Albion Monitor /Commentary

The Bill of Rights' Greatest Defender

by Randolph T. Holhut

A time when our nation had a Supreme Court that truly championed individual liberty
It's been often said that if the Bill of Rights of the U.S. Constitution were presented to today's voters in the form of a referendum, it would not be approved.

Too many people today apparently support restrictions on speech and free assembly, support giving greater powers to police, believe that there is too much separation of church and state and think that the death penalty is a perfectly justified punishment.

I am not in that number. I am disgusted by the ongoing rollback of our Constitutional freedoms by the conservative jurists that now fill our Federal courts.

That's why I am saddened at the passing of retired U.S. Supreme Court Justice William J. Brennan, who died at age 91 on July 24. His death reminds us of a time that I fear may never be seen again -- a time when our nation had a Supreme Court that truly championed individual liberty. Together with Chief Justice Earl Warren and associates William O. Douglas, Hugo Black and Thurgood Marshall, Brennan helped shape a judicial philosophy in the 1960s that's now sadly out of favor. That philosophy viewed the law as a catalyst for social and political change and rejected the conservative view that the only legitimate way the Constitution can be interpreted is through the original intent of its framers.

Brennan believed differently. "We current judges read the Constitution in the only way that we can: as 20th Century Americans," he said in a 1985 speech at Georgetown University. "The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and needs."

To Brennan, the Constitution was "a sparkling vision of the supreme dignity of every individual" and that the Court's first obligation was to regard that vision as "transcendent, beyond the reach of temporary political majorities."

He joined with Warren, Douglas, Black and Marshall in expanding an interpretation of the Constitution that provides for greater protection of individual rights and for equal protection under the law. They put the burden on the government to prove otherwise.

It was Brennan who insisted that criminal suspects be advised of their constitutional rights and get free access to legal representation
Conservatives call this "judicial activism." Any attempt to give the powerless more rights than the powerful think they should have is wrong. But Brennan had it right. In the words of Stephen Shapiro, the American Civil Liberties Union's national legal director, Brennan "understood better than anyone that the defense of one person's liberty was the defense of everyone's liberty."

You often hear conservatives scream about how "legal technicalities" allow criminals to go free. But what the conservatives call technicalities were violations of the Bill of Rights to Brennan. He knew if police failed to follow the rule of law, we'd end up with a police state where no one's rights are respected.

"We are what we are because we have those guarantees, and this court exists to see that they are faithfully enforced," Brennan said in a 1987 radio interview. "Those guarantees have to be sustained -- even though the immediate result is to help out some very unpleasant person. They're there to protect all of us."

It's not a technicality when a police officer knocks down your door and enters your home without warning. It's a violation of due process. It's not a technicality when evidence that is illegally obtained is disallowed in court. It's upholding the Fourth Amendment's protection against illegal search and seizure. It's not a technicality when a confession is illegally coerced from a suspect. It's a violation of the Fifth Amendment's protection against self-incrimination.

Brennan wrote 1,360 opinions in his nearly 34 years on the Supreme Court. Only five justices had served longer and only Douglas wrote more opinions. Brennan was the one who put together the coalitions and made the persuasive arguments on many of the key issues during his tenure. He was the brains behind the Warren Court, and he was skilled enough to maintain and occasionally expand that court's achievements after Warren Burger became Chief Justice in 1969.

Under the current Chief Justice, William Rehnquist, Brennan found himself in the minority more often than not. Some of his opinions regarding the death penalty, habeas corpus appeals and affirmative action have been scaled back by the Rehnquist Court. But many more of Brennan's opinions have stood and now form the bedrock of modern American law.

It was Brennan who behind Baker v. Carr in 1962, the case that forced states to change the way they handled political reapportionment and made the principle of "one man, one vote" a reality in the segregated South.

It was Brennan who authored "Times v. Sullivan" in 1964, a landmark decision for the First Amendment. It finally shielded the press from liability for publishing statements about public figures unless the falsehood was made with "actual malice" -- with knowledge that it was false or with reckless disregard of the truth. He believed in "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

It was Brennan who insisted that criminal suspects be advised of their constitutional rights and get free access to legal representation. He pushed to give prisoners greater access to the federal courts to challenge convictions, especially in death penalty cases. "In a civilized society, government must always be accountable to the judiciary for a man's imprisonment," he wrote.

Brennan helped build court majorities for protection of civil liberties in social settings to strike down state bans on birth control, abortion and mixed-race marriages. He was the man who held that burning an American flag as a political protest was a constitutionally protected form of free expression. It was Brennan who applied the 14th Amendment's equal protection guarantee to strike down laws that sanctioned official discrimination on the basis of race or gender.

When he retired in 1990, he wrote that it was his hope that his Supreme Court service "has built a legacy of interpreting the Constitution and federal laws to make them responsive to the needs of the people whom they were intended to benefit and protect. This legacy can and will stand the test of time."

We can only hope that Brennan's legacy does stand, and that someday, we may again see a Supreme Court with justices that carry on his devotion to the Bill of Rights and his belief in the power of the judiciary to transform American life for the better.

Randolph T. Holhut is a freelance journalist and editor of "The George Seldes Reader" (Barricade Books)

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Albion Monitor August 19, 1997 (

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