tv Interpreting the Bill of Rights CSPAN June 30, 2018 12:59pm-2:43pm EDT
when did that happen? i realized there was led in water wasn't until the end of august 2015. it wasn't from seeing patients. it happened to be at my house with a high school girlfriend who happened to be a water expert, formally with the epa and washington dc when d.c. went through a similar crisis. with a glass in hand, she said, have you heard about the lottery echo -- the water? not being treated properly, and because it's not being treated properly there is going to be led in the water. i try to get children's blood lead levels, because that is something the county has surveillance programs for. track this, let we track the flu and hiv and the epidemics. get that government data, so i did my own research
to see what was happening to our children's blood levels. what we saw was alarming. >> watch afterwards, sunday night at 9 p.m. eastern >> american history tv, constitutional scholar linda explains the bill of rights, detailing each of the 10 amendments and how they were ratified. she also describes how these rights are used by citizens and determined by the supreme court. -- the smithsonian associates hosted this event. to welcome back linda monk, a graduate of harvard law school, who twice received the american bar
association silver gavel award, it highest order for public education about the law. the author of three books, she serves as a visiting scholar at the constitutional visitors center in philadelphia, and's,ed for music virginia, and washington dc. for more than 25 years, she has written commentary for nationwide. she served on the board of trustees for the u.s. capital historical society and she has conducted seminars for such groups as the pentagon, national archives, fulbright scholars, and george washington's mount vernon. following linda's talks this evening, her newest book will be available for sale outside of this room, and she will be happy to sign copies she brought with her. with that, i would like to invite linda to the stage, and i have one button i need to press before i do that -- two buttons. ♪
ms. monk: of a parody of "talking bout my generation," "talking bout my constitution." artwork, it is one of my favorites. sorry, i am a little out of shape with my air guitar, so i have to take a little breath, but i am so pleased you came out tonight to talk about the bill of rights and the constitution, particularly in all the bad weather. i drove up from north carolina originallynd being from mississippi, i know to take tornado warnings seriously. so i am happy to be here, honored to be here, and i want that i us on a journey have been on for 25 years, really. when i graduated from harvard , i didn't think being
a practicing lawyer was exactly the purpose i wanted to achieve. so what i decided i really wanted to do was write for the court of public opinion and focus on the role of citizens. so i am honored to be with you tonight to that purpose to talk about the bill of rights, how we got there, and why don't we start from one of my first lessons in law school? when we talk about the bill of rights, what are we talking about? what is a right, and where does it come from? now, we are speaking mainly of the anglo-american traditions. those of you who are anglophiles recognize in addition to the royal wedding, having that seal emblazoned everywhere, that is the coat of arms of great britain. the motto below it, god and my
right. god and my right. we are a culture that sets a lot of stock by right. in fact, if you do buy my book, you will see inside that the commission on the bicentennial of the constitution said that rights are really what bring us together as americans. people whoare other are americans who remind us that we were known for violating natural rights as well as observing them. what i want to do is tell the story,the rights-based and then see how it has been applied, but more importantly, i cannot cover tonight what i have spent 20 five years putting together. i want to engage you with some of the principles, but also the story and the people that brought these principles to life. that is why i am excited about our new book.
let's talk about a right. the cartoon character calvin, one of my favorites, in one of his panels says, his dad is saying to him, two plus two equals five. that is wrong. you can't do that. calvin says yes i can, i've got my rights. you hear that idea about rights a lot in america, that it is basically whatever you want it to mean. two concepts i want to introduce that you have probably heard before, the idea of natural rights. that we are born, the nature of being human beings, with certain words in the declaration of independence, unalienable rights. and when we talk about that principle, when it comes from the declaration, that is our credo. we hold these truths to be self-evident, that all men are
created equal and endowed by the creator with certain unalienable rights -- here is the kicker -- two securities rights, governments have instituted among them deriving their just powers from the consent of the governed. to secure these rights. that is the basic principle of government. have natural rights, but they are not necessarily protected by the law, right? there are some kinds of rights in certain cultures that may not be what we think of as inherent human rights. so if you base rights totally on the law, what the law gives the law can take away. what congress gives, congress can take away. if we are talking about natural rights, it does not begin with government to start with, so government does not give you anything. it might declare or acknowledge it, but it is not coming from government. what makes the difference in our
is that we arets trying to take what our natural rights and turn them into also protected by law. right? you have the declaration of independence, but it did not create a court system. there was no way of enforcing rights. one of the other things i learned in harvard law school, there is no right without a remedy. you can say you have rights, but if you do not have a remedy against someone who is violating your right, does the right really exist? let's bring that back to our constitution. you recognize this piece of art, those of you who work in the capital or work in the capital -- or go to the capital, you have seen it before. it is what we now think of as , and it was hall
named independence hall because that is where the independent -- declaration of independence was signed. but we know this is not the declaration of independence whining because who is their? george washington. he was not around to sign it, you without leading troops. this was the constitution convention in 1787 in , 11 yearsia, in may from when the declaration was signed in that same room. so we can often celebrate the constitution -- i believe it was the product a very human endeavors that had very human limitations. you can bet that the people were in that room, the 55 white men
and 38 eventually signed, there are 39 signatures, but one person signs twice for another person. when they were back in that room, they knew what had happened 11 years before, right? they were very aware of being infallible human beings, and you saw the preamble art that was on before. we the people, in order to form more perfect union's -- why are they saying that? they have already failed once. they have already said we had a less perfect. one of the reasons i love the preamble is because we are saying from the outside we messed up. we will try to do better, and by the way, we have done what we can, you go figure it out. here we are in the
constitutional convention, you will probably remember this phrase, a republic if you can keep it. it is apocryphal, supposedly it was said by a woman, franklin said it to a woman who inquired what form of government came out of the constitution, because it was all a secret, and he referred to it as a republic, if you can keep it. that phrase is one that i -- consciously said, a republican if you can keep it. because when the constitution in 1787 on signed , what happened to it? what happened to it? did it just -- you have seen the apotheosis of george washington at top of the capital, and that is the view of the founders i am
here to say i do not think that is the way it happened. washington himself says i wish the constitution had been made more permissive as an amendment process, and that is what we are counting on. they signedd once it is it went back to congress, and was supposed to go back to the state for ratification. but as you know, what was missing from that second constitution that was signed? the bill of rights. i think if you ask any american today who is not familiar with constitutional history, which is most americans, freedom of speech, freedom of religion -- why didn't they care? why didn't they include that? happened, those of you from virginia or fans of george mason's basketball team, he also was there and said you know, we are getting towards the
end. we need a bill of rights. by the way, i can do one very quickly. do one very quickly. how did he know? because he had already written one for virginia. when we get the final bill of rights, it is a lot like the virginia bill of rights. the framers, the people at the constitutional convention voted unanimously by state delegation not to include a bill of rights. ,here is lots of speculation some people say they were just sick of each other, it had been a long, hot on her. philadelphia had an invasion of black flies, they had to keep the windows closed for secrecy, they were wearing full suits air conditioning, no deodorant, and they had been going on together for about four months. it is hard to think how the bill of rights gets lost in that.
what happens after the constitution is signed and has to go back to congress, when people asked why wasn't the constitutional convention a coup, it was because it was a blue ribbon commission. it got it constitution from congress. it proposed a new government, and it went back to congress. congress could have done nothing , which they came close to doing. they said well, we don't know. we will not vote on it one way or the other, we will let this rates decide. so we are going to the states for ratification, an interesting thing is it is not state legislatures. the framers in philadelphia say you know, we do not think the state legislators will be in favor of us. patrick henry was not. he said he smelled the rat, or he did not show up, but when it
comes back to the ratification conventions in each of the a big player.a is a big state, a big player. this is a cartoon that appeared around the time of the states and the ratification, and you can see virginia and new york are towards the tail end. technically, the constitution went hand-in-hand with the ratification of nine states, and that was new hampshire, but virginia and new york were two of the biggest states. their votes are really going to count. they do ratify north carolina as the only state that held a convention. rhode island had kind of a -- i don't know, it had different kinds of processes, but did not have a convention that voted to not ratify. north carolina, the statement said no, we are not going to
ratify until you pass the bill of rights. the rest of the state had said ok, maybe we will go along with this, but here are all of our suggestions for amendments by the nature of the bill of rights. is jimmy madison. he is my boyfriend -- isn't he so cute? [laughter] i love james madison for lots of different reasons, and the most important reason is that he was a philosopher of the greatest order and a practical politician. to takens he knew how grand ideas and help put them into reality, and today, he would be called a [inaudible] because of a federalist in the virginia ratifying convention, he took on patrick henry. here is james madison and here is patrick henry, and james madison takes him on about approving the constitution.
patrick henry is having none of it. gaveys we the people, who them the authority to say we the people? it should be we the states. does that sound familiar? does that sound familiar? so madison, people say he is a high book on react. i do not think he was a hypochondriac. -- hypochondriac. i do not think he was a hypochondriac. athink you might have had form of epilepsy, but he could have just been shy. he was a man of principle who stood his ground and was also willing to change his mind. and he knew that even though he had one in the virginia ratifying convention -- won in the virginia ratifying convention, there was too much ongoing opposition. you know about the debate between the federalist and anti-federalist, and the federalists are for the government, the anti-federalist s are not.
the federalists -- they wanted protections against an overarching government. some of those were structural, but a lot of them were liberties. what we think of today as the bill of rights. and why did madison change his mind? a couple reasons, he also gives a wonderful letter in august 25, the tail end of the bill of rights getting through the first congress, and he concludes. he gives several different reasons, one of which is to get north carolina into the union, and the other of which, he said because i am an honest man -- and he ran for congress from virginia and promised his constituents that he would support a bill of rights if
he were elected to the first congress. that is in the house of representatives. you and i both know where to james madison really want to be? be in the senate. but who chose the senate back then? the state legislature. and you was the governor of virginia back then? patrick henry, and he was not going to let james madison be a u.s. senator. congress,lected to jamesis is my story about madison. just to let you know what a servant leader he was. he had just been in philadelphia to have an operation for amorrhoids, and had to take carriage, horseback, whichever way, it is going to be uncomfortable, all the way back to virginia to run for congress. so he was a man of a lot of endurance.
he gets to congress, and congress does not want to act. why? first of all, they are trying to get taxes past. xes passed. ber, themem government is meeting in new york then, and he is trying to get them to act. he starts around june 8, keeps reminding them, keeps reminding them, and what is happening the whole time as new york and virginia, who have just ratified the year before, are threatening to call another ratification convention, another convention, and guess what is probably going to happen if they have another convention? they are probably going to get rid of the current constitution. unsettled. as george washington said, and i
am paraphrasing here, essentially at some point, you have to get the revolution to stop. you have to get the revolution to stop. so madison is trying to get this bill of rights, even though he whenhe did not support it he was a federalist. thomas jefferson was supporting him and saying no, we really need a bill of rights. new york and virginia are threatening a second convention, so when he finally puts in his proposals, it is 28 different proposals that are supposed to be scattered throughout the constitution. and then one of his actually calledal enemies, who him the former federalist, former ally, says oh, you have become the patrons ain't -- amendments. of thatne last thing, because is a direct quote from j madison about -- james madison about the
bill of rights. that is what james madison, the founding father who is most us having a bill of rights, held it. and those of you who have worked on the hill and dealt with legislation getting through congress, which is what our first bill of rights was, you know what he is talking about. [laughter] ms. monk: he called it the notches project of amendments -- nauseous project of amendments. 789, it, december 1 gets sent. this is my favorite discovery and all of the years of work i have been doing, thanks to the library of congress. this is the person who took the notes on the bill of rights while it was being debated. you see the horse, the cowboy, and the date. in those days, they had
until congress decided they could do a better job of it themselves, and that is how he made his money. but he was known for being a sketch artist and a very good drawer. we have no notes from the debate in the senate for the bill of rights. this is the guy taking the notes in the house. justice scalia said, i do not care about the framers intent, we rely on understanding. takingis is how we were notes, and the one taking notes on the bill of rights was not that good. i'm told by the people planning this program that you like handouts. handouts,guys like please take out your piece of paper, and i will take out my reading glasses.
now, this is the inscribed version or engrossed version of the bill of rights. see it on the national archives website and thanks to the national archives, i can get a nice little transcription. first of all, let's look at this facility -- the mile.e -- fasci what is the first word on the bill of rights? congress. we like making fun of congress because basically we are making fun of ourselves. intended, theally congress wants to be the dominant branch of government. that is on equivalent -- on --ivalent -- on equivalent unequivalent.
in article one, what is article one? the executive. i would say no, that is not quite right. it is congress. congress is the one under the constitution that is supposed to be proposing these amendments unless we have a separate convention called to propose amendments? this came from congress. now, you notice there is a preamble there that talks about the conventions of the states wanting to limit the powers under the constitution, wanting to add certain clauses and create public confidence. suggested certain amendments. here are the amendments. is the word bill of rights anywhere in their? no. no. notice is there were 12 proposed amendments. the first one is really a bear.
it is about apportionment. it did not get ratified because if it did, we would have 7000 members of congress. [laughter] ms. monk: we think apportionment is bad. article did not get fully ratified at that time. it is about pay raises in congress, and as you know, there was a government teacher who on thistudent a c idea that the article could still become part of the constitution, because it did not have a limit set on this ratification. the other 10 amendments are ratified in 1791. this amendment became the 27th amendment in 1992. , a woman became an employee of the texas state legislature, and he was able to get support about getting this
ratification carried out. you have the first ratifications that occur before 1791, they weren't sufficient, and then [inaudible] , because who wants congress to have a pay raise before we the people vote them out? a good idea, right? i want to get back to this idea of the bill of rights. it has become controversial, in fact, for those of you who are familiar with the historian a workeyer, who wrote called ratification. she pointed out, the state legislatures are talking about amendments, but they do not call it a bill of rights. there has been some scholarly debate about was the bill of rights really that important to the anti-federalists, or where they just using it as a
stocking morse? i will tell you based on my research what i think? anti-federalist cared deeply about personal rights and liberty. there is no question in that, the prominent argument against ratification. pressure on americans today would point to that as a substantial reason not to approve the original constitution. there was also a question as to why don't more framers talk about the bill of rights using that term? what thomas jefferson did, james madison did. didn't, buthall he was only talking about the fifth amendment, so he was not going to admit that we needed a bill of rights anyway. what happened is certainly by the turn of the 19th century, read the -- remember the
believed in direct action because the courts were not going to do anything for normal people anyway gato i discovered some descriptions of that. this woman would pass out come tos, talk about the states that are oppressing working people and to defend the bill of rights. so the bill of rights may be cited as such by that many people of the federalist generation, it is certain that the american people did, that is my story and i'm sticking to it. ok. wow, that was about five years worth right there, don't you think? [laughter] i promisedk, what you -- this is definitely where we are going from the trees, this is what you wanted, so here we go. i am going to take an overview
of the bill of rights, tell you some things you might already know, some things i hope you don't already know, and my onhasis is not going to be every single right in the bill of rights, which is why you want to buy my book, it is going to be the story. my contention, in case you have not already figured it out, is that the important part of our secret sauce is the role that citizens play, and my role as a constitutional scholar, what keeps me still excited about this content is throughout our history, the people who had the least reason to believe in a constitutional bill of rights, who were told repeatedly, you don't count. you are not included. you are not one of us. they did not believe it. did not believe it. so they said, from the very beginning, the slaves in cents asetts in 1777
petition to the massachusetts legislature, saying we are petitioners, we believe that we, too are included. that we have these unalienable rights. they took the language of the declaration of independence bar by bar, and said we are astonished -- astonished -- that you have not considered this, regarding your late dispute with england, and we tell you you will be judged as hypocrites. they call them hypocrites for not living up to these ideals. so when people tell you oh, well, you know, we just pay attention to the founders or the framers -- i say let's listen to the founding generation, and those voices were there from the outset. that is our american story. let's start with the great behemoth, the first amendment. of the 12if all amendments had passed, it would
firstve been the amendment, it would have been the third amendment. it does not have the same ring to it -- your third amendment right to the freedom of speech. one of the things we are going to cover is that the first word of the first amendment is congress. congress should make no law. that should be interpreted to mean that the bill of rights only restricts the federal government, not the state. and james madison in his first version of the bill of rights had in a provision that said specifically that no state shall interfere with the right to freedom of religion or consciousness, which is sometimes speech, and the press. and the senate got rid of it. he said that is the most valuable provision on the whole list. well guess what? the supreme court under john marshall will say well, congress means congress, it only applies to the federal government.
it will take us another -- not quite 100 years -- to get the 14th amendment that will change that. it covers these huge rights of religion, speech, press, assembly, petition. here is the story that i love to religiont freedom of and nonestablishment. have any of you ever been to the tauro synagogue? you recognize it and know the story? in those days, when the president would come to visit, and the president was going to rhode island, which is where it wasas located, traditionally a haven for all people, faiths and none. the warden of the synagogue, the leader of the synagogue wrote a letter to washington.
and the style of the time as you would write a letter, knowing that the president is the poster toht back, and -- supposed write back and will probably tell you a lot of what you said, and he will quote some of it back. say what you think is a good idea and the president will probably quote some of it back. not all of it, but some of it. george washington says here that the great truth about what the first amendment and freedom of religion is designed to do, it is no longer that coloration is spoken of as though it was an indulgence of one class of people that another enjoyed the natural exercise of their natural rights. when i talk about tolerance, we are talking about rights. we are talking about natural rights. say, ihington goes on to could not put everything on the slide, but washington goes on to say maybe the children of
abraham enjoy the fruit of their fig tre victory -- fine e, and may none make them afraid. another group i would like to bring to your attention, jehovah's witnesses and the constitution. it has been said, in fact, in the supreme court opinion that jehovah's witnesses may have done more to establish our constitutional rights than any other particular faith. does anyone recognize that photo from the library of congress? it is from a group of students in connecticut. connecticut -- for those of you who don't know, and i am not going to do this on camera because i do not want to have that photo of me doing it coming out, but the traditional pledge
writteniance, which was by a baptist minister in honor of the 400th anniversary of formbus discovering america use, had pledge of allegiance, and to the flag was that gesture. and jehovah's witnesses, who were greatly persecuted in nazi germany for refusing to give that same salute, which jehovah's witnesses new look ked like one loo that was being used in germany. they take their case to the supreme court. in 1939, the supreme court says no, we need to encourage patriotism.
to that decision, there is pronounced violence to jehovah's witnesses all across the country, and in nebraska is castrated -- and in fact, one castrated byka is a mob. so when we talk about patriotism and what patriotism is supposed to be about and our own history, and who has the right to treat whatever flag or whatever pledge in any way, four years later, that court decision was overturned. and here is what justice robert jackson and his majority opinion , only four years later, when they said you know what? changed our mind. four years for the supreme court to change their mind is pretty quick. we do not think you should be able to force a school child, and by extension anyone, to say the pledge of allegiance. and here is what he said. you may remove or -- remember justice robert jackson.
justice jackson became a prosecutor at the nuremberg said, and here is what he in the middle of world war ii. big story in our constitutional constellation, it official can prescribe what will be orthodox in politics, nationalism, religion, or other matters of opinion or force, or force citizens to confess by word or act of faith therein. according toospel the first amendment, that no government official has the into to force anyone compelled patriotism. he goes on to say, again, i cannot put it all on one slide, he says divorce patriotism is to make a severe underestimation of the pill of free institutions to free minds. if it is forced patriotism, what does account for any way?
and this is one of our most recent first amendment warriors. iss assignment can -- this simon can. a unanimous supreme court decision that took him 10 years to get there. he is a rock 'n roll musician. band -- sense-dance synth-dance band. i do not know what that means be he is popular so it must good. in order to be commercially successful, he needed to trade market, because no recording company is going to enter in a commercial deal if you cannot trademark your own band. band an american and his was not all american, so what
did he named his band? these plants -- the slants. time for us, a those who rooted for the d.c. beingll team, that was contested as well because understandably, the history of oppression in our country is .evere and serious the extermination of native people, the enslavement and extermination of people from africa, etc. that is part of our constitutional history as well. and wente pursued this to the patent and trademark office -- and if anyone who works for the patent and trademark office, nothing personal. i know you were just doing your job. he puts in to get a trademark for his band, the slants. and he keeps getting letters saying well, no, you cannot do
that because it is disparaging of asian-americans. it is disparaging of asian-americans. for 10 years,on back and forth, back and forth, points out, there is nothing intrinsic about the word slant that you cannot trademark, and he looked up all of the different trademarks that had "slant." was that i amded the only person who was denied the trademark of the word slant offensive tos asian-americans. and he faced a lot of backlash because of it. and i think it is understandable. i almost want to say that growing up, i had a chinese-american family that i was very close to. and before i put this in my not anot that there is legal way to do it, i said i need to talk to you.
i need to know, people that i love, what do you think? there was a variety of opinions. older generations, it is like the n-word and you would not use it.n-word, so do not use middle generations like me were kind of mixed. and, he won unanimously, the first amendment -- a unanimous supreme court opinion on the first amendment? and others were saying what is the big deal? what is the big deal? in that book, he graciously consented to give the op-ed that he wrote, and he talked about reappropriation. some of you know about that, where you take the slur and turn it around. for him, it was a symbol of took 10uthority, it years in the supreme court and he won unanimously, so he is definitely a hero of the first amendment. here is another one.
with simon's case, there are lots of things we do not like. or are lots of things we do not want to approve of, but we do not want the government to be the one to decide which ones get approved and which ones do not. how many of you here have heard of the westboro baptist church? i give a shout out to one of my friends, the former director of americans for separation of church and state. made theborough declaration that they thought the u.s. should lose in iraq and afghanistan because of its lgbtq of admitting voters, and every death was a punishment on the u.s. for having that policy. to get all the way to the supreme court. there are some wonderful
father ofies of the that soldier in the case is just heart stricken. he knows it is wrong. it is a funeral. it is my son. he should be honored, he should not be -- and in my grief that i have to see this. the supreme court said yes, unfortunately, they have a permit. are in a traditional area of public expression, a sidewalk. they are not blocking anybody from getting in the funeral. then what happened? what happened? i said citizens have the final say? we are the secrets toss? you see all these people lined up? those are your fellow americans who are protecting the family during the funeral of their beloved so they do not have to that protest.
it is a constitutional first the westboroht for baptist church, but fellow citizens joined together and said we can protect his family without violating the constitution. another example i want to give you from the first amendment -- yes, i know i am skipping over freedom of the press, but i cannot cover it all, and you have probably seen the movie the post and i think, you know -- [laughter] that one i will read when we have great actors and actresses to cover it. expression is not mentioned,y but derived from the other rights. it becomes very important in the civil rights movement in 1958, when the state of alabama wants to have a membership roll of the members of alabama in the and of lacy p. i wonder why?
-- naacp. i wonder why? they say no, they do not have to turn it over because there is a freedom of association and some privacy involved in that. dale wass versus another example, where the supreme court ruled that the boy scouts had a freedom of association and they did not scoutmasters lgbtq in that case because it was a private association, they did not regard them as being covered by public accommodation laws, and what happened? the boy scouts is not legally have to change a thing. but what is this gentleman doing? exercising his first amendment right and a parade to say here i am, i was -- i am 88, i have been there for so long, and get now you are kicking me out -- yet now you are kicking me out?
writtenlic dialogue was , what was written and ratified, or what we call the original meanings, how the supreme court but what dohat, citizens do in that process? ok, next is the second amendment. i will cut to the chase about this one. [laughter] yeah, yeah because i know there will be questions anyways. aere is the actual language, regulated militia, right to bear arms, shall not be infringed. until really i would say the 1970's, there was a common that reallyg that did not mean an individual right , it was more like the right of the state to have militias. and i am summarizing there.
what happened was actually a liberal law professor wrote a law review article that said wait a minute. if we are treating the second amendment, which talks about the right of the people, we treated that the same way we talk about the first amendment right of the people and the fourth amendment right of the people, the people are the people. there is a right of the people. clause,has a dependent but i tell you -- justice scalia should definitely have been a [inaudible] the way he goes through all of the different kinds of language, i did not even learn any of that as an english major. 2008, the know, in supreme court ruled in the heller decision that yes, the second amendment contacted an individual right -- protected an individual right to bear arms.
and that does not get rid of all gun control. and what i think we are losing is thecurrent debate idea that no right in the bill of rights is without limits. right. none whatsoever. so when people start talking about an absolute right in the second amendment, that is just not true. the second amendment, like every amendment, has limitations. a societye doing as right now is debating what those limitations should be, whether or not there are any. the other big thing to know about the bill of rights? most of it is about criminal procedure. talk about oh, criminals are getting off on a technicality. well, a big part of the bill of rights is technicality. big technicalities. look at how many amendments are there. the fourth amendment, which
protects against unreasonable search and seizure in criminal cases, all of this, it is applying against the government. your employer can go and search wherever they want to while you are on the job. the fifth amendment, grand jury, double jeopardy, uelf-incrimination, d process, a lot of rights. six amendment, -- sixth amendment, lots of rights under that, and the eighth amendment, which for bits excessive fines and cruel and unusual punishment. whew. whew. why do you think the framers and by extension, the state constitutions, because a lot of these rights that wound up in the bill of rights come from the state bill of rights. the states had bills of rights, and most of the time those came -- not just most of the time, i think all of the time, most of
startse the constitution with the equivalent of a bill of rights. so part of the reason i think -- generation did not call the founding generation did not call hours a bill of rights is because it was not at the beginning like it was supposed to be. when the founding generation are putting together these constitutions, they have so many protections about criminal procedure. why do you think that is? because they had felt the heel on their neck. right? all due apologies to the royal buting, etc. etc., they had been on the receiving end. what is a general warranty? you give the officer of the crown a piece of paper, it does not matter what is on the piece of paper because they can do whatever they want to.
when they do not allow you to have a jury of your peers and this is in the declaration of caneendence, and when the sends you back to england to be tried, why would he do that? -- king sends you back to england to be tried, why would he do that? so your friends can't equip you cquitquick you -- a you. i'm going back to some stories for you. when we are talking about criminal procedure, we are talking about someone like clarence earl gideon. how many of you have heard of him? if you have not heard of clarence earl gideon, the is a drifterterm in force.
drifter, so he -- a drifter in florida. a criminal, because a drifter. he is accused of breaking into a pool hall and stealing money from a jukebox. no one actually saw him do it, but he was an ex-con, he was a likely suspect. case, the course of his the supreme court is going to decide to not just give him the right to a lawyer, remember, we have the right to counsel? but you have the right to pay for your own counsel to show up in court. haveme courts, you did not the right to be represented by counsel. the judge did all the deciding and the evaluations. in gideon's case, it will be not only does he have the right to have an attorney, but he has the right for the state to pay for him an attorney. this starts with the conviction
-- thegentleman who are gentleman who are colloquially .nown as the scottsboro boys african-american men, eight african-american men who are accused by a white woman of rape on a train car in a time during the depression where people were , andg about to find jobs they don't have -- they do not have adequate representation and they are convicted in a matter of hours. and eventually the supreme court will hold it in capital cases. to have the right court-appointed counsel. when clarence earl gideon comes 1960's, you early do not have the right to have an attorney in court paid for by
the court. so he has been sentenced, he has had many convictions at this point, and he writes this handwritten petition from his jail cell. have you noticed? at the top of that, you can probably not read the specifics, but you see the department of corrections and the corresponding regulations, etc.? he is writing to the court himself, he does not have any money to pay any of the fees, but he is saying i believe that i have the right to have a court appointed counsel paid for me. and as a matter of law at that time no, he did not have that right. the supreme court had not upheld was right, but the court looking for a case. it happened to be one of my law professors at harvard who was clerking for chief justice warren at the time, looking for a case to change that.
remember how i told you there are different rules? the feds have some rules, the states have others. were convicted of a federal crime, you would have had the right, but the state of florida did not have that. so it is printed in my book that i hope will be as moving to you as it was to me, gideon writes a 28 page letter, handwritten like that, to what becomes his court-appointed lawyer for the supreme court case. 28 pages. it will break your heart. it will break your heart. saying, i am ay nonconformist. a person who will not conform. you get that kind of rebellious was hardwired into him early on or he never would have made it this far. apparently he had contact with
his mother -- conflict with his mother and was put into a reform school. he says that of all of the prisons i -- have been in, that was the worst. i still have scars on my body from the beatings i received there. he makes it to the supreme court, the court ruled in his favor. so he is appointed a lawyer. the aclu wants to represented him -- wants to represent him. and now it goes back to florida and they will decide if he is really guilty of the crime. [laughter] >> he -- ms. monk: he fires the aclu lawyers. rights well,wyers gideon has always been a not, but in america, the protection of the bill of rights will always be dependent on someone who is a nut. [laughter] ms. monk: maybe he was not a nut, because who does he get as
his lawyer? a local lawyer in florida who knows how to interview witnesses, and he was acquitted. maybe he is not such a nut after all. you are nottion, paying the harvard tuition, so they will not give you a law degree, but you will be really steeped in the bill of rights when we are done -- and the 14th amendment. have you heard of the unenumerated rights? have you heard of something called unenumerated rights? it is like -- and this is one of the original debates about should we add a bill of rights during the ratification convention. if you start listing rights, what is the problem with that? you are going to have some you leave out, and if you leave some out, what is going to happen there? they are going to start saying you do not have them. so what became the ninth
the enumeration constitution of certain rights essentially shall not deny them because they are retained by the people. youpeople, how i told here's what the big debate is about the ninth amendment. if judges look at the ninth , if you believe the philosophy of the current court system, there are unelected judges trying to make up rights and laws, we do not want that. the ninth amendment, in the words of judge bourque, who do not make it to justice, was like an ink spot. if you try to lift it up to see what is under it, it is not a good idea.
other people are now saying, but a minute. rightsr, to secure these , what rights -- yes, we want rights. there is no right without a remedy. injudges are not out there forcing rights, how are they going to be protected? there is a big debate about that now and they constantly surrounds it. contraception, sexuality, and a woman's control of her body. happened is that instead of using the ninth , thement and citing it court has tended to look at the 14th amendment. why? this is the 14th amendment.
this is a new bill of rights. revolutionary justice thurgood marshall said, it created a new constitution. the 14th amendment comes after the 13th amendment. what did the 13th amendment deal? abolish slavery in the constitution. this group of civil war amendments, the 13th, 14th and 15th. the 13th abolished slavery and congress was supposed to be able to enforce it and yet, after you had freed slaves, what was their status under the constitution? they were not slaves.
slavery was abolished. slaveryople would say continues today, slavery by another name. i recommend the book by douglas blackmon about that. existed whole who were not slaves but with a citizens -- but where they citizens? no, because that was decided by states and even more horrible was the dred scott decision, for those of you who do not recognize, that is the scott issue that were an brought forward the case known cott.ead scott -- dred s james buchanan was lobbying members of the court to decide the case in a way that he said was forever going to solve the issue of slavery.
decision goes far -- we anything we worried would regard today as jurisdiction. he said dred scott is not a citizen of the united states and for those of you who went to law school, that supposed to be the end of it. if you have made that decision, it has no standing so you're done and everybody goes home, even though it was common as a state level for former enslaved to be able to successfully sue. not only were african-americans not citizens, he specifically says they were not citizens at
the time of the ratification of the constitution, and that is not true. the justice from massachusetts says it is not true. in massachusetts, north carolina, and new jersey, people with property that included women and people of color could vote. that is until the new jersey legislature gets wind of it and in the 1800s changes it. ,t the time of the ratification yes, there were african-americans and women treated as citizens if they owned property. say, notce goes on to only is an african-american not a citizen, that person is never capable of being a citizen. those people who helped build the country have no rights which a white man is bound to respect.
slaves who were freed could never become u.s. citizens. what does that do? instead of forestalling the civil war, it helps for meant it. then there is no -- it throws popular sovereignty out the window because it's as a slave holder can take that slave anywhere because it is property and be nationalized anywhere in the country. after the civil war, for those of you who have seen the movie lincoln, lincoln realizes that at some point, these other states will come back. as a native southerner myself, i yes,to point out that, slavery was the cause of southern states seceding. they said that over and over again. lincoln also said that if he could save the union without freeing a single slave, he would.
what came out of that war with the enslaved people who refused to be slaves any longer. tried to start that movement. when we get to the 13th amendment, it is not sufficient because freed slaves are not citizens. if they are not citizens of the state, they are technically not citizens of the u.s. because there is no definition of citizenship in the constitution. one of the most important things that the 14th amendment does is define citizenship. it defines a citizen as a person born in the united states. we talk about birthright citizenship, that is part comes from. a person born in a state is a and of thethat state united states.
the other provisions of the 14th amendment that are so important, one is called the privileges and immunities clause. we look at it on the 150th anniversary of the 14th , 150 years and we are it.l debating there are people running for elected office in alabama that say the 14th abandonment is an illegal amendment. amendment is an illegal amendment. certain southern states, if they wanted to be readmitted to the union, one of the requirements was ratification of the 14th amendment. ok, youay to this is, have a choice. you just committed treason against the lawful government of the united states, you want to form your own nation, is usually what wars are about.
you lost. now you want to come back and be treated like you are exactly the same all the time? mississippi, so if anybody understands the civil war, i understand it. or ben either be subject welcome back but here are the terms. we have a new deal now and that is what it is. it talks about privileges and immunities, that was supposed to the old bill of rights. it does not wind up that way. this is a key phrase, equal protection of the law. i know you want a seventh inning stretch, but we are really at about the eighth inning, so we do not have that much time left. , with equalndment protection of the law, that is the first time that a notion of
equality, a right of equality has been introduced to the constitution. the very first time. let's see how the court enforces that. another book that i recommend corporations," which just came out. it explains that equal protection of the laws was applied to corporations before anybody else in terms of protection. as you know, the story with african-americans is the very people that were intended to be protected by the fourth -- the 14th amendment are not recognized for at least 50 years, and even then it is to say that segregation is legal. why did i start with these
picture? this is another library of congress photo, japanese american children interned .uring world war ii the case that made it to the supreme court about that, we now research,se of there was no evidence of disloyalty amongst any of the japanese citizens or legal residents. in his oral general argument before the court employed -- implied that there was such evidence. the attorney general discovered -- the attorney general's memo that this professor discovered said that there was no evidence.
yet, japanese-americans were interred during wartime and who love that effort? ofernor earl warren california. it is believed that because of his shame for what happened then that he became such a fierce advocate for true equal protection of the law. i'm talking about the principal again. the thing to know is that all laws discriminate. law against burglary discriminates against burglars. that is a classic example. i might as well have given you some of my student loans because you are getting all of this. and how theoices supreme court has interpreted the equal protection clause in terms of trying to protect against racial discrimination is
it said that there are certain forms of discrimination and races one of them where the history is so strong that any racial classification will be up to no good. that from ourknow history, you don't necessarily have to go through the standard test. the standard test for a laws basishere is a rational and as we learned in law school, you can find a rational basis for anything. you don't even have to go to law school for that, just look at the state legislature. if that is the bottom, what will you make the top? it is something called the strict scrutiny, that applies to race. applies to illegal immigrants. i use that phrase, i do believe people can immigrate illegally,
just like i say enslaved people instead of slave. the 14th amendment says that persons, it is not say citizens are protected against equal protection and why would they have said that? because they knew all the games being used by slate legislatures against african-americans to keep them from equal protection of the law. this is my personal shout out, this is my heroin, i use that -- this is my titlee, i use that advisedly, she would be refused the title of mrs.. attorney would be addressed by judges in a segregated court
as lawyer, there would not even be called attorney. pervasive that was , dr.ot just in the south king says when he goes chicago -- she is the youngest child of 22 born to sharecropper parents. her personal motto is i am sick and tired of being sick and tired and for those of you who know more about the civil rights movement and robert moses coming for theas an organizer student nonviolent organizing , they get an older lady to represent them because of the power of her character. not know of you who do
about her, please do more research and listen to what she has to say because in the summer 1964, when hardly any african-americans were registered to vote -- wonder why -- when she was registered to of 44, she had not gone in education but was a very beautiful, powerful speaking -- singing voice, when she registered to vote, they asked her to explain one of the 243 provisions of the mississippi constitution. she still remembers it. she said i know about as much about a de facto law as a do as a horse does about christmas day. my grandfather who was never able to go to school long enough to learn to read and write was never asked that question. and he he was white
registered to vote. helpednnie lou hamer organize the party in 1964. why is that important? we are electing a president. lyndon johnson once to be -- he needsident the support of white southern democrats. hamer is helping organize the mississippi freedom democratic party and they want alternative elections because they are not allowed to vote in the white elections because they can't register to vote. -- theyand alternative could to democratic national convention, do you remember that? in atlantic city new jersey, they took a bus three days to get there. she has been put on national television to testify about what andappening in mississippi
she calls out, is this america where our lives are threatened daily because we want to vote and we want to live as human beings? lyndon johnson interrupts, because he does not want this uneducated black woman who won't follow her leaders for her voice to be heard. they lose at the democratic national convention, they are not seated, the white delegation walks out anyway. is according to the ofes an elected member congress by the mississippi freedom party and she goes to congress in 1965 as the lawfully elected representative from mississippi and congress refuses to seat her. but she is saying, this little
light of mine, i am go to let it shine. i am here to tell you that when i was growing up in segregated mississippi in the middle of the civil rights movement, i did not know who she was. i graduated as a political science major from the university of mississippi in 1980 and i did not know who she was. andt to harvard law school my classmate, who in my first , hester as a legal intern is my client and he tells me who fannie lou hamer is. that's just history. these are the people whose shoulders we are standing on. i know you know that or you would not be here. heroine.
and here's my other heroin. [applause] rbg. up for the notorious i am proud to say that she wrote the foreword to my book. she wrote it for a prior addition before she was the rbg.ria's rpg -- notorious i was working for a group of young people and a rubber a you pleaseing would -- they will cap won an award by then, so i think that helped. she was very gracious and very kind and supply the forew ord and when the new edition cannot out, she agreed to contribute again and i would not be here if it were not for her.
i would not be here if it were not for both of those ladies. of being an terms law student in 1980, which was just seven years after she had won some big cases, i guess it was 27 years since harvard first allowed women in. have any of you seen the new documentary rbg? i commend it heartily. it is very well done and the -- because justice ginsburg is soft spoken, she does not to her own horn, she is very modest, that's why notoriou rbg is so funny, because she is so the opposite of that. this is the woman who did for women what justice thurgood marshall did for african-americans in terms of being protected under the equal protection clause. first to say, i
never had to worry about my life being threatened or taken. she does not see herself in that same category but in terms of how she has helped change the law for women and men, one of her first big cases had to do with the fact that a woman who was an officer in the air force could not get quarters for her male spouse, even though male officers were allowed to do that. says equality of rights under the law shall not be denied or abridged by any state on account of sex, that is women and men. what she wanted to do is say, the history of classifications based on sex -- by the way, she changed it from sex to gender, because she said there are too many conservative judges that if
they read the word sex, they could never get off that. so she made a gender discrimination. remember i told you in the 14th barrier -- the 14th amendment, there's the low barrier and the high barrier -- race is the high barrier that a loss to me to be legal. be protectedx to that same level because the history was so pervasive and she lost that. women, surprise surprise, are kind of in between. not as low as rational basis but not strict scrutiny. that is why she believes we do need the equal rights amendment, because women are not fully protected under the 14th amendment. by that, women and men in terms of gender classification.
this is a woman in combat with the national guard. the supreme court has ruled that prevent or exclude women from combat, that was a court ruling but then the social pressure has changed and women are proving that they can defend their country and serve in combat and now what does combat mean anyway when you are driving , in a supportq role, that is combat. another way that we've seen tremendous change, not only in my lifetime but my recent lifetime, is regarding the .ights of people who are lgbtq
that starts -- again, i could not put it in all of my slides, the person i wanted was michael bauer but i would have to pay the ap a lot of money i did not have. picture ofbeautiful , hisa beautiful young man case comes before the supreme court from georgia. he is an open again and at a georgia,tainly in being openly gay meant your life was at risk. he was targeted by police officers, he was in his bedroom engaged in consensual adult activity with another man, a police officer entered his bedroom with an expired warrant for another ticket and charged him under georgia's sodomy law. by the way, for those of you who includes thesodomy
mouth or in us or other orifices in whateverrgans combination people see fit. justice scalia, as consenting adults, justice scalia said it was a right to homosexual sodomy. that decision was decided by four justices. decided, i believe it 1986. i remember where i was when it was decided. michael is another that will break your heart. he talks about how and that time, he was the perfect case, because it was in his bedroom with an expired or invalid consensuallly adult
and he was willing to be openly gay. was takinghere that your life into your own hands. he suffered for it and he had to move to florida. he dies having not seen that case overturned. he dies playing 67 pounds as an aids victim. it will break your heart. people like -- did i say michael bowers, i meant to say michael hardwick. michael bowers is the bad guy. he was the attorney general of florida. we have come a long way from powers of the hardwick -- from
hardwick and has been overturned, it is one of those issues where for decades, centuries people have been andted as not fully human rise up and say, yes i am. i am protected. this means me. culminating in the case being celebrated here. says that the right is fundamental to all people so you cannot legally discriminate against lgbtq people in this most fundamental of all human relationships. that everyone would agree is where we derive our greatest happiness.
and yet, remember how i said women are not protected fully under equal protection? peoplet know where lgbtq are because the court will not say. said, i like to brood before i decide my cases. which i do not trust. no offense to justice kennedy, i just do not like justices to brood. we are to go to questions. here's a moral of the story, according to me. i found out that justice of theg is as big a fan justice as i am. he was the justice who should have made it to the supreme court in new york, give a famous speech during world war ii, naturalizing new citizens and he says liberty lies in the hearts of men and women, and when it does, there is no constitution,
no law, no court that can save it. studenter this as a law and said what am i going to do with my life? if you like baseball, you will love being a lawyer. you have got to love all those rules. i like football. you get up, get down, a lot of action. that, iame across thought that is what i am supposed to do. liberty lies in the hearts of men and women, and i knew that growing up in the segregated south. of brown v.ecause board of education? did end because of the 1969 decision that says that slavery must come to an end? no.
did it end because of the former enslaved people in north carolina, because they said no. they were willing to risk their lives over and over again. here is my charge to you and then we go to questions. this is my boyfriend james madison talking again, over on the library of congress building , it is dedicated to him. he says knowledge will forever govern ignorance and people must arm themselves with knowledge. that is tonight, i salute you, thank you very much. [applause] we have questions. i am watching the clock. do you have mike's for people who have -- mics for people who have questions?
at 8:30 will break and i will do a book signing. no offense, i believe in equal protection, i have three men with their hands up, too. -- i have three men with their raise,p, so some ladies too. i do not believe in calling on the first person with their hand up. bodyou have some picked? it was the guy in the back. do we only have one mic? i was pointing to the guy in the back. involvedus cases that national security. the president usually gets his phraset is not the national security kind of a sacred mantra that trumps every
other constitutional consideration or must the court eventually step in and make its own independent judgment? linda: thanks for the question. what he said is basically, is national security the abra cadab ra that trumps every other right? and the unser -- and the answer is no. we talked to the bill of rights, i will keep focusing. u.s. vt famous case is nixon. he claimed executive privilege in a criminal case, the court said that executive privilege does not trump everything, it that nixony said cannot raise the issue of national security. they are not saying there can never be an issue of national
-- that is a big deal. next question. you have then that udp mic to before. >> can you talk about competing rights such as a baker who will touse on religious grounds bake a cake for a wedding versus the right to same-sex marriage? linda: thank you. the question had to do with a case currently before the court. they are probably writing the decision as we speak. who knows where justice ginsburg will wind up on it? , called the masterpiece cake decision, there are laws throughout the united -- they aresay that
generally known as public accommodation laws that say that a business open to the public againstiscriminate their customers will be. came up, as you are not surprised to know during the civil rights movement. had an ax joint handle and throughout his african-american customers and then was later elected governor of georgia. the civil rights act, the public accommodations act says, no, if you are a business open to the public, under the commerce clause we want interstate commerce, you are not allowed to pick and choose to discriminate against customers. by the way, in a footnote in a related case, about a barbecue said that this
particular person was challenging it on religious freedom. and that that was preposterous. the issue has already been raised, i will say if you're asking me as a constitutional scholar, in my book i try to present all points of view and you make up your own mind. decoratorwas a cake and made beautiful wedding cakes , but she was not a business open to the public. she did private commissions. she did not have to take anybody, because she was not a business open to the public, although she was paid for her work. raise this because i am guessing that baker, masterpiece cake shop, i believe it has an llc said it is a corporation, so what we're talking about is not an individual baker, it is a corporation. the supreme court has moved in the direction of giving
corporations supposedly religious liberty rights. say to the person who helped play our music intro, what is the difference between a cake and a piece of fried chicken or a piece of furniture? if we allow people because of their individual religious beliefs to pick and choose who their customers are, if they are ien for public business, think we go backwards as a country. baker -- telling that and i think the baker says ok, i want to wedding cakes anymore, he doesn't have to do wedding cakes. nobody is forcing him to. if you're going to do wedding cakes, you are open for business and we have equal protection in this country. i am not saying that is how the court will rule.
but i think that is what the constitution reads. next question. >> [indiscernible] linda: thank you. we have to have a woman ask a question. you don't have to sit down. just have a woman ask a question. is there a woman in the balcony? we do not have a mic. shout the question and i will shout it back. >> [indiscernible] linda: oh, wow. you know the woman is not going to say anything for the longest time until she pulls the rug out from under me. that is an amazing question and i cannot answer it. ishink the masterpiece cake
dispositive because it can now -- if it can now be that there is no such thing as a public accommodation anymore, you can have a religious belief that men and women are not equal, that people of different races are not equal, lgbtq are not equal, we do not have a viable interstate commerce so, that's my vote for the one we should be paying attention to. now, you need balcony, thank you for helping recruit another. >> it has to do with the 14th amendment. [indiscernible]
why do you feel that there are some questions [indiscernible] to me, the amendment makes it so clear that there should be any question. linda: from your mouth to god's ears. that has not been the history of our country. we are 150th anniversary having, there is a group of scholars known as the second founding who are saying, you want to have original meanings of the constitution and its amendments? let's go back to it the so-called radical republicans at that time intended fully for the 14th amendment. i am glad it seems clear to you. it does not seem clear to other people.
that is what our debate is currently about. i am afraid i will have to leave it there, sorry. please approach me in the hall. i thank you very much for your attention and i will be signing copies of the book. [applause] >> watch american history tv this weekend on the c-span3. 6:00ights include today at p.m. eastern on the civil war, the constitution and secession, and at 8:00 p.m. on the lectures in history, popular culture during the 1840's, sunday on the railamerica at 4:00 p.m., salute to the canadian army, then at 8:00 p.m., american art. watch american history tv this weekend. san francisco was home to two worlds fairs, american history
tv was at the organization of organizers meeting in california, where we spoke with a professor about the fairs organizers and exhibits. this is about 15 minutes. >> she is an associate professor of history in carroll university. which is located where? >> in wisconsin. >> how long have you been teaching? >> i've been teaching at carroll for 12 years and i taught part time a little bit before that. and then in graduate school. full time for 12 years. >> one of your many projects, cut editing a book, "gendering the fair." what is this all about? >> it's a collection of essays by various scholars about women in general at world fairs, so looking at the way that women, groups participate in world fairs, way women were represented in world fairs and