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Guideposts for Thinking and Discussion: The Court and Basic Rights

The Relationship of the Constitution to Rights

The freedom of religion, speech, and the press, as well as the freedom to petition in redress of grievances and to assemble together as citizens, are rights that Americans regard as basic to liberty. It is the reason why these rights were guaranteed by the First Amendment and routinely upheld thereafter by the Supreme Court. Nonetheless, neither the First Amendment nor the Supreme Court is the reason why Americans consider these rights to be fundamental. Americans believe that these rights are the birthright of humanity. Government does not confer these basic rights. They rest on immemorial principles and a set of customary procedures for implementing these principles that had evolved over the centuries and were codified, or laid down, in the American Constitution. It is the purpose of the Constitution, in other words, to secure these rights. The Supreme Court is one of the instruments of government (along with the legislature and the executive) created by the people to implement the principles specified in the Constitution

The idea that humans are endowed with basic individual rights is an article of civic faith in the United States, but it did not emerge full grown or over night in Western thought. On the eve of the American Revolution, colonial thinkers and leaders debated strenuously the nature of government, natural rights, and the idea that all government stems from the power of the people in the form of a social contract among them. In discussing their right to revolution, American colonialists drew upon a long line of English intellectuals who had written extensively about the nature of government and human rights. English religious dissident John Lilburne (1615-1657) was one of the earliest thinkers to understand that basic human rights risked being violated by government unless they are established as the fundamental law of the land, a law that is above the very government itself. Lilburne understood "that an Agreement of the People begun and ended amongst the People can never come justly within the Parliament's cognizance to destroy." Enlightenment philosopher John Locke asserted in his Second Treatise on Government (1690) that these basic rights were natural rights that no government could violate. It was in the violation of their natural rights and the social contract that American colonialists justified the American Revolution.

Most Americans, indeed, many people around the world, know how Locke's concept of natural rights was rephrased by Thomas Jefferson in the Declaration of Independence (1776): "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,--That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government..." Whenever Americans think about rights, after a lifetime of parades, fireworks, and reading of The Declaration of Independence on the Fourth of July, these are the words that come to mind. Not unexpectedly, Jefferson's words are in opinions written by justices of the Supreme Court when looking for the "original intent" of the founders of the Republic. The Declaration of Independence is not, however, the supreme law of the land--the Constitution and its Amendments are.

Once the American Revolution had ended, the founders of the new nation struggled for nearly a decade with the question of state sovereignty and the meaning of a constitution. What eventually emerged was the notion that a constitution is a written framework of government in which basic principles and procedures are stated in no uncertain terms. It also is a document in which these principles and procedures are elevated above the power of government itself, especially the legislature and the executive. This idea that the legislature and the executive are subordinate to the Constitution was truly radical and represented a complete break with the English precedent. In this, the American Constitution was a revolutionary document. In fact, the very purpose of the Constitution for the founding leaders of the nation is in the limits it imposes on government. It presents what government is empowered to do and what it is forbidden from doing. Seen in this light, the Bill of Rights limits what government can do to the citizens of the nation: it prohibits government from infringing on individual liberties. The Preamble to the Constitution makes this crystal clear: "We, the People of the United States," are ordaining and establishing the Constitution in order to "secure the Blessings of Liberty to ourselves and our Posterity."

Although adopted by the Constitutional Convention without a bill of rights, a number of fundamental liberties are secured within the body of the Constitution in Articles III and VI. The Constitution guarantees the right to a writ of habeas corpus and trial by jury; prohibits bills of attainder, ex post facto laws, and religious tests; and narrowly defines treason and its punishment. It was this very lack of a bill of rights, however, that sent George Mason back to Virginia in September 1787 without signing the Constitution. He wrote: "there is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several states, the Declaration of Rights in the separate states are no security."

The anti-Federalists repeated this criticism throughout the adoption process with the result that James Madison submitted seventeen articles for consideration by the First Congress. Congress eliminated, combined, and reworded Madison's ideas into twelve articles, which were sent to the states for ratification. Of these twelve, ten amendments were ratified and are collectively known as the Bill of Rights. The current First Amendment was actually the third listed of the twelve proposed amendments, but because only ten were ratified in 1791, it moved to the head of the list to become first.

Seeing the relationship of the American Constitution to the protection of basic human rights, an obvious question arises: Is a written constitution essential for the protection of basic rights? Also, how does the American Constitution compare with the French Constitution regarding human rights, which was a product of similar historical circumstances? And what about the British? How are basic rights protected in England, which does not have a written constitution similar to the American Constitution?

Is the First Amendment absolute?

James Madison, during the debate of the First Amendment in the House of Representative is reported by the Annals of Congress to have said: "The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this Government...." He also later wrote, "there is not a shadow of right in the general government to intermeddle with religion." Madison's words seem to indicate that he considered these prohibitions on Congress to be absolute.

Justice Hugo L. Black also viewed the guarantees of the First Amendment to be absolute protections against government infringement. He explained his position in the obscenity case, Smith v. California (1959): "Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that 'Congress shall make no law ... abridging the freedom of speech, or of the press.' I read 'no law ... abridging' to mean no law abridging." Black is often described as an "originalist," a judge who gives great weight to the text of the Constitution, along with the intent of the framers as found in their writings.

More typically, the Supreme Court recognizes categories or circumstances to which the First Amendment guarantees do not apply absolutely. This viewpoint goes back to English common law which William Blackstone (1723-1780) explained in his Commentaries on the Laws of England, "Every freeman has an undoubted right to lay what sentiments he pleases before the public...but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity... Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects." From cases dealing with polygamy and peyote, flag-burning and internet pornography, seditious speech and the uttering of "fighting words," the Supreme Court has rejected the absolutist approach and set limits and tests: actual malice test, clear and present danger test, incitement test, intermediate scrutiny, Lemon test, Miller test, strict scrutiny test, and tests yet to be articulated.

On what grounds can the Supreme Court hold that speech, press, and religion are not absolute rights? What is the so-called "malice test?" The clear-and-present danger test?" The "incitement test?" Are these and the other "tests" mentioned above consistent with the intentions of the founders of the nation? On what grounds can basic human rights be abridged? Can these rights be abridged in times of war? Why or why not?

The Relationship of the Supreme Court to the First Amendment

Madison had originally rejected a written bill of rights because "parchment barriers against the encroaching spirit of power" were highly overrated, and he insisted that checks and balances, along with separation of powers, would achieve the same end. His theory was never put to the test because the Bill of Rights was added to the Constitution almost immediately. As the Supreme Court asserted its independence, wielding the power of judicial review, it could void legislative enactments and executive actions, which it deemed contrary to the Constitution and Bill of Rights.

The Supreme Court between 1791 and 1889 considered fewer than a dozen First Amendment cases. Initially, the Supreme Court concerned itself primarily with cases in which the federal government's power to tax, license, or censor free expression allegedly violated individual liberties. It did not hear many cases involving violations by the states because the founders of the nation looked to states as the principal protector of the rights of their citizens. The feared the unchecked authority of a strong central government. The Court eventually expanded its judicial review authority to state laws that allegedly violated the Bill of Rights. It did this by ruling that the most of the first eight amendments apply to the states because of the Due Process Clause of the Fourteenth Amendment (Gitlow v. New York, 1 925), holding that "fundamental rights and liberties are protected from impairment by the states." In the years since Gitlow, the Court has rocked back and forth between the absolute incorporation of the Bill of Rights within the Fourteenth Amendment (and thus binding on the states) and a position known as "selective incorporation."

By the mid-Twentieth century, the Court increasingly attempted to define which individual expressions are so destructive of society that the protection of the First Amendment could be lifted and punishment permitted. What are the rights of individuals when measured against the needs of government? Can a speaker be punished for the actions of a listener? For example, can an opponent of what is perceived by some to be an unjust war be punished for speaking out against it in ways that actually undermine the government's ability to conduct this war? Does a person have the First Amendment right to "falsely shout fire" in a crowded theater? And would it be better to leave human rights up to the states to protect by means of state supreme courts? Can you think of examples in history when the Supreme Court stepped in because state authority failed to protect human rights?

The Supreme Court thrives on history and respect for previous decisions and this has an impact on the First Amendment

In his opinion for Barron v. Baltimore (1833), Chief Justice John Marshall wrote: "In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government--not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them." Because of the principle of stare decis, that legal precedent is binding, the Supreme Court refused to apply the Bill of Rights to state and local governments, not only until the ratification of the Fourteenth Amendment (1868) but for nearly six decades after its ratification. Finally, in Gitlow v. New York (1925), the Supreme Court began to find its way around Barron v. Baltimore. Justice Edward Sanford wrote in his majority opinion: "For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." In the ensuing years most key segments of the Bill of Rights have been incorporated under the Fourteenth Amendment. Despite major progress, it is still not fully incorporated.

One of the longest-serving justices in the history of the Supreme Court was Associate Justice Oliver Wendell Holmes, Jr. His personal growth and change on the issue of the free speech clause of the First Amendment illustrates the transformation of the Supreme Court's views and role in protecting basic rights. In Patterson v. Colorado (1907), Justice Oliver Wendell Holmes, Jr. wrote the majority opinion stating: "In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practised by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." Neither did he incorporate the freedoms of speech and press, saying instead, "We leave undecided the question whether there is to be found in the 14th Amendment a prohibition similar to that in the 1st."

Justice Holmes later created the "clear and present danger test" for subversive speech a dozen years later in Schenck v. United States (1919), which arose directly from Schenck's conviction based on the Espionage Act passed by Congress in 1917. (Thus, this case did not raise the issue of Fourteenth Amendment incorporation of free speech.) He rejected the idea of absolute free speech saying: "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force."

Yet in his Abrams v. United States (1919) dissent, Holmes began to consider "subsequent punishment" issues arguing, "In this case sentences of twenty years imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them.... Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law ... abridging the freedom of speech." Of course I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States."

Finally, in Gitlow v. New York (1925), the case that extended the First Amendment's free speech clause to the states, Justice Oliver Wendell Holmes, Jr. condemned in his dissenting opinion most government actions against free speech. He argued that the First Amendment intended for the American people to accept or reject ideas, not the government. Justice Holmes explained, "Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth."

"The Great Dissenter," as Justice Oliver Wendell Holmes, Jr. came to be known, provided potent arguments along nearly the entire spectrum of views about basic rights. Strict and broad constructionist justices can invoke his words, both in times when the Court views basic rights more expansively, and in times when it is more sympathetic to compelling government interest. His words also touch Americans who, like Holmes, find their sentiments about the First Amendment to be deeply held, yet also subject to changes when different circumstances or conflicts arise.

The Supreme Court doesn't operate in a vacuum

It is hardly novel to observe that the Bill of Rights has been buffeted whenever the nation is in peril, from the undeclared war with France that led to the Alien and Sedition Acts to the terrorist attacks on September 11, 2001 that led to the Patriot Act. Many have questioned why the Supreme Court typically defers to the executive and legislative branches curtailment of civil liberties during national emergencies, and why it moderates the actions of the other two branches only after the threat has passed.

Quite simply, the Supreme Court may serve the Constitution, but it doesn't operate in a vacuum. Justices have lives before the Supreme Court; some even have lives after the Court. A quick examination of the statistics kept by the clerks of the House of Representatives and Senate reveals that close to 30 members of the legislative branch have served on the Supreme Court. Five former Congressmen served as Chief Justices: John Marshall (House), Oliver Ellsworth (Senate), Salmon P. Chase (Senate), Edward White (Senate) and Fred M. Vinson (House). They brought to the bench their experience and understanding of the problems inherent to the legislative branch of government; while not making them inherently more or less sympathetic to Congress, their experiences shaped their view of the law and the Constitution.

William Howard Taft was the only individual in United States history to lead both the executive and judicial branches of government. He was the 27th President of the United States (1909-1913) and the 10th Chief Justice of the Supreme Court of the United States (1921-1930). Taft served for three years on Ohio's Superior Court and eight years as an associate justice on the Sixth Circuit of Appeals before yielding to pressure to leave the bench. Although he would have preferred an appointment to the Supreme Court, he agreed to run as Republican candidate for president and was elected. Interestingly, as President, Taft made six appointments to the Supreme Court, five during the Court term 1910-1911. After leaving the presidency he was enormously gratified to be appointed by President Warren Harding to the Supreme Court. Having achieved his true ambition, Taft is reported to have said, "I don't remember that I was ever President." It can be assumed he was referring to the political turmoil he experienced, not his understanding of the special responsibilities of the office, and that Taft brought a truly unique perspective to the Supreme Court.

The justices of the Supreme Court have not merely lived through times of national peril; many have taken up arms during their lives in defense of the nation. That has shaped their view of basic rights, the importance of making sacrifices to defend those rights, but also the practical problems faced when attempting to preserve the Union. Chief Justice John Marshall served with Washington for five years in the American Revolution, rising to the rank of captain; was wounded at the battle of Germantown and endured Valley Forge. He later said: "I carried them with me into the army, where I found myself associated with brave men from different States, who were risking life and everything valuable in a common cause believed by all to be most precious, and where I was confirmed in the habit of considering America as my country and Congress as my government." Justice Oliver Wendell Holmes, Jr. was wounded three times during the Civil War. His Civil War diaries and letters have been published under the title, Touched with Fire; in a Memorial Day 1884 speech he describes his experience with what today would be called post-traumatic stress syndrome: "Accidents may call up the events of the war...You hear a few shots fired in the distance, and for an instant your heart stops as you say to yourself, The skirmishers are at it, and listen for the long roll of fire from the main line." There is one current member of the Supreme Court who is a veteran, Bronze Star recipient and Associate Justice John Paul Stevens, who served in the United States Navy during World War II, 1942-45

It is also important to remember that justices of the Supreme Court are nominated and confirmed in a partisan contest. Every justice steps to the bench as a person supported by political parties in the main. They are men and women who have indicated by their actions and by their words that they will uphold the partisan standards of the politicians and presidents who stand behind them. Granted that their lifetime tenure allows them a great deal of independence, they nevertheless take their seats as men and women who are part of a political and partisan process.

The Supreme Court is a battlefield whereon ordinary people struggle to protect their fundamental liberties

Most of the people whose cases have reached the Supreme Court are unknown people, seldom rich or famous. There have been some notable exceptions, such as the 5-time Socialist candidate for the presidency, Eugene Debs, and Clay v. United States (1971), which involved renowned boxer Muhammad Ali. In the cases highlighted in the essay The Supreme Court and Basic Rights these ordinary people include: Galen Black, Clarence Brandenburg, Newton Cantwell, James Dale, Elmer Gertz, Benjamin Gitlow, William Cruikshank, Ernst Mandel, Robert McDonald, Marvin Miller, Paul O'Brien, George Reynolds, Lew Rosen, Charles Schenck, Rosika Schwimmer, Alfred Smith, Byron Thornhill, and Gregory Wersal. The list also includes un-named members of the American Civil Liberties Union (ACLU), Boy Scouts of America, the Congress of Industrial Organizations (CIO), the Holy Cross Armenian Catholic Church, the National Association for the Advancement of Colored People (NAACP), the National Association of Radiation Survivors, and the National Socialist Party, and the United States Jaycees.

Even in their court cases, it is often difficult to find the names of these legal pioneers and rare to find any biographical information beyond the immediate incident which precipitated the lawsuit. Looking at the individual and reviewing what we know of them, we find them to be an assortment of Marxists, Klansmen, pacifists, peyote smokers, along with a judge, union activist, and defense attorney appearing occasionally for good measure. They seem utterly unrelated, and often from opposite ends of the political and philosophical spectrum. Yet, they all believed their basic rights were violated and they all fought for their rights. As Justice Harry Blackmun pointed out in Kleindienst v. Mandel (1972), "...the First Amendment does not protect only the articulate, the well known, and the popular."

Some of them won, others lost. Americans may not know much about these ordinary people, but we would profit from studying their cases. We would learn that these people, through the decisions of the Supreme Court, have shaped the rights of all Americans. We would also learn that these relatively unknown people did not stand for unknown ideas. Indeed, the ideas and issues embodied in their litigation represent, in new ways, to be sure, the fundamental values and meaning of the Bill of Rights as a living document. The meaning of the Bill of Rights may change over time depending on the moment in history, and depending on its readers, but the questions it poses about the extent and principle of human liberty are similar to those posed by Jefferson and Madison over two hundred years ago.

American's Relationship with the Bill of Rights

It is always a shock when surveys show that between a quarter and half of Americans agree with the statement: "The First Amendment goes too far in the rights it guarantees." Such results seem to suggest that Americans are not very attached to their basic rights. Wouldn't it be interesting if one word were added to the survey statement: The First Amendment goes too far in the rights it guarantees me. If that statement were to be put to Americans it would surely reveal that Americans are as passionate today about their rights as they were in 1791, when the First Amendment was ratified.

The Bill of Rights is not subject to polls, however, no more than the Constitution is based on popularity contests. In United States v. Schwimmer (1929), Justice Oliver Wendell Holmes challenged all Americans to understand that the First Amendment works only as well as it protects the most despised among us. He said: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate."

Pastor Martin Niemöller, a World War I U-boat captain turned minister of the Lutheran Confessional Church who was interned in a Nazi concentration camp from 1937 to 1945, gave a simple explanation of why protecting those we do not agree with matters a great deal:

First they came for the Jews
and I did not speak out--because I was not a Jew.
Then they came for the communists
and I did not speak out--because I was not a communist.
Then they came for the trade unionists
and I did not speak out--because I was not a trade unionist.
Then they came for me--
and there was no one left to speak out for me.

Unlike Pastor Niemöller, Americans have a Bill of Rights that is not merely a piece of parchment carefully enshrined in the National Archives building: it is a way of life. We blog and belly-ache, protest and celebrate about how we perceive our basic rights are being handled by the Supreme Court and society in this case or that. We may not be able to intelligibly explain why we are alarmed when we think our basic rights are being eroded, but we use volumes of paper and passionate words to make sure that these rights will not be led quietly into the darkness or left easily violated

Heirs of dissidents and revolutionaries, we live what Voltaire is attributed to have said: "I disapprove of what you say, but I will defend to the death your right to say it." We defend our rights, not only in the military sense, but by legally challenging those who violate our rights. Some of us, ordinary people, will fight for our rights all the way to the Supreme Court, appearing on the docket this very term. We probably will not agree with the reasons why some of those people have appealed to the Court much less agree with every decision rendered by the Supreme Court. Yet, we do agree that the Supreme Court plays a crucial role in protecting the rights of Americans, and if it were one of our own personal rights being violated, the Supreme Court is exactly where we would want our voices to be heard.