Only the official photographer is permitted to take photographs. It is my pleasure to introduce Justice Stephen breyer. He has had a distinguished career, starting as a law clerk to goldberg and going on to have many important positions in the department of justice and working for the Senate Judiciary committee. In 1980, president carter appointed him to the first appeals and hef served 14 years and was the chief judge of that court. Clinton tapped him to be a justice here and he turned out to be one of six people who, during their career, served both as a law clerk at this court and asked a justice at this court. When he got here, he said at the sat at the far end of the bench for 11 years. It was the secondlongest time that anybody has sat as the most junior justice for the long a period. Now, he has had 11 more years and he has moved around on the bench. We are pleased to have him here tonight to host this evenings lecture. Justice breyer. [applause] Justice Breyer i think i missed it, i missed it by about 11 days or something. I was thinking about asking Justice Alito to not take the oath or 11 days so i could know go down in history as a trivia question. If you ask anybody in public life, teaching, what is the most important thing we can do . I think it is telling the next generation and the generation after that a little bit about our history, and in particular, constitutional history. I do that, when i have the chance. That is one of my problems. Im going to texas, and i will talk to three groups of students , and i will put in you as a little note here because you gave us material, and you explain to us how what we do and what this document does fits in with 200 years of history of a law that has had ups and downs. I am grateful to the Historical Society and to georgetown. This is a time where we are celebrating the bill of rights , and it is wonderful that you are here and it is very nice of you to give this lecture. Sheehan, professor at villanova university, the director of the ryan center for the study of free institutions and the public good at villanova. I hope you see that i read clearly and distinctly. That is what our lecturer does. She has been a historian and she was at claremont and i am looking for that she is an expert not on hamilton. My grandchildren are the experts on hamilton, and it you would like americans in it for you. Can get for you. She is an expert on James Madison. She has written on James Madison and the spirit of self governance. Also, writings from other federalists. The most recent book is the mind of James Madison the legacy of classical republicanism. That is what we will hear about and it is nice for some of us, including my grandchildren, to realize that it was both hamilton and madison who were instrumental in producing the document that helps 320 million a reasonably civilized life, even though they think things. They worked together to produce this country. How did that begin . Who were the people . Hamilton. Madison. Those are the names that predominate. I think it is a very finding or thing for the society to sponsor and for you to be here and to lecture to us this evening. Thank you. Sheehan thank you very much, just as prior. Breyer. It is an honor to the here with you. I have followed your work in the court and your studies of madison, from which i learned a tremendous amount. Going over ideas of madison and citizenship and learning from your work. I want to thank our host tonight, the director for the center of the constitution at the georgetown law school, and members of the Supreme CourtHistorical Society. Particularly jerry libin. There is another slate of brilliant scholars whose company i am also honored to be in their company this evening. The topic i have been asked to address is madisons understanding of the bill of rights, particularly his conception of the bill of rights as a tool of Civic Education and free government. I have titled this talk the measure and the elegant of freedom, James Madison and the bill of rights. Let me start with madison. Not James Madison, the father of the constitution, the federalist, just madison. The next book should just be titled madison. Or, the next Broadway Musical. [laughter] sheehan when i googled the Broadway Musical hamilton, no matter where you come down, you n on this issue, you have to find it a little ironic. I know that hamilton would. Googled, what came up for my screen was, and i swear this is true, sorry, madison, no hamilton yet. I do not know if this was a just or as a a jest straightfaced apology to their theatergoers. There is still a madison, wisconsin. No hamilton, but they did get the jersey boys. Madison has been called a schizophrenic, a hypochondriac, a fabricator, and a flipflopper. Which prompted one scholar to ask is there a madison problem . On the bright side, he is the father of the constitution and a coauthor of the commentary of government ever written, as jefferson put it. There is a state capital in the midwest named after him as well a a college in virginia and county in new york. So, i have to note that, in that county, the town of hamilton is located. In june of 1789, James Madison introduced legislation and called for nine amendments to the constitution. Congressber, reorganized these and submitted 12 amendments. Two half years later on december 15, 1791, 10 of these became part of the supreme law of the land. These constitutional amendments eventually became known as the american bill of rights. Madison was not originally in favor of adding a bill of rights to the constitution. He was a especially anxious about a call for a Second Convention to include a bill of rights. The mulligan like do over that a number of federalists loudly called for. There were difficulties that had to get begotten over to produce a constitution that all the states would sign and madison feared that a Second Convention would fail and fail abysmally. Madison hoped that there would have a practical effect of narrowing the scope of the essential rights, particularly the freedom of conscience. Since the u. S. Constitution was one of enumerated powers, with all powers being reserved to the people of the states, does it make sense to enumerate the specific powers of government in the constitution rather than the broad reservoir of individual rights . Bill of rightse made sense in the british constitution. The liberties of the subject were carved out from the crown and later from parliament. In the United States constitution, the government does not grant rights to the people. Instead, the sovereign people grant power to the government. Madison put it this way. Party press he titled charters. Charters of liberty have been granted by power. America has set the example and france has followed this example of charters of power granted by liberty. The potential danger emanating from a bill of rights was that in a constitutional system such states,ive united madison believed, was that some might assume that rights that are not listed are not possessed. A number of federalists agreed with madison and his assessment of the hazards of the bill of rights, especially with a danger of calling a Second Convention. All of the antifederalists and some of the federalists favored the itemization of rights. There were two who refused to sign and the bill of rights was key. Overage gary and george mason. Ive often wondered on monday, 1787, when that convention finished the business and franklin gave his rising sun speech and everybody adjourned to the city tavern, where did Elbridge Gerry and george mason go . Rather, he believed was a political architecture that made it practically difficult for government to encroach on the rights of the people or for a majority to encroach on the rights of a minority or, if they do, they will have to face consequences. Think of it this way. Expecting congress to follow orders that are written on a piece of paper is like the signs you see in Public Restrooms employees must wash hands. How many mothers do you know put up signs like that . No, they say to their kids, show me your hands. Why did madison introduce these amendments . He did so at the upset, just at the start of business. Did he change his mind . Did he feel the pressure of political expediency . This is the first question i would like to examine tonight. The second question is one of the reasons madison offered a bill of rights in the United States, namely the influence that these may have, as they are incorporated into Public Opinion. Was madison sincere in this view, or was he grasping at excuses for having changed his mind, as some scholars claim . If he was serious, how did he charter of rights as a component of Civic Education in america . What does this tell us about the character of the american political system and the role of the citizenry in the madisonian madisons conception of American Government . Finally, id like to address his understanding of the bill of rights as an expression of our rights and our responsibilities to fellow citizens, particularly in the context of the current and escalating conflict between very different notions of rights and liberties in our society today. I appeal to the poetic sensibilities of robert frost to help me in this task. I nonetheless approach this thorny subject with a healthy dose of trepidation in this Hollow Chamber of our republican institution. Over the course of the history of our nation, some of the greatest minds in the land have wrestled with these, as they manysought to protect the trees of liberty that form the stands of justice. Some of these trees will flourish only at the expense of others being shaded or stunted. When madison introduced amendments to the constitution in the house of representatives, president washington had taken office only five weeks before, and the Supreme Court would not convene for another eight months. As on many issues, madison and washington worked in tandem to advance the agenda for the ill bill of rights. From a balcony, the new president acknowledged the concerns of Many Americans and regarding the absence of a bill of rights and conveyed his support for their judgment should they choose to amend the constitution. Washington said, besides the ordinary objects submitted to your care, it will remain your judgment to decide how far the exercise of occasional power is delegated by the fifth article of the constitution is rendered expedient at the present juncture by the nature of the objections that have been urged against the system but by the degree of inquietude that has given birth to them. For both washington and madison, quelling the antifederalists concern over a lack of bill of rights was a priority in the nations republic. To cement the union was, i think, one of the chief reasons marked switched from reluctance to support of the amendments. It was the phrasing of many founders for cementing the union. With a caveat that he wanted the bill of rights after the ratification of the constitution and not as a condition for ratification. Was attemptedort to draw appeal to his constituents of course it was. He also recognized that the bill of rights would situate the judiciary as a source of protection, including, he originally hoped, as guardians against state violations of those rights. This was a particular importance ce for him to gain support for the constitutional state laws. When madison acknowledged the role of the federal judiciary in guarding the rights of the people, this was evidenced in his june 8 speech addressing congress. However, he did not depend on the judiciary as a chief guardian of individual rights and he did not place emphasis on appealing to a bill of rights to rouse a sense of community. In cases of government usurpation, but he did consider this as a backup plan, if needed. Rather, to protect against the governments encroachment on individual rights, he relied on called inventions of prudence and he laid it out in federalist 51, which included separation of powers, federalism, and checks. He thought of a larger territory, including from maine and boston and fisheries to southern agriculture and many and Diverse Economic sects, as you would find in a territory that was larger. And also the many and diverse religious sects. Madison reasoned that the diverse Political Landscape substantially reduces the likelihood of a majority faction. It makes it more difficult. He thought there would be less than a numerical majority who share the same interests and it or prejudicial zeal, and if there is, it will be harder for a large number of people to communicate and unite on the basis of a common impulse. In the final analysis, madisons proposed remedies are not a fantasy. There can be no guaranteed cure for the problems of injustice, short of destroying unity. Let me repeat that. There is no guarantee for the problems of injustice short of destroying liberty. Which of course, that is a remedy that is worse than the disease. If a majority of people are unrelenting in their determination to do wrong, then wrong will be done. The majority, however composed , ultimately gives the law, he stated in his diagnostic preparatory notes for the constitutional convention. The problem, of course, is that the majority is not always reasonable or respectful of the rights of others. The challenge, as madison conceived of it, was to design a political order where this is synonymous with just and reasonable opinion. It is the reason alone of the public that should sit in judgment, madison wrote in federalist this is the 49. Aspiration that he would underscore as he continued to develop his theory of republicanism during the bill of ashts period and the 1790s, he argued that the will of the government must be dependent on the society, and in party press essays, he proclaimed that, in genuine republics, they derive energy from society and operate by the measures of the understanding and interests of the society. In essence, at least by the time of his writing this essay of february 1792, he believed that he had solved the critical problem that had engaged his attention in the 1780s, namely the disjunction of power in in popular governments. Let me take a minute to underscore the difficulty of the challenge that madison and the founding generation set for themselves and the significance in what madison believed he had discovered that would set america on a course to meet these challenge. He made it painfully clear in his recounting of governments that the history of republics is the history of repeated failures , and while there may have been momentary glories from the gloom, that they only served to dazzle us with false hope. Despite this poor track record, the founding generation was determined to try again, and they called the challenge a great experiment in selfgovernment, making an aspiration to demonstrate to themselves and the world that the people are capable of governing themselves. Every votary of freedom rests on the capacity of mankind for selfgovernment. In his inaugural address, washington reminded his fellow citizens that the preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered and deeply , perhaps as finally, staked on the hands of the american people. Thought,ns political it hinged first on rule by a majority faction and second, creating a political and civic environment where the will of the society is refined and enlarged to become the reason of the society. In other words, the majority ultimately gives the law and the only solution is to make the opinion of the majority or suitable to rule. To accomplish this, it requires a modification of the sovereignty and it will produce an impartial umpire. The design of the system is meant to accomplish this objective. Witwhile the extensive territory was a multiplicity of forrests makes it difficult a majority to unite and he said that the size of the territory must be practicable, that is, it cannot be too large and they cannot be so large that it precludes the travel of representatives to and from the National Capital or impede the munication and the liberation of ideas between the representatives and constituents or throughout the society. In this large but practicable sphere of territories and the opinion simultaneously serve to promote communication, deliberation, and coalition building. Let me say that again. The things that hinder the formational majority faction and thus hinder the formation of the majority generally are also meant to serve to advance the formation of a majority. How does that work . In order to succeed through the political obstacle course, a bill must rise to the occasion that each of the facets in the american political system demands. Separation of powers, federalism, and institutional checks are hurdles in forming a majority consensus. But they are also vehicles for the promotion of the commerce of ideas, like a classical board game. The obstacles are there both to impede some moves and reward successfully navigate the design of the game. Combined with these prudential sources that promote discourse, and a liberation, representation and the best of representation, statesmanship, formal education, the influence of the literati, religious views, and bills of rights. These are ways in which Public Opinion is shaped and free society. It should be noted that the influence of morality and religion and of the bill of rights have negligible impact after the fact of the creation formation of a majority faction, but can have a substantial effect on Public Opinion and the habits of mind and heart prior to the unleashing of undesirable motives. Once that faction is actuated and united, madison warned, there is no court of higher appeal of higher government, and, as such, the work of educating the opinion is a task. As for my colleagues for whom english is a second language once passionately declared in a departmental meeting, you cannot get it done, when the ship has left the station. In the large but practicable sphere of the American Republic, various public views are put to the test, questioned, criticized, sometimes abandoned, reshaped, refined, modified. The modification of public views to the established constitutional and civic processes tempers, moderates, and unites these views and makes Public Opinion a judge worthy to sit in public judgment. Madisons consumption of this refined and deliberate Public Opinion is not merely the sum of selfishinterests and desires. It is not a mere pluralistic aggregate. It is not just the opinion of one part of the society. Rather, it is the results of a multilayered and dynamic Civic Educational process that seeks to refine and reshape the views of the parts of the society to produce what madison called a coalition of majority of the whole society. I pondered over that phrase as i was reading it. He insists on saying a coalition of the majority of the whole society, therefore answering his own query that he had begun back in many federalist papers ago, in federalist 10. How does the party to the case about how can the parties to the case also be the judges because there cannot be anything higher than the government, so how can judges,le also be the and his response in the summary by forming a 10 is coalition of the majority of the whole society. This modified and transformed majority of the whole society will seldom coalesce, madison claimed, on principles other than those of justice and the general good. In essence, the processes of Civic Education and the American Republic make parties into the powery suggesting of the stronger toward freedom of all, the people become citizens capable of judging in their own cause with the spiritedness of republican citizens who proudly assert the freedom they naturally own, they also learn the leaps and bounds of freedom. Madisons goal was that they would come to know the moderation, the measure of liberty. Within this context, his didactic view of the bill of rights played a role. He said that the political truth, acquired by degrees, the character of fundamental maxims of free governments. As they become incorporated with the national sentiment, they counteract the impulses of interest and passion. In 1791, while awaiting the decision of the states with ratification, madison restated the idea regarding the effect of the declaration of rights on the public mind and said that Public Opinion is a real sovereign in every free government and that the government is influenced by opinion, deciding the question with the bill of rights, requiring efficacy to incorporate with the public sentiment. What is interesting out these remarks is the phrase with the bill of rights. Now, in 1791, he was decidedly in favor with the influence that the bill of rights may have on Public Opinion. The timing is surely relevant. Only one month or so before, Congress Passed the hamiltonian measure to establish the national bank. Madison had previously placed little emphasis on this as a force to counteract governmental abuse of the necessary and proper clause. With the success of the Component Parts under the first new years of the constitution, he changed his perspective if about the locus of the greatest danger and it would seem that the same reasoning created the inclusion of a bill of rights and the constitution and the added emphasis as a tool of education. In 1956, in a sketch, robert frost began by offering a warning to those who take liberties in life, rather than having liberties given to them. He praised unscrupulousness. Followed by some remarks about those who live their life in fear. He came down on the side of audacity, which he saw as a gift dining characteristic of the american spirit. Frost said that the constitution being a living document makes something new every day and it would he anything anymore to James Madison. Robert frost remarked that the word freedom is on everybodys lips. The freedom is the freedom to speak and speak out in the press. I have the ability to talk about anything im smart enough to talk about. I am free to talk about anything i have the ability to talk about. The limitations are on more than myself. Frost said that measure reassures me. Unscrupulousness, checked by measure, it is stopping just so and it does not spill over. The preface was with medicines liberty. His dream for america is the dream, frost called it, of a land full of free people capable of governing themselves. For madison, this serves as a primer for republican citizens and it is a way for each generation of americans to learn the basic tenets of our citizenship and to confront the boldness of the american project as well as to come to terms with what we are capable of with the measure of our liberty. In the current day, there is a clash over the meaning of some of our most fundamental rights and liberties and the conflict is being played out at weddings, hospitals, bakeries, craft stores, and on college campuses, often manifesting as a battle between liberties of different groups or different liberties or the manifestation of irreconcilable rights. At the present juncture, following the election, the political and cultural the divergences across the land continues to increase and intensify and escalates to a point, some have concluded, that s. Have become two america to the extent that there may be some truth in this assessment, we should all be deeply concerned. There is a sad irony in the fact that one of the main reasons for the adoption of the original will of rights was to bind together parts of the nation all the parts of the nation, after a ratification battle between the federalists and the antifederalists. The same bill of rights that americans once united together with is now a place where americans are dividing into hostile parties. Madison did not exceed in getting the right of conscience into the bill of rights and he believes that it should have been part of the document. In the proposal, the protection of the right to conscience was asserted. He said that the right of conscience shall not be infringed. He said, and the sar property, he may also say that he has a property in his rights and, in these, conscience is the most sacred. Conscience is a natural and in alienable right. For this natural and inalienable right, we are pledged to protect it by the nature of the social compact. Conscience is the most fundamental and the protection of it is a moral debt that every citizen owes it to every other. Madison called this a debt of protection. He speaks here of the debt of protection as he teaches that it is derived for the principles of natural law and the proposition of human equality. When human beings form a civil society, they accept the obligation to protect other human beings in their rights to life, liberty, the pursuit of happiness, and selfgovernment. This is an integral part of the agreement and refraining from invading anothers right of conscience or his rightful exercise of liberty, but to act affirmatively as a protector of his equal rights. As an aspect of the theater of the mind, conscience is the cause for religious liberty and the reason why unqualified protection and not interference of government is required. What is here a right of man madison said in memorial and remonstrance, is a duty to god. These things were not just rights but duties, positive duties. Active liberty, as Justice Breyer put it, that we owe to one another, means that we are adams atoms living in the same geographical landscape, but we have rights that we can claim and it must include the understanding that we have duties to each other. This brings us beyond simply people inhabiting the same land and brings us to a round we might call citizenship and. Erhaps civic friendship it should be noted that what madison and our forefathers meant by conscience and by liberty may not be identical to what many people mean by these terms today. Where is medicine invoked the sovereign of the universe and the natural law when speaking of the dictates of conscience, many in our present age with think of conscience more as perhaps a gut feeling. They areicans believe answerable only to their own feelings, values, and preferences in a word, to their autonomous selves. The stark contrast between this contemporary viewpoint and madisons understanding of conscience and freedom Must Immediately become clear. He did not believe that human beings are the creators of the meaning of the universe or that our rights to be understood are independent of moral duty. In respect to the latter, the majority actually owes a debt of protection to the rights of the minority and respecting this moral debt by the nature of the social compact. The majority ask for the whole. That is not only for them selves and the Majority Party is really no longer a party any more and it becomes the core of political vision and forms his theory of just and reasonable Public Opinion and this is the heart of his response to have liberty serves the ends of justice. Remember his phrase from titles 51, written in the rotunda of the Pennsylvania State house. Justice is the end of government and civil society. The final analysis is a rather simple and elegant idea. A free citizenry knows the measure of freedom. Indeed, in freedoms measure rest and the hope for an american future. Thank you. [applause] narrator this weekend on American History tv on cspan3, on the civil war, abraham secretary of war, edwin stanton. Grant said the secretary was very timid. It was impossible for him to avoid interfering with the armies. He could see our weakness, but he could not see that the enemy was in danger. The enemy would not have been in danger if mr. Stanton had been in the field. The careers and social pressures on pioneering. Omen writers like neri bly they tried to assign her , exceptabout flowers she just kept busting out. She called for a reform of divorce laws, largely because of her mothers experience. Womens work in factories. She wrote about the medical treatment of the poor. Sunday afternoon at 4 00, the nasa film friendship 7, documenting astronaut john glennbi