An introduction to the main themes of the American Constitution—popular sovereignty, separation of powers, federalism, and rights.
Making Amends, Part 2
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美国的成文宪法
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从本节课中
Making Amends
Anti-Federalists, rejoice! This module's lectures go over the first ten amendments to America's constitution, also known as the Bill of Rights. These amendments contain some of the most iconic language contained in The Document. Freedom of Speech, the right to keep and bare arms, the right to a fair trial, all this can be found in the Bill of Rights. Prof. Amar will go over where the framers borrowed the ideas for these amendments, and also who championed and opposed their adoption.
与讲师见面
Akhil Reed AmarSterling Professor of Law and Political Science
Yale Law School
Welcome back.
Let's talk about the first ten amendments to the Constitution.
We call them the Bill of Rights, even though that
phrase doesn't appear in the Constitution itself, and indeed wasn't always
used and regularly used to describe these amendments in at
least, in Supreme Court cases until much later in American history.
I will tell you a story about, about how that phrase
comes to become much more common in later lectures.
Basically, just a foreshadow, the framers of the 14th amendment after the Civil War
like to refer to these amendments as the Bill of Rights, and, and that caught fire.
But these amendments were proposed in the first Congress
in 1789, and ratified shortly thereafter, 1791.
And today there absolutely central
and iconic. Not so much actually in the early period.
They don't mean that much on the ground for much of early
America in history but they come to become absolutely huge.
The big themes of these early amendments are Federalism, or
Localism, if you will, and Populism. These amendments to some extent, are
a reflection of a kind of Anti-Federalist critique of the original constitution.
Remember the Anti-Federalists were worried that the constitution created
too powerful a central government without enough checks on it.
They were, they were nervous and they also wanted to
beef up state and local power to some extent as a
counterweight against federal authority.
Remember, the American constitution follows the American Revolution.
And the revolution was a revolution against an imperial center.
A revolution led by an an, aff an affili an alliance of, of local
governments colonial assemblies and local juries, local militias.
And the, the constitution was proposing this vast, powerful
federal government, continental government the likes of which supposedly Democratic
or Republican central government the likes of which really
hadn't been seen in world history, and anti-federalists were worried.
And they said that during the ratification
convention, and the Bill of Rights that emerges,
to some degree, is a reflection of their concerns.
It begins with the words, Congress shall make no law of a certain sort.
By this, laws restricting free expression, wealth and religious freedom.
So, begins Congress shall make no law of a certain sort, ends with
a tenth amendment affirming, basically, state's rights
and the idea of limited federal power.
All of these amendments
limit the Federal Government and only the Federal Government.
Because the Anti-Federals were nervous about the Federal Government.
And James Madison, who proposes these amendments in the first
congress, he actually thinks that states need to be restricted too.
He proposes the amendment that no state should
bridge free speech or free press or Religious freedom.
But actually Congress doesn't go along with that.
The Senate basically nixes that idea.
The Senate is,
remember, controlled by people elected by state legislatures.
It, it's a bastion of, of state's rights to some extent.
And so Madison thinks we need a Bill of Rights against the local governments as
well as against the center, and I think
ultimately, history has proved Madison right on that.
But we don't really get that second bill of rights, that bill
of rights against the central gov against, excuse me a, a, a state
governments and local governments until after the civil war.
So, our Bill of Rights begins congress shall make no law, and only after the
Civil War do we get the Madisonian
supplement, no state shall abridge certain fundamental rights.
So the localism idea, you see it in the First Amendment, Congress can't pass laws.
Congress can't establish a, a national church.
But actually
states can have established churches. And some did.
And not only can can Congress not establish
a national church, Congress can't disestablish state churches.
That would be a Congressional law respecting on
the topic of, in reference to establishment of religion.
And Congress simply has to butt out of that.
Leave it up to states, local option.
It's a states rights provision to some extent.
The very words, Congress shall make no law
is really a recognition that there's no enumerated power over certain domains.
Congress just has to butt out of certain areas.
so, the first amendment has a federalism component.
The second amendment is about protecting, to some
extent, state militias against a central standing army.
There is anxiety about an army and suppose it becomes a military
dictatorship, well, local militias could resist if there's a national military coup
of sorts, just as local militias had, had, arrayed themselves
against the kingsmen, in places like Lexington and Concord and
Bunker's Hill, so that's a localist amendment that the jury
idea, excuse me, a militia idea is a local idea.
I'm getting ahead of my self.
So is the Jury idea.
What you see in a bunch of other amendment.
Juries are local bodies.
A resisting to some extent or counter balancing national judges.
The tenth amendment is another localist idea.
Numerating federal powers and and, and other things reserved to the state.
Which are the people.
The ninth amendment is a recognition that again
at least in part the federal government is
a government of enumerated powers, and we don't
want those powers to be over broadly construed.
So localism is an important
theme of these early amendments, and so is populism, the phrase the people appears
in the first amendment, the right of people to petition and assembly, assemble.
The second amendment, the right of the people to keep and bear arms.
The fourth amendment, the ninth amendament, the tenth
amendment, the people, the people, the people, the people.
Why that phrase?
because remember where the Bill of Rights in effect is coming from.
It's, it's coming
from the ratification conventions in 1787 88, when
we, the people of the United States got
together state by state by state, and started
talking about whether we wanted to ratify the Constitution.
And in that conversation, people said, gee, the Philadelphia Framers goofed.
They forgot a bill of rights.
State constitutions have bills of rights.
We should have a federal bill of rights too.
And so, the Constitution
the excuse me, the Bill of Rights kind of bubbles up from
the people, from this democratic conversation,
from epic acts of free speech
among the people and so it's not surprising that the First Amendment
affirms the freedom of speech because it's arising out of free speech.
It's not surprising that the first and the second
and the fourth and the ninth and the tenth speak
of the people, the rights of the people, because this
is bubbling up from the people, from that preamble process,
that we, the people process of ordainment and
establishment; that's what we began the course with.
That epic deed, the hinge of human history.
When, for a year everyone is in a common conversation up and
down the continent about how they and their posterity are to be governed.
Let me just quickly run down for you what the, these first ten amendments say.
The first amendment says that basically there should be no federal suppression
of expression, free speech, free press. And no federal interference
with religious rights and liberties. So that's the first amendment.
And you see an idea of popular
sovereignty, because the people are sovereign, ordinary people.
We should get to decide for ourselves how, what our political ideas are.
Congress shouldn't try to tell us what
to say politically, what to think politically.
They work for us.
We should, we the people are sovereign, so they
can't tell us that we can't hear certain things.
By the way, if you believe that deep
idea of popular sovereignty, you should think state governments.
They work for us too.
They shouldn't be able to shut down political discourse.
Incumbents shouldn't be able to, to, to tell their challengers, their political
opponents to, to, to, to pipe down or, or to shut up.
But the first amendment doesn't quite say that in so many words.
It says Congress can't abridge free speech.
Doesn't say states can't, and states actually, although promising to
abide by free speech and free press in their state
constitutions, actually, we're going to see later in our story, especially
in the South, state governments try to shut down free speech.
State governments in the antebellum era make it
a crime, a capital offense to criticize slavery.
The First Amendment's words don't regulate states as such.
They don't say no state shall, they say Congress shall make no law.
But after the Civil War, there's going to be an explicit amendment saying, no
state shall violate fundamental rights, including
rights of free speech and free press.
And you might think that principle was implicit in
the basic structure of a republican form of government,
in every state, a system of free and fair
elections, but the Bill of Rights doesn't say so
in so many words.
It's to some extent a states rights, anti-federalist document.
The second amendment, populism and, and federalism.
Local militias keeping check on a Federal army
just to make sure it doesn't tyrannize over us.
We don't, we want to, the, the, the right of the people is, is paramount here.
We don't want to basically governments to be who has
the guns, who has the, the, the power. We want the
military power, we want, actually, our society to be
governed by what the people vote for, not what the army prefers.
And, in case the army ever gets out of line and tries to make itself into a
military dictatorship, George Washington won't ever have any
part of that, of course; we're pretty sure about
that, but what happens after him.
Well, state militias are going to be watch dogs.
So populism and federalism here.
Militias are bodies representing the people.
They're all of us.
They're cross sectional and they're organized locally.
A third amendment says this army should be
quartered in, in, in, in, individual private homes.
Again there's an unless
Congress Explicitly authorizes it again,
an anxiety about a protomilitary industrial
complex, the culture within a culture, of the military folks dominating others.
Back to the themes of national security that
we've talked about so much in this course.
We need to create a federal, a strong federal
military structure, but we need to keep it in check
so that we tell them what to do, rather than
that, him telling us what to do, and think, and
how to live.
So the second and third amendment are sort of military amendments about keeping
the federal military in check and again,
in the name of populism, popular soveirnty.
The fourth amendament, today, no unreasonable searches and seizures.
Today it's enforced by a thing called the exclusionary rule.
We'll talk about that in later lectures.
In which, if evidence is acquired improperly
by the government, even if it shows that someone's clearly
guilty, it sometimes will be suppressed, excluded from the trial.
The Framers didn't believe in any of that.
Their fourth amendment was more about the rights of innocent people.
When the government became the central government and, and rifle
through your papers, or, or invaded your house improperly, unreasonable.
You could sue that official, for damages, cause that was
an unreasonable and therefore, unconstitutional
search and seizure, and who
would stand by you if you had a really good case?
A local jury would.
You'd sue that government official in
trespass, they committed a torte against you.
They, they entered your house.
They, they, they rifled through your paper.
A jury, a local jury, would keep those central officials in check.
So, fourth amendment idea is in part a jury idea.
Fifth amendment has a takings clause.
If the federal government starts grabbing your
property, you can sue for just compensation.
And again, who might decide what that piece of property is worth?
A local jury might.
And the fifth amendment talks about grand juries.
And the sixth amendment talks about trial juries and criminal cases.
And the seventh amendment talks about civil juries.
Juries are a very big idea,
maybe the biggest idea of the original Bill of Rights.
And two things about juries.
They're populist bodies.
They're the people. Their localist bodies.
See the ways in which juries are kind of like, malicious?
Local populists.
Malicious, to some extent, can be seen as, sort of, jurists with guns in their hands.
This is an anti-federalist vision to some extent.
Perfecting a little bit of skepticism about the central government.
The eighth amendment says no cruel and
unusual punishments.
Well, who's going to be meeting out cruel and unusual punishments possibly?
A judge.
A sentencing judge acting without a jury, and we need to be worried about judges.
Acting without jury.
Remember, the founders created a powerful judiciary but it
was still third out of three, the least dangerous branch.
And they wanted to counterbalance judges with a strong jury check
and balance just as you want to counterbalance the senate with the house.
The ninth and
tenth amendments again, themes of populism and federalism, the phrase that people
appears in both amendments and these
amendments are about limited Federal power.
So, populism and federalism and anti-Federalist vision to some extent.
Well, if it's anti-Federalist vision, why do
Federalists like James Madison go for it?
Why is congress proposing a set
of amendments, the first Congress, that begin,
he says ratified, Congress shall make no law.
Why would Congress ever limit its own power, you might wonder.
Why would the Federalist Madison go for a series of amendments
that limits the federal government that he's worked so hard to create?
And part of the answer is because the Bill
of Rights is part of a national reconciliation project.
A bunch of people opposed the Constitution.
The Constitution barely
passed in a whole bunch of places, and Madison
and others want to bring those dissenters on board.
And the way you bring them on board is by taking
seriously their ideas, seeing if they overlap with yours at all.
If you could find some common ground.
He wants to bring loyal Americans, American patriots
who voted for the Constitution, but were skeptical,
or who voted against the Constitution on board,
he wants then to feel part of the project.
He wants North Carolina to ratify the Constitution.
Remember, it hasn't yet when the first Congress meets.
And geostrategically, you want North Carolina.
He wants Rhode Island to ratify the Constitution.
And this is a face saving measure.
You say to, to the, the North Carolinians, to Rhode
Island people, you say you oppose the constitution cause there's
not bill of rights, okay, well here, here's some amendments
of the sort that you want, now, will you come in?
And you can come in on face saving terms.
Madison also needed to get elected to
Congress, and he wasn't going to get elected unless
he actually promised his constituents that he would
rethink and, and propose a Bill of Rights.
That maybe he had made a mistake
in opposing the Bill of Right in Philadelphia.
In principle, he wasn't opposed to it.
He needed to tell his constituents that in order to
get elected to Congress, and he wants to get re-elected.
And if he doesn't keep his
campaign promises, they're going to send him packing.
And the other Congress people understand that too.
And if they don't themselves propose some amendments,
well remember, Article 5 says that is Congress
tries to bottle up amendments that limit Congress'
power, there's another way of proposing constitutional amendments.
You can have a new convention called, but
does Congress want to lose control in the process?
If they don't propose some reasonable amendments maybe the
states will demand a new second constitutional convention which will
adopt, which will propose a whole bunch
of radical amendments that Congress would like better.
To maintain control of the, of the agenda of the process.
And propose your own, sort of reasonable amendments.
Your, your olive branch.
Your, your compromise.
And by the way if you're in Congress,
you're not probably expecting to be there forever.
You're going to leave after a certain point, and
when you leave you want Congress to be limited.
Today people tend to stay in Congress for very long,
periods of time but the founding wasn't as true.
And, remember the ge, geography.
The distance you're going to be a long way away
from your home, there's not jet travel back and forth
and so people don't stay in congress forever, the
way sometimes today it seems as if they, they do.
So when the early Congress passes amendments limiting
Congress, they're not just limiting themselves, but their successors.
Some of them are imagining if they're going to go home to the farm.
So that's the early amendments.
And as I said, they're not going to to mean
very much on the ground for a long time.
The first time the United States Supreme Court quotes an act
of Congress of unconstitutional as a violation of the first amendment, 1965.
And it's not as if Congress hasn't violated the First Amendment before that.
John Adams is going to sign his name to the Alien Sedition Acts
that make it a crime to criticize the
federal government, a crime to criticize the president.
Not withstanding what the First Amendment said.
Within a decade, you're going to have a repressive Congressional law.
And, courts actually don't enforce the first amendment vigorously.
And in World War 1, again, people are
put in prison for criticizing the federal government, Eugene
Debs, a guy who gets a million votes
for president, is put in prison for basically saying
its a crummy war, and we shouldn't be in it.
So these amendments are passed.
And it's important as part of the
reconciliation project, but they don't quite fully
mean a lot on the ground in court until much later in our constitutional story.
And, and they're going to mean a lot more later on in part because of
the 14th Amendment that takes these rights
and applies them against state and local governments,
as well as Congress.
And the Supreme Court is more, comfortable beating up
on state and local governments, and only once its
done that will it build up all sorts of
cases and principles about the, the Bill of Rights.
And they can them start to apply against the Federal government.
That's going to be a big theme of later lectures, so hold that thought.
Those are the first ten amendments. An eleventh emerges soon thereafter.
It's about limiting federal courts that have been
a little too aggressive. Remember the ska, framers.
The founding generation, you know, didn't have as robust a
conception of judicial power then we, as we have today.
The early Supreme Court was just a shadow of what it is today.
It didn't get to decide most of the important constitutional cases of its era.
And the one early case that it does decide before John Marshall comes along.
Case called Chisholm versus Georgia, people immediately react badly to that.
They,
oppose it, and the eleventh amendment is
introduced to overturn a Supreme Court case, where
the Supreme Court, critics say, has gone too
far and accumulated too much power for itself.
I don't want to go into all the details, I just
want to, they're very technical, if you want, there's much more
information in the book about them, but for now just see
how story of skepticism of Federal power, and even judicial power.
Remember a lot of the amendments in
the Constitution are limiting judges and judicial excesses.
By providing for juries and, and rights of criminal defendants, no against double
jeopardy and compelled self-incrimination, and against secret trials.
And like trials have to be public, and, and speedy, and
all sorts of restrictions on judges in the Bill of Rights.
I want to end on
this discussion of the early amendments with the 12th
Amendment, which turns out to be a rather important one.
Here's what you need to remember about the founding presidency.
It wasn't designed with political parties in mind.
Washington stands above party, everyone votes, every elector votes for him for
president the first time around and then again the second time around.
But when he leaves
the scene, actually you actually have contests for the presidency and the
emergence of early political parties. So as soon as Washington leaves the scene.
Remember, he's sort of preeminent.
You have the next set of founders, the
great men of the American Revolution, coming forward.
Washington stood head and shoulders, in some cases literally, above everyone else.
But when he leaves, when he says, I don't want to be president for life.
Actually a republic should be bigger than one man.
When he leaves in ways that Ho Chi Min
never does and Fidel never does and Mao never does.
Well but he leaves the scene even
though he could've been re-elected.
The two men, who were the next, sort of most prominent in the American revolution,
Adams and Jefferson come to the floor, and they run against each other in 1796.
We're about to get the picture here.
Remember, every chapter has a picture, and if you
understand the picture, you understand a lot about the chapter.
They run against each other in 1796.
And Adams wins, Jefferson comes in second and therefore becomes Vice President.
Under the founding system, if you come
in second for the presidency, you're Vice President.
And initially they, they get along just a little bit,
but they begin to become quite antagonistic to each other.
Political parties emerge.
Adams is the head of one party, Jefferson the other.
And, and then they run against each other again
in the rematch in 1800 and that time, Jefferson wins.
And in the wake of these sharply contested elections, Americans
realize they need to change the rules of the electoral
college, because the electoral college can permit, basically, people who
really hate each other from being President and Vice President together.
And that's, that's just not a very stable system.
That's like an assassination incentive.
so, so they redesigned the rules of the Electoral College
so that people can run as the Presidential, Vice
Presidential team under the news rules of the 12th Amendment.
Once and, and the new rules of, of, of the,
of the 12th, of the 12th amendment, you you have people
running separately for vice president, so the vice president is
no longer the guy who comes in second for the presidency.
The guy who may be actually completely opposed to the guy, the person who wins.
Now you have tag teams,
president, vice president, a ticket, so to speak.
The 12th Amendment, in other words, is
designed to facilitate political parties, mass mobilization.
In a word, Democracy.
It's designed to actually make the world safer.
A kind of Jefferson's democratic vision. And so it fits our story of populism.
It's about actually encouraging energetic
elections and broad political participation.
That is one other thing, as well.
So Jefferson very much is a small d democrat and he's about national security.
He's going to, going to acquire Louisiana, so he's fixed with that
story of national security and democracy, but he's also pro-slavery.
He talks an anti-slavery game, but he doesn't free his slaves.
He pursues pro-slavery policies and here's what I
want you to notice about these two elections.
It's North against South both times.
That's the dividing line in America.
The dividing line in America is not big states against small states.
It's North against South.
And some people say oh the electoral college prohibits regional candidates.
No, these are regional alignments both times.
The Southerner, Jefferson, wins the South both times.
The Northerner, Adams, wins the North both times.
What's the swing state?
New York, in effect, is where north meets South.
Today, it's
Ohio.
Those days it was New York, which was a slave state.
New York, in the first election, votes for Adams and
the second, thanks to Aaron Burr, votes for Thomas Jefferson.
So he wins, it's north against south, and here's what you need to notice.
That not only is America divided North against South, but the South, Jefferson's
base, his slave-holding base, gets extra electoral
votes because of slavery, three fifths clause.
Adams understands and all of his supporters understand.
That without those extra electoral votes in the 1800's,
he would have won even the election of 1800.
Thomas Jefferson is ridding into the Executive
mansion on the backs of his slaves.
The electoral college is a pro-slavery institution, and it has some flaws and
they modified them with the 12th amendment but they don't fix the proslavery flaw.
They build that.
They, they continue to perpetuate that pro-slavery flaw, that 3 5ths
into article to in the, in the, in the electoral college.
So an here we conclude.
Because of the 12th amendment, we're going to have a pro-slavery Presidency.
It's more democratic yes.
Political parties are o.k.,
but it's going, we're going to move from Jefferson to Jackson.
Very pro-slavery. His party is going to dominate.
The dominant political party in America is the,
the Democrat parties and they're the pro-slavery policies.
They're going to put pro-slavery people on the Supreme
Court, like Roger Taney on the Dred Scott case.
And the war will come as a result of it.
Here's the ultimate irony, a 12th amendment designed to pri, privilege
Jefferson's party, they called themselves the Republicans, will
many years down the line, in 1860, these rules about the electoral
college are designed basically to prop up Jefferson's Republican party.
Will end up favoring, which is a pro-slavery
party, they, they later call themselves the Democrats.
These rules of the 12th Amendment designed to prop up that
party will eventually come to benefit a man named Abraham Lincoln.
A very different kind of Republican. An anti-slavery Republican.
And when he
gets elected as the first
openly anti-slavery president in American history.
Sort of despite the rigging of the game
in Article II against, sort of, his worldview.
Against the Northern worldview. When he comes to power, contesting
Dred Scott, which has been handed down by Roger Tawney, appointed by Andrew Jackson,
sort of a Jeffersonian disciple.
When Lincoln comes to power, the 12th Amendment
is going to be followed eventually by a 13th Amendment.
The pro-slavery 12th Amendment is going to be followed by an emphatically
anti-slavery 13th Amendment, because in between, the house divided will fall.
There will be a Civil War and in its wake, the Union will be rebuilt.
A new house will emerge. That's the story for next week.
So I hope I see you then. Bye.
[MUSIC].
