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tv   [untitled]    April 3, 2017 7:55am-8:01am EDT

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with me before, so if you have, don't spoil it for others. i'd like folks in the audience just to shout out the names of the famous -- when i 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 out their names. [inaudible conversations] >> dred scott. >> gideon. brown, roe v. wade, i heard. margaret v. madison. >> griswold -- >> griswold v. connecticut. brown v. board of education, new york times v. sullivan. >> citizens united. >> citizens united. >> now, i can't fool this crowd, it's a very sophisticated crowd, and that said, half of the cases that you shouted out are not bill of rights cases. so, first, zenger is before the
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constitution. marbury v. madison is about original v. appellate jurisdiction, and who cares? it's not any great principle of liberty. dred scott is about the fundamental right to have slaves or something but, yes, that actually could count as a bill of rights idea. but here -- landmark cases that you tossed out, and strictly speaking, they're not bill os of rights cases. and i'll add a few more. griswold v. connecticut, new york times v. sullivan, brown vs. board of education, roe v. wade, lawrence v. texas, miranda v. arizona, none of those is a bill of rights case. tinker v. des moines. why not? because the bill of rights originally applied only against the federal government. congress shall make no law of a certain sort, and the tenth amendment is about states'
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rights. and in between there are celebrations of local juries and local militias. the original bill of rights was an a anti-federalist, tea party, localist suspicion of the federal government. and that's important, but that's not our bill of rights today because you believe we as madison believe that some of your most fundamental rights need to be protected against states is and localities. board of education v. kansas, gideon v. wainwright is florida. roe v. wade, whether you believe it or not, is texas. new york times v. sullivan was an effort by alabama to shut down free speech. so miranda v. arizona, again, grist world v. county -- crest crest -- griswold v. connecticut. most cases people think are bill
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of rights cases aren't bill of rights because the amendments are limiting the federal government. so what kinds of cases are gideon v. wainwright and lawrence v. texas and new york times v. sullivan if they're not bill of rights cases? what cases are they? they're 14th amendment cases. no state or localities which are part of the localities. that's the second founding, a second bill of rights, the one that actually is more intuitive for most americans today because states misbehave because madison lost when he tried to get that original 14th amendment passed saying in state shall violate fundamental rights, but the senate didn't go along, so he lost that fight, but he wins in the end thanks to the. 14th amendment. and, you know, it's utterly apt that we give madison the credit for the final 14th amendment,
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but it's also a little bit ironic because all of this is precipitated, this 14th amendment, by the abuse of power and, alas, madison and jefferson were charter members of that slaveocracy. they founded a political party whose base was basically a southern base that benefited hugely in the electoral college and elsewhere from the presence of a slavery. because of the three-fifths clause, jefferson and madison and their party is going to get extra electoral votes every length because the southern -- every election because the southern states that are vote aring for them are getting extra seats in the house of representatives and, therefore, also in the electoral college because of the existence of slavery, because of the so-called three-fifths clause. so it's both ironic and apt that our bill of rights does descend from madison, but through the 14th amendment, through lincoln.
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