Special series announcement! For the next four weeks, we’re bringing you a special series as part of Kettering’s America 250 initiative, “Democracy, Under Construction.” It’s about key events in American history that have brought us toward, or away from, an inclusive democracy—and the work that remains to be done. We coproduced this series with our friends at a podcast called This Day. It’s a history show, and they’re doing a whole year of episodes about major events that shaped our nation. So, for the next four Tuesdays, you’ll be hearing episodes of This Day in our feed, where their three cohosts and special guests discuss these important moments in American history. Learn more about the series here: https://kettering.org/america-250-podcast-series-begins-in-september/ If you enjoy this episode, go over to This Day’s feed for two more episodes on each of these historical topics. The Context’s host, Alex Lovit, will be the guest in the third episode each week. Listen to the episodes here: https://www.jodyavirgan.com/political-history-show For our kickoff episode in the series, we go to 1789. That’s when the Founding Fathers spent months that summer hammering out the Constitution—and nearly forgot to include freedom. This Day hosts Jody Avirgan, Nicole Hemmer, and Kellie Carter Jackson are joined by Dahlia Lithwick of Slate to look at how the Bill of Rights came to exist: the philosophical fight over whether rights even needed to be written down, what ended up in it (and what didn’t), and what it tells us about who the Founders were actually building this government for. Be sure to check out Dahlia’s Amicus podcast and all her work at Slate. https://slate.com/author/dahlia-lithwick More about This Day: This Day podcast, hosted by Jody Avirgan and historians Nicole Hemmer and Kellie Carter Jackson, takes listeners beyond the head-spinning headlines of today and into the unexpected historical moments that have shaped American life and politics. This Day is part of the Radiotopia podcast network. Listen to the show here: https://www.jodyavirgan.com/political-history-show And finally: if you’re in the Washington, DC, area, join us on Monday, October 19, 2026, for a live taping of This Day. Alex Lovit will join This Day hosts live on stage. The featured guest is Kettering Senior Fellow Rev. Dr. William J. Barber II. They will be in conversation about the moment of democratic realignment we are living through right now. Are we witnessing a fundamental shift in who holds power, who gets left out, and how race and class are reshaping the coalitions that define American politics? And what can history teach us about moments like this one? The event is open to the public, and tickets are available through the Howard Theatre: https://www.unionstagepresents.com/shows/this-day-live-the-next-realignment-presented-by-the-charles-f-kettering-foundation-19-oct
Alex Lovit:
Hello, listeners. This is your host, Alex Lovit. Just giving you a heads up that for the next few weeks, this show is going to sound a little different. For the next four weeks, we're bringing you a special series as part of Kettering's America 250 initiative, Democracy, Under Construction. It's about key events in American history that have brought us closer to an inclusive democracy and the work that remains to be done. We co-produced this series with our friends at a podcast called This Day. It's a history show, and they're doing a whole year of episodes about major events that shaped our nation. So for the next four Tuesdays, you'll be hearing conversations among This Day's co-hosts and special guests about these important moments in American history. And if you enjoy this episode, go over to This Day's feed for two more episodes on each of these topics. I'll be the guest on the third episode each week.
One last thing, we're doing a live show. If you're in the Washington, D.C. area, join us on Monday, October 19th at The Howard Theatre for a live taping of This Day. I'll be there along with all three co-hosts. The featured guest is Kettering senior fellow, the Reverend Dr. William Barber. There's a link in the show notes to buy tickets and to This Day's podcast feed. Okay. I hope you enjoy this episode.
Jody Avirgan:
Hello and welcome to This Day, a history show from Radiotopia. My name is Jody Avirgan. This is 50 Weeks That Shaped America, our semiquincentennial look at the moments in history that brought us to this moment, 250 years into the American Experiment. This is the first episode in a month-long collaboration that we are doing with the Charles F. Kettering Foundation called Democracy, Under Construction. We're going to visit four moments from American history when American democracy has expanded, contracted, realigned, been contested. This is our chance to, of course, talk about some of the stories that we are most fascinated by, but also try and draw some through lines about how rights and democracy have expanded and contracted and been contested over time.
Across this series, we are also going to be joined by some incredible guests, many of them Kettering Foundation fellows. And then on Sundays, I'm going to be having a series of conversations with Alex Lovit, host of the Kettering Podcast. This week, let's talk about some big ideas, yes, but also another Founding Fathers group writing project. Now, a couple of months ago, listeners, if you remember, we did our episode about the drafting of the Declaration of Independence, and we talked about how that document got put together, what was left in, what was left out. Today, we cut to a little over 10 years later or so when a lot of these same guys are still around, still arguing, still writing, still meeting, this time trying to hammer out the proper Constitution. More specifically, this week we look at what came to be known as the Bill of Rights, the first 10 amendments to that Constitution that enshrined such liberties as free speech, assembly, freedom of religion, gun ownership, a jury trial, et cetera, et cetera, et cetera. You know what I'm talking about. It is the Bill of Rights, people.
So, what better way to kick off a month of examining how our democracy continues to be under construction than by looking at how the Bill of Rights got constructed. Today, in two parts, the arguments for and against the Bill of Rights, what's actually in it, who got left holding the bag on the big group writing project. Here to discuss, as always, Nicole Hemmer of Vanderbilt and Kellie Carter Jackson of Wellesley. Hello there.
Nicole Hemmer:
Hello, Jody.
Kellie Carter Jackson:
Hey there.
Jody Avirgan:
Thanks for bearing through a longer intro there, but I did want to frame the Kettering conversation, which I'm really excited about, and I did mention that as part of this special month, we are going to have some special guests. What better way to kick it off than with Dahlia Lithwick, senior editor at Slate. She's written their Supreme Court columns since 1999, also hosts the podcast Amicus, which is Slate's podcast about law and the Supreme Court. The latest book is Lady Justice: Women, the Law, and the Battle to Save America. Dahlia, thank you so much for coming back on the show. Does it feel like our democracy is still a little bit under construction?
Dahlia Lithwick:
I'm literally-
Nicole Hemmer:
Maybe deconstruction?
Jody Avirgan:
Just a little bit.
Dahlia Lithwick:
I'm literally sitting in front of a copy of my book and I now block it with my head because the battle to save America is such a sweet anachronism of like, "We tried. Women, we really tried. We did it, but..." So yeah, no. Yes. Although I'm here to say, and I know it's why you asked me to be here, but I really do think that democracy can save democracy. I believe deeply that we actually have the toolkit that we need thanks to things like the Bill of Rights. As much as I just sounded like Eeyore, I want to be very, very clear that I think we know how to do this thing. We've done it before.
Jody Avirgan:
That's great. I know you just came off a project this summer at Slate where you were kind of looking at popular constitutionalism. So maybe define that for folks, but I think that really intersects with the kind of things we're going to get into here as we talk about how the Bill of Rights got written, right?
Dahlia Lithwick:
Not only does it intersect with this conversation, but it intersects with so many particulars of this conversation, which is that the drafters really thought they could do this without public buy-in and they tried. The public was like, "No. Yeah. No, we're going to need a bill of rights now." If you really think of it, it is the, I think, first example, Jody, of the recognition that constitutional meaning comes from the public and from the people and from letters and op-eds, and that only after that do the framers get to push ideas that then go to the courts.
So, popular constitutionalism is just a notion, and we were just talking about this before the show. Jill Lepore has been writing about it now. Niko Bowie is writing about it with Daphna Renan. There's a whole uptick of books about the idea that we don't actually have to be enthralled to this nine-member juristocracy that decides every single issue dispositively for all time, and that in fact, and I'll end here, but for a very, very short period of time, a couple of decades have we had this notion that the Supreme Court get to be the final ultimate irrevocable arbiters of constitutional meaning. It's a very modern idea.
For long periods of time before that, whether it's Reconstruction or the civil rights era in the 1960s, it wasn't the court deciding liberty and dignity and justice and equality. It was the people pushing those ideas. So, this is a series, and we're really proud of it, it's called By the People that essentially investigates the problem of when you become in a kind of a hostage situation with the Supreme Court and have this learned helplessness that, "Oh, well, there's nothing we can do. We'll just cross our fingers and hope things get better." You're giving away a foundational power that the Constitution gave to you.
Kellie Carter Jackson:
Yes. It's so good. That's so good.
Nicole Hemmer:
And such a positive alternative or addition to the conversations about the ways that the court needs to be constrained that something can fill that, that can be people driven, especially in a moment when we're just thinking about how to stop all the bad things from happening. So the idea that you can flood that with something positive that gives people something to do and gives them agency feels like a welcome change of conversation.
Jody Avirgan:
One other way in which this notion of the Constitution being for the people... Ask you this later, but I mean, when we did our Declaration of Independence episode, we talked a lot about how it was written to be read aloud. It was written to be taken to the people. Maybe this is an obvious point, but revisiting the Bill of Rights, it is kind of amazing how it's written in that same spirit, and just like the language, as contested it as it is, it's just plain language. I mean, I just sort of marvel at the actual writing of it. I don't know if you agree, but it was clearly meant to be taken to real people and have them at some level understand the spirit of it.
Dahlia Lithwick:
And not only do I agree, but not so very long ago, Brown v. Board was written to fit onto the page of a newspaper, right? Brown v. Board was written in exactly that spirit, Jody, which is, "I want this to be on every kitchen table in America. I want every school kid to understand what we just did here." It is not like we now live in an era, and I am coming off a month of June, where you have to read like 600 page, nine concurrences, four dissents, 800 footnotes, and there's no way that that sends a signal to the American people other than this is simply too complicated for you to participate in. So what you're saying about the authorship of the founding documents... And I would suggest again, if you read Obergefell, if you read Brown v. Board, you can see that those are pieces of judicial craft that are trying to do exactly what you're describing, which is say, "This is a contract between us and you. This is not us telling you what the law is for all time."
So, I completely agree. I think the learned helplessness that I've described where at the end of a court term you're, "Okay. Well, bye, Haitian refugees seekers, asylum seekers, the court says you have to go home." It's a choice to say, "I don't understand this. It's too complicated." It's also a choice to say, "Why do you get to have the last word on that?"
Kellie Carter Jackson:
It's also intentional to make a document 800 or 700 pages so that you can intentionally bog someone down and saying, "Okay. This is too much. I can't read all this. I can't consume all this." Sure, fine.
Nicole Hemmer:
Learned and taught helplessness.
Kellie Carter Jackson:
Yes.
Nicole Hemmer:
Yes.
Jody Avirgan:
All right. Well look, we have a lot to cover in these two episodes, so let's get into how the Bill of Rights came together because also I should say, just to give people a little bit of a roadmap, in the second part of this conversation, we're going to talk about how the fight over the Bill of Rights sort of hardened into the first political parties. So we're going to talk about what's in the bill, but also the fight over the bill and how we got to that. So, let's, I guess, start a little bit there with just the basic idea of why do we need a bill of rights? Nikki, we've done an episode about the Declaration of Independence. I framed how we're in a sort of 10-year period here where we're doing a lot more founding documents are getting written. How does the conversation emerge that, "Wow, in the process of writing this Constitution, we also need to do something a little more"?
Nicole Hemmer:
So the story actually starts a step back from that, which is, well, why do we have a Constitutional Convention in 1787? Because we actually already constructed a government under the Articles of Confederation. I love to bring this up to my students, many of whom have heard of the Articles of Confederation, but to remind them that the founders needed a mulligan, that they created a government and it ran for about 10 years. Over the course of that 10 years, they were like, "You guys, we have really, really screwed up. We have not given enough power to the central government. It can't do anything. It can't raise taxes. It can't handle foreign trade. It can't do anything." As a result of it not being able to do anything, we have some real problems for its ability to even function.
Coming off of the war, there were all of these foreign war debts that the US owed, but they didn't have the power to levy taxes, and the way that the funding of the government was set up was that the states could voluntarily send money to the federal government. I don't know if you've met the states.
Jody Avirgan:
Or a human.
Nicole Hemmer:
Or a human. Sometimes we tithe, sometimes we donate, but trying to create a budget based on purely voluntary donations from the states-
Kellie Carter Jackson:
That's wild.
Nicole Hemmer:
... doesn't work of not having any money. And not only does that mean that they can't service their debts, it also means that they can't, say, pay a military, that they can't do the kind of fundamental things that the federal government was set up to do, which included keeping the peace domestically and keeping the peace abroad. So this all comes to a head whenever Shays's Rebellion breaks out in 1786 and 1787. This is a tax revolt in Western Massachusetts. There wasn't a federal military to put down this rebellion. They had to use a state militia that was funded through private funds from Boston business people. It was just at that point, it's like the states have their own money systems, they have their own foreign policies. At what point do we just all agree that we have not constructed a true central government?
Kellie Carter Jackson:
Because each state is its own country-
Nicole Hemmer:
It's its own country. Yeah.
Kellie Carter Jackson:
... its own country currency and its own laws and its own... I mean, it would be like literally crossing borders would be like going into a completely different world with its own set of rules and expectations. It's unmanageable.
Nicole Hemmer:
So you have this kind of agreement that... Agreement. You have at least a group of prominent individuals like George Washington, James Madison, Alexander Hamilton who say, "This isn't working. We need to go back to the drawing board and create a federal system that has a stronger central government." To now tie this into your question, Jody, if we're going to have a stronger central government, we need to figure out a way to make sure that that stronger government is not encroaching on individual and state rights. So that's why you get both a new Constitution and a bill of rights.
Jody Avirgan:
Dahlia, you want to jump in on any of that?
Dahlia Lithwick:
Well, just to make that, again, too self-evident to say, but maybe it needs to be said point, which is we just talked about popular constitutionalism and the power of people, and it's worth saying that when you get a bunch of leaders, particularly super well-educated, elite, white male leaders together to build a democracy, the first thing they don't think about is democracy. The first thing they think about is how do we allocate power? That is the first cut at the founding documents are about governing, not about the people. So in some sense, it's like the dumbest oversight in the world that they're not like, "Oh, crap, we forgot freedom." But they forgot freedom.
So, what you need to do then is to... And then it turns into... I mean, the historians, you guys will talk it through, but you have to construct now some kind of promise that you're not allocating power between branches of government, splitting the salami so that this entity gets to decide this and that gets to decide that. You have to do the thing you probably should have done when you broke from the other all powerful governing entity. And that is figure out how to go back to the Magna Carta and documents that afford freedom and not just governance. So it's like a talk about a mulligan. It's just such an oversight to think that you were going to get a Constitution with almost no provisions other than what? Rights of contract. There's almost nothing in the Constitution that signals that they were aware that freedom was going to be encroached by necessity by governance.
Jody Avirgan:
Maybe let's walk through that. And then I do want to take a step back and obviously discuss some of the philosophical questions around why we need a bill of rights. But Kellie, how does the actual first non-bill of rights version of the Constitution come to be? And then where is that moment that's, "Oh, wait, maybe we need a little more here"?
Kellie Carter Jackson:
Yeah. They realize they need to go back to the drawing board basically. So there's this convention where all of the Founding Fathers and major players come together and they're like, "All right. We are going to have to reconfigure how this government is going to work." One of the ways that they set it up is to create a system of checks and balances. So, this is what you get in civics class. You have your executive branch, your judicial branch, your legislative branch, and then you have a system of checks and balances and vetos that pretty much don't allow any of the three branches to have ultimate control or authority. That works pretty well in terms of figuring out, "Okay. How are we going to function at the executive level, at the power level in terms of how this plays out?" But it still didn't address freedom. It still didn't address the people. It still didn't address the very practical ways in which people were to navigate their lives.
The crazy thing about it is that James Madison, who's a big proponent of arguing for this stronger Constitution, is not a fan at all of the Bill of Rights, and is pushing sort of vigorously not to have this. You start to get these very early on factions in terms of are we going to have a bill of rights? Are we not going to have a bill of rights? What's going to be prioritized in this Constitution? You start to see very quickly how people really take sides over this idea of federal power and giving the government more influence and control and state power versus looking at how people are going to maintain their autonomy and agency as individual states. It becomes wild in the way that people start to navigate these debates. I mean, some of these debates, we'll get into it, become violent for real, but-
Jody Avirgan:
What is Madison's... Why does he not think we need to lay out these actual rights?
Kellie Carter Jackson:
Madison, first of all, I should say for those who don't know, Madison is like this sort of short, sickly man.
Nicole Hemmer:
Let's drag Madison a little bit before we get into this big idea.
Jody Avirgan:
Though he just-
Kellie Carter Jackson:
The first way you could describe someone as short and sickly.
Jody Avirgan:
I know. But just to be clear, he is also the one bearing a lot of the brunt of writing this thing and kind of moving the ball down the... Yeah. If we talked about how Jefferson was really kind of left holding the bag on the group writing project for the Declaration, Madison is a little bit in that role for the Constitution, right?
Kellie Carter Jackson:
Yes. He spent months researching this. He's really put a lot of thought into trying to figure out, okay, how can we study all of these different republics, study all of these different confederacies and think about what is going to be the best plan forward? A lot of his ideas are somewhat useful when you think about proportional representation. That's something we still haven't really tackled today. He wanted things like congressional veto over state laws and he supported some compromise agreements, but he's not really thinking about how this would play out among the people in terms of Bill of Rights. He's much more thinking at the top level, not bottom up, I should say.
Jody Avirgan:
Right.
Nicole Hemmer:
And in part because he's an idealist, right?
Kellie Carter Jackson:
Yeah.
Nicole Hemmer:
This is often a flaw with the founder's thinking is they have this idea of how a society might work that in this case, he's like, "Well, we don't need to write down everyone's rights. If we don't give power to the government to do X, Y, and Z, the government can't do it. So we don't have to worry about it." There's this fear that if you start listing rights, that you are prioritizing them, they're going to leave something out. And then people will say, "Well, you don't have access to that right because you didn't write it down." So, there is something. It's not that the people who opposed the Bill of Rights were opposed to the rights. There was a philosophical difference over what the consequences of writing them down was going to be.
Dahlia Lithwick:
Yes, but there's-
Jody Avirgan:
And that at some level the Declaration kind of covered it, right?
Dahlia Lithwick:
They felt that anything that wasn't written down was in the Declaration and failing that was in the state Constitution. It was covered. In their view, it was double covered. But I always think of this through the lens of if you've ever told a kid, "Okay. You can't pee on the floor and you can't eat the cookies and you can't stay up past midnight," then they think, but running naked through the streets is okay, right? So this question of unenumerated rights is actually a huge problem and goes on to be a problem to the modern day, right? We're still fighting about the contraception as an unenumerated right. But I do think it's not a trivial problem to say, "Oh, it's all covered. It's all covered. Don't worry about it," as you are consolidating massive amounts of power in the hands of the government. So I think in hindsight, it kind of makes perfect sense. They had to list these things because who was going to protect freedom of speech? But I think they genuinely thought, "This is absolutely covered. This is a natural right, and it is protected under the auspices of freedom."
Kellie Carter Jackson:
Yeah. There's theory and then there's practice, right? I think in theory, people will do right or they'll get it. And then when you start to put that in practice, it's like, "No, you actually have to have some guidelines and some guide rails for how people will navigate themselves."
Jody Avirgan:
There were also the practical realities here where for however many times over the last 10 years, just these folks all got together in a sort of hot, humid room and hammered it out for months and months and months. In this case, it's kind of the case that they're doing the Constitutional Convention. They're writing this. Madison's taking the lead, and it goes on for months. You kind of get the idea that over in the corner is George Mason every once in a while raising his hand and going, "Maybe rights, rights, Bill of Rights? Bill of Rights? No, rights, no. Okay. Not today, not today."
Kellie Carter Jackson:
"Anyone?"
Jody Avirgan:
But then it's like at the very end of this whole process when they're ready to say, "Okay. Well, we've got our Constitution, let's go ratify it," George Mason throws a real curve ball. Fellow Virginian, both now have universities named after them in Virginia, but he kind of stands up and is like, "Hey, guess what? I'm not going along with this plan unless we actually have this real conversation about a bill of rights." He's one of three delegates on the final day of the convention basically refused to sign because it lacks this bill of rights. I always return to just the realities of the moment where it's just like how exasperated must people have been for Mason to stand up, but was it a curve-
Kellie Carter Jackson:
Thank you, George Mason. Thank you.
Jody Avirgan:
Yeah, but thank you, George Mason, for sure. But just how frustrating must that have been in that moment.
Nicole Hemmer:
Yeah, people want to go home.
Jody Avirgan:
People want to go home.
Nicole Hemmer:
They want to go home. Again, for people who were convinced that the states' bills of rights were going to cover this, they were like, "We don't have to argue about this. This is taken care of." But there's also some wheeling and dealing that's kind of, "Look, we'll get to your bill of rights. It's fine." Now, there are a lot of lawyers involved in this, and I don't know that I would take a wink and a nod to the Bill of Rights as a guarantee, but it was hot and they wanted to get out of that room.
Jody Avirgan:
Yeah. Yeah, for sure. Dahlia, do you have a quick thought here? This is going to be the focus of the second half of our conversation, but do you have a quick thought here about... Obviously, we talked about some of the ideological strains that are emerging, but this is where you do start to get a first sense of, "Oh, there's factions and there's coalitions and there are eventually what will become parties."
Dahlia Lithwick:
First of all, I think we just need one little moment to afford respect to James Madison who's capable of saying the sentence unheard again in political life ever since, which is, "I changed my mind." What an extraordinary... He's having this crazy epistylatory thing going with Jefferson and Jefferson's like, "Oh, I think you really kind of need this." I mean, just for the ability for Madison to be like, "Oh, wait, I changed my mind," is quite amazing and just to be directly responsive to the question. He changed his mind for a couple of reasons, but in a weird way, he changed his mind in part because he thought this was a way to bring the American public in.
He thought it would be educational for the people to have skin in the game and construct what a bill of rights could mean. He thought it would be a vehicle to get people to stand up for themselves and assert their rights, which is amazing. Maybe the most important thing just to end at both the courts and political parties is that he really thought it would strengthen the Supreme Court's role in the entire judiciary's role as guardians of individual rights and liberties. Fast forward, the Bill of Rights sits supine for a century. Nobody ever uses it for anything, but it does become in our time the lever by which we can guard individual freedom. So I think even though he was short and funny-looking, I think big props to Madison for, in some sense, solving a problem that didn't exist yet. But as you say, Jody, in a lot of ways, I think turbocharging the rise of political parties that is going to be the thing that most threatens in some ways the project.
Jody Avirgan:
So that period in which Madison really changes his mind, because as we said, he started out by thinking, "Oh, gosh, the Constitution largely covers all this and we don't want to start enumerating these things," and then by the end of this project, he's one of the biggest champions for a bill of rights. This is all happening in 1787, 1788. The Constitution without the Bill of Rights goes out for ratification and five states are quickly on board. They need to get to nine for it to be ratified. But five states are quickly on board, but then Massachusetts is the one that really says, "No, we need to have a serious conversation about this Bill of Rights." There's the Massachusetts Compromise. Sam Adams, John Hancock agree to ratify the Constitution right now on the condition that will throw in some amendments that will eventually constitute the Bill of Rights.
Meanwhile, down in Virginia, as you said, James Madison is back home and he does change his mind, and I think a lot of it is philosophical. He has this correspondence with Thomas Jefferson where Jefferson kind of convinces him that this is the way for... Jefferson writes them, "A bill of rights is what the people are entitled to against every government on earth." It is also worth pointing out that Madison is in an election fight, and he basically makes a campaign promise that he will be part of the ratification of introducing these amendments.
Kellie Carter Jackson:
Heck of a promise.
Jody Avirgan:
Yes, heck of a promise, but the like, "I need to get elected. I'll say anything to get elected," was been there from the beginning as well. It's worth noting. But no, I agree with you, Dahlia. It is a remarkable shift for such a Titanic figure. So then they all come back and they start to have a conversation about... They get over this line. Who's the ninth state? It's New Hampshire. New Hampshire's the ninth state that ratifies with an understanding that we're going to do some amendments. So now they come back and they do some amendments. We can get a little bit into the back and forth of those amendments. I mean, it starts at hundreds of ideas because it's all flowing from the states. And then I think it goes down to 22 and then 19 and then 12 and then 10, and the 12 to 10 is interesting, which you can get into. But I guess, should we just quickly remind people what the 10 are?
It's the Bill of Rights, people, but the first 10 amendments to the Constitution, and obviously the first is religion, speech, press, assembly, petition. The second is the right to keep and bear arms for a well-regulated militia, quartering of soldiers, unreasonable search and seizure. We're not going to read all 10, but jury trial, and then the ninth amendment, which we will definitely return to, but it's the one that says, "Rights that are not listed here still exist, the unenumerated rights." But we don't have to rank our favorites, but there's some good stuff in there, right? Thumbs up. All right.
Kellie Carter Jackson:
No excessive bail. I'm for it.
Jody Avirgan:
Yeah.
Nicole Hemmer:
Well, I think what's interesting is the way that different amendments in the Bill of Rights have become part of popular understanding and others have become less so. If you refer to the First, Second or Fifth Amendment, I think you could assume that a casual listener kind of knows what you're talking about. Yes. They might not be able to list all the five different freedoms in the first. They might not totally understand the fifth, but those are the kinds of things that we talk about in common parlance. If you dive a little deeper and you're into thinking about policing or incarceration, then you know about unreasonable search and seizures, speedy trial, no cruel and unusual punishment.
But what I find interesting are especially the Ninth and Tenth, because somebody who writes about conservatism in the 20th century, conservatives really latched onto the Ninth and the Tenth Amendments, the Tenth especially, as ways of making an anti-federal government argument or a state's rights argument that the government, these were meant and they're very kind of like... The other eight amendments are very specific. The Ninth and Tenth are, "And by the way, we just want to be clear that the federal government needs to be constrained. So any right we haven't enumerated, we still have that and any power we haven't granted, we still have that." That I think gets at the ethos of why the Bill of Rights is being passed as a way of we want these constraints to exist and we want access to these freedoms as much as possible.
Dahlia Lithwick:
I know we're not naming our favorites, but I always love the scholar Burt Neuborne has this beautiful little gem of an analysis about the First Amendment, and he talks about it as a series of concentric circles that without the most inner one, which is religious liberty, you can't have the outer ones. So he talks about how if you came to the country and were fearing religious prosecution, the most quintessential right to be conferred upon you was religious liberty. And then he just expands out and it's very beautiful that you need the right to speak, you need the right to assemble, you need the right to petition a government.
I love it as a way of thinking about... Again, it sometimes seems in hindsight like they're all just sitting in a hot room slapping words around, but I think it's such an elegant way of saying without those core foundational promises, you don't get anything close to the kinds of courage as a citizen to go petition your government. I just think that's a very... It's not my favorite. I love all my children, but I do think that it's a beautiful way of thinking about how the First Amendment is constructed.
Jody Avirgan:
I love that.
Kellie Carter Jackson:
I think it's interesting-
Nicole Hemmer:
And where citizenship comes from, right?
Kellie Carter Jackson:
Yeah. I think it's interesting though that almost half of the amendments sort of deal with crime in the way that crime will be either punished or handled. I mean, we're talking about the Fifth, the grand jury for capital crimes, no double jeopardy. You could even throw in no unreasonable search and seizures, but the right to a speedy trial, a jury trial and civil cases over $20, no excessive bail or fines. All of these ways of thinking about like, "Man, four through eight sort of all deal with the criminal justice system and how people will be handled within that system." I think it shows you how much crime and justice are being prioritized in a new government. They're being thought of as, "These are major things that we need to delineate before we get to a lot of other things." That just tells me what was at top of mind for them more than anything else.
Nicole Hemmer:
Because this is the way government can take your freedom, right? That's like the one route.
Dahlia Lithwick:
And what's taking your freedom. This is what you're fleeing is thrown in jail for all time without knowing what the charge is against you and without the ability to test those charges. This is definitional.
Jody Avirgan:
Even the Third Amendment, which we haven't given love to, but the no quartering of soldiers, it sort of plays into that as well. It's just like can the force of government be used to compel you to do something? Okay. Those are the amendments. We'll continue to talk about them and their legacy, but I do want to ask a little bit about the process of writing them. I mentioned there were hundreds of ideas and it got whittled down, but the final stage of whittling goes from... I mean, Madison basically, who's now one of the most vocal proponents of a bill of rights, he presents 12. The first two actually are about expanding Congress and about salaries. And then the remaining 10 are the ones that we now have. So, Dahlia, is there some significance to the fact that those two, which strike me as just much more mundane, gets taken out? What do we make of that?
Dahlia Lithwick:
Yeah. I mean, I think at this point he's swinging for the fences, right? He's thinking about liberty with a capital L. This stuff is like the owner's manual, but it's not soaring. I think at that point, I mean, again, not the historian you all are, but I think it makes a certain amount of sense that this kind of how are we going to do what I described initially as this business of governing is no longer the conversation. That was the conversation before the Bill of Rights. We are now having a profoundly different conversation and you could see how starting off with, "But first let's talk about salaries," would be a very, very-
Kellie Carter Jackson:
Yeah. How much are we getting paid?
Nicole Hemmer:
I think that's exactly right, Dahlia, that imagining the Bill of Rights, imagining the First Amendment as the Third Amendment, I know they're not rank ordered, but there is something that happened in the process of rank-ordering them or listing them, enumerating them in a particular order that this isn't about the business of government. This is about what rights do the people have and that people-forwardness of it is what I think makes it so special, what ties it to the declaration and what gives it that power in the work that you're doing on popular constitutionalism, right? This is the popular part and we can worry about congressional salaries some other place.
Jody Avirgan:
I mean, the First Amendment would've been buried as the Third Amendment. Moreover, another thing Madison had in mind was to kind of bury what we now know is the preamble of the Constitution. Obviously the Constitution now starts with we the people and the more perfect union and all that great stuff, but he had originally kind of floated the idea of another preamble before that, that was again a little more just about the business of government. So I do think that there was an understanding to your point, Dahlia, of this needs to be about some big ideas and also about individual liberties, we the people in a really interesting way.
The last thing I want to ask all three of you to reflect on before we take a break, and then next episode we'll get into a little bit of how the process of writing this thing hardened the political system we live with up to today, but there was an active debate about whether this language and these new rights should be weaved into the Constitution itself or added as amendments. I'm asking this question a little naively because I'm sure there's like 50 books written about this, but what is the significance of the fact that these were amended to the existing document as opposed to, "Let's crack this Constitution back open and imbue it with all of these ideas"?
Dahlia Lithwick:
I think that the result is that it is a lesser document and it's a document that is essentially put on ice until the 1920s. So I think it's an incredibly fascinating tell that this thing that we've just described as this sort of the arc here is you go from the workaday business of managing how government governs to soaring language about quartering of soldiers and the freedom to assemble. And then you take all that and you pack it in and you call it the Bill of Rights, which by the way, it wasn't even called... Nobody even knew what the name of this thing was. It was like a cocktail napkin. It was stapled on and for a very, very long amount of time, efforts to say, "No, but this is actually foundational agreement between the people and government." It was not treated seriously in the courts. So I think that I don't actually know why the decision to not make it of a piece was taken, but I do know that the decision to make it lesser rendered it lesser for a really long time.
Nicole Hemmer:
The other side of that is it makes the text of the Constitution much more precious. It's like, "Ah, this is a thing that is..." Even though it's amendable, in some ways it is frozen in amber.
Jody Avirgan:
We don't crack it back open.
Nicole Hemmer:
There's something too precious about this for us to redraft it with these new pieces inserted into it. Yes, we'll cross out the three-fifths compromise at some point, but even that, I think that it aids the project of originalism in the 20th and 21st centuries to have made the document this way. Aziz Rana in his extremely long, but extremely good book, The Constitutional Bind, talks about the way that this kind of process of concretizing the Constitution into something very precious becomes a barrier at a certain point to the kinds of flexibility that we want from the Constitution, that we can add these amendments, but then people are like, "But isn't the 14th Amendment really part of the Constitution and the way that Article I is?" Well, it can't be because it's stapled on at the end, and that I think has created some downstream problems.
Kellie Carter Jackson:
Yeah, I would agree with all of that.
Jody Avirgan:
Yeah. Just imagine how powerful a story it would be to say just months after originally writing this thing, they realized they needed to rework some stuff. I mean, it would just create a sort of sense of, as you said, this is a living document that is not trapped in amber, but we've certainly been living with the sort of fallout from those ideas. Next episode, we're going to talk about the fallout from the kind of machinations that went into writing this thing. We're going to talk about how this hardened a bunch of emerging political factions and led to political parties. We will sort of circle back to how political parties and the Bill of Rights have intersected over the years since. But that brings us to the end of part one of our look at the Bill of Rights. Nicole Hemmer, thanks to you as always.
Nicole Hemmer:
Thank you, Jody.
Jody Avirgan:
Kellie Carter Jackson, thanks to you.
Kellie Carter Jackson:
My pleasure.
Jody Avirgan:
And Dahlia Lithwick, thanks to you and you will be back for part two.
Dahlia Lithwick:
Thanks for having me.
Alex Lovit:
We hope you enjoyed this episode. If you want to hear more, keep an eye on This Day's feed later this week for part two and part three, when Jody Avirgan and I really get into the big themes. Again, we'll be bringing you additional content from our friends at This Day for the rest of this month. If you live near Washington, D.C., check the show notes to buy tickets for our live podcast taping on Monday, October 19th.
The Context is a production of the Charles F. Kettering Foundation. Our producers are George Drake Jr. and Emily Vaughn. Melinda Gilmore is our director of communications. The rest of our team includes Jamaal Bell, Tayo Clyburn, Jasmine Olaore, and Darla Minnich. Special thanks to Sarah Murphy for helping to coordinate this partnership. Visit our website, kettering.org, to learn more about the foundation or to sign up for our newsletter. If you have comments for the show, you can reach us at thecontext@kettering.org. If you like the show, leave us a rating or a review wherever you get your podcasts or just tell a friend about us.
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Speaker 6:
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