Review, Ira Glasser, photographs by Bob Adelman, Visions of Liberty: The Bill of Rights for All Americans (Arcade, 1991)

Columbia Missourian, March 29, 1992

“All we say to America is, ‘Be true to what you said on paper!’” Thus spoke Martin Luther King Jr. on the eve of his assassination. As Ira Glasser says, these words capture a major tension in American legal history. In its Bill of Rights, the U.S. Constitution embodies the highest expression of individual liberty any government has ever made. Yet in its performance, the U.S. government usually has lagged far behind its stated ideals in respecting the rights of large numbers of Americans.

The history of the Bill of Rights, then, is largely one of a dream deferred. But the existence of the dream of equal rights has often been a major source of inspiration to minorities excluded from the provisions of the Constitution. Glasser, the executive director of the American Civil Liberties Union, argues that the Bill of Rights has always been “more than a set of laws: it was also a beacon of hope to people who had little reason to hope; it was a set of ideals to which the vulnerable might aspire, something to strive for, even when the horizon seemed distant.”

In the past several years, Americans have engaged in a variety of debates over the meaning of the Bill of Rights. During the Supreme Court nomination hearings of Robert Bork and Clarence Thomas, such constitutional theories as “original intent” and “natural law” entered public discussion. The ongoing debates about such issues as abortion, affirmative action, and gay rights similarly demonstrate that, at age 200, the Bill of Rights has lost none of its ability to provoke controversy.

Glasser effectively demolishes Bork’s theory of original intent. Bork argued that the Constitution must be understood according to its precise wording, and that there was no room for interpretation. He said, for instance, that there was no such thing as a constitutional right to privacy, because that right was never explicitly stated. But Glasser places the creation of the Bill of Rights in context of the centuries-long development of English and American jurisprudence. He begins with the Magna Carta of 1215 which, for the first time, placed written legal limits on the power of the king. He traces the idea of placing restraints on the power of government through the American Revolution, when the colonists realized that not only the king, but parliament also, could abuse its power. The Founding Fathers drew on this history in drafting the Constitution, but as Glasser shows, the debate about its meaning has continued to the present. The Constitution then was part of a dynamic process of legal evolution. By trying to freeze it in time and extract a single original intent, Bork ignored this process.

The Constitution and Bill of Rights derived from the political ideology of republicanism, which had guided the Americans through the Revolution. One of the basic tenets of republicanism was that politics is a continuous struggle between power and liberty. Both needed to exist in proper balance, but this balance was constantly threatened by the fact that power was naturally avaricious and sought to expand at liberty’s expense. It was through this ideological lens that Americans viewed such British actions s the Stamp Act and other taxes, the arbitrary searches of colonists’ homes by royal agents, and the denial of the right to trial by jury. Such depredations of Americans’ rights, the colonists believed, indicated that British power threatened American liberty and this threat justified the Revolution. The lessons of the dangers of excessive government power informed the drafting of the Constitution and Bill of Rights a decade later.

In stressing the importance of the concept of the struggle between power and liberty in republican thinking, Glasser is correct, but he overstates the emphasis the revolutionary generation placed on individual liberty. Another basic principle of republican theory was “virtue,” by which the Founding Fathers meant that the individual subordinated his own rights to the interests of the community. Such activities as the patriotic group the Sons of Liberty’s smashing of Tory presses during the Revolution indicate that freedom of expression was not the highest value in republican theory. Republicans saw individual liberty in delicate balance with social order and community good. Too great an emphasis on liberty would result in anarchy. Under the United States’s first national government, the Articles of Confederation, adopted in 1781, many Americans believed this balance had fallen too much toward social chaos. The Constitution was seen as an attempt to restore virtue. By ignoring this perceived balance between individual rights and social order, Glasser oversimplifies the nature of the Constitution.

The Bill of Rights itself was added to the Constitution as a political compromise. As originally written, the Constitution said virtually nothing about individual rights. But in the process of ratification, the new government met with staunch resistance. One of the major criticisms of the Constitution was that it granted too much power to the national government. To allay these fears and gain ratification, the Constitution’s supporters agreed to include a Bill of Rights.

As drafted by James Madison, the Bill of Rights listed several specific individual rights that would be protected by the Constitution. In order to make clear that this was not an exhaustive list of protected rights, Madison also included what became the Ninth Amendment, stating that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In September 1789, the first ten amendments were submitted to the states; in December 1791, Virginia became the eleventh state to ratify them, making the Bill of Rights part of the Constitution.

But significantly, as Glasser points out, the Bill of Rights did not include all of Madison’s proposed amendments. Realizing that individual rights could be threatened not only by the federal government, but also by the state governments, Madison proposed an amendment stating that, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Madison called this “the most valuable amendment on the list,” but it was rejected by the Senate, with severe long-term consequences.

Without this “most valuable” amendment, the Bill of Rights did not apply to state and local governments, which, for most of the past two centuries, have been allowed to restrict individual liberties with impunity. After the Civil War, Congress sought to remedy this situation with passage of the Fourteenth Amendment in 1868, which prohibited the states from violating any of the privileges and immunities of American citizens, or denying them “life, liberty or property without due process of law,” or excluding anyone from the “equal protection of the laws.” But this guarantee of federal protection of individual rights against state governments was short-lived. In 1873, the Supreme Court ruled that the Fourteenth Amendment forbade state governments from violating only national rights, such as the right to interstate travel, but it otherwise did not restrict the power of the states.

By this decision, the court withdrew constitutional protection from black Americans and allowed Southern states to begin instituting a policy of legal racial segregation. Official sanction of this policy of apartheid came in the 1896 case Plessy v. Ferguson. In the twentieth century, the court gradually backed away from this decision but only because of a concerted and long-term legal attack by the National Association for the Advancement of Colored People. Not until the 1950s and 1960s did the court rule that the Fourteenth Amendment applied to the states and thus extended protection of the Bill of Rights to black Americans.

Glasser discusses the gap between the Bill of Rights’ stated protections and the treatment of other minority groups, including various religious minorities, women, and Japanese-Americans interned in concentration camps during World War II. The result is a generally useful popular survey of the modern concept of individual liberty.

Bob Adelman’s photographs are included to make this a coffee-table book, but serve little other purpose. A few of the pictures are effective, but most are either banal or irrelevant. For instance, in the section on freedom of expression, there is a photograph of Sylvester Stallone’s hand and footprints in the sidewalk at Mann’s Chinese Theater in Hollywood. There is also a photographic self-portrait of artist Robert Mapplethorpe; admittedly, Mapplethorpe’s art has raised serious First Amendment issues, but this photograph is decidedly uncontroversial.