Welcome back. Let's talk about the first ten amendments to the Constitution. We call them the Bill of Rights, even though that phrase doesn't appear in the Constitution itself, and indeed wasn't always used and regularly used to describe these amendments in at least, in Supreme Court cases until much later in American history. I will tell you a story about, about how that phrase comes to become much more common in later lectures. Basically, just a foreshadow, the framers of the 14th amendment after the Civil War like to refer to these amendments as the Bill of Rights, and, and that caught fire. But these amendments were proposed in the first Congress in 1789, and ratified shortly thereafter, 1791. And today there absolutely central and iconic. Not so much actually in the early period. They don't mean that much on the ground for much of early America in history but they come to become absolutely huge. The big themes of these early amendments are Federalism, or Localism, if you will, and Populism. These amendments to some extent, are a reflection of a kind of Anti-Federalist critique of the original constitution. Remember the Anti-Federalists were worried that the constitution created too powerful a central government without enough checks on it. They were, they were nervous and they also wanted to beef up state and local power to some extent as a counterweight against federal authority. Remember, the American constitution follows the American Revolution. And the revolution was a revolution against an imperial center. A revolution led by an an, aff an affili an alliance of, of local governments colonial assemblies and local juries, local militias. And the, the constitution was proposing this vast, powerful federal government, continental government the likes of which supposedly Democratic or Republican central government the likes of which really hadn't been seen in world history, and anti-federalists were worried. And they said that during the ratification convention, and the Bill of Rights that emerges, to some degree, is a reflection of their concerns. It begins with the words, Congress shall make no law of a certain sort. By this, laws restricting free expression, wealth and religious freedom. So, begins Congress shall make no law of a certain sort, ends with a tenth amendment affirming, basically, state's rights and the idea of limited federal power. All of these amendments limit the Federal Government and only the Federal Government. Because the Anti-Federals were nervous about the Federal Government. And James Madison, who proposes these amendments in the first congress, he actually thinks that states need to be restricted too. He proposes the amendment that no state should bridge free speech or free press or Religious freedom. But actually Congress doesn't go along with that. The Senate basically nixes that idea. The Senate is, remember, controlled by people elected by state legislatures. It, it's a bastion of, of state's rights to some extent. And so Madison thinks we need a Bill of Rights against the local governments as well as against the center, and I think ultimately, history has proved Madison right on that. But we don't really get that second bill of rights, that bill of rights against the central gov against, excuse me a, a, a state governments and local governments until after the civil war. So, our Bill of Rights begins congress shall make no law, and only after the Civil War do we get the Madisonian supplement, no state shall abridge certain fundamental rights. So the localism idea, you see it in the First Amendment, Congress can't pass laws. Congress can't establish a, a national church. But actually states can have established churches. And some did. And not only can can Congress not establish a national church, Congress can't disestablish state churches. That would be a Congressional law respecting on the topic of, in reference to establishment of religion. And Congress simply has to butt out of that. Leave it up to states, local option. It's a states rights provision to some extent. The very words, Congress shall make no law is really a recognition that there's no enumerated power over certain domains. Congress just has to butt out of certain areas. so, the first amendment has a federalism component. The second amendment is about protecting, to some extent, state militias against a central standing army. There is anxiety about an army and suppose it becomes a military dictatorship, well, local militias could resist if there's a national military coup of sorts, just as local militias had, had, arrayed themselves against the kingsmen, in places like Lexington and Concord and Bunker's Hill, so that's a localist amendment that the jury idea, excuse me, a militia idea is a local idea. I'm getting ahead of my self. So is the Jury idea. What you see in a bunch of other amendment. Juries are local bodies. A resisting to some extent or counter balancing national judges. The tenth amendment is another localist idea. Numerating federal powers and and, and other things reserved to the state. Which are the people. The ninth amendment is a recognition that again at least in part the federal government is a government of enumerated powers, and we don't want those powers to be over broadly construed. So localism is an important theme of these early amendments, and so is populism, the phrase the people appears in the first amendment, the right of people to petition and assembly, assemble. The second amendment, the right of the people to keep and bear arms. The fourth amendment, the ninth amendament, the tenth amendment, the people, the people, the people, the people. Why that phrase? because remember where the Bill of Rights in effect is coming from. It's, it's coming from the ratification conventions in 1787 88, when we, the people of the United States got together state by state by state, and started talking about whether we wanted to ratify the Constitution. And in that conversation, people said, gee, the Philadelphia Framers goofed. They forgot a bill of rights. State constitutions have bills of rights. We should have a federal bill of rights too. And so, the Constitution the excuse me, the Bill of Rights kind of bubbles up from the people, from this democratic conversation, from epic acts of free speech among the people and so it's not surprising that the First Amendment affirms the freedom of speech because it's arising out of free speech. It's not surprising that the first and the second and the fourth and the ninth and the tenth speak of the people, the rights of the people, because this is bubbling up from the people, from that preamble process, that we, the people process of ordainment and establishment; that's what we began the course with. That epic deed, the hinge of human history. When, for a year everyone is in a common conversation up and down the continent about how they and their posterity are to be governed. Let me just quickly run down for you what the, these first ten amendments say. The first amendment says that basically there should be no federal suppression of expression, free speech, free press. And no federal interference with religious rights and liberties. So that's the first amendment. And you see an idea of popular sovereignty, because the people are sovereign, ordinary people. We should get to decide for ourselves how, what our political ideas are. Congress shouldn't try to tell us what to say politically, what to think politically. They work for us. We should, we the people are sovereign, so they can't tell us that we can't hear certain things. By the way, if you believe that deep idea of popular sovereignty, you should think state governments. They work for us too. They shouldn't be able to shut down political discourse. Incumbents shouldn't be able to, to, to tell their challengers, their political opponents to, to, to, to pipe down or, or to shut up. But the first amendment doesn't quite say that in so many words. It says Congress can't abridge free speech. Doesn't say states can't, and states actually, although promising to abide by free speech and free press in their state constitutions, actually, we're going to see later in our story, especially in the South, state governments try to shut down free speech. State governments in the antebellum era make it a crime, a capital offense to criticize slavery. The First Amendment's words don't regulate states as such. They don't say no state shall, they say Congress shall make no law. But after the Civil War, there's going to be an explicit amendment saying, no state shall violate fundamental rights, including rights of free speech and free press. And you might think that principle was implicit in the basic structure of a republican form of government, in every state, a system of free and fair elections, but the Bill of Rights doesn't say so in so many words. It's to some extent a states rights, anti-federalist document. The second amendment, populism and, and federalism. Local militias keeping check on a Federal army just to make sure it doesn't tyrannize over us. We don't, we want to, the, the, the right of the people is, is paramount here. We don't want to basically governments to be who has the guns, who has the, the, the power. We want the military power, we want, actually, our society to be governed by what the people vote for, not what the army prefers. And, in case the army ever gets out of line and tries to make itself into a military dictatorship, George Washington won't ever have any part of that, of course; we're pretty sure about that, but what happens after him. Well, state militias are going to be watch dogs. So populism and federalism here. Militias are bodies representing the people. They're all of us. They're cross sectional and they're organized locally. A third amendment says this army should be quartered in, in, in, in, individual private homes. Again there's an unless Congress Explicitly authorizes it again, an anxiety about a protomilitary industrial complex, the culture within a culture, of the military folks dominating others. Back to the themes of national security that we've talked about so much in this course. We need to create a federal, a strong federal military structure, but we need to keep it in check so that we tell them what to do, rather than that, him telling us what to do, and think, and how to live. So the second and third amendment are sort of military amendments about keeping the federal military in check and again, in the name of populism, popular soveirnty. The fourth amendament, today, no unreasonable searches and seizures. Today it's enforced by a thing called the exclusionary rule. We'll talk about that in later lectures. In which, if evidence is acquired improperly by the government, even if it shows that someone's clearly guilty, it sometimes will be suppressed, excluded from the trial. The Framers didn't believe in any of that. Their fourth amendment was more about the rights of innocent people. When the government became the central government and, and rifle through your papers, or, or invaded your house improperly, unreasonable. You could sue that official, for damages, cause that was an unreasonable and therefore, unconstitutional search and seizure, and who would stand by you if you had a really good case? A local jury would. You'd sue that government official in trespass, they committed a torte against you. They, they entered your house. They, they, they rifled through your paper. A jury, a local jury, would keep those central officials in check. So, fourth amendment idea is in part a jury idea. Fifth amendment has a takings clause. If the federal government starts grabbing your property, you can sue for just compensation. And again, who might decide what that piece of property is worth? A local jury might. And the fifth amendment talks about grand juries. And the sixth amendment talks about trial juries and criminal cases. And the seventh amendment talks about civil juries. Juries are a very big idea, maybe the biggest idea of the original Bill of Rights. And two things about juries. They're populist bodies. They're the people. Their localist bodies. See the ways in which juries are kind of like, malicious? Local populists. Malicious, to some extent, can be seen as, sort of, jurists with guns in their hands. This is an anti-federalist vision to some extent. Perfecting a little bit of skepticism about the central government. The eighth amendment says no cruel and unusual punishments. Well, who's going to be meeting out cruel and unusual punishments possibly? A judge. A sentencing judge acting without a jury, and we need to be worried about judges. Acting without jury. Remember, the founders created a powerful judiciary but it was still third out of three, the least dangerous branch. And they wanted to counterbalance judges with a strong jury check and balance just as you want to counterbalance the senate with the house. The ninth and tenth amendments again, themes of populism and federalism, the phrase that people appears in both amendments and these amendments are about limited Federal power. So, populism and federalism and anti-Federalist vision to some extent. Well, if it's anti-Federalist vision, why do Federalists like James Madison go for it? Why is congress proposing a set of amendments, the first Congress, that begin, he says ratified, Congress shall make no law. Why would Congress ever limit its own power, you might wonder. Why would the Federalist Madison go for a series of amendments that limits the federal government that he's worked so hard to create? And part of the answer is because the Bill of Rights is part of a national reconciliation project. A bunch of people opposed the Constitution. The Constitution barely passed in a whole bunch of places, and Madison and others want to bring those dissenters on board. And the way you bring them on board is by taking seriously their ideas, seeing if they overlap with yours at all. If you could find some common ground. He wants to bring loyal Americans, American patriots who voted for the Constitution, but were skeptical, or who voted against the Constitution on board, he wants then to feel part of the project. He wants North Carolina to ratify the Constitution. Remember, it hasn't yet when the first Congress meets. And geostrategically, you want North Carolina. He wants Rhode Island to ratify the Constitution. And this is a face saving measure. You say to, to the, the North Carolinians, to Rhode Island people, you say you oppose the constitution cause there's not bill of rights, okay, well here, here's some amendments of the sort that you want, now, will you come in? And you can come in on face saving terms. Madison also needed to get elected to Congress, and he wasn't going to get elected unless he actually promised his constituents that he would rethink and, and propose a Bill of Rights. That maybe he had made a mistake in opposing the Bill of Right in Philadelphia. In principle, he wasn't opposed to it. He needed to tell his constituents that in order to get elected to Congress, and he wants to get re-elected. And if he doesn't keep his campaign promises, they're going to send him packing. And the other Congress people understand that too. And if they don't themselves propose some amendments, well remember, Article 5 says that is Congress tries to bottle up amendments that limit Congress' power, there's another way of proposing constitutional amendments. You can have a new convention called, but does Congress want to lose control in the process? If they don't propose some reasonable amendments maybe the states will demand a new second constitutional convention which will adopt, which will propose a whole bunch of radical amendments that Congress would like better. To maintain control of the, of the agenda of the process. And propose your own, sort of reasonable amendments. Your, your olive branch. Your, your compromise. And by the way if you're in Congress, you're not probably expecting to be there forever. You're going to leave after a certain point, and when you leave you want Congress to be limited. Today people tend to stay in Congress for very long, periods of time but the founding wasn't as true. And, remember the ge, geography. The distance you're going to be a long way away from your home, there's not jet travel back and forth and so people don't stay in congress forever, the way sometimes today it seems as if they, they do. So when the early Congress passes amendments limiting Congress, they're not just limiting themselves, but their successors. Some of them are imagining if they're going to go home to the farm. So that's the early amendments. And as I said, they're not going to to mean very much on the ground for a long time. The first time the United States Supreme Court quotes an act of Congress of unconstitutional as a violation of the first amendment, 1965. And it's not as if Congress hasn't violated the First Amendment before that. John Adams is going to sign his name to the Alien Sedition Acts that make it a crime to criticize the federal government, a crime to criticize the president. Not withstanding what the First Amendment said. Within a decade, you're going to have a repressive Congressional law. And, courts actually don't enforce the first amendment vigorously. And in World War 1, again, people are put in prison for criticizing the federal government, Eugene Debs, a guy who gets a million votes for president, is put in prison for basically saying its a crummy war, and we shouldn't be in it. So these amendments are passed. And it's important as part of the reconciliation project, but they don't quite fully mean a lot on the ground in court until much later in our constitutional story. And, and they're going to mean a lot more later on in part because of the 14th Amendment that takes these rights and applies them against state and local governments, as well as Congress. And the Supreme Court is more, comfortable beating up on state and local governments, and only once its done that will it build up all sorts of cases and principles about the, the Bill of Rights. And they can them start to apply against the Federal government. That's going to be a big theme of later lectures, so hold that thought. Those are the first ten amendments. An eleventh emerges soon thereafter. It's about limiting federal courts that have been a little too aggressive. Remember the ska, framers. The founding generation, you know, didn't have as robust a conception of judicial power then we, as we have today. The early Supreme Court was just a shadow of what it is today. It didn't get to decide most of the important constitutional cases of its era. And the one early case that it does decide before John Marshall comes along. Case called Chisholm versus Georgia, people immediately react badly to that. They, oppose it, and the eleventh amendment is introduced to overturn a Supreme Court case, where the Supreme Court, critics say, has gone too far and accumulated too much power for itself. I don't want to go into all the details, I just want to, they're very technical, if you want, there's much more information in the book about them, but for now just see how story of skepticism of Federal power, and even judicial power. Remember a lot of the amendments in the Constitution are limiting judges and judicial excesses. By providing for juries and, and rights of criminal defendants, no against double jeopardy and compelled self-incrimination, and against secret trials. And like trials have to be public, and, and speedy, and all sorts of restrictions on judges in the Bill of Rights. I want to end on this discussion of the early amendments with the 12th Amendment, which turns out to be a rather important one. Here's what you need to remember about the founding presidency. It wasn't designed with political parties in mind. Washington stands above party, everyone votes, every elector votes for him for president the first time around and then again the second time around. But when he leaves the scene, actually you actually have contests for the presidency and the emergence of early political parties. So as soon as Washington leaves the scene. Remember, he's sort of preeminent. You have the next set of founders, the great men of the American Revolution, coming forward. Washington stood head and shoulders, in some cases literally, above everyone else. But when he leaves, when he says, I don't want to be president for life. Actually a republic should be bigger than one man. When he leaves in ways that Ho Chi Min never does and Fidel never does and Mao never does. Well but he leaves the scene even though he could've been re-elected. The two men, who were the next, sort of most prominent in the American revolution, Adams and Jefferson come to the floor, and they run against each other in 1796. We're about to get the picture here. Remember, every chapter has a picture, and if you understand the picture, you understand a lot about the chapter. They run against each other in 1796. And Adams wins, Jefferson comes in second and therefore becomes Vice President. Under the founding system, if you come in second for the presidency, you're Vice President. And initially they, they get along just a little bit, but they begin to become quite antagonistic to each other. Political parties emerge. Adams is the head of one party, Jefferson the other. And, and then they run against each other again in the rematch in 1800 and that time, Jefferson wins. And in the wake of these sharply contested elections, Americans realize they need to change the rules of the electoral college, because the electoral college can permit, basically, people who really hate each other from being President and Vice President together. And that's, that's just not a very stable system. That's like an assassination incentive. so, so they redesigned the rules of the Electoral College so that people can run as the Presidential, Vice Presidential team under the news rules of the 12th Amendment. Once and, and the new rules of, of, of the, of the 12th, of the 12th amendment, you you have people running separately for vice president, so the vice president is no longer the guy who comes in second for the presidency. The guy who may be actually completely opposed to the guy, the person who wins. Now you have tag teams, president, vice president, a ticket, so to speak. The 12th Amendment, in other words, is designed to facilitate political parties, mass mobilization. In a word, Democracy. It's designed to actually make the world safer. A kind of Jefferson's democratic vision. And so it fits our story of populism. It's about actually encouraging energetic elections and broad political participation. That is one other thing, as well. So Jefferson very much is a small d democrat and he's about national security. He's going to, going to acquire Louisiana, so he's fixed with that story of national security and democracy, but he's also pro-slavery. He talks an anti-slavery game, but he doesn't free his slaves. He pursues pro-slavery policies and here's what I want you to notice about these two elections. It's North against South both times. That's the dividing line in America. The dividing line in America is not big states against small states. It's North against South. And some people say oh the electoral college prohibits regional candidates. No, these are regional alignments both times. The Southerner, Jefferson, wins the South both times. The Northerner, Adams, wins the North both times. What's the swing state? New York, in effect, is where north meets South. Today, it's Ohio. Those days it was New York, which was a slave state. New York, in the first election, votes for Adams and the second, thanks to Aaron Burr, votes for Thomas Jefferson. So he wins, it's north against south, and here's what you need to notice. That not only is America divided North against South, but the South, Jefferson's base, his slave-holding base, gets extra electoral votes because of slavery, three fifths clause. Adams understands and all of his supporters understand. That without those extra electoral votes in the 1800's, he would have won even the election of 1800. Thomas Jefferson is ridding into the Executive mansion on the backs of his slaves. The electoral college is a pro-slavery institution, and it has some flaws and they modified them with the 12th amendment but they don't fix the proslavery flaw. They build that. They, they continue to perpetuate that pro-slavery flaw, that 3 5ths into article to in the, in the, in the electoral college. So an here we conclude. Because of the 12th amendment, we're going to have a pro-slavery Presidency. It's more democratic yes. Political parties are o.k., but it's going, we're going to move from Jefferson to Jackson. Very pro-slavery. His party is going to dominate. The dominant political party in America is the, the Democrat parties and they're the pro-slavery policies. They're going to put pro-slavery people on the Supreme Court, like Roger Taney on the Dred Scott case. And the war will come as a result of it. Here's the ultimate irony, a 12th amendment designed to pri, privilege Jefferson's party, they called themselves the Republicans, will many years down the line, in 1860, these rules about the electoral college are designed basically to prop up Jefferson's Republican party. Will end up favoring, which is a pro-slavery party, they, they later call themselves the Democrats. These rules of the 12th Amendment designed to prop up that party will eventually come to benefit a man named Abraham Lincoln. A very different kind of Republican. An anti-slavery Republican. And when he gets elected as the first openly anti-slavery president in American history. Sort of despite the rigging of the game in Article II against, sort of, his worldview. Against the Northern worldview. When he comes to power, contesting Dred Scott, which has been handed down by Roger Tawney, appointed by Andrew Jackson, sort of a Jeffersonian disciple. When Lincoln comes to power, the 12th Amendment is going to be followed eventually by a 13th Amendment. The pro-slavery 12th Amendment is going to be followed by an emphatically anti-slavery 13th Amendment, because in between, the house divided will fall. There will be a Civil War and in its wake, the Union will be rebuilt. A new house will emerge. That's the story for next week. So I hope I see you then. Bye. [MUSIC].
