The Heart of the Constitution: How the Bill of Rights became the Bill of Rights
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The Heart of the Constitution: How the Bill of Rights became the Bill of Rights

August 24, 2019

>>Good afternoon and welcome to the William
G. McGowan theater here at the National Archives. I’m David Ferriero, Archivist of the United
States and it’s a pleasure to welcome your here whether you’re here in person or joining
us on our YouTube channel. Before we hear from our guest speaker Gerald
Magliocca I’d like to tell you about two other programs coming up net month, on Thursday,
February 1st at 7pm we’ll partner with the US Association of the Former Members of Congress
for a program called Meet the Better Half: Congressional Partners, Spouses and Families. On Tuesday February 6th at noon, Christine
Karason will be here to talk about her new book Jefferson’s Daughters: Three Sisters
White and Black in a Young America which looks at Martha and Maria Jefferson and Harriet
Hemings. To learn more about these and all of our public
programs and exhibits consult our calendar of events at and you can also
sign up to receive it by email or regular mail on the table outside. Another way to get more involved with the
National Archives is to become a member of the of the National Archives Foundation. The foundation supports all of our education
and outreach activities and there are applications for membership also in the lobby. Upstairs, our rotunda holds the Charters of Freedom,
the original parchments of the three founding documents of our nation; The Declaration of
Independence, the Constitution and the Bill of Rights. When the Declaration and Constitution were
transferred from the Library of Congress to the National Archives in 1952 and that’s many years after this building was
opened, I want you to know, the Librarian of Congress refused to give them up. It wasn’t until 1952 that they finally made
it into their home with great fanfare and ceremony, but we often overlooked the fact
that the Bill of Rights was already here. It came to the Archives from the Department
of State in 1932 and was put on view in the rotunda. During that 1952 ceremony, though
President Harry Truman drew attention to the document already in the National Archives,
saying I’m glad that the Bill of Rights is at last to be exhibited side by side with
the Constitution. These two original documents have been separated
far too long, in my opinion The Bill of Rights is the most important part
of the Constitution of the United States. The only document in the world that protects
the citizen against his government. The Constitution was ratified with the promise
to add guarantees of personal liberties and the first federal Congress took up that task,
and once the states ratified the proposed amendments the Bill of Rights became an integral
part of the new United States Constitution. So now let’s turn to Professor Magliocca
to learn more about the Bill of Rights, the Heart of the Constitution. In a recent Washington Post review Kay Sybil Raymond wrote – in this timely new book the Heart of the Constitution Magliocca highlights
how a key component of our Constitution, the Bill of Rights has been the central touchstone
for Americans throughout history. Maliocca is the Samuel R. Rosen professor at
Indiana University the Robert H. McKinney School of Law And the author of 4 books and over 20 articles on constitutional law and Intellectual Property. He received his undergraduate degrees from
Stanford and his law degree from Yale. He joined the Indiana law faculty after a
year as a law clerk for judge Guido Calabresi on the United States Court of Appeals, Second
Circuit and two years as an attorney at Covington and Burling. In 2008 he held the Fulbright Dow distinguished research
chair of the Roosevelt Study Center in Middleburg, the Netherlands. He was elected to the American Law Institute
in 2013 and in 2014 received Indiana University Trustees Teaching Award. Ladies and gentlemen, please welcome Gerald
Magliocca.>>Well, good afternoon, thank you for coming. I want to thank David and everyone here at the Archives for hosting me today.I know they were rather busy earlier in the week, given the shutdown, so I am glad everything worked out for me to be here today. Speaking of the shutdown, I want to begin
my remarks today by pointing out that the Bill of Rights is a symbol of unity in an
increasingly polarized America and, indeed, if I look out in the audience I see a good
representation of this, those of you I know as liberals, libertarians and conservatives. So I think that represents kind of our sort
of feeling we all share about the importance of the Bill of Rights in our constitutional
culture now. When I began researching this project I wanted
to how, when, and why the first ten amendments became special in American culture and in
American law. And what I found was rather surprising, so
that’s the part I want to share with you today. The title of the book comes from a statement
by Justice Hugo Black, who was the first person to describe the Bill of Rights as the Heart
of the Constitution. Now he did not do this in a Supreme Court
opinion, he did it in a national radio address that he delivered in the fall of 1937 following
revelations that he had once been a member of the Ku Klux Klan. There were calls for Black to resign from
the Supreme Court , to which he had just been confirmed. So he decided he needed to address the issue
in a national speech and his speech began by saying our Constitution is the supreme
law of the land, the Bill of Rights is the heart of the Constitution. Now this was part of a rhetorical strategy
that Black used in his speech to try to convince the country that he was not a bigot and he
would defend the civil liberties as a member of the Supreme Court and as a political speech
was quite successful because the calls for his resignation kind of faded away. He proceeded to serve on the court for 34
more years and made great contributions in many areas of civil liberties. During that time. Now Black’s speech is emblematic
of two themes in my book. The first is that the Bill of Rights as we
understand it did to become very important in American culture until the late 1930s and
early 1940s. Which is about the time that Black gave this
address. Most Americans, until the 20th century, did
not think that the first 10 amendments were a bill of rights and certainly did not think
it was the Bill of Rights. So it is a modern understanding of the 18th
century text. The second theme that I want to convey today
that also is partly expressed by Justice Black’s speech is that the definition and the meaning
of the Bill of Rights has changed dramatically over time as people have used that idea for
different political purposes of their own. Now Justice Black talked about the Bill of
Rights in his address in a particular way because he was trying to achieve a particular end,
namely, convincing people that he was fit to serve on the Supreme Court and this is
a pattern that we see that recurs throughout American history. So for example, the anti-federalists who were
against the ratification of the Constitution called for the addition of a Bill of Rights
to the document as a way of protecting states rights, at least, primarily later on though
advocates of extending provisions of the first set of amendments to the actions of state
governments which lawyers call incorporation. were doing it and emphasizing the Bill
of Rights too be an exception to states right. Now as I’ll talk about in some further detail
in a moment, Franklin Roosevelt talked about the Bill of Rights as a way of justifying
the expansion of the federal government during the New Deal and World War II, but here as
you’ve just been told at the National Archive, Harry Truman, during the Cold war, talked
about the Bill of Rights as the thing that made our limited form of government different
from the Soviet Union. Now all of these different and, frankly kind
of inconsistent, interpretations of the Bill of Rights are possible because the very idea
of a Bill of Rights is flexible. Although as I’ll point out at the end of
my remarks, this is something that we’ve kind of lost sight of in recent years. Ok, so let me go back to my first theme, right,
which is that people did not think of the first ten amendments as the Bill of Rights
or a Bill of Rights until the 20th century. Now this is an observation that was first
made a few years ago by Pauline Mayer, who was a wonderful historian who has since passed
away and wrote terrific books on the Declaration of the Independence and on the ratification
of the Constitution. And the observation is confirmed by the research
I did for this book. If you go and look at what was said between
1791 and the 1890’s roughly in any source that you want to look at private letters,
books, judicial opinions, debates in Congress, the media you find relatively few references
to the first ten amendments as the bill of rights or a bill of rights or a declaration
of rights or any equivalent phrase. Now indeed James Madison who drafted the provisions
that became the bill of rights never said that what was ratified in 1791 was a bill
of rights or the bill of rights law. That’s remarkable because he lived for a roughly
45 years and commented a lot on the Constitution and was justly proud of his role in drafting the Constitution in the constitutional
convention. He never took authorship if you will of what
we now call the Bill of Rghts. One conclusion that I reach in the book is
that he didn’t claim it because he didn’t think it was true. He didn’t think that what he had produced
or what was ratified in 1791 was in fact a bill of rights. Now, you could look at almost every major
founding father or leading figure in America in the late 18th and 19th centuries and you
see the same thing. You never see George Washington talk about
the bill of rights or Abraham Lincoln or John Adams or John Marshall or Alexander Hamilton
and on and on and on. There are a few exceptions which I talk about
in the book but there are few and far between. What did most people say if they call in the
bill of rights. They referred to them as the amendments or
talked about a particular amendment they were interested in for one reason or another. Most people I think it’s fair to say, in America, up until
the end of the 19th century would have said either that we did not have a national bill
of rights or if we did have one they would have picked something other than the first
ten amendments now here are some of the other candidates for the role of bill of right in
this time period. One was the Declaration of Independence. You can find a number of prominent people
and a number of statements and newspapers and whatnot saying that the Declaration of
Independence was the bill of rights. Indeed, Charles Sumner leading abolitionist and then senator during reconstruction took this view and Elizabeth Katie Stanton was a leading women’s rights advocate of the 19th century took this view so that was a pretty common view. There were other people that argue that had
other parts of the Constitution were either a bill of rights or at least and equivalent
of a national bill of right so you can find Supreme Court opinions in the 19th century
that talked about article one section nine of the Constitution as being in the nature
of a bill of rights because it contain as list of restrictions on the powers of Congress
or that article one, section ten was a kind of bill of rights for the states because it
contained restrictions on what states could do. There were still other people who said only
the first 8 amendments were the bill of rights and this is a line of thought that still had
some adherence up until about 1970 roughly in fact Justice Black, mentioned earlier, was probably the
last prominent person to take this view. There were still other that is said there
was only the first nine amendments excluding all you know excluding the tenth and including
all the rest. Now, whatever you think about how people view
the definition of the Bill of Rights is clear also is that nobody thought the first ten
amendments was special in any particular way whatever they called it. There’s just no indication that people thought
of it in this sort of iconic or exalted way that we think about it now. Now I will give you one point of evidence
in favor of this interpretation or understanding. When the centennial of the ratification of
the Bill of Rights came around in 1891 nothing happened okay there was no anniversary or
no celebration nothing. Now you might look at that and think maybe
back then people were more modest about the past achievements of America and this sort
of thing didn’t happen. The centennial of the Declaration of Independence
was marked by World’s Fair and all sorts of national celebrations the centennial of Constitution
in 1887 was marked by presidential speech and a speech by a Supreme Court justice and
a big parade in Philadelphia. There was a celebration of the centennial of the first
Congress and the centennial of federal judiciary. Everybody got their centennial moment in the
sun except for the Bill of Rights because people didn’t think it mattered or they didn’t think we had a bill of rights there was no centennial really to mark. Okay now when does this begin to change? When do we start to approach where we are
now? Well, the first step comes in the aftermath
of the Spanish American war. There’s a chapter in the book that’s devoted
to this and basically in the aftermath of that war there was a considerable debate in
the country about what rights if any should be extended to the newly conquered territories
in the Philippines in Guam and in Puerto Rico. As part of that conversation there was and
increasing tendency to refer to the things in the first set of amendments as being the
bill of rights and then trying to figure out okay well which parts of what’s in the first
set of amendments ought to be applied to these newly conquered territories the, results in
the period of roughly from 1898 until you approach the 1930’s is kind of and increasing
awareness that the first set of amendments whether it’s the first eight or ten there
was still some dispute that was a bill of rights or the bill of rights the other contenders
for that title faded away. But there was still no real special sense
that this set of amendments was special, it really represented what Justice Black would
describe it as in 1937 the heart of the constitution. Okay. Real breakthrough comes in the aftermath
of the great depression and Franklin Roosevelt plays a significant part in raising the status
of the Bill of Rights through his use of the bully pulpit. Now I am going to talk about some of Roosevelt’s
bill of right speeches and I am going to quote from some of them. None of them are the famous ones that is unlikely
you ever heard of any of these speeches which is quite remarkable given what they say. In 1934 Roosevelt gave one of his fire side
chats on radio and was responding to critics of the New Deal who were arguing that the
expansion of the government, the federal government under his watch was threatening individual
liberty. So after spending a lot of time touting all
the accomplishments he said these programs were bringing he got to his kind of central
point in rejecting this criticism and it was this. Quote, have you lost any of your rights or
liberty or constitutional freedom of action in choice, turn to the Bill of Rights of the Constitution
which I have solemnly sworn to maintain and under which your freedom rests secure read
each provision of that Bill of Rights and ask yourself whether you have personally suffered
the impairment of a single jot of these great assurances. I have no question in my mind what your answer
will be. I didn’t want to try to attempt and FDR accent
while reading that quote. Now let’s think about that passage for a second. In that passages Roosevelt is using the Bill
of Rights to justify and expansion of government. Now, this is the opposite of the way we think
of the Bill of Rights now which is all about limiting government. Okay now how did he manage this feat? Well, it’s by equating freedom with the Bill
of Rights, right so as long as something doesn’t violate the bill of rights then it doesn’t
violate your freedom. Of course the problem with that that’s not
the only definition of freedom. There’s lots of other ways one would understand freedom that can go beyond the Bill of Rights or something less than the Bill
of Rights. If you would ask most people prior to the
1930’s. I don’t think they would have thought in fact I’m pretty confident they would not have thought of the Bill of Rights of being the gold standard of freedom. That is a modern conceit. There is a reason why there was and opening
for making this argument when Roosevelt made it. That’s this the depression and the government
response put great pressure on traditional constitutional doctrines. Especially the ones that dealt with let’s
say that or essentially argue that had Congress had quite limited enumerated powers under
article one section eight and that property and contract rights were entitled to special
protection under the Constitution. With these sort of concepts sort of in retreat
there was a vacuum, and the Bill of Rights was well positioned to fill that vacuum so
long as it got a little bit of an assist from somewhere and Roosevelt was part of the somewhere
providing that boost to fill that vacuum. Now, the couple years later Roosevelt gave
another speech which emphasized the connection between the Bill of Rights and the New Deal
and this was his Constitution day address in 1937 which marked the 150th anniversary
of the end of the constitutional convention just as there were all of these
centennial things in the late 19th century 1930’s or early 1940’s. There were all of these sesquicentennial events
to mark the various landmarks of the founding. So Roosevelt’s speech was at the Washington
monument and on the radio nationally. He basically proceeded to give an argument, in part at least, of his speech that said that support for the New Deal was necessary to save the Bill of Rights from
the destruction okay. He said quote nothing would so surely destroy
the substance of what the Bill of Rights protects than it’s perversion to prevent social progress. desperate people in other lands surrendered
their liberties when freedom came merely to mean humiliation and starvation, so again
in this passage he’s not talking so much about what the Bill of Rights protects. He’s just saying it’s and ideal right and
to protect that ideal we need more government programs. Okay. Which again is kind of contrary to the way
that we think about it now. It’s worth pointing up in this speech Roosevelt
also said that the Bill of Rights supported his view that the federal government’s powers
over the economy were broad because he said well, the Bill of Rights is very specific
in it’s language as compared to the general broad language of Congress’ powers under article
one section eight. Okay. Which is kind of again not a way and I don’t
know that we think today that at least many parts anyway of the Bill of Rights are specific
right in they might appear quite broad to us when we think about concepts like freedom
of speech and free exercise of religion there’s a lot of dispute of what they mean precisely because
they are not quite so specific. Anyway it was part and parcel of Roosevelt’s use of the
term. Now, of course the other lands that he referred
to where people had given up their liberties we know what he was talking about. He was talking primarily about Europe and specifically
Nazi Germany and the Soviet Union. It’s fair to say that the rise of Hitler had
a great deal to do with the increasing prominence of the Bill of Rights in discourse here. Because If you look at say newspaper references to
the Bill of Rights or other references in popular culture to the first ten amendments
as the Bill of Rights it picks up sharply from 1937 on. Some of that can be attributed to Roosevelt
and some of that can be attributed to changes in what the Supreme Court was doing after
that point in relationship to the New Deal, but a fair bit of it also can be layed at
the feet of Hitler, now how does that work? Why did that happen? Well, I mean you can see I think that the
abuses going on in Nazi Germany and the Soviet Union to the extent they were known,
naturally increased attention on the equivalent rights here at home. It made people think more about them and made
people care more about them and made people aware of the risk that was being posed to
them by these foreign threats. And what you see is a response from the media
and from civic organizations and from the groups all across American life where they
start talking a lot more about the Bill of Rights they start talking about the first
ten amendments and some of the individual thing ins them okay. In the shadow of this kind of gathering threat. Now, Roosevelt took this and used it in a
speech he gave in 1939 which marked, the, you guessed it, guessed it 150th anniversary of the first
Congress and the first Congress having produced the draft of what became the Bill of Rights,
a good deal of FDR’s speech was focused on what the Bill of Rights that was drafted then contained
and he did this rather remarkable point by point examination of key provisions in the
first ten amendments and then said look how they are here as compared to how they are
in the unnamed dictatorships of Europe. Okay. And this included adiscussion of freedom
of speech, freedom of the press, freedom of assembly and petition and trial by jury and
free exercise of religion. The right against unreasonable searches and
seizures and the taking of property by the government which is not something we normally associate with FDR as being one of his prime concerns. But all of those provisions were quoted and were
you know referred to in glowing terms and then compared to sort of the sort of terrible
things that were going on both in Germany and in the Soviet Union. This heightened awareness of the Bill of Rights
for all of these reasons continue to gather steam as we approach the Second World War
and as military preparedness sort of increased a lot of the efforts to either increase the
defense budget and bring in the first peacetime draft, and such, were justified on the grounds that is
we needed to do it to protect the Bill of Rights. Again, these are all exercises of government
power that were being done in the name of the Bill of Rights rather than limitations
or restrictions on government power. In the summer of 1941 Congress decided to
make the 150th anniversary of ratification of the Bill of Rights, The first Bill of Rights day, that was December
15th 1941. Now, you all know what happened one week before
that, right? So by sheer luck if you want to call it that
the first Bill of Rights day was also the first patriotic holiday after the beginning
of the war, so it took on this special meaning for people because it was the first time they
really could express what they were feeling about what had happened, and this event was
kind of a quite the extravaganza across America in it made every city and you had parades, the Bill
of Rights being read aloud. You had it being read by kids in schools and
patriotic speakers and you even had kind of in New York the Radio City Music Hall Rockettes
got involved in something that was related to the Bill of Rights. And the highlight in the evening on December
15th was and hour long radio program where they basically, every Hollywoody celebrity they
could round up was asked to get involved. I would highly recommend that you listen to
it. It’s on YouTube it’s called We Hold These
Truths. It’s mainly narrated by Jimmy Stewart although Orson Wells and Lionel Barrymore also play a role in doing the narration for those of you who like Hollywood of this
era you will find it very interesting because a lot of people you recognize will pop up in various scenes. It is estimated that something close to half of all American’s heard it because it was
aired on all national radio networks as a patriotic event. At the end of this program, the last ten minutes or so, was given over to the President to give some remarks. Think a bit about the context in which these remarks
were given before I quote from them. On December 7th 1941 the Japanese attacked Pearl
Harborandr the next day Roosevelt goes to Congress and asked for a declaration of war
against Japan right? Not Germany, three days after this declaration the war is given Hitler gives a speech in the Reichstag in which he declares war on the United States. Basically because they declared war on Japan, Japan is our ally and besides Roosevelt has been working with us for a long time blah, blah, blah, The remarks that Roosevelt gives on Bill of Rights day are his first public response to the declaration of war by Hitler. In a sense it’s his explanation for why we
are fighting Hitler because nothing has been said of course plenty was said before Pearl Harbor about the dangers of Hitler but this was the first statement about this in the context
of war. So here’s how he begins then I will quote a little bit more. No date in the long history of freedom means
more to liberty loving men and all liberty loving countries than that 15th day of December
1791 on that day 150 years ago a new nation through an elected Congress adopted a declaration
of human rights which has influenced the thinking of all mankind. Prior to the year 1933 the essential validity
of the American Bill of Rights was accepted everywhere at least in principle. But in that year, 1933 there came to power in Germany a political click which did not accept the declarations of the American bill of human rights. The entire program and goal of these political
and moral tigers was nothing more than the overthrow throughout the earth of the great
revolution of human liberty of which our American Bill of Rights is the mother charter. We will not under any threat or in the face
of any danger surrender the guarantees of liberty our forefathers framed for us inour
Bill of Rights unquote. So in effect the reason we are fighting Hitler is to save the Bill of Rights. hitler is the enemy of the Bill of Rights. The speech goes on at great length talking about the individual aspects of the Bill of Rights and how more or less they don’t exist in Germany and if
Germany wins they won’t exist anywhere to take the title of the old Frank Capra documentaries during World War two this is why we fight all right. Wartime propaganda tended to emphasize the
Bill of Rights as being one of the reasons why we needed to do all of the things that
we needed to do to fight Germany and of course many of those things involved government intervention. We had government rationing, we had
and all sorts of government military measures that were being taken in the name of Bill
of Rights to fight the enemy and to save that text from destruction. It is really at this point that the Bill of Rights becomes THE Bill of Rights and a symbol of unity for the country. There’s something important missing from most
of the story I just told you and that is the Supreme Court, a couple of little references to the Supreme Court, but the work of making the Bill of Rights foundational to American constitutional
culture was not done by the Supreme Court up until 1940 the Supreme Court rarely mentioned the Bill of Rights, and when it did it did so in a very offhand way that didn’t mean very much. Starting in the 1940s, all of a sudden, you see a lot of references to the Bill of Rights in Supreme Cour opiniont and a lot of detailed
discussion about how important it is and how central it was and so on and I mean I have
got a chapter in the book about that. It does remind one of the adage that the Supreme
Court is something like the kicker football like the offense did all the hard work and scored,
and the kicker comes trotting on and kicks the extra point and kicked the field goal
and get credits for scoring the points. It’s not clear how much the kicker is doing
other than validating what just happened. In the case of the Bill of Rights the Supreme
Court is late to the game or following in the wake of the substantial changes that have
come out of the political branches and the wider culture during the proceeding few years
about the status or role of the Bill of Rights in America. Now, this brings me to closing thoughts about of what does this aspect of the story of the Bill of Rights
tell us or how should we think about it? I think the way I want to frame it is to say
what is the price of the creation of this symbol of unity for the country is it too high? And here’s what I mean by that. Later on during World War II FDR gave a speech in which he argued for the establishment of all sorts of basically government entitlements for America after
the end of the war and which became part of what the GI bill of rights was but involved
things like education, health care, a job and so on. Okay and he described this list as the second
bill of rights, you know we need a second bill of rights to go beyond what the first
Bill of Rights has because the first Bill of Rights only deals with limits on government
powers. It doesn’t deal with sort of empowering citizens
and providing them sustenance. Now, the thing is, to say that had to be a second
bill of rights implies strongly that the first Bill of Rights cannot be changed. It’s fixed foreverr as the first ten
amendments no more no less. All right. Now of course it wasn’t always thus, right? I mean the Constitution does not say that
the what the Bill of Rights and in our history as I have explained there’s been many different
definitions. The problem with saying that the Bill of Rights
can only be the first ten amendments no more no less is that it’s both over inclusive and
under inclusive, so what I mean by that is there are some things in the first ten amendments
that we don’t think are particularly important now or you might think are overemphasized merely because they are part of this collection known as the Bill of Rights. For example, its easy to pick on the third amendment
which talks about the government’s inability to quarter troops in your house during war-time. I mean a more pertinent example might be a grand
jury indictment requirement in the fifth amendment nobody today really thinks of being an important safeguard for federal criminal defendants. I mean it’s fine to say that it should be
enforced because it’s in the Constitution, but to say that it should have this exalted
status as part of the Bill of Rights you might think to be just inaccurate or posing something
of a problem. Likewise there’s things that are not in the
first ten amendments that are very important they are not part of the Bill of Rights. The right to vote will be one okay. Does it matter the right to vote is excluded
from the Bill of Rights? Not necessarily you can give it it’s own special
name or designation. At the same time if you are saying that the
Bill of Rights is something special right to say that it can never be changed would
suggest first, that we are not able to make a different set of decisions about what’s special or important
in that way anyway. From what was done before. Also, there’s just a fact that it might suggest
that all the great achievements happened long ago. Part of what makes the first ten amendments
different is they all came from the founding generation. That’s all well and good but they weren’t
the only ones to make important contributions to the American Constitution as anyone looks at and then the reconstruction amendment can tell you, so the book closes by asking should we be
rethinking the question about whether the first ten amendments no more no less is the
Bill of Rights and must always be. There is a problem with changing any tradition
okay. Especially one that has unifying power. Are you going to lose the unifying power of
that symbol or of that thing if you start changing it? Now, this is a challenge for all sorts of
legal and political systems everywhere. You have a tradition is the best way of sort
of holding faith with that tradition to leave it unchanged, don’t touch it or to try to
adapt it intelligently to whatever current needs or demands there are. I don’t pretend to have an answer to that
question okay. It struck me as I reached the end of this research
that no one asked a question any more as to what should the Bill of Rights be. It’s taken as given, the first ten amendment, now it is said by people that judges make complicated problems simple and professors make simple problems complicated. If that’s true then the simple problem of
what is the Bill of Rights – I just tried to complicate for you by saying
it isn’t necessarily or doesn’t have to be first ten amendments, so with that I am happy
to take your questions. I am told that questions must come from the
microphones on both sides because we are doing video for YouTube, so when people get to
the Mics I will sort of just point. I will start over here with you.>>Two brief questions you haven’t mentioned
the second amendment at all. Roosevelt, began to speak, I think he was the first President to ever do sooffreedom from whatever that might be. So you could say that can we really have political
freedom if we don’t have economic freedom?>>Like okay. On the second amendment the first thing to
say is other than people who just list all of the amendments. Okay, when they are talking about the Bill
of Rights you really don’t see much said about the second amendment in connection with the
Bill of Rights until President Bush 41 gives a speech on the bicentennial of the Bill of
Rights in 1991. Now, there’s and interesting twist to that
which is that just as the 150th anniversary of the Bill of Rights fell right after Pearl
Harbor the 200 anniversary came right before the end of the Soviet Union. The speech that Bush gives is about kind of
the collapse of communism in eastern Europe. He doesn’t quite know that the Soviet Union
is to be desolved. There’s a lot of changes already happened
at that point. In his talk about the Bill of Rights, he talks about the second amendment as being
something that has helped to preserve respect for the armed forces among the American people. And that indeed he gives a kind of civilian
control of the military reading to some of the provisions of the first ten amendments
the second and third amendments especially. So before that you don’t really see anything. On the other hand you can say by 1991 the
second amendment plays as more prominent role in American constitutional culture than it
had in other period so that sort of makes sense. I mean the other thought I will throw out
about the second amendment is certainly for those that believe in the second amendment
strongly that enhances the legitimacy of the Bill of Rights that is in there right? Does that have some sort of feedback or kind
of other effect on the other provisions of the Bill of Rights? That is, you more likely to believe in the other parts
of Bill of Rights because the second amendment is in the Bill of Rights, and you believe strongly in the second amendment? Well maybe or at least maybe modestly. That’s harder for me to say. Now, on the freedom from want, yes, Roosevelt did
talk about that. He had the formulations of the four freedoms
during his 1941 State of the Union where we talked about freedom of speech and freedom
of religion and freedom from fear and freedom from want immortalized by Norman Rockwell. The second bill of rights he proposed later
on during the war was geared toward this freedom of want idea and what’s interesting about that is
when President Bush 41 gave his speech in 1991 he talked about how the Bill of Rights is
an express rejection of the idea that it should convey positive benefits through Constitution
that in fact the framers were wise to understand their government should simply be limited
right and then everything else should be left to the Democratic process. Again, you can say that reflected political
changes from 1944 to 1991 but it also just reflects that both interpretations can kind
of find room within the broad concept of a bill of rights to be made they are just coming
at it from different points of view.>>It seem that is using Roosevelt as an example
to promote the emergence of the Bill of Rghts is somewhat contradictory with history. Madison who drew heavily on the Virginia compact
and the Virginia Constitution in drafting the Bill of Rights was an antifederalist and
was more interested states rights. Up until the time he delivered his speech
that you refer to Roosevelt had been a lot of the new deals of legislation had been struck
down by the Supreme Court as being violative of the commerce clause and an expansion of
federal government beyond the limited government conceived of and drafted by the founders. Roosevelt
himself threatens the Supreme Court, packing the Supreme Court and gets chicken coop case expanding the commerce clause which leads to the substantial expansion of federal powers. Roosevelt suspends civil liberties with respect to Japanese American citizens. Roosevelt does nothing to advance the Bill
of Rights itself other than to use it for political fodder. Iit doesn’t really become
bastion of what it is today until we see the Warren court and the incorporation doctrine that occurs in the 1950’s
and 1960’s. I don’t know why we would focus that the Bill
of Rights would be something that you would credit to Roosevelt when nothing that he did
within his administration seemed to be promoting the objectives of constitutional liberties
and limitation of government power.>>Let’s separate out two different thing one
is the status of the Bill of Rights in American life and the other is what does it mean right? So in effect why does the Bill of Rights come
to mean what we now understand it to mean about limiting government and enhancing civil
liberties, so some of that work is done by the Supreme Court in opinions that is begin
even before World War II is over where they talk about the bill of right ins a very different
way from the way Roosevelt talked about it. They are talking about it as being something
that means that is fundamental rights are not thing that is are put up for a vote. They are thing that are the special province
of the court that is also part of the courts effort to sort of shore up it’s own authority
following the clash it had on the losing side basically with Roosevelt’s New Deal. The other thing which I didn’t have time to
get to was the cold war played and important role as well. So when Truman comes in and the cold war really
begins talking about the Bill of Rights as something that limits government and especially
if limitations with respect to religion become very important in the way that the government
tries to respond to the threat of international communism and so you don’t see Roosevelt saying
anything very strong about communism because of the wartime alliance with Stalin. But Truman, within a couple of years of the end of the second world war is giving frequent speeches in which he’s talking about the Bill of Rights as what makes us different from
the Russians. Now, as David mentioned at the beginning during
his introduction the big speech that was given in that vein came right here at the National
Archives on Bill of Rights day in 1952 when they put everything together in the rotunda
and the President spent a lot of time talking about the importance of the Bill of Rights
in connection with the fight against communism and that basically if we held true to the
civil liberties that were in the Bill of Rights then we would prevail in the fight against
the Soviet Union. It’s fair to say that Roosevelt raised the
status of the Bill of Rights, but for different purpose then the purpose that we know today
and that others that then built on that status should sort of give it the meaning that we
hold to it. Again, to some extent it was a contingent
because the cold war raised different problems and different challenges than World War
II had raised at least in the eyes of most federal officials. I should note that another thing that comes
out of the cold war is the idea that the Bill of Rights is not a suicide pact that’s another idea that
was injected which is sort of around, but also though kind of in a never quite made
it into the mainstream but most people know the phrase right? That was the minority view and how we should
think about that.>>My question is about the applicability of
the Bill of Rights to actions by state government’s. Was it totally clear to people or the Congress
and the states when they ratified it that it didn’t apply to state government’s that
conversely the adoption of the 14th amendment was that clear that it did apply to state
government so that was only later through actions by the Supreme Court?>>Okay. On the first part of your question It was pretty clear at that time, 1791, that the Bill of Rights applied only to the federal government. Part of the way we know that is Madison tried to have a provision introduced
as an amendment that would have expressly limited the states from doing certain things and that
was rejected by Congress or by the house of representatives then the Supreme Court later issued an opinion in which they basically said that everybody kind of knew that was true or not, but enough people knew in fact the first set of amendments were not meant to limit the
states. It’s certainly true that some important people
at the time of the ratification of the 14th amendment believed that the Bill of Rights
or what they described as the Bill of Rights to the extent they used that term at all should
apply to the actions of the states now whether you want to say that represented a consensus
of Congress or the state sthat is ratified the 14th amendment, that is a much harder question. But it is fair to say that that argument was made
with some force and it took a long time for that to be embraced by the Supreme Court in
part because of the stronghold that states rights had on people as well as the fact that by extending the provisions of the first set of amendments to the states you were really changing the balance of federal state powers way that was pretty dramatic. That took a long time to take hold. You see some of that happening in the years
prior to the 1930’s. The bulk of it happened after the Bill of
Rights become just much more prominent generally. You might say that there’s some cause and
effect there that the increase in the status of the Bill of Rights may have contributed
to the thought that hey it ought to apply to the states as well as the federal government
that’s a little harder to pin down.>>Thank you.>>I think it’s very interesting what you said about the evolution of the concept of about how you use it had changing of the concepts of what the Bill of Rights means. Madison never thought of it as a bill of rights so also I am interested in that early history. Those rights must have had great power in
the minds of the founding fathers if there were ten of them and Madison drafted them
and they were passed very quickly those rights themselves must have been very important and
had a lot of power even though they didn’t call them the bill of rights is that fair?>>It’s interesting because if you look at
the debates that occurred in the first congress most of the members, or at least many
of them said why are we spending our time on this? Don’t we have more important things to do
setting up the government and whatnot. Madison was the one who was most insistent
that it be done. Some of it had to do with the fact that
he promised that it would be done when he ran for Congress and he had to promise that
in order to get elected. Madison was concerned that if you didn’t pass
something like what the first ten amendments became that there would be called for another
constitutional convention and general instability. Now the ratification happened and there wasn’t
much commentary about it. In one sense that was a sign of the success of the political strategy of putting them through for calls for a second convention disappeared after
that. The reason and important reason why people
didn’t call it a bill of rights. The first ten amendmentss did not look like the
state bills of rights is because The states bill of rights looked very different
in this period from what the first ten amendments are in particular first. The state bills of rights you need state bills
of right now to go look at them have this a lot of rhetoric in them that is reminiscent
of the Declaration of Independence talking about natural rights and popular sovereignty
and first principles of government’s before they go into the specific things they are going to limit. The first ten amendments don’t do really that much or hardly at all. The other things state bills of rights came
at the beginning of their constitutions they were meant to be the starting point right? The first ten amendments came at the end. For a lot of people it wasn’t the bill of
rights because it doesn’t look like the bill of rights that they were familiar with. We didn’t think of whether something is a bill of rights because of those sorts of criteria we look at it more as what is it doing or you know just is what it’s doing something
that we think is important right so they had I guess you could say a more formal way
of looking at it, though one might say as we do is only the first ten amendments no more or less can be the Bill of Rights is a very formal way of looking at it. Why is that? Why can’t other things be included, so I mean
it was important to the politics of the time but that didn’t translate over into calling
it a bill of rights or The Bill of Rights.>>I look forward to reading the book. I am already very sympathetic with the thesis of
the book your last answer anticipates much of what I was going to ask. I was going to point out in his speech introducing
the amendments which we call the bill of rights speech but that’s something we call it, Madison
is talking about the proposals that he lists. The first of these could be considered as
a bill of rights and then if you look and see what the first of these were it was the
language that he proposed to be added to the preamble which would go into the beginning, consistent
with what you just said. It was language that echoed the Virginia declaration
of rights that George Mason wrote that ended up getting put in four states constitutions including the Massachusetts Constitution
where it was used as a basis for abolishing slavery in Massachusetts with the Supreme
judicial court there abolished slavery on the basis of this language that’s in this declaration of
rights, so first of all that gives rise to the possible reason why that language was
not included into the federal constitution because it had already proven to be quite
dangerous to the slave interests and it also suggests what was thought to be the bill of
rights and by this one wasn’t by this one it was a declaration of fundamental natural rights
which was pervasive throughout state constitutions as well as elsewhere. I was going to ask you to say more about it. You already said something about it in response
to the last question. I don’t know how much more of that covered
in the book. I will thank you for the question. The only thing I will add is you might wonder why didn’t they put a bill of rights in the Constitution to begin with right? If it was so important to so many people why
didn’t the framers anticipate that? One possible answer is that they some of them
or enough of them in the constitutional convention were concerned that any language like that
would have implications for slavery and indeed you know one of the south, one of the Pinkneys
from South Carolina said when he after the convention well look most bills of rights
say something about people being equal they aren’t all equal because we have slaves so
how can we say that. Of course even when the amendments were ratified
they didn’t have any language that was equivalent to the Declaration of Independence or what
later came in the equal protection clause, so I think that may help explain a little bit
about why you didn’t see anything like that in the original proposal, well thank you do
we have time for one more?>>Out of time. Sorry. Thank you very much for coming. [applause]

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