Our 18th Century Bill of Rights Needs Revising

Judith Blau | Truthout | June 27, 2015

Constitutional documents

(Image: Constitutional documents via Shutterstock)


There is no denying that the Bill of Rights was progressive at the time it was written – in 1791 – advancing civil and political (and property) rights. Along with the Declaration des Droits de l’Homme et du Citoyen (Declaration of the Rights of Man and Citizen of 1789), it promised to safeguard citizens against arbitrary power; to protect freedom of speech and freedom of religion; and assured citizens that their property could not be taken for public use without compensation.

Both the Bill of Rights and the Declaration provided protections to ensure that anyone accused of a crime had the right to a fair trial. Thomas Jefferson played some role in influencing the drafting of both. And certainly the ideas of major Enlightenment philosophers, such as Montesquieu and Rousseau, provided the intellectual framework for assumptions about individualism, freedom and equality.

But the similarities end there. While France and other European countries have updated their constitutions to include economic, social and cultural rights (with some including environmental rights as well), the US has not ventured beyond civil, political and property rights, and the Bill of Rights has only been gingerly expanded, chiefly to abolish slavery and expand voting rights for Black people and women.

Read more

The Tyranny of the Brand


Charles Pierce | Esquire | December 20, 2013


What good is a Bill of Rights if it protects us (increasingly thinly) against government, but subcontracts the job of abridging those rights to every other institution that affects our lives and well-being?


s the day went on, I heard an unfortunate number of progressive friends address the issue of the suspension of the crackerfamilias with the flat assertion that the First Amendment doesn’t apply to corporations and that therefore, A&E was within its rights to suspend the guy. (Which, as Steve M. points out, isn’t really a suspension but rather that the crackerfamilias is sort of banned from A&E world HQ while his program is on hiatus, which many of the show’s fans likely believe is a form of hernia.) I do not deny the basic legal correctness of this point, but I do wonder if progressives should be quite so blithe about it.


The Bill Of Rights is supposed to be durable and universal. Now, though, in our schools and in our workplaces, it has taken a severe beating. Regularly scheduled drug testing without cause eviscerates the protections of the Fourth And Fifth Amendments. Just this week, Senator Professor Warren proposed a bill that would decouple credit checks from the application process, which at least is a step toward reasserting a right to privacy. To say that, well, Phil Robertson doesn’t have a First Amendment right to a TV show is only to make half an argument. What good is a Bill of Rights if it protects us (increasingly thinly) against government, but subcontracts the job of abridging those rights to every other institution that affects our lives and well-being? As it happens, I had disciplinary action taken against me at the last newspaper I worked for because of things I had written on the Esquire.com Politics blog prior to coming to work here full time. When I asked my immediate supervisor why this happened, he replied, “My primary obligation is to the company.” (I looked down to make sure I wasn’t wearing a nametag with the word Wal Mart on it.) If I showed you the official letter of reprimand, you wouldn’t believe that it actually was written by anyone who worked for a newspaper in any capacity except hawking it from a steam grate. They were within their rights to do what they did, but if you believe in civil liberties, you have to start wondering how truncated those liberties are in daily life.


And my favorite left-wing left-winger passes along another story from within this rapidly expanding gray area.


Read more


There Are No ‘Absolute’ Rights

Michael Tomasky | The Daily Beast | Reader Supported News | May 6, 2013

Nearly every idea in the Bill of Rights comes with restrictions and limitations. To think that the Second Amendment should be any different is absurd, writes Michael Tomasky.

Every time I write a column on guns, the howl arises that I am talking about a right that is enshrined in the Constitution, buddy, and I better watch myself. The howl then transmutes into an extended harangue that this right is absolute, and no libtard fascist, whether me or the Satanesque Dianne Feinstein, is going to limit the right in any way. The first soldier to charge across this rhetorical veld is followed by hundreds harrumphing their assent. The only problem is that it’s an ahistorical, afactual, and barbaric argument. No right is absolute. In fact, the Second Amendment arguably has fewer restrictions on it these days than many of the other first ten, and there is and should be no guarantee that things are going to stay that way. In fact, if we’re ever going to be serious about trying to stop this mass butchery that we endure every few months, they cannot.

Let’s begin by going down the list and reviewing various limits placed on nearly all the amendments of the Bill of Rights (I thank Doug Kendall of the Constitutional Accountability Center for helping me out here). The First Amendment, of course, guarantees the right to free speech and assembly, and to worship as one pleases. There haven’t been that many restrictions placed on the freedom to worship in the United States, although there is a steady stream of cases involving some local government or school board preventing someone from wearing religious clothing or facial hair or what have you. Sometimes a Christian school or church is denied a zoning permit; but more often it’s the freedom to worship of a minority (Muslim, Sikh, etc) that is threatened.

As for free speech, of course it is restricted. Over the past 50 or so years in a series of cases, courts have placed a number of “time, place, and manner” restrictions on free speech. To restrict speech in general, the government must meet four tests. But this is always being revised and negotiated. Here’s one restriction on the Bill of Rights that I’d wager most conservatives would happily approve of. In 1988, the HHS under Reagan promulgated rules prohibiting a family-planning professional at a clinic that received federal dollars from “promoting” (i.e. telling a woman about) abortion. This was challenged partially on free-speech grounds. In Rust v. Sullivan (1991), the Supreme Court held that these rules did not violate the clinicians’ free-speech rights. So far as I can see, this is still law. It’s just one example from many free-speech restrictions that have been imposed over the years, as you can see here.

Read more