The Constitution and the Bill of Rights: Amendments 4, 5, 10

I'm Walter Isaacson I'm here with the faster Joseph Ellis we've been talking about the founding of our country and now we're talking about the Bill of Rights we've done the first three amendments the one that's amendment number four is particularly interesting because it shows how something written two hundred and some-odd years ago is quite relevant to today in different ways it says the right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and then talks about Warren you know how you have to have warrants we're still doing with that a bit when it comes to eavesdropping wiretapping matter cybersecurity well there I remember there was a big you know constitutional debate it's but two in the 60s whether that the Fourth Amendment was essentially a recognition of the right to privacy but i think the judgment is now is threatening privacy is a level of intrusion that was probably unimaginable to anybody in the late 18th century you don't think Madison when he wrote this thought much about the NSA eavesdropping I don't think so although I think he thought about analogous intrusions into his own life and in his own time by often British agents remember when he would write to Jefferson from America to France he wrote in code mm-hmm because of snoopers but what was Madison thinking when he pushes for unreasonable search and seizure I don't think he was thinking about a hacker in an Internet situation I think he was thinking about troops coming in and ruffling through your papers and but that basically couldn't search her home unless they had a warrant yeah and that was something that was not fully established before the American bill of rights that's right i mean that's that's not in whether there is no written british constitution so but it's actually also interesting that in the united states for the first time with the passage believe it or not of the Alien and Sedition Acts in 1798 for the first time truth is a defense against libel mm-hmm but you know what's particularly interesting to me about this amendment is that it does grow with the times and even the very words that you need warrants that you have to describe what's going to be searched that's now what we're interpreting when we say do we have the right to eavesdrop do we have the right to you know use NSA surveillance it reminds me again of how it's a living document let's go into the Fifth Amendment very famous which is that no person shall be held to answer for capital or otherwise infamous crime unless on the presentment or indictment of a grand jury and then it goes on to say they shall not be compelled in any criminal case to be a witness against himself what was that all about why were they worried about that a lot of state constitutions had this language in them with our Star Chamber yeah yeah Dave thinking of the british version of the Star Chamber in the 17th century also vice Admiralty courts in the Revolutionary era are used to essentially prosecute people for violating the Navigation Acts in a way that is it takes away their rights so they were thinking of the experience of the British in the colonial and the Revolutionary era and a lot of the state's recommending amendments had this in there's a consensus here that we can fix this and we've learned our lessons and we can set up a judicial system that functions as to prevent those kind of in justices and let's finally leap ahead to the Tenth Amendment which is the one where they're balancing everything right to the States versus the right of the read it out of government the powers not delegated to the United States which is what they're now calling the country by this Constitution nor prohibited by it to the states are reserved to the States respectively or to the people in other words if it's not in this constitution as the role of the central government it's a state right that's absolutely clear but there will be no agreement as to where that line is drawn certain people see enumerated powers in places same Hamilton does with regard to fiscal policy certain people go back to Pennsylvania like Wilson and say this end slavery right people go back to South Carolina and says we are guaranteed in the 10th amendment that they can't do that so this is a living document this is now being used by members of the Tea Party to justify their opposition to govern federal government programs and it's why for example we have to use clauses in the Constitution to say this is a national issue like the Commerce Clause or the Necessary and Proper Clause I like that one better because commerce even we made commerce everything's a justified federal role in the state but the way the bank was initially approved in 1791 was when a brief written by Hamilton using the Necessary and Proper Clause in the Constitution to say that they were justified and so doing and this is once again part of a living document in which we say some of this is federal in you know national government and some of it is a state government and we have an amendment that says let's keep this imbalance and you can have to figure it out every new generation and that's what we do