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tv   Author Discussion on Societal and Individual Rights  CSPAN  November 24, 2021 9:11am-10:13am EST

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journal where we hear your voices every day. c-span has your covered. download the app for free today. >> i thought a good place to start is by asking each of our fabulous panelists here to start us out by telling us a little about their book, the elevator version, what is in your book, and why did you write it and i'll start with you his book. >> good morning or good afternoon and thanks to everyone. thank you, susan. you're a great mentor and colleague and thank you jamal for being on the panel. so, the book is called "the people's constitution" and the genesis for the idea was in 2016 when we had the electoral college failure that gave us donald trump was president. and this was the second time that this happened in two decades. the fifth time that it's happened in history and it just prompted a question that my
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co-author and i were asking, why, why do we accept it? and why can't we get rid of it? we knew that americans had a distaste for the electoral college. we knew that in recent time, it gave us two presidents that we believed were not properly equipped to handle the sort of nation's affairs in the highest office, but it just still begged this question, why aren't we doing anything about it? which lead to another question. how did people in history, americans of past generations, do something about the flaws that they saw in the constitution in the past. and you know, that gave us few answers, but it really did spark this deep dive into history. one of those answers is that people think it's impossible. one of those answers is that people think it's unwise to tamper with the framers'
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handiwork and one of those answers is that people really think that the constitution is something else. and that's to say, we're told the story that 55 men in philadelphia were the framers of the constitution, but often left out that story, too often, is that we've had successive generations of framers that have moved our country to a more inclusive, more democratic, a fairer and more just place. framers who added really important provisions that we think of as the most critical elements of the constitution. our rights to free speech, our rights to practice our own religion as we choose, our rights to equal protection and due process. and so, these core values that we've added, they are a part of the 40% of the constitution that were not part of the constitution, the original constitution in 1787.
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and so we have a number of problems. i mentioned the electoral college, which sort of drove us to write this book, but there are so many more and when you look at this history, this history is a history of movements, pushing politicians, elite institutions that make our national charter more competent to govern us today. and so we see some elements of things like this happening, things we've seen in the past that have sparked these constitutional change and now we're thinking what is that next generation going to push for and what will our constitution look like if it's really going to be competent to govern us today in the 21st century? so that's what drove us to the right to vote and those are bigger ideas, but i'm happy to participate in the panel with more specific questions. >> thank you, wilfred.
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jamal, your book is not so much what's in the constitution, but how it's interpreted. the same question for you, jamal's book, what inspired you to write it and why should people read it? >> and good morning everyone. good morning, brooklyn. this is where i went to school here and-- and i think it's ultimately about the central questions of americans' constitutional history, which is how do you marry a commitment to rights with a commitment to pluralism, with a commitment to equalities, to treating all of us as equals. there is tension between right and pluralism, tension that i think that we don't always rec naze or appreciate. so, at a broad level that the
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book is about, i've been teaching constitutional law for the last 14 years and in doing so, i noticed that a lot of the problems with dealing with rights conflicts that i see in law classes, what i-- where we talk about constitutional law in rather technical ways, where we talk about case decisions of courts, a lot of the problems i was seeing in the way that courts deal with rights are replicated in our political discourse, in our larger public discourse outside of law schools, what do i mean by that? and rights as binary, as on and off switches, to absolute, once that claim arrives, that means i have to win. seeing rights as essentialized, so that they are-- we don't see the value or the
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dignity in claims being made by people on the other side of a rights dispute. and here in the pandemic, very easy to see a lot of that happening in this specific context, but it's very easy to see it outside of the context as well. and so the book is trying to marry that from teaching law to insights about our political discourse outside of law school classrooms and what i do in the book is try to draw on some of the resources that we have within constitutional law, which is lots of other countries do things very differently and approach rights conflicts very differently and in a nutshell, rather than essentializing rights and thinking that rights conflicts are about who the constitution favors and who it doesn't and who should win and who should lose. rights conflicts require the same resources that we use in resources of negotiation, of mediation, of trying to understand the perspective of
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others, and there are ways of working that into our conversations about rights, so i look forward to talking more about that over the next hour. >> okay. thank you, jamal. you here about talking about rights and the three of us teach about constitutional law and hear our students talking about rights, but what you hear these days, people all over the country, people say i have a right not to be vaccinated, i have a right to vote. i have a right to have an abortion and therefore, if the government cannot tell me i have to be vaccinated, that texas can't tell me i can't have an abortion, georgia shouldn't make it harder for me to vote. the question is what is a right? and i think the american understanding of rights, the idea that rights are tied to judicial enforcement. if you have a right you should be able to go to court and say to the government don't you dare infringe on that person's rights. one thing interesting in these books, going back to the
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original idea of the connection between the constitution and rights because the 1787 constitution said almost nothing about rights. it was all about setting up the structures and powers of the government, the federal government, the state government and how they would interact and few references to rights. and there was no thought of anything to do with equality and that's a very important reason that the constitution was trying to navigate around the bitter differences that the framers had over the issues of slavery. and very much distorted what was in the constitution and that's why we have the electoral college and made it hard to get rid of the electoral college and the whole debate about race in these can't be underestimated. the question of rights in this country begins with the bill of rights, almost immediately after the constitution, four years after the constitution is adopted. we get 10 amendments to the constitution in a bunch in the
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bill of rights. and wilfred, in your book you tell how and why that happened and this is the part of the story that you want to tell. what's the bill of rights getting added to the constitution, what lesson should we take about rights? >> yeah, it's a great question coming from you who spent your career defending our rights that are listed in the bill of rights, a.c.l.u. so the bill of rights are exactly as susan said, the first 10 amendments to the constitution. so they were not a part of the original document. again, this highlights the fact that amendments are really core to what has made our constitution and moved us toward a more perfect union. the bill of rights and the first 10 amendments, our first amendment is this bundle of rights. the most notable we think about is speech, but there's also assembly, and petition, which kind of gives us a right to protest and the protections for religious liberty, the second two are really sort of more
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died to that colonial or sort of historical era. so the second and third amendments, right? the right to bear arms which has kind of renewed sort of renewed importance today in our discussions and the third amendment is the right to not have troops quartered in your home. hopefully no troops are being quartered in any of your homes these days and then the fourth through the eighth amendment and those are the amendments that give you core protections when you are subject to criminal prosecution. and we are talking about the rights that might not be unreason searched or seized and the right to counsel and jury and important things when you have an interaction with the criminal legal system. and the last two, they're sort of outliers, fomented state's
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rights, but they're really about the residual rights, the rights not granted in the constitution where they belong and the ninth and tenth amendment say they belong with the people in the state and this was supposed to be a government of limited power. that's what the amendments say and the way we got them was because as susan said, our constitution didn't include much in terms of rights. they included structures that were supposed to protect these rights that we thought to be fundamental, but they didn't include explicit protection for these rights and so to shore up the constitution because there were some skeptics about whether this was going to be a good constitution, to shore that up, there was a prompt that we would amendment the constitution early on to incorporate these important fundamental rights and that's what we did really early on, years after the constitution was passed and ratified. one thing i liked in your book, the bill of rights is the product of the state ratified
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conventions talking back tt framers. the framers were the guys who met behind closed doors and wanted to coo ep-- keep it secret and here it is, what we can agree to. when ratifying they talk about that and all kind of talking back and starting a process of amending the constitution. so, jamal, with respect to the bill of rights, one thing i enjoyed about your book, you explode an explodes myths all over the place and you talk to people on both sides of the aisle about how, what we say about the bill of rights and what we say is in it and what it means is not necessarily accurate and that's both the conservative originalists and i talk about myself guard against tyranny and against the people and what's the role and relationship between the individual and the government. so your take on the bill of rights, what's in it and what should we be taking from the bill of rights and what lessons have we learned inaccurately? >> so, first of all, everything
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that wilfred said is right, all right? so i don't mean to-- when we talk about exploding myths about the bill of rights, none of them are what wilfred just said. but i do think it's important, and i think critically important for trying to understand some of the lessons of my books, that we have this understanding of rights as fundamentally belonging to individuals as being almost absolute, except maybe in emergency situations, and as being enforced by judges, as federal judges in particular. that's a very 20th and 21st century understanding of rights and what they are. and what we tend to do. we tend to read that back into our founding documents, the bill of rights being one of those, so that we think of the bill of rights as almost a libertarian kind of document, give me liberty or give me death kind of document. when one important fact to
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remember about the bill of rights which isn't well-known outside of law school, the bill of rights originally only applied to individual governments or states government that didn't happen until after the civil war. there's an important reason for that, which is that the bill of rights, on the understanding of the framers is not some kind of libertarian document, it's about federalism, self-government in particular and using it as a guardian, yes, against tyranny, but the tyranny they thought of as the drafters and promoters of the bill of rights in terms of outsiders interfering with self-government. outsiders interfering with state and local communities. outsiders interfering with jury verdicts in particular and juries are so much at the heart of any institution. it's the jury because the community understanding values through its own lens and not
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federal judges deciding what our values are for us. that's exactly what they were worried about, they're worried about the federal government encroaching on their values. i think there's a lot to recover in that vision because there's a harmony between self-government and rights, usually when we protect rights we're protecting them through government. we're trying, now, trying to pass a law that a public health measure or a gun measure or any number of other laws. we're doing so to protect through law rather than protecting them through court and we've lost that vision. now, importantly, we don't want to recover everything about the founding vision, because their vision of self-government was fundamentally exclusionary. we go back to all of our constitutional history marrying our rights with pluralism. the pluralism they got wrong and the rest of constitutional history trying to reintegrate. self-government and rights into a genuinely pluralistic
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environment and the bill of rights is consistent with that. >> after the civil war until the reconstruction amendments, the original constitution vision, as jamal was saying. each state had its own constitution and law. and what it's going to do all through education and all sorts of thing and it was the reconstruction amendments that the 14th amendment actually imposes federal oversight on the states for the first time. i wanted to read a quote from wilfred's back that makes the point that jamal was making, that the recognition of slavery and building structures around slavery justice marshall said the government they devised was defective from the start demanding transformation, for the human rights that we hold
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today. when amendments like the constitution are vastly different than what the framers construct ared centuries ago. the 14th amendment for the first time talk about a due cause-- to the states. and you talked about ebb and flow of constitutional amendments after the first 12 amendments, really, it's a while, really until reconstruction that we have this series of very important amendments, do you want to say anything about reconstruction and the idea of the second founding? >> yeah, sure, i want to quickly address what susan mentioned upfront and that's the pattern, a historical pattern that we've seen where we have these bursts of energy stimulated by movement and in seeing gaps in the constitution, that during those
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periods we amend the constitution. that's what we've done on four different occasions during these periods and then during these other periods which are much longer, you have these lulls. so you have these periods of 50, 60 years where you're not amending the constitution at all. what you're trying to do is to adjust to the most recent constitutional changes that you've brought through these amendments, and then also, finding out what are the defects and what's going to prep that next generation of constitutional change. and so we didn't have amendments, we had a little for 61 years after the first period that ended with the 12th amendment and tweaks the electoral college. during that time what we had as a great national rift over the issue of slavery and most people know that the supreme court thought it was going to do something about it, but it really stepped in it when it
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issued the dread scott opinion which basically said at that black people were not owed any rights or respect of white people and could never be citizens in this country and so, all of this, this important chasm, this lack of the word equality which was in the declaration of independence, but not included in the constitution, does foments the civil war and after that, a period we called reconstruction and during that period we get three really monumental amendments. the 13th amendment which abolishes slavery outright. it's actually imposes a mandate on individuals. that's one of the few amendments that we think about that doing that directly. the 14th amendment which enschrivers-- enshrines equalities and due process rights and as susan said, it really put this sort of oversight on the federal and
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the state governments, from the federal government, right? it was so the states wouldn't go back and sort of try to reenslave effectively newly freed men and women. and then the 15th amendment. and the 15th amendment is an anti-discrimination amendment. it says that you cannot discriminate in the right to vote on the basis of race and that amendment was profoundment all of these were very profound, but that was profound because it was replicated on numerous occasions to apply to sex and age and wealth, basically with the pole tax amendment. that's the foundation of the second founding. and as we know, many of these amendments were simply ignored over the next century, it wasn't until we go to the modern civil rights movement of the 1960's where you had the federal government make good on the promises of the reconstruction era. >> the 13th, 14th, 15th amendment they sound great and
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promise all sorts of equality and all sorts of rights, but the supreme court was part of the problem in terms of why reconstruction was never realized and the supreme court had a number of decisions very narrowly interpreting what the 14th amendment had to say. so, i think i wanted move now from the amendments to the interpretation. because ever since the 14th amendment, the battles over what the bill of rights mean had to expand. when you had the first amendment, you're talking what can't the federal government do. you have a lot of difficult questions what counts as speech. can the federal government say you can't burn the flag and what can the federal government do? after the 14th amendment, the question what can texas do? can texas prevent you from burning the flag and say you can't have abortion? so the battle over state's rights has been, it's certainly not reconstruction. so, i want to now introduce, jamal was talking about the people looking to the courts to
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solve things, so we all three of us teach in our constitutional law class i'm willing to bet, marbury versus madison and the supreme court said we get to say what the law is and ever since then, the supreme court and the stories that both of you tell, they say things that we like, are moving in the right direction, we like their power, but sometimes they see things that we do not like at which point we start objecting does the supreme court have too much power. and just, again, examples, i think you both point to examples of the perverse equal protections law and the court says we don't do anything about racial discrimination unless it's intentional and the battles of structural
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inequality and the courts sometimes overinterpreted rights so they interpret the first amendment in this very expansive way that often prevents progress, that would prevent campaign finance reform and other things and sometimes underinterpret things and jamal, you give disability rights and we don't do that, we leave at that to everybody else. >> wilfred, you say in passing, americans accept. and say that the courts get to do that and you were citing that as a difficulty. outsourced to the court, what does the constitution mean. why do you think that americans are so accepting of the idea of jushl judicial review. we have been talking about marbury and asked the question, what if in some other countries, what if we had congress able to overrule the supreme court maps by a super majority if the supreme court said something perverse.
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what do you think of that? out of about 100 students there was one who thought that was an interesting idea. very accepting of the idea of the courts say what the constitution means. why do you think that is? >> i mean, i think that they're, one, because the court -- there is a sort of, i think, a story about how important the court is to our constitutional structure and i think it sort of embellishes on the importance of the court. i think part of this is because of a history we tell about the role of the court. most of us think about the court so of the warren court, the most liberal court we have and they started, as i said, started making good on some of the promises that were enshrined in the reconstruction era. but the court itself has been a fundamentally conservative
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institution. often counter majoritarian. and i think that part of it is a recent history of the civil right area that we uphold the warren court as heroes and defenders of our rights, but part of it is we accept governance and the court is an important part of our tri-part federal government. and they're learned people and they're learned in the law and hopefully we think that they know exactly what the constitution means and what people intended it to mean. so, there is some that totally understandable, but as susan says, this is not universal. there are places where legislators have the last word on what the constitutions mean. other countries think about this very differently. so it's not a novel they think that you have brought up, but it's sort of, unique to the
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united states that we have this notion of judicial supremacy where the court is the last word and that's of course until the people amend the constitution to say what the last word is to be. >> or until the supreme court changes its mind. >> right. so, that very much gets to jamal's point how the court should see the evil of its ways and part of the story that wilfred is telling we need the court to be countermajortarian. they get life tenure and they can stand up to popular will when popular will is, i think maybe we'll introduce the footnote four idea and we teach in constitutional law in the 1930's that was a case with the famous footnote four where the idea of footnote four is that the court has a special role it has to play a countermajor tarian role if the rights are
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at stake, and if minority stakes, and process is impeded so the political process can't work. so that's the kind of conventional story about the court's counter majortarian role. and i want you to talk about the countermajortarian role in cases like brown or-- like that. >> when we talk about countermajortarianism, where they're elected and courts are not. i do think that courts should sometimes play a countermajoratarian role. in part, when we think of
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mr. the judicial reviews, courts were quite important, brown versus board education is the most obvious example where it's important for courts to stand up to democratic majorities. when susan refers to footnote four and this is a little bit into the sort of constitutional weeds, but it's really about trying to figure out what are the instances where we want courts to be-- to step in and to really scrutinize exactly what the legislature is doing. and what are the instances when we should let legislatures be legislatures and democracies be democracies. >> in 1930's, the court was struggling, just coming off a period of three decades, four decades where courts had been not very differential to legislatures in economic matters. and so collective bargaining
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and health and safety measures and roosevelt being their champion. the progressives of that year were pushing back against the activist courts. it was obvious that courts should not be constantly stepping in for minimum wage law, but it's obvious that courts couldn't let jim crow and segregation in the south so continue unabated or that circumstance. so in the middle of the 19th -- of the 20th century, we found other selves looking at two different visions of courts one where they're differential to legislatures and they know what they're doing in the economy and another vision of the court that's not differential at all because you're talking about legislatures that are terrorizing their population, so a lot of what the rest of the 20th century and
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constitutional law has been about when it's coming to rights, when we're in one category or the other and complete deference to legislatures and when are we in the category we owe nothing to legislatures. a big part of the book, having to draw the lines is the with a -- way that the judges look at controversies and boxes. and the way in which ordinary citizens talk about their rights, it's not in boxes or not where there's some rights where it's just absolute and you don't care, and other situations where nobody cares about rights, and there's a big spectrum. there's a lot in between the poles and we do have ways of getting at what's in between toes poles. we have resources for figuring these things out. instead of asking questions like, is this racial discrimination in this case, or is this an economic issue, we
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can ask questions like, who is being benefitted and who is being burdened? what's the magnitude of that benefit? are there alternatives that the government could pursue other than the policy than it pursued in the first place? there are ways of intervening, in lots of controversies there are rights on all side and personal values on all sides and we have to figure out ways of maintaining those, sustaining those through conflict, and we have trouble doing that in our regular lives and we have trouble doing that in court and the book is offering strategies to try to do that. >> i think, jamal, one of the big examples you gave in the book you talked about instead of you have a right and you don't, where you talk about how we could say everybody has a right and the court woo -- the court would have-- a pregnant woman has a right to
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choose abortion, but there are no fetal rights and you think the cost of the court taking this all or nothing approach and also get the example of where you thought it was better done in germany. so you want to explain that example? >> sure, and this is an enormously, obviously, very complex, controversial issue and enormously complex story, the story how we get from abortion activism, i abortion rights activism leading up to roe, what roe does to the abortion rights movement and anti-abortion movement and how political actors respond to that is enormously complicated. the story i tell in the book is a tale of two countries. the united states on the one hand germany on the other and approach the abortion issue through very different ways. 1975 is the first german abortion decision, where in roe
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you've got state laws, texas in the news again over its abortion law, but there, texas and georgia having restrictive abortion laws and coming to the court to ask the court to say, do women have an autonomy interest and overnight that overcomes a state law. in germany we were talking about abortion with realization statute. abortion had been illegal up until a bill is pass today legalize in some instances and there the court decision was whether that liberalization law sufficiently respected the life-- respected the value of fetal life. from a u.s. perspective, that's the kind of startling conservative approach to thinking about abortion rights. you're focusing on the rights of the fetus. but what the german court does with this and this is consistent with the law in a lot of the other countries, they don't just say, and by the way, they strike the law down
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for not sufficiently respecting the value of fetal life. what they say the law has to pursue multiple values at the same time and it has to do that through law. and the way to do that, if your what you're talking about is fetal life. what the legislature has to focus on is life. and also, at the same time, think about the autonomy of women which is important and present in the case. and so what the court ends up doing is forcing the legislature over-- and this is sort of happens over several decades, but forcing the legislature to think about the issue in terms of how do you give women genuine options that willen able them to make decisions that protect fetal life. that requires not just-- you can't just criminalize abortion, that's not going to protect fetal life. what protects fetal life is to give people pre-natal and postnatal care and employment options and guarantee and a
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social safety net so people make choices. on the other side, you know, how do you actually protect women's autonomy, which is important. you've got to give people, speaking of texas again, you've got to give people enough time to make proper decisions and it's an important decision in people's lives. what they end up doing, draw boundaries, how you develop the politics around this issue and there's a grand kind of political bargain around abortion rights that dramatically lowered the temperature of the issues. but the way the court gets there is by-- is not by saying that one side is right and the other side doesn't. the way the court gets there, there are values on all sides and we're going to scrutinize how you're respecting the values by looking at the facts and using information and kind of essentializing or valuing the lives and people and real states and in courts making
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judicial justice making those in the way that the court in roe doesn't do at all. and for little, justice who writes in row says there's no constitutional values in fetal, and sound before roe relative to today a much more moderate movement and splinters and-- there can be unintended consequences and good consequences in recognizing values on all sizes of really important sensitive conflict. >> and as jamal says, there's a lot more you could to abortion. i'm dubious that anything like the german model would work
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here because we have no predicate for a social safety network for a woman. and sounds like if the fetus does, then the woman really doesn't have rights. i'm sympathetic to the court's countermajoritarian role. what i want to get to, you're talking how the court could do better, instead of saying you have a right and you don't, or a strong right and you don't. they would do better looking at facts and here an example more in wilfred's line about the voting restrictions. what we at a.c.l.u. used to call voter suppression statutes are defended on the grounds that they're necessary to promote integrity in voting and people's confidence in the voting system. okay fwe're closely looking at the facts to see whether a measure about voting is reasonable, or, you know,
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proportional, what the interests are on all sides. if you move the question who has a right and who doesn't to how do we mediate the facts here, don't we just really push the subjectivity and the political frames onto the fact. your republicans will tell you voter fraud is a real problem. democrats will tell you no, no, and you should say it's know the a problem because it doesn't happen. my concern, are you making progress on subjectivity or the political frames by going to the facts about you aren't you getting to the alternative facts or perspective going there? do you want to comment. and this is an area of your specialty. >> sure. so, facts are important and sometimes i think the courts don't acknowledge that. but, i mean, this kind of that susan brought up footnote for us, this can become a footnote fest if we wanted it to. because the measures we talk about when we're talking about
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accessibility of voting is really having a workable and functioning political process to make sure that we, the people, can actually voice our concerns and our desires and our interests and make sure that they're reflected in this political system. and so, yeah, this is-- i want to believe that we all value this idea that we should all be participating. unfortunately, i think that the facts don't line up with that. i do think, i mean, we can look at our history, a lot of it is tied to our history so we have a-- more dwindling, but it has been robust at times, criminal disenfranchisement system. we have a sort of propagation of voter fraud and that's one of the things where the facts just don't line up. i worked on this before i was an academic, i think about this and study this now and write about it, but the chances of voter fraud occurring are about
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the chances of being struck by lightning. that's what studies have shown. and you look at some of the ways that the supreme court has grappled with this. i'm thinking notoriously about the crawford decision which was about voter i.d. position in indiana and you just see that they can't even present facts that show that this is a problem. they have to go back to the 1800's and think about -- and if they're going to look for examples of voter fraud. that's to say that voter fraud exists in discrete instances and what we're describing is an overreaction to a problem that's not a big one. that comes in the form of strict voter i.d. laws and in light of the pandemic we've expanded ways for voters to vote, but now we're seeing restrictions on that. so, drop boxes, sort of 24-hour
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access to drop-boxes. early voting. same day registration, things that were thought to be fine, have been politicized and now, they're just serving as obstacles to our democratic process. i would say going back to the idea of this book, which is that amendments are important, a lot of this stems from the idea that we lack an affirmative guarantee to vote in the constitution, we have all of these peace meal parts that talk about having a republican form of government or talk about, you can't be discriminating against people on the basis of race, sex or wealth in the right to vote or election centers. these are important, but none of them say you have a direct fundamental right to vote and that's something that was considered actually during the time of reconstruction and that sort of universal suffrage
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guarantee was not a path taken and we're seeing the consequences in the restrictive voting measures happening across the states. >> i'd like to turn to perhaps we should amend the constitution, in-- and my concern if we kind of unpack footnote to recognize more rights all over the place and do more mediating and balancing, does that increase judicial activism and kind of move the subjectivity and politics to another place? it's hard to imagine justices kind of mediating and working ought good compromises on voting rights where they come from different positions. i would actually argue that planned parenthood versus mediating on abortion rights and -- but what about proportionality? is that a different kind of judicial activism that the courts are not told stay out of these areas and only interfere with these? i'm asking you what are the
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costs or benefits of proportion alty. it's a legal term of art rights conflicts by considering in a systemic way not just the interests of the individuals, but also the interest of the government and other conflicting rights and i endorse proportionality. a couple of points here, so one is that one of the key lessons of the book is that the u.s. does things very differently than every other country in the world. when we ask, you know, what kind of chaos will we see if we do things differently. drive six hours north, and you'll see what chaos has not ensued in canada, which does things very similar to what advocate in the book. on facts, now we're really-- i'm really going to step back
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here and deliver some bad news because the book is not utopian. the book is not lighting a path to some kind of ideal society in which we don't disagree with one another or which in judges are only following the law and not engaging in subjective behavior. the reason we have conflicts over rights is not because, you know, there's some group of us who are right about the rights that we have and some other group is wrong. some group is reading the constitution right and the other wrong. our constitution is not written in a way that lends itself to that kind of determination or certainty. the reason we have rights we're different from one another, different values and commitments from one another. we're going to read the constitution differently from each other because we are committed to different things from each other. when i say equality, i mean something different from what you mean. when you say that, we have to
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do it in real-time. the question, the book tries to ask, is how should we go about nothing the mediation? should we delegate that to judges, and pretend-- and i use the word pretend, rights conflicts are interpret tiff that they're purely legally technical who is reading the constitution correctly or resolve way ins which they're continuous. so when you ask, you know, are judges going to read facts subjectively? yes, they are. but if justices read the law now. but if they read the law subjectively. they say we're judges and you have no access to or influence, we're the experts, we're the professionals, we're the ones who tell you what the constitution means and you are to listen to us, but when we argue about facts, we can argue and have discussion about the
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magnitude of voter fraud and i can tell you, yeah, this is obviously wrong and we can have that discussion in our political life and not just legislatures, but this is politics what we're doing right now. so it's an invitation to agencies within constitutional law, that's what the book is about. it's about the constitution being for all of us and a subject of political conversation, genuine political conversation, and not just kind of signed of technical thing that the judges take for themselves. i'll end there. >> two more questions i'd like to quickly address and then i'd love to hear questions from the audience. one that the biden administration, president biden appointed a commission because he noticed that the justices, it's not the warren court, but decisions--
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jamal's book justices themselves rethink how they're doing things. there are proposal to change the structure of the supreme court, or term limits, congress controlling jurisdiction more. so one question i have for you now is about the biden commission, are you optimistic that anything interesting could come out of that? and then i want to move should we be thinking about meng amending the constitution? what about the biden administration? none of the three of us were asked to serve on that, so that could have be better if. >> you can read my most recent pieces you can understand why i was not selected for this commission. [laughter] >> so we're encountering a lot of problems with the supreme court and frankly some of these problems are not new. this idea that the courts, who have the last say on everything until they decide that they got it wrong, you know, your
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transition ferguson to brown versus ford, this idea that the court gets to decide what cases that it's going to take, right there, there's questions about the judicial and confirmation process. ... we have seen this viral for we have parties holding seats open for a year and then ramming nominations are awake before elections we are seeing all sorts of problems that are showing the judicial branch of the united states and the supreme court in particular a fundamentally political organization, an entity and these were three things that we've imposed to try to limit. we made them appointed and confirmed in a way they are so they're supposedy be insulated from politics. we gave them life tenure so
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they're supposed to be insulated from politics and what we are seeing rightht now is these this are not playing out in the way they were intended to. do i have in this commission? you know, commissions in the past have set up a path for reforms. i love the idea that we are in handling these experts to think about this. i believe personally many of the people who are on this commission of a vested interest in the perpetuation of this institution and if there not to say the supreme court clerks of people or thought about for being judges, so i don't know, i don't know what's goingng to happen. i am happy this is out there, it is being discussed but what will come of it, time will tell. i guess with a couple of weeks or months before the report comes out. >> we are down to our last seven minutes so jamal, ten seconds.
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i do want to allow time to talk about a nimitz and hope to get an audience questions so talk fast. >> if you're interested in my views on the commission i give testimony to the commission so if you go to the commission's website you can see orbiting and to say which is mostly that individual justices have too much power. it's not about the court itself up into much power for me. it's about individual justices. so i will leave it at that for now. >> that is the perfect use ten seconds. ten seconds. jamaal is looking they are interpreting the constitution. they recognize they need to amend the constitution. you've mentioned the possibility of adding a right to vote amendment in changing the electoral college both of which we understand are highly difficult to do. have a lot of stories in the past about good things to do. i want to mention at this point the brooklyn public library has a very interesting project they've been working on a been doing with them it's called the 28th amendment. they had townhouse all of her brook look at their websites
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want to check this out asking people what should be added to the constitution? i had to buy the framers were writing up the 28th the memo. but we put it was more democracy let's do with electoral college let's have election to be a holiday, let's give everyone the right to vote. we also put in some socioeconomic rights. we wrote into the constitution the universal declaration of human rights which says yes you do have a right to food, healthcare and a clean environment as well as have the rights of the government government not tell you what to say. so wilford, from your book you talk about when conditions are conducive to constitutional amendment and when they are not. what you think about now? are they conducive to a constitutional amendment and which way? they need to be political bounces they mimic process. >> we are seeing the conditions we have seen in the past right before amending. what we are seeing is political polarization, political gridlock. obviously that is the way of
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the world of washington today and even in the state legislature. what we are seeing is innovation in the states. states thinking about these obstructions we have in government prophecies and trying to work around them. one way is innovative idea they see a problem with electoral college with they tried to do is use the current electoral college structure to implement a de facto direct election for the presidency. we're seeing a resurgence of the equal rights amendment. they were nationwide protests about abortion we had a whole discussion with the equal rights amendment is actually tied up in that same. when abortion came up in a counter movement against the women's rights. we are seeing immense social demographic and technological change we saw this during the industrial revolution leading up to the progressive era.
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we're also seeing extreme between the wealthy and the not so wealthy you're 1% and then everyone else. these are conditions that actually show up that we do not think about who should be incorporated in this idea of the people. maybe we need to be rethinking that. and two, we have a constitution that is not competent to govern us as we think of these developments we've had over time. i do think we are seeing some of those things in the next wave of amendments. >> thank you. from all any comments on how you would like to see it amended and how likely that would be? >> there are lots of ways to much i would construct my own constitution if i could. but i am constrained by the current structure of the constitution. what i say about amendments is that the most transformative ways in which constitutions have been amended in american history have ignored the existing rules. that is the founding which
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ignored the rules with the articles of confederation and the 14th amendment which ignored the rules of article five by coercing state governments into ratifying it. i'm fully supportive of the 14th amendment because i supported then which is to say no document can establish the conditions by which it can be changed. that is something for us to do in the present. that is how we have done it before. i am not so wedded to amendment as such. i am wedded to change. that is not necessary happen to the amendment process by. >> thank you we are down to her last three minutes pretty think we could manage an audience question or two. cut to the microphone if you have a question. why don't you come behind this lady will hear a couple of questions they mostly live a minute for people to respond. >> thanks very much this has been a fantastic discussion i
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want to praise you all, amazing. we are all wearing these green things. that means we all got vaccinated. we all agree that whatever rights exist to refuse vaccination is trumped by the right to protect the community. but states are making different choices. we now even here the choice and rights come up as a choice and rights to refuse vaccine using the exact same rhetoric as to defend the right to abortion. we have completely flipped decides. the history of public health said it is a local function and it is a state function. is there any way that we could come to a place under our current legal structure where the right to protect the american population in a pandemic. the american people against a voracious disease exists or
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will it always be that one state can be a hole out and allow everyone to refuse to take the steps necessary to protect society as a whole? >> another question you're asking a states rights and can federalism. but i would like to do if you two gentlemen would be brief if you could save your question or comment is brief and then i will give wilford and jamaal a chance to respond briefly to which everything you like to respond too. >> i just want to point out, one of my college professors is the foremost to storing the drafting of the united states constitution might raise a lot of red flags with what has been discussed today. i would encourage those in the audience to read wood's writing, thank you. >> thank you. and finally,. >> yes, my question is on the judges who are strict constructionist trying to understand what the framers would do. morality changes some of the views of the might be not
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moral now are they looking to enforce moral laws? 's fertility value will have a quick last word we do not want to do for the next panel. what ever of this questions you like to address or just something you haven't said you'd really like to fit in, jamaal then wilford pick. >> just quickly on the rights of the unvaccinated, i actually think it am consistent with my book for people to have a right to not be vaccinated. but the important question in any conflict about those rights is the question is what are the consequences of doing that? of the government passes a law that says you must be vaccinated the question isn't to have a right to be unvaccinated, the question is what is the government trying to accomplish? what are the consequences of not being vaccinated in the public health consequences are obvious and straightforward. if someone were required to be vaccinated against something that was not contagious and had no chance of effecting them i would support that right i would support that
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right think it is important that the conversation about rights not be about essentialist conversationalists about rights themselves but what are we talking about here? what are we trying to do what we trying to accomplish? i'm trying to return the conversation to facts rather than abstractions for. >> thank you jamaal and wilford your final comment? >> it's hard to respond to those questions altogether very quickly. but it is important. i would probably assume jamaal, susan, myself are all for mike gordon was writings he was a professor my alma mater as well but we might take issue is some people do with history. but we try to look at the history, the american history american constitutional history for a very broad perspective and look at us trying to do that. but the take away point is we have this provision in the constitution, article five. and we have other means of change our constitution. but it is important we the people actually take up this
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challenge to make our constitution, per tenure to perfect it and move up towards a more democratic, inclusive and governable society pick. >> thank you >> thank thank you, wilfordl for a great panel. let me just say if anybody is concern these books are to to legal walkie they're both written in beautiful lively english. >> here's what's ahead on booktv. "san fransicko" author of michael shellenberger shares his views on how progressives are destroying american cities. that is followed by georgetown university law professor sheryll cashin, whitespace black could about u.s. housing publicly. then professor nikki usher writes about the challenges facing american journalism in news for the rich white and blue, and later parag khanna.
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>> i'm robert doar, the president of aei and a very happy to welcome you all today to this i think really going to be trophic conversation with three wonderful people. i do want to start out by mentioning the person sort of made us do this and get it done and get done fast and kept us inspired, and that's sally satel. when i first came to aei about


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