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Preface by U.S. Senator Sam J. Ervin, Jr., chairman, Senate Judiciary Page
Subcommittee on Constitutional Rights-
Amendment XXVII (Proposed): Equal Rights-
LAYMAN'S GUIDE TO INDIVIDUAL RIGHTS UNDER
THE UNITED STATES CONSTITUTION
The Constitution of 1789 has served as the fundamental instrument of our government for almost all of our country's history as an independent nation. Drawn at a time when there were only thirteen original states, dotted with small towns, small farms, and small industry, the Constitution has proved a durable and viable instrument of government despite enormous changes in the political, social, and economic environment. From a weak country on the Atlantic seaboard, to a continental nation of fifty states with over 200 million people producing goods and services at a rate thousands of times faster than produced in 1789, the framework for democratic government set out in the Constitution has remained workable and progressive.
Similarly, the individual rights listed in the Constitution and its 26 Amendments have also retained an extraordinary vitality despite their being applied to problems and fact situations which could not have been envisioned by the Founding Fathers. Freedom of the press, for example, could only have been understood in the context of the small, still primitive printing presses of the day. Yet today that freedom applies not only to modern presses but to radio, television, and motion pictures—all products of the twentieth century. It is the purpose of this guide to explain how these basic rights have been applied and to demonstrate how vital they remain in our day-to-day lives.
Each branch of the government—the Legislative, Judicial, and Executive—is charged by the Constitution with the protection of individual liberties, although the Judicial Branch has, within this framework, assumed perhaps the largest role. Chief Justice John Marshall, speaking for the Supreme Court in the early case of Marbury v. Madison (1803), declared that it was the duty of the judiciary to say what the law is, and that included expounding and interpreting that law. The law contained in the Constitution, he declared, was paramount and other laws which were repugnant to its provisions must fall. It was the province of the courts, he concluded, to decide when other law was in violation of the basic law of the Constitution and where this was found to occur, to declare those laws null and void. This is the doctrine known as "judicial review” which became the basis for the courts' application of constitutional guarantees in cases brought before them.
The Congress also has played an important role in the protection of constitutional rights by enacting legislation designed to guarantee and apply these rights in specific contexts. Laws which guarantee the rights of Indians, afford due process to military servicemen and give effective right to counsel to poor defendants are only recent examples of the legislative role.
Finally, the Executive Branch, which is charged with implementing the laws enacted by Congress, also contributes to the protection of individual rights by devising its own regulations and procedures for administering the law without intruding upon constitutional guarantees.
Before anyone can properly understand the scope of constitutional rights, he must realize that we Americans, by reasons of our federal system, live under two governments rather than one—that of the federal government itself and that of the state in which we live. The authority of the federal government is limited by the Constitution to those powers specified in it; the remainder of governmental powers are reserved to the states. The federal government is authorized, for example, to settle disputes between states to conduct relations with foreign governments and to act in certain matters of common national concern. States, on the other hand, retain the remainder of governmental power to be exercised within their respective boundaries.
Only a few individual rights were specified in the Constitution when it was adopted in 1788. Shortly after its adoption, however, ten Amendments-called the Bill of Rights—were added to the Constitution to guarantee basic individual liberties. These liberties include freedom of speech, freedom of press, freedom of religion, and freedom to assemble and petition the government.
The guarantees of the Bill of Rights originally applied only to actions of the federal government and did not prevent state and local governments from taking action which might threaten civil liberty. As a practical matter, states had their own constitutions, some containing their own bills of rights which guaranteed the same or similar rights as are guaranteed by the Bill of Rights against federal intrusion. These rights, however, were not guaranteed by all the states; and if they did exist, they were subject to varying interpretations. In short, citizens were protected only to the extent that the states themselves recognized their basic rights.
In 1868, the Fourteenth Amendment was added to the Constitution. In part it provides that no state shall "deprive any person of life, liberty, or property without due process of law.” It was not until 1925 in the case of Gitlow v. New York, that the Supreme Court interpreted the phrase "due process of law" to mean in effect "without abridgement of certain of the rights guaranteed by the Bill of Rights. Since that decision, the Supreme Court has ruled that a denial by a state of certain of the rights contained in the Bill of Rights represents a denial of due process of law. The court has not ruled that all rights in the Bill of Rights are contained in the notion of "due process, nor is that notion limited to only such rights as are enumerated in the Bill of Rights. It has simply found that there are concepts in the Bill of Rights so basic to a democratic society that they must be recognized as part of "due process of law" and made applicable to the states as well as the federal government.
At present, the following guarantees of the Bill of Rights have been applied to the states under the terms of the Fourteenth Amendment: Amendments I, IV, and Vl; the self-incrimination, double jeopardy, and just compensation clauses of Amendment V; and the guarantee against cruel and unusual punishment of Amendment VIII. Only the right to indictment by grand jury in Amendment V, the right to jury trial in a civil suit in Amendment VII and the prohibition against excessive bail or fines in Amendment VIII have not been applied to the states.
To place these rights in a broader perspective, one should realize that they make up only the core of what are considered to be civil rightsthose privileges and freedoms that are accorded all Americans by virtue of their citizenship. There are many other “civil” rights which are not specifically mentioned in the Constitution but which have nonetheless been recognized by the courts, have often been guaranteed by statute, and are embedded in our democratic traditions. The right to buy, sell, own, and bequeath property; the right to enter into contracts; the right to marry and have children; the right to live and work where one desires; and the right to participate in the political, social, and cultural processes of the society in which one lives are a few of these rights which must be considered as fundamental to a democratic society as those specified by the Constitution.
Despite the inherent nature of the rights of American citizenship, it deserves to be emphasized that the rights guaranteed by the Constitution or otherwise are not absolute rights in the sense that they entitle a citizen to act in any way he pleases. Rather, he must exercise his rights in such a way that the rights of others are not denied in order to gain the protections of the law. Thus, as Mr. Justice Holmes has pointed out, "Protection of free speech would not protect a man falsely shouting 'Fire’ in a theater and causing a panic.” Nor does freedom of speech and press sanction the publication of libel and obscenity. Similarly, right of free speech and free assembly do not permit one knowingly to engage in conspiracies to overthrow by force the Government of the United States. Civil liberties thus carry with them an obligation on the part of all Americans to exercise their rights within a framework of law and mutual respect for the rights of one's fellow citizens.
This obligation implies not only a restraint on the part of those exercising these rights but a tolerance on the part of those who are affected. Thus, citizens may on occasion be subjected to annoying political tirades, or strange dress, or disagreeable entertainment, or noisy demonstrations of protest. They may feel annoyed when a: defendant refuses to testify, or when they see a seemingly guilty defendant go free because certain evidence was not admissible in court. But these annoyances or inconveniences are a small price to pay for the freedom one enjoys. If the rights of one are suppressed, it is, in the final analysis, the freedom of all which is jeopardized. Ultimately, a free society is a dynamic society, where thoughts and ideas are forever challenging and being challenged. It is not without the risk that the wrong voice will be listened to or the wrong plan pursued. But a free society is one which learns by its mistakes and can freely pursue the happiness of its citizens.
INDIVIDUAL RIGHTS IN THE CONSTITUTION AS ORIGINALLY
ARTICLE I, SECTION 9, CLAUSE 2
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Čases of Rebellion or Invasion the public Safety may require it.