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Austin Constitution Meetup, 2013/12/17, on the Bill of Rights, celebrating Bill of Rights Day. Jon Roland explains why the Bill of Rights provided necessary increased specificity, and why further reforms need to do the same.
See
http://constitution.org/dhbr.htm
http://constitution.org/reform/us/con_amend.htm
http://constitutionalism.blogspot.com/2012/07/list-of-constitutional-rights.html
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0:11
good
0:11
evening this is the December
0:16
17th
0:19
2013 Constitution Meetup in Austin
0:23
Texas I'm John
0:26
Roland uh today is our last day
0:31
meeting at the Old Quarry Branch
0:34
library in North
0:37
Austin uh beginning in J in
0:41
January we will be meeting on the 4th
0:45
Tuesday of each month at the North
0:48
Village Branch library on St
0:53
Avenue uh except that in November and
0:57
December of 2014 we will be meeting on
1:01
the second
1:02
Monday of the month in the same
1:09
Library the
1:11
theme of this
1:14
meeting since Sunday was Bill of Rights
1:17
Day is a Bill of
1:20
Rights and I'm going to
1:22
examine some of the uh things that make
1:29
the Bill of Rights
1:31
important and may make it necessary for
1:34
us to expand on
1:36
them
1:38
now
1:41
uh
1:43
to go over a little
1:46
history originally the
1:49
constitution on September 17th
1:52
1787 was proposed without a Bill of
1:56
Rights there had been an English Bill of
2:00
rights uh adopted as an act of
2:04
parliament uh which served as a
2:09
model
2:11
uh
2:13
the several of the
2:16
states um especially Virginia had
2:20
adopted a Bill of
2:22
Rights in connection with their
2:25
constitutions their new state
2:27
constitutions on which the Federal
2:30
Constitution was
2:32
modeled so uh there had already been
2:36
established a history of listing
2:40
rights a bill means a
2:43
list and uh the list of Rights the Bill
2:48
of Rights was supposed to be
2:51
restrictions on the powers of
2:55
government now now the emission of a
2:58
Bill of Rights from the original
3:00
Constitution was not an
3:03
oversight uh many of the framers of the
3:08
Constitution thought it was
3:10
unnecessary that they simply had not
3:13
delegated uh the powers to infringe on
3:17
rights and therefore it would be
3:20
redundant to try to list any rights that
3:24
you know were restrictions on what
3:27
government could
3:28
do
3:30
um
3:32
the arguments made are summarized down
3:39
here that a Bill of Rights were
3:41
unnecessary because no powers have been
3:44
delegated that might infringe on
3:46
them now Madison also argued that
3:50
declared rights are M parchment barriers
3:54
that can only be protected by
3:58
constitutional uh structures that divide
4:01
power among contending
4:04
forces he was a great believer in
4:07
separation of
4:10
powers uh
4:12
third the argument was made that listing
4:15
All Rights was impossible they were
4:19
infinite uh and it would be dangerous to
4:22
provide a partial list because any
4:25
omissions could be
4:27
interpreted as those rights not
4:31
existing under the common law rule of
4:34
construction called expressio un EST
4:38
exclusive
4:40
exclusio
4:42
alteris in other words if you don't
4:46
express one then it's excluded as an
4:54
alternative now some of the framers like
4:56
George
4:57
Mason refus to support the ratification
5:01
of the Constitution without a Bill of
5:05
Rights and a lot of people agreed with
5:08
them uh on not to ratify the
5:12
Constitution on those grounds so a Bill
5:16
of Rights of some form became a leading
5:20
subject of debate on over
5:24
ratification and the way it was
5:27
resolved was that the leading prop
5:29
opponents of
5:32
ratification agreed with the
5:34
opponents that they that once the
5:37
Constitution was ratified they
5:40
would adopt
5:42
amendments that would add a Bill of
5:46
Rights to the
5:48
Constitution and it was on the strength
5:50
of that
5:51
reassurance that they proceeded to get
5:55
enough support for
5:58
ratification and and ratification was
6:01
achieved uh June 21st
6:07
1788 um each of the ratifying state
6:12
conventions had
6:15
adopted a list of amendments they wanted
6:18
to see
6:20
made most of those having to do with
6:24
rights so
6:27
after a ratification was
6:31
declared uh Madison was elected to the
6:36
House of Representatives in the first
6:38
Congress and he his General was
6:41
generally agreed had the the unenviable
6:45
job of trying to boil down all the
6:49
proposed amendments that had come from
6:51
all of the the states and to try to uh
6:55
come up with a shorter list of
6:58
Constitutional Amendment mend
7:00
ments now uh he did
7:04
that he came up with
7:07
a A list which he proposed the House of
7:12
[Music]
7:13
Representatives the house assigned to
7:16
committee where they boiled it down some
7:20
to a shorter list Consolidated some of
7:23
the
7:24
Amendments
7:26
uh the then the Senate took it up
7:29
assigned it to a committee they further
7:31
boiled it down it went back and forth
7:34
and finally they agreed on a list of 12
7:39
amendments uh the first two of those
7:41
were not immediately adopted in fact one
7:45
of them was finally adopted in the 70s
7:48
but uh after almost 200 years but the
7:54
Amendments 2 through 12 became known as
7:59
the the Bill of Rights those were the
8:02
first 10
8:03
amendments the Bill of Rights by the way
8:05
is not an official title of the
8:08
Amendments it's just with what people
8:10
call
8:12
them now
8:14
uh we have
8:18
a page on our website at
8:22
constitution.org
8:24
called the documentary history of the
8:27
Bill of Rights
8:31
which uh you are welcome to
8:33
visit it uh starts with a table of the
8:36
sources of the Bill of
8:38
Rights which is
8:40
interesting because it
8:43
shows for each of the Bill of
8:50
Rights where it came
8:54
from it's in a
8:58
table and and what I do
9:03
here I have numbers across the
9:06
top numbers down the
9:09
side that on down the side are the
9:13
rights that the states our others call
9:19
for and the numbers across the top
9:23
identify the source of
9:26
it so if we go down to the bottom
9:29
here we'll
9:32
say
9:35
the like number three was a one of them
9:39
proposed by Madison number four Madison
9:43
numbers as a proposed to
9:46
Congress uh five adopted by select
9:49
committee six adopted by House of
9:51
Representatives seven adopted by Senate
9:54
a adopted by a conference and Congress
9:57
was sent to the states nine
10:00
ratified then we go down to the English
10:04
Bill of Rights the Virginia Bill of
10:06
Rights the convent Convent Virginia
10:10
convention Bill of Rights in other words
10:12
that's not just what was in the Bill of
10:16
Rights that Virginia had adopted for
10:18
itself but the Bill of Rights that the
10:21
Virginia convention proposed to the
10:24
federal
10:26
government and then it has each of the
10:29
the other list of proposals Pennsylvania
10:33
Massachusetts Maryland actually there
10:35
are two groups from Maryland the
10:37
Maryland majority the Maryland
10:40
minority uh there's also
10:43
a uh pencilvania Minority
10:47
Report uh South Carolina New Hampshire
10:50
New
10:51
York uh North
10:54
Carolina uh and
10:58
uh what we did is prepared this table
11:03
and it shows where they all came from
11:06
they didn't all come entirely from the
11:09
state ratifying
11:12
conventions some came from the from
11:15
other sources but Madison thought them
11:19
important and
11:21
uh but he
11:23
recognized the
11:25
problem that if you left any rights out
11:29
that people would try to interpret that
11:31
to mean they didn't
11:33
exist so he proposed a catchall
11:36
amendment that essentially said that any
11:40
rights that aren't listed here are to be
11:45
recognized but we just don't spell them
11:48
out well what Congress did is he split
11:51
Madison's proposed amendment into two
11:54
amendments that became the ninth and the
11:56
10th
11:57
amendments uh the ninth the 10th
12:00
Amendment had to do with
12:02
powers it essentially said that any
12:06
powers not delicated to Congress were or
12:09
to the rest of the federal government
12:11
were reserved to the states or to the
12:14
people in other words this is sometimes
12:16
called the
12:18
the uh the non-delegation
12:21
doctrine or one of the forms of the non-
12:24
delegation Doctrine if it's not
12:26
delegated they doesn't it doesn't have
12:28
the
12:30
power the Ninth Amendment says there are
12:34
unenumerated rights that we're not
12:37
listing here but there are nevertheless
12:39
rights that are to be
12:44
recognized now what has happened in
12:46
practice is exactly what the uh
12:50
Anti-Federalist feared because judges
12:53
have taken it upon themselves to say
12:55
that if uh they can't find find a right
13:00
spelled out that they're not going to
13:02
recognize it and they're not willing to
13:06
study legal history to find out what
13:09
other rights might be included in the
13:12
Ninth
13:13
[Music]
13:14
Amendment they're just not willing to do
13:16
that neither liberal judges nor
13:19
conservative
13:20
ones so uh we've had a problem with
13:24
trying to get the courts much less the
13:28
execu
13:29
Branch or the uh legislative branch to
13:32
recognize unenumerated
13:35
rights and one of the things that I've
13:39
done is try to find all the
13:44
rights that I
13:47
could that in historical
13:52
record uh going back to uh more than a
13:55
thousand
13:56
years all the legal author that the
14:00
framers
14:02
respected uh some of them even going
14:04
back to ancient Greece and Rome ancient
14:08
ancient Israel and so
14:10
forth and list them all
14:13
out and uh quite a few of
14:17
them I got them
14:20
here
14:22
uh we've got uh 15 in one group 16
14:27
17
14:29
you got
14:36
uh 10
14:38
12 12 more
14:41
there and another five more here and so
14:45
fourth under the other category we go
14:47
down
14:51
to 14 of
14:53
them so we've got
14:56
um or I've got
15:00
um another 30 or 40
15:03
rights that can be listed
15:08
out and what I have proposed to
15:11
do first I propose Constitutional
15:15
Amendments that would spell out all of
15:17
those
15:18
rights and secondly I have proposed
15:23
legislation a essentially an amendment
15:26
to the Civil Rights Act
15:29
which would add recognition of all of
15:33
those rights to the Civil Rights Act so
15:36
they all could all be
15:38
litigated in federal
15:41
court and enforced
15:44
as criminal violations if anyone
15:47
infringed on them who were represented
15:50
an agent of the state of a state
15:54
government now
15:56
uh needless is say if I could ever get
15:59
that introduced in Congress it would
16:02
start a
16:04
conversation uh right now I have the
16:07
usual problems of getting anyone to pay
16:10
attention to it because I don't control
16:13
a lot of money or
16:16
votes
16:17
but one has to start
16:20
somewhere and I'm hoping that others
16:22
will pick up on this and car carry it
16:27
make it an isue in their campaigns
16:30
perhaps introduce it in Congress and so
16:34
forth now what is it about a Bill of
16:40
Rights that is
16:43
important why was it a good idea to
16:45
adopt
16:47
it
16:49
clearly
16:51
the history of the Bill of Rights has
16:55
been that most of the rights
16:59
that it
17:00
recognizes have been some of the most
17:03
important cases that have gone before
17:06
the federal courts and particularly the
17:08
US Supreme
17:10
Court uh people know the Bill of Rights
17:13
better than they know the Constitution
17:16
because for one thing they're more
17:19
likely to litigate over
17:21
it so it has certainly been important
17:23
for
17:25
litigation but we can ask ourselves if
17:28
there had been no Bill of Rights would
17:31
we be any worse
17:33
off and I think the answer is
17:37
yes because the reality of Law and
17:42
constitutional law in
17:43
particular is that it needs to be
17:46
specific as specific as it possibly can
17:52
be the Constitution as originally
17:55
proposed was only 400 written
18:01
pages to be as
18:03
specific as I am proposing in my
18:08
proposed amendments and my proposed
18:10
expansion of the Bill of Rights it would
18:13
run to more like 40
18:16
pages and some would argue that to be as
18:19
specific as it would need to be it would
18:22
need to be 4 400
18:25
Pages well the reality is that
18:28
if it had been for 40 pages at the
18:31
outset it would never have gotten
18:35
ratified uh it needed to be succinct it
18:39
needed to be
18:40
concise needed to be expressed in as few
18:43
words as
18:44
possible but when you but
18:48
brevity is in conflict with
18:53
specificity and a specificity that
18:56
protects
18:57
rights when you try to boil down rights
19:02
Protections in a language as naturally
19:05
vague as English is and legal English in
19:10
particular you are going to introduce
19:14
vague
19:15
language that is too easy
19:20
to find loopholes in to find excuses in
19:27
to violate those right
19:29
rights um I see no real way around that
19:34
I have made many attempts over the years
19:37
to try to F find better language for
19:41
what is already in the
19:43
Constitution and the only thing I've
19:45
ever been able to
19:47
find that more adequately
19:51
protects uh
19:53
rights are is a lot more
19:56
specific so so
19:59
uh for those who argue that the
20:02
Constitution and Bill of Rights are just
20:05
fine the way they are we if we would
20:07
just interpret them
20:08
properly well I'm sorry but I engage in
20:12
debates every day with legal
20:17
Scholars and they're
20:19
unclear they're some of the best
20:21
educated people in the country and they
20:24
can't agree on what our rights are on
20:27
what or what govern power should be
20:29
based upon what's written in the
20:32
Constitution so unless we can make the
20:35
Constitution a lot more
20:37
specific we are not going to be able to
20:40
reign in powers or protect
20:43
rights now some of that can be done
20:45
through through
20:47
legislation as I have proposed to do we
20:51
can approach it from many many different
20:54
uh uh
20:56
angles but but whatever we do we need to
21:00
get down to
21:02
specifics and uh stop wasting our time
21:08
with broad generalities that don't get
21:10
us
21:11
anywhere uh there are many many
21:13
discussion groups out there that
21:16
essentially waste their time arguing out
21:19
about broad General vague aspirational
21:24
language
21:25
that uh even if adopted wouldn't help us
21:31
because it is not specific enough to
21:36
protect against attempts to misinterpret
21:41
it the way to avoid
21:44
misinterpretation is with
21:47
specificity that's how contracts that
21:51
start out being onepage documents wind
21:55
up being 100 page documents
21:59
it's not because the lawyers just like
22:02
to cram a lot of legal leaves uh into
22:07
the document so they can run up their
22:10
bills is because over a period of
22:13
time uh we have discovered the hard way
22:17
that if you don't cover every uh angle
22:23
if you don't have language that allows
22:25
for every possible misin interpretation
22:29
that somebody is going to find a way to
22:31
misinterpret
22:33
it so specificity is
22:37
critical
22:41
now now that the uh we have had another
22:45
Bill of Rights
22:47
Day we have had celebrations this year
22:50
all over the country more than in any
22:54
previous years we've had many more hits
22:57
on our website site as a result of that
23:00
and that's
23:02
great but now we need to continue
23:06
it it's not enough just to study it or
23:09
discuss it we need to get down to
23:13
specifics and uh that's going to take
23:16
groups meeting like us to hit our
23:21
members of Congress our state
23:23
legislators our opinion leaders anybody
23:27
we can find
23:29
and and to keep hammering them with you
23:31
know demands that they support our
23:35
specific language of
23:38
Reform not their language not something
23:41
they might come up with but our
23:44
language because as I'm fond of
23:47
saying if you demand
23:52
something of others without being
23:55
specific you're not asking them to do
23:58
something for you you're asking them to
24:00
do something to
24:02
you we have to write the
24:05
language we cannot depend on others to
24:08
do it for us and if you don't feel that
24:11
you're up to writing the language that's
24:14
fine I've written plenty of it for
24:18
you now you might have trouble
24:21
understanding initially why it's
24:24
important to write this much stuff in
24:27
the way that I
24:28
have fine I don't claim to have perfect
24:32
Solutions but it's enough to get
24:35
started If This Were to be introduced no
24:38
doubt there would be a lot plenty of
24:40
debate and some of the debate might
24:42
result in
24:44
improvements
24:45
but you have to get started somewhere
24:48
with something and you don't want to
24:50
waste a lot of time nitpicking on flaws
24:54
you might find in it uh just be before
24:59
you even get the discussion going before
25:02
you get the debate going so the the key
25:05
thing is we need to get the debate going
25:09
and to do that we need to have specific
25:12
proposals now some specific proposals
25:16
are not that
25:17
great we've had some from Randy Barnett
25:22
a friend of
25:23
mine uh he's a great guy good kind of
25:27
institutional scholar but his proposals
25:30
weren't that
25:32
great we've had another set from Mark
25:35
Levan which has been getting a lot of
25:38
attention uh but his aren't that great
25:42
either his intentions are good but his
25:46
the way he has designed his amendments
25:50
they just don't do a very good job of
25:54
solving the problems he tries to address
25:58
uh to understand why requires a lot of
26:02
discussion in
26:03
itself but whenever you have SE
26:06
proposals like that you have to ask not
26:11
only how they are would work if they
26:15
worked right but also how they could go
26:19
wrong so you have to examine each and
26:22
every one of them for all the ways they
26:25
could go wrong all the ways they could
26:27
be misinterpreted all the way clever
26:30
lawyers could try to distort their
26:33
meaning uh you have to really think
26:37
ahead to not only think like a lawyer
26:40
but think like Legions of future
26:43
lawyers and that's not
26:45
easy it's not easy for the lawyers we've
26:48
already
26:49
got they're probably not 200 people in
26:53
the world today who have the SK
26:56
Knowledge and Skills
26:58
to amend the US
27:01
Constitution and probably if you got
27:04
them together in one place that have 300
27:07
different ideas for how to solve the
27:10
same
27:11
problem
27:13
so to
27:16
assemble those with the Knowledge and
27:19
Skills and also get them to talk about
27:21
long enough that they can begin to reach
27:24
agreement is then the great challenge
27:27
and if I uh could do so I would try to
27:33
organize a series of working meetings to
27:37
do just
27:38
that but of course that takes money
27:41
takes backing uh and I don't have that
27:45
enough of that right
27:47
now so anyway for those of you
27:50
who view this
27:53
video those who uh couldn't make it at
27:56
the meeting tonight tonight I urge you
28:00
to spread it widely to urge people to uh
28:06
view it to talk about what I'm
28:09
discussing here to go to my website
28:13
constitution.org
28:14
uh you can find the link at uh uh the
28:19
history of the Bill of
28:21
Rights and the Constitution
28:24
blog uh all the thing the links
28:28
you know to this material are on the
28:30
homepage not hard to
28:33
find and if you do that you will
28:36
eventually uh get these
28:39
materials and you can begin to work on
28:42
them so uh with that if there are no
28:46
further
28:47
questions uh I'll call it a meeting and
28:51
look forward to seeing you uh next month
28:55
on the 4th Tuesday
28:58
in the at the North Village Branch
29:01
Library good
29:11
evening
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