Can we Afford the Bill of Rights?

• Author: by Honorable Arthur J. Goldberg
• Pages: 01

EDITOR'S NOTE: Tnis ispart ofthe Military Law Review's confnn-uing soies of articles in celebration of the Bicentennzat ofthe Con-stitution of the United Sates Justice Goldberg delivered this Law Day address at the ~nitedSatesMilitary

Acaday. West Bbint, N m York, on May I, 1989.

This Law Day commemorates the 200th Bicentennial of the approval of the Bill of Rights. You, of course, recall that our Constitution would not have been ratified were it not for a commitment by the Founding Fathen that a Bill of Rights would be included. The Bill of Rights, therefore, is to be regarded as an integral part of the original document

Adlai Stevenson said of the Blll of Rights: "Our farms and factories may give us our hvmg. But the Bill of Rights gives us our life ''I And President Truman in his direct way said, "The Bill of Rights, contained in the fint ten amendments to the Constitution, is every Amencan's guarantee of freedam."*

The revolutionaries who founded our republic had no doubt that "[tlhe God who gave us life, gave us liberty at the same time ''E And, m defense of hberty, they pledged their lives. them fortunes and their sacred Honor.

lbday, unlike the thirteen colonies. isolated and without material resources, we are the greatest superpower in the world. Vie are possessed of a nuclear arsenal. which as a deterrent has kept the peace far more than forty yean. Despite intolerable pockets of poverty, most of our people are affluent far beyond the dreams of the creators of a new and unprecedented democracy. And yet a recent Gallup poll shows that a majority of Americans doubt that ~e can afford the liberty guaranteed by the Bill of Rights and proclaimed by our nation's creators as the guarantee of our freedom. Why is this SO?

'Former Arrocmfe Jutae of the Suprrme Court of the Lmted States

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The Papers of Adh E Stevenson 2E2 (5%' Johnson ed 1972 1970112 H TTuman Memom 269 (1956)#Thamai Jeffenon, y'loiedznJ Bartlert. FamiliarQuofafionsliO(E Beck llthed 1968)

MILITARY L.4W REVIEW [VOl 129

There 1s a crisis in American law a crisis reflecting the uncertain-t~ of American Society today We are undersrandably concerned about the prevalence of crime This growing concern Wiih The rising rate of crime has led to a search for solutions that has yielded only fmstratlon. and frustration has led to drastic measures Among them have been various proposals LO amend the Constitution or to leglslat~vely o~erruie recent Supreme Court merpreratians of the Bill of Rights In the hope that law and order may thereby he "restored." Some of the proposals have been convened into conven~ ient slogans such as "Take the handcuffs off the police!" and have caprured the imagination of the public. Even more sophisticated sug~ gestmns are based on the idea of "hheraang" officials from constnutional restraints Critics propose LO alter the fundamental balance-established m the Bill of Rights-between the power of goiernment and the autonomy of the individual The Bill of Rights. we are told shouid be "adjusted" to meet our concern with crime

We more or less see how the first amendment protects us all But The rights of a suspected criminal guaranteed h3 the Blll of Rlghts seem less personal His or her rights are often characterized as self-imposed restraints that the lawahidmg members of Society ha\e adopted only out of an exaggerated sense of fair pia? When a con fession or illegally-seized evidence 1s excluded from a criminal trial. or when an alleged Criminal IS provided the right to counsel, or, after careful review, LS granted bail pending trial. we hear that we cannot afford to @\e such an advantage to the adversary But the Bill of Rights 1s not just protecting someone else It protect3 us all. for to trim the privileges the Bill of Rights accords IS to trim the

autonomy of every individual, nhich LS the essence of the Blli of Rights

The fourth. fifth. sixth and ninth amendments are some of the most effectire and visible means of restricting governmental ~ntru-sian into the prl~acy of the individual. Yet the most vocal attacks on crime take shape as artacks on rhese amendments The rising crime raw 1s associated with Supreme Court rulings enforcing the privileges against self~menmmat~onand unreasonable searches and seizures and erecting the right of pnraq to canit~tutional dlmen sons Crit~cs. in the name of "law and order, seem to believe tharif these privileges were eiimmated or weakened. there would he more confessions and better evidence and that therefore there aouid be fewer crimes and we would all be bettei off But the? offer no eiidence that limiting these amendments would substantially reduce...