Musical, hamilton came out and i was pleased with how popular it became. I was not entirely surprised. I remember thinking it might do well in part because the American People have a certain longing for an understanding of it and that generation had a few things figured out. It was not utopian by any means but they were interesting people who set in motion a government that would foster the development of the civilization the world had ever known but a lot of the stories had been lost by attrition in some cases, perhaps benign neglect but may be deliberately in some cases so i want to reconnect with some of the forgotten founders. I want to ask about that. Have you seen hamilton . Guest i havent seen it. Ive listened to the soundtrack countless times and have been waiting for the price of the ticket to go down. Host it is worth seeing because the key word in what youre saying is about people and what hamilton makes clear is the founders were people and thats what i see in your book as well. Its a lovely rendition. So many different founders had quite a few people folks have not heard of so you cover people like that, but people wrote a lot about aaron burr. But then you also have been developed remarkable people. You have chapters on each of these people. My first question is how in the world coming to you for a sitting United States senator that those books not just that everyone has heard of like Lake Hamilton but people nobody had heard of today. Long airplane rides and sometimes long recesses and lots of pentup emotion on federalism and separation of powers. Your day job is not enough to keep you busy . Guest it dovetails quite nicely on the subject matter. Im always on the lookout. When i find good stories i like to write about them. Host so the structural constitutional wall ive never heard of this. And how does a story like that come to you . Guest like i say when youre on the lookout they come to you as other people i knew who they thought should get more credit then they get. This was a chief from the tribe who understood the principle of liberalism because they lifted for centuries before we were our own country. I was intrigued by this because he is not a name most americans know anything about and get he had a profound impact on our system of government because hes the guy that enabled Benjamin Franklin to learn about the conduit through which disinformation flowed. It made its way into the articles of confederation and then into the constitution. Host amazing. Before we get into the subject matter of the book itself i did have the privilege to meet your late father was a legendary figure solicitor general of the United States and Top Supreme Court advocates and father of the Supreme Court bar. Is there an influence from him in this book . Guest without question. As i was growing up we would talk about things like federalism and separation of powers and i think i was 30 before he realized not every family does to. Does. I think they should. It made for an interesting dinner conversation. My dad used to say there are structural protections that are as important as any other feature and one is vertical and we call that federalism and the other is horizontal and we call that separation of power. They prevent anyone person or group of people from getting power and abusing those that are subject. Host tell everyone a little of what federalism and the separation of powers and how they are different. Guest federalism distributes power among the vertical axis meaning it organizes the balance of power between the federal government on the one hand and the states where the people are on the other hand. It sets up a default principal in the constitution and by extension through the tenth amendment. A default proposition that most will be at the state and local level with the people those identified as federal and are invested in congress so it articulates those enumerated powers most of which are found in section eight of the constitution. Those that are not linked to that are not necessary and proper to be accomplished of those and im referring to powers like providing congress the power to provide a National Defense it doesnt specifically identify what we now call the Veterans AffairsDepartment Budget contemplates that because it is necessary and proper. You cant have an Effective Armed forces unless you take care of your veterans. Everything else that is not properly allocated is supposed to be reserved to the states or the people. Host to make it concrete for everyone like a lot ht now g maria. Is that something that the founders would have said that is, you know, something should be left to the states and people . Guest yes most certainly it would have been a matter of the first principles. Deciding whether you are going to allow a particular treatment or pharmaceutical products for example especially if the product can be produced and sold entirely in the state interest in the state ought to have that power. Congress has taken a different turn and has come up with a comprehensive regulatory scheme. If we were to return to the first principlefirstprinciples e a system which each could decide for itself independently whether to allow that or any other treatment. Host you call for the return to these principles, so am i to connect the dots and say your vision of the constitution is one that would pay for that and the federal government to allow that to be for the states and people to decide the legalization of marijuana . Guest that is the conclusion one would reach but it doesnt mean we can do it abruptly but i do think taken to its logical conclusion, the tenth amendment and the principle of federalism in the constitution as a whole contemplates the state ought to be able to. And i phrase it differently than you did. It is a matter for the states to decide. The people get to decide that at the state level and thats what it does is it allocates which task. Host would that be true as long as the product could be combineproducts could becombinen we will move to the book. But heroine could also be combined in the state lines, so with this view say that states could legalize her when . Guest you were talking about something that can be produced in one state and if they want to come of federalism would suggest yes. It would also suggest congress can decide when something is moving in interstate cmerce if there is an internatnal commercial transaction involved were one involving an indian time that would implicate the power. Host but if its within the state bounds your constitutional view guest that is a state entity and subject to state regulation. Host in the book you say a lot of people are ignoring certain founders even people who care about this stuff dont learn about these people so were some of your favorites in the book that you talk about that you want people to know about . Guest id really like the story of Luther Martin, he was the original most people dont know much about him. He was drunk almost all the time it was and was a very successfur started out in virginia and went to maryland as the longestserving attorney general and was a delegate to the convention. They are soaking it in very handrandy andthen eating a piec bread. I find this one quite curious. But Luther Martin might end up producing the system in which there would be a dominant federal government that would erode upon the rights of the individual americans to be governed at the local level and i think that he was ahead of his time in this regard. Host the chapter is so fun to read in the way that a lot of history books are not so id recommend the book as a whole but the first page Luther Martin was upset about the Philadelphia Convention being closed and that of course has been celebrated as one of the great things 59 men walk in the 1987 and closed the stores and they dont leave for three months and they debate everything and it doesnt leak and because it doesnt leak, they can have a full and fair debate and then they go and tell and have ratifying conventions and so on. They had the privilege of serving in the senate for a while now and you have closed hearings for various things that yobutyou are also exposed to all sorts of classified information. Was he wrong about that to say that the convention should have been open and not closed . Guest to be critical of the decision goes against what we feel like is the command of Good Government yet i understand why they closed it and i think that you are right to suggest this probably couldnt have happened and wouldnt have turned out the way that it did. I probably would have been critical of the decision as well. I think the document that they produced was good. Guest host what is your view would do you think they had a right . Guest i think that it demands the kind of transparency that we typically have we have classified proceedings in hearings. Ive attended some that have been scheduled and deemed classified where very little if any its discussed and it makes me wonder at times whether those that schedule want to keep them out of their own convenience. Not only have i thought about it spoke into my colleagues about it. I was reading through a piece of legislation and i said okay thats about it. They said i cant show you that because it is classified in a way that does not allow you to see it. It was later explained that there were nuances and that is analogous to the committee report, but i found that troubling. Host one of the things you did as clerk for Justice Alito and the court has come under some criticism for not having cameras in the courtroom. Wouldnt Luther Martin principles counsel in favor of obviously he couldnt contemplate the camera a lot alone a web stream of oral argument or Something Like that, but wouldnt those counsel in favor of cameras for the court doing its work . Guest most of what happens is course is an open public process and that the briefing consists of those that are submitted and then the transcripts are available for every one. Not everyone can see it but this is only one part of the process. I would love if they did open it up as a lifelong enthusiast at the age of ten for fun. I would love nothing more than ithenif they started to televisn argument. I dont think that it is up to me as a member of the Article One Branch to manage the courtroom in the sense i dont think that it would be appropriate to pass legislation requiring them. Thats it if they allow cspan or other cameras i would be thrilled. Host but dont you think that it would be right for the American People to see this . Obviously the boundaries and youre not going to pass legislation, but they gave advice all the time. Would you be willing to give the Supreme Court some advice . One of the reasons i see that as i think the members of the public soul the way the arguments were handled in the court and i think they would be encouraged. They may not agree with the outcome of the courts deliberations have every instance. And even though the court frustrates me at times i would hold up against the counterparts anywhere in the world. Host i completely agree. Guest the American People would be thrilled to see the caution and care that is put into every argument. Host lets talk about another of the founders in your book. Aaron burr some people know about him from hamilton hes the bad guy in the play who shoots hamilton in a duel but theres so much else to his story and your chapter really breaks it out. Is the damsel that shot him as they say in the play. But there is much more to it than that. He was the Vice President in the United States under Thomas Jefferson. He became the defender of the little guy in facing impeachme impeachment, aaron burr knew they were facing a trial in the senate and they could either be treated fairly or with regards to their Due Process Rights or they could be rushed through baking guru type fashion that would have been to lean towards the approach that he didnt and instead. Fullstop fo worked oe process rights in part because of that and because Thomas Jefferson continued to see him as an ongoing political threats and candidate during the second term in office this was a capital offense that could have not only ended his political career but his life. It involves him conspiring to mexico. The was a letter that was written in code and there was some dispute one of the things that was shaky about the evidentiary Area Foundation of the case involves the conspiracy to overthrow the government and it was a pretty farflung conspiracy. Jefferson throughout all the stops and engaged in a highly aggressive prosecutorial behavior. Fortunately he was able to rely on the article of the constitution that creates a pretty High Standard set in the process he was able to save his life and avoid a conviction that this shows the high price of those that fight against the government and something very important. Hes the author of the declaration of independence but even in this model of wisdom he still had this very human part that has to be kept in mind because the cover of government are dangerous. Host said that the most essential that they understood that when youre going to have problems and when you need the checks and balances were celebrating in the buck such a persons actions wouldnt have surprised them it is just that which they themselves predicted. It would be idolatry. It was almost to the point of preparing him they all knew he was elected to be the first president of the United States. And kept notwithstanding they wrote and still left the power of the presidency relatively weak because the government provides a deep insight. We have to rely on these very strict rules that have the authorities. Host your book celebrates a couple of things in particular. One is this idea that he is attacking jefferson for trying to interfere in the prosecution. Obviously theres a debate going on right now about the president interfering in the Law Enforcement investigations. What do you think when they say that the president ordered him to drop the prosecution of Michael Flynn as the National Security adviser if you think back to what you were celebrating what do you think that says . Make sure you watch over all restrictions which after all is the only reason to have this constitution or any other. Watch that in this age and any other. In this instance regardless of where people fall everyone should be able to agree they are being exercised properly. He testified quite clearly if i understood at the time that hes never seen political pressure brought to bear in any investigation. Today hes testifying in front of the Intelligence Committee last night he publicly released a written statement. Im still trying to reconcile the statement from last night with the testimony provided to the committee on may 3. Theres a whole lot of questions that come to my mind and he is s being asked about them even as we speak. Maybe i will move off of this particular case but the author thing use of the great it is this idea that he stood up for the independent judiciary and thats also where we are seeing the socalled judges or things like that. Its different than going after a sitting Supreme Court justice criticizing someone may not be something i would do. Its different than going after the job of the highest jerker rests in the country so i think that he was understandly concerned about what jefferson did and where he of the need of those that went through that process. Guest she was a prominent playwright commentator at the revolution era and was a protege who have some concerns about the constitution and she expressed those. Some ended up being aired. They ended up getting in this aristocratic debate or shouting match written down on stationary for a long time. Job adams had a lot of authorship in the constitution and was sensitive to accusations that he had monarchy type of sympathies but theres other undercurrents of this so the letters go back and forth. She seemed to be concerned if tt the government could create a sort of monarchy and produce the same externalities we saw and then to declare independence. And so, she and adams have a spat that lasted for a long ti time. But not without a lot of conflict between them. So there are these documents. After it was ratified they did put congressn the power to declare war. At the federalist papers make sure that congress is in the drivers seat and i think that was done because of concerns against monarchy so how do you reconcile Something Like that with the fact that we have been in hundreds of Armed Conflict since the founding . And theres never been a declaration of the war. Host i struggle with that a lot because people can disagree about when you cross over the line and when it creates military actions the president is able to order in the same way he would have the power to play now they are moving into this area or that area. You cross a threshold between movement of military personnel and the war. Congress has disbursed so he orders the of blockade. Without question they do have Emergency Powers to thin the more recent decades of some people dont like the war powers resolution and for others david is not enforceable that is probably true six flat to achieve a balance through compromise point technologists within a finite period of time that the president needs to come to congress and that is appropriate it is still a balance that needs to be struck. Some of the criteria used we are attacking a Foreign Government and putting them in harms way. It also be injecting u. S. Equipment that we would bomb the area even without boots on the ground. Right now we live in a world where the president carries around the Nuclear Football and as i ever stand it can tell the officer launch into the few minutes it would be launched. Does that concern you . Is a Something Congress should do about that to make sure that congress is consulted or a declaration of war . It is deeply concerning the factory with a world that this many people could die from a military strike is deeply concerning. As a society we have made a determination there is a gray area because we dont want to hinder the ability of the commander in chief to defend the United States. Sanders did you are saying i get to see a formula that would lead people satisfied the president was protecting us if never ever ever made he use these weapons until such time that congress can convene to vote that into law. But that said if there is an idea that comes along. Host kneale want to hamstring the president to retaliate and there are deterrents reasons but maybe no first use you cannot use them first unless you have the approval of congress or what is necessary to prevent protect the United States against the imminent threat or attack. Yes. That would be consistent with the spirit of the war powers resolution. Host now talk about another person so well lot of the uruguay five errors should be bound together very strong each shall represent one naon this style symbolize the complete union of the nation united into one head and one body and one mind. This symbolizes each floor of this income. E pluribus unum. And symbolizes E Pluribus Unum that we are stronger than this of of four parts together other than if we stood alone. So if we became a nation from those that would harm them if they bled bay and together. So with that affect to leave daddy eternal governments so of the confederacy as a whole spirit that there was say overstanding ended did not create a utopia but a successful confederacy. Something we did not learn from our british predecessors like so many aspects this was somewhat uniquely american but would help to have this example that was distinctively american. It worked its way into the articles of confederation. This is not in the federalist papers . No. But nonetheless since the 1740s this was something that he is understood could help us and it has. To that extent it benefits through a significant degree and one of the strengths one of political diversity in this country people feel differently about certain things geographically or economically and they can produce a form of government to rule the extent that we follow that. So to bring the founders up in over the last couple of decades if there should be very equality. Soberly that is a debate for the states. We have made disparate country with different views. And through judicial powers with a state by state basis. That is a fair characterization. That is a celebration of Big Government. Isnt that true that the state level . That which government state or federal . Something as fundamental as the most consequence of choice that we made. So why should gornment have any role . That is a fair question from State Government officials that what for many is for very long time why it needed to be a government decision that all. But it is a fair question of why the government needs to be involved. Day constitutional question develops. But that particular question has been decided by the Supreme Court but the argument in the other direction and it is decided that the state level. So how do you decide if you are a constitutional scholar and understanding state versus federal with no searches source teachers but what about Something Like marriage . Had three figure out those constitutional principles . Best buy the way is better listener from the bill of rights but when you make us single decision to do affect the entire country it is a very strong bundle the with the power is diffuser that decision maki authority that people n break through and make changes and move forward at the state level. But that is a case by case basis but in many instances people are free to decide whether or not they want government involved. And to be isolated some of that in your book with Big Government verses smaller government. Into a prominent figure with the document that was known as the sheffield a separation and as a matter of natural law to be free and equal human beings and the state of nature are this way. That is part of the massachusetts constitution of 1780. And then to realize human beings are free and equal. That she fought and won her freedom. So before the civil war she won her freedom o other ing is a love about her story we have records of her saying that while she was a slave issue was offered one minute of freedom of knowing at the end of the one in it she would lose her life she you would give it up just to know what it felt like to be free. Live free and die. And with that classaction. When does that clerk reconcile that . Because of what those courts do but the fact that she broke through that barrier with that sequence of events and it worked. So after teaching constitutional law with members of the public is the founders faber not good people but to diddle sorts of horrible things but today rivet of slavery and i have my own answers but what do you say to people like that . There are people that look at the cover but that was celebrating people like that but most constitutional history walking into philadelphia in 1787 with an accusation so what do you say . And to make the point in the book not all food participated to the founding or white or male. And those who played that pivotal role and another point and they did some bad things but there was more to the story of ehrenburg have a guy who shot and killed alexander hamilton. They were complicated. Martin luther was a slave owner but he ripped off of bandaid dog slavery and he went there much to the horror of the delegates that this is the abomination. And it took some guts to do that. But they could have read their own slaves but he did not fatigue knowledge it was an issue. And then to the slave trade and with that three fifths clause to even debate that the fact to put that at issue with those provisions and that is for humanity and for the American People to know. But with Frederick Douglass . But he says fill holes in about the constitution of slavery is wrong. This is the abomination. And then with the house of representative with that 18 08 clauses with the first documented history but it may take 30 years to do basically what looks like antislavery that is remarkable. Yes. That is an accurate argument in many respects. Those features a we find morally repugnant are repugnant because of the reality underlying the fact we were a steep a slave holding nation at the time. That is a lasting badge of scar or reminder. One of the greatest things about the document is were not smart enough. And with that amendment process. With that legitimists the of the document and continue to amend that so rather than and gloss over certain features we ought to amend the constitution but if for example, if we decided we wanted the federal government to play of much bigger role with debate and consider an amendment. To be effectively amended. But in that case with the Commerce Clause and to all things that might affect the Commerce Clause. Debating a that was a good idea or a matter of policy but this is a major change. And decided of any amendment process. But the court felt it was a reaction to changing fax of the ground. But you do have fax. But it changed dramatically in the 20th century with the internationally economy. But that argument in that case than subsequent races cases but the problem is of the reality. That was an understanding buy something in one state so to have a spillover eve fact to replicate so with those Economic Activities and manufacturing in that sense had a ripple affect everywhere. And with lopez. That would be a slippery slope problem to allow everything to become of the federal. In there is no aspect beyond reach of the federal government that is why it is quite difficult. With is a that bill whole debate between annapolis and philadelphia . To call that convention together. With those articles of confederation and hamilton and madison said we need a new vibrant National Government and if there is one criticism that you tend to celebrate the losers more than the winners. But the people who lost in the end. With the vibrant federal government but generally they consider into a federalist. So what does the constitution mean today . From those who won the debate rather than those who lost them . To say this over and over again to get that skewed analysis with the hamilton effect without confirmation by is and what you want to see. You cannot comprehend fully what happened in philadelphia in 1787. So unless you read the arguments of the antifederalist so this is especially important in response to that anti federalist he does not say that the big federal power is a good thing. With those economics he does not say that. Not on the points they are making but this would lead to a big powerful government. To embrace that the arguments of madison that most of the power will remain with the people. That is where will be it is more likely. So then to become secretary of the treasury . And he writes up powerful letter to the president we need flexibility not directly from the constitution that is necessary improper but then that is picked up by chief Justice Marshall and then to say we had a debate but there are people who would. If government needs to be big enough then so be a. So tell us why that is wrong. But in other words, the doesnt mean there is a limit to federal power the fact that it does not mean that congress has when it comes to power. If there is one paying of ratification that is the of the standing that congress is the guardian and functionally there is no limit. But the Founding Fathers understood there were limits of federal power one of the things they pushed back strongly was an early proposal. Over any state legislation. If they rejected that resoundingly congress skin trtment door legislate and have a negative power. I cannot they qef for those that underscores to read in the way that we are or children can read it. With a smart highschool kid or junior high kids can pick up the book and read it with ordinary english. This could be used for home school or to supplement their Child Education or the road