 Greetings from the National Archives flagship building in Washington, D.C., which sits on the ancestral lands of the Nacotch tank peoples. I'm David Ferriero Archivist of the United States, and it's my pleasure to welcome you to today's program, which explores the topic Anti-Federalists and the Bill of Rights. Our program is part two of a two-part discussion, part one called Slavery and the Constitutional Convention, aired on October 21 and is available on the National Archives YouTube channel. I'd like to let you know about two other programs coming up in January on YouTube. On Thursday, January 6th at 1 p.m., award-winning historian and biographer Kate Clifford Larson will tell us about her new book Walk With Me, a biography of civil rights leader Fannie Lou Hamer. And on Wednesday, January 12th at 1 p.m., author Warren Eugene Milter Jr. will discuss his book, Beyond Slavery's Shadow, which broadens our understanding of life for free people of color in the South. On this Bill of Rights Day, which commemorates the date in 1791 when the first ten amendments of our Constitution were ratified, the National Archives is pleased to present this discussion about the origins of and debates over the Bill of Rights. Our look at Anti-Federalists and the Bill of Rights includes clips from a new documentary series called Confounding Father, a Contrarian View of the U.S. Constitution. This series combines historical film clips with commentary from constitutional scholars who discuss the 1787 debates, compromises and present-day controversies around the creation of the U.S. Constitution. One chapter tells a story of how pressure from opponents of the Constitution eventually led to the passage of our cherished first ten amendments. Confounding Father uses documents and film clips from the National Archives, and, of course, the original joint resolution for the Bill of Rights is in the National Archives Rotunda in Washington, D.C. Five days before the convention ended, Virginia delegate George Mason proposed the Bill of Rights to be added to the new plan for a national government, but the motion lost zero to ten. The truth is, most framers of the U.S. Constitution opposed the Bill of Rights. Who were the anti-Federalists? Why did they oppose ratification of the Constitution? How did their opposition lead to a Bill of Rights? And why were many of them very disappointed with the first ten amendments? These are the questions our panel intends to explore as we mark Bill of Rights Day. And now it's my honor to welcome our distinguished panel, our moderator Richard Hall, recently retired after a 30-year career with C-SPAN and is the director and co-producer of the four-part series Confounding Father, a Contrarian View of the U.S. Constitution. Joining him today are panelists Mary Sarah Builder, Founders Professor of Law at Boston College Law School, whose latest book is Female Genius, George Washington and Eliza Harriet at the dawn of the Constitution. And Woody Holton, McCausland Professor of History at the University of South Carolina and author of Unruly Americans and the Origins of the Constitution. Now let's hear from our panel. Thank you for joining us today. Thank you, Archivist David Ferriero, and thanks to the National Archives staff. I'm honored to moderate this program on Bill of Rights Day. I love searching through the motion pictures collections and watching films here on this YouTube channel from the National Archives. There's hundreds of them there, and if you haven't explored that, I encourage you to do that as a filmmaker. I love that part of the National Archives. So I think they are a national treasure and I'm happy to be here. As the archivist mentioned, I'm the director and co-producer with my wife Simone of Confounding Father, a Contrarian View of the U.S. Constitution. The film highlights ideas of naysayers like Luther Martin of Maryland who in 1787 looked upon the new plan of a national government with much suspicion. So our plan is over the next hour to show short two to three minute clips from the film to help stimulate a discussion on the topic of anti-fetalists and the Bill of Rights. Since I'm a filmmaker and not a historian or a constitutional scholar, I would not want to do this alone. So we're very fortunate to be joined by Professors Woody Holton and Mary Builder who have both written books that take a critical look at the founders. Thank you very much for being here today. Thanks for having me. So I've interviewed Professor Holton a number of years ago because I loved his 2008 book Unruly Americans and the Origins of the Constitution which highlights the contributions of people who are normally left out of the narrative. He has a new book, Liberty is Sweet, the Hidden History of the American Revolution which also highlights many forgotten people. And that book has been fully embraced by the Academy and there have been no controversies or any activity on social media whatsoever about it. Just thought I'd throw that in there. Woody seems like a happy warrior in that regard. And I'd be remiss if I didn't mention that back in 2010 he earned the prestigious Bancroft Prize for his book Abigail Adams. Our cup runneth over today because Mary Sarah Builder earned the 2016 Bancroft Prize for her book Madison's Hand Revising the Constitutional Convention. Professor Builder looked at Madison's notes in a way that no one had before pulling back the curtain on the Wizard of Montpelier who had used levers and smokes and mirrors to fool generations of historians into thinking that what he wrote was a very accurate depiction of what happened in 1787. And it may be, it may not have been. She gave a talk on that book on this channel and Professor Holton gave a talk on his book Liberty is Sweet so if you want to know more about those books I encourage you to watch them on the YouTube channel. So before we begin our first clip though and dig into the anti-Fretalists I'd like to ask both of you. You've devoted your lives to studying, writing about and teaching this founding era. Why does it matter so much to you? What motivates you? Mary, could you begin? Well, I grew up in Madison, Wisconsin so I always think that part of it is probably that all the streets are named after the people who signed the Constitution and so I always feel like that gave me a head, a sort of leg up on the whole subject area because I know a lot of those figures and for me a lot of the interest is in how foundational the framing period is to the structure of government and I think really importantly to a lot of the debates and disputes and tensions that we continue to face as a country today and we have people we know a lot about like George Washington, James Madison, even Luther Martin and then we have a lot of people who are yet to be discovered who played important roles in this period so it's just I think a really dynamic and exciting time in the history of the country. Woody Holden, how do you answer that? Well, actually like Mary I was influenced by popular history or public history her, the street names and me, not Hamilton of course I'm way too old to have been formatively influenced by that but by the 1960s or late 60s version of that 1776 where it's my brother and I pretty much memorized and still have a lot of it so I just did the era for that and I come from a political family so I was interested in politics but then when I showed up at Duke grad school in 1982 everybody else was doing social history and so I got real interested in trying to combine the social history of ordinary people with the elite political history that I've sort of grown up getting interested in as a kid. Okay well why don't we dig into the clips here so we can start our discussion the first one is a chapter that appears right in the middle of the series it's chapter seven and the name of the chapter is What is an Anti-Federalist? So could we roll clip number one please? It's about three minutes. They were for a conception of federalism that granted only those powers to the general government which were deemed absolutely necessary mainly for security so they were small government men. It's really hard to summarize the arguments of the anti-federalists because they are such a diverse lot. I don't use the word anti-federalist unless it appears in a quotation or unless the people so designated freely accepted the word. For Luther Martin, yes it works. He did indeed oppose the Constitution but most of those who criticized the Constitution and were against ratifying it in the form that the convention proposed only wanted amendments. The poor anti-federalists never had a shot at it. The federalists quite shrewdly, they really should be called nationalists they quite shrewdly take the term federalists for themselves. That's part of the problem. These people come down to us with the prefix anti attached to their name so we think well okay they were just against something. The arguments that were made by the anti-federalists in 1787 were basically we're trusting you that we'll have protections against a federal government that has so much power and we're giving this power away and you're telling us that we're going to get it back in some form and one of the arguments they made is like once we give this power away we're not getting it back and in the end the federal government can usurp the power of the state. Some people began talking about a central government for all the states. But on this idea the majority didn't agree. They were proud of their sovereignty and to each a central government still meant tyranny. Outrageous dictatorship. So there are some people who oppose the Constitution on bill of rights issues, on slavery issues, perhaps on some structural issues that are worth thinking about but the ones who rant on and on about how the president is going to be the king or we're going to have a military dictatorship I think those people are simply grasping at straws. But there were also way at the other end of the spectrum other anti-federalists who opposed the Constitution for making an undemocratic country even less democratic. Luther Martin thought that the Constitution would not immediately but in time essentially if face the importance of state governments and local governments power, political power but also economic power would be sort of sucked into the federal city and Martin was full of predictions and most of those have turned out to be correct that the District of Columbia would turn out to be this isolated place behind the Beltway and that the government would soon usurp tremendous powers that nobody anticipated that the National Army would grow up and the militia would be nationalized so easily. And he thought that this despotism would eventually wage war upon foreign countries and as a result because war always helps centralize power war is the health of the state as Randolph-Born said that the central government will grow more and more powerful. So the cartoon that you were seeing in there is from the National Archives Collection it's called Tom Shuler Cobbler Statesman it's a Cold War era explanation of I think it was made by the military of how the Constitution was created but let me turn to you Mary Builder if you were asked that question what is an anti-Fretalist how do you answer that? Well I mean I like what Pauline Mayer says there they're not a political party they don't there are no political parties nationally in this time so I think that we are better off calling them opponents of the Constitution they include the six men who were at the convention who did not sign Luther Martin is one of those but two delegates from Virginia two delegates one from New York one from Massachusetts and one from Maryland and those around those six men who leave the convention they're not happy with the Constitution they refuse to sign it grows up people who oppose the Constitution and they look at the Constitution and they've never had a written Constitution in this kind before it's not clear that they really think of it as a written Constitution and they read what the system looks like and that's one of the problems and many many years ago the political scientist Cecilia Kenyon called the men of little faith that is they were anxious people and they worried that the document and the system they saw couldn't prevent all of the various horrible things that they could imagine and a couple of the things that they cared a lot about was they were scared that the states would be incarcerated and consolidated they were terrified that the president would have too much power they thought they'd all be taxed a lot and they were anxious that there was no declaration of rights or bills of rights as in as in the English 1689 document so Woody Holden in that clip you said that there were people who feared that it would take an undemocratic government and make it less democratic what did you mean by that I mean there's another point in the documentary where you talk about an invisible wall which I think is an interesting idea well can I say just first on who they were it occurs to me re-listing to our Fred Pauline mayor's comment and to Mary's that the one thing that this very very diverse group of so-called anti-federalists had in common is that they were federalists that is they wanted to keep the articles of confederation the federal system where the 13 states were sovereign states and we can we can talk about all the ways in which they were diverse but that's one thing they had in common was that they they wanted to stick with that as opposed to for instance Edmund Randolph opens the constitutional convention by proposing to create a national government and as Mary says in Madison's hand Madison carefully edited that out when he wrote up Randolph's speech because national was a bad word in those days but that's really it was really a battle battle between small F federalists and nationalists that's what we if we were if we have to use terms and sometimes we we want to use terms that should be the term not federalist versus anti-federalist but cross out federalist and right nationalist and cross out the anti-federalist and right federalist but to answer your your two questions about well the invisible wall is tough and Mary and I might friendly disagree on this but I think that Madison fairly early on had realized that there's a lot of different ways to limit the power of the people you can for instance go from annual elections which is what every state legislature except in my state of South Carolina had you can go from annual elections to by annual for the house every six years for the Senate every four years for the president and for once that is lifetime terms for the spring court so you can that's a that's a move away from democracy but another way to move away from democracy that's more complicated but I think Madison eventually at least persuaded himself more powerful was simply to switch certain powers to the federal government from the state governments and I grew up in the 60s when the states were the bad guys in the south where I'm from because it was a federal government that was trying to push the rights legislation and things like that and but but you kind of have to not you have to imagine all that away and get back into the attitude of the 80s of the 1780s that is when when this let's see leaving power at the state level was giving ordinary people a bigger chance of influencing it I compared what the federal government does to my wife when the kids came home with their Halloween candy they'd like to eat it all that night but instead we take that candy and we put it way up on a high shelf where they can't reach it we're doing it for their own good we say and we think but but we're making we're not letting them make their own decision and in a sense shifting control over the money supply over taxation to pay off the war debt and other you know that which I'd say the two most important thing an arm of government does besides go to war where those two and you put those in a federal level where the states can't get into the candy I don't know if you want to comment on that Mary but I was going to ask towards the end of the clip there Bill Kaufman and the biographer of Martin and Gordon would argue that one of the fears and this was Mark concern of Martin's was that we're creating an empire we're creating a new empire and people like mercy Otis Warren was worried about the army what do you think about that that criticism that they didn't want an empire they wanted a more modest country yeah I mean I always I just on the name one of my favorite things is when Elbridge Jerry says they should have been called the rats for ratification and the anti rats he of course being on the anti rat side but I always thought I'm sure he'd only had an ad person he could have gotten a lot more leverage with that you know I think that this is where I think some of the critiques of the opponents must have driven people like George Washington crazy you know it's 13 if you include from Vermont 14 very small independently incredibly weak colonies who 10 years ago had had almost lost a war you know Washington when he's at the convention goes back to Valley Forge in August to to remember where they've been a decade before and they've got Spain to the south they have England and France to the north and they have incredibly powerful native nation confederations both within what the land they're trying to claim and to the west and so you know I think on a military sense part of their of the sort of real politic of the moment is unless you have the capacity to have a military someone's just going to take us over again and along with that unless they had the capacity to borrow money particularly from European lenders they were going to be bankrupt so you know I think that in some ways the opponents of the Constitution could complain but there was a reality about this and we know that you know one of the interesting things about for people who study this period is that the opposition vanishes overnight like the Constitution gets adopted everybody and we can talk about the Bill of Rights which the amendments which do make some change but then everybody's like okay and to the next thing you know it's not that that there's continuing opposition about the system and I think that tells us something very important about particularly the monetary and military realities of the situation. So you mentioned the Bill of Rights why don't we move on to that topic now since it's Bill of Rights day. I have a clip it's our second clip it's about three minutes it's from the chapter on the Bill of Rights and it includes portions of a 1940 film called Our Bill of Rights and which you watch the whole thing it's sort of a classic example of turning the founders into living marble statues and you'll see an actor playing James Madison who's very vigorous looking deep voice he has dark and he kind of dominates the room is that is that the way you see Madison kind of small and quiet in my memory. He always described himself as sickly he always described himself as sickly he was a hypochondriac I think but anyway why don't we show clip number two and then we can start talking about the Bill of Rights. The anti-federalists do win a concession the Bill of Rights you know which Madison and Hamilton Wilson et cetera had resisted strongly saying there's no need for it you know you can trust this you can trust the central government it's not going to exceed its powers. First of all the idea of the Bill of Rights that the anti-federalists wanted was structural they wanted real changes you know limiting the taxing power limiting the presidency and what Madison does is take 200 amendments that the various states had proposed and sort through them and come up with he comes up about 12. There are now but 12 amendments to our constitution which would require your approval for recommendation to the state expressed originally in many more they represent the honoring of pledges made not to disgruntled factions advocating revision of our fundamental law but to patriotic Americans who made that law effective and desire now its strengthening. So Madison kind of outwits the anti-federalists and that's why they call the Bill of Rights that's proposed a tub for the whale because you know sailors when they're out and whales coming at them they throw a tub overboard thinking the whale would be diverted a diversion. Here's Patrick Henry anti-federalist on the idea of ratifying the constitution with the hope or promise that the Bill of Rights would later be attached quote only a crazy man would buy a defective machine in hope of repairing it afterward. They were saying this constitution allows for too much power in the federal government that's why we need to have changes made amendments and they didn't have in mind what Madison proposed that became the Bill of Rights they wanted restrictions on the power to raise money and the power to raise men now they lost on that. Many of the anti-federalists were completely disappointed with the Bill of Rights because they wanted much more fundamental changes in the constitution. There has been no revision these amendments supplement the constitution they do not change it of course. George Mason who truly supports the Bill of Rights and is a libertarian at that level is certainly somebody worth reading. On the other hand it's important to remember Mason owns 250 or 300 slaves and so there's something kind of ironic about him talking about liberty during the revolution that British Tories Samuel Johnson said why is it that we hear the greatest yelps for liberty from the drivers of Negroes and that's something that Americans need to think about as well. Of course the Bill of Rights is ignored for a century court pays no attention now that's the only thing that they care about is the Bill of Rights but for a century you don't get court decisions hinging on the Bill of Rights till after the Civil War. So there's a lot to unpack there in that clip so I'd like to maybe ask a few questions and work my way through it beginning with Tub for a Whale who would like to tackle that concept and talk about that. I'll try that one because I actually once worked on a whale watch vessel out of Alton Harbour so I feel like I have expertise in this area. We never got attacked by one of the whales and we weren't attacking them but it's a beautiful image that I hope some of the people watching will find an excuse to use it in their next argument with their spouse or something because the idea is you're out there chasing the whale and then the whale we're talking about sperm whales they are powerful whales those are the ones with teeth comes back and attacks your ship and we're not talking about a small little wash tub like we might use today to wash them in like people used to use to wash clothes but it's a big giant tub it looks a little bit like a ship or a boat and you throw that overboard in hopes that the whale will attack that instead of your ship and so for the many many people Kenneth Bolling wrote an amazing article about this the many many people who use that phrase a tub to the whale the amendments that Congress offered the 12 were a tub hoping that they the people who had opposed the Constitution and wanted amendments would be satisfied with that I mean there's other cliches that you could use or just call it a diversion but it's a very powerful image so Mary builder the person throwing the tub presumably is James Madison and you know about him so do you agree with that and how was it that he was the one who proposed this yeah I mean I think it's so important to put the chronology into place here as your film says they had there's actually two moments in the convention when something that looks like a bill of rights is proposed once actually by Charles pink me the one of the largest slave holders at the convention in August and then again George Mason wants a committee right at the end probably not so much as to sink the Constitution and and then during ratification there's a sort of perpetual drum of there's no bill of rights and they're thinking of something that looks like the declarations of rights that were in about half of the state constitutions or the British and and then you know you have to skip forward quite a bit because the Constitution gets ratified and two states don't ratify North Carolina and Rhode Island and in 1789 that when the first Congress meets everybody is basically like we're going to go back to business creating the government and James Madison is the person who stands up in June of 1789 and gives this great speech and he had not been proponent of the bill of rights he actually at the convention hadn't thought that the Constitution was necessarily be interpreted in a way to need it but but in Virginia he loses the Senate seat because people think he's against rights and so he circulates sort of like letters saying I'm from his friends like I'm for amending the Constitution and so he finally makes it into the House of Representatives and there he becomes I think it's quite interesting you know a politician who actually says I ran basically on amending the Constitution I'm going to amend the Constitution and some of that may be because he and Jefferson had exchanged letters thinking about about rights and one of the things that had happened during the ratification is that the anti-fetalist or the opponents argued so powerfully all the language like the general welfare clause and the preamble and the necessary and proper clause that it became impossible to imagine the Constitution as giving the government a very small limited amount of powers because for two years the opponents kept saying it's going to be all these discretionary powers and look at all these places and so in a funny way they decide it becomes more understandable to try and amend the Constitution with those rights but the amendments Madison wants are going to revise the Constitution they're supposed to be inserted into the Constitution and many of them don't involve don't involve rights a lot of them are preambly and so he starts out in the summer I think not thinking of it so much as a tub to the whale as trying to get some changes he wanted made and also to try and have Rhode Island and North Carolina ratify but everybody else had ratified so in some ways wasn't the biggest deal I'll let you go but I just was going to say that you pointed out the what the anti-fetalist really wanted were changes that regarding taxes and the money supply but go ahead and actually money supply gives us another whole faction that a friend of mine calls the anti anti-fetalist that is the people that had fought the framers of the Constitution before they even got to the Constitutional Convention but because they are not represented on either side of the debate over the Constitution that is for the people who supported the idea of state paper money one of the most popular clauses in the Constitution is the contracts clause which also prohibits paper money and as you know Luther Martin was one of the few who was willing to stand up and say paper money can be a good thing and it had been a good thing in many of the states that had funded the war it's the reason they won the war without a national got one of the reasons they won the war without a national government was it they printed paper money people got screwed but they won the war the point is that the people who believed in paper money specifically as a form of tax relief they weren't represented hardly at all Luther Martin would be one of the few exceptions and I want to say on the top of the whale thing I agree with you Mary that it wasn't a conspiracy that the anti-fetalists to use that term posited that Madison just said hey I'm willing to give you this stuff but not this other stuff and you know maybe in his heart of hearts or brain of brains was clever enough to see that this would be a way of diverting people from the more fundamental changes but there was no way he was going to make the fundamental changes I think his idea was we'll throw out these civil liberties and see if people buy into that but as we're talking about this Richard I think the thing to not lose sight of it as Mary and others have pointed out it took a long time before Gordon Wood just said it too before the Bill of Rights became as important as they are to us now in the 21st century but you know when I asked my students what are the things about the Constitution you really like they'll say freedom of speech, freedom of religion, gun rights everybody can vote and none of that's in the Constitution none of it none of the most popular clauses are in the original document I remember giving a talk and I said well the one thing there is in there was the right of habeas corpus and someone shouted from the room not anymore because that was a problem in the last couple of decades but there's really not a lot of people like separation of powers but it doesn't really do that or checks and balances there's a few things in the original seven articles that are popular today but not much it's mostly the Bill of Rights so here's my message to people if you really like all those facts that I just mentioned and that we almost all of us really love the people to thank are not the people who wrote the Constitution but the people who hated the Constitution because if they had been what some people define now as loyal Americans and said well George Washington signed this and we love George Washington and Franklin and the rest and since therefore we wouldn't dare try to change it if they had been unwilling to challenge the founding fathers we wouldn't have a Bill of Rights I think Martin at one point said I wasn't sent there to sort of bow down to these great figures who I like too and that quote that you just said we put it on the DVD box from Woody Holden can I just say Richard because I do think it's such an interesting point that Woody makes because one thing that's really is important to recognize is that the Constitution itself you know we tend to think of the rights all being in the amendments and none in the Constitution but the Constitution itself contained the great Magna Carta rights which were Hades corpus and jury trial criminal in a criminal case and a very dramatically liberal right which was you there would be no religious tests for civil offices and you could affirm not you wouldn't have to take an oath but you could affirm and that there would be no titles of nobility there could be no ex post facto clause laws and that you couldn't lose your property because of treason like your descendants couldn't do that and so in some ways one of the things that's interesting is that the Constitution the main Constitution the 1787 Constitution contains the rights that a lot of people thought were sort of a thousand year old fundamental and then a very new one the right to basically be free of the state being required that you have to be a certain religion in order to serve and then the rights that we see in these amendments really date from a sort of later period a lot of them are in the 1689 English declaration but then there are also ones that the states had come to think were important and so in some ways the whole collective of the ones in the Constitution plus the ones in the amendments really show you how what we think rights are change over time in terms of how important we think they are and this was something that Madison cared immensely about he was very worried that once you wrote rights into the document and you wrote them down you enumerated them people would come to think those were the only rights they had and they would believe that they didn't have other rights and there would be no rights and so he was very careful to write the language that we now think of as the 9th amendment that we insist that just because we have a list in enumeration that's not all the rights there are there are other rights that people have that are just as important as the ones we've written down that we just haven't written down right now and he really thought that if you did not believe that you shouldn't write a list because otherwise the list was going to be seen as the full sum of it and I think that's an incredibly important understanding about what at the time the founders believed the rights they wrote down were not all the rights that people had. So the question then is why is it that it takes so long for anything, any court cases to revolve on the first 10 amendments weren't there instances before the first and I could be wrong the first amendment seems like 1917 during World War I is the first time that that comes into play weren't there other times like where that could have been used in the court? Woody you wanted to go otherwise I can have that one too. One of the things that happened was there's some suggestion that maybe what Madison thought rights would be good for and writing them down was that the public would come to believe them. Sort of what Woody is talking about. Ordinary people would think that they had rights and then they would think about those rights and thinking about who they were going to elect for office and what they thought those people should do and they also thought that maybe courts could do something with them but in the 1830s the Chief Justice of the Supreme Court John Marshall in a case basically says that the rights in the federal constitution don't apply if you're complaining about the states and so up through the Civil War because most of what happens to people is the states, the Federal Bill of Rights isn't very useful and then after the Civil War with the new 14th Amendment gradually over a very long period of time the Supreme Court does what we call incorporation that is they basically decide that the rights, most of the rights in the first 8 plus the 9th Amendment can be used against the state and the federal government Can I add a quick footnote to that though for the 19th century I kind of mostly want to plug a book by a friend of mine named Mark McGarvey called One Nation Under Law because he makes the case that the Supreme Court did do a lot to protect religious liberty in the early 19th century not using the First Amendment which you would expect it to but as Mary was saying they initially interpreted the First Amendment as only limiting Congress and that's a reasonable reading of it because it was limiting McGarvey but the contracts clause article 1 section 10 prohibits the states from impairing the obligation of contracts and that's the basis for instance for the famous Dartmouth College case and other cases that promoted religious liberty or the liberty of an institution like a university and so the contracts clause which I think was put in there to attract capital that is to make sure that people who lent money could get it back and for a very practical economic purpose ended up with the ironic result of protecting religious liberty from oppression by the states until we get the 14th Amendment so we know this I was just going to say Richard you know it's one of the things that if you go and read the Constitution which a lot of people do and you get to the First Amendment and you think about you know how people tend to think of the First Amendment as just freedom of speech but you read it and it says Congress shall make no law respecting and and it's only because the court over time using the 14th Amendment basically says yeah but then with the 14th Amendment after the Civil War that also meant it applied to the states and you know you have you have a whole at this point century of interpretation that helps understand why the First Amendment works the way we think it works it works in a way completely different to what the founders thought the founders thought it would be mostly useful so when you went into Congress and said you know George Washington is a think and he should be thrown out of office George Washington didn't put you in jail for saying that which is of course what you know the British government did all the time to people when they complained so there's a two minute clip a second that covers some of the ground that we've just been talking about but I think it would be interesting to just go ahead and roll could you roll clip number three please Brian? There is an irony in saying we should worship the founding fathers for giving us gun rights and freedom of speech and freedom of liberty and no unlawful search and seizure because they didn't give us any of that stuff if you really value your freedom such as freedom of religion and gun rights the people to thank for that are not the man who wrote the people to thank for that are the men who hated the Constitution. Now Luther Martin demanded a bill of rights but as an opponent of the Constitution it was it was sort of a side issue for him almost he noted that had the government been formed upon principles truly federal as I wished it there would have been no need of a bill of rights Madison of course says that a bill of rights is a parchment barrier that it won't do any good and he's seen that in Virginia over and over again and if you think about the fact that within seven years after the passage of the bill of rights we passed the sedition act and then in World War I President Wilson gets Congress to pass first the sedition act and then the espionage act which makes basically free speech illegal if you oppose the war effort in any way I mean there's a movie Bay and during World War I about the American Revolution because it puts our British allies in a bad light this is absurd so one level Madison is right that it's a parchment barrier and another level of course he later comes to the conclusion that having this on paper is a good thing because it gives us something to try to achieve now we had a nation a Constitution and a bill of rights with provision for further amendments it was up to us to protect these privilege what happened I've got the idea across I'll have this gizmo fixed in a second then put on something easy to take a routine two in western with men fighting it out the old fashioned way I just let one of my little pet clips in there at the end because I think that's so funny so what about this note I mean I think we've covered some of the things that Woody said in there but let's go to this idea that Paul Finkelman is talking about of parchment barrier and then espionage act which was used against Daniel Ellsberg and then has been used against Edward Snowden and I mean how can that be constitutional this espionage act it kind of maybe you can explain it to me is it a parchment barrier what do you handle that one first on the well I have to correct myself from the film because I was talking about the men who opposed the Constitution I can't believe I said that because of course one of the most articulate spokespeople against the Constitution was Mercy Otis Warren in Massachusetts and I think there were other women I know there were other women on both sides of that conflict too but can I say on Madison's in Madison's defense yes he wrote a constitution that didn't prevent the alien and sedition but he sure didn't vote he didn't support them he wasn't in Congress anymore but he not only opposed them but went so far as to say that Virginia and Kentucky could nullify them the states that didn't like them which none of us would go that far today that led to very bad things in the 19th and 20th century but my point is I think I would agree with and I think you were saying this Mary and tell me if I'm wrong at one point became sincere that is he starts all saying it's a parchment barrier and then he says well anything we can do to make people feel better but it was sort of a placebo I'm the doctor I know it's a sugar pill but if it makes people feel better we'll give it to him so that's stage two but then stage three is well maybe this is really helpful and it's still not perfect because it is a piece of paper but I think it does show the power of a piece of paper which is true that every time either people try to use their civil liberties or we have a war someone else tries to take them away and by the way that film from 1917 was called the spirit of 76 and I love the fact that the Supreme Court case against the case against it I'm not sure when all the Supreme Court but there was a federal case that shut it down and the case was called the United States versus the spirit of 76 that you know that happens but I think it would happen worse if we didn't have it in writing so I don't buy the parchment you know a law is a billboard advertising a principle that's you know we wish we had something better but but but it's better than nothing yeah I mean Madison thought in the original amendments that he proposed he actually wanted basically what we would think of a speech and religion to apply to the states and he thought his experience in Virginia had been that the Virginia legislature violated left and right people's religious freedoms and people's free speech rights and he thought the federal constitution should explicitly in those regards be used against the states by individuals and he loses that the Senate knocks that out and it will only be in the post-war period that that comes back in but I also think he very much you know he thought the constitution should be revised he didn't think he was at that time forming something that was locked in stone he imagined the constitution being capable of revision and in a funny way it's during the fight over those amendments that our notion of the constitution first comes into being was Madison wanted the amendments what become the rights that we think about to be literally lined in in the main constitution and that's how a lot of state constitutions do it today they just amend it but Roger Sherman was like that's going to get confusing for people and so they had a vote on the congressional floor and Sherman wins and Sherman says let's just hack him on the and what he called being supplemental and then the original document will stay intact and then we'll have these other things added on and in some ways that really it's that moment when they decide to tack things on that we get this vocabulary around there being a document written in 1787 that then has changed because Madison's approach would have never let you see that the document would have always been been revised and that's that's such an important thing and similarly a sort of complete contingency is that the first two amendments amendment one and two that came out of the senate related to congress and so what we think of as the first amendment and we think it's so important because it's the first amendment it was actually amendment number three and only because on 1791 when 10 come back the first two don't have enough votes to be ratified do we have this sort of idea the amendments that are added first relate to rights and so you know that if you had all 12 amended right away then we wouldn't really see the amendments in this you know the kind of crinkly bill of rights motif that we tend to see them as so we have one more clip to show but there's a question from the audience and since it's kind of on our topic now I want to ask you and either of you could answer the question is is the constitution a quote living document or is it quote the law of this land or something else all together well I think it's the law of this land it says it is but I think it's also a living document and I think that the beginning of the constitution says we the people for posterity and I think that was a clear command from the people who wrote it that it was supposed to last for a very very long time because it lived through the actions and understandings of posterity the people who came afterwards so the final chapter of the film is called the constitution in the 21st century and there's just a two-minute clip it's clip number four that I'd like to show so we can wrap up our discussion could you show that one please Brian the interpreter was lost decisively and their heirs losing decisively for 225 years and yet there are American political movements that I think have the anti-federalist as a kind of wellspring or source who worry particularly about the corrosive effects of military empire on America Senator William Fulbright the Arkanzen Fulbright said the price of empire is America's soul and that price is too high I think that the best antidote to the empire is recovering a sense of place no matter where you are it can be your hometown it can be the place you live now but you know Booker T. Washington once said cast down your bucket where you are that means knowing your neighbors that means supporting local businesses local music local artists and I see great hope in these things to completely transcend any kind of liberal conservative left right boundaries all that red state blue state nonsense most anti-federalists believe to much greater extent than the men who wrote the constitution that ordinary Americans have the capacity to govern themselves and the constitution made a supreme powerful statement that ordinary people can't rule themselves and a lot has changed since 1787 but that issue is still out there there is still a fundamental question about where is the problem is the problem that ordinary voters want to be freeloaders and get free stuff from the government or is the problem that there are wealthy interests who have too much power in Washington and that's the same battle that there was between the federalists and the anti-federalists so to take that so Woody Holton's notion into the 21st century either Americans want stuff for free example West Virginia Senator Manchin recently argued that he doesn't want us to become an entitlement society so he wouldn't support large parts of Biden's priorities on the other side you have Senator Bernie Sanders who persistently criticizes the 1% the elites that they're ruining everything so what do you make of that since Woody said let me ask you Mary what do you think of that I saw Woody get his book which is a perfect segue so I'm going to let Woody talk I'll take this one I wasn't getting my book I was getting Ruby Bridge oh that's a great book and the reason I'm getting this one is that the earlier conversation reminded me of a great way for us to cast down our buckets where we are is to go to our local school board meetings and we're going to be bridges this book this book has been banned there are people all over the country trying to ban this sweet little children's book by the woman who as a child integrated the New Orleans public schools she's the subject of that famous Norman Rockwell painting and it's the most supportive positive book for instance paying tribute to the white teacher who welcomed her and people are trying to ban it because they think white kids their white kids feel uncomfortable and even if I disagree with the book there's a speaker that a lot of people see on college campuses Ann Coulter who's sort of an open racist I hate what she has to say but we've got a fight for Ann Coulter along with the much more admirable in my opinion Ruby Bridge is because I'm just thinking after what you said before it can be simply a part of paper parchment barrier unless people are for it so I think of it as a billboard the bill of rights reminding us that we ought to be for other people's freedom of religion and freedom of speech and all the rest but it doesn't work unless we back up the Supreme Court A if we have a Supreme Court that's for academic freedom as well as religious freedom and B if we it doesn't work if we don't support the court Marshall famously said after the Supreme Court ruled in favor of the Charities John Marshall has made his decision now let him enforce it the Supreme Court doesn't have an army to enforce the right of children to read this book it's up to us to enforce that right by going to our school boards and when the people who try to burn books are screaming at them we need to not scream but we need to show that the majority doesn't support that I mean I think one of the if you think about on I guess Bill of Rights Day which I had confess I was not so familiar with the specific date if you think about one of the really interesting legacies culturally in the United States because of the Bill of Rights you know one of the assignments I have my students do is go around and bring in a photograph of something that's inspired by the Bill of Rights and you know everywhere you go you see you know I once had you know the Burger King Bill of Rights which was an advertising campaign they had about their hamburger and the MBTA in Boston has a customer Bill of Rights and you can see all sorts of ways in which for I think Americans this notion that you have rights and that's a really important part of what does it mean to be a citizen whatever the Woody and I can tell you the technical story of everything but the really incredible thing is that Madison came to believe that the rights people would actually believe the rights and I think in that sense he was totally right that the rights are almost more powerful as a concept that people have come to believe in as something that is unique to be an American that's important to be an American that's a way of ensuring people that you'll be protected just any kind of power structure and that's just a really important legacy regardless of how it came to be we're almost because of how it came to be it's so full of irony that the Framers did not go to Philadelphia you mentioned and I learned from that Mary about of course there are these ancient rights but not the ones that so many people care about today like religion speech and press we only got those because some people hated the Constitution and they didn't get what they wanted but they got what we wanted and then Sherman made this crucial decision or got Congress to make this crucial decision to separate the Bill of Rights and put them on a pedestal which can be confining but or can be celebratory he did it as you pointed out in your book I learned this from your book he didn't do that for the Bill of Rights to say he did it for the Constitution to say he thought it might mess up the Constitution to have all this extra stuff and so it's so fragile it came about through such a fragile process it took a hundred years before the more than a hundred years before the court was really quoting the Bill of Rights against the states it's so fragile that it requires constant renewal by us so we only have a couple minutes left but since you mentioned the word fragile let me let me just ask both of you it seems to me like at the moment American democracy is sort of walking on a tightrope across a gorge and the wind is starting to pick up am I wrong are we in a kind of dangerous moment now and you know as historians and scholars what do you think about that well I mean I you know the advantage of working on the 1790s is you know Jefferson and Adams and all those guys almost destroyed the country so there's always this you know like they almost destroyed the country they were you know Joanne Freeman has a book they were hitting each other over the head in Congress they wouldn't let anybody talk about race or slavery on the congressional floor they gagged all the petitions right away I mean you know sometimes I'm like it's a little bit hard to do worse than those guys did in some ways but I think it's incredibly important I think I happen to be somebody who thinks facts matter I think there are things about history we can learn I think that great institutions like the National Archives Library of Congress the Smithsonian have all sorts of people who work really hard to give people the basic historical and civics literacy from which we can have a conversation and and Woody and I and some of the people in your film would disagree about interpretations but we would agree that there's a order in which things happened and that that's that's important to know and that that's a way I think very much foundationally that we can have conversations about different sets of values that we have and you get the last word because you always have a better last word than I that was a good last word I think I think that's a pretty good last word I've got two o'clock so I think we got it well I want to thank you both so much for joining us here today for this conversation and we're indebted I'm indebted to the National Archives for inviting us to do this if you want to learn more about Mary Builder and Woody Holton you need to read their books and if you want to know more about Confounding Father just do a google search for Confounding Father Documentary and you'll find out how you can watch that so happy Bill of Rights Day everyone and thank you very much Happy Bill of Rights Day Thanks very much