Year after year, the U.S. Supreme Court hears cases concerning the individual protections guaranteed by the Bill of Rights. Day in and day out, virtually every politician and political pundit opines on what the Founding Fathers meant when they passed those first 10 amendments and why their interpretation of the Bill of Rights supports their current position on a particular issue — for example, gun control vs. the Second Amendment guarantee of a people’s right to bear arms.
If you’ve read my columns before, you know I am troubled by the erosion of individual rights in this country, especially our right to privacy, unreasonable searches and seizures by law enforcement, and the prohibition against cruel and unusual punishment. But in our efforts to protect these rights, we shouldn’t forget the other side of the coin.
When Americans talk about the Bill of Rights, we think about the protections and guarantees we consider fundamental to our democracy. We seldom think of these amendments as creating responsibilities. The political journalist and activist Norman Cousins once said:
In a democracy the individual enjoys not only the ultimate power, but carries the ultimate responsibility.
So perhaps on occasion we ought to look at “the backbone of the Constitution” in a different way.
Congress shall make no law…abridging the freedom of speech…
What value is there in the right to free speech if we don’t temper our tongue and avoid libel and slander? The Supreme Court ruled in New York Times v. Sullivan that for an individual to libel a public figure, the words must be penned with
…actual malice — that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.
The ruling thus enabled political ads and tabloids to publish just about anything about public figures. But don’t journalists — all individuals, for that matter — have an ethical responsibility to write the truth, not gossip? Don’t rappers have a responsibility to avoid lyrics that can easily be interpreted as a threat to a specific individual? (Elonis v. United States will soon take up these questions.)
Congress shall make no law…abridging…the right of the people peaceably to assemble…
What value is there in the right to free assembly if we become a thoughtless member or a shouting voice in an angry mob? Buffer zones at abortion clinics, for example, may violate this constitutional right to free assembly, but don’t we have a responsibility to respect a woman’s right to privacy (McCullen v. Coakley) or not to invade a family’s mourning the death of their child (Albert Snyder v. Fred Phelps). The Supreme Court allowed Nazis to march in Skokie, Illinois, but don’t the marchers have a responsibility not to wave the flag representing the Holocaust in the faces of the very people who were its victims? The Court clearly said they had a right to march, but didn’t say it was the right thing to do — and it wasn’t.
…the right of the people to keep and bear arms shall not be infringed.
What value is there in the right to own a gun if we can’t be responsible with our ownership of them, and to welcome reasonable restrictions on their use during peacetime? Don’t we have a responsibility to make sure that children and the mentally disturbed don’t have an opportunity to create havoc and destruction? If children and the mentally unstable are not allowed in a “well-regulated militia,” why should they be allowed to “bear arms?” How many school shootings must we endure before we regulate access to automatic weapons?
I could go on and on. The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This means that prosecutors have the proactive responsibility to exercise good judgment by refraining from unwarranted or politically motivated prosecutions. The Eighth Amendment prevents federal as well as state government from administering cruel and unusual punishments, preferring well-considered punishments that are designed to rehabilitate, not torture, not destroy.
In the movie The American President, President Andrew Shepherd says
America isn’t easy. America is advanced citizenship. You gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest. Show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the ‘land of the free.”
Great rhetoric, easy for a movie President, but for the most part he’s right. We should both defend and celebrate these rights, but we also must exercise our responsibility to act in a manner that respects our fellow citizens — and the Bill of Rights.