The Rights of the People

by David K. Shipler

  The poetry and the power of the Bill of Rights are enhanced by brevity. The Eighth Amendment demands humaneness in merely sixteen words. With a single sentence, the First Amendment chisels the keystone of a free society. The authors wrote so concisely that generations of argument have ensued over the meaning of “excessive” or “unreasonable,” and every era has put its mark on the interpretations.

  At one extreme, “originalists” seek to understand the framers’ original intent and limit the Constitution’s meaning accordingly; at the other, “activists” of both liberal and conservative persuasions see the Constitution through their personal and political lenses. More responsibly, those who might be called “purists” distill the essence of the principles and rights the framers set down, then apply them faithfully to the present.

  That is the beauty of the sparse text: that it does not shackle today rigidly to yesterday, that it allows constitutional protections to broaden as consciousness evolves and values mature. Unlike the voluminous constitutions of many other countries, this one avoids most details, offering the most basic sketches of liberties. The succinct style minimizes the risk of spelling out rights and procedures so specifically that those omitted are assumed to be absent. Just the opposite is the case. As the Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

  For over two centuries, then, America has enjoyed and endured an intriguing fluidity within the walls of its constitutional ideals. From time to time, courts and legislatures have enlarged or curtailed the scope of liberty. On the one hand, they have come to see certain rights, such as privacy, implicitly protected even while going unmentioned in the text. On the other hand, especially during times of national stress and fear, they have narrowed and compromised rights that are explicitly delineated by the Constitution. Later, to its credit, the country has looked back on the violations with shame.

  To take a measure of any society, any legal system, any institution that aspires to justice or decency or just plain efficiency, watch how self-correcting it can be. The constitutional structure promotes that virtue, facilitating an interplay of politics, morality, and jurisprudence that tends to pull the country back from its departures, at least after a while. If a minority’s rights to political speech and association are curbed by a spasm of suspicion in one era, those rights can eventually find constitutional protection from the majority’s tyranny in another time. The courts may rule too late for the victim of the moment, but as the law professor David Cole observes, “They often reach results which constrain in the next crisis what can be done.”4 That this can happen even while the public’s anxieties flow into the halls of power sets up a curious interplay between expediency and principle, calibrated by the law and nourished in the souls of citizens.

  When composed, the Bill of Rights was envisioned mainly as a barricade against the new federal entity. Only over generations, and quite recently, has most of it come to stand as a defense against governmental authority in every form. The states’ own constitutions, while written in general harmony with the U.S. Constitution, were implemented inadequately, leaving the Supreme Court to invoke the federal protections step by step.

  Central to this evolution was a controversial expansion of authority known as “judicial review,” the power of the courts to strike down any law or governmental action deemed in violation of the Constitution. Judges routinely presided over trials and interpreted laws and regulations by applying them to actual cases. But to rule on the validity of a law itself, to overturn a statute passed by the legislature and signed by the executive, was to add a layer of judicial power unsettling to none other than Thomas Jefferson. He wrote firmly that “each of the three departments”—executive, legislative, and judicial—“has equally the right to decide for itself what is its duty under the Constitution, without any regard to what the others may have decided for themselves.”5

  His argument was rejected in the late eighteenth century by some early Supreme Court justices who claimed the power of judicial review, but the matter was not fully settled until the unanimous 1803 landmark decision in Marbury v. Madison, in which Chief Justice John Marshall saw “no middle ground” between the propositions “that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.” The choice was clear: The Constitution was “a superior paramount law, unchangeable by ordinary means,” and legislative acts in violation could be ruled invalid.6

  Still, the Court trod softly. Not until the United States was well into its second century did the Bill of Rights become a true shield against the awesome police power of government—first the federal government, then gradually the state and local governments as the Supreme Court incorporated individual amendments into the umbrella of protections. This took many decades after the ratification in 1868 of the Fourteenth Amendment, which followed the Civil War and declared: “No state shall … abridge the privileges or immunities of citizens … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”7

  Converting this promise into reality became an arduous task of litigation. Not until 1925 was the First Amendment’s guarantee of free speech deemed applicable to the states,8 and freedom of the press was applied to state laws only in 1931.9 Not until 1936 did the Supreme Court outlaw physical force during interrogation, an implicit purpose of the Fifth Amendment.10 Not until 1949 was the Fourth Amendment’s requirement for search warrants, based on probable cause, applied to the states,11 and not until 1964 did the states have to observe the Fifth Amendment’s protection against self-incrimination.12 No penalty existed for illegal searches by state authorities until 1961,13 when the Supreme Court ruled that evidence thus obtained would be inadmissible in trial. Not until 1963 was the right to a lawyer, in the Sixth Amendment, guaranteed for defendants too poor to hire attorneys.14 Coerced confessions were not effectively barred by law until 1966, when the famous Miranda warning, “You have the right to remain silent …” was fashioned by the Court.15 Trial by jury was not required of the states until 1968.16

  Such has been the gradual, belated process of self-discovery. In mining the great document for the core freedoms it contains, we have advanced and retreated and wandered. During at least five periods before September 11, 2001, the United States strayed from its principles dramatically. After the attacks on that day, we lost our bearings for the sixth time in our history.

  DEVIATIONS

  Americans had scarcely found their constitutional footing before they slid off course the first time, in 1798, just seven years after ratifying the Bill of Rights. The country had not yet gained comfort with its new experiment in constitutional democracy when the French Revolution of 1789, threatening a domino effect against European monarchies, triggered declarations of war on France by a coalition of states, Britain among them. Napoleon turned the tide, expanded French dominion across the continent, and was poised to cross the English Channel against England. The United States, seeking to protect its fledgling trade by sea, sought neutrality, but in vain. Hundreds of American ships were seized by both Britain and France; Britain closed most ports of its empire to American shipping, and France did the same to neutral shipping, further declaring that any vessel carrying British-made goods would be captured.

  The United States barely avoided war with Britain by signing a conciliatory peace, but a virtual war with France arose, leading to exaggerated fears of French subversion and invasion. In an atmosphere of “tumult and fear,” David McCullough writes,17 Congress passed the Alien and Sedition Acts, and President John Adams signed them into law. Under the Alien Enemies Act, whose powers remain in the U.S. Code today, citizens of a country in a declared war with the United States could be detained and deported;18 under the Alien Friends Act, the president could seize and remove any foreign citizen, even of a f
riendly nation, without anything resembling due process. Many French were driven from the United States by a poisonous mood of suspicion and the threat of arrest.

  The Sedition Act then made it a crime “to write, print, utter or publish … any false, scandalous, and malicious writing or writings against the government of the United States, or either House of Congress, or the President, with intent to defame … or to bring them … into contempt or disrepute, or to excite against … the hatred of the good people of the United States.…”19 This was “perhaps the most grievous assault on free speech in the history of the United States,” in the assessment of the constitutional scholar Geoffrey R. Stone.20 Several influential American editors were imprisoned for acerbic criticism of President Adams. So was a Republican Congressman from Vermont, Matthew Lyon, who had voted against the act and became its first victim after skewering the Federalists in office with biting attacks that seem mild today: He accused Adams of “a continual grasp for power” and Alexander Hamilton of “screwing the hard-earnings out of the poor people’s pockets.” Indicted for malicious intent “to bring the President and government of the United States into contempt,” he was found guilty by a jury, fined more than he could pay, and sentenced to four months in prison.21

  The young democracy proved self-correcting. Both the Alien Friends Act and the Sedition Act expired at the end of Adams’s term in 1801. By then the Sedition Act in particular had contributed to an upsurge of public resentment, which helped the Republicans drive the Federalists out of power. Everyone who had been convicted under the act was pardoned by Jefferson, the new president, who in his inaugural address enumerated the “essential principles of our Government,” calling them “the creed of our political faith,” and “the bright constellation which has gone before us and guided our steps through an age of revolution and reformation.” He urged that “should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.”22

  That road to liberty, which the country then followed quite faithfully until the second great departure during the Civil War, was open only to white men, of course, not to enslaved blacks, disenfranchised women, or displaced Native Americans. Those groups suffered violations too fundamental in early America to figure in the shifting index of civil liberties. When history documents the periodic trampling and restoration of constitutional rights, it speaks of the rights of white men, who—unlike the others—had rights to lose.

  White men’s speech was suppressed on both sides of the Civil War. Southern states outlawed abolitionist campaigning out of fear that it might stir slaves to rebel; the Confederate president, Jefferson Davis, suspended the writ of habeas corpus and declared martial law. In the North, several hundred newspapers were closed down for various periods, at least eight major papers were banned from the U.S. mail for criticizing the war policies, and some white men were seized by the Union army under martial law as suspected secessionists. A few were Northern editors who opposed the draft and the war, and advocated negotiation with the Confederacy; one was a prominent politician.23 President Abraham Lincoln, who tolerated considerable vitriolic dissent, nonetheless suspended habeas corpus to evade due process for alleged Confederate sympathizers, thereby denying prisoners the basic right to challenge their incarceration before a neutral judge.

  In the rising war, Lincoln saw “Cases of Rebellion” as the Constitution required to justify suspension. In April of 1861, when a Massachusetts regiment passing through Baltimore came under attack by Confederate partisans and rioting ensued, the city’s mayor ordered bridges to the north destroyed, and Lincoln confronted the specter of the nation’s capital cut off from troops and supplies. He suspended habeas, imposed martial law in Maryland, and had the army set about arresting men thought to be in league with the Confederacy, including one John Merryman, who was accused of severing telegraph wires and burning bridges.

  Merryman petitioned for a writ of habeas corpus, and won his argument before Chief Justice Roger Taney. Since the framers had located the authority to suspend in Article I, which denotes the powers of the legislature, not the executive branch, Taney ruled that only Congress, not the president, could interrupt the right. And since civilian courts were operating, he added, they had jurisdiction, not the military.

  In one of the earliest presidential rebuffs to the rule of law, Lincoln defied the chief justice. Soldiers at Fort McHenry, where the prisoner was jailed, blocked a U.S. marshal from entering to serve the writ on the commander, and in a sorrowful admission, Taney conceded that in the face of “a force notoriously superior” to the marshal service, “the Court has no power under the law.” Unable to exercise his right to appear before a judge, Merryman fared well nonetheless, given the circumstances. He was released after several weeks and never tried, “because the government recognized that no Maryland jury would convict him,” as Stone observes. Two years later, Congress resolved the constitutional clash by granting Lincoln the authority to suspend habeas corpus.24 (A suspension was also authorized by Congress during Reconstruction, in the Ku Klux Klan Act of 1871, and was used by President Ulysses S. Grant to put down a rebellion in nine counties of South Carolina.)25

  Again, after the war, the Supreme Court found that if civilian courts were functioning, they could not be replaced by military tribunals. It ruled unconstitutional the trial, conviction, and death sentence by a military commission in Indiana of Lambdin Milligan, a civilian who had been arrested with four others for conspiring to steal weapons and free Confederate soldiers from a P.O.W. camp. In Ex parte Milligan, whose relevance extends into the post-9/11 era of military commissions, the Court unanimously declared that the Constitution “is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” The opinion was written by Justice David Davis, a close friend of Lincoln’s who had managed his 1860 campaign—and this time, the executive branch obeyed the Court. Milligan was released and never subjected to civilian prosecution. He won a suit against the military for false imprisonment, with an award of five dollars.26

  The third major departure from constitutional principles came against a groundswell of protest over the United States’ entry into World War I. Leading a campaign of paranoia, President Woodrow Wilson portrayed the antiwar opposition as threatening the ability to raise an army and protect national security. He warned Congress that German spies, infiltrating American communities and government agencies, had “set criminal intrigues everywhere afoot against our national unity.” He turned his intense resentment of criticism into the force of law—the first since the Sedition Act—arguing for “a firm hand of repression” against the “disloyal,” who, he declared bluntly, “had sacrificed their right to civil liberties.”27

  He proposed the 1917 Espionage Act, which passed Congress and facilitated the prosecution of 2,000 activists, with German-Americans, labor union leaders, socialists, and anarchists among the most convenient targets. The government effectively barred socialist newspapers from the mail, sometimes by removing their second-class postage privileges, which raised their rates prohibitively. Then, in 1918, Congress added the Sedition Act—an echo of the 1798 version—which criminalized “any disloyal, profane, scurrilous, or abusive language about” the American form of government, the Constitution, the flag, the military, or its uniforms. The law penalized those who “by word or act oppose the cause of the United States” during wartime.28

  More than 1,000 people were convicted under the acts, and those prosecutions that reached the Supreme Court were upheld, most of them unanimously. It was a period of acute intolerance. The suppression of speech was endorsed by the American Federation of Labor, the American Association of Universities (urging that professors be fired for antiwar statements), and the American Bar Association (which condemned attempts “to hinder and embarrass the government” as “giving aid and comfort to the enemy
”).29 The scope of permissible debate narrowed on other issues as colleges came under pressure from donors, religious leaders, and government to dismiss faculty who were on the “wrong” side of Prohibition, immigration, and Darwinism. In reaction after the war, universities adopted tenure to protect faculties against intrusions into academic freedom.30

  The victims of the time were both famous and obscure. Among the best known were Jane Addams, the founder of Hull House for the poor in Chicago, whose speaking engagements were canceled as she was vilified and threatened for her pacifism; Eugene Debs, the Socialist Party’s presidential candidate and labor leader, who was jailed; and Emma Goldman, the anarchist advocate of “liberty unrestricted by man-made law,” who was arrested and then deported for organizing rallies against the draft.

  Among the lesser known was Thomas Aloysius “Red Tom” Hickey, a socialist in Texas who opposed U.S. involvement in the European fighting, calling instead for a “war from within” against capitalism, an economic system he colorfully labeled “a secretive, elusive, Janus-faced foe that besmirches our judiciary, corrupts our congress, debauches our legislatures, muzzles our press, mammonizes our teachers and preachers, and even seeks to degrade the electorate.” As he left a post office on the afternoon of May 17, 1917, after mailing copy for his newspaper, The Rebel, Hickey was seized by a Texas Ranger and three gun-wielding deputies. By the time he was bailed out of an Abilene jail by his wife, over fifty small businessmen and tenant farmers had been locked up for “seditious conspiracy,” writes his biographer, Peter H. Buckingham. Their crime? Their organization had narrowly approved peaceful resistance to the planned draft, a protest the government exaggerated as “an armed uprising.” The criminal cases went nowhere. A jury found all but three of the businessmen and farmers not guilty, and those convicted were later pardoned.