Jeffrey Rosen: [MUSIC] Today
we're going to talk about the Bill of Rights. James Madison is often called the father of
the Bill of Rights. But we're going to start by
talking about someone who has a better claim to be called the father of
the Bill of Rights. That's George Mason. Why was George Mason father
of the Bill of Rights? He was one of the three
delegates who refused to sign the Constitution because it didn't have a bill of rights. The others were Edmund
Randolph and Elbridge Gerry. Mason said the convention, he wished the plan had been
prefaced with a bill of rights that would give
great quiet to the people. A bill could be prepared
in a few hours. But the delegates
wanted to go home and they didn't take
up his proposal. In addition, Madison
originally opposed to Bill of Rights as
unnecessary or dangerous. Why? Madison said a
Bill of Rights was unnecessary because
the Constitution itself was a Bill of Rights. It created a federal
government of limited powers. Since Congress was granted no power to abridge
the freedom of speech, for example, there's no
fear that it would do that. Second, Madison said a
bill of rights might be dangerous because people might assume if a right wasn't written down,
it wasn't protected. Whereas our rights are
so sweeping and broad. They come from God or nature, not from government, that they couldn't be limited
to a single list. But in the face of opposition of Anti-Federalists
led by Mason, Madison changed his mind. When he drafted a
Bill of Rights, he relied on amendments proposed by the state
ratifying conventions that themselves were taken from revolutionary era
state constitutions. The most important of those revolutionary era
state constitutions was the Virginia Declaration
of Rights of 1776, drafted by none other
than George Mason. In addition to being the
primary textual source from many of the amendments that ended up in
our Bill of Rights, Masons Virginia Declaration
was also one of the main sources for Thomas Jefferson's
Declaration of Independence. Through Mason, we
see the connection between the declaration, the Constitution, and
the Bill of Rights. Who was Mason? He was in Virginia aristocrat. His name was George Mason IV, the oldest son of a wealthy
landowner whose estate included more than
two dozen enslaved people and 8,000 acres. He was privately tutored
in Latin and the classics, and he read deeply
in the classics. His library includes
many of the texts of moral and political philosophy that Jefferson and
Madison read as well, including Locke's
Two Treatises on Government and Algernon Sydney's discourses on Government, which Jefferson identified as a major source of the
Declaration of Independence. Mason also read a
crucial work called Cato's letters written
by the wig parenthesis, trench and Gordon, which also influenced Jefferson
and the founding generation. In May 1776, when the Continental Congress asked the colonies to form
new governments, the Virginia Convention
appointed in Mason, Madison and others to draft
a new declaration of rights. Mason was writing in Raleigh
tavern in Williamsburg, and he produced the first draft of the Virginia Declaration. His preamble includes
language that Jefferson would copy in the
Declaration of Independence, almost word for word. This is Mason's language that all men are born equally
free and independent and have certain
inherent natural rights of which they cannot
buy any compact, deprive, or divest
their posterity, among which are the enjoyment
of life and liberty. With the means of acquiring
and possessing property and pursuing and obtaining
happiness and safety. You see how closely Jefferson
mirrored Mason's language in his rough draft of the
Declaration of Independence. The original rough draft
was even closer to Mason. It declares that all men are created equal and independent with certain inherent
and inalienable rights. That was Jefferson's language. Other parts of the Virginia
Declaration of Rights were also widely copied by other state constitutions in the 1770s and they became the main sources for
Madison's Bill of Rights. Mason's Declaration
included a ban on cruel and unusual punishments, a
right to jury trial, a strong guarantee
of free press. Sometimes Madison took Mason's language almost word for word. I'm just going to give you
a few examples because the textual similarities
are striking. This is Mason's Section 9, that excessive bail ought
not to be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted. That sounds almost
exactly what would become our eighth Amendment. Here's Mason Section 12, that the freedom of
the press is one of the great bulwark of liberty
and can never be restrained, but by despotic governments. Of course, that was echoed
in our first Amendment. Here's Mason Section 13, that a well-regulated militia composed of the body of the
people trained to arms, is the proper, natural and
safe defense of a free state that standing armies in times of peace should be avoided
as dangerous to liberty. That in all cases, the military should be under strict subordination to and
governed by the civil power. Of course, that was echoed
in our Second Amendment. Finally, we have Section 16, that religion or the
duty which we owe to our Creator and the
manner of discharging. It can be directed only
by reason and conviction, not by force or violence. Therefore, all men are
equally entitled to the free exercise of religion according to the
dictates of conscience. That's extraordinarily
important language. The free exercise
language was Madison, but most of that is
from Mason and it's a very powerful encapsulation of what would become
our religion clauses. When Madison originally
wrote the Bill of Rights, he's just cutting and pasting from the amendments proposed by the state ratifying
conventions in Virginia. The amendments were taken
almost word for word from the Virginia Declaration,
which I just read. Other states recycled from their own state constitutions
and Declarations of Rights, which had also
relied on Virginia. You see why Mason
was so influential. Madison originally
proposed 19 amendments to the Constitution in the debates over the Bill of Rights in 1789, Congress whittle
them down to 12, and 10 of those amendments
were ratified in 1791. We have one of the 12 surviving
original copies of the Bill of Rights at the
National Constitution Center. The original First Amendment doesn't have to do
with free speech. It says there should be one
representative in congress for every 30,000 inhabitants
that had passed, there be thousands of
people in Congress today. The original second Amendment
said Congress can't raise it salary without
an intervening election. That was ratified in 1992
is the 27th Amendment. Our first Amendment
was their third. The First Amendment is
in first because it's necessarily arguably
the most important. It with the First
Amendment to be ratified. Now let's take a quick tour
through the Bill of Rights. Here I'm going to borrow from
my great law school teacher, Akhil Amar, who bundles the
amendments into five groups. I'm going to tell
you the five groups and read the text of the amendment because
there's nothing like reading the Bill of Rights. First, there are the rights broadly include the
rights of conscience. These are protected by
the First Amendment, they include the
rights of religion, speech, press assembly,
and petition. I'm going to read the inspiring text of
the First Amendment. Congress shall make
no law respecting an establishment of religion or prohibiting the free
exercise thereof. Those that have
religion clauses, or abridging the freedom
of speech or of the press. Because of the speech
and press clauses. Or the right of the
people peaceably to assemble and to petition the government for
redress of grievances. Those are the assembly
and petition clauses. There's so much to say about
each of those clauses. But the religion clauses say that our rights of
reaction as a religion, the rights of conscience are
absolutely protected and that Congress can't
establish a state religion. The rights of speech
and of the press have been construed to
say by the Supreme Court that government cannot
regulate speech unless it's intended to and likely to
cause imminent violence. That is the most
speech protective test in the world today. It's a tribute to the powerful natural law
vision of our framers. Then there are the assembly
and petition clauses. Crucially, they protect
the right to peaceably, to assemble and to petition the government
for redress of grievances. This has allowed dissenters and unpopular groups throughout American history peaceably to assemble in order to affect
constitutional change. Now we come to Category 2, Professor Amar calls these
the military amendments. We begin with the
Second Amendment, a well-regulated militia being necessary to the security
of a free state. The right of the people to
keep and bear arms shall not be infringed for the
founding generation. As we heard from Mason's
original language, there was a grave concern
about standing armies. The framers believed in routing the people safety and a well-regulated
citizen-led militia. Consistent with the Supreme
Court's recent decision in the Heller and McDonald case, the Second Amendment
also grants an individuals right to
keep and bare arms, including personal handguns
in the home for self-defense. Then we have the
Third Amendment. No soldier shall in
times of peace be quartered in any house without
the consent of the owner, nor in time of war, but in a manner to be
prescribed by law. This grows out of
the experience of the British Quartering
Act of 1774. The founding generation saw these British abuses where soldiers are quoted
in the homeless tyrannical and viewed
the act as invading the sanctity of private
property and the home. Our third category includes privacy and property rights and it includes the Fourth Amendment and the Fifth Amendments
taking clause. Here's the Fourth
Amendment which is so meaningful to read. The right of the
people to be secure in their persons,
houses, papers, and effects against
unreasonable searches and seizures shall not be
violated and no warrants shall issue but upon probable cause supported
by oath or affirmation and particularly
describing the place to be searched and the persons
or things to be seized. That first clause protects
our persons, houses, papers, and effects against
unreasonable searches and seizures and then
the second clause, the warrant clause says
that no warrant shall issue but on probable cause with a particular description
of a place to be searched or the personal
things to be seized. Then we have the
Fifth Amendment's taking clause which says, nor shall private
property be taken for public use without
just compensation. That's connected to the founding
generation's commitment to property rights and prevents private property from being
taken by the government for public use without
just compensation. There's so much to say about these privacy and
property amendments, including issues ranging
from the government, follow your movements and public using your
cell phone data. Two central questions
about can the government sees your home without paying for it and
we'll discuss all of these very important
cases in future classes. We now come to our
fourth category which includes concerns
about fair process, jury rights, and the
rights of the accused. This category includes
the Fifth Amendment, the Sixth Amendment, the Seventh and the
Eighth Amendment. Let's begin with the Fifth. No person shall be held to answer for a capital
or otherwise infamous crime unless on a presentment or indictment
of a Grand Jury, except in cases arising in the
land or naval forces or in the militia when
an actual service in time of war or public danger, nor shall any person
be subject for the same offense to be twice put in jeopardy
of life and limb, that's the double
jeopardy clause, nor be compelled in any criminal case to be a
witness against himself, those are our rights
against self-incrimination, nor be deprived of life, liberty, or property
without due process of law. That's the crucially
important due process clause
which in some ways is fundamental to the very
definition of the rule of law which says that the government
can't act arbitrarily. Instead it has to act according to previously determined rules. Next we come to the
Sixth Amendment rights which are so
crucially important. The Sixth Amendment says that in all criminal prosecutions, the accused shall enjoy the right to a speedy
and public trial by an impartial jury
of the state and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusations, to be confronted with
the witness against him, to have compulsory process for obtaining witnesses
in his favor, and to have the assistance
of counsel for his defense. That's a whole bunch
of central rights that you get if you're a
criminal defendant and you actually go to trial
because for these rights to kick in you have to
have a criminal trial, most criminal cases
and in plea bargains, so often people don't exercise these crucially important
rights but they include the right to
counsel or a lawyer, the right to a speedy
and public trial, the right to an impartial jury, the right to be informed of what crimes the government's
charging you with, and the confrontation clause
or right to cross-examine witnesses against you plus compulsory process for witness. The court can order someone to appear in court as
a witness for you. Those involve criminal cases. There's also the Seventh
Amendment involving civil cases. The Seventh Amendment says, in suits at common law where the value in controversy
shall exceed $20, the right of trial by
jury shall be preserved and no fact tried
by a jury shall be otherwise reexamined in any
court of the United States than according to the
rules of common law. That responded to
a key concern of the Anti-Federalists
preserving the right to jury in a civil case. How do you distinguish between a civil and a criminal case? You have to take criminal
procedure for that but basically it's whatever
the legislature says. Now we come to the
Eighth Amendment. I know this language
will be familiar from that George Mason language
that I shared with you before. Excessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted. Well, those debates
about what counts as cruel and unusual
punishment are central to our modern debates about the scope of the death penalty. Now we finally come to
our fifth category which includes what Professor Amar calls the popular
sovereignty amendments. These are so important
and here we go. We have the Ninth
Amendment which says the enumeration in
the Constitution of certain rights shall not
be construed to deny or disparage others
retained by the people. That language about retained
by the people is so crucial. Remember Jefferson and Mason and all the founders think that
our rights come from God or nature not government
and when we move from the state of nature
to civil society, we alienate or surrender
temporary control over certain rights in order to get greater security and safety of the rights we've retained, the rights retained
by the people and the Ninth Amendment
as a reminder, don't assume if it's not written
down it's not protected. This is responding to
Madison's concern. Our rights are natural. They come from God or nature, not from the Bill of Rights
and the Bill of Rights therefore is not a
comprehensive list. Finally, we come to the 10th Amendment which says the powers not delegated to the United
States by the Constitution, nor prohibited by it
to the states are reserved to the states
respectively or to the people. This reflects the
Framer's central concern about federalism. The balance of power between the states and
the national government. The national government is not a government of
unlimited powers. It only has the powers
that's it's specifically granted and all powers
not specifically granted are reserved to the
states or to the people. The Ninth and 10th
Amendments together reflect George Mason's central
concerns about natural rights and
limited federal power. Therefore, it's appropriate to end this walk-through
of the Bill of Rights by paying tribute to the father of the Bill
of Rights, George Mason. [MUSIC]
