The Bill of Rights is the name given to the first ten amendments to the United States Constitution, ratified in 1791. Across the episodes excerpted here, the amendments are treated as the central protection of individual liberty in American law — Bob Zadek calls the Bill of Rights “far more important in a way, in terms of freedom, it’s far more important than the Constitution itself” Carol Berkin on The Bill of Rights No One Wanted (2016) — and the circumstances of their adoption, their original scope, and their application to the states are the recurring subjects.
Ratification and the politics of adoption
The Bill of Rights was ratified on December 15, 1791, when Virginia became the last state to ratify, according to Bob Zadek’s account Brian D. Kelly on the False Promise of Policing-for-Profit (2019). Zadek elsewhere dates ratification to 1791 and describes the amendments as introduced by James Madison in the first meeting of the House of Representatives, honoring a promise he had made Capitalism and Morality: Twin Pillars of the West (2017).
Professor Carol Berkin, author of The Bill of Rights: The Fight to Secure America’s Liberties, describes the adoption as a deliberate political tactic. Madison, she says, told the first Congress — controlled by Federalists in the presidency, Senate and House — to pass a Bill of Rights and take credit for it, which would “separate the Anti-Federalist base from its leadership.” Madison expected his proposal to be welcomed and instead met groans; members complained they had not set tonnage rates, organized the judiciary, or found a permanent spot for the capital, and it took a month of badgering before they agreed even to discuss it Carol Berkin on The Bill of Rights No One Wanted (2016).
Zadek frames two facts as background: Madison made a campaign promise to his district while running against Monroe for the House, and several states — Virginia and New York among them — conditioned ratification on an unenforceable promise that Congress would adopt a Bill of Rights. Berkin modifies the second point: two states did not ratify because they could not make the amendment, and most states said only that Congress should consider amendments; had they said “binding,” as Rhode Island and North Carolina did, they could have defeated the Constitution outright. She also emphasizes Madison’s underlying motive — the wily politician who wanted above all to protect the power to tax and the power to regulate commerce, and who saw the Bill of Rights as a death blow to opponents of the country’s real powers Carol Berkin on The Bill of Rights No One Wanted (2016).
Zadek characterizes Madison’s view as that the Bill of Rights did nothing of substance, since the federal government lacked power to interfere with the protected freedoms anyway — “a freebie,” in his phrase. Berkin agrees, but adds that Madison wanted to give the federal government power to step in when states abused the civil rights of minorities, fearing tyranny of the majority over minorities — by which he meant religious sects such as small Baptist sects, Moravians and Quakers, and people who disagreed with the majority about policy Carol Berkin on The Bill of Rights No One Wanted (2016).
The Ninth and Tenth Amendments
A caller, Michael from San Francisco, raises the Ninth and Tenth Amendments, arguing they have “gotten lost” in Supreme Court argument and are the most important amendments in the Bill of Rights. Berkin responds that the fight in Congress was over a single word: the Anti-Federalists, outnumbered, wanted the text to say that only powers expressly given to the federal government could be used. Zadek describes the underlying issue as enumerated powers and the fear that Congress would expand them through the “necessary and proper” clause Carol Berkin on The Bill of Rights No One Wanted (2016).
Berkin corrects the attribution: it is the Tenth Amendment that the fight over “expressly” concerns. The Tenth Amendment, she says, provides that 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. The drafters wanted the ability to legislate on matters they had not anticipated, which is why they retained implied powers and the “necessary and proper” clause. The Ninth Amendment, by contrast, protects unenumerated rights: it reminds us that the specific mention of freedom of the press or freedom to practice religion is not in derogation of other rights not mentioned. Berkin notes that after 235 years it remains an ongoing debate Carol Berkin on The Bill of Rights No One Wanted (2016).
Application to the states
The question whether the Bill of Rights limits state governments as well as the federal one is the subject of the Timbs v. Indiana episode. Sam Gedge of the Institute for Justice explains that Tyson Timbs’s $42,000 car was seized under Indiana statute; the trial court held the taking so disproportionate to his offense that it violated the Eighth Amendment’s Excessive Fines Clause, and the intermediate court agreed. The Indiana Supreme Court then held that it did not matter whether the taking was an excessive fine, because the US Supreme Court had never said the Excessive Fines Clause applies to the states at all Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge describes the Eighth Amendment as containing three separate protections: against cruel and unusual punishments, against excessive bail, and against excessive fines — the last meaning protection from disproportionate, crippling economic sanctions. Zadek supplies the doctrinal history: the Bill of Rights was not intended to apply to the states when drafted and enacted, but the Fourteenth Amendment, one of the Civil War amendments, applied it to the states; the open question became whether all of the rights applied or only some. He notes that core rights such as freedom of speech and the exercise of religion, and the right to bear arms in the Heller case, are obvious, but that the Supreme Court has not decided as to each and every right — and the Excessive Fines Clause had never been found to apply or not apply Awaiting the Verdict in Timbs v. Indiana (2018).
Gedge calls the process “selective incorporation”: over roughly eighty years or more, the Court has looked at each right in the first eight amendments and determined whether it is so fundamental to the legal tradition and Anglo-American heritage that it is incorporated into the Fourteenth Amendment and applies to state and local authorities as well as the federal government Awaiting the Verdict in Timbs v. Indiana (2018).
The Bill of Rights in civic life
Zadek treats the Bill of Rights as the operative source of protection in practice: whenever rights such as freedom of speech, freedom of worship and freedom of assembly are under attack, he says, those who defend them in court cite the Bill of Rights rather than the Constitution, which shows that without it there would have been no protections at all. He credits “the wisdom of the anti-federalists who imposed and forced the new government to adopt the Bill of Rights” Capitalism and Morality: Twin Pillars of the West (2017).
The Bill of Rights Day episode opens with the ratification date and moves to civil asset forfeiture, which Zadek introduces as an issue the show has discussed since 2013 and which the Institute for Justice describes as “policing for profit.” Guest Brian D. Kelly, an associate professor of economics at Seattle University, is introduced as studying the economic analysis of law, market power and antitrust, and as having the answer to whether forfeiture is a valid device to combat crime or an income-producing device Brian D. Kelly on the False Promise of Policing-for-Profit (2019).
Across episodes: the same question in two registers
The ratification story is told twice, in the Berkin episode and in the Bill of Rights Day episode, and the two treatments differ in emphasis rather than substance. Berkin, the historian, foregrounds Madison’s tactical calculation and the mechanics of the first Congress — the groans, the month of badgering, the protection of the taxing and commerce powers. Zadek’s own framing in the later episode stresses Madison’s belief that the Bill of Rights was unnecessary and his worry that the Constitution was still fragile, with the Anti-Federalist movement still powerful. Both accounts agree that Madison proposed the amendments in the first Congress and that the states had conditioned ratification on their adoption; Berkin supplies the correction that most states chose to condition rather than bind, and that Rhode Island and North Carolina could have defeated the Constitution had they said “binding.” The Timbs episode extends the topic into a different register entirely — not why the Bill of Rights was adopted but which of its guarantees reach the states — and no excerpt shows the two threads being argued against each other.
What the sources do not cover
The excerpts do not reproduce the text of any amendment in full, nor do they state which numbered amendment protects which right beyond the Eighth Amendment’s three protections and the Ninth and Tenth as described. They do not report the outcome of Timbs v. Indiana, the holding of any case other than as summarized above, or the reasoning by which any right was incorporated. The Berkin excerpt breaks off mid-sentence on the Ninth Amendment debate, and the Kelly excerpt ends before Kelly’s findings are stated.