Produce the bill of rights because he honestly believes the antifederalist continue to be a major threat and one of the things he repeated a talks about is this will prevent a Second Convention. This will prevent a Second Convention and a lot of his friends and colleagues think he is a worrywart. But at the very end when the bill of rights comes to virginia there are letters between Patrick Henry and another who says wait. The people will realize this government will be tyrannical and we will have a Constitutional Convention and corrected. So there were still people out there 7091 who were expecting they could mount a call for a second, situational Convention Proposal he was not completely paranoid. His view may have been skewed by the fact he came from the state with the strongest organized states rights Political Leadership in the country but he was right there was the push for a second Constitutional Convention and at one point, i guess Charles Pinckney is basically says if we had it that swards would be drawn. There would be mayhem and blood in the streets. Lets not risk doing this again and medicine basically says the same thing. The first one was so difficult can you imagine the second . So they are anxious to make sure this is a dead issue in the water. That speaks to another point that we have come to the jeffersonian claim of the demigods who wrote the constitution but you get the sense they knew exactly what they wanted to do in that this would be the greatest long guest frame of government in the world but if you look at the convention you realize they argued and argued and argued and no issue was ever settled then it would come up again. There was a lot of rancor in and the convention so madison remembers this and they both say lets not do that again. They are wrong because the issue is still alive today. People are urging another Constitutional Convention but we will not talk about that. I have been asked on several occasions to you think we should have another one . I think as polarized as this country is right now, and no. You were saying that theyre really just dealing with the problems they had that day and one of the things that happened while the bill of rights was considered which i dont think comes up in the book is the judiciary act was being formulated in the senate at the exact same time the bill of rights was discussed in the house. And relearn that they knew what the other house was doing and some of the rights that medicine cared about that he put it in his proposals ended up in the judiciary act so he was not as unhappy as we may think. Is a very good point. With the final product not even the antifederal list but apparently Richard Henry was the senator and said he was satisfied that the judiciary act had remedied the defects of the constitution with regards to the rights of the people something that the proposed bill of rights did not do. If it made them happy that was good that it was done. But their response to the bill of rights themselves themselves, the two senators from virginia sent a report to but the governor to say what could we have expected that the federalist control both houses of congress . We have a watereddown peace that doesnt protect anybody and that will allow them to go ahead to become tyrannical even among the federalist, there was a sense the bill of rights tonight go far enough, nambypambies or would not turn out to be important but madison had the idealistic mode as well as a strategic political motive. He is extremely concerned about tierney but not by the government but by the majority and worries that the majority will o press the minority in the population and says what can be done to prevent this . He comes to see the bill of rights as uh document if the principles can be internalized by the population, to be what america stands for, that will operate as the brake on the majority when they try h through a press the minority and in the sense, it is the way we think about the bill of rights to day is our statement of values and ideals not then i can channel medicine, the she is dead but i certainly have the feeling he would be pleased to say that that rule has certainly come true and Alexander Hamilton thought that madisons amendments did nothing important and basically he said unless the structure was a lot, he thought the amendments were too insignificant to be reconciled but Thomas Jefferson when urging madison i fake he puts his finger on the importance of the bill of rights when i put so the goal check do you consider this and other legacy . Certainly over the last 20 years to see the judiciary as a Political Branch and there probably has been a history but the rights that the bill of rights protect and to madison in the long ride is right. To believe if the values are worth defending i am not sure we do but. And i also wondered the story that you tell of original intent. That opens a can of worms i have talked about this in talks and interviews my first book that the man who wrote the constitution was very clear. There were trying to solve an immediate problem is that the states would go to war with one another but with their great powers of the world that the country was on the brink of absolute dissolution and ben franklin if this is a document we have written keeps the country going 10 years we have done our duty. They all had an absolute sense then it deteriorates in to terni. So you stall that as long as you can and. They are not thinking about in 2015 and help with the icy grip of the past by they have the amendment process. We dunno what the generation after that will need lets create afraid of government and give everybody the right to change it as they need to. So i think there would be horrified at the idiot that people would go back to see what theyre dealing with today and to see that constitution to adjusting embattled irina and certainly Political Parties like to day to have seniority in the senate if they saw women floating toward africanamerican president they did not expect the future to be frozen so i think we should stop arguing about those who love the constitution what they meant what they wanted. That is the perfect note to end the discussion. Was a pleasure to a talk with you. I enjoyed it all over the up Colorado Plateau outside of Grand Junction we find alatas of dinosaur bones and fossils but the other thing is that rock that contains three different elements. It has mercury that help to fight cancer and also a canadian that it is used to strengthen steel so the buildup of world were to that was of extreme value and it also contains uranium which as we know that is the best sources for atomic power and atomic weapons. He fought the battle to reduce it preserve water for western colorado by making sure they have their fair share. How . In his state carrier with a federal career he climbed up the ladder of seniority and more power than you might normally have certainly in the United States congress to make sure colorado had western colorado are treated fairly in any division. The first major success is the passage of the Colorado River storage project in 1956. Its an honor to be here at the National Constitution center and what they we have in common talking about the constitution that minnesota was not even a state. But to talk about how you came to write the book together. I will go ahead and start because i am probably the guy who started it. I was at an academic conference and all the al law professors and College Professors get together and with the second bottle of wine. [laughter] an argument broke out between the call the professors and to what did you do to them . To say it was not our fault. It was deep in the culture i spoke up foolishly to say someone ought to write a book that is a name that the professor type. With the objective and a lively and readable so bright that instead of your boring law review articles. [laughter] i was flying in and out of the airport i had three hours with that they to do so i had a little book to play it straight and i wrote it at a coffee shop in the Philadelphia Airport and i called home because luke was in charge of his little sister because i would be late and did that night i showed him the two pages. He was 13 at the time it would be a summer job to be the informal researchers said it would dash assistant. He had great idea is right away to tell a story of the personalities involved in the constitutional disputes this sounded like a better summer job have lawn mowing or flip eight burgers we thought it would be one this summer but it took nine. [laughter] but it was over nine years as day father said summers on the vacation project and to learn to drive and it took shape and it became oplethey viephisticated over luke would rein me in if i back to legalistic so the writing team developed into this pull and tug of keeping the book smart, intelligence, but without becoming a ponderous academic treatise. It would be a book that everyone would read. So we did it over the course of nine summers and last summer we were work only the edits from oured editors and now here it is. Luke, what was the experience working with your father on a book about the constitution on which thees one of americas great scholars . It was a treat. As he said i was sort of in the business of curing him of professoritis. But he wrote most of the first drtau he had is also informally been teaching me by a whole life. He drove me to school and was warming up for his own class is. [laughter] so we would talk about the constitution. There are worse forms of child abuse. [laughter] so i came into the project with a pretty good knowledge of what was going on with a little bit of brainwashing. [laughter] so really what ive tried to do a the project is we were originally a made at a high school audience like highschool government courses so that students could going to college or maybe law school with the better foundational idea about the constitution i was in high school at the time i had good experience with my civics courses but maybe not satisfied with how they were treating the constitution so i was pushing to make it readable and accessible to anyone. Although by the time we were done it is no longer textbook. It could be used in college or high school courses, but the idea is it is a book that if you wanted one book that was your entry into constitution this is a good place to start for everyone. We think we achieved the necessary level of sophistication, but whole time we kept pushing a more clarity and simplicity and readability. And a friend of mine said how long is this book . It is just over 300 pages that is sure to. He said short . Can you say that much about the constitution . [laughter] people write massive treatises and the Supreme Court seems to church out thousands of pages of opinions every year. 300 pages is short believe me they could get inside and put their heads around. It is a long period of constitutional history to cover in a 300 pages. So we tried to produce a book that is comprehensive starting with the Constitutional Convention that describes the basic structure and of various branches of government and a discussion of slavery, that was accommodated and furthered by the constitution that we rapidly go to the bill of rights that is the first five chapters than the beginning of the constitution or you could to think of it as halftime or the second half then the last five chapters cover the history of the documents of the interpretation from 1789 it through 2015 with a series of controversies so recover 220 years of the most important items. We really hope that reads like a novel. We hope it has all the basics of constitution and one no one but a course they really want to take. By a copy. [laughter] take the book to the beach everybody will think youre a super intellectual. [laughter] i was interested in making a text book also. But we spent a while getting into the shape it is in today we went through five for six passes even before it got to the publisher. It does have some very interesting and provocative arguments and one pertains to one of the famous decisions of margrave vs. Madison and to the view that you discuss every branch of government has a role to play, say a a little bit about that. Marbury vs. Madison is the classic case of everybody praises but nobody actually reads. [laughter] marbury involves the midnight judges appointments of john adams says he is rushing to help the door and they failed to deliver the judicial commissions to some of the officers and there is also a lawsuit for someone to get the judgeship and the Supreme Court uses that as the location to the advance the doctrine of judicial review. Well think didnt create it. Actually a wellrecognized constitutional principle. Defended by Alexander Hamilton in the federalist papers in 1788. Very current. But if the constitution, the fundamental law of the nation, says one thing, and an act of Congress Says something to the contrary, the constitution wins. Its really a basic principle that the constitution is supreme law of the land, and anything done by congress, anything done by the president , anything done by the courts, that is contrary to the constitution, is unconstitutional. And should be void. Is unconstitutional and should be void. Part of the mythology that has grown up is that the Supreme Court not only invented the doctrine, which is not true, but they proclaimed themselves to be the supreme interpreters of the constitution, and nothing at all like that actually happened. The Supreme Court eventually got around to declaring itself the Supreme Branch but it did not happen. We traced the history, and until 1958. 1958. Just a little bit before most of our lifetimes. Was bornin 1959 so i missed the great event in 1958 but it was in 1803 the original vision of marberry vs. Madison was constitutional supremacy. The constitution beats anything that government does thats contrary to the constitution. And if you think about it, that means that anything that the courts do that is contrary to the constitution is unconstitutional, too. So, actually the system that the framers devised was one where no one branch has the power of constitutional interpretation, rather, a function of the separation of powers. Each branch serves to try as a check on the misinterpretations of the others. The framers vision was not a Supreme Court in charge of everything. It was the three branches fighting it out and keeping each other in line. I guess that is a theme that runs through the book because we see many instances in our constitutional hoyt constitutional history where the real constitutional interpretation, the things that made a difference, came from political actors. Actions of congress, actions of president. We have a whole chapter on lincoln and the civil war and the constitutional crisis there. And a lot of that was reacting actually against things that the Supreme Court had decided. The infamous dred scott decision of 1857. Which the Supreme Court said that congress could not prohibit the extension of slavery and that blacks had no rights whether citizens whether slaves or free. Thethat was actually a large presip tating event leading to the chain of events culminating in the civil war, and so not every judicial decision actually became the last word on a constitution. The last word on the meaning of the constitution with respect to slavery came from we, the people, by adopting a constitutional amendment, and the last word on the issues of secession and civil war wasnt decided in any court. It was decided on the battlefields of the civil war. So, we trace a lot through the book. The various decisions of various constitutional actors and interpreting the constitution, and sort of take on this gently as we can this sort of myth of judicial supremacy, that whatever the Supreme Court says establishes the rules for everybody. I talked long enough. Did i leave anything for you to add . You did because thats more yet to the story of marberry vs. Maddison. It actually came out against the Supreme Court in some sense because this was the justice of the peace from the district of culp ya so president jefferson actually has secretary of state no, yes, secretary of state, james madison, was being sued for mr. Marberrys commission so the Jefferson Administration was putting a lot of political pressure on the court, which was politically opposed to him, to not deliver the commission, and the Supreme Court end up agreeing. It found using this method of judicial review that it did not have the power that congress had granted it to decide this kind of case. So, its another example of tension between the branches, each branch with itself own constitutional interpretation, and its not necessarily that the Supreme Court won. Its just a balance of power between the president and congress that had made this law and the courts. Ironically, marberry vs. Maddison was kind of an act of judicial restraint. They held against their open authority, saying that the suit the idea that the Supreme Court could award this commission to marberry violated limitations on its own jurisdiction. You have us a you mentioned, in passing just now you have a wonderfully rich discussion of Abraham Lincoln, and the civil war, and its central importance in our Constitution Constitutional understanding. What were the key decisions that lincoln made that most contributed to his legacy as a constitutional figure . Hmm. I could go on talk about Abraham Lincoln for a whole hour. Will you stop me if i this is the way it often worked. Id go on and on and luke would say, thats enough. These are the key points. So, channeling my best luke restraint, the key opinions are that lincoln the key points was that lincoln was an antislavery moderate. The constitution protected slavery in certain ways, and he didnt deny what the constitution actually said. But he drew the line at the authority of congress to prohibit the extension of slavery into new territories. That was the big issue in the 1850s, was the, will no proviso, the comprimise 0 of 1850, kansas, nbc act, and lincolns stance was that congress that the power to prohibit extension of slavery to the territories because it wasnt forbidding by the constitution. This Supreme Court struck down the view in the dred scott decision of 1857 and said slavery was a National Constitutional right that the federal government couldnt limit in the territories. Lincoln sort of rose to prominence as a critic of the Supreme Court so that when he was elected president , the south seceded in part on the theory that we have just elected you just elected this anticonstitutional, antiSupreme Court precedent, see ya. Were leaving. Lincolns first inaugural address is a brilliant lawyers brief for the correctness of his position on slavery, how its really faithful to what the constitution actually said. The up constitutionality of secession, the permeance of the union and the supremacy of the constitution under that under the union and the obligation of the president to resist secession on the grounds its the executives responsibility to pass on the government as it had been and to faithfully execute the laws throughout the whole of the nation. So, lincoln really stuck to his position that led to the civil war out of a consequence of his adherence to what he thought the constitution said, and his strong sense of moral and political obligation to enforce the constitution exactly as written. Its not much of an exaggeration to say that the civil war was fought over questions of constitutional meaning, and constitutional interpretation. Did live anything . Yes, you did. Okay. So, that was the first thing i had in mind, was sticking to the constitution, defending the constitution as against the Supreme Courts dred scott decision. Then the other major thing that we talk about in that chapter of the book is lincolns use of war powers and president ial powers. I think the best example would be the emancipation proclamation, which is the 1863 proclamation that it was a military order. It said, the union armies will liberate slaves. As captured enemy property, essentially, which what a legitimate use of the war power, and that was controversy at the time. Can the president even do that . But thats what really killed slavery. Thats what made it impossible to go back. If the professor can elaborate. It is really interesting lincoln did not think he had Constitutional Authority just to abolish slavery in the states. That would be the president making a law. But he thought he had authority as commanderinchief of the military in time of war to take military measures to subdue and overwhelm an enemy force or power, and part of the Traditional Law of war, as luke explained, was you could free and convert the enemys slaves into your resources. So lincolns theory of the emancipation proclamation was a constitutional theory that the president military power permitted him to seize resources and convert to Union Advantage by permanently freeing at the slaves, as i think many of you now he could not free slaves in the slave state thats remained in the union, and even in areas of the confederacy that were not under that had come under union control, it was always in a measure you would take to conquer enemy resources. As part of why probably some of you have seen the movie, lincoln and hes worried near the end of the war whether the emancipation proclamation will continue to have legal force once the fight stopped. So thats why he pushes so hard for the 13th amendment to the constitution, which putes the nail in the coffin of slavery. If the emancipation proclamation killed the slavery, its the 13 amendment which abowlishes it and put the prohibition in the text of the constitution that really puts the last nail nets coffin of slavery. So as you can tell we get really stewsic about the constitutional issues surrounding the civil war. The interesting thing is, those werent decisions reached by any court. They were decisions reached by president s and congresses and fought over and the battlefields. One of the best chapters in the book is filled with interesting discussions of constitutional text and history. Chapter 8 is on kind of a forgotten or maybe sometimes neglected period of constitutional history running from about reconstruction, 1876 or so, through the new deal, and you pull together a set of Supreme Court cases and constitutional doctrines that were actually really bad, were really Bad Development in american history, and one of most interesting parts of the book. Thats chapter 8, we give these chapters oneword titles. And really hard to reduce whole periods of time to one word themes but the period that we the word we used for that period was betrayal. Because it seemed that after the victories of the civil war, a lot of the decisions of the Supreme Court from 1876 to about 1936, seemed to slide back from the gains that has been made in the constitution, and it was a period in which the Supreme Court held that women did not have equal Constitutional Rights under the constitution. It denied one of the cases we really rail against is a case called bradwell versus illinois, which was a case involving an illinois rule that forbade women at least married women from becoming lawyers. Issue i see some people shaking their heads in disgust here. Were totally with you on that. The Supreme Court completely failed to address the fact that equal protection of the laws means you cant make a distinction that is explicitly based on categories of people. Now, what misled them a lot you see this throughout the period of hoyt they confused their own social understandings of good policy with what the constitution must say. And the thing is, the constitution sometimes says things that are different withour from our present cultural understanding of what would be good policy. And so instead they wrote their policy into the constitution, saying that the office of wife and mother was the duty of a woman and it was inappropriate for women under the laws of god and nature to be a lawyer. I hope my daughter isnt listening. No. I hope she and is takes the lesson that the Supreme Court sometimes just gets it flatly wrong. Then theres a series of other decision, plucky versus ferguson, decision upolding separate but equal interesting gig, segregation. And then the activist decision striking down regulatory and economic policies on the grounds there was a right to property and right to contract. Pure judicial activism. People talk about judicial activism today but its interesting to go back 100 years and see this is just recurrent in the courts history where they take their own views 0 of what good and right and pure and just and then try to bend, fold, spindle and mutilate the constitution. This is a period of the constitution that is often ignored in the history books, and in the law school text books, as if Nothing Happened for 60 years. Plenty happened. Just sort of embarrassing stuff that happened during this time. Well, once again you did leave something for me. Good. The one that i had in mind was buck v. Bell, which is eugene knicks. The very eugenics. The best science of the age but the court upheld the forced sterilization of the mentally ill, and Oliver Wendell holmes, this famous and very learned and mostly well to be say mostly great or well, disagree as to whether holme was a great justice or not. A very famous justice, at any rate. Writes this disgusting opinion, and theres completely fails to apply it was the equal protection of the laws that was at stake. Yes. He was saying, well, this is the last refuge of constitution al scoundrels, everybody makes arguments of equal protection. Holmes was not very good on first amendments freedom of speech. Many cases from that era in which the Supreme Court upheld the suppression of antiwar speech. Actually the origins of holmes famous clear and present danger test and the idea of not shouting fire in a crowded theater. And he used these sort of phrases he was a wonderfully gifted writer but used the phrases to reach results that actually were contrary to the constitutions protections of free speech. So i tend to think he is very much overrated but thats easy to say from a Vantage Point of 100 years later. You also at various points in the book talk about the recurring question of national and state power, and if i read you right you have a sympathy with the sort of Alexander Hamilton inspired National Authority as part of our constitutional text and structure. I guess this requires historical background. The reason for the adoption of the constitution is the complete failure of the previous system of government for the United States. Which gave states sovereign power and operated along the lines of a treaty for the United Nations where the federal government has the authority to ask states so the constitution was in large part designed to produce a long federal government that actually could hold the union together, and the gone effectively, and to that end, they gave the government substantial powers. They were very careful to limit those powers to specific areas, the regulation of commerce, the armed forces, and so forth, but theyre still very broad powers, and the constitution doesnt really provide any reason to interpret them otherwise. Now, the constitution does still guarantee a level of state sovereignty that states are sovereign over all areas in which the constitution doesnt give power to the federal government. And that is where a lot of the controversy arises. But our take generally is that we should limit the constitution s grant power generously. I think thats right. As a constitution is immediately being implemented, Alexander Hamilton, who was washingtons secretary of treasury, adopted a broad view of National Powers, and james madison, one of his collaborators in writing the federalist papers, adonned a narrower view of constitutional powers and secretary of state Thomas Jefferson, also opposed Broad National power. What we find interesting is a lot of todays debate over the scope of National Powers are actually rhys of Alexander Hamilton versus Thomas Jefferson transposed and fast forwarded some 225 years. And actually, we find that we found it turned out in some ways non ideological or mixed ideological, that the different controversies come out different generations and does not necessarily reflect any particular political view today. You willyou will see a lot of people invoking the constitution for political purposes today. I would urge you that if the constitution always agrees with your politics your probably not reading the probably not reading the but your politics and the constitution. Sometimes we have gotten some criticism from reviewers for disagreement. Most people like the book but disagree with a particular point. Which leads us to think were probably hitting the middle. Lets turn to some questions from the audience in this last 20 minutes or so. Interesting question. Our legal scholars 100 years hence has likely to question todays rulings as you question the past rulings . What a terrific question. You are the legal scholar. Actually, the reason that is so insightful as we sit here as monday morning quarterbacks looking back at things and had ourselves in the head, how could they have thought that. It seems thatit seems that people were pretty convinced that those with the proper constitutional understandings of the time. I am convinced that 50, 100 50, 100 years from now, ten years from now people will look back at what passes for constitutional interpretation and go over the thinking . If you have a broad historical sense looking at the way subsequent generations have viewed previous generations of constitutional interpretations, i think that you have to come to the conclusion that there is a lot to be skeptical about that might not survive 30, 40, 50 years from now. The last chapter of the book covers the most recent constitutional time from 1960 to 2015, this ridiculous amount of time to try to capture and one chapter. The oneword title uses controversy. The theme of the modern era has been a resurgence