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tv   After Words  CSPAN  August 31, 2015 10:29pm-11:30pm EDT

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everything in the federal constitution from start to finish the states did first. and that includes three branches of government and i just told you they had judicial review. they stupidly forgot a bill of rights and that was an obvious omission because the states had bills of rights and some of them got rid of slavery, some of them gave women the vote first, some almost everything, states have done first. so let's look at the constitution. supposedly they didn't have a second amendment at all, almost every state constitution has a provision today in america. and today the constitutions are not just about militias. guns scare me, but in almost every state constitution there is a right to have a gun in the
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home for self protection and it's part of our american tradition even if we didn't have the tradition. one way to find this is to count and i had a great student, 27 years ago who wrote a student note about unenumerated rights and how you can find them in part by looking at state constitutions. and that is the student and so liberals believe in privacy. and it's not necessarily enumerated in the federal constitution. so even if there wasn't an amendment, i think that they can have a pro-guns. give them both what they want, this is america. live and let live, let's be tolerant in the northern california tradition. that is one thing. they would have in unenumerated
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right because every state has it as part of the american egos. the second point is forget the founding. you live in lincoln's house. we taught jefferson, jefferson died a slaveholder, enough with this jefferson stop. okay? you live in lincoln's house, he reinterprets jefferson and four score and seven years ago our fathers brought forth a new nation conceived in liberty and dedicated to the proposition that all men are created equal. i am wearing my lincoln tie, got it here at the national constitution center. and it's a very good value to hold up very well. so jefferson said that all men are created equal, that's what he said, right over there, but he didn't live it, he didn't read that, he did not do it. we can lives and breathes it and does it and he gives us a second
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founding and that is what is new with what it's all about, celebrating his new birth of freedom and in that new birth of freedom, the bill of rights applies against this and they understood the original bill of rights was only limiting the federal part. and so think of it. whether you agree with that or not come almost everyone, it's the first amendment is only about the federal government. and all the cases that we think about, brown versus order of education, ohio, that's florida, roe versus wade is texas, griswold versus connecticut, these -- we live in lincoln's house and it's a 14th amendment world. the framers think that you can use the phrase bill of rights to
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describe it, we call it the bill of rights because tom bingham and abraham lincoln's allies called these early amendments the bill of rights and that's why we call him that. so first we understand that in lincoln's generation, the framers of the 14th amendment believe in the freedom and bureau bill of 1856 which is a companion to the civil rights act, both of which are companions to the 14th amendment proposed by congress in 1856 and this is a direct quote from the bill. every citizen is entitled to personal liberty and security including the constitutional right to bear arms. and here is what they were thinking of. they took up arms against lincoln. they like armies, national armies. but they understand. so it's not about this anymore. but people in homes are entitled to have guns for self protection
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because they cannot count on the cops to protect them. and so when guns are outlawed, not a lot that is what the framers of the 14th amendment envisioned, the nra was founded after the civil war they group of ex-union army officers. one other thing, and the second amendment vision still is important. it's more about the military and here's what it says. the military should look like us. it should not be an alien occupying force. it it shouldn't be a proto- military-industrial complex but representing us and do we tell them to do in order to do that it has to be represented and the juries have to be represented in the house of representatives have to be. the folks that have the guns and the people are one and the same. and that includes the right of the people, they are one and the same, those that vote should
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bear arms, and today that is anachronistic. we don't have a militia anymore. what are today's galicia counterpart? they should look like the community. that's ferguson, baltimore, new york city. at the national level we have lincoln's army, the grand army of the republic and it should look like america as well. women as well as men, blacks and whites, tom hanks was a schoolteacher from pennsylvania alongside a sharpshooter for mississippi and a couple of fast fast talking ethnics from new york city, that's not the found where they have local militia but modern america the army it should look like all of us. women as well as men, gays as well as straights, black and white. there is a collect of the vision
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for the second amendment and individual rights vision and you need to understand the founding and the reconstruction and the 19th amendment. and they have the right to serve on a these terms. wyoming is cowboy country, it's gone country but also the equality state. it gives women the vote first and the first to have a woman elected governor. the first in 1870 and still part of the territory in 1870 they promise people pay for equal work. wow. >> we have time for just one more question and here it is.
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compared the justices. how would you compare their decisions? >> if you want to come down to washington dc in three weeks, i'm going to be appearing with justice thomas at the national archives and maybe c-span will cover that event. justice thomas and i agree on certain things but i think that we share the fidelity to the constitution project. we take the text very seriously. i find justice thomas underestimated in the same way that hugo was underestimated, because the yankees can be very smug about those that have southern accents heard we think that that means that they are just not smart and that's how lincoln was underestimated and i
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think that that is true today of clarence thomas and i actually find his body of work very significant. i don't always agree with it. and there is a steadiness to it and also a humility to it. so i think that if i was to send clarence thomas something, he would be very open to it. that he may have been a mistake early on and that he doesn't want to keep making mistakes. i'm hoping that he will get involved with the national constitution center. i think of you and i are trying to get him involved in it.
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and it gives him the story of the constitution and that is what the national constitution center is all about. >> beautiful ladies and gentlemen, you can see from this great teacher what it was that kindles my passion for studying the constitution made it the focus of my life, inspiring me and millions of americans to live and study the constitution and i want to thank you, ladies and government, join me in thanking america's constitutional law feature "appeal of arms".
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[applause] >> thank you. come up, by the book and akhil reed amar will sign the book. thank you so much. >> you made it look good, thank you so much. >> tuesday, but tv in prime time continues with hooks about the civil war. at 8:00 p.m., capital gains. the civil war and the women of washington, 848 through 1868.
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and international history of the american civil war and another guest on wartime reconstruction and the crisis of reunion. looks about the civil war at 8:00 p.m. eastern here on c-span2. >> on the next "washington journal", we are going to talk to our guest about the affect china's economy has on the u.s. stock market and global economy. after that, senior science writer john markoff discusses the use of robotics in the u.s. manufacturing industry. his new book is machines of loving grace, the quest for common ground between humans and robots. "washington journal" is live at 7:00 a.m. eastern on c-span and
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you can join the conversation on facebook and twitter. >> a signature feature of the tv is our all-day coverage of the fearsome book festivals and coverage. beginning this weekend we have the 15th annual national book festival from the nation's capital. near the end of september we are in new york or the brooklyn but festival celebrating its 10th year. in october we have the southern festival of books in nashville and the weekend after that we are live from austin for the texas book festival and near the end of the month we will be covering tube book festivals on the same weekend from our nation's heartland as the wisconsin book festival in madison. and then the boston book festival. at the start of november we will be in portland, oregon for word stock followed by the national book awards in new york city. in the end of november we will have the 18th year in a row from
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florida for the miami book fair international. that's a few of the book fairs and festivals on c-span2 booktv. >> next, "after words" features carol birkin on her book, the bill of rights. she will be interviewed and this is one hour. >> hello, it's nice to be having this conversation with you. i very much enjoyed reading your book, the bill of rights. the fight to secure america's liberty. my first question is why did you write the book? [laughter] >> i wrote the book probably for the same reason that i wrote a
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brilliant solution. i think that americans are hobbled by a lot of myths, the birth of the country. i think that all countries have this, but i think that this is part of ours and i think that the real story is so much more interesting and so much more admirable usually that i was tempted but i realize that a lot of folks that i spoke to thought that the bill of rights was part of the original constitution and they believed that it was written by a statute standing in the park. all brilliant, all amazingly un-self-interested with no egos. and that it became instantly the most important part of constitution and i thought there is a story here to tell that is more interesting than that. >> did you have an intended
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audience? >> in my younger days my intended audience were the people in my field. and that includes talking to those that go to the ballot box, political opinions, social opinions, the general audience -- that includes people like my family, friends, and those that are not historians who have a curiosity about the american past. >> the book does read well and i think that people should enjoy it and i wanted to start with in the prologue, you talk about the men that produce the bill of
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rights writing that they resemble political leaders of every era. but you go on to say that they are uniquely men of the late 18th century and they are serving without precedent and with uncertainty and that includes great imperial powers across the atlantic. i worked on the supreme court the 1790s and i got exactly the name feeling and i think that you captured perfectly the context in which the first federal congress had to work. so how do these anxieties affect the proceedings? >> i think that this is one of
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those non-remember things and it's almost as if they say that we have a constitution, but then everything was fine. but as i'm sure you have if you read the debates in congress and if you read the letters, they are filled with this anxiety that what they are trying to do and sustain that it may fall apart because foreign countries might invade them or internal dissension and they are inadequate to the task. but that underlying anxiety we need to understand that i have students that always think that america began in 1609 and then it became the most important country in the world. though history in between.
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and i encounter adults that think the same way at oh, we have always been the most powerful country in the world. and of course here in 1789 is this country that in fact, most of the powers in europe are treating it as if it's not a sovereign country, britain won't get out of the force, the french in another couple of years are going to send over someone who recruits recruit an army of americans to fight for fans right under washington's nose. so i think that, i think that their anxiety made sense. they were aware that what they were trying to build did not exist in their known world and when it had existed in the western world it always ended in tierney and it always failed.
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so they come to this with a memory of how long the revolution took an they had really not been sure they were going to win and then they create this new constitution and this new congress that no one is really certain that there will be a second congress. i wanted to play on the fact that it was not a done deal. and we have seen that the women that oppose the constitution, those that didn't want to or believe that liberty is the best protective by state sovereignty
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that these people are still around and don't just say, okay, here we are. we don't want this. really understanding that the fight is really going even though ratification of the constitution is taking place. so i wanted to create this moment and i don't want to sound like a bad movie creating drama. but, was there and i guess i wanted to capture it in this story are. >> i think that you do that. your book contains a short biography of all of the members of the senate and house of representatives why did you include that? >> i did it for a couple of reasons. first of all, i've spent a great deal of my time in the last 10
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years doing faculty development for high schools, secondary schools, elementary school teachers. i wanted them to be able to make use of this book with their students and one of the people that had participated to begin to see what role they have played and what their careers have been mic, it's part of the effort aimed at teachers and students. and secondly it's because i think if you come from maryland or new york and if you can name the senators now, you are doing well. but i wanted them to get a real sense of the identity, those that represented the state in this conflict, not because they could reelect them or not
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reelect them but because he gave a kind of concrete mix what it meant when they voted yes or when they send going to keep proposing amendments that limits what the government can do even if you vote them down repeatedly. so i wanted them to have if not a personality with those little biographies. i hope one of them to be able to get to know these individuals. >> who among them were the most important on the bill of rights. >> he has now become my favorite in the whole world and he is
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dismissed an interesting man and one of these people people who believe that he is operating on principles 24/7, there are always been there are moments when he is viewed by the other members of the house as an aggravated crackpot. and he persists and in many ways he's the leader of the opposition with what madison moments in the bill of rights. which she called his proposals because he originally wanted them added into the body of the constitution and he didn't want them separately or in a set of amendments.
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and he felt that it was the watchdogs of the liberties of those individuals that were marching down to tierney. and that includes the constitution itself is not revered, to be acknowledged. and so he wants these propositions and these statements about rights and liberties and procedures that protect those individuals, he wants this added as an amendment. so i think that those are part
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of the key players and there are lots of others as well. then, you know, you really have to like him. he is from georgia and he's going to lose every battle that he has. sort of like, i think i can. when you read about him and his personality and what he has written, he is a conspiracy nut. and there's a lot going on in a lot of turmoil inside of him and i found him really quite interesting.
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>> let's turn to the bill of rights. my first question is how did madison feel about a bill of rights during the constitutional convention. >> like everyone else he thought that it was completely unnecessary. >> and when it was proposed it was shot down. [inaudible] than there are moments when i can't remember everyone's names. so first of all the september and everybody really wanted to go home. they really were tired of being there and they said oh, oh, no, he said oh, it will only take
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and they knew that nothing only took a few hours to do. so the argument that came forward as that the constitution didn't give the federal government any authority over any of these issues. they cannot abuse these powers because they don't have these powers. all of these estate issues, it's not necessary. several of the states already have bills of rights in their constitutions, why are we creating something that is relevant. and everybody sort of breathe a sigh of relief and they say we can go home. and so taking the same thing up he said, why suggest that you're going to limit powers that you don't have in the first place and implying that you actually have those powers and that would
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he wars than putting in a bill of rights to say that we won't use them. and then he runs for the house and his opponent is james munro, representing the patrick henry contingency in virginia, you know he referred to them as his country his entire life. so you can see where he stands on the creation of what he calls a consolidated government that is completely opposed. and so madison has asked because the anti-federalists use this brilliantly in the ratification arguments. they say that you can see that this is going to be a tyrannical government and they really
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appeal to the emotional worry and anxiety of the general voters that, what are we getting into if we create this federal government. the middle pocket zipper pocket and he says, i will get into congress. .. ..
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>> >> the federal government would have power over the causes of the bill of rights would leave those in limbo. yes. and those opposed to the constitution say about that? >> first of all, at the ratifying conventions they proposed amendments almost 150 of them many our bps so madison was very efficient
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>> >> i take it was a scare tactic once they get into congress and the discussion begins, and the irony is of course, the anti-federalist have called for a the bill of rights but when they get into congress did realize the house of representatives that is dominated by federalist, if they get credit for passing a bill of rights, it will kill the opposition to simply separate the base from the
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leadership of the party there really wants to limit the federal government. they want to take with a power to tax and regulate commerce. the blood that back to the state government hands than they realize of brilliant politician with the bill of rights issue that the house of representatives could keep talking about this and the anti-federalist who formerly were screaming we need a bill of rights. this is political strategy not men in tow the is in the roman senate with a high-minded ideals it is down and dirty politics.
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>> your answers to just a couple of things that you said there were 150 proposals during the ratification process and madison called them to about 100 but is in a true the large majority are not about individual rights but the structure is settlement? >> yes. yes. absolutely true. what you see is the al leadership of the opposition to the constitution to make its interest known of what they write down. if you read the newspaper propaganda what they say to the general population you
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get to they've met in secret that they are plotting against zero in that hell should they will create a tariff me so there is a differentiation. that it makes known among the of leadership on both groups they want to eviscerate that constitution and to make sure those powers go back to the states the when they pop -- talk publicly he hammers away at the bill of rights issue. there is one line in house and another for the general population.
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>> if that is the case, and i agree it is then what is the meeting of the great federalist victory? does it mean people don't care about individual rights at that time? >> i am not sure they can call that a great victory they keep using modern terms but we no dirty tricks were polled by the federalist in the ratifying conventions we know there was some steamrolling hurry up let's do this before everybody has read the constitution they are afraid they won't get a vote for ratification it calls for a delay.
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we want to talk to our constituents so let's adjourn so i guess they keep saying this but they are skilled politicians so they know how to win over and operate in these conventions they do get gratification but as soon as it goes through in the elections are held tuesday oh no the antifederalists will be elected to the congress to nullify the constitution and we will be defeated in congress it doesn't turn out that way is to read the
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federalist have a majority. >> the fact that they won the election among those who voted. >> it depends on what you mean. >> with the interest of the bill of rights. >> no. of the interest even among the federalist once they did get elected and control the house and the senate when madison brought up the bill of rights they were a new age beyond believe they thought it would be agreed adn the response was tollway don't be ridiculous we have
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important things to do that is not necessary anymore -- anymore and once they were elected they said medicine has to keep pushing to say that people deserve this a promise i would do this it is a good idea. it took the federal list quite a number of weeks to realize what a good strategy at was. that it was a good idea to squash that anti-federalist to take the argument in the issue away from them to make the federal list look like a real hero even to the people who said we have the constitution by a worried about it so they wanted to
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consolidate so now it is their legitimacy they say don't bother us we have important things to do to set up the import requirements and if you read the records of the house people are much more worked up where the capital will be bad the bill of rights. nine tel well into the discussion that some of them decide this could be the icing on the cake.
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i also get the impression of a light cannot approve this that they rather enjoyed putting it to the federalist at the convention we will vote for this regard this what you say. >> with medicine in introduced his amendments submitted all-star debating them until later. >> were they this save ones that we now call the bill of rights? >> no. absolutely not. madison is part and a lovely man and very worthy, he had 39 different propositions.
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every they would add them in an article line in an article to article three. with very complicated sentences and as these things progressed the house produced a committee of "the constitution" with the passive tense sentences into direct sentences but they compress a lot of them to say these are all alike put them into one place but ultimately it is hard to know who did what because
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the senate met in secret but we sell out of the senate came the 12 amendments that went out for ratification. much more direct, much shorter and clearer than what medicine had proposed not as part of the constitution so many of madison's proposals stay alive much of what he wants stays alive but they are consolidated. >> one that is missing from the senate that comes back
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is possibly madisons favorite in the one that interests me the most common no state shall violate the equal rights of conscious -- conscience with a trial by jury of criminal cases to say people still don't know that made it one dash madison originally included. >> at this moment in his career is an ardent nationalist. he in hamilton he is the architect of the original constitution plan even for the senate to be based on proportional representation because he does not want the states to have a purchase of
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a government he doesn't want to branch that represents the state's he really wants a national government. so what he's doing time i'm sure there would say flagrantly trying to reach down to have the power of the federal government reached into the behavior of the state's. of the senate that is chosen by the state legislatures take get out. none of them want to go home to say i gave away your sovereignty. so they take that out. it is only balanced by the fact of the anti-federalist
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to put in the word expressly that no power is granted to the federal government that was not expressly granted. >> it is now the tenth amendment. >> yes. they want expressly for what's in to it that means a strict construction and necessary and proper clause could not be used and madison is adamant and that is voted down. he wins one into this is one. >> host: what were some of the other amendments that was a great deal of debate? >> guest: poillon became the third amendment sent out
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because what was before it was not ratified. the anti-federalist in the house wanted to include the phrase that the people had a right to construct with binding instruction on a representative and this gets down to a fundamental difference between the federalist you of representation in the anti- federal list of views they believe they selected men of good judgment to the legislature and make fell lot and it was terribly important those men and not be subject to the whims and passions of the people. that those cave and went sometimes they were wise
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said you had to be above that. of the anti-federalist argued you should deliberately be the voice of what they want generally this is what we are today. generally people say with the expression throw the bum out means he didn't do with the people elected him wanted to do and if that was included it would have altered the evolution of the idea of representatives voicing the opinions of the people that elected them so there is the debate over an ad and it was needed. the second and funniest debate is over the militia of the right to bear arms.
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all i can tell you even though i don't want to get hate mail i read every single word of that debate many times over. and let me be clear, they never said individuals can't own guns they've never talked about individual ownership at all. not a word about individual ownership that is wide is so important to understand the 18th-century context. this states wanted to maintain their own army and their own militia in case the federal government became to juridical and would attack them they wanted to defend their own borders. this was critically important not just against
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native americans or the british for the spanish federally, but they really wanted to have their own armies by a well regulated militia. you can see in the whiskey rebellion during the washington administration in the debate when can the federal government called out the militia? they pass a lot if there is an uprising against the government and the governor asks, then you can send it in the militia. there was no discussion of individual ownership but a hilarious discussion may be it says something about historians but there is a hilarious discussion whether you should include it in
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half a religious injunction if a pacifist religion if you are exempt from service in in the militia so they have a long debate somebody says we need to name their religion and somebody says what if you are a quaker and you want to fight? just like they angelou green? petraeus saying he cannot fight? should rename them or chivalry and what group to read the foul? vendor rather funny discussion one of the members of the house said we can have any exemptions. if we have exemptions they have to pay for someone to take their place or they have to find someone to take
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their place then the voice of reason stands up to say i think if you are a pacifist you would not be willing to send someone to fight it in your place so they abandoned that then someone else said we cannot have any religious exemptions out all. we can do that because it is a well-known fact we're becoming less religious every day and if we are invaded by the outside by another country everyone will blame - - claim they are arabia and so they don't have to fight to. [laughter] it is astounded by this sort of dark scenario. and the last big debate that amuses me is over cruel and unusual punishment.
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one of the representatives who had not said a word really in all of the debates pops up like a dormouse and says i don't think we should say no cruel and unusual punishment because some men just need to be whipped. [laughter] so sometimes the debates are not about the high minded things that we picture in the bill of rights. i think it helps you to be amazed that it turned out so well. >> host: even at the beginning with the justices they rode the circuit and they gave a grand jury charges and to the judges
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would love to say howard financed a society we were because we had a bill of rights of cruel and unusual punishment and that meant that we did have a death penalty we did not draw and quarter people very humanity [laughter] >> added was the 18th century a society where the standard of what is violent to a less today was not the same standard. parents beat children and parents beat apprentices.
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that the kind of of warrants that educates people today about violence is is it different standard and they're really spoke for the 18th century when some people just need to be whipped. >> tell us something about those amendments that were not approved by the state? >> one was to alter the racial populations to representation to increase the number of people per representative in the house and that was voted down the other was about congress's celery and i have to say at this moment they cannot
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remember exactly that terms but it was when you could float in increase in salary and that was voted down. many of the states approved all of them and interestingly enough georgia and massachusetts never did. at least night 1939? in massachusetts simply forgot to officially send a note that they had approved the constitution and georgia absolutely refused when they came up for ratification. in part that speaks to the
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fact part of the myth it was instant the part of the american credo but the truth is it really was a paper barrier. the federal government did not have the authority to intervene as if the states abused the civil-rights of people and i'm not a lawyer or constitutional historian in the sense to study the evolution of the of laws and the decisions but not until the '30's that the bill of rights begins to be incorporated into the opinions of judges all across the country. >> i would say the same thing although there was a discussion at the time of
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the alien and sedition act with freedom of the press and the first amendment but even at that time there was no supreme court decision whether or not that was constitutional. but the discussion was really if you read it was which government had the power to punish was that the federal government for the state government? that is very different. >> exactly. i've glad that you say that because my next and my last book is about the crisis in the '70's 90's the challenges to the federal government and one of them is the alien and sedition act where there is a great argument you have no
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business intervening in the naturalization of citizens of fukien come into our state and who can stay or into the newspapers and i think that is one of the examples the way the federal government was not yet seen as the ultimate authority on issues like this. >> this comes up during the ratification process and again with the bill of rights but the possibility of having a second constitutional convention? >> it scared madison to death. he is really driven to

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