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Jewish World Review Jan. 3, 2000 /24 Teves, 5760

Nat Hentoff

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Liberty lion should be Man of Century -- IN JUNE 1789, James Madison presented to Congress his draft of those amendments to the Constitution that would, in part, become the Bill of Rights.

"The most valuable in the whole list," he told Congress, was: "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases."

It was not enough, he insisted, to provide protections of individual liberties against violations by the federal government. Individual states had indeed adopted declarations of rights, but, Madison pointed out, "repeated violations of these parchment barriers have been committed in every State.

"The greatest danger to liberty," he added, "was not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority."

The House adopted that clause, but Madison failed to get the necessary two-thirds majority in the Senate.

It wasn't until the 14th Amendment was ratified in 1868 that a key was provided to protect individuals from the states as well as the federal government. Section 1:

"Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Nonetheless, for many years after the amendment's passage, the Supreme Court ruled that the Bill of Rights limited only the federal government. Accordingly, each state had its own definitions of those rights.

Incrementally, the Supreme Court began to follow Madison's desires in the early part of the 20th century. After a few provisions of the Bill of Rights had been applied, in 1937 -- as Linda Monk writes in her valuable "The Bill of Rights: A User's Guide" -- Justice Benjamin Cardozo, in Palko v. Connecticut, proposed the subsequent test for whether a section of the Bill of Rights should be applied to the states. To qualify, that particular right had to be "fundamental" and essential to "a scheme of ordered liberty."

The one justice who passionately kept trying to persuade his colleagues that the entire Bill of Rights be incorporated into state laws was Hugo Black.

In his dissent in Adamson v. California (1947) -- concerning the Fifth Amendment's right against self-incrimination in a trial -- Black spoke of the "human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment, no nation can lose their liberty so long as a Bill of Rights like ours survives."

Therefore, he continued, "I would follow what I believe was the original purpose of the 14th Amendment -- to extend to all the people of the nation the complete protection of the Bill of Rights" through due process of law.

As for only selective incorporation, Black -- emphatically, as was his custom -- said: "To hold that the Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution."

James Madison would have been greatly pleased.

With Black pushing the court, the First Amendment's Establishment Clause was incorporated (in a majority decision by Black earlier in 1947), followed by the right to a public trial; protection from unreasonable searches and seizures; and the exclusionary rule (which states that illegally obtained evidence cannot be admitted at a trial).

Also, prohibition of cruel and unusual punishment; the right to counsel in non-capital felonies and then imprisonable misdemeanor cases; the right against self-incrimination; the right to an impartial jury and a speedy trial; the right to trial by jury in non-petty criminal cases; and the right against being placed in double jeopardy.

Not yet applied to the states is the right to a trial by jury in civil cases; the right to a grand jury indictment; and the prohibition of excessive bail and fines. And, under the Third Amendment to the Bill of Rights, the government can still quarter troops in your home.

Justice Black was never without a blue paperback copy of the Constitution. When a liberty was threatened, he would slam the Constitution on his desk and -- quoting the first line of the Bill of Rights, "There shall be no law" -- he would thunder: "No law means no law!"

A portrait of Hugo Black ought to be hung in every legislative, executive and judicial office in the land. And in newspaper offices.

JWR contributor Nat Hentoff is a First Ammendment authority and author of numerous books. Send your comments to him by clicking here.


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