Transcripts For CSPAN3 James Madison And The Constitution 20

So, tonights program is james madison, father of the constitution, and it is part of series incture American History. I wouldnt you think carl mingus for all of his support and his evaluation he is a valued member of the new york society. Trustee carl, thank you. [applause] i would also like to recognize and thank trustees von , and allally sternberg the chairman with us for their great work as well. Let us give a hand. [applause] an program tonight will last hour and include a question and answer session, and there will be a formal book signing following the program. Our speakers books can be found in our museum store, and he will be signing on the Central Park West side. We are thrilled to welcome richard brookhiser, renowned historian and author, back to New York Historical society. Is a seniorer editor of National Review as well as columnist for American History. In 2004 he acted as history and curator for New York Historicals exhibit, alligator hamilton, the man who made water in america. In 2003, he received the national communitys metal. He has written numerous books on revolutionary america, including biography of james madison, which is why we have it here tonight. Have him here tonight. I ask you turn up cell phones and electronic turn off Electronic Devices for the duration of the program. Join me in welcoming rick brookh iser. [applause] richard thank you all for coming. I was just speaking with carl mingus, and we were remembering that we first met in 2002, when carl had a program at his alma mater Hamilton College about Alexander Hamilton. We were saying we were early adapters, and the world has certainly caught up with our interest in that respect. The first tenant of the constitution, which we know as the bill of rights, were read afford ratified on december 17, 1791. That was 224 years ago yesterday. James madison was a major player in that story. And you will meet him in the course of the evening. Georgeant to begin with mason, another virginian, and i want to begin on such over 12, 1787. September 12, the Constitutional Convention has been meeting since the end of may. They have been hard at work. On such over 12 on september 12, they give the final draft of the constitution. All of the decisions they had hammered out were given to Gouverneur Morris from pennsylvania, and he trimmed, polished, edited, wrote a lovely preamble, and now he was on their desks for their final discussions. Mason that day, george was recognized, and he said we have not written the bill of rights. We have not done it. We could look at the bill of rights the states have in their constitutions, it would only take a few hours to write one. [laughter] so Elbridge Gerry of moving to do was so, mason seconded. There was one speech by Roger Sherman of connecticut. He said the state bill is still in force, we dont need another one. The vote was unanimous, every state including masons and jerrys voted no. Note committee. On september 17, the constitution was finally fixed, signed, and it was sent to congress, who would send it out the states for ratification without the bill of rights. What i want to talk about tonight is why mason suggested such a thing. Why his colleagues, including james madison, hadnt done it. But how the bill of rights then came to be written in ratified. And i will have a few remarks about its later history. Bills ofrights rights were a feature of angloamerican political thought. The beginning of it was said to be the magna carta, the great charter of anti15. 2015. We celebrated the anniversary this year. This was a document that was signed by king john. King john was very good at collecting taxes. He was very bad at waging foreign wars. He also had a reputation for cruelty. He probably wasnt crueler than most kings in the middle ages, but he had the reputation for it. Winston churchill, in his history of the English Speaking people, talks about the disappearance of one of johns arrivals, and he says he was murdered by johns orders, it was not disputed at the time or afterwards. The weather he was mutilated or blinded before hand remains unanswered. [laughter] felte barons of england they were oppressed and miss governed. Revert verge the compromise that ended civil war was the night and a cartel. It was not a bill of rights as we would understand it today. It is a futile contract between a king and his most important e lords,ords lieg his obligations to them, theres to him. It is very detailed on medieval property question, for history law. Forestry law, how to deal with wales, which have been newly acquired by england. There were several points that would become items of later english and american bills of rights. One provision says no freeman shall be taken or imprisoned except by the lawful judgment of his peers. Normal man, not a wealthy commoner. By peerset up the jury. It also says lawful judgment of his peers. There is implication of due process of law, even as early as 1215. You are going to be imprisoned or punished, you have got to be judged by your peers, and there has to be a lawful reason for it. This principle has been laid down. Magna carta also says barons can petition to have transgressions regressed. They can go to the king with their petitions, their complaints, and he has to listen to them. He doesnt have to answer them or satisfy them, but he has to listen to them. That again is a very important point, the right to petition about your grievances. History isep in this 1688, we have another unpopular king in england, jinxes james ii, the last king of the house of stuart. He came after his older brother charles ii. They agreed with each other on their policy positions. They were both catholics and sympathetic to catholicism, and they both believed in royal power. But charles was charming, cautious, unlucky james was none of these things. Charles only converted to catholicism on his deathbed. Although he had 20 children, none of them were legitimate, so he wasnt going to pass on anything to his heirs. His was popular girlfriend was the actress malware, and she stopped the mob which was attacking her carriage by crying out, good people, i am protestant, so they left her alone. [laughter] james was an honest, earnest, and forthright adult convert to catholicism. He also had a son. In england 1688, catholicism and the spanish armada and louis the 14th. Was going out, but louis the 14th was very much alive. He could follow a catholic king, but they could not swallow a string of them. After james had a son in 1688, the nation rose up and offered the crown to william of orange, who was james nephew and soninlaw. He is married his elder daughter mary. This was like the sopranos in terms of internal dynamics. Conditionm accepted a of being king of england, a bill of rights which parliament passed in 1689. These were going to be the rules for his rule. These were the principles that would guide him. This would advance on the magna carta, the right of petition was extended beyond barons. Trial by jury was reaffirmed, especially in trials for high treason. The english bill of rights guaranteed freedom of speech in parliament and the right of protestants to have arms for their defense. One of the fears about james was that he was feeling the senior ranks of the army with catholic officers, and people figured there would be a religious to. Coup. So the right to bear arms was put in writing for protestants. And then there was excessive bail not to be required, nor excessive fines, nor cruel and unusual punishment inflicted. This was saying the english legal system could not christian a person crush a person financially, and he cannot torture a person. These are principles that would march on. , afternext century american independence, state passed their own bills of rights. The most famous was the largest, most important state, that was virginia in the spring and summer of 1776, known as the declaration of rights. The man who wrote this was george mason. , he was ann interesting character. He was a planter, a neighbor of George Washington. The two of them hunted fox is together. He is a beautiful house, gunston hall, which is open to tourists in virginia. It has a lovely great hall that he commissioned. A lot of men of the founding generation did florida any expression deplored any expression of ambition. You were not supposed to show it. It was systematic of that roman hero that left plowing to fight for rome and then went back to his farm. And yet, we see that a lot of these men, they held office, they ran for office, they served in the army, they had commanding decisions in the army. George mason actually seemed to believe it. Of noked the talk ambition, and he also behaved that way. He did not like to hold office. He held it on rare occasions. When he was called in 1776 to be in the new post independence virginia legislature, he went, and he took the job of writing a declaration of rights. But he complained that the committee would have useless members that would make a thousand ridiculous and impractical proposals, said he was going to write it himself. He did a very good job. He called for speedy trials by juries in criminal cases. It is not just trial by jury, but speedy trials and civil suits. He copied the english bills of rights language on excessive bales and fines and cruel and unusual punishment. He condemned general warrants that allowed searches without. Vidence of particular offenses if you are going to search a mans house, you have got to say when you are looking for. You cant just go in the house and see what crimes and he may have committed. You have to have a warrant that specified what you are likely to find, or what you think you are likely to find. Mason praised freedom of the press, he praised malicious milledge is composed of people trained in arms, and he also called for the fullest toleration of religion. There he accepted a correction from one of his committee members. This was 25yearold james madison. Of fullestguage toleration cans from john locke, and is liberal sentiment of the late 18th century. Dave madison did not think it was liberal enough. He had been a defender of the religious minorities already for two years, as early as 1774. When he is 23 years old, he is enraged by the treatment that virginias baptists are suffering at the hands of the established festival majority. He is not it festival majority. He is not a baptist himself, but he argues about this with his friends, probably his father, who was industrial. He is on the committee to write to the declaration of rights. He insists that the language be changed to all men are equally entitled to the free exercise of religion. So it is not just toleration, it is an entitlement. You dont have to do it because someone allows you to have it. Your entitled to have it, and is the free exercise of religion, not just worship. It is broader than worship. It is the free exercise of your religion. This was a world historical shift in the understanding of religious liberty in the virginia declaration of rights. This was approved in june 1770 6, 3 weeks before the declaration of independence. To 1787 ino back philadelphia. Had not written a bill of rights. Certainly by the time, they all wanted to go home. Andifications were given the constitution went out to the states for ratification. One of the first state to ratify in 1787 was the largest, pennsylvania. Roughas a very ratification process. The support of the constitution had a majority, they knew it, they just wanted to vote and think things through and get it done. When antifederalists try to get onuorum, they stashed people the street that hustled them into rooms so they could be counted. It was hardball politics. One supporter of the constitution, james wilson, a scotsman originally, a lawyer now in philadelphia, who gave some intelligent and long defenses of the constitution. One of the things he defended what the absence of the bill of rights. The argument he made was that the english bill of rights and magna carta had all been carved from a background of royal power. England had a king, so therefore you needed statements of what the king could not do to the people. Wilson, in the United States, power remains with the people, in the people at large. And by this constitution, they do not part with it. So the invocation is that people will not oppress themselves, therefore we do not need a bill of rights in the new constitution. Absence inense of an the bill of rights was offered by Alexander Hamilton in new in thend he did this second to last federalist paper, federalist 84. And here, hamilton said, mason has says or rather wilson had said power remains with the people. What hamilton said in federalist 84 is that there is no power to do the things that the supporters of the bill of rights fear. Why declare that things, be done which there is no power to do . The example he used was freedom of the press. Said, if you say the press shall not be restrained, couldnt that give someone the idea that maybe it could be regulated . In other words, if you draw a line, are you tenting people tempting people to come right up to that line . It do better to just leave the whole subject alone . Half,ould be a clever by statistical way of thinking, but it is ambitious way of thinking. It was interesting that hamilton was making this argument. A third man who defended the fact that the constitution had not included a bill of rights was james madison. To his best letters friend and mentor thomas jefferson. Jefferson was in paris when all of this was going on, and he and madison wrote back and forth. Madison was keeping him informed of the new constitution. He was also keeping him on the board. Madison agree with jefferson, he admired jefferson. I think he was charmed all his life by the lightning flash of jeffersons mind. He also knew that lightning was uncontrollable, so there were occasions when he had to guide jefferson and prompt him and bring him back down to earth. We can see madison trying to do it about the bill of rights. He wrote jefferson and says, virginia has a bill of rights, which of course jefferson you. Madison had helped write it. But he said that i have seen the bill of rights violated in every instance where it has been opposed to a popular current. Is a newwords, it virginia constitution, the Legislature Just goes ahead and violates it, wherever the people are in favor of it. It is only a partial barrier. The old security for peoples rights would be the structure of government of what we now call checks and balances. Jefferson wasnt having any of it. He kept responding to madison, saying a bill of rights was something every people was entitled to have, from every government. He used the metaphor drawn from architecture, which was one of the subjects dearest to his heart. Brace willt a actually keep a building up that would have fallen without it. You may think you are building it strong, but put up a next her brace, just do it. That will help keep the thing up. There were other forces working on medicine, and one of them was his old allies, political allies. And they were alarmed there was no guarantee of religious liberty in the constitution. And they knew that medicine was their friend, and medicine you that they were his allies. But they shared their concerns with him. They told him they were upset, and he paid attention to them. He also had to Pay Attention to a man he did not particularly like, who is patrick henry. Brilliant. Ry was he was patriotic, he was eloquent. Madison and jefferson were certainly brilliant and patriotic, and jefferson was eloquent on the page, but neither of them were great speakers. Patrick henry was the greatest speaker of the late 18th century, and jefferson and madison did not like him. Patrick henry seized on the last of the bill of rights lack of the bill of rights. He say it may be summed up in a few words, so why not write them down . Is it because it will consume too much paper . [laughter] henry made many arguments to this effect. So madison, although virginia does ratify the constitution by the summer of 1788, it is the 10th state to do it. When the margin is very narrow. 180 some delegates in the virginia delegation, and it passes by a margin of only 10. And it passes without any conditions. It is a full ratification, but it does say that there ought to be a bill of rights gathered, that it should be the first order of business in the new congress, to add a bill of rights. And other states made similar provisions in their ratification debates. Massachusetts, another one of the three largest states, and so had several other states. James madison, if elected to the First Congress, which means here in new york in the spring of 1789, and one of the top items on his agenda is to get a bill of rights through congress in that first year. Now there are a lot of potential rights to choose from. When virginia approved the constitution, they added a list of 20 rights they would like to see ratified, 20 changes, most of them right. New york had a list of 33, and it were other suggestions that came in. Madison had to deal with two sorts of skeptics. There were a number of people from the First Congress that said that passage is brandnew, why are we changing it right away . Shouldnt we let it operate and then see where we need to do . A more dangerous kind of skeptic where people in congress who were opponents of the constitution. They were unhappy that it had been ratified, and what they wanted were structural changes to the document. Madison was determined to keep those out. He felt the balance of power in the constitution between divisions of government and the federal government and the states, he thought that had been very well arranged. He wanted that to stay. But he was determined to have the bill of rights added. ,o next, his persuasion congress forms a committee which meets in the summer of 1789, and medicine has a list of rights, many of them Incorporated Provisions i have discussed from virginia and england. They are not quite what we got in the first 10. Medicine had them in a different order, some of them taken apart, some of them drawn together. He also wanted to add a preamble. He had a statement that all rights come from people, and people always have the right to change their form of government. He also thought the additions should be inserted into the constitution and relevant places. He lost, fortunately i think, on both of those. Roger sherman, who was in the American History<\/a>. I wouldnt you think carl mingus for all of his support and his evaluation he is a valued member of the new york society. Trustee carl, thank you. [applause] i would also like to recognize and thank trustees von , and allally sternberg the chairman with us for their great work as well. Let us give a hand. [applause] an program tonight will last hour and include a question and answer session, and there will be a formal book signing following the program. Our speakers books can be found in our museum store, and he will be signing on the Central Park West<\/a> side. We are thrilled to welcome richard brookhiser, renowned historian and author, back to New York Historical<\/a> society. Is a seniorer editor of National Review<\/a> as well as columnist for American History<\/a>. In 2004 he acted as history and curator for New York Historical<\/a>s exhibit, alligator hamilton, the man who made water in america. In 2003, he received the national communitys metal. He has written numerous books on revolutionary america, including biography of james madison, which is why we have it here tonight. Have him here tonight. I ask you turn up cell phones and electronic turn off Electronic Devices<\/a> for the duration of the program. Join me in welcoming rick brookh iser. [applause] richard thank you all for coming. I was just speaking with carl mingus, and we were remembering that we first met in 2002, when carl had a program at his alma mater Hamilton College<\/a> about Alexander Hamilton<\/a>. We were saying we were early adapters, and the world has certainly caught up with our interest in that respect. The first tenant of the constitution, which we know as the bill of rights, were read afford ratified on december 17, 1791. That was 224 years ago yesterday. James madison was a major player in that story. And you will meet him in the course of the evening. Georgeant to begin with mason, another virginian, and i want to begin on such over 12, 1787. September 12, the Constitutional Convention<\/a> has been meeting since the end of may. They have been hard at work. On such over 12 on september 12, they give the final draft of the constitution. All of the decisions they had hammered out were given to Gouverneur Morris<\/a> from pennsylvania, and he trimmed, polished, edited, wrote a lovely preamble, and now he was on their desks for their final discussions. Mason that day, george was recognized, and he said we have not written the bill of rights. We have not done it. We could look at the bill of rights the states have in their constitutions, it would only take a few hours to write one. [laughter] so Elbridge Gerry<\/a> of moving to do was so, mason seconded. There was one speech by Roger Sherman<\/a> of connecticut. He said the state bill is still in force, we dont need another one. The vote was unanimous, every state including masons and jerrys voted no. Note committee. On september 17, the constitution was finally fixed, signed, and it was sent to congress, who would send it out the states for ratification without the bill of rights. What i want to talk about tonight is why mason suggested such a thing. Why his colleagues, including james madison, hadnt done it. But how the bill of rights then came to be written in ratified. And i will have a few remarks about its later history. Bills ofrights rights were a feature of angloamerican political thought. The beginning of it was said to be the magna carta, the great charter of anti15. 2015. We celebrated the anniversary this year. This was a document that was signed by king john. King john was very good at collecting taxes. He was very bad at waging foreign wars. He also had a reputation for cruelty. He probably wasnt crueler than most kings in the middle ages, but he had the reputation for it. Winston churchill, in his history of the English Speaking<\/a> people, talks about the disappearance of one of johns arrivals, and he says he was murdered by johns orders, it was not disputed at the time or afterwards. The weather he was mutilated or blinded before hand remains unanswered. [laughter] felte barons of england they were oppressed and miss governed. Revert verge the compromise that ended civil war was the night and a cartel. It was not a bill of rights as we would understand it today. It is a futile contract between a king and his most important e lords,ords lieg his obligations to them, theres to him. It is very detailed on medieval property question, for history law. Forestry law, how to deal with wales, which have been newly acquired by england. There were several points that would become items of later english and american bills of rights. One provision says no freeman shall be taken or imprisoned except by the lawful judgment of his peers. Normal man, not a wealthy commoner. By peerset up the jury. It also says lawful judgment of his peers. There is implication of due process of law, even as early as 1215. You are going to be imprisoned or punished, you have got to be judged by your peers, and there has to be a lawful reason for it. This principle has been laid down. Magna carta also says barons can petition to have transgressions regressed. They can go to the king with their petitions, their complaints, and he has to listen to them. He doesnt have to answer them or satisfy them, but he has to listen to them. That again is a very important point, the right to petition about your grievances. History isep in this 1688, we have another unpopular king in england, jinxes james ii, the last king of the house of stuart. He came after his older brother charles ii. They agreed with each other on their policy positions. They were both catholics and sympathetic to catholicism, and they both believed in royal power. But charles was charming, cautious, unlucky james was none of these things. Charles only converted to catholicism on his deathbed. Although he had 20 children, none of them were legitimate, so he wasnt going to pass on anything to his heirs. His was popular girlfriend was the actress malware, and she stopped the mob which was attacking her carriage by crying out, good people, i am protestant, so they left her alone. [laughter] james was an honest, earnest, and forthright adult convert to catholicism. He also had a son. In england 1688, catholicism and the spanish armada and louis the 14th. Was going out, but louis the 14th was very much alive. He could follow a catholic king, but they could not swallow a string of them. After james had a son in 1688, the nation rose up and offered the crown to william of orange, who was james nephew and soninlaw. He is married his elder daughter mary. This was like the sopranos in terms of internal dynamics. Conditionm accepted a of being king of england, a bill of rights which parliament passed in 1689. These were going to be the rules for his rule. These were the principles that would guide him. This would advance on the magna carta, the right of petition was extended beyond barons. Trial by jury was reaffirmed, especially in trials for high treason. The english bill of rights guaranteed freedom of speech in parliament and the right of protestants to have arms for their defense. One of the fears about james was that he was feeling the senior ranks of the army with catholic officers, and people figured there would be a religious to. Coup. So the right to bear arms was put in writing for protestants. And then there was excessive bail not to be required, nor excessive fines, nor cruel and unusual punishment inflicted. This was saying the english legal system could not christian a person crush a person financially, and he cannot torture a person. These are principles that would march on. , afternext century american independence, state passed their own bills of rights. The most famous was the largest, most important state, that was virginia in the spring and summer of 1776, known as the declaration of rights. The man who wrote this was george mason. , he was ann interesting character. He was a planter, a neighbor of George Washington<\/a>. The two of them hunted fox is together. He is a beautiful house, gunston hall, which is open to tourists in virginia. It has a lovely great hall that he commissioned. A lot of men of the founding generation did florida any expression deplored any expression of ambition. You were not supposed to show it. It was systematic of that roman hero that left plowing to fight for rome and then went back to his farm. And yet, we see that a lot of these men, they held office, they ran for office, they served in the army, they had commanding decisions in the army. George mason actually seemed to believe it. Of noked the talk ambition, and he also behaved that way. He did not like to hold office. He held it on rare occasions. When he was called in 1776 to be in the new post independence virginia legislature, he went, and he took the job of writing a declaration of rights. But he complained that the committee would have useless members that would make a thousand ridiculous and impractical proposals, said he was going to write it himself. He did a very good job. He called for speedy trials by juries in criminal cases. It is not just trial by jury, but speedy trials and civil suits. He copied the english bills of rights language on excessive bales and fines and cruel and unusual punishment. He condemned general warrants that allowed searches without. Vidence of particular offenses if you are going to search a mans house, you have got to say when you are looking for. You cant just go in the house and see what crimes and he may have committed. You have to have a warrant that specified what you are likely to find, or what you think you are likely to find. Mason praised freedom of the press, he praised malicious milledge is composed of people trained in arms, and he also called for the fullest toleration of religion. There he accepted a correction from one of his committee members. This was 25yearold james madison. Of fullestguage toleration cans from john locke, and is liberal sentiment of the late 18th century. Dave madison did not think it was liberal enough. He had been a defender of the religious minorities already for two years, as early as 1774. When he is 23 years old, he is enraged by the treatment that virginias baptists are suffering at the hands of the established festival majority. He is not it festival majority. He is not a baptist himself, but he argues about this with his friends, probably his father, who was industrial. He is on the committee to write to the declaration of rights. He insists that the language be changed to all men are equally entitled to the free exercise of religion. So it is not just toleration, it is an entitlement. You dont have to do it because someone allows you to have it. Your entitled to have it, and is the free exercise of religion, not just worship. It is broader than worship. It is the free exercise of your religion. This was a world historical shift in the understanding of religious liberty in the virginia declaration of rights. This was approved in june 1770 6, 3 weeks before the declaration of independence. To 1787 ino back philadelphia. Had not written a bill of rights. Certainly by the time, they all wanted to go home. Andifications were given the constitution went out to the states for ratification. One of the first state to ratify in 1787 was the largest, pennsylvania. Roughas a very ratification process. The support of the constitution had a majority, they knew it, they just wanted to vote and think things through and get it done. When antifederalists try to get onuorum, they stashed people the street that hustled them into rooms so they could be counted. It was hardball politics. One supporter of the constitution, james wilson, a scotsman originally, a lawyer now in philadelphia, who gave some intelligent and long defenses of the constitution. One of the things he defended what the absence of the bill of rights. The argument he made was that the english bill of rights and magna carta had all been carved from a background of royal power. England had a king, so therefore you needed statements of what the king could not do to the people. Wilson, in the United States<\/a>, power remains with the people, in the people at large. And by this constitution, they do not part with it. So the invocation is that people will not oppress themselves, therefore we do not need a bill of rights in the new constitution. Absence inense of an the bill of rights was offered by Alexander Hamilton<\/a> in new in thend he did this second to last federalist paper, federalist 84. And here, hamilton said, mason has says or rather wilson had said power remains with the people. What hamilton said in federalist 84 is that there is no power to do the things that the supporters of the bill of rights fear. Why declare that things, be done which there is no power to do . The example he used was freedom of the press. Said, if you say the press shall not be restrained, couldnt that give someone the idea that maybe it could be regulated . In other words, if you draw a line, are you tenting people tempting people to come right up to that line . It do better to just leave the whole subject alone . Half,ould be a clever by statistical way of thinking, but it is ambitious way of thinking. It was interesting that hamilton was making this argument. A third man who defended the fact that the constitution had not included a bill of rights was james madison. To his best letters friend and mentor thomas jefferson. Jefferson was in paris when all of this was going on, and he and madison wrote back and forth. Madison was keeping him informed of the new constitution. He was also keeping him on the board. Madison agree with jefferson, he admired jefferson. I think he was charmed all his life by the lightning flash of jeffersons mind. He also knew that lightning was uncontrollable, so there were occasions when he had to guide jefferson and prompt him and bring him back down to earth. We can see madison trying to do it about the bill of rights. He wrote jefferson and says, virginia has a bill of rights, which of course jefferson you. Madison had helped write it. But he said that i have seen the bill of rights violated in every instance where it has been opposed to a popular current. Is a newwords, it virginia constitution, the Legislature Just<\/a> goes ahead and violates it, wherever the people are in favor of it. It is only a partial barrier. The old security for peoples rights would be the structure of government of what we now call checks and balances. Jefferson wasnt having any of it. He kept responding to madison, saying a bill of rights was something every people was entitled to have, from every government. He used the metaphor drawn from architecture, which was one of the subjects dearest to his heart. Brace willt a actually keep a building up that would have fallen without it. You may think you are building it strong, but put up a next her brace, just do it. That will help keep the thing up. There were other forces working on medicine, and one of them was his old allies, political allies. And they were alarmed there was no guarantee of religious liberty in the constitution. And they knew that medicine was their friend, and medicine you that they were his allies. But they shared their concerns with him. They told him they were upset, and he paid attention to them. He also had to Pay Attention<\/a> to a man he did not particularly like, who is patrick henry. Brilliant. Ry was he was patriotic, he was eloquent. Madison and jefferson were certainly brilliant and patriotic, and jefferson was eloquent on the page, but neither of them were great speakers. Patrick henry was the greatest speaker of the late 18th century, and jefferson and madison did not like him. Patrick henry seized on the last of the bill of rights lack of the bill of rights. He say it may be summed up in a few words, so why not write them down . Is it because it will consume too much paper . [laughter] henry made many arguments to this effect. So madison, although virginia does ratify the constitution by the summer of 1788, it is the 10th state to do it. When the margin is very narrow. 180 some delegates in the virginia delegation, and it passes by a margin of only 10. And it passes without any conditions. It is a full ratification, but it does say that there ought to be a bill of rights gathered, that it should be the first order of business in the new congress, to add a bill of rights. And other states made similar provisions in their ratification debates. Massachusetts, another one of the three largest states, and so had several other states. James madison, if elected to the First Congress<\/a>, which means here in new york in the spring of 1789, and one of the top items on his agenda is to get a bill of rights through congress in that first year. Now there are a lot of potential rights to choose from. When virginia approved the constitution, they added a list of 20 rights they would like to see ratified, 20 changes, most of them right. New york had a list of 33, and it were other suggestions that came in. Madison had to deal with two sorts of skeptics. There were a number of people from the First Congress<\/a> that said that passage is brandnew, why are we changing it right away . Shouldnt we let it operate and then see where we need to do . A more dangerous kind of skeptic where people in congress who were opponents of the constitution. They were unhappy that it had been ratified, and what they wanted were structural changes to the document. Madison was determined to keep those out. He felt the balance of power in the constitution between divisions of government and the federal government and the states, he thought that had been very well arranged. He wanted that to stay. But he was determined to have the bill of rights added. ,o next, his persuasion congress forms a committee which meets in the summer of 1789, and medicine has a list of rights, many of them Incorporated Provisions<\/a> i have discussed from virginia and england. They are not quite what we got in the first 10. Medicine had them in a different order, some of them taken apart, some of them drawn together. He also wanted to add a preamble. He had a statement that all rights come from people, and people always have the right to change their form of government. He also thought the additions should be inserted into the constitution and relevant places. He lost, fortunately i think, on both of those. Roger sherman, who was in the First Congress<\/a>, said if we change the preamble, it will in danger the beauty of the preamble we already have. Lets look at the end. Lets not go into the text, lets put all the changes at the end. , the house comes up with a list, they send it to the houses and then the two bigger over it, and a list of 12 amendments goes out to the states for their consideration. The first one of these has to do with the size of the congressional districts. It never passes, and this is a question that congress has simply addressed by legislation. Of the district of houston of representatives was 33,000 people. As the country grew, district had to expand the we had thousands of members in the house. But this is all been done not by an amendment but congress simply passing a law. The Second Amendment<\/a> had to do with congressional pay raises, and it said there could be no nextaise until after the election of representatives. So in other words, if you are a congressman, you can vote a pay raise that you are going to get until you face the voters. So this is ratified by a number of states, and then installed out. And then in 1978, a college kid at the university of texas in austin noticed this potential amendment was still floating out there. Some states have ratified it. He began a Letter Writing Campaign<\/a> to state legislatures. In 1992, this amendment was finally ratified. It began became the 27th amendment. It had a 203 year pass into the constitution. [laughter] that is still the record. And then there were amendments three through 12, which will i will talk about and identify as the numbers we know them as, one through 10. Originally they were three through 12. And ae have is a review kind of summary of what has gone some newlus provisions. The First Amendment<\/a> is an omnibus. To prevent congress from tampering with free exercise of religion, freedom of speech or the press, or the right to assemble and petition for the redress of grievances. This goes back to 1215. The others are more recent. The second was the right to bear arms from protestants, to all the people. It added the phrase about the before the amendment defining the proper scope of warts. The fifth and sixth amendments that there should be both jury trials in criminal and civil cases. And criminal trials must be speedy. The eighth amendment simply repeated the language of the english bill of rights and of the declaration of rights about excessive bells and fines and cruel and unusual punishments. The others roca new ground. The third amendment address the grievances from the colonial. Power ted the armies armys power. It had to be done with the owners permission in times of peace and had to be prescribed by law in times of war. In other words, even in times of war the army cannot just come to your house and a stick a platoon in there. There has to be a law passed to do so. The fifth amendment is a great on minibus omnibus. It says that people should not be subject to double jeopardy, they cannot be tried it twice for the same crime. It forbids selfincrimination. It guarantees due process of law. You cannot be deprived of life liberty and property. And it says that property may not be seized by the government without compensation. This is what we now think of as eminent domain. Then the ninth and 10th amendments address the concerns of Alexander Hamilton<\/a> and james wilson. The ninth amendment says the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. In other words, if we say there is freedom of the press, you cannot creep up to the very edges of that. There are still unenumerated possess. At the people by stipulating something we are not inviting you to come to the borders of it. The 10th puts in black and white what wilson was talking about. The people and the states retained all powers not delegated or prohibited by the constitution. These amendments were submitted to the states. There was a flurry of approvals by january of 1796. February. Atified in rhode island in the summer. The last two making them ratified work vermont in inember, 1791, and virginia december 1791. Patrick henry had given up long before. He said virginia had been fooled and beaten, meaning that he had been fooled and beaten. For the longest time, the bill of rights was not deferred to in legal cases. There was a reference to the bill of rights a bill of rights, in an 1810 decision by the Supreme Court<\/a>. This was one of chief justices marshalls great decisions. Wasnt ahere constitution for the people of each state. What he was talking about was article one, section nine. In his mind, the bill of rights was a provision that no state shall pass a bill of attainder, ex post facto law, or law comparing the obligation of contracts. That is a something we do not think of the bill of rights. Why would marshall say that . He was a smart, thoughtful man. The best i can come up with is that these are, in a way, even broader provisions than the ones that are in the bill of rights. These are very sweeping provisions. Attainder, means you cannot pass a law criminalizing a person. You have to criminalize an act, you cannot criminalize a person. You cannot pass a law criminalizing syed farook. You can criminalize murder. But you cannot pass laws that criminalize people. Very sweeping prohibition. You also cannot criminalize acts that were legal when they were committed. Illegal, hadnt been and someone commits a mass murderer, you cannot pass a law the next week and say that was a legal. You cannot do that, you cant criminalize the past. You have to criminalize the laws and then whatever happens in the future can be dealt with. Then the right of contracts. You cannot pass a law impairing the obligation of contracts. That is a little more specific. Youre talking about something as specific as freedom of speech. If you think about it, how many times do we enter into contracts versus how many times we make speech that the government might prohibit . Mean, even contentious people in the audience, think about it. Maybe you argue with your family or whatever, but it is not that often compared with all the contracts you enter into every day. Thisrshall is saying, no, is the bill of rights that was in the because before any amendments were passed. It is an interesting thought. He also made a ruling in 1833. Who ownedn was a man a wharf in Baltimore Harbor<\/a> and the city had diverted some streams which caused silk to pile up by his wharf and made it ships to dock there. He sued the city of baltimore, saying they violated his fifth amendment rights. They had taken his property, the value of his property, without any legal proceeding. And in case went up to the Supreme Court<\/a>. The Supreme Court<\/a> ruled it was a matter of great importance but not much difficulty. They said that the fifth amendments and the other amendments contained no expression indicating an intention to apply them to state governments. So, the Supreme Court<\/a> made the point that the first 10 amendments apply to the federal government, a do not apply to the states. The fifth amendment appeared in a very important decision in 1857. This was the dred scott decision tawny ruledjustice that property cannot be taken without due process of law. Therefore a slave owner could take his slave into any territory of the United States<\/a>. The missouri compromise, which had forbidden taking slaves into the northern part of the louisiana territory was unconstitutional. That is not a very auspicious appearance of the fifth amendment in our constitutional history. Then in 1868, the 14th amendment was passed, and here, things begin to change. Says that nodment make or enforce any law which shall abridge the privileges or unities of citizens, nor shall any state deprive any person of life, liberty, or property without due process of law. Nor denied to any person the equal protection of the law. And it also says that Congress Shall<\/a> have the power to enforce this amendment. The federal government is taking control of the things that states may do. The due are applying process of law clause two states. To intention here was protect free men after the civil war. Andery had been destroyed abolished by the 13th amendment, was ratified december of 1865. But then what happens to the freemen . Toot of them were reduced pnh they had to get permission from white employers to show they were employed. If they didnt have a document they could be arrested as vagrants. It was not a good life they were leading and congress was trying to rectify this. Only in the 20th century did the Supreme Court<\/a> begins using the 14th amendment as a way of applying the bill of rights to state laws. It is a doctrine called incorporation. One of the most recent instances of it was the heller decision in 2010 which struck down a local guncontrol law because it said the Second Amendment<\/a> refers to a right that people have and estates may not prohibit it. But i am not going to go into detail on that. That is a topic for a second lecture. I just hope i havent showed you how we got here and where we started. So thank you very much and i both and i will take your questions. [applause] richard where are the microphones . Ok, there is a microphone there, a microphone there. And each one of the hallways. It is not like the Constitutional Convention<\/a>, you get to ask one question and i get to hold you to that. So, any questions . I see someone coming to a microphone. Yes, sir . I respectfully suggested John Marshall<\/a> was right. There was a bill of rights and the original constitution and i would like your comments. Judiciary,ent prohibition of ex post facto, and bills of attainder, and then lawtradition of the common that developed over many, many years, protecting individual rights. That,s your thoughts on and this is not said that we didnt need a bill of rights that would make it contextually clear in that point and time. Richard well, i should tell you all that my next project is a biography of John Marshall<\/a>. I have just begun. You cant help but being impressed by this man, by both his intelligence and his clarity of expression. Certainly, he makes a very powerful case. He is very interested in contracts. Anythingrohibiting that will inhibit the obligation of contracts. He is very where forwardlooking. States ase the united an economic unit, and he really pushes that as far as he feels he constitutionally can. You only get one question, but yes, i said as much. We make contracts every day. If you consider any purchase a contract, which i suppose you could, we make dozens of contracts, sometimes, every day. That is what makes the world go round. Marshall was smart enough to recognize that. His cousin, thomas jefferson, they hated each other, by the way. Absolutely hated each other. Jefferson thought of different things. He thought, it is fair to say, he thought things himself did. He thought of freedom of speech because he was a great writer. He cared of religious liberty because his own religious opinions work rather eccentric. He cared about thomas jefferson, and i dont mean that as a joke or to diminish him, because we all partake of that. He wasnt passing bill of attainder for himself, he was doing it for everybody. So, it is a deep debate and an ongoing debate, and one of the pleasures of this project will be to see it in its early stages and to follow it out at its origin. Question . You mentioned the word ambition about 10 times. That another founder, hamilton uses the term energetic. Our ambition and energetic mutually exclusive . Medicine andainly jefferson thought they were mutually exclusive and hamiltons case. They were very alarmed by his energy and what he seemed to be doing with it. Look, i said, there is a paradox here. , they applye myth it to themselves, they see that as an ideal. But, you know, a all go out into the arena. Office, theyd for all hold office when duty calls, which it frequently calls, they almost all respond. So, there is attention. There is attention. One of the things that has struck me over the years in writing about George Washington<\/a> was that i think his contemporaries were watching him , it was like a tightrope act. Here was this man, they had made him commander in chief, and he was commanderinchief for 8. 5 years. Then he went home. Then he was presiding officer. Then went home again. Then he was unanimously elected twice. Then he goes home again. You know, i think people knew him, they lived by him, sometimes serving by his side, they watched him. I dont know if they would have ever formulated this, but it was like, yes, he didnt let us down there, he didnt let us down there, by god, he didnt let us down. , maybe alsoation tinged with anxiety. Suppose he flips . Suppose he grabs too far . The anxiety was about themselves as well. Very interesting stance that he performed, both for himself and with all of his peers. Yes, sir . I know you said the heller case and the Second Amendment<\/a> could, by themselves, be a separate lecture. But i do have a narrow question. Is there anything in the comments would be how he would view the heller decision . Richard one thing he says in the federalist papers, it is a passing remark. He is comparing the United States<\/a> favorably to europe. Well, you know, europeans will put up with a lot of stuff that we do not put up with here, and we can resist because we are armed. Ar he is not talking about mies. Maybe hes talking about militias, but certainly not armies. About militias, he is talking about ordinary people who have their hunting guns and are familiar with the use of them. And he says this even know he is a civilian and not one of the founders who fought himself. But that is what he says. So, that is the only indication that i know of. Next . May be a little simple, but what i understand is the way you described the constitution is a living document. Would you say that the bill of allows it to be such a document, and in any way it changes the perception that we because of howts it changed our understanding of laws . Richard marshall does address this in one of his decisions. He says, and this is a famous line of his, you must never forget that it is a constitution we are expounding. What he means by that is that laws are specific. Specific, they are to address particular problems or particular issues. You know, we want to build a canal. , we need to clear a harbor. We need taxes for such and such an amount. On. Know, and on and on and but a constitution is not like that, and he was saying if you to to addresstry every specific instance in the constitution, you would probably fail for the present and you would certainly fail for the future because he says this is billed for future for the future. He uses different times, using phrases like centuries or for all time, forever. New stuff comes up and you have to react to it. And the constitution both allows you to react to it and also allows you to change the constitution, and there is an amendment process. We had these first 10 by 1791. It is not easy, not click, but it is not impossible. ,he only thing you cannot do because editions says you cannot do this is you cannot deny a equal representation in the Senate Without<\/a> its consent. That is one thing it said you cannot do. It also said you could not prevent the implementation of slaves for two years after this was ratified, but that is now a dead letter, since that was 1808. No, because addition was made to admit the possibility of change. People also look at the whole document and try to see with the spirit of the constitution, what is the egos of it, what are the Guiding Principles<\/a> . Can we draw any hints or clues as to how we can behave from the constitution . Would it be a good idea to say, well, the presidency shall henceforth be an inherited office . Beshall be ratified, it will asked onto to his eldest son. You could do that. With that the smart . Would that be smart . There was an argument when the prohibition amendment was being ratified. It went to the court, and they made an argument that the amendment was unconstitutional. A court rejected the argument, but it led to a great headline. Some newspaper came up with, beer hires root. You cant let those go, you just have to grab them. Yes, sir . Regards to the nice amendment. Amemdment. It is stated in the negative and because of that, one has the impression it is very open ended. The courts have therefore been reluctant to touch that. Because they could open up a can of worms. I wonder if you could comment on that. Richard we are talking about the ninth, the eighth is right, right yes. People i dont remember the exact word but there is a nickname for the ninth and 10th amendments among legal types because they are less often cited. You know, people go for the 14th fifth, andok at the it sometimes the second comes into prominence, the ninth and the 10th, you know, it is hard to know what to do with them because as you say, they are very broad and they seem openended. I cant do any better than that. I can just note the fact that it is so, and note what we have done with it and what we have not done with it. But, there they are. So, if there are any clever lawyers out there, you know, go to work. Yes, sir . You mentioned that each of the states had bills of rights. Richard not all of them, but a lot of them. Well, that was their suggestion to congress after they ratified the cost edition. He said, oh by the way, here are 33 ideas we have that you should stick in there. But new york also did have a bill of rights for itself. That hamilton makes several times in the federalist papers is, well, our bill of rights says nothing about freedom of the press. Here are all these people complaining there is no freedom of the press because addition in new york, but our own constitution says nothing about it. Im sorry, what was your question . No, not at all. It being reduced to 10, were there any big ideas from the other states that were left out of the 12, or do the representingjust summaries of those rights that existed in the other states . Richard i think what was mostly left out were provisions to change what i called structural aspects of the cost edition. I mean, of the constitution. Some were saying, change the president change the provisions. Ofnge the percentage congress that was required to overturn a president ial the toe. Veto. Those were the things medicine was particularly keen to shoot down. What they had come up with, and nobody got what he wanted, nobody got everything he wanted. The whole thing was a compromise. The whole thing was somebodys copper mice. Pulled out aand part, you will be there forever. One of the interesting things that was in there, madison suggested there be prohibitions on state action as far as freedom of speech, free exercise of religion, and there was some third thing. He was going to have the constitution forbid states from inhibiting those rights. Time. As way ahead of his the congress, we are not going to do that. It wasnt until the 20th century that the Supreme Court<\/a> started saying, oh, we can sneak that into the 14th amendment. Thank you very much. [applause] thank you, so much. The booktate for signing and thank you all for coming. We hope to see you all soon. Good night. I am a history buff. I do enjoy seeing the fabric of our country and how things, just how they work and how they are made. I love American History<\/a> tv. Fantastic show. I had no idea they did history. That is probably something i would enjoy. With American History<\/a> tv, it gives you that perspective. I am a cspan fan. Interested in American History<\/a> tv . Visit our website, www. Cspan. Org history. This this years Student Competition<\/a> was one of our biggest yet as students competed for 100,000 in prizes. They produced documentaries using our road to the white house theme, answering the questions they wanted the candidates to discuss turn to 2016 president ial campaign. They told us the economy, the quality, education, and immigration were all the top issues. Tune in wednesday morning at 8 00 during washington journal when we will announce the grand prize winner, firstplace winners, and the fan favorite selected by the public. Watch live on cspan and cspan. Org. I am a teacher, so i am watching the programs carefully. The corehappy with that has been have being so i would like to see it changed around. I will vote for Bernie Sanders<\/a> or hillary clinton, i am happy with both of those choices. I have decided i imploding for ted cruz for the candidate see because he is a scholar, he is eloquent, and he is principled out of all the other candidates so far. Each week American History<\/a> tvs american artifacts visits museums and historic places. Up next, a visit to the National Museum<\/a> of American Jewish<\/a> history in philadelphia to learn about their exhibition, tracing the history of the jewish people","publisher":{"@type":"Organization","name":"archive.org","logo":{"@type":"ImageObject","width":"800","height":"600","url":"\/\/ia801307.us.archive.org\/14\/items\/CSPAN3_20160307_020000_James_Madison_and_the_Constitution\/CSPAN3_20160307_020000_James_Madison_and_the_Constitution.thumbs\/CSPAN3_20160307_020000_James_Madison_and_the_Constitution_000001.jpg"}},"autauthor":{"@type":"Organization"},"author":{"sameAs":"archive.org","name":"archive.org"}}],"coverageEndTime":"20240624T12:35:10+00:00"}