Why the Bill of Rights Was Made
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Why the Bill of Rights Was Made


>>Debra Wall: Good evening.
>>Good evening.>>Debra Wall: No one ever does that. That’s
great. I’m the Deputy Archivist of the United States, Debra Wall. Welcome to the National
Archives to those of you here in the McGowan Theater and also to those of you joining on
our YouTube Channel. Tonight’s panel discussion, “Why the Bill
of Rights Was Made,” is the first public program related to our new exhibit, “Amending America.”
This exhibit opens to the public tomorrow, upstairs in our O’Brien Gallery, and it will
run through September 4, 2017. With the exhibit we begin marking the Bill of Rights 225th
Anniversary with activities across the nation including a traveling exhibit, educational
outreach, and public programs like this one tonight.
When I first heard of the exhibit, I was shocked to learn that there had been more than 11,000
proposed amendments to the Constitution, some narrowly missed ratifications, some came nowhere
close. And whether a long shot or a sure thing, the proposed amendments demonstrate our government in action as prescribed by the Constitution. Before we move on to tonight’s program I’d
like to tell you about two other programs coming to the theater soon. Tomorrow at noon,
Mary Sarah BIlder will talk about her book “Madison’s Hand: Revising the Constitutional
Convention” which shows how digital technologies and traditional textual analysis have revealed
that James Madison revised his notes on the 1787 Constitutional Convention to a far greater
extent than previously recognized. And on Tuesday, March 22, at noon, National
Archives staffer and historian Mitchell Yockelson discuss his new book, “Forty-Seven Days: How
Pershing’s Warriors Came of Age to Defeat the German Army in World War I.” He tells
how General Pershing’s exemplary leadership led to the unlikliest of victories. We’re
proud of Mitch for this work. If you want to know more about upcoming events
and all of our public programs, please consult our Calendar of Events. Copies are available
in the library — I’m sorry, in the lobby. I guess the library — along with a signup
sheet to be included on our mailing list, e-mail, or regular mail. And another way to
get more involved in the National Archives is to become a member of the National Archives
Foundation. If that’s something you’re interested in, we have more information about that in
the lobby as well or you can go to archivesfoundation.org. On to tonight’s presentation. Tonight’s program
is presented in partnership with The Constitutional Sources Project. It’s my pleasure to introduce
our moderator. John Milewski is the Director of Digital Programming and Executive Producer
and Managing Editor of Wilson On Demand for The Wilson Center for Scholars. Previously
he served as Executive Producer, Moderator, and Managing Editor of “Close-up” on C-SPAN.
Please join me in welcoming John and the panel to the stage.
>>[Applause]>>John Milewski: Thank you.
>>[Applause]>>John Milewski: Thanks. Hi, everybody. Good
evening. Thanks for joining us. You have received information on your way
in. And my guess also is if you’re here, you know who these panelists are because that’s
part of the draw. Correct? But let me tell you where they are sitting from your left
to right. On the left is Jack Rakove, a Pulitzer Prize-winning historian from Stanford University.
Sitting next to Jack, we always like a backup Pulitzer Prize-winner, so Joseph Ellis is
also a Pulitzer Prize-winner and historian from the University of Massachusetts at Amherst.
The rose between our thorns, Mary Sarah BIlder, a professor at Boston College Law School and
author of “Madison’s Hand: Revising the Constitutional Convention.” And she’ll be back here on this
stage tomorrow to talk about her book. And Kenneth Bowling, co-editor of the George Washington
University: First Federal Congress Project. Unlike delegates to the Constitutional convention
who are dying to get out of that overheated hall, you’re going to be begging to stay once
you start hearing from this panel. So please join me in welcoming them once again.
Also a shout-out to those of you joining us via YouTube and C-SPAN.
Let’s try something here. If you have a tri-corner hat, this is the time to bring it out. We’re
going to do a little time travel. What I’m going to ask you to do is sort of take us
back in time through the mists of time and paint a picture very briefly, and we’ll go
to each of you, of what the country was like at this moment. Before we start digging specifically
into the Constitution or the bill of rights, if you could help us get a feel for what this
young country was, right, what the atmosphere was like. People talk about how partisan this
town is. Anything like that that could add some color or texture or context to what we
are going to be talking about. Can we begin in the order of introduction
with you, Joseph?>>Jack Rakove: I suppose we would have to
think about our favorite thing. So I say, ok, we want to situate the United States in
the mid 1780’s, so independence from Great Britain has just been won. There’s the somewhat
fragile national government, which was often described as imbecilic in nature, a number
of new governments at the state level which were struggling to deal with the burden of
the public debt. There is potentially explosive movement of population looking to go westward
as soon as the war ends and even before Americans start moving north across the Ohio River,
creating a great deal of mischief with the native people’s resident there. There’s a
whole set of questions about the nature of American commerce with the old world, whether
farmers moving west across the Appalachians would be able to send their produce down river,
down the Ohio, down the Mississippi River into the Gulf of Mexico and reach the markets
they want to reach in the West Indies because the Spanish have closed the navigation of
the Mississippi to American ships. So on the eve of when the Constitution was written,
there’s a number of very open-ended political questions about the nature of Republican government
and masking or overriding whatever, a lot of ferment and turmoil within society itself.
>>John Milewski: Jack, thank you. Joseph?
>>Joseph Ellis: Moving the needle along like 1789, what we now call the Bill of Rights
is created. The Constitution has just been ratified and no one is really clear what it means.
>>John Milewski: Unlike today where we’re crystal clear.
>>[Laughter]>>Joseph Ellis: So we’re in a transitional
moment between the confederation and the Constitution between a confederation and alleged nation.
I think the only thing that people can all agree on is whatever else the American Revolution
means, Washington is the symbol of it. That’s it. And that the institutions we think of
as permanent are just being created — that means the Executive Branch and the Judicial
Branch as well — so that it’s an in between moment in American history of some significance.
And people living in that moment are usually confused. Like now.
>>[Laughter]>>John Milewski: Thank you.
Mary?>>Mary Sarah Bilder: Hard to trail two Pulitzer
Prize winners. What else could I say? I guess I would just add that it’s a moment that looks
very different than the one we live in today. So political power isn’t held by someone like
me. I mean, held by you guys, my left and right. Women obviously don’t participate.
I think it’s a country that’s beginning to struggle very explicitly with the question
of slavery, the states in the north like Massachusetts and Vermont are abolishing slavery. The southern
states are moving to embrace slavery ever sort of stronger. And it’s a moment where
people are very aware that how they decide on that issue really will tilt the fate of
the nation.>>Kenneth Bowling: I’m going to follow up
on something that Joe said and say a few things about George Washington that I don’t think
people realize. Washington had a real vision of what the United States would become, and
he tried to implement that to the best of his ability despite a Congress that wouldn’t
put up with his ideas. He supported federal money for education, for the arts, for the
sciences. I think by the time he was elected president he had already become an abolitionist
and he definitely believed in a multi-racial society, unlike many of the founders who believed
in sending the slaves, former slaves, back to Africa. Washington did not see that as
a possibility and he also wanted to embrace the Native-Americans, the Indians, as part
of American culture.>>John Milewski: Thank you.
Now that we’re back in time we’ll dig into this notion of the Bill of Rights. The first
question I want to ask is about why it didn’t make the first cut. There were people who
wanted it in there. The Constitution itself, three people who refused to sign, as a result,
led by George Mason. Was it just that the delegates had had enough, they needed to get
out of there or they didn’t think it was necessary? What are the main primary reasons it didn’t
make the first cut?>>Joseph Ellis: It’s always impossible to
explain why something did not happen. It’s like Sherlock Holmes, the dog that did not
bark or something. They gave lots of reasons in the ratification process. Madison said,
well, we don’t really need the Bill of Rights. This is not a monarchy, it’s a republic. We
don’t face the same pressure to protect ourselves from tyranny in that regard. Also, the right
specified our enumerated rights, needn’t worry about them. He also said once you start listing
rights, you might leave some out and then you’ll be sorry. Those are all arguments he
made as a defender of the document that had passed. As we are going to see, he’s going
to change his mind fairly quickly. Jack knows this more than I do but I go with
they were tired and wanted to go home.>>Jack Rakove: It works up to a point but
there’s a deeper set of explanations which is we can’t think anachronistically about
what a bill of rights was supposed to do unless we realized that the very idea of the functions
of the Bill of Rights was meant to fulfill was, itself, evolving.
You go back to 1776 when Americans start writing constitutions at the state level, eight of
those constitutions have bills of rights attached to them. But you have to use the word attach
somewhat carefully. In only two cases were bills of rights — first in Pennsylvania 1776
and then Massachusetts in 1780 — were bills of rights actually incorporated into the body
of the text of the Constitution. And the other states, they are thought of
primarily as a set of principles. The fact is, a set of guidelines that both officials
in government, perhaps citizens out of doors, should respect and try to adhere to. But they
weren’t fully regarded as legally enforceable commands. They were not yet understood in
the way that we now understand today. The first eight amendments reinforced by Section
1 of the 14th Amendment. So a big part of the story I think really
pivots on the idea that one has to understand that, A, the nature of the written constitution,
what does it mean have a written constitution as supreme law, that’s a dynamic concept,
something that was not fully articulated in 1776; and, B, the role that a bill of rights
would play in some process of constitutional formation, that also had to be worked out
as well. The way I would characterize this is I think
in 1776, primarily — some people go further but primarily the idea of having a bill of
rights was understood as the kind of statement of general principle that should accompany
a transition between regimes, from a colonial regime to a Republican regime.
The idea, though, that — what we think of naturally if it’s incorporated in the Bill
of Rights, we have some basis to litigate. And there’s institutions out there, public
interests, law groups and so on which would be happy to carry our cause forward. That
idea was not available, or certainly not available in its full-blown modern form, at the time
these were adopted. So the one question arose towards the very
end. Both were kind of mavericks. They are kind of oddball politicians in different respects.
They suggested — Mary may have thought more about exactly how much conversation was spent
discussing it. But however much there was, there wasn’t that much because many of the
framers would have felt this is a kind of ancillary, really unnecessary, function. We
don’t need to do it. Now, Mason says we can do this in a couple of hours. I think his
idea was just copy the Virginia Declaration of Rights.
>>[Multi-voice overlap]>>John Milewski: So what you’re describing,
there was no hostility; it’s just we don’t need it.
>>Mary Sarah Bilder: We so imagine the Bill of Rights, like it’s been said, the way we
understand it in the 20th Century. If you look at the constitution itself and you think
about what were the classic rights that appear in things like the English bills of rights,
a lot of them are in the main constitution so we forget those.
>>John Milewski: But not the ones we talk about.
>>Mary Sarah Bilder: Because we take them for granted. So habeas corpus is in the Constitution
itself, the right to a criminal trial in a jury case is in the Constitution itself, the
expo facto clause, no title of no ability. And then the fact that you could take office
without a religious test, which is incredibly important at a time when that exists in most
states. And the Constitution has all of those in the main document. Those were the great
— this has been the year of the 800th anniversary of Magna Carta, so many of us have been on
the Magna Carta circuit which has been interesting, talking about Magna Carta. And if you think
about that tradition and what was so important to people at the revolution that mattered,
a lot of them were things like right to representation, the legislature can’t be pro — I don’t even
know how you pronounce that word. So in some ways the Constitution is more robust with
respect to rights than we may see from our perspective.
>>Joseph Ellis: The way they should have seen it and didn’t see it in September 1787,
and Madison will come to see this gradually but the ratification process makes clear,
that failing to add a bill of rights was perhaps the biggest mistake they made.
>>John Milewski: What’s the measure of that? Public opinion?
>>Joseph Ellis: Once the ratification process starts and the debates begin in 12 of the
13 states, the recommendations they make for amendments, the vast majority of them would
have been answered if, in fact, a bill of rights had been added. And if it had been
added, it would probably have been inserted into the text of the document, not as a codicil.
But they should have seen this. They didn’t. I think they were tired. They wanted to go
home, as I said, because the way in which a bill of rights was perceived within the
ratified conventions was this is a document which declares a zone where the government
cannot do things. And given the fear of consolidated government at the national level, which is
the central fear of the Anti-Federalist position, the Bill of Rights ameliorates that or if
you had a bill of rights, it says, no, no, we’re not going to do this, we’re not going
to do that, we’re not going to do that. And that’s the political context in 1789.
>>John Milewski: So is this when this Federalist, Anti-Federalist, divide becomes clarified
during the ratification process?>>Joseph Ellis: If you try to read all of
the state-to-dates –>>Clarify is not the term that I would use.
>>Joseph Ellis: It’s so complicated. Every state is different. Within states, different
sections are different. The most important fact about that, as I read it, is that there
is no — they cannot have a national conversation. The only people that can have a national conversation
are the people who contribute to the Federalist Papers. But the vast majority of the people
in the state ratifying conventions are talking about things from a state or a local point
of view. They cannot think nationally. So what — we haven’t created a nation. We’ve
created a framework for a national government that will serve as an incubator for an emerging
nation over the next 20, 30 years.>>John Milewski: Who are the main voices
that emerge on both sides of this equation, those who think we need to get back to work
and create this bill of rights or these amendments and those who think it’s fine as is? Who are
the main voices that emerge?>>Kenneth Bowling: I think Madison obviously.
We don’t need a bill of rights. The state constitutions have bill of rights. We can’t
specify everything so it’s dangerous to specify anything. And then the argument that the federal
constitution really can’t touch the individual, only the states can touch the individual.
So Madison on one side with Hamilton and the Federalists in general who didn’t want to
admit that there was anything wrong with the constitution at all, although Hamilton did
admit — denying the residents of Washington, D.C. the right to votes with a mistake and
tried to get New York to oppose an amendment to change the Constitution regarding that.
George Mason, on the other side, the man who, in effect, gave us the Ninth Amendment who
said to the Federalists, don’t give me this nonsense about just because we’re listing
some rights doesn’t mean we have no more. We’re only listing the ones that are historically
— we fought for historically since 1215 or whenever, in the Anglo-American world. You
just have an amendment that says the Ninth Amendment.
Just because we list certain rights doesn’t mean we don’t retain all the other rights.
For instance, the right to bear arms is a Ninth Amendment right. It’s not a Second Amendment
right. So I would postulate my friend Madison and my friend Mason, maverick though he might
be, as the two main players in this. And some people even try to credit and say that Mason
is the father of the Bill of Rights.>>Jack Rakove: I think I would tell a slightly
different story. I think the point of emphasis that does help something of a national perspective
— Joe is right to say that, you know, it would be a mistake to exaggerate the extent
of having a national audience in an 18th Century culture but there is a dramatic moment that
takes place within a few weeks of the German and the Constitutional convention which does
help to focus attention on the question. It happens on October 6, 1787 when James Wilson,
a rather arrogant Scottish immigrant who had settled in Pennsylvania, made a successful
career as a lawyer and politician, gives a public speech. Wilson was the leader of the
Pennsylvania Federalists and he was a known member of the Pennsylvania delegation to the
Federal Convention. And Wilson begins with the — makes the kind of classic statement
of the argument that if we start — if we start identifying particular rights, the implication
of that very process of identification will be that we’ve actually granted the national
government powers that, in fact, we haven’t granted.
So, if, for example, you want to have a freedom of religion amendment, you know, the equivalent
of the Free Exercise Clause or the Establishment Clause, from Wilson’s way of thinking, which
has a certain genius to it but is politically quite problematic, the idea of identifying
a right might be taken to imply that a power has also been granted. He does this in public.
And the Pennsylvania Ratification Convention, it’s not the first convention to me but it’s
really the first one to have any newspaper coverage, which is distinctly slanted in lots
of ways toward the Federalists’ perspective. But Wilson makes similar arguments that the
press picks up on in October, November of 1787.
So Wilson kind of gets the Federalists out there in a way that I think he over argues
the point, there’s a kind of theoretical validity to what he’s saying but for a variety of reasons
it’s not the most persuasive argument, particularly to culture which is rights-oriented and very
sensitive. So that creates a kind of focus. So in some ways I disagree —
>>This is the Alexander Hamilton Federalist? He brings up that this could be dangerous.
Is that Wilson suggesting this is a danger?>>John Milewski: The danger is if you want
to identify rights you want to protect, you might be implying the existence of powers
not delegated. It’s a product of a 10th Amendment kind of argument in that sense.
>>John Milewski: If we bring up anything that Alexander Hamilton wrote or said, we
have to do it in rap or hiphop in honor of the current hip-hop show.
>>Mary Sarah Bilder: I think this point is incredibly important. One of the sort of great
ironies of the fight over ratification is that for the opponents of the Constitution
— and I very much agree with the late Pauline Maier that using the term Federalist is not
necessarily useful. But for the people who opposed it in trying to explain all the things
they were anxious about they made clear how robust and elastic the Constitution actually
was. That was part of the reason that the Constitution ends up being read, I think,
in such a sort of unfolding way is that in this enormous moment in a lot of states where
people debated things, the people who were trying to think it kept explaining all the
different ways that the government might have power. And ironically that sort of stuck.
Then they add the amendment. But there is this way that I think this debate is incredibly
important in creating some of the rhetorics that we use today about how we interpret the
Constitution.>>John Milewski: Speaking of that, right
now when you talk about amending the Constitution, there’s almost a religious fervor and opposition
to it that it’s a sacred document that can’t be touched. What was the attitude towards
a notion of amending right after the ink was dry?
>>Joseph Ellis: The original answer to your question is who is the star — Madison is
the star of this story. Ok? To argue that Madison is the father of the Constitution
could be controversial, could be argued. Madison is the father of the Bill of Rights. He single-handedly
wrote — he’s the one who decided we needed one. He wrote it himself. And the eventual
document sent up to the states is a reshuffling of the cards he gave them.
So it’s really a Madison story. And he’s the one who concludes on the basis of the debates
that have occurred in the ratification conventions — this is a speech he gives on June something
before the House when he presents the Bill of Rights to them, that we should realize
there are a lot people that have concerns about this document, that are good patriots,
and we need to reassure them that rights they take seriously have not been violated.
And for that very reason I intend to submit to you, I do submit to you — he makes nine
amendments. And what’s interesting is when Madison is writing these in the spring of
1789, what he’s got in front of him is the roughly 100 to 125 recommended amendments
that the various state constitutions had made, six states had made them. So he’s clearly
attempting to respond to the criticism from the states. That’s what this is. I’m listening
to you. On the other hand, all of the states that
recommended amendments made recommendations that federal requests for taxation can be
in some sense voluntary.>>[Laughter]
>>Joseph Ellis: You don’t really have to pay. There will be different ways to negotiate
this. He simply deep sixed that. We’re not going to bring that sucker up. Ok? He put
one in that wasn’t in there, namely no state shall pass law-abiding, freedom of conscience,
freedom of the press, trial by jury, which is his attempt to sneak in the notion that
the federal government really does have authority over these matters. And in some sense the
Supreme Court doesn’t get to this position until the 20th Century.
What he’s doing — one of the members of Congress — how do you say his name? Adonis Burke from
South Carolina — he must have been having a metaphoric epiphany on this particular day.
He says there’s a whirly — there’s a frothy dessert called a whirly blurb or something.
He calls what Madison is proposing whirly blurb. Also, it’s a tub thrown out to the
whale. Meaning, Madison is appeasing the states, those people who are reluctant ratifiers,
but he’s doing them a minimum; that is, he’s given them the minimum amount of what he can.
And that is exactly what he is doing. He’s providing them with some assurance but not
with the level of assurance that the most reluctant ratifiers — so Madison is addressing
public confidence in the document.>>Mary Sarah Bilder: He is also addressing
his own election. You have to step back. It’s really quite incredible. He runs for the Senate.
He loses. He then claimed he didn’t really want it after all but then he runs for the
House and they redistrict –>>He’s blocked.
>>Mary Sarah Bilder: They redistrict it hoping Monroe. And as part of that campaign, the
standard story says that he decides he has to say he’s for all essential rights. And
I don’t know how you feel. I think he honestly changed his position. I don’t think it’s just
a fake campaign position. Jefferson had written him arguing that there were advances to rights
and advances to moving. And I think Madison, for him, it’s both — the House — he has
to run for re-election two years later.>>John Milewski: And Jefferson shouldn’t
be left to inference?>>Mary Sarah Bilder: Madison has the classic
Federalist arguments. Jefferson says it would be a useful tool for the judiciary. That’s
one that Madison then absorbs. He says the famous half a list is better than none. Jefferson
sort of says — it’s interesting because Jefferson is usually the big theory guy and Madison
is usually the pragmatist. And on this Madison is the sort of theory guy, here’s all the
reasons we don’t need one. And Jefferson is like here’s some pragmatic ones.
And I think Madison importantly comes to the conclusion that the people will believe in
rights, even if it doesn’t work at the governmental level, that if you have a bill of rights,
if you have rights somehow, the people will come to believe them. And then as a working
out principle in the system, they will somehow be important. That’s the thing he cares a
lot about.>>Joseph invoked the tub in the whale phrase
and you wrote a worthy article invoking that.>>That’s right. You did
>>Kenneth Bowling: Swift wrote seamen have a custom when a whale approaches a ship, to
toss it a little tub and the whale will amuse itself with the tub and the ship, ship of
state, can sail away safely. So what happened here was the states that proposed amendments
to the Constitution, over 400 were proposed. Some of them were not formally proposed because
the — formally proposed because the Federalist majority like Maryland and Pennsylvania to
accept them. But there were 400 proposed, about 100 ideas. 70% of which or more were
structural amendments that Joe was talking about, two-term president, etc. A minority
of them were what we call civil rights, civil liberties amendments. About 30%. And when
Madison drafted these amendments that he proposed to the First Federal Congress, he basically
ignored almost all of the structural amendments. They are going to come up in the debate because
the Anti-Federalists in the house are going to bring them up. The debate in the First
Congress is not about the content of these amendments.
I remember when Leonard Levy, the historian, used to send his graduate students to my office.
Each one was supposed to find out what the First Congress said about each of those amendments
and they said nothing. The debate was all about where to put them, weave them into the
Constitution, put them at the end, or whether we need them at all. The tubs of whale, which
many members of the First Congress used as an example, is exactly what Madison’s strategy
was. Don’t harm the Constitution. Just put things there that will get it — will convince
the opposition, the anti-federals in public that this is a good — that the Constitution
is good. He wanted to win over the Anti-Federalist following. He knew there was no hope of winning
over the leadership like Patrick Henry. And I would add that we were very unfair to Eldridge Gerry, to use the term gerrymander when Patrick Henry Henrymandered in the First Federal Congress.
>>One of the things implicit is Madison is overly afraid, many of the congressman thought,
of a Second Amendment — excuse me, a second convention movement, that both Patrick Henry
in Virginia and George Clinton in New York, most especially the Clintonites in New York,
were threatening to petition the states and call a second convention to listen to the
recommended amendments, which was really a recipe for undoing the Constitution. Ok?
Now, Jay, up in New York, and even Hamilton was telling Madison don’t worry about this,
you’re overly concerned about it. But for him, this was — he was worried about it.
And this threatened the Constitution. So part of his motives in writing the — what becomes
the Bill of Rights is to kill the idea of a second convention by undermining what they
are standing on. He is saying, quite explicitly — and this
is a famous quote. He doesn’t really believe in bills of rights. He doesn’t believe the
bills of rights serve much of a purpose. Jack’s written about this at some level. And his
experience in Virginia is what he’s based on. He doesn’t believe that the Bill of Rights
is going to do what everybody in the 20th and 21st Century America now regard as the
essence of the Bill of Rights.>>Kenneth Bowling: I don’t want to give Jefferson
too much credit. Most of those letters Madison got after he introduced the Bill of Rights,
the so-called Bill of Rights. But the one thing in that letter, Jefferson’s letter,
that’s so important — and you mentioned it — Jefferson said just wait until they get
into the hands of the judiciary. And it took until the 20th Century.
But I would like to comment very briefly on actually how radical these proposals were.
Madison included stuff that he got from the state conventions but he also put in his own
language the amendments that he proposed included the right to safety, the right of revolution,
and the individual right to bear arms which, of course, many of the states had also proposed.
And the committee took — just tossed out completely the preamble that he wrote about
safety and the right of revolution. And they know what they to the Second Amendment, with
his individual rights to bear arms. They rewrote it.
The point was people were taking guns and closed down courts — in Massachusetts, the last year and a half, we’ve
got to put the brakes on this. So all the radical aspects of those amendments that Madison
proposed I think were pretty much –>>Joseph Ellis: The second amendments become
very controversial in the 21st Century. I have a different reading on this than you
do. I think the Second Amendment was a response to four states that were requesting a guarantee
against the standing Army and that the language of the Second Amendment, as he wrote it, was
— begins with the assumption that defense will be in the hands of the militia.
>>Kenneth Bowling: Not as he wrote it.>>Joseph Ellis: It is.
>>Kenneth Bowling: As he wrote it, it was the absolute individual right.
>>Jack Rakove: That’s wrong.>>Joseph Ellis: You’re wrong on this. In
my and jack, I think, view, the right to bear arms is a derivative right deriving from the
service in militia not a natural right — there’s nobody worried about having your right to
bear arms denied because nobody’s — it’s not something that’s happened to anybody.
So in my view, the Heller decision of 2008 is about as unconstitutional as any decision
I’ve ever seen and absolutely preposterous.>>John Milewski: Jack, did you want to weigh
in on this?>>Jack Rakove: Of all the things I’ve done
in a career, getting up near 45 years or whatever, there’s nothing I’m prouder of having done
than having written a brief in DC v. Heller. There was a story of which — the principle
author of that brief. To echo what Joe was saying, you’re just dead
wrong on this. Madison’s original language is about the militia. There’s a very limited
discussion, an extremely limited discussion, of an individual right to bear arms. It’s
usually tied to the so-called decent of the Pennsylvania minority, the Pennsylvania Anti-Federalist
convention. There’s a little bit of noise from New Hampshire on this point. But overwhelming
bulk of the conversation, discussion, on the right to bear arms in 1787, 1788, 1789 was exclusively tied to the militia question– whether we should call it Anti-Federalist or not, I don’t care about the name. But it emanates from the idea that because Congress
in Article 1, Section 8, Clause 16 has the authority to kind of override the states in
terms of organizing, arming and disciplining the militia, some zealous Anti-Federalist
and also some southerners were worried about the future of the militia in terms of slave
rebellion stake out the position that it may be that the militia’s institution of self-defense
is somehow eroded or deprived of its benefits. The key point is Justice Scalia, if you read
through his opinion — I hope he’s gone on to a place of fitting rest, wherever it may
be but Scalia’s abuse of historical evidence in the majority opinion in DC v. Heller is
so scandalous, it’s so disgraceful, it’s so meanly worded like so many of his opinions
that nobody should take that seriously. And the fact that Justice Breyer, the McDonald
case, the incorporation case, a couple of years later said I think correctly the historical
record needs to be reconsidered. Scalia was dead wrong about this matter.
But the idea — it’s perfectly fine to say as individuals we have a right — a common
law right of self-defense, subject to the police power regulation of local and provincial
government.>>But the idea of personal self-defense was
entrenched in the Second Amendment is deeply problematic. But — and this is a major qualification.
When you get to the 14th Amendment, which is written in the context of reconstruction,
the question of whether there should be an individual right of self-defense at that point
looks much more legitimate. Why? Because African Americans are being slaughtered in large numbers,
in various parts of still unreconstructed south.
So the story is more complicated. Some aspects are not so complicated. At this point I really
am an absolutist, take it or leave it. But if you think about it historically, to think
about the difference between the late 18th and the 19th Century understanding, tells
us a great deal about how America was more and more of a gun culture in which the individual
right to pack — carry a piece — over time can become more important.
>>John Milewski: Mary, I want to ask you another question about Madison as author and
editor. You made the point that he was looking at all of these other amendments that the
states proposed. So he whittles it down to, is it 19, for the final proposal that goes
to the Congress? Is it 19?>>Nine.
>>John Milewski: The House to 17?>>To 17.
>>John Milewski: And then I think the Senate is 12? And then two.
>>Two are dropped in the ratification process.>>John Milewski: So talk to us about this
process of Madison, who had his ear. Was he doing this in isolation or were there people
influencing what initial amendments made the cut? What was the process?
>>Mary Sarah Bilder: I think to pick up on this discussion, I think one really interesting
thing is that the way we think about the rights have so much to do with the fact that the
original first and second right fall out. So if you think about — put Madison aside.
Madison wanted them incorporated into the Constitution, interwoven. He was thinking
of revising the Constitution, amending the Constitution internally. I think there’s an
incredibly important thing because our notion of the Constitution whether we think of the
Constitution, is that crinkly document that was written in 1787. But in some ways Madison
was thinking of amending the Constitution in a much more active way and Madison — when
he gave his great speech on June 8, he had all of his — he explained where they were
all going to go. And some of them were going in Article 1, Section 9, some in Article 1,
Section 10. In all sorts of ways it would have made the convention moment much less
important because you couldn’t have seen — there would have been no moment where the document
looked like what it looked like.>>But it was a problem because they had signed
the document that was no longer going to be the document that was the official constitution.
>>Mary Sarah Bilder: So Roger Sherman stands up and says this is a terrible idea because
the Constitution ought to be sacred. And it’s really in that moment in 1789 that you begin
to get this notion that something particularly special happened that summer in Philadelphia.
So there’s enormous contingency in our understanding of the Constitution just based on that decision.
And then there’s enormous contingency in the fact that they sent 12 amendments out. Our
First Amendment is Amendment 3. I don’t know if the First Amendment would be as important
if it was the Third Amendment. It just doesn’t quite have the same pizzazz. The First Amendment
must be the most important because it’s the first. That’s completely historical contingency
that the first two amendments, which are probably the first two because Madison in his original
list, they were supposed to go into Article I, they fall out. They never get sufficient
numbers of adoptions. So the First Amendment becomes the First Amendment
by complete random chance. I think they were only — I looked this up recently. I think
Kentucky voted for the amendment, one of the first two amendments. But then by that point
Kentucky had actually added itself to the list. So they were perpetually one state short.
We would have had the Bill of Rights that would have had 11. It wouldn’t have looked
like the Bill of Rights because one of the first two amendments would have dealt with
Congress.>>We would have gotten used to that. People
weren’t paying that much attention to the Bill of Rights.
>>Mary Sarah Bilder: Nobody paid attention to it.
>>Joseph Ellis: One of the things implicit that you’re saying, all of us are saying,
to think of the Bill of Rights as America’s Magna Carta is a 20th Century idea. By the
way, as long as you look at the Magna Carta, once you start looking at the Magna Carta,
it’s really not the Magna Carta either. So this notion that there’s this codification
of semi-sacred rights and principles created in this one moment that seems, you know, tongues
of fire, gleaming glances at the eternal, no. That never happens. And that’s not what
happened in 1789 either. Madison was making a deal to ensure the ratification process
would be completed successfully. North Carolina, Rhode Island still hadn’t ratified when this
is all going on. And then Jefferson, who I normally don’t make
strong arguments in favor of, cared much more about the Bill of Rights than he did about
the Constitution. He thought the Constitutions come and go every 20 years. The Bill of Rights
— Jefferson cared a lot more about what government could not do than what government could do.
And he tended to think platonically. And the notion that he and Madison are going to be
probably the premiere political team in the first 50 years of American history, they really
thought differently. They are absolute opposites in the way they think about, in this particular
case, the Bill of Rights.>>The overarching theme of amending the Constitution. I want to get back to the question I asked about at what point — you began to touch
on this. At what point does this become this almost sacred document that sort of the original
intent arguments about this can’t be touched, there’s danger in that, versus a work in progress.
As you described, Jefferson thought we would rewrite it every 20 years. Is there a point
in history that you could identify or is it a more gradual change? When do we really start
to hit this point where we seem to be at least much of –many of us today, where it’s just
–>>Jack Rakove: There’s not a magic moment
when the idea of amending is off the table. I’m sure congressmen continue to propose numerous
amendments. There’s interest in electing the Electoral College, for example, in the mid-1820’s.
But like a lot things that goes nowhere. I think the key part of this argument — there’s
a wonderful book about the 13th Amendment “Final Freedom,” which is actually the real
basis for the Lincoln movie. It’s nothing that Doris Kearns Goodwin provided. It was
the academic advisor was really Michael’s book that provided the substance of what goes
on in that movie. So the argument is certainly by the time you got to the 1840’s, 1850’s,
the idea of amending the Constitution has become a very problematic idea because the
framers and founders have acquired this great order around them.
So the curious set of political circumstances that made the Constitutional amendment, it
wasn’t clear at the beginning that the best way to get rid of slavery was via constitutional
amendment. There’s a kind of complicated political story about how that happened. But the consequence
of that story was to revive the idea that the amendment process itself was something
that Americans could go back to using. And, of course, out of this comes the 14th and
the 15th Amendments and the whole idea that legal scholars now endorse, which is worth
arguing about, whether or not reconstruction constituted a second founding or a kind of
quasi second founding. A lot of that does pivot on the idea the Constitution can be
amended and amended for radical purposes.>>John Milewski: Speaking of the Constitution
as quasi religious document, I want to ask you — because you’re working a book on the
establishment of religion. Is that correct?>>Jack Rakove: Free exercise.
>>John Milewski: Ok. What can you tell us —
>>Jack Rakove: I’d like to pick up on something that Joe said earlier. I think Joe repeats
it. I think what is a fairly common perception among Americans, what it is that rights do.
And the idea is rights exempt us from the authority of government. With all respect
to Joe, I would disagree with that. Most rights do not exempt us from the authority of government.
Most of the rights we possess in the first eight amendments of the Constitution. And
we’ll leave the second out of this because I said enough about that one already, maybe
even too much. It sets up — most rights actually set up standards to government — that government
has to conform to when it deals with us; you know, unreasonable search and seizure. What’s
reasonable? What is due compensation for the exercise amendment — of eminent domain or
whatever? In my way of thinking, because I am writing
a book on this, that’s what makes the religion clause, the Free Exercise Clause so exceptional.
Because the Free Exercise Clause says in language that would historically radical in the 18th
Century that here is a realm of behavior where the individual is sovereign. Here is a realm
where government will no longer act at all. What you believe is a matter of conscience
and relates to men and women alike, male and female, he created them both. So it does span
the gender gap. I think in that sense — the title is “Beyond
Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion.” The point
I’m trying to make is of all the rights we possess, the one that places the greatest
emphasis on our individual, moral autonomy is freedom of conscience.
>>I agree with that.>>Jack Rakove: Other rights, they certainly
create — numbers formed by nations to give us notions of privacy and the other language,
but otherwise presuppose the government is going to act when it acts, it has to conform
to some set of fixed standards if we’ll be respectful to liberty, due process, and so
on. Maybe I’m pushing this too far but there is
a significant difference there.>>John Milewski: Point of order. In a moment,
we’ll come to your questions. So there are microphones positioned at both staircases.
Be careful as you make your way there. If you’d like to begin lining up now, we’ll come
to your questions in just a moment. Go ahead, Mary.
>>Mary Sarah Bilder: Not to go back to the Second Amendment, but it’s interesting when
you read the First Congress and everyone discussing things about that, the issue that we care
about, they don’t care about. And the issue they are obsessed with is what to do about
Quakers who by means of religious conscience, to your exact point, won’t bear arms, won’t
join the militia. And this is the issue that you’ve — page after page, they are worrying
about. And Madison’s original draft in his June 8 speech that the clause is that sort
of what becomes the Second Amendment that explicit language about those who are religiously
scrupulous of bearing arms don’t have to. So it’s a very interesting —
>>Which underlines Jack and my point that that’s the real concern. It has to do with
serving in the militia not as a natural right.>>Jack Rakove: It’s tied to what becomes
the Second Amendment and not the first. I’m sure many of you know the enormous amount
of discussion in the jurisprudence religious clause about what kinds of exemption do we
have against the regulatory authority in the state. But in the 18th Century context, the
exemption for the Quakers would not have been perceived as a First Amendment issue. It would
have been perceived as a Second Amendment issue tied directly to, again, the issue of
the militia.>>John Milewski: I’m feeling a storytelling
impulse to ask one more question before the gentleman at the microphone. I know that gentleman
at the microphone. So you’ll indulge me, Bruce. Thank you.
I don’t want to skip over ratification. Maybe each of you could tell us about the ratification
of the Bill of Rights and what are the key things that we need to know about that, whether
it’s about how contentious it was or wasn’t or were there key compromises or things that
made it possible for certain states to get in line? What are the things you think are
important to highlight about ratification?>>Jack Rakove: Out of sequence?
>>John Milewski: Any way. In reverse order? Sure.
>>Kenneth Bowling: It just wasn’t important.>>Jack Rakove: I agree! And then we’ll talk
about it.>>Kenneth Bowling: States were concerned
–>>Jack Rakove: Overruled.
>>Kenneth Bowling: About the federal government increasing its power. The fight over what
constitution meant what the elastic clause meant. The ratification of the Bill of Rights
no longer an issue in the states. Ratification —
>>Joseph Ellis: Boring. Boring.>>John Milewski: Ok. Anybody else? Mary and
Jack.>>Mary Sarah Bilder: In the 20th Century,
some states like the state that I’m from now, Massachusetts, realized that they hadn’t actually
ratified all of the amendments. They picked and chose. So I think in the 1930’s, it gets
embarrassing of they go back and they sort of — they ratify the ones they didn’t ratify
just to clean it all up real nice.>>Kenneth Bowling: They didn’t ratify any
of them. One House did, the other House didn’t. And the federal government told them in 1939
that they hadn’t ratified and analyzed –>>[Laughter]
>>[Multi-voice overlap]>>Jack Rakove: I would state in a different
form, I do think — Madison was not an enthusiast for the Bill of Rights. He refers to it as
the nauseous project of amendments. He didn’t mean nauseous to himself. He meant to his
colleagues. He felt the amendment that Joe mentioned earlier, the one that would have
addressed the states and not the powers of Congress, he described that as the most valuable
one in the whole list and that ties in with this whole theory that the real danger of
rights to arise not at the national level of politics but within the states. So there’s
a number of complications. What I think is most important is, I think
Madison, first and foremost, had what was a truly brilliant theory about the ratification
of the Constitution. He understands for powerful conceptual reason that to make the Constitution
supreme fundamental law it has to be submitted to some overt expression of sovereignty. So
that’s why we have the state ratification conventions. But he and other Federalists
also insisted when the state Ratification Convention act — they can really say only
one two of words. They can say yes or no to the whole document. If they weren’t proposing
amendments until the cows came home, they would be fine. But they couldn’t make approval
contingent upon the adoption of amendments. But when he moves, for reasons Mary knows,
when he moves to anticipate that by late 1788, I think at that point he had a more political
understanding. I think he felt there were a lot of well-meaning but misguided Anti-Federalists
out there. Madison did not think a bill of rights was really necessary; it’s ok; it won’t
do any harm; you want to be careful how it’s drafted.
But politically I think what he wanted most was to say if we want to kind of seal this
whole process of approval — see, Americans — I think we don’t really understand what
a great process the adoption of the Constitution was. I don’t mean because wildly enthusiastic
about every clause in the Constitution but if you think about how the Europeans mangled
their constitutional treaty of 2003, the awkward process, the Americans — there’s no precedent
for what the Americans did. How do you ratify a national constitution, through a course
of popular discussion? Nobody really saw it. They did it in 10 months unequivocally.
I think Madison saw the adoption of the Bill of Rights as an important postscript. Postscript
is too weak a term. There’s a bunch of people out there that still have reservations about
the Constitution. We want to assuage and conciliate them. So we’ll give them some amendments.
They will be safe amendments, not deal with the structure of the government. But I think
it was kind of, you know, not the tub to the whale but something to put in the way that
would help — mix my metaphors terribly here. It would have to close the deal in a really
–>>John Milewski: Quick thought, Ken? And
then –>>Kenneth Bowling: Madison never called the
Bill of Rights or amendments a nauseous project.>>Jack Rakove: It’s in the letter.
>>Kenneth Bowling: I know. The letters are — Francis Hopkins called the nauseous project
about all the different states with their conflicting amendments. So he was just appealing
to Hopkins.>>John Milewski: This is why the ink never
dries in your history books. Joe?
>>Joseph Ellis: No. We need to go to questions.>>John Milewski: Ok. Ask your questions.
Introduce yourselves. Then also unlike me, I’m sorry I modeled badly, ask a focus question
if and when possible. Yes, sir?
>>Bruce Guthrie: Bruce Guthrie. I should say first off that it took me a little while
to realize the bill of meant list of. I kept thinking some other type of bill. I was a
little confused. The freedom of religion — most of the discussion
that we had over religion back then seemed to be different types of protestant faith.
We mentioned Quakers. We mentioned whatever. But as a country, my impression of early America
is we were virulently anti-Jewish, fairly anti-Catholic. I have no idea what we thought
of Muslims. When they discussed freedom of religion, did they explicitly include all
religions or were they mostly thinking of Protestants?
>>Jack Rakove: There are two answers there. First off, the question is who is the they
always needs to be qualified. The point is — so I think the two points you want to make
is that it’s important for us to understand that American ideas about religious freedom
have a deeply radical protestant point of origin. It’s deeply embedded in the culture
of colonial life. Jews and Catholics — to say Americans were
deeply antiCatholic and deeply anti-Jewish, I think that’s a problematic statement. Because
there’s so few of them. There’s some thousands of Catholics and some hundreds, maybe a couple
thousand, Jews. They had to be able to worship on their own. Catholics don’t worry about
parading the host in public streets. They are happy they could have a place they can
practice peacefully. I think that’s the first big point to be made here.
Jefferson and Madison — suddenly it’s following John Locke, and Locke was a major influence
on these guys, were open to the idea that there should be — I don’t want to say polytheistic
but the United States should be open to people of other religious beliefs. Madison says as
much in his memorial against religious assessments — not his first aim about religious freedom but
kind of the authoritative text drafted in the mid-1780’s in opposition to Patrick Henry’s
bill for general assessment to support teachers of the Christian religion. Madison says explicitly
if we have two — if we put two sectarians on our policy, we’ll discourage people who
deserve to hear the message of Christ preached to them. That may be a bit of ingenuity on
his part. I’m not sure Madison was still a Christian
at that point. It’s one of the great mysteries about Madison. How do you date and depth and
extent of his religious belief? But at least he opened up that possibility.
>>Joseph Ellis: I think what Jack said is the ultimate point. If you look at — if you
did the demographic, geographic survey of American public opinion or popular opinion
in 1789, something impossible to do, it would be predominantly Christian. And with Anglicanism
dominating in Virginia and some form of Presbyterian, all of that. But what they do in Virginia
with the principle of religious toleration or religious freedom and in the First Amendment
is a radical idea. It is still the single most important part of the Bill of Rights.
It translates perfectly. Religion is a personal thing. The state cannot interfere with that
process. That — and Washington goes to a synagogue in Newport as part of his first
trip to New England and gives a speech insisting that, yes, this does include Jewish people
in case you were wondering about that. It really is a statement that is so modern in
its implications that it’s difficult to understand how it came to be at that moment. But it’s
the one that translates today more directly without having to go through elaborate contextualizations
more than any other.>>Mary Sarah Bilder: I think this is such
an important point because the Constitution itself said there was no religious test for
office. It’s not even in the amendment.>>Article V.
>>Mary Sarah Bilder: They all said at the time there was no disagreement about that.
>>Trump’s going to have a problem with that.>>[Laughter]
>>Mary Sarah Bilder: It’s in the main constitution at a time when the state, many of the state
constitutions, had experience with tests for religious office. So it’s an incredibly sort
of radical moment in the actual constitution.>>John Milewski: Yes, sir. Hi.
>>Yes. Michael. I’m a member of the board of the John Jay institute. Excellent program.
Thank you so much. I was assuming we would hear a little bit about the New York ratification
process because there was a fellow, unusual first name, I think last name Smith, who was
the head of the Anti-Federalists. What’s his first name?
>>[Inaudible]>>Thank you. And I thought between himself
and Hamilton there was perhaps an informal deal that there would be a bill of rights
and that was part of the reason we got ratification in New York. I’d like some clarification on
that.>>Jack Rakove: Well, Smith is a modern Anti-Federalist.
Federalists have decided majority in the New York Convention — excuse me, Anti-Federal
— the Federalists were kind of waiting around to figure out what they were going to do.
And in the end Smith carries a group of moderate Anti-Federalists with him. I think New York
ratifies 30-27.>>Joseph Ellis: The only reason they ratify
is because it’s already a done deal. Nine states ratified. And Hamilton kept — they
really just — Jay and Hamilton delay the debate in New York until ratification has
happened in Virginia. It so happens New Hampshire precedes Virginia to be the ninth state. So
the debate in New York doesn’t make any difference. I hate to tell you that.
>>[Laughter]>>Joseph Ellis: I do think Jay is a more
important guy. I discovered Jay in the most recent book I wrote. He’s a more significant
figure in American history than I ever imagined before. So your job is safe.
>>[Laughter]>>Thank you.
>>Jack Rakove: Smith and Madison have somewhat similar positions. I think Mary alluded to
this earlier. On the merit of the Bill of Rights. It goes back to what I was trying
to say at the very beginning. Why do you want to have a bill of rights? We think of it as
something you can litigate out. That’s not the 18th Century notion. Madison, as Mary
indicated, says the way a bill of rights will work best is if you and I as individuals,
in effect, inculcate its sentiments. If we understand that these rights are important
and if we make pursuing those rights part of our identity as citizens, then that will
mitigate what you might call are fascist impulses. Smith does something similar. Smith was also
the federal farmer, the one known as — most historians now agree Smith was the well-known
anti-Federalist writer and Federalist farmer. His argument of how the Bill of Rights will work,
again, it’s not about litigating it out. The idea is the people of need a bill of rights
as a collective entity. So they will know when government is overstepping its bounds.
If you have the Bill of Rights, eventually a set of standards — of standards against
which you can judge the proper acts of government. That’s also an educational argument. Madison’s
argument is more individualistic. Smith’s is more collective quality. But they are both
functioning in a sense of educative terms.>>John Milewski: Thank you.
Yes, ma’am?>>Hi. Jacqueline. I teach at Catholic Theory
and Law. Lots of James Madison Thomas Jefferson there for me. I have a question on the Ninth
Amendment, namely there seemed to be now two different positions on stage: one that Madison
is getting from Jefferson that the Bill of Rights is important in order to eventually
instruct the way the judiciary is going to run and then there’s the point you just made,
sir, about it being more individual exercise. But, of course, the Ninth Amendment ends up
fairly useless. There’s nothing the Supreme Court can do with it. What is the historical
understanding of why the Ninth Amendment should be there as Madison would see it? And maybe
someone has an idea of how it develops over time because every time I brought it up in
com law in graduate school it was, no, it doesn’t matter anymore. When did it matter?
Why is it there?>>Mary Sarah Bilder: Madison thinks it’s
the most important amendment. He thinks — he says that this is the one that you really
need. Because otherwise people will think these are the only rights that people have.
He’s very concerned about it. Why it gets read out of the Constitution — why the judiciary
over time reads all sorts of the Constitution out, you could write a book. Like parts of
the Constitution that don’t mean anything. When I studied for the bar, the bar people
were like the privileges of the Immunities Clause is never the answer. [Inaudible] What
do you mean there’s never an answer? Everybody says it’s never the answer. They throw the
question out. So it’s a really interesting question why
— somewhat similar to why we end up with our history where we don’t amend the Constitution
as much, why the Ninth Amendment maybe isn’t as robust as I think people at the time might
have imagined it. There’s a wonderful — people have referred
to 400 amendments. There’s a wonderful — Edward — I don’t know how to pronounce his name.
He did a lot of wonderful work early on on the Bill of Rights. He had a list of all the
rights that were listed. He had 75 rights which only a few end up in the Bill of Rights.
But if you look at all the state constitutions. So the world had more rights at one time.
Maybe if someone has a notion of why that vision vanishes.
>>Jack Rakove: It’s a serious question. Go back to what I said at the very beginning.
If you start to think about a right not as a statement of a general principle that people
ought to follow but as the legally specific commands, some institutional government shall
do, you understand how is it that a right stated as such becomes part of the Constitutional
text and therefore becomes part of the supreme fundamental law. Then it really does matter
which rights are included and which are not and it also matters — the question of enumeration
matters. What happens to unenumerated rights? Are they ether and it’s hard to bring them
down? But the question of how do you textualize a right for which in some ways the Second
Amendment has become the most absurd example. To think about what does it mean to have a
right is not an easy subject. It’s philosophically and legally a very complicated matter. But
if you wanted to put into a written constitution, particularly the kinds that Americans like,
at least at the national level, short and sweet and fairly elegant, the question of
how do you frame the text is a serious question.>>John Milewski: Thank you for being a gentleman
and deferring to the other mic. Your turn.>>Thank you very much to the National Archives
and all of you for putting us intellectually entertaining discussion. My name is John.
My question is to what your opinions are on talking about the origin of the phrase toward a more perfect union–
and its significance of the [Inaudible]. Thank you.
>>Joseph Ellis: Could you say the last part again?
>>I talk too fast sometimes. I was trying to — towards more perfect union the origin
that fights historically this discussion and its significance in the rule towards future
elasticity of these documents.>>Joseph Ellis: [Indiscernible] wrote those
words in August of 1787. He was referring to the fact that they were replacing a less
perfect union, namely the confederation. And I don’t think he had — although Morris was
one of the most outspoken critics of slavery in the debates in Philadelphia but I don’t
think he had anything like an understanding that you’re talking about in terms of expanding
definition of the people. After all — jack, give me some numbers here but we the people
–>>Jack Rakove: Come up with your own numbers.
>>[Laughter]>>Joseph Ellis: All right. All right. In
1789, when it was ratified, how many people were citizens that fit we the people? We the
people — well, you had to be a male. You had to have property. And you had to be white.
Right? And the total population is three million? Three million.
>>Jack Rakove: This begs the question of how you define citizen. Because the concept
of citizenship could be linked to having a whole array of —
>>Joseph Ellis: The right to vote. Ok. Right to vote.
>>Jack Rakove: For political purpose or to —
>>Joseph Ellis: Yeah, yeah, right to vote. You got to figure it’s like 200,000. That’s
it. Now when we say we the people, we mean like 320 million. And we intend that to mean
everybody. What am I trying to say here? I think one
of the problems we have in the 21st Century is to — that there are certain segments of
we the people that no longer share the values of other people.
>>John Milewski: Ken?>>Kenneth Bowling: Something about elasticity
and this whole thing about whether the Constitution is a living document or a static document.
This Constitution that was replaced, the Articles of Confederation was a static document. It
was put together by that band of brothers in 1776 and 1777.
>>Joseph Ellis: I like that, band of brothers.>>Kenneth Bowling: We’re going to all grieve
forever and if there’s a need for an amendment, we’ll have to have it be unanimous. So to
amend articles it had to be unanimous. It was also something I believe the second article
— all powers not expressly delegated are reserved to the states. Does that sound familiar?
10th Amendment, missing one word, expressly. So the Articles of Confederation, very rigid,
static document. So the amendment process, that gave us what we call the Bill of Rights,
was designed to be difficult but to provide the elasticity that was needed. Similarly,
and one of the most important things, the Constitution does not say how many people
will sit on the Supreme Court, how many Supreme Court justices it will be. And that allows
–>>Jack Rakove: Don’t tell the Republicans
that.>>Kenneth Bowling: The legislature to change
the sides court when it gets too liberal or too conservative. It’s been as high as 13
I think.>>10.
>>Kenneth Bowling: 10. And as low as five when it started.
>>John Milewski: Yes, sir. Hi.>>Mary Sarah Bilder: Six when it started.
>>Eddie Becker: My name is Eddie Becker. I was interested — in having read through
some of the papers at that time in the 1780’s, it seemed as if Washington and his people
were really uncertain about the future of the United States. There were people who were
rebelling against the central government, the context of that having to do with paying
back the debts from the American Revolution and people were being taxed heavily. And there
was groups all over the country who were rising up and putting basically — basically having
these assemblies and being repressed by another group who were trying to collect the money,
connected in with the banks. So in Massachusetts and Maine, what’s now
Maine, Shays Rebellion in 1787, went to close down the courts and were put down in a very
heavy-handed way. Assemblies were prevented. People were thrown in jail without trial.
Guns were confiscated. And people were put in jail. Then John Hancock — so from that
comes a pushback and John Hancock comes in as governor of Massachusetts. And from my
understanding it was said, you know, this idea of the Bill of Rights wasn’t such a bad
idea. So my question is — because based on how
you’ve reconstructed this, without this context of this great ferment that was going on and
this uncertainty of the future — I guess there’s not the evidence enough for you to
be able to incorporate any of that history in your recollection of how things — based
on what I’ve heard –>>John Milewski: Let’s find out.
>>Eddie Becker: It just seems as if it’s sort of like this idea of the founding fathers
sort of having this gift from the heavens.>>Joseph Ellis: No, no, no.
>>Eddie Becker: Thank you.>>Joseph Ellis: No. You should read some
more. The irony is that Shays Rebellion is perceived by most of the elites in Massachusetts
and the rest of the country as the first sign of anarchy and that it is because of that
fear that the movement for a convention in Philadelphia begins to have a level of credibility
that it didn’t have before. So the ironic implications of Shays Rebellion is to create
precisely the kind of consolidated federal government that in some ways they are opposed
to. But believe me, historians have not been remiss
in trying to connect the events you describe with the convention and the document and the
Bill of Rights itself. There’s a lot to be said about that.
>>Jack Rakove: The way to think about this is — it’s a rights-based statement but not
in the conventional way we think about the Bill of Rights. What it says is the people
have a right to maintain a Republican form of government and if that right is threatened
by some kind of domestic uprising — Madison has speculations about the different ways
in which an uprising can take place. People have a right to be governed by Republican
government and if that’s called into question because some kind of coup or whatever or the
wrong kind of popular protest is afoot, then the national government should be restored.
It’s a bit like the night — there’s one or two cases, Luther v. Board and Rhode Island
is probably the only notable case on the subject. So there’s a tempting vessel into which nothing
has ever been poured.>>John Milewski: To you first. These are
the last two questions, by the way. We’re almost out of time.
>>Rebeca: I’m Rebecca. I was a summer intern at the National Archives and now a volunteer.
I’m a history Ph.D. student at American and a former student of Professor Ellis. I was
interested –>>[Laughter]
>>Rebecca: I was interested in your discussion of the First Amendment, the Free Exercise
Clause and, well, the Free Exercise Clause to keep the government out of people’s individual
religions. And I was wondering to what extent the founders, especially Jefferson and Madison,
wanted to keep people’s religion out of the government. Or are they the same thing?
>>Jack Rakove: It’s a more complicated question. Madison’s — I mean Jefferson — I’m sure
Joe — the line Jefferson was a virtual Pollyanna. Jefferson had this high hope, as he says I
think in the notes — the future will all be Unitarian. And that doesn’t mean Unitarians
of the term today. It means, well, we won’t be Trinitarians, we won’t believe in the trinity.
So Jefferson hopes Americans will be much more rational in their religious beliefs and
he’s deeply depressed in his later years because the second great awakening pushes the culture
in another direction. Madison I think was much more philosophical.
Madison says people said when we move towards disestablishment that all hell would break
loose but that it would lead to, you know, would lead to disorder, turmoil, and collapse
of morals. That hasn’t happened. The churches have never been better than they’ve been since
the different states have moved towards disestablishment. I think Madison’s big hope was that essentially
you turn a bunch of Protestants loose with the Bible and no one’s there to tell them
which interpretation is authoritative, they’ll find lots and lots of things to disagree about.
On the whole, that’s not a bad argument. In light of our current politics it’s worth asking:
Why is it therefore that the abortion issue has become a real basis for unification among
religious groups across a broad theological spectrum so that evangelical Christians, truly
Orthodox Catholics and Orthodox Jews, you know, who think would have nothing in common
except their deep religiosity is a right of this one point?
So to Madison, the general theory is — Madison sees diversity of religious belief as the
model of why having diverse interests will be really productive of promoting liberty.
But the religion question sometimes becomes too explosive or some issues arise that [Inaudible].
>>John Milewski: Yes, sir?>>Juan Goldstrom: Juan Goldstrom. I’d like
to get more information or find out if there was any discussion on who would be excluded
from the Bill of Rights. Like we know that slaves, women — and how did they reconcile
that?>>Mary Sarah Bilder: I just say I think one
interesting way to think about the rights that Madison suggests is which ones does he
not put in. So I’ve always thought it’s interesting if you think of things that were in constitutions
he was familiar with that don’t end up. And both Massachusetts and Virginia had a clause
— in Massachusetts the free and equal clause and in Virginia something like that. I can’t
quite remember. And in Massachusetts — the Virginians actually fight about it because
they’re worried if they put free and equal in their constitution, how does that work
with slavery. And they decide like no one will take it seriously so it’s sort of not
a problem. And in Massachusetts, the free and equal clause is used in the 1780’s to
abolish slavery in a very famous case. So what’s interesting in that regard is there
is no language like that that Madison proposes. He hasn’t proposed anything that’s expansive.
And I personally believe — I don’t know about you guys, but I believe the Just Compensation
Clause and the Fifth Amendment is there primarily as a stopback; that if the government gets
around to abolishing slavery, white owners would have to be compensated for the losses,
which is what the British basically do. So in some ways the amendments are narrow.
And that’s why, as Jack says, you need the 13th, 14th, and 15th Amendments, these later
amendments, to open that part of the Constitution up. And I think this is in part because Madison
was not the anti-slavery person that he sometimes is misunderstood as. He never freed anybody
in who he held enslaved and was not, in my opinion, that good on this issue at all.
>>John Milewski: Ok. We are just about out of time. About a minute for each of you. I’m
going to circle back to the overarching, theme of our gathering tonight, why the Bill of
Rights was made. Just a final thought on the big picture. We’ve dug deep on some of these
questions. You’ve made a lot of points but I’m wondering if at any point there’s something
you wanted to say or think there was important in answering that question that we haven’t
touched on yet. We have about a minute for each of you.
Jack?>>Jack Rakove: Well, I think if you think
of the long-term sweep of American constitutional history, in the end it’s less important to
know why the Bill of Rights was made because the development of legal enforcement or the
Bill of Rights was strongly attenuated until after the First World War. So for historians,
the interesting story is how first in the realm of free speech and freedom of religion
in the late teens and 1920’s and 1930’s, why you get the beginnings of the basis for the
incorporation doctrine for the First Amendment. And, of course, how that escalates as it did
so radically under The Warren Court, particularly the criminal justice revolution.
So I think the best way to frame this is to say there is this interesting political story
about the origins of the first 10 amendments but the real fruition is essentially a 20th
Century story that we’re still arguing about because rights talks have become so central
to our jurisprudence.>>John Milewski: Thanks.
Joseph?>>Joseph Ellis: The Bill of Rights is the
creation of particular historical moment for reasons that don’t have any transcendent value.
We know that the Bill of Rights is going to have transcendent value, however.
It seems to me that the Bill of Rights represents an attempt to distill wisdom about political
wisdom about the last 30 years of American experience and that that experience was itself,
looking back to the glorious revolution and its English Civil War. So that — arguing
against the original intent of people on the court who think that there was this moment
when they had these piercing insights into the eternal truths, tongues of fire appeared
over their heads, no. They are synthesizing the rights and the values of their moment
in time. There’s a joke — I think I saw it in “The
New Yorker.” There was a case before the Supreme Court that Scalia was asking questions of
this one guy. It had to do with the internet. The guy didn’t understand what the question
was. Alito said: Oh, Justice Scalia wants to know what Madison thinks of video games.
>>[Laughter]>>Joseph Ellis: So we transformed it — in
our moment, we’re going to discover different kinds of meanings in them. But for their moment,
they did about as well as any group of human beings in modern history has ever done in
creating this document and this Bill of Rights. They are not saints. They are not canonized,
anything. It’s unbelievable what they achieved.>>John Milewski: Thank you.
Mary?>>Mary Sarah Bilder: I think one of the things
that’s amazing is that even though you can explain there are 12 and they weren’t done,
all of these things, nonetheless we live in a culture where you can go everywhere in our
culture and find bills of rights. So I have a whole collection of these, like the Burger
King Bill of Rights, the Hospital Bill of Rights. What I love about them is everybody
puts the lettering squiggly and the paper is yellow. So there is this cultural way in
which this moment and the Bill of Rights coming out of this moment is such an important part
of our, certainly American, cultural tradition of the rights.
>>John Milewski: And Ken?>>Kenneth Bowling: I think it’s important
to realize that the iconic status of the federal Bill of Rights is something that came out
of the new deal, the Sesqi- Centennial Commission on ratification of the Constitution, and was
an absolute direct response to the rise of Nazi Germany. If you read F.D.R.’s address
on the 200th anniversary of the ratification of the Bill of Rights, December 15, 1941,
one week after Pearl Harbor, the address is all about Nazi Germany, one line about Japan,
and not very much about the Bill of Rights except as an example of what Nazi Germany
isn’t.>>John Milewski: Thank you.
A couple of thoughts for you. One, thank you for joining us tonight. Thanks for your attention,
for your questions, for your time. I hope you enjoyed it and you will come back to future
National Archives events. My final thought is helping me thank this
amazing panel. If you want to talk Constitution, you don’t do much better than this. So please
join me in thanking this panel.>>[Applause]
>>John Milewski: Thank you and good night.

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