Constitution Day, Bill of Rights History

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September 17 is Constitution Day, celebrating the 228th anniversary of the document. 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: It's Constitution day in Arizona and around the country, day to recognize the U.S. constitution's 228th birthday. We will hear from the author of a recent book on the history of the bill of rights. But first, a ceremony was held at the state capitol commemorating constitution day.

SCOTT BALES: The United States constitution, supreme law of the land, but the states are afforded great flexibility in structuring their own government and in recognizing rights for their citizens that go beyond what the federal constitution may provide. And that system, that flexibility afforded under our federal system of government, I think is one reason that it is appropriate for us to be celebrating Constitution Day today on September 17th.

TED SIMONS: We recently looked at the U.S. constitution's bill of rights with local attorney Robert McWhirter, whose new book "Bills, Quills, and Stills" chronicles the history of the bill of rights. Welcome.

ROBERT MCWHIRTER: Thanks for having me.

TED SIMONS: Your book, you pick it up and you wind up going through it and through it. Does the world need another book on the bill of rights?

ROBERT MCWHIRTER: Absolutely. Especially mine.

TED SIMONS: Why, why do you think we need this?

ROBERT MCWHIRTER: You know, the amount of civic education in the schools is much less than it was, and what I wanted to try to do was write a book that dealt with the issues, dealt with the fundamentals of our country. Constitution, bill of rights, owners manual of the country. I wanted to do that in a way tied in modern culture references to show this stuff is relevant, important today.

TED SIMONS: I should mention, you can't see too much of it -- it is illustrated and annotated -- sometimes more footnotes than text, and pictures abundantly illustrated -- why did you go that route?

ROBERT MCWHIRTER: Because I wanted to display it, to try to do something new. You know, I have plenty of footnotes in there for people who like dusty old tomes, it is there. 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 keep it from being boring.

ROBERT MCWHIRTER: And keep it from being boring.

TED SIMONS: We have enough textbooks out there -- you write there are many incorrect notions on the bill of rights.

ROBERT MCWHIRTER: A lot of people have notions, bill of rights, constitutional rights. The Bill of rights deal with 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 the scope and depth that we think of today. The right to free speech is only the first part of the 20th century where you have the free speech cases, applying the first Amendment to our daily lives. These things have kind of grown over time. That's what is important and that is where the cultural references come in. What does freedom of the press mean? What does it mean for a modern movie today?

TED SIMONS: You also go into the prehistory of the bill of rights, and noted many of the framers of the constitution didn't think a bill of rights was necessary.

ROBERT MCWHIRTER: No, no, they thought the bill of rights would be redundant. Their point was we provide for a republican form of government. If you want to write, you will guarantee that your Congress will get the make sure you get your rights. Your senator, house of representatives. The president is elected. It is not like we have a king. 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, that argument in the Federalist Papers they were just wrong. Nobody liked it. They wanted a bill of rights. They wanted a written guarantee of certain things and that is where you get the bill of rights.

TED SIMONS: We should mention that Patrick Henry was key in this whole situation.

ROBERT MCWHIRTER: Oh, yeah. Henry didn't really like Madison. Patrick Henry kept Madison from being one of the two senators from Virginia because at that period of time, the legislatures that chose United States senators. So, he kept Madison from becoming a senator. 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 aid to camp during the revolutionary war. Madison was fighting for his political life. Patrick Henry, was an antifederalist. He didn't like the federal constitution. 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. His idea, forget what I said in the federalist papers. Ignore that. I am going to be the champion for the bill of rights. He was. Unlike a lot of politicians, you have to say that he lived up to his campaign problem.

TED SIMONS: He changed his mind and didn't have a problem with it. Politicians can do that. What is a right?

ROBERT MCWHIRTER: What is a right? Well, okay. How far back do you want to go? If you went back to Ancient Rome, what a right was was what being a Roman citizen gave you. If you didn't happen to be a Roman citizen and you were a slave, too bad for you. If you were in Ancient Greece, your right was what your police gave you, your citystate -- you get radical notions coming off John Locke that a right is what you have inherent to you as a being. It is in inalienable, you can't alienate it from you, you can't take it away.

TED SIMONS: God-given.

ROBERT MCWHIRTER: God-given or by some notion of social contract. Some thought of God-given, but as you notice, Jefferson when he wrote the declaration, he didn't say we get these from God, nature's God, providential thing. You get a little tension there. So a right is what is 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. So, the state of nature is not secure for we need to have government. And 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 that because it is my right. It is my right to do this. Right to bear arms, right? Well, 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 just can't say. Now, just as -- you can't go into crowded movie theater and falsely yell fire. You can yell fire if there really is a fire, but you can't do it falsely and not expect to be prosecuted criminally. That is a first Amendment limit. You and I 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. Even the first Amendment there is limits, and all rights have duties and responsibilities as well as benefits.

TED SIMONS: With that in mind as we continue to 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 MCWHIRTER: It was huge. Second Amendment, many of the southern states concerns about maintaining the right to bear arms was so that they could have patrols to guard against insurrection from slaves. That was specifically what they were worried about. They often did not send arms or men to the continental army because they wanted to make sure that they had their slave patrols intact to guard against insurrection. That was clear. Fourth Amendment, unreasonable search and seizure. Government can't come in looking for contraband. Now the contraband usually today is drugs, cocaine, heroin, whatever, right. 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 oh, 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 was to protect against unreasonable search and seizure, because the British government had a general search warrant, writs of assistance, to go break into your house to look for contraband molasses. They could look in your trunk, warehouse, without specificity or particularity which is what today the Fourth Amendment requires.

TED SIMONS: Obviously slavery involved there. Also I guess that explains, "Bills, Quills, and Stills," the title of the book.

ROBERT MCWHIRTER: Prodigious amounts of alcohol and -- they liked alcohol the same reason we do. Let's say you had an ache and pain, well you couldn't pop a Tylenol until 1991, you probably drank some beer, or you wanted vitamin C in the morning, in the middle of the winter in Massachusetts, you drank a pint of hard cider. That's where you got your vitamin C. They drank a lot more alcohol than we do.

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

ROBERT MCWHIRTER: You trace everything back. When we say, oh, my rights, a lot of what we mean are actually after the bill of rights was written. For instance, right to universal education. The framers never provided for that. We have done that. We have grown and expanded. With various purposes that have grown up over time, we have provided this sense of rights and we have expanded that sense of rights. Big debate today, is the right to universal health care. Framers never thought of that. Most industrialized nations realize that they need that and we are trying to respond and we are arguing about it as vehemently today as the framers did about various rights that they wrote down.

TED SIMONS: Wasn't the ninth Amendment kind of the forgotten Amendment, that includes this idea of this thing that weren't included, talk to us about the ninth Amendment.

ROBERT MCWHIRTER: Just as Robert Jackson said, I was trying to think of what the rights were in the ninth Amendment I'm sorry but I cannot just think of one right off hand. That's not his exact words, but this mystery. They're still a mystery to me is what he said and Robert Bork said the Ninth Amendment was kind of an ink blot, in other words they didn't write it down. The Nine Amendment are all of these things - rights that aren't retained. It's a concept of natural law. We have written down certain rights in the bill of rights, but all of those other rights, you still have. In other words, the government doesn't get them. So the ninth Amendment was intended as a catch-all to make sure that 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. Arguments against putting a bill of rights, and Hamilton advanced this, said look, you can't write these things down. If you write them down, it is going to assume the government gets all of the rest that you don't write and we can't write every right down. The Ninth Amendment was the answer to Hamilton's argument in the Federalist Papers.

TED SIMONS: Which then moves us then to the 10th Amendment. You go for decades without hearing about the 10th Amendment, and all of the sudden you are hearing a lot about the 10th Amendment.

ROBERT MCWHIRTER: In the Supreme Court, in the case was United States versus Bond, in play after 210 years, all of a sudden the 10th Amendment is more about states rights and the states rights arguments. But the interesting thing about the 10th Amendment, it says all of the rights that are not specified for the Federal Government go to the states or to the people. Over time, we have read or to the people as more important than to the states.


ROBERT MCWHIRTER: In other words, the Federal Government, we contract individually with the Federal Government. We're Arizonans, right. But it is not us as Arizonans getting our rights from the Federal Government, it is 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. The 10th Amendment, originally intended more to protect states rights has evolved over time to be an individual right.

TED SIMONS: We have these 10 Amendments here, and obviously it is a big book. Lots of photos. Lots of drawings, lots of pictures annotation just everywhere. How do you focus all of this in making sure that each Amendment gets the proper perspective, historical narrative, how long did this take?

ROBERT MCWHIRTER: Eight to ten years. With difficulty is how you do it. One of the hardest thing, hardest chapter by far, was the last chapter I wrote which was the first Amendment chapter. In the first Amendment, if you take almost any issue of the culture wars it involves the first Amendment. Freedom of religion, free exercise of religion. Freedom of being established. In other words, I want to freely exercise my religion, but I need to be free 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? I took a leap of faith. What I came up with what they were arguing they wanted a right to speak about was religion. In other words, they were intricately involved. I am personally not a proponent of this idea that they created a Christian nation. I just don't believe that that's what they intended to do. The basis of the right to speak, what they wanted to speak about was their creed, what their creed 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 from the book?

ROBERT MCWHIRTER: So far it has been positive. We'll see. Stuff in here -- second Amendment chapter, I have had people that are vehement individual right gun advocates that like the chapter. And I have had people that believe in serious gun control and they like the chapter. I tried to be as balanced as I could with the history. There is a historical argument to support an individual rights notion of the second Amendment, collectivist rights, all part of the militia. You can take history and there's enough history there to support either argument. I tried 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 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 not valid. They don't historically work, no historical support. I try to as politely as I can draw that distinction.

TED SIMONS: You did a great job. I hate to say it, it is kind of an easy read. It is certainly easy on the eyes. Job well done. Congratulations.

ROBERT MCWHIRTER: Thank you very much.

TED SIMONS: That is it for now. I'm Ted Simons. Thank you 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 author of "Bills, Quills, and Stills, An Annotated, Illustrated, and Illuminated History of The Bill of Rights."

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