COLUMN ONE : New Tests for Oldest Liberties : On the 200th anniversary of the Bill of Rights, America considers adding to its basic freedoms. Meantime, the original 10 face some stern reinterpretation.

Does the 1st Amendment protect “hate speech?” Can health workers be forced to take AIDS tests? Is there a right to doctor-assisted suicide? Should the Constitution one day be expanded to guarantee jobs, housing and health care?

The authors of the Bill of Rights--the name given the first 10 amendments to the U.S. Constitution--could hardly have imagined in 1791 that those and other questions would someday arise in the courts of their simple, rural country.

But as the nation marks on Sunday the 200th anniversary of the Bill of Rights, those and other intriguing issues are emerging from the complex society of the 1990s to pose new tests for Americans’ enduring basic freedoms.

On issues such as the wish of some ill people to hire a physician for help in dying, pressures are building to expand the Constitution’s grasp to embrace freedoms never conceived by the framers. Even as the frontiers of American liberties are being pushed, new crises such as the AIDS epidemic are prompting others to press for limits on existing rights.

Indeed, the possible conundrums seem as limitless as modern life is complicated. The answers, in turn, will come from the nine justices of the Supreme Court, the final arbiter of the Constitution under our form of government. For the time being, the arbiters on the current court appear to lean toward a narrower view of what the Bill of Rights means.

The Constitution, drafted mostly in broad, general terms, has given the court great flexibility in deciding how the 200-year-old words of the Bill of Rights apply in real life.

A quick reading of the Bill of Rights finds that several familiar phrases seem to be missing. There is no mention of “separation of church and state” or “right to privacy.” In fact, the famous phrase on the front of the Supreme Court building--”Equal Justice Under Law”--does not appear in the Constitution at all. According to court officials, those words were written by Cass Gilbert, the architect who built the grand edifice in the early 1930s.

All are constitutional concepts arising from Supreme Court opinions. Under the stewardship of Chief Justice Earl Warren, the court leaned in a liberal way in the 1960s. That era gave way to a more moderate period under Chief Justice Warren E. Burger. Now, under Chief Justice William H. Rehnquist, there is a solid conservative majority that could well remain intact into the 21st Century.

The Rehnquist court, among other things, has restricted the rights of criminal defendants, limited government affirmative action programs and allowed new limits on the right to abortion that the Burger court declared in 1973.

Significant tests of those and other key rights loom large on the high court’s docket--particularly the highly charged issue of abortion.

“Abortion is the No. 1 issue that now almost rivals the issue slavery was in the 19th Century,” said Prof. James A. Kushner of Southwestern University School of Law. “Abortion is going to remain the central issue for some time to come, regardless of what the present high court does.”

Today’s obsession with the legality of abortion contrasts starkly with the Bill of Rights’ placid distant past. For all the pride over the Bill of Rights, through most of American history it was little more than a grand proclamation, widely ignored and lacking the force of law.

Dissenters were arrested for speaking out against the government, protesters were jailed for printing pamphlets criticizing officials, and police were free to break into homes without warrants--all without violating the Constitution.

It was not until well into this century that the Supreme Court began to grant broad personal protections under the Bill of Rights, and declared that its provisions applied not just to the federal government but to the states as well.

The court achieved that feat by systematically “incorporating” the Bill of Rights into the post-Civil War 14th Amendment, which forbade states from denying any person the right to “life, liberty and property without due process of law.”

That meant that the rights of free speech, free press and other cherished guarantees were gradually broadened so that now they effectively protect Americans against governmental oppression at any level--federal, state and local.

“The 1st Amendment was not applied in any significant way until the 1930s,” said American University law professor Herman Schwartz. “And it’s really been just about the last 35 years that the other amendments took on real meaning.”

In 1965, the Warren court declared in a major expansion that a right existed protecting people from government meddling in their lives--the right to privacy. Through this evolutionary process, the high court finds itself now wrestling with an issue such as abortion--which is never mentioned in the Constitution, of course.

In a landmark 1973 decision, Roe vs. Wade, the Supreme Court said the right to privacy meant that states could not make all abortion illegal. Now there is much speculation that the Rehnquist court will change the rules again.

The court had the opportunity to revise Roe vs. Wade in 1989, but chose to limit the right to an abortion by allowing a ban on abortions in public hospitals in Missouri. Since then, the court has added two more conservatives: Justices David H. Souter and Clarence Thomas.

Kushner believes that the justices now essentially have three options. They could leave the right to an abortion intact, perhaps with some new restrictions; strike abortion off the menu of constitutional rights, leaving it to each state to rule on its legality, or move boldly in another direction by declaring a new constitutional protection for unborn children, which would bar abortions nationwide.

A major decision could come soon. Pennsylvania officials have asked the justices to rule by next July on a state law imposing procedural restrictions on abortions. The court is free to make a sweeping ruling anytime it takes up such a case.

The right to privacy that the Warren court read into the Bill of Rights could also soon be tested on issues arising out of the Information Age, experts say.

Technological advances that allow computer storage of vast amounts of personal data--which give police new ability to identify people through DNA samples or to conduct electronic surveillance--push into largely unexplored legal territory. Courts have also never offered any guidance on the constitutional status of devices that identify telephone callers without their consent.

“Technology has overtaken us in those areas,” said William Bennett Turner, a constitutional rights lawyer in San Francisco. “It would be useful to have a right to privacy that not only guaranteed freedom against governmental snooping, but also protected the right to terminate life-support systems, the right to have a baby or not.”

In its first look at the “right-to-die” issue, the high court said in 1990 that while a conscious patient could reject medical treatment, there was no broad right allowing parents of a comatose person to end life-sustaining care.

The issue remains far from resolved. Since last year’s ruling, attempts have been made around the country to enact various forms of right-to-die legislation. This fall, a measure allowing terminally ill patients to seek a doctor’s assistance in suicide was turned down by Washington voters, and a similar measure is headed for the ballot in California.

Privacy is also likely to become the central constitutional issue in legal skirmishes over drug testing. Thus far, the high court has upheld testing of workers involved with public safety. But in California and elsewhere, the legality of across-the-board testing for employees and others--such as college athletes--awaits additional court review.

Similarly, the meaning of the privacy right with regard to the relatively new legal dilemma over AIDS testing is unclear, but government-backed mandatory tests for even health-care workers face strong opposition in the courts, Kushner said.

Still to be resolved are privacy questions involving state efforts to regulate surrogate births. While California and some other states have extended legal protection to private sexual conduct between consenting adults, other states have not--and the U.S. Supreme Court is likely to be asked again to extend the constitutional protection to such activity it denied in a 1986 ruling.

Future refinements of the Bill of Rights--especially under the Rehnquist court--are also expected in the area of criminal defense. Civil libertarians, defense lawyers and other critics of the Rehnquist court are pessimistic, noting that substantial limits have already been placed on the right of defendants to challenge convictions and sentences in the federal courts.

“The court is increasingly trying to restrict legitimate access to the courts in the name of curbing crime and drugs,” said Michael Rothschild of Sacramento, president of the defense group California Attorneys for Criminal Justice. “It’s scary. I am very concerned about the future of our country.”

Conservatives, on the other hand, are more optimistic. They see the high court starting to bring a much-needed balance to the Bill of Rights. Defendants’ rights should be tempered with the rights of victims and society, they say, and government regulatory power should be balanced with individual property rights.

“The court is starting to recognize the rights of society--that it has a right to a fair trial just like a defendant,” said Michael Rushford, president of the Criminal Justice Legal Foundation, which frequently supports prosecutors in high court cases. “We see that as an expansion of the Bill of Rights . . . more of what the Founding Fathers were looking for.”

The direction of the court under Rehnquist also inspires hope among critics of government regulation. High court decisions recognizing a broader right to challenge government licensing, permit and zoning requirements have signaled a clear shift in favor of individual property rights, conservatives say.

“We have had a huge turnaround in the law,” said Ronald A. Zumbrun, president of the Pacific Legal Foundation. “Government now has the burden of showing that its regulations further a legitimate governmental purpose.”

Zumbrun was confident that in some future case, PLF lawyers will be able to persuade the Supreme Court to outlaw rent control, by showing that the policy has never fulfilled a legitimate purpose. “The days of rent control in the United States are numbered,” he said.

By next summer, the 1st Amendment right to free speech could undergo a revision when the Supreme Court decides for the first time if states can criminalize “hate speech.” Under review is a St. Paul, Minn., ordinance barring the display of labels that can cause “anger, alarm or resentment” on the basis of race, religion or sex. The law was invoked in the prosecution of a white teen-ager for burning a cross on the lawn of a black family.

The high court’s ruling could affect not only criminal laws barring such speech but the validity of scores of college campus “speech codes,” which punish various forms of hostile or insulting statements by students.

Already percolating in the lower courts is a debate over whether the homeless and others have a free-speech right to beg. A federal district judge in San Francisco has upheld such a right, likening a beggar’s request for money to public fund-raising efforts by organized charities. City officials plan to appeal. The issue may end up as a Supreme Court precedent.

The explosive political issues of government’s treatment of religion and affirmative action also appear headed toward major retooling in the Rehnquist era.

The Supreme Court this term is reviewing a case--involving graduation at public schools--that could have a far-reaching effect on the boundaries between church and state. The Bush Administration has asked the court to abandon the traditional notion of church-state separation and permit government-supported religious observances that are not “coercive” in nature. In a previous case, some justices had registered support for such a new test.

At issue is the court’s interpretation of the 1st Amendment, which forbids laws “respecting an establishment of religion,” a declaration that through most of American history meant only that the federal government could not establish a national church supported with tax funds.

In 1947, the Supreme Court ruled that this provision demanded a “separation of church and state,” a phrase used by Thomas Jefferson in a letter written in 1802. On that basis, the court ruled in the 1960s that the state may not sponsor prayers in public schools or give funds directly to parochial schools.

Over the past decade, the court has been closely divided on whether the Constitution allows the government to discriminate in favor of blacks, women or minorities in the furtherance of affirmative action goals.

The Rehnquist court has struck down some attempts by state and local agencies to set aside public contracts or jobs for minorities, but it has not abolished affirmative action in general. However, the recent addition of conservative members could spell an end to government-backed minority preference programs.

Looking much farther into the future, some experts see an eventual need for a broad expansion of basic rights--and envision the Constitution as the vehicle to accomplish that goal.

Angela G. Blackwell, president of the Urban Strategies Council, an Oakland-based anti-poverty group, calls for constitutional guarantees to employment, education, housing and medical care.

“The Bill of Rights is very empty for too many Americans, because of poverty they simply do not have the opportunity to fully enjoy the kind of liberty the Constitution provides for,” she said.

“By putting these new guarantees in the Constitution, we would have a legal handle to address these issues and add to the moral fiber of the country. Until we do that, we can’t breathe real life into the Bill of Rights.”

REVELING IN RIGHTS: L.A. celebration marks Bill of Rights 200th anniversary. B3