tv Bill of Rights 225th Anniversary CSPAN December 25, 2016 9:05pm-10:01pm EST
ehan talks abouta the bill of rights. this is to commemorate the 225th anniversary of the bill of rights. this program runs about 45 minutes. host: good evening. i am the vice president of the societycourt historical and i want to welcome everybody here, on behalf of the society and the georgetown center of the constitution. event, whichd the celebrates the anniversary of the bill of rights. and my obligation to tell you to turn off your cell phones and any other
electronic devices you may have and also to not use any cameras during the course of this evening. official photographers are entitled to take pictures. it is my pleasure to introduce justice breyer. he has had a distinguished career, starting as a law clerk to goldberg and going on to have many important positions in the department of justice and working for the senate judiciary committee. he was appointed to the first circuit court of appeals and he and was thears chief judge of that court. clinton tapped him to be a justice here and he turned out to be one of six people who, law clerk and a
justice at this court. here, he said at the far end of the bench for 11 years. it was the second-longest time that anybody has sat as the most junior justice. more years had 11 and he has moved around on the bench. we are pleased to have him here tonight for this lecture. justice breyer. breyer: 11 days or something. i was thinking about asking --tice alito for not taking to not take the oath or 11 days
so i could know down in history as a trivia question. if you ask anybody in public life, teaching, what is the most important thing we can do? it is helping the next generation and the generation after that understand history, in particular, constitutional history. i do that, when i have the chance. i'm going to texas and i will talk to three groups of students and i will put in you as a little note here because you gave us material and you explain to us how what we do and what this document does fits in with 200 years of history of a law that has had ups and downs. i am grateful to the historical society and to georgetown. this is a time where we aren't
celebrating the bill of rights and it is wonderful that you are here and it is very nice of you to give this lecture. ehan, then she director of the ryan center for the study of free institutions and the public good at villanova. i hope you see that i read clearly and distinctly. that is what our lecturer does. been a historian and she was at claremont and i am looking for that she is an
expert not on hamilton. my grandchildren are the experts on hamilton and they can sing it. she is an expert on medicine. madisonwritten on james and the spirit of self governance. , writings from other federal is. the most recent book is the mind of james madison: the legacy of classical republicanism. that is what we will hear about and it is nice for some of us, including my grandchildren, to realize it was hamilton and madison who were instrumental in producing the document that helps 320 million americans -- lead a reasonably civilized life, even though they think things. they work together to produce
this country. how did that begin? who were the people? hamilton. madison. those names predominate. it is a fine thing for you to be here and to lecture to us this evening. thank you. >> thank you very much, justice or i are. it is an honor to the here with you. i have followed your work in the court and your studies of madison, from which i learned a tremendous amount. madison anddeas of citizenship and learning from your work. tonighto thank our host , the director for the center of
the constitution at the andgetown law school members of the supreme court historical society. there is another slate of and i am scholars honored to be in their company this evening. the topic i have been asked to address is madison's understanding of the ill of rights and his conception of the bill of rights as a tool of civic education and free government. i have titled this talk -- with madison. not james madison, the father of the constitution, the federalist, just madison. the next book should just be "madison."
or, the next broadway musical. the broadwayd musical, no matter where you come down, you have to find it ironic -- i know that hamilton would. what came up for my screen was, and i swear this is true, "sorry, madison, no hamilton yet." justnot know if this was a or if it was an apology. there is still a madison wisconsin. no hamilton, but they did get the jersey boys. has been called a schizophrenic, a hypochondriac, a fabricator, and a
flip-flopper. one scholar asked if there is a madison problem. on the bright side, he is the father of the constitution and a writer of the commentary of self-government, as jefferson put it. there is a county in new york. so, i have to note that, in that county, the town of hamilton is located there. in 1789, james madison introduced legislation and called for nine amendments to the constitution. congress organize these and submitted 12 amendments. 10 of theseter, became part of the supreme law of the land and these
constitutional amendments eventually became known as the american bill of rights. madison was not originally in favor of the will of rights. he was anxious about a call for a second convention to include a bill of rights. it was mulligan-like. there were difficulties that had to get -- begotten over to produce a constitution that all the states would sign and madison feared that a second convention would fail and fail abysmally. madison hoped that there would be a tactical effect of narrowing the scope of the central rights. the u.s. constitution was one of the powers, with all powers being reserved to the people or
states, if not delegated to the federal government. enumerateke sense to -- rightsrast, the goal of was in the british constitution. the liberties of the subject were carved out from the crown and parliament. the united states constitution does not grant rights to the people. the people grant power to the government. way.on put it this charters of liberty have been granted by power. america has set the example and france has followed this example of charters of power granted by liberty. the danger emanating from a bill mighthts was that some assume that writes that are not
listed are not possessed. a number of federalists agreed with madison and his assessment of the hazards of the goal of rights, especially with a danger of calling a second convention. all of the antifederalists and some of the federalists favored the itemization of rights. side -- sign -- there were two who refused to sign and the bill of rights was key. i have wondered, when that convention finished the business and franklin gave his rising sun speech and everybody adjourned to the city tavern, where did
eldridge gerry and george moesch and go? -- george mason go? rather, what was most dj, he believed was a political architecture that made it practically difficult for government to encroach on the rights of the people or for a majority to encroach on the rights of a minority or, if they do, they will have to face consequences. think of it this way. expecting congress to follow orders that are written on a piece of paper is like the signs you see in public restrooms -- "employees must wash hands." how many mothers put up signs like that? they say, "show me your hands?"
hands." why did madison introduce these amendments? did he change his mind? this is the first question i like to examine. the second question is one of the reasons madison offered a bill of rights in the united states, the influence that these may have, as they are incorporated into public opinion. was madison sincere? was he grasping at excuses for having changed his mind? if he was serious, how did he envision a charter of rights? what does this tell us about the character of the american political system and the role of the citizenry in the madisonian
conception of government? finally, i'd like to address his understanding of the bill of rights as an expression of our responsibilities to fellow citizens, particularly in the context of the current and escalating conflict between very different notions of rights and liberties in our society today. i appeal to the sensibilities of robert frost to help me in this task. i approach this with trepidation in the chamber of our republican institution. over the course of the history of our nation, some of the greatest minds in the land have wrestled with these, as they protect the trees of liberty. some of these will flourish, all may at the expense of others
being shaded or stunted. when the amendments were takenuced, washington had office five weeks before and the supreme court would not convene for another eight months. madison andssues, washington works in tandem to advance the agenda for the ill of rights -- the bill of rights. president acknowledged the concerns of many americans to conveyed his support amend the constitution. washington said, besides the ordinary object, it will remain your judgment to decide how far the exercise of occasional power
is rendered expedient at the present juncture by the nature of the objections that have been urged by the degree that has given birth to them. madison,ngton and quelling the antifederalists concern was a priority. to cement the union was, i think, one of the chief reasons toswitched from reluctance support. cementing the union. he wanted the bill of rights after the ratification of the constitution and not as a condition of. toison's support attempted draw appeal to his constituents
and he recognized that the bill of rights would situate the judiciary as a source of protection, including, he originally helped, as guardians against state violations of those rights and this was a toticular importance for him gain support for the constitutional state laws. when madison acknowledged the roles of the judiciary, this was .videnced in a speech he did not depend on the judiciary as a chief guardian of individual rights and he did not aace emphasis on appealing to bill of rights to rouse a sense of community. he considered this, as a backup plan, if needed.
rather, to protect against the encroachment on individual rights, he relied on inventions it outence and he laid in federalist 51, separation of powers, i camera listen, federalism, to two single checks -- separation of powers ism, federalism, and checks. he thought of a larger territory, including from maine and boston and fisheries to southern agriculture and many
ects, asrse religious sac you would find in a territory that was larger. madison said that the diverse landscape reduce the likelihood of a majority faction and it makes it more difficult. he thought there would be less than a numerical majority who share the same interests and it will be harder for a large number of people to communicate and unite on the aces of a common-- basis of a impulse. are not aed remedies fantasy. there can be no guaranteed cure for the problems of injustice, short of destroying unity. guarantee for the
problems of injustice short of destroying liberty. of course, that is a remedy that is worse than the disease. if they majority of people are unrelenting in doing wrong, wrong will be done to stop the majority, however composed ultimately gives the law, he stated in his diagnostic preparatory notes for the constitution. the majority is not always reasonable or respectful of the rights of others and the create a was to political order where this is synonymous with just and reasonable opinion. it is the reason that should sit in judgment, he wrote. this is the aspiration that he
would underscore, as he continued to develop his theory of republicanism and he argued that the will of the government must be dependent on the society and he proclaimed that, in genuine republics, they derive energy from society and operate by the measures of the understanding and interests of the society. in 1792, he believed that he had solved the critical problem that he aged his 1780's, namelye the disjunction of power in popular governments. let me take a minute to underscore the difficulty of the
challenge that madison and the founders set for themselves and the significance in what he believed he had discovered that would set america on a course. he made it painfully clear in his recounting of governments that the history of republic is the history of repeated failures and there may have been momentary glories from the gloom , that they only served to dazzle us with false hope. despite this poor track record, they founding generation was determined to try again and they called the challenge a great experiment in self-government, making an aspiration to demonstrate to themselves and the world that the people are capable of governing themselves.
the experiment and the capacity for self-government. in his inaugural address, he reminded his fellow citizens that the preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered deeply and they are staked on the hand of the american people. second, creating a political and civic environment where the will of the society -- , the majority
ultimately gives the law and the only solution is to make the opinion of the majority suitable this,e and, to accomplish it requires a modification of it willreignty and produce an impartial umpire. the design of the system is meant to accomplish this objective. multiplicity, it makes it difficult for a majority to he said that this cannot be too large and they cannot be so large that it
precludes the travel of representatives to and from the representatives and constituents or throughout the society. territorieshere of opinion simultaneously ,erve to promote communication deliberation, and coalition building. the things that hinder the formation of the majority majority arehe meant to serve to advance the formation of a majority. how does that work? succeed, a bill must rise to the occasion that each demands.
bicameral of powers, ism, and institutional checks are hurdles and they are also vehicles for the promotion of the commerce of ideas, like a classical board game. they are there to impede some moves and reward those who navigate the design of the game. combined horses that promote discourse, representation and the best of representation, formal education, the influence of the literati, religious views, and bills of rights. these are ways in which public opinion is shaped and free society and it should be noted that the influence of morality
and religion and of the bill of rights have negligible impact creation fact of the of a majority faction, but can have a substantial effect on opinion before the unleashing of undesirable motives. when that faction is actuated, there is no court of higher ofeal and, as such, the work educating the opinion is a task. oncee of my colleagues passionately declared in a departmental meeting, you cannot get it done, when the ship has left the station. republic,rican
various public views are put to the test, questioned, criticized, sometimes abandoned, reshaped, refined, modified. the modification of public views tempers, moderates, and unites opinion.ws and makes it is not merely the sum of partial interest. is not just the opinion of one part of the society. it is the results of a multilayered and dynamic educational process that seeks to refine and reshape the years of the parts of the society to produce what madison called a coalition of majority of the
whole society and i pondered was that phrase as i reading it. it toists on saying question he began back in federalist 10. how does the party to the case also be the judge? there cannot be anything higher in a free government. people he both the party and the judges? federalist 10 is to form a coalition of the majority of the whole society. majority will
seldom coalesce on principles other than those of justice and the general good. making parties into citizens and that people become citizens that are capable of judging in their own cause. republican citizens asserting freedom and learning the bounds of freedom. the madisonian goal was to come to know the moderation, the measure of liberty. within this context, his the bill ofw of rights played a role.
he said that the political truth , acquired by degrees, the character of fundamental maxims of free governments. as they become incorporated with the national sentiment, they counteract the impulses of interest and passion. in 1791, while awaiting the decision of the states with restatedion, madison the idea regarding the effect of the declaration of rights on the public mind and said that public opinion is a real sovereign in every free government and that influenced by is opinion, deciding the question with the bill of rights, requiring efficacy to incorporate with the public sentiment.
theses interesting out with thes the phrase bill of rights. now, in 1791, he was decidedly with the influence that the bill of rights may have on public opinion. the timing is surely relevant. before, month or so congress passed the hamiltonian measure to establish the national bank. madison had previously placed as ae emphasis on this force to counteract governmental abuse of the necessary and
proper clause. with the success of the component parts under the first ,ew years of the constitution he changed his perspective if of the greatest danger and it would seem that created thesoning inclusion of a bill of rights and the constitution and the as a tool ofs education. 1956, in a sketch, robert offering a by warning to those who take
liberties in life, rather than having liberties given to them. thiness.d unscrupulous he came down on the side of audacity, which he saw as a gift dining characteristic of the american spirit. said that the constitution being a living document makes something new every day and it would he anything anymore to james madison. thert frost remarked that word freedom is on everybody's lips. the freedom is the freedom to in thend speak out press.
liberty. is -- am for america , this serves as a primer for republican citizens and it is a way for each generation of americans to learn the basic tenants. as well as -- current day, there is a clash over the meaning of some of our most fundamental rights and liberties and the conflict is being played out at weddings, hospitals, a curious, and on college campuses, often manifesting as a battle between
liberties of different groups were different liberties or the manifestation of irreconcilable rights. at the present juncture, following the election, the political and cultural the virgins across the land continues to increase and intensify and escalates to a point, some have concluded, that we have become to america's. to the extent that there may be some truth in this assessment, we should all be deeply concerned. there is a sad irony in the fact that one of the main reasons for the adoption of the original will of rights was to bind together parts of the nation -- all the parts of the nation, after a ratification battle between the federalists and the antifederalists. thatame bill of rights
americans once united together wheres now a place americans are dividing into hostile parties. madison did not exceed in getting the right of conscience into the bill of rights and he believes that it should have been part of the document. protectionosal, the of the right to conscience was asserted. he said that the right of conscience shall not be infringed. he said, and the sar property, he may also say that he has a property in his rights and, in these, conscience is the most sacred. --
and innce is a natural alienable right. for this natural and inalienable right, we are pledged to protect nature of the social compact. conscience is the most fundamental and the protection of it is a moral debt that every citizen owes it to every other. it is called a debt of protection and he speaks here of the debt of protection as he teaches that it is derived for the principles of natural law and for human equality. when human beings form a civil society, they accept the obligation to protect other human beings in their rights to
life, liberty, the pursuit of happiness, and self-government. this is an integral part of the refraining from -- act as the affirmative protector of the equal rights. as an aspect of the theater of the mind, conscience is the cause for religious liberty and the recent what unqualified protection and not interference of government is required. a duty to god and the creator.
these are positive duties. active liberty, as justice ryer would put it, that we owed to one another. sharing the same landscape and we have rights mustwe can claim and it include the understanding that we have duties to each other. this brings us to a realm of citizenship and it should be noted that, what madison and forefathers meant by conscience and liberty may not be identical to what people mean today.
madison invoked the sovereign of the universe and natural law. many in our modern age would think of conscience as a gut feeling. are answerableey only to their own feelings, values, and preferences, to their selves. the contrast between the contemporary viewpoint and madison's understanding of conscience must immediately become clear. he did not believe that human beings are the creators of the meaning of the universe or that our rights to be understood are independent of moral duty. in respect to the latter, the majority actually owes a debt of protection to the rights of the thisity and respecting moral debt by the nature of the
social compact. is not only for them selves the majority party is really no longer a party any more and the core of political ofion and forms his theory just and reasonable public opinion and this is the heart of his response to have liberty serves the ends of justice. remember his phrase from titles 51, written in the rotunda of the pennsylvania state house.
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