Edwin Van Winkle was born a long time ago, no one knows exactly when. He first surfaced as an obscure constable in colonial America, where he supported the authority of British soldiers to enter people's homes indiscriminately and tear up their furniture with bayonets looking for violations of the Stamp Act.
The colonists were infuriated at these general searches, but Edwin said that only the guilty need worry. "If a person is innocent of a crime," he said, "then he is not a suspect." The colonists thought otherwise. Later, after the revolution, they passed the Fourth Amendment to the Constitution to protect themselves against unreasonable searches.
Edwin next turned up in New York in 1788, where he opposed efforts to add a Bill of Rights to the fledgling Constitution. "The unamended Constitution is itself a bill of rights," he said. "We don't need all these restrictions on the government's authority. Let democracy reign without limit!" But most of the early Americans were a bit more distrustful than that, and thought it was important to keep even a democratically elected government off their backs, especially with respect to such fundamental rights as free speech, freedom of the press, freedom of religion and various procedural rights guaranteeing a fair trial.
Edwin's views were rejected again. In 1789 the Bill of Rights was added. Two years later, three-quarters of the states ratified it, making it part of our fundamental law.
No one knows what happened to Edwin Van Winkle after that, but it is rumored that he fell asleep for a very long time. Some say he woke up with a start sometime after the Civil War to argue that the Fourteenth Amendmend shouldn't be passed. "This proposed amendment," he said, "is nothing less than reverse discrimination. It's morally wrong to pass laws specifically designed to benefit certain people on the basis of race."
Edwin also objected to the broad language of the proposed amendment. "The scope of this constitutional amendment is breath-taking," he said. "It overrides the authority of the states to govern their own people. It explicitly prohibits states from making or enforcing any law that abridges the privileges or immunities of United States citizens! It bars state governments from denying any person life, liberty or property without due process of law! It even bars states from denying people equality under the law!
"This amendment will end our way of life," Edwin cried. "We need to remember that state and local governments are not inevitably abusive of rights." But those who had just recently experienced slavery were not as comfortable with the prospect of trusting state and local governments. The Fourteenth Amendment was passed and later ratified.
Edwin Van Winkle was outraged. "Never before has the principle of federalism been dealt so politically violent a blow," he raved. Then he went back to sleep.
Recent stirrings indicate that something has awakened Edwin again. Perhaps it is the Bicentennial. In any case, he has surfaced, in his old constabular form. He has been making speeches to the American Bar Association, giving interviews to national magazines and filing briefs with the U.S. Supreme Court. He seems astonished at the changes that have taken place in America while he slept.
"My God," he has exclaimed, "what is going on here? The Bill of Rights was designed to apply only to the national government. But look: state governments can't pass laws requiring prayer in public schools, local police can't grill criminal suspects without telling them they have a right to a lawyer, local legislatures can't restrict a woman's decision about whether to bear a child. Why, even the right to vote can't be limited by state governments anymore!
"We need to get back to the original intentions of those who wrote the Bill of Rights. I know what those intentions were because I was there. It's true, I opposed the Bill of Rights even then, but I can tell you no one in 1789 dreamed of requiring a warrant before a telephone could be tapped. Indeed, no one even mentioned the telephone, as far as I recall. So how could the Fourth Amendment apply to telephones?
"And what is this business about the First Amendment protecting television and movies? Or even radio.
"I tell you, we've got to get back to original intentions, and limit the Bill of Rights to what the Founders had in mind. Those who framed the Constitution chose their words carefully. The language they chose meant something. It is incumbent upon the Supreme Court to determine what that meaning was."
Some have suggested that Edwin's ideas are unprecedented. But that's only because they are talking about this century. Edwin has answered such critics sharply: "This is not a shocking new theory; I have been asserting it since colonial times."
He is right. He and others like him have said it all before. Such views were rejected in colonial times by those who rebelled against King George; they were rejected in the late 18th century by those who wrote the Constitution and the Bill of Rights; they were rejected after the Civil War when the Fourteenth Amendment was passed; and they have been rejected over and over again for more than six decades by both liberal and conservative Supreme Courts.
But the upcoming celebration of the Bicentennial of the Constitution and the Bill of Rights has apparently awakened Edwin Van Winkle again, this time in a less obscure position. The First Amendment being what it is, we must tolerate his views and combat them if they are taken seriously. Soon he will go back to sleep.
Poor Edwin. He wasn't in tune with the 18th century. Think of how out of step he must feel today.