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TITULARII DREPTURILOR PREVAZUTE DE CARTA DREPTURILOR

“THE BILL OF RIGHTS IN MODERN AMERICA” 

THE MYTH AND REALITY OF RIGHTS

I. Rights Consciousness in American History

The Bill of Rights represents a document containing declaratory and restrictive clauses.

This document was created in order to prevent abuse of power. The articles are valid to all

intents and purposes and are a part of the Constitution of the United States of America (10

Amendments).

Historically, in the American civic culture, for over two centuries, rights left a mark on

 both social and political relations. The talk about rights has been one of the most important ways

for the Americans to have infused their politics with a dimension beyond mere law or simple

interests.

Human Rights are seen as a key way in which the American people have debated what a

good society might look like. The talk about rights has been one of the basic noises of American

history. This talk was found in courts and it was also a characteristic of popular politics (people

talked about rights at town meetings, political rallies, newspapers, voluntary associations,

religious assemblies and family gatherings).

Popular politics in America was the site of rights claims and of rights violation (in justice,

security, patriotism or racial purity). Rights were invented and repudiated, expanded and

violated, striven for and struggled over.

The democratic debate over rights led to the expansion of rights; debates were the source

of the development of rights. Regarding rights consciousness, there are 4 key phases in history:

1. From the beginning of the struggle over English colonial policy –  1791: period

characterized by an explosion of popular rights claims, the habit of thinking about rights with

“natural” as their key modifier and a passion for rights declarations; these led to the ratifying of

the Bill of Rights in 15 December 1791.

2. 1820s –  Civil War (1861-1865): 2nd

 eruption of rights claims; more radical on the

social rights of workers, women and slaves.

3. Mid 1870s –  mid 1930s: movement of the courts into the creation of rights through

new property and entrepreneurial rights; this resulted in a sharp reaction among many of those

who were the normal constituents of a right based politics.

4. 2nd

 World War and struggles for racial justice –  contemporary times in the U.S:

characterized by courts and outsiders joining in common cause.

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In the 1770s, people‟s rights were referred to as “ people’s general happiness”.

Thomas Jefferson stated in 1776 that there exist “Certain unalienable rights”. This has

drawn some interpretation over the view Thomas Jefferson had at that times on rights.

“Unalienable” is an abstract, indistinct and novel adjective for that period. 

The move to establish rights by imagining what the human condition must have been at

the moment of its birth or should have been if human history had not been harmed were quick to

gather force.

Alexander Hamilton said, in 1775, referring to rights, that they are “written in the volume

of human nature”. John Adams, a decade later, said that rights are to be found “in the

constitution of the intellectual and moral ”. 

Rights grounded in nature are constrained by every government. The American

Revolution suppressed many rights, such as: loyalists whose property was seized, whose

 buildings were burned or who were harried (hartuiti) out of their villages.

The first declaration of rights was the Virginia Declaration of Rights, from May-June

1776. This stipulated individual rights (such as freedom of press or “free exercise” of  religion),

legal and procedural rights (like trial by jury and protection from excessive bail and punishment),

collective rights (such as the right to a popular militia, the right to abolish any government

faithless to the “public well”) and general statements of political principles together with

statements of morality.

The importance of the Bill of Rights is also shown through a historical fact. In 1778, a

Massachusetts town meeting rejected a drafted Constitution without a bill of rights.

Anti-Federalists‟ objection to the Constitution only began with the omission of a bill of

rights. The sticking points were the power, the scope and the elasticity of the proposed national

government.

Thomas Jefferson declared “a bill of rights is what the people are entitled to against

every government on earth”, making clear the fact that people do have rights that must be

respected by the government.

James Madison said “highly politic for the tranquility of the public mind and the stability

of the Government ”, referring to the Bill of Right. He also stipulated that the 10 amendmentswouldn‟t have stood out as a separate bill of rights, but would have been through the

Constitution. Madison proposed 3 paragraphs elaborating the rights of free speech, assembly and

conscience.

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The Bill of Rights was born as a demand from below. It is a document born in debate and

compromise that basically stipulates no new rights, but rights invention that were filtered by the

British struggle.

 New uses of rights appeared in the artisans‟ and workingmen‟s associations of the 1820s

and 1830s. In the 19th

 century, the dynamic in rights talk lay in the utopian possibilities of theidea of the “natural ” rights. By the mid 19

th century, the domain of rights had been expanded.

1830s is the period of time when the anti-slavery movement takes place. This movement

invoked the natural right of “every man to his own body and to product of his own labor ”. 

The 1840s are marked by a new women‟s rights movement with utopian rights claims,

such as the separ ation from husband, the right to veto and to all rights “integral ” to her moral

 being.

Since the 1870s until the 1930s, courts began to invent rights on their own. For instance,

the “ sacred and imprescribable” right to choose one‟s occupation freely, in 1873.

The concept of “natural ” right was criticized by Woodrow Wilson who found the term

“ false”, “abstract ” and “unAmerican”. The term of “natural ” right was replaced with “will ” or

“common interest ”.

The State of Indiana declared in 1921 that “One of the many meanings of democracy is

that it is a form of government in which the right of revolution has been lost ”. 

The 2nd

 World War brought changes. In the late 1930s, the term that was more frequently

used in F.D. Roosevelt‟s speeches was “democracy”. The „40s were centered on the term

essential human freedoms. In 1944, Roosevelt asked for a promulgation of a 2nd

 Bill of Rights.

II. The Explosion and Erosion of Rights

The history of America is based on the idea of individual liberties and rights. As a people,

the Americans take their rights very seriously. Since World War II, there has been an increasing

 public consciousness about rights and liberties.

The book provides the example of the Griswold (v. Connecticut) case, in which the

Supreme Court of the United States ruled that the Constitution protected a right to privacy. The

case involved a Connecticut law that prohibited the use of  contraceptives. The Supreme Court

invalidated the law on the grounds that it violated the "right to marital privacy".

Although the Bill of Rights does not explicitly mention " privacy", Justice William O.

Douglas wrote for the majority that the right was to be found in the " penumbras" and

"emanations" of other constitutional protections.

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  By nature, all men are created equal. This being known, no one is obliged to submit to

another‟s opinion against his will. The only legitimate means of imposing order on the chaos of  

nature was the social contract, which is an agreement entered into freely by all.

In order to see human nature more clearly, mankind should be stripped down to its bare

essentials. In this hypothetical phase, all men would be, in the truest sense, equal. The most basic of rights is the right to life. Beyond that, there was the man‟s liberty to live free of

commands of another and to pursue his happiness whenever he wanted.

In this state of nature, each man‟s equality meant that each man had the power to enforce

his natural rights as he saw fit. However, not anyone could see the world the same way. Man‟s

free will led to conflicts and not to consensus, as it would be wanted. Self-interest was the most

that one could expect from men in such a state. Hobbes says that life in the state of nature was

“ solitary, poor, nasty, brutish and short ”. 

Man‟s ability to reason is a virtue to come to see that whatever the virtues of the state ofnature, its vices were overwhelming. By the social contract, men could join together to put an

end to “the warre (war) of all against all ”. Men would move to the higher climes of civil society.

In the process, natural rights would be transformed into civil rights that would come backed by

law.

Man‟s private conscience will come to the conclusion that what is right is to enter into the

social compact. Rights without sanctions to protect them are not rights. The essential right ceded

to government is the one to make and enforce laws in order to protect the safety and happiness of

each individual who has agreed to live under that sovereign authority.

The idea of a written constitution was America‟s “ peculiar security” (Thomas Jefferson).

Alexander Hamilton said that a written constitution would be seen by all, especially by judges, as

a “ fundamental law”. The Constitution was to be understood as an “intention of the people”. 

The Constitution was a reflection of what structure of the government the people

consented to. Also, it reflected the wishes of the people as to the limits of the powers granted to

the government. Hamilton stated that “the constitution is itself in every rational sense, and to

every useful purpose, a BILL OF RIGHTS ”. 

The Bill of Rights was added at the commandment of the Anti-Federalists who feared

that an over-reaching national government would in time “devour” the states.

The 14th

 Amendment was ratified in 1868 and it sought to guarantee all citizens that the

 privileges and immunities of their national citizenship would not be abridged by any state, that

they would not be deprived of “life, liberty, or property without due process of law” and that no

state would be able to “deny to any person within its jurisdiction the equal protection of the

laws”. 

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  For some, the Bill of Rights was not enough. In this view, there was a need to free judges

from the misconception that the only rights to be enforced by courts were to be found in the

Constitution and its subsequent amendments. There is a universe of rights waiting to be divined

 by courts. These rights are unwritten, “but still binding principles of higher law”. 

The Constitution was created in order to deal with the problem of majority tyranny and tosecure “the  security of private rights and the steady dispensation of justice”, as James Madison

 puts it.

The judicial power exercised by the Supreme Court is still governmental power and so it

cannot be trusted to create new rights.