Balkinization  

Tuesday, May 31, 2016

Robert Kennedy and the Bill of Rights

Gerard N. Magliocca

In this post I want to introduce two themes of my (work-in-progress) Bill of Rights book.  One is how the Cold War influenced America's view of its Bill of Rights.  The other is the question (raised in an earlier post) about why we think that the first ten amendments (as opposed to the first eight or the first nine) are the Bill of Rights.

Both of these issues were raised in a thoughtful speech by Attorney General Robert Kennedy in 1963 entitled "Civil Rights and the Cold War."  Here is the relevant passage:

The British have proved a Constitution needn't be written. The Soviets have proved that a Constitution must be more than written. This discussion deals primarily with the United States and the Soviet Union--not because we are the only nations involved, but because there is still some reason to believe we are the leaders respectively of the free and communist worlds. 
Our Bill of Rights--particularly in the first nine Amendments--holds out a series of personal promises. The addition of the Fourteenth Amendment increased the commitment of the national Government to insure that those promises are kept. In most respects, our legislatures have followed with the greatest care the mandates implicit in the Bill of Rights and the Fourteenth Amendment. An independent judiciary has served well to correct misconstructions of those principles.

Anything jump out at you?  For me, it's RFK's emphasis on the first nine amendments.  He doesn't say that the Bill of Rights is the first nine amendments (actually, his statement implies that more than the first nine count), but I find his phrasing rather telling.  First, the speech suggests that he (as well as the legal establishment more widely) thought in the 1960s the Ninth Amendment meant something with respect to individual rights. Griswold v. Connecticut also made this point in invoking the Ninth Amendment on behalf of the right of privacy. The view that the Bill of Rights was only the first eight amendments, advanced in several Supreme Court cases and forcefully by Justice Hugo Black, faded out after the 1960s in part because of a consensus surrounding unwritten rights.

Later in the speech RFK contrasts our Bill of Rights with the state of civil liberties in the USSR, which was part of a broader trend after 1947 and will be the subject of a separate post.  For now, though, note that the Tenth Amendment is not part of RFK's case.  In part, that's because the Tenth Amendment was seen at the time as shielding racial segregation, which was a problem for America's image in the Cold War.  Moreover, federalism does not at this stage do much for advancing the cause against communism, though that will change in the 1980s.

Comments:

"Anything jump out at you? For me, it's RFK's emphasis on the first nine amendments."

You can't expect federal politicians to get very enthusiastic about the Tenth amendment, I guess, since it's clearly aimed at limiting their own power.
 

I suppose the Tenth Amendment, unlike the first nine, does not "hold out a personal promise."
 

"You can't expect federal politicians to get very enthusiastic about the Tenth amendment"

A lot of them were pretty enthusiastic about it over the years.

I don't necessarily think "the Tenth Amendment is not part of RFK's case." He speaks of the Bill of Rights, "particularly" the first nine. But, that means more than the first nine. Why isn't the 10A included? He then speaks of the "addition" of the 14A, as if that is separate from the Bill of Rights. At least, that seems a reasonable interpretation.

The 10A is being diminished, yes, partially probably because it was then used as a tool of racism and other things he opposed.
 

This passage stuck out to me: "The British have proved a Constitution needn't be written."

Given the Brit government's history with the American colonies, the Irish and Scots, as well as occasionally with the English themselves, a largely unwritten constitution gas serious limitations.
 

That was my impression, too: The British have, by now, proven that a Constitution actually DOES need to be written.

Sadly, at this point the US has demonstrated along with the USSR, that writing it down isn't enough. I think it's an open question whether anything is enough, in the long run.
 

Written/unwritten...perhaps we can come to the conclusion that that is not the most interesting or important fact about 'a' 'constitution' ... Many/most/all of us here are lawyers or legally trained so prescription is always foremost in our minds, but the word 'constitution' is just as much about what is 'in fact done' as it about 'what is prescribed to be done.' Aristotle's 'Constitution of Athens' (and his lost collection of hundreds of other ancient constitutions) is all about what 'was in fact done.' In certain respects our 1789 Constitution is hardly 'constitutive' ...not only does it not tell us who 'citizens' of the US are or should be, but it says virtually nothing about the territory on which they reside or how that territory is or should be organized (as witnessed by the confusion surrounding the status of the Northwest Territories Act after the 1789 Constitution was adopted, the debates around the Louisiana Purchase, the mess made in the granting of statehood to Ohio etc...). The specification of citizenship in the 14th Amendment was truly a reconstituting of the US and is a crucial reason for including that Amendment in any 'Bill of Rights.'
 

"Written/unwritten...perhaps we can come to the conclusion that that is not the most interesting or important fact about 'a' 'constitution'"

I would argue that, unwritten, or at least, unrecorded in some fixed form, you don't HAVE a constitution, just habits of governance, liable to fall the moment somebody decides to alter them.

"In certain respects our 1789 Constitution is hardly 'constitutive' ...not only does it not tell us who 'citizens' of the US are or should be, but it says virtually nothing about the territory on which they reside or how that territory is or should be organized"

That's because it didn't constitute a nation, but instead a federation of pre-existing states. It didn't have to specify a lot of things, because they weren't within it's purview anyway.
 

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Youre so cool! I dont suppose Ive read anything like this before. So nice to find somebody with some original thoughts on this subject. realy thank you for starting this up. this website is something that is needed on the web, someone with a little originality. useful job for bringing something new to the internet! Best Source Best Source Best Source
 

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