Jurisprudential Diaries: The Bill of Rights
by Rachel A. Elovitz
“The Framers of the Bill of Rights did not purport to ‘create’ rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be preexisting.”
– William Joseph Brennan Jr.
Associate Justice, United States Supreme Court
Two centuries and 21 years ago, on Sept. 25, 1789, the first United States Congress proposed 12 amendments to the U.S. Constitution, amendments independently and cumulatively calculated to safeguard individual rights. More than two years later, on Dec. 15, 1791, 10 of the 12 amendments were ratified by the states and known in the aggregate as the Bill of Rights.
As Justice Brennan opined, the Bill of Rights was not a product of legislative invention. It is a declaration of divinely ordained liberties, an inextinguishable affirmation of a collective belief in immutable freedoms, among them the right to religious worship, to assemble peaceably, and to speak unreservedly.
Our Founding Fathers understood man’s intrinsic vulnerability, the necessity of an armed militia, and the natural instinct of self-preservation – hence the right to keep and bear arms. They believed that a person’s home should be a place of impregnable refuge, so that in times of peace, only the owner of such shelter should decide who quartered there.
For our Founding Fathers, autonomy was a birthright, a philosophy that permeated the Bill of Rights through language proscribing acts that would dispossess men of their individual freedoms, such as being forced to submit to unreasonable searches and seizures, being tried twice for the same offense, or being deprived of life, liberty, or property without due process of law.
That the Bill of Rights was designed to afford an accused the right to a speedy and public trial, and protection from cruel and unusual punishment was not a reflection of some political leaning or agenda, but of heavenly endowment. These were antecedent rights recognized by men who believed such rights existed absent their ratification in some social contract. But sagacity and foresight told them that in the absence of such delineation, the government would seek to violate their immutable rights.
So what, one might ask, propelled the Founding Fathers in their efforts? Was it some internal construct, some moral or theological imperative? For Hamilton, Madison, and Jefferson, it was social necessity. They drew posthumous inspiration from famed English philosopher and physician John Locke (1632-1704). Locke’s Letters Concerning Toleration elucidated the need for religious tolerance. He postured that men, by virtue of their humanity, are unreliable judges of the accuracy of competing religious tenets. He surmised that the government’s enforcement of a national religion would be in vain because faith cannot be coerced through violence. A person’s soul was not chattel – not something a magistrate could or should control. In any event, forcing spiritual homogeneity, Locke concluded, would beget bedlam.
Locke’s policy of tolerance had its limits. It did not extend to Atheists, Papists, or Jews. Atheists, Locke thought, lacked a moral code and were therefore incapable of complying with state law. Papists were excluded because of their “professed allegiance to a foreign prince.” And Jews . . . Locke believed that there was only one way to God, and it was a path the Jews had rejected. Hence, they too were intolerable. While these sentiments seemed wholly incongruous with Locke’s premise, it was the greater principle, not the exceptions, to which our Founding Fathers clung:
Man being born . . . with a title to perfect freedom, and an [uncontrolled] enjoyment of all the rights and privileges of the law of nature, equally with any other man . . . hath by nature a power, not only to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men; but to judge of, and punish the breaches of that law. . . .” Chapter VII of Locke’s The Second Treatise of Civil Government.
The Founding Fathers found such “truths” to be “self-evident.” They declared that “All men are created equal, endowed by their Creator with certain unalienable rights,” among which are “life, liberty and the pursuit of happiness.” Like the Declaration of Independence and the Constitution that preceded it, the Bill of Rights was an ongoing effort in the formation of a “more perfect Union,” one that our Founding Fathers hoped would “secure the Blessings of Liberty” for generations to come.
Our Nation has at times struggled with the scope and application of those liberties. Like Locke, we’ve been proponents of lofty aspirations, but those objectives have met the challenges of our nature. As human beings, we are too readily swayed by predilection and preconception, color and creed, xenophobia and chauvinism. Our journey is admittedly not complete, but we are a Nation of introspection and growth, and with each generation, we edge toward enlightenment.
The Bill of Rights is our social compass. It reminds us of who we are and whom we want and strive to be. It is our legacy and we, its beneficiaries.
Sources:
John Locke, The Second Treatise of Civil Government 1690:
constitution.org/jl/2ndtreat.htm
John Locke, Essay Concerning Human Understanding, Book 2, Chapter 21, Section 51
en.wikipedia.org/wiki/John_Locke#Influence
Text of Declaration of Independence:
earlyamerica.com/earlyamerica/freedom/doi/text.html
freeonlineresearchpapers.com/philosophical-john-locke-view-religious-tolerance
accessmylibrary.com/coms2/summary_0286-143832_ITM
accessmylibrary.com/article-1G1-146481006/some-jewish-reflections-locke.html
Rachel A. Elovitz is a domestic litigator who regularly serves as a guardian ad litem, representing the interests of children in custody, abuse, and neglect cases in Georgia’s Superior and Juvenile Courts. She is a regular contributor to the DeKalb Bar News.