Carol Berkin on The Bill of Rights No One Wanted

2016-03-19 · Guest: Carol Berkin (Professor of History at Baruch College) · 52:32

History and Significance of the Bill of Rights

Bob Zadek and Professor Carol Berkin discuss the surprising history of the Bill of Rights, revealing that many of the Founding Fathers initially viewed these amendments as unnecessary or even dangerous. They explore James Madison’s political strategy in drafting the amendments to neutralize Anti-Federalist opposition and how the Bill of Rights evolved from a mere structural limit on federal power into the central “credo” of American liberty.

Topics: Bill of Rights, Constitutional Convention, James Madison, Federalists vs. Anti-Federalists, 9th Amendment, 10th Amendment, 14th Amendment, Administrative State, American History

Speakers: Bob Zadek, Carol Berkin, Caller (Michael), Caller (Roger)

Introduction [00:00]

Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, every Sunday at 9:00 AM. I am your eponymous host, Bob Zadek. Thanks so much for listening. 800-345-5639 to join my conversation at any time. We are the only live libertarian talk radio show on the air all weekend, proudly and always the show of ideas, not attitude.

The Constitution vs. The Bill of Rights [00:38]

Bob Zadek: How’s this for an opening? Our Constitution, of which we are so proud, and which is the and has been the envy of the free world and has been emulated throughout freedom-loving countries on our planet—our Constitution, standing alone, would have resulted in Americans living today with a total absence of freedom. We would enjoy none—underline none—of the freedoms we have today under the original Constitution if it had not been amended by the Bill of Rights. That is, the Constitution as drafted did nothing to protect us from an overreaching government, and indeed empowered the government to be overreaching and to step all over our liberties, but for and thank heaven for the Bill of Rights.

This show is a tribute to the Bill of Rights, and I hope to have you understand the crucial role the Bill of Rights has played in our civic life since its enactment in 1791.

Introducing Carol Berkin [01:21]

Bob Zadek: To help us understand how important the Bill of Rights is—indeed, it’s important, it is far more important in a way, in terms of freedom, it’s far more important than the Constitution itself—to help us understand these crucial issues that are still being debated today, I’m delighted, I’m proud, I’m happy to welcome Professor Carol Berkin to my show.

Professor Berkin is the Presidential Professor of History at Baruch College in New York City and is a member of the history faculty of the Graduate Center of CUNY, the City University of New York Emerita, and she taught early American and women’s history. Professor Berkin has just written The Bill of Rights: The Fight to Secure America’s Liberties. She has written a very important book. It is a wonderful read, and it gives us all important insight into the significance of the Bill of Rights in our everyday life. Carol, welcome to the show this morning, and thanks so much for giving us an hour of your time.

Carol Berkin: Thanks a lot. I’m happy to be here.

Bob Zadek: Now, Carol, the Bill of Rights. The Bill of Rights is, of course, as hopefully we all know, is a nickname, it’s a label for the first 10 amendments to the Constitution. The Constitution as originally drafted and enacted in 1787 and ratified by the colonies, now states, in 1788, didn’t have a Bill of Rights. It was just the Constitution. Why was this fledgling government so quick to pass a series of amendments? Why was there a need to amend, that is to fix, a Constitution which had just been drafted and ratified moments before?

The Convention’s Rejection of Rights [03:00]

Carol Berkin: Well, first I want to say that actually the government didn’t have the power to infringe on people’s liberties. The Constitution really didn’t give it any authority to do that, and the men who wrote the Constitution didn’t dream of doing that.

Bob Zadek: I knew you were going to say that, Carol. More about that in a moment. We’ll discuss that. So let’s put that on the side. I knew you were going to say that; I was baiting you to have you say it. But let’s continue with the Bill of Rights.

Carol Berkin: Okay. When the Constitution was written, after four months of arguing and discussing and compromising and living in taverns and eating tavern food, which was absolutely horrendous, these men wanted to go home. Their bags were packed when suddenly George Mason stands up and he says, “I think we should have a statement of the people’s liberties and rights.” And everybody in the room, you can be sure, groaned. He said, “Oh, it’ll only take—it won’t take long at all.” And what everybody there knew was nothing did take “not long at all.” They argued and discussed and argued and discussed, and people envisioned being there another month, and they were really depressed.

Bob Zadek: They were cranky.

Carol Berkin: They were—yes, they were cranky. And then Roger Sherman from Connecticut stands up and he says, “There’s no reason to do this because we have given the Constitution absolutely no power to infringe upon or to protect people’s civil—what we would call today civil rights. That’s all in the hands of the states. That was left to the states. We never took that over. So why would we say we don’t have the power to do something that we don’t have the power to do?” And everybody said, “Oh, thank God,” and they all went home.

Bob Zadek: Carol, you said Roger Williams. Did you mean Roger Sherman?

Carol Berkin: Oh, I’m sorry! Yes, Roger Sherman. Roger Sherman from Connecticut. Thank you very much. It’s a Sunday. So everybody went home.

Rescuing a Nation in Crisis [04:30]

Bob Zadek: Now, Carol, if I may, that issue you just framed is very, very important. And it’s an important part of the story. So if you will, let’s expand upon Roger Sherman’s and many others’ statements that we don’t need a separate—we the citizens don’t need a separate listing of our rights because we created a government with limited powers, and nowhere do they have the power to abridge freedom of speech. Therefore, if they don’t have the power, why do we have to protect it? So let’s expand upon that, because that crucial concept is somehow lost in the teaching of the Constitution.

Carol Berkin: Right. The Constitution is really designed to create a structure of government. They were interested in how to empower a central government and then use checks and balances to prevent any branch of that government from becoming too powerful. This is what they’re interested in. First of all, they thought that if they didn’t do this, the country would disappear. The Articles of Confederation, that was the first Constitution, was a sort of league of friendship, and it could not really hold the country together.

And these men honestly believed when they got to Philadelphia that if they didn’t do something, France and Spain and England would divide the country up, or there’d be civil wars between the two or three states who were competing with each other. The commerce was a mess because there was no overall commercial policy. There was no army to protect the borders of the country. And there was no money to pay all of the debts that the federal government had incurred, that the Continental Congress and then the Confederation government had incurred to fight the Revolution.

And so these men get together and they say, “We need a government that is strong enough—that is, that it has the power to tax, the power to regulate commerce, the power to create a uniform currency—to get this country out of its postwar depression, to pay its debts so we won’t be the laughingstock of the world, and to protect its borders.” All of those things mattered deeply to them. And they, I think, they succeeded in rescuing the country from falling apart. It’s called the “Critical Period” in American history, and I think you can make a strong case that it really was.

The Ratification Battle and the “Scare Tactic” [07:00]

Carol Berkin: When George Mason says, “Well, let’s have a Bill of Rights,” seven states already began their constitutions with a statement of the people’s rights. And the men in this meeting, in this delegates’ convention that came to be called the Constitutional Convention, these men had no sense that the federal government needed to replicate what the states had already ensured. They also believed that because the preamble said “We the People,” that the people were the sovereign of the nation and that therefore they were protected already.

When they finished the convention and they went to have the Constitution ratified, it hit them like a piano on their head from a window. It hit them hard that they had made a terrible tactical mistake because the men who opposed the Constitution, who wanted all power to remain in the states, all power to be in their own home state, they went to these ratifying conventions and they said, “See? They’re plotting to create a tyrannical government because they don’t want to protect the rights and liberties of the people.”

Bob Zadek: Now, Carol, let me just add one thing. The government they were building with the Constitution—in the Constitution, there is no reference to the rights of the people. Nowhere in the Constitution is that concept even acknowledged. But the founders believed they were creating an infrastructure. Think of it like a map of the subway system or a schematic diagram for electrical wiring. They were creating the infrastructure, the mechanics of government, and they weren’t bestowing upon the government any more power than it needed to run the infrastructure of government.

So they understood they were just building the 2x4s, and the belief was we are building only so much government as we need to become a cohesive country. But the locus of government would remain in the states. As you pointed out in your book, Patrick Henry to his dying day considered his country to be Virginia.

Carol Berkin: Well, yes. But they did not actually—they were nationalists. They actually wanted to take considerable power away from the states. Their goal was to create a nation and not just a league of friendship among 13 states. And they understood what the powers they would need were: the power to tax, which they completely appreciated as one of the critical real powers a government could have (they called it the “power of the purse”), the power to regulate commerce, the power to mint money. These were things that they believed eventually would make the federal government the government of the country.

And the people who opposed them understood completely that that was the goal, and that’s why they opposed them so sincerely. That’s why Patrick Henry fought tooth and nail in the Virginia ratifying convention to see the Constitution go down to defeat, because he said these powers will weaken the authority of the state governments. So they wanted more than just to hold the country together; they wanted actually to create a country.

It’s interesting, let me just point out, that until after the War of 1812, the country’s government was referred to as “these United States.” After the War of 1812, when there was this growth of nationalism, then it became “the United States.” And that was the vision that these men had.

The Branding War: Federalists vs. Anti-Federalists [09:24]

Bob Zadek: Now, Carol, I made a point earlier, and then we’re going to get into the Bill of Rights right now, but the point I made earlier that you took issue with, as I knew you would, was I said that the Constitution itself, unamended by the Bill of Rights, would have resulted in tyranny. And why I made that statement, Carol, is this: when our liberties, the liberties preserved to us in the Bill of Rights—freedom of speech, freedom of worship, protection against unreasonable search and seizure, cruel or unusual punishment—all of those core, as you said, part of our credo, when government seeks, which they do all the time because of all the case law even today, when government seeks to diminish those fundamental rights and the courts prevent government from doing so, the courts never cite the Constitution as saying, “Sorry, government, you don’t have the power.” They cite the Bill of Rights, which means the Constitution standing alone does not or did not end up protecting those rights. That’s why I made the statement that I did.

Carol Berkin: Yes, but you conflate several hundred years of development and history, if you don’t mind me saying so. In at the time that they were debating what should be in the Constitution, all of those powers belonged to state governments that at the time were not inferior to the federal government. In fact, in many, many ways they remained superior in their authority to the federal government. The federal government was this little bitty government that had to fight—let me give you a good example. The federal government passes its first tax, the excise law on distilled alcohol. And what do the people in Virginia and the people in Western Pennsylvania and the people in South Carolina say? They say, “Go away, don’t bother us. We’re not going to obey your laws. We don’t have to obey your laws about your taxes. We’re not interested in you, basically.”

So you’re really talking about a government that is not the federal government we have today that has a massive bureaucracy, that has a law enforcement branch, that has a Supreme Court that over time came to be the fundamental interpreter of the law. This is a bunch of maybe 100 people who were trying to create a nation. So I think you’re absolutely right about today, that this is the role the Bill of Rights plays. But I try to get my readers to put their minds back in the 18th century and realize that for them, this seemed like an absurd waste of time. It was just—there was no point in doing it because they never pictured their government having anything to do with civil rights, just as they never pictured their government having anything to do with what today we would call social welfare in the broadest sense. They didn’t think the government should be involved in education, they didn’t think the government should be involved in road development, they didn’t think the government should be involved in a whole series of things that since the New Deal has been seen as the federal government’s obligation, its role, one of its purposes. They just wanted to set the import duties, they wanted to create the judiciary, they want to decide where the capital of the country was going to be, they wanted to pay the federal debt. Their mindset, if I can use a modern term, was not the kind of mindset we have today where we can rightly worry that the federal government is so powerful that it can infringe upon our rights.

Madison’s Political Masterstroke [11:18]

Bob Zadek: So, Carol, we have the Constitution, which was to many citizens a surprise, but it is adopted by the Constitutional Convention in September of 1787. It goes out for ratification, and during the ratification process, the states are told up or down, but you cannot change it. And there was a very, very hard-fought debate around the country in many states on ratification. So now what role—how does the Bill of Rights as a conversation first and then as the amendments, how does that grow in importance during the ratification process? Give us the background as to why we have a Bill of Rights.

Carol Berkin: The people who opposed the Constitution, as I said, used this as a kind of scare tactic. They didn’t think that the average person at the ratifying convention was going to go through a whole discussion about commerce, but they knew that they were worried that a central government could become tyrannical. That was an obsession among Americans because they just fought against a central government that they said was tyrannical: England.

Bob Zadek: And my comment is, how did they know? But go ahead, Carol.

Carol Berkin: How did they know? Because they thought that all republics eventually developed a dictator or an oligarchy. You know, Rome began as a republic and it wound up with Julius Caesar. So they assumed that eventually—everybody assumed, by the way, even Benjamin Franklin—they assumed eventually the American republic would degenerate into tyranny. The Constitution was designed to just sort of slow that down.

So the Anti-Federalists go to these conventions, and many historians think they probably outnumbered the people who supported the Constitution, and they say, “There’s no statement about your liberties, there’s no statements about your rights. See, this proves they’re plotting a tyranny.” And it really scared people. It really made people—it increased their wariness. And the Federalists had to use a lot of what we would call today dirty tricks in several of the states to get the Constitution passed. They also had the most remarkable orators and they had the wiliest politicians. I mean, when you have Hamilton, Madison, Sherman, John Jay—when you have all of these people lined up on your side, they carry a lot of weight. Gouverneur Morris, my favorite guy! When you have all of these people fighting for the Constitution, it does get passed.

But at every convention, Rhode Island doesn’t pass the Constitution, and North Carolina doesn’t approve the Constitution. In fact, until 1792, neither of them were really in the United States.

Bob Zadek: Because of a technicality?

Carol Berkin: No, in those cases they absolutely voted down the Constitution. Okay, so here we have a situation where in every single convention, people proposed amendments. 126 or so amendments all told were proposed to the Constitution. Many of them were the ones the Anti-Federalists really wanted: no power to tax for the federal government, no power to regulate commerce for the federal government, no judiciary for the federal government. But those weren’t the ones that stirred people’s emotions. The ones that stirred people’s emotions were the ones we would call the rights and liberties of the people.

And James Madison realized, “Oh my God, we really better do something about this, or the American population—that is, white men who could vote—the American population will view this government as suspect forever.” And so in the first Federal Congress, Madison, who’s in the House of Representatives, gets up and he says, “I’m going to propose—” He actually didn’t propose amendments that would be at the end of the Constitution. He proposed changes in the body of the Constitution.

Bob Zadek: Carol, I’m going to have to interrupt only because we go to a one-minute break. This is Bob Zadek. We’ll be back in one minute. I’m talking with Carol Berkin, Professor Carol Berkin. We are discussing the Bill of Rights. Thank heaven we have it. 800-345-5639 to join my conversation with Carol. Please stay tuned. We’ll be back in 60 short seconds.

[Break]

Bob Zadek: Welcome back to the Bob Zadek Show. I’m your eponymous host, Bob Zadek, every Sunday at 9:00 AM. The only live libertarian talk radio show on the air all weekend. 800-345-5639 to join this most interesting of conversations I’m having with Professor Carol Berkin. We are discussing Carol’s new book, The Bill of Rights: The Fight to Secure America’s Liberties. The Bill of Rights is, in my opinion, the most important event if you value freedom and liberty. The passage of the Bill of Rights saved us from tyranny, in my opinion. The Constitution standing alone would have ended in empowering, at least empowered our new country to accumulate powers over the citizens, which was never intended by the founders but which was in the eyes of many of the founders inevitable.

Carol, welcome back to the show. And one point I want to mention before you continue your story about James Madison in the House of Representatives and the Bill of Rights is another interesting bit of information that I learned from your book, and it’s relevant today with the Trump candidacy, is the importance of branding. And you in your narrative in the first half hour, you described those people who supported the Constitution during the ratification process as the Federalists, and those people who opposed the Constitution as the Anti-Federalists. Now, as we know, as we observe politics, any position that is against something is a failed position. You have to always be in favor of something. Remember the Republicans are called the “party of no” and things of that nature. So being against something is never a winning strategy. But one of the geniuses of the proponents of the Constitution is they seized the moment and they got to do what politicians love to do, which is to label the other side. Tell us about that, Carol.

Carol Berkin: That’s exactly right. The Federalists—sometimes people today think of these men in the past as sort of naive fellows walking around in powdered wigs and three-corner hats. They were skilled politicians. And they called themselves—they knew that the term “nationalist” would make people nervous who were states’ rights supporters. So they took the term “Federalist.” In fact, the people they labeled the “Anti-Federalists” were the true Federalists, as in the Confederation. It’s like an intellectual train robbery. They just stole that name, and it was effective, by the way.

The politics of this era are extremely sophisticated. And think about how we got the Bill of Rights. Madison is pulling a political tactic. He says, if the first Congress that was filled with Federalists—the presidency, they controlled the Senate, the House—he said, “Let us pass a Bill of Rights. Let us get credit for it. And that will, in modern parlance, separate the Anti-Federalist base from its leadership. People will say, ‘Oh wow, look, the Federalists passed a Bill of Rights. They must not be tyrannical. Let’s give this government a chance.’”

And that’s exactly what happened. The bizarre thing is that when Madison proposed a Bill of Rights, he thought everybody would see what a great move this was. And instead he was greeted with the same groans that had been heard at the convention. People said—they called him “Jemmy,” actually, they called him “Little Jemmy Madison” because he was quite small—they said, “Go away! We’ve got important things to do. We haven’t set the tonnage rates, we haven’t organized the judiciary, we have to find a permanent spot for the capital. What are you proposing this nonsense for?” And it took him a month of continually badgering them before they would agree to discuss it. And honestly, I think some people thought, “You know, he won’t go away until we talk about it. Let’s do it.” It took them really until the middle of the summer for the light bulb to go over on over their head to realize that this would be as close to a death blow to the opponents of the Constitution as anything they would ever do.

Bob Zadek: Now, Carol, it should be mentioned, as you taught me in reading your book, there are two important facts we have to bear in mind. Number one, Madison, when he was running against Monroe in Virginia for the House of Representatives, made a campaign promise. Monroe was opposed to the Constitution, and Madison felt it necessary to make a campaign promise to the voters of his district that he would take steps to adopt a Bill of Rights when he got into the House. So number one, he was fulfilling honorably a campaign promise. Number two, many of the states—Virginia being one of them, New York being another—many of the states in a way conditioned—it was understood they conditioned the ratification on the promise, not enforceable, but the promise that Congress would adopt a Bill of Rights because the ratification process was “take it or leave it.” So the states couldn’t tell the Congress, “Redo the Constitution and we’ll ratify it.” So therefore they had to trust the newly formed government to adopt a Bill of Rights. So to some degree it was Madison’s campaign promise that moved it forward, and secondly, it was an informal, unenforceable promise to certain of the states: “Don’t worry, just let’s get started. Give us a government and then we will fix what you’re complaining about.” So I think that sets the stage for the first House of Representatives.

Carol Berkin: Yes, except let me just modify that a little bit. Two states didn’t ratify because they couldn’t make the amendment. So it wasn’t that the states couldn’t say, “You must include amendments.” It’s that they chose not to. Most of the states said, “Well, on the condition that you consider these amendments.” If they had said “binding,” as Rhode Island and North Carolina did, they could have simply defeated the Constitution.

The second thing is, I think Madison is really a complex person. He—yes, he had a campaign promise. And yes, he thought that they owed it to all of the states to pay attention to the fact that they wanted this Bill of Rights. But underneath that is the wily politician who, above anything else, says, “If we do this, we will strike a death blow to the people who oppose the real powers of the country.” He wanted to protect the power to tax and the power to regulate commerce. Those were the things he wanted to really protect. And when the Federalists in the Congress, in the House of Representatives, realized the tactic, then they all got on board. Then they were all for this.

Bob Zadek: And Madison felt adding a Bill of Rights did not do anything of substance because Madison believed that even without the Bill of Rights, the federal government didn’t have the power to interfere with the freedoms that are protected. So for Madison, it was a freebie. It didn’t cost anything because he wasn’t giving up any power.

Carol Berkin: Exactly. Except that here’s the last, most interesting thing about Madison, and the thing that your listeners should really respect and admire. Madison actually wanted to give the federal government the power to step in if any of the states abused the civil rights of minorities in the states. He also feared tyranny, but the tyranny he feared was the tyranny of the majority over minorities. Now, he didn’t mean African Americans, he didn’t mean gays—he meant members of religious sects like the small Baptist sects or the Moravians or the Quakers. He meant people who disagreed with the majority about policy. He feared that state governments would respond to the majority of their citizens and oppress minorities.

Bob Zadek: And how right he was!

Carol Berkin: Yes!

The “Lost” 9th and 10th Amendments [13:10]

Bob Zadek: By the way, Carol, I knew we’d have lots of callers on this show. I try to answer as many questions as I can from callers, so I’d like to take our first caller, Michael from San Francisco. Michael, welcome to the show this morning.

Caller (Michael): Thank you, Bob, and thanks for the show. It seems to me that in arguments for and against different ideas in the Supreme Court, the 9th and 10th Amendments have gotten lost, and I think they’re the most important amendments in the Bill of Rights, and I was wondering how this happened.

Bob Zadek: Carol, the 9th Amendment is a show in and of itself. And there, as you pointed out in your book, Carol, the word “expressly” springs into play. So tell us briefly, if you will, about the 9th Amendment, what it says and why, in Michael’s and my and many others’ opinion, the 9th Amendment is underrated and misunderstood, if not ignored.

Carol Berkin: Well, it’s not so much ignored as court decisions over time have affirmed implied powers and the “necessary and proper” clause. What the Anti-Federalists fought tooth and nail for in Congress, and they were outnumbered, was that one single word would have changed what that amendment meant. They wanted it to say “no power not expressly given to the federal government.” Only powers expressly given to the federal government could they make use of.

Bob Zadek: Just for our listeners, the issue was there were very limited called “enumerated powers” given to the federal government, and they had those powers and none others. And there was a fear because of some slippery language in the Constitution that Congress would take the specifically enumerated powers and through “necessary and proper” and other clauses effect an expansion of their specific powers. And Madison and the drafters of the Bill of Rights, there was a discussion: “Let’s make it really clear that Congress only has these powers and we really mean it.” And that was the discussion.

Carol Berkin: Well, that’s a kind of conspiratorial view of why they did this. They did believe—by the way, it’s the 10th Amendment that the fight is over “expressly,” the express powers. The 10th Amendment says “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states and the people.” What they really thought was, we’ve got to have the power to make decisions as things come up. We’ve got to be able to legislate on things that maybe we didn’t think about when we were writing the Constitution. And that’s why they wanted to be able to use implied powers and be able to use—and that’s why they have the “necessary and proper.”

But Michael mentioned the 9th Amendment, which is the unenumerated rights protected to the people. The 9th Amendment reminds us all that just because Madison and the founders chose to specifically tell us that government cannot interfere with freedom of the press, freedom to practice religion, etc., that just because those are mentioned, it’s not in derogation of other rights which we have which are not mentioned. And that’s the 9th Amendment, and that’s still, after 235 years, an ongoing debate about what are the rights that are not mentioned in the Bill of Rights but are every bit as valuable as the enumerated rights.

Carol Berkin: Exactly. But they didn’t fight about that. They were all in favor of that. They said, “What if we left something out? What if there’s some right we failed to mention? We don’t want anybody to think that the people don’t have that right.” And so that one, they really—there was no disagreement about that at all, which speaks, I think, positively to them. It’s the 10th Amendment that the Anti-Federalists wanted to nail down: “You cannot do anything that isn’t expressly mentioned as your right to legislate about.” And if they had done that, we wouldn’t have had the Bank of the United States, we wouldn’t have acquired Louisiana. I mean, the whole history of the first many decades of the American nation would have been dramatically changed if “expressly” was in there. It would mean today, by the way, that the government couldn’t enforce traffic laws, it couldn’t build highways.

Bob Zadek: The federal government. The federal government couldn’t do those things.

Carol Berkin: The federal government could not build highways, the federal government could not have done any number of the things that we now assume the—it couldn’t have had the EPA, it couldn’t have—because it wasn’t expressly—

Bob Zadek: Carol, you’re making my eyes get all moisty-eyed for those days! Michael, thank you so much for reminding us about the 9th and 10th Amendments. We appreciate it.

Caller (Michael): My question was how did they get lost?

Bob Zadek: Oh, how did they get lost? They got lost through judges. It’s all Supreme Court’s handiwork. They got lost because the Supreme Court, in what’s called judicial deference, allowed Congress to be their own policeman as to what’s constitutional and what’s not constitutional. So the fault lies foursquare in the Supreme Court. Congress behaved as they naturally would, which is collecting power as best they can, and it was the Supreme Court to stop them if they read aggressively the 9th and 10th Amendment. Well, I’d like to—I’d like to have another 72-hour conversation, Michael. Thank you so much for the call.

The Rise of the Regulatory State [15:43]

Bob Zadek: Carol, we have another caller, if I may. Roger calling from Redwood City. Roger, good morning. How are you?

Caller (Roger): Yeah, I’m doing okay. So one thing that you guys haven’t mentioned, and I don’t think that the founding fathers—maybe they didn’t call it this, but I don’t think they talked about it a lot—was the power of the regulatory state. And today, the major challenge to our liberty is the regulatory state. And you were talking about how majorities can have tyranny over minorities. Well, the regulatory state is not even elected, so even a majority can’t control it. I saw some data recently that said that the people only can vote on something like, you know, half of a percent of all the employees of the federal government. The other 99.5, they are outside the electoral process.

Bob Zadek: Roger, there was a theory that says the entire administrative part of government is unconstitutional. I did a show on that about six or seven months ago with a very smart fellow who argued, in my opinion persuasively, that virtually—I’m going to simplify it and with some taking some liberties—that the entire function of the administrative state is unconstitutional as an unfair delegation of power from Congress to the executive branch. So you’re exactly right, that is an ongoing—it’s not being debated very much in government because it’s pretty much a done deal.

Caller (Roger): In fact, there are laws that are passed that have phrases—in fact, Obamacare has these phrases all around. It says “the Secretary shall decide.” So it’s like Congress doesn’t even tell you what it’s going to do; it just punts to the regulatory state, and even a majority can’t change that.

Bob Zadek: And there’s a principle of law, Roger, called the “non-delegation principle,” which says Congress lacks the constitutional power to delegate legislative functions to the executive, but the phrase you cited, Roger, you’re exactly right, is exactly that delegation of power in the eyes of many. So you’re exactly right to raise that issue, and that has been—Congress not preserving to themselves, in my opinion, their constitutional prerogatives and just saying to the executive branch, “Here, you deal with it, and you get the heat. We’re done.” So Roger, thank you so much for raising that issue. That’s an important issue, and actually, I have covered it in the past and hope to cover it again. Thank you so much.

The 14th Amendment and the “Creedo” of Rights [17:57]

Bob Zadek: Carol, now we’re back to—as I feared, we’re starting to run out of time. Madison had more time than we did. So here we have Madison in the House of Representatives trying to cut off the Anti-Federalists at their knees by taking away their argument that the federal government, the formation of the federal government, is a big scheme to deprive us of liberties. And how does Madison deal with that frontal attack on the Constitution?

Carol Berkin: Well, first of all, he succeeds. I mean, he succeeds. The House approves—they reduce his proposals from 39 to 12. They approve them, the Senate approves them, and they go on to be ratified. I just want to use my time to say two things. Madison was sincerely concerned about the rights of the minority. And he included in his proposals that the federal government would have enforcement powers to step in if the states abused the powers of their—abused the liberties of their own citizens. The Senate vetoed that. And the reason the Senate vetoed that was until the turn of the 20th century, the Senate was chosen—senators were chosen by state legislatures. And none of the senators wanted to go home and say, “By the way, we approved an amendment that said that the federal government can step in and discipline you if you—if you infringe on people’s liberties.”

And that’s why the Bill of Rights had absolutely no importance until the passage of the 14th Amendment. Precisely! It’s not—people think as soon as the Bill of Rights was passed, everybody paid attention to it. It was passed, it did its job, it hurt the Anti-Federalists, and then it was completely ignored. And even with the 14th Amendment, once Reconstruction was over, the Bill of Rights disappeared again until the 1930s.

Bob Zadek: Carol, I want to emphasize—you make a very important point that I want to just make sure it is not lost on our listeners. The Bill of Rights, all these freedoms we value so dearly, only were a limitation on what the federal government could not do. The states were totally free to step all over freedom of religion, freedom of the press, all of those freedoms we value. The states—it was hoped that the states would have their own Bill of Rights to limit their own power, but the Constitution said nothing about what the states could do, as Carol just pointed out. And only after the Civil War amendments did the Constitution directly apply to the states. Most people don’t appreciate how important that is, and that shows you how much the founders valued the co-equal power of the states vis-a-vis Washington. That point is lost on most Americans.

Carol Berkin: It’s true. And I think that people should realize that Madison hoped what would happen is exactly what has happened in our lifetime. He hoped people would see the Bill of Rights as the credo, the statement of American values. And his concern was that if they did, then the majority would stop and think before it oppressed the minority. That they would say to themselves, “It’s un-American to do what we’re about to do. Our country stands for the rights and the protections that are in the Bill of Rights.” And that’s how we generally think today, but it really took decades and decades and decades for that to come about. And it took until the 1930s for the Bill of Rights to begin to be seen, like the Declaration of Independence, as a statement of American values.

Conclusion [20:30]

Bob Zadek: Although, Carol, you’re in academia, and we only have a couple of minutes, but just a passing comment. College students today are willing, by polls at least, to give up part of their freedom of speech in order to not—I’ll simplify it—hurt the feelings of others. That shows that maybe that part of our credo is being eroded over time. You don’t have to comment on that. I just—when I read your book and you mention “credo,” which is what I would hope as well, but I fear that it’s not happening.

Now, Carol, we only have a couple of minutes, and I want to have you back like next week and the week after and the week after, so our listeners can have more than just an hour of your scholarship and intellect. What have you been writing and how can our listeners follow you?

Carol Berkin: Well, if they want, they can read A Brilliant Solution: Inventing the American Constitution, which is about the convention. They can read the book on the Bill of Rights. And I’m now working—I’m moving sequentially—I’m now working on a very large book on what I call The Republic in Peril: Four Crises of Sovereignty in the 1790s. That is, in what ways was the federal government struggling to assert its independence and its authority against foreign powers and against domestic insurrections?

Bob Zadek: And how vulnerable we were at that time!

Carol Berkin: Exactly, exactly. That’s exactly my point. That a lot of my students think from the minute pilgrims landed on Plymouth Rock, America was the most powerful country in the world. And in fact, it took—it really took until World War II for us to become a world power. And in the 1790s, we were really sort of a third-world country.

Bob Zadek: Carol, thank you so much. Carol, thank—we’re running out of time, regretfully, as I feared we would. Thank you so much for the book, and thank you so much for sharing your very unique insights into that very special period in the history of our planet. This is Bob Zadek saying so long for now. I’ll be back next Sunday. And again, thanks so much for Professor Carol Berkin. See you next Sunday.