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Jewish World Review Dec. 31, 2001 / 16 Teves, 5762

Nat Hentoff

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Once again, our freedom is under siege -- ON the eve of the New Year, it's good for a columnist's soul, or its equivalent, to confess error, and the impetus almost invariably comes from readers.

For one example, Thomas Wilson of Washington, D.C., notes that I missed a vital point when I praised the late Supreme Court Justice William Brennan for opposing capital punishment on the basis, as Brennan said, that "the most base criminal remains a human being possessed of some potential, at least, for human dignity."

But, Mr. Wilson noted, Justice Brennan voted with the majority of the Court for Roe v. Wade which, in essence, says Mr. Wilson, "declared unborn children to be nonhuman and, although innocent of any criminal wrongdoing, not entitled to the fundamental protections contemplated by the Constitution."

That was Justice Brennan's major error as a jurist. He was a practicing Catholic. I have no religious beliefs, but I know scientifically that once the sperm and egg are united, there has come into existence a human being, distinct from all other human beings.

That a majority of the Supreme Court has chosen to rule that these human beings are not "persons" under the Constitution, is of the order of the Dred Scott decision which cast an entire race of human beings -- black Americans -- out of the Constitution. Another of my Supreme Court heroes, William O. Douglas, also failed, in Roe v. Wade, to protect the most vulnerable of his fellow human beings.

Another reader, Richard Dixon of Virginia, caught me in a flat-out historical error. My correction is particularly pertinent in this time of national danger. I had written that the Constitution was not ratified by the states until the Bill of Rights (the first 10 Amendments), were added. I was wrong. The Bill of Rights was added after the ratification.

What I had jumbled up in my mind was that a key part of the initial resistance to ratifying the Constitution was the absence of a Bill of Rights protecting individual Americans from violations of their fundamental liberties by the new federal government.

Virginia's George Mason, who drafted his state's Declaration of Rights in 1776, from which Thomas Jefferson drew in writing the Declaration of Independence, was a delegate to the Federal Constitutional Convention. Opposing the ratification of the Constitution which, when ratified, had no specific protections of free press or free speech, among other basic liberties, George Mason emphasized that "freedom of the press is one of the great bulwarks of liberty."

Alexander Hamilton disagreed because, he said, such basic liberties "must altogether depend on public opinion, and on the general spirit of the people and of the government. If the people want those freedoms, it will have them."

However, James Madison pointed out in a letter to Thomas Jefferson that rights solely dependent on majority public opinion could be curbed, and even extinguished, when public opinion changed. As our history demonstrates, he was right. Jefferson had already agreed.

Consider the state of public opinion as revealed in the First Amendment Center's First Amendment Survey, released on July 4, before the Sept. 11 terrorist attacks.

In this national survey, 46 percent believe the press has too much freedom, and 71 percent believe "it is important for the government to hold the media in check." Moreover, only 53 percent strongly agree that "newspapers should be allowed to publish freely without government approval of a story, and only 57 percent agree strongly that "newspapers should be allowed to criticize public officials."

In all these categories, there are small percentages of Americans who "mildly agree" with upholding these freedoms in the Bill of Rights. But the First Amendment does not speak of "mildly" protecting free speech and a free press.

Had George Mason, James Madison, Thomas Jefferson and others not successfully lobbied for adding the Bill of Rights to the Constitution, our liberties would be uncertain, as they were during the time of the Alien and Sedition Acts of 1798 (which were denounced by Jefferson), the First World War, the 1920's Red Scare, and the reign of Joe McCarthy.

Many Americans, having been silenced and sometimes imprisoned for exercising freedom of speech and of the press, were later rescued by the Bill of Rights.

However, there are signs that a majority of Americans are willing, once again, to suspend the First Amendment rights of other Americans who appear to be insufficiently patriotic. And John Ashcroft tells us that dissent gives "ammunition to America's enemies."

But dissent is a vital part of our heritage.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.

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