Booknotes

ELLEN ALDERMAN, AUTHOR, "IN OUR DEFENSE: THE BILL OF RIGHTS IN ACTION": Well, some people think it has, and that actually came from some Senate hearings where somebody said, "Don't laugh when I bring up the Ninth Amendment." The Ninth Amendment refers to retained rights or rights reserved by the people, but it doesn't say what those rights are. It has raised the question: can you protect rights under the Constitution that are not specifically listed there? Probably the most controversial one of these rights would be the right to privacy. The word "privacy" never appears in the Constitution, yet we protect it. That's actually done under the 14th Amendment, but it raises the same question that's under the Ninth, which is can we protect rights that aren't specifically listed. People have just not been using the Ninth Amendment and that's why it's become a little something of a joke because it's there in the Bill of Rights, it's one of the big ten and nobody ever uses it in court.

CAROLINE KENNEDY: The Third Amendment, I'd say, has been working very well for 200 years. We haven't had any soldiers quartered in our homes. I think it just shows us that the Bill of Rights was written to prevent specific grievances that existed in colonial times as well as to evolve and apply throughout the years to come. That was a big problem during the time of the Revolution. British soldiers were quartered in peoples' homes. They had to feed them. The soldiers were able to listen to their conversations, and so it was a big problem and the Bill of Rights banned it.

KENNEDY: Well, actually some people have found it to relate to this right to privacy that Ellen was talking about. It's one of the places that many people find an intent on the part of the framers to protect our privacy. They also did in the Fourth Amendment, which guards our homes and papers and effects against unreasonable searches and seizures, or in the First Amendment, the freedom to think and read. So it's one of those things that supports the general other notions that we do have the right to be left alone.

ALDERMAN: In the Bill of Rights in general? We've been very encouraged by this tour or whatever you call it in going around and talking with different people like you, but also we've been on call-in shows and we've had people call in. For instance, when we were in the Washington area, a lot of people called in and said, "I'm a government employee. Can the government search my car or my locker at work?" They wanted to know what their rights were, and they knew what the issues were. We had some pretty interesting and detailed discussions with these people, so I think, contrary to the popular belief that's out there, which is that people don't care about the Bill of Rights or they want to do away with it, we found the opposite, which was very encouraging.

KENNEDY: We met in a civil rights class at Columbia Law School, and I think both of us were struck by the stories of the people that we were reading about in our case book, and we thought maybe that would be a way of helping people realize that the law is not just dry and technical or too complicated for them to understand, but it's about people every day. So our idea was to go out into the field and talk to people whose lives have been affected by the Bill of Rights.

We went to northern California, and we spoke to an Indian tribe up there. They're fighting to save their sacred lands. We spoke to a young couple whose home was ransacked in Appalachia. We spoke to people down here who had been victims of FBI harassment. We spoke to a woman whose stove was repossessed, and she fought all the way to the Supreme Court to protect her stove. So it's something that affects your life every day, and we wanted to kind of give a sense of the people behind the document to show its human face.

ALDERMAN: Well, Alan and Margaret Mcsurely were civil rights workers, first in Washington and then in Appalachia in Kentucky in the 1960s. They went down to Pike County, Kentucky, and were doing a lot of work trying to educate the poor and also picketing against the mining down there. They basically incurred the wrath of the people in this close-knit community, and one night the sheriff showed up at their door with many deputies and searched their home but, in fact, ransacked it -- took everything that they owned including their papers for their work but also their college exams, their phone bills, their tax returns, their telephone book and kept it for a year. In the course of that time it was turned over to a Senate Committee headed by Senator [John L.] McClellan who was investigating riots in the area. So it became a battle not only with the local authorities but also with the Senate to get their belongings back.

KENNEDY: Well, we spoke to many of the participants, certainly all those almost who are still alive, and we worked from the public record, the trial transcripts. There had been some articles written about this case. As I said, we spoke to the McSurelys themselves.

KENNEDY: Actually none of the people in the story really are still there. Most of the major participants have scattered. So we went to see Alan McSurely in North Carolina and Margaret McSurely down here in Maryland, and Thomas Ratliff, the local sheriff, is in Florida. The trials took place here. Some of the lawyers are in New York. Some of the lawyers are here. So we definitely, I'd say, did most of our traveling, but we did not go to Pike County since that was a long time ago and none of them are there.

ALDERMAN: Well, the Supreme Court says it means that we as Americans all have a reasonable expectation of privacy. That is the standard that's used. Today when they say you cannot search under certain circumstances, a search no longer means just going into your home or putting your hand in a pocket. Today it covers wiretapping, it covers testing your blood or your urine for drugs or alcohol, probably DNA testing, because, as Caroline said earlier, we as Americans have a right, a reasonable right, to be let alone.

KENNEDY: Well, Margaret McSurely -- we were really trying to tell their story and the story of this couple -- had worked for Drew Pearson, and I think had an awakening of sorts when she was one of his secretaries because she was exposed to many of the issues that were going on in the country, the civil rights movement. I think she had been brought up in sort of a traditional mold, and it was only when she went to work for him that she saw that there were people going hungry in this nation, that people were working to have voter registration drives in the South. She turned her back on her more traditional lifestyle and went out to join the movement, so he was involved for that reason. And then there were letters, correspondence between Margaret and Drew Pearson. Her diaries were taken and he played a part. It became wrapped up because Senator McClellan, who headed the Senate committee investigating these disturbances, had a sort of an ongoing feud with Drew Pearson, so the McSurelys felt that they somehow became pawns in this kind of high stakes game.

ALDERMAN: Yes, they had an affair that Margaret's very candid about and, in fact, because of this case is a matter of public record, because when they came that night to their house to take their work papers, they also took her personal letters, love letters and her diary. In fact, it wasn't just Drew Pearson. There were other incidents detailed in the diary that her husband found out about in court. It's an instance of why privacy is so important to us as Americans.

ALDERMAN: The accounts vary, but it was around a dozen. They came in through the front door and the back door, and, in fact, it starts out as we do in the book. Alan and Margaret saw all of these men making their way through the grass around their home and thought that there must be an escaped convict because there were so many armed men coming around their house, and it turned out that they came in and read an arrest warrant for Alan. It started out just being for Alan for sedition against Kentucky. They were initially arrested on charges of sedition.

KENNEDY: Because the local sheriff and some of the officials thought that their work on behalf of the poor was -- they used a very old statute in Kentucky that had been passed after World War I at the time that people were very afraid about Communism and Bolshevik uprising and they thought that the McSurelys were engaged in un-American activities. So they wanted to go in and ferret out this nest of Communists that was in their midst.

ALDERMAN: They did. During the search, they found some papers detailing Margaret's work. She had worked with SNCC [Student Nonviolent Coordinating Committee] and some other of the organizations at that time. The arrest warrant that the deputies came to the house with was for Alan, but in the course of the search, because they took everything, they took some of Margaret's things and a newer arrest warrant was drafted on the spot for her. So they were both taken to jail.

KENNEDY: Their belongings were also to taken to jail, and they challenged the sedition statute. That was eventually declared unconstitutional, but by that time Senate investigators had come and taken their belongings and so then they began what turned into a 17-year fight to get their rights vindicated.

ALDERMAN: Not any longer. They were moving around. They stayed in Kentucky and, in fact, because of space problems, we couldn't detail the entire journey after that. They had some problems with their house being threatened, and they moved to New York. They moved back down. They moved around, but they stayed with the same lawyers, William Kunstler and Morton Stavis. So when you ask what did they do after that, they got a lawyer and that's where the real battle begins. The lawyers not only defended them but turned around and sued the government for this search. They eventually got divorced. They had one child. Margaret was pregnant at the time of the search, and they both started new lives with new families, but they stayed together for the trial.

KENNEDY: Well, it was over sort of a longer period of time. We interviewed them as well as many of the attorneys in the case because this went on for 17 years. Although they stayed with the same lawyers, there were a number of different lawyers who represented the Senate, the local officials, Thomas Ratliff, the local commonwealth attorney who was eventually the only live defendant in the courtroom by the time the final trial took place many years later.

KENNEDY: Well, actually the reason why we included this particular case under the Fourth Amendment, which is one of the most heavily litigated of all the amendments in the Bill of Rights and, as Ellen said, it covers a wide range of issues, was because we wanted to have a case in the book that would show why we have this amendment and what it was written to prevent. This is exactly what was going on 200 years ago and why the framers included the Fourth Amendment in the Bill of Rights -- to prevent this kind of general search, where they could come into your house, barge down your door, and ransack your house without even necessarily knowing what they were looking for, just to see if there was any seditious material inside. That's why the Fourth Amendment talks about a warrant particularly describing the things to be searched and the things to be seized, so that's why we put it in the book.

KENNEDY: Well, the law becomes very, very complicated in this case, and it went off on a qualified immunity as well. Eventually they were vindicated. It was held to be an invasion of their privacy under Kentucky law, and I think they really believe in the system and basically they dedicated their adult lives to fighting for the Constitution.

ALDERMAN: Right.

ALDERMAN: Well, that was the question that Caroline said got a little complicated because once it was up in Washington, you had the question of immunity under the speech-and-debate clause. It turned out . . .

ALDERMAN: Oh, in the Constitution, congressmen have immunity from not just speech and debate but anything they do in furtherance of their official duties under certain circumstances. It's within the halls of Congress. You can say whatever you want on the floor and not be sued for libel. It turned out that whatever Senator McClellan and his aides did with the documents once they got them -- as you said they all looked at them, some of them were put in separate files -- that was constitutional. That could not be questioned under the speech-and-debate clause.

The question became whether the investigator who went down to Kentucky and brought it back up violated the Fourth Amendment. Then the question was did the McSurelys give up any right or any expectation to privacy once their papers were seized. They said, no, it was seized in violation of the Fourth Amendment, and the government said they no longer had any expectation of privacy in it and that they could take it up to Washington. It turned out in the end that on that issue the investigator was covered by immunity. It was for only local invasion of privacy in the way that they returned the documents that anybody had any liability because they returned the documents in such a way that invaded Margaret's privacy because they gave them back to Alan and made Alan look at them one by one. That's when he found out about some of the things his wife had done.

ALDERMAN: No, I don't think it's as simple as that. I think, aside from getting into perhaps matters unrelated to the case, this was, as Caroline said, 17 years, and I think more than just that one incident of returning the documents, it was a strain. Also I think Alan said, and we have it in the book, that he didn't have a right to know about that. It was all things that happened before their marriage, and if she had wanted to tell him, then that would have been up to her, but what enraged him was that all these other people knew it. He said it was like watching his wife be gang raped.

KENNEDY: Right.

KENNEDY: No, the Senate was investigating riots that were taking place in the summer of 1968 across the country, and Margaret and Alan had attended a meeting in, I think, Tennessee, where Stokely Carmichael had spoken and later the same day, a riot or some kind of a disturbance had broken out. That is what they were investigating. It was only because the McSurelys had attended this speech that they became involved in all this. It was a very tenuous link and I think that was what they felt was one of the outrageous things about this.

ALDERMAN: I think it is for the reasons that Caroline and I said earlier in that it came out of a very specific problem, the Writs of Assistance, and going into homes, generally and taking things, but it so sets out a fundamental principle that it can protect us today, as I said, from things like wiretapping and drug testing and all. So the principle of privacy and keeping the government out of your pocket and out of your home is a good one. I think the biggest problem is something that we also mention in the book, which is the exclusionary rule and what is the remedy for a violation.

ALDERMAN: The exclusionary rule is just not for the Fourth Amendment. It's in other areas of the Constitution as well, but if the police seize something of yours in violation of the Fourth Amendment, they may not use that against you at trial. It's excluded. That's way it's called the exclusionary rule, and it's supposed to, therefore, be some kind of way to enforce these rights and hope that the police will act according to the Fourth Amendment or else they're going to lose their case. On the other hand, as one justice said, it may end up meaning that the criminal goes free because the constable has blundered. That's constantly a battle and that's, I think, what we heard when people were saying what about those criminals who get off on a technicality.

KENNEDY: I don't know that we have a favorite. I think the thing that we tried to do in our book, which hasn't really been done, is consider them all together. That's when you realize how amazing the Bill of Rights really is. It's when you look at it as a whole you realize that it is the most comprehensive definition of liberty, I think, that's ever been drafted, and we're awfully lucky to have it. For example, the First Amendment is vital to a democratic society. It's free speech, freedom to associate with others for purposes of political change and free press as well as the freedom of religion. That, you would say perhaps, has the most effect on our daily lives when you read a newspaper or watch the news at night. But, I think, as a whole is when you really realize what the Bill of Rights is.

ALDERMAN: Well, I think that particular poll was they asked them if they knew what the Bill of Rights was, and I think that some people could get probably the First Amendment in all. What Caroline and I found is, in fact, people do know about these rights. They just don't know really where they come from, as Caroline said, that they're all together, that they're unique to us as Americans and maybe not to the extent that it protects them every day and if they ever get in trouble. It's not that people don't care. I think they just don't look at it as all of a piece.

ALDERMAN: They'll be thrilled.

KENNEDY: Well, the first line is my husband and children and my brother. The second line is Ellen's brothers and sisters and in-laws, and the last line, of course, is both of our parents.

ALDERMAN: Well, I grew up in a little town in Indiana and in New Jersey.

ALDERMAN: Lawrence Township, Indiana, south of Indianapolis.

ALDERMAN: College? Cornell University.

ALDERMAN: Yes, that's where I met Caroline.

KENNEDY: In New York City.

KENNEDY: I went to Harvard, and then I went to Columbia.

KENNEDY: I can't really remember. I grew up being interested in issues and public issues. I know many people in my family -- Ellen's family, too -- are lawyers, and many of my friends went to law school. Both of us actually worked in documentary film before we went to law school, and I think that's why, when we got there, that we really responded to the stories of people in these cases. I think that we both kind of have a generally on-going interest in the law, but this was something special to us.

KENNEDY: I did educational films. I worked at the Metropolitan Museum -- one on American history and American art, as well as some for children. Sesame Street Visit to the Museum.

KENNEDY: I graduated 1988, so I went in 1985.

KENNEDY: I'm not, no. I have two small children who this book is dedicated to, so I'm home with them.

ALDERMAN: No, actually, I think I'm with Caroline, that I grew up with it around me because of my family. It was more a question of when I was going to get to it, I think, because after college I did work in documentary films, as well. I just knew I would eventually end up there, I think.

ALDERMAN: No. Just a giant coincidence.

KENNEDY: Yes, we did. We got this idea in a civil rights class taught by Jack Greenberg, who was one of the team that argued the Brown v. Board of Education case. Then we spent a semester studying the idea to see if it would work. We didn't know if there were any cases under the Third Amendment. We found the only one. So we put together a book proposal. It was about 50 or so pages long, and we took it around and we got some interest. So then we actually had to write it, which then took three more years.

ALDERMAN: Well, the writing we did divide up. The rest we didn't, and that's how it worked. We picked the cases together, we did all of the research together, we went on all of the interviews together, and then we discussed them forever. So by the time we got to the writing, I would take this case or Caroline would take that case. We pretty much knew what we were going to do, and then we would go back and do the first draft and pass it back and forth. It's really very difficult to say one person wrote one thing or another.

KENNEDY: No, we wrote it longhand.

ALDERMAN: I wish we were that advanced. We do. We used a legal pad and pencil.

KENNEDY: No, we're trying to think of an idea that we would want to do as much as this. We've got a couple, but nothing really we're sure about.

ALDERMAN: Well, it's usually brought up under the context of the death penalty. Cruel and unusual punishment can include excessive fines and bails and prison conditions, but by far the most controversial aspect of it is the death penalty. Caroline and I, rather than asking the question that's been asked many times before which is should we have the death penalty, looked at the fact that over 30 states do have it and took the next step which is being very seriously discussed in the law today, which is what kind of people should then get the death penalty given the fact that we have it here in America.

KENNEDY: They're two brothers who grew up in Arizona, and their father was in jail most of their childhood. Finally they decided, along with their mother, it was time to help him break out of jail. He was a convicted murderer, and Ricky and Raymond got into the prison, had a picnic cooler full of weapons, and they broke their father and another inmate out of the Arizona State Penitentiary. During their escape, the getaway car broke down. It got a flat tire, and they didn't know what to do. One of the boys went out into the road and flagged down a passing motorist while the rest of them then hid in the bushes and then they all came out. A family stopped to help them, and the boys were going to get some water for the family. They were back in the family's car. They thought that they would switch cars, leave the family with their broken-down car, and keep going on their escape.

While the boys were getting water to leave for the family in the desert, Gary Tison, Ricky and Raymond's father, killed the entire family that had stopped to help them. So the escape continued on and eventually all of them were caught. Gary Tison, the father, was killed in the capture, and the other inmate who had also escaped was captured and Ricky and Raymond were captured and put on trial for murder that actually Gary had committed. We, I think, were somewhat surprised to learn or really realize that you can be put to death in this country even if you didn't actually kill anybody. That was really the question that this case raised. Is it cruel and unusual punishment to put to death somebody who hasn't killed anyone or intended or even attempted to kill anyone? That was the question that the Tison brothers' case raised. They have been on death row in Arizona for 12 years.

ALDERMAN: The trial transcript and the coroner's report.

ALDERMAN: Oh, yes. In fact, we left some things out because we thought that the picture was fairly clear, but, yes, at their murder trial, at their capital case, the coroner testified and the police who came upon the scene testified. Then, of course, there were also investigators' reports, and we read, for that case and all of the others, the underlying documents. Whenever we recreated a scene like that, we did it from the underlying documents, from the public record.

ALDERMAN: Gary Tison and Randy Greenawalt.

ALDERMAN: Gary Tison died of dehydration in the desert after their capture, and Randy is in prison. He is appealing, I believe, on an insanity defense.

ALDERMAN: They are in prison. They are on their first round of appeals now because this case that went to the Supreme Court was actually their original capital case. It was not the subsequent appeals or habeas, so they are there in their 12th year. They've been in Arizona in prison side by side, in side-by-side cells from age 18 to 30 and age 19 to 31.

KENNEDY: Yes, it is.

KENNEDY: Right.

KENNEDY: It's sort of a hobby. We really thought it was important to have pictures of the people in the book, and certainly in the prisons, we were the only people there along with their lawyers, so I took the pictures.

KENNEDY: The 13th, 14th and 15th amendments are the so-called Civil War amendments. They were passed after the Civil War. The 14th Amendment is the way that the Bill of Rights is really applied to all the states and all the people in this country.

KENNEDY: Yes, perhaps.

ALDERMAN: That's the due process clause and the equal protection clause. That's what's used over and over in litigation and also was used to incorporate the entire Bill of Rights against the states.

KENNEDY: These are the post-Civil War amendments which gave blacks the right to vote and equal protection.

KENNEDY: It's the federal income tax. There was no federal income tax until the 20th century.

KENNEDY: Right, Prohibition. Eventually repealed by another amendment.

ALDERMAN: That's a surprising one. 1920.

ALDERMAN: The now infamous Prohibition amendment.

ALDERMAN: Right.

KENNEDY: This was after President Roosevelt served four terms, and then the limit was put on the presidential term.

ALDERMAN: That was obviously during the Vietnam era.

ALDERMAN: Well, some people don't think we should. I think probably the closest it came was the ERA, and we saw that actually go to the states.

KENNEDY: There's a seven-year period in which amendments can pass, and the ERA didn't pass the required number of state legislatures within that time period, so it didn't pass. That's the way it works. It's also set forth in the body of the Constitution, the process by which we can amend it if enough states agree. There's discussion about other amendments -- a balanced budget amendment or privacy amendment.

ALDERMAN: Flag protection. That one came very close, not as close as the ERA, but to protect the flag during the flag-burning controversy.

ALDERMAN: As a general matter? I think it's just right. I think that we saw that with the flag-burning amendment, where it was a very impassioned public debate, as it should have been, and people had their say under the First Amendment, but then when it came down to tinkering with the First Amendment, it didn't happen.

KENNEDY: You're picking all the complicated ones.

KENNEDY: Well, the Sixth Amendment gives us a right to an impartial jury. I'll sort of back into the story by saying that there was a time not very long ago when blacks and women were not serving on juries in this country. In the case of women, the idea was that they should be home in the house taking care of the family, and it wasn't until the 1970s that women actually were doing jury duty in this country.

A woman, Rebecca Machetti, was living in Georgia and she and her husband split up and she moved to Miami in search of a more glamorous lifestyle. She met a man there in a bar, Tony Smith and a friend John Maree. They masterminded a plot to kill her first husband for the proceeds of the life insurance policy. So Smith and Maree drove up to Georgia and eventually the first husband was found dead. Ronnie Akins with his new wife, had only been married three weeks. Rebecca, Tony Smith and John Maree were all convicted of murder. John Maree was the only one that could be placed at the scene of the crime. His fingerprints were found on Ronnie Akins's car, and he turned state's evidence and said that Rebecca Machetti had masterminded the murder and that Tony Smith had carried it out. Smith and Machetti were married by this time. They had two trials for murder. They were both convicted and sentenced to death.

Machetti's lawyers raised the issue that her jury had unconstitutionally excluded blacks and women. You don't have a right to have them on your particular jury, but the pool from which they were drawn grossly underrepresented blacks and women. She fought that issue and was eventually granted a new trial where she got a life sentence and she is still in prison in Georgia. Her husband raised the same issue, but he raised it too late, so the outcome of this case in which three people were involved in this murder was that she has a life sentence and is in prison in Georgia. Her husband, also convicted by an unconstitutionally composed jury, raised the issue too late. He got the electric chair. Then the only man that could be placed at the scene of the crime is out free.

ALDERMAN: Yes.

ALDERMAN: Yes. Women have a right to counsel as well as men if they're accused of a crime where they face imprisonment.

ALDERMAN: Well, that's one of the biggest problems. That is by far one of the biggest problems that Caroline and I both found, and it's particularly in the areas where you need it most, the death penalty area and the areas of serious crimes, because the Sixth Amendment says you have a right to counsel for your defense. That has since Gideon [v. Wainwright], the famous case, been interpreted to say that if you can't afford a lawyer, the state must appoint one for you. But, again, we take that the next step, and in our book we discuss how good does that lawyer have to be. We have the case of a man who was accused of a massive check-kiting scheme involving thousands of documents and checks in several states. The state took, I believe, six years to put the case together. The man who was charged could not afford a lawyer, and he was appointed a lawyer. The man happened to be a 25-year-old real estate attorney who had never tried a case, let alone an enormous white collar criminal case, and he was given 20 days to prepare. The defendant said that was not an effective counsel, and it went all the way to the Supreme Court. It turned out that he lost on that, but it is constantly raised. You're guaranteed a lawyer but how good does he or she have to be, and the courts are still struggling with it.

ALDERMAN: No, this was the Harrison Cronic and the check-kiting scheme out of Oklahoma and his business that he set up.

ALDERMAN: Oh, right that was the one that, in fact, you're on.

KENNEDY: The Sixth Amendment basically gives you the right to a fair trial and to present a defense. This is a case involving a man who was accused of molesting two young girls in a backyard tent. They could never identify him positively as the man who did crawl into their tent. A screen was placed between the girls and John Coy at trial, and that case went all the way to the Supreme Court and it was held that the screen violated his right to confront his accuser, the idea being that the Constitution gives you the right to look me in the eye and say that if you're going to accuse me of that.

KENNEDY: Well, the Supreme Court has approved the use of closed circuit television. It's another example of sort of the system has to catch up with itself. Now what happens often when you have child witnesses is that the child and the defendant actually will be another room and at least the child is not placed in that intimidating courtroom setting. Then the testimony is beamed into the jury which is back in the courtroom.

ALDERMAN: The Bill of Rights came four years after the Constitution, which is something that not everyone knows because the Constitution set up our form of government, the three branches of government, but had nothing in it about the individual, even though it starts "We the people." There was an outcry for these individual rights, and that's when the Bill of Rights was drafted. It comes from the English Bill of Rights and common law and goes all the way back to the Magna Charta.

KENNEDY: Principally James Madison was the man who drafted it. Originally there were 12 amendments in the Bill of Rights but only 10 passed the states.

KENNEDY: One dealing with raises for members of Congress and another dealing with the apportionment of Representatives. So it's interesting.

KENNEDY: Well, there was a debate about it. It was hard enough to get the Constitution itself written and to get everybody to agree on that. Some people thought that it would limit our individual rights to specify them and write them down. Others thought that we needed to write them down because it's only if they're written down that we'll be able to enforce and protect them. So there was a genuine debate, and now it's hard to believe that people actually thought it would limit our rights if they were written down, but there was a lot of people at the time, Alexander Hamilton among them, who were against the Bill of Rights.

KENNEDY: Well, I think he realized that this public outcry would not go away and that the Constitution might not even pass. There were some states that were saying, "Well, we're not going to pass the Constitution, we're not going to ratify it unless there's a Bill of Rights" and then sort of backed up and said, "Unless we are sure that there's going to be a Bill of Rights." So he realized that it wouldn't go away, that this public outcry was very strong. In the First Congress, he sat down and drafted the proposed Bill of Rights. He based it on existing rights and state constitutions and the English Bill of Rights, as Ellen said. So these weren't things that he made up or anything. These were rights that were around.

ALDERMAN: Well, in fact, he was on the other side in this debate at the time, but he was one of the people who spoke up for our individual rights at the time that all of this was being debated. We use his quote there because it ties in with our theme that the great rights don't go away and that they're really written in humankind, that the stories of the law and our rights are really the stories of human nature and our personal histories as well.

KENNEDY: Thomas Jefferson was a big supporter of the Bill of Rights, although he was not a member of the First Congress.

ALDERMAN: Well, George Mason actually drafted the Virginia Bill of Rights which James Madison used in drafting the United States Bill of Rights.

KENNEDY: I think that was what we thought we could really add to this. There are many scholars out there who discuss the fine points of the law, but we thought if we could find stories that people could relate to or be interested in or were difficult and presented difficult issues and did all 10 amendments, that that was sort of our approach.

KENNEDY: Well, her name is Jackie Bouknight. She's a young mother in Baltimore who had been in the foster care system herself all her childhood, who had been abandoned and abused, and then had her own child who was one day found missing. Authorities suspected her of perhaps harming or abusing him. In any case, they were looking for the child, and they asked her, "Where is your baby?" and she said, "I take the Fifth." So it's a very hard thing for the system to deal with. Can you override the Fifth Amendment, which is written into the Constitution, the right to remain silent, in the interest of the welfare of this child? Is the Fifth Amendment a sacred right? There's always a good reason to override it, whether it's in the interest of national security or any number of things, drug trafficking. That was the issue in the case.

ALDERMAN: Yes, we went down to the Baltimore City jail and spoke with Jackie, and her lawyer was there and also the nun who's working with her there in the jail.

ALDERMAN: To this day, Jackie is still in jail and Maurice, her son, is still missing.

ALDERMAN: No, we didn't really talk about that because at the time her case was still pending, so we didn't ask her directly about that. Also she was sort of a difficult interview because, after all, she's asserting her right to remain silent. We had to try to find out from her what her life was like and why she did what she did. She said that she did not want her son to be taken into foster care like she had been.

ALDERMAN: She's now in her early 20s. She was 18, I think, when this all began.

ALDERMAN: Well, now because they lost the Fifth Amendment argument in the Supreme Court, her attorneys are not arguing for her release on other grounds including due process because she's now been in jail for several years but she hasn't been accused let alone convicted of any crime. It's still for contempt. There comes a point where putting somebody in jail for contempt, which is supposed to force the person to comply with the court, can get too long and become punishment.

KENNEDY: Right. I think we found that was perhaps one of the more unpopular amendments. Even though it's perhaps the best known, people do feel that anyone who takes the Fifth must have something to hide, unless it's Oliver North or someone who stands up and says, "People have died face down in the mud for the Fifth Amendment." It is our Constitutional right. The state has to prove its case against you, and you're innocent until proven guilty.

ALDERMAN: That's Rudy and Tammy Linares. That's a particularly poignant story that we followed outside of Chicago. Their little boy, Sammy, when he was six months old choked on a birthday balloon as it was being blown up. They rushed him to the hospital where doctors revived him but just barely, and he was in a coma on life support systems for months when Tammy and Rudy asked for him to be disconnected because there was no hope of improvement. They were told that they would need a court order to do that but that the court probably wouldn't help them anyway. They had no means or knowledge about the legal system. One night Rudy went into his son's hospital room with a gun and held the doctors and nurses at bay while he unhooked Sammy's respirator and then he held his little boy in his arms until Sammy died. Then once his son was dead, Rudy turned himself into the police and said, "I did it because I love my son."

ALDERMAN: Yes, we did. They're in the book because Rudy was charged with murder, and in Illinois it's defined as intentional killing and there's no doubt that he went in the hospital room that night and pulled the plug out of the respirator. It went before a grand jury because under the Fifth Amendment, before you're actually indicted, a grand jury made up of people from the community hears your case. Tammy Linares, his wife in the picture, and others members in the family went and told the grand jury why Rudy did it -- that he did it because he loved his son. After a brief deliberation, that grand jury in Chicago decided not to indict Rudy.

KENNEDY: They're still living in Chicago. They have other children.

KENNEDY: The Second Amendment contains the phrase "the right of the people to keep and bear arms." That's used to argue for a right to have a gun. Actually it very interesting to us because, under the law, there is no individual right to have a gun. Actually, the Second Amendment is read to protect the right of the state through the militia to defend all of us. We followed the case in Morton Grove, which was the first town in America to ban the possession -- not just the sale -- of handguns.

Second Amendment advocates challenged that and said that's a violation of our Second Amendment right to keep and bear arms, and it went to the court. Interestingly the Supreme Court has only addressed the scope of the Second Amendment once and it was in 1939, and they said the Second Amendment has not been incorporated against the states, meaning that the states are free to regulate. They can restrict or not restrict the possession of guns. The federal government, the Constitution, doesn't prohibit that. And this woman, Maureen, was in another suburb near Morton Grove, Oak Park, Ill. Her husband was killed by a man with a handgun in a courtroom. He was representing someone whose ex-husband shot him. Maureen decided to try to ban guns in their home town of Oak Park in his memory.

ALDERMAN: That below her is Don Bennett. The people who object to a gun ban say that they need guns for self defense, and they object to it because they say it's wrong to penalize the victim of the crime here for failing to register or for owning an illegal handgun. You should penalize the criminal. Don Bennett has a gas station and he was robbed and he chased the robbers with his gun and was arrested by the police for violating the gun ban. He says, "Well, you should be going after the robbers. Don't come after me."

ALDERMAN: Almost not at all. That's the amazing thing. Probably the law is clearest under the Second Amendment as far as the courts are concerned. It refers to the national government raising a militia. It is the popular conception that the right to keep and bear arms refers to the individual's right to have a gun. But the courts have never accepted that and, in fact, this case that we researched, the Morton Grove case, was appealed to the Supreme Court, and they didn't take the case because the law is clear.

ALDERMAN: I think to the individual, the man in the street kind of person, it's probably the most important. As Caroline said at the beginning, it's when you pick up a newspaper, it's when you talk on the phone without worrying that somebody's there, it's when you get together with your friends, when you watch the evening news. That's the First Amendment.

KENNEDY: I think people have a pretty good understanding of the First Amendment. There are certainly some tough questions that come up. We have the case in our book of the Ku Klux Klan who wanted to have their own show on public access television in Kansas City called "Klansas City Kable." There were residents of the community . . .

KENNEDY: The top is the Klansman who was going to host the show and underneath is the new mayor of Kansas City, Reverend Emanuel Cleaver, who led the opposition. He said, "This is nuts. This is not First Amendment. The Klan is a terrorist organization. This is not free speech. There is some kind of speech that is so offensive that we don't have to tolerate it." That's always the question under the First Amendment. How much offensive speech do we have to tolerate in the name of a free society?

ALDERMAN: We thought that it was perfect for our book because it raised not only the question of offensive speech that Caroline raised but also the intersection of new technology and the law. One of the arguments the Klan made was that cable television is really the soap box of the future. You can always stand out on the street corner and say what you believe, and now when everybody's getting their information through television, it's these public access cable TV channels that are really the street corner or the soap box of the 21st century and they should be as free as any place else.

KENNEDY: Well, we did. We wanted to talk to people whose recollection of their case would be fresh, and so we went around and tried to find interesting tough current issues in the law and that's one of the approaches we took. We do have some older cases, some landmark cases, in the book of the woman who fought against the sheriff who repossessed her stove, which was a very important due process case. You have to have a hearing before they can come and take your things away. Another double jeopardy case is an old landmark case. So there's a few old chestnuts in there as well.

KENNEDY: Right. There wasn't a lot of choice.

ALDERMAN: That was the easiest one to pick.

ALDERMAN: I'm embarrassed to say no. We've had very favorable reviews, and we're thrilled that people get what we were trying to do. If somebody says they would rather have seen this case instead of another one, that's fine, because there's so much there. That was the hardest part. But for the most part, I think people really got it, and that makes us extremely happy.

KENNEDY: I think, actually, at least recently, it's been going on some of these call-in shows where we found that contrary to the public perception that people don't care, they're not interested, people really do care about the Bill of Rights. They take it very seriously and I think they're very proud and I think made us feel very patriotic and very fortunate to have the Bill of Rights and be as free as we are in this country.

ALDERMAN: We visited a school. We visited at a high school and sat with the kids for several hours talking about this. They had been assigned parts of the book in their class, and that was terrific because they really had a lot of questions. Their free speech questions were a little different. They were about 2 Live Crew and Madonna, but it was the same principle and they got it.

ALDERMAN: Thank you.

KENNEDY: Thank you.