Bill of Rights needed to be updated

Elizabeth Wydra

Most Americans know the Bill of Rights. But too few Americans know that the way we enjoy those crucial rights today is inextricably linked to the way our Constitution was transformed after the Civil War.

The first 10 amendments to the Constitution mark 10 early steps America took along what we at Constitutional Accountability Center call “the arc of constitutional progress.” Many people in the founding era opposed ratifying the Constitution’s original articles because they believed, as James Madison explained to the first Congress in 1789, it “did not contain effectual provision against encroachments on particular rights.” To remedy these objections, the Bill of Rights, Madison said, “expressly declare(s) the great rights of mankind secured under this constitution.”

Today, we know many of these rights by heart. Freedom of speech and press. Freedom from government establishment of religion and free exercise of religion. The right to be secure from unreasonable government searches and seizures. The rights to due process of law and against self-incrimination, and many others. In fact, the Ninth Amendment tells us the Bill of Rights isn’t exclusive, and that we, the people, have other rights not specifically mentioned in the Constitution.

As advanced as it was for its time, however, the Bill of Rights still fell critically short.

It applied only to the actions of the federal government, allowing states to run roughshod over these rights. Even worse, these promised “great rights of mankind” stood in brutally stark contrast to the institution of slavery, ringing as “hollow mockery” in the face of the most fundamental deprivations of life and liberty.

In the wake of the Civil War, however, African-Americans, abolitionists and other Americans joined together to further expound the meaning of freedom. The ratification of the 13th, 14th and 15th amendments to the Constitution brought about what has been called a Second Founding, revolutionizing our governing charter to prohibit chattel slavery, promise citizenship to all born in America, offer equal protection under the law and protect the right to vote from racial discrimination.

America’s post-Civil War Second Founders updated the Bill of Rights in two ways.

First, they widened the umbrella of its majestic protections to cover everyone in America, to prevent state and local governments from violating our rights without fear of consequence. Most of the Supreme Court’s most celebrated rulings vindicating the rights set out in the Bill of Rights — cases such as New York Times v. Sullivan, Gideon v. Wainwright and Miranda v. Arizona — are actually 14th Amendment cases. Without the 14th Amendment, states would be free to violate every single right listed in the Bill of Rights, as states in fact did to perpetuate the institution of slavery.

It is because of the effort of our Reconstruction framers that our fundamental rights are guaranteed no matter where in the United States you live. To be sure, the promise of the transformed Constitution has not always translated into a lived reality for far too many in this country. But there is power in the words generations of activists fought so hard to write into our national charter — we know what should be ours, and we demand change when constitutional promises are illusory.

Second, the 14th Amendment expanded the meaning of freedom beyond the fundamental rights in the Bill of Rights. As my colleague, Constitutional Accountability Center Civil Rights Director David Gans, has explained, the 14th Amendment’s “framers sought to safeguard fundamental rights that have no explicit textual basis in the Bill of Rights but that are crucial to equality and liberty.”

At the Second Founding, in fact, the framers of the 14th Amendment said, “It is the Declaration of Independence placed immutably and forever in our Constitution.”

The Bill of Rights, therefore, remains timeless and essential to our civic life. But it is just part of America’s struggle to become a “more perfect union.”

As our ancestors taught us, that work is never finished. Through times of war and peace, and even pandemic, they showed us that America is best when the arc of our Constitution bends ever toward progress and liberation.

Elizabeth Wydra is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the promise of the Constitution’s text, history and values. She wrote this for InsideSources.com.

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(1) comment

rdsouth

True, later amendments have altered the meaning and implementation of the original Bill of Rights, but here's what I'd explicitly change it to.

Amendment I

Congress may not specifically promote or discourage any particular religion or position on religion, nor may it prohibit natural verbal expression on the basis of its content, except where such content may criminally constitute treason, nor may it regulate the production and distribution of printed literature, nor may it prevent citizens from physically gathering for the purpose of political expression. None of these rights shall be taken to grant additional rights not included or exemptions from otherwise general laws.

Amendment II

Since a militia might be needed by any given state, the people are granted the right to retain the legacy of personal armaments and permission to bear and load them as officers of their state may command. Congress may regulate commerce in arms, interstate transport of arms, and possession of arms traditionally operated and carried by crews or vehicles rather than individuals.

Amendment III

Private homes or their use may not be commandeered by any agent of the executive branch of government except as explicitly authorized by Congress.

Amendment IV

Physical searches of personal property by agents of any level of government are prohibited unless they have been authorized in advance by a duly constituted judge on the basis of sworn testimony regarding the specific purpose and scope of the search. Property may be seized only for purposes of evidence in a criminal trial, and such property, or an equivalent substitute, must be returned to the owner in a timely manner once the justifying criminal charges are no longer pending judgment.

Amendment V

Capital and corporal punishment shall be prohibited except as authorized by congress for use by the military in times of war. Following judgment of a court regarding an offense, no person shall be compelled to stand trial for that offense again. No person shall be compelled to give self incriminating testimony. No person shall be unwillingly imprisoned except as a necessary part of the process of criminal prosecution operating expeditiously. No private property may be taken for public use without fair compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State wherein the crime shall have been committed and to be informed of the nature and cause of the accusation; to be confronted with all witnesses testifying in the trial; to have the benefit of a compulsory process for obtaining witnesses for the defense, and to have the assistance of a competent lawyer for defense.

Amendment VII

In suits at common law, no court may proceed other than according to the statutes of the relevant jurisdiction.

Amendment VIII

Monetary bails shall not be required, nor may fines exceed the wealth of the individual fined, nor may any punishment be outside the range of standard punishments prescribed by law.

Amendment IX

Rights may also exist which are not enumerated in this document.

Amendment X

Except as explicitly distinguished herein, the individual States and the United states, have the same powers, and where they conflict the laws of the United States take precedence.

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