they off, who is the always used to be qualified. so, the two points they wanted it is important for us to understand american ideas about religious freedom have a deeply radical reticent -- point.ant forward jews and catholics, they were deeply anti-catholic and anti-jewish, that is a problematic statement. there is so few of them. there are some thousands of catholics and hundreds, maybe a couple thousand jews. to be worshiping on their own, catholics don't care. they are not going to break the host. rate the host in public. the first big point. jefferson and madison, someone

locke.lowing john they are more entering the idea ,f polyglot, not polytheistic but the united states should be open for people of other religious beliefs. madison said as much in his memorial against religious assessment. kind of the authoritative text he drafted back in the mid-1780's after patrick henry's bill for question religion. sectarian -- too sectarian cast, people will hear the message of christ preached to them. i am not sure madison was still a christian at that point. one of the great questions about him, how did he think? at least he opened that up. >> what jack said 10 in its ago

was the ultimate points. if you look at this, he did a geographic survey of american public opinion or popular opinion in 1789, something impossible to say, it would be mostly christian with anglicanism dominating in virginia and some form of business arianism in the congregation -- some form of presbyterianism in the congregation. in virginia, with the principle of religious freedom, the hand in the first amendment. it is a radical idea. it is still the single most important part of the bill of rights, and it translates perfectly. religion is a perfect thing -- personal thing. the state cannot interfere with that process. in washington goes to a synagogue in newport as part of

his trip to new england and gives a speech insisting that yes, this does include jewish people. it is not even in the amendment. there was no disagreement. it is in the main constitution at a time when many a state constitution had experience with tests for religious office. a radical moment in the actual

constitution. i am a member of the board of the john jay institute. this is an excellent program. hear assuming we would little more about the new york ratification process. there's a fellow whose last name was smith was head of the antifederalists. between himself and hamilton there was perhaps an informal deal that there would be a bill of rights and that is the reason we got ratification in new york. i could like some clarification on that. >> the federalists had the , i'm sorry the anti-federalist had a majority in new york convention. end smith carried the

group of moderate antifederalists with him. i think new york ratified it 30 to 27. nine states that already ratified. they delayed to the debate in new york until ratification had happened in virginia. it so happens that new hampshire actually precedes virginia. the debate in new york doesn't make any difference. i hate to tell you that. john jay is the more important guy. he is a more significant figure in american history than i had ever imagined. >> smith and that is an wind up having somewhat similar positions. on the merits of the bill of rights.

trying to say the very beginning. why do you want to have a bill of rights. it is not the 18th-century notion. says the way to bill of rights will work best is if you and i is individuals inculcate the extent of it. if we make is writes part of identity as citizens. smith do something similar. he's also a federal farmer. agree thatians now he was an anti-federalist writer. it is not about litigating it out. the people need a bill of rights for collective identity. so they will know when government is overstepping its boundaries.

if you have a bill of rights you have some standard against which you can judge the improper actions of others. smith's argument has in the sense of more collective argument. i have a question on the ninth amendment. medicine is getting from jefferson that the bill of rights is important. it being more individual exercise. the ninth amendment and set up fairly useless. there's not much the supreme court can do with it. what is the historical understanding for why the ninth ?mendment is there to mar

when did it matter? >> madison thinks it is the most important amendment. he says this is the one that you really need. these are the only rights that people have so madison is very concerned about it. you could write a book on parts of the constitution that have been deemphasized by the judiciary. in my bar review course they said the privileges and immunities clause is never the answer. and i said how can it never be the answer? it is a really interesting with ourwhy we end up

history where we don't amend the constitution as much. he had a list of all the rights that were rejected. he had 75 of them. only a few actually end up in the bill of rights. the world had more rights at one time. maybe someone has a notion of why that happened. >> it is a serious question. if you start to think about how is it that are right

stated in such is part of the constitutional tax and therefore becomes part of the supreme court fundamental law. it doesn't really matter which rights are included. matters, the question of enumeration matters. what happens to unenumerated rights? where do they go? have you checked straws them. the they've done with second amendment has become the most absurd example. it is not an easy subject. if you open it into a written constitution short and sweet and fairly elegant.

>> thank you very much for this very useful discussion. we can talk about the origin of philosophyin the behind u.s. history of the constitution. the origin of the phrase toward a more perfect union. >> governor morris wrote those words. in 1787. a more perfect union. he was referring to the fact that they were a replacing a less perfect union, namely the articles of confederation. of the mostne

outspoken critics of slavery in this debate. i don't think he had anything like an understanding of what intrusivelking about expanding the definition of the people. jack, give me some numbers here. >> come up with your own numbers. [laughter] ratified howit was many people fit the definition of we the people. , withd to be male property and you had to be white. was aroundopulation 3 million. the concept of citizenship can be linked to a already having you have to vote.

figure it is like 200,000. that is it. now we say we the people we mean 320 million people. we intend that to mean everybody. one of the problems we have in the 21st century is that there certain segments of we the people that no longer share the values of other people. >> the question of whether the constitution is a living document.

it was put together by that band of brothers in 1776. amend the second article. all powers not expressly delegated to the federal government are reserved to the states. does that sound familiar? it's now in the 10th amendment. so the articles of confederation were a very rigid static it was designed to be difficult. thingsthe most important constitution does not say how many people will sit on the supreme court. don't tell the republicans that.

[laughter] legislature to change the size the court when it gets too liberal or too conservative. it was as low as five when it started. six when it started. having read through some of .he papers it seems like the people very uncertain about the future of the united states. people reviling against the central government. having to do with paying back the debt from the american revolution. groups all of the country were

rising up. they would try to collect the money. rebellion in 1787 west to close down the courts. it was put down in a very heavy-handed way. they were thrown in jail without trial. guns were confiscated. hancock, the pushback. he is now governor of massachusetts.

there is a paucity of documentation. to be able to incorporate any of that history in your recollection of how things were ratified. >> the idea the founding fathers having this gift from the heavens. the irony is that shays by mostn was perceived of the elites is the first sign of anarchy. because of that fear the movement for a convention in have alphia begins to level credibility that is in have before.

the ironic implication of shays consolidated the federal government in a way that they are opposed to. historians have not been remiss in trying to connect these events you describe with the convention and the documents and the bill of rights. there's a lot to be said about that. >> shays rebellion leads directly to the republican guarantee clause of the constitution. they have the right statement but not in the conventional way that we think about the bill of rights. guaranteeing a republican form of government. speculation about the different ways in which an uprising could take place.

the wrong kind of popular protest has a national government that is restored. loser versus board and is probably the only notable case on the subject. these are the last two questions by the way. i was interested in your discussion of the first amendment and the free exercise clause. to keep the government out of

people's individual religions. i was wondering to what extent the founders especially jefferson and madison wanted to keep people's religion out of the government. >> is a more complicated question. jefferson had this high hope in the notes on the state of virginia. jefferson hoped that americans will become much more rational in their religious beliefs. madison was much more philosophical.

we moved toward disestablishment. the churches have never been in better shape than they have been since they were disestablished. known as they would tell them which interpretation is correct. why does the abortion issue become a real basis for unification among religious groups. surely our flex orthodox jews. they havethink nothing, except her deep religiosity with respect to the model for why

having diverse interests is going to be really productive. causesigion question some issues to arise. i would like to get more information if there was any discussion on who would be excluded from the bill of rights. slaves, women. ?ow does it reconcile that >> one interesting way to think about the rights is which one does he not put in. if you think of things that were in constitutions both massachusetts and virginia had a clause that was called free and equal laws. the virginianss

actually fight about it because they weren't wanted to put free and equal in the constitution. they said no one will take it seriously was too is a certain amount of problems. the free and equal clause is used in the 1780's to abolish slavery. that is no language like and madison proposes. nothing that expensive. the just compensation close of the fifth amendment is they are primarily as a stop gap. if the government gets around to abolishing slavery, white slave owners would have to be compensated for the loss of their property. in some ways the minutes are narrow. why you need the 13th and 14th and 15th amendment to open up that part of the

constitution. not the antislavery person that he is sometimes misunderstood today. he never freed anybody. he was not that good on this issue at all. >> we're just about out of time. i will circle back to the big overarching theme. why the bill of rights was made. a final thought from each of you. on the big picture. was there something you wanted to say in answer to a question that we haven't touched on yet? jack: if you go a long term american constitutional history the development of the bill of

rights was strongly attenuated until after the first world war. interesting stories have first in the realm of free speech and then in the realm of freedom of religion in the 1920's and 1930's we searching of the incorporation doctrine for the first amendment and that how that escalates as it did so radically under the earl warren court. the social justice revolution. the best way to frame this is to say that they're interesting little stories about the origins. is a 20thruition century story that we are still arguing about. joseph: the bill of rights is the creation of a particular historical moment. that don't have any

transcendent value. we know the bill of rights is going to have transcendent value. it seems that the bill of rights represents an attempt to instill last 30 yearshe of the american experience. looking back to the glorious revolution and the english civil war. we can argue about the original intent. momenthere was this where they had these piercing insights into the eternal truths. rightse synthesizing the and the values of their moment in time. the joke in the new yorker.

scalia was asking questions of this one guy and the geithner understand the question was. said justice scalia wants you to know what madison thought of video games. [laughter] we going to discover different kinds of meaning. for their moment, they did about as well as any group of human beings in modern history has ever done in treating this saintst and they are not but it is unbelievable what they achieved. mary: one of the things that is is that we live in a culture we can go everywhere and find bills of rights.

the burger king bill of rights. the pet bill of rights. the hospital bill of rights. everybody puts the lettering in the sweetly way. the paper is yellow. there is this cultural way in which this moment and the bill of rights coming out of it is part of our american cultural legacy. ken: the iconic status of the bill of rights is something that came out of the -- deal and assess quintin sesquicentennial celebration. december 15, 1941 one week after pearl harbor.

japan and line about not much about the bill of rights acceptance. an example of what nazi germany isn't. >> thank you for joining us. thank you for your questions. thank you for your time. help me thank this amazing panel. if you want to talk about the constitution, you don't do much better than this. [applause]