Bill of Rights History

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Local attorney Robert McWhirter has written a book on the history of the Bill of Rights. McWhirter will talk about the history of the Bill of Rights, the topic of his new book, “Bills, Quills, and Stills, An Annotated, Illustrated, and Illuminated History of The Bill of Rights.”

TED SIMONS: There's a new book on the history of the Bill of Rights. The book is titled "Bills, Quills, And Stills," and is sub-titled, "An Annotated, Illustrated, and Illuminated History of the Bill of Rights. The book certainly is all of those things and more. Here now is Robert McWhiter. Welcome to "Arizona Horizon."

ROBERT MCWHITER: Oh, thanks for having me.

TED SIMONS: Congratulations on this book. It's one of the things where you pick up and you wind up going through it. Does the world need another book on the Bill of Rights?

ROBERT MCWHITER: Absolutely, especially mine.

TED SIMONS: Why did you write this? Why do you think we need this?

ROBERT MCWHITER: The amount of kind of civic education in the schools is much less than it was and what I wanted to try to do is write a book that dealt with these issues, the fundamentals of our country, the Constitution and the Bill of Rights are the owner's manual of the country and I wanted to do that in a way that tied in modern cultural references to show this is important today.

TED SIMONS: And I should mention that you can't really say too much, it is illustrated and it is annotated. Sometimes, there are more footnotes than text and there are pictures abundantly illustrated on every single page. Why did you go that route?

ROBERT MCWHITER: I wanted to try to do something new. Anybody can find a dusty old tome on the Constitution and the Bill of Rights. And you know I have plenty of footnotes in there for people who like dusty old tomes, it is there but for people who like to see references and visuals and how it ties in, that's what I wanted to try to do and make it relevant and interesting.

TED SIMONS: And to keep it from being boring.

ROBERT MCWHITER: Keep it from being boring.

TED SIMONS: We've got enough textbooks on the Constitution and the Bill of Rights where that is safely achieved. You write there are many incorrect notions about the Bill of Rights. What does that mean?

ROBERT MCWHITER: Well, a lot of people have all these notions like oh, it's in the Bill of Rights and my constitutional rights. The Bill of Rights deal with certain specific things. They didn't even apply much to normal people for the first 100 years of the republic. It took the civil war amendments to give them kind of scope and breadth that we think of today. The right to free speech is only the first part of the 20th century. We had the free speech cases, applying the First Amendment to our daily lives. So these things have kind of grown over time. And that's what's important and that's again the cultural references coming in. What does freedom of the press mean? What does it mean for a modern movie today?

TED SIMONS: And we should mention you also go into prehistory there of the Bill of Rights and noted that many of the framers of the Constitution didn't think a Bill of Rights was necessary.

ROBERT MCWHITER: No, no. They thought it would be redundant. They said if you want to write, you can guarantee that your Congress will make sure you get your rights or the House of Representatives, right? The president's elected, it's not like we have a king. So in every way we already have a bill of rights by the structure of the Constitution. That argument that they made with great sincerity proved to be totally wrong. Madison when he first made it was wrong, Hamilton when he first made it, they made it in the federalist papers. They were wrong. They wanted a Bill of Rights, they wanted a written guarantee and that's where you get the Bill of Rights.

TED SIMONS: We should mention that Patrick Henry was key in this whole situation, wasn't he?

ROBERT MCWHITER: Oh, yeah. Patrick Henry didn't really like Madison. And Patrick Henry had kept Madison from being one of the two senators from Virginia. At that period in time, it was the legislatures that chose United States senators. So he kept Madison from becoming a senator. So Madison was stuck trying to win a house in the House of Representatives. And Henry kind of gerrymandered him into the same district against another future president, James Monroe, who was kind of George Washington's aide to camp. Madison was fighting for his political life and Patrick Henry most people don't know was an anti-federalist. He didn't like the federal Constitution. So Madison had to do two things. He had to defend the Constitution that he basically wrote, and he had to get reelected. Or elected for the first time to Congress. So his idea was forget what I said in the federalist papers, just ignore that, I'm going to be the champion for a Bill of Rights and he was and unlike a lot of politicians, you've got to say this. He lived up to his campaign promise.

TED SIMONS: Yes, he did. Even if he changed his mind. He changed his mind and didn't have a problem with it. Politicians can do that. All right. What is a right?

ROBERT MCWHITER: What is a right? Well, okay. How far back do you want to go? If you want to go to ancient Rome, what a right was, was what being a Roman citizen gave you. If you were in ancient Greece, it's what your city state gave you. You get these radical notions coming off from John locke what a right is what you have inherent to you as a being. It is inalienable. You can't take it away.

TED SIMONS: God-given.

ROBERT MCWHITER: God given, although or by some notion of social contract. If you notice Jefferson when he wrote the declaration didn't say we get these from god. It is from nature's god, providential. You get a little tension there, right? So a right is what's inherent to you. The trouble with these rights in the state of nature is if you try to exercise them, big guys beat you up, okay. So the state of nature is not secure for your right. We need to have government, we need to have society to give us what we inherently have. Now, why is that important? That's what we argue about today. No don't do because it's my right to do this. We still live in government. And every right is subject to limitation. I'm pretty much a free speech absolutist but there are certain things I can't say. Now, the famous dictum was you can't go into a crowded movie theater and falsely yell fire. You can't do it falsely and be expected not to be prosecuted. That is a First Amendment limit. We can't agree to have a conspiracy to rob a bank, we don't have a First Amendment right to have that conversation and not get prosecuted for it. There's limits and all rights have duties and responsibilities as well as benefits.

TED SIMONS: And with that in mind as we continue moving towards the Bill of Rights and how it was founded, the role of slavery in the formation of the Bill of Rights. It was huge.

ROBERT MCWHITER: It was huge. Let's do two amendments. The second amendment. Many of these southern states were concerned about maintaining their right to bear arms so they could have patrols to guard against insurrection from slaves. That was specifically what they were worried about. They did not send arms or men to the continental army because they wanted to make sure they had their slave patrols intact to guard against insurrection. So that was clear. Fourth Amendment, Fourth Amendment protects you from unreasonable search and seizures. They can't come in looking for contraband. The contraband usually today are drugs, cocaine, whatever. The contraband of that time was molasses, and the molasses was in New England, it was converted to rum, the rum was taken to the coast of Africa, 110 gallons could buy you a human being, which is about $2,900 in U.S. dollars today. That human being was brought over, he was sent to the southern United States where he grew sugar to make more molasses which went back up to New England to be converted to rum, it was the triangle trade. Cutting great Britain out of the trade, which was pissing great Britain off. So the entire reason we have that Fourth Amendment is to protect from unreasonable searches and seizures because the British government had what was called a general search warrant, writ of assistance, to go break into your house to look for contraband molasses, they could look in your trunks, everywhere to look for contraband molasses without specificity or particularity, which is what the Fourth Amendment today requires.

TED SIMONS: And obviously slavery involved there, also. I guess that explains "Bills, Quills, and Stills," the title of your book.

ROBERT MCWHITER: Prodigious amounts of alcohol and by the way alcohol had a different place. They liked alcohol the same way but let's say you had an ache and pain. You couldn't pop a Tylenol. You probably drank some beer or let's say you wanted some vitamin c in the morning in the middle of the winter well, you drank a pint of hard cider. That's where you got your vitamin c. They drank a lot more alcohol than we do, let's put it that way.

TED SIMONS: You write that every right has a purpose and every right has a history. Explain.

ROBERT MCWHITER: Well, you trace everything back. Now, when we say oh, you know, my rights. A lot of what we mean are actually after the Bill of Rights was written. For instance, right to universal education. The remains never provided for that. We have done that. We have grown and expanded. So with various purposes that have grown up over time, we have provided this sense of rights and we have expanded that sense of rights. Now, the big debate today for instance is the right to universal healthcare. The framers never thought about that. Most industrialized nations realized we need that and we are arguing about it as vehemently today as the framers did about various rights they wrote down.

TED SIMONS: Wasn't the ninth amendment the forgotten amendment that kind of includes this idea of things -- talk to us about the ninth amendment.

ROBERT MCWHITER: Justice Robert Jackson said I was trying to think about what those rights were and I'm sorry I just can't think of one right offhand. That's not his exact words but this mystery. There's still a mystery is what he said. And Robert boric said ninth amendment is an ink blot. The ninth amendment are all these things like rights that aren't retained. It's a concept of natural law. We've written down certain rights in the Bill of Rights but all those other rights, you still have. In other words, the government doesn't get them. So the ninth amendment was intended as kind of a catchall to make sure it said that all of your rights that you have, inalienable to you, you still get, even though we wrote down the Bill of Rights. Some of the early arguments against putting a Bill of Rights and Hamilton advanced this is you can't write these things down because if you write them down, it's going to assume the government gets the rest that you don't write and we can't write every one down.

TED SIMONS: Which moves us then to the 10th amendment.

ROBERT MCWHITER: The 10th amendment.

TED SIMONS: And that is now -- 10th amendment is amazing. You go for decades without hearing about the 10th amendment.

ROBERT MCWHITER: And the Supreme Court case versus bond, it's in play after 210 years. It's all of a sudden the 10th amendment in play. The 10th amendment is more about states' rights. But the interesting thing, it says all the rights that are not specified for the federal government go to the states or to the people. Well, over time, we have read or to the people as more important than to the states. In other words, the federal government, we contract individually with the federal government. We're Arizonans, right? But it's not us as Arizonans getting our rights from the federal government; it's us as individuals. We can cut Arizona out of the equation and say hey, state of Arizona, you can't do this because you're violating my First Amendment rights. We don't look to the Arizona Constitution on that. And that's what the 10th amendment, which was originally intended more to protect states' rights, has evolved over time to be an individual right.

TED SIMONS: So we've got these 10 amendments here and obviously, it's a big book, lots of photos, lots of drawings, lots of pictures, annotation just everywhere. How do you focus all of this into making sure each amendment gets its proper perspective, historical narrative? How long did this take?

ROBERT MCWHITER: Eight to 10 years, with difficulty is how you take it. It takes a lot of time. I'll tell you the hardest chapter by far was the last chapter I wrote which was the First Amendment chapter because in the First Amendment, if you take almost any issue of the culture wars today, it involves the First Amendment, freedom of religion, free exercise of religion, freedom from being established, in other words, I need to be from you establishing your religion over me, freedom of speech, freedom of press, everything is there, and that was difficult. Do you deal with it as two separate amendments or do you deal with it as one? And I took a leap of faith and what I came up with was what they were arguing they wanted to speak about was religion. In other words, they were intricately involved. Now, I personally am not a proponent of this idea that they created a Christian nation. I don't believe that's what they intended to do but the basis, what they wanted to speak about was their creed and what their creed were was whatever creed they had when they came here. And that's what the First Amendment grew out of.

TED SIMONS: What kind of reaction are you getting so far?

ROBERT MCWHITER: So far, it's been positive. We'll see. There's stuff in here, for instance on the second amendment chapter, I had people that are vehement individual right gun advocates that liked the chapter and I've had people that believe in serious gun control and they liked the chapter. I tried to be as balanced as I could. There is a historical argument to support an individual rights notion of the second amendment and a collectivist rights. It's all part of the militia. And you can take history and there's enough history there to support either argument. And I try to be as fair as possible on each one as I go through. That being said, when I hear different arguments about the Constitution, when I argue about the Constitution and the Bill of Rights, there are arguments that I disagree with but I think are valid arguments with which I simply disagree, and then there's arguments that are simply not valid. They don't historically work. There's no historical support. And I try to as politely as I can point out that distinction.

TED SIMONS: You did a great job. Highly recommended, I hate to say it but it's kind of an easy read. It's easy on the eyes and job well done, congratulations.

ROBERT MCWHITER: Thank you very much.

TED SIMONS: Thank you for being here.

ROBERT MCWHITER: Good, good.

TED SIMONS: Tuesday, the department of child safety Director Greg McKay will join us in studio to discuss his vision for the office as well as recent high-profile child-abuse cases. That's at 5:30 and 10:00 on the next "Arizona Horizon." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.

VIDEO: "Arizona Horizon" is made possible by contributions from the Friends of Eight, members of your Arizona PBS station. Thank you.

Robert McWhirter:Local Attorney and writer of book "Bills, Quills, and Stills, An Annotated, Illustrated, and Illuminated History of The Bill of Rights"

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