A Document America Must Have--but Barely Understands : Even after 200 years of experience with the Bill of Rights, America struggles to grasp, and implement, its true, difficult meaning
Two hundred years of rich experience has taught a central lesson of our noble experiment in government: that democracy--messy, unpredictable and sometimes chaotic democracy--depends for its survival and lifeblood on the personal freedoms that the Bill of Rights guarantees.
In the earliest hours of American history, those who fought for these rights set the United States on a remarkable new course in human affairs and kept it there, sometimes at great odds and often against the prevailing wisdom of the times. Sadly, today there are disturbing signs around us that betray our lack of understanding, as a nation, of the practical meaning of the freedoms to which America committed itself.
The Bill of Rights belongs to the citizens and exists to protect minorities from majorities. That truth begins not with the document but with the character of the American Revolution. John Adams, the Revolution’s most astute observer, wrote that a fundamental shift had taken place “in the hearts and minds of the people” long before a shot was fired. With the distance--in spirit and everyday life--between England and her colonies growing constantly, seeds were quickly sown for the new legal directions that would be taken these 200 years in the United States.
That sea change already was taking place in 1765, when William Blackstone, Britain’s acknowledged expert on common law, spelled out in his “Commentaries” that in Great Britain, sovereignty resided in the towering British institutions of Parliament and the Crown. On this side of the Atlantic, the chartered “cities in the wilderness,” as one writer called them, thought and acted differently. They were busily managing their own affairs, testing fledgling democracy in bold, confident colonial legislatures.
THE EXPERIMENT: Historian James Morton Smith characterized the early American experience in self-government immediately after the War for Independence as an experiment “so new, so untried, so idealistic, yet pragmatic.” And although the Bill of Rights issue was put off at the Constitutional Convention, the young country was soon to reckon with a question that we still are revisiting today: Whether the last word in a democracy resides with duly constituted majorities or with individual citizens. That piece of unfinished business was addressed 200 years ago on this date, when Virginia’s ratification put the Bill of Rights over the top and affirmed James Madison’s vision that “the people, not the government, possess the absolute sovereignty.”
ADAMS’ HONESTY: But that wasn’t the end of the matter. Adams’ presidency became embroiled in controversy over the infamous Alien and Sedition Acts, a set of repressive laws aimed at silencing critics of the policies of his Federalist Party. Adams thus illustrated a novel and peculiarly American dilemma: the cheery espousal of liberty--and the sometimes unpleasant challenge of living with its consequences. Even though he helped fashion the Revolution, his own Administration tripped over the new Bill of Rights that codified its spirit.
But it was through this famously stormy dispute, and the subsequent repudiation of the offending legislation, that Americans first breathed the enabling life of national experience into what had been mere parchment. In today’s times, a very similar debate, framed as national security versus the right to know, has played out on the national stage. But in a gesture of humility alien to some of today’s flag-draped political leaders, Adams eventually acknowledged that democracy was such an unfamiliar game that he didn’t comprehend fully how it ought to work.
Even so, America was off and running on this grand experiment. In a later generation Justice Oliver Wendell Holmes characterized the experiment as a government and a set of laws based not so much on logic as on experience. Madison had said as much in writing to Thomas Jefferson in 1788: “It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power; and that the line which divides these extremes should be so inaccurately defined by experience.”
THE ARCHITECTURE: From that uncertain line, however, America went on to build, brick by brick, case by case, law by law, the architecture of our experimental freedom. To be sure, English common law was the foundation, but in its best moments America conceived liberty not as rooted in British hand-me-down legislation but as something new and untried. Freedom was not something abstract but rather was applicable to everyday life--liberating and worthy of tolerance even in the most trying times.
But does America fully understand this complex and inevitably subtle vision? Perhaps not. Characterizing its findings as a “bittersweet present” to the nation on the Bill of Rights bicentennial, the American Society of Newspaper Editors concluded in a survey this year on free expression: “No matter what noble conceptions most Americans endorse when they are cloaked in the bright rhetoric and flowing phrases of the Founding Fathers, many do not finally support those precepts when they enter their lives and challenge their deepest personal commitments.”
This survey was published before David Duke’s racist campaign for governor in Louisiana managed to go down to the wire and capture an alarming share of the white vote. In light of the uneasy state of our collective, national understanding of the Bill of Rights, it is sobering indeed to think that an ex-Ku Klux Klan leader’s campaign was rebuffed not only by concern for civil liberties and cherished American values but by fear of the negative impact of Duke’s election on the local economy.
America needs better moral leadership. Consider the 1927 opinion by Supreme Court Justice Louis Brandeis in which the jurist asserted that liberty in America was both an end and a means, and that liberty was dead if society lived in mortal fear of different ideas. He argued that our happiness ultimately turned on our willingness to indulge liberty, and that liberty necessarily depended on a full measure of courage.
THE COURAGE OF LIBERTY: If that affirmative message is dimmed today in our national confusion, it has not been lost on the clamoring nations of the old world--in Eastern Europe and the crumbling Soviet Union. They face uncertainty and a host of problems, but as their old walls tumbled down and they were freed from decades of totalitarian oppression, they looked first for inspiration to America’s Brandeis-like twinning of courage and liberty.
Today the debate over the intent, scope and meaning of the Bill of Rights rages around us in contexts unforeseeable in 1791. Many Americans worry that the Supreme Court has begun to chip away at the expansive borderline of liberty--that a disturbingly revisionist constitutional view of “original intention” has begun to hold sway. That would make the Constitution more a straitjacket than a charter of freedom whose subtle corners of light are revealed through time. The truth is, as then-Justice William Brennan put it, the framers “did not agree about the application and meaning of particular constitutional provisions.” They approached their new experiment, democracy, with much more of the wondrous uncertainty exhibited by Adams, the President chastened so early in the tenure of the Bill of Rights. The framers’ mission was not to speak to us as wax figures across the ages but to summon for themselves the mettle to test the bounds of liberty, and to approach the rights of future Americans in language that might serve them well in their times.
THE COMING TEST: No doubt the vicissitudes of the economy and the increasingly multicultural nature of society provide new tests of our understanding and of our identity--of what we profess to stand for as a nation. But even in the 1930s, a much bleaker but not entirely dissimilar time, Americans never stooped to entertain seriously the trend toward fascism that swept Europe. University of Chicago professor Barry Karl, an authority on the New Deal era, says the country’s middle-class values and traditional fear of too much government have shielded the American system from the kind of “charismatic controls” that could ever make totalitarian government possible. In a time of polarization, there at least is reason to hope that our system is resilient.
One finds sustaining hope in the sound judgment of jurors at an absurd obscenity trial in Cincinnati; in the rejection of the idea for a constitutional amendment against flag-burning; in the dogged efforts of those who continue the fight for civil rights. While the Supreme Court and President Bush have turned the First Amendment inside out to ban abortion counseling at federally funded clinics, ordinary Americans seem to know better: a major poll found 64% of registered voters opposing the ruling.
LEAP OF FAITH: Thus, the question for Americans on this anniversary remains essentially the same as it has been throughout our history: Do we fully grasp, as Madison, Jefferson, Holmes, Brandeis and other lights have suggested, that the exercise of democracy, and its soul mate, freedom, is essentially an act of courage?
Do we have the nerve, as those who began this experiment did, to continue to make the great leap of faith?