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On May 25, 1787, the Constitutional Convention first met in Philadelphia. Out of those months from May to September, 1787, was born our Constitution founded on a shared radical belief in the rights and freedom of the individual; a desire to create government of the people, by the people and for the people; and a commitment to keeping in check the power of any government authority system which might overwhelm the people and erode our personal freedoms. It is a social contract, founded on a revolutionary belief in the value and rights of the individual, in which we are not to be “subject” to the government, but in which the government instead owes us something and we owe something to each other, that same idea which is embodied in our jury system. It represents the most radical departure from previous forms of government and an adventure that we are still on as a nation. Within that Constitution (through amendments ratified as our Bill of Rights on December 15, 1791) are written our most treasured freedoms: our rights to free speech and political protest, our rights to self-defense, our rights to be free from the overreaching authority of government to invade our homes or persons without just cause, our rights to not be forced or coerced by government authority to make any statements against our own free will and interests.

On May 25, 1787, the Constitutional Convention first met in Philadelphia. Out of those months from May to September, 1787, was born our Constitution founded on a shared radical belief in the rights and freedom of the individual; a desire to create government of the people, by the people and for the people; and a commitment to keeping in check the power of any government authority system which might overwhelm the people and erode our personal freedoms. It is a social contract, founded on a revolutionary belief in the value and rights of the individual, in which we are not to be “subject” to the government, but in which the government instead owes us something and we owe something to each other, that same idea which is embodied in our jury system. It represents the most radical departure from previous forms of government and an adventure that we are still on as a nation. Within that Constitution (through amendments ratified as our Bill of Rights on December 15, 1791) are written our most treasured freedoms: our rights to free speech and political protest, our rights to self-defense, our rights to be free from the overreaching authority of government to invade our homes or persons without just cause, our rights to not be forced or coerced by government authority to make any statements against our own free will and interests.

These rights and freedoms are daily brought to life in our courtrooms by our commitment to defending them. Since 1791, important battles have been fought in every “small” case in our courtrooms. In them, our courts have, on their best days, repeated their dedication to our founding principles. As Judge William O. Douglas wrote in the 1959 case of Henry v U.S. 361 US 98,104, “it is better, so the Fourth Amendment teaches us, that the guilty sometimes go free than the citizens be subject to easy arrest.” As Judge William Brennan insightfully reminds us, “uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.” And as the Supreme Court held in the seminal Miranda case, it is only through requiring an advisement of our rights that we can attempt to empower our fellow citizens and provide a counter-balance in the face of otherwise overwhelming government authority, “without which no statement obtained from the defendant can truly be the product of his free choice.”

As U.S. Supreme Court Justice William Brennan poetically wrote (and who doesn’t love an Irish poet?), reflecting on the past and on the future, “if we see last Term’s few decisions resolving conflicts between the individual and the government in favor of the state as a departure, nevertheless we know it is a departure that must be short-lived, for in our society the quest for the freedom, the dignity, and the rights of man will never end.” He then compared this quest, which is always young and alive, to the “poor old woman” in Yeats’ play.

BRIDGET: Did you see an old woman going down the path?
PATRICK: I did not, But I saw a young girl and she had the walk of a queen.”

U.S. Supreme Court Justice William Douglas, a champion of the individual, wrote that “the liberties of none are safe unless the liberties of all are protected.” A Living Bill of Rights (1961), p. 64. Reminding us of the meaning of the Constitution, Justice Douglas wrote: “The Constitution is not neutral. It was designed to take the government off the backs of people.” The Court Years, 1939-1975: The Autobiography of William O. Douglas (1980), p. 8. “The Fifth Amendment is an old friend and a good friend, one of the great landmarks in men’s struggle to be free of tyranny, to be decent and civilized.” An Almanac of Liberty (1954), p. 238.

Today, let us take a moment to consider this precious freedom which we have been given ~ not by the government, but as a natural right, as recognized by the Ancient Greeks, by Enlightenment philosophers, and as given voice to in civil and human rights movements throughout history. The question is, how we will protect this freedom in our courtrooms and in our lives every day? As Judge Douglas famously reminds us: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.” As the Irish poet Dylan Thomas writes, “do not go gentle into that good night. Rage. Rage. Against the dying of the light.”

On the last day of the Constitutional Convention when leaving Independence Hall, Benjamin Franklin was asked by a lady waiting in the crowd outside, “well, doctor ~ what have we got. A republic or a monarchy? “A Republic, if you can keep it” is what he told her. And I think that is the message to all of us. As we approach the Fourth of July, may we never lose sight of our guiding principles as a nation and of that spirit of rebellion and intent to lift up the individual which is at the heart of our Constitution.

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