Transcripts For CSPAN2 After Words With Senator Mike Lee 20170625

I was very pleased with how popular it became it i wasnt entirely surprise. I remember when it first went to broadway thinking this might do well in part because the American People have a certain long before the founding generation, a longing for an understanding of it. They understand that the generation that if figured out, was not a utopian civilization but they were interesting people. They were people who set in motion a government that would last through the ages and would foster the development of the greatest civilization the world had ever known. A lot of the stories from the founding era have been lost by attrition in some cases, benign neglect and others. Maybe deliberately in some cases. Some wanted to reconnect the American People with some of our forgotten founders. Host i want to ask you about that but first hamilton, did you see it . Guest it. Ive listened to the soundtrack countless times. I been waiting for the price of the ticket to go down just a little bit of the 10,000. Host its i think worth seeing because the keyword in what youre saying was people. What hamilton makes clear is the founders were people. Thats what i see and your book as well and its of lovely rendition, so many different founders, many people who folks havent heard of. Sure, you cover people, people know a lot about ehrenberg but then you also have in your book remarkable people, mercy warren ehrenberg native americans, and your whole chapters on each of these people and want to talk about each of them but i think my first question is how in the world to give time of your sitting United States senator. To do a book that surveys just not absent if unassertive like campbellton but people who nobody heard up today. I have long airplane right. Ive sometimes long recesses and lots of pentup emotion whe it s to federalism and separation of power. Host your day job is not enough to keep you busy . Guest my day job dovetails quite nicely with this subject matter. Im always on the lookout are good stories. Whenever i good stories i like like to write about them. I taught constitutional law for 20 years. Ive never heard of how does a story like that come to you . Guest i can say when on the lookout for them they come to you gradually. Ask friends come of the people who they thought should get more credit than they did. This is an iroquois indian chief and interest of the principle of federalism because they lived for centuries before we were our own country. I was intrigued by the from the outset because if not in a most people know anything about. And yet he had a profound impact on our system of government. Hes the guy who enabled Benjamin Franklin to learn about federalism and Benjamin Franklin isecunda to which this information flowed for the rest of the founders. Maids were forced into the articles of confederation and then anymore perfectly into the constitution. Host amazing amazing. Before we get into that, the subject matter of the book itself, i did have the privilege as i mentioned to meet your late father was a legendary figure, one of the Top Supreme Court advocates, and really the father of the modern Supreme Court bar. Is there an influence from him in this book . Guest without question. As i was growing up we talked about things like federalism and separation of powers around the dinner table. I think i was 32 i relies not become does that. I think they should. It made for interesting dinner conversation in our home. My dad used to say there are these two structural protections that are as important as any of the feature of it. And that one is vertical and we call the federalism. The other sores awfu on and recl that separation of powers. When you put those together they prevent any one person or one group of people from getting too much power and using those who are subject to the government. Host maybe for the ideas tell everyone about what to federalism means and what separation of powers needs and had a different. Guest federalism to distribute bi within our government along a vertical axis meeting it organizes the balance of power between the federal government on the one hand and states for the people on the other hand. It sets the default principle both in the original constitution and by extension to the tenth amendment. I default proposition that most powers are going to be the state and local level with the people, and those identified as federal are vested in congress. It articulates those enumerated powers that are federal most of which are found in article one , section 8 of the constitution. Those that are not found there and are not reasonably linked to that were necessary and proper to the accomplishment of one of those and by that im referring to powers like, it provides clearly for congress to the power to provide for our National Defense for various closet of article one section eight. It doesnt specifically identify will be no call the Veterans Affairs department, but it contemplates that because it is necessary and proper. You cant have an Effective Armed forces or should i do take care of your veterans. Everything else that is not properly allocated to the federal government through the constitution is supposed to be reserved to the states or to the people. Host lets take, make it concrete for everyone, like a lot of states are legalizing marijuana. And isnt something that the founders what it said that if something should be left to states and the people . Guest yes. Most certainly it wouldve been. As a matter First Principles i think deciding whether or not youre going to allow a particular treatment, a particular pharmaceutical product, for example, especially if the product can be produced and sold entirely within the state in question, that a state to have that power. Congress has taken a different turn in recent decades and has come up with a comprehensive regulatory scheme. If we were to return to First Principles we would probably cultivate a system in system in which each state could decide for itself independently whether not to allow that or any other treatment. Host you call in the book for a return to the First Principles. Am i to connect the dots and say your vision of the constitution is one that would prevent the federal government from this and to allow that to be for states of the people to decide the legalization of marijuana . Guest ultimately yes, thats the logical conclusion one would reach. That doesnt mean we can do it immediately or abruptly or ignore existing federal law. I do think taken to its logical conclusion the tenth amendment and the principle of federalism within the constitution as a whole contemplates a state ought to be up to decide that. I would phrase it differently than you did. It is a matter for the state to decide, the people get to decide that at the state level and thats with the constitution does is it allocates what part of government undertakes which task. Host so would that be true as long as the product could be confined within state lines . Dimmable moved to the book, but lets say its not marijuana for heroin. I could also be confined within state lines. So with this in view say that states to legalize heroin . Guest youre talking this something that can be produced entirely within one state. If the state wants to do it. The principal federalism would suggest yes. It would also suggest that congress can decide whenever somebody is moving in interstate commerce, if there is an interstate or International Commercial transaction involved or one involving indian tribe, that would implicate caucuses federal power. Host but if its when the state bounds and so on, then your constitutional view is guest as a matter of first principle that is a state animal subject to state regulation. Host lets talk about your book, you say that a lot of people are ignoring certain founders, haviland about them. I dont think your sink in some malicious way, even people who care about the stuff dont learn about some of these people. Who are some of her favorite people in the book as you talk about that you want people to know that . Guest i really like the story of Luther Martin, the original antifederalist. Antifederalist. Most people dont know much about it. He was an interesting guy. He was drunk almost all the time. He was a successful lawyer, started out in virginia, when to maryland and ended up becoming marilyns longestserving attorney general. Was also a delegate to the Constitutional Convention. He was so the choice was drinking at one of his clients upon reaching him demanded that as a condition of the agreement between the client and the lord that Luther Martin refrain from drinking got the representation. So Luther Martin got around this by taking al a loaf of bread, soaking getting brandy and then eating a piece of the bread whenever he felt like he needed a drink. As a lifelong woman who doesnt drink, i find this one quite curious. But Luther Martin foresaw the fact that the constitution might enin the 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 head of his time in this regard. Host just on the very first page of that Luther Martin chapter, theres a fabulous chapter, so engaging and fun to read i think in a way a lot of history books are not. I recommend the book as a whole but particularly that chapter. The first page as that Luther Martin was really upset about the Philadelphia Convention enclosed in secret. That of course has been set up as one of the great things that 89 men walked into the Philadelphia Convention on a hot day in may 1787 and a close those doors and they dont leave for three months. They debate everything and it doesnt leak. Because it doesnt leak they can really have a full fair debate. And then they go and sell the constitution to the world and that ratifying conventions and so on. You have the privilege of serving in the senate for a while now. Sometimes you do have closed hearings for various things that you are also exposed to all sorts of classified information. Was Luther Martin wrong to say that the convention should have been open and not closed . Guest he would be critical of the decision to close it. It goes against what we feel like is the command of good government. Yet i understand why they closed it. I think you are right in suggesting that this probably could not of happen, but would not a turned up the way that it did have been not closed it. Its the semi can criticize Luther Martin for raising the concern, especially the way i do things i probably wouldve been critical of that decision as well. Does mean i wouldve been right in that instance. The document do produce i think is good. Host and today i think what is your view on government secrecy . Do you think martin that theres basically sunlight everything you should do is in somewhat . Guest it illuminates and disinfects and i think the process demands the kind of transparency that we typically happen. Youre right, there are times when we have classified precedent, classified hearings where classified information is being discussed that cant be released or else it would undermine some of the National Security interest. I understand that. I do worry sometimes that there is an overclassification phenomenon that can occur especially with some hearings. I have attended some hearings in the senate that event scheduled for a classified setting, have been deemed classified where very little if any actual class that information gets discussed. It makes me want at times whether those scheduling it in classifying it just want to keep the press out for the own convenience. Host have you ever thought about, maybe it sounds hokey, but using a Luton Morrison Luther Martin argument and say what are we doing . Our founding principles really to call it generally for openness. There is some need for national skewed as you say but to try to push the body element in favor of openness . Guest yes. Absolutely. I dont have a thought about it bubut i spoken to my colleagues about it. It is important to me. One of the things i found frustrating, there been times when passed legislation where i discovered a as a classified anx to this legislation. Ill send one to go see the classified annex. One time i was finishing readig the classified annex to a piece of legislation and i said okay, i guess thats about it. One of the staffer said he had seen annex to the annex. And i said okay, show me the annex to the anixter he said eyecatcher you that. Why . Because its classified in a way that doesnt allow you to see it. Sigh stability comes on being asked of some member of the senate to vote on something that has an annex to annex that im not about to see. This was deeply troubling to me. It was later explained to me there are legal nuances. I said of the people explain to me technically thats not part of the legislation. Technically thats analogous to commit a report. But regardless i found a troubling. Host absolute. One of the other things you did in your career was for the Supreme Court for justice alito. The court has come under some criticism for not having cameras in the courtroom. Its almost functions to Many Americans like a secret body. They do have written opinions in the way that you written bills 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 seats are for the public or Something Like that. My math might be wrong but its not a dramatic number. Wouldnt Luther Martin like principles counsel in favor, he couldnt contemplate a camera let alone a kind of web streams or argument or Something Like that, but with those principles be counsel in favor of cameras for the court doing its work . Guest possibly. It may will be the case. It is a different, you referred to some of this, most of what happens in court is an open process in that the briefing most of the arguments as you know better than anyone consists of briefs that are submitted. They have an oral argument. The oral argument transcript are available to a good sometimes audio records are made available to everyone. Not everyone can see it and see it live, but this is only one part of the process. I would love it if they did open it up. As a lifelong if his use of the Supreme Court, someone who started watching Supreme Court arguments at the age of ten for fun, i would love nothing more than if the Supreme Court decide to start televising arguments. I dont think its up to me as a member of the Article One Branch to to article iii branch, the Supreme Court how to manage his courtroom. In the sense that dont think would be appropriate for us to pass legislation requiring them to cameras in the courtroom. If they allowed cspan in there or of the cameras, i would be thrilled. Host i knew you would be thrilled but i think the questions dont you think would be right for the American People to be able to see this . I just ten the respecting constitutional boundaries and you will not pass legislation, but branches give each other advice all the time. Certainly the courts are not shy about giving you exactly. Would you be willing to give the court, the Supreme Court some advice in that regard . Guest i think would probably be a good idea, a net benefit for the public. I said that because i think members of the public saw the way arguments are handled in the Supreme Court. I think it would be encouraged. They may not agree with the outcome of the courts deliberations in every instance, and even though the court frustrates me at times i would hold up against any of its counterparts anywhere in the world. Host i completely agree. Guest i think the American People would be thrilled to see how it works to see the caution, the care that is put into each and every argument. Host well said. Lets talk about another of the found in your book, edinburgh. Tell us about him. Some people know about him from hamilton, the guys the baguette in the play who shoots hamilton in the dual but there is so much else to this mans story and a chapter really brings it out. Guest hes known as the damsel who shot as a say in the play. But theres much more to him than that. He was the Vice President a United States of course under Thomas Jefferson , even that story is quite interesting how he became Vice President. Guest as is the fact once he became Vice President he became this defender of the little guy, this defender of those who face impeachment trials, and facing impeachment trials for host the chief justice of the United States. Guest well said. Hardly the whole guy. But aaro aaron burr without rego their station knew only that these people were facing a trial. Facing a trial in the senate. They could either be treated fairly and with due regard for the Due Process Rights or it could be rushed through in a Kangaroo Court type fashion. Would have been tempting for burr to lean toward the Kangaroo Court approach picky didnt. He instead looked out for the Due Process Rights. In part because of that end in part because Thomas Jefferson continued to see him as an ongoing political threat, and ongoing rival president ial candidate. During his second term in office when burr was no longer by president Thomas Jefferson had burr prosecuted for treason. This was a capital offense. This could have ended that only his political career but his life. Host tell us about the story because it involves him conspiring with a colonel and bring trips to mexico and the like. Guest it involve involves te Conspiracy Theory of general wilkinson. There was a letter that was written in code and there is some dispute. It appears doubtful that it was ever even in his handwriting. That was one of the things that were shaky about the evidentiary foundation of the case against aaron burr. But involve this conspiracy to overthrow the nicest government. It was pretty wild. It was a pretty farflung conspiracy. Jefferson pulled out all the stops. Really engaged in a lot of hyper aggressive prosecutorial behavior toward burr. Fortunately burr was able to rely on language in article iii of the constitution because it creates a pretty high standard, 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. It also shows us something very important. Thomas jefferson is someone i respect a lot and i think most americans do. Hes the author of the declaration of independence pic but even Thomas Jefferson, this model of wisdom, this genius of the law of architecture, of science, Thomas Jefferson having been in the office of the president of the United States had this very human, very jealous political art. That always has to be kept in mind because the powers of government are dangerous. Guest but isnt that of all the geniuses of founders come is about the most central one, which is a liste understoos madison says in federalist 51, men are not angels, and tickled when theyre in power, thats when youre going to problems and thats what you need the checks and balances that you celebrate in this book, horizontal and vertical constraints on power. At the concert to convention would be idolatry, worshiping is a were george washington. They love to george washington. Almost uniformly to the point of reviewing him. Theyll do that he was going to be the first president. It was all but a foregone conclusion. And yet notwithstanding that they wrote article ii with washington as first president in mind. They still let the power of the presidency relatively weak, in part because he understood this concept that madison x point so well in federalist 51 that government provides a deep insight into human nature. If human beings were angels they would have no need of government. If with access to ages they could govern over us. But since we dont, we have to rely on these very strict rules that catholi cabot authorities t the abuse. Host now your book celebrates aaron burr for a couple of things in particular. One is this idea that he is attacking jefferson for trying to aggregate all the prosecution power, interfere with the prosecution and basically launched a prosecution against him. Obviously today, literally today theres a debate going on right now about the president interfering with Law Enforcement investigations. What do you think aaron burr would say about, we dont have the facts but at least literally the former director of the fbi is testifying as were doing this interview saying the president ordered him to drop a criminal prosecution of Michael Flynn as National Security adviser. If you think back to what you are celebrating about burr what do you think that says . Guest i think burr would tell people at any age to make sure that your vigilant in protecting the separation of powers, to make sure you watch over all restrictions on government in the constitution which is only recent of this constitution or any other. I think you would tell us to watch that in this age and in any other age. In this instance regardless of what people fall on their views of this president ial administration, everyone should be able to agree that it is a healthy thing for people to make sure that the levers of government power being exercise properly. Host okay. Guest as to what will happen in this case i dont know. I sit on the judiciary committee. We had jim comey in front of our to me if you going to testify quite clearly as i understood them at the time that he is not ever seen political pressure brought to bear in any particular investigation here today jim comey is testifying in front of the Senate Intelligence committee. Last night he publicly released a written statement. Im still trying to reconcile his written statement that he received last night with the testimony he provided to the Senate Judiciary committee on may 3. There are a whole lot of questions that come to my mind as i read through the i know he is being asked about the even as we speak. Its hard to discern whats going to come of this until i see that testimony. Host thats fair enough. Maybe that i will move this slightly differently all of this particular case, but the other thing you celebrate about aaron burr is this idea that he stood up for the independent judiciary, that jefferson had been attacking it, and thats also something that in todays world we are seeing a bit of where the president lost some cases and says those are socalled judges or things like that. What do you think burr would say about that . Guest are different than going after a sitting Supreme Court justice for chief justice. Criticizing someone might not be something that i would do or that you would do as sworn officers of the court. It is very different than literally going after the job of the highest jurist in the country. And so i think burr was understandably concerned about what jefferson did and wary of any to guarantee the Due Process Rights of those who went to the process. Host tell us a little bit about Mercy Otis Warren. Who is she and why she in the book . Guest Mercy Otis Warren was a prominent playwright public commentator of the revolution era, and she was also a friend and provision of john adams. Very close to both john and abigail adams. She had some concerns about the proposed constitution, and she expressed of those. Some of those concerns ended up being aired in this lengthy series of letters that went back and forth between Mercy Otis Warren 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 to john adams understand had a lot of pride of authorship in the constitution and he was sensitive to accusations that he was a monarchist or yet monarchist type sympathies. The undercurrent of this and some of the to go back and forth. She seemed to be concerned the federal government to create a monarchy and miniature, that it could produce many of the same negative extra mouse we saw saw from our Previous National government, the one that we are just at the time fought a war to revolt against, and from which to declare independence. She and adams had this real spat that lasted for a long time. As i explain in the book are able to resolve the differences towards the end of their lives. But not without a lot of conflict between them. Host her big point was these monarchical tendencies in the document, im really concerned about it and foreignpolicy was a big part of that. After the constitution was ratified and article ii gives the president the commanderinchief power but they did put congress with the power in article 1, section 8 to declare war to make rules for the capture of armed forces and all sorts of other things like that. Really i think the federalist papers make clear congress is larger in the drivers seat when it comes to war. I think that was in part that because of concerns like she had against monarchy. How do you reconcile Something Like that with the fact that weve been in hundreds of Armed Conflicts since the founding, and theres never been a declaration of war, other than five times but not just one or two. Guest i struggle with that. I struggle with it a lot. Because people can disagree about when you cross over that line, when a discrete military action that the president has the power to order in the same way that he would have the power to order what time they will play taps and what time they will play reveille. You can order troops move into this area out of that area. At some point you cross a threshold, a clue threshold between movement of military personnel and war. I think you cross over into that as soon as you got u. S. Military personnel taking action on foreign soil, sovereign soil against the incumbent government of the foreign sovereign. To me that is war. And to me once you reach that point you need an act of congress of some sort. You need something saying this is a declaration of war. We hereby declare war, only something saying this may not be a fullblown war but we also isis will to action. I think the constitution demands that, the letter and the spirit. We havent seen that. For a very long time. That troubles me give in to think we get into that. Host good for you. Its quite striking like when you read what she is saying, what Mercy Otis Warren messing about the monarchical tendencies and that you think of the fact that almost every president since the constitution was written has put troops on the ground in other places. Its been 200 plus times. There is i think i need to revitalize congresses role in this space and that does seem really consistent with the founding principles. I guess we could disagree a little bit. I dont know if all congress always need to unless its emergency selection and youd have time to get congress to get something. I think or say the president has some limited emergency power. Think about president lincoln after shots fired on fort sumter on april 4, 1861. Congress is dispersed. You can call them back so he orders the blockades. Guest without question, president to have emergency powers. In more recent decades without the war powers resolution pics of people dont like that. Others say its constitutional suspect or least not binding in dissent is not judicially enforceable. Probably true in that respect, but still it attempts to find a balance to achieve some negotiation or a compromise point between these powers and acknowledges that within a finite period of time after the president directs military action on foreign sovereign soil and in a of hostilities, that the president need to come to congress. I think thats an appropriate balance. Even if its not a balance that can be judicially enforced it is still abounds and needs to be struck and fair one. Host some of the criteria you use, you said basically war if we are attacking a Foreign Government and putting u. S. Troops essentially in harms way, on the ground. Guest though it doesnt nest so had to be that. They can be injecting used equipment into something, we bomb and youre even if there are not boots on the ground we might still be at work. Host right now with even aware which the president literally has an officer carries around the Nuclear Football pick as i understand it he can tell the officer launch in a few minutes Nuclear Weapons will be launched against some of the government. Does that concern you ask is or 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 . Guest it is deeply concerning, the fact that we live in a world where this kind of danger exists at all. The fact that this many people could die from a military strike is deeply concerning. We have as a society to this point made the determination that we want to leave some great area there because we dont want unduly to hinder the ability of the commanderinchief to defend the United States. I understand what youre saying. I have yet to see a formula that would lead people satisfy the president was protecting us if, in fact, what were talking about is never ever ever made the president use weapons abc d. O. E. Until such sinus congress is able to convene and vote it, but that into law. I think people have concern for that. That said, if theres an idea comes along, this one that illi would be happy to look at. Host you dont want answering the president nukes are launched against us to be able to retaliate and all sorts of deterrence reasons why you want that ex ante before embolus just say no first use. It used Nuclear Weapons first and less you have the approval from congress. Host and unless doing so is necessary to prevent, protect the United States from an imminent attack, against an imminent threat of some sort or another. That would certainly be consistent with the spirit of the war powers resolution. Host with the people youre somebody in this book. Lets talk about another person use of in the book. As i telegraphed at the beginning come sorry, i mispronouncing the name, its not canasatego. Guest canasatego. Host so heres what canasatego says. What the law of the iroquois are in the book, you reproduce it and it is quote five areas shall be bound together very strong and each arrows represent one nation. As the five arrows are strongly bound, bishop symbolize the complete union of the nations, those are the five nations united completely and folded together united into one head, one body, and one mind why is that in the book . Guest this symbolizes e pluribus unum. One architectural symbol youll see that the city of washington, and another important components of america is, youll see in europe a lot but its a bundle of sticks bound together usually by either ropes or leather straps. It symbolizes e pluribus unum, that we are stronger than some of our parts. Westover together than we would stand if we stood elbow. The earthquake understood this many centuries before became a nation. Oh the iroquois understood this. One thing that worked well for them is the fact that they would still leave the interim government of each tribe come to each tribe so that the confederacy as a whole didnt know in the internal affairs of the tribe. The fact it was his wellsettled understanding produced an outcome that was good. And again a as a point in the bk this didnt create a utopia. I want to overstate the point but it did create a successful confederacy. This is something we didnt learn from our british predecessors. This is not something came to us from england like so many of our laws come some aspects of our constitutional system did. This is somewhat uniquely american. Yet the swiss confederacy provided another analog but is hopeful that this other example, one that was distinctly american. Canasatego taught this to Benjamin Franklin. It worked its way into the articles of confederation and later into the constitution itself. Host i dont recall this anywhere. Guest i dont see anywhere in the federalist papers that it nonetheless was on Benjamin Franklin to mind at least since the 1740s when he became acquainted with canasatego. This is something that he understood could really help us, could really help our young republic. And it has. To the extent we are followed federalism it has benefited us to a significant degree. Its one of our strengths as a country. We have this rich cultural, political diversity in this country. People in one part of the country feel different about certain things and they do in other parts of the country. Geographically, economically. There are differences and those differences are able to produce a form of government that allows more people to get more of the conductive what a list of the government they dont want to extend we follow it. Host tell me if ive got this right, if im tried to bring the pound to the modern day. Without a debate in this country over the last couple of decades about whether there should be marriage h equality, whether gie people gave people can marry one another the guy despite the gc really thats debate for the states to have in the legislatures . We have a disparate country with lots of different views. That should be resolved at the state level. That it should be done really on a kind of statebystate basis to is that what you would say . Guest thats a fair characterization. In other words, that which is not rendered federal by the constitution should be decided at the state level. Host and yet you also have in this book a celebration against Big Government, or government control over peoples lives. Isnt that also true of the state level . Isnt somewhat theyre concerned about, the sounders, is government can forget about which governments, state or federal, just government in peoples lives and do something that is fundamental, for example, the right to marry. Most consequential choice we make in our lifetimes. Why should government have any role given to people that youre celebrating . Guest that is a fair question and that is a question ive raised in the past with State Government officials, why it is that what for me as religious ordinance that was part of our society because it was a religious ordinance. Life need to be a government decision at all, i base this long before this case and looking forward, the operator fell case. Its a fair question of why the government needs to be involved in and the first place. Once, it does become involved in it constitutional questions develop and what a discussion is which level of government. That particular question has not been decided its been decided by the Supreme Court. But the argument in the other direction is if its not made federal by the constitution, that it belongs to the people to be decided at the state level. Host but once, theres a third option, right . Im curious like how do you decide, you are in a constitutional scholar, how do you decide which is the third box. We understand state versus better. That allocation per level about the stuff, the bill of rights and no governments can do, no searches and seizures, no establishment but what about Something Like marriage . Why, how to figure out whether or not a constitutional principles prevent the government at all funded without ticket when theres an equality concern . Guest this by doing his work federalism and the subsidy protection for the bill of rights intersected when you diffuse that power when you make a single machine that governs the entire country, then you bolster government are going back to the fascists with a bundle of errors we talked about a minute ago. That is a very strong bundle, its much more difficult to break. When the power is more diffuse and a Decisionmaking Authority is left at a more local level people can break through. They can make changes and they can move forward at a state level and once people see something his work in one state, and people in a state might follow it. Theres no easy mathematical point of to answer the question youre asking. I completely understand the question but it has to be handled on a casebycase basis. My point is in many instances olestra talk about a question of federal constitutional law when people are free to decide whether or not they want government involved. If they do that make the decision of the state and local level. Host actually. I isolated some of the folks in your book but others on this whole idea about Big Government versus smaller government, who else would you highlight and why . Guest mum bett, a whole chapter. I love mum bett. Shes a slave in massachusetts. She was a slave in the household of colonel john ashley who was a prominent figure in massachusetts. It was at the home of the colonel that a document they became known as the sheffield declaration was written. The document recognized as a matter of natural law that all human beings are free and equal. Human beings in a state of nature, its who we are, its what we are. That language from the sheffield declaration later migrated and became part of the massachusetts constitution of 1780, and, of course, by john adams. Once it became part of the massachusetts constitution, postrevolution, mum bett realize good heavens, it all human beings are free and equal, then i am free. She retained Legal Counsel and she fought for and won her freedom. This is in the early 1780s, so were talking 80 years before the civil war. And she won her freedom from slavery. One of things i love about about her story is that weve got records of her saying that at any given time while she was asleep, if she had been offered even one minute of freedom, knowing that at the end of that one meant she would lose her life, she would give it up just to know what it felt like to be free. Host thats what my favorite license plate says, live free or die. She won her freedom but she did in slavery generally. Her case was, it was a class action, right . Guest thats right. Host how did the court reconcile that . How did they just give it to one person but not to anyone . Guest typically what court to do and especially back then typically what court did was to adjudicate those things. The fact she broke through that barrier set in motion a sequence of events that took a lot more time to develop. She opened the door for other people, of the slaves in america to capture their rights as human beings, and it worked. Host i think one of the big things after teaching constitutional law for 20 years that i hear time and again from students or even from members of public wins im lecturing is, you know, the founders, you keep on talking about the founders but these people were not good people. They were slaveholders. They literally had people in chains and in all sorts of horrible things. And even enshrined that in the constitution itself with the provision saying you couldnt amend, get rid of the constitution to gets rid of slavery until 1808 and the like. I have my own answers but entries about what the city people like that . Im sure theres a bunch of people who look at the cover of your book and say, thats just about a bunch of white guys who were slave owners. Obviously the book itself is a reminder to that because youre subverting people like mum bett. But nonetheless i think most constitutional history, most soundings can you think about it there thinking about the 59 people to walk into philadelphia in 1787, the 39 he walked out, and this accusation is definite i think truly comes to be. What you say . Guest first of all as you point out, tried to make the point in this book that not all people who participated and contributed meaningfully to americas founding were white and male. Among those people who left their mark where women and minorities. There were a lot of people who played a pivotal role at a pivotal time in American History. Another point is that yeah, a lot of these people did some bad things, but they are more nuanced just as there was more to the store of aaron burr than the fact that he was a guy who shot and killed Alexander Hamilton in a duel. These people were complicated. Luther martin, for example, was a slave owner and yet he had the guts to go into the Constitutional Convention and hes one who rips off the bandaid on slavery. He brought it up. He went there much to the horror of a lot of the delegates. He brought it up when he said this is an abomination. The judgment of almighty god is going to be on this young nation. If we dont get rid of this. We should end it. It took some katz for him to do that. Its odd, its weird. Yet slaves and sure, if you want to do that he could he couldve read his own slave but to my notes you did do that. He at least acknowledge there was an issue. There are features of the constitution that a morally repugnant, the fact to maintain the right to continue the slave trade during the early years of the republic of the constitution is totally repugnant as is the 3 5 clause. And yet the fact they were willing to even debate the fact there were willing to put it at issue in those provisions ultimately helped lead i think to the end of slavery. And thats good for humidity. Thats good for the American People to know that this was helped along by some very brave souls who were there to speak up, people like mum bett. Host have you ever read Frederick Douglass his views . Guest yes, but i dont member what he says. Host Frederick Douglas one of the most remarkable americans have ever lived, a former slave. But he says actually this whole spin about the constitution being proslavery is wrong. So take the threefifths clause which is an abomination to graze as what that really is is an incentive to fully enfranchise because every state if they get to this more than those and better representation in the house of representatives it and make people free. Otherwise theyre limited limited by three this sticky says the 1808 clause about slavery being banned look, the first document in history that actually contemplates indeed encourages abolition of slavery. It will take 25 or 20 years or 30 years whatever to do, but basically the whole thing is cast as these things that look like their antislavery actually proslavery, where antislavery in all sorts of ways. Remarkable argument. Guest i think it was an accurate argument in many respects in many respects those features that we find morally repugnant are repugnant because of the reality underlining them. They are repugnant because they reflected we were a slaveholding nation at the time. Thats what was awful about it. Arguably some of these same features that are lasting badge of scar or reminder of that ugly error in American History actually helped bring to an end. Host one of the greatest things about the document, the constitution, is article v. Our founder symbol, we are not Strong Enough to foresee all the stuff. We might want to get rid of slavery. We might want of women vote or whatever they said his the process to do it. Do you feel like the amendment process is invoked as often as it should be . Guest no. I think it should be invoked more often. I think its part of what maintains the legitimacy of the document, maintains the authenticity of our system of government if we can continue to amend it as our society changes. So i think rather than class over certain features with which we are uncomfortable, we ought to amend the constitution. If, for example, if we as a country decided that we wanted the federal government to play a much bigger role that it has, i think a more appropriate approach would have been to debate and consider an amendment to the constitution authorizing that rather than having the Supreme Court effectively amended as i believe it did on april 12, 1937 when it decided a case. In that case the Supreme Court basically turned the Commerce Clause authority commerce to regulate commerce between the states and formations and indian tribe into and all things that might affect Commerce Clause. Very, very different. We can have a debate about whether that was a good idea as a matter of policy, but as a matter of constitutional law this was a major change and was brought about entirely outside of any amendment process contemplated by the founders or authorized by article v of the constitution. Host but it was a process that the court felt was action to change impacts on the ground. You have a fixed text written in 1787 but you do have faxed that change. And as commerce changes as undoubtedly the nature of commerce changed dramatically in the 20 century with an International Economy and really making it hard to do something in one state without it having ripple affect some else. Isnt that a proper basis for constitutional interpretation . Guest that is exactly the argument made in the case and in all subsequent races following from the line including still burn five years later. The problem with that is it ignores another reality which is that wasnt understand at the time of the founding, certainly in 1787, there was an understanding that buying something in ones state has an economic effect and an economic effect in virginia might have a spillover effect in maryland, especially when you replicate and amalgamate the Economic Impacts of all of these interstate activities. There was an understand at the time that Economic Activities like labor, mining, agriculture, manufacturing or economic and in that sense at ripple effects february. But for many of the same reasons articulate by Justice Thomas in his concurring opinion in la paz, there is a real problem, a slippery slope problem that you get when you allow everything to become federal. When you send anything and everything when measured in the aggregate substantially affects interstate commerce. There is the aspect of human existence that is left beyond the reach of the federal government. And thats why lopez was quite difficult to refute. Host isnt that the whole debate that our founders had between annapolis and philadelphia, that is, in 1786 they call this commercial convention together just a few miles from where were sitting, and the idea is lets limit it to some commerce changes, articles of confederation hard to get things done, required unanimity and so on. And hamilton and matt olsen say actually we need a new national government, and vibrant national government, and the call for philadelphia on that basis. And you think about if i won a criticism of this magnificent but it is that you tend to celebrate the losers more than the winners. Your view is guest i like underdogs. Host the people who are warning against a monocle presidency or a vibrant that are government and one of more to the state but they are generally considered the antifederalists. You rightly say you should read the antifederalist along with the federalist, but if were doing thinking about what does the constitution mean today, should we look for more of the standpoint of those who won this debate rather than those those who lost them traffic but this is a central theme of other when you look only at the winners and essays over and over again in the book, when you look only to the winners, youre going to get the skewed and elsa. Youre more likely to fall victim to what i call the the hamilton typically look in the mirror and receive confirmation bias from what you want to see. I dont think you can comprehend fully, i dont think anyone can comping fully what happened in philadelphia in 1787 and less they read both sides of the argument. Unless you read the arguments of the antifederalist, then the argument 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 federalists to the antifederalist. Look at how hamilton, for instance, response to the arguments raised by the antifederalist. He doesnt say, you know what, big federal power is a good thing. We need virtually unlimited power. We need congress to regulate labor, agriculture, mining and activities that economic but interested in nature. He does not say that. He refutes them on the points theyre making, which is this is going to lead to a big powerful government. Hamilton adopted by many on the left, many progressives today as sort of their mascot among the Founding Fathers, actually embraces it and incorporates almost as if i reference the arguments of madison. Insane look, most of the power is always going to remain with the people. Thats what it will be. Thats what it will naturally accrue. If theres any risk of any one part of government getting too powerful, its more likely to be there because thats what most of power is. Host hamilton also just a year later become secretary of the treasury and tha then we had this big debate. Should we have a bank of the United States . And he writes this powerful letter to the president saying absolutely we need national power. We need flexibility. Its not directly in the constitution but its kind of the spirit of the constitution and the search and proper the same as your modernday example of the veterans department. That is picked up by chief Justice Marshall in one of the greatest opinions in the United States reports, macol mccullochs maryland. The opening lines say we had a debate about whether the federal government should be big or small and limited. There are people who want those people said it government needs to be big enough to adapt to the various crises of human affairs, so be it. Thats what our constitution is. Tell us why that is wrong. Guest it doesnt have to be the case that that is wrong for federalism still to be something that needs to be strengthened again. In other words, the fact that there was a debate and a federalist one doesnt mean there is no limit to federal power. The fact that mccollum turned out the way it did doesnt mean that there is a blank check that congress always has when it comes to power, that whatever Congress Wants to do it may do. It there is one thing that wouldve certainly thwarted ratification wouldve been the understanding that congress is the guardian of its own power and there really is functionally no limit. Thats the real problem when we simply assume that into existence. The Founding Fathers understood that there were limits on federal power. When the things they pushed back against strongly was one of madison early proposals which was to give the new congress and negative power over any state legislation. That never again series moment because it was a guard as unduly tamping down on state authority. They rejected that resoundingly and yet that is effectively what we have today. If congress can dream it, congress could legislate on it. And if congress can legislate, congress can have a negative power. Host five euros fibrous. I cant thank you enough for writing this book which have everyone reads. One of the beautiful things about it, it underscores to be what i feel very deeply which s the founders were not political in the way that we are today. In this book is not political in the way we are today. Democrat should read this book. Republicans. Actually children can read its written not want to say that pejoratively at all, a Smart High School kid or smart junior high kid can tak pick this bookp and read because its written in ordinary english with big ideas. So thank you so much for writing it. Guest thank you. Thank you for thing that. Thats what the ideas i got that, anyone who is being homeschooled or to supplement their childs education or even their own. Cspan where history unfold daily. In 1979, cspan was created as a Public Service by americas cabletelevision companies and is brought to you today by your cable or satellite provider. Heres a look at some of the books being published this week. Machine platform crowd. Look for the titles in the coming week and the authors in the future on booktv and cspan. Profess professor david cuillier, what is the information of freedom act . It came about in 1966 with a little pressure from the es