Advisory Opinions - Origins of the Federal Constitution

Episode Date: December 24, 2024

Have you done your assigned reading? Because Sarah Isgur and David French are joined by Judges Charles Eskridge and Brantley Starr to take us to law school. Specifically, a class on the origins of the federal constitution. The Agenda: —Why it matters —The Founders’ Constitution —The Magna Carta and English Bill of Rights —The origins of “rights” —Positive vs. negative rights —The legacy of “witch hunts” —The anti-federalists —The argument against a Bill of Rights —Civic engagement Show Notes (assigned reading): —Origins Part 1 —Origins Part 2 —Origins Part 7 Learn more about your ad choices. Visit megaphone.fm/adchoices

Get groceries delivered across the GTA from real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit superstore.ca to get started. Sure, I could tell you winter's coming or that it brings cold, dry air, but you already knew that. What you might not know is that Dove Deep Moisture Body Wash is made with millions of moisturizing micro-moisture droplets to keep your skin silky soft for 24 hours. Plus it's paraben and sulfate free. No matter how dry your skin

feels Dove has you covered. Buy Dove Body Wash today at your local retailer or visit Dove.ca to learn more and order online. Ready? I was born ready. retailer or visit dove.ca to learn more and order online. Ready? I was born ready. Welcome to a very special holiday episode of Advisory Opinions. I'm Sarah Isgur, that's David French. And that's right, this is our Christmas Hanukkah New Year's any holiday you celebrate present from us to you.

Including Festivus. Absolutely Festivus. And our present is that we're taking you to law school. We have Judge Charles Eskridge from the Southern District of Texas and Judge Brantley Starr from the Northern District of Texas. They both teach the roughly same law school class at different law schools. And they're going to teach it to David and I.

And in fact, we were assigned reading in advance. And I will tell you, as we are recording this on a Thursday morning, that just like law school, David, I was cramming up until the minute we walked in here. No, I absolutely hear you. And I'm just going to say, just like law school, I didn't do all the reading. Oh, David. I know. I know. So I'm going to go ahead and be begging that I didn't do all the reading. Oh, David. I know, I know.

So I'm gonna go ahead and be begging that I don't get called on today. Well, I'll tell you, you know that I at least fake did the reading. You know, the fake thing where you go to the middle of the reading, pick out one sentence, and then plan to like say it during class. Perfect. As if you definitely

read the whole thing. Because I tweeted out a line from the reading reading because I thought the old wig from 1787 was just really hitting me someplace good. With that, Judge Eskridge, longtime friend of the pod, Judge Starr has not been on the podcast before. However, he is former boss of husband of the pod from his days as the first assistant Texas attorney general. So he is friend of the pod in law at minimum. So welcome professors slash article three judges. Take it away. All right.

Thank you, Sarah and David for having us on the show. Didn't realize this was going to count as the holiday episode. So we're going to bring a full 150%. I think we should probably start by saying what the title of the class is. And it is Origins of the Federal Constitution. It's a seminar. Judge Starr and I, I'm gonna say Brantley from here on after this. Brantley and I taught it together at the University of Texas three or four years ago. It's a class that I put together and first taught

at the University of Houston in 2010. Brantley has since gone on. Brantley, why don't you jump in for a second. And you've gone on. You're not teaching it at Texas A&M. And I think you have plans on some other schools. That's right. So when we taught it together at UT, I loved the class.

I hated the drive from North or Dallas down to Austin. By the way, I am in Dallas, not just Northern District, in Dallas, which is the armpit of America if one believes Jason Kelty. I don't believe it's the armpit of America. I think it's a fine city. This is what life tenure can give you. You can say whatever you want. They're not impeaching you for demeaning Dallas. It's the armpit of American football right now. I think we could agree on that. David, I think this season we can agree on that, but maybe, just maybe at the end of the season,

Elon Musk could fix that and make America's team great again. So we'll see if that happens. But yeah, so I'm in Dallas. So the drive from Dallas to Austin, you know, every week was not great. The class was great. And so I was talking to Judge Pittman, Mark Pittman in Fort Worth, about this conundrum. And he said, well, why don't we teach it at A&M, which has a law school in Fort Worth? So Mark and I have taught it in Fort Worth two times. Judge Kazimera from Amarillo pinched it for me and taught it with me this past fall. And then SMU agreed to teach it, have it taught in the spring.

So it's going to be a recurring class at three law schools, UT, A&M, and SMU starting in the spring. It's been a great project. When we first taught it at University of Texas, there were many members of the Texas Review of Law and Politics that were students. One had been my intern, and two were going to, one was a 2L, one was a 3L, they were going to come on and be my law clerks in a couple

of speeding years. But they talked with the editors of Troll and they have been over the past 18 months to two years editing the materials, verifying everything that I pulled and selected for the class. And they're going to be bringing forth an edition of it so that hopefully there will be others that are interested in picking up the class and teaching it at law schools. There are some classes like this that are out there on the curriculum, but it's not one... I guess, start talking about the class now. It's a real deep dive into a lot of historical sources for what became the provisions of the Constitution. It is not a class on originalism per se. The point of the class is not to teach sort of the debate on the proper way to go about originalism

or how to do it if you're writing a brief or judges if you're doing it in an opinion. It's more just to give a really big picture of the sweep of the documents that are available to look at and bring to bear. And so, let me, one of the first things, I mean, the very first thing that I cover with the class when we teach it, so we're going to step into classroom mode now, is the idea for the class itself. So we'll get a little bit meta here, the origin of the origins class. And there was the endowed lecture at Pepperdine School of Law, which is my alma mater, is the William French Smith Address. And when Ken Starr was dean, he obviously had tremendous connections with many sitting justices, including Justice Thomas. And he brought Justice Thomas

out to do the William French Smith address. And Justice Thomas, I think he does some speeches, but I think he mostly likes to do, you know, panel Q&As, fireside chats, whatever, and then take questions from the audience. And Dean Starr asked me to be on one of the questioners with Shelley Saxord as a con law professor and then Doug Kamek, who had been with him in the Reagan administration. And Justice Thomas got this question, Justice Thomas, the American Constitution is very brief and it sets forth the structure of government. How do you as a justice go about interpreting this document that's well over two centuries old? What are your sources or clues for interpreting the text of the Constitution? And this is what he started with. You know,

I think first of all, let's just take a step back. One of the things that I wish had happened when I went to law school was that we'd had a course that preceded con law entitled something like the formation of our Constitution. So we can see where this document came from, its sources, the framers. We'd learn more about Madison and what he did. We'd learn more about Jefferson and what he thought when he wrote the declaration. We'd know what was going on in Philadelphia. We'd know more about what was going on contemporaries with the founding of the country, the revolution, the constitutional convention. With that underpinning, then we could get a sense of what went on afterwards with Marbury versus Madison and the debates over the National Bank and things like that.

It gives us a context, but instead, we move right into constitutional law and we think that constitutional law is synonymous with that document, the Constitution. So with that, my first question to the students is, what do you think of that approach? What do you think of Justice Thomas's comments there? You know, David and I actually spend a fair amount of time talking about how we wish law school were or how we would teach, you know, high school or something like that. Not only do I think that's right, I think I would also spend more time on it in high school. In fact, I think I would break high school government into three chunks, pre-constitution,

constitutional ratification debates, and then sort of modern. Like you can almost skip everything else. That's a limited amount of time. It's high school, right? I'm not going to cover everything. of time. It's high school, right? I'm not going to cover everything. Because I think it felt to me like the Constitution burst forth from the foam. And when you actually read the assigned reading, which David obviously did not do. I mean, I didn't say none of it. I'm just kidding. I definitely started skimming at the end. You know, the state constitutions already had a lot of this stuff. Even the language of the Declaration of Independence didn't come from out of nowhere.

It's all building and building little piece by little piece on top of each other. There is a, the change to the US Constitution is a radical change in world history. But the constitution itself in many ways is not. I teach a class. I've taught a class the last couple of summers at the American Enterprise Institute

that's about the legal philosophies of the American founding. And then I'm also teaching that as a longer course this next semester. And I spend a lot of time on that pre-constitutional period because you just can't understand why the 1787 Constitution was written the way that it was written, unless you understand that pre-constitutional period. And one of the points that I make in my class, which I think is so important for people to understand,

is that what you had was a collision between a philosophy of governance and a reality of governance. That collision between the philosophy of governance and the reality of governance is the explanation for a lot of the compromises and a lot of the elements of the Constitution that sometimes can maybe stump us or bother us today, including some of the, I think, the flaws in the initial Constitution, which essentially the pure federalization of the Bill of the initial Constitution, which, you know, essentially the pure federalization of the Bill of Rights, that it only restrained Congress leaving tremendous room for the states to. This is the great line from Hamilton the musical. That was a real nice declaration. Welcome to the present. We're running a real nation. Yeah. Yeah, yeah, yeah. So you just asked two podcasters a question, and then we just started

running with it. But this is your class. This is your class. Well, no, David, your point is exactly right. And one thing with the materials, the way that the class is broken down. So you go from the Articles of Confederation Reconstitution, the Articles of Confederation themselves come from somewhere. But then, you know, when you look at the Constitution itself across seven articles, and it starts, you know, with Congress and what it's doing, and then the President and the Judiciary and Article 4 and things about the states and then amending. But these things all interrelate and they have different topics that run through all, you know, four, five, six main articles of the Constitution.

And so the class breaks those down into 14 thematic parts where, you know, unlike constitutional law, this seminar tries to array all of the similar provisions together so that on legislation, you're considering not only the documents that are the background for those powers that are given to Congress, but why is it that the president has the veto power and why can that be overridden? Where does that come from? And so on all of the different various provisions, you're seeing the debate that leads to those provisions but then also some extracts of how was this approached in the Articles of Confederation? What, if anything, did the Declaration say?

What about earlier colonial governments or the English experience? And so trying to read and assimilate all of that together. Brayley, do you want to jump in on anything? But I was going to go into sort of the actual source of the materials. Brayley Thompson Yeah. The only thing I would say at this point, 30,000 foot point piggybacking on what Sarah and David have already covered is I think it's particularly poetic that we have federal judges teach this class. Because when I went to law school, I learned from tenure professors that what federal judges think of the constitution is the constitution, right? Going back to that point

that Justice Thomas made. And if we have federal judges coming in and say, don't just, you know, take by spoon what we say the Constitution is, you need to think about what the Constitution is and you need to know what the founders were thinking about what the Constitution meant. And if you don't like it, change it. Our last constitutional amendment came from a UT student. He wrote a paper in 1982, right? And he got a C on it and then thought he would do something about it. And he got the 27th Amendment passed. So you should learn it, love it, and change it if there's some part of it that you don't love. That's our duty as Americans. And I think it's just fitting that federal judges

are the ones coming in to give that message to law students that this constitution is their own. The main source of the materials for the class comes from, it's a five volume series called the Founder's Constitution by two professors at the University of Chicago who put it together. And they did yeoman's work. If anything, I served as a good editor to distill down what was probably 7,000 pages into something that's manageable over the course, you know, there's a length of a typical law school class. So from that, I selected about 1,000 pages of reading.

It's still an enormous amount. But, you know, we cover about 70 pages a day. But for anybody that's interested, it's Professors Kerland and Lerner, Founders Constitution. It is available in an online searchable version if you want to Google for it. I try to shine light on that as often as I can because their work on this, putting these documents together, how useful and usable it is, giving you reference material for every single clause in the Constitution is just remarkable. And so with the class, we cover every clause, every phrase, every amendment in a related way. We assigned you the topic on the specific topic on individual rights

once we're shifting towards rights-based considerations. The class starts with the ratification, Article 7 and the preamble, and then some background principles. And then a lot of the structural, like the classes 3, 4, and 5 are structural classes as to the legislative power, the executive power in the states. And class 6 would be near and dear to David's heart. It's on all the provisions as to national security gathered together for one go because actually so much time is spent on provisions against invasion and insurrection that to cover all of those provisions, it needs its own class in its entirety. But once we have that background set, we go to a big picture class

on the guarantees of rights and not the particular ones because then the remainder of the classes start pairing those rights with the affirmative powers that you see that are given to the government. So as to a class on property, you'll see provisions about due process and the takings clause and things like that. When we go on to elections, the election provisions of the constitution, we go into then all of the different amendments that address and expand those rights. But class seven starts with what are formal declarations of rights that the framers were

looking at when they were starting to choose what to include in our Bill of Rights, when they finally got around to that after the Constitution. And there's Magna Carta. And just for reading, the students are just to read and we discuss with them impressions that they have Magna Carta, the Body of Liberties of the Massachusetts Colony from 1641, the English Bill of Rights, which we always think that the American Bill of Rights is the one and only Bill of Rights, which we always think that the American Bill of Rights is the one and only Bill of Rights, but that's not correct. There was one passed in England a hundred years before. And then a lot of the different resolutions and resolves that the colonial powers had passed along with specific declarations of rights that have

been attached with the state constitutions. So, I would toss it to Sarah. I know you're a fan of Magna Carta. Did you take a look at Magna Carta or the Body of Liberty and think about how it connects today? Sarah Hickman I did. I think the biggest thing that stands out on Magna Carta to me, it's incredibly long. I mean, to the extent you think of the Magna Carta being more like the Declaration of Independence with a list of grievances, but they're kind of, you know, you tick them off pretty quick. Like that ain't Magna Carta.

And also they're a little silly at times, right? They're pretty, this is not big sweeping declarations of freedom of conscience and stuff. It's like- Thumb seemed very picky, you. Yes, that's the word I was going to use. and then I didn't want to sound like a jackass. So I'm so glad you're the jackass. Okay, good, good. I'm happy to stand in.

Yeah, right? Like, you would think you would start from the most general, if you're, you know, this is the first Bill of Rights ever to press against a sovereign and a hereditary king. But you didn't start with the most general. You actually started in some ways with the very most specific complaints. And really, our constitution, I guess, is going to end up being in many ways our bill of rights, the most general. Just for some specific, Magna Carta, you see things like, you know, requirements on wine measurements and how many fish you can take from streams, dower in inheritance, you know, hunting in the forests and things

like that. And so they seem very curious, but those are all things that King John had been limiting in ways that his predecessors hadn't. And so when you think about it, it's the nobles are sort of like, hey, we used to be able to do this and we enjoyed it. And so, when you start looking at the grievances and what are paired with them to resolve them, you ultimately, I do think, see that that's what Thomas Jefferson boiled down into the pursuit of happiness, is that there are these things, they seem simple and silly.

Fish weirs, number 23 in Magnana Carta is about the pursuit of happiness. I was just going to say, it's interesting the Magna Carta when you look at it, it's in a weird way reminds me of the 95 Theses that Martin Luther, you know, pounded on this cathedral door because if you go, they're actually far more important for the fact of their existence than necessary for the specific content. Because you go back and you read the 95 Theses and a lot of these are bound up in the very specific theological argument around indulgences, which nobody thinks about today. Just like nobody thinks about hunting rights in royal forests or things like that today. But it's just the fact of its existence, the fact of the defiance of the ruling authority and the moderate or the then yielding of the ruling authority to the defiance. And that's what, you know, I've always thought of Magna Carta

in the 95 Theses in that similar way. They're less interesting for the exact content. They're more interesting for their context. Oh, David, don't sell it short. Number 34, no one is to be taken or imprisoned on the appeal of woman for the death of anyone save for the death of that woman's husband. Well. Can't take her word for it.

Of woman. But maybe they're talking about a specific woman. Yeah, yeah. Because it wasn't plural women, Of woman. But maybe they're talking about a specific woman, not because it wasn't plural women, just woman. I mean, honestly, in the 70 pages that you gave us, specific women play an interesting role several times over. We have, you know, don't listen to women in Magna Carta. We're also going to have a witch in Philadelphia who is knifed to death in the streets. Warmaker. Later on.

Yes, yes. I had not heard of her before. Yeah, well, a few people have, but yeah, that was long after Salem Witch Trials, right? That is for the founders modern day. Sarah, so it sounds like you took a look at, did some of the reading as to the formal declarations of rights? There were 12 of them. Did you have any in particular that really resonated with you?

So the English Bill of Rights, you know, when I talked about how the our Bill of Rights did not come forth from the foam, as I initially had been sort of told or thought, the English Bill of Rights is wild. So number nine, that the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of parliament. That's going to be our speech and debate clause. Fast forward 100 years. The next one, number 10, that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. We're not even going to change many words in that for the eighth amendment. Interestingly, and it shifts from ought not to shall not in ours, which is, I've never

seen the specific reason. You can imagine what the reason is for that, but that's a very deliberate change in wording where it used to be, okay, it's still going to be controllable by parliament, but now it's a shall not inflict cruel and unusual punishment. Yeah. It's stunning when you go through it, how many, you know, after our constitution is ratified and there's this push for the Bill of Rights. They're not starting from scratch.

It's not a blank page. And I also love, I love the provision that the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. So, because one of the complaints was that Protestants were disarmed and that this is coming out of that centuries long Catholic Protestant fight within the British kingdom. But that product, which really does show that an awful lot of what we thought about as human rights

initially really began as citizens' rights. And who are the real citizens? Who are the people who are the beneficiaries of these promises? Because it's not always all the people. This has been a development over time for these declarations of rights to be more inclusive. But it really does show you that the progress that was made was one step at a time, not a move towards universalization. There was very little radical move towards universalization.

It was step by step by step. Which by the way, I think it's in the Massachusetts bill of rights, their state constitution bill of rights, where it's going to say, it's going to look like our first amendment freedom of religion, except it's going to be freedom of religion for all Christians. But they seem very hoity toity about like how proud they are. They're like, look at this freedom of religion for all the Christians. And I was like, huh, I wonder if that, I assume that doesn't include Catholics, but I don't know. And there are some, I think it's the Connecticut, first Connecticut constitution, but it might

be one of the other states, is even more specific than that. I mean, limits it to Protestant. You know, it just specifically says that the freedom of conscience are limited to in very specific ways there. And that is definitely something that are limited to in very specific ways there. And that is definitely something that we point out in debate in the class, you know, what do you think about that? And then when you're talking about originalism, what do you do with something like that? That is, it's contrary to doctrine now. It's the double question of should it have changed from that? If it hadn't changed from that, what problems would be arising from that? And how would you resolve it? Sarah, any thoughts on that?

I mean, I don't want to get ahead of our conversation, but the rubber really hits the road, I thought, when we got to Madison's proposed amendments for a bill of rights, and you're looking at the Second Amendment, the proto Second Amendment, if you will. And this is a problem when we talk about text history and tradition for David and I all the time, which is, okay, on the one hand, they're borrowing from English tradition. So you can look at what comes before and say, ah, we're building on that. Or you can look at what comes before and say, ah, that's what they're trying to break from. And so even for Madison's Second Amendment language or any of these Bill of Rights languages, when you see any change in the language, like your ought versus shall and what will be the

Eighth Amendment excessive fines and that, it's like, oh, were they changing it because they thought it sounded better or made it more clear? They're trying to borrow that concept so we can look at the previous wording and what that was known to encompass or were they trying to change something and so the previous one actually tells us that that was rejected in a sense and I don't feel like I ever have a great grasp on when we're supposed to know which is which. David, you're nodding. I am nodding. Listeners, I was nodding along with everything that Sarah was saying.

Let Precker reflect that David was nodding. So what am I supposed to do about that, professors? Well, we're supposed to debate it in class. We don't give advisory opinions per se. No, but that's the, when you're then looking at... You can even be reading the experience of what they're relating. And it is what you say. Are they extending that? Are they intending to stay in that lane? How much are they intending to break from it? Because obviously, they're breaking from a lot of things.

Actually, to close off on the English Bill of Rights, I would note for the listeners, when you take a look at it, we were looking at and quoting from the 13 guarantees of rights that are there. It's preceded by an enumerated list of 12 grievances that it's like, hey, King, here's what you've been doing. I'll just pick one. By levying money for and to the use of the crown by pretense of prerogative, by raising and keeping a standing army within this kingdom in time of peace, etc., etc. And then they pair that, these are our grievances, we pair it with a specific statement of rights. And what you see is, in some of the early declarations and results, you know, prior to the actual revolution, the colonial governments are sending things like this to Parliament and to the King saying,

here's what you're doing and we don't like it. We're trying to maintain allegiance, please change. And then you ultimately get to Thomas Jefferson and those that drafted the Declaration of Independence with him, and they list 19 grievances just like the English Bill of Rights. But then instead of pairing it with rights that say, you're now going to observe, they say, we've tried and you're not doing it, so we're now free and independent, and we're going to move on that way. But it really does come from the structure of the English Bill of Rights, the

way that the Declaration itself is set up. Let me bring one of the, from the colonial, or the early state declarations, the Virginia Declaration of Rights, which was the first one from 1776, and not just 177676 June 12th of 1776 So we're about three weeks before the Declaration of Independence coming out Virginia proposes its Declaration of Rights or passes its declaration. It's also Jefferson, right? No, it's mostly George Mason as I understand it. And so here's here's here's our first instance of plagiarism Right, I don't know but But the first declaration, the first right in the Virginia Declaration of Rights is this, that all men are by nature equally

free and independent and have certain inherent rights of which when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely, the enjoyment of life and liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety." So the aha is to look at that and think, wow, that really was just paraphrased in the Declaration of Independence. But my question is, should that have been the lead right guaranteed in the Bill of Rights? Because if it was, how would we be interpreting right now, not just property and safety, but that it says pursuing and obtaining happiness and safety,

acquiring and possessing property. How would rights like that be figured out in litigation today? David, do you have any thoughts? That is a tremendous question, Judge. So it's really a positive versus negative rights formulation that I have a right for the government not to interfere with my life, as opposed to a positive right is I have a right for the government not to interfere with my life. As opposed to a positive right, I have a right to some things that the government should positively provide me, such as, you know, Roosevelt talked about this, freedom from

want, freedom from fear. Those are more of a concept of positive rights. And my issue with positive rights has always been, don't promise what you can't provide. That would be one of my issues around the concept of safety. You can promise that you're not going to interfere with somebody's ability to defend themselves, but I feel like you cannot promise that a person will be safe. That kind of positive right, in my view, could then impair some of your negative rights because essentially what's happening is that the government would say, I have an obligation

for public safety here. And therefore, we have to take whatever measures within this government power to ensure public safety. And this drive for public safety has been an enemy of individual liberty. And there's always been this balance, right? You push really hard for public safety and you're going to impair individual liberty. You push all your chips into individual liberty and you might begin to have degradations in public safety. And so I do think that that positive rights formulation, while sounding quite appealing,

when you think through the implications of it, it just is unworkable. We spent the sounding appealing versus what does it mean if you're reducing it to governing language is something that we cover in class a lot. And because you see a lot of great ideas and you see a lot of butting of heads, even in the early documents, on the exact points that you're making there. Robert Sturdevant, Ph.D., Ph.D. I would say, David, it's worth noting that New York begrudgingly

ratified the Constitution, a 30 to 27 vote, but they proposed a bill of rights much like Virginia did when ratifying. So a week and a half after they voted to ratify 30 to 27, their bill of rights formulation actually had some of these positive natural law concepts, like saying all power is originally vested in and consequently derived from the people. Even talks about a right of revolution that they would have codified into the bill of rights, which is sort of strange to think New York codifying right of revolution. But a lot of these didn't make the cut because of this debate Charles is pointing to how you actually live that out.

And so your comment on the butting of the heads is I think where cooler heads like Madison's prevailed. Well, and it is interesting to see some of these major changes in these states. Just as an aside, New York wants to preserve a right of revolution. Massachusetts was somewhat of a theocracy, which is not what you think of Massachusetts today. But I'm sorry, I interrupted. No, I was at the same point. There's not a codified right of revolution, but it just remains implied, I guess, just as it was not a right of the colonists themselves to engage in revolution. There's actually in the Founders' Constitution, the first volume is 18 thematic chapters,

one of which is the topic is right of revolution. And it gathers documents about, you know, why is it that the colonial governments and colonists themselves thought that they had the ability to go undertake this in addition to other topics on separation of powers and things that we more typically think about when we're talking about the way the constitution This episode is brought to you by Dyson On Track. Dyson On Track headphones offer best-in-class noise cancellation and an enhanced sound range, making them perfect for enjoying music and podcasts. Get up to 55 hours of listening with active noise-cancelling enabled, soft microfiber cushions engineered for comfort, and a range of colors and finishes. Dyson On Track headphones remastered Buy from DysonCanada.ca. With

ANC on, performance may vary based on environmental conditions and usage, accessories sold separately. And we'll take a quick break to hear from our sponsor today, the Foundation for Individual Rights and Expression, which you've heard David and I talk about plenty. Fire. In our fast-paced lives where every decision has a lasting impact, it's crucial to take a moment and focus on what's fundamentally important, our rights. The Foundation for Individual Rights and Expression, FIRE, is dedicated to defending these rights, particularly free speech and individual liberties.

As this year draws to a close and we look forward to the future, I encourage you to think about the role you can play in supporting an organization like FIRE. Your contribution is not merely a gesture of support, it is a direct way to aid in the defense of those whose right to free speech is under threat. Take, for instance, FIRE's intervention in the case of Rebecca Massey, a mother from Surprise, Arizona. Rebecca was arrested in front of her 10-year-old daughter for criticizing a public official at a city council meeting. FIRE stepped in and filed a federal lawsuit to protect her rights and the rights of all citizens who want to speak out, and it worked. But FIRE couldn't protect Rebecca's rights without the support of people like you.

Even a small donation of $25 can have a significant impact. By giving at this level, you'll become a FIRE member and receive insider perks such as invitations to FIRE events and a one-year subscription to the FIRE quarterly magazine. You'll be issued a membership card with your name on it so you can show off your commitment to free speech at all of your Christmas cocktail parties. You can also join their monthly member call to discuss what's going on in the free speech world and have your questions answered live. For those deeply committed to the cause, consider joining the Ember Club. Members of this exclusive group are FIRE's most dedicated supporters and they receive unique benefits and deeper insight

into FIRE's strategic efforts in upholding and advocating for Americans' rights to free speech. Ember Club members are key partners in a mission that upholds the values we all hold dear. If you're listening to this, I trust you understand the importance of free speech. I encourage you to visit thefire.org slash dispatch today and make a donation, small or large, for the good of our fundamental freedoms. Remember, your support is more than financial. It's a pledge to defend the principles that maintain the strength of our nation and the freedom of our speech. And what I love most about FIRE is they defend free speech

along all of the ideological, cultural and political spectrum. You may not like the side they're defending, but that's how you know they're defending every side. How often can you say a gift is truly unique? When you gift a loved one an Ancestry DNA test, you're giving them the keys to unlock their own personal journey of discovery. And with our festive sale now on, you can save on a truly meaningful gift. Help them discover their heritage, learn about their ancestors,

and make new family connections this Christmas. Visit ancestry.co.uk to give them a gift that is truly unique. Terms apply. Let me read one more part from one of the prior frameworks, and then I'm going to toss it over to Judge Starr to go into some of the debates that led to our particular provisions. There's a document called the Continental Congress to the Inhabitants of the Province of Quebec. That's literally what I just turned to. And I was like, oh, man, I guess we're not going to get to talk about it. That makes me sad. Well, I'm going to I'll make one point just the first because I'm again going to like the first right. And it's not something that it features in the Bill of Rights or the Constitution

itself. But you're going to hear exactly who used this and know where it came from. So this is the Continental Congress, obviously a couple years before the Revolution itself, writing to the leaders of Quebec and saying, hey, we know that you all are having a problem with English government just like us. And as I understand it, it was problems with French Catholicism that was being practiced in Quebec and it was budding up in religious ways in terms of liberties with the Church of England. But after they set it up, the first grand right

is this, that the colonists sent to them. In this form, the first grand right is that of the people having a share in their own government by their representatives chosen by themselves and in consequence of being ruled by laws which they themselves approve and not by edicts of men over whom they have no control. And flash forward to Marbury versus Madison and his very famous distillation of that as we are a nation of laws and not men. But that really traces back to one of the fundamental governing principles of rights that the colonists were themselves concerned about, being able to fashion the laws themselves that were going to bind them. Sarah, what did you like about the document?

Okay. So something again that I felt like I did not have a firm grasp of in school, but have come to really appreciate later is just how individual and separate each of the colonies were pre-revolution and even post-revolution for that matter. Think of it as like spoke and hub. England is the hub and then each one is a separate spoke emanating from England with its own charter, its own loyalty back to England, its own representatives to England, totally separate little entities. And so under the Articles of Confederation, they're going to try to have this NATO thing. That doesn't work out. The whole point though is that they're these separate entities. They're used to being spokes. And so the radical idea of the constitution, of course, is that they're

going to create their own hub, and they're still going to be spokes, but now with like a hub of their own. Okay, but this gets to my question, which is, I have never fully understood what happened to Quebec? Like, why have we never considered them one of the spokes? Obviously, everyone knew they were a spoke also. I mean, it starts with friends and fellow subjects, which is the same way I would have thought, you know, most of the Sons of Liberty letters started from Massachusetts down to New York.

They're not fellow Americans. They're friends and fellow subjects as a different spoke. Why didn't Quebec join with us? Why didn't we come get Quebec? I don't know, like. We tried, Sarah. Oh, we tried. We tried twice.

We tried in the Revolutionary War. We tried in the War of 1812. One of the most interesting things you can do is go to the Canadian Naval Museum in Nova Scotia, and you will see it's essentially just a celebration of military victory over the United States. I feel like that pretty woman scene where she holds up the bags and is like,

you work on commission, right? And they're like, yeah. And she goes, big mistake, big mistake. But we might've mishandled it when we tried to get them to join us by invading them. But I guess my point is why weren't they part of a, you know, like they were also a spoke. Why weren't they part of a, you know, like, they were also a spoke. Why weren't they part of the beginning? Why are we sending them this letter as if

they're very separate? It says we, the delegates of the colonies of New Hampshire, Massachusetts Bay, Rhode Island, and Providence plantations, Connecticut, New York, New Jersey, Pennsylvania, the counties of Newcastle, Kent and Sussex on Delaware, Maryland, Virginia, North Carolina, which is hyphenated and South Carolina, which is hyphenated, and South Carolina, which is hyphenated. Like we're already like sitting together at the lunch table and like pour Quebec's over with the nerds or something. Well, I do think a lot of it is geographic constraints. And like by the time you're even putting especially in these this day and age, that day and age, when you're pairing Massachusetts

with close, quote unquote, close relations with South Carolina and Georgia, that's very attenuated. And there were debates about whether a federal government itself could even expand across that larger region in a Republican way. I'm gonna be honest, I'm pulling up a map of North America so I can see where Quebec is, and I'll be honest, I'm having to look up where Quebec is, couldn't find it. Okay, but it's like right there. It's quote unquote right there.

And look, there's like this nice super freeway that goes right there from Boston, so it's so easy. But back, it was so remote and attenuated. I think that the ability to consider it as part of the same contiguous structure was very different. So I just don't know that they were in as close communication at the time and in as much commerce at the time. Can I make a book recommendation to that point?

Please do. It's called The Crucible of War and it's about what we call the French and Indian War, what they would say in Europe was the Seven Years War. And it really does demonstrate the cultural differences and the geographic challenges when you're talking about the difference between the 13 colonies in Canada. The geographic challenges were immense. Just reading the accounts of the military campaigns and the French and Indian War, you're stunned at how difficult it was just from move to point A to point B. But the other thing that's really interesting about this that's directly relevant to this conversation

is you can see even in that stage when the colonists and the British, you know, the royal government are quite united, the cultural differences are already massive between the colonies and those who, you know, the British soldiers from the British Isles. And it's really interesting to read of the culture clash. British officers had a real struggle dealing with colonial soldiers because they weren't disciplined like the British regulars were. That by the end of the war, the British regulars had sort of quote unquote gone native.

They had even changed the way they wore their uniforms to sort of more be American style. That there's something about the culture of the 13 colonies that already, even a couple of decades before the revolution, was just sprinting away from the culture of the British Isles. You could see the inevitability of the split just in the accounts of the culture clash in that book. It's a fascinating book. Not to mention the accents, by the way. Have you ever heard Shakespeare done in what they believe is the actually

historically accurate Shakespearean accent? It sounds more American than it does modern British. Modern British is unrelated. It's something between Irish and American accent. Well, David, you're having read that and you're able to explain it, that's one of the tricks of a good law professor in class is that we have 12. The one thing I found, I think, Bradley's experience is the same is that this class is not for everybody. It's not that, oh, every law school should have this on the curriculum

and every student must take it. But it needs to be at more schools because there are 12 to 15 to 20 students in every law school class who really care about this and would love to take a long read at it. And when you have those students in your class, the first time we come across, you know, John Locke, some reading by Locke, I'll be like, you know, which of you was a philosophy major? And you get a couple of hands raised. I was like, and which of you really liked John Locke? And one of them would be, I mean, it's like, okay, you're a John Locke

scholar for this class. And they're, you know, and they're getting, no, but you really do bring to bear a lot of different learning. There's somebody that's going to have majored in, you really have some backing in English history. And what we're getting, I get something new, Brantley, comment on this if you want. I pick out more and more stuff from each document every time I go through the class with the students. It's layers of an onion. And a lot of times it's the students leading me to an additional layer I didn't realize beforehand. It's fascinating. But yeah, so anyway, back to the letter from the colonies to Quebec. I mean, these are the rights you, there's emphasis, these are the

rights you are entitled to and ought at this moment in perfection to exercise. And what is offered to you by the late act of parliament and their place? Liberty of conscience in your religion? No. God gave it to you and the temporal powers with which you have been and are connected, firmly stipulated for your enjoyment of it. If laws, divine and human, could secure it against the despotic caprices of wicked men, it was secured before. Are the French laws and civil cases restored? It seems so. But observe the cautious kindness of the ministers who pretend to be your benefactors." I mean, damn, that's some shade. Some big shade. And persuasive, the elegance with which the thoughts are communicated are so persuasive. One point I always like to make is that, you know, so much of

argument today and sometimes constitutional argument makes things so complex and you have to have so much intricacy and things balancing on each other to get to the point where when you read these documents, when you read the Federalist Papers, when you read the Anti-Federalists and things, they're writing as clearly and simply and succinctly as they can to make points that are going to be readily understandable. And I think when you're having to do too much work to try to understand things in the Constitution, maybe you're drifting a bit from what it was they were trying to do with that provision because they are trying to be very simple and clear.

Bradley, do you want to go on to some of the documents and debates that led to the Bill of Rights? Brantley Do you bet. So I guess we should pick it up. Document number 13 for David and Sarah, say this is page 453, part seven. So this is Alexander Hamilton trying to switch some concerns in New York over the meaning of the due process clause. And this document jumps out to me because there are nuggets in every document that tell students maybe their whole understanding of constitutional law is wrong. The last sentence where Hamilton is trying to say,

hey, don't worry, there's not much in the due process clause. He draws a different line than any of our court cases are drawing. And he says, the words due process have a precise technical import and are only applicable to the process and proceedings of the courts of justice. They can never be referred to an act of the legislature.

Yeah. I was like, wait, what? In other words, he's not talking about substantive versus procedural due process. He's saying, well, you can never have a due process challenged to a law. A law went through house and Senate signed by the president or overridden of the veto, and that's the process you are getting. We're talking about the courts, not laws. So I'm not here to say that there can be no due process challenge to a law.

I'm just a foot soldier, right? But if we go back and look at these underlying documents, maybe the founders had thoughts on what these clauses meant. And maybe we should take that into account when we decide what they mean now. Anything anyone wants to chime in on before we get into what the actual drafting convention was talking about.

I have one thing that reminds me, not me, but the conversation with Justice Thomas that we kicked off with here. In his answer, he also talks about, you know, he's talking about the typical constitutional law class. It's, you know, it's judicial opinions on a train with a hundred cars and they're all going down the track. And he said, you know, often what our decisions do is just tack on a new caboose to the train and that's it. But this is what I like to do. I like to walk through those hundred cars and see what's going on up front. I like to go back to the Constitution and look at the history and the tradition

along the way because what if there's a flashing light on the dashboard out there that says wrong direction? What if we're headed the wrong way? Which I thought was very enlightening metaphor for his and before him, Justice Scalia, sort of their deep dives of let's look and just check sources and references and make sure that all of this is on track and holding together the way that it was intended. That's beautiful. Okay. So in the next document, document 14, we're getting into the drafting conventions discussion

of the Bill of Rights. And you can see they're kicking around. Peatney, South Carolina kicks it off. And they're talking through a variety of things that they think might make a bill of rights, where we've got Liberty the press, habeas corpus, no quartering of troops. So they're talking through a number of the issues that are ultimately going to make a bill of rights. The shocking thing to me is you get down to the end and you look at the vote tally at this point in time in the drafting convention in Philadelphia, and we have no ayes and 10 nays. One absent, it's always...

Rhode Island is always absent. So it's the butt of all of our jokes in this class is Rhode Island is why we have a constitution and not articles of confederation. They only had a Congress and congress could only act if unanimous and Rhode Island was never there. So Rhode Island True to Form is not there, but everyone who was there voted against this. And part of it, I think, is they didn't really know how to put pen to paper and really codify all of these rights. They were kicking it around and had so much else to worry about on structure of a government that had energy,

had an executive branch, had a judiciary, that they really didn't want to mess with it because they didn't know how to formulate it properly in a way that would get three quarters of the states to ratify it. So in essence, it seems like they punted at the time. Yeah. And so David, I'll toss the question to you. Should the constitution itself have taken up what became rights that were in the Bill of Rights. And I say that with respect to the fact that Virginia, Massachusetts, Pennsylvania, a lot of the state constitutions themselves had not been passed without a declaration of rights first being stated before they did the actual document of government. And instead, you know, there are a

few rights that are guaranteed like within Article 4 in the Constitution, but not in a Bill of Rights way. What do you think? Should they have paused and taken up that debate? Paul Matzko Oh, I absolutely think that the Bill of Rights is indispensable, indispensable to our constitutional structure. So the short answer is yes, but the longer answer would kind of be in a more historic sense, no harm, no foul in the sense that they are the first 10 amendments. It wasn't in the original document, but it was the first 10 amendments. The first 10 amendments ratified very quickly. The problem that I have with the Bill of Rights is really embedded in sort of the structural problem that existed with the original constitution, which was it was so laser focused on the federal

government as a source of tyranny that it structurally sees the states as bulwarks of liberty, when the reality was the states were often instruments of tyranny. And ultimately, over time, the federal government turned into the bulwark of liberty, if we're moving from the first founding to the second founding and the Civil War amendments. And so my beef at the Bill of Rights is much more their narrow application originally than it is their sort of location within the constitution, either in the original document or as the first 10 amendments. Brent, I'll give a very human reason why it might have been 10 no's just by looking at

the dates. So they had started the convention, you know, they got together in May in Philadelphia. And what you referred to first from Pinkney and the proposal, that was 20th of August. And that was kicked around a little bit. It came around back around to the floor. Okay, now we've had some time to think about it. It's September 12th. Let's put this to a vote. Do we want to do it? And I think there's a lot of sentiment that we've done a lot. We're very hot and we're very tired. And to now take this up is going to be quite daunting. Charles, I think by calling Philadelphia hot in September, you might be implicitly referring to it as the armpit of America. It's like Congress on a Thursday at 4pm. They're like, time to go. No one wants to be there. Yeah. Well, this is this is September 12. And so September, time to go. No one wants to be there. Yeah.

Well, this is September 12th. And so September 17th, you know, they're going to call the proceedings to a close and they're going to vote on the engrossed documents. So this is just five days before they're done. So they really are at the very end having to do this. And you'll note that Roger Sherman from Connecticut at the very end of this passage says, again, he features what we see later. He was for securing the rights of the people where requisite. The state declarations of rights are not repealed by this constitution and being enforced are sufficient. So he's looking at the idea that you see in some of the documents after this

that well, only limited powers are given and the state declarations of rights are there. So those will be fine to protect the rights that the colonialists and that the states want. But that proved to be a real flashpoint as I think Brantley is going to show with some coming documents. A courtside legend is born. The Raptor Chicken Nacho Poutine from McDonald's. Our world famous fries topped with seasoned chicken, gravy, stringy cheese curds, tortilla strips and drizzle with nacho cheese sauce. Get your claws on it. For a limited time only, I'm participating in McDonald's restaurants in Ontario.

With Uber Reserve, good things come to those who plan ahead. Family vacay? Reserve your ride as soon as you book your flights. To all the planners, now you can reserve your Uber ride up to 90 days in advance. See Uber app for details. Okay, so Oldig, number five. Sarah, this is what you tweeted about, right? So Old Whig is obviously an anti-federalist.

We know a great many of the anti-federalists and who they are. Like Brutus is Robert Yates, Cato is George Clinton. An Old Whig, we don't know for sure who it is, but he said some very important things, so we cover them anyway. He's talking about the need for a Bill of rights to protect very important things like liberty of conscience. He's worried about standing armies, the unlimited power taxation. And so he meanders through a little bit, but tells of the dangers of letting guards against power slip away while you have the power in hand.

And he's saying before he ratified the constitution, this is when our power is at its apex. We should not ratify until we get a bill of rights to protect some of these rights. And he does bring up the story that Sarah mentioned earlier that in 1786, a year before he wrote this, in Philadelphia, they dragged an alleged witch, Charles and I would have to say alleged, innocent and broke till proven guilty, an alleged witch out into the street knifed her, beat her up, and at last killed her mangled body under the auspices of the rule that, quote, we shall not suffer a witch to live. This is almost 100 years after the Salem witch trials from 1692.

And we still have mob rule occasionally happening in an enlightened city like Philadelphia, not the armpit of America. And so what shall we say? He's saying we need a bill of rights. What I will say in teaching the class with Charles is I've learned that the anti-federalists made outstanding points. And then perhaps they couldn't put pen to paper and come up with the most high logical solution for their points and navigate it to a finish. And we'll see how that plays out here over the course of the next few documents. But that was their Achilles heel for the anti-Federalists. So ultimately, they didn't get what they want. They didn't get a bill of rights before ratification, but they did get some very important

things. And that is you had these close votes we were talking about with Virginia and with New York. And keep in mind the federalist papers that we now know so well, they had a specific purpose in mind. Hamilton was from New York. It was generally his idea because he knew it would be a close vote. He knew he needed to persuade the Yorkers

to ratify the constitution, even if there was not a bill of rights. And then it turned out to be a 30 to 27 vote. And then Virginia, Madison, home state of Virginia, he joined the cause, but it was an 89 to 79 vote to ratify in Virginia. And these are two states we'll see in just a moment actually wrote proposed bills of rights, but either at the day they were ratifying or a week and a half after. But the question would be, what's the argument against a bill of rights?

So we see, obviously, the argument earlier from an anti-federalist saying, we need one because there's too much governmental power. But we see James Wilson start diving into the counter of why we don't need one. So in document 17, Wilson has a state house speech, Pennsylvania, and he says, look, we have a republic. If you have a republic, we the people are selecting our leaders. And so we don't need to be worried about the leaders we're selecting as long as we can vote the bums out of office.

And then you see Madison pick up a little bit. He echoes the same sentiment and says, we have republics on the state level too. We had as double security. So there's really no need. But Madison adds a new layer to the argument. And Madison talks about faction. Madison loves talking about faction in the federal papers And he says we're gonna have so many factions that there's really no way that Congress can team up and deprive you of your rights

Now remember Madison was saying this in 1788 and about 10 years later Congress would pass the alien and sedition act Yes the founding generation Yes in an edition. Yes, the founding generation. Yes, the founding generation makes it a crime to speak out against your government. And so, Madison, he had a point, but within 10 years, Congress would prove his point wrong. We see Hamilton in a federalist paper making additional arguments saying something like, you know, it's actually dangerous to have a bill of rights because if you start listing them, what happens if you miss one? Then the courts are going to say by implication, it's actually dangerous to have a bill of rights, because if you start listing them, what happens if you miss one?

Then the courts are going to say by implication, it's not there, we made a list. And there are these 15 some odd rights, and number 16 didn't make the cut, so it's not a right that you have. So we see Wilson, Madison, and Hamilton all teaming up to have cascading arguments on why no bill of rights is needed.

And I can't wait till we get to Charles's discussion on who takes out the bill of rights is needed. And I can't wait till we get to Charles's discussion on who takes up the bill of rights in Congress, because it's fascinating. And I think that's a great lesson for us in society too. Let me ask you either David or Sarah. So, Wilson and Hamilton, you know, their main arguments are since state declarations of rights are being repealed, and it is only limited powers being given to this national government, to people who we can turn out of office, therefore our rights are secure and we don't need to have a separate statement of federal rights. There's a lot of pushback, there's a lot of discussion that we see on that in the documents, but from what you've read and what you think independently about that, is

that, would that have been sufficient? Sarah, what do you think? I think a really fascinating counter history is what does America look like without a bill of rights? Because obviously, not only were Hamilton and Madison and these guys arguing against it because they thought that those rights already were secured, but also because they had said that if there were no bill of rights, we would point to the Federalist society, sorry, Federalist society, Federalist papers and say, look, clearly there are only unenumerated rights and they're all over the place. And I wonder whether the result would be, A, a more strictly interpreted federal constitution,

as in the rights of the government would be more narrow, because we would look at those federalist papers and say, wow, they were really clear that if that power was not given to the government, particularly when it comes to individual rights, if that power was not given to the government, particularly when it comes to individual rights, then that power does not exist. And second, and perhaps perversely, what if they were right? What if we'd have a lot more judicially recognized individual rights if we didn't list them? And of course, we still have the debate over unenumerated rights, but the only two unenumerated rights that we've really underlined are the right to raise your children and the right to travel. If we didn't have the Bill of Rights, as we said,

it didn't come out of nowhere. We have a lot of history with those specific rights in particular that had been listed elsewhere and previously. Surely, the judges would have pointed to the history of those individual rights as well. So the third option is it wouldn't have made any difference at all because they would have been sort of grandfathered in regardless of whether they were amendments, but maybe with less textual specificity. Like textualism wouldn't really work.

We would just sort of be talking about the pernumbras and emanations, if you will, of a right to bear arms, because that's the right that Englishmen had versus spending 70 pages on what an introductory clause means and affects. You know, you raise an interesting question, but I think we kind of have the answer. What would it be like without a Bill of Rights? And we know the answer basically, at least through the beginning of the incorporation doctrine, which was for most government in America that people experienced, the Bill of Rights was not relevant. I mean, the federal government only became sort of what it is now in the depression going

onward. And before then, the government you experienced was state and local government almost exclusively. And state and local government was not bound by the Bill of Rights. Now there might have been separate state declarations of rights, but those were of varying degrees of enforceability. We didn't have the kind of robust litigation practice that we have today on these issues. So I would say we do have a kind of a pretty good idea of what it looks like when the Bill of Rights isn't enforced.

And it could get pretty grim if you were in the out group. You know, what's interesting is the when you consider the anti-federalists, there were there, you know, there's the Federalist Papers, that's three people that wrote across those 84, 85 number documents. There are many, many things that have been collected as the 80 Federalists, and they have interlocking arguments that set up and predict a lot of what happened. In this respect, too, that I can't remember the numbers, but there's one by Brutus where he, when he's addressing the provisions of the preamble and the scope of the government there, and

then looking at the necessary and proper clause gathered in Article 1, one of the things given to Congress as the legislative powers is to pass all things necessary and proper to this constitution. And he says, when you look at the provisions of the preamble, it covers everything that a government can do. And then you're saying Congress can pass anything necessary and proper towards these goals, all these numerous goals. It's like, there's now going to be laws that cover everything. It's not just going to be limited to what Congress we think are specifically being given. And Federal Farmer tops onto that and says, well, there's also this thing called the Supremacy Clause that says things that are passed by the federal government are going to displace

state laws. So between the two of them, they're predicting the scope of the national government is going to come to encompass everything that's part, you know, governed in life in America, and it's going to displace what's in the States. And I think that that's really what animates the push for the Bill of Rights and the needs for their protections there. By the way, before we move on, can I just read a section of Old Wig? I mean, this guy is smart. This guy is seeing the future. Diz, the human nature is still the same that it ever was. The fashion indeed changes, but the seeds of superstition, bigotry, and enthusiasm are

too deeply implanted in our minds ever to be eradicated. And 50 years hence, the French may renew the persecution of the Huguenots, whilst the Spaniards in their turn may become indifferent to their forms of religion. They are idiots who trust their future security to the whim of the present hour. One extreme is always apt to produce the contrary, and those countries which are now the most lax in their religious notions may in a few years become the most rigid, just as the people of this country, from not being able to bear any continental government at all, are now flying into the opposite extreme of surrendering up all the powers of the different states

to one continental government. And in particular, he basically also talks about cancel culture, which is kind of amazing. All right, he says, in Boston, it seems at this very moment that no man is permitted to publish a doubt of the infallibility of the late convention, meaning the constitutional convention, without giving up his name to the people that he may be delivered over to speedy destruction. And it is but a short time since the case was little better in this city. Now, this is a portion of the very same spirit which has so often kindled the fires of the Inquisition and the same zealot who would hunt a man down for a difference of opinion upon a political question, which is the subject of public inquiry, if he should happen to be fired with zeal for a particular

species of religion would be equally intolerant. Cancel culture! He's describing cancel culture! And this is cool to me that like there is nothing new under the sun. And he had to publish under a pseudonym and never self-identified for fear of persecution. Yeah, we used to persecute people over religion. Now we're persecuting them over a difference in political opinion. It could have been written today. Right. That's right.

Well, it's all these predictive things. I mean, some of which are quite prescient is why you see George Mason and Thomas Jefferson and several others say, look, right now, while we're forming this, right now is the time that we need to do this because we don't know what's going to be happening 10 years hence, much less a hundred years. Now is the time. And there was a big push for it. Yeah. And they clearly also, you know, in that, um, and the Supreme Court's immunity oral argument, there was a lot of shade thrown at Gorsuch and Kavanaugh to some extent when they said, we're

not making a rule for today. We're trying to lay down a rule for the ages. And everyone was kind of like, shut up. This is about Trump. And, um, a, those people were wrong that we are making rules for the ages whenever we answer questions presented, not cases, right? My like little tirade that the Supreme Court doesn't decide cases, they decide questions. But over and over again, you see these guys very clear that they are trying to make laws and a constitution

and rules for as far out as they can see. And they even know that they can't see all that far out, but it is not for today. It's for things they can't yet imagine. There's somewhere in one of the early classes, there's a Madison document where he's talking about at the time of the constitution being formed. He says, we need to remember that we're, you know, we're three million inhabitants. We're not just writing for when we're three million. We're writing for a time when we may be as many as 30 million. And I just think that that's right. I think even they were thinking forward, is this going to last 50 years, 75

years, whatever? The idea that we're now talking about 300 million plus. It's a testament to the Constitution, but the fact that they were able to fashion a document that continues to stand the test of time when it's even, it's 10X beyond the 10X of which they were possibly thinking that the United States could succeed to. An old wig, I mean, this is part of his point is, okay, you don't have a bill of rights today because you trust who's in charge. Basically like, yeah, we all love George Washington. Shut up. He's not going to be here forever. The man's old anyway. He's going to die before the end of the century. And he says, basically like, how do you know what's going to happen? How do you know what

your rights are? How do you know these bad things won't happen? What assurances do you have? And then he says, nothing. For we have no Bill of Rights, and everything therefore is in their power and at their discretion. And at whose discretion? We know not any more than we know the fates of those generations which are yet unborn. Boom. Smart. I mean, this is our whole point about executive power. Oh, you like the president now? He will not be the president forever. Or you don't like the president now? Great.

Let's rein in executive power now. But no, instead, everyone is obsessed with like, what is now will last forever. It's very frustrating to me. Okay, sorry, Judge Starr. Okay, so Oldwig did not ultimately get his way, right? The states ratified before they actually had a bill of rights, but you did have this big push, right? So New Hampshire was the 19th to ratify, June 21st, 1788. Virginia came along June 25th, 1788. And two days after they voted to ratify, they proposed 20 amendments to the Constitution. New York, about a week and a half

after they ratified in July, they came forward and proposed, I guess, a not numbered list of amendments to the Constitution. And so they were at least making the push that a bill of rights should happen. Remember who wrote against the bill of rights? Wilson, Madison, Hamilton, Madison, in Congress. And so I'll turn it over to Charles to see what happens next. Charles Daly So I do think one of the – in this class, there are some great lost speeches. The first class, we cover Benjamin Franklin's speech at the conclusion of the Constitutional Convention saying, we may not all agree that this document is in

every particular perfect, but we need to be unanimous and give it our assent and then not backbite and fight against each other going forward. We need to – this is the best that we could do and we should all be humble enough to recognize those advances. So in the first Congress – and James Madison is an elected member of Congress, document 27 is the debates that he initiated in the House of Representatives towards the amendments. And I think that I excerpted it down to about eight or nine pages of reading across a number of congressmen who debated that day. But it goes on for a long time. And the rhetoric and the thoughtfulness that's brought to bear is quite

remarkable. But it kicks off this way. Madison rose and reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution, according to the fifth article. And he states, as I considered myself bound in honor and in duty to do what I have done on this subject, I shall proceed to bring the amendments before you as soon as possible and advocate them until they shall be finally adopted or rejected by a constitutional majority of this house." And he elsewhere talks about those that had fought and suffered together through the revolution and at Valley Forge, and that there were many who had ascended to the constitution, but had profound worries as to whether the protections were enough. And he's rising to say, we owe it to them to try to all get on the same page about this

and either pass some rights or say that we're not going to do it. And he's doing it at a time when two of the states, I think Rhode Island hasn't even determined to meet to join the Constitution yet, and North Carolina took its vote and, as I recall, tabled final approval until there was a Bill of Rights. So in this first Congress, you don't have, I believe you don't have Rhode Island and North Carolina even represented. A lot of the debate that's going on that day is that there's a Congressman Vining who says,

we actually have a lot of formal business of government that we have to do. So basically, there's more important business and we ought to be attending to that. We ought to get the ship of state itself in order and get it underway before we start trying to trim its sails or do anything according to Bill of Rights. David, I think you may have answered this already, but in the first Congress, was the first Congress the place to take this up? We know that there are 17 enumerated powers being given to Congress to pass legislation. So if you think about yourself as a member of the first Congress, you've been given everything from the power to form armies and provide for them by revenue, and also set up the post

office and the roads, it's the levels of detail there. And so what in terms of... This is a new government, it needs every lever and function that a that a national government is going to need. Is that the time to take up rights or were those were those things the more important? Yeah, I think that the time to take up rights is ASAP. Because, you know, if you're talking about why does this republic exist? For what purpose? Why did we break free?

It certainly wasn't for more efficient administration of the post office. It was absolutely because of the concept of individual liberty. And the administration of the post office is a necessary sort of, you know, blocking and tackling of any functioning state. And there's sort of a lot of blocking and tackling sort of basics of any functioning state. There's a lot of blocking and tackling basics of any functioning state. We're talking about foundational principles, and when the foundational principles are the most fresh in mind is the time to take it up. I was for ASAP.

While I was absolutely a Federalist in the sense of, you know, on the Hamilton side of the strong central government, I was absolutely on the Anti-Federalist side on the Bill of Rights debate. Sarah, let me put you into debate with Congressman named Jackson. He says, I'm of the opinion we ought not to be in a hurry with respect to further alterations. What experience have we had, good or bad, with the qualities of this Constitution? If we proceed now to make alterations, we may deface a beauty or deform a well-proportioned piece of workmanship.

When the propriety of making amendments shall be obvious from experience, I trust there will be virtue enough in my country to make them. Burkian, very Burkian. And I am, if nothing else, a strong Burkian and very sympathetic to that. I do wonder whether it would have made any difference. I mean, again, we have the Alien and Sedition Acts coming out 10 years later. So what did it matter in the end? The First Amendment didn't stop the bad things. So maybe we would have had a First Amendment after the Alien and Sedition Acts. And then we would all say like, aha, see, it's a response to that. Instead, we're kind of left scratching our heads going like, boy, if they

thought this Alien and Sedition Acts met with the First Amendment, that's actually a bigger problem. And I think we're very lucky that we all just kind of look the other way on that text history and tradition side of Adams' views of the First Amendment. I mean, in some ways, you could argue Jefferson is the first real president because he's the first that has an actual transfer of power after a contested election. But still, Adams arguably is the first president to not be George Washington, who everyone will just follow off a cliff, if need be. And he's not great for individual liberties. So I'm very sympathetic to Jackson. I like his way of thinking. I also wonder whether the difficulty that we ended up running into for amending the Constitution may have been more ameliorated if we didn't have a Bill of Rights. We sort of got in a better habit of saying, aha, a problem's popped up, let's amend, versus,

oh, we've done these 10 amendments at the beginning, and so it better be real good, because that was still part of the founding, if you will. It's still part of that same transaction, maybe. So yeah, Berkian, Tim Jackson, Federalist all the way. Although I have to say in my old age, I have become really into the Anti-Federalists. I mean, as you can see from my enthusiasm for Old Whig, but that's like a whole different, that's not a Bill of Rights problem in particular.

That's just, I love a contrarian, right? I will suggest a future, I will suggest a future guest of the pod for you, Andy Oldham on the fifth circuit, who has dived into the founders constitution and he has, I've heard him speak several times on the anti-federalists. So if you ever wanna do a deep dive

on the anti-federalists, he's your man. He's a great contrarian as well. I would be so here for that as a podcast. I would love that. And also of Husband of the Pod, Attorney General, Texas Government days with Judge Dar. So it would all be part of the family. That's right. One big happy family. So between the arguments, so Madison rises, let's do a bill of rights. And I'm not sure what he was expecting, but he gets,

you know, a couple of brushback pitches. And so the next time he's heard from, and the excerpts here, he says, basically, I will withdraw the motion. He says, I'm actually withdrawing my motion. I'm going to reform this now. And I'll move you that a select committee be appointed to consider and report amendments as are proper for Congress to propose to the legislatures of the several states. And he builds up a real head of scheme and before he even relents, he's like, and I want to get on the record what I think those rights ought to be. And so he lays them all out.

There's some that don't make the... There's the two that are the proto amendments. There's even some others that don't make it into the constitution itself. But he lays out everything, all the different rights that he wants everyone, the Congress to then be debating and to appoint a select committee on. And there's a lot of pushback on even forming a select committee as to that. But these proto-amendments are so cool. Obviously, there's the proto-first amendment, which I'll, it's broken up. He breaks up religion from speech, but I'll just read the speech part.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments, and the freedom of the press as one of the great bulwarks of liberty shall be inviolable." I like that better than our First Amendment for what that's worth. But then the proto-Second Amendment, I think, will really interest people because it's flipped. The right of the people to keep and bear arms shall not be infringed, semicolon, a well-armed and well-regulated militia being the best security of a free country, colon, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. I wonder if we'd have such a debate over the Second Amendment if it had stayed

in that order. And that order, by the way, is what was in the proposed New York and Virginia Bill of Rights as well. The order only gets flipped here at the last minute, for some reason that I'm not aware of, because it's not included in the review here. And the punctuation marks change. And the punctuation marks- Yes, the punctuation changes. I think that's semicolon. I mean, you could have so many law review articles about that semicolon if that's how the Second Amendment were written. So anyway, the proto amendments are really fun also. And this is just me as a process nerd.

But it sure seems like initially Madison thought that amendments, you would actually like strike out stuff like you do in a contract. Yes, that's what I was going to go to. Like, secondly, that an article first section to clause to these words be struck out to wit The number of representatives shall not exceed one for every 30,000. That's a Washington thing, by the way That isn't it is one of the first proposed amendments that it's the only one of the 12 that doesn't make it and still hasn't right right within within within this excerpt here, but then also in the 14th class, when we take up Article 5 on actually amending the Constitution, it's part of this same debate. There was intense

debate among them as to, wait, what do we do when we amend the Constitution? And James Madison, James Madison is like, it's so obvious. You indicate, it's like you're redlining the document. You interlineate with carrot and it's like, well, insert this clause here and we'll strike this out. And others are like, wait, what are you talking about? It's all just gonna be things that are added onto the Constitution. And then the debate, but if it's interliniating into the Constitution, does that mean we're having to take up again the whole Constitution itself? And so they have this whole debate among themselves that it's like, it seems very clear, oh, here's how you do an amendment to the Constitution

on Article 5. And the first time they do it, they're like, they don't even agree on what the form is supposed to be. All right. We've just got a few minutes left. All right. So, I guess I'll just... I'll wrap up my thoughts just on the debate. It comes around at the very end that... And I just think that this is a wonderful quote from Roger Sherman, who I had referred to before in the federal convention where he spoke against it and said, we don't need it because there are state rights that are not repealed.

Now, Sherman from Connecticut, he had been a signer to the Continental Congress Declaration of Resolves. He signed the Declaration of Independence. He signed the Articles of Confederation. He signed the Constitution. Thomas Jefferson is reputed to have said it about him later, that is Roger Sherman of Connecticut, a man who never said a foolish thing in his life. And here's...he wraps up the debates and he says this, I do not suppose the Constitution

to be perfect, nor do I imagine if Congress and all the legislatures on the continent were to revise it, that their united labors would make it perfect. I do not expect any perfection on this side, the grave, and the works of man. But my opinion is that we are not at present in circumstances to make it better." He goes on at more length though and says in conclusion, the select committee is not going to get us all on the same page. And what I would prefer to see is a committee of the whole and that we continue to debate this together so that each of us is commenting on every part. And Madison accedes to that.

And what is ultimately voted on and agreed to is a reference of the amendments that Madison has proposed to go to a committee of the whole. I don't know what it is that the committee went off to debate on itself. But I think it's a wonderful thing that all of them stayed there trying to get on the same page in a unanimous way, but that it was with this recognition from Sir Sherman, and it's echoing what Franklin said at the end of the Constitutional Convention, this Constitution may not be perfect, but we are doing the very best that we can. There are ways to continue to modify, improve, and

make this thing better, and we should all continue to be doing that together. We need to be patient with each other while we're trying to do that. And I would summarize with, I guess, one lesson I learned from Madison and then one from Franklin. On Madison, you had Judge Ho on your podcast a few weeks ago and he said, people don't read. And I would add to that people don't listen. We tend to, as a current society, tune out anyone as soon as we realize they have a difference of opinion. Oldwig had some strong words about that. Madison had some strong leadership about that. Remember he wrote that we don't need a bill of rights. And who put pen to paper? Madison. Who brought

it up in Congress when no one else wanted to pay attention to it? Madison. We live under a bill of rights and have the freedom to speak right now because a man listens to his opponents and was persuaded and then joined their cause. There's also a lesson from Franklin. Franklin was 88 years old when they drafted the constitution and he was so old he couldn't read that speech Charles is quoted from. He had to have James Wilson read it. Old, frail, and there was a sentiment outside the convention that maybe because there was such a lack of energy in the federal government under the Articles of Confederation that maybe they would make George Washington the monarch. And so as soon

as he stepped out of the final day of the convention, a woman asked him in the street, Dr. Franklin, what did you give us? A monarchy or a republic? He said a republic if you can keep it. It's not easy keeping a republic. It's up to all of us to keep the republic. Federalist 78 said that federal judges like Charles and I are guardians of the constitution. I think that's too narrow of a view. I think we're all the guardians of the constitution and it's up to us every week, every day to figure out how we are keeping the republic and our constitution. us. As a Fizz member, you can look forward to free data, big savings on plans, and having your unused data roll over to the following month, every month. At Fizz, you always get more for your money. Terms and conditions for our different programs and policies apply.

Details at fizz.ca. Thank you so much, professors, judges, Eskridge and Star. I got to say, David, though, I'm kind of sad that we're leaving this episode, and I feel like I want to go back and attend this class again. I know you guys put a ton of work into teaching us this today, but perhaps we could persuade you to teach another one of your classes from this class again in the future? Any time. I mean, literally any time. It would be a pleasure. I'm teaching again this spring and I'm really looking forward to it. And I guess as a Christmas present on this, I

would like to say if there are any judges, maybe those that are working in state solicitor general offices. If you're looking for a class to teach as an adjunct, this is a class I think that you might be able to pitch to the law school that's near to you. I would be, and Brantley and I, we would be happy to provide you our materials to take a look at. If anybody listening to this wants to go teach this at a law school that would have them, I would make it freely available. And again, it's going to be available shortly from the Texas Review of Law and Politics, but I don't know that there's a publication date for that yet.

I mean, I don't know, guys. There's so many of these that I would pick out and want to sit in on slash make you teach me. I mean, part 12, loyalty, treason, and the rights of the mind. Oh, that's great. As someone who's been accused of treason recently. Well, there's that. But also I remember like one time teaching, it was like, wow, I never really,

when I was teaching the classes, I never really thought we were gonna dive so deeply into the impeachment clauses and have it matter currently. You gotta look at it in a different way. Exactly. Well, seriously, thank you guys. Merry Christmas. Happy Hanukkah. Happy holidays. Happy New Year. And to you listeners, See you in 2025.