European Stars and Stripes (Newspaper) - December 18, 1991, Darmstadt, Hesse Ill of rights 200 years old this week by w. Dale Nelson the associated press when James Madison sat Down to work on the scrapbook that helped shape the Bill of rights the Kitty Kat lounge was far in the future. So were Hare Krishna abortion protesters and the Quot right to yet nude dancers religious sects demonstrators and people who want to Stop living All have sought Protection in Madison swords from what they say Are unjust Laws. What a different America it is today than the America of Madison and George Mason two virginians most responsible for the first 10 amendments to the Constitution a the Bill of rights. Theirs was an agrarian country in which travel from Virginia to the capital in new York was measured in Days not hours in which virtually All Black people were slaves in which official records were taken Down with Quill pens. Yet the document drafted two centuries ago by these privileged while men today touches the lives of every american from Flag burners to right to lifers from presidents to prisoners from computer hackers to go go dancers. How has it lasted 1 the Baste message that comes from the Bill of rights a which is that there is to be a distance Between the individual and the state and the individual is to retain a degree of autonomy a that message rings True Over Lime Quot said Rodney Smolla director of the Institute of Bill of rights Law at the College of William and Mary in Williamsburg a. Not everybody thinks so. William m. Kunstler a civil liberties lawyer Active in the Center Lor constitutional rights said in a recent College lecture that the conservative majority on the supreme court Quot is determined to reduce the Bill of rights to an ineffective Jumble of 18th-Century phrases without significant . Perhaps the amendments Are still relied upon because they Are so general. They demand not an ant licensing Law but Quot Freedom. Of the not a time limit but Quot the right to a speedy. Trial Quot not a prohibition of whipping or of the stocks or of the death penalty but of Quot cruel and unusual punishments Quot even Kunstler concedes the Point Quot they Are perfectly workable. They Are general. They use general terms like due process no unreasonable searches and seizures and so so he is asked what went wrong Quot the supreme court has destroyed the key amendments Quot said Kunstler. Quot each one one by . A the courts. Always the courts. For it is the courts that interpret the amendments a that decide How those words apply to life in America. And those interpretations Are the stuff of endless argument. Take Kunstler and Smolla. Kunstler said the supreme court will protect rights Only if people Quot really get disturbed Quot and take to the streets. In the meantime he said state courts Are a better bulwark for civil liberties. Smolla takes the More traditional View that the Federal courts their judges insulated from political pressure by lifetime appointments Are the key to the Bill of rights. A the Best answer is an Independent judiciary Quot Smolla said. Quot i think that s Why you see the document so extraordinarily vital and so Central to the american experience the amendments that emerged from Madison s scrapbook in which he pasted newspaper clippings about the Bills of rights adopted by the original states Are the stuff of controversies Undre amt of in 1791. Quot the idea that the framers would have had to think about a right to die is unthinkable Quot Smolla said Quot but now since we can sustain life indefinitely through artificial Means we have had to examine As a society whether the Freedom that comes with being a human being includes the Freedom to make a decision on a Graceful death Quot that s medical technology forcing us to read into the Bill of rights new things that maybe they could t have thought take the Case of Darlene Miller. She was a dancer at the Kitty Kat lounge in South Bend ind according to the supreme court decision in her Case she thought she would make More Money if she could drop the Little she wore and dance nude. Her lawyers said an Indiana Law against nude dancing violated the first amendment guarantee of free speech. The court decided it did not. Or take William Mckinney who claimed that shutting him up with smokers in a Nevada prison was a cruel and unusual punishment forbidden by the eighth amendment. The 9th . Circuit court of appeals ruled that he had enough of a Case to go to trial. The supreme court ordered the lower court to reconsider questioning whether the exposure to secondary smoke was caused by Quot deliberate indifference Quot of prison officials. And just recently a Connecticut court extended the fourth amendment s ban against unreasonable search and seizure police need a warrant to look into homeless people s closed containers. One Street person said such searches were like kicking in the door of the Home you Don t have. Other recent and pending cases Deal with free speech rights of abortion protesters religious Freedom for the Hare Krishna prosecution of pornography customers and whether Public school prayers breach the separation of Church and state. These Are first amendment cases so they take us Back to the beginning Quot Congress shall make no Law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the Freedom of speech or of the press Quot the simple straightforward words set the tone for what followed the much debated right to Bear arms the now outdated Protection against having troops quartered in your House the ban on unreasonable searches on unusual cruelty to the condemned. They will continue to be debated. What is an establishment of religion does Quot no Law Quot mean no Law at All or can it leave the Way open for some Laws How detailed does a search warrant have to be outlining his proposals in the infant House of representatives Madison said Quot it May be thought All paper barriers against the Power of the Community Are too weak to be worthy of not so he said. And the paper barriers still stand not As High As some would like higher than others want. Quot if they Are incorporated into the Constitution Independent tribunals of Justice will consider themselves in a Peculiar manner the guardians of those rights Quot Madison said. In a Peculiar manner. On the Issue of abortion rights on the Issue of smoking in prison on the Issue of nude dancing on the rights of the homeless to their Homes the Independent tribunals come Down on one Side or the other. But they do so in the framework of paper barriers erected 200 years ago. Democracy was nothing new when the Constitution was written argued William and Mary a Smolla the idea of human rights is America s great legacy. It Quot has taken hold of the conscience and consciousness of the a a Star the nuts and bolts of a revolutionary document by Richard Carelli the associated press the words of the Bill of rights remain the same Frozen in the spare even stilted language of the late 18th Century. What do they mean that is what the courts decide. And the answers can. And do change. Here Are some current interpretations of the Constitution s first 10 amendments first amendment Quot Congress shall make no Law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the Freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of the amendment s clauses have been the grist of hundreds of supreme court decisions. For example scores of rulings have interpreted what is called the establishment clause to require what Thomas Jefferson continued on Page 18 Thomas Jefferson was an ardent supporter of the Bui of rights. George Mason supported protecting the liberties of the people. James Madison was Ona of two principal authors of tha Bui of rights. Exporting the . Constitution by James h. Rubin the associated press As new democracies emerge the world Over they Otten turn to the United states the nation with the longest surviving Constitution Lor guidance in drafting their own in fact Constitution writing has become something of a cottage Industry for american lawyers and scholars. Three quarters of the Woi id s constitutions have been written since 1965. Many of them with american assistance said Albert Blauston a Rutgos University Law professor who has helped Moio than 40 write or Amend their constitutions in the past 25 years. He recently returned from helping write a Constitution in Macedonia a Republic in Southern Yugoslavia that has declared Independence. To did Hie same for Liberia and Fiji. He has contributed significant provisions to More than a dozen other constitutions including those of Zimbabwe Bangladesh and Peru. Quot other nations Are right now going through the metamorphosis this nation went through 200 years ago Quot said Rodney Smolla director of the Institute of Bill of rights Law at the College of William and Mary. No other Bountry has such a successful written Quot framework for Domestic Tranquility Quot said Ira Glasser executive director of Tho american civil liberties Union. Legal scholars said when governments in nations such As Poland Hungary and Czechoslovakia turn to the United Stales Lor help they May to interested in More than . Traditions. A by hiring american exports some said those nations May be hoping to improve their own image and their chances Tor getting More foreign Aid the . Constitution with ust 7,56 7 words is widely regarded As a remarkably succinct document. Its flexibility and the open ended Noss of the Bill of rights the first 10 amendments a Are considered great Virtues that permit modern Day interpretation Bui Blaustein warned that the Constitution As a Model does not always travel Well Quot it s a mistake for americans to try and Export american democracy Quot Blaustein said. Quot it must Spring from the soil. We cannot put constitutions together Tike prefabricated from 1978 to 1980, for example Blaustein tried to persuade the new leaders of Zimbabwe to include a version of the equal rights amendment in their Constitution but that nation s tribal cultures rejected the idea also the flexibility celebrated Here in t necessarily what other nations want they May want the rights and protections spelled out in some nations economic rights Are considered essential for example the Constitution of Brazil includes Price guarantees for Staple products for Fiji Blaustein drafted provisions proclaiming Hie rights to literacy a Job health care peace and environmental Protection including free speech guarantees in a nation s Constitution is inadequate by itself added Blaustein it the government runs tie Only television station Portugal a 2-year-old Constitution for example guarantees free expression but to make that guarantee meaningful the Constitution also requires the government to give air time to its citizens some provisions that initially sound like Good ideas can backfire in the or Allig of Liberia s Constitution a so called Quot anti Hitler Quot clause was borrowed from Posl world War ii Germany to let the government outlaw extremist political parties when Gen Samuel k Doe seized Power in a i960 coup he invoked the provision to liquidate All political opposition i goofed said Blau Slem author of the i iberian Constitution Page 16 the stars and stripes wednesday december 18, 1991 the stars and stripes Page 17
