A More or Less Perfect Union, A Personal Exploration by Judge Douglas Ginsburg

-It's a fact of life. Big Brother is watching......looking for crime. But what might be a crime in some countries is just everyday liberty in America. -As bad as some of us think things are... Americans live in a freer society than most other human beings. -We do terrible things sometimes, but we have a system that allows correction. -The framers set out to create a more perfect union, and succeeding generations have made the Constitution more inclusive. -I voted. -I voted. -Americans wholly take their liberty for granted. -All that liberty we take for granted not so long ago many Americans didn't have it. -Equal Rights Amendment. -What happened to that one? -It didn't pass. -Let's have Pink Pistols.

Gunfire

-To be worked like a mule, to be a piece of property... -How cruel is that? -January 1st, you will be free. -It's amazing that we eventually lived up to the document. -Join me, Doug Ginsberg, on a personal journey as I explore our "More or Less Perfect Union." How does a constitution become more perfect? -I'm Doug Ginsberg, a judge on the Federal Court of Appeals in Washington, D.C. What comes to mind when you think about the Bill of Rights? -Ability to have opinions of my own and be free to express them. -Freedom to protest peacefully the government... -Freedom of press, freedom of religion. -Petition and assembly. -Those things we all take for granted. -Freedom of speech, I think that sets America apart from a lot of different countries around the world. -What amendment is that? -First amendment. -Absolutely. -Hell, yeah. -I grew up in Brazil as a kid, and we were under a military dictatorship, and you couldn't say things, so that's something that America has that should be really treasured. -As much as we celebrate and venerate the Bill of Rights, we almost didn't get it, and without a Bill of Rights, there would have been no Constitution. The story begins when a copy of the new Constitution reaches the author of the Declaration of Independence. Thomas Jefferson, ambassador to France,

is shocked by what's missing

a guarantee of the very rights he set out in the Declaration. The Constitution was sent to the states without a list of rights to be voted up or down. -Many of the framers had to make promises that there would be a Bill of Rights. They said, "Pass it as it is and take us at our word that we will quickly draft and ratify a Bill of Rights," and they kept their word on that promise. -James Madison, the father of the Constitution, was at first very strongly opposed to having a Bill of Rights. Why? Because he knew the second you started trying to list them, you would invariably leave some out. -Because then people might think, "Well, then the government can do everything that it's not expressly prohibited from doing." -George Mason was much, much more practical, and he basically demanded to see a list of rights. -The result was worthy of flag-waving and fireworks. Yet we don't celebrate it. By 1791, when the amendments were ratified, the public had lost interest. There were no big celebrations. The church bells did not ring out. -We do not have a pure democracy where the majority always controls -- deliberately -- and that's why the Bill of Rights was added to make expressly clear that some rights are so fundamental that no majority, no matter how large, may take them away from any minority or individual, no matter how despised that person or group is. -The First Amendment guarantees of speech, press, religion, collectively mean that any idea, any philosophy, can be advanced and discussed. Nothing is out-of-bounds in the marketplace for ideas. We rely on the judgment of the public, not of the government, to decide which ideas are good or valid and which should be rejected. -Free speech, free thought, free religion, the government should not be involved in any of those things. An unprecedented idea never tried before. But you know what? It's the right answer. -Disagreements about religion had been the causes of war in Europe for most of the 16th and 17th centuries. -The great trauma of European history was the religious carnage that led to newer and newer forms of torture and of slaughter all in the name of God. -Six of the 13 colonies were settled by religious refugees. The Puritans who settled Massachusetts did not tolerate other religions. Virginia, my state, had an official religion from 1619 until the Revolutionary War. Dissenters were not obliged to participate, but they did have to pay for it with their taxes. -One of the great works of the French Enlightenment was Voltaire's "Letters From The English Nation" talking about the superiority of the system in England over that of France, and he said, and the framers knew he had said it, "If they were one religion in England, there would be tyranny. If there were two, they would cut each other's throats, but there are three, so they live happily and in peace." -If you would just read the First Amendment for me. -"Congress shall make no law respecting an establishment of religion"... -..."or prohibiting the free exercise thereof." -One says that government may not disfavor religion by interfering with its free exercise. The other says that government may not favor religion by establishing religion. Many people refer to that as the idea of separation of church and state. -Nobody else had created a government in which there was freedom of religion, separation of church and state. -Once you establish the most important area of freedom of speech, religious freedom of speech, all other freedom of speech followed. -Resistance is justified when people are occupied! -We have so many examples around the world where we have totalitarian regimes. Freedom of speech, I think, speaks to our core values. -True totalitarian government wants to control your speech and your ideas and your mind. That's why that zone has to be protected for anything else to be protected. -"Congress shall make no law abridging the freedom of speech." -

Bleep

is shocked by what's missing

the wall!

Bleep

is shocked by what's missing

the wall!

Bleep

is shocked by what's missing

the wall!

Bleep

is shocked by what's missing

the wall! -I think it's pretty well established that one of the risks we take as American citizens is being offended. -As Americans, we have a strong belief grounded in the First Amendment that no government -- national, state, or local -- should be able to tell us what we must say or must not say. -This is the single most counterintuitive idea in human history -- the idea that it's good for society and good for us as individuals to have to encounter offensive speech and hate speech. That idea has always been under siege and always will be. -And so we end up having to protect a lot of, frankly, annoying speech, in order to keep the government out of the act of choosing what we may say or must not say. But in the 20th century, the government got into the act. Some states and localities tried to ban as indecent books, movies, plays, magazines. Those items were then marketed as having been banned in Boston or wherever. The Supreme Court heard a series of cases trying to set a standard for what could be deemed indecent and censored, but eventually gave up.

The result

no standard, no censorship. -"The right of the people peaceably to assemble and to petition the government for a redress of grievances." -Tell me what America looks like! -This is what America looks like! -Show me what America looks like! -This is what America looks like! -One time when I was testifying in Congress, and a member of Congress said, "You know, Professor, we all know how much you love the Constitution, but, you know, the framers didn't have to deal with politics like this, this vicious political environment we live in," and I almost laughed. -And not surprisingly one of the first big fights over the Bill of Rights is a fight over the meaning of free expression. -The framers wrote the Constitution. The first Congress added the Bill of Rights. And soon after that, the Congress passed the notorious Alien and Sedition Acts. -It prevents people from criticizing the president. It prevents people from criticizing the president's cabinet. -No justice! -No peace! -The Congress passes it. The president signs it, and the courts uphold it, a trifecta of tyranny. -It was outlawing dissent seven years after the First Amendment was adopted. -No justice! -President John Adams jails journalists for violating the Sedition Act. They're essentially political prisoners. -Americans are funny people. They tend to take their liberties for granted until they see them being threatened, and then they pounce. They tell people in no uncertain terms that their liberties are very important and that they are God-given, and you had better respect them. That's the American way. -John Adams is voted out. Thomas Jefferson is voted in, and the prisoners are pardoned. -It was not a very good beginning for the country. It's amazing that we eventually lived up to the document. -In the Virginia Declaration of Rights, George Mason wrote... -"The freedom of press is one of the great bulwarks of liberty and can never be restrained but by despotic governments." -Nothing changes. Well, the technology changes but nothing fundamental -- if it were not for the press, the people would not know what their government is up to. -"Congress shall make no law abridging the freedom of speech or of the press." -If you take a look at all the great reforms that we have had over history, the vast majority of them have come not from Congress or any president. They've come from press, the press uncovering scandals, corruptions. -And you can bet there'd be a lot more corruption for not for fear of exposure by the press. -The First Amendment gives to American newspaper men and women an unparalleled degree of freedom. Looked at on the global canvas, we live in a kind of Eden for the press. -That combination of free speech and a free press really defines the United States more than any other right. -There are a lot of people out there that don't like us. -Generations of gay people have been beaten on the streets and sometimes killed, and the police can't get there. -I believe that the right to self-preservation is a human right. -We have this entire beautiful community, and I knew that I had to do something to help protect them. -Gay people have been terribly damaged because we're weak. We're easy targets. So I write this article saying, "Let's turn that around." -Lock. Go.

Gunfire

The result

-Let's have Pink Pistols.

Gunfire

The result

And next thing I know, to my amazement and surprise... Pink Pistols chapters start popping up around the country. -The purpose of the Pink Pistols is to train people in the LGBT community... -I don't know what they call themselves, LGBT, whatever. I call them people. -...to defend themselves with firearms or without. -I joined the Pink Pistols after Orlando. -There was no chapter here in San Diego. After Orlando, it's just snowballed. We've got over 300 members now. -I'm an abuse survivor. This is something that is so necessary to me. -So what's the number-one priority for today? -Safety. -Exactly, so at anytime out there that you feel that you are unsafe, just stop. This day and age, we have a stigma. You're either pro-gun, or you're not. The vision they have of the person that's pro-gun is the three-tooth hillbilly, you know, that's out there shooting beer cans in his front yard. -Probably about 60 percent of our members are openly LGBT. -You know, I'm a live-and-let-live kind of guy. -Yes, it's fine that I'm straight. As long as I'm an ally, I can help out. -We are probably one of the most diverse groups of people that you'll ever hang out with. We have this common ground that allows us to help each other learn to protect each other and ourselves and go home and feel good about it. -So your group is great, and you were right there, you know what I mean? But what you need to do... -In general, the LGBT community is pretty left-wing and generally anti-gun. -They recognize that people are getting killed, and they think that the solution is to make it so no one has guns. -It's important for the bad guys to realize there's at least a couple of us that are out there that are armed. -I don't necessarily think the community is going to embrace this idea, but I'd like them to accept this idea.

Beep, gunfire

The result

-"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." -..."shall not be infringed." -Today "militia" means the National Guard, but not in colonial times. -Back in the late 18th century, "militia" was understood to include every single able-bodied male in the country. -Most Americans who fought for the Revolution were militia. -Who the hell cares what a militia meant in 1789? What matters is whether people on the streets of Chicago ought to have guns in 2017. -The defense of one's home and family, the ability to hunt, all this gets lost in the argument over the significance of "a well-regulated militia."

Cannon fires

The result

The Second Amendment is the only one that comes with its own justification. In modern English, we would say, "Because a necessity for a free state to have a well-regulated militia, the people shall have the right to keep and bear arms." Here is why your high-school grammar comes in handy. The justification is in the subordinate clause. The right is in the principle clause, so the right exists without regard to the justification. -So maybe they did mean that individuals should be able to keep firearms, but they meant that for an agrarian society in which firearms were barrel-loaded muskets and were made by artisans, not guns that were mass-produced, extremely deadly and could be used in an urban environment. Now would they have wanted their principle about individual's bearing arms to extend to today's society? Was that part of their meaning? Who knows? -For two years in this country, there was no Second Amendment. Nobody said, "Well, we better pass this Declaration of Rights because up until now, we have no freedom of speech, and we have no freedom of the press, and we have no right to keep and bear arms," and, "Hooray! Now that we've passed it, we've got it." Nobody said that. That's because that Declaration of Rights didn't change the rights that the people already had, and nobody claimed that they did. -But we the people are still arguing about exactly what that protects. Surely not shoulder-launched surface-to-air missiles, but what about... -In over 200 years, the Supreme Court had never interpreted to definitively determine whether it protects an individual right, and so I, along with two colleagues, put together kind of a test case, a civil rights case. -That was District of Columbia versus Heller. In a landmark ruling in 2008, the Supreme Court upheld your right to own a gun, militia or not. -Even though they split five to four, the difference was so much narrower. All nine of them agreed number one, individuals do have a right to gun ownership, therefore disagreeing with a lot of liberals in the political sphere, and number two, all nine of them said, "But it is subject to reasonable regulation," therefore disagreeing with a lot of conservatives out in the political sphere. -The District enacted a new statute, and it was challenged and came before my court. We upheld those portions of the law that increased public safety, like getting an eyesight test, and held unconstitutional the provisions that really just burdened gun ownership. -The Third Amendment strikes many Americans as somewhat strange, but in truth it's an example of a historic fact. -In colonial America, your home wasn't entirely your castle.

Knocking

The result

-Is the mistress of the house here? Open the door in the name of the King. -Under the Quartering Act, British soldiers could lodge in your shed or barn. -My good day, madam. As you may see, the weather is getting inclement, and my men need a place to reside. -When the Revolution broke out, both sides barged in. -You wouldn't want to be a farmer in New Jersey and have the Continental Army parked near your place. The Continental Army, wherever it was, took people's food, took their livestock, because they couldn't survive without it. -"No soldier shall in time of peace be quartered in any house without the consent of the owner nor in time of war but in a manner to be prescribed by law." -So here is a right so fully protected by the Constitution that most of us don't even know we have it. -Los Angeles, California -- I work here. I'm a cop. -Half of the Bill of Rights protects those accused of a crime. -Why? Because that is when government has the most coercive power to take away our liberty, our property, indeed our lives themselves. -As a former prosecutor, I can tell you that it was when the Supreme Court started protecting the rights of the accused that the police started respecting the rights of the accused far more than they protected it before. -Freedom from unreasonable searches and seizures, the right to an attorney, due process of law, a speedy and public trial by an impartial jury, the right to confront witnesses against you, immunity from testifying against yourself and being tried twice for the same crime, no excessive bail or fines or cruel and unusual punishments. -When you put those together as a package, it really was quite revolutionary ensuring when the state brings to bear the awesome power of the criminal justice system that individuals have a real chance to vindicate themselves. -And the Supreme Court ruled in 1966 that the police must remind you of your rights, that's the Miranda warning. -One of the most important functions of the Miranda right was getting the police officer to say it over and over and over again to the suspect because if the police officer had to say it over and over again, it reminded the police officer that the person did have rights. -We Americans see so many TV shows about crime and justice that we take these rights for granted, but around the world for most people, these rights are not guaranteed. Some of our rights have been written down for a long time. If you were read the 13th century version of your rights, this is how it would sound. -Oh, okay. -Do you want to give it a shot? -Sure. "No free man shall be seized or imprisoned or stripped of his rights or possessions or deprived of his standing in any other way nor will he proceed with force against him or send others to do so except by the lawful judgment of his equals or by the law of the land." -That was about 1215, the Great Charter, Magna Carta, the root of our legal system, well-known to the framers and sealed here by King John more than 800 years ago. -On October 21st, trial was held in Department 98 Superior Court of the state of... -I have a lot of respect and confidence in the jury system. I think there's no better in the world. Twelve people come in, take time off, work really hard to try to find the right decision. -We have all but eliminated the criminal jury trial from our system, and I think that's a terrible, terrible mistake. We have thousands and thousands and thousands of criminal laws on the books, and we have the highest rate of incarceration of any country in the world, and the way we do it in this country is through plea bargains. Unfortunately, there is documented evidence that innocent people have been coerced into accepting plea bargains in order to get a deal and avoid the Draconian sentences that they face if they exercise their right to a criminal jury. -So there it is. We still have a right to trial by jury, but for most people, it's become too risky to exercise that right. The Constitution hasn't been amended, but this protection against an overbearing government has been all but lost. And we've all but lost two entire amendments. Ninth Amendment, not too many people are familiar with. -No, I'm not. -Basically what it says is this list of all these rights are not the limits of your rights. You have unenumerated rights as well. -Oh, I like that one, actually. -Because imagine somebody gave you the task of listing every single individual right that you have. That would take you forever. -I don't think it would make sense to write down in, like, the Bill of Rights or the Constitution or something like that, every single freedom we have. -"The enumeration in the Constitution of certain rights shall not be construed"... -..."to deny or disparage others retained by the people." -And the fact that a right is not listed in the Bill of Rights doesn't mean it doesn't exist. -That's a really important point, and I wish more constitutional scholars and judges took it seriously. -The other lost amendment strictly limits the power of the federal government. -The 10th Amendment reinforces the first line of Article I, which says, "All legislative powers herein granted," by essentially saying only the powers herein granted, are granted to Congress, and all of the rest of the powers are reserved to the states respectively, or to the people. The 10th Amendment actually doesn't limit itself to the powers of states. It also talks about the powers of the people themselves. -Together the Ninth and 10th Amendments reaffirm individual liberty. Notice that the Ninth Amendment says the rights not unenumerated are retained by the people, so we had these rights before we had a Constitution to protect them? Yes! In the Declaration of Independence, they're referred to as "unalienable rights, with which all men are endowed by their creator." -Yes, we're protecting a bunch of liberties in this document, but you should not think for a moment that there aren't other sources of liberty. -It should not be construed such to say that the only rights we have are the ones that are in writing because they're in writing, which sort of is, in fact, how the Bill of Rights has been construed. -In fact the Supreme Court has never upheld an unenumerated right solely on the basis of the Ninth Amendment. The right to travel interstate, to educate your children as you see fit, the right to marry, to have children or not have children, all of these have been upheld against the states but not under the Ninth Amendment. -The framers did not create a Constitution that was meant to be frozen in place. They did not think they possessed the wisdom for all time. If they had, they wouldn't have put in a constitutional amendment process. -Since the Bill of Rights, we've amended the Constitution 17 times. Six amendments were procedural, like moving Inauguration Day. The 18th Amendment was trendy. The 21st Amendment reversed that trend. The 16th Amendment may be the most unpopular. It ushered in the income tax. And eight amendments expanded liberty. -I remember I was a college student. We were asking, at the time it was young men, to go to Vietnam, fight in the war, but many of these young people could not even vote. Most of the voting ages in many of the states were 21. -So Congress passed the law to get the 18-year-olds the right to vote, and the Supreme Court said, "Well, Congress can enfranchise 18-year-olds in federal elections but not state elections, and on Election Day, you could vote for these offices but not these offices if you're between 18 and 21." That just wasn't workable. -So the 26th Amendment made 18 the voting age everywhere. -I voted. -Women now outnumber men at the polls. It took an amendment to ensure women's right to vote, a right that once seemed implied. -"No government shall deny any person the equal protection of the laws." Surely it's reasonable to interpret that as meaning that states may not deny women, who are indisputably persons, a very important equal right, namely the right to vote. And not only were they not allowed to vote, they were actually prosecuted and convicted for the crime of illegal voting. -War makes Americans think differently about liberty and equality, and Woodrow Wilson said, "We should make the world safe for democracy." Women suffragists said, "Yeah, make America safe for democracy -- give us the vote," and in the wake of World War I, finally they won the argument, and in 1920, you get the 19th Amendment. -What do you think is the most important change, the most important amendment over the years? -The right to vote, giving women the right to vote. -Half the population was affected by it. -Absolutely. -I voted. -I voted. -I voted. -I voted. -I voted. -Think back... This may be before your time, at least as a lawyer, I don't know -- to an amendment that was proposed but not adopted. It's controversial, got a lot of conversation going. -You know what? I don't know. -It involved women. -I feel like I should know this, but I don't. -You should. -The Equal Rights Amendment. -What happened to that one? -It didn't pass. Yeah. -Does that create any problems? -Not for me. At the time, there were a lot of people upset about it, yeah. We're not as far as some people want to be, but I feel very comfortable in my role as a woman, as a working woman. -No legal impairments? -No. -Equal protection. -Correct. -The ERA was meant specifically to specify that women have the same rights as men in the Constitution. The Supreme Court kind of took the wind out of the sails because it said they do have... -Right. See, that's what I was going to say. I would never have thought of that as a proposed amendment because I assumed that we do. -That's a very good index of change over the last 30 years. -Yeah. -Mm. -Securing the rights of other Americans would take buckets of tears and rivers of blood. For almost 75 years after the ratification of the Constitution, the institution of slavery grew and spread into the new states, just the opposite of what the framers had expected. A court case in the 1850s would bring the problem into sharp focus. -My great-great-grandfather was born on a plantation in Southampton, Virginia. He was born to the Blow family. They eventually moved to St. Louis. At this point, they had debts, and they had to sell something to cure those debts. My great-great-grandfather was purchased by an Army surgeon. -The slave is taken into the Wisconsin territory in what is now Minnesota. -And he met and married a young lady. Slaves were prohibited, actually, to marry, so it's pretty special that they actually had a wedding. Brought back to St. Louis with his family. At that point, he had something unique. Missouri had a law that said, "Once free, always free." -And Wisconsin territory is free soil, no slavery. -If a slaveholder were to take a slave and live in the North, then that slave would be liberated. -They were no longer a slave. -But their owner refuses to free them, and in 1846, the slaves enter this courtroom to seek their freedom. -At first it was just about their family, but ultimately it was about a nation, and my ancestor was Dred Scott. -A jury of 12 white men set Dred and Harriet Scott free. -It was a wonderful day, but it was short-lived. -Scott's owner appeals the verdict. -And then the Supreme Court of Missouri changed the precedent of Missouri to say, "Un-uh. It didn't free him," and that's when he brought his federal action. -Dred Scott's case lands in the U.S. Supreme Court. The court was stacked against Scott. Of the nine justices, five were from slave states, and a sixth from Pennsylvania also favored slavery. The justices voted 7-2 against Scott,

and they did something the framers never imagined

they invented a constitutional right to own slaves. -Some of the worst jurisprudence by our United States. -That was the classic example of the Supreme Court taking upon itself to do what it thought was right and not adhere to the text of the Constitution as it was written. -In his decision, Chief Justice Taney writes... -"Negroes have been regarded as beings of inferior order and all together unfit to associate with the white race, and the Negro might justly and lawfully be reduced to slavery for his benefit." -What Dred Scott was to say, "Yes, they said 'all men are created equal,' but they didn't mean it." -In terms of how it feels now as I'm saying this to you, it angers me. How can one man tell another man that he's benefiting me by enslaving me? -I can't imagine that anything could be worse. -And that blacks could never be citizens for as long as they lived in America. -Because you cannot possibly be, under any circumstances, a citizen of the United States if you're black and you're descended from slaves. -Taney thought he was going to resolve the slavery controversy forever by basically saying, "Stop arguing about this question. It's settled," but he was wrong. You don't settle a controversy like that simply by saying, "I'm right. You're wrong." -Within three months of the Dred Scott decision, they did get their freedom -- and they did not get it through the courts, but they got it from the hand of the children of their original owners. Dred and Harriet were simple people. The fact that they were born in slavery did not deny them their humanity nor any human desires as anyone else would have. Their greatest desire was freedom. -I had my DNA tested recently. You can do that. Sixty percent of my ancestry is Kenyan, but I also found out, much to my surprise, that 40 percent of my ancestors are Europeans. I know for a fact that many of my ancestors were slaves, and I also know for a fact that many of my ancestors were slave owners.

Birdsong

and they did something the framers never imagined

-The mistress of Whitney Plantation was among the largest slave holders in Louisiana. Her slaves toiled to raise indigo and sugar. At its peak, about 120 slaves lived here. -Typically, a cabin like this would house one family or two, depending on the size of the population. I came across a testimony of a person, a woman. She said they had one room, one bed, six children on the same bed. -This is a replica of my great-great-grandmother, Anna, who was an African slave. She was the personal slave to Azelie Haydel who was the mistress of the plantation. -The whole time during slavery, white men raped, really, slave women, and honestly, there were two reasons. One was for their own pleasure, but the other is that they wanted more slave children to work on their plantation. How cruel is that? How inhumane? -While Anna was enslaved here, the brother of the owner of the plantation impregnated her. -Victor, my great-grandfather, was the son of Anna. Victor was a slave even though his father was a white man. -In fact, the status of an individual depended on the mother. If your mother was enslaved, when you are born you are automatically a slave. -We would eavesdrop on my elder cousins that would talk about Victor because they knew him. They said he worked in the house, but they never used the word slave. The elder cousins never spoke that word. I think it was pain and shame.

Birdsong

and they did something the framers never imagined

Now we know the story, and here is a memorial to him. It makes it real, complete.

Bell rings

and they did something the framers never imagined

-It's difficult, perhaps impossible fully to grasp what it was like to be a slave, to be worked like a mule, to be a piece of property, perhaps to have your children sold to another owner or to live in constant fear of violence with no protection from the law, to live, that is, outside the Constitution.

Rings

and they did something the framers never imagined

-This was the clock on the plantation. They wake you up by the bell. They take you to work. You wake up early in the morning before the break of day. You go to work, and you don't come back until night. That's why the call it, "Working from can see to can't see." And it may be very hot, or cold and raining. You'll still be out there working. Yeah, and you do that six days a week... Six days a week. The only day free is Sunday. Running away is a kind of resistance. The punishment would be to be branded on one shoulder with the fleur-de-lis, and then they cut your ears. You run away for the second time, they cut your hamstring. The third attempt was punished by the death penalty. Violence, pain was used to tame these people. But, you know, the body may be tamed, the flesh may be tamed, but nobody can tame this. -By the time the time of the Constitutional Convention, Massachusetts had abolished slavery. The other Northern states followed. The Southern states viewed slaves as property, but when it came time to calculate the size of their congressional delegations, they wanted to count slaves as part of their population. The compromise was to count each slave as three-fifths of a person. -The three-fifths clause, which offends just about everybody, right, because they acted like you weren't even people, but that's not what they were doing. -People interpret it as saying that slaves were three-fifths of a person. No. -The three-fifths clause might sound like it was meant to diminish the rights of slaves, but slaves had no rights. It was actually meant to limit the power of the slave states in the Congress. -The Northern states, or the anti-slavery states, they didn't want any representation for slaves whatsoever, and the Southern states wanted full representation for all their slaves. -And therefore they would have had more power in the federal government because of that. We were actually whittling down on their power. -How? By counting only three-fifths of the total number of slaves, those states would have fewer votes in the House of Representatives. But the South still enjoyed an edge, more seats in the House than if slaves weren't counted at all, and therefore more votes for president in the Electoral College. -Most of the original presidents were either from slaveholding states, or they were from Northern states where the particular president was sympathetic, or at least was not inimical to slavery. -Indeed, Southerners hold the White House for 50 of the first 72 years of the republic. -Most Northern states were content to let the Southern states be the Southern states, and they weren't prepared to do anything about slavery in the South. -Until the Dred Scott decision. -And that led to a grave perception of a threat. The North finally cared about slavery in a way they hadn't before, and then we know what happened after that. -Between December 1860 and the following June, 11 states secede from the Union...

Men shouting orders

and they did something the framers never imagined

And ignite the worst constitutional crisis in American history. -They got tired of arguing. They got tired of arguing each other, and they said, "Okay. It's time to push and shove." -You got to understand that 80 percent of the Southern forces were farmers. They basically worked their little farms, okay, so 80 percent of them really didn't have slaves. They felt that the North was invading the South. -The right to secede from the Union. -No. States' rights take second to the Union. -You think that's clear in the Constitution? -Back then it was. -What about the Southern assertion that sovereign states, having joined the Union, they retained their sovereignty, they could withdraw from the Union. -I think there's a part in the Constitution says, "No state shall make a confederation." I believe it does that. -Article I, section 10, "No state shall enter into any treaty, alliance or confederation." -Right. -Pretty clear. -Right. I'd say 80 percent of the Union soldiers that went into the war was because of that.

Bugle call, men shouting

The war will settle two great constitutional questions

secession and slavery, but not until 620,000 Americans slaughter each other. -My children don't understand. I have millennials. Why on New Year's Eve we go to what's called a Watchnight Service. In Black churches all over the South, you go to church, and you sing songs and pray and sing hymns. What we're doing is waiting for January 1st to come, because Lincoln's order said, "January 1st, you will be free." -That order springs from this fertile landscape, still the deadliest day in American history. The Union Army stops an invasion by General Robert E. Lee. President Lincoln exploits Lee's retreat to change the course of history and of the war. As Commander in Chief of the Army and the Navy -- that's in Article II of the Constitution -- Lincoln issued an executive order declaring that three million slaves shall be free. We know that order as the Emancipation Proclamation. -He caused a great deal of dissension in federal ranks because most of the men joined up to preserve the Union, and so they had to stop and think about whether they wanted to continue on when the purpose of the war began to change. And there was a lot of debate in the camps. Eventually they stayed on and persevered. -I think it's probably the most important war this country ever fought. I think it made us a nation. That's what I think. -When the war was over, and more than 600,000 men were dead, no one was tried for treason -- not the president of the Confederacy, not his cabinet, not General Robert E. Lee, who left the Union Army to lead the army of the Confederacy. Lee was indicted, but he was pardoned. No one wanted a trial. Why not? Because the Supreme Court had never decided whether a state could secede from the Union, and there was no guarantee the court would see the matter in the same way that President Lincoln had. Yet slavery remained the law of the land. Lincoln's proclamation freed slaves only on rebel soil. -There absolutely was the concern that when the Southern states got back into Congress that they would be able to operate as they had before and protect slavery, because that which had abolished slavery before was purely an executive order issued by the Commander in Chief as a war measure, and now the war is over. -The 13th Amendment abolishes slavery forever. It's quickly followed by the 14th and 15th Amendments to guarantee equal rights to all Americans and the right of black men to vote. The Bill of Rights forbade the Congress to abridge our liberty, but not the states. The 14th Amendment safeguards the liberty of every American with a single phrase, "No state shall deny to any person within its jurisdiction the equal protection of the laws." -It is the very first time that we have a general express guarantee of equality in our Constitution. -The 14th Amendment applies to everybody -- male, female, all different races. -But it took time to get there. In the Bowers case of 1986, the Supreme Court rules 5-4 that states could make sex between gay men a crime. -The Supreme Court basically said that we were second-class citizens and that the right to have a sexual, consenting relationship, a loving relationship with the person we love in our own homes was "Facetious." This was the highest body in the land saying the Constitution gave us no protection. We were harassed by the police. We were beaten on the streets. We were fired from our jobs. -God is not ordering that you die and go to hell. God wants you to turn from your wicked lifestyle. -We did not have money. We did not have power. We were pariahs, but the First Amendment gave us our voices, and that's what made all the difference. -In 2000, Vermont creates civil unions for gay couples, the first state to do so. A generation after Bowers, the blink of a judicial eye, the Supreme Court does a 180. In Lawrence versus Texas, the court declares a state sodomy law unconstitutional for violating the 14th Amendment. That same year in Obergefell versus Hodges, the court upholds the right of same-sex couples to marry.

And it all comes down to that key word

liberty. -Justice Kennedy writes the opinion. Justice Kennedy loves liberty. -He said, "If the framers had had specific concepts of liberty, they would have said so." -I think in fact the stronger argument is one of equality. Gay people are equal citizens of the United States, and they should have an equal right to marry people they love. -The Court stretches the interpretation of due process and equal protection onto the 14th Amendment and ignores the Ninth Amendment which was designed to preserve our unenumerated rights. -If you think that gay marriage is really just like straight marriage, then it follows that the equal protection clause protects the rights of gay Americans to marry. If you think those two things are fundamentally different, then it doesn't follow. -And this gets to a very important point about constitutional interpretation. You cannot be blinded by, "Who's going to win, and who's going to lose?" You have to elevate it to a higher level of neutral principle that will apply to many people, some that you like and agree with, and some that you dislike and don't agree with. -Whether we, you and I, agree on some hot-button social issue like gay marriage, for instance, isn't really important. What is important is how we resolve our differences of opinion. And for some time now, we've been resolving them in the courts, where one side wins, and one side loses. And it may come down to the vote of a single judge. We should be resolving questions like this in the legislature, the people's forum, where compromise is necessary. Nobody gets everything they want, but process is democratic, and as Americans, we accept those results. But the very Americans for whom the 14th Amendment was passed were stripped of its guarantees. -The 14th Amendment created a federal power to protect individuals from having their rights violated by their own states. As a result of that, there was pushback by at least two separate groups. One are people in the South who wanted to restore some semblance of slavery, as much as they could get, and the other were people in the North who valued the sovereignty of their states to do what they wished, and the result of this convergence of forces, essentially the Reconstruction amendments were gutted. -The Civil War and the constitutional amendments that followed ended the institution of slavery, but they did not make the enslaved people or their descendants truly free. Southern state legislatures nullified the rights of freedman with a sweeping set of laws known as Black Codes. Former slaves are barred from so many occupations. Slavery endures in all but name. -In many ways, nothing changed. -The Black Codes really represented a South that was defeated but unrepentant. It was really their way of trying to reinstitute slavery. -The horrible history of racially discriminatory laws included disarming the newly freed, formerly enslaved individuals. That was a very profound way of undermining their equal status and indeed endangering their very lives. -Stripped of their Second Amendment rights, freedmen now are at the mercy of vigilantes. Segregation becomes the law of the land. Freedmen lose their hard-won freedoms, including the right to vote. -And as a result, the racial subordination of Blacks in this country went on for another 100 years. -With all that I've been through, I really mistrust the masses to take care of the rights of minorities. I've just not seen it go right too often. -Liberty is a incredibly precious thing, and the framers knew it. They knew that there was no way for them to guarantee liberty. History has shown that liberties are easily lost but rarely regained. -The old Soviet constitution listed a number of individual rights, but that did no good. Why? Because they did not have a system of a democratically elected legislature, a separate executive and an independent judiciary that would help protect those individual rights. -And Americans take it for granted that they have a freedom that does not need defense, both from those who they see as threats, and from themselves as well, since all of us fail to see the threat we might pose with power to freedom and liberty. -The framers relied upon the structure of the government to protect the liberties of the people, but in the 20th century, the separation and enumeration of powers was eroded, and the Bill of Rights became the central focus of the most controversial issues in American society. -Next time on "A More or Less Perfect Union"... -Because Constitution is a lot like women's clothing. Every year it just covers less and less. -The framers would not recognize the federal government we have today. -We live in the age of regulation. -His reaction was, "Oh, well, if you've got nothing to hide, what's the problem?" -And it's just a naked abuse of government power. -Shut it down! Shut it down! -There are literally forbidden thoughts. This is tragic. -All of a sudden, it's gone, and you don't realize that that's what's happened.