The Bill of Rights
HUGO L. BLACK Justice, Supreme Court of the United States
What is a bill of rights? In the popular sense it is any document setting forth the liberties of the people. I prefer to think of our Bill of Rights as including all provisions of the original Constitution and Amendments that protect individual liberty by barring government from acting in a particular area or from acting except under certain prescribed procedures. I have in mind such clauses in the body of the Constitution itself as those which safeguard the right of habeas corpus, forbid bills of attainder and ex post facto laws, guarantee trial by jury, and strictly define treason and limit the way it can be tried and punished. I would certainly add to this list the last constitutional prohibition in Article Six that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
I shall speak to you about the Bill of Rights only as it bears on powers of the Federal Government. Originally, the first ten amendments were not intended to apply to the states but, as the Supreme Court held in 1883 in Barron v. Baltimore, 1 were adopted to quiet fears extensively entertained that the powers of the big new national government "might be exercised in a manner dangerous to liberty." I believe that by virtue of the Fourteenth Amendment, the first ten amendments are now applicable to the states, a view I stated in Adamson v. California. 2 I adhere to that view. In this talk, however, I want to discuss only the extent to which the Bill of Rights limits the Federal Government.
In applying the Bill of Rights to the Federal Government there is today a sharp difference of views as to how far its provisions should be held to limit the lawmaking power of Congress. How this difference is finally resolved will, in my judgment, have far-reaching consequences upon our liberties. I shall first summarize what those different views are.
Some people regard the prohibitions of the Constitution, even its most unequivocal commands, as mere admonitions which Congress need not al
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Publication information: Book title: Judges on Judging:Views from the Bench. Contributors: David M. O'Brien - Editor. Publisher: Chatham House Publishers. Place of publication: Chatham, NJ. Publication year: 1997. Page number: 245.