In light of the increasing number of assaults on our basic freedoms in recent years, including attempts to mandate the teaching of religious doctrine in public school classrooms, attempts by the federal government to strip away basic rights of American citizens under the First, Fourth, Fifth and Sixth Amendments with no judicial oversight and no probable cause, it is well to remember the words of Floyd Abrams, an attorney involved in a landmark First Amendment case: “The Bill of Rights assumes a government that will misbehave without specific limitations on its behavior.”
The Founders had good reason to assume such a thing, given the record of the government that they rebelled against, and wanted none of that kind of behavior on the part of the government they were creating for a new country. In Our Defense, by Ellen Alderman and Caroline Kennedy, is an absorbing study of a number of cases involved in establishing the bounds of government authority over private citizens, and defining the scope of the basic rights embodied in the first ten Amendments to the Constitution of the United States. Each chapter deals with one Amendment, with subsections that explain a particular aspect of the rights enumerated (or assumed, in the case of Amendment IX) in each of the Bill of Rights; the First Amendment, therefore, gets four sections, about free speech, freedom of the press, freedom of religion, and freedom of assembly. The clauses that are not covered are the First Amendment establishment of religion clause, the Sixth Amendment speedy and public trial clauses, and the Eight Amendment excessive fines and bail clauses.
Each section deals with one case that, while it may not be a landmark, is a good example of the clause under investigation. Alderman and Kennedy interviewed those involved in the proceedings whenever possible, and quote extensively from relevant judicial opinions in the history of that clause, as well as often bringing in legislative history, including comments by Thomas Jefferson, Patrick Henry, and James Madison, who was, along with Jefferson, the main force for the inclusion of the Bill of Rights in the Constitution.
The first discussion in this book, about freedom of speech, involves Missouri Knights of the Ku Klux Klan v. Kansas City, a controversy begun in 1987 when Dennis Mahon, Imperial Dragon of the Missouri Knights of the Ku Klux Klan, and Exalted Cyclops J. Allan Moran requested air time on Kansas City’s public-access cable channel for a weekly TV show called “Race and Reason.” One very important point that the authors make in this discussion, and one that is repeated again and again, is that quite often, the people whose rights are being infringed upon are not very nice people – in some cases, they are completely reprehensible. No matter: the Bill of Rights does not guarantee the right of free speech, for example, only to those who are saying things that we want to hear. It guarantees the right of free speech to everyone. This section is an excellent example of the way the book is organized and the way explanations and the history of developments is handled: background is given on the circumstances that led to the lawsuit, including information gleaned from interviews with the participants; the history of court proceedings is also detailed, with information on opinions by lower courts, standards used in adjudicating the cases; the specific areas of concern – for example, the difference between the right of free speech exercised on public property and whether such a right existed on private property (it does not); the main arguments in the case; the final judgment (if there was one – in some cases, the proceedings became moot because of changes in the law or in circumstances); and a history of the clause in question.
There are quotes from majority opinions, dissenting opinions (which in some cases later became the guiding principles by which the laws were interpreted), legal scholars, and historians. In some cases, the authors go back to information from Anglo-Saxon England – Anglo-Saxon law is the basis for much of our own common law – for example, trial by a jury of one’s peers.
There are rights which the courts generally recognize which are not specifically enumerated in the Bill of Rights – for example, the right to privacy. The authors give a good discussion of the key case in this area – Griswold v. Connecticut — and describe the judicial reasoning behind the finding that there is such a thing, citing arguments under both the Fourth Amendment due process clause and the Ninth Amendment, which quite simply (and to some scholars, vaguely) states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The discussion includes a history and explanation of “substantive” due process under the Fourth Amendment, and Chief Justice Earl Warren’s majority opinion citing the idea that “[s]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” Stated simply, there are “buffer zones” around rights enumerated in the Bill of Rights that prevent government intrusion into guarantees assumed by those enumerated rights. Thus, in the majority opinion, the Constitution assumes a right to privacy which grows out of the right to free association (First Amendment); the prohibition of quartering troops in private homes (Third Amendment); the right of citizens to be “secure in their persons, houses, papers and effects” (Fourth Amendment); prohibitions against self-incrimination (Fifth Amendment); and the Ninth Amendment’s statement on retained rights. (The Ninth Amendment has since retreated into obscurity.)
The book concludes with an appendix: the full text of the Constitution and its Amendments. There are extensive notes, for any budding legal scholars, giving case citations, relevant passages of statutes, sources in legislative history, and other details.
This book is not exhaustive, but it is a good way to enter into the world of case law on the Bill of Rights. It is odd that the authors omitted a section on the First Amendment establishment clause, because there have been so many cases on this issue, but, by the same token, they may not have felt it was necessary, and there are indeed so many cases within the last twenty-five years alone that to make a decision on which one to devote a section to would be, to say the least, daunting.
For anyone who treasures his rights as an American citizen, who holds our Founders’ distrust of unlimited government power (there is a chilling chapter on FBI abuses during the anti-war and civil rights movements of the 1960s and 1970s), who doesn’t know enough about them (the authors cite a 1987 poll that showed that 59% of Americans could not identify the Bill of Rights), and who wants to understand the basis of these rights and their status in the country today, In Our Defense is a good thing to have. Clear and detailed, it is a very good introduction to what the Bill of Rights is all about.