The Rights of the People (3 page)

All people in this book are real. There are no composite characters, a device I deplore, and all who were willing are identified. Actual names are used except for those few clearly labeled as pseudonyms or nicknames, sometimes with quotation marks around them on first reference. Many of the notes at the end of the book explain the law or describe the case beyond simple sourcing, and those whose superscript numbers in the text are italicized contain significant elaboration.

My agent, Esther Newberg, and my longtime editor, Jonathan Segal, have been unfailingly supportive and helpful during this extended project. Jonathan’s criticisms and suggestions have improved the book. So have the comments and insights of my son Michael Shipler and my wife and toughest editor, Debby Shipler, both of whom read the entire manuscript and gave me sound advice, as always.

Finally, I owe thanks to my seminar students at Dartmouth, where I taught in 2003. Their research under the rubric “Civil Liberties in a Time of Terrorism” helped sharpen my thinking and illuminate the landscape I was beginning to travel. When I asked them on the last day of class to summarize their thoughts about Americans and their rights, Elliot Olshansky quoted Dylan Thomas: “Rage, rage against the dying of the light.”

T
HE GLASS THROUGH
which Americans could see their Constitution was gradually losing clarity. Small, superficial cracks and microscopic crystals, discovered by National Archives technicians in 1995, would eventually bring opaqueness, and the handwritten codes of freedom would disappear from view.

Behind the cloudiness, moreover, the huge pages were endangered by the slightest of threats: an incremental rise in humidity inside the massive cases, which had been constructed in 1952 to house the Declaration of Independence as well as the Constitution and its Bill of Rights.

So, with the most advanced technology applied to preserving the nation’s most venerable treasures, new encasements were designed and tested against extremes. Sealed with materials developed for space flight, prototypes were submerged in ice and subjected to heat. Bases were fabricated of aluminum, and frames of titanium were plated with nickel and gold. When the modern containers were ready, in 2003, the founding documents were carefully placed under thick, tempered glass. The cases were filled with the inert gas argon and fitted with ports and sensors for constant monitoring to keep the humidity at 40 percent, the temperature at 67 degrees Fahrenheit.

The seals, designed to last longer than a century, admit no outside air and no tiny insects that might gradually eat away at the precious sheets of parchment. If sheer science is sufficient, the Constitution will survive even the subtlest assault.

In the rotunda of the National Archives in Washington, D.C., hushed
and calmed in the dim glow of a dusky light, the sacred documents are laid out as if on an altar, with the Constitution’s four enormous pages in the center, flanked on the left by the Declaration of Independence and on the right by the Bill of Rights, its script now faint and barely legible.

That these faded marks on the parchment’s surface have reached so deeply into the human experience makes this a place of pilgrimage, inspiring a worshipful mood. If America has a state religion, as the historian Robert Kelley used to say, it is constitutional democracy. Among all the rancorous arguments in the American landscape, no call to abandon the Constitution can be heard. Across the entire sweep of the political and social spectrum, no rejection of the Constitution can be seen. No threat to the nation, no fear of insecurity has been enough to provoke such apostasy. Instead, every departure from constitutional principles has been excused, rationalized, or justified by assertions that the Constitution is actually being observed—that the document awards or withholds powers, that it permits or prohibits or requires, that its meanings derive literally from its authors’ original intent, or that its provisions transcend the bonds of history. The Constitution is reinterpreted and sometimes stretched grotesquely, but no political actor so far has had the brazen arrogance to discard it explicitly.

Indeed, the Constitution is still being discovered. Like any holy text, this one is what its followers need it to be. It is malleable but not equivocal, principled but not brittle: It can bend without breaking. The rights it enshrines are fundamental but not absolute, and they expand and contract as they are debated and rethought with time and circumstance. The Constitution’s pages may be embalmed in argon, but its ideas live and breathe the same air that we citizens do.

Those ideas have proven greater even than the men who put them on paper, men who could be small and parochial in their mutual suspicions and partisan bickering. The liberties they originally inscribed, in an era when women had no vote and blacks were enslaved, continue to awaken values and sensibilities that our national ancestors did not imagine.

The framers, state delegates to the Constitutional Convention in the sweltering Philadelphia summer of 1787, were fairly young men for the most part who championed rights mainly for themselves and their kind—for propertied males of their race. Yet the seed they planted could not be contained. It was too brilliantly conceived, and so it grew and spread beyond the confines they envisioned.

Jealously holding the powers of their respective states and suspicious of the central authority they were creating, the framers deftly divided
the government against itself, with each of three branches checking and balancing the others. This avoided placing liberty’s fate in the hands of individuals, for as James Madison observed at the Constitutional Convention, “All men having power ought to be distrusted to a certain degree.”
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The framers built the constitutional structure on a critical concept: the assumption that individual rights exist as a natural condition, that government cannot bestow rights on the people, for the people already possess them. They are the people’s to relinquish in careful measure as they choose. So basic was this conviction that the delegates saw no need to codify the people’s rights, and they adjourned the convention without doing so. It was considered sufficient to include the venerable principle of habeas corpus (literally, “you have the body”), by which a prisoner could petition a court for a writ to summon his jailer to defend and justify the incarceration.

This right, with roots in Anglo-Saxon common law predating the Magna Carta of 1215, was regarded by Madison and others as an impregnable shield of liberty. No other rights needed enumerating. If no jailer could keep a person without the oversight of an independent court, it was believed, autocracy was thwarted. So the framers made sure that access to the “Great Writ,” as it is known, could not be curtailed lightly. “The Privilege of the Writ of Habeas Corpus shall not be suspended,” they wrote in Article I of the Constitution, “unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Relying on habeas corpus was not enough for those in the political class who were apprehensive about governmental abuse of power. Evangelical Christian voters demanded from Madison, a candidate for Congress, support of an amendment protecting religious freedom by separating church from government.
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Only later, mainly as a price of ratification demanded by the states, did the Bill of Rights, the first ten amendments, strike the great chords of liberty that have reverberated for more than two centuries.

This was accomplished with a distinctive choice of words. In many other constitutions, governments give rights; in the United States Constitution, the people do the giving, by retaining their rights and granting government limited powers. In the First Amendment, Congress does not award the people freedoms of religion, speech, assembly, and the press. Rather, “Congress shall make no law … abridging” those existing rights. Government does not magnanimously donate the right to be secure against “unreasonable searches and seizures” in the Fourth Amendment. Instead, “The right … shall not be violated.” The most positive forces in the Constitution are the negatives.

Every constitutional right has been kindled by its violation. That men could torture other men to extract confessions led to the Fifth Amendment’s guarantee that no person “shall be compelled in any criminal case to be a witness against himself.” The writs of assistance issued by the British as blanket authorizations for unlimited searches led to the Fourth Amendment’s ringing declaration of “the right of the people to be secure in their persons, houses, papers, and effects.” Religious persecution, both in England and America, generated the First Amendment’s ban on any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” Our liberties are rooted in their opposites: the separation of powers in the autocracy of monarchs, freedom of speech and the press in censorship, the right to counsel and due process in the Star Chamber of the sixteenth and seventeenth centuries.
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The framers built a bold bulwark against ingenious methods of oppression, and were driven not only by the violations on American soil under British rule but also by long patterns of action and reaction in England itself. They tended to see the abuse of rights in America as a deviation from British principles, unfaithful to English tradition. They honored English common law—that largely unwritten body of rules and precepts that had taken on the weight of custom and consensus in the absence of a written constitution. As codified and explained by Sir William Blackstone, a British judge who published his
Commentaries on the Laws of England
the decade before the American Revolution, common law remains an underlying presence in the contemplations of American lawyers and judges today, a complement to constitutional provisions, statutes, regulations, and the detailed court opinions that make up judicial precedent. A statue of Blackstone stands in a square near the U.S. Supreme Court.

To a degree, then, the framers’ work on the Constitution represented an effort to revive the liberties embedded in the legal heritage of England, and much of that legacy came down intact into the founding documents. More than half a millennium before, in reaction to abuses by King John, the Magna Carta had outlawed forced and false confessions by providing that “in future no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it.” The same goal was adopted by the Fifth Amendment. The 1689 English Bill of Rights, which placed the monarchy under the rule of parliamentary law, contained a ban on “excessive bail,” “excessive fines,” and
“cruel and unusual punishments.” Those exact words were carried into the Eighth Amendment a century later.

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.”
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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.