The Judicial Bookshelf

Abstract

The Judicial Bookshelf D. Grier Stephenson, Jr. Observances in 1991 commemorating theBill ofRights are a reminder that protection ofindividual rights in the UnitedStates haslong been judicially based. This relationship be­ tween courts and rights even predates ratifica­ tion of the Constitution. For America’s first experiment with a national bill of rights, one must look to the meeting of the Continental Congress in Phila­ delphia on October 14,1774. Some 21 months before the signing of the Declaration of Inde­ pendence, delegates adopted a Declaration of Rights which they pronounced valid on the authority of “the immutable laws of nature, the principles of the English constitution, and the several charters or compacts,” ofthe American colonies. Worthy of protection, they said, were rights of property, assembly, petition, and trial by jury, the English common law, as well as restrictions on standing armies in peacetime.1 Soon, independence meant thatAmericans had to assume a new responsibility: alone they now shouldered the twin burdens of defining and defending the rights they would enjoy. Yet this pre-revolutionarypreviewofa national bill of rights had to wait seventeen years for the real thing. Unlike state constitu­ tions drafted in 1776 and after, the proposed federal Constitution did not contain a detailed charter of liberties when it left the hands of the Framers in 1787. Among other critics, Thomas Jefferson wanted curbs over and beyond the structural checks stressed by convention dele­ gates James Wilson and Alexander Hamilton. Wilson doubted the wisdom of making excep­ tionsto powernot granted. “In a government of enumerated powers,” he declared, “such a measure would not only be unnecessary but preposterous and dangerous.” For Hamilton, bills of rights “would sound much better in a treatise on ethics than in a constitution of gov­ ernment.” Jefferson persisted. A bill of rights would “render unnecessary an appeal to the people, or in other words a rebellion on every infraction of their rights.” When a reluctant James Madisonyielded toJefferson’s plea for a bill of rights and strained to find supporting reasons, Jefferson singled out an argument of “great weight”-the legal check it would place in the hands of the judiciary. In presenting a series ofamendments to the First Congress for the Bill of Rights, Madison made Jefferson’s argument his own. Thanks to the Bill ofRights, “independent tribunals ofjustice” wouldbe “an impenetrable bulwark against every assump­ tion of power in the legislative or executive.”2 After two centuries, the Bill of Rights is a document of the present as well as of the past. Its place in the life of the nation is more than merely symbolic or hortatory largely be­ cause of decisions by the United States Su­ preme Court giving it vitality and meaning. Three developments have now made it virtually impossible to speak or write about the Bill of Rightswithoutreferenceto theSupremeCourt. First, the Court assumed a guardianship of the Constitution during the formative years of the nation. Formally this happened through judi­ cial review. Explained, defended, and applied in 1803,3 judicial review had already been im­ plicit at least as early as the Court’s decision in Chisholm v. Georgia in 1793.4 In deciding that the State of Georgia was suable in federal courts by a citizen of another state, the Court JUDICIAL BOOKSHELF 153 rendered an interpretation ofArticle III. More important, Congress’s prompt resort to the formal amending process as a corrective was a testimonial to the stature of the judiciary. Congress, in proposing the Eleventh Amend­ ment, and the states, in ratifying it, had within a short time equated the Court’s interpretation of the Constitution with the document itself. So, judicial review has provided a means for enforcement ofguaranteesofindividualliberty, just as Jefferson anticipated. It has also pro­ vided the missing piece in the puzzle, dating at least from Magna Carta, of how a government could be made to control itself. Second, in construing the Bill of Rights, the Court has usually not considered its provi­ sions time-bound. Instead, during the twenti­ eth century and part of the nineteenth, the Justices have frequently agreed with Justice Brandeis’s position that “[cjlauses guarantee­ ing to the individual protection against specific abuses ofpower, must have a...