Dec. 15, 2021, marked the 230th anniversary of the ratification of the Bill of Rights, the first 10 amendments to the United States Constitution.
Len Niehoff
It’s a document foundational to our democracy. And most of us don’t know enough about it.
Many of our most heated public debates involve questions about the Bill of Rights. When can the police search your home? Can the government prevent you from owning or carrying a firearm? Can it restrict what you say, print, broadcast, and post online? How far does religious freedom extend? Does the government have the power to force you to associate with an idea or a person you dislike?
The Bill of Rights got off to a bumpy start. Alexander Hamilton argued that adding a bill of rights to the Constitution was not only unnecessary, but dangerous. Why, he asked, should we create exceptions to powers that the Constitution does not provide the government in the first place? Hamilton worried that a bill of rights would give government officials the room to claim authority that the Constitution nowhere granted them.
After ratification, the Supreme Court addressed the Bill of Rights largely by ignoring it.
As historian Michael Kammen points out, the physical handling of the document is symbolic. For many years, the Bill of Rights remained locked in a cellar cabinet, along with a collection of Japanese and Haitian swords. It was out of sight and largely out of mind.
The Bill of Rights is a document foundational to our democracy. And most of us don’t know enough about it.
Through the early part of the 20th Century, the Supreme Court decided few cases addressing the Bill of Rights and generally took a very narrow view of its protections.
Change came slowly and stubbornly. For example, as my co-author and I point out in our recent book, Free Speech: From Core Values to Current Debates, it wasn’t until the 1960s that the broad interpretation of the First Amendment that we take for granted today really began to solidify.
Our celebration of the freedoms afforded by the Bill of Rights has become standard fare for Independence Day, Constitution Day, even Thanksgiving. But those words ring hollow if we don’t know what we’re talking about. Unfortunately, the evidence suggests that this is the case.
Alarms sounded several years ago, when a 2017 survey conducted by the Annenberg Public Policy Center revealed that 37% of those polled could not name a single right protected by the First Amendment. Less than half knew that it protects freedom of speech and only 15% knew that it protects freedom of religion.
That’s a disgraceful showing in a country where we hear so much talk about how these freedoms matter.
A few years later, the respondents to a 2019 survey by the Freedom Forum Institute did somewhat better. There, 71% of those polled could name at least one First Amendment right. Still, when 29% of us can’t identify anything that the First Amendment does or says, we clearly have a lot of work ahead.
To compound the problem, the 2019 survey showed that most of us think we have constitutional rights that we don’t. In that study, 65% of the respondents said that social media companies violate the First Amendment when they ban users for posting objectionable content.
This is dead wrong: the First Amendment protects against actions by the government, not those of private entities like Facebook and Twitter.
Granted, the Bill of Rights is an imperfect document. It left our bold constitutional experiment incomplete. It did not address slavery, equal protection, or the right of women to vote. But surely it deserves better attention than we’re giving it.
We have only ourselves to blame for this sad situation. There is no shortage of excellent and easily digestible books on the Constitution, the Bill of Rights, and individual liberties like freedom of speech and religion. There’s just a shortage of people reading them. And we have no hope of successfully defending rights about which we have chosen to remain deeply and complacently uneducated.
It has become popular these days to blame any perceived loss of rights on whichever political party we don’t like. This is a convenient way to disclaim our own responsibility in the mess. If we want to uncover the greatest threat to our civil liberties, we should bear in mind the words of the cartoon character Pogo: “We have met the enemy and he is us.”
This compilation of essays, based on opinion pieces published in The Detroit News from 2021-22, provides a brief and accessible resource for those who would like to know more about the Bill of Rights. Each of the following chapters looks at an individual amendment and describes some of the major challenges the Supreme Court has faced in determining what that provision means.
But the goal of these essays isn’t just to help readers achieve a better understanding of what our rights are. It’s also to provoke broader conversations about what those rights should be and whether we think the Supreme Court has interpreted them correctly.
That’s what the Founders expected of us. Civil and informed debate over such issues is precisely what responsible citizens in a democracy do.
Len Niehoff is a professor at the University of Michigan Law School and serves as legal counsel to The Detroit News. The opinions expressed here are his own.