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tv   Akhil Reed Amar Discusses The Constitution Today  CSPAN  January 29, 2017 4:30pm-5:34pm EST

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moment in time. [laughter] the great thing about that one was it was the beginning of popular vote so they were trying to think about ways to settle things. and accidentally they stumbled on the idea of settling william henry harrison as this humble soldier living in a log cabin drinking his hard sided remembering how hard he fought with the boys. and his father signed the declaration of independence. he was born on a plantation. he went to medical school and but, they created this thing. this guy and they would have all of these log cabin parades with floats with log cabins and they got to drink a lot because of the hard cider connection. so there are a lot of riots and drinking going on. and they trade martin van buren his father was a humble bartender in upstate new york as this rich guy who ran around wearing women's clothing and had the shrubbery in the front of the white house reshaped so
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that they look like the bosoms of amazons. [laughter] i mean truly that was the weirder election and but, that is probably the only one that i can think of that was like this one. >> you can watch this and other programs online at [inaudible conversations] [applause] >> ladies and gentlemen welcome. this is the final panel of bill of rights day. happy 225th birthday to the bill of rights. i am jeffrey rosen the president of this wonderful institution. for those of you are joining us for the first time. the national constitution center is the only institution in america sorted by congress to disseminate information about the u.s. constitution on
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a non- artisan basis.and it is so exciting on december 15, 2016 the 225th anniversary of the bill of rights to share with you, how we national constitution center audience. and c-span, america's greatest teacher of the bill of rights, akhil reed amar. [applause] >> this is such a treat for me ladies and gentlemen. you know if you have been here before that akhil reed amar is my teacher in high school. he taught me constitutional law.he kindled my passion for the constitution. there is no greater teacher in america about the sources of the constitution. the principle that animated it and the necessity of translating it into a very different form and what i want to do in our time together is to use this precious hour to see what he wants to teach you and teach us about the bill of rights.let's just review the basics and find out all of the fundamental principles that we
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need to remember to educate ourselves on this 225th anniversary. i needed to plug his beautiful new book, the constitution today, timeless lessons for the issues of our era. i've read it, even better ãi reviewed it. >> very generous. >> with this wonderful book does, it is sort of the constitution on deadline. in addition to being, i am using my words advisedly.he is america's greatest teacher of the constitution. and in addition to that he is also a constitutional journalist. he wrote all these great pieces on deadline over the years and decades for the new republic, for great publications and he collected them. kind of like a federalist papers so you can see in real time how the timeless principles of the constitution and bill of rights were being played out in the news. and he just integrates them in his great way. one thing you get from this book is his incredible
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contribution to the methodology of constitutional interpretation. so i want to jump into our conversation but in addition to be america's greatest teacher of the constitution, akhil reed amar is the greatest of what some have called the new textual list or progressive originalist. but he insisted that the text and history of the constitution and bill of rights neutrally studied can lead to progressive as well as conservative and libertarian results in a nonpartisan very printable version that inspired a whole generation of law students including me to really learn about the text and history of the constitution and apply it to modest circumstances. we'll talk about the book but i think it is really poor to start with the bill of rights. so, welcome home to the national constitution center. why did madison initially do this bill of rights? >> this is home so thank you so much for having me back. i remember when this was just an idea.
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this amazing center and now it has three dimensions, it is a great space to study. not just the original constitution but the amendments. because without the amendments i am not sure that we could all celebrate it today. black-and-white, male and female, jew and gentile to the extent that we can today. the framers great though they were, who met of course just right across the mall here at the independence hall. great though they were, they were people of their era and they were not perfect. one way of thinking about the amendment is a making of amends for some of their lapses and even ãthat making of amends begins, because that with these
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amendments, what we call the bill of rights. even though the phrase does not appear in the constitution. maybe an element at the time a hundred and constitution that is what we call begins at the very interesting story of a peasant.a pivot by james madison who opposed the idea of the bill of rights at philadelphia. in the last week really of their deliberations in september. and i will tell you why he opposed it. and he largely opposed the bill of rights less emphatically during the ratification process. and yet, he is the person who really spearheaded this, this first set of amendments that we call the bill of rights in the first congress. and without his relentless championing of this idea that he originally rejected, and then a privately at philadelphia and publicly
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pooh-poohed and then later he is championing it. without that pivot on his part i'm not sure they would be a bill of rights and i don't think it would look quite like it does. so first, why did he impose it at philadelphia? now i will tell you my actual view of why. because it sometimes people are not even fully conscious of their emotions. human beings are complex. it comes also to principled arguments. the fact is the principal arguments do not really make sense and do not add up and they contradict each other. i don't own a dog, it didn't bite you and you kicked it first. that is a triple dog bite defense. [laughter] a bill of rights is a bad thing. it is an unnecessary thing. by the way we already have one. that actually is what madison and others say. a bill of rights is a bad and dangerous thing. oh and there is already a bill
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of rights in article 1 section 9 section 10. and when you say all three, so, what is up? my candid view is that when late in philadelphia george mason, had really been the originator of america's first bill of rights, the virginia bill of rights which took place before the declaration of independence in june 1776. george mason was the father of the virginia declaration. the state constitution declaration. and he is in philadelphia. you will remember he is one of three people who stays and does not sign. so there insiders already present here you'll see him and randolph and gary standing apart. but in mid-september, early september he proposes a bill of rights. and he is going to want to compose it to be the main drafter as he was in virginia
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and, without a lot of deliberation. frankly he has voted down. here is what is going on in my view. they are hot. they are homesick. they are tired and just want to go home. so the actions is not thinking through. george says we can do in hours and here's what they are thinking. it is not on here it is my interpretation. yes, he says it's going to take just a day or something.but this is going to be another two weeks, he's a pain in the butt you know and we want to go home. why do i say that way? because if they really had a really good reason, for resisting this, then the decision eventually to adopt a bill of rights was at stake. so madison can't be really, right in philadelphia and then write two years later when he pushes this forward. it's like on the witness stand are you lying now or were you lying then? because you are telling a different story.
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i want to tell the story which madison actually moves in the correct direction. his original reasons for resisting weren't so good. they weren't so well thought through. and they don't make sense analytically but what does make sense is the following. in this is a big point. it doesn't come from 39 people. it's not just a small group of people. the constitution comes from we the people of the united states. the real is the ratification process. a year-long process in which up-and-down a continent. ordinary people are being invited to debate and that ultimately vote on whether they will vote yes we want this document or no, we reject it. that is the drama. a whole continent voting on the constitution and the first thing when it leaves the small closed secret room in philadelphia almost the first thing that people say is, where are the rights? we forgot the rights and why would they say that. because this constitution is
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not the first that america adopted. we have state constitution beginning with the virginia constitution and it has a declaration of rights. and the massachusetts constitution of 1780 have declaration of rights. and the new hampshire constitution of 1784, the declaration of rights. so did others so the first thing ordinary people say is you forgot the rights. and the framers are kinda defensive about this because they didn't get it but did you want to admit that? they resist and try to make some arguments, it is unnecessary, dangerous and by the way we already have one. it doesn't make sense.these arguments and eventually a pivot. and madison and a huge part of that pivot is a two-part pivot. first, during the ratification process a bunch of them say if you really want a bill of rights find good let's adopt the constitution and that we can add a bill of rights.
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because one of the great things about the constitution is it is amendable. it is easy to amend the articles of confederation. in theory they can be changed unless 13 state legislatures sas and you're never going to get 13 to says because rhode island is not to say no or new york. there is always one. you know and you know that just from life. there's always one. and so, if we stick with the original, if we bought this thing down we are stuck. and you're never going to be able to move forward. if you vote yes on this, then we can amend it through article 5. we only need two thirds of the house, two thirds of the senate, recorders of the state legislatures and then we can actually ãso a bunch of federalist say, if you guys vote yes, we promise that we will work with you to think about maybe revising it. madison doesn't quite go that far but he is beginning to move in that direction. then the second part of the pivot. madison is not done. now the constitution has been
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ratified. it is now, remember proposed in september 1787. now it is basically a year later, september 1788. 11 states have said yes. north carolina and rhode island have not. so when george washington is going to take office as the first president of the united states only 11 states in the new union, medicine isn't done. the constitution is ratified but we don't have north carolina and rhode island back in the union. we had a whole bunch of american patriots who voted against the constitution. it was a very closely contested ratification. in massachusetts, virginia, new york, new hampshire. very closely contested and again to states voted it down. north carolina and rhode island ãmedicine isn't done. he has to make the system work. now how is he going to make it work? he has to get himself elected to congress so that he can actually begin to implement this. now he has to win the congressional election.
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and in that congressional election, he basically has two promises constituents that he will support a bill of rights. because if he doesn't have it and basically say you know, i was originally skeptical about this thing that i'm not persuaded it's a good idea. he's not going to get elected to congress. he gets elected to congress on a platform. that he will question a bill of rights. he beats james monroe was running against him. so now, in order to be an honest person he is got to you know, carry out his promise and in order to get all of these people of good faith who voted against the constitution, they are americans too and you can bring them on board. if they say they want a bill of rights let's get them to buy into it. as long as it is not a bad idea. even if it is just like a neutral idea. this will give them a sense of coauthorship and coownership of the project to bring them on board. they weren't in philadelphia and we need to bring north
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carolina and rhode island back in the union and maybe their reasons for voting the constitution done or stupid. fine, but we need to give the political cover so that they can reverse themselves.we need to actually be magnanimous in victory so that, and if we give them a bill of rights they can say, well now i can change my mind.because you see they have lost, they are feeling better how to bring them back on board?so madison for several reasons pushes the bill of rights. because he made a campaign promise to do it and he has debates the voters very soon. and because he want to get all of these people in the state that are already in the union onto team constitution. and because he wants to get north carolina and rhode island into, back into a reunion with the other states. so, and why didn't they do in philadelphia? because they were stupid. they were tired. it happens to small groups of elite.
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even brilliant people you know of ben franklin, george washington. what a small group of people is not as wise as the american people generally. that is what you believe if you are a small view democrat. i am a small view democrat. i think the wisdom in a broader policy peers of the people in the ratification process were wiser than the 39. who basically were hot and tired. >> fascinating. i hear he's a not stupid but hot and tired they've had enough. bravo for that. [applause] now i understand. madison as they said it is unnecessary or dangerous, unnecessary because the constitution itself was a bill of rights dangerous because people might assume it is the right if it is not written down is not protected. it says that they wanted to get out of town. so madison pivots. >> because of those really good argument that it was a mistake to have a bill of rights.
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and since you mentioned one of the reasons you know, it is dangerous because if you itemize a, b, c and d maybe you're applying the only rights and you don't have rights to e, f and g. because you don't say you have a right to raise her kids. you have a right to wear a hat, to play the fiddle, to have a pet dog. you know it is a number of rights americans have are infinite and can only specify so much. and if we specify so much, it will actually be dangerous because we're implying that these other rights ãit is not a great argument. the state already had a bill. so it is not great argument because we eventually got but, medicine now needs to for himself give cover to the federalists. how he drafts 1/9 amendment that actually says, the enumeration of certain rights in the bill of rights doesn't mean that they are not others. so just as he is given political cover to the critics and the constitution and have come aboard yes to give a little political cover to people like himself who oppose this and so it really is someone who actually is, in a
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very sophisticated way, trying to get everyone to work together. which is maybe a lesson for us all. today. you know, about because we are deeply divided country right now. >> we are united by this beautiful bill of rights we're going to talk about how medicine shows the rice i did. wanted to have you massing this money. and the throne interactive constitution which you can get in the app store and a constitution b7 world. one thing this beautiful transformative platform does is inspire ãinspired by my sitting with akhil reed amar long ago. because i asked him how did madison pick the right that he did? and he said go to the state constitution and study what rights they had because medicine cut and pasted them. and this is a long time ago in 1990 or so. and there was a book. a two-volume set by schwartz. you had to read the book. so i thought in my colleagues at the constitution said let's put them online.
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you cannot click on any part of the bill of rights and see all of those ãand the revolutionary area. and you can see the amendments that madison propose that were not adopted. i want to start with those because they are so important. there were at least five. two ended up being part of the original 12. the original first amendment says one were presented in congress for every 30,000 in past. one does is cameras can rated seller without intervening elections becomes the 27th amendment in 1992. but there's another amendment in at about two things is the most important in the bunch. prohibited states as well as the federal government from infringing on fundamental rights of conscience, trial by jury and freedom of the press. you can find that here at the interactive constitution. what did madison consider that the most important in the bunch
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and tells about the other amendments. that were not ratified. >> madison believe that actually the greatest threat to liberty, especially minority liberty, liberty of the outsider, the center, the greatest threats are actually posed perhaps by the most democratic government closest to the citizenry. the state government. because any individual states there might be for example, one religious group that has a clear majority and it is going to be tempted to tyrannize over the minority with this group. when his vision of rights is very much influenced especially by religion. but now in the united states as a whole, since there are so many, you have to speak very carefully here because we are on c-span. the many different sects. that is a plural. >> you know we are having a program on sects of the constitution without the other version. >> okay so not that but so many different religious groups.
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baptists, quakers, congregationalists, anglicans, and ãso in any given locality, one of these groups might be dominant and tempted to tyrannize over the others. but in america as a whole, no one's given religious denomination was going to have that kind of majoritarian every denomination in a nation as a whole was a minority of sorts. so madison thought actually, rights might be more secure against the federal government. the larger government. then against individual states. the canonical statement that was madison's federalist 10. if you believe that, if you read the states actually, maybe a greater threat to liberty than the federal government. even though the federal government were aloof and there
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were fewer federal representative. and you're less likely to know them personally. so conventional theorists, democracy is rights protected by the very nature. the state governments are closer to the citizens that weren't democratic and more likely to know your state representative who comes from your neighborhood and comes back every weekend or something. that was the conventional view madison thought no, actually, is more distant, aloof, elitist federal government will be better at protecting minority rights. if you think that, then you think okay well it is important to have some rights against the federal government because the skeptics of the constitution want that. you need to bring rhode island and north carolina on board. and the people are accustomed to that because they have seen state declarations of rights. they say a proper government should have been. as important as all that is, i, james madison, leaving even more important to have rights against state governments. a statement that no state shall
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abridge you know the following fundamental rights.and he slips in and most of the other things that become provisions of the bill of rights. most of them, were propose and and state ratifying events and massachusetts, new hampshire, new york and virginia especially. so, much of what he does is to take all of these state ratification proposals which are basically yes, we ratified by here are some amendments that we are proposing. he comes through the list. he is a compiler. he pulls all of the list together. he sort of goes through them, he sees which ones are especially prominent in the state constitution.basically widows that list using state constitution and ratification proposals as his first cut. but the thing that he more than anyone else adds insult 20 puts himself into the picture is federal 10 idea that we will have at least one amendment
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that provides for rights against state governments. and it passes the house of representatives.but maybe you know not surprisingly, it fails in the senate which remember, is a body at that time elected by state legislatures and this is an amendment that would limit state government. the legislature. so they say no, it is not propose it does not get two thirds of the senate and it will not be until after the civil war that we get a madison like an amendment that basically says, no state shall. remember how the first amendment begins, congress shall make no law. how the bill of rights ends with the 10th amendment affirming rights of states and localities. so the original bill of rights is limiting the federal government and only the federal government, madison wants ãhe thinks states are meant more threatening to liberty. he does not get you know, he fails in that.
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but he is eventually proved right. because states do misbehave. and they misbehave so greatly that eventually there is a civil war precipitated by state misbehavior and in the aftermath of that, another amendment is adopted. it does actually say in the second sentence no state shall, and it says no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the united states. now what are those? like conscience, free exercise of religion, freedom of expression, jury trial, etc. things in the bill of rights fundamental rights that now henceforth, no state shall abridge. and the prototype of the 14th amendment is madison's original amendment.which interestingly enough was 14th on the list of amendments passed the first house of representatives. >> you heard what akhil reed amar just said.
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the original bill of rights only binds congress but certain rights are so important to come from god and nature not government. states should be prohibited from infringing on those. >> i'm not sure juries come from god or know they are man-made and all sorts of rules about trials, about what i am sure ãi'm not sure lawyers come from god but the right of counsel is a really important one. so customary as well as natural rights. >> so to natural rights of a speech and conscience and one customary one madison clearly believes the natural rights because two of the other amendments that he proposed that were not adopted talk about natural rights. the first 170 paraffins of jeffersons second sentence in the declaration basically saying people are born in a state of nature with certain inalienable rights they live in a society, they retain the alienable of natural rights in order to secure the greater security of the rights they
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retain. and then another amendment kind of said the legislature can't be the executive and executive can be the legislature and so forth. separation of powers. tell us about madison and the framers vision of natural rights. and if they knew what these rights were and why they came from ãis that one reason that a bill of rights was extra secure but not necessary. >> i am laughing because a lot of what i know about natural rights actually on for one of my great teachers. of constitutional whose name is jeff rosen who was my student. and he wrote a really great paper that he published as a note in the large journal that reflected in part on a theory of natural inalienable rights and the first he studied and where would you study to you should study the state constitutional backdrop at the federal bill of rights but he studies ãin massachusetts and other folks but if you are a
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natural rights theorist and you think that you know the bill of rights come from the creator and the declaration of independence is a statement that we hold these truths to be self-evident that all men are created equal. they are endowed by their creator with certain unalienable rights and that among these are life, liberty and the pursuit of happiness. well, one ãmaybe not property, maybe property is created by man and maybe not. there are debates about that. but maybe the first thing, and it is given by the creator and it is on unalienable. it is not a right, it is a duty. you can't give it up even if you want to. what does it mean? you can't trade away, you can't sell it, you can't give it away even if he wants. and there's conscience. and god on this view has endowed humanity, man, meaning all humans.with conscience.
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and you can't give that up even if you want to because you can't turn yourself into an animal. what it means to be a human being is actually to be able to think for yourself, try to figure out what is right and what is wrong and other people can't tell you that you have to figure that out for yourself. other people can't eat for you, other people can't sleep for you, other people can't defecate for you. there are certain things that you can only do for yourself there. unalienable and one of them is that you are thinking for yourself. and trying to figure out in this world what and is up. what is right and what is wrong. these rights of conscience. there duties that you owe your creator actually. not just rights. many people believe life is such. life was actually a gift from god and you couldn't relinquish it even if you wanted. therefore, you have no right to
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suicide on a certain view. life is unalienable because it is a gift from god and you're not actually at liberty we have a duty to develop our faculties as jefferson said.
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>> can belief be forced or mandated? you could try to show something, stimulate, but how can you mandate? belief internal conviction. i'm not sure that such a thing could happen and they would have it's totalitarian to try to demand other people believe certain things. you can try to persuade them through appeals to reason or other traditions to revelation. >> these are men, men, enlight enlightenment. what would they -- i read the oxford english conclusionary dictionary call the word of theow post truth. people can't agree about facts. >> yeah.
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i think they would be deeply disheart ended. i'm a child of the enlightenment, so. >> what would they tess us to do to try to achieve common reason? >> always difficult to try to imagine what they would tell us, but -- historians don't like playing the game. what what thomas jefferson said. he would be dead. so they will tell you what he did think but law professors are different because -- it's not that we're bad historians. we are actually trying to apply principles led down men years ago to figure out of the plaintiff or defendant wins. so we think about that a lot. i would say one thing that they
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would encourage is that we have to actually talk across the divide, and talk to people who don't live necessarily in our neighborhood or worship in our church. they're imagining a congress inn which people from different parts of the country will come together and poo enemy congress will exchange information and ideas and perspective and every one of them is expected to perhaps be persuaded or to make certain adjustments, vert certain compromises that the folkses back love smooth not know they don't know about folks in other districts that see the world very differently, and the point is we're supposed to actually try to talk to each other and we do that in newspapers, but also in congress, and they think that when someone makes an argument,
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you're supposed to make a counterargument. and the federalist do trying to respond to the anti-federalist and madson believes the arguments against the bill of right weren't so good. sty added a ninth amendment. he thinked he ha undervalued certain ropes for a bill of right, look they could be judicially enforcement -- enforceable. so he is in exchange with other people who have different views than he does, and actually learned from them. the baptists in his district say, we trust you, we like you. you have been for religious freedom from the mid-1780s, the virginia bill of religious freedom, but we think you're
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actually betraying that when you seem to be opposed to a bill of rights. and he listened to them and he better because we don't elected. the said i hear you and actually you have a point. and so i think they would say we do have to -- the constitution is very divisive. people got very agitated on each side, and yet and yet -- it was adopted by vote of 30-27 in new york. just so we're clear, the 30 is more than 2 and so the 30 won. back then you got more votes, that was actually -- >> akhil on a no -- >> the senates to has to be nonpartisan i don't have to. but the 2 were not -- 27 we are not happy how they lost.
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a lot of raw feels, and here is what is impresssive. it was divided deeply between federalistsists and antifederals and one of the most important bill of rights is not understood. we focus on what says, rare than what it does. it brings america together some the federalist and the antifederalist can accept. a compromise, broadens the coalition for the constitution. in the long run it is hard to govern a society, 51-19 -- 51-49 and harder to governor 49-51. >> i need take one more feed on the nonpartisan point because it's so important. thened of his life, madison is wondering whether public reason its is possible and is interested in technology that might unite farmers and
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interests in the north but he is not confident that citizens can come together. >> well, i'll say one thing. hope i've been pretty generous to madison. he is a great man, thinker and a deer and not so many actually -- you have pointy heads in the academy but don't actually do very much. then we have folks out there in the world, in government, doing things, but often they don't think very much. and i'm worried about some of them. who seem to be doers more than thing n can -- thinkers and there are people who are thinkers and to doers. the ivory tower.
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and madison is thinking about the media, but here now, two things i do want to tell you about madison, since we are celebrating one of his greatest achievements, getting the bill of rights through, 225th 225th anniversary. one, he is a partisan. so, on this nonpartisan basis you, say that but have been told about the federalist, the oldest political party in america, maybe the world, and in continuous exist tense is the democratic party and it is founded by james madison and thomas jefferson, and it will become the party of jackson and later the party of woodrow wilson and franklin roost and jack kennedy and barack obama.
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founded by james madison within a decade of adopting the constitution. so he is -- you know who he is? i actually blurb a biography of maddison, a fine one, by a very great man and writes a biography and madded madison, and i said madison is a constitutionalist. he is a journalist and madison was a political journalist of sorts but the other blurber was karl rove. and karl have said i'm a political operative and was james madison. rove is a total political operative but the stepped out from behind the stage and on to the stage when jefferson leaves
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and becomes president. but he is a political operative. reince priebus, that's who he is. eat a pathway and that's not the picture of -- he does try to unite the federalistsists and te nonfederallists but his political party is based on slavery. the democrat party is a pro slavery party and is going to get worse and worse and worse. the party of jefferson and madison is going to become the party of jackson, andrew jackson, the party of dred scott and the party that almost destroys america. so i tell you that bass we can take madison and all of his academic pretentions seriously and i do but i also want to say he fooled himself and other people because he was unfortunately more in grip of
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slavery, and he knows it. so he doesn't actually -- the south carolinians -- say slavery is a good thing. jefferson and madison know it's wrong and they don't freer their slaves should needs to be said. remember how i again, amendments making of amends for the lapses and sips. the bill of rights begins the project but doesn't end it. most important of all, on this view, and i'm looking at my friend tom donly here who is the national constitution center and involved in the second founding project and know, important thing you need to understand is that -- it's ironic and apt the same time, the amendment that fulfills madison's vision this
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14th amendment that says no state shall, is questioning be amendment that is proposed by the antijefferson party, lincoln's party, the republican party, and they're going to get into the constitution an amendment that says, no state shall just -- shall violate fundamental rights like conscience and thought and expression and jury trial and right of counsel, and the rest, and they're doing that -- and now these rights aren't just going to be for white folks, not just for -- going to be just for free people because all are free, but because the 14th is the 13th amendment putting end to slavery. so it's ironic and apt because he understood these things. now the 14th amendment
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codifying madison vision but in the a way that benefits not merely his nieces and nephews but also the nieces and nephews and children and grandchildren of his slaves. and that disand we're not done. so the 14th amendment because what about women and what about poll taxes and even today, you see we're not done. the amendment project is a project of making amends for their lapses and sins because as great as they were, those folks, 39 people, who comprised -- signed the thing across the way here, they were not perfect. >> okay, so, we need to ask a basic question here on the 25th anniversary, how did congress choose the 12 rights they did and what are the basic things you want our audience to know about what the bill of
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rights protects. >> the most basic thing -- i have already given you some hints. just play a game. some of you have played this game with me before so if you have, don't spoil it for the others. you'll know the answer. i'd like folks in the audience to shout out the names of the famous -- enwhy say bill of rights -- bill of rights cases in american history that pop into your head, whether you agree with the outcomes or not, the big famous bill of rights cases are -- just shout another the names. >> dred scott. >> gideon. >> brown. >> roe v. wade, heard. monterey vs. madison. >> griswold versus connecticut, brown versus board of education, citizens our united?
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now, i can't fool this crowd. a very sophisticated crowd and that said, half of the cases that you shouted out are not bill of rights cases. so first, zanger is before the constitution. and mar very is not any great principle of liberty. dred scott is about the truth have slaves but, yes, that actually could count as a bill of rights idea, but here -- landmark cases you toss it out and strictly speaking not bill of rights cases. gideon very wainwright. griswold vs. connecticut. "new york times" versus sullivan, brown versus board of ookayed, roe v. wade, lawrence v. texas. miranda v. arizona. none of those is a bill of rights case. tinker very des moines. why not?
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because the bill of rights originally applied only against the federal government. congress shall make no law of a certain export the tenth amendment is about states' rights and in between celebration of local juries and local militia. the arm bill of rights was anti-federalist, tea party, localist, suspicion of the federal government and that important but that not our bill of rights today because you believe we have madison that and you most fundmental rights need to be protected against states and localities. balloon vs. board of education, didon and wainwright is florida. roe v. wade is texas. lawrence vs. texas. "new york times" very sullivan was an effort by alabama to shut down free speech. miranda v., arizona, griswold
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versus connecticut. morse most of the case that ordinary people think of as bill of rights cases bill of rights cases because the amendments are only about limit -- the original bill of rights against the federal government. so, what kind of cases are gideon vs. wainwright and lawrence vs. texas and brown vs. board of occasion and "new york times --" if they're not bill of rights casesout now know enough to know the answer. what cases are they? they're 14th amendment cases. no state or localities shall make or enfor any law which shall abridge the fundamental rights. a second bill of rights which is most intuitive for most americans today because states misbehave because madison lost when he tried to got the original 14 enemy amendment passed. no states shall -- but the senate didn't go along so the
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lost that fight, that the wins in the end, thanks to the 14th 14th amendment, and it's utterly apt we give madison the credit for the final 14th 14th amendment and a little ironic because all of this is precipitated, this 14th 14th amendment, by the slave owners, abuse of power, and madison and jefferson were charter members and founded a political party whose base was basically a southern base that benefited hugely in electoral college andest prom the presence of slavery because of the three/fifth clause, jefferson and madison and they're party gets extra electoral votes because the southern states voting for them are getting extra seat nets house of representatives and therefore also in electoral college because of the existence of
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slavery, because of the social called three/fifths clause. so it's ironic and apt that our bill of rights does extend from madison but through the 14th 14th amendment, through lincoln, and so as we celebrate today madison's achievements i think we also have to bow our head in thanks to abraham lincoln and his generation, which is what the national constitution center calls the second founding project, and there's no place in america that i think has focused more on the significance of that than this place here, led by jeff and tom donly, the constitution accountable center, this great organization in washington, dc found by the late doug candlely are huge partners in the second founding project. >> we had the most wonderful event on the 1550 anniversary of the 14th amendment and you can
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watch it on video. >> just to connect the dots and the math, the four score and seven years, blah plow blah, the 14th amendment its proposed basically in effect on during the the 75th anniversary of the ratification of the bill of rights so this i 150 for the second and the -- >> the original bill of rights designed for the people was really focused on citizens. what were the basic rights the framers thought were necessary to include in the original bill of rights. >> when we say, well, first amendment was first because it's the most important. that's kind of yes and no. it is the most important, for the framers of the 14th 14th amendment that first amendment was first, but
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remember, when madison is proposing his amendments, the first amendment is actually third on the list and only became first because the first two items on the list actually weren't ratified by enough states at the time. >> ick ask you why weren't the two amendments ratified. >> the only first amendment was about congressional signs and almost every state that resident identify do -- the only difference is delware and they don't want a big house of representatives. i wants a small as possible. it would love it if the house of representatives were 13 people. one for every state. smaller then the senate. you have to get at least one but if that happens delware would have equality in both houstons so delware is the only state what ratifies the bill of rights and not the first apple because
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it doesn't want a big house of representatives. >> the original second amendment that says congress can raise it salary. >> eventually does good through and i don't know exactly why it didn't generate enough interest early on. so, you've got me stumped on that one. i never been able to fully figure that one out. but it is poetic that the amendment that ends up being ratified as the first amendment celebrates speech and press. it's poetic and apt because from a structural point of view, speech and press and conscience are kind of prior to everything else. you really can't have a democratic society unless people are free to think for themselves and speak for themselves. both politically and critically.
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it's hard to imagine a genuine dem democratic project. thoser presuppositions of the system so it is apt na poetic, even though a co incidents that it is the first amendment. so when you say something like, well, the first amendment there is first because they thought it was most important. it's like someone who says english was good -- ferguson -- if he can lisch wag good under forjesus christ, it's good enough for me. you laugh at bit but -- there's something there too, i suppose. >> okay. i'm going to ask you the end, so you can start thinking about it, about why our audience should care about the bill of rights rs and why it's important. first a couple of questions from our audience. while initially opposing a bill of rights some framers expressed concern that in enumerating rights some would be left out and the rights of people would be incomplete. do you believe there are rights
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shoot have been included and were not and have not been added. >> healthy the fine amendment colts in. suppose we did leave some stuff out temp fact that a right isn't mentioned didn't mean it doesn't exist. i'll give -- now the question is, well, how do we find these unlisted rights and in a book i haven't plugged in the last 30 seconds, called america's unwritten constitution, i try to give you the reader some tools and techniques because jeff is right. believe the constitution law has rules, and when i call the game i don't mean to trivialize it. it has rules, just like baseball does, or tennis. so, if a right isn't enumerated by it's maybe implicit in the structure of the constitution as a whole, you should protect it.
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so, -- if it's a right -- i'll gave you an example. if it's a right that we have by custom and tradition, maybe that is a basis for judges to say, this right exists and this is not -- because judges personally like it or don't like it, they're actually trying see, what are the privileges and the meanings of citizens? what do citizens understand their own rights to be. what do the people understand their own rights to be? so, suppose we didn't have a first amendment at all. wouldn't you think that a right to speak out politically was just implicit in having free and fair elections? i would. so there's an example of a right that existed even before it it's
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textualized. how about a right, for example, to present evidence on your open behalf if your a criminal defendant. doesn't say that in so many wore words. says you have right to confront wilt witnesses against you and compel the product of witnessess in your favor. what about a right to present physical evidence that shows you didn't do it? well, it doesn't say that but of course that that be a right because the whole structure of the rights are mentioned are basically to fifth yaw chance to show that you're innocent, and we mentioned a few things. a right of counsel, speedy trials, public trials, be able could confront witnesses and compel the production of witnesses but the whole system, when you look out it, things are implied. a arrest to pen a private letter and to have the that be free from government pun issuing
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because of what you say in a letter. strictly speaking that's not speech, it's not oral, it's not a printing press. you could say, it's not pressed, it's not speech, doesn't exist or say, no, the whole point of the system, of speech and press and the system,s american has have to free to communicate with other oomph that implicit. so the ninth amendment is an important remind that's right not all the rights textually specified. then the game backs how do you fine them? i've give you way of finingment one, looking the thing that are mentioned and see what is plied by things actually compressed. implied rights. and the second, these to without -- looking at american evolving american traditions and customs and cultures. no state other than connecticut,
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my home state, ever made it a crime for married couples to use contraception. so, connecticut was basically unamerican in doing so, and that actually is what justice hard ah help rights that's a right for married couple to use contraception in a marital bedroom because that is a right of american culture and i had not paid attention to that until i rather a passage from a great teacher, jeff rosen, point edthat to me. one final way, the fourth amendment talks get right of the people to be secure in their persons, papers, houses, and effects the third amendment talks be to right to no to not have troops quartered then your houses. why are houses different than
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factories or shops? because houses are places of pry si. -- privacy it's protect thing home life within wind chill we call that privacy and can see it implicit in the fourth amendment and the third amendment, singling out houses and poverty the american history and culture. doesn't say you have a right to have a pet dog or fiddle because i will be damned if day try to take my dog air and what is true about dog might be true got guns so even if there weren't a second amendment, you see, there might be an unenumerate right, as a matter of american and history to have a handgun in your home. i don't have one but if you want to have one in yours, that not just -- forget the second amendment and the 14 amendments.
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that's an unenumerate right. >> host: ladies and gentlemen you tech the that it know you would like to spend an entire afternoon learning from akhil but the bill of rights panels have to end on time so the one paragraph version, on its 225 birthday why should americans care about the bill of rights? >> i am -- we're a deeply -- we meet today in the shadow of an election that was divisive. here's what we have in common. we have in common our constitution. we have in common the bill of rights rights and 14th amendment. we have in common more than 225
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years together as a people, north and south, blue and red, liberal and conservative. there are deep resources here. there are patriots on all sides of the geographic and political spectrum and if we're going to talk to each other and bind the wounds there's no better place to begin than on this common ground of our constitution and our bill of rights and i'll say one other thing. these rights didn't come from judges. they didn't come just from elites. they didn't come even from the smartest people in the elites meeting behind closed doors. they came bottom up organically from the american people when, for the first time of the history of the world, an buyer continent was -- an entire
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continent was asked whether we do or don't, whether we agree to these set of rules or not. the first thing we, the people of the united states -- these are not my ancestors but i identify them them. the first thing we do is to say, yes, we will, but but you forth got the rights and that's very important, and we are always one generation away from bash bash barbarism and this with bell washed away unless every generation lives by it. we could end the project but shouldn't do so lightly, and the only way to prevent this from unintention'llie basically running the thing into a ditch is actually by studying it real care. don't all have to be experts in neurosurgery or in plumbing or
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in carpentry, but you all are citizens and therefore you all, i think, really do -- i'm preach together choir but a you're here but you have tone gage any constitution and bill of rights. >> ladies and gentlemen, happy bill of rights day. thank you. ...


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