Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: We’re joined today by Professor Randy Barnett who will discuss how the Constitution was set up to protect individual liberty. How does the structure of the Constitution work? Why is the Constitution such a powerful protection of liberty today? What role do the Amendments play? RANDY BARNETT: The Declaration of Independence is actually the legal document that established us as a polity. It's what creates the United States of America. After that, there are two tries at government. First comes the Articles of Confederation, which was discarded because it was thought to be too weak to protect and secure the rights of the people. And then came the United States Constitution, which was intended to further empower the national government to more effectively protect the rights retained by the people, that are identified in the Declaration of Independence. So you have to see all three of these documents as sort of on a continuum. First, we have the founding, established by the Declaration. Then we have the Articles of Confederation, which was one attempt to form a government that was going to be protective of these rights. Well, it turns out it wasn't protective enough and now we have the US Constitution, which was supposed to better protect or secure the rights retained by the people. To understand why the Constitution takes the form it does, we have to understand that the previous form of government, the Articles of Confederation, were considered unsatisfactory because the national government was too weak. So what was needed was a stronger central government in order to perform certain functions that only a national government could perform, but this created a problem. If you create a stronger national government, you also at the same time create a government that's more likely to abuse the rights of the individual citizenry that makes up we the people. So at the same time you want to create a stronger national government, then you want to put checks and balances on that government and that means the structural Constitution, which is an attempt to divide powers so that these powers will not be abused. The basic way that the national government was set up was to address national problems and the enumeration of powers in the national government was an attempt to identify those problems that a national government was necessary to address, leaving all other problems, some of which are extremely important, to the states, where it's not necessary that there be a one size fits all national solution. Structure's important because structure is what contains the various parts and keeps them within their limits. So it plays one part off against another part, with the idea that at the end of the day, the product that is produced by this structure will be better than one that was done by any one of the constituent parts to any alone. The two most obvious structural features of the Constitution are the separation of powers among the various branches of government, between the legislative, the executive, and the judicial branches of government. And then secondarily, the federalism structure, which separates the federal government, the national government, from the governments of the states. 50 state governments in the states. PUBLIUS: The first structural feature of the Constitution that you mentioned was the separation of powers. Can you explain what those powers are and why the Founders chose to make them independent branches of a single government? RANDY BARNETT: In his two treatises of government John Locke identified three defects in the state of nature. That is, three problems that exist before you have government, or without government. The first is the problem of individuals knowing what the law is, knowing what their rights are. It's something that every individual doesn't know, so the first is the need for some promulgated laws. Some laws so that people will know exactly how they should behave. That's provided by a legislature, or a legislative branch. The second is the power to protect themselves. Individuals can protect themselves, but they can't protect themselves against stronger people can they can't protect themselves against groups. So they need a greater ability to protect themselves, and the power to protect or execute the laws is something that's provided by an executive. Thirdly, in the state of nature what's lacking is a neutral and impartial magistrate to adjudicate disputes. People are partial toward themselves and they're not really fair minded when they get in disputes with other people. The need for an independent tribunal of justice, or a judiciary, is the third problem that government is needed to solve from the state of nature. Each of these three problems in the state of nature correspond to the three branches of the federal government. Article one, which governs the legislative power and empowers a congress to exercise the powers that are herein granted, which is the first sentence of article one. Article two, which empowers an executive branch to execute the laws, to take care that the laws be faithfully executed. And the third branch is the judiciary, who are there to ensure that all the other branches stay within their appropriate powers and to adjudicate disputes between individuals. Article one is the part of the constitution that governs legislative power. It says all legislative power herein granted shall be delegated to a congress of the United States. The herein granted refers to the expressed delegations of power that are contained in article one, section eight as well as other places of the constitutions like the 13th, 14th, and 15 amendments, which have their own enumerated powers contained within them. Congress is therefore supposed to be operating within these enumerating powers and is allowed to make all laws that shall be necessary and proper for carrying into execution these powers. Article two defines the executive branch and the executive powers, and it says all executive power shall be placed in a president of the United States. The president then has various instrumentality beneath the president, various departments and officers of the government which directly or indirectly report to the president because all powers are resided in the president and the executive branch. Now, article two doesn't define what all these powers are, it assumes that people understand what an executive power is and sometimes we debate what exactly the scope of the executive powers are. The executive powers are not enumerated in the same way that the powers of congress are enumerated. So, first of all, you have to know what inherently is an executive power and what isn't an executive power. And to do that, you might have to go back and look and see, for example, what kind of powers did various monarchs like the king of England have in their executive capacity and then see how the constitution altered that framework when it starts to put an executive within the three branches of government and power is now going to be divided amongst three branches of government. The judiciary, all judicial power is resided in the judicial branch. Again, this puts a premium on knowing what was the original conception of the judicial power, what was included within the judicial power. And included in the judicial power was what we today call judicial review. It wasn't called judicial review back then, even then it was considered simply be the duty of a judge to follow the law. And that meant following the higher law provided by the Constitution when it conflicted with any inferior laws or lower laws that would be provided, for example, by an act of congress or by a law that was enacted by a state. One more thing, so the judiciary had the power to adjudicate cases and controversies between individual parties, and that meant it had ability to decide disputes that came before it. The judiciary was not given some kind of supreme power over all the other branches of government to direct that they do this, that, or the other thing. Rather, that when a case came before the judicial branch that was for example depends on a law that was passed by congress then the judicial branch would have no choice but to ascertain whether that law was consistent with the powers of congress before it could be imposed on the people. PUBLIUS: How do the three branches balance themselves and each other? Why would a divided national government protect the rights of citizens better than a unified one? What role do the states play in this system? RANDY BARNETT: The legislative branch is divided into two bodies, the senate and the house, each of whom are elected in different ways. A bill does not become a law until both branches, both parts of the legislative branch agree that it should be a law. The senate of course is allocated by state, state by state. Two senators per state. The house is allocated by population, so it has a different kind of representation. And the idea here is the states, [inaudible 00:07:59] would get some protection in the senate from having their powers unduly restricted by the federal government and the people of the states, the individuals who comprise the states would have a more proportional representation in the house and their interests would be represented that way. But the two branches operating together provide a balance that would both protect the prerogatives of states as well as protect the rights of individuals when congress is attempting to achieve some kind of national policy in the form of a law that must then be agreed upon by a president who is elected indirectly through the electoral college by the country as a whole. And with each of these constituent parts acting on their own, and then in consort with the other, the idea here is that whatever emerges from that process is gonna be much more likely to be on the one hand good public policy, and on the other hand respectful of the rights, and powers, and privileges of all the various constitutional actors including the rights of we the people. There are those who criticize the power of judicial review, which is really the duty of judges to follow the law, because it seems to put the judiciary above the other branches of government. But that, in fact, is a misconception of how the separation of powers work. If congress decides that a particular action is beyond its constitutional powers to enact it doesn't have to pass a law. And if it refuses to pass a law because it's beyond its powers to enact a law the other branches don't get a say in that. That's congress's decision solely. If congress decides a particular action is within its powers only then will it get passed over to the executive branch for the president to decide whether he or she agrees whether such a power is within the power of congress. If the president says yes, and only if the president says yes, will the matter then go to the judiciary. Alternatively, if the president says no a super majority of congress can override that presidential veto and then it will go to the judiciary. So therefore, only if a super majority of the legislature thinks a measure is constitutional, or a combination of the legislature and the president thinks a measure is constitutional, only in that case will the judiciary have any say whatsoever. And under our system, essentially all three branches of government must concur that a measure is constitutional before it can be imposed on us, we the people. And this is an ultimate check on the power of the government as a whole, that all three branches must concur. This does not make the judiciary a superior branch, what this makes is the judiciary is an equal branch. So it has an equal say in whether a measure is constitutional along with those of the legislative and the executive branches. The end of all of this is the protection of the individual rights and liberties of the people. The end of the Constitution is to provide, for example, for a strong national defense, to protect the rights and liberties of the people. But at the same time, you don't want the government that you've empowered to protect the rights and liberties of the people to become a threat or danger to those rights. One way to stop that from happening is to separate those powers and create contending and rival power centers within the government itself, within the national government, and then between the national government and the state's government and the hope is that by checking and balancing one power against another, the rights and liberties of the people will be protected and preserved. An essential part of these checks and balances is holding all the constitutional actors within their appropriate spheres or boundaries that are provided by the structural Constitution. This requires a judiciary who's prepared to identify what that structure is and to enforce that structure against all the other governmental actors that will, over time, try to exceed the powers that they're granted under the Constitution. The federalist system that our structural Constitution provides allows for 50 competing legal jurisdictions amongst the 50 states, plus the federal government. This means there can be 50 state solutions to contentious economic and social problems, creating 50 policy approaches to these problems. This allows individuals to vote with their feet and move to the jurisdictions, the states, that have a mix or package of policy proposals that they feel the most comfortable with, that allows them to pursue happiness in a way they would desire. And this not only allows for individuals to pursue happiness in their own way, along 50 different lines, but it also eliminates or tamps down the potential social conflict that arises when you have a fight over a national government policy, in which one size must necessarily fit everyone. In other words, if you elevate all problems to the national level, then you either win at the national level or you must live under the regime that's being imposed by the people you disagree with. If you delegate these problems to the 50 states, then you can have a mix of solutions, allowing people to gravitate to those states where they feel the most comfortable and eliminate the social divisiveness that would arise from a war of all against all at the national government level. The liberty of traveling from state to state to find that mix of policies that most appeals to you is a way of protecting the individual liberties of we the people when people will disagree about exactly which policies promote individual liberty. Not everybody agrees about these things. And so by allowing 50 approaches, people will get that version of liberty that most closely fits their own conception of what individual liberty means. PUBLIUS: On the topic of states’ rights - did the Founders endorse slavery by allowing states to continue the practice under the Constitution? Weren’t the states given too much power, at least in this instance? RANDY BARNETT: Some have questioned the legitimacy of the original Constitution because they claim that the founders supported slavery and therefore anything that they did is illegitimate. In fact, many of the founders were quite opposed to slavery and the Constitution was a result of a compromise between states where slavery was abolished or was going to be abolished soon and states where it wasn't going to be abolished. And the result of that compromise was a system of federalism, in which states were given a great deal of power over their own citizenry. In fact, states had so much power over their own citizens that they could authorize some citizens to own other citizens and this tells us that under the original structural Constitution, states had a great deal of power and the federal government have very little power. If the modern reading of federal powers had been valid at the time of the founding, then the federal government would have had power to abolish slavery in the states and that's something that we know . . .the southern states would never had agreed to. This is all an argument for why the original meaning of the enumerated powers in the federal Constitution are actually quite limited.. . . With respect to slavery, the original Constitution adopted a view that the later Republican party would identify as freedom national, slavery local. And what they meant by that is that the Constitution, nationally, said very little if anything about slavery. Nationally, Congress was free to do pretty much whatever it wanted when it regulated the territories, when it regulated the District of Columbia, when it regulated federal institutions. It could be pro- or anti-slavery under the text of the original Constitution. Where the Constitution is pro-slavery, or at least sanctions slavery, is at the local level. It allows states to authorize slavery, if states wish to,. . . And it allowed states to abolish slavery where they thought it was appropriate, as many states did. So that was freedom national and slavery local and essentially what the amendments to the Constitution did, the Reconstruction Amendments did, was abolish the slavery local part of this provision. The 13th amendment made slavery unconstitutional at the local level, not just at the federal level, and that's why the Republicans promoted it. They thought it was necessary to have a constitutional amendment to change the Constitution from freedom national, slavery local to a Constitution where it's freedom national and freedom local as well. This original structure was fundamentally altered after the Civil War by the adoption of the Reconstruction Amendments, the 13th, 14th, and 15th amendments, that created new federal powers to protect citizens from having their rights violated by their own state governments. The founders were well aware of the fact that any Constitution is not perfect and is going to require change over time. The question is how to change the Constitution over time. The solution that they adopted was the amendment process, which gives Congress and the states acting together a power to amend the text of the Constitution. They did not think that Article III, judiciary, should have the power to amend the Constitution or they would have given it that power. So the judges are not supposed to be amending the Constitution. It's the people, through their representatives, that are supposed to be amending the Constitution. Unfortunately, over time, because judges have adopted what you might call "Amending Constructions of the Constitution," that serve the purpose of changing the meaning of the Constitution, this has reduced the political incentives to do the hard work of organizing in order to actually change the text of the Constitution, which is the appropriate way in which it should be changed. PUBLIUS: You’ve just discussed some of the very important later Amendments to the Constitution. What about the first ten Amendments, the “Bill of Rights”? Why were those necessary if the structural Constitution effectively protects the rights of the citizens? RANDY BARNETT: Those who oppose the Constitution, who are called the anti-federalists, demanded that there be a Bill of Rights attached to the Constitution, as there was in England and as there were with respect to some of the state constitutions, and they used the absence of a Bill of Rights as an argument for why people should not agree to ratify the US Constitution. They said, "A bill of rights is what every free people is entitled to." For this reason, the federalists promised that they would in fact adopt amendments to the Constitution, some of which would comprise a bill of rights, should the Constitution be ratified as it currently was. Then it fell to the first Congress to fulfill that promise, and in particular it fell to James Madison, who was a representative from Orange County, Virginia, to insist that the first Congress take up the matter of adding amendments and a bill of rights to the Constitution since the members of the first Congress seemed a lot more interested at that time in setting up the government and establishing, for example, taxes. They cared more about taxes than they did about the Bill of Rights. But upon Madison's insistence, they did finally adopt a committee that would propose amendments and Madison was on that committee and they eventually proposed what we now call the Bill of Rights. What we call the Bill of Rights was actually not called the Bill of Rights until sometime in the 20th Century, possibly as late as during the Roosevelt administration. Prior to that, the first ten amendments were known as the Amendments to the Constitution, some of which protect individual rights. Others are structural themselves in nature. So it's fine to call them the Bill of Rights as long as we realize that's somewhat anachronistic. When Madison made his speech proposing amendments to the Constitution, he said the first of these amendments that he was proposing could be considered something like a bill of rights. Well, if we look back and see the list that he proposed, we'll see that the first of those amendments was a general declaration of these fundamental, natural rights of individuals, very much modeled after George Mason's Declaration of Rights that was in the Virginia Constitution, the Virginia Declaration of Rights. The Bill of Rights are like lifeboats on a ship. The structural Constitution provides the structure of the ship. It's the structure that prevents the ship from sinking. You want to get on a soundly designed ship that has an appropriately structured hull and other mechanisms that's going to keep it afloat. The problem was that there were people that distrusted the structure of the Constitution to keep the ship afloat and they demanded that lifeboats be put on the ship before they would board, before they would agree to ratify it. And the lifeboats are the amendments. The express protection of individual rights, these are amendments or lifeboats that you hope you'll never use because you want the structure to do all the work, but if the structure should fail and you find yourself in the water, you'll be very grateful for the fact that those lifeboats are there. And in that sense, the first ten amendments, or what we call the Bill of Rights, are a fallback protection of individual liberty when the structure isn't working the way the structure is intended to work. To push the structural analysis still further, the ninth amendment says that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The protection of these other, unenumerated rights are like having life-jackets on the lifeboats. So the lifeboats are the enumerated rights, the life-jackets are what all that are left over, just in case that the enumerated rights aren't good enough. The rights that the structural Constitution protects are identified in the Declaration of Independence as the unalienable rights to life, liberty, and the pursuit of happiness. There are other formulations that also existed at the time of the founding, such as George Mason's Virginia Declaration of Rights, which also talks about similar natural rights. These are the background rights that the Constitution was set up to protect. And in fact, the very next sentence of the Declaration identifies the purpose of the Constitution and that is to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. So it is to secure the individual liberty rights; rights to life, liberty, and the pursuit of happiness that governments are constituted and a constitution is enacted in order to make sure that these rights are in fact secure. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class TRANSCRIPT - VERBATIM FOR YOUTUBE Transcript Thanks for joining this episode of the No. 86 lecture series, which continues the conversation in the 85 Federalist Papers about the proper structure of government. Today’s episode features Professor Randy E. Barnett, who is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center. He teaches constitutional law and contracts, and is Director of the Georgetown Center for the Constitution. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. We’re joined today by Professor Randy Barnett who will discuss how the Constitution was set up to protect individual liberty. How does the structure of the Constitution work? Why is the Constitution such a powerful protection of liberty today? What role do the Amendments play? The Declaration of Independence is actually the legal document that established us as a polity. It's what creates the United States of America. After that, there are two tries at government. First comes the Articles of Confederation, which was discarded because it was thought to be too weak to protect and secure the rights of the people. And then came the United States Constitution, which was intended to further empower the national government to more effectively protect the rights retained by the people, that are identified in the Declaration of Independence. So you have to see all three of these documents as sort of on a continuum. First, we have the founding, established by the Declaration. Then we have the Articles of Confederation, which was one attempt to form a government that was going to be protective of these rights. Well, it turns out it wasn't protective enough and now we have the US Constitution, which was supposed to better protect or secure the rights retained by the people. To understand why the Constitution takes the form it does, we have to understand that the previous form of government, the Articles of Confederation, were considered unsatisfactory because the national government was too weak. So what was needed was a stronger central government in order to perform certain functions that only a national government could perform, but this created a problem. If you create a stronger national government, you also at the same time create a government that's more likely to abuse the rights of the individual citizenry that makes up we the people. So at the same time you want to create a stronger national government, then you want to put checks and balances on that government and that means the structural Constitution, which is an attempt to divide powers so that these powers will not be abused. The basic way that the national government was set up was to address national problems and the enumeration of powers in the national government was an attempt to identify those problems that a national government was necessary to address, leaving all other problems, some of which are extremely important, to the states, where it's not necessary that there be a one size fits all national solution. Structure's important because structure is what contains the various parts and keeps them within their limits. So it plays one part off against another part, with the idea that at the end of the day, the product that is produced by this structure will be better than one that was done by any one of the constituent parts to any alone. The two most obvious structural features of the Constitution are the separation of powers among the various branches of government, between the legislative, the executive, and the judicial branches of government. And then secondarily, the federalism structure, which separates the federal government, the national government, from the governments of the states. 50 state governments in the states. The first structural feature of the Constitution that you mentioned was the separation of powers. Can you explain what those powers are and why the Founders chose to make them independent branches of a single government? In his two treatises of government John Locke identified three defects in the state of nature. That is, three problems that exist before you have government, or without government. The first is the problem of individuals knowing what the law is, knowing what their rights are. It's something that every individual doesn't know, so the first is the need for some promulgated laws. Some laws so that people will know exactly how they should behave. That's provided by a legislature, or a legislative branch. The second is the power to protect themselves. Individuals can protect themselves, but they can't protect themselves against stronger people can they can't protect themselves against groups. So they need a greater ability to protect themselves, and the power to protect or execute the laws is something that's provided by an executive. Thirdly, in the state of nature what's lacking is a neutral and impartial magistrate to adjudicate disputes. People are partial toward themselves and they're not really fair minded when they get in disputes with other people. The need for an independent tribunal of justice, or a judiciary, is the third problem that government is needed to solve from the state of nature. Each of these three problems in the state of nature correspond to the three branches of the federal government. Article one, which governs the legislative power and empowers a congress to exercise the powers that are herein granted, which is the first sentence of article one. Article two, which empowers an executive branch to execute the laws, to take care that the laws be faithfully executed. And the third branch is the judiciary, who are there to ensure that all the other branches stay within their appropriate powers and to adjudicate disputes between individuals. Article one is the part of the constitution that governs legislative power. It says all legislative power herein granted shall be delegated to a congress of the United States. The herein granted refers to the expressed delegations of power that are contained in article one, section eight as well as other places of the constitutions like the 13th, 14th, and 15 amendments, which have their own enumerated powers contained within them. Congress is therefore supposed to be operating within these enumerating powers and is allowed to make all laws that shall be necessary and proper for carrying into execution these powers. Article two defines the executive branch and the executive powers, and it says all executive power shall be placed in a president of the United States. The president then has various instrumentality beneath the president, various departments and officers of the government which directly or indirectly report to the president because all powers are resided in the president and the executive branch. Now, article two doesn't define what all these powers are, it assumes that people understand what an executive power is and sometimes we debate what exactly the scope of the executive powers are. The executive powers are not enumerated in the same way that the powers of congress are enumerated. So, first of all, you have to know what inherently is an executive power and what isn't an executive power. And to do that, you might have to go back and look and see, for example, what kind of powers did various monarchs like the king of England have in their executive capacity and then see how the constitution altered that framework when it starts to put an executive within the three branches of government and power is now going to be divided amongst three branches of government. The judiciary, all judicial power is resided in the judicial branch. Again, this puts a premium on knowing what was the original conception of the judicial power, what was included within the judicial power. And included in the judicial power was what we today call judicial review. It wasn't called judicial review back then, even then it was considered simply be the duty of a judge to follow the law. And that meant following the higher law provided by the Constitution when it conflicted with any inferior laws or lower laws that would be provided, for example, by an act of congress or by a law that was enacted by a state. One more thing, so the judiciary had the power to adjudicate cases and controversies between individual parties, and that meant it had ability to decide disputes that came before it. The judiciary was not given some kind of supreme power over all the other branches of government to direct that they do this, that, or the other thing. Rather, that when a case came before the judicial branch that was for example depends on a law that was passed by congress then the judicial branch would have no choice but to ascertain whether that law was consistent with the powers of congress before it could be imposed on the people. How do the three branches balance themselves and each other? Why would a divided national government protect the rights of citizens better than a unified one? What role do the states play in this system? The legislative branch is divided into two bodies, the senate and the house, each of whom are elected in different ways. A bill does not become a law until both branches, both parts of the legislative branch agree that it should be a law. The senate of course is allocated by state, state by state. Two senators per state. The house is allocated by population, so it has a different kind of representation. And the idea here is the states, [inaudible 00:07:59] would get some protection in the senate from having their powers unduly restricted by the federal government and the people of the states, the individuals who comprise the states would have a more proportional representation in the house and their interests would be represented that way. But the two branches operating together provide a balance that would both protect the prerogatives of states as well as protect the rights of individuals when congress is attempting to achieve some kind of national policy in the form of a law that must then be agreed upon by a president who is elected indirectly through the electoral college by the country as a whole. And with each of these constituent parts acting on their own, and then in consort with the other, the idea here is that whatever emerges from that process is gonna be much more likely to be on the one hand good public policy, and on the other hand respectful of the rights, and powers, and privileges of all the various constitutional actors including the rights of we the people. There are those who criticize the power of judicial review, which is really the duty of judges to follow the law, because it seems to put the judiciary above the other branches of government. But that, in fact, is a misconception of how the separation of powers work. If congress decides that a particular action is beyond its constitutional powers to enact it doesn't have to pass a law. And if it refuses to pass a law because it's beyond its powers to enact a law the other branches don't get a say in that. That's congress's decision solely. If congress decides a particular action is within its powers only then will it get passed over to the executive branch for the president to decide whether he or she agrees whether such a power is within the power of congress. If the president says yes, and only if the president says yes, will the matter then go to the judiciary. Alternatively, if the president says no a super majority of congress can override that presidential veto and then it will go to the judiciary. So therefore, only if a super majority of the legislature thinks a measure is constitutional, or a combination of the legislature and the president thinks a measure is constitutional, only in that case will the judiciary have any say whatsoever. And under our system, essentially all three branches of government must concur that a measure is constitutional before it can be imposed on us, we the people. And this is an ultimate check on the power of the government as a whole, that all three branches must concur. This does not make the judiciary a superior branch, what this makes is the judiciary is an equal branch. So it has an equal say in whether a measure is constitutional along with those of the legislative and the executive branches. The end of all of this is the protection of the individual rights and liberties of the people. The end of the Constitution is to provide, for example, for a strong national defense, to protect the rights and liberties of the people. But at the same time, you don't want the government that you've empowered to protect the rights and liberties of the people to become a threat or danger to those rights. One way to stop that from happening is to separate those powers and create contending and rival power centers within the government itself, within the national government, and then between the national government and the state's government and the hope is that by checking and balancing one power against another, the rights and liberties of the people will be protected and preserved. An essential part of these checks and balances is holding all the constitutional actors within their appropriate spheres or boundaries that are provided by the structural Constitution. This requires a judiciary who's prepared to identify what that structure is and to enforce that structure against all the other governmental actors that will, over time, try to exceed the powers that they're granted under the Constitution. The federalist system that our structural Constitution provides allows for 50 competing legal jurisdictions amongst the 50 states, plus the federal government. This means there can be 50 state solutions to contentious economic and social problems, creating 50 policy approaches to these problems. This allows individuals to vote with their feet and move to the jurisdictions, the states, that have a mix or package of policy proposals that they feel the most comfortable with, that allows them to pursue happiness in a way they would desire. And this not only allows for individuals to pursue happiness in their own way, along 50 different lines, but it also eliminates or tamps down the potential social conflict that arises when you have a fight over a national government policy, in which one size must necessarily fit everyone. In other words, if you elevate all problems to the national level, then you either win at the national level or you must live under the regime that's being imposed by the people you disagree with. If you delegate these problems to the 50 states, then you can have a mix of solutions, allowing people to gravitate to those states where they feel the most comfortable and eliminate the social divisiveness that would arise from a war of all against all at the national government level. The liberty of traveling from state to state to find that mix of policies that most appeals to you is a way of protecting the individual liberties of we the people when people will disagree about exactly which policies promote individual liberty. Not everybody agrees about these things. And so by allowing 50 approaches, people will get that version of liberty that most closely fits their own conception of what individual liberty means. On the topic of states’ rights - did the Founders endorse slavery by allowing states to continue the practice under the Constitution? Weren’t the states given too much power, at least in this instance? Some have questioned the legitimacy of the original Constitution because they claim that the founders supported slavery and therefore anything that they did is illegitimate. In fact, many of the founders were quite opposed to slavery and the Constitution was a result of a compromise between states where slavery was abolished or was going to be abolished soon and states where it wasn't going to be abolished. And the result of that compromise was a system of federalism, in which states were given a great deal of power over their own citizenry. In fact, states had so much power over their own citizens that they could authorize some citizens to own other citizens and this tells us that under the original structural Constitution, states had a great deal of power and the federal government have very little power. If the modern reading of federal powers had been valid at the time of the founding, then the federal government would have had power to abolish slavery in the states and that's something that we know . . .the southern states would never had agreed to. This is all an argument for why the original meaning of the enumerated powers in the federal Constitution are actually quite limited.. . . With respect to slavery, the original Constitution adopted a view that the later Republican party would identify as freedom national, slavery local. And what they meant by that is that the Constitution, nationally, said very little if anything about slavery. Nationally, Congress was free to do pretty much whatever it wanted when it regulated the territories, when it regulated the District of Columbia, when it regulated federal institutions. It could be pro- or anti-slavery under the text of the original Constitution. Where the Constitution is pro-slavery, or at least sanctions slavery, is at the local level. It allows states to authorize slavery, if states wish to,. . . And it allowed states to abolish slavery where they thought it was appropriate, as many states did. So that was freedom national and slavery local and essentially what the amendments to the Constitution did, the Reconstruction Amendments did, was abolish the slavery local part of this provision. The 13th amendment made slavery unconstitutional at the local level, not just at the federal level, and that's why the Republicans promoted it. They thought it was necessary to have a constitutional amendment to change the Constitution from freedom national, slavery local to a Constitution where it's freedom national and freedom local as well. This original structure was fundamentally altered after the Civil War by the adoption of the Reconstruction Amendments, the 13th, 14th, and 15th amendments, that created new federal powers to protect citizens from having their rights violated by their own state governments. The founders were well aware of the fact that any Constitution is not perfect and is going to require change over time. The question is how to change the Constitution over time. The solution that they adopted was the amendment process, which gives Congress and the states acting together a power to amend the text of the Constitution. They did not think that Article III, judiciary, should have the power to amend the Constitution or they would have given it that power. So the judges are not supposed to be amending the Constitution. It's the people, through their representatives, that are supposed to be amending the Constitution. Unfortunately, over time, because judges have adopted what you might call "Amending Constructions of the Constitution," that serve the purpose of changing the meaning of the Constitution, this has reduced the political incentives to do the hard work of organizing in order to actually change the text of the Constitution, which is the appropriate way in which it should be changed. You’ve just discussed some of the very important later Amendments to the Constitution. What about the first ten Amendments, the “Bill of Rights”? Why were those necessary if the structural Constitution effectively protects the rights of the citizens? Those who oppose the Constitution, who are called the anti-federalists, demanded that there be a Bill of Rights attached to the Constitution, as there was in England and as there were with respect to some of the state constitutions, and they used the absence of a Bill of Rights as an argument for why people should not agree to ratify the US Constitution. They said, "A bill of rights is what every free people is entitled to." For this reason, the federalists promised that they would in fact adopt amendments to the Constitution, some of which would comprise a bill of rights, should the Constitution be ratified as it currently was. Then it fell to the first Congress to fulfill that promise, and in particular it fell to James Madison, who was a representative from Orange County, Virginia, to insist that the first Congress take up the matter of adding amendments and a bill of rights to the Constitution since the members of the first Congress seemed a lot more interested at that time in setting up the government and establishing, for example, taxes. They cared more about taxes than they did about the Bill of Rights. But upon Madison's insistence, they did finally adopt a committee that would propose amendments and Madison was on that committee and they eventually proposed what we now call the Bill of Rights. What we call the Bill of Rights was actually not called the Bill of Rights until sometime in the 20th Century, possibly as late as during the Roosevelt administration. Prior to that, the first ten amendments were known as the Amendments to the Constitution, some of which protect individual rights. Others are structural themselves in nature. So it's fine to call them the Bill of Rights as long as we realize that's somewhat anachronistic. When Madison made his speech proposing amendments to the Constitution, he said the first of these amendments that he was proposing could be considered something like a bill of rights. Well, if we look back and see the list that he proposed, we'll see that the first of those amendments was a general declaration of these fundamental, natural rights of individuals, very much modeled after George Mason's Declaration of Rights that was in the Virginia Constitution, the Virginia Declaration of Rights. The Bill of Rights are like lifeboats on a ship. The structural Constitution provides the structure of the ship. It's the structure that prevents the ship from sinking. You want to get on a soundly designed ship that has an appropriately structured hull and other mechanisms that's going to keep it afloat. The problem was that there were people that distrusted the structure of the Constitution to keep the ship afloat and they demanded that lifeboats be put on the ship before they would board, before they would agree to ratify it. And the lifeboats are the amendments. The express protection of individual rights, these are amendments or lifeboats that you hope you'll never use because you want the structure to do all the work, but if the structure should fail and you find yourself in the water, you'll be very grateful for the fact that those lifeboats are there. And in that sense, the first ten amendments, or what we call the Bill of Rights, are a fallback protection of individual liberty when the structure isn't working the way the structure is intended to work. To push the structural analysis still further, the ninth amendment says that the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. The protection of these other, unenumerated rights are like having life-jackets on the lifeboats. So the lifeboats are the enumerated rights, the life-jackets are what all that are left over, just in case that the enumerated rights aren't good enough. The rights that the structural Constitution protects are identified in the Declaration of Independence as the unalienable rights to life, liberty, and the pursuit of happiness. There are other formulations that also existed at the time of the founding, such as George Mason's Virginia Declaration of Rights, which also talks about similar natural rights. These are the background rights that the Constitution was set up to protect. And in fact, the very next sentence of the Declaration identifies the purpose of the Constitution and that is to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. So it is to secure the individual liberty rights; rights to life, liberty, and the pursuit of happiness that governments are constituted and a constitution is enacted in order to make sure that these rights are in fact secure. Thank you for listening to this episode of the No. 86 Lecture series: Continuing the Conversation in the 85 Federalist Papers about the proper structure of government. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!