The Bill of Rights is the first ten amendments to our Constitution. Why do we have one? What does it 'do'? And what does it really, really do?
Our guests are Linda Monk, Alvin Tillery, David O. Stewart, Woody Holton, David Bobb, and Chuck Taft.
Each Amendment could be (and has been) its own episode. Except maybe the Third Amendment. So if you don't know them by heart, take two minutes to watch the video below.
Want to play Bill of Rights: Survivor? Chuck Taft has shared his lesson plan here.
We have spent more time on the Library of Congress’s primary source page than anywhere else during this series, click here to see the original proposed amendments, Jefferson’s ratification tally, and a lovely illustration of a tub to a whale.
Have a civics question you want answered? Let us know in the form below and we'll try to answer it!
NOTE: This transcript was generated using an automated transcription service, and may contain typographical errors.
Founding Documents: Bill of Rights
[00:00:00] Civics 101 is supported in part by the Corporation for Public Broadcasting.
Chuck Taft [00:00:04] Hi this is Chuck Taft at University School of Milwaukee. I'm unable to get to the phone right now so if you would please leave your name number. Brief message and most importantly your favorite person in American history. I'll get back to you as soon as I can. Thank you.
Hannah McCarthy: [00:00:18] Who is this Chuck Taft?
Nick Capodice: [00:00:19] He's a high school history teacher. And I called him up because he plays this game with his class called Bill of Rights survivor.
Hannah McCarthy: [00:00:28] How on earth do you play that.
Chuck Taft [00:00:33] So Bill of Rights survivor is obviously based on the fantastic reality TV show Survivor of which I'm a big fan. The idea is that we're going to use amendments two through ten and then students are going to try to figure out which amendment should be the sole survivor a Bill of Rights island.
Hannah McCarthy: [00:00:50] Does he give the kids torches?
Chuck Taft [00:00:53] I do actually. You know the little LED candles, and then I have a Bill of Rights mug. I also hide immunity idols in the room. Like two little bits of paper.
Nick Capodice: [00:01:04] The students are assigned amendments and they present speeches as to why theirs is the most important. Everybody votes the losing amendment is called up to the Bill of Rights mug.
Chuck Taft [00:01:13] And I say you know that the tribe has spoken
Nick Capodice: [00:01:19] It's time for you to go. Seventh Amendment.
Hannah McCarthy: [00:01:21] This is so excellent. I imagine the students will walk away with this profound love and respect for the Bill of Rights.
Nick Capodice: [00:01:29] They do. But there's another teacher that I adore, Woody Holton from University of South Carolina.
Woody Holton: [00:01:35] I want you to call me Woody if you don't mind but my legal name is Abner. He's in the Bible and he killed his father. So who gives that name to their son. I play an obnoxious game with my students when I ask them "OK tell me specific things, don't talk in generalities about liberty and freedom, be specific. What specific clauses of the Constitution do you like." And they'll say freedom of speech or they'll say everybody can vote or they'll say gun rights or no unlawful search and seizure and then I get to say, you know the things you just named as being great about the Constitution? None of this is in the Constitution. None of them is in the document that the Framers adopted on September 17th 1787. None of them are reasons that they were there, or they would have put those things in it.
Nick Capodice: [00:02:32] Today on Civics 101 in our founding documents series, we are finally getting to you. And we're talking about the Bill of Rights.
Nick Capodice: [00:02:40] I'm Nick Capodice
Hannah McCarthy: [00:02:41] And I'm Hannah McCarthy.
Nick Capodice: [00:02:42] And before we get into how it was created or how it affects our lives let's be clear about what it is. The Bill of Rights is the first 10 amendments to the U.S. Constitution written by James Madison, ratified December 15th 1791. And you know them all by heart right.
Hannah McCarthy: [00:03:02] Of course.
Nick Capodice: [00:03:02] If you don't, it's real easy to fix that. I looked at a bunch of mnemonic devices for how to memorize the first ten amendments and my favorite by far involves waving your hands around. Which is not good for radio, but Hannah and I made a video of it. Go to our website civics101podcast.org and check it out. Let's begin in that sweltering room in Philadelphia. David O. Stewart, author of The Summer of 1787 told me about the great debates over the Bill of Rights at the Constitutional Convention.
David O. Stewart: [00:03:32] The debate about the Bill of Rights actually never happened. It wasn't discussed through most of the summer. It was not something that they thought was terribly important. A few other states had constitutional provisions that declared rights. Virginia did. And it was widely thought to be sort of eyewash. It was something you did that made everybody feel better, but it didn't really make much difference. And they didn't worry that the national government would create risks to people's liberties.
Nick Capodice: [00:04:05] However the idea of a Bill of Rights was brought up at the convention. But truly at the 11th hour.
David O. Stewart: [00:04:12] In the last week of the convention there were two delegates George Mason of Virginia and Elbridge Gerry of Massachusetts who were known to be unhappy with the Constitution, with lots of features of the powers of the Senate the powers over trade, and suddenly they stand up. And working with each other, obviously they had cooked this up ahead of time, they move for the inclusion of a bill of rights. One of them actually says we could put this together in an afternoon. Which is a little ambitious. And most of the other delegates saw this for what it was which was it was a stall.
Nick Capodice: [00:04:51] They had been in this hot sealed up chamber with boards over the windows for months. And they did not let this diversion of a Bill of Rights scuttle the whole thing. And this feeling that it wasn't really needed is echoed by James Madison and Alexander Hamilton. Hamilton's Federalist 84 says Bills of Rights "are not only unnecessary in the proposed constitution but they would be even dangerous."
Hannah McCarthy: [00:05:14] You said Madison wrote the bill of rights. But he didn't want a bill of rights?
Nick Capodice: [00:05:19] Not in the slightest. He did not think it was essential to a new nation and even referred to the act of writing it as a "nauseous project."
David Bobb: [00:05:29] The fundamental point that James Madison made is that the Constitution itself was really the structural guarantee of our rights.
Nick Capodice: [00:05:40] This is David Bobb. He's the president of the Bill of Rights Institute and the author of Humility an Unlikely Biography of America's Greatest Virtue.
David Bobb: [00:05:48] Alexander Hamilton wrote the Constitution itself is a bill of rights. In other words all of those kind of things that can be considered not quite as exciting: the separation of powers, federalism, these sort of guarantee the structural part of the Constitution, that's the mainstay of our liberty. Of course Madison was very aware that the people's rights need to be protected but that was mainly the job for the states.
Nick Capodice: [00:06:20] Remember Hanah all these states had their own constitutions many of which had their own bills of rights.
Hannah McCarthy: [00:06:25] Right. So they're arguing that all of the states have them, so why does the federal government need one too.
David Bobb: [00:06:32] The other reason that Madison was not for the Bill of Rights was a kind of practical one. And that is, if you write those rights down and separate them out and say boy this is this is really important. This is this is the statement. This is the place you go to find all of your rights here. What if one of them is not on that?What if what if a right that you do possess is not listed there? Does that mean that it's not a right?
Hannah McCarthy: [00:07:00] Those are some pretty strong arguments.
Nick Capodice: [00:07:02] They are. But in the end they don't work. The constitution had been sent to the states where they had ratification conventions to decide if they're going to go along with it. Delaware ratifies first with a unanimous vote in Congress on December 7th. Then Pennsylvania, New Jersey, and Georgia ratify right after. But then we have a nailbiting lull during the year 1788.
Linda Monk: [00:07:25] These ratification conventions were big deals. And during that process of repeated theme is why is there no Bill of Rights.
Nick Capodice: [00:07:33] That's Linda Monk, the Constitution Lady and author of The Bill of Rights: a User's Guide. The people were calling for one.And this terrified the pro ratification federalists.
Woody Holton: [00:07:44] Madison in particular saw that as a plot to derail the constitution because people are saying hey you guys got to go back to Philadelphia in the summer of 1788 and write in some some civil liberties and maybe we'll ratify your constitution and the people who wanted the constitution were afraid that would lead to more controversy and the Constitution would never be ratified. And so they fought tooth and nail against a bill of rights. Not because they were opposed to civil liberties but because they were afraid that would gum up the works and prevent the original seven articles of the constitution from being adopted. But starting in Massachusetts in February 1788 and then in several other states including my original home state of Virginia and the state of New Hampshire all said OK we're going to go ahead and ratify the constitution but only with the understanding that if you don't add that, you'll add a bill of rights and if you don't add a bill of rights we can always call a second convention.
Hannah McCarthy: [00:08:51] Wait so they say give us a bill of rights or we'll call another convention to write a whole new constitution.
Nick Capodice: [00:08:58] Yeah and most of them did not want to do that. It was so hard to get the first one written.
Woody Holton: [00:09:02] The first Congress came in. Has a federalist majority. The majority of them don't want a bill of rights. But James Madison convinced his fellow federalists hey you know what we better give them a bill of rights before they give us one.
Linda Monk: [00:09:19] These states some of them will say OK we're going to trust you to put in a Bill of Rights and we'll go ahead and ratify it now. A state like North Carolina said no we don't trust you we're not going to ratify this until you've added the Bill of Rights. And so when Madison's running for Congress in his State of Virginia he takes the stand that if he is elected he will move to propose a bill of rights in the new Congress and that's what he does in 1789.
Nick Capodice: [00:09:50] Nauseous project or not. Madison is true to his campaign promise. Cause more than anything he just wants that constitution to be ratified. And if the people are crying for a bill of rights not only will he make one, but he'll ask every state what they think should be in it and he sits down and he makes his first list.
David Bobb: [00:10:11] The list that he came up with was more than 200.
Hannah McCarthy: [00:10:13] 200?
Nick Capodice: [00:10:14] 200!
David Bobb: [00:10:15] 200 total yeah. Because there are a lot of states that have pulled together lists that were long. And they had some that were more detailed than others. And Madison again with that kind of mind that wanted to lend some order to these kind of things, no way that you can deal with 200. You can hardly deal with 20.
Nick Capodice: [00:10:32] And then there's the question of where to put these rights. Madison initially wants them to not be a separate thing. He wants to write them into the Constitution.
Hannah McCarthy: [00:10:41] He wants to just change this document that these men sweated over for four months.
Nick Capodice: [00:10:46] Yeah, and Congress says heck no, we have a constitution already. But Roger Sherman of Connecticut had an idea.
Linda Monk: [00:10:54] And in fact it's an enemy of Madison's who proposes that maybe we should put all the amendments at the end. During the process that they propose they are referred to as amendments, not a bill of rights. Madison says there are amendments like a Bill of Rights because at the end of the process they all came together, after they were ratified, it was 12 amendments submitted, ten got ratified. At that time they became known colloquially as the Bill of Rights.
Hannah McCarthy: [00:11:27] Wasn't that the official term for it?
Linda Monk: [00:11:30] Well there is some debate about that Polly Meyer the late and very esteemed scholar raised some questions about that. Well was it actually called a Bill of Rights. I I I take a little exception of that, sometimes you don't have to give a name it's, give a document its formal name for it still to be that. I mean it still operates as what we think of and call a bill of rights.
Nick Capodice: [00:11:58] So we start with 200 and when the smoke clears we end up with 10 nice round number. The first are great civil freedoms; speech, religion, press, petition, assembly. The second and third are about militia and conditions under war, and the 4th to the 7th are about the right to the criminally accused.
Hannah McCarthy: [00:12:17] So a full half of the first ten amendments are about the rights of the accused.
Nick Capodice: [00:12:22] That's right.
Linda Monk: [00:12:23] You think why did the framers put that much emphasis on the rights of the criminally accused. And when you think about it you know why, it's because they were criminally accused. They were very aware of when you have the power of the whole government going against an individual who's accused of a crime.
Nick Capodice: [00:12:42] The ninth answer is Madison's fears of missing rights that just because a right isn't listed here that doesn't mean you don't have it. And then the tenth, that any power not given to the federal government is given back to the people or the States.
Nick Capodice: [00:12:55] And on December 15th 1791, Virginia becomes the 10th state to ratify the bill of rights adding it to our recently ratified constitution. And there it is, right?
Hannah McCarthy: [00:13:07] That's it? What is it like 15 minutes?
Nick Capodice: [00:13:10] Well. I think it's time we bring up the tub.
Hannah McCarthy: [00:13:17] What tub??
Woody Holton: [00:13:17] A tub to the whale.
Nick Capodice: [00:13:21] This is Woody Holton again and he's quoting a whaling term used by an anti federalist to describe the bill of rights.
Woody Holton: [00:13:29] Somtimes you know you're going after one of these big toothed sperm whales and the whale turns on the ship and it can sink the ship just like in Moby Dick. They had these big washtubs big wooden washtubs and they were thrown overboard. In hopes that the whale would attack the tub instead. So it's it's sort of a diversionary tactic. And it's amazing how many of the people who had opposed the Constitution saw the Bill of Rights as written as a tub to the whale. They wanted structural reforms. The largest number of them thought that the Constitution made the federal government too strong. And structural reforms to the Constitution were the last thing that James Madison wanted. He liked weakening the states. He was a strong national government guy and so he didn't want to shift power back to the states and he was also an anti democratic guy and he didn't want to shift power back to the people either. So he didn't want to give the critics of the Constitution the big stuff that they wanted. So instead he gave them some things that he saw as innocuous.
Nick Capodice: [00:14:45] Nobody was challenging gun rights at the time. Nobody thought there was an imminent threat to freedom of speech or religion.
Woody Holton: [00:14:52] They threw in all these things that to them seemed almost trivial. And that's the tub to the whale. And let's get people to adopt that bill of rights so we don't have to adopt a bigger bill of rights that returns power to the states and to the people. And certainly when I ask my students what they, what they like about the Constitution, they name the things in the washtub rather than the ship of state.
Hannah McCarthy: [00:15:18] OK. But regardless of whether the framers thought those rights were trivial, they were ratified. They have become a part of our Constitution and they helped define us.
Nick Capodice: [00:15:30] I agree they do help define us. They are, much like the Declaration of Independence, big ideas that you can hang your hat on. You can sink your teeth into. But there's an ongoing discussion about how they actually affect our lives.
Alvin Tillery: [00:15:47] First of all there's this debate right. There there's the Elkins and McKittrick view in history that's the Bill of Rights is a net gain for citizens in the United States because they've created a bundle of federal rights where the federal government can't trample on you.
Nick Capodice: [00:16:06] This is Alvin Tillery. He's the Director for the Center of the Study of Diversity and Democracy at Northwestern.
Alvin Tillery: [00:16:11] And so that's a net gain for citizenship even though your states can still trample on you your state can have a state religion like in Maryland. Your states can restrict your property. So but, but. To have the federal rights is a net positive in 1787. Right. Then there's the Charles Beard view which is you know all these guys are grifters. You know, the urbanites like you know are grifters and the planters are grifters. And what they've done is make sure that Shays' Rebellion never happens again. And so the Bill of Rights is a nice sort of thing to hang on your wall and make you feel like you're an American citizen. But it doesn't really affect your daily life because you know your state can still do really horrible things to abridge your freedom.
Nick Capodice: [00:16:59] And this is like the crux of the whole thing, Hannah. The Bill of Rights initially did not apply to the states. And what this meant for you as an American was that while the federal Congress couldn't pass a law abridging your freedom of speech freedom of religion your state could. And the Supreme Court even upholds this in a case of 1833 called Barron v. Baltimore. It's not until nineteen twenty five that the Supreme Court rules that via the 14th Amendment, the Equal Protection Clause, the Bill of Rights does apply to the states. But it's not all at once. It's called selective incorporation. Piecemeal, one at a time, these amendments are incorporated into state laws.
Linda Monk: [00:17:43] With any of these rights the way they were developed, say freedom of speech. The Supreme Court didn't even get involved with freedom of speech cases really until the labor movement brought a lot of those cases to the courts. And that's when finally the court would hold that, yes, these Bills of Rights actually apply to state laws too. You look at the civil rights movement, same thing. When, when the Supreme Court rules that desegregation must come to an end, did that happen in 1954? No. There was massive resistance from the states. It took movements of citizens, great movements of citizens to finally have some of those protections apply.
Hannah McCarthy: [00:18:28] This is kind of crazy to me. So are you saying that the Bill of Rights, which was written to kind of answer all of these concerns about the Constitution, you know denying states and individuals their rights, didn't actually apply to the states, it only applied to the federal government until 1925?
Nick Capodice: [00:18:52] Do you know the no excessive fines or bail from the Eighth Amendment?
Hannah McCarthy: [00:18:55] Yeah.
Nick Capodice: [00:18:56] We are recording these words on February 20th 2019 and that was incorporated this morning.
Hannah McCarthy: [00:19:04] So was the Bill of Rights as it was written in the 1700s kind of meaningless?
Nick Capodice: [00:19:10] I was scared to even say that thought out loud. But it is a fact that the Bill of Rights just didn't have much judicial impact for 150 years. The historian Gordon Wood said that "after ratification most Americans promptly forgot about the first ten amendments to the Constitution." In 20th century America, legal immigrants were deported for their politics. People in police custody gave forced confessions. Racial segregation was legal. So I asked Alvin about where he stood on this. Is the Bill of Rights a net gain or is it a bunch of grifters throwing out a washtub?
Alvin Tillery: [00:19:47] I think it is great. I think it was,, you know I think I'm closer to Elkins and McKittrick, and I think it was great when it, when it when it happened. When it was, when it was written into the documents. I think the ideals were always good and valuable but it took the culture time to catch up. And it took thousands and thousands of people putting their bodies and souls on the line to convince the power structure, which is very conservative always, that they should make good on these, the text of these charter documents, right? But the framers knew that they were being hypocritical when they were writing these documents. They absolutely knew it. And that's why the framers didn't allow Jefferson to say you know you forced us to have slavery. They knew that that wasn't true. Right? But they made a Herronvolk, master race democracy for themselves and it took an evolution in this country to undo it. And now it's going to take an evolution to preserve it, because we do have powerful forces that would like to return us to a master race democracy. And that's that's unfortunate but true.
Linda Monk: [00:21:04] My favorite quote, it's one I discovered in law school. It's the one I still stand by. It's by the great Judge Learned Hand. He says, "I think we place too many hopes in laws and courts and constitutions. These are false hopes. Believe me these are false hopes. Liberty lies in the hearts of men and women. And when it dies there, no law, no court, no constitution, can save it." So ultimately, the Bill of Rights came from us, came from We the People, and it depends on We the People for its protection.
Nick Capodice: [00:21:48] I feel like we've been here a lot of times, Hannah.
Hannah McCarthy: [00:21:50] Yeah.
Nick Capodice: [00:21:51] Pretty much every episode. These documents initially didn't apply to everyone. And they may have flaws. But through sacrifice and through the actions of citizens they become something greater.
Hannah McCarthy: [00:22:05] It's like this idea of "no man being above the law" or the words "We the People" or "All men are created equal." The true power of these words is not given by the government. It has to be fought for by the people. We have to rise up to wield it.
[00:22:40] Today's episode was produced by me, Nick Capodice with Hannah McCarthy.
[00:22:43] Our staff includes Jacqui Helbert Daniela Vidal Alee and Ben Henry. Erika Janik is our producer.
[00:22:49] Maureen McMurray is in charge of putting a hole in the washtub.
[00:22:52] Music in this episode by Music in this episode by:
Blue Dot Sessions
Super special thanks to the very first teacher to talk to me for this series and tell me about the bill of rights, Nate Bowling. He's the host of the Nerd Farmer, a delightful podcast where nerdy civic stuff that we love mingles with politics and shade. Last but not least, Chuck Taft, creator of Bill of Rights Survivor is willing to share that with the world. If you go to our Web site civics101podcast.org Where you can see his lesson plan and PowerPoint. Civics 101 is a production of NHPR, New Hampshire Public Radio.