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 WashingtonUniversity Law school host its nice to be having this conversation with you. I very much enjoyed reading your book the bill of rights the fight to secure americas 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 selfinterested, no egos and that it became instantly the most important part of the constitution and i thought theres one here thats 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. Its almost as if the books are written to say we by say we have a constitution and everything was fine. But im 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 its 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 isnt 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 washingtons 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 hadnt been sure that they were going to win and then they create this new constitution and this new congress that in fact. It wasnt a done deal they didnt see this as a done deal. We dont 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 dont want to sound but a bad movie creating drama. Host why did your . Guest i did it for a couple of reasons. One, ive spent a great deal of my time in the last ten years doing Faculty Development for High School Secondary SchoolElementary 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, its 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 im 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. Hes just such an interesting man. One of these people absolutely believes they operate on the principles 24 mac seven. There is always a highminded 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 didnt want them separately or as a set of amendments. But its 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. Hes from georgia and hes 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 thats 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 lets turn to the bill of rights. Its 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 cant remember everyones 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 didnt get the give the federal government any authority over any of these issues. All of these are state issues, so its 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 dont 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 wont use them. Madison agreed with all of this. Then he runs for the house and his opponent is james bono. It remains the antifederalist 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 doesnt 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 thats all it is just a piece of paper and i think that madison through much of the period when hes thinking about proposing it thinks the same thing. Its a good idea but it really doesnt 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 antifederalist i dont think this is my view. They understood this was a hot button issue and they could rally support around. Thats what i meant when i said they were politicians. They were not naive. 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 theyve 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 isnt man in tow guys in the Senate Debating highminded 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 weve got 100 but isnt 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 dont 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 . Doesnt mean people dont care about individual rights at the time . Im 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 lets adjourn and lets 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 dont think that they were secure in fact as soon as ratification goes through and at the antifederalists the antifederalists are all going to get elected to the congress and they are going to be defeated in congress it doesnt turn out that way. Thats 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. Dont be ridiculous, we have important things to do thats not necessary anymore. We are in the drivers seat. Madison has to keep pushing and saying the people deserve this. Its 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 dont bother us, we have important things to do. We have to set up the duties and requirements. And its 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. Its 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 didnt support madison. I also get the impression that i cant prove this that they rather enjoy it putting it to the antifederalists 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 dont 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 lets put them in one place and its the senate thats 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 madisons favorite to violate the equal rights of the freedom of the press and the criminal cases and something that i think people still dont 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 doesnt want a branch of the government that represents the state. He wants a National Government and so what hes doing is im sure the antifederalists 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. Its only balanced by the fact that the antifederalists in the house tried to put in the word expressly that isnt 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 couldnt 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 antifederalists 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 antifederalist view of representation. The federalists believed that voters selected the good judgment and patriotism to legislate and it was terribly important that they wouldnt 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 antifederalists 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 didnt 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 theres 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 dont 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 its 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 thats what they meant by a well regulated militia. They see during washingtons 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. So