Documents should include a bill of rights. Mr. Brookhiser explores the conflicting opinions of Founding Fathers george mason, James Madison, Thomas Jefferson and Alexander Hamilton while also addressing how the bill of rights were eventually ratified by the new states. The New York Historical society hosted this hourlong event. So tonights program is James Madison, father of the constitution, and its part of our carl menges lecture series in american history. Id like to thank carl menges for all his support and for helping us to create this series and for all he does as a valued member of New York HistoricalSociety Board of trustees, carl, thank you. [ applause ] id also like to recognize and thank trustees lon jacobs, cy sternberg and all our Chairmans Council members with us for all their great work and support as well, lets give them all a hand, too. [ applause ] so the program tonight will last an hour and include a questionandanswer session and there will be a formal book signing following the program and our speakers books can be found in our museum store and he will be signing on the Central Park West side, and we are thrilled to welcome richard brookhiser, renowned historian and author back to the New York Historical society. Mr. Brookhiser is a Senior Editor of National Review as well as a columnist for american history. In 2004, he acted as historian curator for New York Historicals exhibit Alexander Hamilton, the man who made modern america. And in 2008, mr. Brookhiser received the National Humanities medal. He has also written numerous books on revolutionary america, including the biography of James Madison which is why we have him here tonight. Before we begin, id ask that you please turn off cell phones, Electronic Devices for the duration of the program and now please join me in welcoming rick brookhiser. [ applause ] thank you all for coming. I was just speaking with carl menges and we were remembering that we had first met in 2002 when carl had a program at his alma mater, hamilton college, about Alexander Hamilton, and we were saying we were early adapters and the world has certainly caught up with our interest in that respect. The first 10 amendments to the constitution which we know of as the bill of rights were ratified on december 15, 1791. So that was 224 years ago yesterday. And James Madison was a major player in that story. And you will meet him in the course of the evening. But i want to begin with george mason, another virginian, and i want to begin on september 12, 1787. The Constitutional Convention has been meeting in philadelphia since the end of may with only one break. They have been hard at work. On september 12th, the committee of style gave them the final draft of the constitution. All the provisions that theyd hammered out had been given to governor morris, delegate from pennsylvania, and he trimmed, polished, edited, wrote a lovely preamble and now it was on their desks for their final discussions and fixes. And on that day george mason was recognized and he said we have not written a bill of rights. We havent done it. We could look at the bills of right that the states have in their constitutions. It would only take, he said, a few hours to write one. So Elbridge Gerry of massachusetts moved that there be a committee to do so, mason seconded. There was only one speech by Roger Sherman of connecticut, he said the state bills are still in force, we dont need another one and the vote was unanimous. Every state, including masons and gerrys voted no, to have no committee. So, on september 17th, the constitution was finally fixed, signed and it was sent to congress who would send it out to the states for ratification without a bill of rights. So what i want to talk about tonight is why mason suggested such a thing, why his colleagues, including James Madison, hadnt done it, but how the bill of rights then came to be written and ratified and ill have a few remarks about its later history. Bills of rights were a feature of Anglo American political thought and the beginning of it was said to be the magna carta, the great charter of 2015. We celebrated its 800th anniversary this year and this was a document that was signed by king john. King john was very good at collecting taxes. He was very bad at waging foreign wars. He also had a reputation for cruelty. He probably wasnt crueller than most kings of the middle ages but he had the reputation for it. Winston churchill in his history of the englishspeaking peoples talks about the disappearance of one of johns rivals and he writes that he was murdered by johns orders was not disputed at the time or afterwards. Though whether he was mutilated or blinded beforehand remains unanswered. So the barons of england felt they were oppressed and misgoverned and they were at the verge of revolt. The compromise that prevented actual civil war was the magna carta or the great charter and it is not a bill of rights as we would understand it today. It is a feudal contract between a king and his most important liege lords. It lays out his obligations to them, theirs to him. A lot of it is very detailed on medieval property questions. Theres a lot about forestry law. Theres a whole section on how to deal with wales which had been newly acquired by england. But there were several points that would later on become items of later english and american bills of rights. One provision said that no freeman shall betaken or imprisoned except by the lawful judgment of his peers now freeman there means a nobleman, it doesnt mean a wealthy commoner, even a wealthy one, but this does set up the principle of trial by jury, judgment of his peers. It also says the lawful judgment of his peers so theres an implication of due process of law even as early as 1215. If youre going to be imprisoned or punished you have to be judged by your peers and there has to be some lawful reason for it. Now, there would be many holes in this over the years but this principle is being laid down. Magna carta also says barons can petition to have transgressions regressed. They can go to the king where their petitions, with their complains, and he has to listen to them, doesnt have to answer them, doesnt have to satisfy them but he has to listen to them and that again is a very important point, the right to petition about your grievances. The next step in this history is 1688. We have another unpopular king in england, this is james ii. He was the last king of the house of stewart. He had risen to the throne after the death of his older brother charles ii. Now, charles and james agreed with each other on their policy positions. They were both catholics who were sympathetic to catholicism and they both believed in royal power. But charles was charming, cautious and lucky, and james was none of these things. Charles only converted to catholicism on his deathbed. And although he had 20 children, none of them were legitimate so he wasnt going to pass on anything to his heirs. One of his his most popular girlfriend was the actress nell gwynn and she stopped a mob which was attacking her carriage by crying out good people, im the protestant whore so they left her alone. [ laughter ] now, james was an honest, earnest and forthright adult convert to catholicism and he also had a son. Now in england in 1688 meant the spanish armada and louis xiv. The spanish armada was history but louis xiv was very much alive. And england could swallow a Catholic King but they could not swallow a string of them. So after james had a son in 1688 the nation rose up and offered the crown to william of orange who was james nephew and soninlaw. Hed married his elder daughter mary. The family the house of stewart was sort of like sopranos in turn of its internal dynamics. And william accepted as a condition of being king of england a bill of rights which parliament passed in 1689. These were going to be the rules for his rule, he was announcing that these were the principles that would guide him. And this was an advance on the magna carta. The right of petition was extended beyond barons, trial by jury was reaffirmed, especially in trials for high treason. The english bill of rights guaranteed freedom of speech in parliament and the right of protestants to have arms for their defense. Now, one of the fears about james was that he was filling the senior ranks of the army with catholic officers and people feared that there would be a religious coup so the right to bear arms was put in writing for protestants. Then there was a provision, excessive bail ought not to be required nor excessive fines imposed for crucial and unusual punishments inflicted. So, this was saying that 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, they served in the army, they 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 copied the english bills of rights language on excessive bails and fines and cruel and unusual punishments. He condemned general 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 specifies what 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 liberty in the virginia declaration of rights. This was approved in june, 1776, three weeks before the declaration of independence. 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 hustled them into the room so they could be counted. It was bare knuckle hard ball politics. There was one supporter of the constitution, james wilson, a scotsman originally a lawyer in 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 his 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 well 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 . That can sound like a too clever by half sophistical argument, but thats the way lawyers think. And its certainly the way ambitious men think. I think 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. He did it in letters to his best friend mentor Thomas Jefferson. Jefferson was in paris when all of this was going on. And he and madison wrote back and forth. Madison was keeping him informed of the new constitution and 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 he had occasions where 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, virginia has a bill of rights, which of course jefferson knew. Madison had 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 goes ahead and violates it whenever 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. Jefferson wasnt having any of it. He kept responding to madison saying that a bill of rights was something that every people was entitled to have from every government. He used a metaphor drawn from architecture, one of the subjects dearest to his heart. He said, a brace will often keep up a building which would have fallen without it. You may think your building is strong, but put up an extra brace. Just do it. It will help keep the thing up. There were other forces working on madison and one of them was the states baptists, his old allies. Old political allies. And they were alarmed that there was no guarantee of religious liberty in the constitution. And they knew that 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. And 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 few words, why not write them down. Is it because it will consume too much paper . And henry made many, many arguments to this effect