Bill of Rights returns to Philly, will debate about police brutality and torture claims follow?

A Q and A with Jeffrey Rosen, president of the National Constitution Center.

An early draft of the Bill of Rights.
Hillary Petrozziello

Amid the heated national debate on the Senate's report alleging torture by CIA officers and sustained protests about decisions by grand juries to clear police involved in the deaths of Black men in Ferguson and on Staten Island, the National Constitution Center (NCC) unveiled a new exhibit — featuring one of 12 surviving copies of the Bill of Rights.

City Paper contributor Jon Hurdle asked NCC President Jeffrey Rosen whether the document's appearance here might spark more debate about the constitutional questions at the heart of these events. Here is an edited version of that conversation, which took place on Dec. 12, a few days before the exhibit's opening.

City Paper: What does the Constitution say about the themes that come out of the Senate's CIA report, and does the fact that the Bill of Rights is just about to appear in Philadelphia put the National Constitution Center at the center of the debate on the report?
Jeffrey Rosen: The debate about torture raises constitutional questions, as does the debate about race and crime in Ferguson, and the mission of the National Constitution Center, which comes from Congress, is to disseminate information about the U.S. Constitution on a nonpartisan basis.

So, we view it as our role ... to host debates about the leading constitutional questions of the day, to present the arguments on both sides, and let viewers and readers and listeners make up their own minds.

There are many constitutional issues raised by the torture reports. The most obvious thing to note is that it's only because of the Bill of Rights and the Constitution that we have a system where the Senate is checking and strongly criticizing the executive branch, and that's a good thing. The founders would have expected no less.

There are also constitutional questions raised about whether the alleged conduct of the CIA violated the Constitution or not, and what should be done about it.

CP: And if it did, in what respects did it violate the Constitution?
JR: Right now, I have to speak in my role as head of the Constitution Center and just say that there are many serious constitutional issues that have to be discussed, and we'll present debates on those issues to examine the arguments on both sides. And there are arguments on both sides. The current director of the CIA is strenuously disputing that the Constitution was violated, and praising the CIA for its conduct.
It's absolutely crucial for the country to have a vigorous debate about the meaning of the Constitution in light of these allegations.

CP: So, one of the amendments from the Bill of Rights that would be under discussion here is that of the prohibition on cruel and unusual punishment, right?
JR: The answer is yes; some will allege that the conduct violated the Eighth Amendment, yes.

CP: Regardless of what legal scholars might say is up for debate here, I would think the majority of the public would say upon reading that Senate report that there's a case to be answered here, isn't there, on cruel and unusual punishment?
JR: Yes, it does, along with the requirement that liberty may not be deprived without due process of law, in the Fifth and 14th amendments as well as guarantees of habeas corpus in the Constitution itself.

CP: Would the same apply to the requirements on unreasonable search and seizure, the provision of a grand jury, and the right to a speedy trial?
JR: Yes, all those provisions could be invoked in light of these allegations.

CP: Mr. Brennan of the CIA has been quoted as saying that he thinks that we should draw a line under this debate and move on. Does the presence of the Bill of Rights in Philadelphia right now suggest that that's not going to happen? Do you see that as a way of drawing attention to this national debate?
JR: There are strong arguments on both sides on whether or not there should be legal consequences for the officers who engaged in the alleged conduct. Nevertheless, constitutional debate is a good thing for America; it's always healthy to have an informed and vigorous discussion about what the various provisions of the Constitution mean, and to the extent that the current allegations raise constitutional questions, I think it's great that the return of the Bill of Rights to Philadelphia will encourage people to participate in those constitutional debates.

CP: What constitutional issues are raised by Ferguson?
JR: [They] include whether the Police Department in Ferguson engaged in a pattern of unconstitutional behavior that could amount to a legal violation in its search-and-seizure practices. And also the role of the grand jury in the American system; whether the standards for indictment are too low or too high; whether prosecutors are reluctant to indict the police or not; whether the states are able to police themselves or whether the federal government has to take a more active role — all of these important questions have constitutional dimensions and are important to debate.

CP: You've already initiated podcasts on the issue of Ferguson. Are you going to do the same with the torture report? For people who visit the National Constitution Center to look at the Bill of Rights, are you going to put it into this very contemporary context?
JR: It's not scheduled now, but I would not be at all surprised if we have a podcast on the CIA report soon. Podcasts are designed to look at the most hotly contested constitutional issues of the day ... so it would be natural for us to take it up. [Editor's note: A podcast was created, and posted on Dec. 19. To listen to it go here, to the National Consitution Center website.]

CP: If there's a concern out there that Ferguson and the CIA
case have knocked American values off course — Senator Feinstein talked about it being a stain on the country — is there some hope that this refocusing on this se­minal document will reorient the national debate in some way?
JR: The one thing that unites Americans is the Constitution and the Bill of Rights, and the documents themselves are our proudest achievement. So even when our government falls short of the standards that are set out in the documents, their existence calls us back to the task of stating what our highest aspirations are.
At a time when America is being criticized around the world, we can remain proud that we have a constitutional system that encourages criticism and debate rather than shying from it.

"Constituting Liberty: From the Declaration to the Bill of Rights," through 2017, National Constitution Center, 525 Arch St., 215-409-6700, constitutioncenter.org.