The Bill of Rights | Constitution 101

0:12[Music] today we're going to talk about the bill of rights now james madison is often called the father of the bill of rights but we're going to start by talking about someone who has a better claim to be called the father of the bill of rights and that's george mason why was george mason the father of the bill of rights well he was one of the three delegates who refused to sign the constitution because it didn't have a bill of rights the others were edmond randolph and elbridge gary mason said at the convention he wished the plan had been prefaced with the bill of rights it would give great quiet to the people and a bill could be prepared in a few hours but the delegates wanted to go home and they didn't take up his proposal

0:50and in addition madison originally opposed a bill of rights as unnecessary or dangerous why well madison said a bill of rights was unnecessary because the constitution itself was a bill of rights it created a federal government of limited powers and since congress was granted no power to abridge the freedom of speech for example there's no fear that it would do that and second madison said a bill of rights might be dangerous because people might assume if a right wasn't written down it wasn't protected whereas in fact our rights are so sweeping and broad they come from god or nature not from government that they couldn't be limited to a single list but in the face of opposition of anti-federalists led by

1:29mason madison changed his mind and when he drafted a bill of rights he relied on amendments proposed by the state ratifying conventions that themselves were taken from revolutionary era state constitutions and the most important of those revolutionary era state constitutions was the virginia declaration of rights of 1776 drafted by none other than george mason so in addition to being the primary textual source for many of the amendments that ended up in our bill of rights mason's virginia declaration was also one of the main sources for thomas jefferson's declaration of independence so through mason we see the connection between the declaration the constitution and the bill of rights who was mason

2:15he was a virginia aristocrat his name was george mason iv the oldest son of a wealthy landowner whose estate included more than two dozen enslaved people and eight thousand acres he was privately tutored in latin and the classics and he read deeply in the classics and his library includes many of the texts of moral and political philosophy that jefferson and madison read as well including lox two treatises on government and algernon sydney's discourses on government which jefferson identified as a major source of the declaration of independence mason also read a crucial work called cato's letters written by the whig polemicists trencher and gordon which also influenced jefferson and the founding

2:58generation so in may 1776 when the continental congress asked the colonies to form new governments the virginia convention appointed mason madison and others to draft a new declaration of rights mason was writing in raleigh tavern in williamsburg and he produced the first draft of the virginia declaration his preamble includes language that jefferson would copy in the declaration of independence almost word for word this is mason's language that all men are born equally free and independent and have certain inherent natural rights of which they cannot by any compact deprive or divest their posterity among which are the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety you see how closely jefferson

3:48mirrored mason's language in his rough draft of the declaration of independence and in fact the original rough draft was even closer to mason it declares that all men are created equal and independent with certain inherent and inalienable rights and that was jefferson's language now other parts of the virginia declaration of rights were also widely copied by other state constitutions in the 1770s and they became the main sources for madison's bill of rights mason's declaration included a ban on cruel and unusual punishments a right to jury trial a strong guarantee of free press and sometimes madison took mason's language almost word for word i'm just going to give you a few examples because the textual similarities are so

4:30striking this is mason section 9 that excessive bail ought not to be required nor excessive fines imposed nor cruel and unusual punishments inflicted that sounds almost exactly what would become our eighth amendment here's mason section 12 that the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments of course that was echoed in our first amendment here's mason section 13 that a well-regulated militia composed of the body of the people trained to arms is the proper natural and safe defense of a free state that standing armies in times of peace should be avoided as dangerous to liberty and that in all cases the military should be under strict subordination to

5:14and governed by the civil power of course that was echoed in our second amendment and uh finally we have section 16 that religion or the duty which we owe to our creator and the manner of discharging it can be directed only by reason and conviction not by force or violence and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience that's extraordinarily important language the free exercise language was actually madison but most of that is from mason and it's a very powerful encapsulation of what would become our religion clauses so when madison originally wrote the bill of rights he's just cutting and pasting from the amendments proposed by the state

5:58ratifying conventions in virginia the amendments were taken almost word for word from the virginia declaration which i just read other states recycled from their own state constitutions and declarations of rights which had also relied on virginia so you see why mason was so influential now madison originally proposed 19 amendments to the constitution in the debates over the bill of rights in 1789 congress whittled them down to 12 and 10 of those amendments were ratified in 1791. we have one of the 12 surviving original copies of the bill of rights at the national constitution center the original first amendment doesn't have to do with free speech it says there should be one representative in congress for every

6:38thirty thousand inhabitants if that had passed there'd be thousands of people in congress today the original second amendment said congress can't raise its salary without an intervening election that was ratified in 1992 as the 27th amendment so our first amendment was their third the first amendment isn't first because it's necessarily the most important although it's arguably the most important it's just was the first amendment to be ratified so now let's take a quick tour through the bill of rights and here i'm going to borrow from my great law school teacher aquila mar who bundles the amendments into five groups and i'm going to tell you the five groups and read the text of the amendment because there's nothing like reading the bill of rights

7:21first there are the rights that broadly include the rights of conscience these are protected by the first amendment and they include the rights of religion speech press assembly and petition now i'm going to read the inspiring text of the first amendment congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof those are the religion clauses or abridging the freedom of speech or of the press those are the speech and press clauses or the right of the people peaceably to assemble and to petition the government for a redress of grievances those are the assembly and petition clauses there's so much to say about each of those clauses but the religion clauses say that our rights of re-exercise of religion the

8:09rights of conscience are absolutely protected and that congress can't establish a state religion the rights of speech and of the press have been construed to say by the supreme court that government cannot regulate speech unless it's intended to and likely to cause imminent violence that is the most speech protective test in the world today and it's a tribute to the powerful natural law vision of our framers then there are the assembly and petition clauses crucially they protect the right peaceably to assemble and partition and to petition the government for redress of grievances this has allowed dissenters and unpopular groups throughout american history peaceably to assemble in order to affect constitutional change okay now we come to category two and professor

9:00omar calls these the military amendments we begin with the second amendment a well-regulated militia being necessary to the security of a free state the right of the people to keep and bear arms shall not be infringed for the founding generation as we heard from mason's original language there was grave concern about standing armies and the framers believed in rooting the people's safety in a well-regulated citizen-led militia consistent with the supreme court's recent decision in the heller and mcdonald case the second amendment also grants an individual's right to keep and bear arms including personal handguns in the home for self-defense and then we have the third amendment no soldier shall in times of peace be quartered

9:42in any house without the consent of the owner nor in time of war but in a manner to be prescribed by law this grows out of the experience of the british quartering act of 1774 the founding generation saw these british abuses where soldiers recorded in the home as tyrannical and viewed the act as invading the sanctity of private property and the home our third category includes privacy and property rights and it includes the fourth amendment and the fifth amendment's taken clause here's the fourth amendment which is so meaningful to read the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no warrant shall issue

10:26but upon probable cause supported by oath or affirmation and particularly describing the place to be searched and the person or things to be seized so that first clause uh protects our person's houses papers and effects against unreasonable searches and seizures and then the second clause the warrant clause says that no warrant shall issue but on probable cause with a particular description of the place to be searched to the person or things to be seized and then we have the fifth amendment's taken clause which says nor shall private property be taken for public use without just compensation that's connected to the founding generation's commitment to property rights and prevents private property from being taken by the government for

11:08public use without just compensation there's so much to say about these privacy and property amendments including issues ranging from can the government follow your movements in public uh you know using your cell phone data to central questions about can the government seize your home without paying for it and we'll discuss all of these very important cases in future classes we now come to our fourth category uh which includes concerns about fair process jury rights and the rights of the accused and this category includes the fifth amendment the sixth amendment the seventh and the eighth amendment so let's begin with the fifth no person shall be held to answer for a capital or otherwise infamous crime unless on a

11:55presentment or indictment of a grand jury except in cases arising in the land or naval forces or in the militia when an actual service in time of war or public danger nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb that's the double jeopardy clause nor be compelled in any criminal case to be a witness against himself those are our rights against self-incrimination nor be deprived of life liberty or property without due process of law that's the crucially important do process clause which in some ways is fundamental to the very definition of the rule of law which is that the government can't act arbitrarily it instead it has to act according to previously determined rules

12:40next we come to the sixth amendment rights which are so crucially important and the sixth amendment says that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime she'll have been committed which district shall have been previously ascertained by law and to be informed of the nature and cause of the accusations to be confronted with a witness against him to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense that's a whole bunch of central rights that you get if you're a criminal defendant and you actually go to trial because for these rights to kick in you have to have a criminal trial most criminal cases end

13:23in plea bargains so often people don't exercise these crucially important rights but they include the right to counsel or a lawyer the right to a speedy and public trial the right to an impartial jury the right to be informed of what crimes the government's charging you're with and the confrontation clause or right to cross-examine witnesses against you plus compulsory process for witness the court can order someone to appear in court as a witness for you those involve criminal cases there's also the seventh amendment involving civil cases and the seventh amendment says in suits at common law where the value and controversy shall exceed twenty dollars the right of trial by jury shall be preserved

13:58and no fact tried by a jury shall be otherwise re-examined in any court of the united states than according to the rules of common law that responded to a key concern of the anti-federalist preserving the right to jury in a civil case how do you distinguish between a civil and a criminal case you have to take criminal procedure for that but basically it's whatever the legislature says now we come to the eighth amendment um and i know this language will be familiar from that george mason language that i shared with you before excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments inflicted well those debates about what counts as cruel and unusual punishment are central

14:37to our modern debates about the scope of the death penalty and now we finally come to our fifth category which includes uh what professor amar calls the popular sovereignty amendments these are so important and uh here we go we have the ninth amendment which says the enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people that language about retained by the people is so crucial remember jefferson and mason and all the founders think that our rights come from god or nature not government and when we move from the state of nature to civil society we alienate or surrender temporary control over certain rights in order to get greater security

15:20and safety of the rights we've retained the rights retained by the people and the ninth amendment as a reminder don't assume if it's not written down it's not protected this is responding to madison's concern our rights are natural they come from god or nature not from the bill of rights and the bill of rights therefore is not a comprehensive list and finally we come to the 10th amendment which says the power is not delegated to the united states by the constitution nor prohibited by it to the states are reserved to the states respectively or to the people this reflects the framers central concern about federalism uh the balance of power between the states and the national government the national government is not a government of unlimited powers it only

16:03has the powers that it's specifically granted and all power is not specifically granted are reserved to the states or to the people the ninth and tenth amendments together reflect george mason's central concerns about natural rights and limited federal power and therefore it's appropriate to end this walkthrough of the bill of rights by paying tribute to the father of the bill of rights george mason [Music] you