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0:00
Thomas Donnelly: How are you doing, Kerry? Kerry Sautner: Awesome. Hi everybody. My name is Kerry Sautner, I'm with the National Constitution Center, and I'm going to be your host today as we walk through this awesome class on the Bill of Rights. I get really excited about the Bill of Rights, but we got to have a special lecture today. Mr. Tom Donnelly is with us today. Tom, would you like to introduce yourself? Thomas Donnelly: Hi. I'm Tom Donnelly. I am a Senior Fellow for
0:22
Constitutional Studies at the National Constitution Center. Thank you so much for being here the day after election day to learn about the Bill of Rights. Kerry Sautner: We're going to talk about the Bill of Rights, which I'm so excited to talk about, but I want everybody to know that the class lasts about a half-an-hour long, we are recording it and live streaming. If you have questions for the Bill of Rights class, make sure you put them in the Q&A or the chat.
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But at the end of class, we will wrap up, but we're going to host about 5-10 minutes of office hours today, because it is a big election week, we want to make sure that we get your constitutional election questions answered today as well. So we will hang out with you afterwards, and talk all about this great, amazing moment in history and the Constitution. Let's first start with all of the questions on the Bill of Rights. Tom, lots of questions on this,
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and here, we're going to list these as goals, but they're really questions that we ponder and goals that we want to achieve and knowledge. First, what is the Bill of Rights? What exactly is it? Some of them thought it was really important, the guys behind me, why did we come up with a bill of rights in the United States Constitution? Was there a Bill of Rights before our bill of rights in the United States Constitution in 1791? How did they come up with those 10
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exactly and were there others being kicked around? Then what is the role of the Anti-Federalists in making the Bill of Rights? How has the Bill of Rights changed over time and changed in the time of COVID? That's all of the questions we want to achieve and go through today, and I think you can do it. You want to start off with the big idea and give us a nutshell, takeaway about the Bill of Rights and how we should understand them. Thomas Donnelly: Absolutely. Today, ambitious set of goals there,
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but we shall do our best. What's the big idea? What do we want to really come away with about the Bill of rights today? Well, first, with the Bill of Rights, the founding generation brought some of our most cherished liberties into the Constitution. The original Constitution is written in Philadelphia in 1787, did not include a bill of rights, but the first Congress, and we the People ratified it shortly thereafter. It wrote things like free speech, religious liberty, those sorts
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of core values into the Constitution. That's the broadest, biggest idea. But the other really big point to keep in mind is the transformation of the Bill of Rights over time. The Bill of Rights, as ratified by the founding generation, only applied to abuses by the national government. It did not apply to abuses by the states. It's really the Bill of Rights, think about it, at the founding, if the national government does something bad that violates one of your core protections,
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you would have a claim, but not if it was your state governor. That's at the founding. But we have a civil war, we fight a civil war, we ratify a 14th Amendment after that civil war, authored by John Bingham, who's standing behind me over here. But what this 14th Amendment does with Supreme Court decisions afterwards is it nationalizes the Bill of Rights, it transforms it into a national charter of freedom, meaning that the Bill of Rights, Act of the 14th Amendment,
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after the Supreme Court's eventually done with it, applies not just to abuses by the national government, but also to abuses by the states. Lawyers could use the fancy term incorporation, but really, all it means is that after the Civil War, after the 14th Amendment, after Supreme Court decisions in the 1950s, especially onward, the Bill of Rights applies not just to abuses by the national government, but abuses by the states. It's a charter of freedom against
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all levels of government in the United States. Kerry Sautner: Tom, one of my favorite things that we were talking about in class earlier is you talked about how the Bill of Rights states our core values, and it's almost our civic religion. What I loved about this statement and this belief and understanding, is that when we talk to visitors and I'm talking visitors of all ages to the National Constitution Center, when we ask them, what do you know about the constitution?
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When you think of the Constitution, what pops into your head? It's almost always an amendment in the Bill of Rights. That's what pops out. People are more and more aware of the structural constitution, especially right now on an election week, all these things, but really understanding who we are as Americans and these Bill of Rights. But when we talk about that, and I want to walk through all three of them, just one question before we get started,
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it wasn't in the original constitution, was it though? It feels so important to us, but it wasn't part of the structural constitution. Thomas Donnelly: That's absolutely right. Yeah. It ended up being one of the first things we have to do once we have a government under the new Constitution. It's an amazing thing to even contemplate today. Kerry Sautner: Sometimes, in hindsight, we value things more than maybe we did in the beginning. Let's do a real quick.
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You said this earlier, it made me laugh, instead of doing a walking tour of the Bill of Rights, we're going to do a running tour of the Bill of Rights, because we've got some smart cookies in class today and we're going to just walk you through every single amendment, and give you the big idea for each amendment. Then we're going to dive into the history, where the ideas came from, and then jump to that 14th Amendment and a modern question too. Thomas Donnelly: Sounds great.
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Kerry Sautner: We could do it. [APPLAUSE] Thomas Donnelly: Let's start. First Amendment, let's tee it up. The First Amendment, we want to think about five different freedoms here in the First Amendment. The freedom of speech, of the press, of religious liberty, of assembly, and of petition. Let's just take each of those very quickly in turn and just try to capture the big idea. With free speech and press, I'll put them together, and say what this really represents is
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America's robust commitment to broad free speech rights. If we think about the free speech and free press today, one, it's protected more by the Supreme Court than it ever has been in our entire history, and the United States is the most free speech protective country in the world. With that, what we understand is that the government, generally speaking, can't punish us for what we say, unless it's likely to incite immediate violence. It ends up being a really speech protected rule.
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There are exceptions, we'll talk about them in later lectures, but that's the big idea to take at the top here. Religious freedom. Two big ideas there. One is that the First Amendment is a restriction on the government's ability to establish religion, that's one part of religious liberty. The other part is it expresses the right of us to exercise religion freely. We really think of that as connected, when we're thinking about it outside of the language of constitutional law,
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it's really protecting a freedom of conscience, a freedom to believe freely what we want to believe. That's the core of religious liberty, those last two rights, petition and assembly, there aren't a lot of petition or assembly cases before the Supreme Court, but these two rights are the absolute core of the American constitutional story. These rights were so important throughout American history, especially for groups that were excluded from political power. If you think about women
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before they had the right to vote, African-Americans before they had the right to vote. But even also unpopular groups. Think about abolitionists, people fighting slavery, the early 1800s were highly unpopular politically, but the ability to assemble and express what you want to say, through the mere presence of a large group, and also the right to petition your government to write down the things that are bothering you, and the government has to read them. Think about this, what we did with the
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Declaration of Independence and right here, we're constitutionalizing that in the First Amendment. The big idea of First Amendment writ large, freedom of conscience, we end up being able to freely believe what we want to believe, and then free speech, press, assembly, petition allows us to say it freely. Kerry Sautner: The entire month of February, we're going to spend on the First Amendment, and we're really excited about it. Then we're also going to do a class
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on the next amendment, the Second Amendment. Give us the rundown on the second amendment. Thomas Donnelly: Yes. The Second Amendment at the core, is about the right to keep and bear arms. If you look at the amendment, there are two parts to it, the first speaks about rights that are associated with the militia, and the second part is a right of the people to keep and bear arms. The big constitutional question is whether to read the Second Amendment as
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gun rights that are really associated with you serving in a militia with your fellow citizens in a community, or whether the Second Amendment speaks more broadly about an individual right to keep and bear arms to say, keep yourself safe in your home, to keep your family safe in your home. That's the contested constitutional question. What the Supreme Court said just recently, in cases beginning in 2008, in the last decade or so, is that we do have an individual right to keep and bear arms
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for purposes of protecting ourselves in our homes. There are a lot of other questions that spin out of that when it comes to the second amendment, a lot of contested questions the court's going to have to address in the years ahead, but that's the core protections that court understands it today. Kerry Sautner: Usually not talked about all that much, Third Amendment. Thomas Donnelly: The Third Amendment, this is saying that the government, basically, it can't force
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you to keep soldiers in your home. Which we may think, well, that's a weird thing to have in the Bill of Rights and we don't talk about the Third Amendment much. But this is rooted in the American colonial experience, the quartering act that required American colonists to have British soldiers stay in their homes, and then that experience was seared in the memory of the founding generation, and so they tried to prohibit it here with the Third Amendment. Really respecting, it's a vindication,
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a celebration of our rights to property and especially to the privacy in our home. Kerry Sautner: I know we're not supposed to have favorites, but I have to say, I love studying the Fourth Amendment. I'll say it that way. It's not my favorite, it's my favorite to study. [LAUGHTER] Thomas Donnelly: The Fourth Amendment, when you're accused of a crime, when you're a suspect, these are certain rights that you have. They're rights to particular things. Persons, houses, papers and effects,
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what is it a protection against? Unreasonable searches and seizures. The government coming to your door, trying to search your home, trying to seize you and search you while you're on the street. Then the last part is, we often hear about the police officers being able to get warrants. What that last part of the amendment speaks about is what the requirement is for, say, a police officer to get a warrant that allows them to search your home or search your person. But the big idea here with
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the Fourth Amendment is that if the government wants to search you, wants to search your home, wants to seize you, wants to seize your property, it needs a good reason. It needs a reason that's not general. There were general warrants at the colonial generation where you could just write, basically search everywhere for anything that has to do with this person. No, you need a particular reason for why you suspect that person of wrongdoing. That's what makes a search reasonable.
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The government needs a good reason to search you, to search your home, to seize you, to seize your property. Kerry Sautner: Now, another big one, we talk about the Fifth Amendment. There's a lot packed into this Fifth Amendment. What's the big wrapping package around it? Thomas Donnelly: Yeah. It can feel like a bit of a hodgepodge. There are really two big parts to it. The first part of the amendment really has to do with rights of the accused and rights to fair process,
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and the last clause there has to do with property rights. What do we get for rights of the accused, rights to good process? Well, before you're charged with a crime, requirement for a grand jury, if it's a capital crime. Protection against double jeopardy, which means that the government can't trial you for the same crime twice. If you're found innocent, they can't trial you again for that same crime. There's the famous 5th Amendment, the right to remain silent.
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I think when we hear 5th Amendment, if anything comes to mind, it's the right to remain silent. It's that Miranda rule that's there in the 5th Amendment. There's a right to due process. The government can't take away your life, liberty, or property without due process of law. This really going fundamentally to fair procedures. To make sure the government is treating you fairly. In that last part, government can take private property for public use without just compensation.
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It's really a protection and a recognition of people's property rights. If the government's going to take your property to say build a highway or something like that, government has to pay you for that property. Interestingly, just a side note about that last part, why this might feel like a really weirdly bundled amendment? I think the only part of the Bill of Rights, this is what Akhil Amar taught me is that you look where the Bill of Rights,
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Madison is really coming up with largely on his own, is that final takings clause. That ends up being something that's in their bundled together with the rest of the 5th Amendment rights. Kerry Sautner: What book does Akhil lay out the 10 amendments? Because the way he does that, and it's one of the chapter, I think it's the Bill of Rights book. He lays out like this is why they're at it in like two pages and it is poetry. It is so beautiful, so well done together. I've read it 50 times and
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then I've seen him walk through. It's a really good piece. I'll try to find it for everybody and you can hear him do that wrap up. I think it's his Bill of Rights book. Thomas Donnelly: Yeah, that would make sense. Or it might be the chapter in American's Constitution: A Biography. He might do it in both places. Kerry Sautner: They've looked exactly the same, so it's hard to remember. [LAUGHTER] Next, the 6th Amendment. Thomas Donnelly: The 6th Amendment, we're still dealing with
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people who are accused of crimes largely. Here it's especially the jury right. What do you have a right to? Well, to an impartial jury? That's drawn from roughly where the crime is taking place, move it right to a speedy and public trial. The government can't just hive you away for a long period of time and make you suffer. Your trial has to be public. They can't just do things behind closed doors. Important protections both for the accused but also for we, the citizens, to see what
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the government is doing in that context. You have a right also then to be informed of the offense against you. The government has to tell you what you're being charged with. Then you, once you're accused, you have a right to confront the witnesses. This is the confrontation clause. You can cross examine those witnesses. It's again, a guarantee of a fair procedure. Similarly, you can force witnesses to come forward and testify so you can make your case.
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Then finally, you have a right to assistance of counsel, so you have a right to legal representation in a large subset of cases. Kerry Sautner: Seventh. Thomas Donnelly: The 7th Amendment, this is again about jury trials, but this is not about criminal trials, it's about what lawyers call civil trials. These are not crimes, but they were, someone's suing someone else for money, or for breaking a contract, or for harming you in some way that's not criminal, or bringing suit against
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the government for abusing your right. Those are all things that could fall under the 7th Amendment. The founding generation, the Anti-Federalists were very concerned that the original Constitution didn't include a civil jury right. So here, right there, Madison's making sure that it gets into the Bill of Rights. Kerry Sautner: Usually, I feel like most 5th grader's favorite amendment, the 8th Amendment. [LAUGHTER] Thomas Donnelly: Yeah. This is a limitation of
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what punishment the government can impose on you. It says bail, bail can't be too great fines, but the important phrase that most people knows, there can't be cruel and unusual punishment. Here again, it's that deep concern, especially of the Anti-Federalist, but more broadly in the founding generation of, what is a powerful government going to do to the accused and then to those who were ultimately convicted at the end? This provides a certain set of protections
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against punishment that's really bad, that's cruel and unusual. Kerry Sautner: Ninth Amendment. Thomas Donnelly: The 9th Amendment, I think I've heard you say, Kerry, it's kind of a catch-all amendment and I think that's a great way to think about it. Amendments 1 through 8 are sitting out some of our most cherished liberties. What the 9th Amendment reminds us is, that list isn't a list of all of our rights. Just because we haven't listed a particular right in the first state,
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doesn't mean that you don't possess that right as against the national government, as against government abuses. This is meant to speak to the concern that if you've written down a Bill of Rights, it's going to be hard to list all of the rights you have. What happens to the ones that you don't list? This is telling you don't read that Amendments 1 through 8 as the only rights people have. Scholars of our time, some scholars have read this as guaranteeing certain natural rights that people have.
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That aren't listed in the Bill of Rights, but you can still bring a claim against the government for violations of those unnamed, those what are called unenumerated rights by lawyers. Kerry Sautner: I love this one because it's like a safeguard too. It's a catch-all safeguard. Thomas Donnelly: More like a privacy, would be like a classic example. [inaudible] [OVERLAPPING] Kerry Sautner: Yeah, and I think there's a lot that we believe in that. You don't think about the 9th Amendment
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a lot and people don't talk about it, but it really is in there to safeguard and assume and just say like, don't worry. If it's not written down, doesn't mean it doesn't apply to you. You have these base rights. Then the 10th Amendments is the flip-flop of that. It's trying to define whose rights it is. Thomas Donnelly: Yes. We've talked a lot in this class about federalism. In many ways, this ends up being a Federalism Amendment. This is about protecting the traditional powers of the states.
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Remember with the new Constitution, we're creating a government that's more powerful than the Articles of Confederation. It's a more powerful national government for the Anti-Federalists. The great concern is that the national government's been given too much power, it's going to have this insatiable appetite to swallow the states and seize all power. States will be able to do little and the national government, which is distinct from the people, will do too much. The 10th Amendment says, no.
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States have always had an important place in our system. It always been the primary way in which we've set policy about how we remain safe, how we remain healthy. So many of the things that we care about most, those laws are passed by state governments. The 10th Amendment recognizes that, and it says the national government is powerful but said government of limited powers and it's an affirmation that the states will continue to play a central role in our system.
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The 10th Amendment, again, it's about federalism. Kerry Sautner: [LAUGHTER] It spells it out. We look through these amendments, the one through 10, and then we look at the Constitutional Convention and say, they're added after the ratification of the Constitution. Why? Did they not worry about it? Was it something that came up during ratification or was it something that they felt like they already had it covered? Thomas Donnelly: Yes. It is an amazing thing we take for granted.
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We read the Constitution and Bill of Rights. Kurt Lash was one of my favorite scholars like to refer to it as like a belief in the constitutional big bang, and our big bang really bushes those two moments together, but they are separate moments. It is really interesting because you remember, at the Constitutional Convention, we had a lot of business to take care of. We had a one, say, we're not going to settle for the Articles of Confederation,
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we don't care the Congress set us here to revise them, we're going to write a new framework of government. Then we're going to have to hammer out, what does the national legislature look like? What is the executive? What is the president look like? What is the judiciary look like? That's a lot to take care of that. A lot of compromises, a lot of arguing, a lot of work in a hot, sweaty summer. At the same time, it's not as though a Bill of Rights was unknown to the founding generation.
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They still thought of themselves and part of the reason why we fought a revolution was precisely because we thought that we were entitled to the rights of Englishman. Those rights had written into the English Bill of Rights after the Glorious Revolution. That was meant to limit the king and create more power for the state legislature. We really thought back, the framers really would have thought back, the English Bill of Rights and the rights that are written in there, rights that are again,
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meant to protect you against abuses by your government. But, of course, also before we wrote the Constitution in 1787, we have state constitutions that have existed for over a decade and many but not all, but many of these state constitutions had Bills of Rights, had Declaration of Rights. The most famous is the one that Kerry has on the screen right here, which is the Virginia Declaration of Rights, which was written actually a month before the Declaration of Independence.
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Thomas Jefferson, of course, a Virginian, knew the Declaration of Rights very well and it inspired him in many ways as he was drafting the Declaration of Independence. It was written by George Mason, his fellow Virginian, George Mason who would then also serve in the Constitutional Convention. It really shouldn't surprise us that as we were speeding towards the end of the convention in September, the closing days, George Mason says, "Wait a minute, where are the Bill of Rights?
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There's no Bill of Rights in here, shouldn't we do that?" I believed the way he put it was something like, if we add a Bill of Rights, it will give quiet to the people. It'll quiet some of the concerns they may have about a new and strong national government. By the way, guys, you've got the Bill of Rights guy right here. I'm George Mason. I wrote the Declaration of Rights. Give me a few hours, give me a day. I can put together. We can agree. We all know what rights we really want protected.
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Just let me do it. I'm sorry, Kerry. Yes. Kerry Sautner: I was listening to your story. It just makes me laugh so hard because at the end of four months of sweating and smelly Philadelphia jammed into a room together. Then there's Mason like, "Hello, over here." Do you think when he said, "Let's just add a Bill of Rights," at the end of the convention there was an audible groan that happened throughout the convention? [LAUGHTER] Thomas Donnelly: I read Madison's notes. It's [NOISE].
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[LAUGHTER] It must be in there, and that Edmund Randolph wants to do him one better, which is like, "What we'll do is we will allow these state ratifying conventions to set a number of amendments first, and then we'll have a second Constitutional Convention." To which again the delegates at the end of this really divisive, hot, hard thought process of building a new constitution were like, "No. No, we don't want that," so no state supports George Mason's call for Bill of Rights.
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Other of the delegates do. Elbridge Gerry did for instance. It's not a coincidence then that the dissenters behind you, Elbridge Gerry, George Mason, Edmund Randolph, those are the three people at the end of the convention that refused to sign the Constitution. One of the key reasons, especially for Mason, is that it doesn't have a Bill of Rights, so we approve a constitution to Philadelphia at the convention without a Bill of Rights, we send it along to the states for ratification.
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Certainly not to Mason's surprise, what is one of the great objections to the new constitution? The Anti-Federalists, we know, are the group of people who were opposing the new constitution. One of their key arguments is, where is the Bill of Rights? You're creating this new powerful government. You're doing more than Congress said you should do. You're not just revising the Articles of Confederation, you're creating a new government that's going to destroy the powers of the states,
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and that's going to put all power in the national government, and you're not even going to write a declaration of rights in there? You're not even going to have a Bill of Rights in there? What are you thinking? This ends up being one of the great objections of the Anti-Federalist. Mason, who writes an influential essay on his opposition to the constitution shapes a lot of that Anti-Federalist discourse at the elite level. That's one of his key arguments,
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and so you see this in a variety ratifying conventions. Again remember the ratifying debates, the ratifying conventions, a lot of them were very closely contested, and so what we see over time, especially in some of these big states, is the people opposing the constitution, some of what you might think of as a swing vote at the convention saying, "Maybe we can approve of the new constitution, but promised to get us a Bill of Rights." You see it from various conventions,
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figures in those delegates to those conventions writing out different rights that they would want in the new constitution, different amendments they want to the new constitution, and then the constitution being ratified with the understanding that the first Congress is going to write the set of Bill of Rights, send it to the American people to ratify, and then of course, if it really is the proper Bill of Rights that really does capture our core liberties,
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of course, the American people are going to ratify it. Of course, the states are going to ratify it. Here we are. I see James Madison on the screen. We're in the first Congress, James Madison is sitting in the House of Representatives. He himself was a skeptic of the Bill of Rights. Many of the Federalists were. They got two related reasons. One is that they felt the structure of the original constitution would be enough to protect people's rights. The national government is a government
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of limited powers, and nowhere in there does it say the national government can violate speech, or press, or religious liberty, et cetera, and of course, the American people themselves will not stand for this. Over time, they thought that those sorts of protections would be enough to protect our core liberties. The states also had Bills of Rights so you would have protections for your core liberties in your state constitutions. Finally, there was that concern that
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if you start listing some rights and you leave some out, we might end up with fewer rights than we had at the beginning, that it might say something about only the ones that we write down are the ones that are protected, not others, which is why we have the Ninth Amendment. Madison is skeptical of the Bill of Rights, so is James Wilson, so is Alexander Hamilton; these key supporters of the new constitution. With James Madison, a couple of things. One, he's running for office.
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He has to run for the House of Representatives and I think he had a sense that its constituents wanted the supporters of the new government to stick with their bargain and make sure there's a Bill of Rights in there. Two, he's communicating with Thomas Jefferson who was out in France, and Thomas Jefferson is like, "Mr. Madison James, where in the world is the Bill of Rights?" Madison gives his arguments for why there doesn't need to be one, to which Jefferson basically says,
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"Would it really hurt to have those protections in there? Would it really? I mean, maybe it won't do everything, maybe we can't list everything perfectly, maybe they are parchment barriers, maybe really the Bill of Rights requires people to feel it in their hearts, that it doesn't just matter that it's in the constitution, but could it really hurt?" Then finally, and this is I think Madison's focus. It gets to the core of his constitutionalism, but also to him as a tactician,
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and understanding the political project of creating a new America. We have the first election, Washington wins unanimously in the electoral college, becomes the first President. Washington, one of the great supporters of the new constitution. Congress goes to the Federalists. The Anti-Federalists are routed, so Washington, the Federalists, they have no particular reason to honor their bargain and put a Bill of Rights into the new constitution, but Madison understood that
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for the American project to work, you had to create compromises that would bring even the people who oppose this new project into the process. That they may disagree with how we think the constitution should be understood, how it should be interpreted over time, how it should be enforced, but we want them to disagree within the system, not outside of the system, and so for Madison, he understood that the compromise over the Bill of Rights was a key way to bring those figures in.
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He takes control in the first Congress, crafts a Bill of Rights, a combination of what he sees in the state constitutions, what he sees from the state ratifying conventions, those suggestions. What he basically does is he writes core liberties in, he keeps some of the suggestions of how they further weaken the national government out, but in the end creates a Bill of Rights that has 17 proposals in the House, the Senate winnows it down to 12, sends it along to the people for ratification.
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The American people at the time ratified 10 of those amendments. It's not as though all the Anti-Federalists were thrilled with the Bill of Rights. Some of them thought it was pretty lousy actually, but it wound up assuaging enough of the concerns, and over time as you said at the beginning, Kerry, the great scholar Saul Cornell puts it this way, "It becomes a part of our civil religion." Madison understood this. By writing down these key rights in the constitution,
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the American people will learn. They will learn that these rights are core to them, and they will use those rights to evaluate what the government is doing. When the government abuses those rights, they will jealously guard those rights. Not just in the courts, but in politics, and that ends up being a core part of the Bill of Rights project. Kerry Sautner: I love that. I mean, I love that in so many ways. I love to see how Madison says, "We need to embrace our adversaries and come
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to a compromise to bring us all together as Americans." That's a good lesson to learn every year and to hold on throughout time, but also the show that this listing of Rights becomes the power of we the people, and the strength around we the people as well. That's why people identify it with so much today because it's our tools, but that's not how it always was. It's just applying for everything in the United States. It just applied to the national government.
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At the end of the Civil War that all changes. We get to talk about my favorite topic, incorporation next but it really looks at how do we the people utilize these tools to have voice, to have agency, and to have individual rights? Not just rights to stop the national government. Tell us about reconstruction and one of your favorite people, John Bingham. [LAUGHTER] Thomas Donnelly: I'm sure I have like three minutes, so I will do it as quickly as possible. John Bingham,
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Ohio representative during reconstruction, this is the period after the Civil War. Hugo Black, the great justice of the 20th century called John Bingham, the James Madison of the 14th Amendment. James Madison is the father of the Constitution, the father of the Bill of Rights, and John Bingham in many ways is the father of the 14th Amendment. What does the 14th Amendment do, it will fundamentally at Rights the Declaration of Independence as the promise of freedom
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and equality into the Constitution. It sets new constitutional baselines for America after the Civil War and for Bingham, what it did, and he felt this so deeply, was that it made sure that the Bill of Rights became a national charter of freedom, one that we can use, not just against the national government, but against all levels of government, with the 14th Amendment, with later decisions by the Supreme Court, the 14th amendment then applies to the bill of rights to all levels of government.
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If the national government abuses your rights, if the state government, if the local governments abusing rights, you will have a claim under the 14th Amendment. Now, I do want to say that that's a way of telling the story. We have to understand that over time, the process, the Supreme Court actually follows to extend the Bill of Rights, it's a case-by-case, right by right process. Even today, not every core right in the Bill of Rights has been what we call incorporated against the states.
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Not literally every right in the Bill of Rights applies to state abuses, but almost all of them have, and the Supreme Court still doing this project. Just over the last two years, they've incorporated two new rights, the Eighth Amendment's ban on excessive fines, and its also extended the sixth amendment protection for unanimous jury verdict. The Supreme Court is still doing this, the ones that are left out still, are the Third Amendment, which in part,
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it's because of soldiers being in your homes. We don't have a lot of cases to really test that one. But the other two are the Fifth Amendment grand jury right, and the Seventh Amendment civil jury right. The question is, will the Supreme Court continue on this process of selective incorporation or not? But the core thing, again, two things to bring home. Remember John Bingham, he's a forgotten founder and an important figure in making sure that the Bill of Rights really is the bill
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of rights as we know it today, and two, that the core legacy of the 14th Amendment and the Supreme Court decisions from the 1950s onwards is that the Bill of Rights is going to apply against all levels of government, not just the national government, but also the states and local governments. Kerry Sautner: Awesome. We have one more minute left and I want to do a real quick hypothetical question. Bill of Rights during time of COVID, so assembly and petition I think are
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my newfound favorite parts of the First Amendment. We love speech, we love all of those. But when you dig into the history of assembly and petition, it is unbelievable how our country have used those two tools over time. This is an assembly question. During the time of COVID, there has been restrictions on the state level about how many people can gather. The question is, if there's a gathering, it could be a church service, it could be a protest, it could be a vigil.
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But if there's a gathering of over 50 people and police stop that, does that violate the First Amendment's protection for the freedom of assembly? We'll turn to you guys first in the chatbox. If the police say you can't have this gathering, this midnight vigil because it's 150 people, does that violate the First Amendment's protection for the freedom of assembly, if that town, if that city, if that state said you cannot gather over 50 people? Yes, no, maybe, it depends.
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Chatbox now. "Time, place, manner". Thank you, Matt. [LAUGHTER] "It depends". Good one, Marvin. [LAUGHTER] Thomas Donnelly: My favorite answer. Kerry Sautner: Yes. Me too. It's like the best parent answer ever, and it works for constitutional law. [LAUGHTER] Thomas Donnelly: I use it in both contexts. Kerry Sautner: [LAUGHTER] Me too. "It depends. I personally believe it does violate the First Amendment, but that does not make it any less irresponsible".
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[LAUGHTER] Thank you, Tom, I appreciate that answer. Collins shared, "Although I personally don't want that to happen, I think it would violate the First Amendment". Again, I go back to time, place and manner, with Matt. Tom, bring us home with, "It depends". Break that down for us and tell us how it really works. Thomas Donnelly: It absolutely depends. We've seen a lot of cases that raise this constitutional question in courts throughout the country. I think the important thing to realize is,
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how do courts analyze this issue, what are the interests at stake? I think the way to really think about it, is that these cases place a core right against the core power. The core right in this context is the First Amendment's freedom of assembly. There's no doubt that an order like this is touching on the freedom of assembly, that it raises a claim under the freedom of assembly, under the First Amendment, there is an interest theory, there's a right there.
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The other side though, is again, basically favoritism. I would say It's the traditional powers of the states to pass laws, to issue orders that protect the health, safety, and welfare of their citizens. One way to think about it in the most simple terms, it's hitting a key First Amendment protection against the Constitution's commitment to federalism and asking who wins. We see in a variety of cases, courts come out in different ways. The other thing I'd layer it's
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a First Amendment right against state power. The other thing to keep in mind is courts will also look very closely at the real specifics of the order, or the real specifics of what is being closed down. They'll ask the basic question of, are businesses, are groups, organizations, being treated alike or not? Basically, is it all gatherings of people over 50 people? Is it just religious gatherings? Is religious gatherings and concerts but not 50 people in a business?
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The courts will ask this question and see how the specific order works. Then if it really is treating different groups of people differently, the court will ask, "does the state have a good reason to do this?" If really you're talking about a First Amendment protection, it doesn't have a really good reason to do this? You can imagine that in the specific context of, are we at the height of a public health crisis or is it waning? How long the order is going to last is
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going to be something else the court keeps in mind. But there's a way in which the two things I'd like to bring home are one, don't deny the conflict. Sometimes we like to just pretend like there's only one interest and it needs to be vindicated. But this is a real conflict and a really hard question of the First Amendment versus state power. Then two, understand that a lot of this is going to turn on things like, are different groups being treated fairly or the same way,
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how long is an order going to last? It's going to really go down to the details. Kerry Sautner: That happened in Pennsylvania. The last court case, it was probably like a couple months ago that happened in Pennsylvania and they looked at the lungs and it was not being treated. It wasn't being treated fairly and there wasn't a good enough reason. They struck down that executive order from the governor. It's not like this isn't happening right now, which is super fascinating, Tom,
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that we're getting to see all these constitutional questions in the Bill of Rights into action during this time, what I'm [OVERLAPPING]. Thomas Donnelly: The big case to remember from the Supreme Court case called Jacobson versus Massachusetts, in the early 1800s, where the court effectively said, "In a public health crisis, we're generally going to defer to public health officials and the state government or a State government, a local government can go too far,
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and sometimes we have to strike back" So it's about deference. It's about honoring the expertise and institutional role there, but understanding that there are constitutional limits, and of course, judgment. You can't escape judgment. Kerry Sautner: [LAUGHTER] You can never escape judgment. Okay, everybody. I want to thank you so much for joining us for class today. I know we run a little bit over, but it's a really big topic, the Bill of Rights. We wanted to make sure you had
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that foundation and solid in action. We're going to wrap up this class. But if you want to hang out after class and ask any election question, Tom and I are going to have some office hours and we'll see if we can answer at least some of those election questions. [OVERLAPPING] [LAUGHTER] Yeah. Yeah. I didn't want to promise too much. [LAUGHTER]
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