WHATEVER happened to the Bill of Rights? That's a question I ask myself as the 200th birthday of the world famous document approaches tomorrow.
Only 20 years ago, when I entered law school, the preeminent focus of criminal constitutional law was on the societal benefit of the Bill of Rights. The U.S. Supreme Court's direction then was clear: Citizens had basic liberties that were to be protected rigorously from government encroachment. These included freedom of speech and press (1st Amendment), protection from unreasonable police searches (4th Amendment), due process and protection from cruel and unusual punishment (5th and 8th Amendments).
As a law student I looked forward to dissecting cases that established a defendant's right to a lawyer at all critical stages of a criminal proceeding. I eagerly examined the logic behind the Miranda case and learned the importance of the exclusionary rule -- how it protected Americans from the unwanted scrutiny of police officers who did not have search warrants.
I felt certain that these decisions could never be seriously undermined. But I was wrong.
The 1970s hailed the breakup of the liberal majority with the coming of Justices William Rehnquist, Harold Blackmun and Louis Powell. The appointment of John Paul Stevens moderated matters, but by that time the direction of the court had changed.
Then came the 1980s. Chief Justice Warren Burger retired and Justice Rehnquist took his place. With the departure of the aging justices and the arrival of their replacements -- Sandra Day O'Connor, Antonin Scalia and Anthony Kennedy -- the question was no longer whether individual rights would be extended. Instead, the question was how and when they would be proscribed.
Inroads on the 4th Amendment began in earnest. So what if there was an illegal police search? If officers acted "in good faith," the evidence could be used, said the court in United States vs. Leon.
What if a search warrant was improperly issued? Define the problem as a technicality. And if the matter involves the government's war on drugs, forget it. This year the court ruled in Florida vs. Bostick that warrantless, suspicionless searches of bus passengers for drugs are permissible.
In another area of criminal law, the court recently affirmed a sentence of mandatory life imprisonment, without possibility of parole, of a first offender convicted of possessing more than 1 pound of cocaine. Justice Scalia's chilling reinterpretation of the 8th Amendment in this case is worth repeating: "Severe mandatory penalties may be cruel, but they are not unusual in the constitutional sense."
What is notable about these and other decisions is a swing to a narrowly constructed view of the Bill of Rights -- a view that tells Americans what the Bill of Rights does not mean. At the same time, the conservative majority has taken a activist stance on social and privacy issues.
Drunk drivers, sexually explicit materials, abortion and contraception -- all have become fertile grounds for the revisionists' viewpoint. Unfortunately, the revisions are almost always on the side of government -- a trend that Clarence Thomas, the court's newest member, can be expected to accelerate and prolong into the next century.
Since Dec. 15, 1791, the Bill of Rights has existed to protect citizens from excessive government. But today the freedoms represented by the Bill of Rights seem hollow and perfunctory -- nice words that can be printed on parchment, framed and hung on a law office wall. No longer do we hear of justices such as the late William O. Douglas who carried a copy of the Bill of Rights in his wallet and who proclaimed the amendments to be among the greatest creations of humankind.
As a criminal defense lawyer, I shudder with the announcement of every new Supreme Court decision. I wonder, whatever happened to the Bill of Rights?
Steven Beckett practices law in Urbana, Ill. This article was adopted from a forthcoming issue of the University of Illinois Law Review.