Skip to main content

tv   James Madison Democracy  CSPAN  April 30, 2021 4:05pm-5:52pm EDT

4:05 pm
next on american history tv jeffrey rosen talks about james madison and democratic ideals. 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, an intended cooling mechanisms on popular opinion. the james madison memorial fellowship foundation and the national constitution center co-hosted this event. it's an hour and 45 minutes. >> we welcome you to the james madison lecture, which our foundation sponsors ever year as seated in our seats today are 49 james plaidson fellows over here at georgetown jufrt studying the foundation of american constitutionalism. they're all high school teachers
4:06 pm
or middle schoolteachers of 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 rosen, a president and ceo of the national constitution center. he's also professor of the 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 book was published on june 1, 2016, on the 100th anniversary of the supreme court confirmation. his other book includes the supreme court, the personalities and rivalries that defined
4:07 pm
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" has called the definitive text on the privacy perils in the digital age. professor rosen is also co-editor with benjamin witt the constitution 3.0, freedom and technological change, the proceedings from the brookings project technology and the constitution. his essays and commentaries have appeared in the atlantic, "the 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's been a staff writer. the chicago tribune has named him one of the ten best magazine
4:08 pm
journalists in america. and the los angeles times has called him the nation's most widely read and influential legal commentator. let's please welcome professor jeffrey rosen. thank you. >> 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 where 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 its fundamental principles will determine the future of the republic.
4:09 pm
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 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 and compassion at a time when
4:10 pm
they are under siege? madison said in all large assemblies of any number composed passion never fails to wrest the scepter from reason. even if every athenian had been sock rates, you know well how centralally 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 refused to pay their creditors. and this fear that mobs misled by silver-tongued demagogues
4:11 pm
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 wiener's wonderful book "madison's metronome." the founders resisted democracy in favor of a republic. they feared 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 wanted thoughtful representatives of the people to channel and filter popular passions so that reason
4:12 pm
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 too large and would degenerate into chaos. but the framers, first of all, by devising the representative system believed they'd 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
4:13 pm
rather than reason and by self-interest rather than the public good. so the idea was that in a really large republic it would be hard for these self-interested groups to organize, to discover each other, to achieve their nefarious common purposes. and by the time they actually found each other, then passion would dissipate. throughout the federalist papers we see this notion of hasty and impettuous passion that over time can cool and the large size of the republic was supposed to guarantee cool reason rather than hot passion could prevail. it's centrally important the framers were not aristocratic. they were not in favor of oligarchy. they accepted especially john adams did the classic aristtillion that there were three forms of a republic, aristocracy, a monarchy and a
4:14 pm
democracy all of which could degenerate into an oligarchy, tyranny or demagogues and the mob. so they're not in favor of any one of those systems. they believe in majority rule but they want majorities to rule slowly over time. and the whole system is created to slow down deliberation. 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 mechanisms in an age of 24/7 news and social media and the
4:15 pm
very kind of hasty impetuous decision making they feared. 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's one wired, okay. i'll go in and out but my passion will be cooled by the fading mic and eventually you'll get bursts of it and it'll dissipate over time. so what are the cooling mechanisms the framers put in place? they're essentially concerned with congress. so the first important principle and we have to teach all our students this and teach all americans this, is separation of powers and checks and balance.
4:16 pm
it's crucially important that no one branch gets to speak for we the people. and here let's not channel not just madison but james wilson that under-appreciated genius from pennsylvania who wrote the first draft of the constitution and the first rules and draft is at the national constitution center in philadelphia. and i want you to come and bring your students. it's so exciting to see the very first words wilson put on paper in july of 1787. the first words were "resolve." no we the people but it was the separation of powers and the idea 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. the second wilson draft, which
4:17 pm
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 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 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 committee style trying to ensure that since they didn't know who would ratify the final draft would avoid that question. but others insists the choice
4:18 pm
was deliberate and we the people of the united states was meant to signal the indivisible sovereignty of we the people as a whole. that's the central idea. 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 one bill passed by congress for the state 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 so beautifully incap capsulates the whole theory of judicial review. hamilton says when there's a conflict of we the people represented by the constitution and the will of our representatives embodied in ordinary laws then judges prefer the master to the servant, the
4:19 pm
principle to the agent. that's the whole rebuke to the idea there's a counter mujoritarian difficulty involved in striking down unconstitutional laws because it's the constitution not the three branches that embodies we the people. then we dig into each of the branches and see how carefully the framers dispersed and divided 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 setup to ensure the triumph of reason. then there was a lot of concern about the size of the house. so another amazing document we
4:20 pm
have in 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. there were 12 surviving copies of the bill of rights. george washington sent out 13 copies to the states and federal government. 12 copies survived. one is at the national constitution center in philadelphia. the very first amendment proposed by congress isn't the one involving freedom of speech. it said resolve there should be one representative of 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 to have 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
4:21 pm
be responsive to their constituents but not so much the size of the assembly would become unwieldy and degenerate into demagogues. and hear their cautionary tale is cleon in athens who seduced the assembly into invading sparta and causing the peloponnesian war. subsequent scholarship has suggested that aristotle and plato and anti-democrats and that athenian democracy was more effective in producing economic stability and dispersing 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 500 senate and by
4:22 pm
paraclees and may not do it justice to athens to reduce the demagogues. but this was the framers vision and was the vision of florentine critics of democracy. so the original first amendments as 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. our first amendment was the framers third, 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 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 from government. and in the state of nature we're born with certain natural
4:23 pm
rights. remember the right of complete freedom of conscience 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 enlightenment faith and reason because my religious beliefs or lack of beliefs and my opinions must be the product of reason. i can't alienate them or surrender them to government. and that's why the rights of conscience are unveilianable. another is the right to alter or abolish government when it threatens or retains the unalienable rights we refuse to surrender. and that's why the second sentence of the declaration contains the entire theory of american government, and we have to teach this to our students too. we hold this to be evident that all men are created equal. they're endowed by their creator
4:24 pm
with certain unalienable rights. and whenever the government becomes destructive of these rights it's the right and duty of the people to alter and abolish it. so the right of revolution is an unalienable right which can't be surrendered because it's necessary to preserve the safety and security of the unalienable rights we retain and that right is embodied in the process of article 5 which you can see from the wilson draft wasn't 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 uninamty for amendment. it was justified because the
4:25 pm
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 akeel omar, my dear law schoolteacher when the majorities express our will in a thoughtful deliberate way which prevails over time then amendments outside of article v might be permissible and we the people might amend the constitution in ways that might be technically illegal under convention rules and the post civil war amendments to the constitution were formerly
4:26 pm
illegal. we talked a little bit about some of the cooling mechanisms of congress. let's turn to the presidency. the obvious cooling mechanism 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 illusory as early at the 1890s. it never served that aristocratic function. and with the rise of political parties in the 1800 soon became a rubber stamp for the choice of the parties themselves a
4:27 pm
transformation that was reflected in the 12th amendment to the constitution, which assumes the existence of 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 cooling mechanisms that hadn't materialized as planned. as the historian sean wilens has shown many of the greatest constitutional transformations in american history have come through mobilized political parties. and that's because the parties soon form themselves on constitutional terms. the republican and democratic party formed by madison and jefferson was organized around
4:28 pm
the principle of popular sovereignty and state rights and individual liberty and limitations on federal power. the federalist party was originally 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 jefferson on the other has defined 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 a principle of 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
4:29 pm
republicans. and southerners and small business people of agragren interest in the case of the democrats. rather than being mobilized around personalities or ideologies and 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 just written a short biography of him arguing he is our most judicial president and
4:30 pm
presidential chief justice. taft yearned to be chief. he took the presidency with the greatest reluctance and fought the election of 1912 on the principle of defending the constitution against the populous demagoguery of roosevelt and woodrow wilson. theodore roosevelt unlike taft who said the president could do only what the constitution explicitly allowed. taft was our last madisonian president, a dream he eventually achieved and became what -- arguably one of our greatest chiefs since john marshal. after taft and roosevelt split taft was moved to run for re-election with the greatest reluctance nord to defend the constitution against roosevelt's new populist incursions.
4:31 pm
roosevelt enforced new mechanisms like the popular initiative, the referendum and the judicial recall of unpopular decisions. roosevelt attacked individual judges by name and demanded the people overturn their decisions. in the constitution center in philadelphia in our majestic temple to the constitution overlooking independence hall there's a quotation in the lobby saying the people themselves are the maker of the constitution. it's an inspiring quote until you read the next sentence which was left off-the-wall, which says when they disagree with judicial decisions they should be able to overturn with populous vote. and i call to you and our dear c-span viewers to send my 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. so taft runs for president
4:32 pm
because he rejects wilson and roosevelt's notion of a 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 of a direct expression of the peoples passion who would channel their will. the national constitution 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 a nonpartisan basis. and i can say with complete nonpartisan confidence that the idea of tweeting presidents would have appalled the framers. it is exactly right. it says so in federalist 10. yes, it is. and you're tweeting i'm sure that you would stop our president from tweeting because it's what the framers didn't want. federalist 10 says -- taking notes is fine. madison would approve that. just like madison. >> i'll tweet it to the president. >> you can tweet to him, but he's not supposed to listen to
4:33 pm
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 setup barriers and cooling mechanisms. and the reason this is nonpartisan our first tweeting president was president obama. he was the first president to setup a twitter account and the framers and madison didn't think that kind of direct instruction by the people to their representatives or direct communication to the people was a good idea because they want slow reason to prevail. so when roosevelt and wilson are insisting that the president can channel popular passion, taft is appalled and he runs for president to defend the constitution. he loses, 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
4:34 pm
congress, and i'm getting this from william conley's wonderful book on madison. it was in 1912 wilson insists the congressional committee system, which requires the parties to slowly consider bills that go through regular orders were challenged. and wilson in addition to insisting the president is a direct tribune of the peoples 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 and the constitution endorsed the sort of parliamentary vision. george will, the great constitutionallest came to the constitution center recently to talk about madison and said all of american history can be seen as a conflict between two prince tonians, james madison and
4:35 pm
woodrow wilson and views wilson's populist effulgences in the election of 1912 as the beginning of a path that led us down to 1994 and the gingrich reavelution that the party who controls congress should be able to wreak its will without seeking input from the minority. precisely the opposite of the slow deliberation and multi-interest compromise that the framers thought was simple. so we talked about the congress and talked about the presidency. what i'm trying to do here is distill the essential lessons we have to teach our students and to 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 and supposed to be chosen by a wise electoral college so
4:36 pm
he or she can exercise independent judgment. and now we come to the judiciary -- sorry, the least dangerous branch. as hamilton called it. and the most dangerous branch as alexander bickell called it because in bickell's view the judiciary had been transformed beyond the framers' view. madison saw the bill of rights as information to the people that would promote self-restraint and reason. remember he'd initially opposed it on two grounds, because it would be unnecessary and dangerous. unnecessary because the constitution itself is a bill of rights and by granting congress power would allow it to assume no power on and grant speech. and dangerous because madison assumed because our rights were natural and came from god or nature and not government they were so capacious they couldn't be reduced to a single limited list and future citizens might wrongly assume if a wright was
4:37 pm
not written down it was not protected. but in the face of opposition from heroic anti-federalist george mason and gary of massachusetts, i've learned to pedantically produce it gary mandderring rather than gerrymandering, he came to endorse the bill of rights. he cut and pasted them from the state constitution and bills of rights in the revolutionary period. and here i have to plug -- i can't believe i've waited this long -- the extraordinary interactive constitution the national constitution center has put online. i want all of you to bring to your students and all americans to download and learn from. using this incredible tool you can click on any one of the amendments and see it's antecedents. you can click on the second amendment and see two states that the people have the right to bear arms for themselves for purpose of killing game and
4:38 pm
whereas other states in george mason's record of 1876. always the best place to begin. talk about the right of the people to organize themselves in militias to defend liberals in the face of tyranny and standing armies. it's a wonderful nonpartisan way of seeing the textual evolution of the bill of rights. the other extraordinary thing you can do on the interaffective 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 amendment and find the two leeing liberal and conservative 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
4:39 pm
agreed to by both sides and then you can look at their separate statements and see areas of disagreement. and to do this for all 80 clauses of the constitution is the most extraordinary gratuitous public school views, this incredible free tool has gotten 17 million hits since it launched three years ago. and i'm thrilled just last week david coleman, the head of the college board announced all ap students will be required to take a two-week course at the constitution center and 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. and i've given this plug. i hope you'll forgive it because it's in the madisonian spirit of promoting cool, slow reason over time. we can't have slow opinions without the bill of rights without listening respectfully
4:40 pm
to arguments from both sides and recognizing there are good arguments on all sides of most contested constitutional questions. the constitution home set made for people with fundamentally differing 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 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 the essence of madisonian deliberation. and this brings us back to the judiciary. he said the reason to adopt the bill of rights is that it will convince citizens to think twice before violating rights. they won't infringe speech or vote to oppress minorities once they're reminded that freedom of speech and freedom of conscience
4:41 pm
are fundamental principles. it was only later principly after the passage of the 14th amendment tat the judiciary rather than congress or public opinion became the main enforcer of rights. the court struck down only two federal laws between mar' bury vs. madison and dred scott and vigorously enforcing rights is eventually a 20th century construct hat has to do with the incorporation of the bill of rights against the states. the 14th amendment to the constitution one of the most significant anniversaries to the constitution imaginable and how heartening it is that the original understanding of that unsong hero of the 14th amendment. hugo called him the -- james
4:42 pm
bingam hoped the 14th amendment would incorporate the bill of recognizes 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 hope was thwarted by the supreme court in the infamous slaughterhouse cases soon after the 14th amendment was passed, and it took most of the 20th century beginning in the 1490s to the 1960s when most of the other parts of the bill of rights were applied to vindicate bingham's hope. i would like to have a vigorous debate with you and our fellow citizens earth 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
4:43 pm
attrophying of the other recognizes madison put in place. so judicial engagement or having judges strike down federal and state laws may or may not be more justified now that the other branches from early congress have stopped playing its checking role and other forces have sped up deliberation so that passionate hasty decisions 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 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 the federalist papers themselves are distributed in newspapers. again, we have at the
4:44 pm
constitution center earliest copies of the federalist papers in the new york newspapers published soon after the numbers were written. and madison thinks that a class of elite journalists who he calls the liberate will slowly descend reason. that was the hope the federalist papers are not beach reading. you have to dig into them, but 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'd slowly be informed by the and they'd allow cool reason to prevail. and madison thought this new media technologies would maintain the benefits of the extended republic in making it
4:45 pm
impossible for factions to organize quickly. but also counteract the developments of the extended public by allowing information and reason to descend across the land. it was crucially 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. so 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 -- i'm sorry the federalist president could imprison his critics but the republican vice president, thomas jefferson can
4:46 pm
be criticized with impunity according to the sedition act. and jefferson and madison said because our rights of speech and opinion are natural rights that come from god and nature and not government and the right of unbridled criticism of public men is central to trial 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 brandice channels whitney vs. california where brandice talks about once again the importance of citizens cultivating their faculties of reason. this theme emerges in whitney and brandice says those who made our revolution believe the final end of the state was to make men free to develop their faculties and that in its government the deliberative forces should
4:47 pm
prevail over the arbitrary. they valued liberty both azine end and a means. they believed liberty to be the secret of happiness and courage to be the secret of liberty. and represents brandice's athenian as well as jeffersonian faith. they believe the freedom to think as you will and speak as you think are means to discovery and spread of political truth. that without spree speech and assembly discussion would be futile, that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine, that the greatest threat to freedom is and in those extraordinary words are contained this -- all of the themes we're talking the faith ibreason and not only the opportunity but duty of citizens to cultivate their faculties of reason rather than passion.
4:48 pm
channelling jefferson's belief we all have certain faculties and reason has to be cultivated through rigorous self-education. and also this idea as long as there's time enough to deliberate, the theme of time again the best response to evil speech is good speech and speech can only be banned according to brandice 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 lectures going on too long. in europe if you tweeted that i could sue you under this new right the european union has recognized under the right to be forgotp on the internet. and and a european judge or initially google would have to decide if i'm a public figure and they guess wrong and google refuses to remove their tweet
4:49 pm
they'd be liable for up to 2% of their annual income which was $60 billion last year. 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 referenda, brexit votes and twitter polls and instagram, which people are making decisions with snap judgments and the very impetuous passions the framers feared, is facebook and twitter consistent
4:50 pm
with madisonian democracy? this is central, urgent question that we must discuss together as citizens, and it's clear that the speed with which information is disseminating and ease with n 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. now we're chuckling now in a minute on a chat room or an instagram post or on reddit. the most mobilized and polarized factions can find each other from across the country and around the globe, can quickly 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 live in an america defined by polarization.
4:51 pm
some have called it the big sort, or referred to filter bubbles and echo chambers. this is a time when according to objective 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 democrat overlapped by 50% in congress. today there is no overlap between those parties. and because of geographic self-sorting where people choose voluntarily to live in blue and red enclaves and because of virtual self-sorting, where people on facebook and twitter will only read articles they already agree with or 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
4:52 pm
slow reason to prevail. now we have polarization and nap 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. now, 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 chieting initiative called a madisonian constitution for all. what would madison think about our current congress, presidency, courts and media, and how can we resurrect the triumph reason rather than passion? today it's co-chaired by the chairs the federalist society and the american constitution society and by senators mike lee and chris coons in the senate
4:53 pm
and zoe lofgren and justin amash in the house, who are congressional visiting scholars. 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 spend the next few years trying to find concrete solutions to the problems i've said. but 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 an academic 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's really angry and emotionally galvanizing, people will share it quickly without reading it. that's why researchers in britain were able to predict the brexit vote before it occurred. they saw that the leave messages
4:54 pm
appealed to angry passions rather than reason. the remain messages were complicated economic arguments. and based on the fact that the leave messages were shared more widely, they predicted the vote before it occurred. this is again a madisonian dis-topia. what is to be done? well, facebook could have chose put higher up on its algorithm only posts that people actually read. imagine that. it's inspiring from a madisonian perspective although slightly creepy from a privacy perspective that facebook knows how long you're spending on every post that you're reading. so they could choose to put higher up on the algorithm stuff that people read. that would be one example of a digital cooling mechanism in the madisonian spirit. they could also if they wanted to be more interventionist put higher up on people's feeds arguments from sources that they might be inclined to disagree with. the scholar cass sunstein
4:55 pm
suggested putting links at the bottom of web pages, you know, at the bottom of cnn page you put a link to fox news and so forth. it seemed technologically quaint at the time because faced with a 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 literally controls what we see on our news feeds and they could if they chose to be more interventionist share 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 since 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 ultimately is responsible to its shareholders.
4:56 pm
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 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
4:57 pm
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," absence of unemployment. he said what a happen land that, 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 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. 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
4:58 pm
you continue on your urgently important task. therefore, i'll just close with two inspiring phrases of brandeis. he was called isaiah by many including franklin roosevelt, partly because he looked the prophet isaiah with his impressive shock of white hair and his tendency to pace up and down and insist. but he also was called disease -- isaiah because of that beautiful phrase of the prophet, come let us reason together. that beautiful phrase encapsulates brandeis' and the framers' madisonian hope. we can just end with the final words of brandeis. if we would govern by the light of reason, we must let our lives be bold. thank you so much. [ applause ]
4:59 pm
>> when you stand, tell him where you're from so he has an idea. tom, why don't we start with you. >> yes, sir. tom o'hare from south carolina. madisonian reason, but how would you explain that much of the revolution was in fact a product of passion, pain, the sons of liberties, 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. just to repeat it to make sure everyone heard it. the revolution, tom says, was arguably a product of passion rather than reason. payne and the other revolutionaries motivated people in opposition to tyranny.
5:00 pm
what's madison distinguishing too strongly between passion and reason? and i think the answer to your question is yes. it's interesting that payne was a much more open fan of atheenian direct democracy that 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 reasoned passion and passed reason, and indeed they are 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 fifth century athens would file into the demos and set aside their differences, and it wasn't -- and the bool, which is -- there are 500 people, so
5:01 pm
it's 50 tribes. my math is bad. anyway, there are a whole lot of representatives filing into the demos, and some say that it was once those ceremonies broke down and the tribes began fighting with each through tribalistic polarization that the whole thing broke down. also modern scholarship suggests that the firm distinction between passion and reason is too overstated. dehas yoes descartess error suggested that the enlightenment giants like descartes distinguished too strongly between passion and reason, and both are necessary for informed decision-making. so i think payne and the unchanneled direct democracy is exactly the right model. and as we think about resurrecting reason today, we can't neglect both modern neuroscience and ancient greek learning about the importance of
5:02 pm
productively channeling passions so that it can motivate people to defend liberty and to ensure the triumph democracy without degenerating into mobs. so thank you for that very helpful thought. yes, sir, in the back. >> rusty from maryland. you were talking about technology and the speed at which things happen, hows that dampened down the cooling-off effect. increasingly being one of the old guys in the room, everything's going so much faster every single day. we have students now, even young teachers, they're waving their watch at a laser to order coffee and buying a car from a virtual gum ball machine. now we're talking about essentially virtual elections. in a practical sense, have you thought about how we would approach slowing this down without just looking like the old gray-headed luddite? >> this is also a central crucial question. you say things have moved so fast, we're all used to
5:03 pm
immediate results in buying and voting and thinking and expressing ourselves online. how do we slow things down without looking like meaningless luddites? that's the hard question we have to set up. the first thing we have to say is the framers are not luddites. they're radicals. they're radicals. the idea of having slow, thoughtful deliberation by the majority is a radical idea in a world where kings and strong men and thugs prevail. so there's nothing luddite about the enterprise, and there's also nothing luddite about embracing social media technology for the remarkable ways in which it can fulfill the framers' hopes. the same technologies that allow us to buy gumballs or to watch cat videos also allow us within moments to download the federal papers or the most inspiring books about the anti-democratic tradition throughout history,
5:04 pm
which i did when i had the incredible experience of going to athens itself just two weeks ago, or to listen to the most elevating music ever created in the world at any moment. 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 to death. so part of it is not rejecting these astonishing technologies which -- i mean 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 have access to this extraordinary information if we can train ourselves to use it properly.
5:05 pm
but the other question about how to slow things down or just put speed bumps or brakes before instant voting is a political and constitutional question. so i think one thing, you know, if we can persuade our fellow citizens and our 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. 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. he thought, unlike jefferson, who wanted a convention every ten years, that it was basically a miracle that given the fact that it was practical politicians who came together in philadelphia, they produced the genius document that they did,
5:06 pm
and he feared that a second convention would degenerate into mobs because it would be the same legislators who were wreaking such havocs in the states. so, again, i don't have the answer to how to harness or slow down these technologies in order to promote reason rather than passion although the facebook algorithm example is just one small tweak. but it is crucially 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 constitutionally about ways of preserving the structures that prevent us from using the technologies to make quick decisions that can't be reversed. thank you for that. yes. no tweeting, but notes. >> my name is sydell, and i'm
5:07 pm
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, wall revere's engravings, william randolph hearst. 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. yes, there is. 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
5:08 pm
is fault would be anathema to our unalienable rights of conscience. so i propose that facebook -- that is up to citizens to decide for themselves. this is not rejecting the enlightenment faith in facts. i mean 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, then that may be a role for technology rather than law
5:09 pm
because 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 that nevertheless could be downgraded because they're false. but i thank you so much for reminding us that -- i mean i may think that something is fake, and i may be convinced that 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 each of us ultimately have a responsibility on our own to cultivate our faculties of reason enough to make informed decisions about that. and that's why the job of all of teachers in this room is important. news literacy is important. teaching your students to distinguish between reliable and unreliable news sources. teaching them to be thoughtful madisonian consumers of news so
5:10 pm
they can seek out positions and debate them is helpful. listening to news sources that bring together opposite points of view, and since i'm plugging away at the constitution center's educational materials, i had the incredible privilege of every week hosting a podcast called "we the people," where i call up the top liberal and conservative scholar in the country and debate the constitutional issue of the week. and i just learn so much from these amazing podcasts, and so do our listeners, i hope. and i can't have an informed opinion about any of these issues until i've heard both sides and i want you to encourage your students to do that too. but absolutely right. 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. >> ryan, wisconsin. piggybacking on an idea earlier, what are your thoughts in
5:11 pm
regards to a second constitutional convention that call 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, either limited to specific amendments or one that would be open? so 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 only need 34, so 7 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 on congress to summon a convention of the states to propose an amendment, and then that has to be ratified either by three-quarters of the state legislatures or by special conventions alled in three-quarters of the states. so it's not completely beyond the realm of possibility that
5:12 pm
seven more states could call for a balanced budget amendment and that we would have a convention of the states. what are my thoughts? we've debated this question, of course, at the constitution center. i'm just going to give you the arguments on both sides and then 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 balance the 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 be able to call for a convention? or think of other amendments that might not be able to be proposed by congress but could be proposed by a convention of the states like term limits. and some argue -- george will is one of them -- that term limits are good madisonian cooling mechanism that prevent representatives from becoming too entrenched and polarized. people were be less likely to
5:13 pm
pander to their base. and yet the supreme court in an opinion said that federal term limits are unconstitutional, so you'd 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 of the states? the argument against it is the danger of a runaway convention. so you could call a convention just for a balanced budget amendment or 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 people that are delegates to the convention would be the same 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
5:14 pm
they 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 or special conventions, is so hard to meet that if people tried to repeal the first amendment or do other mischief, it wrote never pass the ratifying conventions. i'll tell you what i think in a second. i'm just giving you the arguments on both sides. 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 is very dangerous to have constitutional conventions and we should not have one now? this is a madisonian group. not everyone was voting, but you want to hear more arguments on both sides. i think i'm with madison here.
5:15 pm
given polarization, i think it unlikely that you'd get a majority to call the convention to begin with. and i'm not convinced that the convention itself would overcome polarization unless deliberation were structured in a more thoughtful way. james fish kin at the university of texas has shown through his deliberative 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. so 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. you know, 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 madison.
5:16 pm
>> my name is nicole larsen and i'm from southern indiana. when it comes to louis brandeis, when louis brandeis 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 mag nimity 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 are 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
5:17 pm
disagree with the situation of the case at that time. >> wow, 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 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 and repeatedly that it is important for the court to stand for a kind of nonpartisan legitimacy that transcends politics. and it is inaccurate, simplistic, and dangerous for citizens to perceive the court as five republicans and four democrats or what have you. and i think descriptively over the course of time, while there is a strong correlation between the considered will of the people and the court's judgment -- in other words, the court has tended to reflect thoughtful, considered, popular opinion over time, and on the rare occasion when it's thwarted it, as in during the new deal and the civil war, it's provoked
5:18 pm
backlashes that have led to judicial retreats, and that's a madisonian function. 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 that the constitution is supposed to embody. so in that sense, the court has been appropriately but cautiously responsive, responding to what justice ginsburg has called nudges rather than -- well, 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 his or her constitutional views. it is urgently important to teach citizens about the different methodologies of constitutional interpretation so they understand that there are
5:19 pm
different kinds of liberals and different kinds of conservatives. chief justice roberts is an institutionalist who makes institutional legitimacy his highest priority, 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 that many of them reflect a concern for institutional legitimacy. and just this term, look at these narrow nearly unanimous opinions in the masterpiece cake case involved the baker, or the partisan gerrymandering case where the justices avoid polarizing broad constitutional citizens 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 and, you know, for what it's worth. but not all conservatives share that vision. justice thomas is an originalist as justice scalia was. and justice gorsuch is an
5:20 pm
originalist as well. and they think the constitution should be interpreted in light of its text and original public meaning regardless of whether that's going for the court's legitimacy, and they will overturn decisions they think are inconsistent with original understanding even if the heavens fall as the expression goes. and then justice souter, the former justice souter thought precedent was extremely important. on the liberal side, we have incrementalists like justice ginsburg who criticized roe v. wade for moving to broadly and deciding a hotly contested question in the most sweeping terms rather than merely deciding the case at hand and allowing the political process to take its place. with pragmatists like justices kagan and breyer, who have joined justice roberts in a series of 7-2 decisions over the
5:21 pm
dissents of justices sotomayor and ginsburg 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 in a madison sense. and then justice sotomayor, who is an inspiring crusader for her vision of the correct constitution in the tradition of justice brennan regardless of its practical consequences. so i really want to work with you to teach these methodologies. first text and original understanding. second, history and tradition. third, precedent. four, pragmatism. fifth, natural law. justice kennedy, who just retired, believed that we do have certain rights that come from god or nature and not from government and that should be strongly enforced by the government -- by the court regardless of whether they're enumerated in the text of the constitution. so both the right to privacy and autonomy, which justice kennedy
5:22 pm
so memorably summed up in saying at the heart of liberty is the right to define one's own consense of meaning of the universe and the mystery of human life. justice scalia dismissed that. he called it the sweet mystery of life passage, 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 obergefell. that represents a natural rights-based philosophy. so 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's animating the different justices so they can understand why in the recent case involving warrantless searches of a motorcycle -- that was 8-1 with justice alito the only dissenter
5:23 pm
because he is more of a law and order justice who believes in executive power and thinks the executive should have great deference unlike all of his liberal and conservative colleagues. this isn't to say we don't live in an incredibly polarized time and we're about to experienced the most explosive and divisive supreme court hearing since 1987, since robert bork. and the country will be dramatically tested because the stakes are very high. and i'm not dismissing the fact there's a big difference between a good liberal pragmatist and a 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 -- 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. they reason to these decisions for different reasons, and all
5:24 pm
judges will say that they are honestly motivated by their methodologies and their correct views of the constitution rather than 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 citizens and students of the constitution to understand them and teach them. so let's make teaching of constitutional methodologies 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, let's teach all students starting in middle school and all the way up to lifelong learners. thank you so much. yes. >> megan from new jersey but right outside of philly, so we run a lot of field trips to the constitution center. >> wonderful. please keep coming. >> you had mentioned before, to go back a bit, about the electoral college and that was one of madison's cooling
5:25 pm
mechanism. 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, how it wound up as you being a rubber stamp, "a." b, should we be more concerned about the electoral college. usually after an election like 2016, there's a lot of talk about the electoral college, then it dies out and is dismissed. however, i've read a lot and also actually c-span did some interesting lectures on it in how the dangers of the electoral college. 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, could there be an argument that the people are being less represented by the electoral college, and it's not even about the presidential elections.
5:26 pm
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, you know, are there a lot of dangers of the electoral college as it stands today with the country becoming more polarized? and 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 if he did, there are people in this room who will know it better than i. but we did have a great series of debates on the question you posed. has the electoral college -- is it not serving its original madisonian purposes? and the argument against it is just the one you made so powerfully, which i won't repeat because i can'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.
5:27 pm
it doesn't serve the purpose of wise aristocrats, choosing people of the best character. but it does serve values of federalism. and it would not serve madisonian goals to have purely -- to have a president chosen by new york and california. basically that 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 a really 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 representatives are pandering to the most extreme factions in each of their parties, and the
5:28 pm
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 -- in terms of the people who serve in it are not themselves popularly elected, so, you know, unless you're assuming that all of those red-state people are actually democrats 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 electoral votes as some states do, and that would ensure that in a guided country, a diversity of views is represented in the electoral college. another solution is the compact of the states where ten states
5:29 pm
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 out of state seems low, but that's a possibility. but those are some of the arguments on both sides. there's no question the electoral college is not serving its original function. it's not serving any sort of madisonian function at all in a deliberative sense. the defense would be 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 debate and would look forward to discussion about that. >> kevin casey from southern new jersey. throughout your lecture, you spent a lot of time citing hamilton, madison and jay in in
5:30 pm
terms of the federalist papers. i was wond rings if you could bring in the anti-federalist argument and some of the major conflicts that exist between the federalists and anti-federalists during the ratification time. >> wonderful question. thank you very much. please forgive me for so in such an unmadisonian spirit having ignored the other side. george mason was a hero. he's right to have a monument. it's on the mall. if you're going to the african-american museum, it's not far from there, and it's not too hot today, so you could pay tribute to this great anti-federalist. he originally supported the constitution but came to oppose it because it didn't contain a bill of rights. that concern was remedied by the adoption of a bill of rights. but more broadly, the anti-federalists were concerned
5:31 pm
about overweening federal power that would be unchecked either by 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 federalists and anti-federalists. i'm going to see if i can find it. as i look, this is incredibly new app. it's called the interactive constitution, available in the app store. explore it. i'm just clicking on amendment 2, the right to bear arms. and here are nelson lund and adam winkler describing how the federalists and anti-federalists agreed and disagreed. and it says, implicit in the debate between federalists and anti-federalists were two shared assumptions. first that 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
5:32 pm
adequately deter federal oppression. i think that's a wonderful paragraph. people ask you what does the second amendment mean? i just read this paragraph. there both the federalists and anti-federalists, you know, agree what powers are being granted over the army and militia. they agree the feds can't disarm the citizenry. the anti-feds are just concerned about the remedy, the deterrent, the enforcement mechanisms to ensure that the federal government does not overstep its constitutionally assigned 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
5:33 pm
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 federalists and anti-federalists were both committed to a limited
5:34 pm
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 the constitutional means for achieving that goal. thank you for that. >> john from california. 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, is regular order in the legislature because the constitution does not prescribe how congress should operate. but congress has always operated with mechanisms, with principles that force the legislatures to use reason over passion to make decisions. now, you mentioned earlier the upcoming supreme court confirmation process. recently we've had changed in
5:35 pm
the way the senate works where now you just need a simple majority to get a supreme court justice confirmed. so i want to know what your thoughts on that are, what your thoughts on regular order are with the legislature, and maybe perhaps do we need some sort of constitutional circumscriing of congressional behavior so that we have our leaders using reason more often? >> yes. wonderful. regular order is one of the most madisonian solutions imaginable. and in this incredible, wonderful group of constitutional wonks -- and i use that in the highest sense of praise -- you're absolutely right that if we had to pick a single institutional reform to resurrect madisonian reason, it would be regular order. so for those who are not among the -- regular order, as you say, requires that laws go through the committee process and are considered over a period of time rather than being pushed through by leadership without deliberation and without
5:36 pm
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. it was one of the most moving ceremonies i've ever had the privilege of experiencing. and mccain and biden both lamented the end of regular order. they said that that was an age during the decades together that they served in the senate that ensured that 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. and the hewlett foundation, which has a madisonian initiative, which is very generously supporting institutional reforms in congress, has identified the resurrection of regular order as another priority. so how precisely it could be resurrected is not clear since
5:37 pm
congress has plenary control over its own rules. but that idea of forcing deliberation is crucial. now, what are other ways that we can force or at least enjoy the benefits of deliberation in congress? well, through supreme court confirmation hearings. it's now become a truism or banality to dismiss confirmation hearings as a kabuki dance as senator biden said in 2005, a form of political theater. and the idea is senators ask political questions and the nominees dodge them and we learn nothing. i completely reject that characterization of the hearings. when you go back to every hearing since robert bork in 1987, you will find that the nominees specifically and clearly signaled their judicial philosophies in ways that proved to be prescient. so bork said he was an originalist and insisted that the constitution should not enforce unenumerated rights. justice kennedy rejected the originalist label and endorsed
5:38 pm
the right to privacy in terms that specifically anticipated his pay in to the right to define one's own conception of the mystery of life. he said a short list of qualities that should be consulted in identifying unenumerated liberties are the right to dignity. he's signaling his views in the marriage quality cases. justice souter, asked whether he was similar or dissimilar to justice brennan, said justice brennan is one of the greatest constitutional heroes in american history. and on the court, he performed just as justice brennan did. and therefore conservative cries of no more souters should not have been a surprise. these confirmation hearings are not kabuki theater but they are probably public education opportunities in which the result is pre-ordained. it's likely, failing scandal or
5:39 pm
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. but the fact that the result is pre-ordained doesn't mean we don't have an obligation to educate ourselves closely about the constitutional views of these nominees. and whether you're a republican or a democrat, even if you're a republican senator who is going to vote to confirm the nominee, you know, regardless, i would think that you'd have a civic obligation to find out exactly what kind of conservative has been nominated and whether it's a pragmatic conservative or an originalist or a traditionalist. what is the view of precedent? the judge -- former judge mike lewdic, as a conservative hero, has said there are certain precedents that should be considered super precedents that they've been affirmed by justices who have been appointed by presidents of both political parties. although he's a strong originalist, he believes that
5:40 pm
certain precedents, including roe, are entitled to respect because they've become embedded in the fabric of our law. we must find out from our nominee what he or she thinks about that question. so all of this is a function of public education, and it goes back to why your work as teachers is so important, and why we have to, in this world of partisan polarization and democratic politics, have enough respect for our fellow citizens. and c-span is really 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 c-span viewers who are probably watching this at 3:00 in the morning, i'm so 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, and that's what the hearings should be for. and that's what is going to save us as a democracy. one by one, citizen by citizen, people informing themselves about complicated arguments so
5:41 pm
they can make up their own minds. here's to regular order, and let's resurrect it. one more. i think i've almost -- you tell me. i don't want to delight you long enough as jane austen said. >> for a while, i've been frustrated with the polarization of political views and kind of this appeal to the emotional side of the issue here we're talking about. news channels, news stations, news sources. i was curious. where do you get your news? >> well, from the national constitutional center's website of course. i do start there. we have this great constitution center -- constitution daily blog which has the constitutional news of the moment. and i learn from the podcast because i'm supposed to know about the constitution. i can't have an informed opinion about any of this stuff that's coming up in the news every day unless i've heard the good arguments from both sides. these are technical open questions, and just not presuming to have an opinion
5:42 pm
until you've at least taken a moment to listen or google is great, and i'm lucky enough to do the podcast. the podcasts are great. i just -- you know, i read "the times" and "the wall street journal" and "the washington post," and i write for "the atlantic," and i just kind of google around a bit. but i don't -- i think that "the times" and the journal and "the washington post" are doing heroic work and 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 and their efforts to tell stories neutrally as cloaks for partisan stuff although it's important to get a diversity of sources. that's where i get them from. but i don't watch tv, except c-span.
5:43 pm
>> josh spiegel from ohio. so it seems one of the takeaways that i'm having is as teachers, we can control so little of what happens, right, in the world. we're just small players in a big game. however, the one thing we can control is education, right? that's our game. that's kind of what we're after. it seemed to me civic education needs some sprucing up. your organization's an advocate for civic education. what are some of the policies you think needs to take place in all 50 of our states to better improve and get an educated citizenry. so what would madison say about civic education? >> madison is so clear about civic education. he says first of all that it's absolutely central to the survival of the republic. and he supports a proposal for the diffusion of knowledge in kentucky w i think had some state support on the grounds that unless citizens learn about the science of government, then
5:44 pm
democracy will collapse. but what's really important about madison and jefferson and all of the framers' endorsement of civic education is it's not endorsement of just education in general. of course they thought education was important. but recent surveys have shown that educated people are likely to be even more polarized than people with less higher education. so we smarty pants shouldn't fancy that we're any more immune to the forces of polarization than anyone else. madison is very specific about education and the science of government and in 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 just telling people to get out the vote. voting is fine. it's important if you feel like voting. but that's not educating yourself about the structure of government.
5:45 pm
we need to teach our fellow citizens about all of 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 that's relevant to people's lives why these principles are important. how do we show that it's relevant to people's lives? you know that. you're all master 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't track our movements in public 24/7 seizing our cell phones, that it can't fly tiny drones in the air. then you can tell the story about 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 whether they paid the hated tea taxes and looked at their private
5:46 pm
diaries, this was so objectionable that the framers not only had the boston tea party but passed the resolutions to oppose the writs of assistance. and john adams said at that moment, the revolution was born. so the constitution center has a multi-facet the approach to civic education. first teaching history through storytelling. teaching citizens to separate their political from constitutional views. and third encouraging civil dialogue by bringing different points of view together. and that's what we're trying to do with tools like the interactive constitution, with the podcast and 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 introduce them into the classroom. and then of course we want citizens to try to follow this
5:47 pm
inspiring and necessary enterprise as well. and the thing about it is -- shall i end? yeah. so here's the farewell. it's just so -- it's 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 around the globe. we're seeing what countries in europe without written constitutions are doing in the face of populist threats. eliminating their supreme courts, 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 fulfill your faculties as a human being.
5:48 pm
there's nothing more meaningful than lifelong learning. every moment that 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 rise higher as human beings. so this is not an enterprise just for students in middle and high school and college although it is for them, it has to be a lifelong 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 detritus. these are irrelevancies. the difference between this gun law or that gun law is far less important than the fact that we are united by the principles of
5:49 pm
the constitution. we do converge around the principles of the declaration of independence, and red or blue americans, we are one as lincoln so memorably said. that's why civic education is important. that is why your work is so crucially important. i just want to end by doing what i must, which is to thank 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 ]
5:50 pm
week nights this month, we're featuring american history tv programs as a preview of what's available every weekend on c-span3. former
5:51 pm
>> today's lecture, as you'll, notice cosponsored by our friends at james mott -- montll


info Stream Only

Uploaded by TV Archive on