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Constitution needs more specificity
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Jun 5, 2025
Austin Constitution Meetup, 2013/12/17, on the Bill of Rights, celebrating Bill of Rights Day. Jon Roland explains why the Bill of Rights provided necessary increased specificity, and why further reforms need to do the same. See http://constitution.org/dhbr.htm http://constitution.org/reform/us/con_amend.htm http://constitutionalism.blogspot.com/2012/07/list-of-constitutional-rights.html
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0:11
good
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evening this is the December
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17th
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2013 Constitution Meetup in Austin
0:23
Texas I'm John
0:26
Roland uh today is our last day
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meeting at the Old Quarry Branch
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library in North
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Austin uh beginning in J in
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January we will be meeting on the 4th
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Tuesday of each month at the North
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Village Branch library on St
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Avenue uh except that in November and
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December of 2014 we will be meeting on
1:01
the second
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Monday of the month in the same
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Library the
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theme of this
1:14
meeting since Sunday was Bill of Rights
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Day is a Bill of
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Rights and I'm going to
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examine some of the uh things that make
1:29
the Bill of Rights
1:31
important and may make it necessary for
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us to expand on
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them
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now
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uh
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to go over a little
1:46
history originally the
1:49
constitution on September 17th
1:52
1787 was proposed without a Bill of
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Rights there had been an English Bill of
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rights uh adopted as an act of
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parliament uh which served as a
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model
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uh
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the several of the
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states um especially Virginia had
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adopted a Bill of
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Rights in connection with their
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constitutions their new state
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constitutions on which the Federal
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Constitution was
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modeled so uh there had already been
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established a history of listing
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rights a bill means a
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list and uh the list of Rights the Bill
2:48
of Rights was supposed to be
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restrictions on the powers of
2:55
government now now the emission of a
2:58
Bill of Rights from the original
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Constitution was not an
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oversight uh many of the framers of the
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Constitution thought it was
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unnecessary that they simply had not
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delegated uh the powers to infringe on
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rights and therefore it would be
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redundant to try to list any rights that
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you know were restrictions on what
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government could
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do
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um
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the arguments made are summarized down
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here that a Bill of Rights were
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unnecessary because no powers have been
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delegated that might infringe on
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them now Madison also argued that
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declared rights are M parchment barriers
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that can only be protected by
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constitutional uh structures that divide
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power among contending
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forces he was a great believer in
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separation of
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powers uh
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third the argument was made that listing
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All Rights was impossible they were
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infinite uh and it would be dangerous to
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provide a partial list because any
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omissions could be
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interpreted as those rights not
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existing under the common law rule of
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construction called expressio un EST
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exclusive
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exclusio
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alteris in other words if you don't
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express one then it's excluded as an
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alternative now some of the framers like
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George
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Mason refus to support the ratification
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of the Constitution without a Bill of
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Rights and a lot of people agreed with
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them uh on not to ratify the
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Constitution on those grounds so a Bill
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of Rights of some form became a leading
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subject of debate on over
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ratification and the way it was
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resolved was that the leading prop
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opponents of
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ratification agreed with the
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opponents that they that once the
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Constitution was ratified they
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would adopt
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amendments that would add a Bill of
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Rights to the
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Constitution and it was on the strength
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of that
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reassurance that they proceeded to get
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enough support for
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ratification and and ratification was
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achieved uh June 21st
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1788 um each of the ratifying state
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conventions had
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adopted a list of amendments they wanted
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to see
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made most of those having to do with
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rights so
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after a ratification was
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declared uh Madison was elected to the
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House of Representatives in the first
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Congress and he his General was
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generally agreed had the the unenviable
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job of trying to boil down all the
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proposed amendments that had come from
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all of the the states and to try to uh
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come up with a shorter list of
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Constitutional Amendment mend
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ments now uh he did
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that he came up with
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a A list which he proposed the House of
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[Music]
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Representatives the house assigned to
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committee where they boiled it down some
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to a shorter list Consolidated some of
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the
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Amendments
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uh the then the Senate took it up
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assigned it to a committee they further
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boiled it down it went back and forth
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and finally they agreed on a list of 12
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amendments uh the first two of those
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were not immediately adopted in fact one
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of them was finally adopted in the 70s
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but uh after almost 200 years but the
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Amendments 2 through 12 became known as
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the the Bill of Rights those were the
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first 10
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amendments the Bill of Rights by the way
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is not an official title of the
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Amendments it's just with what people
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call
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them now
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uh we have
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a page on our website at
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constitution.org
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called the documentary history of the
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Bill of Rights
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which uh you are welcome to
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visit it uh starts with a table of the
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sources of the Bill of
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Rights which is
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interesting because it
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shows for each of the Bill of
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Rights where it came
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from it's in a
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table and and what I do
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here I have numbers across the
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top numbers down the
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side that on down the side are the
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rights that the states our others call
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for and the numbers across the top
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identify the source of
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it so if we go down to the bottom
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here we'll
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say
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the like number three was a one of them
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proposed by Madison number four Madison
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numbers as a proposed to
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Congress uh five adopted by select
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committee six adopted by House of
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Representatives seven adopted by Senate
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a adopted by a conference and Congress
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was sent to the states nine
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ratified then we go down to the English
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Bill of Rights the Virginia Bill of
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Rights the convent Convent Virginia
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convention Bill of Rights in other words
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that's not just what was in the Bill of
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Rights that Virginia had adopted for
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itself but the Bill of Rights that the
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Virginia convention proposed to the
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federal
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government and then it has each of the
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the other list of proposals Pennsylvania
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Massachusetts Maryland actually there
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are two groups from Maryland the
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Maryland majority the Maryland
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minority uh there's also
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a uh pencilvania Minority
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Report uh South Carolina New Hampshire
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New
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York uh North
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Carolina uh and
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uh what we did is prepared this table
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and it shows where they all came from
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they didn't all come entirely from the
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state ratifying
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conventions some came from the from
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other sources but Madison thought them
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important and
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uh but he
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recognized the
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problem that if you left any rights out
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that people would try to interpret that
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to mean they didn't
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exist so he proposed a catchall
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amendment that essentially said that any
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rights that aren't listed here are to be
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recognized but we just don't spell them
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out well what Congress did is he split
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Madison's proposed amendment into two
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amendments that became the ninth and the
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10th
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amendments uh the ninth the 10th
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Amendment had to do with
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powers it essentially said that any
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powers not delicated to Congress were or
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to the rest of the federal government
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were reserved to the states or to the
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people in other words this is sometimes
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called the
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the uh the non-delegation
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doctrine or one of the forms of the non-
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delegation Doctrine if it's not
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delegated they doesn't it doesn't have
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the
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power the Ninth Amendment says there are
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unenumerated rights that we're not
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listing here but there are nevertheless
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rights that are to be
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recognized now what has happened in
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practice is exactly what the uh
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Anti-Federalist feared because judges
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have taken it upon themselves to say
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that if uh they can't find find a right
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spelled out that they're not going to
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recognize it and they're not willing to
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study legal history to find out what
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other rights might be included in the
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Ninth
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[Music]
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Amendment they're just not willing to do
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that neither liberal judges nor
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conservative
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ones so uh we've had a problem with
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trying to get the courts much less the
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execu
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Branch or the uh legislative branch to
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recognize unenumerated
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rights and one of the things that I've
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done is try to find all the
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rights that I
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could that in historical
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record uh going back to uh more than a
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thousand
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years all the legal author that the
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framers
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respected uh some of them even going
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back to ancient Greece and Rome ancient
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ancient Israel and so
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forth and list them all
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out and uh quite a few of
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them I got them
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here
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uh we've got uh 15 in one group 16
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17
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you got
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uh 10
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12 12 more
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there and another five more here and so
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fourth under the other category we go
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down
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to 14 of
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them so we've got
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um or I've got
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um another 30 or 40
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rights that can be listed
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out and what I have proposed to
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do first I propose Constitutional
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Amendments that would spell out all of
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those
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rights and secondly I have proposed
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legislation a essentially an amendment
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to the Civil Rights Act
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which would add recognition of all of
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those rights to the Civil Rights Act so
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they all could all be
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litigated in federal
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court and enforced
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as criminal violations if anyone
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infringed on them who were represented
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an agent of the state of a state
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government now
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uh needless is say if I could ever get
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that introduced in Congress it would
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start a
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conversation uh right now I have the
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usual problems of getting anyone to pay
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attention to it because I don't control
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a lot of money or
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votes
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but one has to start
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somewhere and I'm hoping that others
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will pick up on this and car carry it
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make it an isue in their campaigns
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perhaps introduce it in Congress and so
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forth now what is it about a Bill of
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Rights that is
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important why was it a good idea to
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adopt
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it
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clearly
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the history of the Bill of Rights has
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been that most of the rights
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that it
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recognizes have been some of the most
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important cases that have gone before
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the federal courts and particularly the
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US Supreme
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Court uh people know the Bill of Rights
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better than they know the Constitution
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because for one thing they're more
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likely to litigate over
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it so it has certainly been important
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for
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litigation but we can ask ourselves if
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there had been no Bill of Rights would
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we be any worse
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off and I think the answer is
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yes because the reality of Law and
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constitutional law in
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particular is that it needs to be
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specific as specific as it possibly can
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be the Constitution as originally
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proposed was only 400 written
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pages to be as
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specific as I am proposing in my
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proposed amendments and my proposed
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expansion of the Bill of Rights it would
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run to more like 40
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pages and some would argue that to be as
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specific as it would need to be it would
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need to be 4 400
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Pages well the reality is that
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if it had been for 40 pages at the
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outset it would never have gotten
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ratified uh it needed to be succinct it
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needed to be
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concise needed to be expressed in as few
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words as
18:44
possible but when you but
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brevity is in conflict with
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specificity and a specificity that
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protects
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rights when you try to boil down rights
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Protections in a language as naturally
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vague as English is and legal English in
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particular you are going to introduce
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vague
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language that is too easy
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to find loopholes in to find excuses in
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to violate those right
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rights um I see no real way around that
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I have made many attempts over the years
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to try to F find better language for
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what is already in the
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Constitution and the only thing I've
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ever been able to
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find that more adequately
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protects uh
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rights are is a lot more
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specific so so
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uh for those who argue that the
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Constitution and Bill of Rights are just
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fine the way they are we if we would
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just interpret them
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properly well I'm sorry but I engage in
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debates every day with legal
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Scholars and they're
20:19
unclear they're some of the best
20:21
educated people in the country and they
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can't agree on what our rights are on
20:27
what or what govern power should be
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based upon what's written in the
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Constitution so unless we can make the
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Constitution a lot more
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specific we are not going to be able to
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reign in powers or protect
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rights now some of that can be done
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through through
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legislation as I have proposed to do we
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can approach it from many many different
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uh uh
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angles but but whatever we do we need to
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get down to
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specifics and uh stop wasting our time
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with broad generalities that don't get
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us
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anywhere uh there are many many
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discussion groups out there that
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essentially waste their time arguing out
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about broad General vague aspirational
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language
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that uh even if adopted wouldn't help us
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because it is not specific enough to
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protect against attempts to misinterpret
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it the way to avoid
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misinterpretation is with
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specificity that's how contracts that
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start out being onepage documents wind
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up being 100 page documents
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it's not because the lawyers just like
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to cram a lot of legal leaves uh into
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the document so they can run up their
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bills is because over a period of
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time uh we have discovered the hard way
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that if you don't cover every uh angle
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if you don't have language that allows
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for every possible misin interpretation
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that somebody is going to find a way to
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misinterpret
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it so specificity is
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critical
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now now that the uh we have had another
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Bill of Rights
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Day we have had celebrations this year
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all over the country more than in any
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previous years we've had many more hits
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on our website site as a result of that
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and that's
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great but now we need to continue
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it it's not enough just to study it or
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discuss it we need to get down to
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specifics and uh that's going to take
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groups meeting like us to hit our
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members of Congress our state
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legislators our opinion leaders anybody
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we can find
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and and to keep hammering them with you
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know demands that they support our
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specific language of
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Reform not their language not something
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they might come up with but our
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language because as I'm fond of
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saying if you demand
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something of others without being
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specific you're not asking them to do
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something for you you're asking them to
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do something to
24:02
you we have to write the
24:05
language we cannot depend on others to
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do it for us and if you don't feel that
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you're up to writing the language that's
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fine I've written plenty of it for
24:18
you now you might have trouble
24:21
understanding initially why it's
24:24
important to write this much stuff in
24:27
the way that I
24:28
have fine I don't claim to have perfect
24:32
Solutions but it's enough to get
24:35
started If This Were to be introduced no
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doubt there would be a lot plenty of
24:40
debate and some of the debate might
24:42
result in
24:44
improvements
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but you have to get started somewhere
24:48
with something and you don't want to
24:50
waste a lot of time nitpicking on flaws
24:54
you might find in it uh just be before
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you even get the discussion going before
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you get the debate going so the the key
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thing is we need to get the debate going
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and to do that we need to have specific
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proposals now some specific proposals
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are not that
25:17
great we've had some from Randy Barnett
25:22
a friend of
25:23
mine uh he's a great guy good kind of
25:27
institutional scholar but his proposals
25:30
weren't that
25:32
great we've had another set from Mark
25:35
Levan which has been getting a lot of
25:38
attention uh but his aren't that great
25:42
either his intentions are good but his
25:46
the way he has designed his amendments
25:50
they just don't do a very good job of
25:54
solving the problems he tries to address
25:58
uh to understand why requires a lot of
26:02
discussion in
26:03
itself but whenever you have SE
26:06
proposals like that you have to ask not
26:11
only how they are would work if they
26:15
worked right but also how they could go
26:19
wrong so you have to examine each and
26:22
every one of them for all the ways they
26:25
could go wrong all the ways they could
26:27
be misinterpreted all the way clever
26:30
lawyers could try to distort their
26:33
meaning uh you have to really think
26:37
ahead to not only think like a lawyer
26:40
but think like Legions of future
26:43
lawyers and that's not
26:45
easy it's not easy for the lawyers we've
26:48
already
26:49
got they're probably not 200 people in
26:53
the world today who have the SK
26:56
Knowledge and Skills
26:58
to amend the US
27:01
Constitution and probably if you got
27:04
them together in one place that have 300
27:07
different ideas for how to solve the
27:10
same
27:11
problem
27:13
so to
27:16
assemble those with the Knowledge and
27:19
Skills and also get them to talk about
27:21
long enough that they can begin to reach
27:24
agreement is then the great challenge
27:27
and if I uh could do so I would try to
27:33
organize a series of working meetings to
27:37
do just
27:38
that but of course that takes money
27:41
takes backing uh and I don't have that
27:45
enough of that right
27:47
now so anyway for those of you
27:50
who view this
27:53
video those who uh couldn't make it at
27:56
the meeting tonight tonight I urge you
28:00
to spread it widely to urge people to uh
28:06
view it to talk about what I'm
28:09
discussing here to go to my website
28:13
constitution.org
28:14
uh you can find the link at uh uh the
28:19
history of the Bill of
28:21
Rights and the Constitution
28:24
blog uh all the thing the links
28:28
you know to this material are on the
28:30
homepage not hard to
28:33
find and if you do that you will
28:36
eventually uh get these
28:39
materials and you can begin to work on
28:42
them so uh with that if there are no
28:46
further
28:47
questions uh I'll call it a meeting and
28:51
look forward to seeing you uh next month
28:55
on the 4th Tuesday
28:58
in the at the North Village Branch
29:01
Library good
29:11
evening
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