The Bill of Rights

December 11, 1990

One hundred and ninety nine years ago this week the Bill of Rights was ratified and became a part of the new Constitution. Often in recent decades, Americans have been asked if they approved these first 10 amendments, and often they have responded "yes" to the idea of a "bill of rights" in general but "no" to many of the enumerated rights as defined by current constitutional jurisprudence.

Many -- perhaps most -- Americans do not believe criminal suspects should have the rights the Supreme Court has consistently found in the Bill of Rights amendments dealing with search and seizure, fair trial, due process of law. Many, perhaps most, Americans do not believe government institutions should be prohibited from supporting religion. Many, perhaps most Americans do not believe in the freedom to express unpopular opinions.

Conflict over the Bill of Rights is not new. "The more [the draft of the Constitution] advanced the more I was impressed with the necessity of not merely attempting to secure a few rights, but of digesting and forming a complete Bill of Rights," wrote a Maryland delegate to the Constitutional Convention in 1788. But the convention rejected the idea, and most states, including Maryland, ratified the original Constitution without calling for amendments safeguarding individual rights.

This history can be misread. Many of those opponents of enumerated rights were not against such rights. (Many others were.) They argued that specifying certain rights implied that unspecified rights were not protected. They said the rights existed without the amendments. But James Madison won that argument in 1791 by arguing that even if that were true, if a lot of Americans believed their rights were unprotected unless enumerated, those rights should be enumerated.

And so they were. Judges and others have looked at them from different perspectives over the two centuries, but one way or another every generation has been well served by the Bill of Rights. It has kept alive the individual liberties that are the bedrock of this nation. As for the fear that unenumerated rights would be jeopardized, judges with philosophies as different as William Brennan and David Souter have, in the spirit of the Bill of Rights, recognized implied rights.

(A Bill of Rights exhibit, sponsored by Philip Morris, concludes today at the Convention Center.)

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