Do Americans Really Want to Keep the Bill of Rights?

JACK L.LEVIN

December 12, 1991|By JACK L. LEVIN

The intent of the creators of the Bill of Rights, whose bicentennial we are celebrating, was to reinforce the claims of rights that a citizen may assert against the government -- rights such as freedom of speech, press, association and assembly, religious liberty, personal privacy and due process of laws in general, the right of a citizen to limit the power of the state to restrict his personal freedom, the right for which many of our forebears fought and died.

Is that still our intent?

We celebrate the 200th anniversary of these great human freedoms which are the envy of peoples throughout the world -- but do we really want them? Apparently not, if it can be assumed that recent Supreme Court decisions are giving us what we voted for in 1980, '84 and '88.

Do we agree with the court's 5-4 decision that a coerced, involuntary confession is just a ''harmless error'' which no longer necessarily entitles the defendant to a new trial?

Or do we believe, with Justice Byron White, that this appalling decision is out of step with decades of legal history and that the Court majority dislodged ''one of the fundamental tenets of our criminal justice system''?

Are we concerned that the court has agreed to ''re-examine'' such fundamental issues as separation of church and state, censorship and a defendant's right to file a writ of habeas corpus?

Does it bother us that the court's Webster decision has taken away a woman's right to choose abortion and turned it over to mostly-male state legislators; and that women's basic rights will thus depend on who they are, where they live and how much they can afford to pay? Or that a federal appeals court in Philadelphia recently rejected a key part of Roe V. Wade in upholding Pennsylvania's anti-abortion laws?

Does it trouble us that individual rights, the glory of the United States and the distinguishing superiority of our system over others, are becoming casualties in the administration's ''wars''?

Does it matter that the administration's many ''wars'' -- against crime, drugs, etc. -- are used as justifications to erode the Fourth Amendment right of the people "to be secure in their persons, houses, papers and effects against unreasonable searches and

seizures?''

Do we still believe that no person -- however hated -- shall be compelled in any criminal case to be a witness against himself or be deprived of life, liberty or property without due process of law; and that the accused shall be entitled to a speedy and public trial by an impartial jury, without excessive bail, without cruel and unusual punishment, no matter how heinous the crime?

Or do we shrug it all off as problems for others -- bad people -- never for us good guys, until ourselves or persons close to us get into trouble?

Civil liberty is under constant pressure, not only from government and large private institutions such as corporations, universities, unions and special interests, but also from us the people. Long ago, Edmund Burke wrote: ''Of this I am certain, that in a democracy the majority of citizens is capable of exercising the most cruel oppression upon the minority.''

A more recent authority, Charles Reich, characterized civil liberty as ''an unnatural state for man or society . . . essentially contrary to the self-interest of the majority.''

Civil liberty requires the majority to restrain itself, especially difficult under conditions of stress like the present recession. Growing unemployment provokes discrimination, ethnic rivalries and repression of dissent. The dependent and powerless poor suffer the most.

Jurist Learned Hand said: ''Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can save it. No constitution, no law, no court, can even do much to help it.''

The real question confronting us today is not whether civil liberty lives in the Reagan/Bush-appointed Supreme Court, or in the White House or in Congress and state legislatures, but whether it lives in our hearts. Of all the grave problems besetting the nation, none is more threatening than the loss of faith in civil liberty or -- worse -- its perception as evil liberty.

The genius of this nation's founders was to recognize that power is inevitably used wantonly and that a bill of rights is as necessary to defend an individual against the majority in a republic as against a king in a monarchy.

In fighting for addition of a bill of rights to our Constitution, none of the Anti-Federalists was more passionately effusive than Maryland's Luther Martin in attacking the unamended Constitution (which Ronald Reagan later endorsed in attempts to weaken the Bill of Rights.)

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