Nov 8

Issue: Founding Fathers RSS

Transcript: David M. Rubenstein on the Declaration, Constitution and Bill Of Rights (Part 2)



Posted 5 months, 9 days ago.

By

In an interview with National Constitution Center CEO Jeffrey Rosen, David M. Rubenstein discusses the relationship between the Declaration of Independence, the U.S. Constitution, and the Bill of Rights, telling the story of how one landmark document led to the next in the context of the evolving story of America’s battle for freedom.

rubensteinA transcript of part 2 of the interview is below, along with accompanying video. (The transcript was prepared by Adept Word Management. You can use the time codes next to selected paragraphs to find the approximate passages in the video.

Jeffrey Rosen

0:25:53.2 All right. That was beautifully said. And that gives a powerful account of how Lincoln and the Civil War perfected Jefferson’s vision of equality. We have another job tonight, and also in creating this new gallery, which is to tell the relationship between the Declaration, the Constitution, and the Bill of Rights. Tell us—isn’t it the idea of unalienable rights that come from God and not government, and that you can surrender to government for safekeeping, but can’t actually give up the rights themselves? Is that the connection between the Declaration and the Bill of Rights?

David M. Rubenstein

The idea that you have certain unalienable rights—and all of you probably realize that the word is inalienable, not unalienable.

Jeffrey Rosen

Now, the natural rights theorists—I got this from law school—they used the 2 terms interchangeably. And we have Jefferson’s library in the permanent exhibit. For instance Hutchinson, John Locke, 0:26:13.1 (???) (inaudible)—they often used unalienable and inalienable interchangeably. Was there a difference between the two?

David M. Rubenstein

Jefferson wrote inalienable. The calligrapher misread his writing is actually what happened. But, okay. So anyway, what happened was at those times a number of European philosophers and writers—John Locke, Montesquieu, and others—had written about the fact that people have certain unalienable rights that come from God or come from just virtue of being a human being. And Jefferson was reflecting that. And George Mason had reflected that when he had written the Virginia Declaration of Human Rights from which Jefferson took a lot of this language. So it was common in those days in Europe to think this, and in the United States as well. And the English Declaration of Rights had more or less said the same thing and it was earlier. So the idea that you have certain rights is something that people thought that you had. And really the Declaration of Independence came about, and the whole Revolutionary War came about, because people in this country in those days thought that they had the same rights that Englishman had. In fact, the charters that were given to each of the colonies said that you have the rights of Englishman. The rights of Englishman are the rights of the Magna Carta, the rights of the English Declaration of Human Rights. But in the end, when the Parliament and King George said, “Well, we’re not honoring those rights. You’re different. You really don’t have the same rights despite what those charters would say. You have the rights that we give you, because you are owned by us.” That’s what really led to the Revolution. Because the rights that people thought they had in this country—the right to a trial by jury, right to proportionate punishment for crime, right to habeas corpus—those rights were being denied by the British. So it was the feeling that you had certain rights that you weren’t getting.

0:28:31.8 So Jefferson writes this, says we have certain rights. When the Constitution is being drafted, why wouldn’t you put in the Constitution that we have these rights? Well, as you all probably know, the famous Constitutional Convention held here in 1787, in the same room that the Declaration of Independence was drafted, a different group of people came together and Jefferson wasn’t in that at the time. He was an effective ambassador to France. After 4 months, they came up with the Constitution. And it was debated in the last 5 days. George Mason spoke up and said, “You know, we should have some rights put in this Constitution, because all we’re doing is coming up with a structure of government. We haven’t really said what our rights are.” And Elbridge Gerry agreed to the same thing—famous later because of gerrymandering—and one other delegate also speak up for it. But it was voted down. You voted by state delegation, and unanimously each state delegation voted against having a Bill of Rights or certain rights attached.

Now why was that? And why would James Madison—the man who actually later wrote the Bill of Rights when he was a member of the First Congress—why did he oppose it? Because it was generally viewed at the time that if you have specific rights enumerated in the Constitution, that in effect means that all the rights that are not enumerated, you don’t have. And they didn’t want to actually exclude any rights. Secondly, many of the people said, “Wait a second. The states have given us rights. We have the rights of our states. We’re really citizens of our states, and we have certain rights in our constitutions. And as we’re now drafting our state constitutions we’re putting them in there. Why do we need to have it in the federal Constitution?” And some members said, “Wait a second, if you start talking about rights, everybody gets around to this ‘everybody is treated equal’ kind of thing, and we don’t want that. Because that’s going to deal with slavery. And we don’t really want to fool around with the idea that everybody is equal.” Because every time you have descriptions of rights, inevitably it gets to that ‘everybody’s equal.’ And a lot of the Southern delegates to the Constitutional Convention didn’t want to do it.

So the vote was not to have a Bill of Rights in it. They ratified the Constitution. The Constitution is approved, it’s then sent back to the Congress. The Congress was actually the Articles of Confederation Congress. So this Constitutional Convention, which was designed to just amend the Articles of Confederation, they actually came up with a whole new government. It was sent to the Articles of Confederation Congress. Without saying they approved it or disapproved it, they just said, “We’ll send it out to each of the states.” Each of the states called a convention to ratify it. In the ratification process, which took about 2 years, many of the states said, “We don’t really trust government. We don’t trust the federal government so much. We don’t know what it’s all about. Let’s have some rights. Let’s have the rights specified.” So in order to get it ratified, many of the people who were promoting it—like Madison and Hamilton and so forth—kind of agreed that they would have a Bill of Rights in the first Congress. And so, sure enough, in the first Congress, James Madison wrote out with the help of others 12 amendments to the Constitution that were approved. And the Congress approved the 12 amendments. But then it went to the states for ratification. Only 10 of them were approved. Those 10 became the Bill of Rights. But the initial argument that James Madison made, then he later reversed it, was that we don’t need them because the rights are either implied or we don’t want to enumerate them, because we will lose certain rights that aren’t enumerated. And also the states already have these rights. But in the end, Madison changes his view, and said, “Let’s be specific,” and he wrote out these rights. And that became an important part of the Constitution. However, for the first 100 years, it was more or less ignored. In other words, as you know, the Supreme Court didn’t repeatedly say, “Let’s look to the Bill of Rights for certain rights.” They kind of ignored it for a large part of time, or the first 100 years after it was drafted and approved, because it just wasn’t seen to be as significant as other things that gave certain rights, including the state constitutions.

Jeffrey Rosen

0:32:35.4 Absolutely, as you say, because the Bill of Rights wasn’t applied against the states until late 20th century. It wasn’t as significant as it is today. So you identified two concerns. First, the Bill of Rights was initially unnecessary. And second, it would be dangerous. Because if you wrote it down you might think that if it wasn’t written down it wasn’t covered.

David M. Rubenstein

Correct.

Jeffrey Rosen

The 9th Amendment is designed to avoid that misconstruction. It says the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.

David Rubenstein

That’s right.

Jeffrey Rosen

What’s the significance? Is the 9th Amendment the tie between the Declaration and the Bill of Rights?

David M. Rubenstein

Well, Madison wrote that because that was designed to counter that argument that he previously had. He previously had argued the other side of that case. He previously said that we can’t be specific on everything, because we’ll forget certain things or so forth. So they did put that amendment in. But I’d say that the relation between the Declaration of Independence and the Bill of Rights, I guess, is this—that in the Declaration, people were told they had certain rights—unalienable rights. But to be honest, the Declaration wasn’t that important a document when they were drafting the Constitution. They kind of—the preamble wasn’t as important. It later became more important after the Bill of Rights was agreed to. But people were not in the Constitutional Convention talking about the Declaration of Independence. They really weren’t. They were really talking about the state constitutions and what the state constitutions already had or were going to have. And they just didn’t really talk about it.

0:34:02.1 Now the relation now today—I think when people think about what rights we have, people think about the Declaration of Independence in talking about the rights we have. But the Declaration of Independence was a propaganda document. It didn’t give any rights to anybody. It just was an advertisement about why we were breaking away from England.

Jeffrey Rosen

But as you’ve described it, it was more than that in the sense that it was declaring the existence of these natural rights that everyone knew existed. They were in the state constitutions. They’re written in the Declaration, and they ended up in the Bill of Rights. And it was a limited set. And the most important was the right to alter and abolish government when it becomes destructive to purposes. So that was what Jefferson declared. And that’s embodied in Article 5 of the Constitution, which allows for amendment.

David M. Rubenstein

It’s a very interesting thing. Jefferson is, in effect, saying in the Declaration of Independence, “When in the course of human events and so forth,” as he begins in the beginning, “it becomes necessary for one people to break the political binds they have with another people.” He’s, in effect, saying that there is a right to revolution if your rights are not being honored. And then in the Constitution though, it doesn’t say that in the effect—it doesn’t say that if these rights aren’t being honored, you have the right to overturn this government. It doesn’t say that. Now you could argue that the people who seceded from the Union in the Civil War—they would say, “Look, we’re just doing what Jefferson said we should do if we’re not getting certain rights we think we should get. Let’s break away.” But the Constitution didn’t permit that.

Jeffrey Rosen

In fact, at the end of his life, Jefferson was endorsing the states’ rights arguments that would ultimately be embraced by the secessionists and Calhoun. Whereas John Marshall, Jefferson’s arch nemesis, denied the right to secede. Because, like Lincoln, he insisted it was the people of the United States who are sovereign, not the people of each state. And James Wilson, who was in the signer’s hall, was the identifier of that shift. Is that a debate? Is that a story we have to tell? It wasn’t decided until the Civil War—who’s sovereign, the people of the United States or the individual states?

David M. Rubenstein

0:35:53.6 You have to remember who is granting these rights. Do they come from God? Did they come from the people? Well, there was an argument that people believed in the colonial days, that the rights that you need to have were certain inalienable rights that more or less came from, let’s say, God. Although Jefferson didn’t like to say that. In fact, the word God was put into the Declaration of Independence by the editors more than by him—the people at the convention. Because he wasn’t a gigantic believer in God, let’s say, in the traditional sense that we now think about it. He was a deist. He thought there were—believed there was some super being but not one who was really involved in day-to-day life, let’s say. And as you may know, he was considered so anti-religious that when he offered to sell his library to the Library of Congress—the Library of Congress books were burned in the War of 1812—many members of Congress didn’t want to buy his books, because they thought he had a lot of anti-religious and anti-God books. They wanted to go through every single one of his books to make sure that they were appropriate. But anyway, in those days, you had to say where were the rights coming from? I think most people believed that the rights were coming from God more or less—the unalienable rights—but that what you had to protect against was an executive. In other words, what they were trying to do was to protect people from certain governmental actions—so protect against what King George did. They wanted to make sure that a legislature in the future or a congress wouldn’t take away their rights. Interestingly, the rights that people focused on in the Bill of Rights were really rights that were designed to give people protections against government action that would be taking away liberties.

Later, the Bill of Rights became more a document that defended people not so much from what government was overall doing for the people, but defending the rights of minorities and people who didn’t have the protections of the majority. And that’s really what the Bill of Rights has become more of in recent years. It protects people that don’t have the wealth or the great power. And it gives them certain protections. It’s not so much that government is taking away all the powers of all the people. That was the initial concern of the Bill of Rights. It was a concern of the people who wanted the Bill of Rights that government would be too powerful and government would come along and, in an arbitrary way, take away certain rights. Today, we don’t worry about government taking away all of our rights. But certain people in the country feel that, let’s say, that their rights might be taken away. And they often tend to be people who are the least enfranchised in the society.

Jeffrey Rosen

0:38:30.6 So whether you care more about government abuse or about equality, of course, depends on whether you stop with the original Bill or Rights or go on to the 14th Amendment. What do you think about Marshall versus Jefferson? They had terrible insults for each other. They were distant relations. Marshall called Jefferson—he accused him of twistifications—no, no, Marshall called Jefferson, “The Great Llama of the Mountain.” That was his insult. And I never understood exactly what that meant. Marshall accused—Jefferson accused Marshall of twistifications. But it’s arguable that Marshall had a greater influence on the Constitution. He had this vision of a united sovereign people and a judicial review—the power of the courts to strike down unconstitutional laws. Jefferson at the end of his life is questioning both of those propositions, endorsing states’ rights, questioning the power of judicial review. Who is more influential—Marshall or Jefferson?

David M. Rubenstein

Jefferson is more influential in our country’s history. I would say Jefferson, because of what he stands for—the Declaration of Independence. Interestingly, while Jefferson for 9 years didn’t want to admit that he drafted the Declaration of Independence, because he didn’t like the way it was “mutilated.” As he got towards the end of his life, he began to prepare what he wanted on his tombstone. And he wanted to have the first thing be the author of the Declaration of Independence—not the draftsman, the author. And that’s an interesting point. When he was appointed to draft the Declaration of Independence, he wasn’t supposed to be the author. He was supposed to be the draftsman. So he probably took too much pride in his penmanship. These kind of subcommittees and committees that were operating—you weren’t supposed to be the author of something, like a novel. You were supposed to be providing ideas for people to mark up. Anyway, he later regarded himself as the author of it. And that was what he regarded as his greatest achievement. And in terms of influence, I think he was one of the most influential people in the way our country has evolved. On the other hand, a very famous historian, Pauline Maier, wrote a book about the Declaration of Independence. And previously she had said, “The most overrated American by far was Thomas Jefferson.” And she defended that until she died in the view that he was given way too much credit for the Declaration of Independence. Because her view was that many people had a role in it. Jefferson was an interesting person in the sense that he lived this double life. He fathered 6 children with Sally Hemings. And interestingly, this is a digression, and there are some people who dispute it, but I believe the DNA evidence is pretty compelling. But there are books written that have a different point of view. One book, which won the Pulitzer Prize, The Hemingses of Monticello, by Annette Gordon-Reed, I think makes it pretty clear that Jefferson did father these children. But interestingly, and some people often wonder about this and try to deny it—you might say, “Why did Jefferson do this?” Well, it wasn’t that uncommon to have sexual relations between slave owners and slaves. That wasn’t uncommon. But think about this interesting fact. When Jefferson’s wife died, Jefferson was 39. On her deathbed, she said, “I had a stepmother. We have 2 daughters now,”—some children had died—“we have 2 daughters. I don’t want them to have a stepmother. Promise me you’ll never get married again.” So what is he supposed to say? “Okay, I’m 39 years old. I’m never getting married again?” He wanted to please his wife who he was deeply in love with. He said he wouldn’t get married again. And he never did.

0:41:51.2 When he was in France, he asked to have one of his daughters brought over. One of his daughters was already there. The daughter was brought over by a slave in the residence, and the slave was 14 years old. That was Sally Hemings. I don’t know if he saw her before or not. But he may have recognized her, because Sally Hemings’ father was the same father as Thomas Jefferson’s wife. In other words, Thomas Jefferson’s father-in-law—his daughter was the person that Thomas Jefferson married. As a slave owner, he impregnated a slave. And the result of that was Sally Hemings. So Sally Hemings was really the half-sister of Thomas Jefferson’s wife—no doubt a striking relationship to her. Because she was probably three-quarters white and probably looked very much like Thomas Jefferson’s wife. Interesting relations.

Anyway, Thomas Jefferson led this double life. He was a complicated person, brilliant. As you all may know, he died on July 4th, 1823—exactly the same day as John Adams. And that was taken as an incredible symbol by people in the country. The 2 principal people who were involved with the Declaration of Independence and the declaration to separate from England—John Adams and Thomas Jefferson—died on the same day. It was taken as a sign from God that there was something special about the Declaration of Independence. But Jefferson had his feuds. He was the first Secretary of State under George Washington. And he didn’t like George Washington. He didn’t get along with Alexander Hamilton. So eventually he quit. And he started bad-mouthing George Washington, saying George Washington wasn’t that smart and so forth. And Washington heard about it and never talked to him again. Jefferson had many enemies and John Marshall was one of them. John Marshall, what he did as a lawyer—as a chief justice obviously he had enormous impact—Jefferson didn’t have that much impact on the law. But as an overall citizen, he probably had more impact.

Jeffrey Rosen

On the Constitution though. Jefferson was away during the convention. I ask because I need substantively to figure this out. Who had more influence on the Constitution—Jefferson or Marshall? Whose vision is embodied today? Who won that battle of states’ rights versus sovereign power?

David M. Rubenstein

0:44:06.7 In the end, Marshall. Because Marshall—Madison and other things. And he also was chief justice for 30 years or a long time. So he had a lot of impact. But there’s no doubt to me, the man who had the most impact on the Constitution was James Madison. Now, Madison— remember, everybody in the Constitutional Convention was not supposed to talk about it on the outside. And they sealed the windows. It was very hot. So sometimes they would go to the second floor where the windows could be opened. But there were very few leaks. But Madison kept a meticulous diary. And it was eventually published after his death. It was the most meticulous and best accounting of what happened. Since he wrote it, obviously, he probably featured himself. But he was the person who kind of put the Constitutional Convention together. He drafted the Bill of Rights with the help of others. He was very influential. So I think he, probably more than anybody else, is responsible for the Constitution that we know today. But the person most responsible for the way the Constitution is interpreted probably is Marshall. Because of what he did with the way the court interprets the Constitution.

Jeffrey Rosen

When I came in this morning, one of our great colleagues wanted me to ask this question. Should the Constitution today be interpreted in light of the Declaration of Independence?

David M. Rubenstein

The Declaration of Independence—remember, again, it wasn’t a legal document. It was designed for one purpose—to explain to people why we are going to be independent or why we need to be independent of England. But the rights that were talked about there are ones that I think really have been infused into the Constitution now and the way we interpret it. So, yes, today whatever is talked about in the Declaration of Independence is really, in effect, in the Constitution and the way it’s now been interpreted over many, many years. But the documents should be read as different kinds of documents with different purposes. One was to set up a government. One was to kind of justify breaking away from another government. And so they’re different. One is creating a government. One is, in effect, getting ready to break away from another government. But I think they are, in American’s minds, fused together in many ways. Because they represent what’s the best thing about this country. They, in effect, are symbols of the freedoms that I was talking about at the beginning—the freedoms that enable me to do what I did, and the freedoms that enable people here and many people in our country to achieve what they’ve done—are freedoms that were kind of alluded to in the Declaration of Independence, guaranteed by the Bill of Rights, and then ultimately, approved and sanctioned by the Supreme Court in many ways.

Jeffrey Rosen

That’s good. Say it again. Because I want to make sure I have 2 sentences to put at the entrance to the gallery about the relationship. What is the relationship between the Declaration and the Constitution?

David M. Rubinstein

0:46:44.3 I would say the Declaration of Independence made certain promises about what certain rights would exist. But they weren’t really legal rights until they were put in the legal documents of the Bill of Rights, and to some extent, the Constitution. The Constitution, before the Bill of Rights, actually has some rights in it itself. The Bill of Rights expands on it. But there are certain rights in the core of the Constitution itself. But still, I think the Constitution is a legal document that was influenced by the concepts that you have certain rights. It wasn’t only the Declaration of Independence that made people think in those days that you had certain rights. There were other writings. Remember, each of the state constitutions dealt with and had their own Bill of Rights.

Jeffrey Rosen

That leads to the first of the audience questions, which is excellent. What’s the relationship, if any, of the Bill of Rights to any of the original state constitutions? Could you be more specific? Many of those constitutions enumerated the same natural rights that were in the Declaration and Bill of Rights. What’s the relationship?

David M. Rubenstein

The Declaration of Independence—the one that’s here is a very famous one. Okay, but many states issued their own Declaration of Independence before this one was issued. In other words, states and cities very frequently—there are literally hundreds of Declarations of Independence that were drafted by cities, counties, municipalities, and states that were drafted either before this one or subsequent to this one that kind of said, “Hey, we don’t know about the federal government. Let us tell you that we the people of this city of Massachusetts—we have our own Declaration of Independence.” So many of those alluded to the same rights that Jefferson did. Secondly, when the state constitutions were being drafted—and why were they being drafted? Every state, in effect, had a charter from England. Well, when we dissolved our binds with England, we were no longer part of them so those charters were no longer valid. So every state had to have its own constitution. As they were being drafted, they were drafted to include, in many cases, certain rights, including their Bill of Rights—what we now call the Bill of Rights. So many of the Bill of Rights that we now have in our federal constitution were in other constitutions and some of it may have well been copied from the Virginia Bill of Rights, for example.

Jeffrey Rosen

Another excellent question, do you think any of the 3 branches of government has overstepped the original intent of the written Constitution? In other words, what would James Madison have thought of the government shutdown? That was my addition, but I think that’s what the question is asking.

David M. Rubenstein

0:49:03.9 I would think he would say, “This isn’t what I intended. And I wish it hadn’t happened.” I hope that’s what he would have said. Because that’s what I would say if I were in his situation. I’d probably say that wasn’t what the founders intended. But I think, to be honest—remember, the first article of the Constitution is about the executive or the legislative branch? It’s the legislative branch. Because in those days, it was considered that people who had the power were legislators—parliaments. The concept of an executive was relatively novel. And remember, we didn’t even have a real executive of any consequence under the Articles of Confederation. So it was thought in those days that you could have a government without an executive. Therefore, they did when the Articles of Confederation came—we really didn’t have an executive. It was then later thought that maybe an executive would work. And if George Washington hadn’t existed, maybe they wouldn’t have designed the second article that way. Because it was known at the time that he was likely to be the president. And it was kind of designed in the Constitutional Convention to do something that would be appropriate for him.

In other words, why would you say the president or the chief executive would be the Commander in Chief? Normally you wouldn’t say the Commander in Chief of the Army would be the same person who’s the executive of the government. But because it was known that Washington was qualified to do that, it’s probably written that way. And Washington never disagreed with that. Obviously, he never spoke up against doing that. I think if Madison came back or Washington came back, what they would say that they did not anticipate was that the executive became so powerful—and many people would say more powerful—than the Congress. And I don’t think they would have anticipated that the judiciary became as important. But it’s important to note that in the third article—the article that deals with judiciary—that was very novel. It was a very novel idea that there should be an independent branch called the judiciary. Because generally in those days, courts weren’t really that independent. Courts were often thought to do exactly what the executives wanted or the legislators wanted. The idea of an independent judiciary was a very novel concept. And I doubt that even the founders would have thought, if they came back today, that the judiciary should be as powerful as it later became.

Jeffrey Rosen

Hamilton, of course, thought the judiciary would be the least dangerous branch. Because it had neither purse nor sword. Have the courts become too powerful? And does that violate the intent of the framers?

David M. Rubenstein

You’d have to ask Justice Scalia about that.

Jeffrey Rosen

I’ve invited him to the Constitution Center. I promise to ask him as soon as he comes.

Go to: Part 1 of transcript | Part 3 of transcript



Comments: