the bill of rights and the debates that are echoed today. she speaks with the director of the institute for constitutional history at the new york historical society and george washington university law school >> host: it's nice to be having this conversation with you. i very much enjoyed reading your book the bill of rights the fight to secure america's liberties and my first question is an easy one why did you write the book?

>> guest: probably for the same reason that i wrote a brilliant solution. i think that american are hobbled by about the myths of the birth of the country. i think all country have ms. a mess but it is a part of hours and i think that the story is much more interesting and admirable that i was tempted when i realized a lot of people i spoke to thought that the bill of rights was part of the original constitution and it was written by the statute standing in the park. all brilliant all amazingly self-interested, no egos and that it became instantly the most important part of the constitution and i thought there's one here that's more interesting than that.

>> host: did you have an intended audience? >> guest: it was the people in my field but in the last i would say 15 or 16 years i thought that historians need to talk to the public. they need to talk to people that go to the ballot box and form political opinions into social opinions so my general audience are people like my family or people like friends who are not historians. the book does what read well and i want you to enjoy it and in

the prologue you talk about the men that produced the bill of rights. america was was ported by the course by the great imperial powers across the atlantic. i worked on the supreme court for the 1790s and i got exactly the same feelings. i think you captured perfectly the context in which the first federal congress had to work. so how do these effect the

preceding? >> guest: this co. this is not remembered even by historians. it's almost as if the books are written to say we by say we have a constitution and everything was fine. but i'm sure that if you had to come if you read the debates in congress and read their letters they are filled with this anxiety that what they are trying to do and sustain might fall apart. it might fall apart because the foreign countries or because internal dissension or because they are inadequate to the past. but that underlining anxiety i think we need to understand. i have students that always think that america began in 1609

and then it became the more important in the world. no history in between and i encounter adults that think the same way it's always been the most powerful country in the world and of course here in 1789 is this country that in fact most of the powers are trading treating as if it isn't a sovereign country. the french in another couple of years are going to send over someone that recruits and army of americans to fight right under washington's nose so i think it made sense. they were aware that what they were trying to build over public did not exist in their known world and when they had existed in the western world it always

ended in tierney. it always failed so they come to this first congress with a memory of how long the resolution took. eight years that they hadn't been sure that they were going to win and then they create this new constitution and this new congress that in fact. it wasn't a done deal they didn't see this as a done deal.

we don't want to it is very the federal government. madison really understands that the fight is still going on even though the ratification of the constitution has taken place. i don't want to sound but a bad movie creating drama. >> host: why did your "? >> guest: i did it for a couple of reasons. one, i've spent a great deal of

my time in the last ten years doing faculty development for high school secondary school elementary school teachers. i wanted them to make use to assign their students. one of the people that participated in the debate over the bill of rights. it was aimed at teachers and students. secondly, it's because i think if you come from maryland and from new york if you can name your senators now, you are doing well. but i wanted them to get a sense of the men that represented the

state in the conflict. it gave any kind of concreteness to what it meant when new york voted yes. they said i'm going to keep proposing amendments that limit even if you vote them down repeatedly. so i wanted them to have not a personality in those little biographies, i wanted that to be a start to get to know these men. >> who among them were the important bill of rights? madison of course. >> eldridge gerry has become my

favorite curmudgeon in the whole world. he's just such an interesting man. one of these people absolutely believes they operate on the principles 24/mac seven. there is always a high-minded reason then there are moments that he is viewed by the other members of the house as a sort house as a sort of aggravating crackpots and so there are wonderful moments without any heat. in many ways it is the leader of the opposition to what madison wants in the bill of rights which he originally wanted them added into the body of the constitution. he didn't want them separately

or as a set of amendments. but it's against the federalists marching down the roads to tierney at the very least a monarchy. also roger sherman plays a critical role because he persists in demanding that they be amendments and that the constitution itself if not revered be acknowledged as the will of the people because it was ratified. and he wants these propositions into statements about rights and liberties and procedures that protect the liberties and rights of american citizens.

he wants them added as amendments, so those are the three key players. there are lots of others and you have to like him. he's from georgia and he's just going to lose every battle. his personality and what he has written that he is a conspiracy nut and is obsessed with the idea that the society as a secret organization that's going to create an aristocracy so he comes across as mild manner but in fact there is a lot going on inside of them. some i found it quite

interesting. >> host: let's turn to the bill of rights. it's how they feel during the bill of rights and constitutional convention before your book begins. >> guest: like almost everybody else there felt it was completely unnecessary when it was proposed in the committee by charles and then it was shot down, and then it was proposed by george mason. there are moments i can't remember everyone's first name. first of all it was september and everybody really wanted to go home. they were tired of being there and they said no and he said it

will only take a few hours to do this. they didn't get the give the federal government any authority over any of these issues. all of these are state issues, so it's not necessary and several of the states already have bills of rights that begin their constitution so why are we creating something irrelevant and everybody breathes a sigh of relief and now we can go home. hilton -- hamilton said why suggest that we are going to limit powers that you don't have

in the first place and it implies you have those powers and that would be worse than the bill of rights that says we won't use them. madison agreed with all of this. then he runs for the house and his opponent is james bono. it remains the anti-federalist who referred to virginia as his country his entire life so you can see where he stands on the creation of what he called the consolidated government. so madison has asked because they used the absence use the absence of a bill of rights brilliantly in the ratification

arguments. this is great iatrogenic or government because it doesn't have a bill of rights. they appeal to the emotional worry anxiety of the general voter what are we getting in for if we create this federal government and if this continues and madison promises i will propose a bill of rights as soon as i get into congress and he feels he ought to honor that campaign pledge even though he generally feels that its power of enforcement is now and is referred to by many of these men as a parchment barrier that is as a piece of paper that's all it is just a piece of paper and i think that madison through

much of the period when he's thinking about proposing it thinks the same thing. it's a good idea but it really doesn't matter. >> i think also the federalists the leave that specify in which right. over the bill of rights they would leave the rights not animated in limbo. >> what do those opposed to the constitution in favor of the bill of rights say about that? >> they propose almost 150 of them. so madison is very efficient in

this sense. you can imagine him saying this is the scene and he calls them down to the proposals that he makes. the anti-federalist i don't think this is my view. >> they understood this was a hot button issue and they could rally support around. that's what i meant when i said they were politicians. they were not naïve. and they understood how to browse the popular feeling about

certain issues so what they did did is said that there is no bill of rights, this is going to be a chemical government. that is a very important one. it was a scare tactic. once they get into congress and the discussion begins the irony is of course they've been calling for a bill of rights and when they get into congress and realized that the house of representatives which is totally dominated by federalists if they get credit for passing a bill of rights it will kill the opposition and we would say

separate base from the leadership in the party that wanted to limit the federal government. they want to take away the power of the attacks. when they realize realize that this madison brilliant politician in the bill of rights issue and propose is it the people in the house of representatives keep putting the brakes on passing defense of talking about this have been screaming we need a bill of rights. this is political strategy. this isn't man in tow guys in the senate debating high-minded

ideals. this is down and dirty politics that they are engaged in. >> your answer suggested a couple things to me. one you said there were 150 proposals in the ratification that the states brought forward for the amendment and madison told them we've got 100 but isn't it true that the large majority of those were not about individual rights but about the structure of government? >> guest: absolutely true. co absolutely true. what you see is the leadership of the opposition to the constitution makes its interest in knowing in what they send what they write down. but if you read the newspaper propaganda and if you read what they are saying to the general

population, what you get are the two main things. they met in secret. that tells you they are plotting against you or they don't have a bill of rights and that tells you that they are going to create a tierney. so there is a kind of differentiation. the leadership makes known they want to eviscerate the constitution and make sure those powers go back to the state. but when they talk publicly. if james bono is campaigning he hammers away at the bill of rights issue so there is one

line in house into the general population. it is the meaning of the great federalist victory in the election? doesn't mean people don't care about individual rights at the time? >> i'm not sure that we can call it a great victory in that i keep using modern terms but we know and a lot a lot of dirty tricks were pulled by federalists and the ratifying conventions. we know there was a little steamrolling and that there was little hurry up with furry applets do this before everyone read the constitution. they will get a vote for

ratification that calls for a delay we all want to go back and talk to our constituents, so let's adjourn and let's reconvene later they are very skilled politicians and so they know especially the federalist leadership know how to win over they know how to operate in these conventions and they do get gratification but i don't think that they were secure in fact as soon as ratification goes through and at the anti-federalists the anti-federalists are all going to get elected to the congress and they are going to be

defeated in congress it doesn't turn out that way. >> that's what i was interested in is the fact that the federalists won the election so does that mean something? >> it depends on what you mean. >> the interest in the bill of rights. >> once they did get elected and controlled the house and the senate they brought up the bill of rights and the federalists were annoyed beyond belief.

don't be ridiculous, we have important things to do that's not necessary anymore. we are in the drivers seat. madison has to keep pushing and saying the people deserve this. it's a good idea. it took a lot of the federalists quite a number of weeks to realize what a good strategy it was, that it was a good idea to squash the federalists and take this argument away from the. this would make the federalists look like real heroes to the people that said okay now we

have the constitution. >> madison wants to consolidate their legitimacy and they are saying don't bother us, we have important things to do. we have to set up the duties and requirements. and it's interesting after you read the records of the house. they are worked up about where the capital is going to be damn about the bill of rights. it's not into the discussion that some of them decided this could be icing on the cake comes

this could be a good idea and they didn't support madison. i also get the impression that i can't prove this that they rather enjoy it putting it to the anti-federalists who were in the convention that they enjoyed saying we have the power. we are going to vote for this regardless of what you say. >> when madison introduced the amendment in june of 1789 -- may they don't start debating them until later. >> are they the same ones that we now call the bill of rights? >> they had a 37 or 39 different

propositions and he indicated where in the constitution you were going to put them. where are you going to put all of these? a lot of them were very complicated sentences and they progress and the house produces a committee of 11 and they sort of turned a lot of medicines passive tense sentences into direct sentences. they get rid of the verbs as he would say and compress a lot of demand began to say let's put them in one place and it's the

senate that's hard to know who did what because they met in secret and there were no records in 1789. but we know that out of the senate came the 12 amendments that went out for ratification. they are much more direct and shorter and much clearer than madison proposed and now they come out. they come out as amendments, not part of the constitution into the body of the constitution. many of the proposals. but they are consolidated.

>> they are. and one that is missing from the senate bill that comes back is madison's favorite to violate the equal rights of the freedom of the press and the criminal cases and something that i think people still don't know that madison had originally included. he noted in his career as an ardent nationalist and he and hamilton -- he is the architect of the constitution. that is the original plan. he and hamilton are both pushing for even the senate to be based on proportional representation

because he does not want states to have a purchase in the government that he doesn't want a branch of the government that represents the state. he wants a national government and so what he's doing is -- i'm sure the anti-federalists would say they are trying to reach down and have the power of the federal government reach into the behavior of the states. the senate chosen by state legislatures than they take it out. none of them want to go home and say i gave away your sovereignty on this issue so they take that out and this is a terrible blow for madison. it's only balanced by the fact that the anti-federalists in the

house tried to put in the word expressly that isn't granted to the federal government remains for the state basically. they want a expressly granted because that would take away what is now the tenth amendment. they want it expressly put in and that would mean a strict construction, the necessary and proper clause couldn't be used and madison is adamant against this. and that is voted down. so he wins one and loses one. >> what were some of the other amendments that caused a great deal of debate?

the >> one was the third amendment sent out into the anti-federalists in the house wanted to include the phrase that the people have a right to instruct issues binding instructions into this gets down to a fundamental difference between the federalist view of representation and the anti-federalist view of representation. the federalists believed that voters selected the good judgment and patriotism to legislate and it was terribly important that they wouldn't be subject to the whims and passions of the people, but the

whims that the whims and passions of people came and went. sometimes they were biased but often times they were not and so you have to be above that. the anti-federalists in federalists and the howells argued that you should literally be the voice of what the voters want. this is what we argue today. that is generally people say with the expression what they mean is he didn't do what the people elected wanted him to do and had that been included if what has altered the evolution of this idea of representatives voicing the opinions so there's a long debate over that and it is defeated in the funniest debate is over the militia or

the right to bear arms. all i can tell you though i certainly don't want to get hate mail. they never said individuals can own guns. they simply never talked about individual ownership of guns at all. that was not a word about the individual ownership of times. this is why it's so important to understand the context. the states wanted to maintain their own army, their own militia in case the federal government became tyrannical and attacked them. they wanted to be able to defend their own borders.

this was critically important time not just against native americans or the british were the spanish but really they wanted to have their own army and that's what they meant by a well regulated militia. they see during washington's administration the debate over when can the federal government called out to pass the law that says okay if there is an uprising and the governor of the state asks you to then you can send the militia so there was no discussion of individual ownership of guns but there was a hilarious discussion, and i know maybe it says something about historians that we would find this funny but there is a

serious hilarious discussion about what you should include if you have a religious injunction against or our pacifist religion whether you are exempt from service in the militia so they have a long debate. someone else says what if you are a quaker and one to fight like nathaniel green in the revolutionary war. are you saying that he can't fight and then there's another little discussion should we name them, shouldn't we name them another group that we leave out and then there's a rather funny discussion one of the members of the house says they can't have exceptions then we have to pay for someone to take their place.

then it stands at the voice of reason at says i think that if you are a pacifist you're not going to be willing to send somebody to fight in your face. america is becoming less religious everyday. everyone will claim they are a moravian said they don't have to fight. and you are sort of astounded by this dark scenario and the last big debate that amuses me is the

one of her cruel and unusual punishment. really in all of the debate it pops up like the dormouse in the tea party and he says no i don't think that we should say no cruel and unusual punishment. and he sits down so sometimes the debate are not about the high-minded things we pictured in the bill of rights, but i think people -- it helps you be amazed that it's turned out so well. >> even at the beginning when the justices wrote a circuit in

the early years they gave them grand jury charges and the judges love to say how advanced a society we were because we had in the bill of rights no cruel and unusual punishment and what that meant was that we did have the death penalty. we didn't draw and corner people >> at once the 18th century was a society where the standard of what is via went to us today wasn't the same standard. they beat apprentices, parents beat children that still goes on today unfortunately.

certainly slaves were beaten. the kind of a poor answer -- outpourings is in a different standard and this fellow really spoke for the 18th century when he said some people just need to be wiped what's face it. >> could you tell us about the amendments that were not approved by the state? >> one was to alter the representation to increase the number of people and that was slowed down. the other was an amendment about

the salaries and i have to say at this moment i can't remember what the terms were but it was about salaries to vote for the increase of salary. all the others, many of the states approved all of them into georgia and massachusetts never -- they didn't approve the bill of rights until 1939. massachusetts simply forgot to officially send a note saying that they had approved the constitution. georgia absolutely refused when it came up for ratification and

so in part i think that speaks to the fact that also part of the mess is the bill of rights became instantly the american credo and the truth is until the 14th amendment it really was a paper carrier. at the the federal government didn't have the authority to intervene in the states abuse of civil rights and i think as far as i can trace, i'm not a lawyer and i'm not a constitutional historian in the sense of studying the evolution of the law and the court decision but i think it's really not until the 1930s that the bill of rights begins to be sort of incorporated into the opinions of judges all across the country

>> i would say that same thing there was a discussion at the time of the act like freedom of the press and the first amendment that even at that time there was no supreme court decision as to whether the act was constitutional or the discussion if you read it was about which government had the power to punish the rifle. was that it the federal government or the state government which is different from an argument over free press >> i'm glad to say that because it was about the challenges to the sovereignty and the federal government and one of them is in

fact the alien and sedition act which there is a great argument you have no business intervening in the nationalization of citizens or into the newspapers in the state and that is one of the examples of play the federal government was not yet seen is the ultimate as the ultimate authority on issues like this. >> it comes up during the ratification process and when the bill of rights comes up the possibility of having a second constitutional convention. >> of this scared madison to

death. he's driven to produce the bill of rights because cpb's they continue to be a major threat and one of the things he talks about is this will prevent a second convention and a vote book of his friends and colleagues think that he is a worrywart but at the end the bill of rights comes to virginia and to get this exchange of letters between patrick henry and they say just wait. people will realize that this government is going to be turned and ago and will have it constitutional convention.

>> in 1791 they were expecting that they could mount the call for a second constitutional convention. they had the strongest organized states rights political leadership in the country that he was right there was a push for a second constitutional convention and at one point he says basically if we had had not, swords would be drawn there've been there would be mayhem and blood in the streets

and madison says basically the same thing the first was so difficult. can you imagine what the second one would be like so they were anxious to make sure that this is a dead issue and that speaks to another point and that is that we have come to the jeffersonian claims it's that the group of demagogues and they knew exactly what they wanted to do and they knew this was going to be the greatest longest government when you look at the convention you realize they argued and argued and as a sheep is ever settled and there was a

lot in the convention and so madison remembers this and they would say let's not do that again. they were wrong because the issue is alive today. we have people urging another constitutional convention. i've been asked in interviews do you think that we should have a convention and i think as polarized as the country is right now. but you are saying that these men caught them demagogues but they are dealing with the problems they have and one of the things that happened while the bill of rights is 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 same time as the bill of rights was being discussed in the house and what we learned is that the new theater house was doing and some of the rights that madison cared about some of the things he put in his proposal ended up in the judiciary act so said that he wasn't as unhappy as you might think in the final product and not even the anti-federalist i think richard henry lee apparently come he was a senator

he said he was satisfied that the judiciary act trinity to the defect with regards to the rights of the people. if it's made have happy it was a good thing. >> but the response to the bill of rights themselves the senators from virginia sent a report to the governor and they say what could we have expected because the federalists controlled both houses. what could we have expected? we got a watered-down that

doesn't protect anybody and that will allow them to go ahead and become to radical. there was a lot of -- even among the federalists there was the sense that it didn't go far enough that it was a sort of namby-pamby wouldn't turn out important that they do want to say madison had an idealistic motive but the strategic political motives. madison is concerned about tierney. the majority will oppress the minority in the population and he says what can be done to prevent this and he comes to see

the bill of rights and the fact as a document that if its principles can be internalized by the population if it can become what america stands for that will operate on the majority when they had an impulse to oppress the minority and in that sense he presaged the way we think about the bill of rights today that it is our credo in our statement of our values and ideals and thoughts that i can channel medicine but i certainly had the feeling that he would be pleased to see that it had certainly come true.

as to alexander hamilton in 18015 madison's amendments did nothing important. that left the structure of the government where it was and the distribution of power where they were and he thought of the amendments were insignificant for the reason of being reconciled in the system if he thought that it was 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 puts a legal

check into the hands of the judiciary do you consider this another legacy of madison's amendment? >> guest: i think so. they come to see the judiciary as a political branch and there probably has been the history. but the bill of rights can be interpreted in strong and weak ways by the judiciary.

i think madison in the long run is right but it requires is for the people of the country to believe that these are values worth defending and living my. >> we think we do and that's pretty important. >> i also wondered what light does the story that you tell shed on the validity of the theory of original intent? >> guest: eye on the record already about talks and interviews and my first book a brilliant solution.

i think the men that wrote the constitution were very clear that they didn't know what the future would hold. they were trying to solve an immediate problem and that the country was about to disappear. they thought that states were going to go to war with one another. they thought that the country was going to be divided up by the powers of the in the world spain and england, they thought that country was on the brink of absolute dissolution. so that's the problem they were trying to solve and ben franklin says if the documents we have written keeps the country going for ten years we will have done our duty. they all have this absolute sense of deteriorating into tierney's. so what you do is stall as long as you can.

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