Skip to main content

tv   James Madison Democracy  CSPAN  April 30, 2021 10:01am-11:48am EDT

10:01 am
next on american history tv, jeffrey rosen talks about james madison and democratic u deals. mr. rosen is president and ceo of the national constitution center in philadelphia. he argues in part that social media platforms work against the founding fathers' core values and cooling mechanisms on popular opinion. the james madison memorial fellowship foundation and constitutional center cohosted this event. it's an hour and 45 minutes. >> we welcome you to the james madison lecture, which our foundation sponsors every year. seated in our seats today are 49 james madison fellows here at the university studying the foundations of american constitutionalism. they are all high school teachers or middle teachers of
10:02 am
american history, american government, or civics. and then we have several of our alum that have come. so we have james madison fellows that are teaching those subjects across the nation. i'd now like to introduce our guest speaker. our guest speaker today is jeffrey rossen, president and ceo of the national constitutional center. he's also professor of law at the george washington university law school and contributing editor at the atlantic. professor rosen is graduate of yale law school. his book, lewis american prophet was published on june 1st, 2016. on 100th anniversary of the bran dice supreme court confirmation. his other books include the supreme court, the personalities and rivalries that defined
10:03 am
america. 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, destruction of privacy in america, which the new york times has called the definitive text on the privacy perils in the digital age. he's also co-editor with benjamin whit, constitution 3.0, freedom and technological change. the proceedings from the brookings project, technology and the constitution. his essays and commentariries have appeared in the atlantic, new york times mnangagwa seine, on national public radio, in the new republic where he's the
10:04 am
legal affairs editor and new yorker, where he's been staff writer. chicago tribune has named him one of the ten best journalists. and los angeles times widely re one of the ten best journalists. writer. chicago tribune has named him one of the ten best journalists. and los angeles times widely re one of the ten best journalists. and los angeles times widely red and legal commentator. let's please welcome professor jeffrey rosen. thank you. [ applause ] >> thank you so much. ladies and gentlemen, fellow teachers, it is such an honor to address you today. teaching civics is the most urgently important task in american democracy. james madison said, a popular government without popular information with a means of acquiring it is a prelude to tragedy and farce. and your effort to teach young americans and government and fundamental principles will determine the future of the republic.
10:05 am
polls show that young people are more likely to support authoritarian alternatives to democracy than the older generation. 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 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 madison-ian principles of reason
10:06 am
rather than passion when a time when they seen under siege. i want to begin with a quote from federalist 55 which sums up 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. 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 by reason. they had in mind the cautionary tail of shea's rebellion, and debtors that stood up because they refused to pay their creditors. and this fear that mobs, misled
10:07 am
by silver tongue demagogues could end up threatening fundamental 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. 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 will could lead to demagogues and mobs. the 18th century equivalent of today's twitter polls and brexit votes. and, therefore, they want ed thoughtful representatives of the people to channel and filter
10:08 am
popular passions so that reason could prevail. second, they were keen on the benefits of an extended republic. we know from classical theory that the classical sources believe that democracy was impossible in large republics because face-to-face deliberation would create assemblies that would be too large and would degenerate into chaos. but the framers, first of all, by devising the representative system, believed that they had made it possible for larger territories to rule themselves. and second, and most importantly, madison believed that the large size of the american republic meant that factions couldn't easily organize. remember the definition of faction in federalist 10, any group, whether a majority or a minority, animated by passion,
10:09 am
rather than by reason, and by self-interest rather than the public good. so the idea was that in a really large public it would be hard for these self-interest groups to organize and discover each other for these nefarious purposes. and by the time they found each other than passion would dissipate. throughout the federalist papers we see this notion of hasty passion that over time can cool. and the large size of the republic was supposed to guarantee that cool reason rather than hot passion could prevail. it's centrally important that the framers were not aristocratic. they were not in favor of oligarchy, they accepted, especially john adams did, the classic trilogy that there were three forms of a republic,
10:10 am
aristocracy, monarchy, democracy, all of which could degenerate into oligarchy or tierney. they believe in majority rule, but they went it to lead slowly overtime and the whole system is to slow it down. that's the big idea. friends, when we step back as we must do this morning, and reflect on modern america, we see how many of the cooling mechanisms that the framers put into place have been undermined by changes in institutional structure, in politics, and most importantly in technology. and i want to review with you those changes, and then think about ways that we might resurrect the framers' cooling mechanics in the age of 24/7 news and social media and the very kind of hasty decision making that the framers feared.
10:11 am
let's first think together about the cooling mechanics themselves and examine the ways they've been undermined. and because this mic is going in and out, i'm going to stand here for a bit and see if this one works better. >> that one is wired. >> that one is wired. okay. all right. i'll go in and out, but my passion will be cooled by the fading mic and eventually get bursts of it and it will dissipate over time. [ laughter ] >> so what are the cooling mechanisms that the framers put in place? centrally concerned with the design of congress. madison thinks that congress is going to be a vortex that constantly demands more power for itself. and they believe that legislative tyranny is the main source of tyranny. so the first important principle, and we have to teach all of our students this, and we have to teach all americans this, is separation of powers and checks and balances.
10:12 am
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, that under appreciated genius from pennsylvania who wrote the first draft of the constitution, and the first wilson draft is at the national constitution center in philadelphia. and i want you to come and bring your students. it is so exciting to see the very first words that wilson put on paper in july of 1787. the first words were, resolved that the government of the united states shall consist of a legislative, executive and judiciary branch. no we the people but it was a separation of powers. and the idea that no one branch can speak for we the people, but our power has to be dissipated among them to prevent tyranny and to slow down deliberation. that's the central idea. that structural principle that we have to teach our students.
10:13 am
the second wilson draft which was produced a little later in july contains the words, we the people of the states of new hampshire, massachusetts, and rhode island, 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 not the king himself, and not the individual states. so that central notion of popular sovereignty was wilson's unique contribution. that's signalled 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 governor morris and a committee of style trying to ensure the fact that since they didn't know who would ratify the final draft would avoid that question.
10:14 am
but others insist that the choice was deliberate and we the people of the united states was meant to signal the indivisible sovereignty of we the people as a whole. so that's the first central idea, that we the people govern and by considered thoughtful, deliberate, lasting majority will, we can rule. and yet our representatives are not allowed to speak in our name. no won bill passed by congress or the state ledge slay -- legislatures or no one executive order issued by the president can be confused with the will of we the people. that will is embodied in the constitution itself. and that's why judicial review is justified. federalist 78 beautifully encapsulates the idea of judicial review. hamilton says that when there is a conflict between the will of the people represented by the constitution and the will of our representatives embodied in ordinary laws, then judges should prefer the master to the servant, the principle to the agent.
10:15 am
that's the whole rebuke to the idea that there is a counter majority tearian difficulty striking down on constitutional laws, because it's the constitution not any of the three branchs that embodies the will of we the people. so that's structural. then we dig into each of the branches and see how carefully the framers disbursed the power and blended functions in order to slow down deliberation and ensure the slow triumph of reason. in congress, there's the obvious separation between the senate and the house. and 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 centrally all of the structures were set up to ensure the triumph of reason. then, there was a lot of concern about the size of the house. so another amazing document that
10:16 am
we have at the national constitution center in philadelphia and dear c-span friends, if you haven't gotten the message yet, come to philadelphia to see these great documents. of the original -- there were 12 surviving copies of the bill of rights. george washington sent out 13 copies to the states and one to the federal government. 12 copies survived. one is at the national constitutional center in philadelphia. the very first amendment proposed by congress isn't the one involving freedom of speech. it says resolve there shall be one representative in congress for every 30,000 inhabitants. if that amendment had passed there would be 6,000 representatives in congress today. which is about the same size interestingly of the athenian assembly that the founders believed degenerated into demagogues and is 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
10:17 am
be responsive to their constituents but not so many that the size of the assembly would become unwieldy and degenerate into demagogues. and here their cautionary tale is cleon in athens, who caused them to invade sparta and causing the war. subsequent scholarship has suggested that aristotle and plato and later anti-democrats may have done them injustice an athenian democracy was more effective in producing economic stability and disbursing d athenian democracy was more effective in producing economic stability and disbursing knowledge among 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 bull, which is the 500
10:18 am
member senate, and ensured may not do it justice to athens to reduce it to demagogues. but this was the framers' vision, as it was the vision of florentine critics of democracy, as well as those in britain and france who were trying to defend those governments against direct accesses. so the original first amendment says one representative in congress for every 30,000 inhabitants. it fails as does the original second amendment which says congress can't raise its salary without an intervening election, that of course became the 27th amendment. our first amendment was the framers' thursday. and it came first not because it was considered most important, but because it was just the first amendment that happened to pass. it doesn't mean that the framers weren't centrally concerned about rights of speech. they believed that our rights of speech are natural rights that come from god or nature and not government. and in the state of nature we are born with certain rights,
10:19 am
pre-eminently, the right of conscious. remember the right of complete freedom of conscious is the preeminent natural right because of the new hampshire constitution says in its preamble, the opinions of men, being the product of reason, rather than force or violence, cannot be coerced. once again this faith and reason, because my religious belief or lack of beliefs and my opinions must be the product of reason, i can't alienate them or surrender them to government when i move to the state of civil society. that's why they are unalienable. the other one is the right to alter and abolish government whenever it threatens the retained unalienable rights that we've refused to surrender. that's why the second sentence of the declaration contains the entire theory of government and we have to teach these to students. we hold it to be self-evident. that all men are created equal.
10:20 am
they are endowed by their creator, unalien able rights. and whenever government becomes destructive it is the right of people to abolish it. so the right of revolution is unalienable right which is necessary to procur the greater security and safety of the unalienable rights that we've retained. and that right is embodied in the amendment process of article 5, which you can see from wilson drafts, wilson actually specified until the last days of the convention when they filled in the details about how many states were necessary for ratification. but, 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 amendment. the framers decided 9 out of 13 states is necessary. that broke the existing rules but it was justified because of
10:21 am
the right of revolution or amendment is an unalienable right and therefore a thoughtful considered judgment of a majority of the people of the united states must always be allowed to be enacted into law. that is why some scholars, again, this is my law school teacher, have claimed that when majorities express our will in a thoughtful, deliberate way, which prevails over time, then amendments outside of article 5 might be permissible and we the people might amend the constitution in ways that are technically illegal under the existing rules as happened during the convention and has happened during the civil war. the post civil war amendments to the constitution were formerly illegal. they were ratified at gun point as a condition for the rebel states to be readmitted to the union. and that too was justified under the unalienable right of the people to alter and abolish government.
10:22 am
all right. we talked a little bit about some of the cooling mechanisms of congress. let's turn to the presidency. the obvious cooling mechanism that the framers put in place there was 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 and choose those of the highest character and intellect, most governed by reason rather than passion. we know that that idealistic view of the electoral college proved losery as early as 1800. essentially, the electoral college never served that kind of aristocratic -- intellect which youly, aristocratic function. and as the rise of political parties in 1800, soon became a rubber stamp for the choice of the parties themselves, a
10:23 am
transformation that was reflected in the 12th amendment to the constitution, which as assumes the exist ens of political parties. now the growth of political parties was one of the major en political parties. now the growth of political parties was one of the major explosions of passion that the framers could not and did not anticipate. hamilton and madison thought of parties as a form of faction, and they imagined instead that representatives of the people and representatives in the electoral college would deliberate free of partisan passion. as it happens, though, the parties developed in a way that proved to be a substitute for some of the cools mechanisms that hadn't materialized as planned. as historians have 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 turns. the republican and democratic party formed by madison and jefferson was organized around
10:24 am
the principle of popular sovereignty and states' rights and individual liberty and limitations on federal power. the federalist party was originally the defender of aristocratic privilege and natural power to regulate the economy and therefore the clash between hamilton on the one hand and madison and jefferson on the other has defined american constitutional history. in 1856, when the republican platform was drawn by taft, the father of william howard taft, and others in philadelphia, it was based on the principle of an individual union, channelling james wilson and on opposition to the kansas/nebraska act. so these great parties were, for most of american history, ways of aggregating people from different regions, eastern manufacturers and western farmers in the case of the
10:25 am
republicans, and southerners and small business people in the case of the democrats. rather than being mobilized around personalities or around ied ideologies. that's why the parties for much of american history were able to choose moderate candidates who favored the constitutional platforms of the parties rather than degenerating into the factions that the founders feared. but we're 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. so my new hero is william howard taft. i've written a short biography on him arguing he is our most judicial president and presidential chief justice. taft yearned to be chief.
10:26 am
he 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. roosevelt insisted the president could do anything that the constitution didn't forbid, unlike taft said the president could only do what the constitution explicitly allowed. he served on the sixth circuit and pined to be on the supreme court, a dream that he achieved and became what arguably one of our greatest chiefs since john marshall. after taft and roosevelt split, taft was moved to run for re-election with the greatest reluctance, in order to defend the constitution against roosevelt's new populist
10:27 am
encursions. he adopted the judicial recall of unpopular decisions. roosevelt attacked individual judges by name and demanded that the people overturn their decisions. in the constitution center in philadelphia, in our temple to the constitution overlooking independence hall, there is a quoation in the lobby saying the people themselves are the maker of the constitution. it's an inspiring quote until you read the next seasons which says, when they agree with judicial decisions, they should be able to overturn them by popular vote. it's an appalling expression of populist enthusiasm and i call to you, as i've -- and to our dear c-span viewers to send me alternatives to this excursion, this excess of populism so we can replace it from a quotation with madison or other framers expressing a devotion to reason rather than passion.
10:28 am
so 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 that the framers did not conceive of the president as a direct expression of the people's passion who would channel their will. the national constitutional center, as you know is nonpartisan in every way. we're required by our congressional charter to increase awareness and understanding of the constitution on nonpartisan basis and i can say with some complete nonpartisan conference, that the idea of tweeting presidents would have apalled the framers. >> that is exactly right. >> it says so in federalist ten. you're tweeting, i'm sure, but you would stop our president from tweeting because -- and because it's what the federalist didn't want. federalist ten says -- taking notes is fine. madison would have approved. >> i'll tweet it to the
10:29 am
president. >> you can tweet to him, but he's not supposed to listen to you. >> no. >> because madison is considering should the people be able to issue direct instructions to their representatives and their presidents and he says, no, because you want to set up barriers and cooling mechanisms. and the reason this is nonpartisan, our first tweeting president was president obama. he was the first president to set up a twitter account and the framers and madison didn't think that that kind of direct instruction by the people to their representatives or direct communication by the president and other representatives to the people was a good idea because they want slow reason to prevail. when roosevelt and wilson are insisting that the president can channel poplar passion, taft is appalled and he runs for president to defend the constitution. he losing one of the greatest defeats in political history but he goes on with great distinction to serve as chief justice. there's another important change in 1912 that transforms congress and i'm getting this from
10:30 am
william connelly's wonderful book on madison. it was in 1912 that wilson insists that the congressional committee system, which requires the parties to slowly consider bills that go through regular order was channelled -- was challenged, and wilson, in addition to insisting that the president is a direct tribune of the people's will, also says that the president in congress, like the king in parliament, should be able to do whatever he likes over the objections of the minority and without compromising with the minority. and he sees the president in congress as a kind of parliamentary figure and his two books on congress on the constitution endorsed this sort of parliamentary vision. george will, the great constitutionalist, came to the constitution center recently to talk about madison, and said that all of american history can be seen as a conflict between two princetonians, wilson and
10:31 am
woodrow. and views wilson's populist beliefs as the beginning of a path that led us down to 1994 and the gingrich revolution and speaker gingrich's insistence too that the party that controlled congress should be able to reek its will without seeking input from the minority. precisely the opposite of the slow deliberation and multi-interest compromise that the framers thought was central. so we've talked about the congress and we've talked about the presidency. and remember, what i'm trying to do here is distill the essential lessons we have to teach our students and to all americans. 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 and is supposed to be chosen by a wise electoral college so that he or she can
10:32 am
exercise independent judgment and now we come to the judiciary. the most dangerous -- sorry, the least dangerous branch as hamilton called it and the most dangerous branch as alexander bickel called it because in his view the judiciary had been transformed beyond the framer's view. madison saw the bill of rights as an inspiration to the people that would promote self-restraint and reason. remember, he had initially opposed the 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 would allow it to assume no power to abridge speech because it had granted no such power. and dangerous because madison assumed that because our rights were natural and came from god or nature and not government, they couldn't be reduced to a single limited list and future citizens might wrongly assume that if a right was not written
10:33 am
down, it wasn't protected. but in the face of opposition from anti-federalists, george mason, edward 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 constitutions and bill of rights in the revolutionary period. here i have to plug -- i can't believe that i've waited this long -- the extraordinary interactive constitution that the national constitution center has put online and i want all of you to bring to your students and i want all americans to download and learn from. using this incredible tool, you can click on any one of the amendments and see it in the revolutionary era. you can click on the second amendment, for example, and see that two states, virginia and pennsylvania, said the people have a right to bear arms for the defense of themselves or for purposes of killing game. whereas the other states, led by
10:34 am
george mason's virginia declaration of 1776, always the best place to begin because madison and jefferson have mason's 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 tierney. it's a nonpartisan way of seeing the bill of rights and you can see the rights evolve in realtime. the other extraordinary thing that you can do on the interactive constitution is to have the top liberal and conservative scholars in america nominated by the federalist society and the american constitution society exploring areas of agreement and disagreement. so, once again, click on the controversial second second amendment and find van winkler, the leading scholars with 1,000 words about what they agree the second amendment means. what a remarkable thing to be able to bring to our students. it's like a unanimous supreme court majority opinion, every word in that statement is agreed
10:35 am
to by both sides and then you can look at their separate statements and see areas of disagreement. to do this for all 80 clauses of the constitution is the most extraordinary -- this incredible free tool has gotten 17 million hits since it launched two years ago. and i'm thrilled that just last week in aspen, colorado, the head of the college board announced that all ap students will be required to take a two-week course that the constitution center and the college board are creating around the first amendment and the interactive constitution and we're hoping to bring the entire interactive constitution with the college board, not only into ap classes, but to all classrooms across america. i've given this plug. you hope you forgive it, because it's in the madisonian spirit of promoting cool, slow reason over time. we can't have informed opinions about the bill of rights or supreme court opinions without
10:36 am
listening respectfully to the arguments on both sides, and recognizing that there are good arguments on all sides of most contested constitutional questions. it's made for people with fundamentally different point of views and we need to teach yourself -- ourselves and our students to read the majority, read the dissent, and consider thoughtfully and slowly with an open mind to separate our constitutional and our political views, asking not what the government should do, but what the constitution allows the government to do and then to be open to the possibility of changing our minds. that is the civic exercise, the constitutional exercise that we're trying to promote at the constitution center and it's the essence of madisonian deliberation. and this brings us back to the judiciary. because this was what madison hoped citizens would do, the reason to adopt a bill of rights is that it will convince citizens to think twice before violating rights, he said. they won't infringe speech or vote to oppress minorities once
10:37 am
they're reminded that freedom of speech and freedom of fund manual 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. congress -- the court struck down only two federal laws between marbury versus madison and dred scott and the notion of a moderate judiciary enforcing rights in the face of populist threats is essentially 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. and how heartening it 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
10:38 am
ohio congressman who drafted the 14th amendment, i see some nods in the audience, bingham hoped that 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 united states citizenship which included most of the guarantees of the bill of rights. his open was thwarted by the supreme court in the slaughterhouse cases soon after the 14th amendment was passed and it took most of the 20th century, beginning in the 1920s when the first amendment was applied against the states to the 1960s, when most of the other parts of the bill of rights were applied to vindicate bingham's hope. and you would like to have a vigorous debate with you and with 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 mostly expect judicial enforcement of rights, but that may substitute for some of the atrophying of the other cooling
10:39 am
mechanisms that madison put in place. the idea of judicial engagement or having judges strike down federal and state laws 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 deliberation so that passion and hasty decisions need to be checked. that leads to the final branch that we have to talk about and that is the media. the fourth branch or the shaper of public opinion. it is fascinating that madison in his notes for the national gazette in 1791 is centrally concerned about new media technologies, namely the broadside press, that he believes will slowly dissipate reason across the land. he's moved by the fact that the federal u.s. papers themselves are distributed in the
10:40 am
newspapers. again we have at the constitution center, the earliest copies of the federalist papers in the new york papers published soon after the numbers were written. and madison thinks that a class of elite journalists, who he calls the literati will disseminate reason through these broadside newspapers. i'm seeing some chuckles in the audience. but that was the hope, that, you know, the federalist papers are not beach reading. you have to dig into them. but they were published in newspaper and the idea is that the citizens would buy newspaper, like the national gazette, which are party presses these are partisan newspapers. but they publish thoughtful essays and they would slowly be informed by the leading citizens and by journalists and they would suppress their passions and would allow cool reason to prevail. madison thought these new media technologies would maintain the benefits of the extended
10:41 am
republic in making it impossible for factions to organize quickly, but also counteract the detriments of the extended republic by allowing information and reason to disseminate against the land. you can't have a popular government without popular information and it was necessary for citizens to educate themselves about complicated, factual arguments and about the principles of government in order to make informed decisions that made self-government possible. the media is central to madison's conception and his defense of free speech in the virginia resolutions opposing adams' infamous sedition act remains one of the greatest expressions of faith in free speech in american history, both madison and jefferson in opposing the sedition acts which allow the republican president to put his critics in jail, but not to jail the critics of the republic -- sorry the federalist president can imprison his
10:42 am
critics but the republican vice president can be criticized and jefferson and madison said because our rights of speech and opinion are natural rights that come from god or nature, not government, it is central to the triumph of reason in a democracy, therefore, the only kind of threat that could justify the suppression of speech is the threat of imminent violence. and the great jeffersonian luis brandis channels madison and jefferson in the greatest free speech opinion of all time, and in particular the 20th century. whitney versus california. brandeis talks about, once again, the important of citizens cultivating their faculties of reason. this theme emerges in whitney and brandeis says those who made our revolution, believed that the final end of the state was to make men free to develop their faculties. and that in its government, the deliberative forces should prevail over the arbitrarily.
10:43 am
they valued liberty both 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 translated by alfred zimmerman and represents brandeis' faith. they believe the freedom to say what you think are helpful to the spread of political truth. without free speech and assembly, discussion would be futile. with them, discussion affords ordinarily adequate protection against the dissemination of in nonshs -- knock somehow -- in those extraordinary words are contained this -- all of the themes we're talking about, the faith in reason and not only the opportunity, but the duty of
10:44 am
citizens to cultivate their faculties of reason rather than passion. channeling jefferson's belief that we have certain faculties and reason has to be cultivated through rigorous self-education and as long as there's time enough to deliberate, that -- the theme of time again, the best response to evil speech is good speech and speech can only be banned if it's intended to and likely to cause imminent violence because then there's no time to deliberate. go kill jeff now, the lecture has been going on too long. that could be suppressed. it should be suppressed, absolutely. but short of that, tweeting jeff's boring or the lecture is going on too long, in europe, if you tweeted that, i could sue you under this new right that the european union has recognized called the right to be forgotten on the internet. and a european judge would have to decide if i'm a public figure, and if your tweet is in the public interest, and if they guess wrong and google
10:45 am
refuses to remove your tweet from its index, they would be liable for up to 2% of their annually income which was $60 billion last year. this concentrates -- google has removed 43% of the takedown requests its received in europe. that could never happen in america because of the faith that offenses to dignity are not sufficient to suppress speech because of our overwhelming faith in the power of reason deliberation. we think as long as there's time enough to deliberate, then speech should prevail. friends, the great challenge to this madisonian faith today is the element of time. is there time enough to deliberate now in this frantic world of tweets and referendum, brexit votes and twitter polls and instagram? when people are making decisions with snap judgments and the passion that the framers feared, is facebook and twitter consistent with madisonian democracy?
10:46 am
this is a central, urgent question that we must discuss together as citizens and 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 faith. madison thinks, don't worry about factions mobilizing quickly. america is so big, they'll never be able to find each other. we're chuckling. now in a minute, in a chat room, or on an instagram post or on reddit, the most mobilized and polarized factions can find each other from around the globe and coalesce into mobs and punish any ideological dissident from their extreme positions forcing our representatives to dig in their heels and take positions like armies in polarized camps. we are living in an america defined by polarization.
10:47 am
some have called it the big sort, or referred to filter bubbles and echo chambers. this is a time, when according to statistics, america is more polarized than at any time since the civil war. that's how extreme the divisions are. in 1960, the most liberal republican and the most conservative democratic overlapped by 50% in congress. today there's no overlap between those parties. and where people choose to live and will only share articles that confirm their pre-existing passions, we are completely walling 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
10:48 am
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 as teachers and all citizens have to converge around recognizing that this is not a partisan problem. it is a constitutional problem of the highest magnitude. i do not have the solutions for you this morning. i want to begin a conversation with you in a moment. but i should say that the constitution center has started an exciting initiative called a madisonian constitution for all. what would -- asking the topic we're talking about today, what would madison think about our current congress, presidency, courts and media and how can we resurrect the triumph of reason rather than passion today? it's co-chaired by the heads of the federalist society and the american constitution society and by senators mike lee and chris coons in the senate and
10:49 am
zoe loffrin and we're going to launch it in the fall with a special issue with the atlantic magazine that will ask some of these questions and we're going to try to spend the next few years trying to identify solutions to the problems i just set out. just to put one or two on the table 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 a project to explore the problem of fake news. they found that people are more likely to share fake news than real news because it appeals to passion rather than reason. if you see something that is really angry and emotional ly galvanizing, people will share it quickly without reading it. that's why researchers in britain were able to predict the brexit vote before they it occurred. they saw the leave messages
10:50 am
appealed to angry passions rather than reason. the main messages were complicated economic arguments. and based on the fact that the leave messages were shared more messages were shared more widely, they predicted the vote before it occurred. what is to be done? facebook could have chose, put higher up on its algorithm only posts that people actually read. imagine that? inspiring from a madisonian perspective, although slightly creepy from a privacy perspective, that facebook knows how long you're spending on every post you're reading. they could choose to put higher up stuff that people choose to read. that could be a cooling mechanism in the madisonian spirit. they could also, if they wanted to be more interventionists, put higher up on people's feeds
10:51 am
arguments from sources they might be inclined to disagree with. the scholar in his book "" suggested putting links at the bottom of web pages. it seemed technologically quaint at the time because faced with the choice between a link to something they disagreed with and the opportunity to watch cat videos, people may just go to the cat videos. but now the facebook algorithm controls what we see on our news feeds and they could if they chose to be more interventionist ensure a more robust diversity of views. this would raise 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 really want the algorithm to be madisonian rather than based on consumer preferences. and since the constitution says congress shall make no law, it doesn't say facebook shall make no law. facebook is not required to behave in a madisonian way and is responsible to its shareholders.
10:52 am
and therefore there is a legitimate and should be a robust debate about whether we want the platforms or the government or voluntary self-restraint of the citizens to ensure that we develop our faculties of reason by exposing ourselves to different point of view, but no one of any political persuasion can deny the urgent necessity for us to examine the task together. i think it is time for a question and answer and for -- i want to learn from you about these important questions. let us together try to begin to identify other madisonian solutions to this urgently madisonian problem. but the task could not be more necessary. it is the highest concern for the future of democracy that we fellow teachers educate our students to cultivate their
10:53 am
faculties of reason. that we remember with brandeis the importance of leisure. brandeis was excited to learn from the -- his favorite book "the greek commonwealth" the greek word for leisure was unemployment. he said what a happy land when unemployment could be used for leisure. but brandeis continued -- leisure doesn't mean less work, it means more work, but more focused work on cultivating reason. and on reading -- collecting facts and on reading 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. it is central. there's nothing more important than teaching students about the essence of american democracy because democracy will falter into the mob in precisely the ways the founders feared unless
10:54 am
you continue on your urgently important task and i'll close with two inspiring phrases that brandeis, he was called isaiah by many, including roosevelt, he had a tendency to prophesy and pace up and down and insist on the tradition of the greeks, but he was also called isaiah because of that beautiful phrase from the prophet, come, let us reason together. and that beautiful phrase encapsulates brandeis' and the framers, madisonian hope and we can end with a final words of brandeis, if we would governor by the light of reason, we must let our minds be bold. thank you so much. [ applause ]
10:55 am
>> tell him where you're from so he has an idea where you're from. tom, let's start with you. >> tom here from south carolina. you talked about madsonian reason. but how would you explain that much of the revolution was in fact a product of passion, pain, the sons of liberty, tea parties, and even much of the declaration was designed to appeal to people's passion. was the revolution a product of passion, not reason, that would be my question? >> that is a wonderful question. and just to repeat it for -- just 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
10:56 am
madison distinguishing too strongly between passion and reason? and i think the answer to your question is yes. it's interesting that pain was a much more open fan of athenian direct democracy than madison and hamilton were. and the greeks did not draw as firm a distinction between passion and reason as the enlightenment framers did. they believed that there could be reason, passion and passion reason and indeed they had civic ceremonies designed to cultivate the productive passions rather than the unproductive ones. and some -- and the ten tribes of greece during the height of the fifth century athens would file in and set aside their differences and it wasn't -- ten representatives -- there were 500 people.
10:57 am
there were 50 tribes. my math is bad. there were a lot of representatives filing into the area and some say it was once -- once the ceremonies broke down and the tribes began fighting with each other through tribalistic polarization, the whole thing broke down. and they suggest that the firm distinction between passion and reason is too overstated. it suggests that the enlightenment giants distinguished too strongly between passion and reason and both are necessary for informed decision-making. so i think pain and the unchanneled direct democracy is exactly the right model. and as we think about
10:58 am
resurrecting reason today, we can't neglect both modern neuroscience and ancient greek learning over the importance of channelling passions so it can motivate people to defend liberty and ensure the triumph and democracy without degenerating into mobs. thank you for that very helpful thought. yes, sir, in the back. >> you were talking about technology and the speed at which things happen, how that's dampens down the cooling off effect. increasingly being one of the old guys in the room, everything is going so much faster today. we ask students, they're buying a car from a virtual gumball machine. now we're talking about virtual elections. in a practical sense, have you thought about how we would approach slowing this down without looking like the old gray-headed -- >> this is a central crucial question. you say things have moved so
10:59 am
fast, we're used to immediate results and to buying and voting and thinking and expressing ourselves online. how do we slow things down without looking like meaningless ludites? they're radicals. the idea of having slow thoughtful deliberation by the majority is a radical idea in a world where kings and strongmen and thugs prevail. so there's nothing luddite about the enterprise, and there's also nothing luddite for embracing technology for the remarkable way it can fulfill the framers' hopes, the same technology that allows us to buy gumballs or watch cat videos allows us within moments to download federalist papers or the most inspiring books throughout history, which i did when i had
11:00 am
the incredible experience of going to athens itself just two weeks ago, or to listen to the most elevating music ever create in the world at any moment. but it requires self-discipline. it's up to us to use these extraordinary technologies for the high purposes and to promote reason rather than to a muse ourselves to death. part of it is not rejecting these astonishing technologies. how excited brandeis or madison must have been with the ability within moments to download all
11:01 am
of history. madison was sent by jefferson all these books, so we need to train ourselves to use it properly. to slow things down or just put speed bumps or brakes before voting is a constitutional question. if we can persuade our fellow citizens and students that instant voting is not good. changing the constitution and fundamentally withdrawing from the european union based on a one-off vote is not a madisonian idea. there's -- it is 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. unlike jefferson who wanted a convention every ten years, he thought it was a miracle that
11:02 am
given the fact that it was practical politicians who came together in philadelphia, they produced the genius document that he did, and he feared a second convention would create mobs because it would be the same legislators who were wreaking havoc in the united states. i don't have the answer on how to slow down the technologies in order to promote reason rather than passion. although the facebook algorithm example is one small tweak. but it's important, as you suggest, not to resist these technologies and to say that people should live in an age of horse and buggies and quill pens. we have to enthusiastically 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 about ways of presering the structures that prevent us from using the technologies to make quick decisions that can't be reversed. thank you for that.
11:03 am
no tweeting but notes. >> i'm from south carolina also. you used the term fake news. and i thought fake news has always been with us since the gazette, the broadsides, william randolph hearts. is there a danger in giving it a new term in that people will dismiss the other side by using the term "fake news"? >> yes, there is a danger. i'm so glad you raised that question. jefferson rejects any attempts to distinguish between facts and opinion. he says because the natural rights of conscience are individual and each individual must decide for him or herself what is true and what is false, to empower a judge or a government official or a 27-year-old lawyer at facebook to decide what is true and what
11:04 am
is false would be anathema to our unalienable rights of conscience. so i reject proposals by some that facebook should decide what is true and what is false and label the false stuff. that is up to citizens to decide for themselves. this is not rejecting the enlightenment faith in facts. 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, you know, facebook can't identify accounts that are created by bots intentionally to create falsehood and downplay them and something like that. if it's clear that stuff -- that intentional falsehoods are being deliberately distributed, that may be a role for technology
11:05 am
rather than law. american law allows the suppression of falsehoods only when they cause harm to reputation and you could imagine falsehoods that don't cause actionable harm because they're essentially political speech but nevertheless could be downgraded because they're false. but your -- i thank you so much for reminding us that -- i may think that something is fake and i may be convinced that the facts suggest "a" and the news says "b," but that's my -- that's up to me to try to persuade my fellow citizens to embrace and ultimately each of us have a responsibility on our own to cultivate our faculties of reason enough to make informed decisions about that. that's why the job of you teachers in this room is important. news literacy is helpful. teaching your students to distinguish between reliable and unreliable news sources is helpful. teaching them to be thoughtful
11:06 am
madsonian consumers of news so they can seek out positions of degree and debate them is helpful. listening to news sources that bring together opposite points of view. since i'm plugging away the constitution center's educational materials, i have the incredible privilege of every week hosting a podcast called "we the people" where i call out the top liberal and conservative scholar in the country and debate the constitutional issue of the week. and i learn so much from these amazing podcasts and so do our listeners, i hope. i hope. and i can't have an informed opinion about these issues until i've heard both sides and i want you to encourage your students to do that too. let us not have the government or the president or facebook deciding for us what is true and what is false. >> thank you. >> thank you so much. >> brian from wisconsin. going back to the idea that was introduced here earlier, what
11:07 am
are your thoughts in regards to a second constitutional convention that are called 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? it's not a hypothetical or fanciful suggestion. 27 states have called for a convention of the states that would propose a balanced budget amendment to the constitution. you need 34. seven more would produce the convention. and, remember, there are two ways to propose an amendment, either two-thirds of both houses of congress can propose the amendment or two-thirds of the states can call for a -- can call on congress to summon a convention of the states to propose an amendment and that has to be ratified by three-quarters of the state legislature or special conventions called in three-quarters of the states. it's not completely beyond the realm of possibility that seven more states could call for balanced budget amendment and we
11:08 am
would have a convention of the states. what are my thoughts? we've debated this question, of course, at the constitution center and i think -- i'm going to give you the arguments on both sides and i'll tell you what i think. the argument in favor of it is that we the people rule and if we feel strongly enough about a balanced budget amendment to want to enshrine it in the constitution and congress is refusing to enact this amendment because they for their own political reasons think that it would be not in their interest to balance the budget, then why shouldn't the people call for a convention? or think of other amendments that might not be able to be proposed by convention. like term limits, and some argue that term limits are a good madisonian cooling mechanism that prevent representatives
11:09 am
from becoming too entrenched and polarized. people would be less likely to pander to their base if they were term limited and might be more madisonian. and the supreme court said that federal term limits are unconstitutional. you would need a constitutional amendment to have them but congress is not going to propose it because they don't want term limits so why not have a convention with the states. the argument against it is the danger of a runaway convention. you could call a convention just for a balanced budget amendment for a term limit amendment, but we know from the founding and from the civil war that a convention once called is unconstrained by law and can propose whatever it likes. and in this incredibly polarized time the argument goes the people who are delegates to the convention would be the same polarized state legislators or congressional representatives who are already dividing america so dramatically now, so a polarized convention might well repeal the first amendment or propose things that appeal to one side but not the other. now the counter to that fear is, fine, they can propose what they
11:10 am
like. but first of all it has to be a majority that would propose anything in order to get reported out of the convention and more significantly that the high ratification requirement, three-quarters of state legislatures is so hard to meet that if people tried to repeal the first amendment or do other mischief, it would never pass the ratifying conventions. i'll tell you what i think in a second. based on what i've said, who believes with jefferson that there should be frequent constitutional conventions and we should have one now? and who believes with madison that it's very dangerous to have constitutional conventions and we should not have one now? this is a madisonian group. not everyone was voting. you want to hear more arguments on both sides. i'm -- i think i'm with madison here.
11:11 am
given polarization, i think it unlikely that you get a majority to call the convention to begin with and -- i'm not convinced that the convention itself would overcome polarization unless dlub -- deliberation were structured in a more thoughtful way. it's been shown that through polls 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. perhaps if this convention were structured in a way that wasn't allowed to vote -- my fear is that the convention would convene and immediately vote on twitter. if it was a multi-day convention and 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 and i'm with
11:12 am
madison. >> my name is nicole larson and i'm from indiana. when it comes to brandeis, when he had the opportunity to be a member of woodrow wilson's cabinet and then turned down that opportunity or turned it away and then was nominated for the supreme court and accepted that, i kind of asked this question the other day to chief justice roberts, but in your opinion as well, when you're in that level of magnanimity for the powers of the government, when you're in that position and you are no longer designated to identify by your political party that you support or that you were a member of, tell us what you think your opinions are throughout history of being on the supreme court, the motives of your position, but then the power that you have with the people as well to not be identified by a political party, but more so in your beliefs and what you are in favor of, whether you agree or disagree
11:13 am
with the situation of the case at the time. >> great question. of course, chief justice roberts' answer is much more relevant than mine. i'm tempted to ask you what it was, but i'll cheblg -- check it out. i reject the idea that the court is a group of politicians in robes. i agree with chief justice roberts who has said very powerfully that it's important for the court to stands for legitimacy that transcends politics, and it's dangerous for citizens to perceive the court as five republicans or four democrats or what have you. and i think over the course of time while there is a strong correlation between the considered will of the people and the courts' judgment, in other words, the court has tended to reflect thoughtful, considered popular opinion over time and on the rare occasions when it's thwarted it, during the new deal and the civil war,
11:14 am
it's provoked backlashes that led to traditional retreats. this is not the court reading the election returns on a daily basis. it's reflecting the thoughtful, current of reasoned popular opinion. that's exactly what madison thought that it should do and the constitution is supposed to embody. in that sense, the court has been appropriately but cautiously responsive -- responding to what justice ginsberg has called nudges rather than -- she talks about measured motions, basically, the court is sometimes moved gently ahead or pushed gently behind but not dramatically thwarted popular reason. but the other thing i want to say and i really want to teach at the constitution center and hope all of you will teach as well, is to distinguish between a judge's political views and constitutional views. it's important to teach citizens about the different methodology of constitutional interpretation
11:15 am
so they understand that there are different kinds of liberals and conservatives. chief justice roberts is a institutionalist and he said -- i had the honor of interviewing him right after he got onto the court. he said, i hope when people go back to my opinions, they'll see many of them reflect a lack of constitutional legitimacy. and look at the opinions at the case involving the baker, the gerrymandering case, where the justices avoid polarizing broad constitutional decisions and converged 7-2 or 8-1 on technical grounds. this is the chief's vision and i think he has said he's modeling himself after chief justice marshall and i think it's an inspiring vision that is good for the court's legitimacy. but not all conservatives share that vision. justice thomas is a originalist as justice scalia was.
11:16 am
and justice gorsuch is an originalist as well. and they think that the constitution should be interpreted in light of its text and original meaning regardless of whether that's good for the court's legitimacy or will lead citizens to perceive things in a partisan way and they will overturn decisions they think are inconsistent with origin understanding even if the heavens fall, as the expression goes. and then justice suitor, the former justice suitor, was a traditionalist that thought precedent was extremely important. on the liberal side we have incrementalists like justice ginsburg who criticized roe v. wade for moving too broadly and deciding a hotly contested question in the most sweeping
11:17 am
terms rather than merely deciding the case at hand and allowing the political process to take its place with pragmatist like justices kagan and breyer. they believe that the function of the court is to function as a court and reach practical solutions that both sides can converge around in a madison sense. and then justice sotomayor who is a inspiring crusader for her vision of the correct constitution in the tradition of justice brennen regardless of its practical consequences. so here are the -- i really want to work with you to teach these methodologies. first, text, and original understanding, second, history and tradition, third, precedent, four, pragmatism. fourth natural law. justice kennedy believed we have certain rights that come from god or nature and not from government and should be enforced by the government -- by the court regardless of whether they're enumerated in the text of the constitution.
11:18 am
both the right to privacy and autonomy which justice kennedy summed up in saying that the heart of liberty is the right to define one's own conception of meaning of the universe and the mystery of human life. justice scalia dismissed that. but it's a powerful and strong expression of the natural rights of autonomy and dignity that the court has affirmed now repeatedly in roe and casey and the marriage equality decisions. and that represents a naturally rights-based philosophy. if we can teach our students not to succumb to the easy mode of reducing every decision to 5-4 politics, encourage them to read the majority decision and read the dissent, and identify the judicial philosophy that is animating the different justices so they can understand why in the recent case that was 8-1 with justice alito the only
11:19 am
dissenter because he's more of a law-and-order justice and thinks the executive should have great deference unlike all of his conservative colleagues. this is to say that we don't live in a polarized time and we're about to experience the most explosive supreme court confirmation hearing since 1987 and the country will be dramatically tested because the stakes are very high. i'm not dismissing the fact. there's a big difference between a liberal pragmatist and so forth. but it 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 -- you know, it's not untrue that there's often an overlap between the politics of the justices and their results. but not their reasoning.
11:20 am
they reason to these decisions for different reasons and all judges will say that they're honestly motivated by their methodologies and their correct views of the constitution rather than by politics. i don't think any judge has ever voted thinking, i want to help this party or that result. they have world views and it's our job as students of the constitution to understand them and teach them. let's make teaching of constitutional methodologies as part of our arsenal and just as all law students are required in constitutional law classes to separate their political and constitutional views and learn the methodologies of constitutional interpretation. let's teach all citizens those methodologies starting in middle school and then all the way up to lifelong learners. thank you so much. >> we run a lot of field trips to the constitution center. >> wonderful. please keep coming.
11:21 am
>> you mentioned to go back a bit about the electoral college and that was one of madison's cooling mechanisms. 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 what he felt about the electoral college and how it contributed and how it wound up being a rubber stamp. should we be more concerned about the electoral college? after an election like 2016, 2000, there is talk about the electoral college, then it kind of dies out, and the losers get upset about the electoral college, whatever, deal with it. i read a lot about the dangers of the electoral college, and could this be the next example of, you know, minority rule or faction rule? when we're looking at the numbers of people who live in different parts of the country,
11:22 am
could there be an argument that the people are being less represented by the electoral college and it's not even just about the presidential elections. when you look at both political parties channeling so much money and attention and political favoritism to states that might wind up helping them in a presidential election, are there a lot of dangers of the electoral college as it stands today with the country becoming more polarized and what -- did madison see any of that coming? >> what a great and deep and important question. i don't know what, if anything, madison wrote on the electoral college after having founded the democratic republican party. and i'm sure there are people in this room, if he did, 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've posed. as the electoral college -- is it not serving its original madisonian purposes and the argument against it is just the wub r one you made so powerfully, which i won't repeat because i can't do it better
11:23 am
than you can. the argument in favor of it was made by a brilliant scholar who said, yes, it's true, it doesn't serve the purpose of wise aristocrats and it would not serve madisonian goals to have purely to have a president chosen by new york and california. basically, there's such a diversity of views throughout the country that allowing 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. now the counter to that is the one that you just made in an interesting way which is that maybe those -- giving each state the number of representatives that it has in congress doesn't serve madisonian reason because in a polarized world with low voter turnout, our congressional
11:24 am
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 minority rule. the counter to that is, the electoral college is just done numerically, not in terms -- the people who serve in it are not themselves popularly elected. unless you're assuming that all of those red-state people are actually democrats are not -- wouldn't vote for the presidential candidate, then maybe there's not a political process failure. probably the most immediate solution would be either some kind of proportional representation, so it's not a winner takes all system, but you can divide the number of electoral votes as some states do, and that would ensure that in a divided country, a diversity of views is represented in the electoral college. another solution is the compact
11:25 am
of the states where ten states or so have pledged to give their electoral votes to the winner of the popular vote and if a certain number of more states say yes, then that would guarantee a kind of popular election. the chances of that actually getting -- seems low, but that's a possibility. but all that is -- those are some of the arguments on both sides. i think there's no question the electoral college is not serving its original function. it's not serving any madisonian function at all in deliberative sense, it's a rubber stamp. the defense of it, though, would be that some kind of geographic representation in the election of the president is helpful in a divided country because you don't just want a few regions deciding everything. but much more to debate and would look forward to more discussion about that. >> mr. rosen, ken casey from southern new jersey. throughout your lecture, you
11:26 am
spent a lot of time citing hamilton, madison in words of federalist papers, in the effort of hearing both sides i was wondering if you might bring in anti-federalist argument against the constitution and your opinion what you feel are the major conflicts that exist between the federalist and the anti-federalists during the ratification time. >> wonderful question, thank you very much, please forgive me for so -- in such an un-madisonian spirit having ignored the other side. george mason was a hero. he's right to have a monument, it's on the mall. you're going to the african-american museum, not far from there and it's not too hot today so you could pay a pilgrimage to this great anti-federalist. he supported the constitution but came to oppose it primarily because it didn't contain bill of rights, so to the degree the main concern of the anti-federalists, lack of bill of rights, that was remedied by the adoption of the bill of rights.
11:27 am
they were concerned about wing -- winning over federal power which would be unchecked by either judges or by the other branches. in our explainer about the second amendment, nelson lund and adam winkler have a wonderful paragraph where they describe the conflict between the federalist and anti-federalist. let me see if i can find it. this is an incredible new app. called the interactive constitution, available in the app store. explore it. and i'm just clicking on amendment two, the right to bear arms, and here nelson, lund and adam winkler, how the federalists and anti-federalists agreed and disagreed. it says implicit in the debate between federalists and anti-federalists were two shared assumptions, first the proposed new constitution gave the federal government almost total legal authority over the army and militia. second, that the federal government should not have any authority at all to disarm the citizenry. they disagreed only about whether an armed populous could
11:28 am
adequately deter federal oppression. i think that's a wonderful paragraph. both because -- if people ask you what the second amendment means, i just read that paragraph to say this is what both sides agree the second amendment means, they are both the federalists and the anti-federalists, you know. agree about what powers are being granted over the army and militia. they agree the feds can't disarm the citizenry. the anti-feds are concerned about remedy, the deterrents, the enforcement mechanisms to ensure the federal government does not overstep its bounds. and therefore they were not confident that an armed populous could adequately deter federal oppression while the federalists were more confident. so 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 natural rights of the people
11:29 am
were retained by them and couldn't be threatened by the government. they disagreed about whether the structure that was created adequately limited the government to avoid tyranny. and that's why the question of what would madison think about the government today is a question that invites anti-federalists as well as federalist thinking because to the degree that madison is concerned that the bill of rights itself will be a parchment barrier and that ultimately liberty will be determined by the ability of citizens to educate themselves enough to avoid menacing each other's liberty, the anti-federalists, you know, might have wanted more strong protections, but they would have agreed with that enterprise of public education. so unlike the division between republicans and democrats today about policy issues, i think
11:30 am
federalists and anti-federalists were both committed to a limited government, you know, strong enough to achieve common purposes because the anti-federalists were not against any national government. but constrained enough to protect liberty, and they disagreed only about constitutional means for achieving that goal. thank you for that. >> so as i listened to you, what i'm hearing is that, in our country, we have sort of a crisis of courage, of a willingness to use constitutional mechanisms to exercise reason more often over passion. and what i wanted to ask you about, so bear with me, regular order and the legislature. because the constitution does not prescribe how congress should operate, but congress has always operated on -- with mechanisms, with principles that forced the legislatures to use reason over passion to make decisions. you mentioned earlier the upcoming supreme court confirmation process.
11:31 am
recently we had changes in the way the senate works where now you just need a simple majority to get a supreme court justice confirmed. i want to know your thoughts on that, your thoughts on regular order with the legislature, and maybe perhaps do we need some sort of constitutional circumscribing of congressional behavior so that we have our leaders using reason more often. >> this incredible, wonderful group of constitutional wonks, and i use that in the highest sense of praise, you're right, that if we had to pick a single institutional reform to resurrect madisonian reason, it would be regular order, which requires that laws go through the committee process and considered over a period of time rather than being pushed through
11:32 am
by leadership without deliberation and without consideration or criticism by the other party. and john mccain received the liberty medal in philadelphia at the national constitution center last year from our current chair, vice president biden. one of the most moving ceremonies i have ever had the privilege of experiencing. mccain and biden both lamented the end of regular order. they said that was an age during the decades together they served in the senate that ensured people of both parties would listen to arguments from the opposite point of view and that you couldn't have a parliamentary system that would circumvent debate. the hewlett foundation, which has a madisonian institution, has identified the resurrection of regular order as another
11:33 am
priority. so how precisely it could be resurrected is not clear since congress has plenary control over their own rules, but that idea of forcing deliberation is crucial. now, what are other ways that we can force or enjoy the benefits of deliberation in congress. through a supreme court confirmation hearings. it is now a truism to dismiss confirmation hearings as a kabuki dance. that's what senator biden said in 2005. a form of political theater. i completely reject that characterization of the hearings. when you go back to every hearing since 1987, you will find that the nominees specifically and clearly signaled their judicial philosophies in ways that proved to be precient. work was an originalist and insisted that they should not enforce enumerated rights. he said, a short list of qualities that should be consulted in identifying liberties are the right to self-fulfillment, the right to personality, the right to dignity. justice suitor said justice bren season one of the greatest constitutional heroes in
11:34 am
history. and therefore, conservative cries of "no more sutors" should not be that surprising. so these confirmation hearings, they're not kabuki theater, but they are probably public education opportunities in which the result is preordained. it's likely, failing scandal or unexpected defection, that the president's nominee will be confirmed because the filibuster has been eliminated and the confirmation can take place by majority vote. therefore, conservative cries of no more suitors should be heard. they're probably public education opportunities in which
11:35 am
the resort is pre ordained. it's conception that the president's nominee will be confirmed because the filibuster has been eliminated and it can take place by majority vote. but because the practice is preordained doesn't mean we can't have an education, even if you're a republican senator who is going to vote to confirm the nominee regardless, i would think that you would have a civic obligation to find out exactly what kind of conservative has been nominated. what is the view of pragmatist? there are certain precedents that should be considered super precedents because they've been
11:36 am
affirmed by justices appointed by presidents of both parties. although he's a strong originalist, he brings certain precedents are entitled to respect because they've become embedded in the fabric of our law. we must find out from the nominee what they think about that question. so all of this is a function in public education and goes back to the theme of why your work as teachers is so important and why we have to, in this world of pat san polarization 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 and so forth. all of you wonderful viewers watching this at 3:00 in the morning, i'm sorry that you can't sleep, but i'm so honored that you're listening to this lecture, because you're educating yourself about the constitution. that's what the hearing should be for and that's what will save
11:37 am
us in democracy. you tell me, but i don't want to delay you long enough. >> for a while i've been frustrated with the polarization of political views and this appeal to the emotional side of the issue here. news channels, news stations, news sources. i was curious where do you get your news? >> from the national constitution center website, of course. i do start there. we have this great constitution daily blog, which has the constitutional news of the moment. i learn from the podcasts. i'm supposed to know about the constitution, i can't have an informed opinion about any of this stuff coming up in the news every day unless i have heard the good arguments from both sides. these are technical open
11:38 am
questions and just not presuming to have an opinion until you have taken a moment to listen and google, and i'm lucky enough to do the podcasts, and they're great. i read "the timds -- times," the "wall street journal" and the "washington post," and i write for "the atlantic", and i kind of google around a bit. but i don't -- i think that the times, the journal, and "the washington post" are doing heroic work and attempting work to tell the story as they see best. and in the spirit of fake news, i think it's important not to dismiss the work of professional journalists and their efforts to tell stories neutrally as folks look for partisan stuff. although it's important to get diversity, but i don't watch tv, except c-span.
11:39 am
>> it seems one of the takeaways i'm having is, as teachers, we can control so little of what happens in the world. we're just small players in a big game, but the one thing that we can control is education, right? that's our game and what we're after. it seems to me civic education needs some sprucing up. your organization is an advocate for civic education. what are some of the policies you think needs to take place, what would madison say about civic education? >> madison says it is essential to the survival of the republic. he supports the proposal of a dif fusion of knowledge in
11:40 am
kentucky, that unless citizens learn about the science of government, then democracy will collapse. what's really important about madison and jefferson and the endorsement of civic education, it's not endorsement of just education in general. of course, they thought education was important. but recent surveys show that educated people are likely to be even more polarized than people with less higher education. so we smarty pants shouldn't fancy we're any more immune to the forces of polarization than anyone else. madison is specific about the science of government and the principles of the constitution. that's why at the constitution center we have a radical notion, that citizens must be trained to think like constitutional lawyers, or at least to think in constitutional terms. so civic education is not telling people to get out to vote. voting is fine, if you feel like voting. but that's not educating yourself about the structure of government.
11:41 am
we need to teach our fellow citizens about all the complicated ideas that we've been talking about this morning. i tried to distill it, but it took an hour. that's not good enough. we need to make a list of ten principles, separation of powers, checks and balances, federalism, and be able to explain quickly and urgently in a way relevant to people's lives why these principles are important. you tell stories about why this is relevant. you can tell a story about how the supreme court just said that the government can't track our movements in public 24/7 seizing our cell phones, that it can't take our cell phone records to re-create our movement in public. then tell the story how that inspiring opinion cited the writs of assistance that sparked the american revolution. and how when king george tried to rummage through people's houses to see if they paid the
11:42 am
hated tea taxes and tried to lock at their diaries, the framers not only had the boston tea party but passed resolutions to oppose the writs of assistance. so the constitution center has a multifaceted approach to civic education. first teaching history through story telling. second, teaching citizens to separate their political from their constitutional views. and third, encouraging civil dialogue by bringing different points of view together. that's what we're trying to do with tools like the interactive constitution with the podcast. 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 bring the amendments to life and of course, we want citizens to
11:43 am
try to follow this inspiring and necessary enterprise as well. and the thing about it is -- shall i end? here is the farewell. it is just so necessary for democracy and we are all citizens, democrats and republicans, know that we're in a perilous place. we're seeing waves of populism sweep across america and the globe. we're seeing what countries in europe without written constitutions are doing in the face of populous threats, eliminating their supreme courts, threatening journalists, undermining fundamental principles of liberty. and we're wondering whether america in the face of these new forces can preserve the structures that have defined us as a nation. so it is necessary to preserve the structures and it is necessary to fulfill your
11:44 am
faculties as a human being. there is nothing more meaningful than lifelong learning. every moment we spend using our moments of leisure to elevate our faculties of reason, to learn new history and new -- to read new literature and be inspired by great music and to converge around these principles that unite us is one that we rides -- rise higher as human beings. this is not an enterprise just for students in middle and high school and college, but it has to be a life long commitment to elevating ourselves as citizens. it will rise us up as human beings and help us rise together. and ultimately, once we engage in this common enterprise, we will understand that the things that divide us are irrelevant, the difference between this gun law or that gun law or this speech controversy or that
11:45 am
speech controversy is far less important than the fact that we are united by the principles of the constitution. we do converge around the principles of the declaration of independence and red or blue americans, we are one as lincoln said. so that's why civic education is important and why your work is important. and i want to end by thanking each of you as teachers for teaching history in these embattled times, when technology and science are all the rage. you understand the crucial importance of kindling young students to love language and learning and words and to thrill to the inspiring stories that created america and to converge around the great document of human freedom that unites us, the u.s. constitution. thank you so much. [ applause ]
11:46 am
weeknights this month, we're featuring american history tv programs as a preview of what's available every weekend on c-span3. former vice president and u.s. senator walter mondale died on april 19th at the age of 93. tonight we start with programs featuring mr. mondale with former president jimmy carter. this is hosted by the university of minnesota's humphrey school of public affairs. watch tonight beginning at 8:00 p.m. eastern, and enjoy american history tv every weekend on c-span3.
11:47 am
next on the presidency, we hear about dolley madison's political talents and the work she did with her husband james in political excitement during the white house years. kat imhoff and james montpelier co-hosted this


info Stream Only

Uploaded by TV Archive on