Robert Kennedy and the Bill of Rights

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.