The rights you hold were won in someone else's suffering

The Washington Examiner poses a question worth sitting with: when the professor protests her firing, when the landowner protests the permit board's quiet confiscation of his acres, when the gun owner protests a denied carry license — who gave them the legal ground to stand on? The answer, the piece suggests, runs through the prison sentence of a communist. I will not pretend to recall the case itself; what I can say is that the shape of this story is one I would have recognized in any century.

A right without a mechanism of enforcement is a promise without a guarantor. This was the central failure of my own era's federal design. We proclaimed rights with magnificent language — language I helped draft — and then left citizens to enforce them through courts that had no clear instruction to vindicate those rights against state governments. The Fourteenth Amendment, ratified in 1868, was the generation after mine attempting to close that gap in blood and law alike. It did not close it fully, and the courts spent decades deciding how far its reach extended.

What the Examiner's account illustrates — and here I mark this as inference from the lead, not from the full text before me — is that the doctrine of incorporation, the legal theory by which the Bill of Rights was applied to the states through the Fourteenth Amendment, did not arrive as a gift from the powerful. It arrived, as so many liberties do, through the hard case: the unpopular defendant, the despised political tendency, the person whom polite society would gladly have seen silenced. Liberty, to mean anything, must protect the speech and conscience of the person you would most prefer to suppress.

This is a lesson I tried to apply in my own time, with uneven success. I believed in freedom of political opinion as a structural necessity, not a courtesy. A government that can silence one faction for holding wrong ideas has licensed itself to silence all factions when convenient. The communist, the monarchist, the abolitionist, the atheist — the republic either shelters their conscience or it shelters no one's. The moment we carve exceptions for unpopular views, we have merely replaced a king with a majority, and majorities can be every bit as tyrannical as any crown.

I confess a further discomfort here, one I would be dishonest to omit. Those who wrote the Declaration and the Bill of Rights — myself among them — held enslaved people in bondage while writing of universal liberty. That is not a small footnote; it is the central moral wound of the founding, and the Fourteenth Amendment exists in part because we did not finish the work we claimed to begin. The rights that amendment secured, and the doctrines that amendment later produced, are in some measure the republic correcting the founders' most grievous failure. I honor the correction.

The citizen reading this today should take from it a single durable principle: the rights you invoke in the easy case were purchased in the hard one. An educated republic knows this history and guards it accordingly. The moment you permit the government — or any private body with governmental power — to narrow the rights of the defendant you despise, you have begun to narrow your own.