Does it seem strange to you that secularists and other activists go to the trouble of celebrating the Bill of Rights? Does it strike you as peculiar that some people value the Ten Amendments more than they do the Ten Commandments, or that they would think the Ten Amendments need defending?
If you answered “Yes,” I’d invite you to contemplate the following quotation:
"We must keep out of the country, or send out of the country, or hang from the gallows every man who does not believe in a government founded on the Ten Commandments and the moral law established by Jesus Christ."*
Do you know who said that? A raving Religious Right ideologue? Some unhinged partisan of Pat Robertson’s? Hardly, the speaker was a highly respected minister, a pillar of Philadelphia society, and the founder of Temple University. Now I’ll grant you, the Rev. Russell H. Cornwell spoke these words in 1901, and in the context of rising domestic anxiety over perceived threats of anarchism and irreligion. Still, a passage like this reminds us why some of us feel that when believers wax mightiest in their faith, that’s when we need the Ten Amendments most.
The first ten amendments to the U.S. Constitution form a “secular decalogue,” if you will, a template for more than two centuries of activism whose focus has been to realize the American ideal ever more fully. In part we can gauge the importance of the Ten Amendments by the degree to which they are central to some of today’s most pressing social issues. Let’s review them one by one:
Amendment I: freedom of religion, speech, the press, assembly, and petition for redress of grievances. The great-granddaddy of them all! Never have forty-odd words carried so much power to inject equity, fairness, and justice into human affairs. This brief amendment encapsulates so much of what is most important about the American experiment – especially in a time like our own, when a powerful and capricious presidency is asserting extraordinary powers over American policy and American life. From Amendment I flow our rights to express our concerns verbally and in the media, to come together, and to express our dissent. (Some would say that we exercise these rights all too little today.) Most of all Amendment I ensures the freedom of – and in some aspects, freedom from – religion that makes America at least potentially uniquely hospitable toward one of the richest polycreedal cultures humanity has ever seen.
Amendment II: the right to bear arms. Men and women of goodwill disagree over the extent – and limits – of an individual right to bear arms. Less controversial is the Second Amendment’s role as the justification for state-level citizens’ militias, today’s National Guard. Whether realized at the national or state level, Amendment II provides a dramatic check against the state’s monopoly on violence as exercised through the Federal government. The people, either singly or through the Guard, have a right to apply the force of arms independently of the standing army. In the current context, one wonders how much longer our current military policies will exploit and abuse the Guard before some governor studies Amendment II and says, “Sorry, Mr. President, but you can’t have our guardsmen for a sixth tour overseas, we need ’em closer to home.”
Amendment III: quartering of soldiers. It is perhaps a measure of how successful the Ten Amendments have been that few contemporary Americans can imagine a situation where this Amendment might come into play. Let us hope it remains that way – though it’s worth noting that few American residences, even McMansions, would supply the amenities our fighting men and women have become accustomed to at the bases so expensively operated by companies like Halliburton. But I digress.
Amendment IV: limits on search and seizure. Another “hot button” amendment, Amendment IV defines and limits the police power and circumscribes the state’s power to spy on or coerce information from its citizens. Around this amendment swirl today’s contentious debates regarding warrantless wiretaps, government data mining, and other abuses by security agencies. Have we truly entered a “brave new world” where constitutional protections as we formerly understood them no longer apply? The better we understand and revere Amendment IV, the more likely we are to answer, “Hell, no!”
Amendment V: prohibitions on self-incrimination, double jeopardy, and taking without compensation. Though it may seem strange to modern sensibilities, the criminal law concepts of protection against self-incrimination and double jeopardy flow organically from the same source as the civil law concept of protection against unrecompensed takings by the state. All three areas have to do with shielding the individual against state power at the specific points where the individual can be most vulnerable. And it is therefore no coincidence that over the last several years, we have seen significant erosion in certain Fifth Amendment rights in both the criminal and civil domains. For more than a decade, it has been common practice to employ Federal civil rights statutes to subject defendants to a second tier of judicial review after they have prevailed in the criminal courts. When most of us agree with the tactic (say, when Federal charges were brought against the LAPD officers who had beaten Rodney King but escaped criminal conviction), we are seduced by the fond hope that justice will be served after all. But at what price? What is the real meaning of Jefferson’s dictum that it is better that a hundred guilty men go free than a single innocent be convicted? Do today’s Americans have the principle and the courage (for that is what it is) to live in a society where that Fifth Amendment principle is fully applied? Likewise in the civil domain, a recent Supreme Court ruling has upheld the power of municipalities and other governments to take private property for public use simply in order to promote economic development which is expected to be generically beneficial. It is instructive that across the nation, legislatures have recognized that this ruling overstretches the meaning of the Fifth Amendment and are proposing new laws to limit the government’s takings power. Above all these controversies show how hotly relevant Amendment V remains for us all in our time.
Amendment VI: rights of the accused at trial. Can you say Padilla? Can you say Guantánamo? In the literal provisions of Amendment VI for the conduct of criminal trials – and for its broad “penumbra” that shapes our understandings of the limits of state power in military justice or the treatment of enemy combatants – the Sixth Amendment bears directly on some of the most explosive controversies of our day.
Amendment VII: trial by jury. The right to jury trial is relatively secure at present; as noted above, most of the controversies concerning to whom we must extend the rights of the accused have been rooted in Amendment VI instead. That said, perhaps we should exercise greater vigilance when the right to jury trial is blunted in the name of expediency – whether in the service of so-called tort reform or in the course of seemingly-progressive guidelines that steer disputes into arbitration instead of the courts. Is it by oversight alone that Amendment VII is silent on the subject of arbitration? Would it have been addressed if only the Founders had thought of it? We should always be cautious when apparent benefits tempt us to step away from the trial-by-jury model.
Amendment VIII: limits on bail and fines; protection against cruel and unusual punishment. Amendment VIII casts a giant shadow on the domestic and international stages. Is America’s treatment of alleged enemy combatants cruel and unusual – in defiance of the spirit of Amendment VIII if not perhaps of its letter? Is capital punishment cruel and unusual? What about restrictions on the freedom of sex offenders who have served their sentences? What about even the homeless – as when a Federal appeals court ruled that a Los Angeles law that criminalized the mere inhabitance of public land violated the Eighth Amendment rights of homeless persons for whom no shelter was available? Some of today’s thorniest moral conundra are expressed at law through the lens of Amendment VIII.
Amendments IX and X: nondisparagement of non-enumerated rights; status of undelegated rights. Taken together, Amendments IX and X powerfully document a profound principle: the purpose of the Bill of Rights is not primarily to establish what the people may do, it is to establish specifically what the government may not do. That is to say that the entire broad spectrum of rights, whether imagined by current law or not, are held to belong to the states or the people. The central government’s sphere of action is only as specifically provided by the Constitution, and only within the limits placed upon the exercise of that power in the Ten Amendments and elsewhere. If the Bill of Rights fails to specify a right – or if the Framers failed even to imagine it – that is no indication that this right does not exist. Indeed, later courts may discern a previously unenumerated right, such as the right of privacy that emerged through such court decisions as Griswold v. Connecticut and Roe v. Wade, which established the right to contraception and the right to abortion, respectively. The Ten Amendments – indeed, the Constitution as a whole – are written on a canvas that presumes that all rights ultimately inhere in the people: Amendments IX and X make that concept unmistakable.
The Ten Amendments are rich in tradition, significance, and controversy. They are constructed before a background assumption that rights inhere in the people. One could scarcely imagine a sharper contrast to the background assumption underlying the Ten Commandments – that all authority inheres in God.
Amendments? Commandments? If I can only take ten, make mine the Amendments every time!
* Russell H. Conwell, “Responsibility for Belief: Sermon by Russell H. Conwell, at the Baptist Temple, Sunday Evening, September 15, 1901.” Temple Review, Sept. 20, 1901. I am indebted to Robert Helms, author of the article “Anarchism and Unbelief” in my forthcoming New Encyclopedia of Unbelief, for bringing this quote to my attention.