The Bill of Rights - 800 Years in the Making (Lawyer Explains)
Jake the Lawyer
https://www.youtube.com/watch?v=mP1qNrRF3p0

Transkript (automatisch erstellt)

0:00 Okay, here's the deal. The Bill of Rights, the first 10 amendments of the US Constitution, isn't just some old useless list that we can probably do
0:09 away with. >> Hell yes, we're going to take your AR-15, your AK-47. >> It's a foundational text with an 800year
0:16 history going back all the way to the Magna Carta that recognizes the free rights of man, the rule of law, and the necessary restrictions on government to
0:23 defend against tyranny. I'm Jake the lawyer, and welcome back to [music] Internet Esquire.
0:31 Unfortunately, today in America, we tend to gloss over the Bill of Rights as either something just suggested or something at best that a few wise old
0:39 men came up with a really long time ago. In reality, it is nothing short of remarkable, a continuence of basic concepts of individual freedoms and
0:47 liberties dating back 800 years that is still also legally and culturally essential to modern American life. In fact, most people don't know this, but
0:55 the Bill of Rights made the Constitution [music] possible and therefore modern America along with it. [music] Now, if you
1:03 already find this interesting, make sure you subscribe because next week I'm going to be doing a full breakdown on all 10 amendments of the Bill of Rights
1:10 in simple terms that anybody can understand. Until then, let's explore exactly why the Bill of Rights made America possible, getting into the
1:18 history and the drama that gave rise to its existence. Okay, most people don't know this either, but the Constitutional
1:26 Convention of 1787 did not initially meet to draft a new constitution. At first, they met to amend the Articles of Confederation, which were the governing
1:37 documents of the national government of the day. But obviously, we know from history that's not what happened during the convention. Soon after they met, the
1:45 framers began drafting a new constitution and they threw out the Articles of Confederation. The goal of the new constitution was to create a
1:54 stronger central government, although still limited in power, and it contained no Bill of Rights. And by September 1787, the final draft of the
2:04 Constitution was done. It was signed, but it was still not law yet. You see, it needed ratification of nine out of the original 13 states in order to
2:13 actually be operative. Two groups immediately formed, Federalists and Anti-Federalists. Federalists supported the new constitution and wrote the
2:21 federalist papers to try and persuade public opinion that the new government was a strong but limited federal government. They argued that a bill of
2:30 rights was not necessary to the constitution because the constitution inherently limited the amount of power that the central government could have.
2:38 These main federalists, Alexander Hamilton, James Madison, and John J, had an argument something like this. The federal government can only do what we
2:47 specifically give it the power to do. So if we didn't give it the power to violate rights, why should we list those rights? But the anti-federalists had an
2:56 entirely different view. If you create a powerful national government and do not explicitly spell out what it cannot do, it will eventually do those things. Now,
3:08 with the advantage of history behind us, we can say that it's rather weird because even when you do explicitly spell things out, it still might do or
3:16 try to do the things that you say it cannot do. It's it's just one of those things. Anyway, this anti-federalist position wasn't completely unfounded. In
3:25 fact, it was wellfounded. They had just gotten done fighting a war for 9 years against the British crown as a result of British tyranny. So the anti-federalists
3:33 insisted that a bill of rights be added to the constitution because they didn't trust any government, especially one that was located hundreds of miles away
3:41 from the people that had it governed. They wanted explicit protections of individual rights and did not support ratification of the Constitution unless
3:50 a bill of rights was added. And they wrote the anti-federalist papers to persuade public opinion to their point of view. So when the final draft of the
3:59 Constitution began going out between late 1787 and mid 1788 to all of the states for ratification, the Federalists and anti-federalists duped it out over
4:09 these matters via essay, of course. Now during this period, there were five states to ratify early without any amendments. North Carolina and Rhode
4:19 Island, however, refused to ratify at all until a bill of rights could be added to the Constitution. And then came the Massachusetts compromise where the
4:28 state of Massachusetts alongside Virginia and New York, two other huge states of the day, said, "We'll agree to ratify the Constitution if you agree to
4:36 immediately add a Bill of Rights right away." This compromise eventually allowed for final ratification of the Constitution in June of 1788, and it did
4:45 not yet have a Bill of Rights. But ratification was just the first step. While it did make the Constitution legally operative, it did not make it
4:55 politically final. This would not come until the Bill of Rights was added, which was [music] promised in the Massachusetts Compromise. So, when the
5:02 first new federal government began meeting in March of 1789, James Madison, a staunch federalist, took up the issue of crafting a bill of rights and having
5:13 it ratified as the first 10 amendments [music] to the Constitution. Now, you might say, Madison, that's a little weird. He was a federalist. Now, why
5:20 would he go ahead and try to add a bill of rights to the Constitution if [music] as a federalist he was probably against that? Well, Madison realized that
5:28 although the Constitution was legally operative at that time, it was not going to be politically legitimate until that bill of rights was added. The reason for
5:37 this is pretty simple. A lot of times today, people think that the federal government is just this huge thing that can sort [music] of do whenever it wants
5:43 whenever it wants. But this was not true at the beginning when the Constitution was ratified. In fact, the federal government was like a newborn baby
5:50 stumbling around. The individual states could have easily killed not just the Constitution and the new federal government, but the entire Union itself
5:59 if they didn't politically like what it had to offer. States like Virginia, Massachusetts, and New York alone were way more powerful than the new central
6:08 government. Maybe it should still be like that. Federal Housing Association, the Department of Homeland Security. Getting these key states to agree both
6:17 legally [music] but also politically was absolutely critical to the entire thing. So in September of 1789, Madison got to work adding a total of 19 original
6:29 amendments to the new US Congress at the time. And then they got to work either condensing or cutting them down into what would become the actual 10
6:38 amendments in the Bill of Rights. But there was one more hurdle that had to be jumped over before the Bill of Rights could be added. To amend the
6:46 Constitution required a threearters ratification by all of the states. And as Vermont was now being added as the 14th state, the burden of how many
6:56 states had to ratify went from 10 to 11. So by late [music] 1791, with 10 states having ratified the new Bill of Rights, Congress needed one more. And while any
7:07 one of the remaining states could have ratified the Bill of Rights, that would not have made the new amendments politically binding and therefore the
7:16 Constitution itself politically binding. They needed Virginia, one of, if not the leading state of the [music] day. This finally happened on December 15th, 1791.
7:27 The three quarter majority requirement was met and the new Bill of Rights was born. [music] And thanks to the anti-federalists and the states who
7:35 demanded that a bill of rights be added, there were now constitutional safeguards protecting individual liberties in this new federal system, which is great. But
7:46 the history of how we got to those [music] rights has its own fascinating origins. The intellectual inspiration for the
7:56 American Bill of Rights was George Mason, a founding father of the time who also wrote the Virginia Declaration of Rights. These rights were then picked up
8:04 by James Madison when he went to make the original proposals. But both Mason and Madison didn't get these ideas out of nowhere. In drafting these rights,
8:14 they were pulling upon an 800year history dating back to concepts first established in the Magna Carta. The Magna Carta of 1215 AD. That's ano
8:24 dominy. >> Us Latin doll. Evidently, Mr. Ringo is an educated man. >> We don't say CE on this channel. We say
8:31 ano dominy, which means the year of our Lord because Jesus Christ is Lord. CE. We're just going to say CE because like AD could be offensive to some people.
8:42 Get that trash out of here. Okay, let's start at the beginning in medieval England where a group of angry baronss got so mad at their king that they
8:50 raised their own armies, marched to London, and demanded some gosh dang respect. In 1215, King John of England was broke,
8:58 unpopular, and terrible with money. The English barons, who were basically the upper class landowners of the time that actually ran Jon's kingdom for him, had
9:07 had enough. You see, John was demanding huge sums of money from the baronss in order to fund his wars, which he was then losing. And in 1204, for example,
9:16 he had lost most of England's claims within France, and after losing those wars, turned around and blamed it on the baronss, and then just demanded more
9:25 money from them. But it wasn't just about the money. John was notorious for seizing property without cause, imprisoning people he didn't like,
9:33 selling justice to the highest bidder, and ignoring the traditional rights of the noble class that actually ran his kingdom. So finally, after enough years
9:41 of tyranny from good old Johnboy, the barrens got together and with their own armies forced him to bargain. The outcome of this negotiation was the
9:49 Magna Carta, which is otherwise known as just the great charter or more directly the great paper. The great paper. Do you remember the great paper, sir, of 1215?
10:00 Ah, yes, I remember the great paper. Do you know how damn expensive paper was back then? I had to sell two horses just to write my daughter a birthday card.
10:08 Now, to be clear, the Magna Carta wasn't some magical document that created a constitutional republic or the right to vote or recognize that all men are
10:17 created equal. No, it was it was very simple. Specifically, there were two revolutionary ideas that did not exist beforehand. The first one was the idea
10:27 of the rule of law and the second one was the idea that there are certain rights which belong to the people which cannot be taken away by anybody even the
10:36 king. In its most basic form the Magna Carta explicitly stated that the king's power had limitations that those had enforcable limitations and if he went
10:46 beyond those limitations his power could be taken away from him. This sounds obvious to us today, but at the time it was a relatively shocking legal
10:55 development. This was the first time where the rule of law stood above a king and now even the king himself was a subject of the law. The second thing was
11:07 the people's rights. The basic idea that the people at least the free people who were the baronss alongside King John had certain rights that could not be taken
11:17 away by the government. And this is where we begin to see the essence of our own bill of rights come to shape. The Magna Carta established the earliest
11:27 written frameworks in the following areas. Due process of law. It stated specifically, "No free man can be imprisoned, dispossessed, exiled, or
11:36 killed except by lawful judgment or the law of the land." This is obviously the legal ancestor to due process, but it's also the legal ancestor to concepts like
11:46 habius corpus and the right to a fair trial. And this was a huge revolutionary step in a world where kings could just jail people for whatever reason.
11:56 Taxation would require consent. The Magna Carta established that the king could not raise taxes without the consent of these other nobles. This is
12:05 the legal ancestor to no taxation without representation. property rights were protected. The Magna Carta asserted that the king could not arbitrarily
12:14 seize property, the legal ancestor to no unwarranted searches and seizures and the protection of general property rights. It also said the church is free
12:23 from royal interference. Kings could not appoint bishops or give dictates to the church and obviously this is the legal ancestor to the establishment clause and
12:34 the free exercise clause of the first amendment. It also had an interesting thing called an enforcement council. This enforcement council was a council
12:42 of 25 baronss who were empowered with the ability of monitoring the king and could legally seize his property if he decided to break with the charter. In
12:52 part, this is the ancestor to parliamentary and congressional approvals. And while there had been other charters and agreements signed by
13:00 kings before the Magna Carta, the Magna Carta is distinct because it not only established individual liberties, but it also made those individual liberties
13:11 enforcable. It made the king not subjects to his own reasons and laws. It made him subject to the laws of a nation. And for the first time, it put
13:20 the rule of law above the king. Also, I'm pretty sure since the Barren had already gotten together, drove to London, and forced King Jon to the
13:29 bargaining table, I'm pretty sure that if he didn't agree to any of this, well, they probably would have just killed him and then installed a new king amongst
13:36 themselves who would have agreed to it. So, you know, I think it worked out pretty well for him to be honest. Okay, fast forward 400 years and this is
13:46 where things start to get interesting. You have our greatgrandfather, the Magna Carta, over here. But now, imagine this. Let me tell you a little story. Imagine
13:54 it's the year 1628 and you are King Charles I of England. Well, enough time has gone by where you've sort of forgotten about the parameters of that
14:03 dusty old charter. And so you decide to try a couple things without the consent of, you know, Parliament. Things like levying taxes without parliamentary
14:10 approval, quartering soldiers in the homes of your civilians, and you know, other things like light things, uh, imprisoning people just because you
14:18 don't like them without any criminal charges at all. So you start doing this for a few years and your parliament starts to get a little itchy. You know,
14:24 they're they get a little nervous. So here's what they do. They draft what's called the petition of right and they bring this to you for the red address of
14:33 grievances. In English, that means like, "Hey, can you please stop doing what you're doing formally?" It demanded no taxation without parliamentary approval,
14:44 no arbitrary imprisonment, no quartering of soldiers in people's homes, and no martial law in peace time, meaning that you cannot use a standing army during
14:53 peace time to enforce civil law without parliamentary approval. So, as King Charles I, they kind of got you by the shorthairs a little bit. And so, you
15:02 agree to sign the petition of right, but you don't agree to sign it because you actually agree with them. Being the tyrant that you are, you sign it because
15:11 you just want them to go away. Charles the First signed the petition of right and then immediately ignored it and then a year later went even further. He just
15:21 disbanded Parliament. >> It's a bold strategy, Cotton. Let's see if it pays off for him. Can you guess what happened next? Well, he cast the
15:29 entire kingdom into chaos for the next 60 years. First, Charles ruled without a parliament as an absolute tyrant for 11 years in what is literally known as the
15:40 11 years tyranny. The English aren't that creative with names, but they certainly do tell you exactly what happened. His name is John Shoemaker.
15:48 His name is John and he's a shoe maker. I don't know what's confusing about that. Well, after enough years of tyranny, the former members of
15:55 Parliament raised their own standing army. And of course, when Charles saw this, well, he raised a standing army of his own. And then the English Civil War
16:04 kicked off in 1642. And while this ended with the execution of Charles in 1649, I don't know why it took 7 years for them to cut his head off, but that's how long
16:13 it took. This, unfortunately, was not the end of the turmoil. After killing Charles I, the English Parliament was then reinstated and there was a very
16:22 short-lived Commonwealth period where there was actually a republic and they did away with the monarchy. But like many young republics without
16:29 constitutional safeguards to protect not only the form of government but also individual liberties, it quickly fell into military desperatism. And a man
16:38 named Oliver Cromwell rose to power. In 1653, Cromwell took over and once again disbanded Parliament, reforming the government into what was known as the
16:48 Protectorate, naming himself as Lord Protectorate, which why do dictators always have the cringiest names? I am not a king. I will not call myself a
16:59 king. I took over with the military and now I am Lord Protectorate of the realm, Sir Oliver Cromwell. This is just so bad. Well, this little dictatorship
17:09 didn't last for very long and eventually Cromwell died and his son tried to take over, but his son was weak and eventually this leads to King James II.
17:18 That's right. They reinstated the monarchy and uh well, who took over? One of Charles the first's sons. The problem was that James II was much like his old
17:27 man. He suspended laws, did things without the approval of Parliament. He tried to pack the government with loyalists. And then he also tried to
17:36 raise his own standing army in peace time. So fearing another absolute monarchy and another 60 years of chaotic hell, the parliament did something
17:46 dramatic. They went to William of Orange and his wife Mary who was the eldest daughter of James himself and they said, "Hey, do you guys want to come down here
17:55 and well just invade?" Yeah. And then you can get rid of James and you two will become king and queen. Well, William and Mary agreed to this, and
18:04 this was known as the Glorious Revolution. Once again, not super creative, but definitely on point. And while the Glorious Revolution helped
18:13 bring the chaos, which began with Charles I and the petition of right [music] to an end, Parliament had wised up. Before William and Mary took over,
18:21 they added a few conditions. Provisos? You mean limitations on wishes? namely the English Bill of Rights in 1689, the grandfather of the American Bill of
18:33 Rights. Unwilling to repeat the mistakes that led to Lord Protector Cromwell, Parliament wrote down in no uncertain
18:41 terms exactly what was expected of William and Mary before they took over. And looking at the text of the English Bill of Rights, you can easily see the
18:49 influence it had on our own Bill of Rights. It had things like freedom of speech. Quote, "The freedom of speech and debates or proceedings in Parliament
18:58 ought not to be impeached or questioned in any court or place out of Parliament." Well, this freedom of speech was limited to things said within
19:05 the Parliament. It was a huge step in saying, "Hey, we're going to be able to say whatever we need to say because that's the best way to run a country."
19:14 It had the right to petition government. quote that it is the right of the subjects to petition the king and all commitments and prosecutions for such
19:22 petitioning are illegal, meaning if we come to you and we have a matter that we want to solve, you can't punish us for doing so. It also had the right to bear
19:32 arms. Quote, the subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law. Now, this bit about
19:40 Protestants is funny because they had just got done fighting James II, who was Catholic, and given that they had to raise an army against him in order to
19:48 get the country back, I I can see why they were a little hesitant about giving Catholics guns at the time. I mean, hell, look at Boston today.
19:55 >> Put your hands in the >> It also had no cruel and unusual punishments. quote that excessive bail ought not to be required, nor excessive
20:06 fines imposed, nor cruel and unusual punishments inflicted. As you can see, the resemblance to our own Bill of Rights is much, much stronger in the
20:15 English Bill of Rights than it was in the Magna Carta. And this brings us back to our earlier point. When George Mason sat down to write the Virginia
20:23 Declaration of Rights and then later James Madison took that influence and drafted what would become our Bill of Rights, they weren't just coming up with
20:31 these things out of thin air. They were looking back through history, seeing how tyranny had led to war and how war had led to revolution and how revolution had
20:41 led to an explicit list of demands that the government shall not violate. And having lived through that most recent version of history during the American
20:51 Revolution, I'm sure that the founding fathers looked around at each other and said, "Hey, these are a pretty good idea."
20:57 Now, an interesting [music] point in history, we often look back at the American Revolution and just sort of meld it together with the drafting of
21:05 the Constitution. But in reality, there was a few very important things that happened between the Revolution and the Constitution, specifically state
21:15 sovereignty. [music] Prior to the US Constitution, the states had their own state constitutions and their own bills of rights that were
21:22 supreme to the authority of the central government. The articles of confederation, which were the governing documents for the central government
21:30 after the revolution and before the constitution can confirm this. And this is fundamentally different from how things work today. You see, after the
21:39 Revolutionary War kicked off in 1775, the idea was that after things cooled down and the war was over, the United States of America would be well, exactly
21:49 that, a union of sovereign, free, and independent states, where central government authority was derivative of state authority, not supreme to it. And
22:00 under the articles, each state kept [music] its own powers. They could print their own money. They could even levy tariffs against other states. and in
22:08 general just ran their own little country. Well, they couldn't raise armies and the central government could. The problem with that was that if the
22:15 central government wanted to raise an army, they had to go to the states and request [music] men and money in order to do so. And each state could choose
22:24 how much men and money it wanted to give. They had to do it under what was called a requisition. If they needed tax money, for example, they had to go out
22:33 to the states and say, "Hey, we're looking to raise this much money." And then the state could choose whether or not it wanted to give some, all, or none
22:43 of whatever the thing requested was. Beautiful. Maybe we should get back to that a little bit. Just tiny little itty bit. Under this system, the national
22:52 government was so deliberately weak that it had almost no authority at all. So under this system, who was responsible to protect individual rights? Well, the
23:04 states. This is why when the revolution began, the states immediately began drafting their own constitutions with their own bills of rights. In fact,
23:14 while the US Constitution is the oldest written national constitution still in use today, [music] the oldest written constitution still in use today is that
23:24 of the state of Massachusetts, written in 1780. >> The spirit of Massachusetts is the spirit of America, [music]
23:31 the spirit of what's old and what's new. So, here are some examples of what these early bills of rights said in these early state constitutions. The Virginia
23:42 Declaration of Rights, which we know from earlier was written by George Mason, had things like this in it. It declared that all men are by nature
23:49 equally free. It protected freedoms of the press, jury trials, and property rights, and it limited searches and seizures. The Pennsylvania Constitution,
23:58 written in 1776, is one of my personal favorites, just because they sort of just frankly tell you exactly what they want. Here's a few examples of what
24:07 theirs said. [music] Natural rights. All men are born equally free and independent and have inalienable rights, including life, liberty, property, and
24:16 pursuing happiness and safety. Freedom of religion. All men have a natural and unalienable right to worship Almighty God according to the dictates of their
24:25 own consciences. And no man can be compelled to attend any religious worship. Freedom of speech. People have a right to freedom of speech, of
24:33 writing, and of publishing their sentiments. Therefore, freedom of the press shall not be restrained. The right to bear arms. People have a right to
24:41 bear arms for the defense of themselves and the state. How did we mess that up? Freedom of assembly. People have a right to assemble, to consult for their common
24:50 good, to instruct their representatives and petition the legislature for the red address of grievances. The cool thing about the Pennsylvania Constitution is
24:58 that it paired the things it listed in the Bill of Rights with the plan and framework of the government itself. For example, the right to bear arms also
25:07 required that the free men of this commonwealth and their sons shall be trained and armed for its defense. The freedom of assembly required that the
25:16 doors of the House of Representatives be open to all people, at least all people who behave decently. Anyway, they also had term limits for Congress, saying
25:26 that no person could serve in Congress for more than four out of every seven years. Even that would help. Run by a bunch of dead geriatrics on
25:35 pharmaceuticals. Oh my god. and other states such as Maryland, North Carolina, New Hampshire, and Massachusetts also had their own
25:44 written constitutions with their own bills of rights and similar written protections to varying degrees. You see, the problem under the Articles
25:53 of Confederation is that while it did create a semblance of a central government, that central government was almost too weak. That all changed with
26:03 the constitutional convention of 1787 and the introduction of a US Constitution that in the document said it was going to be the new supreme law
26:13 of the land. But let's take a little pause here. At the time, states were still responsible to protect individual liberties. If the new constitution is
26:24 now the supreme law of the land, how could the states guarantee protection of individual rights to their citizens? While the federalists argued that the
26:33 constitution is an inherently limited document, meaning that it only gives away the express [music] powers that are written down in it, this
26:42 wasn't quite good enough for the anti-federalists. And they said, "Hey guys, look, we have 800 years of history here to tell us that if we don't
26:50 expressly state what the government cannot touch, it is eventually going to try to touch those things. [music] And we do not want that to happen." So with
26:59 the Massachusetts compromise and now the new federal congress, James Madison got to work to actually bring this compromise in the form of the Bill of
27:08 Rights as the first 10 amendments to the Constitution. [music] And in doing so he drew upon these state constitutions which would have been very
27:17 familiar language to the founding fathers of the time. And eventually this worked. It was both the legal and political compromise that was needed to
27:26 ensure that the new federal government would also protect individual rights in the same way that the state constitutions [music]
27:33 had done before it. And finally, with enough time and enough debates between the Federalists and the Anti-Federalists, they were able to use
27:40 compromise to their advantage and add the Bill of Rights to the Constitution politically and legally, binding a new federal system together. Now, don't get
27:50 me wrong, there is a huge amount of legal history and doctrine that we need to go over after the period of the Bill of Rights being ratified. But for now,
28:02 that is the fascinating history of how the US Bill of Rights came to be, the 800-year history it drew upon for its language and its context, and of course,
28:10 how it helped make the Constitution possible, which makes modern America possible. [music] So, if you liked this video, again, please consider
28:18 subscribing because next week I will be doing a breakdown of all 10 amendments of the Bill of Rights in simple terms that anybody can understand. Well,
28:26 hopefully anybody can understand. and I'll try to do my best to keep it simple. But anyways, thank you for watching. Thank you for recommending
28:32 this series of videos to me in the comments. If you have other video recommendations that you would like to see me do, let me know in the comments
28:40 below. And uh that's it. I'll see you on the next one. I hope you're having a wonderful day. And uh stay classy out there, people. All
28:51 right. Bye.