Bill of Rights

Dr. Lynn Uzzell is a scholar steeped in the foundational principles of America’s constitutional republic. She earned her Ph.D. in politics from the Institute of Philosophical Studies at the University of Dallas and spent four years as a Scholar in Residence at the Center for the Constitution at James Madison’s Montpelier. In this episode, we discuss the Bill of Rights. What they are. Why they are so important. And whether they protect individuals today the way Madison conceived of them.

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SPEAKER_01 0:01

Welcome to Consider the Constitution, the podcast that cuts through the noise and provides insight into constitutional issues that directly affect every American. Hosted by Dr. Katie Crawford Lackey and featuring interviews with constitutional scholars, policy and subject matter experts, heritage professionals, and legal practitioners, we examine the rights and responsibilities of citizenship. Consider the Constitution is brought to you by the Robert H. Smith Center for the Constitution at James Madison's Montpelier.

SPEAKER_02 0:35

Hello and welcome to Consider the Constitution. I'm your host, Dr. Katie Crawford Lackey. Thank you for joining me on this podcast journey from the grounds of James Madison's Montpelier, home of America's fourth president, the father of our nation's constitution. Every time you hit play, you will hear from scholars steeped in the foundational principles of America's constitutional republic. And you'll find yourself connected to your rights and responsibilities as a citizen like never before. To celebrate the anniversary of the signing of the founding document on September 17th, 1787, we are bringing you a special month of programming. It's officially Constitution Month here at Montpelier in Orange County, Virginia. Today, we're considering the Bill of Rights, the first ten amendments to the U.S. Constitution. And our special guest today is a scholar steeped in the foundational principles of America's Constitutional Republic. Lynn Uzel earned her PhD in politics from the Institute of Philosophical Studies at the University of Dallas. She spent four years as a scholar in residence here at the Center for the Constitution. And these days, Dr. Uzel is a visiting assistant professor at Washington and Lee University. Lynn, thank you for joining us as we consider the Constitution.

SPEAKER_00 2:00

Katie, it's an honor. And I want to emphasize, I'm not just saying that. It is an honor to be here at Montpelier, where I spend about four years of my working life. And there is really no other place like it. This is the place where James Madison lived while he was thinking through some of these constitutional principles that we'll be talking about today, and that we never tire about talking. It is a special experience to be in this place.

SPEAKER_02 2:31

And your interview with us really does have added significance given that you've spent so much time here. Now, as we talk about the Bill of Rights, most of our listeners are familiar with the first words of the preamble of the U.S. Constitution. We the people, in order to form a more perfect union. Now, these words set the table for the establishment of America's government and laws while guaranteeing certain basic rights for the citizens of our country. But the first iteration of the Constitution lacked the Bill of Rights. So, Lynn, what are they? And why are these rights so important?

SPEAKER_00 3:11

So a Bill of Rights is something that's very basic. First of all, a bill is just a solemn proclamation. So a bill of rights is a proclamation about what our rights are. What are rights? Well, a right is a sort of lawful authority. It is what we can have a lawful claim to. And when we're in the state of nature, we have a lawful claim to almost everything. As long as we don't trespass against the law of nature, as long as we don't trespass on others' rights, we could do whatever we want. But when we get into civil society, when we form a political union, we give up the right to determine what our liberties are. That gets given up to the legislature. And that is a scary concept that the legislature, by passing laws, can start restricting that total freedom we had in the state of nature. So what a Bill of Rights does is it names certain of our liberties that we don't give up. That we say, we had the freedom to speak whatever we wanted to say in the state of nature. And you know, that's such an important right that we're not going to give it up. We had the right to worship as we thought fit, according to what we believe was the duty to our Creator. And we believe that is an unalienable right by nature. We can't give it up because our duty to God is more important than the duty we owe to civil society. So legislatures cannot restrict that right. Therefore, a bill of rights sets out certain parameters of liberties that we had in the state of nature that the legislature cannot constrain, and other sorts of liberties and rights that were not in the state of nature, such as a jury trial. When James Madison was proposing a bill of rights in the first Congress, one of the things he said was, a jury trial is not a right that we had in the state of nature, but it is formed out of the compact. We have decided that a jury trial is so important for protecting our natural rights that this is something we demand to have if we're going to form ourselves into a political association. Now you brought up a very important point. When the Constitution left Philadelphia in 1787, it didn't have a Bill of Rights. Why was that? A lot of people can be astounded about that, because a Bill of Rights has become the most important and for many people the most cherished part of the Constitution. And they have a hard time understanding why it ever could have seemed like a good idea to have a constitution without one. So I want to say a few words about that. The Constitution that came out of Philadelphia was different from state constitutions or the British Constitution that came before it, for the simple reason that it was a limited constitution. It enumerated the powers of the legislature. And many people thought that the enumeration of powers was itself enough of a limitation that Congress could not infringe upon speech or religion because it's not among the powers that was ever given to it. But the anti-federalists objected to that reasoning. They said that even in the exercise of their given powers, they might find a pretext for encroaching upon the legitimate rights of the people. And therefore, they said, in spite of the enumerated powers, we also want an enumeration of rights. And that's what we got in the Bill of Rights.

SPEAKER_02 6:55

Now, as we stated earlier, we are having this conversation at Montpelier, the home of James Madison. He's known as the father of the Constitution and architect of the Bill of Rights. Can you tell us a little bit about his perspective on the Bill of Rights and how he saw it protecting citizens' rights and if that's something he actually wanted originally?

SPEAKER_00 7:18

That is a wonderful question. So Madison can be described as someone who was against a Bill of Rights before he was for it. And I'm going to give the two faces of James Madison and then I'm going to try to reconcile them. So when he was at the Virginia Ratifying Convention, he came out against a Bill of Rights. Patrick Henry said, we should not accept this Constitution, we shouldn't ratify it unless it has a Bill of Rights. And Madison said a bill of rights was not only unnecessary, but even dangerous. Because if you add a bill of rights, you imply that Congress had powers that the Constitution never gave to it. So not only is it unnecessary, because you don't have to say that the Congress cannot infringe on freedom of press if you never gave them that power. But if you say that Congress does not have the power to infringe upon the rights of press, that seems to imply that it would have had that power if you had not said that. So you burst the bounds of the enumerated powers. That's why he said it was dangerous. Flash forward another year, uh actually I think it's just a few months, and Jefferson had been badgering him. There are like three or four letters from Jefferson saying, Great constitution, but where's the Bill of Rights? You are going to add a Bill of Rights, aren't you? Where's the Bill of Rights? Finally, Madison answers this letter, and in the letter he begins, I have always been in favor of a Bill of Rights, provided it could be done without destroying the enumeration of powers. Therefore, either Madison changed his mind, or he's a completely inconsistent thinker, or sometimes his public pronouncements are done for a particular political effect, for instance, ratifying this constitution, even though it doesn't perfectly express his opinion. Therefore, I think that he was emphasizing the degree to which he thought a bill of rights was unnecessary or possibly dangerous. But later he understood that a bill of rights was anxiously desired by others, and he said that was the main reason he wanted a bill of rights, is because it was so anxiously desired by others. But nevertheless, in this exchange with Jefferson, he gives these four reasons why a Bill of Rights is not as important as people think it is. And then he gives two reasons why it can be efficacious and important. And I'm gonna I'm gonna go just briefly over his reasons why it's not efficacious, and a couple of them have already been stated because it's not needed in this particular limited constitution and that it it has this potential danger. But one of his most important insights comes from the nature of popular government itself. And what he's saying is if we're in a monarchy, a bill of rights is important because this is the kind of intermediary between the people and their monarch. They are making claims against the monarch. The people are, he says, the latent power in a monarchy. In other words, if the people were ever to rise up, they're stronger. But the king is the ostensible sovereign within a monarchy, and a bill of rights stands between the ostensible power and the real power. If you are in a republic such as the States or the United States, the real power and the ostensible power are in the same hands. So what does a bill of rights do? He asks. It really doesn't do anything. It's a parchment barrier because if the people want to transgress those rights, they'll do it. And he says, I've seen this happen over and over again in the state of Virginia, where we've got a Declaration of Rights. It's a beautiful declaration of rights. And whenever the state assembly wants to violate it, it just does. Because they are representing the majority. So the problem in a monarchy is the problem of traditional tyranny. The problem in a republic is the problem of majority tyranny. And a bill of rights, he says, is not going to be very effectual if the majority wants to violate the rights of a minority. But after he goes through this list of reasons why a bill of rights may be inefficacious in the United States Constitution, he then goes into two reasons why it could be efficacious. One of them is the legislature may sometimes be separated from the will of the people. It doesn't usually happen in a republic, but it can happen. In that case, a Bill of Rights might be handy. The other reason he gives, I think is one that's underestimated today. And that is that a Bill of Rights declares our understanding of what people, individuals, deserve within the government. And when these rights are declared in this solemn way, it has an educative effect on the citizenry, that it can actually control the impulse of passion, which is causing majorities to infringe on the rights of minorities. And I know that some of our listeners know Federalist number 10, inside and out. And so they know that Madison is going to say that there is no cure, there's no remedy for the problem of faction, of the passions, the impulses of passion to make incursions onto the rights of minority. And he believes that, but he also believes that even if there's no remedy, there is a way of curbing that passion to make it weaker. And therefore, this is a way of making the majority less likely to infringe on the rights of the minority. Now, one of the things that I find so fascinating by this exchange between Madison and Jefferson is the reason that Madison left out of why a Bill of Rights is important. And that's the reason that Jefferson reminded him of. He said, I agree with your reasons for a Bill of Rights, but I want to add one more. And that is the role of the judiciary. That in a well-formed, independent judiciary, they can hold up the rights of the people as against the powers of the legislature. And Madison did not disagree with that. In fact, when he proposed the Bill of Rights in the Congress, the first Congress, he gave that as a reason in its favor. But I do think it is very telling about the way that Madison thinks that he is more interested in the power of the majority and the way that the majority protects rights than he is about the role of the judiciary.

SPEAKER_02 14:15

This is one of the things I really appreciate about Madison is his deep thinking and ability to look at an issue from various sides and articulate a sound argument for both. I think he makes a compelling case for having the Bill of Rights, but also not adding one. And I think about what Madison would think today. Specifically, does the Bill of Rights protect individuals today, the way that Madison conceived of those protections?

SPEAKER_00 14:44

Aaron Ross Powell Well, similar to what I was just saying, I think that he would be surprised at the role of the courts, the way that everyone looks to the courts for establishing their rights. And again, it's not that he denied that courts had this role, but I think that he would wonder if the citizens themselves were being too passive, that part of the reason of the Bill of Rights is to make the citizens vigilant about their rights and even about defining their rights. Yes, the court has a role in defining what individual rights are, but so does every American. And I think that that uh that is something that that Madison would be a little bit more concerned about.

SPEAKER_02 15:30

Lynn, let me flip that last question on you. What if we didn't have a Bill of Rights in our U.S. Constitution?

SPEAKER_00 15:36

Aaron Ross Powell That is a fascinating question. So the short answer is nobody knows. So we can only speculate. But on the dark side, the dystopian side, if we didn't have a Bill of Rights, then all of our rights would be invaded, that we would have authoritarian government because there would be nothing to stop the legislature. But then we've got maybe the Madison answer is that if we didn't rely on the courts that much, that maybe we would do a better job at legislating. This is something that I think you hear many criticisms on the right and the left, is that Congress has become dysfunctional. And one of the causes or effects of the legislature not doing its job is that it abdicates legislative power to the other branches. And if we didn't have that out, if we weren't relying on the courts to protect our rights, would we be doing a better job of insisting that our legislature do so? And again, we have no way of knowing. But this is one possible Madisonian answer.

SPEAKER_02 16:51

Some of our listeners might be familiar with the incorporation doctrine, which is a constitutionally established principle which prevents states from passing laws that deprive American citizens of rights protected in the Bill of Rights. Can you break that down for us and explain what that means exactly?

SPEAKER_00 17:08

Aaron Powell Well, I think that the most important lesson I can give about the incorporation doctrine is that it's not important for the average American to understand it with the same kind of level of detail that a law student needs to understand it. Because if you wanted to get into the incorporation doctrine, you could spend years studying it. So I'm going to try and break down just what I think are the essential elements. So when the Bill of Rights was first adopted into the Constitution, it applied only to the federal government. And you can see that in the language of the First Amendment. Congress shall make no laws, abridging the freedom of speech. Does that mean that state legislatures could make laws abridging speech? Absolutely. There is nothing in the Bill of Rights that would prevent states from violating what we consider to be the individual rights named in the Bill of Rights. And that was declared, I would say it was not established, but it was codified in the Baron v. Baltimore decision within the John Marshall Court, in which poor Baron had this dock and he was making good money on it, and Baltimore went and filled it with silt and made it useless. So he thought, okay, well, the city of Baltimore has basically taken my property. And if they've taken my property, I deserve just compensation for that. So he sued and brought it into federal courts, and the federal courts say, well, you may have a just claim, but you don't have a constitutional one, because the takings clause in the Fifth Amendment applies to the federal government taking property, not to state or city governments. Therefore, he was out of luck. He got no compensation, even though he certainly was deprived of valuable property. But what happened when the Fourteenth Amendment was passed? And it added a series of clauses about how the states, not just the federal government, but the states cannot deprive individuals of life, liberty, or property without due process of law. And the Fourteenth Amendment has been used to incorporate rights that are named within the first eight amendments of the Bill of Rights. And it's important to understand that it doesn't apply to number 9 and 10, although what I'm about to say about nine is going to be a little bit controversial. But I would say both nine and ten are not designed to protect individual rights. They are designed as a mechanism for understanding how to interpret the rest of the Constitution and the Bill of Rights. And therefore they can't be incorporated against the States. But although it was argued that the first whole eight First Amendments should be incorporated against the States, the wholesale incorporation did not happen. And instead, one by one, the rights named in the Bill of Rights were incorporated so that they applied to state legislation as well as federal legislation. And although almost all of them have now been incorporated, there are still a couple of outliers. So Amendment 7 is not incorporated. So there's still room for incorporation if the courts have an appetite for it. But most of the rights named in the Bill of Rights have been incorporated.

SPEAKER_02 20:51

So from the time that we have our Bill of Rights in 1791 up until the passage of the 14th Amendment in 1868, states could infringe upon the rights that are outlined in the Bill of Rights because it's only the federal government that it applies to.

SPEAKER_00 21:06

Yes, you've got that right, except that I realize that even though you're repeating back what I said, I'm going to throw in a major caveat and qualification to that. The states have their own bills of rights. So a lot of the rights that we are familiar with in our Bill of Rights are found in the states as well. And therefore, many individuals have remedies within their own state constitutions and their state courts. However, if a state court is interpreting, say freedom of press or freedom of religion and they want to interpret it differently than the federal courts do, they would have freedom to do so because they are interpreting an entirely different constitution.

SPEAKER_02 21:48

I think this doctrine kind of underscores the importance of American citizens being very vigilant and understanding their rights both at the state and federal level, because I think this is a A topic that a lot of folks don't necessarily hear about in civics education or in the classroom. So thank you for explaining that so thoroughly to us. And I want to pivot now and consider the role of the Supreme Court of the United States as it pertains to the Bill of Rights. Can you give us cases or examples that we should all be aware of in understanding how the High Court has impacted the Bill of Rights?

SPEAKER_00 22:25

Let me start with the plain fact that the Supreme Court has taken a lot of the enumerated rights, and in some cases, in ways that maybe weren't anticipated from the beginning. And some people will say that that is necessary, other people will say that that was an illegitimate abrogation of power. But in any event, it is necessarily the case that a lot of these clauses did not have definitive legal meanings at the time that they were passed. And indeed, it's important to understand that a lot of these rights were in the process of development when they were put into the U.S. Constitution. Indeed, James Madison is responsible for a lot of our understanding of how these rights are understood. So England had a tradition of toleration of religion. But Madison in the 1780s said toleration is not enough. Actually, he begins in 1776. So he is there helping to draft the Declaration of Rights for Virginia. And George Mason is the primary author, and he wants to put in the idea that citizens should enjoy the fullest toleration of religion. And young James Madison, at the age of about 25, wants to change the wording to the free exercise of religion. And because he's so young and inexperienced, he hands it over to a more seasoned politician, Patrick Henry. And Patrick Henry is the one that delivers Madison's amendment to this Declaration of Rights. However, Madison wanted to add something else as well. He wanted to add language which we would recognize as no establishment of religion as well, that nobody could expect either peculiar emoluments or punishments because of the religion that they professed. That would be a kind of establishment of religion. So Henry proposes this. Other members on this committee object. They say, well, that would mean that we couldn't establish a religion. And Patrick Henry says, oh no, that's not what I meant. So they take that language out. Flash forward about eight years, and Patrick Henry is putting forth a bill for religious assessments in Virginia. And Madison, and now Mason is his ally, they are going to decide that this is a violation of the principles of Virginia, even though it's not written in the Constitution. Madison writes his famous memorial and remonstrance, and in that he declares these principled reasons for the separation of church and state, and that the free exercise of religion was grounded in this inalienable right. Now, the language of religious freedom or freedom of conscience being an unalienable right is not unique to Madison. It is in some of the other state constitutions. Nevertheless, the strict separation of church and state is more unique to gentlemen like Madison and Jefferson. I would say that this is not shared generally among the states. Indeed, many of the states at this time had established religions. It was very common. Nevertheless, Madison is able to get a lot of the same language into our Bill of Rights. But one of the things that we have to understand is that the free exercise of religion is something that is contested as to the expansiveness of it. Madison probably understood this in more expansive terms than many people. But on the other hand, the no establishment rule, which Madison thinks is a fundamental principle, is probably adopted by a lot of the other congressmen because they don't want a national church, because a national church would interfere with the state establishments. They might conflict. Therefore, not everyone who passed the No Establishment Clause understood it in the same way as Madison did or Jefferson did. Therefore, one of the effects of the Supreme Court, and part of it is just necessary, all right? The courts have to define what these mean. If these are reserved rights, individual rights, that the state legislature and the federal legislature cannot trespass on, the courts have to define the extent of those rights. But some of these rights are not clearly solidified at the time that they are written. So the court, the uh role of the courts then is to solidify the breadth of those rights. Now, you you asked what were some of my, you know, my favorite, most telling Supreme Court decisions. I want to give a couple of examples of court cases that I love because they're so unpopular. And I'm not talking, I know some of your listeners are immediately thinking about recent Supreme Court decisions which have split the country and maybe half the country hates them. Those aren't the ones I'm talking about. I'm talking about the ones that almost everybody hates. And so one of the ones that I'm going to talk about is Smith v. Oregon. So this is the peyote case. And it involves a Native American tribe that used peyote as part of their religious practices, but it ran afoul of Oregon's laws, and therefore it went to court and the tribe was defending their right to use peyote on free exercise ground. They wanted a religious exemption of the generally applicable laws on those grounds. When it gets to the Supreme Court, the Supreme Court sides in favor of Oregon. The tribe loses. And Scalia, who rights for majority, is the one who is going to argue that the Free Exercise Clause does not exempt individuals from generally applicable laws. And that's the decision of the court, which makes the free exercise clause very narrow. It's massively unpopular. People in Congress on down through the States are furious that they think that this has been decided the wrong way. And we think free exercise of religion ought to be broader. And therefore, we are going to pass laws and constitutional amendments that broadens that right. So you may anticipate why I think that this is such an important and telling court case. Because once again, it is the people who defend the rights that are enumerated in the Declaration of Rights. It's not just the courts. And therefore, this is an example, and it's not the only one in which I think that Madison's reasons for a Bill of Rights, that it has an educative effect on what we think is right and wrong, that this has a way of trickling through the public consciousness and therefore through our laws as well.

SPEAKER_02 30:25

Thank you for providing that court case. That gives a great example of how the Bill of Rights is not just interpreted today, but how the people really do have a voice in this process and protecting their rights and speaking out. I also think it's a good example of this balance of power between the different branches of government, which was so important to Madison. Dr. Lynn Uzel, thank you so much for sharing your insights on the Bill of Rights and the foundational principles of American democracy. You gave us great context on the Bill of Rights, its history, but also why it's important to us today and some of the nuances that we should be really paying attention to in terms of our first 10 amendments.

SPEAKER_00 31:08

Katie, genuinely, it was my pleasure.

SPEAKER_02 31:11

And thank you to everyone listening to this podcast. We hope you'll subscribe and share this show with your friends and family. And please join us next week as we consider the Constitution.