One distinctive feature of American policymaking is the way it’s driven in part by individual citizens’ rights and liberties. How are those defined? Our first stop is the Bill of Rights — the first 10 amendments to the Constitution.
The framers originally figured a Bill of Rights wasn’t needed. But not everyone was willing to take the benevolence of the federal government on faith. James Madison agreed to draft such protections as freedom of speech, due process of law and reserving power to the states; the amendments were ratified in 1791.
We’ve been arguing about them ever since. What makes a search “unreasonable,” and prohibited under the Fourth Amendment? What constitutes “cruel and unusual punishments”? What is “due process,” anyway? (Stephen Colbert said that “due process just means that there’s a process that you do.”) And is there a right to privacy lurking in the shadows cast by the amendments’ text?
All this is complicated and controversial. When the First Amendment says “make no law” abridging the freedom of speech, does that really mean no law? Can you shout “fire” in a crowded theater? What about seditious or inflammatory or obscene speech?
This episode traces some of these arguments, focusing on the timely question of free expression. But all these questions are perpetually timely. Is it better to release a guilty person because of too much due process, or to convict an innocent one because of too little? When does national security override personal freedom? Is it okay to watch over or read the communications of people who haven’t done anything yet, in case they do? History suggests that all these questions must be answered in specific ways that rely on specific circumstances — and that the answers will vary over time.
Given the complicated balance between an individual’s rights and society’s needs — between liberty and security — we will be debating the Bill of Rights for as long as we have one to debate.