The Bill of Rights and the Emerging Democracies

Abstract

I INTRODUCTION The modern bill of rights bears little resemblance to the original American renditions, either in their genesis in the Virginia Constitution of 1776 or their promulgation in the first Ten Amendments to the United States Constitution in 1791. There is universal concurrence that the concept of human rights evolved during the subsequent two centuries. There is also universal agreement that America's Founding Fathers erred in omitting the guarantee of such rights from the 1787 Philadelphia Constitution. (1) This statement directs our attention to the longstanding phenomenon of the globalization of rights. Albert Blaustein observes that, of the two constitutions that soon followed the adoption of the United States Constitution of 1787, one--the Polish Constitution of May 3, 1791--followed the American model and contained no bill of rights, (2) while the other--the French Constitution of September 3, 1791--contained a bill of rights, incorporating the Declaration of the Rights of Man and Citizen of August 26, 1789. (3) By adopting the Declaration of Rights as part of their constitution, the French followed in the footsteps of Virginia (which had adopted the Virginia Declaration of Rights of July 12, 1776, more than a fortnight before the Virginia Constitution of 1776 was adopted), while the Bill of Rights was added to the United States Constitution as its first ten amendments on December 15, 1791, after the French had incorporated the Declaration of Rights into their constitution. Although the delegates to the federal convention did not think that the creation of a bill of rights was a necessary part of their work, several of the thirteen original American states already had formulated declarations of rights, and James Madison was able to prepare a draft bill of rights in short order during the First Congress. (4) Significantly, Madison understood the need for individuals to be protected against the excesses of a local majority, and unsuccessfully sought to include the following provision in the bill of rights: No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. (5) Many years would pass before the substance of this provision would become part of American jurisprudence as a result of the adoption of the Civil War Amendments and twentieth century judicial decisions. (6) However, many other aspects of the federal constitution, as initially adopted, reflect both the framers' distrust of unfettered democracy and thei r preference for constitutionalism. Walter Murphy, in an important essay on the relationship of constitutionalism and democracy, has noted that [c]onstitutionalists tend to be more pessimistic about human nature, fearing that people are sufficiently clever to oppress without hurting themselves. (7) By the end of the eighteenth century, model bills of rights were being circulated throughout the globe; that phenomenon continues today, when the rights contained in these eighteenth century statements of rights have been codified, amplified, and multiplied, both in domestic constitutions and in regional and international declarations and covenants. Today, the influence of the American Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, (8) the German Basic Law, (9) the post-war French constitutions, (10) and the European Convention on Human Rights. (11) These documents, perhaps even more than the American Bill of Rights itself, have influenced recent developments in the emerging democracies of eastern and central Europe, which were under the communist regime from 1918, in the case of eastern Europe, or 1945, in the case of central Europe, until the regime began to break down in 1989. (12) In the twentieth century, the idea of basic fights became so widely accepted, at least in theory or rhetoric, and was subject to so many different usages, that it is difficult to locate a clear and consistent understanding of the concept. …