Liberty Lies in the Heart


Rockville. -- My friend Anna Kozlowski was deprived of her civil rights this summer. When she turned on her radio, only one station came in up and down the dial. When she went out with her friends, groups of more than five were prohibited. Ironically, she was at the same time teaching her students about the Bill of Rights.

Anna was teaching at an American-sponsored high school in Guatemala when its president, Jorge Serrano, suspended its constitution and dissolved its congress and supreme court. Mr. Serrano's power grab lasted only a week, in large measure due to widespread opposition among the citizenry. Newspapers defied his censorship orders, and his military backers soon lost their nerve and advocated a return to constitutional rule.

Could such a thing have happened in America? Why not? On this first Monday in October, when the U.S. Supreme Court traditionally begins its term, a tempting answer would be that the American doctrine of judicial review prevents the executive and legislative branches from taking unconstitutional action. But Guatemala had a constitution and a supreme court, which declared Mr. Serrano's actions unconstitutional. The president just didn't listen.

A similar incident occurred in American history. In the 1830s, President Andrew Jackson openly defied the Supreme Court's ruling that the Cherokee tribe had complete sovereignty over its lands. The state of Georgia had asserted otherwise, in an attempt to open Cherokee territory to white settlers. Chief Justice John Marshall, writing for the court, declared that Native American tribes were "domestic dependent nations" not subject to state law.

Said Jackson of the court's ruling: "John Marshall has made his decision; now let him enforce it." Under the terms of the Indian Removal Act of 1830, which Jackson actively promoted, the Cherokees were moved to new lands west of the Mississippi River. In 1838, about 4,000 Cherokees (more than 25 percent) died on the "Trail of Tears," a forced march from their native lands to present-day Oklahoma. So much for judicial review.

A more recent example of the limited power of the Supreme Court is the civil-rights movement. Despite the court's unanimous ruling that America's schools should be desegregated "with all deliberate speed," many government officials resisted the decision. Only after thousands of people risked their lives -- and many died -- was equal protection of the law finally enforced.

In The Federalist No. 78, Alexander Hamilton argued that the Supreme Court was "the least dangerous branch" of government, because it had neither the power of the purse, as did Congress, nor the power of the sword, as did the president. Yet it is to the judiciary that most Americans look to guarantee their rights. This is a mistake.

Judge Learned Hand warned of this problem during World War II when, faced with the rise of the Nazis, he said: "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it."

Justice William O. Douglas echoed Judge Hand's sentiments 20 years later: "What our Constitution says, what our legislatures do, and what our courts write are vitally important. But the reality of freedom in our daily lives is shown by the attitudes and policies of people toward each other in the very block or township where we live. There we will find the real measure of a living Bill of Rights."

To Judge Hand and Justice Douglas, the real protectors of liberty are not constitutions or courts, but citizens. The people of Guatemala knew that last summer. On this first Monday in October, it's a lesson we Americans should not forget.

Linda R. Monk is the author of "The Bill of Rights: A User's Guide," which won the American Bar Association's Gavel Award.

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