Talk: The Impoverishment of Political Discourse (Free Press, 218 pp., $22.95). A professor at the Harvard Law School, Glendon argues that the basic problem regarding individual rights in the contemporary US stems not from their insufficient defense but rather from their promiscuous elaboration. "A rapidly expanding catalog of rights she writes, "extending to trees, animals, smokers, nonsmokers, consumers, and so on - not only multiplies th e occasions for collisions, but it risks trivializing core democratic values." More than ever before, Americans are now inclined to cast their every social and political interest in the language of "rights." The "absolutist" character of this rights rhetoric is terribly harmful, Glendon maintains. In practical terms, it makes the compromises democratic government requires harder to attain. When my "interests" collide with those of others, adjustments can be made. But what can be done when my "right" is asserted? How can a "right" be compromised? Of course, some core rights should n ot be compromised, but invoking the claim of "rights" too freely threatens the give and take on which democracy depends. It's not just that rights rhetoric is uncompromising. Its most profound failing, as Glendon sees it, is that it denies the moral necessity of responding to others' rights and needs. "The exaggerated absoluteness of our American rights rhetoric is closely bound up with its other distinctive traits - a near-silence concerning responsibility, and a tendency to envision the rights-bearer as a lone autonomous individual." In Roe v. Wade and its successor cases, for example, the Supreme Court asserted a "quint essential right of individual autonomy and isolation." Glendon argues that, because it overwhelmingly stressed the rights of the mother, this court doctrine precluded recognition of the humanity of the fetus and the common interest of the whole society in honoring the sanctity of life. The Bill of Rights is, of course, only one part of a larger system of constitutional government in the US. How well, all in all, is that system working? In the first volume - We The People: Foundations (Harvard University Press, 369 pp. $24.95) - of what is expected to be a three-volume inquiry, Yale Law School Prof. Bruce Ackerman struggles toward an answer. He concludes that it is doing remarkably well - that the unique institutional arrangements the founders bequeathed us through the Constitution have a historical track record, which deserves respect. Still, Ackerman says, the sources of strength in the American system are poorly understood, despite their long history, and he attempts a clarifying interpretation. He calls it "dualist democracy." Basically, the system's dualism involves a distinction between "normal politics" and "constitutional politics." Periodically, the regular flow of political decisionmaking in the US is interrupted by a great burst of energy, in which large segments of the public are mobilized behind a fundamental constitutional reinterpretation. One such burst came in the Civil War era and culminated in the end of slavery and the enactment of the 13th, 14th, and 15th amendments. Another ca me with the New Deal. "New Deal Democracy," as Ackerman sees it, "marked another great leap along the arc of nationalistic self-definition initiated by the American Revolution. Although the Founders broke with the state-centered Articles of Confederation, they did not clearly establish the priority of national over state citizenship; although the Reconstructers [after the Civil War] resolved this fundamental question in favor of the Union, they did not frontally challenge the Founding notion that the national government had l imited powers over economic and social development; with the New Deal, this Founding principle was decisively repudiated." Well, yes. But as with so much of the effort in "We the People" to revivify and strengthen American democratic theory, this description strikes the reader as familiar and generally well understood. The Constitution has survived and prospered for 204 years now not only because its design is profoundly intelligent, but also because it provides mechanisms for incorporating into the system rather basic changes in national norms regarding how we are governed. Ackerman's theorizing, while generally sound, lacks originality and force. Vincent Ostrom, professor of political science emeritus at Indiana University, is a leading student of federalism and constitutional thought. The Meaning of American Federalism: Constituting a Self-Governing Society (Institute for Contemporary Studies, 299 pp., $24.95), a collection of essays written by Ostrom over the past three decades, is an impressive work. It is, above all, a defense of the essentiality of federalism to American democracy. "The crucial issue," Ostrom writes, "is that the concept of federalism enables people to break out of the conceptual trap inherent in a theory of sovereignty that presumes there must exist some single center of supreme authority that rules over society." Real self-government requires the active engagement of citizens; they cannot simply hand things over to "the government" as some ultimate problem-solver. The dispersion of authority in a federal system at once encourages citizens to govern and depends upon their willingness to do so, not defering to the state. Ostrom worries that this willingness is now flagging in the US. His book is a call to revive it.