Bar News Masthead

January 1992

U.S. Senator Joseph R. Biden, Jr., who chairs the Senate Judiciary Committee, was featured as the keynote speaker during the Bar’s recent 1992 Mid-Winter Meeting Banquet on January 24.  A written copy of Senator Biden’s speech on the Bill of Rights was provided to Bar News and appears below.

Just a month ago – as our public life was dominated by talk of the recession and the crisis in our health care system, and our private lives were filled with final preparations for the holidays – a very important occasion passed by, largely unnoticed.  Though we celebrated it hardly at all, it was, in fact, a landmark in the history of human freedom:  the 200th anniversary of the ratification of our Bill of Rights.

Unlike the 1976 bicentennial, for this anniversary, no tall ships sailed.  There were no televised parades; few bands played, and no floats rolled.  No markets were shut down, and no shops were closed.  It was, in short, simply another day in the life of America.

Yet nothing testifies more eloquently to the success of our Bill of Rights than the fact that millions of Americans passed its 200th anniversary going about their own business – laughing and loving; arguing and agreeing; buying and selling; praising and protesting – without having to give a moment’s thought to the document that protects their right to do whatever it was that they were doing.

Notwithstanding that the Bill of Rights’ birthday was observed unwittingly by most Americans, we lawyers have a special obligation to remember this anniversary and the great document it memorializes.  And with all due respect, I suspect that we lawyers do not pay nearly as much attention as we should to the Constitution and the Bill of Rights, and to educating our fellow Americans about the critical importance of both.  For it is both our privilege and our responsibility as lawyers to understand, defend and champion the system of legal rights and remedies that rests, ultimately, on the Bill of Rights.  So I think it fitting that we pause and reflect on this anniversary, and it is my thoughts on this occasion that I would like to share with you this evening.

This celebration of our Bill of Rights – of the duration and stability of our system – comes at a time when nations all over the world are considering radical reforms of their own governments.  Many of them are looking at our Bill of Rights as a model, and they are asking why it has succeeded so long and so well in this country.  Why has our Bill of Rights played such a vital role in shaping our free society, while similar documents in other countries have been ignored or abused?  Why has this charter – unlike any other document, in any other country, before or since – succeeded in protecting our freedom for two centuries while others have failed?

This is a question that is important not only to people who seek to emulate our success in other countries; but it is also important to Americans, and especially to American lawyers.  It is important, as we seek to understand what the Bill of Rights has meant us; important, as we seek to give it definition for the century ahead.

Neither the question nor its answer is as simple as it may at first appear.

There are several answers commonly offered to explain the success of our Bill of Rights.  Some have said that the Bill of Rights has triumphed because it protects critical, specific rights:  freedom of speech and religion, the right to a fair trial, freedom of assembly, and so on.  By selecting these specific freedoms for protection, it is said, that the Bill of Rights has created the framework for our free society.

I disagree.

Yes, the freedoms specifically protected by the Bill of Rights are important – but the document’s continuing success cannot be explained by its selection of certain specific rights for protection.  The old Soviet bill of rights claimed to protect more than 200 specific rights – but for three-quarters of a century, the Soviet people suffered under one of the most thoroughly totalitarian societies recorded in human history.  No – no mere laundry list of rights is enough to build a free society like ours.

Others have said that the success of the Bill of Rights has derived from the very breadth of its wording; its sweeping phrases that have allowed for growth and expansion of its meaning over time – phrases like “due process of law” and “cruel and unusual punishment.”

Again, I disagree.

Yes, the document’s expansive phrasing has given it the potential for timelessness and adaptability, and that potential is certainly one of its most important qualities.  But, again, other countries have devised expansively phrased bills of rights, that in the end, have failed to protect anything.  The French Declaration of the Rights of Man in 1789, for example, broadly embraced such sweeping concepts as “dignity” and “equality” – but did nothing to prevent the bloody political persecution that began just months after it was issued.

Breadth of text alone is clearly not enough to insure success, and neither is adaptability the only answer, for so the most important protections the Bill of Rights provides us are not the products of “growth,” but are, in fact, rooted deeply and unchangeably, in our history.

Finally, many have cited the genius of James Madison and his colleagues in the First Congress as the secret of the Bill of Rights’ success.  For example, their decision to incorporate the fundamental freedoms of speech and religion into the very first amendment is often pointed to as an act of great foresight.

But that fact that when the Bill of Rights was drafted, what we now know as the First Amendment was actually the Third Amendment, two others that were not ratified by the states were listed before today’s “first freedoms.”  So chance, as much as genius, has determined the numbers by which our rights have come to be known.  More seriously, the simple truth is that however ingenious our Founders were, something more than their ingenuity has kept this document alive for two centuries after their deaths.

As I see it, it is not the specification of certain rights, nor the broad sweep of its guarantees, or even the wisdom of the Founders that explains why our Bill of Rights has endured.  It is something even more fundamental.

In my view, the central reason why our Bill of Rights has succeeded, where similar documents have failed in other nations, is that our Bill of Rights enshrines a balance that lies at the very core of our American character:  it sides with the protection of personal freedom over the power of government to intrude in our private lives, where the two conflict.  The idea that our system should “tilt” toward individual rights, when those freedoms clash with governmental authority, is at the center of the Bill of Rights – and at the center of our hearts as a people.

We see this idea clearly at work in some of the specifics of the Bill of Rights: for example, in the Third Amendment’s bar on quartering troops, the Fourth Amendment’s ban on unreasonable searches and seizures.  But to fully understand the scope of the Bill of Rights’ protection of personal freedom, we must look at that document as a whole.  We must see the ten amendments as one document – a document that enshrines our right to live our lives as we choose, with no governmental authority, petty or great, empowered to constrain us.

We must also consider what Judge Robert Bork called an “ink blot on the Constitution” – the critical Ninth Amendment, with its “instruction” that the Bill of Rights is not an exclusive catalog of the liberties that we Americans reserve against intrusion by government.

Consider the most important freedoms we enjoy in this country:  the right to choose our own spouse; to live wherever we please; to travel abroad and at home; to select our own careers; our own schooling; to decide whether we will or will not have children.  These are rights that have often been denied in other nations and sometimes challenged here.  These freedoms are not listed in the Bill of Rights, yet it is impossible to imagine this as a free country, without such freedoms being constitutionally guaranteed.  Indeed, what makes the Bill of Rights so dear to every person is their “certain knowledge’ that these fundamental freedoms are protected from government interference, even though they are not spelled out in the document’s text.  These so-called “unenumerated rights” are fundamental to us, precisely because they suggest no limits on liberty.  They form the essential character of our American democracy and insure the continued vitality of our Bill of Rights.

Of course, some legal scholars dispute this view, and say, for example, that protecting unenumerated rights is at odds with the doctrine of “original intent.” Nothing could be further from the truth: the notion of inalienable rights, enumerated or not, beyond the reach of government is the essence of the original intent of our Founders.

When the Framers completed their work in Philadelphia, the document contained no bill of rights.  That was not because any of the delegates questioned the existence of natural, inalienable rights, but precisely because they presumed those rights to be unquestionable.

Still the absence of a national Bill of Rights disturbed many Americans, and satisfying their reservations quickly became the price of ratification.  As a result, James Madison, originally an opponent of a Bill of Rights, found himself on the floor of the House Representatives during the First Congress proposing the adoption of just such a document.

For Madison, a problem remained.  He feared for the future of those rights not enumerated, since specifying some rights could create the presumption that no other rights existed – precisely the argument that scholars like Robert Bork continue to make today.  This was, and is, no small question, and the whole history of our country as well as the character of our society turns upon the way it was resolved.

Madison’s answer to this dilemma was considered so vital that it was placed in the Bill of Rights itself – in the Ninth Amendment – which insists that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”  Madison and a majority of the Congress believed those unenumerated rights were so real and their protection so crucial that the Bill of Rights would not have been adopted without his amendment.

Within this story, too, lies the secret of the success of our Bill of Rights.  For, in the words of Justice Brandeis, the Constitution reserves to the people, “As against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized man.”  That “right to be let alone” protects individual liberty from threats that are decades old, but still loom on the horizon today.  The unenumerated freedoms enshrined in our Bill of Rights:  prevent the government from making it a crime to teach foreign languages to children – as the state of Nebraska once did during an earlier “America First” campaign; prevent the government from ordering the compulsory sterilization of petty thieves – as the state of Oklahoma once did, during an earlier phase in the “war on crime”; and prevent the government from making it illegal for doctors to prescribe birth control for married couples – as did the state of Connecticut, during an earlier debate over the distribution of contraceptives.  Nowhere does the Constitution or the Bill of Rights “enumerate” the individual freedoms protected in these cases, but neither the American people nor the Supreme Court doubt that our Bill of Rights does, indeed, protect those rights and provide for our privacy.

This debate over such “unenumerated rights” form the crux of my disagreement with Judge Bork and was the reason I felt compelled to lead the fight in the Senate against  this otherwise honorable, brilliant and decent man. Judge Bork believe that the danger to democracy from acknowledging unenumerated rights is greater than the danger to freedom posed by discarding them.

This is a view I vigorously reject. The demonstrated pattern among the Supreme Court’s opinions—many written by justices like Frankfurter, Harlan, and Powell who exemplify the conservative jurisprudential tradition of the 20th century—finds a common ground upon which to articulate a right to privacy. Such a right must extend to certain carefully defined and narrowly drawn decisions about procreation, family structure, and family relationships.

That is a view, I might add, that was shared by then-Judge David Souter in his confirmation hearings, and is the principal reason that, notwithstanding  my disagreement with him on some questions of law—I was pleased and proud to support his confirmation to the court. For Justice Souter recognized, unlike Judge Bork, that throughout our history the tension between individual liberty and the demands of organized society—between rights and power—has been at the heart of our struggle to define our essence as a nation. Fortunately, the prevailing tide of our history has run consistently at the flood toward liberty; we have built the essential character of our nation at the highwater marks of freedom. Our Bill of Rights, interpreted with the guidance found in the Ninth Amendment is our best assurance that the tide of liberty will continue to flow, ever stronger, ever deeper, and ever broader.

It is painfully ironic that as we reach this milestone for our Bill of Rights and as that document is emerging as a model for new democracies around the world, its foundations are under a two-pronged attack—one political, one intellectual—here at home.

First, we as lawyers cannot ignore the growing fashion of our political system—politicians “bashing” the very institution on which this nation depends to breathe life into our rights day by day: the American legal system. Even as people all over the world seek to emulate the success of our legal system—our courts, our independent bars, our robust legal profession—and copy it for their own, many here in this country can only see its failings and would cast it aside without giving thought to what might be thrown out with it. Let us remind the political critics of our profession that the framers consider the right to a lawyer—as well as a right to a jury, even in civil cases—so fundamental that these guarantees are explicitly protected in the text of the Bill of Rights. That is not to say our modern legal system is perfect: it has its faults as we all know. But the overheated rhetoric we have been hearing from some national leaders goes well beyond reform, to demagoguery; it is an attack on the traditional purposes of our legal institutions and on the profession that keeps these institutions alive and functioning.

It is true that our civil justice system has become too expensive, and as a result, it deprives many Americans of their “day in court” and imposes enormous costs on our society and its businesses. That’s why I proposed the Civil Justice Reform Act, signed into law last year and beginning to take effect right now.

Perhaps more reforms are still needed; if that is the case, let it be so. But let us never forget that there are many other nations that have created systems “of justice” that are “cheap” and “efficient”—and those are the very nations where people have risked their lives to discard their governments and replace them with a system of justice like our own. It is our system that is the model; our system, the one that the critics here have been denigrating; our system, that rests, at bottom, in our Bill of Rights.

This onslaught comes from many quarters and has many different objectives: from Judge Bork’s call to curtail the protection of unenumerated rights, to the views of Chicago professor Richard Epstein who would radically transform the Bill of Rights into a document that would primarily protect property rights, and not personal freedoms. Unfortunately, we lawyers are not very well informed or very engaged in the debate that is taking place for the heart and intellectual soul of our legal system. For too long, we have ignored the fact that these thinkers—distinguished, articulate men and women, who have their differences—share one common goal: a dramatic change in the way in which the Bill of Rights protects our individual liberties.

As we ponder these new ideas, let us never forget what is at stake here: not some academic exercise, nor a quest for debating points—but, in truth, nothing less than the meaning of our freedoms and our rights as Americans. And as this debate rages in our courts and our Congress, we as lawyers cannot be casual observers or detached dilettantes. We must be outspoken advocates for the elaborate, but delicate, framework of rights that has been erected in this country over the past two centuries; that is the living heritage of those ten amendments ratified 200 years ago.

If we live up to our duties as a profession, then in the end, no matter the attacks on our system, it will endure. For this system draws upon the indomitable determination of Americans to be free, a drive that cannot be denied.

And our system also rests on a Judeo-Christian tradition that has guided us for more than 5,000 years, a tradition that recognize the fundamental rights of all persons to shape their own destiny.

For the ideal of personal freedom was not, of course, conceived by the framers of the Bill of Rights. It came to that document from the “self-evident” right, affirmed by the Declaration of Independence, to “life, liberty, and the pursuit of happiness.” The Declaration in turn drew upon the great English common law; which in turn had been built upon Magna Carta; and so on and so on, century before century back to the dawn of our civilization.

It is a line that reaches all the way back to what is, in my mind, the most eloquent definition of human freedom, found in the Biblical book of Micah. A passage in the fourth chapter of that book still rings true in our ears 27 centuries after it flowed from the pen of the poet: “They shall sit every man under his vine and under his fig tree, and none shall make them afraid.”

That promise of our faith, the most basic of human rights—that none shall hinder our pursuit of full, free, and creative life; that none shall meddle with our families; that none shall dictate our faith—are cornerstones of our civilization.

They are the gift of God. They precede the formation of government; and the purpose of our Constitution above all else, is to secure them. This is the tradition that must continue to guide us as we enter our third century under the Bill of Rights.

We Americans have long demonstrated out ability to adapt to new social, economic, and technological realities, without sacrificing the values and liberties our nation was created to preserve and expand. If we accept uncritically what is being proposed in the way of limitations placed upon our personal freedoms, we will fundamentally change as a country.

Make no mistake about it: there is a serious debate raging within our profession, within the academic community, about changing the emphasis we place upon individual freedom, and about whether or not the Bill of Rights and the Constitution have as their essence the protection of that freedom. Those us in the legal profession must become more aware of this continual debate—and more involved in it—in order to ensure that our children enjoy the same fundamental, take for granted, God-given, individual rights that we enjoy.

If we keep that tradition alive—and if we continue to demand, above all else, that our Bill of Rights defend us against government intrusion into our private lives—then I believe, with Micah, that none shall prevail over us, and none shall make us afraid.