FULL EPISODE: 1

A Constitution in Writing

Examine the struggles and compromises in the creation of the document that protects our liberties. Constitutional experts, “Framers,” and everyday Americans weigh in on the rule of law, the branches of government, and the debate over originalism.

AIRED: 1/24/2020 | EXPIRES: 6/02/2020 | 00:55:41
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♪♪ -We got rid of these far away governments.

Why would we want to create another one of our own?

-An unprecedented idea, never tried before.

♪♪ -What are you hoping to come out of this convention with?

-The unified country, sir.

-U.S. history is basically a struggle of citizens retaining their liberty.

-This is the first amendment that protects your rightto stand here and protects mine.

-One of the risks we take as American citizens is being offended.

♪♪ -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.

♪♪ -Americans wholly take their liberty for granted.

-Today almost 400 new citizens taking the oath to the Constitution.

-Our Constitution is only as strong as the people.

-I voted. -I voted.

-I'm Doug Ginsburg and I'm a federal judge.

When you think about the Constitution as a whole, what does it mean to you?

-A founding document of how our government is supposed to be structured.

-What the government can do for us and what the government can't do to us.

-Freedom. -Liberty.

-It's a guideline that keeps us on track.

-The National Archives safeguards both documents that keep us on track -- the Declaration of Independence and the Constitution.

These documents are the charters of freedom, and freedom is what the United States is all about.

-The Constitution is really perhaps the greatest secular document ever written.

-We don't have a religion.

We don't have an ethnicity.

We have a Constitution.

-It's the law of laws.

-That's idiot-proof, and we havetested that over and over again.

-For more than two centuries, Americans have fought to establish liberty, expand liberty, and preserve liberty.

♪♪ Join me, Doug Ginsburg, on a personal journey as I explore our more or less perfect union and our struggle for liberty.

It begins with the first rule of negotiation -- get it in writing.

♪♪ -1776 -- And a rebellion against Britain becomes a revolution.

♪♪ Colonist versus king.

♪♪ Hi, I'm Doug Ginsburg.

-Matthew. -Good to meet you, Matthew.

We're making a film about the American Constitution, and of course it starts with the Revolution.

What's motivating your commitment here?

-I believe we should be our own country with self-governance and the right to live without someone dictating how we live 3,000 miles away.

-Well, I believe we fought for all the things we talk about -- independence, self-governance, liberty.

♪♪ -After six years of bloodshed, the British throw in the towel.

The 13 American Colonies have won their independence.

Now comes the hard part.

-When you're declaring independence, you don't have to worry about running a government.

You have to only assert what you're against.

-So when the war ended, there was a feeling that we can finally go and chart our own course.

So that's what independence means.

-Most people of didn't think of themselves as Americans.

-If you had asked, 'Who are you?'

They would have said, 'I'm a Georgian,' or 'I'm a Virginian.'

-The average American was born, lived out his life or her life, and died within a 28-mile radius.

-The Articles of Confederation reflected that.

It reflected a collection of sovereign states that were joined together loosely for a common purpose.

-In the very early days of our country, during the period of the Articles of Confederation, there was a lot of trouble.

-Trouble among the states that would spell economic chaos if it happened today.

♪♪ And we're doing a documentary on the Constitution of the United States. -Yeah?

-We fought a revolution and won.

-Yep. -Pretty amazing.

And then the 13 states adopted the Articles of Confederation.

They weren't really a country, a single country, so we'll get to that,but I want to just ask you first about is where these lobster go and how do they get there?

-You know, we have an Internet business.

Some are actually shipped through UPS to customers all over the United States.

-Under the Articles of Confederation, you couldn't have done that because those other states would say, 'Our waters are going to be fished by our lobstermen, and they're going to sell locally, and we don't want you bringing your lobsters in,' so they'd put a tariff on it or just prohibit it altogether.

What would happen if we went back to that?

-Oh, my gosh.

Well, we'd -- The price of lobsters would be extremely low because obviously we catch way more than what we could use in our state alone.

Most of it leaves the state one way or the other.

-And does it ever encounter any barriers like that?

-Not anymore, no.

-So if you had to sell just in this local area?

-Yeah. Oh, we'd be giving them away.

-You'd be giving them away? -Sure.

-Yeah. -Yeah.

-Not enough market? -No.

-It would put almost everybody out of business totally.

-Well, that's pretty much what happened under the Articles of Confederation.

There wasn't much commerce, andit really held the economy down.

-Yup.

-The states were erecting barriers to trade, making it impossibleto ship goods across state lines or subjecting them to high taxes.

It took a crisis to bring the states together.

In Massachusetts, high taxes and poor harvests threatened thousands of veterans with poverty and prison.

-And they had a big grievance, which is they had never been paid enough for their service in the Revolutionary War.

They were owed.

-Led by former Army captain Daniel Shays, they rebel.

Why are the farms in danger?

-We have difficulty selling our produce and commerce across state lines.

Each state has different rules.

Each state would have their own currency.

Is it honored in every state?

We think not. We're having trouble.

-Sounds like the Revolutionary War all over again.

Another war about trade and taxes.

Massachusetts begs the Continental Congress to crush the rebels.

[ Men shouting ] But under the Confederation, Congress has no power to tax, therefore no way to pay an army.

Local merchants dig into their own pockets to quash the rebellion.

Shays' Rebellion was just a symptom.

The underlying disease surely would have proved fatal to the young nation if something was not done and quickly.

-The states were all going in different directions.

They were printing their own money.

They were inflating their currency.

They were doing protectionism.

They were proving how hard it is to govern.

-A confederation ultimately doesn't work why?

Because you have one government telling another government what to do.

-And this was time of great danger, and they all knew it.

They knew they were falling apart.

-What had up until now never been possible becomes possible.

A Constitutional Convention in 1787 in Philadelphia.

-When you think of the Constitution, what does it mean to you?

-Founding principles of our country.

What makes us different from other countries.

-Just kind of the freedom of the American people and The Revolutionary War and I think, 'Oh, that's pretty cool.'

-Constitution protects us from an overreaching government.

-It's the set of rules that our country ideally adheres to.

-It's a collective we.

It's not just one faction.

It's not just one partisan group.

-The document that says we're all one people or should be one people.

-The Constitution is our commonbirthright as American citizens.

-Our Constitution is special because it's a written constitution.

-As Chief Justice Marshall wrote in 1803, a written constitution is, 'The greatest improvement on political institutions.'

-What we do when we become Americans is not swear an oath of allegiance to the United States of America or to the existing government of America.

We swear an oath to the Constitution.

It unites us and makes us a country.

-The genius of the American experiment is the notion that the same rules apply equally to all.

-It is the foundation of all of our laws.

It is what guides us.

It's the granddaddy of the laws.

-A constitution is important because it provides the law that governs those who govern us.

-That's an important point.

The Constitution doesn't govern us, the people.

It protects us against the government overstepping its bounds.

But the delegates to the Constitutional Convention, whom we call the framers, knew that no one had ever written a constitution that lasted.

Here we are in Philadelphia in the summer of 1787.

The states are disunited, the economy is in depression, and other nations walk all over us.

And no one has a solution except this man.

5'4', 36, and hyper-prepared -- James Madison.

He had already helped write the Constitution of Virginia when he was all of 25.

-He had spent his life in training for this, whether he knew it or not.

-He was small in stature and lawyerly, legalistic, not very quotable.

-People tended to kind of zone out when he started to speak.

-He preferred to work in the background quietly.

He didn't mind if others took credit for what he did.

-He knew government, and he knew government probably better than any framer and maybe anyone alive in his generation.

-Better even than the lifelong friend who Madison met in the Virginia Legislature in 1776.

Thomas Jefferson was the principal draftsman of the Declaration of Independence, that stirring call to arms that started a revolution, while James Madison was the principal architect of the Constitution, a carefully balanced document that would create a lasting government.

This contrast between the two reflects the ways in which they perfectly complemented each other.

-They brought out the best in each other.

Jefferson was inspirational and very impractical.

Madison was kind of plotting but extremely practical and very political.

-When the British burned Washington in the War of 1812, the Library of Congress lost all its 3,000 volumes.

Jefferson offered his own library to replace them.

He had more than 6,000 volumes.

The framers read everything they could get their hands on.

Montesquieu and Rousseau, Hume and Locke, all the great political thinkers, and the histories of ancient Rome, of ancient Greece, and their experience with monarchy, with republics, and with democracies.

-Long before the Convention, Madison squirrels himself away to read.

Jefferson was off in Paris representing the United States, but he and Madison kept up a frequent correspondence.

♪♪ ♪♪ -Paris was the book capital of the world.

Madison used to write to Jefferson really begging him to send more books on government.

♪♪ -Book shops were rare in colonial America, and books on government even more rare.

-And Jefferson would ship them back.

Now, imagine shipping booksfrom Paris to the United States.

-Thomas Jefferson sent him an entire chest full of books.

And so he went up to his second-floor study and read all these books and tried to figure out the causes of republics failing.

-And that learning is whatis embodied in our Constitution.

What he was doing was creating a nuanced and really quite novel mix.

Something that could guarantee the fairness of a democracy while trying to achieve part of the stability of a monarchy.

That's what was unique about James Madison.

-Not all our Founding Fathersare fathers of the Constitution.

Jefferson is away as ambassador to France, John Adams away as ambassador to Britain, his cousin, Sam Adams, away by choice, and the fiery Patrick Henry fears the new boss will be the same as the old boss, another king.

Patrick Henry said he smelled a rat in the breeze coming from Philadelphia.

So did the entire state of Rhode Island.

No delegate from Rhode Island even showed up.

Madison arrives first, 10 days before anyone else.

55 delegates in all.

Merchants, shippers, planters.

Average age, 42.

Four are under 30.

More than half are trained in law.

Most have served as legislators back home.

About half have attended college in a time when few Americans got past grade school.

Their host is Philadelphia's leading citizen, an 81-year-old author, inventor, scientist, diplomat, and raconteur.

Dr. Franklin.

-Why yes I am, sir. -I am Judge Ginsburg.

How are you, sir?

-I am quite well, I think, considering I'm an old man.

I have the gout that comes and goes.

-I understand you are expecting some very distinguished guests.

-Oh, we're expecting people from all the colonies.

Well, most of the colonies at least.

-Colonel Mason, I'd like to shake your hand.

-Me, sir? -In many ways, George Mason is the most underrated of the framers.

-The Declaration of Independence, the Constitution, the Bill of Rights.

They all bear your stamp.

-He had more of an impact on the Constitution than anyone perhaps with the exception of James Madison.

-Ah, Mr. Madison.I understand you've been waiting for these gentlemen for some time.

What's that under your arm, if I may ask?

-Some notes I've been taking. -Very interesting.

I think I'd like to see that.

Sir, introduce yourself.

-Colonel Alexander Hamilton.

At 13, I was running a thriving import/export business.

My employer had taken ill.

At the age of 21, I dare say I became a war hero.

And now at age 32, I am here calling for this convention.

-That is quite a résumé. I hate to think where I was at age 32.

-You flatter me.

-And the squire of Mount Vernon, hero of the Revolution, the living symbol of America.

-Well, I am very fond of George Washington, and I think one of the reasons that we have a Constitution is because everybody trusted him.

-Washington was a unifying force.

What a lot of people don't know about Washington was how closely he worked with Madison behind the scenesto get the Constitution adopted.

-The delegates choose him to preside.

As the presiding officer, do you speak often?

Do you run the meeting?

-Oh, well, I don't intend to.

I need to maintain my impartiality.

-He rarely talks,but his presence speaks volumes.

-He wanted this experiment to succeed.

Too many people died literally in front of him to see it fail.

-When the Virginia planter left Mount Vernon, he didn't travel alone.

-Washington brought his personal slave to Philadelphia to attend to him while hewas presiding at the Convention.

-The original sin of the Constitution was its treatment of African-Americans and its preservation, implicit or explicit, of slavery, but that was the original sin of the country, and it's reflected in the Constitution as well.

-The Constitution of the United States was a constitution for mainly white men.

-Of the 55 delegates at the convention in Philadelphia, almost half of them owned slaves at some point in their lives.

Although many had moral qualms about slavery, few freed their slaves.

Even the founder who declared 'All men are created equal' never freed a single slave in his lifetime.

-Jefferson himself writes in the notes on the state of Virginia that he doesn't believe enslaved African-Americans to be capable of having art, of having love, of being equal to whites at all.

And so these beliefs allowed them... -To dehumanize. -...Yeah, they dehumanized them with this institution.

-The vast majority of members, even Southern slave owners, recognized that slavery is incompatible with the values that the American Revolution claims to stand for.

-It's a conundrum.

They could write and speak eloquently and with insight about liberty and equality, but they seem blind to the fact that their slaves were just as freedom-loving as they themselves.

They taught them Christianity, so they understood that their slaves had souls, but they never treated them as fully human.

I don't think I'll ever understand that.

-In the late 18th century, you see Jefferson himself grappling with slavery.

Jefferson calls it a moral depravity.

In one instance, late in life around 1824, he writes that, 'Slavery is like having a wolf by the ears.

Where you see the danger of either holding or letting him go.'

-Jefferson may have fathered up to six children with his slave, Sally Hemings.

-Jefferson is so closely associated with America and American democracy and this exceptionalist view that many of us have of our country, and that's why people study him.

Because you can't figure him out.

He's always a puzzle.

-The consensus was, A, slavery was wrong, but, B, it was going to die out of it's own weight.

So the best thing was to do, because they were not going to be able to get the deep Southern states to go along with anything would threaten slavery, was to kick the can down the road and let slavery die out on it's own.

-But the framers can't see down the road.

In just five years, an invention will transform the economics of slavery.

-They don't foresee the cotton gin.

They don't foresee the cotton kingdom.

Two things are true, and it's hard to put them together.

One is that slavery is the epitome of America's original sin, and the other is if the framers tried to end it in 1787, the Constitution would have never passed.

-The people who were there thought that failing to reach this compromise and actually create this union would have been disastrous.

There never would have been a United States of America.

-The greatest document in the history of freedom will be drafted behind closed doors, and each delegate swears not to reveal the proceedings.

-Lest our transactions get into the newspapers and disturb the public repose with premature speculations.

-So you can have a frankdiscussion and still remain free to change your minds. -Yes.

So that we won't be seen as what you might call flip-floppers.

-And believe it or not, nothing leaked to the press.

Not a word.

-I mean, if you want to draw a picture of a conspiratorial takeover of the government, it sounds almost like that's what it was.

-The Constitution itself was a lawless act.

It was illegal.

-They were authorized to revise the Articles of Confederation, and that was all.

-The first thing they did was to vote to disregard their marching orders, and instead of amending the Articles of Confederation, they just threw it out.

-For the first time in history, men invented a government.

But what kind of government was it?

-I pledge allegiance to the flag of the United States of America and to the republic for which it stands.

-That's right. A republic.

-There had been republics in the past, and it was assumed we would have a republic of some form here.

-And that republic would be structured so as to prevent the majority from oppressing a minority.

-What were they afraid of?

The accumulation of powers in one hand, and one hand could be a single dictator.

It could be a very, very powerful majority that tramples on people's rights.

-I think they actually did not have a very high opinion of direct democracy.

They really wanted a constitutional republic.

-Democracy, in the late18th century, it means mob rule.

-The single biggest advantage of a republic is that it recognizes that the government are our servants and the people are the masters.

-I think the framers were very realistic about human nature, and it's probably the thingwhich sets our government apart.

-'We make allowance for a certain degree of selfishness in men,' wrote the Scottish philosopher David Hume, 'because we know it to be inseparable from human nature.'

Madison shares that skepticism.

'If men were angels,' he wrote, 'no governments would be necessary.'

-On the other hand, they did not think that they were constructing a government for devils, because that can't be done.

-The framers are deeply realistic about human nature but also having a faith in the possibilities of human enlightenment.

We shouldn't call them either skeptics or idealists.

They're a little bit of both.

♪♪ ♪♪ -Inside this building is the oldest document in the history of liberty, the first great pushback against arbitrary government, an ancient blow that still echoes across eight centuries.

Oh, it's magnificent.

-You'll see here the seal, which is entirely intact.

-This is Magna Carta, the Great Charter, to which King John agreed in 1215 at the insistence of his barons that he be held accountable. -Yes.

It's the first document of its type that puts the rules above the ruler.

-Very much the way we think of our Constitution.

-Magna Carta was an agreement between nobles.

It was not exactly a sweeping testament to the rights of man, but the most important thing about the Magna Carta is it reflected a critical moment in history where absolute monarchs became not absolute.

-The landmark document was sealed in this field near London.

-I'm told that Runnymede never had a memorial until like 1957 when the American Bar Association put a memorial there I think because we always revered it even more than the English did.

-Were you taught much about the Magna Carta in school?

-Not a great deal, no.

-Frankly, I don't know a lot about it.

-Yeah, same.

-Perhaps if we were taught about its importance, then we would see it the same way you guys see it.

-Unlike, I guess, the Constitution of the United States which people are talking about all the time.

-So I hear. -Yeah.

-Magna Carta is like a seed planted in the ground.

And out of it comes a tradition, and the tradition is the tradition of English liberty.

-The great dream of people who love liberty is the rule of law, not the whim of men.

-That's what we brought into our Constitution, that notion of freedom under law.

-Three weeks after Pearl Harbor, the Declaration, the Constitution, an early copy of Magna Carta are whisked off to Fort Knox for safekeeping.

So was a rare Gutenberg Bible.

-In that vault in Fort Knox, you had the evolution of humanity from a system in which God ordered how we would order our lives to a system by which we took control and responsibility for ourselves.

-What all those things have in common is that they're sacred texts.

Two of them define who we are as a people.

-Remember, our Founding Fathers signed a prequel to the Constitution right here, a document that trumpeted the natural rights of all persons.

Colonel Mason, I believe you wrote them down in the Virginia Declaration of Rights.

-That I did, sir. And they are life and liberty, the ways and means of acquiring and possessing property, and the way to obtain happiness and safety.

-I think you got that from John Locke.

-That I did, sir, plus Mr. Burke.

-A century earlier, Locke declared that government exists to safeguard life, liberty, and estate.

But Jefferson made it sing.

-'All men are created equal, endowed by their creator with certain inalienable rights.'

I think that's one of the most important sentences in the English language.

-And then the next sentence of the Declaration says, 'To secure these rights, governments are instituted among men deriving their just powers from the consent of the governed.'

-And governments either acknowledge those rights or they fail to acknowledge those rights, but they never, never confer rights.

-If they're given by government, they can be taken away by government.

The view that our rights antedate government is the view that has made America free and the place to which people flee, not the place from which people flee.

-The Declaration of Independence set out our national aspirations as a people, as a country.

The Constitution is the mechanism that allows that process to happen.

-The framers of the Constitution faced a challenge unique in history.

They had to determine how powerful the central government should be.

-There is things that the government does that I think are a necessity, and that is protecting the population.

[ Siren wailing ] -This is a confirmed tornado on the ground by Doppler radar.

-The federal government funds a nationwide network of more than 150 high-resolution radars.

-The National Weather Service, they send out the warnings.

We take out the warning and air it out even more.

That's how we save lives.

-So we were in the Storm Tracker, and we got hit by hail, got hit by a bunch of thunderstorms.

-The tornado crossed the interstate three miles north of where we had them.

-Well, we're just a mile from the interstate, and he actually gave the mile marker number.

-No doubt that is a debris signature.

-'Get to your basement now. The tornado is right over you.'

-You start hearing glass break,and you're hearing lumber break, and you see debris flying around.

-I think 50 people are dead at that point because I know how violent this tornado is because I'm seeing it on radar.

-And I just knew the house wasgoing to come down on top of us.

-Because of Grant and just the coverage we had, lives were saved.

-But I couldn't do that if I didn't have the radar.

-Our taxes fund the National Weather Service, a federal agency that many agree we need.

But should our taxes pay for the cleanup?

Should the federal government set standards for our local public schools?

Explore space?

Regulate the content of ketchup?

Just how much power should the feds have?

In 1787, the real power did not reside in the national government.

It was held by the individual states.

The central question facing the framers was not how much power to give the national government.

It was how much power they couldconvince the states to give up.

-Jefferson and Hamilton had a big argument about where power should reside.

Jefferson said states, Hamilton said national government.

Right answer?

Madison -- 'You're both wrong.'

-Federalism does not mean 'states rights,' nor does it mean centralization.

It means a balance between the two.

Nobody had ever seen this kind of government before.

-And they didn't set that up because they thought it would be efficient.

They set that up because they were trying to make government self-limiting.

♪♪ -If you're building a new Constitution from scratch, you got to have materials to work with.

The most successful system of government that most of them had known was the British Empire.

-The governor of the Virginia colony was appointed by the king, and he had his own palace, but the governor had to share his power with another branch of government.

This is Virginia's House of Burgesses, the first legislature in America.

The first delegates passed laws against idleness, drunkenness, gambling, and 'excess of apparel.'

-Excess of apparel?

-Small potatoes as far as legislation goes, but the beginning of self-government in America.

When it came to writing the Constitution, the framers' great concern was with the concentration of power in any one branch, which would inevitably lead to tyranny.

As usual, Madison had a solution.

-Madison came to the Constitutional Convention with something under his belt that was called the Virginia Plan.

-Might we call it a system or a draft?

-We might. It's a plan.

-A plan. That's what we need.

-Which was a kind of draft-model Constitution that he and some other people had put together.

-The framers understood the clear link between structure and liberty and how important it was to get the structure right, or the liberty would not be protected.

-If you read writers like Montesquieu, they primarily talk about two branches, the executive and legislative branch.

-Madison creates three branches.

In Article 1, a legislature to pass laws.

Article 2, an executive to enforce the laws.

And Article 3, a judiciary to settle disputes over the meaning of the laws.

We call this a system of checks and balances.

Each branch checks the others to preserve the balance and to prevent the tyranny of any one branch.

-Our Constitutional system is a lot like 'Animal Farm,' where all branches are equal butsome are more equal than others.

In our system, that branch is the legislative branch.

-When the framers create the Constitution, their experience was that the most powerful part of a government was the legislature.

-It is the most powerful branch.

It's also the most dangerous branch.

-So their real concern was about restricting what legislatures could do.

-Here is how they did it.

Would you read that, please?

-'Article 1, Section 1.'

-'All legislative powers herein granted...' -'Herein granted shall be vested in a Congress...' -'Shall be vested in a Congress of the United States.'

-Herein granted means that the legislature, or Congress, has no powers that are not in the text of the Constitution.

That's what we call enumerated powers.

-We have a tendency in modern-day America to think of the national government as possessing all powers of government.

That is not the case.

The national government is a government of enumerated and limited powers.

-All the federal enumerated powers are listed there, and you can read them in about 30 seconds.

-What do you think would be the first power, the most important?

-The first enumerated power of the government?

-Yes. How about a hint, okay?

-Okay.

-Boston, tea.

[ Indistinct shouting ] -The Boston Tea Party? -Yeah.

-They didn't want taxation without representation.

-Exactly.

-To tax the people? -Bingo.

-The power to tax comes first.

Congress can evidently, with very few limited exceptions, tax everything and anybody at any rate it sees fit.

It's an awesome power.

-As the Supreme Court said in 1819, 'An unlimited power to tax involves the power to destroy.'

Taxes we've got.

What else do you think would be right up there?

Before the Internet, how did people communicate?

-Through letters and newspapers.

-Well, they had to facilitate it.

-Oh, the postal service? -Yes.

-Power to trade with other nations for commerce.

-They can regulate commerce, right.

-Printing money and circulating money.

-Treaties with other nations.

-The Senate ratifies treaties.

-To declare war. -Very important.

-Raise an army. -Raising an army, exactly.

Along with granting patents, regulating immigration, and borrowing money.

-And it's not supposed to do other things, just this.

-The states' powers in the Constitution are unenumerated.

They're basically whatever is left over.

-And, in theory, that was supposed to be that.

-But the framers worry that the legislative branch will grab too much power.

-Think of the Congress as the giant.

You cut the giant in half.

That gives you bicameralism.

-Two chambers of Congress, the House of Representatives and the Senate.

-One of the major reasons why we have two is to create an additional hurdle for passing a law because this was a finely wrought and deliberately difficult process because we wanted to make it hard for government to pass laws.

-Madison said, 'It is true that certain good laws will never get through.

On the other hand, it is more important to stop bad laws.'

♪♪ -Clearly we ought to bring our attention to the issue of representation, and equality between the states is untenable.

-Madison wanted to play off interests and time against each other.

So he created a House of Representatives where people are nervous wrecks because they have to run for election every two years, and he created the Senate which had six years, which made them very slothlike in terms of how they wanted to move.

-But Madison's plan has a hitch.

-Under my plan, members of both the House and the Senate will be chosen on the basis of population.

The larger the state, the larger the delegation.

It's only fair.

-No. -It's only fair.

-I don't think that's going to work.

-Figuring out how the members of Congress should be elected threatened to wreck the convention.

So the framers did what legislators do when they can't agree.

They referred the question to a committee.

The man of the hour is as humble as his roots, a self-made Connecticut lawyer and consensus seeker.

Roger Sherman crafts the compromise that saves the Constitution.

The House has proportional representation.

The bigger the state, the bigger the delegation.

The Senate levels the playing field.

Big state or small, each gets two Senators.

-There are a tiny number of people in Wyoming.

They have two Senators.

There are a huge number of people in California.

They have two Senators.

That's just not justifiable.

-Just because there are some big states that have huge populations, they don't get to run roughshod over the rest of us.

-It was that or the smaller states would not have accepted the Constitution.

The larger states were forced to compromise.

Do you think we've lost that art or skill of compromise today?

-Oh, absolutely.

I think we're starting to put party over the people.

-Compromise doesn't happen because people love to compromise.

They hate to compromise.

-Very few people step across the aisle, whether it be Republican or Democrat, and that's why there is a stalemate on many, many issues.

-The Constitution is about forcing compromise, and most people don't understand that, or if they do understand it, they don't actually like it.

-Sherman's compromise will also shape the second branch of government.

One of the key issues for the framers was to where lodge the executive power.

They did consider having a committee, but decided on a single individual so that responsibility would be clear and yet decision making would be expeditious.

The chief executive is chosen by an electoral college.

Under Sherman's compromise, each state gets as many electors as it has members of the Congress.

So small states are made more equal.

-Which I think nobody today would really defend in the way it currently operates.

-If it weren't for the electoral college, the West Coast and the East Coast would dominate all election of presidents.

-But because of the great need of activity and dispatch in our federal government, I think we can all agree that the President... -Perhaps the hardest sell you could make in 1787 was to suggest that we really need a strong leader in this country.

They had just done away with an English monarch, and suddenly people were saying 'We need to create something like that.'

-What are some of the powers given to the President in the Constitution?

-He has the power to appoint judges.

-Dear to my heart.

Thank you. -And the cabinet, yeah.

-Ambassadors. -He has the power to veto.

-The president is the Commander-in-Chief.

The buck stops with him.

-Oh, Commander-in-Chief, yeah.

-The right to negotiate treaties.

-Power to pardon everyone except in the case of impeachment.

-No one else has said that.

-Yes. -I think you've now covered it.

-The great shadow over human history was despotism -- being subject to the will of an individual with power.

-One of the very important themes of our Constitution was getting away from the power that the king or the queen had.

-He also implements laws passed by Congress.

Can you read that out loud?

-'Article 2, Section 3.'

-'He shall take care that the laws be...' -'Faithfully executed.'

-And to remind him of that, he has to swear to it when he takes his oath of office.

-I, John Fitzgerald Kennedy, do solemnly swear... -That I will faithfully execute the office... -Of President of the United States... -And will to the best of my ability... -Preserve, protect, and defend... -The Constitution of the United States... -So help me God.

-Congratulations, Mr. President.

-I think that the executive branch ought to be held by a man of decision.

-Also, he needs to be accountable for his actions, sir.

-Gentlemen, gentlemen.

-No question who our first president will be.

-When you're looking aroundfor a single figure to lead you, it's hard to walk by George Washington.

He was not only physically imposing, he was deeply loved and admired.

-So admired he wins the electoral college unanimously, a feat never repeated.

-The real precedent for Washington is you don't die in office.

That every president, no matter how indispensable, is disposable.

-After the Revolution, Washington stunned the world by surrendering power.

-King George said if he would do that he would be, you know, the greatest man of the age, and so the people who were thinking about the Constitution trusted him.

-So much for first two branches of government.

If you can't recall the third, you must have led a virtuous life.

-There's three branches of government.

There is -- And I'm not a scholar by any stretch of the imagination... -We're starting off on a good footing.

-...but there's the legislative branch, there's the executive branch which is the President, and then I don't know what the third one is called.

-Hey, I'm a judge. -Okay, the judiciary branch.

-So the framers spent a lot of time on Article 1, and they spent a lot of time on Article 2, and then you get to Article 3 which looks like they covered it at a pub over lunch.

-At the beginning of the republic, the president had a very hard time getting people to serve on the Supreme Court.

Nobody wanted to do it because it seemed like a thankless job.

-I think it was Hamilton who first coined the phrase that 'the judiciary is the least dangerous branch.'

-This is the Supreme Court of the colony of Virginia in Williamsburg, Virginia.

In colonial times, it met only in April and October, so as you can imagine, there were not that many cases.

-And it had no power of the purse or the sword.

-The only thing that judges can actually do is issue pieces of paper called judgments, and then they have to rely on the other branches of government to enforce that judgement.

-So the harm a judge can do was viewed as quite limited.

-Well, it's kind of curious how the least dangerous branch has morphed into the imperial judiciary.

-In 1803, the Supreme Court decided a case, Marbury v. Madison, that may be the most important case it would ever decide.

This is what the court said.

'An act of the legislature repugnant to the Constitution is void.'

And, 'Thus there be any doubt,' the court added, 'it is emphatically the province and duty of the judicial department to say what the law is.'

With these few lines, the court established the principles that any government action inconsistent with the Constitution is void and that the courts will decide what is and is not consistent with the Constitution.

That's called judicial review, and that's what happens whenever Americans go to court to assert or protect their Constitutional rights.

-I don't think there is anything in the Constitution that says that the Supreme Court has that kind of power.

It took that kind of power.

-But it really wasn't until the late 19th and early 20th centuries that the court began to assert the kind of power that we identify with it today.

-Three branches of government divide power, but Madison feared one branch might seize the power of another.

His solution came from Isaac Newton.

-And Newton was the hottest guy around.

He was the new theory of physics.

He looked most closely at this concept of different bodies, planetary bodies and how they effect each other, how they can be locked into orbit with each other.

-And the gizmo that illustrates that is called an orrery.

-An orrery is a model of the solar system.

-Peter Grimwood is an engineer.

His hobby is orreries.

-They were used as basically rich man's toys to impress your friends.

They started off in the 1700s, when it was firmly established that the sun was in the middle and the planets went 'round.

This was something very, very new and it all made sense.

A planetary system is something that is always in motion, always in balance.

Gravity is pulling them in.

Centrifugal force is pulling them out.

And the two balance each other out, and so they go around in a fixed orbit.

-When you have three planets locked in orbit, it is remarkably stable unless you let one planet grow in size.

Then the entire orbit becomes unstable.

-How do you contain political ambition?

The most dynamic, destabilizing force in the entire world.

Madison figured it out.

You force ambition to counteract other ambition.

That's what the Constitution does.

Brilliant.

-They knew the corrupting effect of power.

They knew that greed, avarice, envy, all of those things would be at work.

-He pitted their ambitions against each other.

He took what was a flaw in human beings and he turned it into a positive.

♪♪ -After the framers hash out their ideas, someone has to put them in writing.

-And one more, Mr. Morris.

-Well, the guy who wrote it is Gouverneur Morris.

-Gouverneur is his name, not his title.

A 35-year-old bachelor from Pennsylvania.

-He's a tall, peg-legged guy.

He spoke more in the convention than any other speaker.

-173 times.

When you read the constitution, you're reading Morris.

-He spoke most ardently, more often against slavery.

-Morris never used the word slave or slavery in the Constitution.

-So they used euphemisms to describe slavery such as 'persons held to service' or 'other persons.'

-I believe he pulled the document together in a very nice way.

I think he was particularly instrumental in the preamble.

-He made the single most important editorial change in American history so that it did not say, 'We the People of the states of' but instead, 'We the People of the United States.'

-'We the People...' -'Of the United States...' -'In Order to form a more perfect Union...' -'Establish Justice...' -'Insure domestic Tranquility...' -'Provide for the common defence...' -'Promote the general Welfare, and...' -'Secure the Blessings of Liberty...' -'To our ourselves and our Posterity,' -'Do ordain...' -'And establish...' -'This Constitution...' -'For the United States...' -'Of America.'

-Need a lawyer to explain the deed to your home.

The Constitution is a lot easier to understand.

You should read it sometime.

The Talmud, the Bible, the Qur'an -- religious law all written down.

Magna Carta, Constitution -- all written down.

Is that important, and if so, why?

-You have to have a written documentation of history, beliefs.

-It is important that any piece of work of that level is written down because the oral history can change easily.

-We still live by those fundamental beliefs in our system,and they're very powerful words.

-Our Constitution is written so as to create a government of laws and not of men.

There's a reason the Ten Commandments were written in stone -- so the words don't change.

-You know, I believe in the Constitution of the United States.

I think it's a brilliant document, and I think the men and women that have interpreted it over the years have worked like the devil to get it right.

-As a federal judge, I've heard more than 3,000 cases.

And I can tell you there have been times when my head and the law pulled me one way, although my heart would have taken me the other.

-The written Constitution is all that matters.

'We the People' is how it starts.

-I'm afraid too many people worship the Constitution.

We are being ruled by people who have been dead for 200 years.

-How should the livinginterpret the words of the dead?

The debate comes down to the document's original meaning versus a living constitution.

-Originalism is simply the proposition that the meaning of the text of the Constitution must remain the same until it's properly changed.

-It's actually very hard to discover, often, what the original meaning was because the text of the Constitution often doesn't give you that much guidance.

-And I think we delude ourselves if we believe that there is some objective meaning or correct answer.

-I don't believe that.

If that's true, I can't see the point of having a written Constitution in the first place.

-I'm one of the living guys.

I believe that the Constitution is ever-evolving.

-There are going to be circumstances where we have to interpret the meaning of a word.

I happen to be fairly limited in how far I'm willing to go.

-But originalism does not say, 'And stick with that through eternity.'

Article 5 of the Constitution specifically contemplated that the Constitution could and should be amended.

-The problem is the Article 5 amendment process is extremely difficult.

It's very, very hard.

I think the best way to think about a written Constitution is it's a starting point, but it's not the ending point.

-Of course we do our best to understand what the text meant at the time, but for all of the debatableissues, that's a starting point.

-If you're a living Constitutionalist, it can be whatever you want it to mean.

In fact, the only living Constitution is a Constitution that's followed.

-That has almost nothing to do with modern judicial review because in all modern cases of any importance, the Constitution is not clear.

-We're not writing on a blank slate, but we are filling in the blanks and figuring out what the Constitution should be.

-The Constitution does evolve, but it evolves slowly.

It evolves with the time.

It needs to be tweaked.

-All of us agree that the Constitution should be up updated.

What we disagree on is who is to do the updating.

-That's what the political process is for.

To resolve those difficult questions.

-The last people you want to be changing that document are judges.

-The judiciary is not licensed by the Constitution to add to or subtract from the text of the Constitution.

-What the Supreme Court says it means is not actually the Constitution.

The Constitution is the Constitution.

-The idea that the Constitution should evolve is really inconsistent with it being the law, the law of the land, the supreme law of the land.

The alternative is a law that's forever uncertain, no more stable, no more reliable than popular opinion of the time.

Opinions change.

Mores change.

The words don't.

The framers emerged from four months of secrecy with the first national constitution ever put to paper.

Well, Dr. Franklin, what have you given us?

-Well, sir, a republic, if you can keep it.

-If the United States had not succeeded in producing a stable constitution... -The United States would have broken up into a series of confederations.

-Some of them would have been democracies, but some of them would have been monarchies and dictatorships.

They would have been at war with each other for decades and decades and decades.

-What came out of Philadelphia was more than just a document.

It was a country.

[ Cheers and applause ] -But first, the Constitution must be ratified by 9 of the 13 states.

Of all people, George Mason says he'd rather chop off his right hand than sign the document.

Mason's concern was not with anything in the Constitution.

It was with what the framers left out -- a guarantee of the rights the Declaration of Independence said were unalienable.

Without it, the Constitution would never pass.

The very fate of the United States was at stake unless the Founders could come up with a miracle.

And that miracle is right here, and every American knows its name.

-Next time on 'A More Or Less Perfect Union'... -Free speech, free thought, free religion.

Never tried before.

-If it were not for the press, people would not know what the government is up to.

-Let's have Pink Pistols.

-To be worked like a mule, to be a piece of property.

-How cruel is that?

-The North finally cared about slavery.

-January 1st, you will be free.

♪♪ ♪♪ ♪♪