The rights that the Constitution's framers wanted to protect from government abuse were referred to in the Declaration of Independence as "unalienable rights." They were also called "natural" rights, and to James Madison, they were "the great rights of mankind." Although it is commonly thought that we are entitled to free speech because the First Amendment gives it to us, this country's original citizens believed that as human beings, they were entitled to free speech, and they invented the First Amendment in order to protect it. The entire Bill of Rights was created to protect rights the original citizens believed were naturally theirs, including:
Freedom of Religion
The right to exercise one's own religion, or no religion, free from any government influence or compulsion.
Freedom of Speech, Press, Petition, and Assembly
Even unpopular expression is protected from government suppression or censorship.
Privacy
The right to be free of unwarranted and unwanted government intrusion into one's personal and private affairs, papers, and possessions.
Due Process of Law
The right to be treated fairly by the government whenever the loss of liberty or property is at stake.
Equality Before the Law
The right to be treated equally before the law, regardless of social status.
"An Impenetrable Bulwark" of Liberty
The Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms. But from the beginning, real live cases arose that raised difficult questions about how, and even if, the Bill of Rights would be applied. Before the paper rights could become actual rights, someone had to interpret what the language of the Bill of Rights meant in specific situations. Who would be the final arbiter of how the Constitution should be applied?
At first, the answer was unclear. Thomas Jefferson thought that the federal judiciary should have that power; James Madison agreed that a system of independent courts would be “an impenetrable bulwark” of liberty. But the Constitution did not make this explicit, and the issue would not be resolved until 1803. That year, for the first time, the U.S. Supreme Court struck down an act of Congress as unconstitutional in a case called Marbury v. Madison. Although the facts of this case were fairly mundane (a dispute over the Secretary of State's refusal to commission four judges appointed by the Senate), the principle it established — that the Supreme Court had the power to nullify acts of Congress that violated the Constitution — turned out to be the key to the development and protection of most of the rights Americans enjoy today. According to one eminent legal scholar, the independent judiciary was “America's most distinctive contribution to constitutionalism.”
Cases or Controversies
The judicial branch of the new government was different from the legislative and executive branches in one very important respect: the courts did not have the power to initiate action by themselves. Congress could pass laws and the President could issue executive orders, but courts could not review these actions on their own initiative. Courts had to wait until a dispute — a “case or controversy” — broke out between real people who had something to gain or lose by the outcome. And as it turned out, the people whose rights were most vulnerable to governmental abuse had least capacity to sue.
Thus, although the power of judicial review was established in 1803, more than a century would pass before the Supreme Court even had many opportunities to protect individual rights. For 130 years after ratification, the most notable thing about the Bill of Rights was its almost total lack of implementation by the courts. By the beginning of the 20th century, racial segregation was legal and pervaded all aspects of American society. Sex discrimination was firmly institutionalized and workers were arrested for labor union activities. Legal immigrants were deported for their political views, the police used physical coercion to extract confessions from criminal suspects, and members of minority religions were victims of persecution. As late as 1920, the U.S. Supreme Court had never once struck down any law or governmental action on First Amendment grounds.
The most common constitutional violations went unchallenged because the people whose rights were most often denied were precisely those members of society who were least aware of their rights and least able to afford a lawyer. They had no access to those impenetrable bulwarks of liberty — the courts. The Bill of Rights was like an engine no one knew how to start.
In the Public Interest
In 1920, a small group of visionaries came together to discuss how to start the engine. Led by Roger Baldwin, a social worker and labor activist, the group included Crystal Eastman, Albert DeSilver, Jane Addams, Felix Frankfurter, Helen Keller and Arthur Garfield Hayes. They formed the American Civil Liberties Union (ACLU) and dedicated themselves to holding the government to the Bill of Rights' promises.
The ACLU, the NAACP, founded in 1909, and labor unions, whose very right to exist had not yet been recognized by the courts, began to challenge constitutional violations in court on behalf of those who had been previously shut out. This was the beginning of what has come to be known as public interest law. They provided the missing ingredient that made our constitutional system and Bill of Rights finally work.
Although they had few early victories, these organizations began to create a body of law that made First Amendment freedoms, privacy rights, and the principles of equality and fundamental fairness come alive. Gradually, the Bill of Rights was transformed from a “parchment barrier” to a protective wall that increasingly shielded each individual's unalienable rights from the reach of government.
Enormous progress was made between 1954 and 1973, when many rights long dormant became enforceable. Today, those achievements are being heavily challenged by a movement dedicated to rolling back the reach and effectiveness of the Bill of Rights and to undermining the independence of our courts.
The development of the Bill of Rights was a pivotal event in the long story of liberty, but it is a story that is still unfolding.
Rights, But Not for Everyone
The Bill of Rights seemed to be written in broad language that excluded no one, but in fact, it was not intended to protect all the people — whole groups were left out. Women were second-class citizens, essentially the property of their husbands, unable even to vote until 1920, when the 19th Amendment was passed and ratified.
Native Americans were entirely outside the constitutional system, defined as an alien people in their own land. They were governed not by ordinary American laws, but by federal treaties and statutes that stripped tribes of most of their land and much of their autonomy. The Bill of Rights was in force for nearly 135 years before Congress granted Native Americans U.S. citizenship.
And it was well understood that there was a “race exception” to the Constitution. Slavery was this country's original sin. For the first 78 years after it was ratified, the Constitution protected slavery and legalized racial subordination. Instead of constitutional rights, slaves were governed by “slave codes” that controlled every aspect of their lives. They had no access to the rule of law: they could not go to court, make contracts, or own any property. They could be whipped, branded, imprisoned without trial, and hanged. In short, as one infamous Supreme Court opinion declared: “Blacks had no rights which the white man was bound to respect.”
It would take years of struggle and a bloody civil war before additional amendments to the Constitution were passed, giving slaves and their descendants the full rights of citizenship — at least on paper:
The 13th Amendment abolished slavery;
The 14th Amendment guaranteed to African Americans the right of due process and equal protection of the law;
The 15th Amendment gave them the right to vote;
But it would take a century more of struggle before these rights were effectively enforced.
Which detail from the text best supports the idea that the United States has not yet achieved full liberty for all Americans?
A. "The right that the Constitution's framers wanted to protect from government abuse were referenced to in the Declaration of Independence as unalienable rights." ( Paragraph 13)
B. "As late as 1920, the U.S Supreme Court had never once struck down any law or governmental action on First Amendment grounds." ( Paragraph 17)
C. "The development of the Bill of Rights was a pivotal event in the long story of liberty,but it is a story that is still unfolding."( Paragraph 23)
D. " The Bill of Rights was in force for nearly 135 years before Congress granted Native Americans U.S. citizenship." (Paragraph 25)
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The detail from the text that best supports the idea that the United States has not yet achieved full liberty for all Americans is:
C. "The development of the Bill of Rights was a pivotal event in the long story of liberty, but it is a story that is still unfolding." (Paragraph 23)
This statement indicates that the journey towards achieving full liberty for all is ongoing and suggests that complete liberty has not yet been realized.
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