Transcript

Speaker 1 [00:00:04] Welcome to the Colorado Magazine podcast. I'm Sam Bock, managing editor of the Colorado Magazine, and I'm so happy to bring you a very special series of podcasts all about our constitutional amendments. In this first episode, history Colorado historian and lead exhibit developer Dr. Gwen Lockman sat down for a roundtable chat about the Bill of Rights with state historians council members Dr. Nick Saenz and Dr. Jared Orsi. I hope I hope you enjoyed this fascinating conversation as much as we did. 

Speaker 2 [00:00:42] My name is Gwen Lockman. I'm senior exhibition developer and historian at History Colorado. And today I am joined by Jared Orsi and Nick Sanez, members of the State Historians Council. Jared's a professor at Colorado State University and Nick is at Adams State. Been a pleasure getting to know you and really happy to have you here today. Thanks guys. 

Speaker 3 [00:01:04] Great to be here, Gwen. 

Speaker 2 [00:01:06] So we will be chatting today about the Bill of Rights and having a conversation in the greater context of this commemorative year. It's been 250 years since Americans declared independence from Britain and we're really excited at the History Colorado Center to be welcoming the Freedom Plane from the National Archives and using this opportunity to talk about one of our most important. Historical documents, specifically today, the Bill of Rights. So Jared and Nick, let's kick off this conversation. Let's zoom back in time and think about the late 1700s. We know the Declaration of Independence was revolutionary in 1776. Let's talk about how the Bill Of Rights made real, the ambitions and the hopes of the Declaration. Take us to the 1780s and the Constitutional Convention. Why did we even have the idea of a Bill of Rights? 

Speaker 3 [00:02:06] So the Bill of Rights is a direct outgrowth of the ratification process of the Constitution. And one of the things in the Declaration of Independence that was aspirational was the idea of the people being sovereign. And the constitutional ratification process in 1787 and 1788. Was an embodiment of that aspiration. So it was an act of the people exercising sovereignty, and we see this with the first few words of the preamble who created the Constitution, we the people. So the fact that the Constitution was drafted, and as Madison said, was worth no more than the paper it was printed on until the people put their stamp of approval on it, means that... The ratification process, and we can talk in more detail about how that worked, but the ratification process that went to the states and was reviewed by delegates who were elected by the people, means that the Constitution itself is an attempt to enact the ideal of the Declaration of Independence, which was the sovereignty of the people. 

Speaker 4 [00:03:29] I would add there that in the Declaration there's this reference to inalienable rights, right? And so the Bill of Rights becomes a way to make explicit what some of those are. The document in many ways does a good job of stating exactly what the government can do. It doesn't really make clear what it cannot. And so the Bill of Rights is kind of a clarifying document. Or a set of documents, a set of amendments, right, that lay there the limits to that governmental power. And that becomes ultimately really important in securing ratification, because there was a lot of concern about granting these very far reaching powers to a government entity. Of course, before the Constitution, there's the system called the verticals of Confederation. And that was a much looser system of rule, which did not really manifest itself in the day-to-day affairs of most people. And so suddenly you go from this very unintrusive system of government to a potentially, right, they hadn't actually experienced yet, potentially very far-reaching system of role. And, so there was a lot of hesitancy, right? What does this all mean? What war? Me as a citizen of this country experience. And so as part of the ratification process, the Bill of Rights comes up again and again in public discourse as a means to really make clear the limits on state power. 

Speaker 2 [00:05:07] Nick, I'm so glad you brought up the Articles of Confederation, because, you know, the Constitution is undeniably important, formative, it's well drafted, it is complex, but there's also this period of time after the Revolution, things are really uncertain, and we do have these Articles on Confederaion as our system of government. Can we fill in some of the the borders here of what was the aim of the Articles of Confederation. You talked about this a little bit of it was a really unintrusive government. What happened to make it clear that that wasn't working? And how do we even get to the Constitutional Convention? And then after that, we'll get into the meat here of the Bill of Rights. 

Speaker 4 [00:05:50] With the Articles of Confederation, it doesn't set up a centralized system of rule. It really established a system whereby the 13 original colonies, now as states, function independently of one another with areas of kind of shared concern. It didn't allow for the resources of the state to pull off large projects, to raise significant funds for initiatives that would kind of transcend state borders. And so over the course of the first few years of independence, it becomes broadly aware to the persons in leadership that there needs to be a system that would allow for the government to requisition the support of the various states to pull off these really big undertakings. Many of them are financial, some of them more infrastructural. And this sets up federalism as we know it in the United States. And so that's a system of rule in which the central government has a lot more power vis-a-vis the system that hadn't been in place with the Articles of Confederation. 

Speaker 2 [00:06:59] So just to be really specific here about what we mean when we say financial, like we're talking taxes, military, what do what do we mean? When we say support for from states? 

Speaker 4 [00:07:09] Yeah, absolutely. Both of those things. Once the Constitution is approved, those areas of concern arise almost. Immediately. And so there had been a system whereby the states were committing at individual level to a lot of things, but these larger initiatives require sort of the authority of the central government to go in and create a system, whereby it can intrude and it can encourage and really force the states to play their part. 

Speaker 3 [00:07:41] So one of the flashpoints, of course, is Shays' Rebellion in Massachusetts in 1786. And that's an instance where debt-ridden citizens of Massachusetts march on the federal armory. It's one of these moments that makes clear how having a weakened federal government, both in its fundraising and military capabilities is laid bare. And it's, it's not the only one, but it's one of the moments when people look and see some of the limitations of the Articles of Confederation. I'll speak for a moment in favor of the articles of confederation, not too many limitations. It as, as Nick eloquently put, it was clearly a form of government designed to have a weak center. And nobody ever thought it was anything different than that. It was. But it also lays some really important foundations for the rest of American history. One of which is, comes at the end of the revolution and the beginning of America as a free nation. And that is the seeding of Western lands by states like Virginia and Pennsylvania and others. They had claims to land that stretched as far as the Mississippi and in some cases to the Pacific Ocean. And then, of course, Nobody in America knew exactly what was in those lands. And those were not free or empty lands. They were occupied. They were home to Native peoples. But one of the things that the states did was they ceded those lands to create a public domain. And without that, a lot of westward movement, a lot of settlements, the idea that the federal government could reserve some of those lands, that doesn't come into play unless the states see that to the to the next to the nation. Another important moment comes in 1785 with the land ordinance which provides for the gridding. And marking of those western lands. And so again all of westward expansion is founded upon that idea of land being marked and in a regular way so that it could be bought, sold, taxed. It creates a marketed land in a rational order that creates the possibility for American economic development. And then the third moment of the Articles of Confederation would be the Northwest Ordinance of 1787. If you think throughout world history, nations enlarged themselves through conquest and brought peoples in those lands into colonial relationships with the state. And this goes, you know, goes back to Rome, of course. But there was a different idea in the United States that there would be a set process by which conquered lands would be settled. And would be allowed to create territorial governments, and then would eventually be welcomed into the union as free and equal entities, rather than colonialized entities. Now, again, I need to emphasize that nobody in Native America thought of the Northwest Ordinance in these ways, but at least as far as it's applied to white settlers, This was an unusual idea in world history. 

Speaker 2 [00:11:21] That's great context to have, you know, even something as simple as when you look out a plane window today or when you drive through the Midwest of why you can see that the land looks the way it does with grids and, you know, of course, the circles are from the watering systems. But the fact that we do have this grid that spans the entire country, thanks to the Articles of Confederation and I believe Thomas Jefferson, if I remember right. But I think the other point that is really great about what you just brought up, Jared, is there are big issues, big debates, new processes being formed. And when the delegates meet in Philadelphia for a secret convention that wasn't even necessarily supposed to be to make a constitution, they brought all these debates with them. And in the Bill of Rights, we see, if not the resolution of some of these debates, the continuation of them in into the law. But we also see debates abandoned, or at least not touched. In law yet. I should probably say more than a bandit, but we have some debates that are not yet resolved in the Bill of Rights. So I'm tempted for us to make a laundry list of what's coming into the convention, what are the issues different delegates are showing up with. Let's name some of the big ones and then let's get into what shows up in the bill of rights and and what doesn't. 

Speaker 3 [00:12:42] So there are a lot of issues that are on the delegates' minds. There are concerns about large states versus small states and their relative role in the soon-to-be union. There are concern about northern states and southern states, which is also a set of concerns that surround the institution of slavery. During the Revolution and during the Articles of Confederation years, a lot of states are beginning to either outlaw slavery on their own or to move toward it, to take steps toward that, to limit it, to limit the slave trade, those sorts of things, and it's becoming evident that there's a sectional division. So that sectional vision is on people's minds. There's also a wide range of ideals about what kind of government there should be. And this goes all the way from people who are skeptical, even of the Articles of Confederation, into the to the degree that it relinquishes state sovereignty, all the way up to people who want to form another monarchy, or a similar kinds of kind of centralized authoritarian state, and then there's lots of people in between. So how much how the central government should have a lot. Or virtually none, sectionalism around slavery, and the question of large states versus small states, these are all on people's minds. 

Speaker 4 [00:14:24] I would throw in there as well, what does republicanism look like? And I mean that with a little R, right? So the prevalent form of rule at this time was a system of monarchy. And so with the institution of a more centralized government, the question of just what powers a president would have. Uh, was very much on the table. There was still the lingering memories of the time in which, uh, the United States was a set of colonies of the British empire. And so, uh you know, we see ultimately in the bill of rights, references to things like the quartering of soldiers, which might seem really strange. And yet there's these memories of what life was like during British rule. That are still very much a part of the public imagination and so as there's a shift away from one system of rule to another there's this conscious worry that a backsliding might be taking place back to the old monarchist system. 

Speaker 3 [00:15:23] When I'd like to add one thing to what Nick was saying along the lines of Republicanism, so another background to all of this in 1787 that's so easy for us to lose sight of today is the fact that in the 1780s the United States was a big question mark. So if you had gone around and asked educated people in the United states or especially in Europe. They would have adhered to the political philosopher of the enlightenment, the mid 18th century Montesquieu, who would have said that democracy only works on a small scale and that the United States is not likely to last. It will either break apart into a small set of factionalized colonies, states. Or it will be gobbled up by European powers at some point. So the questions of republicanism and what it means to be a citizen in this nation, questions of centralized government versus looser, more federated government, these kinds of questions are not just questions of political philosophy, but they're existential questions for a nation that it's not guaranteed that it is going to work, and a lot of people would say it probably won't. So we have to keep in mind the grand experiment that was underway here, because in the 21st century, we have 250 years now of watching this experiment attempt to work itself out. But in the 1780s, we didn't know. 

Speaker 2 [00:17:15] That's always one of my biggest things I emphasize with, you know, visitors to the History Colorado Center or students, if I'm working with a class or teaching a class of this, uh, you now, looking back from where we stand now, it can be really easy to think, well, that's just how things happen and we're going to happen, but none of these things are ever inevitable and, and just like we might not know what's in our future, the people who came before us didn't know either. And, you, know, especially when we look on this constitutional and mention and we see. This is a gathering of men, they're the leaders of these several states. They are political minds, they are in their own rights, philosophers. They have, for the most part, exceptional education. They are land-owning. Many of them own other people. They are slaveholders. I certainly couldn't have gone, no women. So, not everybody is in the room, but we have a group of... Really well-educated people, even with their own divisions, trying to both solve the problems that they've seen in the past, fix their present solution, and imagine a future, back to where we started with aspiration. The Declaration of Independence was aspirational. In many ways, the Constitution was too. And the Bill of Rights does a couple of things really for the very first time. So I want us to get right into the First Amendment of the Bill of Rights. I know we're fast forwarding a little bit past the Constitutional Convention itself, but as we talk about the way these issues were navigated, we can dip back into where the debates were about what government should and shouldn't be doing. The First Amendment is still in our public conversation all the time. It's really important in American culture, in American law, but this was something really new. So let's jump in a little bit to the background of this First Amendment. Let's talk about who's writing it, what ideas are inspiring it, and why these freedoms. 

Speaker 4 [00:19:17] So I think there's a few things feeding into this. One is, again, that legacy of colonialism and a system of rule in which there wasn't, for example, freedom of the press. The crown could come down and say, because of censorship laws, this is prohibited from publication. This idea is not sanctioned because it conflicts with religious ideology, perhaps. There were all sorts of ways in which the old government of the empire restricted the freedoms of the colonists, and so that's foremost on the minds of folks. I want to take a moment and talk a little bit about religion as well. Religion is something that had effectively always been tied to the state. State-supported religion, not just at home, but in the colonies. That meant not just encouraging conversion, but at a very basic practical level funding institutions of religion. And that was a source of resentment among colonists, many of whom were exploring new religious affiliations. Just to give you a comparative example, in the first French and Spanish constitutions, which come out shortly after the American one, Catholicism is recognized as the official religion, and effectively the sole religion of the state, the Spanish constitution is very clear on this. You are not a Spanish constitution unless you were Catholic. If you are anything else, you are effectively barred from political participation. And so the idea that there is freedom. Of religious belief is something that is very revolutionary and something that comes really in the course of these conversations at the Constitutional Convention. 

Speaker 2 [00:21:10] Jared, anything to add on these initial freedoms listed out in the First Amendment? 

Speaker 3 [00:21:16] Sure. I want to underscore what Nick said about freedom of religion. And I would just add that the delegates to the Constitutional Convention were also looking at the wars of religion that plagued Europe in the early modern period, and the devastation and the loss of human life and suffering that those wars occasioned. And by the middle of the 18th century, Europeans were beginning to adopt the idea of religious tolerance, but it wasn't a guarantee. And as Nick pointed out, it wasn t in those early constitutions. Actually, even when Mexico declares independence 50 years later, almost 50 years late in 1821 or 50 years after the Declaration of Independence in 18 21, its first efforts in independence under General Augustine Iterbide declared Catholicism as the official religion of Mexico. So even half a century onward, this is freedom of religion is going to be continued to be debated in enlightened countries around the world, including Mexico. And the United States has already implemented a rule of religious tolerance. So it goes with the big question mark. It's not guaranteed that the United states would come up with this, but they did. Yeah. 

Speaker 2 [00:22:40] So okay we've covered freedom of the press, freedom of religion, but we've got a few other freedoms. So we have freedom of speech, freedom to peaceably assemble, and freedom to petition. That one, that last one feels a little like, is that old-timey? What do we mean when we say freedom to partition the government? 

Speaker 4 [00:22:57] So we see this play out actually pretty often in Colorado and the West, right, with our system of referendums. The fact that the people, even outside of channels of elected officials, can go out and insist on ideas that may affect even the constitutional system of rule. That is, in a sense, an outgrowth of this system of petition. But in a very basic sense, I think it points to this idea that as citizens, uh we have a right to participate right we are not uh constrained in every sense uh from the exercise of political authority right goes back to this idea of popular sovereignty right rule by the people and that there have been historically limits to that i don't want to to minimize uh the the process to make sure that everybody gets to be at the table but this foundational idea that we have this right to participate. Is enshrined in many ways in that right to petition. Assembly, I think, is really important to think about, particularly when it comes to things like protests, right? The fact that we can gather as a group of people and challenge convention is in itself another one of these revolutionary ideas. Assembly was something that had been very strictly limited during the era of British rule. And so now thinking, you know, flash forward to the present, maybe it's not that we're resisting British impositions of our rights as individuals, but it's this idea that we always have a means to engage in free membership with other people to form groups that in cases might challenge established systems. Of rule and seek you know amendments to laws the creation of new laws all that sort of stuff it's all about participation right citizens get to play a part in the shift from subjecthood to citizenship that's that's a big change right we're not always beholden to the sovereign who is a monarch with the crown we get to actively play a party in the exercise of democracy that That is a really big development. 

Speaker 3 [00:25:06] I would add to that, that in part, this goes back to your first question, Gwen, about the aspirations of the Declaration of Independence. And so if we think about the decade between the end of the Seven Years War in the 1763 and the American Revolution, which breaks out in 1775, Americans had done, colonists had done all of these things. They had petitioned, They had sent letters to Britain objecting. To practices that they felt were unfair. They had gathered in public spaces, they had assembled to protest, they have exercised speech and they had taken to the presses to try and complain about what Britain was doing. And so you can see in the Declaration of Independence, Jefferson And same the self-evident inalienable rights are the right to, one of which is the right of liberty. And you can see in the freedoms enumerated in the First Amendment, an attempt to codify that in order to have liberty, people have to be able to do all of these things that we did in the 1760s and 1770s. 

Speaker 2 [00:26:26] That's a great point. While we're having this conversation about the First Amendment, I do wanna zoom in on a couple of big vocab words we've dropped. So I'm gonna go to Jared first, but then Nick, I'm coming to you for the isms. So Jared, you, just a few moments ago in our comments, you mentioned the enlightenment. Can you give us a brief definition of the enlightenment and what that meant for the framers of the Constitution? 

Speaker 3 [00:26:52] Sure. So the framers of the Constitution are writing at the height of the Enlightenment, and the Enlightment is an intellectual movement centered in Europe, but also rippling outward towards its colonies in the Americas. Its dates are not exactly pinned down, but they're kind of, you can run it from, say, the 1680s and the writings of John Locke. Who talked about government and social contract theory, or Isaac Newton, who talked about natural law and its universal principles and running up to the early 19th century, the Napoleonic Wars, the advent of romanticism, things like that. So it's a little slightly longer than a century. It is characterized by an expectation that both the natural world and the political and social world. Are and should be governed by universal knowable principles, laws, and also by the idea that information is gathered through observation, empiricism, and data. And the human beings can know these laws, whether it's the movement of planetary bodies, or the best practices for balancing different interests through three branches of the government. Human beings can know these and then they can enact them and that the enactment of them is for the common good. 

Speaker 2 [00:28:30] So if we take that definition, the Enlightenment, and look at some of the ideas that are at the center of it, natural law that humans can observe and know these universally true laws, and then we take our conversation about religion and the state, those are wildly different ways of viewing the universe, the world. So this really is revolutionary. This is earth-shattering. 

Speaker 3 [00:28:58] Yes, yes and we can take that back to freedom of speech and expression and ideas because the beginning of the Enlightenment and even stretching back there's leading into the Enlightenment as a scientific revolution in the even 1600s and it clashes with the church because the Christian church because it is an entirely different way. Of knowing the world. Knowledge was hierarchical before that, handed down by by Fiat, starting with God and then to God's rulers on Earth. In the Enlightenment and the Scientific Revolution held that all observers are equals, that you can observe phenomenon. You can observe the movements of planets. You can observe the way that politics works and human beings can draw conclusions from that. So it's, I don't want to overstretch this here because it was still a world of intellectual leaders, most of whom were powerful wealthy people who were doing this observing and that sort of thing, but it's the beginning of a ground up view of knowledge and understanding of human beings, humanity is a place in it that any observer without any special privilege knowledge can observe what is true. 

Speaker 2 [00:30:21] So yeah, for some specific examples, this isn't like only the pope or only a priest can tell you how to be a good person. This isn't Calvinist doctrine that says, you know, it's already predetermined whether you're going to heaven or not. And this is wrapped up in other changes in religion, other branches of Protestantism that say actually anybody can read scripture, anybody can have their own relationship to religion. And it also breaks down the idea that you know only a king can be head of the church and then dictate what you can print what You can say how you can gather And whatnot. So this brings me back to you Nick and some of our isms so we've dropped a couple just as a as a reminder we've got federalism and Republicanism I don't think I missed any others But can you give us a quick rundown of what is federalism? And what is small our republicanism? 

Speaker 4 [00:31:15] Yeah, so federalism at its basic level is a system of rule in which there is a center and its component parts and the center essentially wills more authority than those component parts. The reverse of this is a confederal system. A good example of that today is Switzerland, where you have independent cantons that essentially govern themselves. They tax themselves, for example, they They essentially have systems of laws that are independent of one another. They come together principally. For diplomatic representation and a military. That those are the only things that they work jointly on together. And that kind of, if you can think about the articles of confederation, right, that that's what that whole system was about. The states were effectively sovereign and independent of one another. They worked together loosely on some really key things, but the central government didn't have that authority to really requisition the sort of things it needed to run a much larger a system of government and a larger state with a bigger population and so on, right? It works really well for Switzerland. Turns out doesn't work really well for the 13 original states much less the system we have in place now. Republicanism is a system of rule in which effectively that there is not a sovereign. That's the easiest way to think about it. That there's no monarch, there's not singular person. Uh by virtue of divine right that is that is god supposedly saying this person gets to rule over you or by blood right this person is from a dynasty and uh their father and their grandfather ruled before them so they get to rule too uh it's a system in which effectively the people, and the people is defined variously by different Republican systems, the people call the shots, right? And so in a Republican system, again, little r, not referring to the party that exists today, a Republican System is one in which the people have a say. They get to take part directly in the making of laws. They are at sort of foundational level, the source of all power. That is, they are soft. 

Speaker 2 [00:33:33] So we could talk about the First Amendment all day long, but I think those definitions you just gave us, Nick, are really helpful for how we think about the difference between being subjects in, say, the British Empire or any other empire, as opposed to this new idea in the United States about what citizenship is. And we know that citizenship in the 1780s looks different than it does today. But what I want to talk about before we get quite to that is how the idea of citizenship, of being a participant in government, being a participant in the system rather than a subject to the system, how does that influence the way that the the rights of the accused show up in the Bill of Rights? Because I don't want us to just spend all day on the First Amendment, but this is actually like a pretty major part of the Bill Of Rights, is what happens if you're accused of a crime, what happens if, you have to go to court? 

Speaker 4 [00:34:25] So yeah, I think it's important that, you know, thinking about this, this shift from subjecthood, which is a status in which you were the subject of a monarch, right? So King George essentially is the king. You are a subject to King George is one in which you don't have a lot of rights and freedoms. You essentially do as the king says. If the king believes that you are guilty, you are, in effect, guilty. There's no presentation of evidence in many cases. There's not right to what we now talk about as deep process. The shift to citizenship is a very different relationship of the individual to the state. It's one in which certainly there's an expectation of participation, right? You're expected to vote, you're expected to potentially hold office, if that's something you would like to do, pay your taxes, follow the laws, and so on. But importantly, you have a part to play in this system. And so thinking about legal proceedings there, This is not something the state can just come down and say you're guilty and that's final. In fact, you have the opportunity to participate in those legal proceedings, right? You get to, in many cases, hire somebody on your behalf, but you get to present evidence in a court of law. The law is supposed to be the impartial standard by which justice is applied, so it's not an individual who might have a bias, right, in any cases, the king or the king's officials might not like you for a variety of reasons, that should be immaterial. We should have a system of objectivity and the system that is put in place for citizens looks very different. You have essentially a process put in place that respects your status as an individual and an individual who's part of that sovereign body that makes the laws, that defines the fabric of rule, all those sort of things. So this is a really big shift. And I think maybe when we don't often think about enough, you know, effectively one day folks go from being subjects to citizens and they're It's a suddenly practice democracy, right? That's a big shift. And there had been roots of democratic practice in the old British system. There were legislative assemblies in the colonies, for example, but this business of actually being in a courtroom and adhering to these principles of a right to not incriminate oneself or have a jury decide your fate. These things are really, really profoundly different. And they all point to that development of citizenship, being a citizen as one of the really revolutionary constructs coming out of the early, the sort of post-revolutionary period and into the constitutional one. 

Speaker 3 [00:37:18] And if we go back to the term Republicanism, its root word is Publius, which in Latin means populace or the people. Incidentally, democracy comes from the Greek demos, which also means the people, so these words that we're talking about to describe the late 18th century and that both our political parties today have adopted are based on this idea of the sovereignty. Of the people. So, if we look at the Fourth Amendment, it begins, the right of the people to be secure shall not be violated. And so, I think these other amendments that are protecting the rights of individuals are in a way elevating the people collectively as well. That is, they are... Reiterating the preamble that begins we, the people, in the Constitution. The other thing is that Akhil Reed Amar, who is a constitutional law professor at Yale, has pointed out that in the late 18th century, juries were considered to be very close expressions of the people. So the founders are about how do we um act out democracy, how do we act out a republican form of government? It's not logistically convenient to have 5 000 people gather and debate a law and then vote on whether to pass it. But juries were seen as one of the concrete expressions of the people's voice, an opportunity as Nick said for the people to participate in governance and to be a check. We talk about the three branches of government who checks the judiciary, the juries, the people. And so when you look at the fifth, sixth, and seventh amendments, all of them mention in one way or another, the presence of juries as central to governance, especially for the third branch of government, the judiciary. 

Speaker 2 [00:39:39] So glad you brought up the checking of powers in the different branches of government. Of course, that's laid out in the constitution itself. So we have some things that are already sort of taken care of in the Constitution. And then we have these proposed amendments. James Madison brings them forth. Not all of them make it, right? I think he originally has 19, and then it's whittled down to 12. 10 of them pass. One of them passes over a hundred years later. So things like, The three-fifths clause that was already decided before the Bill of Rights What's what are those issues that are sort of settled in the Constitution itself? What are the ones that really make it and get hashed out in the Bill Of Rights and one of the ones? That we leave for later 

Speaker 3 [00:40:27] So one of the things about the process of ratifying the constitution was the question that constitution was written, that worthless piece of paper that James Madison referred to and it went to the states and they examined that piece of the paper. And it was a pretty democratic process. So for example, New York waived its usual requirement that voters be property holders. So that New Yorkers who voted to select their delegates all male New Yorkers got to vote in that to send the delegates to determine whether to ratify the constitution. And in all, there were eight states that in one way or another relinquished or relaxed their voting qualifications. Two others had fairly liberal voting qualifications to begin with. So a majority of the states are doing this. What that enables is real debate. It means that in the ratification process of the Constitution, there was dissent. And so they were called anti-federalists. Maybe we should just think of them as people who were cautious about giving lots of power to the central government at the time. But they raised questions. And so people in New York and some states ratified it fairly quickly, but people in York and Virginia and some other states. They approve the Constitution only if there would be a Bill of Rights or some amendments to the Constitution. And so the Bill of rights is an outgrowth of this very democratic, very open national and statewide debate that takes place. Bit of trivia, Rhode Island and North Carolina didn't ratify it. At least not initially. And so they were out of the union for a few months to a few years between the time that the Constitution was adopted and when they ultimately did ratify it in 1790 and 91 or something like that. Okay, so these amendments that have to be put in um are reflecting that democratic process and that process in which anti-federalists had a voice and had the ability to say not just up yes or down no but yes if you do such and such and that generates the bill of rights and so the bill of rights process starts in the spring of 1789 and it gets to introduce to the Congress. And as you said, there were 19 introduced in the House. The First Amendment was originally the Third Amendment. The Senate reduces it to 12, I believe. And then it goes to the states and can ratify it. So again, it's part of the big question mark. I hate to keep coming back to that. But we don't know that there's going to be N at the outset. But the anti-federalists are concerned about handing over someone's. Power to the state. So it provokes this national conversation that ultimately leads to the 10 amendments of the Bill of Rights. 

Speaker 4 [00:43:53] I think one of the really interesting pieces to this story as well is that there had been a Virginia Declaration of Rights that had been put forth, and George Mason goes to the Constitutional Convention and is like, hey, there's this wonderful document. We should just wrap it into the national one. And so these Virginia rights should become national rights, and everybody can get behind this. And he is essentially struck down. People are like, no, that's a terrible idea. We don't need that. But then it's over the course of this conversation, these debates that Jared was just talking about, that people come to this realization that, well, what was good for the folks who were at the Constitutional Convention, the so-called framers? Well, maybe that's not really acceptable for the rest of the body politic. And so, Madison ultimately introduces these things, but he kind of holds his nose doing so. It wasn't really his idea. He didn't think it was necessary, but it's only because of this groundswell of popular support for the idea of a Bill of Rights that we have it today. And I think that's a really important part of the story, right? The Bill of rights is a product of the democratic process, this process where we go back and forth and in the end we compromise. We should see the Bill of Rights really as one of these foundational compromises at the root of American democracy. 

Speaker 2 [00:45:16] A couple of things coming up here. One, we've got the influence of these Virginians. We've got Mason, we got Madison, we know at the declaration we had Jefferson, obviously, Washington. Commander of the Continental Army ends up the first president after the Constitution is ratified. But there's an important thing to keep in mind, even with all this political thought coming out of Virginia that is about, you know, a bill of rights and freedom. They have their own document exploring. Religious freedom, freedom to be religious, freedom from religion, and Madison drafts a really lengthy response to that called Memorial and Remonstrance. But when we're talking about Virginia, it's important to know that's a place with a lot of slave holders and that those individuals who are at the Constitutional Convention, who are debating what this Constitution and what this Bill of Rights should be, they have a certain stake in that debate. And there are others who don't. I think Jared brought up the sectionalism debate. So let's zoom back in on that debate at the constitutional convention. Why don't we see slavery in the bill of rights in any form or, you know, what is that compromise? Are they just kicking the can? Are they avoiding it? What happens? 

Speaker 3 [00:46:30] I think what Nick said about the Bill of Rights being a compromise applies here. Slavery was a conundrum. People knew it at the time and it was a compromise. One thing to note, if we look at states during the revolutionary and immediate post-revolutionary period, we have kind of a double-edged sword when we look them because on one hand we can say, well, the framers didn't to think about. Slavery the way we would today, for example, and that they were products of their time. But they had lots of examples in northern states, where slavery was being limited, outlawed, phased out, and those kinds of things. So on one hand, we can't claim that the framers, you know, didn't know any better. On the other hand, on the other end, we can look to the northern states and say, why did they compromise with things like the three-fifths rule and, and things like that. And we can, we can say, well, some of these states were in the process of outlining slavery, they were, but commercially they were still dependent on slavery so that they were conducting extensive trade with Southern states in raw materials that were harvested by enslaved people and commercially benefiting from from it as well. And so you can ask, well, why would the northern states be willing to put up with this? Well, because it suits commercial interests to maintain slavery. So it's not like Jefferson and others weren't aware of the contradiction between the phrase, all men are created equal aspirational and the Declaration of Independence and this compromised document that they were creating in 1787 to 1791 of the Constitution and the Bill of Rights. It was an intractable problem, both politically and morally, and they chose not to tackle it, and they left it for subsequent generations. And it would become the political, this contradiction would become, the political issue of the 19th century. And that's partly because this fifth rule and other aspects of the original constitution. Not only accepted slavery, but amplified it. They empowered people who were slave owners by giving them disproportionate representation in the Senate and other mechanisms of the Constitution. So didn't get dealt with in 1780s, so it did get dealt with over the course of the 19th century. 

Speaker 2 [00:49:11] Is it fair to say this was always an existential threat? I mean, we see it really become the issue in the Civil War decades later. And I get worried when we go into what I think of as counterfactual area, the sort of like, what if all this would have happened? But was there a chance that if abolition minded delegates pushed the slavery issue, that this could have failed? 

Speaker 3 [00:49:35] Mm-hmm. Hypothetical questions. Fun, fun. There were limited numbers of people in the 1780s and 1790s that we would recognize as abolitionists. There are a few. They weren't politically organized. That's a phenomenon that would emerge in the aftermath of the Missouri Compromise of politically articulate and influential group of abolitionists coalescing in the 1780s and 1790s. I also would think that slavery was just, there were too many people in the United States, North and South who had vested economic interests in the institution of slavery and enslaving human beings to really imagine a coherent opposition to slavery that could have won a majority of states delegates over to it. 

Speaker 4 [00:50:41] I think it's worth saying that slave and slavery, it doesn't really come up in the document, but in the negotiations, the topic is everywhere, right? It's very clearly front and center. In the course of hashing out the documents, this question about the slave trade comes up and they essentially kick the can down 20 years, and I want to draw a distinction there between the trade of human beings and the institution of slavery itself. Those are handled differently in law. And so the question of the trade of slaves comes up. They essentially work a compromise where the central government will get to oversee commerce and then exchange. So they're going to not talk about the trade for 20 years. Embedded in the Constitution as well is essentially the foundations of the Fugitive Slave Acts. And the Constitution allows a lot of things. And yet there too, with the omission of certain words from the document, there's this very conscious hope, I think on the part of some, even if unfully realized at a popular level, that there might be a point in the future where that institution can be removed entirely from the fabric of American society. But we're not at a point and time in that in that juncture where that's really a political consideration. 

Speaker 2 [00:52:02] We're getting to wrapping up our conversation here today, but as we think about what was left for later, there's a very important mechanism in the Bill of Rights that says just because we didn't talk about it now, just because we didn t agree now, doesn't mean we can t do something about it later. Let's talk about that. Let s talk about that conscious decision to leave the door open to future changes and the amendments process as it moves forward from the Bill rights. 

Speaker 4 [00:52:27] So certainly one of the virtues of our Constitution is malleable, right? It can change over time to suit the needs of society as society grows and evolves and changes. And that's actually somewhat controversial now. We haven't amended the Constitution in a very long time. And that reflects, in part, some intransigence around our politics as they exist today. You know, certainly there have been moments in time where there's this rapid spate of amendment additions that usually follows big wars, but this idea that we can make an imperfect system ever more, we hope, perfect is at the heart of that amendment system. That there are many amendments that have failed over the years, that failed together the necessary number of states to support them. And so there's been a lot left on the cutting room floor, not just at the Constitutional Convention, but as we move forward in time, as as other additions have come to the American public, they've been struck down, right? The the process of getting these approved is not easy. And arguably today, it's it's harder than ever to contemplate at that process of approval. 

Speaker 3 [00:53:48] So, and at the time, the idea that the people could amend the constitution they had established was a fairly new and unusual idea. Again, I'm going to channel Akhil Reed Amar, the legal scholar, on this again. If you go back to the Declaration of Independence, Jefferson says it's right of the people to. Abolish the government if it doesn't uphold the self-evident truth and inalienable rights. And then he goes on, and the longest part of the Declaration of Independence actually is the enumeration of all the awful things the king has done. And what's different about the Constitution is you don't have to have an abomination. The people can just decide hey, there's something that we locked out of the Constitution, we're going to add something, or there's something in it like prohibitions, and we really shouldn't have put in, we're gonna take it out. It lowers the bar to the people enacting their sovereignty. And so I think that ability to amend the Constitution and through a set process is another way in which this is an incredibly democratic document that empowers the people. And as we know, the people was... Who we the people is was defined very narrowly to a minority of the population in the 1780s. And it's been left to other people to sort of drive a truck through those loopholes that we're left in and to expand who we, the people, is and we're not done. And in fact, we're facing some threats of contraction right now in our society. But the ability to amend the document is, according to a set formula, is quite a accomplishment of the original framers. And it's a gift to us that we should not relinquish and that we shouldn't treasure and use. 

Speaker 2 [00:55:53] That's such an important point you make, Jared. And as we think about the bill of rights today, obviously, you know, we're talking in Colorado today and, um, these principles set out 200, over 200 years ago, uh, impact us all over the United States that has grown and looks very different. Um, but this bill of right, this constitution has had global impacts. Um, you, we're all historians and we talk about either the the validity or the problems with American exceptionalism and saying that the US is so special and there are all these things that happened here, but really we can see the influence of the Bill of Rights globally. We've talked a little bit about how revolutionary this was. Where else do we see echoes of this Bill of rights in the era of enlightenment and beyond, and what did this mean beyond just those 13 states? 

Speaker 3 [00:56:50] Well, this isn't quite the Bill of Rights, but I'm always struck by September 2nd, 1945, when Ho Chi Minh in Vietnam stands on a platform flanked by American military leaders and diplomats. And he quotes Jefferson, he declares independence for Vietnam from France, and he says we hold these truths to be self-evident. And there's a whole story that flows from that, that's the most part not a happy one both for Vietnam and for the 50-some thousand Americans that lost their lives there, but the fact that a communist nationalist would quote the Declaration of Independence and declaring his nation free at the end of World War II, I think speaks to the globalness of the ideals and aspirations that we've been talking about here today. The other thing that strikes me is that is the First Amendment rights, assembly, petition, speech, press, religion. And I like to show my students photographs of the 1970s and 1980s abortion protests. And you see people, tens of thousands of people gathering in Washington DC and other places. And you can't distinguish unless you have a really good close up shot. You can't distinguish the pro-life and pro-choice protests. Both of them are, they're opposite ideologically, and yet both of them are enacting the participation that comes from the sovereignty of the people that Nick was talking about earlier. And so these Bill of Rights have echoed through the centuries and they have been deployed. By people of all ideological inclinations, and I think that testifies to just how influential they have been. 

Speaker 4 [00:58:47] There's another example from the 1940s and that stems from the formation of the United Nations after the Second World War and the eventual creation of the Universal Declaration of Human Rights, which in many ways is founded on this idea of the U.S. Bill of Rights, this enumeration of the things that individuals as persons in the world are entitled to. And notably, that document is in many ways far. More wide a consideration of rights than what we have under the U.S. Constitutional system. It guarantees protections for things like education that we do not have specified in our constitutional system, and so in many ways the rest of the world has taken this idea and run with it. And as much as sometimes that might seem at odds with our American valuation of certain specific rights, I think it's a testament to the value of this practice of writing things down and hashing them out and coming to an agreement on the things that we hold shared and mutually valuable. It's become a model not just for the United States and for even places like Vietnam. It's a become a worldwide phenomenon 

Speaker 2 [01:00:08] Absolutely. We see that influence immediately in the 18th century with other revolutions as they come and the ways that leaders frame rights, and we see it all the way through the 19th century, the 20th century. And obviously, we're still talking about it today. We've just started this conversation about the Constitution and its amendments, and everyone listening can look to a couple more installments of this. Uh, before we wrap up any last thoughts, I know we didn't get to touch everything. I wanted to talk about common law, but, uh, anything, uh any last thoughts to add here before we close out. 

Speaker 3 [01:00:46] Well, I guess I would just say that this last topic that we've touched on on the long term and wide ranging geographical implications of the Declaration of Independence, the Constitution, the Bill of Rights, the way it has inspired people around the globe to try and order their societies is endangered today. And I think it's important to keep alive the best. We can't ignore the worst. We can ignore the three-fifth clause because we're still dealing with the inequities that it created. But it's also important not to lose sight of the best ideals that have inspired America, both domestically and internationally. 

Speaker 4 [01:01:33] I think that's a great way to end, I think, in terms of thinking about the things that we can walk away from this period in US history. It's that idea of compromise. And that seems to be a little bit lacking today. We made our best work when we worked together to actually reach some common ground. And that meant there was oftentimes a lot of things that were left to the side. But progress is made through compromise and that's something to be remembered. 

Speaker 2 [01:02:04] Very well put, both of you. Thank you so much for this conversation today. It's been great chatting with you, and look forward to future conversations. 

Speaker 4 [01:02:13] Thanks for having us. This was very enjoyable. Thanks again. 

Speaker 1 [01:02:23] Thank you for listening to the Colorado Magazine podcast. If you would like to access more episodes of this podcast or read the articles that make up the Colorado magazine, please go to historycolorado.org slash podcasts or historycolorada.org research.