Broadway and thinking this might do well in part because the American People have a certain longing for the founding generation a longing for the understanding of it. The understand that generation had a few things figured out. Was not a utopian generation by any means but they were people who are set in motion a government that would last through the ages and fostered the development of the greatest civilization in the world. A lot of the story from the founding era has been lost by attrition in some places perhaps benign neglect and others and maybe deliberately in some cases and so i wanted to reconnect the American People with some of our forgotten founders. Host i want to ask you about that but first hamilton come to gc it . Guest i havent. I have listened to the soundtrack and ive been waiting for the price of the tickets to go down a little bit. Host its really worth seeing because the keyword and what you are saying was the people and what hamilton makes clear is what i seen your book is a lovely rendition, so many different founders and these are people that oaks havent heard of. Sure you cover people know a lot about aaron burr but then you also happen your book remarkable people mercy moore and their mom. Most remarkable to me as a native american and you have whole chapters on each of these people and i want to talk about each of them but i think my first question is how in the world did you have time . Do you were sitting United States senator, to do a book that not just the founders that everyone has heard of Mike Hamilton that people no one has heard of. Guest i have sometimes long recesses and lots of pentup emotion when it comes to federalism and separation of powers. Your day job is not enough to keep you busy . Guest my day job dovetails quite nicely with the subject matter. Subject matter. In my subject matter. Am i similar are good stories and when i find good stories i like to write about them. Host we talked about constructional constitutional law. How does a story like that come about . Guest like i say we knew our own lookout they come to you gradually. Ask friends and other people i knew who they thought should get more credit than they get and in the case of an era coy indian chief who understood the principle of federalism because they lived it for centuries before we were our own country. I was intrigued by that from the outset because cannot to take you is not a name that looks american and yet he had a profound impact on our system of government because he is the guy that enable Benjamin Franklin to learn about etterer was a man Benjamin Franklin was the conduit. Way made its way into the articles of confederation in a more perfect way to the constitution. Host before we get into the subject matter the of the book itself i did have the privileges i mentioned to meet your late father a legendary figure in my generation one of the Top Supreme Court advocates and really the father of the modern Supreme Court bar. Is there an insolence from him in this book . Guest without question but as i was growing up we talked about things like federalism and separation of power along the dinner table. It certainly made for interesting dinner conversation. My dad used to say they are these two structural protections of the constitution that are as important as any other feature of it and that one is vertical and recall that federalism and the others horizontal mccaul that separation of powers. We put those together they present any one person or group of people from getting too much power and abusing those who are subject to government. Host to everyone a little bit about what federalism means and what separation of powers means. Guest federalism distributes power in our system of government on the vertical axis meaning it organizes the balance of power between the federal government on the one hand and states or the people on the other hand. It sets a default principle both in the original constitution and by extension through the 10th amendment. Default proposition that most powers are going to be the state and local level with the people and those identified as federal are in congress. It articulates those enumerated powers that are federal most of which are found in article i, section 8 of the constitution. They arent reasonably linked to that or necessary proper to the accomplishment of those in by the number for them to powers it provides clearly for congress to have the power to provide for National Defense in section 8. Doesnt specifically identify what we now call the Veterans AffairsDepartment Budget contemplates that because it is necessary and proper 3d cant really have an Effective Armed forces must you know how to take care of your veterans. Everything else is not rapidly allocated to the federal government to the confrontation. Supposed to be reserved for the state and the people. Host to make a concrete for everyone a lot of states are legalizing marijuana and is that something that the founders would have said that something should be left to the states and the people . Guest yes, most certainly it would have been as a matter of First Principles. Deciding whether or not youre going to allow a particular treatment, a particular pharmaceutical product for example specially of that product can be produced and sold entirely within the state in question that estate got to have that power. Congress has taken a different turn in recent decades and come up with a comprehensive regulatory scheme. Her work to return to First Principles we probably would contemplate a system in which each state puts aside for soap and apparently whether or not to allow that or any other treatment. Closer you call in a book for a return to these First Principles so am i to connect the dots and say your vision of the constitution is one that would prevent the federal government from allowing that . Guest ultimately yes thats a logical conclusion. That doesnt mean we can do it immediately or abruptly or weaken it ignored in federal law but i do think taken to its lawful conclusion the 10th amendment and the principle of federalism in the constitution as a whole contemplates that state until the set that and i would frame it slightly differently than you did. It is a matter for the state to decide. People get to decide that at the state level and thats what the constitution does. Allocates what part of government undertakes which task host without being true the product could be confined within state lines and then we will go to the book. That could be defined within state lines so would you say that state to legalize heroin . Guest appear talking of about something thats going to be produced entirely within one state taking it to its logical conclusion i would suggest yes. It would also seem just that congress can decide whenever something is moving in interstate commerce involving an indian tribe that would indicate Congress Federal power. Host if its legal your constitutional view is . Guest is a matter of constitution thats a state animal. Host in the book you say a lot of people are ignoring certain founders havent learned and is not in a malicious way but people who care about this stuff dont learn about some of these people so who are some of your favorite people in the book as you talk about that you want people to know about . I really like the story of Luther Martin the original antifederalist. Nope most people dont know much about him. He was energizing guy. He was drunk almost all the time. He was a successful lawyer and started out in virginia went to maryland and becoming marylands longestserving attorney general. He was also a delegate to the Constitutional Convention. He was so notorious for his drinking that one of his clients upon retaininghim demanded as a condition of the agreement between the client and the lawyer that Luther Martin refrain from drinking throughout the representation so Luther Martin got around this by taking a look soaking it in branded eating a piece of bread whenever you felt like it. But as a lifelong mormon who doesnt drink i find this one quite serious but Luther Martin saw the fact that the constitution might end up producing a system in which it would be a dominant federal government one that would erode upon the rights of individual americans to be governed at a more local level. I think he was ahead of his time in this regard. Host just on the very first of the Martin Luther chapter which is a fabulous chapter and on our way a lot of history books or not so i recommend the book particularly that chapter. The first page says Luther Martin was upset about the Philadelphia Convention being closed. That of course has been celebrated as one of the great things that 59 and walk into the Philadelphia Convention on a hot day in may of 1787. They close the doors and they dont leave for three months. They debate everything and it doesnt leak and because it doesnt leak they can have a full and fair debate and then they go until the constitution to the world and have ratifying conventions and so on. You have the privilege of serving in the senate for a while now. Obviously sometimes we do have closed hearings for various things that you are also exposed to all sorts of classified information. Was Luther Martin wrong about that to say that the convention should have been open and not close to . Guest is easy for us today to be critical of the decisions to close it. It goes against what we feel like is the inexorable command of good government. Yet i understand why they closed it and i think you are right in suggesting they have probably couldnt have had it turn out the way it did have they not close to produce the same i can criticize Luther Martin for raising the concern especially the way i viewed things. I probably would have been critical of acquisition as well. Doesnt mean ive been a would have been right in that answer. Host today i think what is your view on government speakers today . Do you think martin had it right that everything you do should be in the sunlight . Guess who it disinfects and the legislative process i think demands the kind of transparency that we typically have. You are right there are times when we have classified proceedings, classified hearings where classified information is being discussed that cant be released or else it would undermine some Important National security interest and i understand that. I do worry sometimes that there is an overclassification phenomenon that can occur especially with some hearings in the senate that have been scheduled for classified session and they have been deemed classified where very little if any classified information gets discussed. It makes me wonder at times whether those scheduling it in classifying it does want to keep the press for their own convenience. Host have you ever thought about and maybe this is hokey but loose using a martin Luther Martin like hearing. Founding principles really do call generally for openness but obviously theres some need for National Security as you say but to try to push the body a little bit . Guest not only the thought about it but ive spoken to my colleagues about the one of the things ive found frustrating their bedtime to have legislation or we discovered theres a classified piece of the legislation. I was just finishing reading the classified annex to a piece of legislation i said okay i guess thats about it and one of the staff are said to me you havent seen the annex to the annex and i said okay show me the annex to the annex and he said i can assure you that. Why . Because its classified in a way that doesnt allow you to see it so i said okay im being asked as a member of United States senate to vote on something that hasnt annex to an annex that im not allowed to see. Now this was deeply troubling to me. It was later explained to me there are legal nuances to this night that other people explain to me technically thats not part of the legislation and technically thats analogous to report but regardless i found that troubling. Host absolutely. One of the other things youve done in your career is actually clerk for Justice Alito and the court has come under some criticism for not having a camera in the courtroom and its almost functions to Many Americans like a secret body. Sure they do have written opinions in the way that you have written bill that you pass and legislation but the process is only visible on any given day to about 400 people and i think only about 100 of those are public or Something Like that. I might be wrong but not a dramatic number. Obviously you cant contemplate the camera let alone the web streamed oral arguments or Something Like that but wouldnt those principles be in favor of cameras . Guest possibly. It may well be the case and its very different menu for her to some of this. Most of what happens in the court is an open public process. In a briefing most of the ardent as you know better than anyone consists of briefs that are submitted and then you have an oral argument in the oral argument transcripts are available to her flat and sometimes audio recordings are made available to everyone. Not everybody can see it and see it live but this is only one part of a process that is open. I would actually love it if they would open it up. As a lifelong enthusiasts of the Supreme Court watching Supreme Court arguments at the age of 10 for fun, i would love nothing more than if the Supreme Court decided to start televising arguments. I dont think its up to me as a member of the article i branch to tell the article iii branch the Supreme Court how to manage its court in the sense that i dont think it would inappropriate to pass legislation requiring them to have cameras in the courtroom. That said if they allowed cspan in there or other cameras id be thrilled. Guest you would be thrill but my question is do you think it would be right for the American People to be up of the see this . Obviously understanding respecting constitutional boundaries in passing legislation but branches give each other advice all the time. Courts are not shy about giving you a post exactly so would you be willing to give the court, the Supreme Court some advice in that regard . Guest i think it probably would get in that in effect for the public. One of the reason those i say that is because i think members of the public saw the way arguments are handled in the Supreme Court i think theyd be encouraged. They may not agree with the outcome or the courts deliberations in every instance and even though the court frustrates me at times i would hold it up against any of the counterparts anywhere in the world. Host completely agree, slowly right. Guess i think the American People be thrilled to see how it works and to see the caution and care put into each and every argument. Posted absolutely, well said. Lets talk about another founder in your book. Aaron burr. Some people know about her from hamilton the guy who is the bad guy in the play who shoots hamilton itd dual that theres so much else to the story and your chapter on burr really brings it up. Guest he is known as the damsel who shot him as they say in a play but theres much more to it than that. He was the Vice President of United States of course under Thomas Jefferson. Host even that story is very interesting how he became Vice President. Guest as is the fact that once he became Vice President he became the defender of the little guy, the defender of those who face impeachment trials and facing impeachment trials. Host the chief justice of the United States. Guest well said, hardly the little guy but aaron burr knew only these people were facing a trial and facing a trial in the senate. They could either be treated fairly and with due regard for their Due Process Rights or they could be rushed through in a Kangaroo Court type fashion. Wasnt very tempting for burr to lean toward the Kangaroo Court approach but he didnt. He instead looked out for Due Process Rights. In part he could sit back and in part because Thomas Jefferson continued to see them as an ongoing political threat, and ongoing rival president ial candidate during his second term in office when burr was still under the Vice PresidentThomas Jefferson had her prosecuted for treason. This was a capital offense in and of not only his political career but his life. Host tell us a little bit about that story because it involves them conspiring with the colonel and bringing trips to mexico. Guest would involve the Conspiracy Theory of general wilson and there was a letter that was written in code and there is some dispute. It appears doubtful that it was ever even hers handwriting and that was one of the things that were shaky about the evidentiary foundation of the case against aaron burr but involves a conspiracy to overthrow the United States. It was pretty wild. It was a pretty farflung conspiracy and jefferson pulled out all the stops. He really engaged in a lot of hyperaggressive prosecutorial behavior toward burr. Unfortunately burr was able to rely on that language in article iii because judd rates a pretty heightened standard for proving treason. In the process burr was able to save his life and avoid a conviction for treason but this shows the high price of those who sometimes fight against the government and it also shows us something very important. Thomas jefferson is the one i respect a lot and ithink most americans do. Hes the author of the deck ration of independence but even Thomas Jefferson, this genius of the law of architecture of science, Thomas Jefferson having been in the office of the president as they still being very human and very jealous political heart. That ice has to be kept in mind because the powers of government are dangerous. Host all geniuses are founders. Isnt that the central idea that they understood as madison said men arent angels and particularly when they are in power and thats when you are going to have problems and thats why you need the checks and balances that you celebrate in this book horizontal and vertical constraints on power. Jeffersons actions would not have surprised them. They were in the process of human nature that they themselves have predicted in 1785 to 1787. Guest thats exactly right. If theres one common trait among the Founding Fathers in the Constitutional Convention would be idolatry, worshiping as they were george washington. They loved georgewashington almost uniformly to the point of revering him. It was all but a foregone conclusion and yet notwithstanding they wrote the article to with washington as first president in mine. They still left the power up to the presidency relatively weak in part because they understood this concept that madison pointed that he wants to the government provides insight into human nature and if we had access to angels they could govern over us but because we are not angels we dont have access to angels we have two or oim these very strict rules. Guest . Host one idea attacking jefferson for trend at the date all the prosecution of power to interview with prosecution power. Obviously today literally today theres a debate going on right now about the president interfering with investigations. What do you think aaron burr would say and i obviously dont have the facts but literally the former directors of the fbi testified as we are doing this interview saying the president ordered him to drop the criminal prosecution of Michael Flynn as the National Security adviser. The thing that to what you are celebrating about her what do you think that says . Guest i think burr would tell people to make sure you are vigilant in protecting the separation of powers to make sure you watch over restrictions and government on the constitution which old after all is the reason for this constitution or any other. In this age and any other aides. In this instance you regardless of where people fall on their views this president ial administration i think everyone should be able to agree that its a healthy thing for people to make sure government power is being exercised properly. As for what can happen in this case, i dont know. We had jim khamenei in front of our committee a few weeks ago and he testified quite clearly as i understood it at the time that he is not ever seem political pressure brought to bear in any particular investigation. Today jim combe is testifying in front of the Senate Intelligence committee. Last night he publicly released a written statement. Im trying to reconcile the written statement he received last night with testimony provided to the Senate Judiciary committee on may 3. Theyre a whole lot of questions that come to my mind. I know hes being asked even as we speak. Its hard for me to discern what will come of it until i see the testimony. Host thats fair enough. Maybe i will move is a slightly different way on this particular case but the other thing you celebrate about aaron burris the fact that he stood up for the independent judiciary and jefferson have been attacking it thats also something that in todays world we are seeing a bit of it we have a president who lost the case of this quote socalled judges are things like that. What do you think burr would say about that . Guest very different than going after sitting Supreme Court justice or a chief justice criticizing someone might not be something that i would do or you would do as an officer of the court. It is very different than literally going after the job of the highest jurists in the country. Yeah i think were woods understandably concerned about what jefferson did and wary of the need for due process of those who went through that process. Host tell us a little bit about mercy. One who is she and why should the book lacks. Guest she was a prominent playwright public commentator of the revolution era and she was also a friend and protege of john adams. Close to both john and abigail adams. She had concerns about the proposed constitution and she expressed those. Some of those concerns ended up eating and haired in this lengthy series of letters that went back and forth between mercy and john adams. They ended up getting in this very aristocratic but punchy debate, almost a shouting match written down on stationary for a long time about the constitution. John adams understandably had a lot of pride of authorship in the constitution and he was very sensitive to accusations that he was a monarchist or get monarchist type sympathy but there undercurrents of this in some of the letters that go back and forth. She seemed to be concerned that the federal government could create a monarchy that could produce many of the same negative externalities that we saw from her Previous National government, the one that we had just at the time fought a war to revolt against and from which we declared independence. She and adams had this rules that. This lasted for a long time and is explained in the book and they were able to explain the differences without a lot of conflict between them. Host herb egg pointless through these monarchical tendencies in the document really concerned about it in Foreign Policy was a part of that. After the constitution was ratified and obviously article ii gives the commanderinchief power but they did see the power to declare war and all sorts of other things like that. The federalist papers make clear congress is largely in the driver seats seat when it comes to war and i think that was in part done because of concerns like she had against monarchy. How do you reconcile Something Like that with the fact that we have been in hundreds of Armed Conflicts and there has never been a declaration for it. Not since world war ii. Guest i struggled with that a lot because people can disagree when you cross over that line. This great military action that the president has the power to order in the same way that he would have thepower order what time they are going to play taps and what order they are going to play reveille. Good for you. So yeah, it really is quite striking like when you read what shes say what were what this woman is saying about the tendency and then you think of the fact that almost ever president since the constitution was written has put troop on the ground in other places. It has been h plus times you know, there is i think a need to revitalize congresss role had in this space and that does seem consistent with with the principle so i guess we can disagree a little bit. I dontit if they need to letsn emergency situation right you dont have time to get congress together or something i think you would say it has power think about president clin lincoln after shots fired and you know april 14th, april 61 congress is dispersed you cant call him become so he ordered blockade on his own. Without question. I think president s do have is Emergency Powers and more recent decades have war power resolution and some dont others say it is constitutionally suspect or at least not binging in sense that it is not traditionally enforceable probably true in the respect. But still it attempts to find a balance to achieve some negotiation and compromise point. Between these powers, and acknowledges that with with finite period of time after president directs military action on soil in area of hostility that the president need to come to congress. And i think thats an appropriate balance even if it is not a balance enforced it is still a balance that needs to be struck and i think thats a fair one. Inch some of the criteria basically you said it is war if we are attacking a Foreign Government and putting u. S. Troops essentially in harms way. On the ground doesnt necessarily have to be that. It could a little be injecting u. S. Equipment into something we would if there are not boots on the grouped still at war. So right now we live in a world in which president has an officer who carries around nuclear football. And as i understand it, he can tell that officer launch and a few minute Nuclear Weapons will be launched against some other government. That concern you . And is there Something Congress should do about that to try to make sure that before that happens congress is consulted and maybe even a declaration of war has to be passed . Deeply concerning the fact that we live in a world where this kind of danger exist at all. The fact this many people could die from the military strike. Is deeply concerning. We have as a society, to this point made a determination that we want to leave their we want to leave some gray area there because we dont want unduly to hinder ability of commander in chief to defend the United States. And i understand what youre saying i have yet to see our formula that would lead people satisfied that president was protecting us. If, in fact, what were talking about is is never ever, ever, may the president use a weapons a, b, c, until congress can convene and vote it. Vote that into law. I think a lot of people would have concerns with that. That said theres an idea that comes along, one that i will one would be, obviously, you dont want so hamstring the president if nukes are to retaliate and also a deterrence reasons why, you know you want that before hand. But lets say no first use. I mean cant use Nuclear Weapons first. Unless the, you know, unless youve got the approval of congress. Approval of congress and less doingso is necessary to protect the United States against eminent attack, and against eminent threat of some sort or another. Yep. That would certainly be king the with the spirit of the war powers resolution. I think that with the people youre saying this this book. Yeah. Yeah. Lets talk about another person you saw in the book because i can tell after the beginning sorry im mispronouncing the name heres what he says and actually what that law are, and in the book you reproduce it and a its, quote, five eras shall be bound together very strong this in each arrow shall represent one nation as five arrows are strongly bound this shall symbolize the complete union of the nations thus for the five nations united completely and folded together united into one head, one body, and one minded. Why is that in the book . What is that telling you . This symbolizes E Pluribus Unum throughout the city of washington and other important government buildings throughout america is the facet. Youll see it in europe too a lot but a bundle of sticks bonged together usually by either ropes or leather straps it symbolizes e pluribus e thumb werehstronger together than we stoodz alone. They understood this centuries before we became a nation. Theqe understand those if they banded together if they united one thing that worked well for them that they would leave the internal governess of a tribe to each tribe. So that the confederacy as a whole didnt medal in internal affair of the tribe. Is theres this well understanding produced outcome that was good and again as i point out in the book this was didnt credit a utopia i dont to overstate is the point but a successful confederacy. This was something we didnt learn from our bsh british predecessors at this was not something is that came to us from england like so many of our lawyers. Aspects of our constitutional system did. This was somewhat uniquely american. You have this swiss confederacy but helpful to have this other example disstingtly american and taught to other Founding Fathers it worked into article of confederation and later into the constitution itself. Then recall this anywhere this swiss con tengt is in federal papers but this is not is it . No. I dont see it anywhere in the federalist papers but it nonetheless was on Benjamin Franklin mind at least since the 1740s, when he became a acquainted with kansatago something he unked could really helps and could really help our young republic and it has. To the extent we have followed federalism. It has benefited us to a significant degree one of the strengths ass a country we have this rich cultural, political diversity in in country. People in that part of the country feel differently about some sort of things than other parts of the country. Geographically. Democracily there are differences and those differences are able to produce a form of government that allows more people to get the kind of government they want and less of the government they dont want to the extent we follow. Tell me if ive got this right and figuring views and try to bring the found ergs up to the modern day so weve had a debate in this country over the last couple of decades about whether about whether there should be gay people can marry one another. Do i have this right that you would say really thats a debate for the states to have in their legislatures. Differing we have a desperate country with lots of different views on this that should be resolved at the state level and not resolved by the way, at the national Supreme Court level. The judicial powers but it should be done really on a kind of state by state basis is that what you would say . Thats a fair characterize in other words that which is not federal, by the constitution should be decided at the state level. Yet you also have in this book a celebration against big government. The government control over peoples lives isnt that true at the state level . Isnt some of what theyre concerned about these founders, this government and forgot about which had government state or federal this government in peoples lives the right to marry were you know, most consequential choice we make in our lifetimes why should government have any role girve the people that youre celebrating . That is a fair question and that is a question ive raised in the past with State Government officials. Why is it that this is a religious ordinance what for a very long time was part of our society because it was religious ordinance why it needed to be a government decision at all i raised this law before this case ever came forward. The case but its a fair question. Why the government needs to be involved in it had in the first place once government becomes involved in it, constitutional questions develop. And one of those questions is which level of government . That particular question is now been decide been decided by Supreme Court. But the argument in the other direction is if it is not federal, if it is not made federal bit constitution then it belongs to people to be decided at the state level. Yeah, but, i mean, once decided no level. Right theres a third option. Right. And curious like how do you decide, you know, you are, you know, a constitutional scholar, and how do you decide when it is that third box. When stie we understand state and allocation pretty well but what about stuffs thats the bill of rights and no government can do. No search, seizure or establishment but something about marriage. Why should how do we figure out whether or not the constitutional principles prevents the government at all from are dealing particularly with equality concern . This by the way, is where federalism and the sense to protection of the bill of rights can be said to intersect when you defuse that and govern the entire country then you bolster Government Back to the bundle of arrows a minute ago and a more difficult to break. When power is more deteased and Decision Making authority is left a at a more local level people can break through. They can make changes and they can move forward at a state level when people see that something has worked in one state then people in another state might follow it. Theres no easy mathematical formula to answer questions youre asking. I completely understand the question. But has to be handled on case by case basis. My point is in many instances unless a question of federal constitutional law and people are free to decide whether or not they want government involved and if they do, they can make that decision at a state and local level. Okay, excellent. Tell us, obviously, o isolated some of the folks in your book. But others on this whole idea about beg government versus smaller government. Who else qow highlight and why . Bet a as a whole chapter and i love mumpet a slave in massachusetts. She was a slave in the household of colonel john ashley a prom figure and document later known as she cheffield and recognizeds natural law that all human beings are free and equal. Its human beings in a state of nature are this way. It is who we are, it is what we are. That language from the cheffield language became part of the massachusetts constitution of 1780, of course, by john adams. Once that became part of the massachusetts constitution, most revolution realized good heavens if all human beings are free and equal, then im free. Retained legal counsel, and she fought for and won her freedom. Now, this is in the early 1780s, so were talking 80 years before the civil war. And she won her from slavery. One of the things i love about her story is that weve got records of her saying that in any given time while she was a slave if she had been offered even one minute of freedom knowing that at end of that one minute she would lose her life. She would give it up just to know what it felt like to be free. My favorite license plate says live free or die. Completely. Now she won her freedom but she tonight end slavery generally. That her case was, it wasnt a class action in modern parliament. Is that right . Its a right. How did the court reconcile that and just give it to one person but not everyone . Tenically what courts do and especially back then, typically what courts did was adjudicate things but fact that she broke through that barrier set in motion a sequence of events that took a lot more time to develop. But she opened door for other people other slaves in america. To capture their rightses as human beings. And it worked. So i think one was big things after teaching constitutional law for 20 years that i hear time and again from students or even from members of public when im lecturing is, you know, founders, you know, you keep on talking about the founders but these people were not goods people. This were slavers and had people literally in chains and a all sorts of horrible things even enshrine that in constitution itself with provision saying you couldnt amend constitution to get rid are of slavery until 1808 and like and i have my own answers to that but curious about what do you say to that and because people look at the cover of your book and say thats about a bunch of qhiet guys qhor slavers and book itself is a rejoin to that buzz youre celebrating people like that. But nonetheless, i think most constitutional history most founding you think about it. Theyre thinking about the 59 people who worked into philadelphia in 1787, 39 who walked out and they, you know, they did this accusation is definitely i think true against them. So what do you say . Couple of responses first of all as you point out try to make the point in this book. That not all people who participated in contradicted very meaningfully to america powngdzing were white and male. So among those people ho left their mark were women and minorities. They were a lot of people who played a pivotal role at a pivotal time in American History. Other point is that yeah a lot of these people did some bad things. But theyre more nuance than that as there was more to the story of aaron burr than the fact that he was shot and killed Alexander Hamilton in a dual these people were complicated. Lootser martin for example he was a slave owner and yet he had the guts to go into the Constitutional Convention and ripped off bandaids on slavery he brought it up, he went there much to the horror of a lot of delegates there. He brought it up and he said this is abomination government of all mighty god is above this young if we dont get rid of it. We should i could end it. It is odd, it is weird. He had slaves. It is sure, if he wanted to do that he could be freed his own slaves to my knowledge, he didnt. But he at least acknowledged that it was an issue. There are features of the constitution that are morally reare pugnant as is the three fifth clause, yet the fact that they were willing to even debate at the fact that therm willing to put it at issue in those provisions ultimately helped lead i think to the end of slavery and thats good for humanity thats good for American People to know that this was helped along by some very brave souls there to speak out people like mumpet. Ever read are douglas view for the document. Not in a long time and i dont remember what he says. Frederick douglas remarkable americans to ever lived former slave but in there he says actually this whole spin about the constitution being proslavery is wrong. But take the three fifth clause abomination but he say what is that really is incentive to physically enfranchise because every state two fifths of vote and better representation are of the in house of representatives if they make people free. Because otherwise theyre limited by three fifths he says 1808 clause about slavery being banned that, look first document in history that actually contemplates encouraging the ambition of slavery yes it will tack 25, to 28 years or 30 years whatever to do. But basically is, you know, the whole thing is cast as the things that look that are antislavery actually a personally actually antislavery all sorts of ways. Remarkable argument. Yes, with i think it was an a accurate argument in many respects in many respects those features that we find morally repugnant are because of the reality underline them and because of the fact that they reflect that we were a slave holding at the time thats what was awful about it. Arguably some of the same features that are a lasting badge is scar, remindinger of that ugly era in American History actually helped bring it to an end. One of the i think greatest things about document constitution is article five afterall founder said were not smart enough to foresee all of this stuff so you know, we might want to get rid of slavery and have women vote. Whatever they said heres the process to do that. Add to the constitution. Which has been do you feel like amendment process is invoked as often as it should be . No. I think it should be more often. But apartment of what maintains the legitimate of the document and to continue to amend it as our changes so it i think rather than gloss over certain features with which were uncomfortable, we opt to amend constitution if for example, if we as a country decide that we wanted the federal government to play a much bigger role than it has, i think a more appropriate approach would have been to debate and consider an amendment of the constitution authorizing that rather than having Supreme Court of the united effectivelyd it as i believe it did 1937 decided a cases versus jones steel. In that case the Supreme Court basically turned the commerce complawz to regulate are commerce between the states and look four nations with Indian Tribes intone a all things that might affect commerce clause. Very, very different. Now, we can have a debate about whether that was a good idea as a matter of policy. But as a matter constitutional law this was a major change brought about entirely outside of any amendment process contemplated by pownsder or authorized by article five of the constitution. But it was a process that they court felt was a reaction to changing facts on the ground. Yes. So you have a fixed text written in 1787 but you have facts that changed and if commerce changes as undoubtedly the nature of commerce changed dramatically in the 20th century with International Economy and really making it hard to do something in one state with Ripple Effect somewhere else a proper basis for a constitutional interpretation. That is xect the argument that was made in that disand all subsequent cases following from that line including whether five years later. The problem with that is, it ignores another reality which is the there was an understanding at the time of the founding certainly in 1787 there was an understanding that buying something in one state has an a economic effect. And that an economic effect in virginia might have a spillover effect in yanked. Maryland especially when you replicate the Economic Impact of the activity. There was an understanding at the time that Economic Activity like had you hadding, agriculture, manufacturing were economic many that sense had Ripple Effects everywhere. But in concurring opinion in lopez, there is a real problem, a real slippery slope problem that you get when you allow everything to become federal. When you say that anything and everything that when measured in the aggregate substantially affects interstate cheers theres no aspect of human existence. That is left beyond the reach it have the federal government. And thats why the currency lopez difficult to refute. Wasnt that the whole debate that founders had between ann they call this commercial where were sitting and idea is, you know, whats this limit to some commerce changes . Articles of confederation hard to get things done require and so on. And hamilton and madison say we need a new National Government, vibrant National Government and call for philadelphia on that basis. And you certainly in your book if i have one criticism this magnificent book is that, you know, you tend celebrate the losers more than the winners. Your view is call them underdogs. But people who lost in the and warning against a presidency or a privibrant federal government an wanted more to the states. But you know, theyre generally considered the antifederalist. And you rightly say you know you should read antifederalist along with the federalist but if were thinking about what does constitution mean today shouldnt we look to it for more of the same point of those who won those debates rather than those who lost them . Yes but this is the strait theme of my book when you yo look only to winners and i say this over and over again in the book when you look only to winners youre going to get skewed analysis and fall victim to hamilton effect and receive confirms bias on what you said to see. I dont think you can comprehend fully i dont think anyone can comprehend fully what happened in philadelphia in 1787 unless they read both sides of the argument. Because unless you read the arguments of the antifederalist, and arguments of the federalist appear to tilt more in the direction of federal power than they, in fact, do. Because its especially important to Pay Attention to the response by the federalist to antifederalist. You look at hamilton responds to antes federalist he doesnt say you know what, big federal power is a good thing we need virtually Unlimited Power and congress to regulate are mining and activitieses that are economic but interstate in nature he does not say that. He instead refutes them on the points theyre making which is this is beginning to lead to a big powerful government. Hamilton adopted by many on the left many progressives today is sort of their mascot among Founding Fathers actually embraces it and corporate as if by reference argument of madison. It in in saying look, most of the power is always going to remain with the people. Thats where it will be. Thats where it will naturally accrue, and if theres any risk are of any one part of government getting too powerful it is more likely to be there because thats where most of the power is. Hamilton a year later become secretary of the treasury and then we have this big detect a bank of the United States . And he writes this bsh powerful letter to the president saying absolutely. We need National Power we need flexibility. It is not directly in the constitution. But it is kind of the spirit of the constitution and they is in the same way as modern example but then thats picked up by chief Justice Marshall great espns in the United States reports and what opening line in that opinions say is we have a debate about whether federal government should be big or should be small. And limited and there are people who want and those people said, if government needs to be big enough to adapt to the various crises of Human Affairs tell us why thats wrong so be it. It doesnt have to be the case that thats young for federalism still to be something that needs to be strengthened again. In other words, the fact that there was a debate and the federalists won, dunts mean theres no limit to federal power. The fact that he turned out the way it did duct mean that theres a blank check that congress always has when it comes to power that whatever Congress Wants to do it may do. If there is one thing that would have thwart ratification it would have been that understanding is the guardian of its own power, and there really is functionally no limit. Thats a real problem when we simply assume that into existence. Founding fathers understand that thrrm limits on federal power. One of the things they pushed back against strongly was madison early proposals which was to give new congress a negative power over any legislation. That didnt ever gain serious momentum regarded as unduly camping down on state authorities. They rejected that has reare soundingly. And yet thats effectively what we have today congress can can dream it it and legislate congress can have a negative power over any inking the state law. Fabulous. Fabulous. I cant thank you enough for writing this book which i hope everyone read and one of the beautiful things about it that underdisoars me what actually i feel deeply which is founders were not political in the way that we are. Today, and this book is not political in way that we are today. You know democrattings should read this book, republicans and children can read it written to say that to say you a Smart High School d or junior high kid can read it because it is written in ordinary english with big ideas in it. Thank you so far for writing it. Thank you for saying that. One to be used for homeschoolers ore supplement childhood education or their own. Cspan, where history unfolds daily. In 1979 cspan was created as a Public Service by americas Cable Television companies. And it is brought to you today by your cable or satellite provider