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INTRODUCTION  . , .,   .  The advent of the twenty-first century, coupled with the close of the Rehnquist Court (1986–2005), provides a timely opportunity to review the place of the Bill of Rights in American life and our constitutional order. Scholars often, though sometimes misleadingly, define the U.S. Supreme Court by reference to the term of the chief justice. Some chief justices—perhaps even the majority—do not exert sufficient intellectual or judicial leadership to warrant the appellation in fact, but William Rehnquist does not fit this category . An initial assessment of his tenure suggests that the Court, more often than not, did reflect his influence and leadership. Although he lacked the public presence of the two men who preceded him as chief justice, he led the Court in a more decidedly conservative direction than had his immediate predecessor, Warren Burger, whom President Richard Nixon had chosen specifically to halt, if not reverse, the liberal thrust of the Warren Court, especially its expansive interpretation of individual rights. The jurisprudential landscape covered by the Bill of Rights looked significantly different at the end of the Rehnquist years than it did when he took office. The essays in this volume, written for a general audience, examine the significance of the Bill of Rights in modern society. Although informed by a historical perspective, the authors focus on contemporary issues and explore the current understanding of the Bill of Rights. First published in 1993, the essays have been thoroughly revised and expanded to address the impact of the Rehnquist years, and three new essays—those by Suzanna Sherry, Ken I. Kersch, and Randall T. Shepard—are included. American thinking about rights has evolved over time. The framers of the Constitution made a conscious decision to omit a bill of rights. They reasoned that it was unnecessary to restrain a federal government of limited powers. The framers also believed that state bills of rights offered adequate protection to individuals. During the ratification debates, however, the AntiFederalists used the absence of a bill of rights as a powerful weapon to oppose the proposed Constitution. Supporters of the Constitution found it politically necessary to promise a federal declaration of individual rights in order to win ratification. The Bill of Rights as proposed by Congress in 1791 was a legacy of the Anti-Federalist critique of the Constitution. The Bill of Rights has not always occupied a central place in our constitutional dialogue. Consistent with the intention of the framers, the Supreme Court concluded in Barron v. Baltimore (1833) that the Bill of Rights applied only to the operations of the federal government. Each state was restricted solely by its own bill of rights. This did not change until the end of the nineteenth century, when the Supreme Court in Chicago, Burlington and Quincy Railroad Company v. Chicago (1897) concluded that the just compensation principle of the Fifth Amendment’s takings clause was an inherent part of due process and thus applicable to the states through the Fourteenth Amendment. In the early twentieth century the justices began gradually to extend other provisions of the Bill of Rights to state activity. Many provisions of the Bill of Rights pertaining to the rights of criminal defendants were not applied to state proceedings until the 1960s. Throughout much of our constitutional history the Bill of Rights played a secondary role in shaping individual liberties. Indeed, many rights that Americans assert today, such as a right to privacy, are not even mentioned in the Bill of Rights. Historically, rights were most commonly defined by legislative bodies and popular conventions. As the Bill of Rights was applied to the states, however, the Supreme Court became the major organ determining the substantive content of rights. During the Warren Court era (1953– 1969) the justices expansively interpreted freedom of speech and religion, the rights of criminal defendants, and the rights of racial minorities. The interpretation of the Bill of Rights remains a matter of intense debate . Several important themes characterized the jurisprudence of the Supreme Court under the leadership of Chief Justice William H. Rehnquist. The first was federalism. Rehnquist sought, with mixed results, to shift power from the federal government to the states. In this connection, the Rehnquist Court began to view more skeptically congressional exercise of authority under the commerce clause. Second, the justices narrowed the procedural protections afforded persons accused of crimes. The Court was generally more sympathetic to law enforcement officials than to criminal defendants. Third, it took steps to revive meaningful...


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