>> host: carol, it is nice to have this conversation with you for cry very much enjoyed reading your book "the bill of rights" the fight to secure america's liberties" and my first question is easy. why did you write the book? [laughter] >> probably i wrote a brilliant solution that americans have a mix in the country.

but this is part of ours in the real story is so much more interesting and admirable one that i was tempted with a lot of people i spoke to that thought bill of rights was part of the original constitution and that it was written by the statues in the park all brilliant with no egos and it became instantly the most important part. that there is a story here to tell. >> did you have been intended audience? >> in my younger days the intended audience was other people in my field but in

the last 1516 years that they need to talk to the public as interested people who go to the ballot box so the audience that i intended for like friends are family that are not historians who have a curiosity. >> host: the book does recall so in the prologue that you can go on to say of

the late 18th century. to a certain legitimacy and he was dwarfed and then i worked on the supreme court and i got exactly the same feeling. that they had to work. so how does this affect that? >> guest: this is one of the most non remembered things bin everything was

fine but and if you read the debate to be filled with this anxiety that it might fall apart because of internal dissension to be inadequate to the task but that underlying anxiety means we need to understand that i have students who always think america began 1609 then it was the most important country in the world. no. no history in between. to think we have always been the most powerful country in

the world but it is a country this isn't a sovereign country and another couple of years they will send someone to recruit an army so that made sense to try to build a republic and when it had existed in the western world that it always failed when it comes to the first congress in memory of how long the

revolution took. and then to create a new constitution but nobody is certain. and then to play on the fact it was not a done deal. so now let's get on but madison realizes those that opposed the constitution that believed liberty is best protected by state sovereignty, they don't disappear but medicine

really understands what is going on even though the constitution has taken place. i don't want to sell like a bad movie but the drama was there and i wanted to capture it. so of all the members of the senate why did you include that? for a couple of reasons this spend a great deal of my time with elementary school teachers. and i want them to make use

of the book one of the people that participated in the debates of the bill of rights. to see what role they play with the students. if you come from maryland or new york you are doing well but as the sense of identity of this conflict because it gave a concrete element to what it meant.

but then i keep proposing amendments what the government can do and wanted them to have if not a personality but to get to know these men. >> who were the most important in the bill of rights? >>. >> to now become my favorite curmudgeon in the whole world, he is such an interesting man. one of the people they he is operating on principle 24/7

always say high minded reason. from when he is viewed with the of their members with the aggravating crackpot. is the leader of the opposition to what madison once with the bill of rights. that is what he calls his proposals because he wanted them added into the body of the constitution. he did not want them separate as a set of amendments. to see themselves as the watchdog to march down the road to tyranny.

he is very important also to play a critical role because he persist to demand that they be amendments to the knowledge that the will of the people. he wants these propositions and procedures to protect the liberties and rights of american citizens and wants them added as amendments. as a key player, you really have to like him.

he is i think i can. when you read about him with his personality, he is a conspiracy nuts. of assessed with the idea that it is a secret organization. he comes across as mild mannered but in fact, there is a lot going on in turmoil >> let's turn choose the bill of rights. the first question is how did madison feel injuring a the constitutional convention?

>> almost like everybody else it was completely unnecessary. first it was proposed in a committee it was shot down then it was proposed that george mason first rolla was september in everybody really wanted to go home. and then said it will only take a few hours but then we knew nothing only took a few hours at the constitutional convention. the argument that came

forward was the constitution did not give the federal government any authority over these issues they cannot use these powers because they don't they are state issues so they are not necessary. so why are we creating something that is irrelevant? not everybody said we can go home. but he said why suggest they will limit powers that you don't have been the first place? and that would be worse than with the bill of rights. madison agreed.

then he runs as for the house to represent of the patrick henry contingent in virginia so you can see where he stands on the consolidated government. so madison is asked to use the absence of a bill of rights with the ratification argument that it will be a tyrannical government but a really appeals to the emotional worries or the anxiety what are we getting into with the federal government?

and this continues and medicine promises in a campaign promise, i will propose a bill of rights as soon as i give in to congress and feels he ought to honor that campaign pledge even though he generally feels the power of enforcement is nil is referred to as the parchment barrier and i think madison thinking about proposing it is thinking about the same thing i know politically of that is a good idea but i really does not matter.

also the federalist believe that the federal government would have power because of the bill of rights tonight be enumerated. and how were they in favor of the bill of rights and what did they say about that? >> at the ratifying convention many are repeats some madison is very efficient. you can imagine him as he calms them down to 32nd

proposals for:the anti-federalist, i don't think, is my view, i don't think they cared for go vague understood this was a hot-button issue to rally support and that is what i meant in the prologue that they were politicians. they were not naive colonial men. but then that understood how to arouse popular feelings over certain issues though they said this will be a tyrannical government without a bill of rights but if you name the right to say that is very important.

i think it was a scare tactic. once they get into congress and the discussion begins begins, of the irony is a federalist for calling for a bill of rights the when they get into congress to realize the house of representatives is dominated by federalist federalist, if they get credit for passing a bill of rights, it will kill the opposition to separate the base from the leadership of the party that really wanted to limit the federal government. they want to take away the power to tax and regulate

commerce the one that back in the state's hands when they realize that brilliant politician and grabs ahold to propose that the people in the house keep putting the brakes on passing this on the very anti-federalist that were screaming we need a bill of rights. this is politics, a political strategy, men in tow does -- toga to debate the high ideal is down and dirty politics. >> your answers suggested a couple of things. you said there were 150 proposals for the ratification process but

isn't it true though large majority is not about individual rights? >> yes. that is absolutely true. so what you see is the of leadership of the opposition to the constitution to make its interest known of what they write down but if he read the newspaper propaganda and what they say to the general population they met it in secret or they don't have the bill of rights to create a tierney

so there is a differentiation that the leadership makes known among the of leadership of both groups of what they really want they want to make sure those powers go back the when they talk publicly he hammers away at this bill of rights issue there is one in house to the population in. >> host: i do agree that was the case then what is the meaning of the great federalist victory of the

election? doesn't mean people really did not care at that time? >> i am not sure we can call that a great victory. we know a lot of dirty tricks were pouring -- poll by the federalist of the ratifying conventions. there was some steamrolling period evan do this refer freddie has read the constitution to call for of a delay so we will adjourn

but they are skilled politicians they know how to win over or operate in these conventions and we do get ratification in but as soon those elections are held to said they are elected to the congress to nullify that constitution it doesn't turn out that wayçó that the federalist run the election among those who voted that

means something about what? >> with the interest of the of bill of rights. >> i see what you get at but even among the federalist one state did get elected one controls the house and the senate when madison brought up the bill of rights the federalist were a new trade beyond belief. and the response was go away and don't be ridiculous that is not necessary anymore. but once they were elected

to say now it is settled it took the federalist quite a number of weeks to realize what a good strategy. a good idea to take this issue away from them. this would make the federalist look like you're real hero but i am more aid. but to consolidate for their legitimacy and.

>> just to create the judiciary to set up the duties to decide where the capital is and the records of the house people were much more worked up where the capital would be they and their rights. but this could be icing on the cake and then they begin to support madison. >> i get the impression that they would rather enjoyed to put it to the anti-federalist.

that they enjoyed saying we will vote for this regard this -- regardless. >> and madison introduced. >> but we don't start to debate them. >> is it the same ones we call the bill of rights? >> absolutely not. he had 37 or 39 propositions and he indicated -- indicated where he would add them in article one or two or three.

a lot of them were complicated as these things progressed with the committee of 11. to turn those into direct sentences and then to compress to say these are all alike. the senate ultimately it is hard to know who did what the there is no annals of congress but out of the

senate came the 12 amendments there much more direct and more clear than what madison proposed in now day timeout with how the house votes as an amendment but not part of the constitution to be in the body itself. so many of madison's proposals stay alive. but they are consolidated. >> one that is missing from the senate that comes back is possibly madisons favorite that no state shall

violate the freedom of the press. and it is something i think that people don't know our originally he included. >> madison at this moment in his career is an ardent nationalist meaning he and hamilton as the architect of the constitution that he and hamilton pushed most actively for the senate to be based on representation proportional lee he does not want the states to purchase in the government or branch that represents the state's we wanted national government. so what he is doing, i

assure anti-federal list was a flagrantly trying to reach an unknown to have the power reach into the behavior of the state's. the senate that is chosen by state legislatures take it out. none of them want to go home to say i gave away your sovereignty on this issue. it is the terrible blow for madison only balanced that the anti-federalist in the house tried to put in the word expressly no power is expressly given.

>> host: now that is the tenth amendment. >> guest: right. they want to express sleeplessness is in to meet a strict construction of the constitution necessary and proper clause could not be used so that is voted down. >> what were the other amendments that was part of the debate? >> what became the third amendment sent out the anti-federalist will include the phrase that they have

the right to instruct and this gets down to a fundamental difference with the anti-federalist view of representation. . .

this idea of representatives voicing the opinion of the people who elected them and so there is a long debate over that and it's defeated. and the second and rather funniest debate is over the militia what we call today the right to bear arms and all i can tell you though i certainly

don't want to get hate mail i read every single word of that debate. many times over. let me be clear they never said individuals can't own guns. they simply never talked about individual ownership of guns at all. that was not not a word about individual ownership of guns. this is why it's so important understand the 18th century context. the states wanted to maintain their own armies, their own militias in case the federal government became tyrannical and attack them. they wanted to be able to defend their own borders. this was really particularly important, not just against

native americans and not just against the british and the spanish but really they wanted to have their own armies. that is what they meant by a well-regulated militia. and you can see later on in the whiskey rebellion washington's administration the debate over when can the federal government call out other malicious. they passed a law that says okay if there's an uprising against the government and the governor of the state asks you to then you can send in a militia so there was no discussion of individual -- but there is a hilarious discussion and they know maybe it says something about historians that we would find this riotously funny but there is a hilarious discussion about whether you should include in their that if you have a religious injunction or pacifist

religion, whether you are exempt from service in a militia, so they have this long debate and someone says what we need to name their religions. someone else says well put a few are a quaker and he wants to fight? one with nathaniel green who is a general and the revolutionary war. are you saying that he can't fight? there is little discussion should we name them and there's another group we leave out and then there is this really rather funny discussion where one of the members of the house says we can't have any exemptions. if we have exemptions then they have to pay for someone to take their place or they have to find someone to take their place. roger sherman stance of the

voice of reason and he says they really think that if you are pacifist you are not going to be willing to send someone to fight in your place. so they abandon that. then someone else says ocoee oh we can't have any religious exemptions at all. we can't do that because it's a well-known fact that america is becoming less religious every day and if we are invaded by the outside by another country everyone will claim they are moravians so they won't have to fight. and you are sort of astounded by this sordid dark scenario. i think it's send a son who proposes this. the last big debate that amuses me is the one over cruel and unusual punishment. one of the representatives from

new england who has not said a word really and all of the debates sort of pops up like the dormouse at the mad hatter tea party and he says oh no i don't think we should say no cruel and unusual punishment because some men just need to be whipped. and then he sits down. so sometimes the debates are so not about the high-minded things we picture in the bill of rights but i think people -- it helps that the bill of rights turned out so well. >> host: even at the beginning when the justices went around they road circuit in the early years. they gave grand jury charges and the judges love to say how

advanced a society we were because we had in the bill of rights cruel and unusual punishment and what that meant was that we did have the death penalty. we didn't draw and quarter people. that was a great sign. right? >> guest: exactly and it was the 18th century and it was a society where the standard of what is beilinson to us today was not the same standard. masters beat apprentices, parents beat children and that still goes on today unfortunately. certainly slaves were beaten and the kind of abhorrence that

educated people in america today have about violence is of a different standard and i think this really spoke for the 18th century that some people just need to be with, let's face it. >> host: could you tell us something about the two amendments that were not approved by the state? 12 were sent out right? >> guest: one was to alter the ratio of population to representation. that is to increase the number of people per representative in the house and that was voted down. the other was an amendment about congress's salaries and i have to say this moment i can't remember exact way what the terms were but it was about

salaries of when you could vote an increase in salary and that was voted down. all the others many of the states approved all of them. several of the states and interestingly enough georgia and massachusetts never --. >> host: and connecticut. >> guest: and connecticut to two not approved the bill of rights in 1939, that the debate debate -- the date collects massachusetts simply forgot to officially send a note saying that they had approved the constitution. georgia absolutely refused when it came up for ratification. so in part i think that speaks to the fact that also part of

the myth is that the bill of rights became instantly the american credo and the truth is until the 14th amendment it really was a paper barrier. that is it really was federal government did not have the authority to intervene if states abuse the civil rights of people and i think really as far as i understand, not a lawyer and i'm not a constitutional historian and the sense of studying the evolution of the laws and the court decisions but i think it's really not until the 1930s that the bill of rights begins to be sorted incorporated into the opinions of judges all across the country. >> host: i would say the same thing though there was an edit of a discussion at the time of the alien sedition acts were

passed freedom of the press and the first amendment but even at that time there was no supreme court decision as to whether the sedition act was constitutional. but all of the discussion was really if you read it was about which government had the power to punish seditious libel. was it the federal government or the state government which is very different from an argument over free press. >> exactly. i'm glad that you say that because our next and i think last book is about four crises in the 1790s that are challenges to the sovereignty of the federal government. one of them is in fact the alien and sedition acts which there is this great argument. you have no business intervening

either in the naturalization of citizens, that is who can come into our state and you can stay or into the newspapers and our state. that is i think one of the examples of the way in which the federal government was not yet seen as the ultimate authority. >> i wondered if you could talk a little bit because this comes up both during the ratification process and again when the bill of rights comes up the possibility of having a second constitutional convention. >> guest: disappeared madison to death. he is really driven to produce the bill of rights because he honestly believes the

anti-federalists continued to be a major threat and one of the things that he repeatedly talks about is that this will prevent a second convention, this will prevent the second convention. a lot of his friends and a lot of his colleagues think he is a worry wart. but at the very and and the bill of rights comes to virginia you get this exchange of letters between patrick henry and one of the lease. you say just wait people will realize that this government is going to be too radical and we will have a constitutional convention that will correct this. so there were still people out there in 1791 who were expecting

that they could mount a call for a second constitutional convention. so madison wasn't completely paranoid about this. his view they have been skewed by the fact that they came from the state that have the strongest organized states rights political leadership in the country. he was right that there was a push for a second constitutional convention and at one point i guess it's charles pinckney says basically oh my god if we have that swords would be drawn. there they would be mayhem and blood in the streets. let's not risk doing this again and madison says basically the same thing. he said the first one was so

difficult. can you imagine what the second one would be like? so there are really anxious to make sure that this is a dead issue this issue is dead in the water and that speaks to another point i think and that is that we have come to the jeffersonian claim the group of demagogues who wrote the constitution and so you get the sense that they knew exact what they wanted to do and they knew when they had done it that this was going to be the greatest longest lived frame of government in the world but when you really look at the convention you realize that they argued and argued and argued and note issue was never settled and you would think something was settled and then it would come up yet again. there was a lot of rancor in the

convention so madison remembers this. charles pinckney remembers this and they say let's not do that again. >> they were wrong because the issue is still alive today. we have scholars and people urging another constitutional convention but we won't talk about that. >> guest: i actually have been asked for interviews, radio interviews on several occasions. do you think we should have another constitution? i think as polarized as this country is right now, no. >> you are saying that these men were demagogues but they are really dealing with the problems they had that day and one of the things that happened while the bill of rights was being considered which i don't think comes up in the book is that the judiciary act of 1789 was being

formulated in the senate at the exact same time the bill of rights was being discussed in the house. what we learned is that they knew what the other house was doing and some of the rights that madison cared about, some of the things he put in his proposals ended up in the judiciary act so that he was not as unhappy let's say as you might think. >> guest: yes, that's a good point. >> host: the final product our 10 amendments and not even the anti-federalist i think. richard henry lee apparently he was a senator. he said that he was satisfied that the judiciary had remedied

the defects of the constitution with regard to the rights of the people, something that the proposed bill of rights didn't do which i mean if it made him happy that was a good thing. >> guest: yes, yes yes you are right. you are right to. >> host: but the response to the bill of rights themselves the two senators from virginia sent a report to the governor and they say what could we have expect good as the federalist controlled both houses of congress. what could we have expected? the god of water down piece of pablum that doesn't protect anybody and that will allow them to go ahead.

there was a lot even among the federalist there was a sense that the bill of rights didn't go far enough, that it was sort of man be pam b. that it wasn't -- it didn't turn out to be important but i do want to say madison had an idealistic motive as well as these very practical strategic political motives. madison is extremely concerned about tyranny but not tyranny by the government. he is concerned about tyranny by the majority. he worries that the majority will oppress the population and he says what can be done to prevent this? he comes to see the bill of rights in effect as a document

that those principles can be internalized by the population wouldn't use that word. if they can become what america stands for that will operate as a brake on the majority when they have an impulse to oppress the minority. in that sense he pre-staged the way in which we think about the bill of rights today that it is our credo, it is our her statement of our values and our ideals and i think not that i can channel madison. he is dead and i can't say what he would say today but i certainly have the feeling that he would be pleased to see that role for the bill of rights has certainly become true. >> host: i think you might might have another thought.

alexander hamilton and 1801 thought that madison's amendments did nothing important important, that he basically said it left the structure of government where it was and amassing distribution of powers where they were and they thought the amendments were too insignificant to be a reason for being reconciled to the system if he thought it originally bad. but thomas jefferson way back in 1789 when he was urging madison to put forth the amendment i think he put his finger on the importance of the bill of rights when he said it was a legal check into the hands of the judiciary. do you consider this another

legacy of madison's amendments? >> guest: yes, yes i think so although i think over, we have certainly over the last 20 years or so come to see the judiciary as a political branch also so that i think and there probably has been a history. this is not my area of specialization but the bill of rights bill of rights protects can be interpreted in strong and weak ways by the judiciary. i think madison in the long-run is right that what it requires is for the people of the country

to believe that these are values worth defending and worth living by. i'm not sure that we do but i think we think we do and that's really pretty important. >> i also wondered as i read your book what light does the story that you tell shed on the validity of the theory of original intent? that opens up a can of worms. >> guest: i am on record already about this in talks and interviews and my first book really the solution. the man who wrote the constitution were very clear that they didn't know what the future would hold. they were trying to solve the immediate problem the immediate

problem was they thought the country was about -- they thought states would go to war with one another. they thought the country was going to be divided up at the great powers of the world france, spain and england. they thought that the country was on the rink of absolute dissolution. so that's the problem they were trying to solve and then frankly if the document we have written keeps the country going for 10 years we will have done our duty. they all have this absolute sense that all republics deteriorate into tyranny's. there is no way to prevent that and so what you do is you stall it. you stall it as long as you can but what you are looking at is how do we solve this immediate crisis that we have? they are not taking about well

in the year 2015 what can we -- and they don't want the future as hamilton at one point says held in the icy grip of the past. that is why they have an amendment process. they say in effect we don't know what the next generation will need. we don't know what the generation after that we'll need three votes create a frame of government and give everybody the right to change it as they need to change it. i think they would be horrified and again i cannot speak for them. i think they would be horrified at the idea that people would go back and try to see if what we are dealing with today matches up with what they may be dealing with then. i wish we would see the constitution as an organic changing growing adj