The first letter, first chronologically, was a letter written in October of 1862 by Jasper Barney, a private in an Illinois regiment. He fought for the Union Army, he was a farmer from Illinois and he is writing to his brother-in-law, another family member, about the state of the war and particularly about Emancipation.

The second letter is written the following month, November of 1862, but it is by a white Confederate soldier, prosperous farmer John White to his wife. And he is writing at a moment when militarily, the Confederacy is enjoying more success but Confederate civilians are living with the uncertainties of having a war fought in their own backyard. He's also writing about the Emancipation Proclamation and the fears that it has stirred up amongst Confederate civilians at home. His letter is a very personal letter too, in that he is quite forthcoming with his wife about how much he misses home and how torn he feels between his desire to be home and protect his family and the need to fight this war.

And then the third letter is written in February of 1864. It is by a black member of the 14th Rhode Island Heavy Artillery, a black regiment. And he is writing from the city of New Orleans, which his regiment is occupying at the time to really articulate what he and many other black soldiers see as the stakes, as why this war matters for black Americans in particular.

Men in a regiment, or at least in a company, tended to enlist together. So letters that come from home will be read probably by more than one person, will probably be read out loud. A letter to home will often include a passage that says, "Brother A says to say, 'X, Y, Z'" With Civil War soldier's letters the vagaries of letter survival can skew our picture a little bit. The letters to home have a much greater survival rate than the letters from home to the front.

The letters from home don't survive because soldiers have nothing that they can do with them. Also, before battle soldiers are likely to destroy any personal letters that they have on them. Their fear is if personal letters are found on them that the enemy will somehow use that information.

The Union has the U.S. Postal Service; the Confederacy never really has a very efficient or working postal service. There's travel back and forth between home and the frontlines all the time, so often somebody from home or nearby is in camp and going home and you send letters that way and when that person comes they bring letters. There are also private express companies.

Jasper Barney's in the hospital when he writes the letter. He is trying to recover from a wound so the first part of the letter is about recovering from his wound and that actually in one sense is typical because almost every soldier's letter talks about his health to almost excessive degrees.

The letter is written in October of 1862, and in the fall of 1862 there's quite a lot of turbulence on the Northern home front and regarding the Union Army cause in general. The war militarily had gone fairly well for the Union in the early months of 1862 and then in the summer of 1862 the war started going poorly for the Union militarily and the North sort of woke up to the fact that this was going to be a much longer war than anybody had anticipated. So by the fall of 1862 the Northern home front and soldiers are still trying to cope with that realization.

One of those new measures that is taken to fight the war is the Emancipation Proclamation. The preliminary Emancipation Proclamation had been issued on September 22nd of 1862 and the Emancipation Proclamation really changed the whole aim of a war that had been begun to save the Union. Now it becomes a war also to end slavery. Now those two goals had never been completely separable but the official line had always been "This is a war to save the Union" and not to have really much of anything to do with slavery. Those changes really rocked much of the Civil War North, particularly the Northern home front.

You have quite a lot of dissent among white Northerners over the Emancipation Proclamation. Black Northerners, there is no dissent. They think this is exactly what has been needed since well before the war began. There are a number of issues at stake in the 1862 elections. There are economic issues, there are issues having to do with civil liberties, what actions can and cannot the United States government take during wartime and there's the war and of course there's the Emancipation Proclamation.

Meanwhile you have a number of new soldiers entering the ranks. So you have elections, tumult and dissent, and a host of new soldiers coming into the army, all at about the same time. And that's when this letter is written.

This letter is written by Barney who has actually been in the army for a while. So he is writing as an experienced soldier to his brother-in-law who has just joined. Barney, who would normally show a certain modicum of deference or respect for his more socially-elite and older brother-in-law thinks that this is too important an issue to stand on ceremony and so he tells him straight up, I think that you're wrong, I think that the Emancipation Proclamation is exactly what is needed to end this war. And what is more, you're going to think so too as soon as you have been in the war for any length of time.

Barney is fairly typical, he certainly wouldn't have called himself an abolitionist, he certainly would not have predicted that in less than a year he would be calling for the end of an institution that's older than the nation itself. It's quite a radical thing to talk about ending slavery in the 1860s. He's undergone what is a huge transformation in his thinking. As you can see from the letter to his brother in law, his family has not really kept up with this transition. So a gulf has really opened between many soldiers and their families at home.

He is on the Emancipation question even on the first paragraph, he says, "Now my lady love is more attentive for I got a letter from her yesterday. She is all right on the goose question." "All right on the goose" means how you stand on the slavery question, she agrees with him about Emancipation so he is pleased about that.

Then in the next paragraph he's addressing what he sees as his brother-in-law's mistaken views. "You say in your letter that you or your regiment is not in for freeing the Negroes. I am sorry to hear it. You wanted to know what I and my comrades thought of the Negro question. I think Old Abe's Proclamation is all right and there is very few old soldiers that is against it. It is my opinion that yourself and the greater part of your regiment will be in favor of it before you are in the service six months. I was of the same opinion of yourself when I first came into the service but I have learned better. You said you thought the thing would come to a finish by spring if the Negroes was left alone, but I think you will soon find out different. For it is my opinion that the war will never come to a close while the Negroes is left where they are to raise supplies for the rebel army. Even if we could suppress the rebellion and leave the main root where it was before, it wouldn't be long before they would try the same game as before. But if we take away the main root of evil and confiscate all their property they will have nothing to fight for hereafter."

First of all, it's the war that has changed his opinion. Second of all, it's going to change his brother-in-law's opinion too. His reasoning is actually quite pragmatic, what he's talking about is the recognition that without the institution of slavery there never would have been a war. So if we want the war to end and if we want not to fight it again we have to get rid of the cause. That passage encapsulates quite well a major shift in thinking that goes on. It's a pretty astute analysis on his part and on many soldiers' part that there's no way that the Confederacy could have conducted a four-year war without a slave labor force. The Confederate workforce is mobilized, is in the army.

"Old Abe gave them 90 days and that was long enough for them to come to terms and save their property and Negroes, but it seems like they wanted to go the whole hog or none. Now, I think it is perfectly right to take the hog and leave them none and then if they ain't satisfied, I am in for banishing every rebel and rebel sympathizer from the U.S. I am a whole soul Union man and believe in giving the rebels a lesson to be remembered in after generations. Then we will never be troubled with civil war again."

He's talking about the precise terms of the Emancipation Proclamation here. The Emancipation Proclamation issued on September 22nd is actually more, probably the preliminary Emancipation Proclamation and what it says is that the slaves in the states that are still in rebellion against the Union as of January 1st, 1863, will be freed.

And so essentially it's an ultimatum delivered to states in rebellion and the reverse of it would say, therefore if you return to the Union before January 1st, 1863, your slaves won't be freed. And the Proclamation says that because it is operating in a context of a Constitution that protects slavery.

And so, the Emancipation Proclamation can only justify itself as a war measure. So what he is saying is, Lincoln gave the states 90 days to come back. He gives them a chance to retain slavery and if they won't take that chance, if their demands in terms of greater protection for slavery are more important to them than coming back in the Union and keeping slavery where it is then they made their own bed and let them lie in it.

By the time Barney writes this letter he has no qualms at all about confiscating the property of even non-combatants. As he sees it now the only thing that's going to end this war is to take a much harder line, to take away the root of the war.

And in the next paragraph he wants to assure his brother-in-law that 'I am not some wild-eyed abolitionist here, I am not a crazy reformer, this is in fact what most of us hardened commonsensical soldiers think.' He says, "Well, I think I gave you a very good sample of the opinions of myself and comrades."

I think the next paragraph is a good clue into the sort of limits of growing Emancipation sentiment among the Union Army, in other words he is all for ending slavery, but ending slavery is quite different in his view from increasing rights of former slaves or anything approaching racial equality.

You see that when he says, "P.S. I am not in favor of freeing the Negroes and leaving them to run free and mingle among us. Neither is such the intention of Old Abe, but we will send them off and colonize them. The government is already making preparations for the same and you may be assured it will be carried into effect."

So he doesn't know what should become of former slaves, but he certainly doesn't want them living among his own friends and family in the North. He refers to a passage in the preliminary Emancipation Proclamation that does not mandate but suggests as a possible outcome for former slaves, 'maybe they'd be happier if we send them back to Africa or to some place in South America and they could start their own society.'

By the time of the final Proclamation all reference to colonization has been omitted. Slavery was Southern, but prejudice was nationwide. And so colonization was sort of a way of coping with the tension between the insistence that we really need to get rid of slavery and uncertainty about what do we do with real slaves?

The Confederate soldier is named John White. He is part of the army of Northern Virginia, which is the fabled army of Robert E. Lee and he is writing from Fredericksburg, VA, in late November of 1862. So he's essentially writing while Union forces are getting ready to try and take Fredericksburg. It's cold, it's miserable, it's wet, his letter may or may not make it outside of battle lines. He's writing to his wife, there are armies in her backyard. Moreover, White's wife lives in a part of the state where there are slaves and there is a terror that the war is going to inspire a slave insurrection. Those fears are present from the very beginning of the war but at the time of the Emancipation Proclamation they become even more acute.

There is more uncertainty and there is a lot more worry in his letter. Even though militarily the war's going a lot better for his side at this time than it is for Barney's side. The Confederacy is very centralized, much more centralized than the Union and the Confederate Government nationalizes the economy to a much greater degree than the Union could even dream of doing.

And there's major disagreement about whether the Confederate State has any authority to do this. The reason why that disagreement doesn't spill over into a massive rush to rejoin the Union is all that stuff stinks, but it's not as bad as the Union. And I think that's the calculus that goes on in the minds of most Confederate soldiers. It's not liking the Union more than liking or feeling any attachment to the Confederacy that keeps the Confederate army in the ranks. Civilians are ready to throw in the towel a lot earlier than soldiers are.

He starts off by talking about a local neighbor's and he explains that's how he got some letters from his wife and is able to send some letters to her. But then, he hasn't even gone through the state of his health or the health of all their children or their friends at home before he gets to his concerns about the possibility of slave insurrection.

So his two main concerns, right from the outset are one, we can't be in touch with each other as much as I would like us to be and two, you're worried and I'm worried about slave uprising.

He talks about the battle that he calls Sharpsburg and Union soldiers would call Antietam. The battle of Antietam took place on September 17th of 1862, right before the issuance of the Emancipation Proclamation. The Confederacy stages a number of invasions of Union soil in the fall of 1862. Robert E. Lee's army marches into Maryland and the Union Army meets the Confederate Army at Sharpsburg, the name of the town in Maryland, along a creek called Antietam Creek.

The Confederates tend to name battles after the town nearest where a battle is fought while the Union tends to name battles after natural features, most often bodies of water. Militarily that battle was a draw, but it counts as enough of a Union victory because the Confederates were trying to invade the North. Their invasion was stopped at Antietam. And so the Confederates retreat back into the Confederacy.

Confederates do not see this as a devastating defeat by any means, but the Union has been so desperate for a victory because Lincoln has been trying to find a way to issue the Emancipation Proclamation since the summer of 1862. But he did not want to do it at a time when the Union Army appeared to be failing because then it would just look like a desperate move and that's not how he wanted it to look.

As you can see from White's description of the battle, he saw it as a terrible battle. But he doesn't really see it as a major Confederate defeat.

"Oh Matt, it almost makes me shudder to think of it. How will the 17th of September live in the memory of the 32nd Virginia Regiment and its friends? Oh, it was an awful day. Imagine my feelings, if you can, when I saw my comrades and friends falling all around me from the death-dealing shot and shell of the enemy and knew not how soon it would be my fate. Thanks be to a kind providence, I came out unhurt but narrowly escaped. A ball passed through my blanket between my body and right arm. I shot my gun until I could hardly get a cartridge down her. Finally, they gave way and ran, hotly pursued by our brigade, the 32nd leading the charge until pursuit was dangerous. They were said to be three to our one."

He's writing this more than a month later, but it's still a pretty fresh impression of his experience of battle. It's such an overwhelming experience to be in a Civil War battle. The impressions are roaring noise, and smoke, and a horrific smell. And those are hard sensations to really write precise words about. And so there are a series of stock phrases that soldiers tend to fall back on. There's nothing in her experience that he could compare it to. It doesn't so much make his description hollow as highlight the enormity of the experience, because he's clearly an eloquent man, and yet that's too overpowering for him.

But it's really important to him for two reasons, one, the enormity of the battle itself but two, it becomes the occasion for this Emancipation Proclamation. White and his wife aren't shocked by the Emancipation Proclamation so much, they sort of have expected it, they thought since the beginning that the Union was out to destroy slavery and all this talk of Union is really just a red herring. But the Emancipation Proclamation makes those fears more real for them. Moreover, they worry that slaves are going to hear about this Emancipation Proclamation and will become emboldened and as a result will start holding uprisings and possibly go on killing sprees.

"Dear Matt, I must tell you I am in a hard place and know not what to do. When I think of my sufferings, both in mind and body which are indescribable and how much my services are needed home, I am tempted to try and get there. I see no probability of getting there if I remain in the service. The war is likely to last for years yet and I cannot reasonably expect to survive it. Besides this, you are threatened with an insurrection," which is again a reference to the slave uprising that they fear is going to happen because of the Emancipation Proclamation, "and how better can I die than defending my family and fireside. To do this, I came in the war and now that you are threated, I consider it my Christian duty to come to your rescue and protection. Dear Matt, you know that I love my country but I love my family better."

And I think in that passage he captures the dilemma that's going to be a dilemma for a great number of Confederate soldiers. And the dilemma is this; most Confederate soldiers don't own slaves. Two thirds of white families in the Confederacy are not slave owners. But they're not stupid, they know full well that this war was begun to protect the institution of slavery and they're not embarrassed about that. In fact, they agree that it was important and the reason why is not necessarily that they own slaves, they live in a place where 40 percent of the population is black. Parts of the Confederacy, the majority is black slaves. And they honestly believe that the two races cannot live together harmoniously without the institution of slavery.

"Dear Matt, you know that I love my country but I love my family better." Now that sounds to me like a very unguarded moment. That's not the sort of sentence you would want anyone you didn't really trust to see. Particularly in wartime when there were questions of loyalty, when there were questions of patriotism, when your own honor rests in part on your reputation for fearlessly defending your country. There's no censorship, there's no official mechanism by which superior officers are going to read his mail. But you don't know that it's not going to go amiss, that it's not going to get dropped somewhere and have someone pick it up. So that he took that risk really underscores the sincerity of that line for me.

The problem is, that if the heart of the motivation is to protect what one sees as the best interests, the health and the safety of one's family. And then the war to protect one's family starts threatening one's family, what do you do? Does he best protect his family by staying in the army and trying to secure an independent Confederacy where slavery will be protected forever or does he best help his family and protect his family by going home so that if there is an insurrection he's there to take care of them? And that tension will haunt him and will haunt most Confederate soldiers really for the rest of the war and is at the heart of the war experience for a very great many Confederate soldiers.

The third letter is written by a black Union soldier to the editor of the most prominent African American newspaper during the Civil War, the Weekly Anglo-African and black soldiers throughout their term of the service in the Union Armies do this. They write to Northern newspapers, particularly black newspapers, about their soldiering experience. The majority of black Union soldiers were former slaves who could not read and write and so we don't have letters from them. Who we have letters from are the minority, who are Northern free blacks, who could read and write before the war. They sort of see themselves as having obligations, not just to their family, representing the war experience to their family, but to a broader, at least black, public.

He is writing from New Orleans, LA, in February of 1864. This soldier is a member of the 14th Rhode Island Heavy Artillery. New Orleans has been under Union control since May of 1862 so he is really an occupation force.

He is also fighting two battles at once because initially black Northerners who tried to join the Union Army were refused. Black soldiers were not accepted into the Union ranks until 1862 and they didn't join in big numbers until 1863.

Once they're in the ranks, they're paid less. At first there are no black officers and at first they are barred from combat duty. So he is fighting to save the Union and to redefine it, to redefine it as a place where he and people like him are seen as citizens, are seen as invested with the same rights and promises as white Americans are. And you see evidence, I think, of both battles in this letter. The immediate audience for the Anglo-African is Northern blacks. However, all newspapers in the 19th century have a habit of picking up letters, columns, articles from one paper and running it in their own pages. There is always the chance that this could run in a white newspaper too.

So he always has a definite audience and a potential audience in mind.

"I will give a brief account of the battalion to which I am now attached, and to which I hope to belong until this cruel war is ended, and the nation enjoys once more the blessings of peace." Well there he's talking about Union versus the Confederacy but then the next passage after that he's onto the battle for respect for citizenship, for equality within the Union itself.

"The Battalion is composed of as good material and contains as brave hearts as any equal number of men that ever shouldered a musket in this war." We are just as good, we are just as brave as any other soldiers, including the white ones, is what he's saying there. "These men have left their own dear homes, their wives and children, of their own free will: why, then, should they not fight?" We have made the decision to fight in this war, just as white men have, so if one of the sort of hallmarks of fitness for citizenship is the ability to reason, to excerpt one's own free will, look, we have done that.

"Yes they will," fight, "as they know full well that this is the golden opportunity that they have given them to establish their manhood, and capability as soldiers before the world."

Manhood shows up all the time in black soldier's letters and it can have one of two meanings. Sometimes it means recognition of the full humanity of all black Americans. In this one, though, he clearly means the adult male identity of black men because one characteristic of the adult man in 19th-century American culture is the ability to take care of a family, the ability to support a wife and children. And its men who are entitled to full political rights and he has twice told his readers that 'we have characteristics of manhood. One is in the moral agency, that we of our own free will decided to do something and two is, we have wives and children, we support families. We therefore have the attributes of adult males and are entitled to the rights of adult males.' So he means manhood in that explicitly gendered way.

The next and final paragraph is a very conventional one. This is the sort of thing that shows up in a number of public letters. "If it be my lot to fall on the battle-field, I shall be content to die far from home and friends, if my ears are saluted by the shout of my comrades, 'The battle is over; the stars and stripes wave triumphantly, and the slave is free!' This is a letter that is not just telling loved ones how he feels but is really also fighting this very public campaign for respect for black soldiers and for African Americans in general.

He signs it with the name Macy and this is another challenge of working with black soldiers' letters. They take pseudonyms all the time. I don't know who this soldier is. That could have been a nickname, it could have been his first name, and he in fact does give his company and his regiment. But he doesn't sign his full name and so positive identification is a lot harder with black soldiers than with white soldiers.

I think juxtaposition works pretty well with letters. The Union and Confederate and the white and the black letters really do sound different. Students I think generally like reading letters too. They feel like real people that seems interesting to them. But having them read the letters against each other, just asking them what jumps out to you, what are they talking about, what strikes you, what surprises you, initial reactions.

With these particular letters it'll work pretty well. If what you want them to talk about is the Emancipation Proclamation it's all over those first two letters. Another strategy, a sort of teaching assignment might be to imagine the letter in response. You could talk about home front and battlefield using these letters because you could ask students to imagine how might Jasper Barney's brother-in-law have responded to this letter. Asking them to imagine responses I think also really makes them really engaged with the questions and the issues that are raised by the letters.

There's not a lot of talk about politics in the Union letter and there's often politics in Union letters. There's not overt criticism of Jefferson Davis or some aspect of the Confederacy in the Confederate letter which there often is in Confederate letters. At the time black soldiers are fighting for equal pay and you'd expect that to show up and it doesn't. In February of 1864 that's a hot issue and it not showing up is a little surprising. That is the drawback to using one letter. Of the letters that went amiss from John White, 12 of them might have talked about something that you would expect, but this letter doesn't. So, it's hard sometimes to resist the temptation to think we know everything about him from this one letter. We don't.

Well, the Bill of Rights, in my opinion, is a very remarkable document because what it does is to summarize the colonists' concern over their legal rights that they were debating with the English government in the 1760s, but it also is a summary of the rights that are guaranteed in various state documents, the state Declaration of Rights, that were written during the Revolution itself, so it's a very lean and mean, if you will, definition of individual liberties as practiced against the national government.

I see the Bill of Rights as part of a longer tradition. The colonists at the time of the Revolution were very sensitive to the issue of rights and so the first iteration was the adoption of Declarations of Rights when the states wrote their constitutions. One of the biggest criticisms of the federal Constitution when it was released was that it did not include a Bill of Rights, and so what we have is a huge debate during the ratification process from 1787 to 1788 over whether or not the Constitution should be amended to include a Bill of Rights.

And this turned out to be a very, very controversial problem. The anti-Federalists published a pamphlet which criticized the Federalists for what they had done. But more importantly for the absence of a Bill of Rights. There’s a very strong public reaction to this throughout the nation for the need for a Bill of Rights.

And it's not until the Massachusetts Convention in the spring of 1788 that they come up with a solution and the solution is that the Convention recommends to the First Congress that there should be additional amendments.

The Bill of Rights is designed to accomplish several different things. One is to protect against an establishment of a national religion or any kinds of national efforts to have uniform religious observance. So you have in the First Amendment, the statement that there shall not be "an establishment of religion," nor will there be a prohibition on the "free exercise" of religion. So religion is on the minds of the framers.

They're also concerned with protecting against a standing army. So you have the Second and Third Amendment and you have the concern about having a well-regulated militia. One of the major concerns with the framers was to prevent the abuse by government of individuals accused of a crime. And so what we find is that in the Fifth Amendment and the Sixth Amendment, and the Eighth Amendment against cruel and unusual punishments, what we have are a series of prohibitions against governmental abuse of individuals. And the assertion of certain guarantees that individuals should have when they're brought to justice before a court of law.

The Federalists and anti-Federalists are very important to understand. The Federalists are the nationalists who in the 1780s criticized the structure of government under the Articles of Confederation and argued that there had to be a stronger central government. The people who become the anti-Federalists are the states rights advocates who were generally happy with the state sovereignty of the Articles of Confederation.

The Federalists were opposed to the Bill of Rights for several different reasons. Led by Alexander Hamilton, who was an author of the Federalist Papers, and by James Wilson, who was a leading Federalist in Philadelphia, they argued that the Constitution was a document of enumerated specific powers. To enumerate means to write out, to elaborate. Therefore, since in Article I, Section 8 there was no enumerated power for Congress to regulate the press or restrict religion or do anything, there was no danger. Isn't it dangerous to sit down, specify all those rights that are identified with the liberties of the people and then sign the document? What about those that were forgotten?

The Federalists argued that the Bill of Rights was unnecessary because individual liberty was protected by your state Declaration of Rights. And so as a Marylander, I could rely on a very broad definition of individual rights in the Maryland Constitution of 1776 and that was the appropriate place. There was no danger from the national government.

The state Declaration[s] of Rights obviously are different, so Delaware's different from Maryland's. New York doesn't have one, Rhode Island would be different. And so, the idea is that the citizens in each of these states have the right to create whatever government they want and so there is no need for a national Bill of Rights when the Articles of Confederation is formed because it is nothing more than the creation of the states, the sovereign states.

One of the frustrations in studying the Bill of Rights is that you would expect to go to the Annals of Congress and find a full discussion of people defending the freedom of religion or attacking the fact that it's too expansive a guarantee of individual liberties and things like that, but it's not the case. There seems to have been a consensus at the First Congress as to what a Bill of Rights should be, similar to the Declaration of Rights on the states.

So Madison is elected to the Congress and becomes an outspoken advocate of the adoption of the Bill of Rights by Congress.

What he did was to take all of the proposed amendments, something like 200 proposed amendments, and he separated them out. So what he cleverly did was to take all of those that went to the structure of the government and ignored them and he went to the others that guaranteed individual liberty and he incorporated them into his proposals. Madison doggedly insists that this thing be done and ultimately prevails.

I think Congress sent something like 17 amendments to the Senate in the final report and then the Senate—which met in secret session so we have no idea what they said—they stripped off, for instance, those amendments proposed by Madison to limit the states to protect such things as trial by jury, freedom of the press, and freedom of conscience. There were 12 amendments that were proposed by Congress and only 10 of which were immediately ratified in 1791.

What I notice is the first word, "Congress." "Congress shall make no law." And when you compare this to the English Bills of Rights, the English Bills of Rights restrict the power of the King. And the American Bill of Rights, somewhat ironically, restricts the power of Congress. It's ironic because what was done is create a republican form of government where we vest Congress with enormous authority, but we're saying that Congress is the most likely entity to violate our liberties. On the one hand, we have enormous confidence in the power of Congress to represent the will of the people, but on the other, we are looking at Congress as a potential abuser of liberty.

If you look at the verbs and you compare it, say, to the Maryland Constitution, the Maryland Constitution says, "the House of Delegates ought not," "should not." In this, it says, "shall." And if you look at the verb throughout the Bill of Rights or in the Constitution itself, there's an absolute prohibition. It "shall not do this."

There's a tremendous amount of litigation that is represented in the Fifth Amendment—the double jeopardy clause something we are all familiar with, which is if you've been tried and found innocent, you cannot be brought on the same case before another court. Or you cannot be compelled to be a witness against yourself and self-incrimination.

The due process clause directly relates to an English protection. Article IV of the English Petition of Rights, stated that no man should be put out of his land or tenements nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due process of law. And so the due process clause is a direct descendant of that, as are many other provisions in the Bill of Rights.

Following the Civil War, African American citizens were not given due process rights by the various states which resulted in the 14th Amendment being passed which would protect their rights, their liberties, as citizens of the United States against the abuse of the state.

One of the most confusing things in my mind about the Bill of Rights is who does it limit. A good example of this is the case that would be decided in 1833 called Barron v. Baltimore. The issue here was the fact that the City of Baltimore in its collective wisdom was improving the streets in Fells Point and the owner of a wharf discovered that every time it rained, his wharf was getting silted up more and more. The issue was whether or not the City owed him money for destroying his wharf.

He lost in the state courts and so being very inventive, what he did was to sue in federal court and he argued that this was a "taking without compensation" and violated his Fifth Amendment rights. So it makes it way to the Supreme Court and Justice Marshall says that you don't have a cause of action because the Bill of Rights says, "Congress shall make no law"; it doesn't say that the states shall make no law. So the Barron v. Baltimore stands for the proposition that the federal Bill of Rights only attaches against federal government action and you cannot go against the states.

The Bill of Rights ends with two very important amendments, the Ninth and 10th Amendments, which are designed to protect rights that are not enumerated, or to reserve to the states rights not given or powers not given to the national government. So what this is designed to do is to address what Hamilton feared in Federalist 84—that if you forget to enumerate the rights, that they will be lost. So the Ninth Amendment says that those not enumerated, shall be retained by the people.

The 10th Amendment, on the other hand, is trying to deal with the powers of the state. those powers not given to the national government in Article I, Section 8, or those powers not prohibited to the states in Article I, Section 10. Everything else is reserved to the states respectively.

So, for instance, when Alexander Hamilton wanted to create a bank of the United States in 1791, Thomas Jefferson who opposed this said that this violates Article X because it is not a power enumerated in the Constitution and since it's not enumerated, it would be reserved to the states and the states have the power to create banks. This is the first debate over the meaning of the 10th Amendment and the use of the so-called "Elastic Clause," the necessary and proper clause of the Constitution to enact those things not specifically enumerated in Article I, Section 8.

When we talk about the First Amendment as probation on the establishment of religion, it is very hard for them [students] to accept the fact that there were established churches on the state level and that they would continue in existence until 1833. Why is it there should be an established religion on the state level but not a national established church?

The Church of England was something that they wanted to avoid whereas they accepted the fact that the citizens of Massachusetts could have a state-established church if they wanted.

What does it mean to have the free exercise of religion? The free exercise of religion as defined in the 18th century by Americans, by the founders, was the free exercise of Christian religion. It would be a Protestant religion, it could be evangelical, it could be Catholic. Agnostics were frowned upon. Atheists were not accepted and non-Christian faiths were not accepted. So when you look at the establishment of religion and the free exercise clause, it is far more limited in the 18th century than it would be in the 21st century.

Freedom of speech is another good example where people take it literally, which is to say: I should be allowed to do whatever I want. I think there're several things going on here. One is, in the 18th century, freedom of speech was often identified with the rights of a republican society, that is, it was a political right that would encourage the free expression of ideas having to do with your political responsibility. It has been transformed in the 20th century into flag burning, naked dancing, as an expression of freedom of speech which an 18th-century person would never recognize.

As for yelling fire in a crowded theater, there are restrictions and the Supreme Court has recognized those restrictions. That is, you have certain social responsibilities and you do not have an absolute right, so all of these rights are conditional.

The hardest thing, I think, to get people sensitive to is the flip side of rights, because the flip side of rights, in my view, is obligations. And so I think the assumption of the Bill of Rights is that you will live up to your obligations as a citizen, that you will behave in accordance with the general prohibitions and the general limitations on one's liberty. And that one will in fact perform one's duties as a citizen and to be responsible in doing that.

Doesn't the state have the right to limit your liberty in certain ways for the public good? Why shouldn't you be forced to incriminate yourself? What does it mean to reserve those rights not enumerated? Does it mean that they're fixed in time as Justice White thought in 1791? Or does it mean that the Supreme Court has the power to define this as every generation goes on?

I talk about this in history class. And I talk about it often in terms of why was the 14th Amendment necessary? Why is it that the Congress in 1864 decided it had to protect the rights of its citizens, in this case, former slaves, against the actions of states? And so you can talk about how the states tried to re-impose limitations on the ability of blacks to testify in court against whites; their legal rights etcetera, etcetera. So you can get to the whole idea of what are the rights of citizenship and then why were those rights being ignored in this period. And then how the federal government took a position to guarantee those and then how it failed.

Or I'll talk about various individual court decisions that will highlight the operation of one of these rights, like the Miranda decision. It's not until the 1950s, for instance, that your Miranda Rights have been assured and the reason for that is that police departments were very lax in respecting these rights and ultimately during the 1950s, the courts found it necessary to insist that there're certain standards that have to be adopted.