Transcripts For CSPAN2 Principles 20240706

Boxes of perfectly fine tea and throw it into the water. It will be the 250th anniversary of the boston tea party. So thats one of the reasons we wanted to have these conversations on the eve of the beginning of the anniversaries of this great experiment, because once the tea party happens, you know, some mistakes get made, people start doing things, people react and the next thing you know youre at war and going to see that in our nation. Were going to see these anniversaries coming fast and furious. 2024 will be here in virginia. The of the fairfax results 2025 the 250th anniversary of George Washington becoming the commander in chief and of course, 2026 to 20 fifth anniversary of the declaration of independence. And so it is an apropos time to take the pulse of the nation which we did with our poll and to have a chance and an opportunity to be together to think together, to about ways in which we collectively strengthen this experiment and move together. So we got a great panel this morning. Im not going to say anything more about it. Lets get the voice of god, bring our panelists up. I will remind you need to ask questions with your, uh, your qr code. Thank you very much. That was missouri. Our Vice President from missouri. Thank you. Uh, points for her. And i do need your help interrogating these folks. Theyre brilliant, brilliant scholars, and im just a piker compared to them, so im going to need some good questions from the audience. Now. Were going to do one hour about on. With the first section of the panel, and then were going to do old switcheroo scheme and get a jeff rosen is going to bring up judge tatel and katyal and have a great conversation as well so were going to have a continuous session about the constitution. And lets go, ladies, gentlemen, please welcome mary Sarah Michael klarman, Jeffrey Rosen and moderator doug bradburn. Wonderful. Thank you, jeff. Democracy. Well, good morning constitutional principles, ideas for 100. Alex, what what is the constitution in mary building you start yeah i this is something i find i spend a lot of time with my talking about is the fact our constitution our notion of a constitution was kind of new genre right is a new idea that you could have a piece of paper and you could write down on that piece of paper. The frame of government and in the period that the framers were working with in 1787, that idea was in transition. So people had begun to write down on pieces of paper charters. They were in england, they were state constitutions what they wanted a frame of government be, what rights they wanted, but no one yet had really begun to think. That was the constitution and. So in this period we see people talking the instrument, the piece of paper and the constitution as the body of government and over time, particularly after ratification, after the new government set up after the supreme starts interpreting what the constitution means. Those two concepts, the piece of paper on which the words are written and the frame of government, the way government begin to merge. And so today i think we think of it as the concept of tution emerged concept. But in the period talking about there, theyre still working out. Michael klarman would you add to that even a system that doesnt it has a constitution has to have a kind of unwritten constitution, there has to be some set of ground rules that allow you to recognize when, for example, a law has been passed, even in Great Britain that doesnt have a written the society has to have an understanding that a law requires passage by both houses of parliament and that can be vetoed by the king. So even if you dont have a written constitute action, there has to be a kind pre constitution that gives you the basic rules of the road. And jeffrey, what would you add that the Constitution Center would when people walk in there, they know a constitution is what is it so can statuary is the latin con with and statuary establish or reform them or stand in some sense that means come together or stand together. And as mike says a framework for deliberation rules of the road, a mechanism for resolving differences. Thats why for madison, the central idea of providing a structure for people to deliberate, to compromise, to slow down deliberation. So that reason rather than passion could provide. The constitution doesnt provide the answers, but provides a structure for bringing all sides together for reasoned deliberation. So is experimental about the american experiment would it . What do you think . Lets start with jeff, well do the snake and go back the other way. Jeffrey hamilton says it in one which was passed or published just last week, october 27th, 1787. He says its a test of the proposition whether men can be ruled by reason and conviction, not force or violence. Its a test, the enlightenment proposition that people can set aside their unreasonable passions and be guided by reason and the reason its an experiment is because no ones sure whether or not its going to work and. All of the framers, washington and hamilton madison are all unsure, especially if they enter their about whether people can find enough virtue enough selfmastery, selfrestraint, enough ability to set aside selfish passions and serve common interest for the experiment. Survive. Madison is the most hopeful because he expects the last he the least of of government in washington at the end is despairing as he sees faction. He thinks people wont survive. Jefferson thinks the unions going to split apart, but they all hope. Mary, whats experimental about the founding . I love the letter you because you cut out a word in that quote, which is washington writes katharine mcauley, the last great experiment. And i obviously i was like, but we dont say the last. So kind of down to great experiment and i think last there he doesnt mean the last one although in some ways it turns out to be that one but in a long of failed experiments in and what he was talking about was what at the time was pretty radical idea, trying to have a country ruled where sovereignty didnt lie in the king and and thats much more radical than we understand. And i this really came true when was watching like Many Americans sort of weird like ill ill just turn the coronation on for a few moments because it does look kind of cool even i know like right like we know that thats what we rebelled against. But its kind of awesome. But, but that really struck me how how hard it is to give up a monarchy in that kind of subject sovereignty face that came with monarchy and so i think what washington was talking about could you bond a group of people together in what he calls, you know, sort of a civil compact without the kinds of traditional allegiances to sovereignty that had been associated monarchy and and could you it you know monarchy allows you to have a lot of division and at the end of the day everybodys a subject but could come up with a political system where you could manage that of division that type of diversity of opinion different of people over a very large space and and have that succeed. And and it was there a way to do that. And i really the great experiment writ very large was that notion of moving sovereignty from the king to the people and and their whole entire understanding of that was those experiments failed. They collapsed, people became they had very complicated of which group of people were going to corrupt. Was it the people at the top or the people at the bottom. But, but, but i, i actually think thats the most amazing thing about it was they somehow, after many experiments over centuries, somehow got some balance right long to actually not only make that successful, but after that we you know, we do the American Revolution does represent a gradual global shift from a type of monarchy. Two big answers, michael, what what is experimental in the constitution so as ratified . A lot of its experimental, but i think would identify three key moves that they made so is popular sovereignty which mary just explained the people are going to express an opinion about whether this constitution thats been written in philadelphia will be approved or not. Federalism a big experiment. So theyve shifted a great deal of power from the state level to the national level, but theyre still expecting that most governance will be done at the state level. Theyll be some obvious conflicts, the supremacy makes it clear if theres a conflict the federal rule will triumph the state rule. But thats a big shift in governance, the idea that youre going to split power between, the states and the federal government. And finally, i think the president s is a very novel conception. Most of the framers wanted to move from the state constitution, which had pretty much eviscerate the executive governors very little power. They were selected state legislatures. They had one year terms in office. They wanted to create a much more powerful executive. But didnt want to create a king. So they were arriving at some interim point. The spectrum between an eviscerated executive and a monarch and was, i think, entirely experimental. So our session is called the principles ideas, where some of the ideas coming from. Lets these experiments are they experience itself in colonial governance or they more philosophic or are they coming from books and and visionary things or you what what is the first thing that comes to your mind when you think about where are the ideas for the constitution coming from look out. Well start with jeff again. So theyre coming from from books and experience. But whats remarkable is how they read so many of the same books i over covid set out to read the books on Thomas Jeffersons reading list that he would send the kids who are going to law school he thought encapsulated the core meaning of happiness. Isnt that what everybody did. Obviously, jeff, thats what we did. Go outside. You know, it was it was it was we were all and it was just i was moved to do it. And its just amazing. First, what i found is that all the books on his list, these are classic moral philosophers like, seneca, epictetus and, and aurelius, as well as enlightenment philosophers, locke burleigh lamarche, the scottish folks, hutcheson these books all contain phrase the pursuit of happiness, and all of them define happiness not as feeling good, but being good, not as seeking pleasure, but virtue. Selfmastery, being your best self improvement, aligning with the eternal truths of of of declaration. And its just really striking how all of the founders had the same conception of happiness. Franklin had it with his 13 virtues and adams and madison in their drafts of the declaration and theres all connection between and public happiness just as individuals had to use their powers of to achieve calm selfmastery. So government should be structured to achieve the same harmony in. The constitution of the state that people are supposed to achieve in their own mind. And what is so is that the federalist read through that lens is a manual for public happiness, and suddenly we see that the enlightenment philosophers theyre reading to structure governments like montesquieu, the separation of powers. Obviously locke on the social contract. Those are the four thinkers that jefferson identifies as the source of the revolution. Aristotle, sydney and cicero. All of them are saying that we got to structure governments in order to prevent people from being ruled by to ensure reason and to ensure that virtue prevails. Whats whats just remarkable, what a kind of core curriculum there were and their readings also, i find the differences in their political philosophies. Hamilton is a big hume guy in humans. The conservative who exalts the british constitution, jefferson is a whig who reads catos letters and sees hume as of honeyed tory ism. So his conception of states rights and limited power is derived from the whigs and hamilton with nationalism, from hume. But what all of these people share both the enlightenment, the classic folks, is a devotion, what we would call now, the liberal idea, limited government, the need for individual selfmastery, that the core of virtue. And it all comes from readings. It is really exciting to see the American Mind being distilled in this remarkable period of the 1760s and seventies from these kids who all went to around the same time. Some were self taught someone to the great universities. Theyre reading their books and theyre distilling the essence of american constitutionalism. Thats fascinating. And you have a book coming on this subject this year. So this year preview when jeff first told you about this, i think were in williamsburg. At the time i was blown away and very excited and i look to seeing that book. I will say my starter is pretty good too and i did during covid. I think its still going strong. So. It would be nice to ask everybody what they did during covid, but i apologize. No, no, thank you. Thank you absolutely. So, mary bilder, what one of the ideas, one of the things you think of first when when people ask you like where the ideas of the Constitutional Convention come from, yeah, i just have to say i teach that letter to my i would teach in american legal for a lawyers class to law students and we read that like jeffersons letter. Yeah, jeffersons letter. And im like, would you prefer to would you prefer to be a law student now or then . And jefferson, this part in that letter that says, like you know, when its summer, its really great because you could read longer on both sides and. My students universally are like, i wouldnt want it to live in jeffersons time, so im here. Im very impressed by jeff you i think just point is excellent i think what he says im really looking forward to that book. One of the things that this whole generation of of people worried about and extends way beyond just the people who are in the room was a sense ambition was corrupting that power corrupted they were trained a way to worry about that and so they worried a lot about how you restrain individ people from becoming corrupt from making the wrong decisions, from starting out thinking that they had a good goal and then somehow being twisted. So i agree with that, i think another set of their ideas just as to us to add something to the conversation very much come from their experience beginning 17, you know, arguably back in 1765 with the stamp congress. But then in 1774 with the First Congress and um, and the effort they had experience, they learned in that over a decade period of trying to run a country that was surrounded by large European Countries that would have been completely happy to, move back in. And the kinds of ways that their initial attempt at that the articles of confederation sort of what they politically get done there was insufficient. And so i think of the 1787 constitution in a lot of ways as a second constitution as, a second attempt at trying to understand one of the things that they did, michael, just referred to this is they shifted power in a much more way. And people like washington, madison, hamilton, others come to philadelphia with even a more aggressive, robust version of, um, National Power. Madison spent entire convention and left the convention disappointed that congress was not given the power to negative to veto state laws. And so that the principles and sort of working they had was very much a response to what they saw were the failure laws, uh, particularly National Defense failures under articles of confederation. Professor klarman how would you treat this question in your to your con law class . Mm hm. Um, so i, they certainly were classically educated they read a lot of books, but i think a lot of their were refracted through both experience and interest and since we havent seen about interest, let me just start with that so the biggest fight in the philadelphia convention, the one that almost ended the convention was whether in one house of the National Government you would apportioned representation based on population, based on each state having the same equal representation and they argued about that for five or six weeks. And the small state representative said if we have equality in one branch of the National Government, were going home. And the large state said, no, of course that should be. Were representing people. So every every state should have representation apportioned according to population. And and then they made arguments to justify those positions. So the small states said, look, were going to be against the three large states, massachusetts, pennsylvania virginia will gang up on us. And then madison responded. But three large states dont have anything in common. They come from different parts of the union. They have different they have different economic interests. They different religious traditions. So they made theoretical arguments. At the end of the day, this was a dispute about power and. The same thing was true, for example, about Southern States and the northern states. The southern South Carolina delegates said we need to have our enslaved count the same for apportionment as anybody else. And the massachusetts delegate said, absurd. You treat your slaves as if theyre property, not people. They should count for nothing in apportionment, and they ended up making a compromise. But it was an argument about interest with regard to experience. The one thing mary talked this, but i would emphasize a different experience, something that was really fundamental to their deliberations was, what to do about the populist Economic Relief legislation that. A majority of states had passed. And in the one state that clearly had not passed at massachusetts, they had a rebellion. Shays rebellion where the debtor farmers had tried to shut down the civil courts because, they were going to go bankrupt. They had to pay higher taxes without some sort of monetary and fiscal. That was a huge experience. Experience led them in philadelphia to debate about how to create a National Government that could both prevent the states from passing debt relief laws. On paper money laws, but also how to instill the federal government from direct popular influence. And the way to do that to have long terms in office, in direct elections and, very large constituencies. And then they came up with fancy theoretical arguments why you would get better government from a distant federal government, from state governments. But it was something very concrete that led them to espouse those ideas tonight. Yeah, these three answers are incredible because. You got interest, experience and all at one end and thats whats going there. And thats why you get so many people arguing over constitution and what it means going forward. Two things that i want to cover. Theres so many to talk about. I want to talk about the the ratification process. My understanding is the articles of confederation. Agreed. Well, guys are going to meet in philadelphia and maybe make suggested amendments to the articles and they basically have in the legal you know, a secret meeting of influential men that basically say were not doing that. Were going to write a whole new government and you guys are going to take. And so how does it go . Tell me what really happened. How how does the country go from this illegal meeting in philadelphia to saying, we love this, theyre going were going to do this, were going to throw out the articles confederation. It said that you had to have unanimity to to it, but forget that were going to create a whole new process and create a new government. So tell me tell me what the real story is. This is the great insight constitution making in particular that forgotten framer. James wilson james wilson from pennsylvania, brilliant law professor at the university of pennsylvania, becomes Supreme Court justice and gambles his spec debts go bad and he dies, being pursued by his creditor, butler is the biggest slave holder and then dies of disease in an boardinghouse broke and disgraced. But what he did is come up with the idea that we, the people of the United States, as a whole have the sovereign power, not the king and not the states, as as states. And that shift in sovereignty gives a theory of popular ratification. So its okay that the constitution is illegal. According to the articles, the article, you need unanimous consent and you say they broke that rule in allowing for a smaller of the states to ratify. But the reason is because the states called special convention organs representing the people and because theres a special procedure and because the deliberation is thoughtful and about principles and not about immediate legislative interest, the constitution is ratified, has a special legal status which is higher than that of an ordinary law. And the idea that conventions are kind of im thinking of the fancy word mimetic, which was one they used, but kind of actual representations of the people themselves. Unlike temporary representatives and and and servants as they would consider legislators is the big idea. Wilson makes this case in defending the ratification as an expression of popular will and was his and arguably the uss greatest contribution to constitutional thinking in the process of ratifying michael climate, what would you add to the ratification story . So the delegates, philadelphia had a lot of chutzpah, as my yiddish speaking ancestors would say, they created a new system and they created new set of rules to implement. As doug said, the articles confederation were very clear. If you want to amend the articles, you need to get unanimous consent by the state legislatures, and the framers understood there was zero chance they could get unanimous consent for what they were doing. If nothing else, rhode island had refused to delegates and they knew pretty clearly that new york as well would be opposed to what they were doing in philadelphia, two thirds of the new york delegation had gone from philadelphia because they were so unhappy with the nationalized and anti populist tenor of the convention. So they changed the rules. Article seven says nine states can put the Constitution Union into operation through special conventions, and then the other four states are free to go along or not. But there will be a new with a new constitution once nine states ratify, and it turns out once nine states have ratified, remaining four states are under tremendous pressure to join the union because they are a foreign country, they will be discriminated against in their trade. They will not be protected by the federal and they will be cut of all the important decisions made by the First Congress, such as where to put the capital or whether introduce a bill of rights. So by shifting rule of the rule of decision to nine rather than 13, theyve managed to create a much greater chance. The constant tution will be approved and that turns to be critically important because among the last states to approve were three at least three. That would have either rejected ratification or insisted on initiating. Have they gone earlier the process . So by the time you get to virginia and new york both meet beginning in june of 1788. They were on the verge of the ninth state wrote New Hampshire ratifying so virginia and new york are now considering a completely question which is not you like the constitution whether you like better than the articles but whether you want to be part of this new nation, which is going to exist, whether you join it or not. And at the new york convention, John Hamilton actually financed from his own pocket fast riders come from richmond, virginia, and from New Hampshire to report news that states had ratified. So by the time york is finally decided late in july, 11 states have already have already approved and 11 states, ten states have already approved it. And so the question new york has to is, are we going to join this union . And theres a lot of pressure because new york at that point is the capital and everybody in new york city, 19 out of 20 people in new york for in favor of delegates would support the constitution. New going to lose the capital and york city is threatening to secede new york state if new york state ratify. So the framers quite brilliant about that. Can i add something here . Would you rather i just quit . Yeah. Yeah. And thats good. I want mary to add something . Yeah. Mary, what would you add to this . Yeah, theres a political chicanery. Yeah. I mean, what i love about this period is everythings true at same time, you know, like theres multiple truths. Theres sort of the, the brilliance of how you think about ratification is a theoretical point. Theres the political strategizing thats even crazier than anything you see today. You know, like new New Hampshires like, wait, we might lose. Were were adjourning, come back when we can manipulate the right people showing up. But but i think theres another through line that really matters, which is they cannot see the future they do not understand whats going to happen. They leave philadelphia unsure that theyre going to have enough votes. Theyre not certain about it. They theyve sort of unless i use the word illegal because, that implies theres a structure where, you know how constitutions are you know that an operating system so they try to meet in annapolis had failed. One of the things that comes out of the Annapolis Convention and is i think, a quite brilliant move by hamilton to say lets go to congress and ask congress to make a Convention Call, to give it some legitimacy. So Congress Actually does a Convention Call to render the federal constitution. Right. So and the philadelphia comes out of that congressional call and then a part of the story that people tend to skip over. But i think is really interesting is the minute the convention breaks they to new york to congress, everybody whos also a congressional member races up and because the convention technically imagines itself reporting back to congress and they get to congress and Congress Pretty clearly the people who will become the virginia opponents try and get the entire read debated line by line like it was a report and madison and other people who were in philadelphia think that they think that effort, the whole the whole thing goes differently. If congress re debates the whole thing they think that effort and then move to omit the fact that they had that vote from the record and made assent. So now theres no evidence that was even an attempt to read debated. And madison writes to washington, this is what went down in congress and writes him back. Thats pretty good. People rarely peek behind the curtain and and i do theres this way in which the fact that then congress, the entity that technically sends the constitution out. Yeah yeah changes the way ratification feels to a lot of i have to say mikes point about rhode island know like new york and virginia. I mean, think of new york and virginia ratified it doesnt that nine other states ratify . I mean every just the whole goes down. So i think the the 10th and 11th matter, rhode island was like hey were whatever this is the part that super coercive they refused to ratify it so its divided in rhode island and the federal government basically passed says were going to blockade. And so theyre like, okay, fine. Now like were like, we give up. It matters to us that we do this. But so there is a theres both a sort of in, you know, sort of one side of it. And then theres also a coerce piece going on at the same time. Yeah thats thats really brilliant. All right this will be quick, though, and this goes to the question the winner gets their own question. The Annapolis Convention mentioned where did the idea to have the Annapolis Convention come from . Well, i know this. Well then jump in then. Yeah, well, i know if this is the answer youre looking for, im looking for the writing. Yeah. So . So lets see. I think its yes. And i in what, 1785, a trade of a smaller conference thats held at i mt. Vernon. Yes. I can always tell. That jack mention the moon compare. Yeah. Yeah. If youre coming navigation right. If you come here often enough you know when theres a certain light in dougs eyes he answer has to be George Washington or mount vernon. And then you have to work way back to what is this good . Do they do the mount vernon, of course, was an agreement between, maryland and virginia, about how to do the commercial rights of the potomac river. And it was necessary because of the potomac companies charter, the First Company charter in multiples states. And George Washington was the first president of the First Company chartered. And that happened right here at mount vernon because were supposed to meet in alexandria, the George Washington, in his wily way, manipulated them in the meeting at mount vernon itself. And thats the peek behind the curtain there. The good so excellent 100 points for mary bill there and is the question for you so mary bilder what is the deal with mary get last quote what is the deal with madisons notes . Oh yeah. So so how do we whats going on . I wrote a book about this. Its not the thats out there. My, my more fun book to read. Female geniuses out there but but most of what we know about the Convention Comes from madisons notes. There were many people who took notes, but his notes are the only notes that cover every day, and they cover it like a little and even people who know that theyre reading through madisons eyes, you cant help it. You just end up telling the story the way he he told it. But its written from perspective. Its written with the people he liked playing a and people he didnt like not playing role and probably the people he really like never appearing. So you know, like theres guys who never say anything and they probably were unlikely to have been silent for four months, but now, like, theyre theyre gone. But but one of the things that that has become clear in part because of the capacity to do digital and Forensic Research is that late in the convention . The Convention Moved very importantly, committees. Madisons stopped taking notes, and then only two years later did he back with a journal he had borrowed the official journal of the convention, borrowed it from washington, made a copy and he then used that to end the notes to the end to write the last three weeks. And whats important about that is that that of the convention is when most of the things we care about today come into the constitution. So the part that is sort of original and and contemporaneously up from rough notes he took involved big debates like. Michael was saying the debates that give us about federalism some of debates on slavery, lots of things that we think matter the electoral president ial powers, the general welfare clause that all comes in at a point where the notes then are unreliable and were madison several years later. Hes in congress after theyve begun to add amendments, after theyve had big fights about what the text of constitution means. That part of the notes madison has now become more interested in what the words mean mean. Thank you. And you buy my book for a longer version of that that is what the deal is with madisons notes threatening because mean your book really expose the kind of character of those notes in a really way i think in how they were edited and all that. So wonderful stuff lets. I have a couple of questions here from the from the audience. Well, first is a good one here from rick. What ell have any other countries tried to copy our constitution action and replicate the success of our great experiment . Whats the going to impact jeff so norway is the closest friend of the constitution they have madisons draft before them and theyre storing parliament passed a constitution in 1870 or so. Thats among the longest living western constitutions. And whats especially significant norway is its an outlier and following the american model, most european constitutions in the 19th and 20th century follow, a british parliamentary model or one that has a Prime Minister like germany and france but not a separated in britain, the King Parliament is completely sovereign the american separation powers model is different. Perhaps countries that have most adaptive the american model surprising are Eastern European dictatorships. So the russian constitution is and has all these gorgeous bills of rights and provisions that were drafted by law professors who went over during the yeltsin era and put those provisions into the russian constitution. But its not worth the paper that its printed on because putin is a dictator. He no separation of powers. He has all the power he can murder people and star wars without constraints by an independent judiciary or a separate congress. So its a very strong reminder of fact that and was all all the framers took this point from reason and experience. Its not paper parchment guarantees as they talked about bill of rights. Its not the words on the paper its the structures of government and in the end separation of powers and an independent judiciary are far more important than the form of a constitution and guaranteeing liberty. Yeah, you do. Thats a really powerful reminder about what the meaning of the rule of law is versus the rule of man. Lets talk about our bill of rights. It isnt really a declaration of rights, which is certainly an option. They have gone with. Why . Why are a bill of rights . Just a bunch of amendments that arent even added in in the proper places. Theyre just sort of slapped on in the back. Michael, why dont we start with you. Well, there was a proposal made very late in the convention by george mason from virginia that they had a bill of rights. There were a few listed in the constitution article section nine talks about no bills of attainder and protecting the writ of habeas corpus except in cases of invasion and rebellion, where it can be suspended by there was a proposal and it was rejected. Its interesting to think about i think to some extent theyd been there for four months and they were getting tired and they wanted to go home. But it also sheds light on the fact that they didnt think a bill of rights was very important. And madison, during it turned out that was their big strategic mistake during the ratifying contest that was the number one objection to the constitution made by the opponents. The anti was there should be a bill of rights. And the response as to there was no bill of rights was. Well, its dangerous, its useless, its superfluous and meant by that the following so if you listed a bunch of rights, you would inevitably leave something. The list that you thought was important and then there would be a strong implication that that thing wasnt protected. So they raised the example of youre going to put into the bill of rights the right to a hat. But of course the government shouldnt be telling you whether you can wear a hat or not. So they were worried that if put down a list of rights, youd lead something off of it. Madison was also, as jeff said, he thought they would be a parchment barrier. So you can list the beautiful rights in the world, but if in a moment of emergency, a moment of war, a moment when the country approaching disaster, people are not going to respect those rights. Theyre going to do whatever they think is necessary to protect their society. So madison said in letters, you could have a protection for writ of habeas corpus, but if the country is being invaded, its not going to matter what, you said on a piece of paper. So then after the constitution was in place in the First Congress, madison was pretty much single handedly responsible for the bill of rights, he had promised in his battle for the congressional seat james monroe, that he would support a bill of rights and he cared about, keeping his word to his constituents. Many of his federal federalists. We dont need a bill of rights. We just up a federal government. Why are you going to disable it with a bill of rights . Why are you going to amend it when you have no expectation you have no experience dealing with it . The european bankers were lending money. Youre not going to be reassured. The fact that were tinkering with the constitution as soon as we just established that. And madison said, look, we promise our constituents were going to give them a bill of it would be bad to start off on the wrong foot by breaking our promises and many of these people are acting good faith. They have genuine concerns. National government will be oppressive. And by the way, North Carolina and rhode island havent ratified yet and maybe we could get them to ratify. We actually gave them the bill of rights and many of his federalist colleagues, congress said, okay, you made your speech now sit down and let us do important things, raising revenue and setting up a court. But madison wouldnt give up. And i think its very plausible that without madison in the first house, there would not have been a bill of rights. Mary, where do our rights come from . Yeah, as a historian differ completely on this and if you look at the the things that we rights you can see they come from you know some are obviously magna carta rights. In 1774, congress had passed a declaration of rights and so some are taken out of that. Some are rights of the fight in those 1760. Some are rights that are really, i think, uniquely american in this moment. And ill just give the one that i care a lot about, which is at a time when religious tests are completely common, not being able to practice a paid in government because of your religious faith is the number one reason that people other than property are not allowed to participate, and that the federal is like basically unique more or less. And this moment at not just saying that there will be no tests for religious office, not that mean like a citizenship test. That means that you dont have to say as a faith based principle and then they actually add that you dont have to take an oath. You can affirm and. So im a person whos affirmed my whole life. I think a really important aspect of the constitution final promise that we are a pluralistic country of faith and a letter that i care a lot about. And this is something ive done a lot of work on how people outside the Constitutional Convention are important. Jonas phillips, who was a leader in the Jewish Community in philadel here and who had actually complained repeatedly about the fact that the pennsylvania did not allow him to participate in politics as elected official. He writes to that to the convention in september that hopes that a federal convention that will up a government where people like him can participate. And theres who dispute was it influential or not. But he didnt just wake up on september 7th and say like, oh, wait, i would love to write this letter. He obviously had been talking to people ahead of time and is the one private letter that washington kept that was sent to the convention was letter of Jonas Phillips insisting on that. And so thats one of the rights in the in the times. Its not the bill of rights. Its in the structure of the constitution. And and i think that some of those rights come individual peoples experience with how important rights have become. Oh, i have another question on this, but ive got to get to so i want to talk about checks and balances and separation of powers. Maybe we need to talk about those differently, but lets try to cover them quickly. I thought maybe that would be some of the things you talked about, terms of what was experimental, about the great experiment. Wed get into a little more of the nuts and bolts of the government was supposed to work, so what are our checks and balances . Jeff jeff so there are checks and balances in our horizontal aisle and they ensure that the three branches of the government can ensure that ambition can counteract, as madison said, in federalist 55, and that all the branches stay within their lanes. If the president tries to encroach on the powers of congress or the judiciary, on the powers of congress, the president then can check the other. Its not total separation of powers. There was an amendment proposed by madison that would have prohibited each the branches from exercising the powers of the other a kind of libertarian extreme amendment. But that fails because the framers want to blend powers in the course of casting them about each other. Hamilton has this phrase counteracting passions. And just as they think that you to use reason to counteract unreasonable passions in your mind. So in the government. Ambition and avarice, which the main illicit passions that trying to check can clash against each other and ensure that a president wont install himself indefinitely in office, hell want to have a good reputation and wont be want to be seen as a demagogue and so forth. So thats the horizontal. But then theyre also vertical checks and. Those are the checks of federalism and, the barriers between state and National Power are distributed with each according to its lane. And madison says in federalist 39 that theres a kind of dual sovereignty where each is sovereign in its capacity which so interesting is that madison and jefferson on the one hand and hamilton completely about the separation of powers. And when gets the constitution, he writes to madison, theres enough like and stuff i dont like. What i really like is the separation of powers, which hed seen in virginia and thought was crucial. And thats also crucial for. Hamilton so theyre united on that. What disagree, of course, about is that nature of federalism, who should be primarily sovereign the National Government, as hamiltons hamilton says, or the states as jefferson says. I just have to share one other while a passage from this that obviously struck me the other day, jeffersons writing to madison what im most afraid of is theres no term limits for the president because i am concerned in the distant future, an unscrupulous president might lose a president ial election by a few votes cry foul, refuse, leave office unless the states that had supported him on his behalf and stole himself as a permanent dictator. So he is concerned about the minority loser demagogue president and he thinks a one year term limit will prevent a president from trying to seek reelection and losing and installing himself. Hamilton is also afraid of demagogues, but afraid of majority demagogues and afraid of the unscrupulous person, unscrupulous and character who will come in and flatter crowd. And so the whirlwind is the traditional caesar like demagogue who kind of converges totally. So then just to bring home thats the point of the separation powers. Its urgently important to avoid demagogues, whether its a minority or majority that you ensure that the president constrained that he can be checked by congress, the judiciary can play its part as well. And then for further security, you have to vertical separation. Just this concern with concentrated power. Michael klarman, did the checks and balances work was one branch over powerful. I mean, what what is your thoughts on the first 30 odd years of the constitution . The framers would obviously be surprised, shocked by a lot the changes that have taken place over time, but their changed circumstances, its not even clear that they generally envisioned judicial review. They certainly didnt envision a Supreme Court with the sort of power to make social political policy, i. E. , on abortion, the death penalty, affirmative action, Campaign Finance reform. Many of the people in philadelphia probably they had no experience with judicial review in Great Britain in the 18th century, parliament was sovereign. A couple of state courts struck down state laws in the mid 1780s, but the state legislature chairs had been furious and they called. They literally called the judges to, the state legislature, to account for temerity and thinking. They had the power to strike down laws. So some of the framers thought courts strike down laws. Some of them thought that shouldnt and that none of them envisioned what we have today. Same about the imperial executive that the imperial presidency that Arthur Schlesinger junior wrote about. They would not have imagined a who could get the United States into. They wrote in the constitution and only congress can declare war. But in the last 70 years. Its usually present who decide whether the country goes to war they would not imagine a president who was the main instigator of National Domestic policy. A president who could make immigration policy or environmental policy. They would be shocked by that. But there are various changes in the world that explain why those things happened. And the same thing is true just about the scope of National Government power they would never have dreamed of a congress being able to regulate wages, hours and local conditions federal drug safety laws, environmental. They were dealing with a world the federal government mostly, maybe a little bit of regulation of foreign trade, maybe did a little regulation of domestic interstate trade. But they just were not envisioning anything like that. So theyd be surprised by that. But they wouldnt necessarily criticize it because they realized that they were designing a constitution to last a long time. And it might need some play in the joints in order to work, in a different set of circumstances. Thank you. Tammy canario asks, are there feminine sensibilities or contributions that we can point in constitutional principles and ideas . Im going to ask this to maybe other not just because shes woman. Shes written on this subject so merry builder. Will you please take that one . Yeah. I want to say thank you. So now i can plug my book. Female genius. So drugs, right . Its not just because im a woman on the panel. So . So i have argued and and i really believe this, that the period in the 1770s and 1780s is a moment when people have not yet realized that what one of the things that written constitutions can do is they can be a very powerful way to exclude people because you put voter or types of exclusion into constitutions. Theyre very sticky and hard change. And so that in 1770s and 1780s, a number women across the atlantic on both sides of the atlantic imagine that in this moment where people are thinking about how people can be better theyll be able to participate and you turn out to be able to find all sorts of examples of that theres women who parliamentary debating societies in the 1770s and 1780s in london and ive written about one woman, the first female public lecturer, the United States, Eliza Harriet oconnor, who in the spring and summer of 1787 was in philadelphia giving lectures and George Washington attends her lecture and in his diary, while hes waiting for the convention to start that i first met her and she also wants to have a very powerful school for women and she believes, much like a number of women and also people of color, that what exclude you from political participation because there are not yet rules excluding you is one money. But the world is moving towards a market economy. So that suggests people will be able to get more money to vote. And then secondly, education that theres some capacity piece you to prove. But theres nothing written down. And so shes part of a whole generation of people who are women, people of color, who is who want to participate. They want to have the rules to allow them to participate. But they believe part of that is being allowed to be educated. They are big of schools and education so that closed down the government moves to fund male universities, male colleges and beginning in 1792 and then moving outward begins. Define a constitutional culture that will eventually be white, male and very explicitly white. And you can track that as the country increasingly puts into state constitutions. Those words white male. The best example of and jeff has a great exhibit on this in philadelphia is that in new jersey, in this period women people of color vote and. They vote throughout this period. They vote in enough numbers that people complain that their arent winning because women and people of color are voting and in the early 19th century, new jersey reverses that idea and moves to a white male constitution. So so theres this is the constitution is written gender neutral in a moment when when that is possible that turns out not to be possible it reminds us history runs backwards in all sorts of ways. Wonderful. So heres the lightning round. Were down to our last few minutes. We have this very clock thats clicking down. Its like if you argue at the Supreme Court and they have that, they have a big red light. Exactly. So you gals cant see the clock. But we do. So, mike, ill start with you quickly. If you had an eraser then you could go back in and change the document. Nobody was looking. What would you what would you fix on the constitution for right now . I think direct election of the presidency rather than the Electoral College and senate apportioned according to population than equally according to state memory. You mean the original whatever you wanted. So yeah, yeah, yeah. I yeah, i with i agree not the Electoral College weve heard that yesterday too they dont get Electoral College you dont get. Yeah. What let jeff go. Well i think of that. Yeah well if allowed to know the unconsummated for me arrangement and im not allowed to favor over the other but long ago when was a law teacher i said that the provision that gave the states control over drawing elections was a really bad idea. A lot of the gerrymandering and political problems and that should be in the hands of congress. And i know what id like. Originally, madison, the changes the constitution to be integral added into the constitution. This is how many state constitutions are and Roger Sherman wins fight. Its actually a pretty tight fight and so amendments are tacked on and that has always produced this sort of since then, this notion like the original constitution somehow is sacred and represents a moment that cannot be changed unless we read it with these amendments. And theres the debate and Roger Sherman basically said, like how confusing, can it be . And i was like, all of come was based on the confusion. But but but i would like i wish we integrated the way that the state considers it. I think it would make the entire text remind us the text says we the people and its supposed to work the current moment and i think if madison had won that fight we would have a very different type of constitutional culture. Thats fascinating. Now, before you cheer for them, do want and were going to have this great transition, jeff is going to move into this chair. But what as part of that transition, i want jeff to tell us is a little story. He didnt experiment in the Constitution Center where you had a Constitutional Convention with all kinds of scholars, progressives and whatever we call the people in the middle, normal people maybe had. And so and they had and each group had a design different constitution is talk a little bit about that and what the results were this just blew my mind so we have three serious teams of people who disagree conservative libertarian and progressive and we asked them to go into a state of nature, a state of zoom and draft their own constitution. And we were surprised that a bunch of them came up with similar amendments, including conservatives and progressive, agreeing to reconsider the Electoral College. So we brought them back for a Virtual Convention again on zoom and in the space of a week they came up with five amendments to the constitution and it just blew my mind. I was listening this. I felt like i was listening to modern day framers are some of americas great scholars, and they were deliberating thoughtfully and seriously and parsing every word. And in just a couple of sessions, they came up with the following amendments eliminate the natural born citizenship requirement, make impeachment little harder in the house to indict but easier to convict in the senate. Make a little bit easier a term limits for Supreme Court justices, year term limits. And finally resurrect the legislative veto which congress had before Supreme Court struck it down and allows congress repudiate executive action by majority vote. Whats significant about this, first of all, is there not a lot of rights provisions about stuff people disagree with. Theyre mostly structural, but isnt heartening and significant in this polarized time that we are so over policy. But theres this core agreement both about the vitality of the constitution none of the teams wanted to throw it out, but they just wanted to refine and preserve it. And they were actually able to agree on ways of doing that. Gives how well, that gives me hope, too. Lets give them a big round of applause. Thank you. Thank you so much. Yeah, absolutely. Ijudge tatel is an old friend, one of americas most