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tv   Book Discussion on On Constitutional Disobedience  CSPAN  February 10, 2014 1:25am-1:50am EST

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long time ago. here is another way to make the point as a thought experiment a president or a senator or if you're a supreme court justice or in american citizen and you have a big decision of public policy. i assume you are a responsible person you spent a lot of time thinking about this and talking to other people carefully considering them moral implications after were all done you decide to write the to do is
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tax then somebody rushes in and says don't do it yet i have something important to tell you people 200 years ago who are now dead and know nothing about our bottoms -- modern situation wrote on a piece of paper not to do this then you say in that case i will throw out everything that i thought and now i will not do it. it anybody who did that needs their heads examined. it is pretty abstract so i will make it more specific. let's talk about guns. most of my a friends and family believed that i am
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skeptical about gun-control but the fact of the matter is there are 300,000 in the united states. and i am doubtful any law that congress can pass could do much about gun violence. >> host: 300,000 laws? >> guest: i am sorry 300,000 guns. >> host: 300 million. >> guest: thank you. treated million guns in the united states. i understand that is controversial and and like to talk about that i am not sure i am right but the way to not talk about it is to talk about the second amendment as an issue start to talk about the second amendment to very bad things happen. the first, the discussion is
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sidetracked that could do not be more irrelevant instead of talking about whether the laws will control gun violence or even if it is an aspect of the natural right instead of that we start to talk about the relationship between the introductory clause and what exactly was the militias 200 years ago and what is the relationship and our constitution and the english bill of rights? it has nothing to do with the question it is hard to imagine anyone with take seriously the proposition we should decide what to do about guns by in three those questions but then another bad thing happened to progress and issues start talking about the institution the temperature begins to rise.
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we can have a good faith disagreement about the best thing to do and come away pretty good friends but when we start to talk about the constitution, and then you were not just saying i disagree about public policy but i am disregarding the foundational document that makes the united states. you start to talk like that it is hard to still be friends and there is much too much yelling and screaming for our discourse to be relevant and meaningful those are
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important objectives. now let the clarify in one way to avoid misunderstanding. the fact you not to obey the constitution does not lead we ought to do the opposite of everything there are a lot of things that are really good ideas. for example,, freedom of speech, liberty, we should do that's because they are the right thing to do. other things maybe they are right or wrong but we have been doing these for a long time i don't know if a four year presidential term is the rightly but i do know it
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is a bad time to argue about that every four years. so i don't think we should. unfortunately there are other things in the constitution there really are worth arguing about. let me give you some examples it is not a good someone to be elected president of the united states with the person's opponent gets more votes. it just isn't good the three people in wyoming have the same representation in the senate as a 35 million in california. that is hard to defend it just isn't good people like me in the district of columbia have no vote at all. i don't think contemporary americans would defend any
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of those the yet we are stuck with them because of the constitution. ultimately the united states is our country, we live here we have a right to have the kind of country that we've point. nobody would say we should be ruled by france or the united nations but just that reason the british to think we should be ruled by people who have fled dead 250 years but paradoxically the most important word in the constitution, though the the people are violated, but that means we the living people not they the dead people and getting rid of
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our obsession by people that are dead is the beginning to reclaim this country. >> host: but what about the amendment process? why can't we use that for the constitution? better part of the problem of not only the oldest in the world but the most difficult to amend. it requires a two-thirds vote followed by ratification and that means a tiny number of citizens one-fourth of the least popular states could have been amendment as a practical matter for many of those issues it is
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impossible. for example, there is no way that the senate would provide an amendment for substantially reapportionment of the senate it has not been amended since 1971 if we don't count the original bill of rights it is not likely to be amended any time soon. the inventor process itself article five is part of the constitution we should start with. >> host: what would you replace it with? >> guest: i take we have a set of customs, traditions and swayed to do things that would perfectly adequately structure politics and we
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don't have to imagine what the world would be like we have some examples that the two most prominent are the united kingdom and you sealant that all have constitutions like ours and the last time i looked there were pretty successful they were not right team in the streets the leaders for not arresting political opponents. i'd think they would work pretty well here as well. >> host: doesn't the constitution and protect the american people from the tyranny that it was originally protecting us from? those could change every year? >> given our situation but
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sure the laws changed circumstances change there are some things that ought to be fixed for example, example,, rights to equality and liberty but don't be kidding yourself if you take a piece of paper in the national archives is what is protecting those things. madison had to write about this referring to a the paper but he pointed out was that men were angels that because they are they are
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not effective. anybody who is evil enough is also easily enough to trample on what is written in the document. so if you ask the question what protect civil liberties , no, it is not a piece of paper but and a form to active american citizenry and if that doesn't exist then readjust kidding yourselves. >> host: how did you come to this you? teaching constitutional
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politics as you noticed the of play the constitution the content of constitutional law is determined by politics but the political divide. let's talk about guns again. isn't really just a coincidence all the justices appointed by presidents thought the second amendment while on injustices appointed by republicans did? are we supposed to believe politics had the thing to do with that? is not just about guns but
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case after case where the stakes are high in the politics is salient it is with their own public policy in that is just bad. that it is used for cynical and political purposes a and it is not bad that we disagree but it is bad one side tries to shut up the other items have to tell you what your policies are wrong you are just not allowed to believe that because the constitution takes fat off the table. >> host: don't we be a unifying touch-tone such as the constitution and?
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we may be a unifying touchstone and i think that interesting way that constitution could be if we understood not as a legal document that a way to frame questions to provide us with a and emotional way so what other people could agree on it is appropriate to take the preamble that we the people are determined to form a more perfect union as a starting point.
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one way to think about this instead of thinking about the constitution as a legal document as a symphony or a pole or a work of art. one could be inspired one can even try to replicate the values but it would be very odd to say you were all praying. you don't obey the poem so is the great goddess like equal protection or due process are not things that we obey but inspire and when things are working really well they might fill us with a sense of wonder that you and i say to both be moved
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by the same language to come to very different conclusions. that could be the beginnings of political community. to be both inspired as being very different. >> host: your wife and kids and colleagues and students all think your idea is a little off. is this a growing idea with legal scholarly circles? >> guest: it is more prevalent than you might imagine but first of all, not just legal scholars but many americans are coming to see that when the supreme
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court or political figures insist something is unconstitutional with political values a lot of people understand that is the way the game works. i also think a growing number of scholars have expressed real reservation about the role the supreme court plays in the future and some of the dysfunctional attributes that is very hard to change a the four corners of the document. but doubt it is the uphill fight it and will not happen all the ones. i don't dig the supreme court tomorrow will just announce they will disobeyed
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the constitution but this requires more than anything else cultural change and that happens one conversation that a time. sometimes it happens much quicker look at what happened in a very short time horror of a little while back with regard to the rights of women in changing roles of society where with the law followed in something like that has to happen as well. >> host: roe v. wade did you consider that to be a constitutional question? >> guest: roe v. wade is a good example if you actually read the opinions there is almost no talk at all about
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the constitution itself. have to read the opinion very, very carefully to see which provision the justice relies on as he says of the of he and way it has to do with the due process clause. roe v. wade is not about the constitution. it is about moral and political judgments concerning the fetus and the autonomy of wind. by the way i am not necessarily saying the supreme court should go out of the business to make those judgments. there is something to be said for the elite institutions somewhat removed from ordinary politics making judgments about political morality to hold us to some higher standard. of course, there is something to be set against
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it also. i got completely agnostic but what i would really want to insist is the justices tell us the church's instead of pretending like these decisions rest upon of the constitution of united states. said the american people make the informed the judgment if they want institution. >> host: we are talking with georgetown law professor at louis michael seidman about his book "on constitutional disobedience." you're watching booktv on and sees the into.
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suggest ways to harness those advancements to benefit society. the conversatconversat ion is about one hour. >> good evening. welcome to today's meeting of the commonwealth club of california the place where you are in the know. you can find the commonwealth club on the internet at common wealth club.org. i am andrew leonard from
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salon.com your moderator for this evening's program. to my left is eric or nielsen and andrew mcafee who are business researchers at the m.i.t. sloan school of management. eric is the director of the m.i.t. center for -- and enters the principle for research science. the two men made a name for themselves a couple of years ago with eric self-published book race against the machine which coalesced some emerging nervousness about the fact that automation is beginning to replace jobs at higher and higher levels. they follow followed this up with a bigger book work and prosperity in a time of brilliant technology. and it is really i think
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everybody in this room will understand how timely this is in san francisco and the greater bay area. there is a lot of tension about how the tech economy is changing everybody's lives and where we are headed from there. the second machine age directly tackles both the promise of technology and some potential challenges it poses. i think we would like to start before questions giving a brief summary of their views and what is the second age all about. ..

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