For protestants. Then there was a provision, excessive bail ought not to be required nor excessive fines imposed for crucial and unusual punishments inflicted. This was saying the english legal system could not crush a person financially and it could not torture a person. And these were obviously principles that would march on. In the next century after american independence states passed their own bills of rights and the most famous of them was by the largest most important state that was virginia in the spring and summer of 1776 known as the declaration of right. And the man who wrote this was george mason. Now george mason, he was an interesting character. He was a planter, he was a neighbor of George Washington, the two of them hunted foxes together. He has a beautiful house, gunston hall, which is opened to tourists in virginia. It has just a lovely great hall that he commissioned and a lot of men of the founding generation deplored any expression of ambition. You werent supposed to be ambitious and you certainly werent supposed to show it. The ideal was the roman hero who left his plow to fight for rome and after the threat passed he went back to his farm and yet we see that a lot of these men, they held office, they ran for office, served in the army, had commanding positions in the army, george mason actually seemed to believe it. He talked the talk of no ambition and he also behaved that way. He did not like to hold office, he held it on rare occasions, when he was called in 1776 to be in the new postindependence Virginia Legislature he went and he took the job of writing a declaration of rights but he complained that the committee would have useless members who would make a thousand ridiculous and impractical proposals. So he was going to write it all himself. And he did and he did a very good job. He called for speedy trials by juries in criminal cases. So its not just trial by jury but speedy trials. And also trials in civil suits. He copy it had english bills of rights language on excessive bails and fines and cruel and unusual punishments. He condemned gin warrants that allowed searches without evidence of particular offenses. So in other words, if youre going to search a mans house you have to say what youre looking for. You cant just go in the house and see what crimes he may have committed, you have to have a warrant that specify what is you are likely to find or what you think youre likely to find. Mason praised freedom of the press, he praised militias composed of the body of people trained to arms and he also called for the fullest toleration of religion. Now there he accepted a correction from one of his committee members, this was 25yearold James Madison. And the language of fullest toleration comes from john lock and its a liberal sentiment for the late 18th century. But James Madison did not think it was liberal enough. He had been a defender of virginias religious minorities already for two years as early as 1774 when hes 23 years old. Hes enraged by the treatment that virginias baptists are suffering at the hands of the established episcopal majority. Hes not a baptist himself but it disgusts him that men are being imprisoned for their convictions. He argues about it with his friends, probably with his father who was a vestryman and when he is on the committee to write the declaration of rights he insists that the language be changed to all men are equally entitled to the free exercise of religion. So its not just toleration its an entitlement. You dont have it because someone allows you to have it, you have it because you are entitled to have it and its the free exercise of religion, not just worship. Its broader than worship. Its the free exercise of your religion. So this was a world historical shift in the understanding of religious liblerty in the virginia declaration of rights. This was approved in june, 1776, three weeks before the declaration of unleindependence. So now lets go back to 1787 and philadelphia. Why, with all these precedents had the Constitutional Convention not written a bill of rights . Well, certainly by the time george mason spoke they were all tired and they wanted to get home but justifications were given when the constitution went out to the states for ratification. One of the first states to ratify at the end of 1787 was one of the largest, pennsylvania. And that was a very rough ratification process. The supporters of the constitution had the majority, they knew it, they wanted to vote the thing through and get it done. When antifederalists tried to deprive them of a quorum they sent people out to snatch them on the streets and hustle them into the room so they could be counted. It was bare knuckle hard ball politics. There was one supporter of the constitution, a scottsman originally a lawyer now . Philadelphia who gave some intelligent and long defenses of the constitution. And one of the things he defended was the absence of a bill of rights and the argument he made was that the english bill of rights and magna carta had all been carved from a background of royal power. England had a king so therefore you needed statements of what the king could not do to the people but, said wilson, in the United States power remains in the people at large and by this constitution they do not part with it. So the implication was the people will not oppress themselves therefore we do not need a bill of rights in the new constitution. Another defense of an absence of a bill of rights was offered by Alexander Hamilton in new york and he did this in the secondtolast federalist paper, federalist 84. And here hamilton said mason had said power rather wilson said power remains with the people. But what hamilton said in federalist 84 is that there is no power to do the things that the supporters of the bill of rights fear. He said why declare that things shall not be done which there is no power to do . And the example he used was freedom of the press. He said if you say that the press shall not be restrained, couldnt that give someone the idea that maybe it could be regulated . In other words if you draw a line, arent you tempting people to come right up to that line . Isnt it better to just leave the whole subject alone . Now that could sound like too clever by half argument but that is the way lawyers think and its [ laughter ] and its certainly the way ambitious men think so it was an interesting argument that hamilton was making. A third man who defended the fact that the constitution had not included a bill of rights was James Madison and he did it in letters to his best friend, mentor, Thomas Jefferson. Jefferson was in paris when all this was going on and he and madison wrote back and forth. Madison was keeping him informed of the new constitution. He was also keeping him on board. Madison agreed with jefferson, he admired jefferson. I think he was charmed all his life by the lightning flashes of jeffersons mind but he also knew that lightning was uncontrollable so there were occasions when he had to guide jefferson and prompt him and bring him back down to earth. We can see madison trying to do it about the bill of rights. He wrote jefferson and says virginia has a bill of rights which, of course, jefferson knew. Madison helped write it. But he said that i have seen the bill of rights violated in every instance where it has been opposed to a popular current. In other words, its in the virginia constitution but the Legislature Just goes ahead and violates it wherever the people are in favor of it. He said its only a parchment barrier. The only security for peoples rights would be the structure of government, what we now call checks and balances. Well, jefferson wasnt having any of it, he kept responding to madison saying that a bill of rights was something that every people was titled to have from every government. He used a metaphor drawn from architecture, which is one of the subjects dearest to his heart. He said a brace will often keep up a building which would have fallen without it. So you may think youre build is strong but put up an extra brace. Just do it. That will help keep the thing up. There were other forces working on madison and one of them was the states baptists, his old political allies and they were alarmed there was no guarantee of religious liberty in the constitution and they knew madison was their friend and madison knew that they were his allies but they shared their concerns with him. They told him that they were upset and he paid attention to them. He also had to Pay Attention to a man he didnt particularly like, who was Patrick Henry. Now, Patrick Henry was brilliant. He was patriotic. He was eloquent. Madison and jefferson were certainly brilliant and patriotic and jefferson was eloquent on the page but neither of them were great speakers. Patrick henry was the greatest speaker of the late 18th century and jefferson and madison did not like him. Patrick henry seized on the lack of a bill of rights. He said a bill of rights may be summed up in a few words so why not write them down . Is it because it will consume too much paper . [ laughter ] and henry made many, many, many arguments to this effect. So madison, although virginia does ratify the constitution by the summer of 1788 its the 10th state to do it and the margin is very narrow, there are 180 some delegates in the Virginia Convention and it passes by a margin of only 10. And it passes without any conditions. Its a full ratification. But it does say that there ought to be a bill of rights added, that it should be the first order of business of the new congress to add a bill of rights and other states have made similar provisions in their ratification debates, massachusetts, another one of the three largest states had done so, so had several other states, so James Madison is elected to the First Congress which means here in new york in the spring of 1789 and one of the top items on his agenda is to get a bill of rights through congress in that first year. Now there are a lot of potential rights to choose from. When virginia approved the constitution, they added a list of 20 rights that they would like to see ratified. 20 changes. Most of them rights. New york had a list of 33, and there were other suggestions that came in. Madison had to deal with two sorts of skeptics. There were a number of the members of the First Congress who said the constitution was brandnew, shouldnt we let it operate for a while and well see what we need to do. A more dangerous kind of swekepc were opponents of the constitution, they were unhappy it had been ratified and what they wanted were structural changes to the document. Madison was determined to keep those out. He thought the balance of power in the constitution between divisions of government and between the federal government and the states, he thought that had been very well arranged. He wanted that to stay. But he was determined to have a bill of rights added. So, thanks to his persuasion, congress forms a committee, which meets in the summer of 1789, and madison has a list of rights. Many of them incorporate these provisions that ive discussed from virginia and from england. Theyre not quite what we got in the first ten. Madison has them in different order. Some of them were taken apart, some of them were joined together. He also wanted to add to the preamble. He had a statement that all rights come from the people and that people always have a right to change their form of government. He also thought that the addition should be incerted at the constitution in the relevant places. He lost fortunately, i think, on both of those. Roger sherman who was in the First Congress, said if we change the preamble, it will injure the beauty of the preamble we have. He said lets put all the changes at the end. So congress the house comes up with a list, they send it to the senate, then the two the two houses dicker over it and a list of 12 amendments goes out to the states for their consideration. Now, the first one of these has to do with the size of congressional districts. It never passes and this is a question that congress has simply addressed by legislation. I think the size of a house a district in the house of representatives was the represented 30,000 people and obviously as the country grew, the size of districts had to expand or wed have thousands of members in the house. But this has all been done not by an amendment, but by congress simply passing a law. The Second Amendment had to do with congressional pay raises, and it said there could be no pay raise until after the next election of representatives. So in other words if youre a congressman, you cant vote a pay raise that youre going to get until you face the voters. All right . So now this, it was ratified by a number of states, and then it stalled out, and then in 1978, a college kid at the university of texas at austin noticed that this potential amendment was still floating out there. It had some states had ratified it so he began a letterwriting campaign to state legislato legislators, and in 1992, this amendment was finally ratified. It became the 27th amendment. So, it had a 203 year path into the constitution. That is still the record. Then there were amendments 3 through 12, which i will talk about i will identify by the numbers we know them as, 1 through 10, but originally, they were 3 through 12. And what we have is a review and kind of summary of what has gone before, plus some new provisions. The First Amendment is an omnib o omnibus, that prevents congress from exercising freedom of speech and religion, or the right to potential to assembly for the assemble of grievances. That was a little bit more recent. The Second Amendment broadentd e right to bear arms from pr prodistants. The Fourth Amendment described the proper scope of warrants. The sixth and seventh amendments said there should be jury trials in both criminal and civil cases and said criminal trials must be speedy. The eighth amendment simply repeated the language of the english bill of rights and of the declaration of the bill of rights about excessive bails and fines and cruel and unusual punishments. The other of the first ten amendments broke new ground. The third amendment addressed a grievance from the colonial period. It said it regulated the armys power to quarter soldiers in private homes and said it had to be done with the owners permission in times of peace and had to be prescribed by law in times of war. In other words, even in times of war the army just cant come to your house and say, were sticking a platoon in here. There has to be a law passed to allow it to do so. The fifth amendment is a great omnibus. Is concerns grand jurys for infamous crimes. It says that people should not be subject to double jeopardy. You cant be tried twice for the same crime, or you cant keep being tried until youre finally convicted. It forbids self in crimination, and you cannot be prescribed without liberty of law and it says property may not be seized without compensation. This is now what we being of as eminent domain. And then, the ninth and tenth amendments address the concerns that Alexander Hamilton and james wilson, the ninth amendment says, the enumeration of certain rights shall not be construed to deny or disparage others retained by the people. In other words, if we say, there is freedom of the press, you cant creep up to the very edges of that. There are still uninienurated rights to the press and by stipulating something, were not inviting to you come up to the borders of it. The tenth puts in black and white what wilson was talking about. The people and the states retained all powers not delegated or prohibited by the constitution. These amendments were submitted to the states. There was a flurry of approvals by january of 1796 states ratified. New york ratified in february, pennsylvania in march, 1790, rhode island in the summer, and the last two making them ratified were vermont in november 1791 and virginia 17 no 91. Patrick henry said virginia had been fooled and beaten, meaning he had been fooled and beaten. Now, the for the longest time, the bill of rights was not referred to in legal cases. There was a reference to the bill of rights, a bill of rights, in an 1810 decision by the Supreme Court, fletcher versus peck. This is one of chief justices marshalls great decisions. And he said there was in the constitution a bill of rights for the people of each state, but what he was talking about was article 1, section 9. And in his mind, the bill of rights was the provision that no state shall pass a bill of attaineder, an expost facto law, or a law of contracts. We just dont think of that when we think of the bill of rights. Why would marshall say that . He was a smart, thoughtful man. And the best i can come up with is that these are, in a way, even broader provisions than the ones that are in the bill of rights. These are very sweeping prohibitions. A bill of attainder forbidding bills of attainder means you cannot pass a law criminalizing a person. You have to criminalize an act, not a person. You cant pass a law criminalizing syed farook. You can pass a law criminalizing murder. You cannot pass laws that criminalize people. Very sweeping prohibition. You also cant criminalize acts that were legal when they were committed. You know, if murder hadnt been i i illlegal after somebody commits mass murder you cant pass a law and say, that was illegal. You cant do that. You cant criminalize the past. You have to pass the laws and then whatever happens in the future can be dealt with. And then the right of contracts, you cant pass a law impairing the obligation of contracts. Well, that is a little more specific. Were talking about something as specific, say as freedom of speech, but if you think about it, i mean, how many times do we enter into contracts versus how many times we make speech, that government might prohibit . I mean, even contentious people in the audience. Think about it. Maybe you argue with your family or whatever, but its not that often compared with all the contracts you enter into every day. So marshall is saying, no, this is the bill of rights. This was the bill of rights that was in the constitution before any amendments were passed. Its an interesting thought. He also made a ruling in 1833, a case called baron versus baltimore. John baron was a man who owned a wharf in Baltimore Harbor