Why have a Bill of Rights?

Abstract

It is a joy as well as an honour to speak to you today about a subject that has been at the heart of my service on the Supreme Court. The American Bill of Rights, guaranteeing freedom of speech, religion, assembly, and the press, along with other important protections against arbitrary or oppressive government action, provides a noble expression and shield of human dignity. Together with the Civil War Amendments, outlawing slavery and involuntary servitude and ensuring all citizens equal protection of the laws and due process of law, the Bill of Rights stands as a constant guardian of individual liberty. My object this afternoon is not to argue that one or another right should be included in a catalogue of legal entitlements-that the American Bill of Rights is superior, for example, to the European Convention on Human Rights. Nor do I wish to join issue with Professor Hart, whose work has so enlightened us all, on the relation between law and morality or the extent to which legal rights, such as those enshrined in the American Constitution, have a conventional or naturalistic ground. My question is rather: why have a bill of rights, that is, some fairly general codification of civil liberties, at all? This is a large and difficult question. Part of the problem is its woolliness. The utility of a bill of rights cannot easily be gauged before its contents are specified. And even once the rights it protects have been defined, its efficacy depends upon whether those rights are subject to elimination or amendment or suspension by the executive or the legislature; it depends upon who is charged with enforcing them; and it depends upon the speed and nature of the mechanism through which they may be vindicated. Another part of the problem is that the need for a bill of rights varies with a community's culture, history, and political structure, as well as with the problems confronting it at any given time. Needless to say, I cannot consider all the permutations to which these considerations give rise. To make some headway, I shall therefore resort to some simplifying assumptions. First, I take as paradigmatic of a bill of rights the European Convention and the American Bill of Rights as supplemented by the Civil War Amendments. Among the liberties protected are freedom of speech, religion, publication, and association; freedom from compulsory self-incrimination, from arbitrary searches, arrest or detention, and from cruel or unusual