timesIn 1838, a young man spoke before the Lyceum Club of Springfield, Illinois, and had this to say about the Framers of the United States Constitution: "Their ambition aspired to display before an admiring world a practical demonstration of the truth of a proposition, which had hitherto been considered, at best, no better than problematical; namely, the capability of a people to govern themselves."
Precisely a quarter-century later, the same man, grown older than his years, spoke at the dedication of a military cemetery on the outskirts of a small college town in Pennsylvania, and expressed the same thought in words refined by the passage of time and events: "[W]e here highly resolve . . . that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, and for the people, shall not perish from the earth."
Nearly a century and a quarter on, Lincoln's proposition "the capability of a people to govern themselves" seems a foregone conclusion. As Americans, we take it as proven that we can govern ourselves; and that we can govern ourselves according to, and by virtue of, our Constitution. Since it was described by the British statesman Gladstone as the most wonderful document ever struck off at a given time by the brain and purpose of man, the Constitution has been the object of unceasing veneration. It is the icon of our political religion. It is praised by those who have read it, and by those who have never read it, and by those who, having read it, have never taken the trouble to understand it. It is exalted in general and ignored in particular. It is cited as permitting the policy of today, and as prohibiting the policy of yesterday, or of tomorrow. It supports our side, whoever we are; but not their side, whoever they are. Where the Constitution is concerned, we like to talk the talk, but we don't like to walk the walk.
Item: During the first 100 days of the Gingrich Congress, a bill appropriately numbered H.R. 666 was moving diabolically toward passage. It would have dismasted almost entirely our historic freedoms from arbitrary search of our homes and seizure of our persons, papers, and effects. During the floor debate, Congressman Melvin Luther Watt of North Carolina rose to propose certain language for inclusion in the bill. He then read verbatim from the Fourth Amendment to the Constitution. His measure was defeated by the overwhelming vote of 303 - 121. Did our congressmen fail to recognize the language of the Constitution when it was read to them? Or, recognizing it, did they choose to vote against it? And which of those alternatives should frighten us more?
Item: In his professional autobiography One Man's Freedom, the late Edward Bennett Williams recalls the following anecdote: One of the great universities in the midwest conducted a poll among its students majoring in political science. The cardinal principles of the Bill of Rights were listed seriatim and the students were asked to indicate on the page whether or not they believed in each individual principle. To the amazement and the chagrin of the professors, about half of the students indicated they did not believe in the right of all Americans to peaceable assembly. They did not believe in the right of every accused to meet his accuser face to face and subject him to cross-examination, and they did not believe in the privilege against self-incrimination. But all of them, 100 percent strong, said they believed in the Bill of Rights, though their answers demonstrated that they did not know what the Bill of Rights is.
Item: The doctrine of separation of powers has been held to be implied by the structure of the Constitution itself. In February 1996, federal Judge Harold Baer of New York granted a motion to suppress evidence of drug crime because the police had obtained that evidence in violation of the Fourth Amendment. President Clinton, head of the executive branch of government, and Robert Dole, then-leader of the upper house of the legislative branch of government, took turns pummeling Judge Baer into line. A much chastened and cowed Judge Baer got the message, and reversed his earlier ruling. No doubt Clinton and Dole are equally committed to the constitutional guarantee of a federal judiciary independent of political influence.
Item: Article III, section 2 of the Constitution, and the Fifth, Sixth, and Seventh Amendments all uphold the right to trial by jury. Suppose, then, that you are tried in federal court on an indictment charging one count of littering in a national park and nine counts of murder. Suppose further that you are acquitted of all the murders and convicted of the littering. At sentencing, the judge will likely tell you that based on all the evidence he heard at trial, he thinks you are guilty of the murders and will punish you by giving you the maximum possible sentence for littering. "But Judge," you protest, "it isn't fair to punish me for the murders. The jury found me not guilty." "Right you are," replies the judge. "The Constitution says you're entitled to a trial by jury and you got one. The Constitution doesn't say I can't ignore the jury verdict when I sentence you. Next case."
Item: The Eighth Amendment guarantees the right to reasonable bail. But thousands of federal defendants today are never admitted to bail at all. Instead they are held in a netherworld called "pretrial detention." Presumed innocent and awaiting trials at which they may well be acquitted, these accused citizens are thrown into prisons and treated like criminals. This squares with the Constitution, say the federal courts, because the incarceration is "administrative," not "punitive." To a man who can read the Constitution, there is bitter comfort in knowing that the stone walls and iron bars that separate him from his family are administrative walls and bars, not punitive ones.
Item: The Fourteenth Amendment guarantees each and all of us the equal protection of the law, without regard to race, creed, or national origin. Yet, the United States Circuit Court of Appeals in Florida approved the conduct of federal agents who stopped a van being driven through Fort Pierce. The driver of the van had committed no crime or traffic infraction. Among the reasons the court found to justify the stop was that the van's passengers "appeared to be Hispanic."
Item: By operation of the Fourth Amendment, Big Brother is not to come peeping and snooping into our homes and private lives without the signed judicial authorization known as a warrant. But the courts have held that the use by law enforcement officers of a "thermal imager" a hightech camera that "sees" the heat given off by our bodies, our cigarettes, and just about anything else requires no before-the-fact judicial approval of any kind. Several years ago, the Supreme Court approved the conduct of police officers who hovered in a helicopter over a private home in order to observe the conduct of the householders -- all without a warrant.
Item: The First Amendment purports to guarantee freedom of peaceable expression. Just last summer, a Miami nightclub was firebombed to prevent the proprietors from featuring the entertainment of performers from Castro's Cuba. Apparently the bombers were themselves Cuban refugees. Having fled tyranny to find freedom, these arsonists used tyranny to prevent others from exercising their freedom.
Writing of the political abuses that brought about the demise of the Roman Empire, Tacitus commented, "The worst [political] crimes were dared by a few, willed by more, and tolerated by all." But then the Romans did not claim to live under our Constitution.
Individual freedom on the one hand, and societal order on the other, are dialectical partners. Human nature being what it is, the pendulum is perpetually swinging toward one and away from the other. The role of a written constitution is to exert centripetal force; to prevent the pendulum from swinging too far to either side. Without order, society ceases to exist, and freedom cannot be protected. Without freedom, civil society ceases to have value, and is not worth preserving.
Those of us who came of age during the 1960s remember that decade as one of great disorder, as one in which American society seemed fissiparous, as one in which liberty was greatly exalted. Since that time the pendulum has swung far. The present age exalts law and order, and those provisions of the Constitution that protect our individual rights seem to be selling at a deep discount.
Part of this change is, as I have said, attributable to the nature of human society itself. Striking a perfect and permanent equilibrium between order and liberty will never be possible until human beings become perfect. Part of this change is attributable to our living in a material world, and being material girls and boys. We own things -- from cellular phones to VCRs to computers -- the existence of which our grandparents could never have imagined. We reflect constantly on the tangible value of our tangible possessions. Our grandparents reflected on the intangible price they had paid for their intangible rights. We identify with the victims of crime. Our grandparents identified with the victims of governmental over-reaching.
This is not mere nostalgia. America today imprisons seven times as many people, proportionately, as does the average European country. We imprison half again as many people, proportionately, as did the historically repressive South African regime. According to the Sentencing Project, a Washington-based penal reform group, one-third of American black men in the 20 to 29 age group are on probation, on parole, or in prison. Laments democratic Congressman Bobby Scott, "When you call for more incarceration, you do not have to explain yourself; when you argue for effective alternatives, you do. And in politics, when you start explaining, you've lost."
Of course our societal pendulum continues its ineluctable swing, and I admit the theoretical possibility that 10 or 20 years from now I will be complaining of the sacrifice of law and order on the alter of personal freedom. But I am particularly concerned about the demise of liberty in our time, and about the demise of the Constitution as the shield and buckler of liberty in our time. Some very well-intentioned people seem to believe that the role of the Constitution is not to act as a brake on the excesses of government and governmental power, but as a repository of ideas that strike us, at the moment, as good ideas.
One of the wrong-headed but well-meant amendments currently on offer, sponsored by no less influential figures than House Judiciary Committee Chairman Henry Hyde and Senator Dianne Feinstein, is the so-called "victims' rights" amendment. Of course everyone feels sorry for crime victims. Of course everyone wants to see something done to aid crime victims. But the notion that the Constitution is the weapon with which to aid crime victims -- or the weapon with which to fend off bad weather, or the weapon with which to assist the Chicago Cubs in their ever-fruitless pursuit of the pennant -- is a notion at odds with the idea of a constitution. A constitution serves to protect each of us from all of us, not each of us from everything. If a constitution causes government to confine its behavior to fixed, historically approved norms, that constitution has done its job. A constitution that purports to oblige all of human conduct, the physical universe, and the National League, to conform to fixed, popularly approved norms is a silly document doomed to failure.
It has been said that America's principal exports nowadays are blue jeans, rock and roll, and law. Our Constitution and its principles have influenced the ideas of jurisprudence and human rights around the world. In February 1946, a team of American lawyers headed by the late Charles Louis Kades drafted a constitution for the nation of Japan, supplanting the imperial constitution in force since 1889. Its provisions, among them a bill of rights recognizing the right of workers to engage in collective bargaining, the right of women to equal political status, and the obligation of the state to provide general public education shocked Japan's old guard. Shigeru Yoshida, a conservative politician who would lead four Japanese governments in the post-war years, withdrew his opposition to the new constitution only on the direct order of Emperor Hirohito. Yet the 1946 constitution is still in place today, and is viewed by many Japanese as one of Japan's public treasures. At present, there is support for amendments to embrace such concepts as the right to privacy, the right to human dignity, and the right to a safe and healthy environment.
Today is judgment day for the United States Constitution. Tomorrow will be judgment day for the United States Constitution. Every day in which an American stands trial for his liberty before a jury; every day in which an American is arrested, or his home or property searched; every day in which a voice is raised in speech or song; every day in which a vote is cast or counted; every day in which a newspaper is printed or read; every day in which a lawyer is asked to defend an unpopular person, or an unpopular cause; is judgment day for the United States Constitution. We can cower before the storm, or we can light candles.
Let us light candles.
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