The Constitution, as ratified in 1788, contains a few provisions guaranteeing individual right and liberties. For example, Article Ⅰ, Section 9 prohibits the suspension of writ of habeas corpus except in cases of rebellion or invasion; Article Ⅲ， Section 2 guarantees trial by jury in criminal cases except in cases of impeachment; Article Ⅵ, Section 2 prohibits the use of religious test as a qualification for public office.
The power structure of the federation serves as an additional safeguard for individual rights and liberties. First, by dividing the federal power among the three governmental branches and by providing for checks and balances, the Constitution limits possible misuse of power and protects the rights and liberties of the individual. Second, by granting the powers enumerated in the Constitution, express or implied, and by denying those not granted, the Constitution makes the goverment of the United States one of limited powers and, as a result, the demands the government can make of the individual are limited.
However, during the battle over the ratification of the Constitution, the states strongly objected to the fact that the Constitution did not contain a bill of rights. These states proposed amendments. From these came the first ten amendments to the Constitution, known as the “Bill of Right”. The Bill of Rights today is the main source of basic rights. It guarantees, among other things, the freedom of expression, the freedom of the press, the freedom of religion, the right to assembly, the right to be seure in one’s home, the right to bear arms, the right to due process in judicial and administrative proceedings.
The due process clause of the Fifth Amendment is particularly worth nothing. It guarantees that no person “shall be deprived of life, liberty, or property without due process of law”. Due process of law is thought to mean that any law that potentially can deprive one of life, liberty or property should contain certain basic procedures to assure fairness. Such procedures include an impartial hearing, the right to appeal, the right to call witnesses on one’s be half, the right to have a lawyer argue one’s case, and the right to a speedy and public trial in criminal cases. There rights are generally considered to be the sorts of safeguards needed to assure fairness in carrying out laws that would have devastating consequences for an individual.
At the time of its adoption, the Bill of Rights was intended to serve as a restriction only upon the national government. However, the Fourteenth Amendment, adopted in 1868 at the end of the Civil War for the main purpose of protecting blacks in their newly won freedoms, contains two most important provisions in its first paragraph. It prohibits the states from depriving any person of life, liberty, or property, without due process of law or denying any person… the equal protection of the laws. These two clauses, at the time when they became part of the Constitution, did not inclube the specific rights enumerated in the Bill of Rights. However, these rights are considered so fundamental that most of them have been incorporated through judicial interpretation into the Fourteenth Amendment Due Process Clause. Today, the individual rights guaranteed by the Bill of Rights which limits the federal government, through judicial incorporation into the Fifth Amendment Due Process clause it now binds the federal as well as state governments.
Federal legislation is also a source of basic rights. The Voting Rights Acts in the fifties, sitxties and seventies of the 20th century, for example, are direct efforts by Congress to implement the Equal Protection Provision. Very often, however, Congress relies on other legislative powers in combating racial discrimination. Thus, Congress has used its commerce power to remedy discrimination in public accommodations. It has also used the spending power to cut off federal funds to grantees who discriminate.
In an age of massive government, the task of securing individual rights and liberties becomes especially difficult. How to reconcile the competing demands for liberty and equality from different interest groups? How to provide sufficient protection for minortity and individual right in a majoritarian democracy? Does the Constitution only impose negative prohibitions or does it also impose affirmative duties on the government? Are the constitutional provisions addressed only to government officials or do they apply to private individuals or institutions? What are the proper roles of the courts, the legislature and the executive in resolving these problems? These are the questons confronting America i defining and redefining basic rights.