Host youve written an incredible book. Talk a little bit about why you wrote it. Im a big believer in that when you hit the Broadway Musical hamilton came out i was very pleased with how popular it became. Its not a utopian civilization by any means but there were interesting people who set in motion the government that would last for the ages and would foster the development of the greatest civilization ever kno known. I wanted to reconnect the American People with some of our founders. Host i want to ask about that but hamilton have you seen it . Guest yes ive listened to the soundtrack and waiting for the price of the tickets to go down. Host it is worth seeing because the key word thats what you were saying with hamilton makes clear thats what i see in your book there is a lovely rendition and many tha of the fs havent heard for so you cover people like that but then you also have those that are most remarkable to me and you have chapters on each of these people and i want to talk to each of them but how in the world you were a sitting United States senator to do a book that survey is not just founders everyone has heard of but people nobody heard of today. Host guest i have sometimes long recesses and pentup emotion and the powers. For date of isnt enough host i have never heard of this. How does the story come to you . When you are on the lookout they come to you gradually as friends and other people i knew who they thought should get more credit then they get. He understood the principle of federalism because they lived there for centuries. I was intrigued by the outset because it is in the name most know anything about and he had a profound impact but he is the one that Benjamin Franklin was a conduit for which disinformation flowed to the rest of the founders. Host before we get into the subject matter of the book as i mentioned to me to her late father who was a legendary figure one of the Top Supreme Court advocates and the kind of father of the modern Supreme Court bar is there an influence from him in this book . Guest without question. We talked about things like federalism. It certainly made for an interesting dinner conversation. My dad used to say there are two structural protections that are as important as any other feature. One is vertical and the other is horizontal and we call that separation of power. It prevents any one group of people from getting too much cover and abusing thospower ande government. Host tell everybody what federalism and how they are different. Guest it organizes the balance of power on the one hand and the states or people on the other. It sets up the default princip principal. A default proposition that most congress will be at the state and local level and they are invested in congress so it articulates those enumerated powers that are federal most are found in section one of the constitution and some are not reasonably linked to that accomplishment and by that i refer to the powers. It provides clearly for the congress to have the power to provide for the national defense. It doesnt specifically identify what we call the Veterans Affairs department but it complicates this because it is necessary and proper you can have pr and forces unless you know how to take care of your veterans. Everything else that isnt allocated is supposed to be reserved to the states or the people. Host lets make it concrete for everyone. A lot of states right now are legalizing marijuana and is that something that founders would have said that is something that should be left to states and the people . Guest it would have been as a matter of principles deciding whether or not you are going to allow a particular treatment or pharmaceutical product for example produced and sold. Its come up with a comprehensive regulatory scheme and we probably would contemplate a system which each state could decide itself whether to allow that or any other treatment. Host you call in the book to these principles so am i to connect the dots and say it is one that would prevent federal government from this and allow it to people to decide the legalization of marijuana . Guest it doesnt mean we can do it immediately or abruptly but i do think taken to its logical conclusion contemplates the ought to be able to invite woul and i wouldt slightly different then you. Its a matter for the state to decide. The people get to the side that at the state level and that is what the constitution does. Host would that be true as long as products are confined in state lines and would that also be combined in a state lines so what to say states could legalize her when . Guest you are talking up something produceabout somethind entirely in one state and the principle of federalism would suggest yes. It would also suggest congress can decide if there is an interstate or International Transaction involved that would implicate the federal power. Host but it is within the in the state found same constitutional view. Lets talk about the first principle. A lot of people are ignoring the founders and its even people who care about this stuff to learn about this so who are some of your favorite people in the book that you talk about that you want people to know about . Guest Luther Martin is the original antifederalist and most know he was drunk almost all the time and was a successful lawyer started out in virginia, went to maryland and was becoming the longestserving attorney general as a delegate to the constitutional conventi convention. He was so notorious that one of the clients demanded that as a condition of the agreement between the client and the lawyer that Luther Martin refrained from drinking so he got around this by taking a blue of the printed by soaking it in randy and as is a lifelong morn who doesnt drink i find this one quite serious but Luther Martin saw the constitution might have a dominant federal government that would erode upon the rights of the individual americans to be governed at a more local level. I think he was ahead of his self in this regard. Host 59 men walk into the Philadelphia Convention 1787, close the doors and dont leave for threemonth us and they have ratifying conventions and so on. They had the privilege of serving in the senate for a while. You do have these hearings for some things. Its Luther Martin wrong about that to say the convention should have been open and bought clothes . Guest it goes against the command and i understand why they closed it but you are right in suggesting it probably couldnt have happened or what didnt have turned out had they not closed it. Especially in the way that i abusing this as well that doesnt mean i would have been right but the document that they produced was good. Host do you think it should be in the sunlight . Guest the legislative process demands the kind of transparency we typically have. There are classified hearings where classified information is being discussed that cant be released. I understand that. I do worry sometimes that there is an overclassification phenomenon that can occur. Ive attended some that have been scheduled in the classified setting and where very little if any gets discussed and makes me wonder whether those scheduling it just wants to keep the press out for their own convenience. So there is a legal nuance technically that is a committee report. One of the other things you did in your career was clerk for Justice Alito in the Supreme Court and they have come up on criticism it almost functions but the process on any given day with 400 people obviously not to contemplate that camera or oral argument arent they in favor of the cameras doing that for the court . Actually was an open public process to consist of a brief that is submitted with the oral argument. Audio recordings are made available. Not everybody can see that life but it is only one part of the process. I would love it if they did open it up and a lifelong enthusiast of the Supreme Court i would love nothing more than if they decided to start televising arguments. But i dont think it is up to me as a member of Article One Branch to tell article three branch how to manage itself to require cameras in the courtroom but if they would allow cspan i would be thrilled. Wouldnt it be right for the American People . I understand constitutional boundaries and not passing legislation but but giving each other advice all the time. Would you be really giving the court . To see the way the arguments are hanged handled they may not agree with the outcome of the courts to liberation even though the court frustrates me i would hold it up to any of the counterparts. You are absolutely right. To see the caution and the care. So some people know about ehrenberg from hamilton the bad guy in the play who shoots hamilton in the duel but there was so much else. And that brings it out. But there is much more to it than that. Vice president of the United States. But then to become a defender of the little guy. With the chief justice hardly a little guy but without regard to their station they knew they were facing a trial. To be treated fairly with due regard for due process or to be rushed through it was very tempting for the Kangaroo Court approach but he didnt. But in part because of that and Thomas Jefferson continue to see him as an ongoing political threat and viable candidate. During the second term in office wennberg was no longer his Vice President he was prosecuted for treason. This was a capital offense. Tell us about that story because he conspires with the colonel. It is a Conspiracy Theory general wilkinson and there was a letter written in code and there is some dispute doubtful it was ever in aaron burrs handwriting one of the things that was shaky about the evidentiary foundation of the case against ehrenberg but that conspiracy to overthrow the United States was a conspiracy and jefferson but with that hyper prosecutorial behavior that is a heightened standard for treason so aaron burr could avoid a conviction for treason. But this is the high price of those who fight Big Government also jefferson is someone i respect a lot and most americans do as the author of the declaration of independence but even him in his wisdom and genius still had a very human and jealous political heart. Keep that in mind because the powers are dangerous. But isnt that the most central that they understood men are not angels particularly when they are in power that is why you need your checks and balances and those constraints their actions would not have surprised them. That was still part of human nature that they themselves had predicted 1785. Exactly. If there was one trait or something common that idolatry that worshiping George Washington they loved him. Almost to the point to revere him. It was all a foregone conclusion he would be the first president and they wrote article to with the first president in mind. They still left the power of the presidency relatively weak because they understood the concept that madison explained so well in federalist 51 giving a deep insight into human nature if human beings were angels they would have no need for government because we dont have access to angel we have to rely on the strict rules. Your book celebrates aaron burr with the idea that he is attacking jefferson to interfere with the prosecution. But obviously literally today there is a debate going on right now that the president interfering with Law Enforcement investigations obviously we dont have the facts but the fbi says the president ordered him to drop a criminal prosecution if you think back to what you are celebrating what does that say . We he would tell people in any age to make sure you are vigilant to protect the separation of powers and watch over all restrictions the only reason to have this is a tell us to watch that in this age or any other age. Regardless of where they fall with this president ial administration, everyone should be able to agree it is healthy for people to make sure the government power is exercised properly. In this case. I dont know. In the Judiciary Committee he testified quite clearly he has never seen political pressure brought to bear in any investigation but today jim call me as testifying but last night publicly released a written statement im still trying to reconcile that written statement with the testimony he provided on may 3. There is a lot of questions that come to my mind. He is being asked about them as we speak and i need to see that testimony. Thats fair. So i will move off of this case but this idea standing up for the judiciary that is something in todays world with the president who lost some cases what do you think he would say . That is different than going after a sitting Supreme Court justice maybe not as sworn officers of the court literally going after the job so yeah i do think he was concerned what jefferson did and wary of the due process rights. Talk about lucy. A prominent playwright dan public commentator of the revolution air a and also a friend and protege of john and abigail adams. She had concerns about the proposed constitution they ended up in a lengthy series of letters back and forth between them they got into a very punchy debate almost a shouting match on stationary written down on stationary. And was sensitive to those accusations to have monarchist type empathys she seemed to be concerned it could have a monarchy in miniature to produce those same externalities from the Previous National government that just at the time we fought a war to revolt against and declare independence. She and adams had a long spat then they could resolve their differences toward the end of their lives but not without a lot of conflict. Her big point was foreign policy. After the constitution and with the commanderinchief but they did give the power to declare war the federalist papers make it clear congress is in the driver seat and because of concerns like she had but how do you reconcile Something Like that to be in hundreds of Armed Conflicts and theres never been a declaration of war . I struggle with that a lot. Because people can disagree when you cross that line that the president has the power to order in the same way to order troops into or out of this area but at some point you cross a clear threshold with the movement of military personnel anwr. You cross into that with military personnel taking action on foreign sovereign soil to me, thats war. You have reached that point and you need an act of congress or something to say we authorize this military action i think the letter in the spirit of the constitution demands that the we have not seen that for a very long time and that troubles me deeply and we need to get back into that. It is quite striking if you read what she has said about the monarchical tendencies that almost every president puts troops on the ground over 200 times with that need to Revitalize Congress role in the space. We could disagree little bit you dont have time to get congress together in the emergency situation to think about president lincoln when shots were fired so he orders the blockade. Without question they do have emergency power with the war powers resolution. Others say it is suspect and in that respect but it attempts to find a balance with the negotiations to acknowledge within a finite period of time with the direct military action in the area of hostility the president needs to come to congress. That is appropriate still a balance that needs to be struck. It is will war. And to bomb an area even without boots on the ground the president carries the Nuclear Football and he can say lunch and in a few minutes they would be launched. Does that concern you . Is there Something Congress should do about that that congress is consulted or declaration of war . It is deeply concerning the fact we live in a world where this danger exist at all that people could die from a military strike is deeply concerning. As a society we have made a determination we want to leave gray area we dont want to hinder the ability of the commanderinchief to defend the United States. I understand what you are saying. I have yet to see a formula that would be people satisfied that he is protecting us may be he can ever use these weapons until such Time Congress can convene voting into law. That said there is an idea that comes along. Obviously you dont hamstring to retaliate but no first use . Dont use them first unless you have the approval of congress. And doing so is to protect the United States from imminent attack or imminent threat. That would be consistent with the spirit of the war powers resolution. Lets talk about another person you celebrate cannot set a goal. The law of the iroquois five areas should be bound together very strong each arrow is one nation to symbolize the complete union of the nation and united into one body and one mind. This symbolizes E Pluribus Unum. And other important government buildings you see it also in europe but the sticks bundled together by ropes or leather straps to symbolize E Pluribus Unum know we are stronger than the sum of our parts stronger together. That uruguay understood this even before we became a nation. They understood the ability to protect themselves from those who would harm them from the outside and if they were banded together. What worked well for them was the fact they were these the internal governance of each tribe to the tribe so the confederacy did not meddle into affairs it produced an outcome that was good. It didnt create a utopia but a successful confederacy this is something we will learn from the british predecessors it didnt come to us from england like so many aspects of our constitutional system but was somewhat uniquely american. It was helpful to have this distinctively american example. Benjamin franklin taught it to the other Founding Fathers it worked into the articles of confederation than the constitution. This is not there . No. Nowhere but it was on Benjamin Franklins mind when he became acquainted. He realizes could really help the young republic and it has. It has benefited us to a significant degree. With this rich cultural political diversity in this country. People feel differently. Geographically, economically there are differences and they can produce a form of government to that extent. So try to bring the founders up to the modern day over the last couple decades whether there should be Marriage Equality gay people marrying one another but to say that is a debate for the states to have with the country with a lot of different views that should be resolved at the state level or the national Supreme Court with the judicial powers but really done on a statebystate basis . That is a fair characterization. But you also have a celebration against Big Government isnt that true at the state level . You forget about which government but something that is fundamental. Why should government have any role . That is a fair question i have raised in the past with officials this is a religious ordinance why it needed to be a government decision at all . It is a fair question of why the government needs to be involved but once it does constitutional questions develop that particular question has now been decided by the Supreme Court but the argument is if not made federal then it should be decided at the state level. Or no level. So how do you decide as a constitutional scholar when is it the third box . We understand state versus federal pretty well but what about no government or no search and seizure . How do we figure out those constitutional principles . By the way this is the bill of rights intersex if you make a single decision for the entire country then you bolster government going back to that bundle of arrows it is stronger and difficult to break than people can break through and make changes and move forward at a state level if something has worked in one state but there is no mathematical formula i completely understand the question but that is a casebycase basis. In many instances people are free to decide if they want government involved if they do they can make that decision had a state and local level. Some with the idea of Big Government versus Smaller Government . A slave from massachusetts a slave in the household of colonel john ashley at his home known as the chef field separation was written recognized as natural law that human beings are free and equal and they are this way it is who we are and what we are. That language migrated to become the massachusetts constitution by john adams. Once they realized all things free and equal to have legal counsel. And in the early 1780s. One of the things we love about the story is at any given time while a slave if she was offered even one minute of freedom and lose her life she would give it up just to know what it felt like to be free. She wants her freedom that the case was not classaction. How does the clerk reconcile that give it to one person only . Typically what courts do was to adjudicate those things but she broke through that barrier a sequence of events. But to open the door for other slaves in america to capture rights as human beings. Can continue to amend that as society changes. With those features with which we are uncomfortable if for example we as a country decided we wanted the federal government then and has a more appropriate approach effectively to be amended and with that Commerce Clause and the things that could affect the Commerce Clause. And as a matter of policy to bring about that amendment process to be authorized by article five on the constitution the court felt that was reaction so we have a fix tax undoubtedly with the International Economy making it hard to do something in one state is that a proper basis . And in all subsequent cases. The problem it ignores another reality certainly in 1787 that one state has that economic effect with a spill over effect when you replicate that impact for those intrastate activities. To have the ripple effects everywhere but but with lopez there is a real problem you get when you allow everything to become federal. There is no aspect of human existence that is left beyond the federal government that was difficult to refute. And with that convention was a few miles from where we are sitting. With those articles of confederation and they called philadelphia on that basis. To have one criticism you tend to celebrate the losers more than the winners. And those who were warning again but they are generally considered but then you rightly say should we look at those standpoint for those who won . It is the central theme. Looking only to the winners. So you will get a skewed analysis with the hamilton affect we receive confirmation bias from what you want to see. You cannot comprehend for what happened in philadelphia looking at the anti federalist who tilts in federal powers it is important to look at the response and look at how hamilton responded to the arguments raised by the anti federalist. This federal power is a good thing, we need congress to regulate activities that are economically but intrastate in nature. So to refute them on the point they are making this will lead to a big powerful government. With many progressives today actually embraces and incorporates that to save most of the power will remain with the people is where that will be. And if there is any risk of anyone getting too powerful that is where most of the power is. So then to have a big debate then writing a powerful letter to the president we need flexibility but it is the spirit that is like your modernday example of the Veterans Department with chief Justice Marshall and what the opinion says is we have a debate whether the federal government but they said the government gets large enough then so be it. Tell us why that is wrong. It doesnt have to be the case that is wrong for federalism to be strengthened. So the fact there was a debate does that there is no federal power. It doesnt mean there is a blank check that congress always has whatever it wants to do it may do. If there is one thing that would have afforded ratification that congress is the guardian of its own power with functionally no limit. That is a good problem assuming that into existence. But there were limits on federal power but to push back one of madisons early proposals was to give the new congress and negative power over any state legislation. The never have omentum because that would tamp down on the state authority. But yet effectively if congress can dream it they cant legislate and have a negative power over anything. I cannot thank you enough for writing this book. It underscores what i feel very deeply this book is not political the way we are today democrats, republicans but to say a Smart High School kid should pick up the book to read it it is written in ordinary english. Thank you so much for writing that. I wrote this with the adf homeschoolers or to supplement their childs education or their own. As a judge of 45 years going from a active life making decisions and going to court to advocate a case, to judging, was that a difficult transition . Do you miss the life of advocacy . It wasnt difficult. In fact i know people who became judges and so disliked the decisionmaking process they left the bench but i was glad. I found that process while different enormous challenging and mostly satisfying. I love being a judge because the opportunity to resolve disputes, large and small with large public significance is a very satisfying role. John brown 1858 comes back to the territory with a series of parades into western missouri to liberate people from missouri with their escape to freedom. Of course they kill a number of slaveholders so the notoriety of john brown is part of this struggle that people locally understand is the beginning of the civil war. Theodore roosevelt was the shooting as president. A very avid hunter, first thing he did when he left office was organized and go on a very large Hunting Party to africa. This was prepared specifically for roosevelt with the president ial seal engraved of course he was famous for the Bullmoose Party and there was the bulls engraved engraved on the side of his gun. Fathers. [inaud
comparemela.com © 2020. All Rights Reserved.