Our family recently celebrated Independence Day in classic American style, by hauling our two kids and grandma to upstate New York to take in the grandeur of Niagara Falls and a spectacular fireworks display.  Along the way, we got a dramatic reminder of why certain American values embodied in July 4th’s celebration of freedom are worth preserving.  As we strapped our six-year-old into her car seat at the Buffalo, New York car rental outpost, she discovered a razor blade in a side pocket of the car.  Pretty scary.  It got even scarier when, as we looked around the car, we discovered a dozen more blades scattered throughout the interior.  After we quickly removed ourselves and our belongings from the car, the attendants searched the vehicle.  In the trunk, under a carpeted mat next to the spare tire, they found a large zip-lock bag full of pills that was clearly not purchased at the neighborhood pharmacy.

After mortified car rental agents quickly upgraded our rental and thoroughly inspected that car as well, we were on our way.  When we crossed the border en route to the Canadian side of the falls, we began to contemplate fully the potential danger that our daughter’s discovery had averted.  If our car had been stopped and searched near the border by border patrol agents, customs officials, or state troopers, we would almost certainly have ended up in detention, trying to credibly explain how a huge bag of drugs and apparent paraphernalia ended up in our car without our knowledge or consent.  As African Americans from New York City, we’d also have had powerful stereotypes to overcome.  If our car had been stopped and searched, would law enforcement officers have believed our explanation, particularly if the car rental agency told authorities they thoroughly clean all cars before renting them to new customers?  If we had been detained, how quickly would we have secured counsel to represent us, and what interrogation methods might law enforcement have used?  We were still discussing the chilling possibilities the next day, when President Bush announced he will soon make his first appointment to the U.S. Supreme Court.

These events brought home to us in an intensely personal way why the candidate the President nominates and the Senate confirms must be committed to upholding the rights of those suspected of crimes – among them, the right against unreasonable searches and seizures, the right to adequate counsel, the right to confront one’s accusers, and the right to be presumed innocent until proven guilty.  These rights, so often derided by politicians as loopholes and technicalities, are essential to our freedom.  They help to check the awesome power of the state over the individual, and to ensure a system that seeks justice rather than conviction by any means necessary.

The historical roots of this American philosophy of justice run deep.  In declaring their independence from Britain in 1776, the thirteen American states charged King George III with “injuries and usurpations” that included obstructing the administration of justice, undermining the independence of the judiciary, and depriving the colonists of the benefits of trial by jury.  Fifteen years later, the Founders made specific those elements essential to a fair criminal justice system in the Fourth, Fifth, and Sixth Amendments to the Constitution.  "A bill of rights," Thomas Jefferson wrote, "is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."

The Supreme Court has picked up where the Founders left off, expressing how fundamentally important these rights are to a fair criminal process.  In Miranda v. Arizona, the case requiring the now familiar warnings that law enforcement officers must give prior to custodial interrogation, the Court called protecting one’s right against self incrimination “the hallmark of our democracy.”  And in Gideon v. Wainwright, which recognized the right to counsel even if one cannot afford it, the Court said “[t]he Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.”  Unfortunately, over the last two decades, federal courts have slowly but surely eroded many of the rights protecting the suspected and accused.  Courts have found that defense lawyers who were drunk or asleep during the trial nevertheless constituted “adequate” counsel, and that many searches are “consensual” when the subject of the search clearly did not feel free to refuse.  The Supreme Court has even allowed police to stop motorists for pretextual reasons, like traffic violations, when their real goal is to search the vehicle because they suspect wrongdoing wholly unrelated to traffic – suspicion that often arises because of the race of people in the car.

If the nomination hearings for Judge John Roberts, who President Bush would like to see replace Justice Sandra Day O’Connor, are informed by the hot button topics of the day they will likely focus on issues like abortion, gay marriage, and affirmative action. In the cacophonous weeks ahead Senators must also probe whether Judge Roberts will uphold the fundamental rights of the suspected or accused enshrined in the Bill of Rights. As our family learned on Independence Day, and as many more families learn each and every day, you never know when you might need them.

Kirsten D. Levingston directs the Criminal Justice Program at the Brennan Center for Justice at NYU School of Law.  Alan Jenkins is Executive Director of the Opportunity Agenda.

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