Moderated this 90 minute discussion. That ladies and gentlemen welcome back to freedom day. A round of of applause. We have discussed the media. We have discussed the judiciary. It is now time to discuss congress. Set up by article one of the constitution. Ladies and gentlemen, please join me in welcoming our guests. A former congressman from oklahoma and also of the party versus the people, how to turn republicans and democrats into americans. Book ise coauthor of a with us. Book, thef norms ladies and gentlemen please welcome mickey and norm. Thank you. Jeff welcome, norm. Norm thank you. Jeff you have this very striking title of a book that was quite a runaway hit. The broken branch. Our topic is, what would madison think of our Current Congress and what would he do about it today . Madison feared congress as the most dangerous branch. He said in federalist 48 that the legislation is everywhere drawing all power into its impetuous vortex. What was it that madison so feared by congress and how did he Design Congress to alleviate it . Every day we will really worry about the impetuous vortex, dont we . Actually, and some ways to set the tone i would refer to the title of the book that followed which is even worse than it looks. [laughter] and then its successor is even worse than it was. Which was last year. [laughter] and before we are done i will plug the next book which is out in september. You aint seen nothing yet. Or run for your lives. The next book is called one nation after trump a guide for the perplexed, dissolution, disillusioned, depressed. Deported. Tyet to give you a clue where we are coming from. So, you know, madison did think a lot about what to do with congress. Absolutely. Before we had a congress he wanted to have a stronger congress than he had seen with the legislative branch under the articles of confederation but he worried that you could have a Small Chamber that would seize power and have its tentacles everywhere. A little bit like those machines in the movie with keanu reeves where they are constantly seeking to do damage. And that it would move in and take away from the executive branch and from the Judicial Branch and that it could bring about that tyranny of a majority of a small group. So he wanted to be sure that you had not just a separation of powers but checks on the power of the legislative branch and checks and balances within that branch. And of course a lot of discussion over how you do that both within the institution more broadly and in counter posing the house against the senate. Tell us more about the madisonian checks and balances that he implemented. Why was madison confident that we can have a constrained congress . Madison, first of all, believed that people who had some degree of power and position would have impetus to hold on to it. To keep that strength. They would be direct representatives of the people themselves, one of the most important parts of the constitution being that every senator and representative must be an actual inhabitant of the state in which they are elected. They are intended to be the voice of the people. Not just obey the people. He was a berkian and but did not know it. He imagined people in congress would be jealous of their prerogative and understand their prerogatives and be a check against checks and balances was his key more than separation of powers he thought there would be a check on the executive but what has happened is you have members of Congress Today, norm talks about worse than it was or worse than it could be or whatever, the problem is you have members of congress to do not really understand what their authority is. So i once gave a talk in an Oversight Program and i was speaking to a large group of top level staffers who were complaining because trying to get information from the executive branch, they were filing freedom of information act requests. And i said, you know john wouldve never said that. He wouldve said, get your tail done here or you will pay a fine. Madison envisioned a congress that was familiar with the madison envisioned a congress that was familiar with the constitutional obligations that they had to make sure that the people were left in charge of their governments decisions. And i think in the latest discussions, you have been asking what would madison think of this or that. Madison would look at Congress Today and i think you would be appalled by how wrong he was in trying to imagine what people would be like this far in the future. Norm, obviously i want to dig in to Congress Today but before we come to the constitutional and structural changes in Congress Since madison wrote it which may offend her mind his which may have undermined his vision. In our original bill of rights it said there should be one representative in congress for every 30,000 inhabitants. And that it passed, there would be 4000 congresspeople today but madison thought that kind of representation was important. What did he have in mind with that . And talk about the other changes. Including the direct election of senators, 17th amendment, ranging up to the filibuster from last week. I think it is also important to remember that madison had just a whole set of different balances in his mind as he thought about this. Wanted to have a Congress Executive check an that wanted to become a dictator. They talked about a one year term and madison also wanted to have a recall provision just in case. We know how obsessed they were about the tyranny of the majority. The balance was to create a senate that would not be directly elected. That would be, as we now know from the very famous and overused discussion where jefferson talked about the saucer cooling the hot passions of the people. Something a little bit removed to be there to check the house as well. Now, i would mention a few things that i find especially troubling as we look through the time that has passed. Remember, this was not simply madisons vision. It was a whole set of compromises. Large states, small states, trying to get enough support so you can actually get a constitution supporting the convention and a support with the public as a whole. It was keeping states together. I look at it now and you not only have a congress where people represent well over 600,000 or some hundred thousand people and sometimes as many as one million people. But, you also have a senate where if you look at the vision when the constitution was created, the difference in population between the smallest state and the largest state, was a tiny fraction of what we have now. So of course you are going to have more power there that would go to smaller states. Where you get two senators the same as larger states. And if you have a population gap that is 60 or 70 to 1, the Electoral College and balances side, you are getting a senate where more and more power goes to smaller states. And what we see in the modern era is the smaller states are more homogenous and more white and more rural in a country that is becoming more diverse, more heterogeneous, and more oriented towards urban areas. So youre out of sync in many ways with the population as a whole and how you deal with that without a significant constitutional change, i am not sure. At the same time, if you started to make the house larger, which would bring members presumably closer to the people, you take away from what i see as the fundamental law of our system compared to a parliamentary system. There, the Word Congress was chosen deliberately. From the latin meaning to come together and parlay from the ranch word meaning to speak. In a parliamentary system you have a government, the government makes policy and the parliament through its majority passes the policy and that the parties argue. They talk. Ours was supposed to be bringing people together facetoface where they would debate and deliberate hand organically develop a larger sense of what might be good for the country. Now, for a whole set of reasons including airplane travel, campaign finance, and so many other areas, they are not debating and deliberating. Now you do not even have a sense of heterogeneity even within the congress because combined with the redistricting process, people represent echo chambers in homogenous areas. What i see in the house, the larger problems mickey just talked about so eloquently that we will get to his side, is people talking past one another. There is not debate. In the senate which is supposed to be a Great Chamber of deliberation, thats not. What madison had in mind has not worked quite the way we wanted it to and we have to think seriously of their ways to bring that back. The question of whether the congress is acting as an independent branch put off to the side. Fascinating. The importance of deliberation and debate lays beautifully. The eloquent discussion of the last panel where the judges talked about the importance of sitting down respectfully and deliberating with each other. Mickey, your wonderful program, which brings together local and state elected officials of different perspectives around a common table begins with a series of readings about the tension between populism and constitutional listen, we read federalist 10 and about the ancient greeks and other things. What is striking about these discussions is state and local people say it is better on our level if there is more of a deliberation and discussion. Why is it better on the state and local level in congress and why do you think this has eroded, this idea about madisonianism has eroded . One of the things it is up in the last couple decades as members of congress do not have personal relationships anymore. The work week in washington is short. You go back to your district causally to raise money. To raise money for other people are belong to your political club, which is all the parties are. And because of this, it is really hard to sit down and do what they are here to do. They know each other, they have been know each other for a long time. What one member knows about another member of congress is that person belongs to the enemies team. That has a big airing on what has changed in the interim. I think today, most members of congress are so driven by the systems that we have put in place about how you get elected, in my book i talked about sore loser laws which most people dont know about. At the laws and 46 states mean that a the hardcore most ideological, most partisan, can control who has access to the ballot. Redistricting is not as big a problem as any people think it is because it does not affect the senate and i dont think the senate has any great improvement over the house. We always considered the senate kind of the lower house anyway. But, what has happened is that you could just see this. Right now it would be judge gorsuch becoming Justice Gorsuch and that process. Before that, Merrick Garland being ignored. William o douglas was confirmed unanimously. We are looking at temperament, reasoning, education, experience. Which club do you belong to is the question now. We are so driven by partisanship and little disagreements with it is also the fox news and msnbc and the way the primaries are. We have really driven ourselves, bill bishop has talked a lot about this with his book the big sort, but is not just members of congress who are divided and wont talk to other people on the side of the aisle but it is also in america. Its not polarization, its partisanship. That is much worse than anything madison wouldve ever and have ever envisioned. To play out that provocative point. If partisanship is the problem, is it right that madison would be surprised . He did not anticipate the party so extreme that they reduce the size of the Supreme Court to deny incoming jeffersonian representatives to make appointments. Isnt that much worse . Is it because people are geographically segregating themselves into echo chambers or is it worse . Norm mickey calls it partisanship. I call it partisan tribalism. It has not been unknown to america in its history. The sense of punishing enemies and pitting one side against the other and stretching the rules to the limit was there. That was at a point when we mostly did not have roles and we were at establishing them. I think madison, if he had a little time to study where we have gone and where we are, would have hoped that we would transcend some of those things. Of course, he did not think there would be Political Parties but he did know there would be factions and he wanted to make sure we could control ambition and control those factions and again, the debate and the deliberation was supposed to be where you could see people coming from very different backgrounds and after you had gotten to know them and spent time talking back and forth, you would appreciate where they were coming from at least. Aft himer debate if you had this is where missed. Oyniham is youou lost, you could say it better. To make be appalledould that 140 years later, we are here. The big sort, i think is a significant problem but i do think it is the only problem. Redistricting does not only applied to the senate. You have a lot of states that are quite heterogeneous and diverse. And you do i think have a difference in the senate. Taking a good example, the immigration bill factoring the obama term that half the senate, with a broad bipartisan vote that could not even come up in the house of representative. But the tribalism has taken over in the senate. And i think what madison also knew was that you can set up a system with a constitution. With laws. With rules. But norms drive it. They are like the and a skeleton of the system and if you do not have the norms than the whole process begins to erode and fall apart. What i see is a combination of tribal media as they have emerged and social media magnifying all of that and leaders who have lost sight of the larger purpose of what they are doing. Who have allowed those norms to disappear. You know, in the broken branch, tom and i wrote about that trite phrase the regular order. That is a really important part of what congress does. Mickey was a champion of the regular order when he was in the minority, whatever it might be for whatever set of reasons, it was mostly because of his reverence for the system and the institutions and that has gone by the boards now. Weve seen it over many, many years. You know, the filibuster, the rule was in place from 19752013. The institution did not fall apart or 30 or 35 years. The norms that operated were such that you could argue having me threat of a higher threshold was an incentive for leaders to work across already lines. When you have a leader who says, nevermind that i am just going to use that for everything as a weapon of mass obstruction, it is just going to fall apart. I think that would leave madison quite distressed. I hear norm saying the problem is part of tribalism. The symptoms are an inability of congress to deliberate and function and as a result it is not exercising its constitutional role. It is refusing to declare war or even to evoke the war powers resolution, and it has delegated mass authority to the executive branch that some brand as unconstitutional. Is that diagnosis right . You recently expressed some sympathy for the Freedom Caucus for at least trying to check the congress. Should it do more . I was not endorsing. What i was saying was the Freedom Caucus was saying to the president what i wish paul ryan had. We dont work for you. You are not the boss. You are a separate branch. That did not happen. I want to address one thing. There were parties and factions. But they werent this thing. They would come together on this issue or that issue. You would have the mercantiles. The people that were for this terrible or that care. But they were always together. Just that time. Now you see it all the time. All the democrats are supposed to be on one side, all the democrats on the other side. Was not speaker of the house, she was speaker of the credit party. L ryan was not speaker of the house, he was speaker of the republican party. That has become a large problem. There is very little looking at the substance and merits as much as youre looking at which party is bringing it forward. If you try to stand up and say, no, i happen to agree with that position that the other party has brought up, you are going to get killed in the primary. So much of the problem we have is systemic. It is the incentive system. It is the reward system. What you reward is what you get, when he punishes what you dont get. We created a system in which we reward those people who stand firm on principle, never compromise and we punish those who say, i want to sit down and try to work out a common solution. Let me put on the table. This commission you agreed to join and we are here to launch is cochaired by these extraordinarily bipartisan coalitions. They disagree strongly about politics but are very much together on the notion of constitutional checks. Is that a hopeful sign . Could we start to put it on the table . Identifying solutions that could respond to the big sort and resurrect madisonian deliberation. I sure hope so. I wish i could be more optimistic and i thank you for creating this opportunity which is very important. One of my heroes over congress was the late bill from minnesota. For many years, when he was in congress and i would say after he Left Congress he stayed a hero because he was one of the first members of the independent office of congressional efforts ethics and that was a thankless task but he did it because he loved the constitution. He and his wife used to address the incoming reshma and classes for a couple decades. The pitch from bill was, this is the greatest experience and the greatest honor you could ever have. The number of people who have actually been elected to the house of representatives over the arc of history is a tiny drop in the ocean. You will be part of this great institution. Part of it was, bring your families to washington so they can be part of this great experience. Then it faded away. Frankly after Newt Gingrich became speaker and basically told his members that this is a leper colony. Your here to clean up the leper colony but dont get leprosy and certainly dont have your children get it, either. Keep them away from here. It created a sense of antipathy towards the institution. Members came in thinking they were not part of bigger than themselves. It was not about themselves, it was a crusade to blow up government as we know it and that has moved now to an even higher level. I have been around washington for 48 years and i have known a lot of members of congress and i knew a lot and the first 20 or 25 years i was there who really cared about the institution. Devoted themselves to making it better. A norm that the late political scientist don matthews called institutional maintenance or institutional patriotism. The number of members now that care about their own institution is a tiny, tiny fraction of all who were there. They are there because it is a vehicle to accomplish other things. Whether it is their own ambition or a narrow set of ideological goals. If that is what you have, then the notion night you will do oversight of legislative accomplishments to make sure that they are carried out by the executives the way they are supposed to. That you will monitor your own internal ethics. We saw an effort this time to blow up that independent ethics process. That you will be a check on the president and his people including through the nomination and confirmation process in the senate, or if you have evidence of a kleptocracy developing in the white house or executive branch or if you have misdeeds conducted by an executive at for policy or elsewhere and theres just no concern about those things. And that is really troubling. That you have got at least a few people, some of them former members, some of them one who has been heroic in terms of his willingness to take on his own parties presence is an outlier within his own party. A real outlier. Where are we going to find others . That is the challenge. Host is that the constitution that will unite both sides, as it has been a challenge with this commission. We have downstairs and incredible proclamation for from james about mexico and pope says the mexican troops have crossed the border and therefore he is allowed to respond without congressional authorization. Abraham lincoln says, shall be the spot where mexican troops crossed the border, because without that spot you have no constitutional authority. As a result, i can imagine that making constitutional arguments. What institutional changes would you suggest would allow that constitutionalism in this congress . One of your fellow brits, bernard krick wrote a book called in defense of politics, where he argued politics is the way i free people govern themselves. Today the idea that politics is a great calling has disappeared. People who watch msnbc and fox and all the others, they seem politics as about outcomes not process. What james mattis and was about was about process. What the constitution about is about process. The deliberative way in which we thoughtfully solve our problems together as a people. More and more in our society now, we have a sense that this came up earlier when we were talking about the left now is suddenly against Big Government, they want states to make their own decisions. Its about what outcome are you trying to get . The idea he mentioned it, regular order, the way the congress could go about you have to go back to a system where you make your decisions not from the top down, not based on your party ideology, but lets sit down, look at what the arguments are coming to vote passionate and dispassionate interests and this interests, and talk together about what is the problem, what are the solutions, which ones make sense. But you have to have public support for that. The more the public is demanding the outcome they want rather than a thoughtful response of reasoning system of government, we are not to get it. I know we are over jeff, but a couple points. The first is its worse than it looks. We have parliamentary parties now operating in a fashion that does not fit our constitution. It is bad enough when you have one party having control of all the machinery. If you have things with one party alone, have the country will see the outcomes as illegitimate. When you have divided government you could end up with an inability to act. The second point which will make our last speaker, george will, have apoplexy, if you go back 30 years its a cliche but its true you have people in a community who have done important things. They were lawyers, teachers, people who worked in different aspects of the community. Community leaders might go to them and say, we have watched you for a while, you have a great reputation. Now its time for Public Service and we will help you get into congress. You have people selected and with the incentive to come in who were there for the right reasons. Imagine doing that now, youll go to somebody and say, i have watched you do these incredible things, you have been an important feature in the community. We want you to run for congress. Heres whats going to happen. [laughter] here is what is going to happen. From the day you agree to do this, you will be spending 70 of the time raising money so you can use it to run against your opponent, shred the reputation that your opponent has developed which is why he is running, and your Campaign Advisers will dance a jig if your opponents childrens come home from school crying saying, i didnt know daddy or mommy was so awful and i cant go back to school again. Then if you are lucky in this coarsened culture, you will get elected. Once you get elected, you will be spending 70 of your time running off the campus of the capital to go to designated places where you can do call time to raise money for yourself and for your tribe, but also now because you have to get insurance and some anonymous outside group decides to parachute in in the last weeks of the campaign with 10 million against you, you had better raise that money, find a sugar daddy, or have a bank to make it work. In the 30 of the time when youre not doing that or running to the airport to go back home, you wont be doing anything to solve policy problems anyhow. This is discouraging. Dont discourage him, i want him to run. [laughter] i want to take an aspirin. Its a miracle we have a number of fine people who are in it for the right reasons, but these are also things that i believe would have madison saying, oh my god what happened . Mickey, give us hope. [laughter] norm reminding us that its 10 times worse than you thought it was before. Educating us and giving us a great agenda for the next two years. Please join me in thanking our guests. [applause] very depressing. One more panel and then an incredible keynote address. Got a sneak preview of the address from george will. Now its time to talk about the presidency. We have a Remarkable Group to talk about the presidency. I will introduce some now and we will begin our discussion. I can do this without notes. I will introduce some now and we will begin our discussion. I can do this without notes. They are susan herman the president of the aclu, john malcolm of the heritage foundation, and John Harrison of the university of virginia law school. Each of them will bring an extraordinary perspective to this crucial discussion. Please join me in welcoming them. [applause] welcome. Great to see you. So glad you are here. John, you are a preeminent scholar of James Madison who we just learned on the last panel, feared congress more than the presidency. After all, the presidency had few enumerated powers. Why was madison afraid of the presidency and what was his vision of what the presidency would achieve . Great question. One of the problems in dealing with anyone who is both a theorist and politician, and madison is both, is trying to sort out the theoretical reasons he gave and Political Considerations he had in mind. Its true that at the federal Convention Madison was strongly in favor of a powerful presidency in the sense of having more power in the presidency than in the senate. Once the senate was going to be elected from states, small states would be overrepresented. Did madison theoretically believe that single individuals should be in charge of foreign affairs, military affairs, because one person can make decisions more quickly and rationally than a collective body can or did he support president ial power because he figured virginia was likely to dominate the Electoral College and a lot of president s would be from virginia starting with president washington . His theoretical position both at the convention and the First Congress was unity in the executive is extremely important, thats why he was a supporter of president ial control executive branch and the First Congress. He certainly spoke in favor of president ial control over the executive branch, which is different from having a position as to how broad the power of the government should be in general. He was what would today be called the support of the unitary presidency. Again, the theoretical reason was, you cannot have an executive branch run by committee. It has to be run by one person. Again, how much or was he motivated by the theoretical consideration rather than practical politics . Hard to say. My next book is on William Howard taft. 1812, election of roosevelt said the president can do anything the constitution does not explicitly prohibit. Was that an important turning point that took us away from the madisonian conception . At the time of the Constitutional Convention the country was in trouble. It had the articles of confederation for all those years and it proved to be an abject failure. I had to do something, they were surrounded by Hostile Forces engaging in protectionist measures. They needed an executive. But they tried to limit that power. But, there has always been this tension. Even George Washington didnt consult with congress before issuing the neutrality proclamation, kept us out of a war between france and the british. Thomas jefferson did not consult congress before testing the bounds of the treaty clause and before doubling the size of the United States with the louisiana purchase. Abraham lincoln was referred to as the new dictator for suspending habeas corpus, issuing the emancipation proclamation, spending unauthorized funds to increase the size of the army and navy. Other president s have paid more attention to constraint. For the most part, the general public tends to applaud president s who test those boundaries. If they dont act they are accused of being lame ducks, with the exception of richard nixon. As john just said it ebbs and flows. The public is in favor of figures president to test boundaries. For a long time, progressives applauded Franklin Roosevelt and barack obama, who used executive orders to do some big things they couldnt do through congress. Conservatives and republicans did the same kind of things under george w. Bush. Now we are seeing both concerned, asking whether we have too much president ial power, executive orders being dangerous, and whether we need to rein in the presidency. Is that accurate, opportunistic, or just correct . The aclu is correct and madisonian. I think the whole idea it doesnt have a wasabi on how much power the president should have in congress because i would depend on how much the president as promoting rights as opposed to not. But where we are is with a lot of the things that are baked right into the constitution. John harrison was describing the view that congress is a greater threat to liberty. And, one place where madison made an exception to that view is for war powers. He said he was concerned that war powers were the dark nurse of executive aggrandizement. I think what he meant by that is that congress has to identify who the enemy is and said it what the objectives are and then the president gets to decide on the strategy. Know it has been a long time since congress has declared war. Sometimes congress has authorized the use of force, on many occasions there have been president s with used force without waiting for congress to acquiesce. We have become accustomed congress has relegated itself to a backseat. Structurally thats harmful. You were talking about madison vs. Theorist. As president madison was the first president to ask congress for permission for a declaration of war for the war of 1812. The aclu is nonpartisan, so we can legitimately claim that we are not only coming to this principle because of who is president now, we do think that President Trump should be consulting with congress before invading syria in the same way without barack obama should have been consulting with congress before strikes in syria and iraq. I think this is enormously important. I dont think they are anything wree there from the beginning, but we have forgotten about them. Thanks to the aclu for their consistency, which is impressive. Thanks for reminding us of these phrases, dark nurse, impetuous vortex. [laughter] john, the constitutionality of syrian intervention. Both parties have engaged in military actions without congressional authorization. We just did a great podcast on monday at Columbia Law School about the constitutionality of the syrian invasion. Constitutionally, did the president act within his authority or not . The reason i think that is a hard question, is because one of the large questions about the allocation of four powers between the president and congress is, to what extent can Congress Give the president standing authorization to use force . As opposed to authorization with the one madison requested the start was called, the war of 1812. Probably, congress can to some extent, authorize the president to use force in circumstances without requiring a specific declaration of war. The next question is, to what extent did the statute that created the military, especially in light of decades of practice by president s, of using armed forces to advance what they think is for policy and, to what extent do the statutes constitute standing authorizations for the use of force . Thats a difficult question. Im not sure about this but i will propose one thing that is consistent with American History going back long way with the president is authorized to do is use military force without an episodic authorization, provided it is consistent with International Law. That would explain why it was ok for president mckinley to say the United States will participate in the boxer rebellion which was consistent with International Law at the time. The hard question about the use of force against syria if you think thats what the statutes mean yes, provided it is consistent with International Law, was that consistent with International Law . Quite possibly no. I do want to emphasize the number of steps necessary to get to that conclusion. Im a law professor so i will be legalistic here. I do think that kind of analysis is necessary. Thank you, thats an elegant and nuanced answer. Its a hard question. I would like you to turn to this broader question. You suggested that the imperial populist presidency has been supported by the people. You have heard all these discussions about new Media Technologies and a decline in institutions that have increased his populist pressures. Do you believe the modern presidency has become too strong in light of these populist pressures . If so, what can we do about it . All Start Talking about war powers. There may be a good constitutional argument there, but its late in the day. Originally congress was given the power to make war. They changed that to declare war. That was significant, the ability to declare war. Ever since harry truman had a Police Action in korea, we have cambodia, granada, libya, serbia. Now syria. Congress must stand up, they want to avoid political risks for monetary or security action. Been on the public doesnt look to the to keep us safe. They also know that the public does not look to them to keep us safe. They would do is being hyper polarized, totally dysfunctional. They now look to the president to do this. Congress has goma whether it is or social media or the president power, congress these powers. T of so they will make these National Security decisions. The no longer think about institutional integrity. If the president is somebody up there partying, they will support the president , even if the president is encroaching on the constitutional prerogatives, the body in which they serve. They have created a bureaucracy, all sorts of executive Branch Agencies. They have ceded warmaking authority to all those executive Branch Agencies without pushing back. They are relying after the fact on oversight hearings which are totally insufficient, to get the job done. If youre going back to your madisonian vision, he wanted people who would be stronger. Ambition to counteract ambition. And there would have to be the constitutional tools to resort to those sorts of challenges. Over time, congress has been asleep at the switch. The president certainly has an awful lot of power, maybe thats good maybe thats bad but they have to flex their muscle muscles to bring it back. We are getting to the solutions phase. We just heard you been asleep at the switch. We have this populist presidency. What can americans due to rain rein in a presidency that seems to be more constrained . The principles, structures are there in the constitution. We dont have to make them up. What john is saying, completely agree that congress has been asleep at the switch. Therefore, many president s have taken advantage of the idea that they think it is now their decision. But i think the fact that congress has been abdicating for years makes the ideals and the structure of the constitution wrong. Madison has a lot to say about the problem of giving decisions important as were powers, with who will make war against, assad, isis, what are our goals, for how long . You have a lot to say about the dangers, the unilateral decision. What the aclu is doing, we have talked to congress. I dont know how you get congress to shoulder that responsibility. They dont want to because they think it is unpopular. We go to the courts and have the courts either try to get congress do what theyre supposed to be doing, or tell the president that theyve gone too far and have violated rights, structures, etc. The problem weve had come up we bring a lot of lawsuits since 9 11. What we have run into is the courts have abdicated the courts opinions about things like extraordinary rendition and torture and many other kinds of places where we have tried to sue federal agents for involvement. For very credible allegations of american involvement in torture and rendition. The courts read opinions that go on for hundreds of pages about why they cannot possibly talk about is it constitutional or political. Publishes, immunities, actions, to meet this is as if the courts are doing this to barricade in another area cup area, when they sued obama about whether the order was constitutional, the Supreme Court added a question that he had been taking care that the law be faithfully executed. I wondered if hypothetically, we hope that he of raise the resolution and reports to congress about what is happening in syria. Too, would we not want to see the courts entertain to take care of the challenge. This constitutional structure is there. We have divided work power. We also have the war power resolution. Fascinating. You dourts been to imagine them becoming less so . We saw the response of the travel ban that seemed to be not to be not consistent. Imagine courts today checking the president ial authority from exceeding its laundry . Boundary . I can imagine it. It would require that they understand some of the things that they have said that could be misleading. The political question doctrine is a principal that there are certain decisions to be made by political branches. To some extent, that is the case. The much harder question is what limits does that pose on situations in which the court can get involved. Those, thet some of lower courts, have taken the political question principle to ar. Too f at the time of the framing, it was understood to be their function. Is thesturbs the courts possibility that if they are called upon to protect private rights, they will in the process be making National Security policy. They do not want to do that. It seems to me that the solution distinguisho try to what kind of remedy the court has asked for. Asr it is some broad opposed to damages for somebody who was actually injured. In nationalid that security cases. I think there is a role for them. Again, details mattered. The remedies that they give, whether they are able to protect individual rights without making policy is a difficult question. It is the crystal crucial question. That was great. National security is a especially tricky area. Should the courts check president s domestically . Drama with nexen and clinton can you imagine the courts checking the president domestically . And should they . Think they should. Courts are the people who are enforcing separation of power. It seems to me a primary instrument to protect all liberties. I am skeptical as to whether they will. Massiveident has this pure accuracy. Pure rock is the bureaucracy. It is a huge, powerful thing that the president has. There is the suit decision in which they upheld president roosevelts executive order that interred people of japanese dissent. Descent we do not have a great history of this. Doctrine shows an incredible amount of deference. In my mind, the job of judges is to interpret the law as best as they can. Can they . Yes. Should they . Yes. Will they . No. Downstairs, original copies of the order downstairs, original copies of the order he mentioned about entering the japanese. Interring the japanese. Are there other one . Other laws that could constrain the president . Congressionalthat dysfunctions that he talked about so vividly, do you believe that congress should be checking the president question mark the president . It is not likely that congress will do that. The importants case tomorrow being heard in Northern California challenges the threat of the administration. We think there is a very serious issue with the federal government trying to pressure the state. We do not have time to get into the details. That is another piece of James Madison bedrock. The checks and balances are important. He was the author of the virginia resolution, where the state of virginia adopted it to petition in 1978. We should not only be thinking about the federal government, but the states. Over the aclu has members. They all want to do something. They all want to know what they can do. We started an Organization Called people power. Org. It is training people on how to protest come out your rights and responsibilities. We try to use we the people. I think we need more of the people. That is exactly what the Constitution Center does. It seems like these days, we should not be not everything is a political more shock test political test. If we do not agree on what these fundamental principles in the constitution, if people do not learn them, i do not see a way out. [applause] thank you for that wonderful congratulations on your great success. We hope that some of those aclu members joined the National Content constitutional center. Go to the website. The reason you need to do that and the reason this conversation is so important is because you need to educate yourself on the importance of the constitution. Horizontal and vertical checks and balances, constitutional democracy and the rule of law will not survive. And freedom will atrophy. A superb panel. I want you to join me in thanking them. [applause] it is now time for our keynote address. Our speaker needs a little thatduction except to say he is one of the leading public intellectuals of our time. He has shown by his writing and scholarship, such a principal. Issolution devotion awarded he has steadfastly defended the principles of constitutional liberty. I cannot think of anyone in america better able to in cap encapsulate the tension between populism deliberations. Like all the speakers in todays symposium, esther wells has come here to donate his time mr. Wills has come here to donate his time. I am so honored that he accepted our invitation. Join me in welcoming our keynote speaker, george will. [applause] thank you very much for that overly kind introduction that phrase that all not all forms of inflation are painful. [laughter] thank you for arranging to have this timely meeting about this important subject. Spring has sprung and baseball has begun. [applause] loveh from phillies fans, is in the air and two words are on millions of americans lips, the words are chevron deference. I exaggerate only somewhat. It is notable and i would argue on balance healthy that the language of the law and of constitutional law and aspects of the Administrative State that are constitutionally problematic is such a large part of todays political vocabulary. Which,ter an election in according to one important exit cited theof voters composition of the Supreme Court as their foremost concern. The questioning of chevron deference reflects rising nonequilibrium about our madisonian institutions, the anxiety arises from the swollen role of the presidency and other executive agencies, and the dereliction of judicial duty and policing the boundaries of the separation of powers. We are meeting this evening at the National Constitutional center. And one of the nations, the world great urban spaces. Rich in historical resonance to consider the intersection of something old with something new. What is old is the madisonian constitution, created in this space. What is new is populism as a fighting faith, i know michael to the madisonian project and to constitutionalism generally. Populism this filled to its essence is political philosophy distilled to simple majority. As a. The majority the belief that majorities are virtuous and that virtuous or not, they should encounter minimal institutional impediments to the swift translation of majority desires into public policies. The premise of the project is diametrically opposed to that. The premise is that in our republic, majority rule is inevitable but not inevitably reasonable or equitable. Therefore, there must be in institutional architecture to refine the public will buy multiple filtrations that prevent impulsive politics. It is populist impulsivity that , combined with the grotesquely swollen nature of the modern presidency, finds expression in institutional phasers him, whereby a single individual claims that i can fix it. Madison said although the will of the majority is in all cases to prevail, that will be rightful must be reasonable. I will amend the great madison. He should have said the following, because the will of the majority is to prevail in all cases where the government acts, for that reason the scope of Government Action should be strictly circumscribed. Because my argument is against permit me a brief autobiographical digression. Before i turn to journalism or as my father s father said, i sank to journalism i prepared to be a professor of political philosophy. After studying in england, i applied at a distinguished law school and princeton Doctoral Program in philosophy. You can measure my scholarly seriousness by the fact i chose princeton because it was midway between two National League cities. One of which we are in. Were it not for baseball, i would be a lawyer. [laughter] however, lawyers dealing with constitutional law are doing political philosophy. It is an american paradox that our nation, which is philosophically disposed about wariness of government, the elaboration of the founders philosophy is done through and by a government institution, the Supreme Court. The title of my princeton doctoral dissertation was beyond the reach of majorities closed questions in society. Some of you might recognize the language. Jackson wrote the very purpose of a bill of rights was to withdraw certain subjects from the vicissitude of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. And other fundamental rights may not be submitted to a vote. Outcome of no the elections. Itwas being founder the most important word in the declaration of independence to secure those rights. Not to give maximum scope to majority such as the one that enacted the West Virginia law mandating black salutes. Salutes. I came by my wariness of the by growing up in lincoln, illinois. I lived in the twin cities of champagne and herb and a, and urbana, which are contiguous. Champagne was essentially created by the illinois central railroad. It did not like its treatment by urbana. Urbana is the county seat. A railroad attorney from springfield did business, this attorney, abraham again, was in the courthouse when he learned of the enactment of the kansas nebraska act, it was his recoil against this act that ignited his ascent to greatness. The act introduced by stephen douglas, the illinois democrat, empowered the residents of those territories, kansas and nebraska, to decide by voting whether or not to have the institution of slavery. The acts premise was the principle of popular sovereignty is the essence of democracy and democracy is the essence of the american project. Majority rule should begin be given maximum scope. Lincoln disagreed. With controlled patients and the evidence. The most luminous career took its bearings from the principle that there is more to the american purpose and more to justice than majorities having their way. If justice is what said it was, if that is justice in the interest of the strong, two things follow. Lincoln was wrong. Douglas was right. In arguing that slavery in the territories was whatever majorities in the territories wanted. The second conclusion that follows is that in democracy, the essential machinery of justice is the adding machine. Justice is known when the votes are tabulated. Period. Lincoln knew better. Today, however, simple majority finds it practice in a laboratory is presidency. Evan randolph was not wrong in discerning in the office of the presidency, the fetus of even know the, constitution is reticent about president ial duties, beyond conducting diplomacy, making appointments and nominations, commanding such military forces as congress creates, and taking care that the laws are faithfully executed. If George Washington had not been waiting in the wings, the Constitutional Convention might have devised a different president ial office. And if virginias ratifying convention had rejected the constitution, as it nearly did, the soft wax of the president ial office would not have received washingtons stamp because he would not have been a citizen of the United States. Jefferson discontinued the practice of president s delivering in person state of Union Addresses to congress because he considered it like a monarchy and therefore offensive. Todays spectacle of state of Union Addresses with the two parties excuse me. With the two parties delegations bring approval or historically pouting, we owed historically to Woodrow Wilson who we started the tradition restarted the tradition of state of the Union Addresses to congress. Madison was so wary of president ial power and so committed to congressional supremacy and sovereignty, that as president he discontinued the practice of his predecessor, jefferson, of lobbying legislators over dinner. His successor, james monroe totally subscribed to the doctrine of congressional supremacy and the idea that president s existed to execute the will of others, that he was utterly silent as president on the burning issue of his day, the admission of missouri to the union and the status of slavery in louisiana territory. However, in his 1933 inaugural address, Franken Roosevelt rooseveltfranklin called for a temporary the parts are. Departure. The temporary departure has produced the following reality. It has produced the following visitors to a utah Senators Office see to stacks of paper, one is a few inches tall. It contains about 800 pages. It is all the Laws Congress passed in a particular year. The other pile is 11 feet tall and contains 80,000 pages. Those pages contain all the regulations proposed and adopted in one year by executive agencies. Logically, executive power is secondary. Having as its defining duty is execution of the result of legislatures primary power. Until the late 1920s, the election of the president was doubly indirect. He was elected by president ial electors who are elected by state legislators. Madison warned that quote enlightened statesmen will not always be at the helm. Predicted a constant probability of the presidency being occupied by characters preeminent for ability and virtue. Hamilton was assuming that people would have the virtue to appreciate virtue. [laughter] that assumption is more complicated by modern communications technologies, which have served the presidency. In the summer of 1901, president mckinley at his canton, ohio home, was approached by a photographer. Mckinley laid aside his cigar, saying we must not let the young men of this country to their see their president smoking. Good grief. This was the fetus of the idea that president s are and should be our moral tutors. Fetusre roosevelt was the of the modern presidency, the first president filmed by a movie camera. His cousin used to radio to make the presidency intimate with the public. Television is enslaved to cameras. They are superficial newsgathering instruments. Television needs something to point cameras act. Television needs president s to simplify this need. Twitter might have been invented for a president who became president because he can say everything he knows about anything and 140 characters. [laughter] president grant had a staff of three. President cleveland opened the white house doorbell himself. Soon there was an arms race that the executive was bound to win. James q. Ical scientist wilson noted that institution and rival is relationships with each other come to resemble each other. His dear friend and mine did the iron law of emulation. Pat moynihan noted that in 1902, Theodore Roosevelt built the the president ial staff of three or four people did their work in the white house living room. In 1903, the house of representatives built itself in an office building. The senate followed the next year. The presidency would thrive as the rhetorical presidency. President s would eclipse congress by being leaders. The term leader appears 12 times in the federal newspapers. 11 times, disparagingly. The founders believed that president ial appeals to and manipulation of Public Opinion would be an anticonstitutional preemption of deliberative processes. There was, until this century, a common law of president ial rhetoric. President s spoke infrequently and about little. Washington averaged three public speeches a year. Adams, one. Jefferson, five. Madison, who was president during a war that burned down his house, gave none. Until the 20th entry, the president communicated with the legislator legislature, not the people. And communicated in written messages suitable for deliberative reasoning. Then, modern technologies of transportation and communication gave president s new capacities. Woodrow wilson supplied a theory , both progressive and populist, for using those capacities. President s, he said, should engage in interpretation, meaning the discovery of what is in the hearts of the masses are what would be in their hearts if the masses were sensible. Soon, president s were everywhere, moving about by railroad and airplane. They were on the air by radio and television. America was on its way to todays notion of the president as tribune of the people. Constant auditor of the nations psyche, molder of Public Opinion. The hope of progresses making progressives, was by making popular and charismatic president s the focus of the nations political consciousness, the public would be content to be governed by the attached, this interested, anonymous experts, that they would be cloaked in derivative democratic legitimacy. I have often thought that the most important decision taken in the 20th century was the decision of where to locate princetons graduate college. College is located where it is, away from the main campus, rather than on the main campus where the universitys president , Woodrow Wilson wanted it to be. Wilson, disappointed, in one of his tantrums, resigned from princeton, went into politics and ruined the 20th century. [laughter] and exaggerate somewhat. He was the first president to criticize the american founding, which he did thoroughly. He rejected the essence of the founders philosophy, the doctrine of rights. And he rejected the crux of the constitutional provision for protecting those rights, the separation of powers. Regarding natural rights, he urged americans not to read the declaration of independences first two paragraphs. Which he dismissed as fourth of july folder role. He understood that the natural rights doctrine entails limited government. An idea he considered an 18th century anachronism. He considered the separation of powers intolerable, which he thought demanded a large and nimble government quickly responsive to the president s will. Youice scalia wrote if want aspirations, you can read the declaration of independence, but there is no such loss philosopher as an in the constitution which is a practical and pragmatic charter of government. I respectfully dissent. Are we to conclude that philosophy is not practical and not pragmatic . Granted, there is no philosophizing in the constitution until we put it there. By construing the constitution as a charter of government for a nation whose purpose is defined by the constitution. Declaration. Justice scalia said that, i quote, behold. Of democracy is that majority rules. That is the whole. Of it theory of it. Well, if that is the whole theory of democracy, then democratic. Is not very interesting. What then is interesting is what should begin after this theory is accepted. What should begin is reflection about the institutional and cultural measures necessary to increase the likelihood that majorities will be reasonable. And about what things should be protected by a judiciary is beyond the reach of majorities. Populism seeks to reverse this. Giving majority rule priority over liberty. And overwrites. And overdue process when these things conflict, as they frequently and an evitable he will with majority impulses. Democracy and distrust should always be braided. American constitutionalism and its necessary corollary, judicial review, amount to institutionalized distrust. The temperature of american politics is high today in part because the stakes of todays debates are high. We are not just arguing as we always do about the proper scope and actual competence of government. Which ofguing about two president s will prevail. That of James Madison or that of Woodrow Wilson. The essential drama of democracy to rise from the inherent tension between the natural rights of the individual and the constructed rights of the community to make such laws as the majority deems necessary and proper. Natural rights are affirmed by the constitution. Majority rule circumscribed and hopefully modulated is constructed by the constitution. The declaration is not just chronologically prior to the constitution, it is logically prior. Because the declaration is the constitutions conscience. The declaration sets the framework for reading the constitution. As lincoln said in his house divided speech, the custody constitution is the frame of silver for the apple of gold, which is the declaration. Silver is valuable. Frames serve an important function. But gold is more valuable and frames are less important than what they frame. It is therefore a matter of constitutionally important symbolism that the Constitutional Convention met in the room in which the declaration of independence was debated and endorsed. It did not affect a rupture of the purpose and destiny. The constitution continues what the declaration began. It is not true that the majority is always wrong. It is true that the majority is often wrong and that the majority often has a right to get its way even when wrong. The challenge, especially important and difficult, when populists fevers are raging is to determine the borders of that right. And to have those Borders Police by a nonmajority therein institution, the judiciary. In 1801, jeffersons first inaugural address he said though the will of the majority is in all cases to prevail that will to be rightful must be reasonable, that the minority possess their equal rights which equal laws must protect and to violate would be oppression. Later, John Marshall buttressed that principle and he established judicial review. This practice, exercised with vigor, is a bulwark against the essence of populism, the belief that the majority should always have its way. A professor preoccupied with what he called the counter majority therein is an dilemma call the Supreme Court a deep institution diva because it circumscribes the of majorities to have their way. The right of majorities to have their way. Someone has a better understanding, he correctly said that the u. S. Constitution is framed in prescription. It declares an emphatic no to myriad government undertakings, even if majorities desire them. Judicial review should annoy populists because it means preventing any contemporary majority from overturning yesterdays super majority, the one that ratified the constitution. Federal judges are accountable to no current constituency. When construing the constitution, they are duty bound to be faithful to the constituency of those who framed and ratified it. This is how the constitution constitutes. Madison was born a subject of george the second. He died a citizen of the republic during the presidency of the first important populist, andrew jackson. Todays populists only complaint about Big Government is that is not throwing its weight around on their behalf. In his message explaining his veto of the reauthorization of the bank of the United States, he wrote if government would confine itself to equal as heaven does the range rains, it would be in unqualified blessing. It is to be regretted that the rich and powerful too often bend the acts of government to their selfish purposes, just so. Todays populists need to realize that Big Government, meaning the Administrative State and micromanages his american life, is inherently regressive. It inevitably and constantly redistributes wealth upward. It is the wealthy, the confident, the articulate, and a well lawyered who can understand the Administrative State processes and can work its many gears as they pursue. There is a reason why five americas 10 richest counties surround washington like piglets surrounding a lactating sow. [laughter] sentimentalists say that its inadequacies it is more often the case that democracy producers unfortunate results because voters views are foolish but honored. The problem is not that government is unresponsive but it is too responsive. Usually, it responds not to majorities in any meaningful sense, but to small, compact, intense factions. Am i too gloomy . A philosopher said is characteristic of political philosophers that they take a somber view of the human condition. They deal in darkness. Madison certainly did. Populists do not. The language of populism flatters adherence. They are virtuous because they are many. Because they are many, they are not of the elite. All social problems are resolved by elite failures or connivance s. Madison knew better. He knew that the question is not whether it shall govern but which shall govern. He knew that the problem of democracy is to get consent to government by were the elites. Progressives and todays populist have more in common than either can comfortably acknowledge. To understand their similarities and shared aversion to madisonian principles, consider this distinction between the republican constitution and democratic constitution. The debate between the meeting meaning of the first three words of the constitutions preamble we the people. Those who embrace democratic constitution believe that we the people of the collective entity. Those who embrace the republican constitution think of we the people as individuals. The democratic constitution as a device for giving power and priority to the will of a collective. The majority of the people. Or practice, such as judicial review, that impedes the swift, transmission of the will of the majority into policy is presumptively illegitimate. And the only individual rights that are legally enforceable our are rights affirmed explicitly. In sharp contrast, the republican constitution is a device for limiting government on this includes limiting government when those conflict with the governments primary business of securing the natural rights of individuals. Barnett believes that. Todays american politics those who favor the republican constitution take their governments from john locke, believing that individual liberty is americas principle. Those who favor the democratic constitution take their bearings from thomas hobbes. Toernment should have power go for social ends society desires, even if the right of the individual may be abridged. Progressives and populists think americas fundamental dedication is to a process, majority area majoritym decisionmaking and madisonian think the fundamental dedication is to a condition, liberty. Populists rally around the majority to have its way. Madisonians stress protection of individual rights, especially those of private property and the freedom of contract that define and protect the zone of sovereignty within which people are free to do as they please. Inaugural, lincoln, addressing himself to my the status dissatisfied fellow countrymen, it expressed himself a patient confidence in the ultimate justice of the people. Confidence must be patient because the justice of the people can be counted on only ultimately. Populism is not deal in nuances. Madison did and madisonian do. They know what happens only ultimately leaves a lot of time for institutions to refine and spiny the will of the majority stymie the will of the majority. Madison said and republican government, the majority, however composed, ultimately gives the law. In language strikingly similar to what Justice Jackson used in the 20th century, he wrote along with the principle of liberty, a constitution and body embodies the principle of selfrestraint. The people are resolved to put certain rules out of the reach of temporary impulses, springing from passion or caprice, and to make the rules a permanent expression of their calm thought and deliberate purpose. I believe madison understood as the founder of american conservatism. That populism is everything conservatism is not. But you have heard quite enough from me. I am standing between you and a reception where there will be adult beverages. [laughter] and adult conversation, perhaps about, among other things, interesting contemporary topic chevron deference. Thank you very much. [applause] john kelly testifies today on the 2018 and budget request for his department. Before the Senate Homeland security and Governmental Affairs committee. Live coverage begins at 10 00 a. M. Eastern on cspan, cspan. Org, and our free cspan radio app. [captions Copyright National cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] secretary on the hill today to discuss her. Epartments 2018 budget request live coverage of the testimony before a Senate Appropriations subcommittee begins at 10 00 a. M. Eastern on cspan three. Cspan, where history unfolds daily. A 1979, cspan was created as Public Service fight americas Cable Television companies. It is brought to you today by your cable or satellite provider. Next, a look at the relationship between Climate Change and u. S. National