Evening star., 1941-12-15
National Bill Of Rights
Restricted in Wartime
Writer Tells How 'Guoronties
Were Suspended in Periods
When America Was Invaded
Bu Bertram Benedict.

By Bertram Benedict.
The Bill Of Rights, which became
part of the Constitution $50 years ago
today, accentuates the issues at stake in
the present war. 1t proclaims the es-
sential British American credo Of gov
ernment, that the individual possesses
certain inherent rights which the state
may not abridge, whereas the core OF
the NaZi-FaScist credo is that no indi-
vidual right may stand in the way of the
aggrandizement of the state.
The authors of the Constitution failed
to insert in it bill of rights simply be-
cause they believed one unnecessary
much as it would have been needless to
specify that the President, the members
of Congress and the judges should not be
scoundrels. Hamilton wrote in No. "a of
the Federalist that such "aphorisms" as
bills of rights would sound much better
in a treatise of ethics than in conSti-
tuition" But the people preferred that
assurance be made doubly sure, and the
Constitution was ratified only with the
understanding that it would be aug
mented by Bill of Rights as soon as
the first Congress could act.
The Bill of Rights was based on bills
Of rights previously adopted by Virginia
Qargely the work of George Mason and
other States. These State bills of rights,
in turn went back to the Declaration of
Rights adopted by Parliament in 1889 in
the English Revolution, to the Petition
of Right proclaimed in 1923 by Parlia-
ment (sitting as the high court and thus
binding judges, and, further back, to
Magma Carta itself. 1t is to be noted
that only the first of the 10 amend
ments to the Constitution which make
up the Bill of Rights are statements of
what Congress may and may not do.
The ninth provides additional insurance
by stipulating that when certain rights
retained by the people were specified, this
did not mean that the people did not
enjoy others not specified. The tenth
amendment reaffirmed the fundamental
character of the Federal Union by de-
claring that the States or the people, as
the case might be, reserved" the powers
not delegated to the United States nor
prohibited by the Constitution to the
States.
How far war properly may restrict the
Bill OF Rights would seem to depend on
the character Of the war. For instance.
in the Civil War when the very soil Of
the United States was under invasion or
threat Of invasion, the Supreme Court
allowed almost all the central guarantees
Of the Bill Of Rights to be suspended
But in the first World War, when there
was no danger of invasion. the Supreme
Court allowed less stringent suspension
OF the Bill Of Rights. Justices Holmes
and Brandeis submitted many minority
opinions demanding stricter observance
of the Bill Of Rights than the majority
desired. 1t may be presumed that the
majority of the court today will follow
the Holmes-Brandeis philosophy of civil
liberties during the last war.
Justice Brandeis for unanimous court
laid down the proper wartime criterion
in the Schenck case Of 1919. Some ac-
tions legitimate in peace properly could
be prevented in time Of war, but only If
they created CLEAR and present" dan
ger to the war effort. Such a danger
was presented by an anti-war speech of
the Socialist. Eugene V. Debs, which
might well discourage enlistments. JUS
tices Brandeis and Holmes disagreed
with their brethren when these held that
clear and present danger was presented
also by distribution of anti-war or anti
Government pamphlets or by publication
of a German-language anti-war news
paper.
Part of the Espionage Act of 1917-18
now Is operative. 1t forbidS, in time Of
war, false statements intended to hinder
the war effort. and wilful attempts to
cause insubordination in the armed
forces or to obstruct recruiting. And the
mails are forbidden to any matter which
violates the above provisions, or which
urges treason or forcible resistance to
the law. In 1917-18 some Of the severest
limitations on civil liberties were i'm
posed by State action under State anti
sedition laws, many of which still are on
the statute books.