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December 15th is Bill of Rights Day

December 15th is Bill of Rights Day
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Editors Note: Since it is Bill of Rights Day we are running this informative article again.


Forgive yourself if you haven’t made any special plans for Bill of Rights Day again this year.  It’s not a federal holiday after all.  Indeed, Congress has made sure that any recognition of Bill of Rights Day would not create a bona fide holiday (really, who needs another day off?) and would not require any funds be spent commemorating the first ten amendments to the United States Constitution.  However, Presidential Proclamations of Bill of Rights Day can overlap with proclamations for Human Rights Day, December 10 (celebrating the United Nations’ Universal Declaration of Human Rights), so that there can be an entire Human Rights Week.  A week, or even a day devoted to the UN or human rights was usually a bit too much for at least one recent president, although George W. Bush did continue the practice of proclaiming December 15 as Bill of Rights Day.

The Bill of Rights Day tradition began before the existence of the United Nations.  In 1941 President Franklin Delano Roosevelt recognized the first Bill of Rights Day on the 150th anniversary of the ratification of the Constitution’s Bill of Rights on December 15, 1791.  FDR’s proclamation did specifically use the term “human rights.”  But it was FDR’s widow, the human rights activist Eleanor Roosevelt, who had the opportunity to elaborate the concept as the chair of the international drafting committee for the Universal Declaration on Human Rights.

For his part, FDR proclaimed that the first ten amendments of the Constitution compromised “the great American charter of personal liberty and human dignity.”  In his proclamation, he explicitly catalogued only a few of “those the immeasurable privileges”  which “that charter” guaranteed: “the privileges of freedom of religion, freedom of speech, freedom of the press, freedom of assembly, and the free right to petition the Government for redress of grievances.”  All of these “privileges” are listed in the text of the First Amendment.

FDR’s description of the Bill of Rights as the United States charter of “personal liberty and human dignity” is consistent with our current common understanding.  But it is not entirely accurate.

While we might like to think that the initial proposal of “amendments” to the United States Constitution was singularly devoted to protecting individual liberties, the history does not support this.  Indeed, our present First Amendment so often described as protecting our “first freedoms” was originally number three.

The original “amendments” were twelve, only ten of which were ratified by the states.  The first amending article, which was not ratified, provided that the number of members in the House of Representatives would change based on population.  If this amendment had become part of the Constitution, we would now have more than 6,100 members of the House instead of the current 435.

The second amending article, which likewise was not ratified in 1791, again concerned Congress itself.  It set the effective date for varying the compensation of members of Congress until after an election had passed.  This would prevent the current members from raising their own salaries.  Over two hundred years later, this became the Twenty-Seventh Amendment.

Like the first two rejected amendments, the final amendment in the Bill of Rights amendments is not devoted to rights at all.  The Tenth Amendment concerns the allocation of powers between the federal government and the states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  While some like to think of this as a “states’ rights” amendment, that’s not really a protection of “human rights.”  Instead, it merely articulates the basic structure of the Constitution without the amendments.

While the protections in Bill of Rights did intend to apply to individuals, the original protection was partial.  It is difficult today to think that any “Bill of Rights” should not protect individuals from state and local governments, but the framers of the Bill of Rights had different ideas.  Indeed, they had much less cause to be fearful of their respective state governments; in most cases, these framers were the powerhouses in their states.

So, it’s not surprising that they began their third amendment, now our First Amendment, with the language “Congress shall make no law.”  This limitation to the federal government was generally accepted as applicable to all of the Bill of Rights.  For example, although the Fifth Amendment does not mention Congress or the federal government – – – it is written a the enervating passive voice destined to annoy all modern English teachers – – – in 1883 a unanimous Supreme Court provided its grammatical exposition.  The Court stated that the first ten amendments “contain no expression indicating an intention to apply them to State governments” and the Court could not extend them.  The Court implied that if the amendments had applied to the states, the states would not have ratified them.

The passage of the Fourteenth Amendment after the Civil War changed the landscape, but slowly and in a piecemeal fashion.  It is through the Fourteenth Amendment’s “Due Process Clause” that the specific rights in the Bill of Rights are incorporated against the states through decisions of the United States Supreme Court.  This process began with the Court’s recognition in 1925 that the First Amendment should be applied to New York’s Criminal Anarchy Law; the Court nevertheless upheld the conviction of Benjamin Gitlow simply for publishing his tract “Left Wing Manifesto.”   It continued with the oft-called criminal justice “revolution” of the Court under Chief Justice Earl Warren (1953-1969), when the Court extended the Fourth Amendment’s protection against unreasonable searches and seizures and requiring warrants, the Fifth Amendment’s protection against double jeopardy and the Sixth Amendment’s right to an impartial jury and to assistance of counsel.  The most recent incorporation was the Second Amendment in 2010; it closely followed the Court’s closely-divided and controversial declaration that the Second Amendment pronounced an individual right to bear arms as opposed to a right linked only to the ability of a state to have its own militia.

The Fourteenth Amendment in 1868 not only remedied the Bill of Rights failure to protect individual liberties from being infringed by state and local governments, it also introduced into our Constitution the idea of “equality.”   The Declaration of Independence’s hallowed phrase “all men are created equal” is noticeably absent from the Bill of Rights.  The inclusion of equality language in the Bill of Rights, of course, might have contradicted the Constitution’s enshrinement of slavery, assuming there was a recognition of slaves’ humanity.  And, depending on how it was phrased, “equality” in the Bill of Rights might have addressed the failure of the drafters of the Constitution to heed Abigail Adams’ famous admonition to her husband to “Remember The Ladies.”

In addition to lacking equality, the Bill of Rights is missing other important rights.  The Universal Declaration of Rights, for example, includes the right to marriage based on consent, the right to privacy, the right to education, the right to participate and enjoy cultural life and the arts, the right to a “standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services,” the right to “security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood,” the right to work for a just wage that would be supplemented if necessary, and the right to rest and leisure including “periodic holidays with pay.”  This is far closer to the “human rights” that FDR contemplated than to the rights listed in the Bill of Rights.

But the Bill of Rights is more than a list.   The ninth of the ten amendments provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”   The United States Supreme Court has interpreted the Ninth Amendment as essentially meaningless. Although it has had its champions, the Ninth Amendment has not provided sustained textual support for any unenumerated right, including rights recognized to some extent in our constitutional law, such as rights of privacy, education, or marriage.  And the Ninth Amendment has not been the launching pad for more ambitious rights such as a living wage or income security.  But it remains as part of the Bill of Rights as an escape clause, an invitation, an open door, a possibility. Imagine if it became the basis for a constitutional recognition of Bill of Rights Day as a paid holiday.  Now that would be something to celebrate.









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