Bill of Rights: 'What would Madison do?'


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National Constitution Center President and CEO Jeffrey Rosen told a Madison Vision Series audience on Oct. 16 that James Madison would have been a national leader in today's discussions on the U.S. Constitution, privacy and 21st century technology.

“I think [Madison] would have been the most thoughtful contributor to a national debate about the need to constrain concentrated power, whether it occurs in private or governmental hands, and the importance of protecting the values of individual liberty regardless of the source of the threat,” said Rosen, a leading academic, legal commentator, journalist and law professor.

Rosen discussed Madison's ideals of protecting property, but also protecting liberty, and how they directly relate to the issues we face today. His presentation, “The Bill of Rights in the 21st Century,” was part of the Madison Vision Series: Contemporary Issues in an Engaged Society. He framed his discussion around one central theme. If James Madison were alive today, how would he combat the challenges of technology and liberty in the 21st century? More simply, “What would Madison do?”

“Do we need a constitutional amendment to regulate Google and Facebook?” he posed. Referring to the immense power that Google and Facebook have over our privacy and free speech, Rosen said, “[This] harm is not the property-based harm that so upset Madison…The harm is not one of private property, or of physical intrusion, it’s an offense against dignity.”

The “Madisonian Constitution,” as Rosen put it, contains no mention of or remedy for offenses against dignity, a flaw that has forced us to reimagine and debate how our founding fathers might have handled the complexities of privacy and technology in our culture today.

Rosen was encouraged by Madison’s attentiveness to the centrality of the unalienable status of natural rights, predicting that Madison would have wanted to protect those rights from any threat, whether they come from the private or public sector.

“[Madison] would think hard about this question and would struggle to protect the same amount of privacy and free speech in the 21st century as he protected so ably against government intrusion in the 18th century,” Rosen said.

An expert on the intersections of constitutional law, privacy, technology and the Constitution, Rosen posed difficult questions to the audience about how the U.S. Constitution can adapt to the changing scope of today’s technology-driven culture, including the challenges engendered by cell phones and global positioning systems devices.

Rosen explained that a precedent with search and seizure allowed police officers to examine items like cigarette packages, which were on a subject’s person at the time of an arrest. A similar case existed where police officers affixed a GPS device to a suspect’s car, through which they discovered that he had been dealing drugs. In the instance of the cell phone search, the Supreme Court of the United States voted unanimously that when such “containers” now involve cell phones, a warrant is required, arguing that these devices reveal so much information about our identities and lives.

“This is a very exciting example of how the justices are grappling with new technology, refuse to be imprisoned by old analogies and cases and insist on translating the Constitution into the 21st century,” Rosen said.

Begun in 2013, The Madison Vision Series: Contemporary Issues in an Engaged Society brings scholars, thinkers and leaders of all kinds to campus for lively explorations of issues facing our contemporary society. The series is sponsored by the JMU Office of the President and JMU Outreach and Engagement’s Madison Institutes and funded by donors to the Madison Forever Vision Fund.

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Oct. 20, 2014

By Rosemary Girard (’15)

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Published: Monday, October 20, 2014

Last Updated: Thursday, October 20, 2016

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