'To Secure These Rights'

LINDA R. MONK

September 15, 1993|By LINDA R. MONK

Rockville. -- File this one under ''only in America.'' Consider the case of the star-spangled condom.

Jay Critchley, a Massachusetts artist and AIDS activist, decided to popularize his cause by distributing red, white, and blue condoms under the ''Old Glory'' label. Each packet bore the product's logo -- a condom decorated with the stars and stripes -- and contained this pledge: ''We believe it is patriotic to protect and save lives.'' Mr. Critchley sought to register his logo with the U.S. Patent and Trademark Office.

His request was denied on the grounds that ''despite the FTC admirable intent displayed in the applicant's desire to prevent the spread of sexually transmitted diseases, the majority of the public would still be offended by the use of the flag to promote items associated with sex.'' A recent ruling by an appellate board of the trademark office reversed that decision.

Mr. Critchley's lawyer had argued -- correctly -- that ''the First Amendment stands for the proposition that the flag is everyone's symbol and that they can use it in whatever way they deem appropriate.'' Moreover, he said, the trademark office had no power to determine ''the politically correct and politically incorrect ways the flag could be used.''

Mr. Critchley's case presents an interesting study in America's love affair with rights. Only in America does this issue become one of constitutional rights rather than merely of bad taste. Why do Americans care so much about rights?

According to the Commission on the Bicentennial of the United States Constitution, ''America has always been about rights. . . . While many nations are based on a shared language or ethnic heritage, Americans have made rights the foundation of their national identity.''

Indeed, colonial Americans began protecting rights almost as soon as they set foot on land. The Massachusetts Body of Liberties, the first detailed list of rights in America, was enacted in 1641. And the Declaration of Independence, our nation's credo, affirms that all people are entitled to ''certain unalienable rights'' and that the very purpose of government is ''to secure these rights.'' America's unique emphasis on rights is also her unique contribution as a nation.

But a new movement gaining ground in some academic circles criticizes our national fixation on rights. These so-called ''communitarians'' believe that Americans have placed too much emphasis on individual rights at the expense of community values.

Amitai Etzioni, a principal leader of the communitarian movement and professor at George Washington University, frames the issue this way: ''Americans have acquired too many rights in an era of abundance and indulgence, before the nation fully faced the new realities of AIDS, crack, and urban warfare. These rights now need to be adjusted to make it easier to fight disease and crime.''

Mr. Etzioni contends, for instance, that ''all the rules and delays of due process'' should be trimmed to allow government to fight the modern epidemics of AIDS and drug-related violence. To Mr. Etzioni, due process belongs to a kinder, gentler era when rights were a luxury society could afford.

There is nothing new about this argument. Throughout our nation's history, ostensibly well meaning citizens have sought to suspend various protections of the Bill of Rights to solve some urgent crisis. They forget that the Bill of Rights was itself created in a time of crisis, with problems that paralleled their own. For example, the general warrants used by the British to search colonists for smuggled goods, which led to the Fourth Amendment's requirement of probable cause, are little different than the broad powers sought by police in today's drug wars.

To those who argue that the Bill of Rights is an antiquated relic of a rights-obsessed society, Justice Hugo Black had an answer. He wrote: ''I cannot consider the Bill of Rights to be an outworn 18th-century straitjacket. . . . Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought. . . . In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives.''

America has always been about rights, Americans believe that the purpose of their government is ''to secure these rights.''

More than 350 years after the Massachusetts Body of Liberties which first protected freedom of speech -- Jay Critchley still remembers that lesson. Maybe it's just in his blood as a citizen of the Bay State, or maybe it's just because he's an American. Only in America.

Linda R. Monk is the author of ''The Bill of Rights: a User's Guide,'' which won the American Bar Association's Gavel Award.

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