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200th Anniversary of the U.S. Bill of Rights: Reveille or Taps? BY JAMES C. HARRINGTON Austin THIS PAST DECEMBER marked the 200th anniversary of the adoption of the U.S. Bill of Rights by the original thirteen states. Generally, we would have hoped to celebrate a bi-centenary of such import far and wide, with great pomp and circumstance. Unfortunately, however, this time around, the festivities were rather muted because in many respects we commemorated more what the Bill of Rights might have been rather than what it actually has become. Over the last decade, the steady hand of a reactionary Supreme Court has cut back the civil rights and individual liberties that had begun finally to take root in the early 1960s. The nation’s high court, now dominated by ReaganBush appointees chosen for pinched ideology, undistinguished by scholarship, and driven by a narrow agenda, routinely rules in favor of government power over individual freedom on virtually every subject. The high court has reversed the recent role of the federal courts to help make the playing field a little more level for those suffering abuse of their rights; the field is now tilted much more uphill than it was before. During the last few years, for example, the Justices on the Potomac gutted the 1866 Civil Rights Act, thereby curtailing remedies for employment bias; upheld some use of coerced confessions despite the once-sacred Miranda rule; refused to recognize individual privacy as a fundamental right as they allowed the government to regulate the bedroom and narrowed the right to die; permitted executions of mentally retarded youth; restored to the police the power to arrest people on anonymous tips and to detain citizens for 48 hours without a warrant; sanctioned random, suspicionless urine testing in the workplace; and destroyed the free speech and press rights of high school students. Not only is the list of diminished liberties becoming alarmingly long, but the Justices have also devised new procedural hurdles that make it more difficult to get into court in the first place. For example, the Court has ruled that African Americans lack “standing” to complain about tax breaks to colleges that discriminate and it has required an almost insurmountable James C. Harrington is legal director of the Texas Civil Rights Project and author of The Texas Bill of Rights: A Commentary and Litigation Manual. amount of egregious police misconduct before holding a municipality liable, even for actual damages. Slowly, but surely, the heavy doors of the federal courthouse are swinging shut. Symptomatic of this trend is Chief Justice William Rehnquist’s recent speech on the anniversary of the Bill of Rights. The legacy he saw was confirmation of the court’s right to interpret the Constitution; he paid little attention to its proclamation of civil liberty. Watching the Supreme Court resolutely chip away at our hard-won freedoms is painful enough, but it has also prevented the nation from moving ahead and developing the principles mapped out in the Bill of Rights by our forebears. In many respects, too, we are falling behind in the development of international human rights law. Although Western nations respect our Bill of Rights as the pioneer that it was, they have gone far beyond us in expanding protections. The charters of rights in most European countries are fashioned on models similar to the United Nations Declaration of Rights, extending guarantees of health care, education, employment, housing rights that are not found in the United States version. Rays of Hope All is not gloom, however. Despite slackening federal protection of our rights, many state judges in Texas still courageously apply “the general, great and essential principles of liberty and free government” which are found in the Texas Bill of Rights. Indeed, state courts now perform a critical role in protecting the American tradition of individual liberty. Texas, for example, guards privacy as a fundamental right and is much more solicitous of minority persons under the state equal rights amendment, a provision still not embedded in the federal Bill of Rights. We should expect that of our courts. The authors of the Texas Constitution deliberately crafted a strong judicial system because they expected judges to play a pivotal role in defending civil freedoms, and they provided for the election of judges as a way of assuring that result. The delegates to the 1875 Texas Constitutional convention intentionally limited the power of the state executive and legislative branches because they feared the abuse of their liberty by those branches. During the election campaigns of candidates for the judiciary, we should make the candidates answerable for enforcing our civil rights, requiring them to state their views on the Bill of Rights in both the federal and state consti tutions. If they do not support those liberties vigorously enough, voters should use the ballot box to help them find other employment. The appointment of federal judges should become more of an issue in presidential and senatorial elections. Senators can approve or reject the president’s nominees, but for some reason the Senate seems to have abdicated this traditional role, thus diminishing judicial quality and allowing the creation of a more ideologically polarized judiciary. Individual citizens must recapture the Bill of Rights by speaking out, loudly and forcefully, in newspapers and at meetings of the city council, school board, county commission and legislature, whenever government puts forward a proposition that limits our liberty, censors our culture or undermines equal opportunity. After all, defending and asserting the Bill of Rights is a patriotic thing to do. Many Americans have given life and limb for its promise. We cannot afford to console ourselves by hoping that, even though the pendulum is swinging to the right, when it goes too far it will swing back of its own weight. History teaches otherwise. Overall, through the years, the Supreme Court has not championed civil liberty. It upheld interstate slavery laws, and “separate but equal” segregation, it rendered the Fourteenth Amendment unto nothingness in the 19th Century and then twisted it Into a vehicle to void economic regulation in this century; the use of loyalty oaths to break the labor movement, and internment of Japanese Americans during World War II these are but a few of the court’s lessthan-honorable legacies. Our task as citizens is to hold the courts responsible to their duty as arbiters of freedom. Americans, regardless of occupation and age, must become drumbeaters for the Bill of Rights, holding accountable those whose job it is to preserve, defend and protect that sacred charter and its ideals. We ourselves must grab the pendulum and pull it back. ANDERSON & COMPANY COFFEE TEA SPICES TWO JEFFERSON SQUARE AUSTIN, TEXAS 78731 512 453-1533 Send me your list. Name Street City Zip THE TEXAS OBSERVER 23