ORIGINS OF THE BILL OF RIGHTS

By Leonard W. Levy

Yale. 306 pp. $30

By M.N.S. Sellers, author of "The Sacred Fire of Liberty: Republicanism, Liberalism and the Law."

Most legal rights against government are very new, first developed in America from much weaker English traditions. As late as 1630, when English clergyman Alexander Leighton criticized the Anglican bishops, British courts ordered his tongue to be slit, his cheek branded, his body whipped until almost dead and his ear nailed to the pillory and then cut off. That was only the first half of the sentence.

In "Origins of the Bill of Rights," Leonard W. Levy tells this and many other gory stories to illustrate how shallow most Englishmen's rights still were when Britain's American colonies began their course toward liberty--but also how much American conceptions of rights depended on the history of English martyrs' treatment at the hands of Stuart kings. Leighton and his Puritan friends in Parliament set up a standard of liberty against power that Americans themselves would raise against George III.

Levy's 12 chapters review the Constitution's Bill of Rights amendments one by one, putting them into the context of their author James Madison's intentions, antifederalist arguments against the national government, older state bills of rights, and English history. Each chapter repeats a well-known story succinctly, with contemporary political commentary and no footnotes, for the benefit of the many lawyers, judges and citizens who have never heard the basic outline. Each of these historic rights first entered jurisprudence when judges and lawyers reconstructed (and misrepresented) their own legal traditions to protect fundamental human liberty against the power of the state.

Not that Americans always respected their own new standards. Thomas Jefferson himself drafted a bill of attainder against Tories, plainly violating Virginia's Declaration of Rights, by making it "lawful for any person . . . to pursue and slay Josiah Philips" (a Tory leader) "and any others who have been his associates." So rights entered American culture gradually. Praised yet violated, they gave judges (as Jefferson admitted) a "legal check" against oppressive majorities, provided that judges possessed the courage to face down public opinion and defy their own government's will.

Sir Edward Coke had exemplified this courage in the 17th century when he issued a series of common-law writs against the ecclesiastical Court of High Commission, binding the canon law, clergy and king in a web of (largely invented) common-law "precedents." The drafters of the U.S. Constitution and the founders of the American legal system had Coke in mind when they created the Bill of Rights and the federal judiciary to protect the fruits of centuries of English history.

Leonard Levy hopes that 300 pages of history will straighten out the Rehnquist court, whose jurisprudence often rests (as he sees it) on methods "about as valid as reading the entrails of a chicken." Levy's criticism of contemporary judges for manipulating history runs counter to his own scrupulous account of the history itself, and particularly his comments on the Ninth Amendment, in the best and final chapter of his book. The Ninth Amendment provides that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Even the most cautious revolutionaries, such as Alexander Hamilton, recognized that these "sacred rights of mankind" do not rest on musty records. "They are written, as with a sunbeam, in the whole volume of human nature."

Levy concludes that judges should follow their illustrious predecessors by using the common law and the Constitution to protect all rights "which the framers might conceivably have meant to safeguard, at least in principle."

Thus, the original intention of the framers was that judges should surpass the framers' original intentions. Leonard Levy shows how the best judges have always done so, to the lasting benefit of freedom, whenever justice and authority collide.