Vanderbilt Law Review


Tony A. Freyer

First Page



The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical and philosophical issues, these essays clearly achieve the editors' goal of promoting "a fresh and lively dialogue that probes contemporary controversies over the scope and protection of individual rights."

Central to this dialogue is the fundamental tension between individual and community rights claims. Americans disagree about the practical application of rights guarantees largely because those guarantees acquire meaningful content principally within the context of community expectations and authority. As abstract principles, rights exist in a vacuum. When it comes to the exercise of rights, however, the vacuum is filled with various social interests that attach to sometimes competing claims to these rights. Settlement of these conflicting rights claims requires government intervention. At least in constitutional democracies such as the United States, this intervention creates a public space within which individual, group, and local and national communitarian conflicts are resolved. In practice, government intervention often restricts individual and group rights, yet it also permits majoritarian institutions to formally sanction and even broaden rights claims. Thus, the community's power to curb or destroy rights coexists with its authority to sanction and expand rights.

Conflicting rights claims also create struggles to secure legitimation from constitutional institutions and authorities. The power of courts, legislatures, and law enforcement agencies to resolve conflicts involving individual and community interests and to administer appropriate remedies rests on an official interpretation of constitutional provisions. This interpretation determines the legitimacy of the actions of not only individual and communitarian interests but also governmental bodies and officials charged with implementing constitutional provisions. Bodenhamer and Ely's collection of essays addresses the legitimation issue in a variety of contexts. This issue appears in perhaps its most familiar form when essay authors explain and evaluate particular doctrines established by the Supreme Court that pertain to such matters as the rights of the accused, the death penalty, symbolic speech, and the incorporation of the Bill of Rights into the Fourteenth Amendment's Due Process Clause. Here, the issue involves not simply whether the Court's doctrines, for policy reasons, should legitimate either an expansion or a contraction of rights claims. The larger implication is whether elected and other non-judicial state or federal officials more appropriately should determine the legitimacy of rights claims. This point also bears upon the question of the extent to which the allocation of legitimacy should take into account the original intent of the framers of the Constitution and the Bill of Rights.