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tv   James Madison Democracy  CSPAN  April 29, 2021 9:53pm-11:40pm EDT

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madison memorial fellowship foundation and the national constitutional center co-hosted this event. it's an hour and 45 minutes. and we welcome you to the james madison lecture which our foundation sponsors every year. citadeland seated in our seats today are 49 james madison fellas over here at georgetown university studying the foundations of american constitutional constitutionalism. they are all high school teachers or middle school teachers of american history american government or civics. and then we have several of our alum that have come so we have james madisonville's that are teaching teaching those subjects across the nation. i now like to introduce. our guest speaker our guest speaker. today is jeffrey rosen president and ceo of the national constitutional center. he's a professor locked the
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george washington university law school and contributing editor at the atlantic. professor rosen is a graduate of harvard college oxford university and the yale law school. his books his book lucy brandeis american prophet was published on june 1st 2016 on the 100th anniversary of of the brandeis supreme court confirmation. his other books include the supreme court the personalities and rivalries that defined america the best-selling companion book to the award-winning pbs series. the most democratic branch how the courts serve america the naked crowd freedom and security in the anxious age and the unwanted gaze the destruction of privacy in america, which the new york times called as called the definitive text on the privacy perils in the digital age. professor rosen is also
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co-editor with benjamin the constitutional 3.0 freedom in and technological change the proceedings from the brookings project technology and the constitution his essays and commentaries have appeared in the atlantic new york times magazine on national public radio. in the new republic where he's the legal affairs editor and the new yorker where he has been a staff writer. the chicago tribune has named him one of the 10 best magazine journalists in america. and the los angeles times is called him the nation's most widely read in influential legal commentator. let's please welcome dr. professor jeffrey rosen. thank you. thank you so much. ladies and gentlemen fellow teachers. it is such an honor to address
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you today. teaching civics is the most urgently important task in american democracy james madison said a popular government without popular information or the means of acquiring it is a prelude to tragedy or farce and your efforts to educate young americans about the essence of american government and it's fundamental principles. we'll determine the future of the republic. polls show that young people are more likely to support authoritarian alternatives to democracy than the older generation. and yet those educated in civics and in the fundamental principles of constitutionalism are more likely to support institutions like an independent judiciary to resist overturning judicial decisions by popular vote and to support the essence of constitutionalism. and that is why your task is so
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urgently important and i am grateful for it and honor you for it. my task today is also important you have asked me to address a fundamental question. what would james madison think of american democracy today? and how can we resurrect madisonian principles of reason rather than passion at a time when they seem under siege? i want to begin with a quotation from federalist 55 which sums up the essence of our common task this morning. madison said in all large assemblies of any number composed passion never fails to rest the scepter from reason. even if every athenian had been socrates athens would still have been a mob.
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i see some heads nodding appreciatively and that is because you know, well how centrally the founders were concerned about the dangers of mobs animated by passion rather than reason they had in mind the cautionary tale of shay's rebellion, and the debtors who rose up and demanded paper money because they refuse to pay their creditors and this fear that moms misled by silver tongue demagogues could end up threatening fundamental principles of property and liberty was a central concern of the constitution makers and therefore they established the entire system to ensure. the triumph of slow reason over time i have been so influenced by gregory wieners. wonderful book madison's metronome.
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and wiener shows in this book that the founders first of all resisted direct democracy in favor of a representative republic. they feared that the direct expression of popular benefits of an extended republic. we know from classical theory that, classical sources believed democracy was impossible and large republics
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because face to face deliberation would create assemblies that were too large and would degenerate into chaos. but the framers, first of all, by devising the representatives system, believed they made it possible for larger territories to rule themselves. most importantly, second, they believed the large size of the american republic meant that large factions cannot easily organize. the definition of faction in federalist ten, any group, whether a majority or a minority, animated by passion rather than reason, and by self interest rather than the public good. the idea was in a large republic, it would be hard for self interested groups to organize, to discover each other, to achieve nefarious common purposes, and by the time they actually found each other, the passion would dissipate. throughout the federalist papers, we see the notion of
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hasty and impetuous passion that overtime can cool, and the large size of the republic was supposed to guarantee that cool would prevail. it's centrally important that the framers were not aristocratic. they were not in favor of all of our key. they accepted, especially john adams, the classic trilogy channeled by -- 3 forms of a republic, aristocracy, a monarchy, and a democracy, all of which could turn into an oligarchy, tyranny, or demagogues. they are not in favor of any one of those systems. they believe in majority rule, but they want majorities to rule slowly overtime, and the whole system is created to slow down that deliberation. that's the big idea. friends, when we step back, as
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we must do this morning, and reflect on modern america, we see how many of the cooling mechanisms the framers put into place have been undermined by changes in institutional structure and politics, and most importantly in technology. i want to review with you those changes and then think about ways we might resurrect the framers's cooling mechanisms in an age of 24/7 news and social media and the very kind of hasty, impetuous decision-making that the framers feared. let's first thing together about the cooling mechanisms themselves, and then examine the ways they have been undermined. this mic is going in and out. let's see if this one works better. i will go in and out, but my passion will be cooled by the fading mic, and eventually you
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will just get bursts of it and it will dissipate overtime. so what are the cooling mechanisms the framers put in place? they are centrally concerned with the design of congress. madison thinks congress will be an impetuous vortex that constantly demands more power for itself, and they believe that legislative tyranny, the main source of tyranny. the most important principle, is separation of powers, of checks and balances. it's crucially important that no one branch gets to speak for we the people. and here, let's just channel not madison, but james wilson, the underappreciated genius from pennsylvania who wrote the first draft of the constitution and the first wilson draft is at the constitutional center in philadelphia, and i want you to come and bring your students, because it's so exciting to see
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the very first words that wilson put on paper. that was in july of 1787. the first words were resolved that the government of the united states shall consist of a legislative, executive, and judicial branch. no we the people. it was the separation of powers and the idea that no one branch speak for the people, but our power has to be dissipated among them to prevent tyranny and slowdown deliberation. that's the central idea. the second wilson draft, which was produced a little bit later in july, contains the words we the people of the states of new hampshire, rhode island, and providence plantation, massachusetts and so forth. it was wilson who came up with the idea that we the people are sovereign, not the king and parliament, as in britain, or
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not the king and not the individual states. the central notion of popular sovereignty was wilson's unique contribution. that's signaled by the next draft of the preamble, which appeared later in august, which says we the people of the united states. why was the change made? some say it was just the committee of style trying to ensure the fact that since they the president, can be confused&-
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with the will of we the people. that will is embodied the constitution itself. that's why judicial review is justified. hamilton says when there is a conflict between the will of the people, represented by the constitution, and the will of our representatives, embodied by ordinary laws, then judges should prefer the master to the servant, the principle to the agent. that's the whole rebuke to the idea that there is a counter difficulty involved in striking down on constitutional laws, because it's the constitution, not any of the three branches that embodies the will of the people. that's the first big structural principle. then we dig into each of the branches and see how carefully the framers dispersed and
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divided power and blended functions in order to slow down deliberation and ensure the slow triumph of reason. in congress, there is the separation between the senate and the house. washington's famous metaphor about the senatorial saucer cooling the passions of the house. just do a word search through the federalist papers, and it's striking how many times the idea of reason and passion occurs and how central all the structures were set up to ensure the triumph of reason. then, there was a lot of concern about the size of the house. another amazing document we have in the constitution center in philadelphia, if you haven't gotten the message, come to philadelphia to see these great documents. there were 12 surviving copies of the bill of rights that george washington sent out. 13 went to the states, one to the federal government. 12 survived, one at the
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national constitution center in philadelphia. the very first amendment proposed by congress is not the one involving freedom of speech. it says resolved, there should be one representative in congress for every 3000 inhabitants. if that amendment had passed, they would be 6000 representatives in congress today. that's about the same size as the athenians us and believe that the founders believed had degenerated into demagogues. it was also the size of the chinese national congress today. the reason they were so concerned about the size of apportionment is because they wanted enough representatives to be responsive to their constituents, but not so many that the size of the assembly would become unwieldy and to generate into demagogues. here, the cautionary tale is cleon on in athens. he is supposed to be this silver tongue demagogue who
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seduced the assembly into invading sparta and causing the peloponnesian war. subsequent scholarship has suggested that aristotle and plato and later anti democrats may have done cleon an injustice, and that athenians democracy was more effective in producing economic stability, into spring knowledge when people of different backgrounds, and may have fallen not because of the war, but because of the plague and the war itself was supported by the 500 member senate, and by pericles. it may not do justice to athens to reduce it to demagogues. but this was the framers's vision, as it was the vision of florentine critics of democracy, as well as those written in britain and france who were
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trying to defend those governments against democratic excesses. the original first amendments says one representative of congress very 30,000 inhabitants. it fails, as does the original second amendment, which says congress cannot raise its salary without an intervening election. that became the 27th amendment. our first amendment was the framers's third, and it came first not because it was considered most important, but because it was the first amendment that happened to pass. it doesn't mean the framers were not centrally concerned about rights of speech. they believed that our rights of speech are natural rights that come from god or nature, and not from government. in the state of nature, we are born with certain natural rights, predominantly, the rights of conscience. remember, the right of complete freedom of conscience is the preeminent natural right because the new hampshire constitution says in its preamble, the opinions of men being the product of reason, kykys6 cannot be coerced. my religious beliefs, or lack of beliefs, and opinions, must
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be the product of reason. i cannot alienates them or surrender them to government when i moved from the state of nature to society. that's why the rights of conscience are inalienable. the other essential unalienable right is the right to alter and abolish government when it threatens the rights we refuse to surrender. that's why the second sentence of the declaration contains the entire theory of american government and we have to teach us to our students. we hold these truths to be self evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, among these are life, liberty, and the pursuit of happiness. and whenever government becomes destructive of these rights, it's the right and duty of the people to alter and abolish it. the right of revolution is an unalienable right, which cannot be surrendered, because it's necessary to preserve the greater security and safety of the unalienable rights we have obtained, and the right is embodied in the amendment
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process of article five, which you can see from the wilson draft was not actually specified until the very last days of the convention when they filled in the details about how many states were necessary for ratification. of course, the right of revolution was central also to the convention, because the constitution was illegal according to the pre-existing conditions of the articles of confederation. those articles required unanimity for an amendment. the framers decided that nine out of 13 states was necessary. that broke the existing rules, but it was justified because the right of revolution, or amendment, is an unalienable, right and therefore a thoughtful, considered judgment of the majority of the people of the united states must always be allowed to be enacted into law. that's why some scholars, again, this is my dear law school teacher, have claimed that when majorities express our will in
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a thoughtful, deliberate way which prevails overtime, then amendments outside of article five might be permissible and we the people might amend the constitution in ways that are technically illegal, and has happened in the convention and during the civil war. the post civil war amendments to the constitution were formally illegal. they were ratified at gunpoint as a condition for rebel states to be readmitted to the union. that too was justified under the inalienable rights of the people to alter and abolish government. we talked a bit about some of the cooling mechanisms of congress. let's turn to the present, the obvious cooling mechanism the framers put in place, the electoral college, which was supposed to be a group of wise men who would look with cool, deliberate reason over the scope of available candidates
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and choose those as the highest character and intellect, most governed by reason, rather than by passion. that ideological view proved to be loser thinking by 1800. the electoral college never served that kind of aristocratic, intellectually aristocratic, function. and with the rise of political parties in 1800, they soon became a rubberstamp for the choice of the parties themselves, a transformation that was reflected in the 12th amendment to the constitution, which assumes the existence of political parties. the growth of political parties was one of major explosions of passion that the framers did not anticipate. hamilton and madison thought of parties as a form of faction, and they imagined instead that
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representatives in the electoral college would deliberate free of partisan passion. as it happens, the parties developed in a way that proved to be a substitute for some of the cooling mechanisms that had not materialized as planned. as the historian shawn has shown, many of the greatest constitutional transformations in american history have come through mobilized political parties, and that's because the parties soon formed themselves on constitutional terms. the republican and democratic party formed by madison and jefferson was organized around the principle of popular sovereignty and states rights and individual liberty and limitations on federal power. the federalist party originally was the defender of aristocratic privilege and of national power to regulate the economy, and therefore, the clash between hamilton on the one hand and madison and
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jefferson on the other has defied american constitutional history. in 1856, when the republican platform was drawn by alfonso taft, the father of william howard taft, and others in philadelphia, it was based on the principle of an individual union channeling james wilson, and on opposition to the kansas nebraska act. so, these great parties for most of american history were ways of aggregating people from different regions, eastern manufacturers and western, farmers and the case of republicans and southerners and small business people and agrarian interests in the case of democrats, rather than being mobilized around personalities or around ideologies. that's why the parties for much of american history were able to choose moderate candidates who favored the constitutional
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platforms of the parties, rather than degenerating into the factions that the founders feared. we are talking about the presidency, and that vision of a president chosen by an impartial party organized around constitutional principles, and above all, not directly responsive to the people, was challenged in the election of 1912. my new hero is william howard taft and i wrote a biography arguing he is our most judicial president and presidential chief justice. taft yearned to be chief and took the presidency with the greatest reluctance and fought the election of 1912 on the principle of defending the constitution against the populist demagoguery of roosevelt and woodrow wilson. theodore roosevelt insisted the president can do anything the constitution didn't explicitly for bed, unlike taft who said the president could do only what the constitution explicitly allowed.
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taft was our last madisonian president, a position informed by his judicial background. he served on the sixth circuit and pine to be on the supreme court, a dream he eventually achieved and became one of our greatest chiefs since john marshall. after taft and roosevelt split, taft was moved to run for reelection with the greatest reluctance in order to defend the constitution against roosevelt's new populist incursions. roosevelt endorsed new progressive mechanisms like the popular initiative, the referendum, and the judicial recall of unpopular decisions. roosevelt attacked individual judges by name and demanded that the people overturned their decisions. in the constitution center in philadelphia, in the majestic temple to the constitution overlooking independence hall, there is a quotation in the lobby saying the people themselves are the maker of the
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constitution. it's an inspiring quote until you read the next sentence which was left off the wall, which says and when they disagree with the judicial decisions, you should be able to overturn them by popular vote. it's an appalling expression of populist enthusiasm, and i call to you, and to our dear c-span viewers, to send me alternatives to this excursion, this excess of populism so we can replace it with a quotation from madison or the other framers, expressing a devotion to reason, rather than passion. taft runs for president because he rejects wilson and roosevelt's notion of the president as a direct steward of the people. it's very important for us to teach our students the framers did not conceive of the president as a direct expression of the people's passion. the national constitution center is nonpartisan in every way. we are required by the congressional charter to increase awareness and
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understanding of the constitution on non partisan issues. i can say with complete nonpartisan confidence, the idea of tweeting presidents would have appalled the framers. it's exactly right. it says so in federalist ten. you are tweeting, i am sure, and you would stop our president from tweeting because it's what the framers didn't want. federalist ten says -- taking notes is fine, though, just like madison. you can tweet, but he is not supposed to listen to you, because madison is considering should the people be able to issue direct instructions to their representatives and presidents, and he says no, because you want to set up barriers and cooling mechanisms. the reason this is nonpartisan, our first tweeting president was president obama. he was the first president to set up a twitter account.
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and the framers and madison didn't think that kind of direct instruction by the people to their representatives would be a good idea, because they want slow reason to prevail. when roosevelt and wilson are existing, taft runs for president to defend the constitution. he loses one of the greatest defeats and political history, but he goes on with great distinction to serve as chief justice. there is another important change in 1912 that transforms congress. i'm getting this from william connally is wonderful book on madison. it was in 1912 that wilson insists that the congressional committee system, all right requires the party to cease consider bells, was challenged, and wilson in addition to saying that the president is a direct tribune of the people as well, also says the president in congress, like the king in
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parliament, should be able to do whatever he likes over the objections of the minority and without compromise. he sees the president and congress as a kind of parliamentary figure, and his two books on congress and the constitution endorsed this kind of parliamentary division. georgia well, the great constitutionalist said that all of american history can be seen as a conflict between two princetonians, james madison and woodrow wilson, and used wilson's populist actions in the election of 1912 as the beginning of a path that let us down to 1994 and the gingrich revolution and speaker gingrich's insistence that the party that controls congress should be able to wreak its will without seeking input from the minority, precisely the opposite of the slow
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deliberation and multi interest compromise that the framers thought was central. we've spoke about the congress. we've spoke about the presidency. i'm trying to do is to still be a central lessons we have to teach our students and all americans, and just to review, congress is supposed to separate powers and have checks and balances in order to ensure slow reason. the president is not supposed to communicate directly with the people end is supposed to be chosen by wise electoral college that he or she can exercise independent judgment, and now we come to the judiciary, the least dangerous branch, as hamilton called, and the most dangerous branch as alexander bickel called it. in his view, the judiciary had been transformed beyond the framers's view. madison saw the bill of rights as an inspiration to the people that would promote self restraint and reason.
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he had initially opposed a bill of rights on two grounds, because it would be unnecessary or dangerous. unnecessary because the constitution itself is a bill of rights, and by granting congress only limited power, it would allow it to assume power over speech, because it had been granted power, and dangerous because madison assumed that because our rights were natural and came from god or nature and not government, they were so capricious that they could not be reduced to a single limited list and future citizens might wrongly assume that if a right was not written down, it wasn't protected. in the face of all opposition, a heroic anti federalist, george mason, randall, eldridge gary of massachusetts, madison changed his mind and came to endorse the bill of rights. when he wrote the bill of rights, he didn't make up the rights out of thin air, but cut and pasted them from the state constitution and bills of
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rights in the revolutionary period and here i have to applaud the extraordinary interactive constitution the financial constitution center has put online and i want you to all bring it to your students and i want all americans to download and learn from it. using this incredible tool, you can click on any one of the amendments and see it's antecedents in the revolutionary era, so you can click on the second amendment and see two states, virginia and pennsylvania, said people have a right to bear arms for the defense of themselves or purposes of killing game, whereas the other states led by george mason's virginia declaration of 1776, always the best place to begin because madison and jefferson had masons declaration by their side when they wrote the bill of rights and the declaration, talk about the right of the people to organize themselves in militias to defend liberty in the face of federal tyranny. so it is a wonderful non partisan way of seeing the revolution of the bill of rights, and you can see the
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rights of all of an realtime. the other extraordinary thing you can do on the interactive constitution is to have the top liberal and conservative scholars an american dominated by the federalist society and the american constitutional society exploring areas of agreement and disagreement. once again, click on the controversial second amendment and find the two leading liberal and conservative scholars with 1000 words about how they agree the second amendment means. what a remarkable thing to bring to our students. it's like a unanimous supreme court majority opinion. every word in the statement is agreed to by both sides, and then you can look through separate statements and see areas of disagreement. to do this for all 80 clauses of the constitution is the most extraordinary, gratuitous approach one could imagine. an incredible free tool has gotten 17 million hits since it launched two years ago. last week in aspen, colorado, the head of the college board
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announced that all ap students will be required to take a two week course at the constitution center around the first amendment and the interactive constitution. we are hoping to bring the entire curriculum into ap classes and all classrooms across america. i have given this plug. i hope you will forgive me. it's in the madisonian spirit of promoting cool, slow reason overtime. we can't have informed opinions about the bill of rights or about supreme court opinions without listening respectfully to the arguments on both sides and recognizing that there are good arguments on all sides, and most contested constitutional questions, the constitution is made for people of fundamentally different points of view, and therefore, we need to teach ourselves and our students to read the majority, read the dissent, consider thoughtfully and slowly with an open mind, to separate our constitutional and political views, asking not with the government should do,
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but what the constitution allows the government to do, and then be open to the possibility of changing our minds. that is the civic exercise, the constitutional exercise, we are trying to promote at the constitutional center and it's the essence of madisonian deliberation. this brings us back to the judiciary. this is what madison hopes it isms would do. he said the reason to adopt a bill of rights is that it will convince citizens to think twice before violence. they won't infringe speech or vote to oppress minorities once they are reminded that freedom of speech and freedom of conscience are fundamental principles. it was only later, after the passage of the 14th amendment, that the judiciary rather than congress or public opinion, became the main enforcer of rights. the courts struck down only to federal laws between marbury versus madison and dred scott. the notion of a modern
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judiciary vigorously enforcing rights faced by populist threats is a 20th century construct that has to do with the incorporation of the bill of rights against the states. july 9th, monday, is the 150th anniversary of the 14th amendment to the constitution, one of the most significant constitutional anniversaries imaginable. how heartening is that the original understanding of that unsung hero of the 14th amendment, hugo black called him the james madison of the 14th amendment, john bingham, the congressman who drafted the 14th amendment, i see some appreciative nods in the audience, bingham hoped the 14th amendment would incorporate the bill of rights against the states and require the states, as well as the federal government, to respect the fundamental privileges or immunities of the united states citizenship, which included most of the guarantees of the below rights. his hope was thwarted by the
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supreme court in the infamous slaughterhouse cases. the 14th amendment was passed and it took most of the 20th century, beginning in the 1920s on the first amendment was applied against the states, to the 1960s when other parts of the bill of rights were applied to vindicate bingham's hope. and i would like to have a vigorous debate with you and our fellow citizens about whether the courts today are performing a function of cooling and checking that madison didn't specifically anticipate because he didn't grossly expected initial enforcement of rights, but that they substitute for some of the atrophy of the other cooling mechanisms that madison put in place. the idea of judicial engagement, or having judges strike down federal and state laws, and may or may not be more justified now that the other branches, primarily congress, have stopped playing its checking role, and other forces have sped up deliberations that passionate, hasty decisions
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need to be checked. that leads to the final branch we have to talk about, and that is the media, the fourth branch or the shaper of public opinion. it's fascinating that madison in his notes through the national gazette in 1791, is centrally concerned about new media technologies, mainly the broadside press, that he believes will slowly dissipate reason across the land. the federalist papers themselves are distributed in the newspapers. we have at the constitution center the earliest copies of the federalist papers in the new york newspapers published soon after the numbers were written. madison thinks that a class of elite journalists, who he calls the literati, will slowly disseminate reason over the extended republic through these broadside newspapers. i am seeing some right chuckles
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in the audience, but that was the hope. the federalist papers are not be treating. you have to get them. they were published in newspapers, and the idea is that citizens would buy newspapers like the national gazette. these are partisan newspapers, but they publish thoughtful essays, and they would slowly be informed by the literati and leading citizens, journalists, and suppress their passions without cool reason to prevail. madison thought new media technologies would maintain the benefits of the public and make it impossible for factions to organize quickly, and also counteract the republic by allowing information and reason to disseminate against the land. you cannot have a popular government without popular information. it was crucially necessary for citizens to educate themselves about complicated factual arguments and about the principles of government in order to make informed
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decisions that made self government possible. the media is central to madison's conception and his consensus of free speech in the virginia resolution, opposing madison's infamous sedition act. that remains one of the greatest expressions of faith in free speech in american history. both madison and jefferson had opposing sedition acts that allowed the republican president to put his critics in jail, but not to jail the critics of the -- the federalist president could jail his critics, but the republican vice president, thomas jefferson, can be criticized with impunity, according to the sedition act. jefferson and madison says because all matters of rights and opinion are natural rights that come from ghana nature and not government, and the right of unbridled criticism of public men is central to the triumph of reason in a democracy, therefore, the only kind of threat that could justify the suppression of
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speech is the threat of eminent violence. the great jeffersonian louis brandeis channels madison and jefferson in the greatest free speech opinion of all time, in particular, the 20th century whitney versus california, where brandeis talks once again about the importance of citizens cultivating their faculties of reason. this theme emerges and brandeis says those who made our revolution believe the final state was to make many free to develop their faculties. and its government, the deliberate forces should prevail over arbitrary. they valued liberty as an end and as a means. they believed liberty to be the secret of happiness and courage to be the secret of liberty. that's a quotation from pericles's funeral oration, as translated. they believed the freedom to
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think as you will and speak as you think are means indispensable to the discovery and spread of political truth, free speech, and assembly, discussion would be important. with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine. the greatest threat to freedom is inert. this should be a fundamental principle of the american government. in those extraordinary, words are contained all the themes we are talking about. the duty of citizens to cultivate their faculties of reason, rather than passion, and channeling jefferson's belief that we have certain faculties and reason has to be cultivated through rigorous self education. also the idea that wherever there is time enough to deliberate, the theme of time, the best response to evil speech was a good speech and good speech can only be banned if it is intended to cause
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imminent violence. then there is no time to deliberate. go kill jeff now. the lecture has been going on too long. that could and should be suppressed, absolutely. but short of that, tweeting jeff is boring or the lecture is going on too long, in europe, if you tweeted, that i could sue you under this new right the european union has passed called the right to be forgotten on the internet. european judge, or initially google, would have to decide if i'm a public figure and if your tweet is in the public interest, and if they guess wrong, then google refuses to remove your tweet from its index, then they'd be liable for up to 2% of their annual income, which was 60 billion dollars last year. this concentrates the money. google removed 43% of the takedown requests received in europe. that could never happen in america because of the madisonian and jeffersonian brandeis ian faith that offenses two dignity are not sufficient to suppress speech,
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because overwhelming faith in the power of reason deliberation. we think as long as there is time enough to deliberate, then speech should prevail. friends, the great challenge to the madisonian faith today is the element of time. is there time enough to deliberate now in this frantic world of tweets and brexit votes and twitter polls and instagram, when people are making decisions with snap judgments and very impetuous passionately framers feared, is facebook and twitter consistent with madisonian democracy? this is a central, urgent question. we must discuss it together as citizens. it's clear that the speed with which information is disseminating, and the ease with which factions can mobilize online, are a direct threat to the madisonian fit. madison things don't worry about factions mobilizing quickly. america is so big they will never be able to find each
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other. we are chuckling now. in a minute, on a chat room or instagram post or on reddit, the most mobilized and polarized factions can find each other from across the country and around the globe and quickly coalesce into mobs and punish any ideological dissident from the extreme positions, forcing representatives to dig in their heels and take positions like armies in polarized camps. we are living in an america defined by polarization. some have called it filter bubbles and echo chambers. this is a time when, according to objective statistics, america is more polarized than in any time since the civil war. that's how extreme the divisions are. in 1960, the most liberal
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republican and the most conservative democrat overlapped by 50% in congress. today, there is no overlap between those parties. because of geographic solve sorting where people choose voluntarily to live in blue and red enclaves, and because of virtual self sorting on facebook on twitter will only read articles they already agree with or share articles that confirm their pre-existing passions. we are completely walloping ourselves off from hearing positions of the other side. this is the exact opposite of what madison hoped for. he believed that by slow deliberation with the opposite point of view, we could allow slow reason to prevail. now we have polarization and snap judgments. what is to be done? this is an urgently important question that we must address as citizens and its teachers. all citizens have to converge around recognizing that this is not a partisan problem. it's a constitutional problem
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of the highest magnitude. i do not have the solutions for you this morning. i want to begin a conversation in a moment, but i should say the constitution center has started an exciting initiative called the madisonian constitution for all. the topic we are talking about, what would madison think about our current congress courts and media, and how can we resurrect the triumph of a reason rather than passion today. it's coach aired by the heads of the federalist society and the american constitution society, and by senators mike lee and chris combs. congressional visiting scholars will launch it in the fall in the atlantic magazine, asking some of these questions, and we will spend the next few years trying to identify concrete solutions to the problems i've said. to put one or two on the table
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to begin our discussion, on the social media front, facebook, which has been strongly sensitized to the dangers of fake news and polarization recently, has started an academic project to explore the problem of fake news. they found people are more likely to share fake news than real news because it appeals to passion rather than reason. if you see something that's angry at emotionally galvanizing, people shared quickly without reading. it that's why researchers in britain were able to predict the brexit vote before it occurred. they saw the messages appealed to angry passion rather than reason. the remain messages were complicated economic arguments. the leave messages were shared more widely. so they predicted it before it occurred. this is a madisonian token. what's to be done? facebook could have put higher up on the algorithm only posts that people actually read.
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imagine that. it's inspiring from a madisonian perspective, but creepy from a privacy perspective. facebook knows how long you spend on every post to read. they choose to put higher up on the algorithm stuff that people read. that's one example of a digital cooling mechanism in the madisonian spirit. if they wanted to be more interventionist, they could put higher up on peoples feeds arguments from sources they might be inclined to disagree with. a scholar on republic. com, years ago suggested putting links at the bottom of web pages with fox news and so forth. it seemed technologically quaint at the time, because it was a link to something you disagreed with him the opportunity to watch a cat video, and people may go to the cat video.
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now facebook controls but we see, and they could have chose to be more interventionist and ensure a more robust diversity of views. this raised grave questions of free speech principle as well as law. should facebook be in the business of deciding what sort of information we should see? do we want the algorithm to be madisonian rather than based on consumer preferences? since the constitution says congress will make no law, it doesn't say facebook will make no law. facebook is not required to behave in a madisonian way and ultimately is responsible to its shareholders. therefore, there is a legitimate and robust debate about whether we want the platforms or the government or voluntary self restraint of citizens to ensure that we develop our faculties of reason by exposing ourselves to different points of view. no one of any political persuasion can deny the urgent
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necessity for us to examine the task together. i think it's time for our question and answer and for me to learn from you about these important questions. together, we can try to identify other madisonian solutions to this urgently madisonian problem. but the task could not be more necessary. it's the highest concern for the future of democracy that fellow teachers educate our students to cultivate their faculties of reason, that we remember with brandeis the importance of leisure. brandeis was so excited to learn from his favorite book, the greek commonwealth, that the greek word for leisure was unemployment. [laughs] [laughs] absence of employment. he said unemployment can be used for leisure.
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he continued, leisure doesn't mean less work, more work, but more focused work on cultivating reason and on reading and collecting facts and reading tolstoy and industrial reports, and the founders and philosophy, so that all of us are capable of what he called the duty of public participation. your task is urgent, central. there is nothing more important than teaching students about the essence of american democracy, because democracy will falter into the mob and precisely the way the founders feared unless you continue on your urgently important task. i will close with two inspiring phrases of brandeis. he was called isaiah by many, including franklin roosevelt, partly because he looked like the prophet isaiah with his impressive shock of white hair
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and tendency to p pace up and down and insist on the importance of maintaining tradition from ancient greeks through madison of reason, but he also was called isaiah because of the beautiful phrase from the prophet, come let us reason together. isn't that a beautiful phrase? it encapsulates brandeis's and the framers's madisonian hope, and if we can end with final words of brandeis. if we were governed by the light of reason, we must let our minds be bold. thank you so much. [applause] [applause] [applause] please say where you are from so he has an idea. >> speaking of madisonian reason, how would you explain that much over the revolution was, in fact, the product of
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passion, the sons of liberty, the tea party, even much of the declaration was designed to appeal to people's passion. was the revolution a product of passion, not reason? that's my question. >> that's a wonderful question. i will repeat it to make sure everyone heard it. the revolution was arguably a product of passion rather than reason, pain and the other revolutionaries motivated people in opposition to tyranny. was madison distinguishing to strongly between passion and reason? answer to your question is yes. it's interesting that he was a much more open fan of athenian direct democracy them madison and hamilton were. the greeks did not draw as from a distinction between passion and reason. they believe there could be
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reason and passion and they had civic ceremonies designed to cultivate the productive passions, rather than the unproductive ones, and the ten tribes of greece during the height of the fifth century anathema would file into the -- and it was not an approval, which is ten representatives out of 500 people. it is 50 tribes and my math is bad. anyway, there are a lot of representatives filing in. some say it's once those ceremonies broke down, the tribes began fighting with a chiller through a tribalistic polarization. modern scholarship suggests
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that the firm distinction between passion and reason is to overstate -- the enlightenment giants like descartes distinguished too strongly between passion and both are necessary for informed decision making. pain and the untitled direct democracy is the right model. as we think about resurrecting reason today, we cannot neglect modern neuroscience and ancient greek learning about the importance of channeling passions so it can motivate people to defend liberty, to ensure the triumph of democracy, without generating into mobs. thank you for that question. >> rusty here from maryland. you are talking about
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technology and the speed and how it has dampened the cooling off affect. increasingly, being one of the old guys in the room, everything goes faster every single day. we have students and young teachers waving their watch to buy coffee. we are talking about virtual elections. in a practical sense, have you thought about how we would approach slowing this down without looking like a luddite? >> this is also a central, crucial question. you say things that move so fast, we are used to immediate result and buying and voting in thinking and expressing ourselves online. how do we slow things down without looking like luddites? that's the hard question we have to set up.
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the first thing we have to say is the framers are not luddites. they are radicals. the idea of having thoughtful deliberation by the majority is a radical idea in a world where kings and strongmen, thugs prevailed. there is nothing luddite about embracing the enterprise or social media technology to fulfill the framers's hopes, the same technologies that allow us to buy gum balls or watch cavity was allow us within moments to download the federalist papers of the most inspiring books about the anti-democratic tradition throughout history, which i did when i had the incredible experience of going to athens just two weeks ago to listen to the most elevating music ever created in the world. but it requires self discipline. it's up to us to use these extraordinary technologies for high purposes and to promote reason rather than to amuse ourselves. part of it is not rejecting the
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astonishing technologies, which how excited brandeis or madison must have been about the ability within moments to download the greatest thinking of all of history. madison was sent by jefferson all of these books of french philosophy during the summer when he was preparing his notes on democracy. now we can get them in a moment. so we just have to marvel and thank the almighty that we live in a world where we can train ourselves to use it properly. the other question about how to slow things down or put speed bumps or breaks before instant voting is a political and constitutional one. if we can persuade our fellow citizens and students that instant voting is not good, changing the constitution and
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fundamentally withdrawing from the european union based on a one-off vote is not a madisonian idea. it's not possible in america, even with social media technologies, to make fundamental constitutional change with a single one-off vote. thank goodness. this is one of the many parts of the constitutional system that survives. amending the constitution is extraordinarily hard, and it should be. madison feared a second convention. he thought, unlike jefferson who want today convention every ten years, that it was basically a miracle that given the fact it was practical politicians who came together to produce the genius document they did, he feared a second convention would generate into mobs because we'd be the same legislators who wrecked such havoc in the states. i don't have the answer to how to harness or slow down these technologies in order to promote these votes. the facebook example is just a small tweak. it's crucially important not to
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resist these technologies and to say people should live in a horses and buggies. we have to embrace these technologies, which is where we and all of our students live and train ourselves to use them wisely for reason and also debate constitutionally about preserving the structures that prevent us from using technologies to make quick decisions that cannot be reversed. thank you for that. >> i'm from south carolina also. you used the term fake news. i thought fake news has always been with us since the gazette, the broad sides, engravings, william randolph hearst, joseph pulitzer. is there danger in giving it a new term in that people will
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dismiss the other side by using the term fake news? >> yes, there is a danger. yes there is. i am so glad you raised that question. jefferson rejects any attempt to distinguish between facts and opinion. he says because of the natural rights of conscience are individual, and each individual must side for him or herself what is true and what is false, to empower a judge or government official or 27 year old lawyer on facebook to decide what's true on what's false would be anathema to our rights of conscience. so i reject proposals by some that facebook should decide what is true and what is false and labeled false stuff. that's up to citizens to decide for themselves. this is not rejecting the enlightenment faith and facts.
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we must as a society converge around the idea that there is a distinction between truth and falsehood, but ultimately deciding what falls on which side is up to each of us as individuals. that also doesn't mean that facebook cannot identify accounts that are created by bots intentionally to create false and downplay them in something like that. if it's clear that the intentional falsehoods are being deliberately distributed, that may be a role for technology rather than, law because american law allows the suppression of falsehoods only when they cause harm to the reputation. you can imagine falsehoods that don't cause actionable harm because they are political speech, but nevertheless could be downgraded because they are false. thank you so much for reminding us one.
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i may think something is fake and be convinced because of this and that, but it's up to me to persuade my citizens to embrace. and each of us have a responsibility on our own to cultivate our faculties of reason enough to make informed decisions. that's why the job all the teachers in the room is crucially important. news literacy is helpful. teaching students to distinguish between reliable and unreliable resources is helpful. teaching them to be thoughtful madisonian consumers of news so they can seek out positions they disagree with and debate is helpful. listening to news sources that bring together opposite points of view, and i am plugging away the constitution center's education materials, i have an incredible privilege every week of hosting a podcast called we
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the people where i call the top liberal and conservative scholars in the country and debate the constitutional issue of the week. i learn so much from these amazing podcasts and so do our listeners. i can't have an informed opinion about any of these issues until i have heard both sides. i encourage your students to do that as well. absolutely right. let us not have the government or the president or facebook decide for us what's true and what's false. thank you so much. >> what are your thoughts with regards to a second constitutional convention calling for separate amendments to be proposed by the states or opening it all up again. what are your thoughts? >> the question is what are my thoughts about a second constitutional convention, even limited to specific amendments or one that would be open. it's not a hypothetical or fanciful suggestion. 27 states have called for a
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convention of the states that would propose a balanced budget amendment to the constitution. we only need 34. seven more would produce the convention. there's two ways to oppose an amendment. you need two thirds of both houses of congress or two thirds of the states can call on congress to summon a convention of the states to propose an amendment. and that has to be ratified by special conventions. so it's not completely beyond the realm of possibility that seven more states could call for a balanced budget amendment and we would have a convention of the states. what are my thoughts? we've debated the question at the constitution center. i will give you the arguments on both sides and tell you what i think. the argument in favor is that we the people, if we feel strongly enough about a balanced budget amendment to want to try it and congress is refusing to enact it because
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for their own political reasons they think it would be not in their interest to balance the budget, then why shouldn't people be able to call for a convention? think of other amendments that might not be able to be proposed by congress but could be proposed by the states, like term limits. some argue that term limits are good madisonian cooling mechanisms that prevent representatives from becoming too entrenched in polarized. people would be less likely to pander to their base. it might be more madisonian, yet the supreme court said that federal term limits are unconstitutional and you need a constitutional amendment to have them. the congress is not going to propose it because they don't want to terminated, so why not have a convention of the states. the argument against it is that the danger of a runaway
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convention so you could call a convention just for a balanced budget amendment or terminal amendment, but we know for the founding and for the civil wars that a convention once called is unconstrained by law and can propose whatever it likes. and then this incredibly polarized time, the argument goes, if the people who would go to the convention would be the same polarized state legislators or can professional representatives who already dividing america is so dramatically now so polarized convention might well repealed the first amendment to a proposed things that appeal to one side and not the other. now the counter to that fear is, fine, proposed but they like. but first of all, it has to be a majority. propose anything in order to get reported out of the convention. and more significantly, that the high ratification requirement, three quarters of state legislatures who have special conventions is so hard to meet that if people try to
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repeal the first amendment or do other mischief, it would never pass a ratifying convention. i'll tell you what i think in the second i'm just giving your variance on both sides. based on would've said, who believes with jefferson, that there should be frequent constitution convention and we should have one right now? and who believes wet madison, very dangerous convention and we should not have one now? this is the madisonian group, and not everybody was voting, but you want to hear more her arguments on both sides. i think i'm with madison here, given polarization, i think unlikely that you get a majority to call the convention to begin with and, i'm not convinced that the convention itself over -- unless deliberation was structured anymore thoughtful way.
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james fish can, at the university of tests instrument who is deliberative poll, so that when people are given an opportunity to hear competing arguments and are required to deliberate over a period of days often they can become less polarized. so perhaps if this convention were structured in a way that wasn't allowed -- my fears that the convention would convene and immediately vote on twitter, you, know a multi day convention on you had to hear all arguments, maybe that would be okay and maybe the check of the three quarter ratification would be adequate but right now i think better safe than sorry, i'm with madison. >> >> my name is nicole, and i'm from indiana. and when it comes to -- when louis had the opportunity to be a member of woodrow wilson's cabinet and then turned down that opportunity and then was nominated for the
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supreme court and accepted that, i kind of asked the question to the other data chief justice roberts, but in your opinion as well, when your in that, vanity for the powers of government, when you're in that position and you are no longer designated toy dental five by your party that you supported, that you are member of, tell us what you think europeans are throughout history and being on the supreme court, the motives of your position within the power you have within the people to not be unified by political party. but more so in your ability to what you are in favor of, whether you agree or disagree with the situation of the case at that time. >> wow, great question. of course, chief justice roberts answers much longer than mine. but i'll check it out. i rejected the idea that the court is a group of politicians. i agree with the chief justice
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roberts who has said very powerfully and repeatedly that it is important for the court to stand for a kind of nonpartisan legitimacy that transcends politics. and that is inaccurate, simplistic and dangerous for citizens to perceive the court as a five republicans and for democrats or what have you. and i think descriptive, lee over the course of time, while there is a strong correlation between the considered will of the people in the courts judgment, in other words, of the court is tended to reflect thoughtful, considered popular opinion overtime and on the rare occasions, as entering the new deal in the civil war, promote backlashes that have led to judicial retreats. and that is madisonian function because remember, this is not the court reading in the election returns on a daily basis, it's reflecting the thoughtful current of recent popular opinion. that's exactly what madison thought that it should do. and that the constitution is supposed to embody. so in that sense, the court has
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been appropriately and cautiously responsive to what justice ginsburg just called nudges, rather than -- what she talks about measuring motions, basically the court is sometimes moved it gently ahead or push the gently behind, not dramatically afforded popular reason. but the other thing i want to say and i really want to teach the constitution center and i hope all of you will teach as well as to distinguish between a charges political views and his or her constitutional views. it's urgently important to teach citizens about the different methodology's of constitutional interpretation, so they understand that there are different kinds of liberals and different kinds of conservatives. chief justice roberts is a constitutionalist who makes institutional legitimacy a priority and he said, i have the honor of interviewing right after he got onto the court. he said i hope when people go back to my opinion, subtlety that many of them and just this
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term, look at these narrow, new unanimous themes case involving the -- where the justices avoided polarizing broad constitutional decisions and converge seven to two or eight to one on technical grounds. this is the chief vision. and i think he has said, he's modeling himself after chief justice marshall and i think it's uninspiring vision, whether it's good for the courts legitimacy and for what it's worth. but not all conservatives should have that vision. justice thomas is a originalist. as justice gully a was, who and they think that the constitution should be interpreted in light of its text and original understanding in its original public meeting. regardless of whether that's good for the course legitimacy or how it wishes to see perceive things in a partisan way and they will overturn decisions they think are inconsistent with original understanding, even if they
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have been fall, as the expression goes. and then justice souter, the former justice suitor was a book in traditionalist who thought the president was extremely important. on the liberal side, we have incrementalist alike justice ginsburg who criticism for moving to broadly and deciding a hotly contested question in sweeping terms, rather than really deciding the case at hand, allowing the political process to take its place. with pragmatists like justice breyer who have joined justice roberts in a series of decisions over the dissent -- because they believe that the function of the court is to function as a court and to reach practical solutions that both sides can converge around had a madison sense. and then just this sotomayor, who is a inspiring crusader for
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her vision of the correct constitution, regardless of its practical consequences. so i really want to work with you to teach these methodology's first. original nursed, ending second, history and tradition, third, president, four, pragmatism. fifth, natural law, justice kennedy who just retired believe that we do have certain rights that comes from god and nature and not from government and they should be strong enforced by the government and the court regardless of whether they're enumerated in the text of the constitution. so both the right to party rivals ian autonomy, which justice kennedy summed up saying at the heart of liberties the right the conception of meeting of the universe and the mystery of human life. justice columbia dismissed that, he called it the sweet mystery of life passage. but it's a powerful and strong expression of the national rights of autonomy and dignity
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that the court has affirmed. our repeatedly and, row casey, burger failed and that represents a natural writes based philosophy. so if we can teach our students not to succumb to the easy mode of reducing every decision to five to four politics, encourage them to read the majority of decision and read the descent and identify the judicial philosophy that's animating the just different justices so they can understand why the recent case involving the surges of a motorcycle that was eight to one with justice leader at the center, because he is a more of a law and order justice who believes in his power and takes the executive should have great difference, unlike his conservative colleagues. this isn't to say that we don't live in incredibly polarized time anymore. the most explosive and divisive supreme court confirmation hearing since 1987, since
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robert pork in the country will be dramatically tested because the stakes are very high and i'm not dismissing the fact, there is a big difference between liberal pragmatist anna conservative pragmatist and so forth. but it just misses everything that is beautiful and meaningful and inspiring and limiting about constitutional law to reduce it all to politics. many, do many of my very distinguished colleagues in the academy do and as a shorthand, it's not ensure that there is often in overlap between the politics of the justices and the results. but not the reasoning. the reason to these decisions for different reasons and all churches will say that there are honestly motivated by their methodology's and the correct views of the constitution, rather than by politics. i don't think any judge has ever voted saying, i want to help this party or that result. have world views and it's our job as citizens, students of the constitution to understand
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them and teach them. so let's make teaching of constitution methodology is part of arsenal and just as all our students are required unconstitutional classes to separate the political unconstitutional views and learn the methodology's of constitutional interpretation. let's teach all students of methodologies, as turning in middle school and all the way up to -- thank you so much. yes. >> i'm from new jersey. but in from philly, so we run a lot of field trips to the constitution center. you have mentioned before to go back a bit about the electoral college and that that was one of my absence cool mechanisms. i guess my question is twofold, number one, madison obviously saw a lot of the undoing of his original intention of the electoral college, i wonder if he ever wrote about it, i've never really read or heard anything about wet he felt about the electoral college and how it contributed and b, should we be a little bit more
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concerned about the electoral college. usually after an election, like 2016, 2000, and there's a lot of talk about the electoral college and then it kind of dies out and a lot of it is dismissed by oh, you know, the loser just get upset about the electoral college, whatever, deal with it. however, i've read a lot, i've also actually c-span did some interesting lectures on it and how the dangers of the electoral college could just be the next example of you know, minority ruler faction rule when we're looking at the numbers of people who live in different parts of the country, could there be an argument that the people are being alas represented by the electoral college, and it's not even about the presidential elections when, you look at both political parties channeling so much money and attention and political favouritism to states that might wind up helping them in the presidential election, you know, are there a lot of dangers of the electoral college as it stands today with a country becoming more polarized. and did madison see any of that coming? >> what a great and deepen
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important question. i don't know what, if any thing medicine road on the electoral college after founding the democratic republican party. if he did, i'm sure he will know it better than i. but, we did have a great series of debates and podcasts at the constitution center on the question you posed. has the electoral college, it's not serving its regional purposes? and the argument against it is just the one that you made so powerfully, which i will repeat because i couldn't do it better than you can. the argument in favor of it was made by a brilliant scholar who basically said, yes, it's true, it doesn't serve the purpose of wise aristocrats treating people with the best character, but it does or values of federal listen. i would not serve madisonian goals to have purely -- to have a president chosen by new york in california, basically they're such a diversity of views throughout the country that a lot of
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states throughout the country to be represented will ensure more of a mix of madisonian reason than simply having the blue states repeatedly elect the president. the counter is one you just made in a very interesting way, which is that maybe giving each state a number of representatives that it has in congress does not serve madisonian reason, because in a polarized world with low voter turnout, congressional representatives are pandering to the most extreme factions in each of their parties, and the moderate middle is not represented, and therefore we may be in the hands of factional -- the counter to that is the electoral college is done numerically.
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so unless you are assuming that all of those red state people are actually democrats or wouldn't vote for the presidential candidate, then maybe there is not a political process failure. probably the most immediate solution would be either some kind of proportional representation so it is not a winner take all system but you can divide the number of electoral votes as some states do and it would ensure that in a divided country, the diversity of views is represented. the other is the compact of states where ten states pledged to give their votes to the winner of the popular vote. if a number of more states say yes, that would guarantee a popular election. the chances of that getting off the ground seems low, but it's a possibility.
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there is no question the electoral college is not serving its original function, not any madisonian function at all. the defense would be that some kind of geographic representation in the election of the president is helpful in a divided country, because you don't want a few regions deciding everything. much more to debate. >> i am from southern new jersey, right outside philadelphia. throughout your lecture, you cited hamilton, madison, and the federalist papers. in the effort of hearing both sides, can you bring into the anti federalists argument? what do you feel are some of the major conflicts that exist between the federalist and anti federalist÷úvox=z(t ratificatio? >> a wonderfulfmh
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the concern was remedied by the adoption of the bill of rights. more anti federalist were concerned about federal power. it would be unchecked by either judges or by the other branches. in our explainer about the second amendment, there is a wonderful paragraph where they describe the difference between a federalist and anti federalist. i will see if i can find it.
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it's an incredibly new app called the interactive constitution, available on the app store. i am clicking on the right to bear arms and describing how the federalist hand anti federalists agreed and disagreed, and it says implicit in the debate between federalist an anti federalist were to shared assumptions, that the first constitution gave the federal government almost total legal authority over the army and militia. second, the federal government should not have any authority at all to disarm the citizenry. they disagree only about whether an armed populace could adequately deter pressure. that's a wonderful paragraph. if people ask what does the second amendment mean, i read the paragraph, because it's but both sides agreed. they are both federalist and anti federalist. they agreed the feds can't
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disarm the citizenry. anti feds are concerned about the deterrence, the enforcement mechanisms to ensure the federal government does not overstep its constitutionally assigned bounds. therefore, they were not confident and armed populace could deter the fed, while federalist or more confident. my broad sense is that the anti federalists supported the broad goals of the constitution to have a federal government with limited and enumerated powers, and to ensure that the rights of the people were retained by then and couldn't be threatened by the government. they disagreed about whether the structure that was created adequately limited the government to avoid tyranny. that's why the question of what would madison think about the government today is a question that invites anti federalist
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thinking. to the degree that madison is concerned the bill of rights itself will be a parchment barrier and that liberty will be determined by the ability of citizens to educate themselves enough to avoid menacing liberty, the anti federalists might have wanted more strong protections. so unlike the division between republicans and democrats today about policy issues, -- both committed to a different government strong enough to achieve common purposes. it's constrained enough to protect liberty and they disagreed only about the constitutional means for achieving that goal. thank you for that. >> as i listen to you, when i'm
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hearing is that in our country, we have a crisis of courage, of a willingness to use constitutional mechanisms to exercise reason more often over passion. when i wanted to ask about, so bear with, me is regular order in the legislature because the constitution does not prescribe how congress should operate, but congress has always operated with principles that force the legislature is to use reason over passion to make decisions. recently, we have had changes in the way the senate works where we need a simple majority to get a supreme court justice confirmed. i want to know your thoughts on that and your thoughts on regular order, and maybe perhaps, do we need some kind of constitutional circumscribing of congressional behavior so that we have our
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leaders using reason more often? >> wonderful. regular order is one of the most madisonian solutions imaginable, and this incredible, wonderful group of constitutional wang's and i use that in the highest sense of praise, you are absolutely right. if we had to pick a single institutional reform to resurrect madisonian reason, it would be regular order. regular order, as you say, requires that laws go through the committee and are considered over a period of time, rather than being pushed through by leadership without deliberation and without consideration or criticism by the other party. john mccain received the liberty medal in philadelphia last year from our current chair, vice president biden. it was one of the most moving ceremonies i have had the privilege of seeing. mccain and biden lamented the
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lack of regular order that ensured that people of both parties would listen to the arguments from the opposite point to view and that you couldn't have a parliamentary system that would circumvent debates. the hugh litt foundation, which has a madisonian and assertive, which is very generously supported, has identified the resurrection of regular order as another priority. how precisely it could be resurrected is not clear since congress has plenary control over its own rules, but the idea of forcing deliberation isv crucial. what are other ways that we can force our enjoy the benefits of deliberation and congress? three supreme confirmation hearings, it has now become a truism or banality.
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the idea is that senators ask political questions and the nominees dodge them and we learn nothing. i completely reject the characterization of those hearings. going back to robert berke in 1987, you find the nominees signal their judicial philosophies in ways that prove to be pressure and. he said he was an originalist hand insisted the constitution should not enforce on numerator rights. justice kennedy rejected that and endorsed the right to privacy in terms that anticipated his hand to the right. he said a short list of qualities that should be consulted identifying on numerator liberties are the right to self fulfillment, the right to personality, the right to dignity. he signaled his news in the
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marriage equality cases. justice souter -- said justice brennan is one of the greatest constitutional heroes in american history. he performed and therefore conservative choirs have no more suitors should not have been cries of surprise. now we have a situation where the confirmation hearings are not kabuki theater, but they are probably public education opportunities in which the result is preordained. failing scandal, it's likely that the presidents nominee will be confirmed because the filibuster, and the confirmation can take place by majority vote. whether you are a republican or
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democrat, even if you are a republican senator who will vote to confirm the nominee regardless, i would think you would have a civic obligation to find out what kind of conservative has been nominated. what is the view of precedent? former judge mike lieu tech, a conservative judge here has said there's certain precedents that should be considered super presidents because they have been confirmed by justices appointed by both political parties. although he is a strong original list, luttig believes that certain precedents, including, row have become embedded in the fabric of our law. we must find out what he or she thinks of that question. all of that is a function of public education. it goes back to the scheme of why your work is so important is teachers and why, in this world of partisan polarization
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and democratic politics, have enough respect for our fellow citizens, and c-span is the most beautiful educational platform that exists. it's the only place that will give citizens access to unfettered long hearings and long talks like this one. all of you viewers are probably watching this at three in the morning. i'm so sorry you can't sleep, but i'm so honored you are listening to this lecture because you are educating yourself on the constitution. and here is to regular order and let's resurrect it. i think i have time for one more. you tell me. i don't want to delight you. >> for a while, i have been frustrated with the polarization of political views and kind of this appeal to the a motion all side of the issue
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you were talking about. news channels, news stations, news sources, i'm curious, where do you get your news? >> from the national constitution center's website, of course. [laughs] we have a great constitution daily blog, which has the constitutional news of the moment. what i learn from the podcast, because i can't have an informed opinion about any of this stuff that's coming out in the news every day unless i have heard the good arguments from both sides. these are technical open questions, and not presuming to have an opinion until you have taken a moment to listen or google is great. i am lucky enough to do the podcast and the podcast is great. i read the times and the wall street journal and huffington post and irate for the atlantic. and i google around a bit. i think the times and the
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journal and the washington post are doing good work in attempting within the limits of all of our filters as citizens to tell the story as they see best, and in the spirit of your fake news, i think it's important not to dismiss the work of professional journalists in their efforts to tell stories as staff. of those important to get a diversity -- but i don't watch tv. except c-span. [laughs] >> so, it seems one of the -- as teachers we can control so little of what happens, right in the world, we're just small players and big game. however, the one thing we can control is education. right? that's our game, that's kind of
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what we're after. inseams to, me civic education needs him some sprucing up. war organizations and advocate for civic education, what are some of the policies you need to think means that take place in all 51st dates to better improve in getting and -- one madison say about civil education? >> he said first of, all it's absolutely essential to the survival of the republic. and he supports a proposal for the diffusion of knowledge in kentucky which i think had some state support on the grounds that unless citizens learn of the science of the government, under clock rusty will collapse. what's really important about madison is it's not endorsement just ideation and general. first of, all education is important. but, we said education people are like even more of people than even less education so we,
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smart-y pants shortened fancy the word anymore immune to the forces of polarization denim buddy else. medicine is very specific about education in the signs of government. and in the principles of the constitution. and that's why the constitution, whether we have a radical -- that citizens must be trained to think a constitutional words, or at least to think in constitutional terms. civic education is not just telling people to get out to vote. floating is fun, and supportive and if you can feel like voting. but that's not educating yourself in the structure of government. we need to teach our federal citizens about all of the complicated ideas that we've been talking about this morning. i tried to restaurant, took an hour. that's not good enough. we need to make a list of ten principles, separation of powers, checks and balances, federalism. to be able to explain quickly and urgently and away that's
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relevant to people's lives why these are important. how do we show those to peoples lives. you know, that your own teachers. you tell stories about why this is relevant. you can tell a story about how the supreme court just said that the government can track our movements 24/7 on our cellphones, that they can find vitale tiny drones in the. or how we move in public. and then you can tell the story about how that inspired and minion, cited the width of assistance that sparked the american revolution and how king george tried to go through people's houses to see whether they paid that taxes and see if their files. this is so objectionable that the framers not only have the boston tea party, but pass the revolutions to oppose the assistance. john adams said at the moment, about the revolution was worn. so the constitution center has a multi faceted approach to civic education, first teaching
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history through storytelling, second teaching citizens to separate the political from their constitutional views. and third, encouraging several dialog by grading different points of view together. and that's where we're trying to do with tools like the interactive constitution and the podcasting otherwise. if you, fellow teachers are inspired, i want you to join us in helping us bring these tools to your kids where we're creating lesson plans and leading questions to bringing amendments to life and introducing them into the classroom. and of course, we want citizens to try to follow this inspiring unnecessary enterprise as well. and the thing about it is -- here is the farewell. it's just so -- it's necessary for democracy. and we are all citizens,
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democrats and republicans know that we're in a perilous state. we're seeing waves of populism sweep across america and around the globe. we're seeing what countries in europe, without rain constitutions are doing in the face of populace tried. emulating their supreme court threatening journalists, undermining fundamental principles of liberty and we're wondering whether america in the face of these new technologies and new forces can preserve the structures that have defined us as a nation. so it's necessary, in order to preserve the structures and it's also necessary to familiar faculties of human being. there's nothing more meaningful than lifelong learning. every moment that we spend using your moment of leisure to elevate our faculties of reason, to learn new history and to review literature to be inspired by new music and to could version of a beautiful is
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that unite us is one that we rise higher as human beings. so, this is not an enterprise just for students in middle high school and college, although it is for, them and has to be a lifelong commitment to elevating ourselves as citizens. it was -- wiser surprise human beings and help us bring together. and once we engage in this under prize, we will understand that the things that divide us hard to try to squeeze are relevancy,'s the difference between this time law or the they speech controversy or that speech controversy is far less important that we're all united by the principles of the constitution. we do converge round the principles of the declaration of independence and red or blue americans, we are one. as lincoln similarly said. that's why civic education is important and that's why your work is so crucially important and i must hand by doing what
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i. must by thanking you, as teachers, for teaching history in these embattled times when technology and science her whole the rage. you understand the crucial importance of killing a young students to love language and learning and words and to thrill to the inspiring stories, that create america and to converge around the great document of human freedom that unites us in the u.s. constitution. thank you so much.
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next, on the presidency. we hear about dolly madison's political talents and the working partnership she forged with her husband, james, to create a sense of personal and political excitement during their white house years. president and ceo of the on paleo foundation recalls goalie madison's life and times at her political successes. the virginia museum of history and culture and james madison's montpelier cohosted this event. it's 50 minutes. >> today's lecture, as you'll, note is sponsored by our friends at james madison's montpelier and with us to talk about the home's most famous famous female occupant. is the president, seer montpelier foundation. she's one of the first of generation women turnout oversee all aspects of a national historic site and under her leadership, montpelier has become an absolute leader in the research of slavery in the early


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