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Stanford University and his main field of interest are the History of American Constitution Making and the political and intellectual history of the early American Republic but he also did extensive research in respect of the life and political assault of James Madison. For example, he published several works about this topic and he received a Pulitzer Price for History in 1997 for his book and titled Original Meanings about the implications of the federal constitution and he was guest professor at several universities and he was also the elected president of the society for the historians of the early American Republic. So I would like to ask Rakove to present his paper. Thank you. I would like to say I'm happy to be back in the Budapest for the second time in a decade and to be here with my good friend Gordon Wood and Peter Olive the three amigos (indiscernible) on this trip. Much of my talk will in fact build upon some things that Gordon said in the previous hour but I'm going to focus much more specially on questions of rights and I want to start with a contemporary reference or actually by describing two contemporary debates in the United States the two fairly famous debates about issues of rights. The first has to the first has to do with abortion and the second has to do with the right to be Arms so as I'm sure virtually every virtually everybody in this room realizes these are two issues which have political implications which in some ways were have been very distinctive to the United States. Well, I like to do is say something about the constitutional dimensions of these contemporary debates and then go backward 200 years and try to explain how our contemporary debates illustrates certain critical aspects of the process of trying to constitutionalize rights in the late 18th century where supposedly we may now call the process of the trenching rights in the constitutional document. So what is the abortion debate in the United States about? We could say it's a moral debate because it does have profounding moral dimensions in terms of how one thinks about the origins of human life and fundamental issues of autonomy but as a constitutional question the debate that began with the Supreme Court's famous decision in Roe v. Wade of 1973 can be cast in these terms. What the effect of the Roe vs. Wade decision had was to say that the women's right to undertake an abortion as a voluntary measure had been elevated to a constitutional status. It was still subject to some legislative regulation and we have been debating how much regulation is possible almost ever since but there is some core fundamental right of a constitutional nature that the decision of having an abortion represents and of course why why has that claim the controversial for two basic reasons. The first is that anybody opens up the text of the constitution will find no reference to abortion or anything that looks like abortion within the four corners of the document so the question of how you can constitutionalize a right which is not exclusively mentioned in the text of the constitution has been a rather serious problem for American jurisprudence ever since. And then second is the question even assuming it's a constitution right who gets to say so. And the as I'm sure everybody in this room knows or should know the fact that the right was constitutionalized by the institution of the Supreme Court without having a firm textural basis has in term led to renewed long standing questions about the nature and the extend in the limits of judicial power in the United States. And I think its fair to say that most of the - and perhaps not every dispute we have had about Supreme Court appointments since 1973 has been about abortion but its fairly obvious and I think fairly transparent that the question of the fate of these the viability of Roe v. Wade has been the single most important background factor no, the foreground factor that has made all our Supreme Court appointments since then so highly charged and often so controversial. Now, if you want to defend the abortion decision we need to just add what are the point here the abortion decision was also as a constitutional matter is a is also been part of a larger debate about the right to privacy which was first propagated in the earlier decision Griswold v. Connecticut which was about contraception. And in the Griswold case of 1965 the famous language used by Justice Douglas I'm not sure how well this how easy this will translate into Hungarian (Demazure). Justice Douglas in his opinion said penumbras formed by emanations from the bill of rights establish zones of privacy into which the authority of the state cannot intrude. The key phrase there was key phrases were penumbras formed by emanations establish zones of privacy. In to use a metaphor like penumbras formed by emanations was so abstract was so wild a move that it was easy to lampoon or to disparage. In a concurring opinion in that in that case in the Griswold case Justice Goldberg who had a fairly brief term on the court suggested that we can the alternative path would be to use the first text that he put up over here which is the text of the Ninth Amendment which I noticed (indiscernible) seems to know by heart already because the enumerations certain rights in this constitution shall not be construed to deny or disparage others retained by the people. Disparage in English is a wonderful verb which means to sometimes used to make fun of would be a kind of colloquial translation but so the Ninth Amendment might have been potential source for the abortion decision. Why? Because it says that even though remunerated when we write a bill of rights we are enumerating x numbers specific rights. There may be some other body of rights out there. So even while we are constitutionalizing some amendments we are not precluding the existence of other rights. The problem with the Ninth Amendment is it doesn't tell us how to identify what those other right might be. If you are someone like my occasional colleague in New York University (indiscernible) then you know you may have a powerful moral basis to figure out what those rights are but there is no obvious way to do so. So the abortion debate the question of how do you identify unenumerated rights is my first point of reference for my historical remarks. The second, I can do this more more simply is one of the other great issues of constitutional rights which we agitate periodically in the United States and which - you know, and which absolutely flabbergasts or stuns people in other societies. You know Americans believe there are constitution tells us we have a right to bear Arms, the Second Amendment says and I'm sure this language is familiar to some of you, "A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms shall not be infringed." Here the question is not here we have enumerated right and the question is what is this specific language of the Second Amendment mean and we have big debates about how do you define the Militia? Does Militia mean you have to be as I once was a member of the United States Army Reserve? Or does it mean that any citizen capable of defending the liberty of the society is part of a more general Militia which is not an institution but really is a state of mind. What does it mean to keep and bear Arms? Is that only a military term or can it apply to ordinary private individuals as well? So here we have a second problem of rights which is that our interpretation of them depends can be highly depended upon the specific language within which their couch and even though we all know as philosophers that the whole concept of rights is extraordinarily open-ended, difficult, ambiguous, philosophically rich and philosophically very complicated. Our legal discussions are often times bound to very specific text and the question how you how you translate a broad principle into a specific narrowly tailored text or narrowly grown text raises some really interesting issues of interpretation. Okay. So those are my two contemporary points of reference. Two are the major debates in the contemporary United States about the nature extended constitutional rights. The first involving the problem of Unremunerated Rights which have been elevated to a constitutional status, the second involving the question of an 18th century notion which we have to make confident to a 21st century world. And I will come back at the very end of my remarks and I will say something more about these things. But now what I want to do is go back to that 18th century world that Gordon would began describing in the process of constitutional formation which was so striking and aspect - indeed was the most striking aspect to consequence of the American Revolution. And what I would like to do in my remarks is try to is to kind of amplify or kind of give you a condensed version of the talk I sometimes give under the title "The Dilemma of Declaring Rights" by which I mean to suggest something about the what did Americans think about when they began adopting bills of rights in the late 18th century. What did they think they were doing? What was the nature of a bill of rights or declaration of rights? What function was it supposed to serve? What legal authority did it have? And this in a certain sense is a important but supported chapter of the story that Gordon Wood was telling in his earlier remarks, because in fact what's taking place is the documents which previously had a constitutional quality in a general sense but we are not really legally authoritative, become part of the great transformation in the meaning of what a constitution is that was again as Gordon explained so much a part of the late 18th century revolutionary developments. And what I am going to do is try is try to identify four phases or - you know, four aspects in the development of the modern definition of a constitutional declaration of rights. And so what I am going to do is I am going to start in the very end of the colonial period before 1776 say something about 1776, say something about 1776 to 1780 and they say - then say something about 1787 to 1791, big historian I can only think in terms of specific dates. The concepts are vague but the dates mean a lot to me and so I am going to try to explain to you why dates matter in terms of the development of conceptions of what bills of rights were and what functions they are meant to serve. So suppose you suppose we can bring an American colonist let's say somebody like John Adams into the room now right with us today and the date is going to be 1765 and we going to ask him, what is a bill of rights? Or what is a declaration of rights? What authority does it have? What function does it serve? Well, and it's a good point to remember of documents that Anglo-Americans had available to them. He could point to the declaration of rights of the parliament from 1688, '89. He could point to different kinds of declarations of rights that the American colonies had individually adopted which were parts of their colonial charters. So he could say and yeah, we would look into those rights and then we would find some familiar statements. Lot of stuff derived from Magna Carta for example would be there. But we ask the question what function would those documents serve? Do those documents establish legally enforceable claims? Were they legally binding upon anybody? The short answer would probably be no. The declarations of rights function first and foremost as statements of principles. Sometimes they identify common law procedural rights, you know, the right to trial by jury, the right to confront witnesses and so on, the right to be secure against cruel and usual punishment. But none of those statements would be thought of as absolute as we would now think of them as absolute restrictions upon the authority of government. There were statements of principles. And if you ask Americans Anglo-Americans, where did the rights come from? Nobody would say our rights came from the declaration of rights. You would say your rights had other sources had other points of origin. They came from custom. They came in the case of the American colonists a good argument was they came because our ancestors carried them with them. They were just part of the baggage that accompanied Americans from England to the New world and if god forbid we forgot to pack those rights in our baggage the very act of setting up a new society, a new in fact was our effort to reclaim those rights. So bills of rights were not thought of its being legally authoritative. They were not thought of as being the sources of the rights that we exercise that we possessed. So we have natural rights, we have customary rights, perhaps we have divine rights, we have rights, we have obtained by virtue of our own labor and so on. Bills of rights declarations of rights confirm what those rights are but they don't establish them, they don't create them. That's the staring position. That's where John Adams or somebody else would have said and then my one of my colleagues and friend of ours (indiscernible) the the American legal history, John Philip Reid who has written extensively and he says - if you look at the kinds of arguments that Americans make about where do our rights come from Reid identifies at least 10 different kinds of arguments 10 different kinds of sources of rights. And none of them really depends upon the existing the black letter law of a written text. You know natural right, custom, migration, tradition - you know English tradition, god given and so on and so on. That's - that's T sub-one, that's our first stage. T sub-two - our second stage, it's what happens in 1776 when Americans start writing the constitutions that Gordon was describing. Well, when they started writing those constitutions they also they not - in most cases, though not quite all, they also began adapting declaration of rights. And now they were doing so, I think in somewhat for the I think for the same function, the same purpose, but in a somewhat different and somewhat charged context. The Americans being the literal binding Prudential's, the kind of bad county bumpkins though educated that they were, thought that they then 1776, that they they have been literally reduced to something like the state of nature or if not the state of nature, the condition that John Locke called a dissolution of Government. Not just the disillusion with government if could make a pun here to get a (indiscernible). Not just not just the disillusion with government that we all feel but the dissolution, the dissolving of government which is what happens in a revolution. And so, Americans being, you know, somewhat literal minded in prudential of having read Locke, perhaps a little too closely, said, well, we are in something like the state of nature and we go to get out of it. This of course this is what Gordon's great book - first great book was - it said about explaining, how do we do it? Well, the people compacting to come out of the state of nature or a dissolution of government has to agree upon the fundamental principles of government for the compact that there are forming. This is essentially what the Americans do. They start adopting declarations of rights, not so much as constitutional documents per say because in most cases they are not quite all. In most cases there were distinct documents. They are part of the process of constitution making but the documents themselves have an ambiguous constitutional or legal status. It's just something that people is supposed to do when you are forming government to remind yourself remind you to sentence and to inform the process of constitution making. So we have a second stage in which kind of in which bills of rights are still operating as statements of principle. And if you read these documents, they are wonderful documents Gordon in his book as a as a wonderful characterization that which I can only paraphrase for which he has gotten in some trouble, he said something the effect that they were kind of (motley) combinations of grand principles and common law remedies. And that's a good characterization. There are some great statements of principle including the right of revolution, the right - the right to setup new governments. But then there - and you know the right to - you know, statements of freedom of conscious in the realm of religion and then very specific common more remedies, the right to confront witnesses, the right to be trailed by juries and so on. So kind of a grand back companion of different things But again, acting primarily, not as legally enforceable claims because the language used, the for word verb here is ought and not shall. It's a kind of monitory this is something that you should do, not something you must do. That's the ought is the preferred verb and shall the legal command is conspicuous by its absence - again a process accompanying this political process. There are two exceptions though to this. The first takes place in Pennsylvania in 1776 and the second takes place in Massachusetts in 1780 and as Gordon noted previously the Massachusetts Massachusetts constitution in 1780, was a great step forward in terms of understanding how do you how do you distinguish a constitution has higher law from ordinary legislation. In those two cases, the declaration of rights was made part of the constitution - a separate part but it's they are not a free standing document but the first part, the original the actual constitution. It still serves that same purpose. These are - you know, declaring the purposes of government and the principles of government which the actual frame of government is supposed to implement. But now, the bills of rights in in those two cases will make part of the constitution itself meaning that these constitutions were thought of as being fundamental law, superior to ordinary law, so too what the Bills of Rights going to be understood as having that same legal a clause the same legal authority. And so perhaps it's interesting that when Massachusetts - unlike Pennsylvania when Massachusetts begins the process of the emancipate the relatively small number of slaves who lived there, the road to emancipation dependent upon the judicial enforcement, the equality statements in the Massachusetts Declaration of Rights. That shows how you can constitutionalize a right give it a legal authority and turn into something more than a broad statement of principle, okay. So why is this development significant? Because again we are following the basic arc that Gordon was explaining for constitutions. From thinking of constitution from thinking of right of constitutions as a transition device, something you do it to get out of the state of nature or dissolution of government and restore legal government. Now by 1780 and certainly by 1787 Americans were thinking of constitutions as supreme fundamental law superior to authority everything else and what was true about constitutions could therefore be equally true about that particular part of the constitution that you recall a declaration of rights, meaning that instead of being a general statement of principle which everybody was responsible to adhere to, but which nobody was particularly responsible from forcing now a statement of a right could have a legal authority that have been missing or it had been absent or not fully articulated previously. And again, this is a major step forward to American legal constitutional thinking. The critical debate though my T sub-four my last phrase takes place really the period from 1787 when the constitutions were written and then publicly debated into 1788 down to 1791 which is when the First Ten Amendments that we call the Bill of Rights were finally ratified and became part of the constitution. What's going on in this period, this is where I want to come back to my enumeration and textualization arguments here. As I hope you know when the constitution was proposed though a couple of rights was were particularly Habeas Corpus were mentioned in the main text of the constitution. There was no accompanying declaration of rights or bill of rights. And this quickly became one of the leading anti-federal subjections to the constitution. Anti-federals argue that if there was no bill of rights the people will not know what their rights are and they will have no criteria, they will have no framework, they will have no standards for knowing when government has overstepped its boundaries. And the federalists that's to say the supporters of the constitution lead by James Wilson who Gordon mentioned previously argue make a various (indiscernible) argument. They say among other things that it would actually be dangerous to have added the bill of rights of the constitution, because doing so might imply that you are giving the government more powers that in fact it actually possessed. Should I repeat that? Adding a bill of rights might be dangerous, because it might be construed to or might be said to imply that the government had been given powers that in fact not being granted. So what is that what is this what is this mean? Well, here are two examples. Nothing in the text the federal constitution says that the federal government has any authority to regulate matters of religion or to regulate frame of speech or press. It's not one of the delegated legislative powers of congress in article one section A. So James Wilson's argument is - and the argument made by other federalists is if in fact you were to add a specific clause protecting those rights protecting freedom of religion or freedom of the press, the addition that clause could be construed by the genius mind to mean that in fact some power had been given. Do you follow what I am saying here? I want to make sure this is a kind of elusive concept and I know we are not all native English speakers here. So this is a it's a kind of - once you secure this argument and these arguments says the distinctive features of this constitution is that it's a government of limited delegated powers. The anti-federals argue though that anti-federalists responded this claim by saying if we don't specifically protect rights, if we don't enumerate them, if we don't include them in the constitution the people will not know what their rights are. They will have no standard for determining when whether or when government has overstepped its boundaries. Now it's important to stop at this point and and make something, stress one aspect of this. When the when the opponents of the constitution say, the people need a Bill of Rights; they were not they were still thinking in those traditions terms. That Bills of Rights would function not as legal commands, not as something you could go to court and file a lawsuit over. It's really - - the Bill of Rights must still be a political statement. It would tell it would give the people some set of political criteria for judging whether or not government is acting properly. When the government is not acting properly, the proper recourse would be to vote it out of the office. And this actually would tie in to you query now, we can talk about this later. We are talking to your question earlier about who enforces the constitution. So the idea of Bill of Rights is not that you know your right is violated, what American would think today; my right is violated, I have an attorney, we go to court, I sue for an injunction, we stop the offensive action and then we say if the law is constitutional. This has the people need a fixed standard to determine when government is overstepping its boundaries. Now, and the federal say, well that's that's nice, the people certainly should have that standard. But in fact there may be dangers to, you know, you there may be a - an intended danger of making the government even more powerful than you think it is already. There is, however, another aspect of this. This is based on the 1788 that I think is more important to stress. So go back to what I said about T-sub one, our first period. And we asked a question, how do Americans know what their rights are? Well, it's it's used to have Bills of Rights because they they are handy place to look them up. But they are not really the sources or authority for rights. Rights have multiple sources of authority. What I think is striking about what happens in both 17 and for both federal and anti-federal, and again it bears out Professor Woods point. Is by 1787 1778, both sides did the debate, both the federalists and anti- federalists are assuming, or in a sense recognizing that it actually incorporating a statement, statements of rights within a written constitution may have certain advantages but also certain disadvantages. What would be the great advantage? Instead of having all those difficult different sources of rights, that our colleague John Philip Reid identifies, custom, nature, god, migration, et cetera, et cetera. Now we do have one definitive place to look, right. If you say that a constitution is supreme law, and you locked your statement of rights into the text of that constitution, all the ambiguity dissolves. You know exactly where to go, you can look it out. And if it's there, you have it. And once that that sounds like a great advantage, right? It becomes black letter law, you could read it. But now you have two problems and these are the problems which I, you know, suggested earlier by bringing the abortion debate in and with the Ninth Amendment and bringing the gun control debate in with the Second Amendment. So the first problem is what happens if you leave something out? What happens if something gets omitted? What happens if you care to foresee all the rights that you need to protect? So on the one end there may be a great advantage to having a written statement of rights because again one source, one place, you look it up, it's there. That's fine, what happens if there are other rights out there which you do not fully appreciate? Well it will become more apart in the future than they are now. At that point, to make them fully constitutional, you have to go through the very difficult and unwieldy procedure of a constitutional amendment to elevate them to the same status as other rights. So it's in recognizing their difficultly that my my friend, a guy I like to call my friend in alter ego, James Madison, who is to me what Thomas Jefferson is to Peter Onuf but Madison and I get along better than Peter does with Tom. It's for this reason that the Ninth Amendment, the enumeration in this constitution of certain rights shall not be construed to deny or even disparage - or disparage others retained by the people. It's why the Ninth Amendment becomes in some ways instead of being a constitutional joker which is what it's been, becomes actually a very serious important text. It identifies the fundamental problem in the idea of constitutionally entrenching rights. You might leave something out. You might not know what all your rights are. What all your fundamental rights should be in the future. So the Ninth Amendment says that there maybe there are other rights out there which maybe of similar importance. The problem is that it doesn't tell us how we can identify them and if we are not (indiscernible) it can be really difficult to come up with a compelling theory to say why something deserves to be right. But the abortion debate in some ways I mean when what I'm trying to suggest here is Justice Goldberg's argument would have been a much better argument than Justice Douglas. It would have been better to come up with a strong Ninth Amendment argument than to say penumbras formed by emanations very difficult matter and somewhere the best minds have been working out at it, you know, it somewhat mixed results but nevertheless we have a tradition which says we want to have these kinds of statements in our legal text. How do we do it? How do you how do you compress or how do you capture the complexity of a philosophical concept of right whether its the right of self-defense of the individual in the case of the Second Amendment the right of the people to have recourse to Arms as a restrained entreaty? How do you induce how do you induce that to a legally acceptable formula without imprisoning yourself within all the limitations of language? With the language cannot be captious, cannot be expansive enough to capture the new (indiscernible) and complexities? So this is where I told the problem of textualization. The Second Amendment you know, it's a great joker, right? It's a it's very disturbing to Americans and for Europeans it's a great deal to laugh at Americans about right. It proves we really all cowboys. You know, the six-shooter is the great American, you know, contribution you forget the constitution the six shooter which is our great, you know, contribution to civilization but here you know, here we had the more fundamental problem which is we are stuck with a legal text. If you legalize rights then and you constitutionalize them you better make sure you get the formula right because if you don't are going to have a lot of problems down the interpret road and of course you can't get it right and you are bound to air you are bound to fall short in. I have one last point to make here then I will wrap this up. What makes this aspect of constitutionalizing rights though even more problematic is one last transposition one last transformation that takes place in American IDs of rights from T sub-one to T sub-four for the pre-revolutionary understanding to the post revolutionary understanding. So here is my last big point. If you ask Americans on the eve of the revolution what is the basic prompt of protecting rights or who is that you want to protect and where is the danger of rights arise? I think the standard answer would be we want to protect the rights of the people as a whole perceived as a collective outside of government against the danger of the constrained power of the state. You know, for modern Hungarians this should not be a, you know, a great problem with translation right. You know, a country which has come out of authoritarian/totalitarian rule has no difficulty conceiving what it means to live under the concentrated authority of the state and to have the whole collective body of the people living under conditions of oppression. My point here though is that it's not the previous understanding, it's not about John Stuart Mill on Liberty. It's not about you or me as individuals. We would all benefit as individuals, not doubt about that, if rights are protected. But the purpose of protecting rights is not really so you and I can maximize our individual utilities, its it's to provide society as a the whole security against the tyrannical government. We all benefit as individuals but that's not the principal purpose. The promised protected the people against the concentrated authority of the state particularly the executive. By 1787, this is the great contribution of one of the several great contributions of James Madison, Thomas Jefferson to constitutional theory. I know this is a Jefferson event to have you will have to make by your own special picture but what lies like Madison's reformulation of problem rights is the argument. The real problem of rights is not to protect the people in a Republic at least, its not to protect the people against the state, which is weak, it's to protect one part of the people, I mean, individuals or minorities against the dominant political power of the majority. As Madison says that's where the real the real danger of rights lies where the real power rests. And in Republics the real power lies not in the government but in the people acting, or that's to say the majority of the people acting through government. So if you if you accept that position, though one last conclusion follows, which is it comes back to the enumeration problem. The promise to protect minorities, lets say the criminally accused or racial minorities, and so on and you would want a constitutionalized rights have by having constitutional amendments through a super majoritarian process, that's going to be a very tricky and difficult endeavor, which is another reason to say that's why the Ninth Amendment even though it started to figure out what it means actually was conceived to meet a real need and answer a real problem. That it was not apparent in 1776 but it had become apparent by 1787. Thank you.