This course offers an introduction to the U.S. Constitution and landmark Supreme Court cases interpreting it. It explores the Constitution’s origins, its amendment over the years, and methods of constitutional interpretation. Topics include the nature and structure of the federal government, the powers of the federal government, and individual rights.
Class 7: The Bill of Rights
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Introduction to Key Constitutional Concepts and Supreme Court Cases
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University of Pennsylvania
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Amendments and the First Amendment
This segment first explores constitutional amendments, including the Bill of Rights, and the Reconstruction and Progressive-era Amendments. Then, we will take a detailed look at one of the most important amendments: the First. We will learn about the constitutional protections for speech and religion, how they have changed over time, and how they apply to various circumstances. Finally, we will learn about the Establishment Clause and what it means in today's society.
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Professor Kermit Roosevelt, IIIProfessor
Law
This exhibit, at the National Constitution Center in Philadelphia,
shows us the changing face of the American soldier.
The American Constitution change, too, as time marches on.
Frequently those changes come after tragedy and
conflict, when the need for new rules is obvious.
The Constitution was written in 1787.
And ratified in 1788.
But that constitution,
the founders constitution, isn't the one we live under today.
Our constitution, is very different.
Now in part, that's because of Supreme Court decisions.
And how Judges should apply old constitutional provisions to
modern circumstances, is a big and difficult question.
We talked about it a bit when we discussed Originalism and the living constitution.
And we'll talk about it more in the context of specific cases.
But in this module we're going to look at the way the words of
the Constitution changed through amendments.
Our history with amendments has not been one of slow and steady change.
Instead, we get bursts of activity.
We're going to look at three of those now.
First, the adoption of the Bill of Rights, the first ten amendments.
Next, the reconstruction amendments, which followed the Civil War.
And last, the progressive era amendments.
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The original Constitution.
The one that goes out to the states for ratification, is missing something.
It's missing what maybe people think about most,
when they think about the Constitution.
Individual rights.
The original Constitution, has some protection for individuals,
the Government can't enact ex post facto laws, or bills of attainder.
But those are pretty technical and pretty limited.
The lack of individual rights wasn't because people weren't
concerned about them.
They certainly were.
The first lesson of American History, I've said,
the lesson of the Revolution is that a central government can become a tyrant.
And here the Constitution was, creating a new and
much more powerful central government.
So they were certainly worried about this government violating individual rights.
They tried to make that less likely.
By giving the national government limited and divided powers.
But they were still worried.
>> The Bill of Rights is a product of the American Revolution.
>> Americans had fought a war,
arguing that their rights as Englishmen had been taken away.
It was that the King had become a tyrant.
And so the idea of rights was very much on their mind.
>> The reason the constitutional convention didn't add a set of
individual rights, a bill of rights, is a bit embarrassing, really.
They didn't know what to put in.
They were getting homesick, and they ran out of time.
Here's a little more on that.
>> You have to understand, every state had a Bill of Rights.
Virtually every state had very carefully spelled out Bill of Rights.
The guys wanted to go home.
That's just the plain fact of it, and
when someone said, should we have a Bill of Rights?
Everyone moaned because they thought by time we all argue over what should
be in it and how many clauses we'll be here another month.
>> But many people felt that a Bill of Rights would be desirable.
When people were arguing whether about
whether states should ratify the constitution.
The people in favor of it were called federalists.
And those against were called anti-federalists.
>> On one side, the federalists.
They believe in strong national government that would have power over the states.
The federal government is going to be able to protect us against the British.
And against other European powers.
But they'll also protect us against the small mindedness of, state governments.
And make sure that the states don't do unfair things to individuals.
And they included some of the best know leaders of the day.
General George Washington, Alexander Hamilton, and James Madison.
On the other side, the Anti-Federalists.
They included Thomas Jefferson, George Mason and Patrick Henry.
They believed in strong local government.
The states should have most of the power.
See, back then people didn't fly places or have satellite TV.
To them, their state was their country.
>> One of the things the Anti-Federalists said was we need a Bill of Rights.
In response, the Federalists said in part that the federal government had only
limited powers and couldn't invade individual rights.
In part, they said that a Bill of Rights would be dangerous.
Because then the government might claim that people had no rights
other than the ones listed.
But in part they sort of conceded the point.
Five states, Delaware, Pennsylvania, New Jersey, Georgia and
Connecticut, ratified the constitution pretty quickly and easily.
But after that it gets much harder.
It's not clear which way Massachusetts will go and ultimately Massachusetts
ratifies with the recommendation that a bill of rights be added.
Four of the next five ratifying states do the same thing.
So when the Constitution does get ratified,
New Hampshire is the ninth state, in June 1788.
One of the first things Congress does is draft a list of amendments and
send them out to the states.
There were actually twelve of these, two didn't make it.
The ten that did are what we call the Bill of Rights.
>> What is remarkable about the Bill of Rights is that it,
they are written in plain language.
>> The most important thing to the framers was that this was a document for
the people.
There was a real push to have the people, the folks that lived in
this country understand and be able to participate in their own democracy.
>> The Bill of Rights came from the people.
It wasn't something hatched in the mind of one person, James Madison or anyone else.
It came from a national conversation.
It's written in very crisp compact language so
that ordinary people could actually memorize it.
The same way that people at the time memorized scripture passages or
memorized a favorite song.
It's supposed to get into your head.
It's not written in legalese precisely because it's a text from the people,
for the people, addressed to the people.
>> What does the Bill of Rights do?
Again, when we're thinking about the Constitution,
it helps to ask three questions.
What were the drafters worried about?
How do they try to protect us?
And how has their solution worked out in our world, hundreds of years later?
The drafters are worried about the federal government.
They are afraid it will become a tyrant like King George did.
And they tried to protect us in basically three ways.
First, they gave the federal government limited powers and
divided those powers among the branches.
Second, they gave individuals certain rights,
that's one thing the Bill of Rights does.
Constitutional rights,
protects certain activities against interference from certain actors.
Usually the government.
Some rights, like the Bill of Rights, protect against the federal government and
some rights are rights against states.
And third, something we think of less, they protected state power.
Also through the Constitution and the Bill of Rights.
The lesson of the revolution, remember, isn't that people can go to court to
assert their rights against a tyrant, it's that the states will protect them.
So an important thing to remember about the Bill of Rights is that it
applies only to the federal government.
It places restrictions on the federal government not the states.
The drafters are not worried what the states will do to their own citizens
in their minds states are the good guys.
But there's still one puzzle to note, most of the cases we think of as Bill of
Rights cases, First Amendment cases, Fourth amendment, Eighth amendment.
The cases we'll talk about, really aren't relying on those amendments.
The Bill of Rights, remember, applies only against the Federal Government.
And the cases we'll talk about, are usually cases against states.
So the framers thought we'd have states standing up
against the Federal Government.
But instead, we're seeing individuals standing up against states.
Why is that?
How did it happen?
Tune in next time.
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