TITULARII DREPTURILOR PREVAZUTE DE CARTA DREPTURILOR THE BILL OF RIGHTS IN MODERN AMERICA THE MYTH AND REALITY OF RIGHTS

I. Rights Consciousness in American History The Bill of Rights represents a document containing declaratory and restrictive clauses. This document was created in order to prevent abuse of power. The articles are valid to all intents and purposes and are a part of the Constitution of the United States of America (10 Amendments). Historically, in the American civic culture, for over two centuries, rights left a mark on both social and political relations. The talk about rights has been one of the most important ways for the Americans to have infused their politics with a dimension beyond mere law or simple interests. Human Rights are seen as a key way in which the American people have debated what a good society might look like. The talk about rights has been one of the basic noises of American history. This talk was found in courts and it was also a characteristic of popular politics (people talked about rights at town meetings, political rallies, newspapers, voluntary associations, religious assemblies and family gatherings). Popular politics in America was the site of rights claims and of rights violation (in justice, security, patriotism or racial purity). Rights were invented and repudiated, expanded and violated, striven for and struggled over. The democratic debate over rights led to the expansion of rights; debates were the source of the development of rights. Regarding rights consciousness, there are 4 key phases in history: 1. From the beginning of the struggle over English colonial policy 1791: period characterized by an explosion of popular rights claims, the habit of thinking about rights with natural as their key modifier and a passion for rights declarations; these led to the ratifying of the Bill of Rights in 15 December 1791. 2. 1820s Civil War (1861-1865): 2nd eruption of rights claims; more radical on the social rights of workers, women and slaves. 3. Mid 1870s mid 1930s: movement of the courts into the creation of rights through new property and entrepreneurial rights; this resulted in a sharp reaction among many of those who were the normal constituents of a right based politics. 4. 2nd World War and struggles for racial justice contemporary times in the U.S: characterized by courts and outsiders joining in common cause.

In the 1770s, peoples rights were referred to as peoples general happiness. Thomas Jefferson stated in 1776 that there exist Certain unalienable rights. This has drawn some interpretation over the view Thomas Jefferson had at that times on rights. Unalienable is an abstract, indistinct and novel adjective for that period. The move to establish rights by imagining what the human condition must have been at the moment of its birth or should have been if human history had not been harmed were quick to gather force. Alexander Hamilton said, in 1775, referring to rights, that they are written in the volume of human nature. John Adams, a decade later, said that rights are to be found in the constitution of the intellectual and moral. Rights grounded in nature are constrained by every government. The American Revolution suppressed many rights, such as: loyalists whose property was seized, whose buildings were burned or who were harried (hartuiti) out of their villages. The first declaration of rights was the Virginia Declaration of Rights, from May-June 1776. This stipulated individual rights (such as freedom of press or free exercise of religion), legal and procedural rights (like trial by jury and protection from excessive bail and punishment), collective rights (such as the right to a popular militia, the right to abolish any government faithless to the public well) and general statements of political principles together with statements of morality. The importance of the Bill of Rights is also shown through a historical fact. In 1778, a Massachusetts town meeting rejected a drafted Constitution without a bill of rights. Anti-Federalists objection to the Constitution only began with the omission of a bill of rights. The sticking points were the power, the scope and the elasticity of the proposed national government. Thomas Jefferson declared a bill of rights is what the people are entitled to against every government on earth, making clear the fact that people do have rights that must be respected by the government. James Madison said highly politic for the tranquility of the public mind and the stability of the Government, referring to the Bill of Right. He also stipulated that the 10 amendments wouldnt have stood out as a separate bill of rights, but would have been through the Constitution. Madison proposed 3 paragraphs elaborating the rights of free speech, assembly and conscience.

The Bill of Rights was born as a demand from below. It is a document born in debate and compromise that basically stipulates no new rights, but rights invention that were filtered by the British struggle. New uses of rights appeared in the artisans and workingmens associations of the 1820s and 1830s. In the 19th century, the dynamic in rights talk lay in the utopian possibilities of the idea of the natural rights. By the mid 19th century, the domain of rights had been expanded. 1830s is the period of time when the anti-slavery movement takes place. This movement invoked the natural right of every man to his own body and to product of his own labor. The 1840s are marked by a new womens rights movement with utopian rights claims, such as the separation from husband, the right to veto and to all rights integral to her moral being. Since the 1870s until the 1930s, courts began to invent rights on their own. For instance, the sacred and imprescribable right to choose ones occupation freely, in 1873. The concept of natural right was criticized by Woodrow Wilson who found the term false, abstract and unAmerican. The term of natural right was replaced with will or common interest. The State of Indiana declared in 1921 that One of the many meanings of democracy is that it is a form of government in which the right of revolution has been lost. The 2nd World War brought changes. In the late 1930s, the term that was more frequently used in F.D. Roosevelts speeches was democracy. The 40s were centered on the term essential human freedoms. In 1944, Roosevelt asked for a promulgation of a 2nd Bill of Rights.

II. The Explosion and Erosion of Rights The history of America is based on the idea of individual liberties and rights. As a people, the Americans take their rights very seriously. Since World War II, there has been an increasing public consciousness about rights and liberties. The book provides the example of the Griswold (v. Connecticut) case, in which the Supreme Court of the United States ruled that the Constitution protected a right to privacy. The case involved a Connecticut law that prohibited the use of contraceptives. The Supreme Court invalidated the law on the grounds that it violated the "right to marital privacy". Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas wrote for the majority that the right was to be found in the "penumbras" and "emanations" of other constitutional protections.

By nature, all men are created equal. This being known, no one is obliged to submit to anothers opinion against his will. The only legitimate means of imposing order on the chaos of nature was the social contract, which is an agreement entered into freely by all. In order to see human nature more clearly, mankind should be stripped down to its bare essentials. In this hypothetical phase, all men would be, in the truest sense, equal. The most basic of rights is the right to life. Beyond that, there was the mans liberty to live free of commands of another and to pursue his happiness whenever he wanted. In this state of nature, each mans equality meant that each man had the power to enforce his natural rights as he saw fit. However, not anyone could see the world the same way. Mans free will led to conflicts and not to consensus, as it would be wanted. Self-interest was the most that one could expect from men in such a state. Hobbes says that life in the state of nature was solitary, poor, nasty, brutish and short. Mans ability to reason is a virtue to come to see that whatever the virtues of the state of nature, its vices were overwhelming. By the social contract, men could join together to put an end to the warre (war) of all against all. Men would move to the higher climes of civil society. In the process, natural rights would be transformed into civil rights that would come backed by law. Mans private conscience will come to the conclusion that what is right is to enter into the social compact. Rights without sanctions to protect them are not rights. The essential right ceded to government is the one to make and enforce laws in order to protect the safety and happiness of each individual who has agreed to live under that sovereign authority. The idea of a written constitution was Americas peculiar security (Thomas Jefferson). Alexander Hamilton said that a written constitution would be seen by all, especially by judges, as a fundamental law. The Constitution was to be understood as an intention of the people. The Constitution was a reflection of what structure of the government the people consented to. Also, it reflected the wishes of the people as to the limits of the powers granted to the government. Hamilton stated that the constitution is itself in every rational sense, and to every useful purpose, a BILL OF RIGHTS. The Bill of Rights was added at the commandment of the Anti-Federalists who feared that an over-reaching national government would in time devour the states. The 14th Amendment was ratified in 1868 and it sought to guarantee all citizens that the privileges and immunities of their national citizenship would not be abridged by any state, that they would not be deprived of life, liberty, or property without due process of law and that no state would be able to deny to any person within its jurisdiction the equal protection of the laws.

For some, the Bill of Rights was not enough. In this view, there was a need to free judges from the misconception that the only rights to be enforced by courts were to be found in the Constitution and its subsequent amendments. There is a universe of rights waiting to be divined by courts. These rights are unwritten, but still binding principles of higher law. The Constitution was created in order to deal with the problem of majority tyranny and to secure the security of private rights and the steady dispensation of justice, as James Madison puts it. The judicial power exercised by the Supreme Court is still governmental power and so it cannot be trusted to create new rights.