Transcripts For CSPAN3 American Political History Conference - Constitutional History 20240707

like to call this i would like to call this roundtable to order. okay, i've always wanted to do that. hello everyone and welcome to our round table today constitutional history is political history. i'm dr. yvonne pitts. i'm an associate professor and i proudly call purdue's history department my home. i'm affiliated with women's gender and sexuality studies american studies and critical. abilities, i'm currently working on a project on transformations in jurisdictional authority during the american civil war. the timing for this round table is certainly propipitous propitious. excuse me. we wait with bated breath at least most of us in this room for a supreme court decisions that may well become the landmark decisions. we are teaching years from now. so before i introduce our panel, it would like to. thinkers with a special shout out. to dr. rachel sheldon and my colleague dr. katie brunell who organized this wonderful conference and round table and without their vision. this discussion would not be possible. okay, what i'd like to do now is a brief introduction of our steam panelists and then ask them to make a seven to eight minute statement about a particular constitutional issue and follow that with discussion not only among the panelists, but our hope is with the audience as well. okay. rob baker joined the faculty at georgia state in 2006 his research explores the relationship between slavery in the american legal and constitutional history. his first book the rescue of joshua glover a fugitive slave the constitution and the coming of the civil war was published by ohio university, press in 2007 in 2012 the university of kansas press public pennsylvania slavery the supreme court and the ambivalent constitution. i taught that wow. yeah, his current research explores the influence of historical consciousness on constitutional thinking as well as the nature of constitutional change. over time to my left is dr. jane manners who has been at temple university law school since 2021 and holds a court courtesy appointment as affiliated faculty in the history department in addition to her 2018 phd from princeton university. she merely has a ba and jd from harvard university. she has published in the fordham law review the columbia law review has written for the new york times the washington post and it goes on and on after law school. she clerked for chief judge mark l wolf of the us district court in the district of massachusetts and was named a prior scholar by the american society for legal history. julian mortensen is seated at the end of the table and he holds a jd from stanford law. he clerked for supreme court just david souter julian was lead counsel in a pre-obergefell suit that required michigan to recognize the marriages of more than 300 same-sex couples. he was lead a pellet council for the arab american civil rights leagues challenged to the muslim ban and represented discharge military service members challenging the don't ask don't tell law prior to its repeal. he was a drafter of the merits brief in boumadine v bush which secured the right of guantanamo detainees to challenge their incarceration. okay, and josh sellers is an associate professor of law at arizona state university college of law. he has a jd and a phd in political science from the university of chicago while at chicago he served on their law review as one of the article editors. he teaches and writes in areas of election law constitutional law legislation and civil procedure. he has published articles in the penn law review the nyu law review vanderbilt law review and the stanford law review and is a this year 2002 recipient of a berlin price fellowship from the american academy in berlin and congratulations if that's a recent award. so what we'd like to do today is have a round table discussion on the topic, which is so relevant to our current moment and this differentiation between constitutional history constitutional law perhaps and political history. so to today's panel short prompt will start that with seven to eight minutes with seven to eight minutes statements and then we will have a brief discussion among the panelists followed by audience questions. okay, so the prompt that we that we will speak to is what do the questions and frameworks the political history bring the constitutional history and/or practice as a starting point. we might consider how political and constitutional histories differently engage the following subjects federalism legislative executive power and separation of powers slavery and race. and originalism okay. so without further ado i will turn things over to jane. thank you very much. and thank you to all the panelists. for for being on this panel and into the organizers of this fabulous conference, so obviously we had a broad invitation to speak and and part of my thinking as i was trying to figure out what to say is how to define constitutional history and how to define political history and i have to confess that i kind of cheated because i'm not gonna offer you a definition of political history. i figure this audience can offer, you know, maybe they're 30 people we can offer 30 definitions of political history in this room, but i am going to kind of build on some assumptions about what political historians ask and what answers so speaking. so i'm going to focus my talk on kind of offering two definitions of constitutional history. the first one i am taking from dirkhart hog, a legal historian who wrote 35 years ago. the constitutional history is quote an arena of struggle between contending and changing normative orders. and he offered this definition in contradistinction to a different tradition that is still familiar today. that i will use as definition two of constitutional history constitutional history as the history of constitutional law as pronounced by the court and other official interpreters and it is to be discovered in authoritative texts. the appeal of approach number two the one that dirk hartog urged us to reject is its permanence the idea that once you've discovered constitutional meaning through this work of excavation it is fixed. political and social movements in this framework or analyzes inputs and they go into shaping constitutional interpretation, but the output is always the text. so at its most reductive this approach to constitutional history can be characterized as a search for constitutional truth-derived from the past so that the work of constitutional history is simply to dig through the layers of time to discover what the constitution really means. it's an approach that rejects the contingency and chaos of political history. so i want to be clear that nearly all of the legal historians that i know have long since he did burkhartog's call to flip our focus. so that the outputs that we study are not these authoritative. but instead they are what dirk referred to as constitutional rights consciousness the way in which people outside of the courts throughout american history have used rights-centered logic and legal argument to advance particular aims. but the version of constitutional constitutional history approach number two that dirk hartog urged us away from is still very much a part of our present legal landscape sometimes practitioners call this approach to history originalism or textualism or original public meeting all terms that i'm going to avoid today, but i think it's fair to say that all these methods see something uniquely authoritative in the constitutional understanding of the framers and the framing generation. for legal historians who do not subscribe to this framing generation approach to constitutional meaning i see two possible responses and in the rest of my time. i'm going to speak about these possible responses with reference to the separation of powers between the executive and legislative branches and area of constitutional law that relies particularly heavily on history and part because they're so little actually written about it in the constitution itself. so the possible response to the framing generation version of constitutional history it simply to do more accurate history to show that often accounts of the distant past that appear in constitutional analysis. get the history wrong. so for instance constitutional arguments about the president's power to remove executive officers often focus on what is called the decision of 1789, which was a debate in the first congress over the president's authority to remove the heads the head of the created department of foreign affairs and arguments in the spain often point to james madison's claim that to deny this power to the president would interfere with his execution of constitution his constitutional duty to take care of that. the laws are faithfully executed. they read the language that was ultimately settled on quote whenever the said principal officer shall be removed from office by the president of the united states or in any other case of vacancy as conclusive evidence that the congress was persuaded by madison's views and thus liquidated the meaning of the constitution's principle of separation of powers. but recently dead sugarman a historian a legal historian has shown us that the odd language that congress settled on was in fact a product of strategic and ambiguity designed to win passage in a hostile senate by obscuring the phrases significance and that in other words the decision of 1789 decided very little and certainly did not conclude that the constitution empowered the president to remove executive officers at will despite that story constraint. second response to the framers generation approach to constitutional history is to reject the authority of the lock-in approach entirely to recognize as jonathan ganap and other scholars have including aaron hall here in our audience that this approach is itself an artifact of history designed in part to stifle democratic deliberation. instead this second approach treats constitutional text as input rather than output and it uses it to trace our nation's perpetual struggles over constitutional meaning. so for instance a historian might trace the strategic use of the decision of 1789 in fights over presidential power across the 19th century in the 1830s. for instance, daniel webster and henry clay disabowed the decision in their angry responses to president jackson's frequent use of his removal power in 1867 soon to be impeached president andrew johnson embraced the decision in explaining his veto of the tenure of office act which required senate sign off on the removal of certain executive officers and in the 1880s and 90s. the decision was resurrected in a series of supreme court opinions that expounded in dicta on the constitutional significance of the president's removal power these tactical uses of the how this putatively tative text was interpreted and reinterpreted across the century of politically motivated actors sought to stamp the moment with their preferred constitutional interpretation. i think that both of these responses to the framing generation version of constitutional history are essential the first engages on the terrain of the framers constitution, which is by and large the dominant terrain in legal argument today when it comes to constitutional analysis. as the importance of doing history, right? second is less likely to feature in amicus briefs and court opinions, but it reminds us that the terrain itself is an artifact of history and that constitutional meaning is a site of constant struggle changing and response to all of the method reality that political heart historians have long recognized. thank you. okay, thanks. so that was that was brilliant and now i don't have to talk about dirk hartog and the understanding the idea of contending normative visions or contending constitutional visions, and it's entirely true of course that we do tend to separate lawn and politics and then we put constitution on the law side and i think this is absolutely wrong and i think to illustrate i'll just tell a story so the story goes back to 1842 and henry clay and he's actually on this northern tour and he stops in richmond, indiana. so another richmond, but it must be close right? so he stops in richmond, indiana and an abolitionist and actually an abolitionist society there makes this big deal to show up and they've got a petition and they're gonna show this give this petition to henry clay and here in mendenhall is the man with the petition and he tries to get through the crowd and the crowd attacks him and rips his clothing. he's a big guy fortunately 200 pounds six feet tall, so he's able to kind of muscle day off he gets up there henry clay tells the crowd to back down. so let him up. he takes the petition and he reads it and the petition is a petition directly to henry clay asking him to liberate the 50 or so people he enslaves. and if he will not do this to present his reasons in writing to that abolitionist society so the audience immediately hisses and jeers and clay silences them and then clay says, all right, first of all, you don't petition a private person. okay, that's first. yes, you know, you only petition a superior. so if you're subject to petition to king if you're an american citizen you petition a legislature you do not petition a an individual person. we are equals so he starts with that and then he says oh and by the way the constitution and the laws support my owning this property the same way they support you owning your property now, i know that you draw a distinction with human property, but your interpretation and had started off with this hand to the declaration of independence said your interpretation of this document is the new one. so he invokes a kind of originalism. this is all the states at the time of the declaration. they all had slave property. so they protected in this so he's invoking originalism to defeat this call by the abolitionists. and then he says in any offers up a counter offer. he says, you know what my entire cache of slave enslaved persons are worth 50,000 if you will pay me pay me that i will liberate them and give them the money and then they can settle here in indiana and live peacefully so we kind of turns the tables on him and then he says go home and do good works in your own neighborhood any ends it there so what i'm what i'm doing here, i think in bringing up this story is trying to say that what we need to do is read this as an event in kind of constitutional history as an event in in political history. and in order to understand it you have to think about what's actually going on in 1842 less than a decade earlier the american anti-slavery society had formed and the aass had actually framed its position on a long constitutional lines, right? so they're an immediate immediatist organization. they declare slavery as sin they say you can't compromise with it, but they also recognize that congress can't just abolish slavery. so they want the congress and state legislatures to move and constitutionally permissible ways against slavery in 1835. they flood the males with abolitionist pamphlets and they flood congress with petitions now slaveholders respond to this right you get the gag rule out of this they refuse to receive petitions in congress. they try to get a federal law that outlaws the sending of abolitionist traps through the mail. they southern legislatures write the northern legislatures and demand on constitutional grounds. they demand that the northern legislatures criminalize abolition our abolitionists and suppress abolitionist societies. so by the time you get to 1842 we've had more than half a decade of real robust public discussion about the meaning of the first amendment. not just that not just the question of slavery in the constitution, but the meaning of the first amendment and the main goal by the way of the abolitionist campaign and that of the slaveholders who followed them was to convince the public of their constit. national positions and then to make that a reality through elections and in fact, this is this is a particularly pertinent when we think about clay. he's a member of the whig party the whigs believe in nationals or excuse me legislators supremacy, they believe in a strong national government. so here they are here's these abolitionist attempting to embarrass clay and get him to maybe admit that that abolition is something that the whigs could take on and by the way in 1842 think of all the constitutional issues that regarded slavery that were on the table in congress. you've got the annexation of texas you have slavery in the district of columbia the interstate slave trade, they're all out there and also craig v pennsylvania had just been decided that year and we think of this as a pro-slavery decision, but we cannot forget that the grounds upon which it was decided that only congress could legislate when national issues were at stake had direct implications on the southern laws that jailed free black sailors in ports, and in fact in congress in 1842 in the fall. they appoint a committee or maybe they give it to a standing committee. they give the committee this charge to look into whether parade can be used in these anti-slavery ways. so you have in other words a lot of very robust discussion at the time about slavery. and what i'm arguing here, is that if we think about this episode in political in political theater as an episode in constitutional history, then it becomes interesting because both the abolitionists and henry clay and a whole welter of actors who are off stage at this point our arguing their constitutional positions in the political realm and this is really the where the constitutional meaning-making is going to be made and one final thing that i'll say about this moment, you know, henry clay uses it as an opportunity to model democratic values. it's kind of remarkable and he monitors the crowd, you know, don't do violence. take an opinion that you find this tasteful and listen to it. and then he also tells the abolitionist if you really want change this is he's saying if you really want to change you're going to have to do something other than political theater. you got to build coalitions. you're gonna have to make your politics reality and certainly on this last point henry clay is right and the abolitionists were wrong. yes, wow. thank you. you're robert great to be here. thank you. yvonne for the introduction. i also have a story. it's a story of a supreme court case from 1903 giles versus harris. this is not a particularly well known case. it's not a case that we teach and constitutional law. if anything it's a case that constitutional scholars place in what they call the anti-canon because of its kind of infamous notoriety, but i think it's a perfect case to illustrate the theme of this roundtable which is the relationship between constitutional history and political history. so, let me give a little bit of background on the case giles view harris was brought by a black man living in alabama the turn of the century in 1901. he had been a voter in alabama and was seeking to be added to the the voter roles for the upcoming election, and he brought the case on behalf of himself as well as 5,000 other black men who also eligible at the time. and they they brought a constitutional challenge against the 1901 redeemer constitution that had adopted in, alabama. and said it was in violation of the 14th and 15th amendments and they were excluded arbitrarily. and in a really extraordinary opinion by justice oliver wendell holmes holmes essentially admits for one of the rare times respond to rare moments in history when the court has admitted this that it's powers impotent. it can't actually give giles the remedy that he's seeking because it knows that if it makes a command it's not going to be followed in alabama. and there's this kind of specious reasoning that he gives where he says. if in fact alabama's electoral system is as corrupt and is as fraudulent and is as arbitrary as giles alleges then. there would be no point in giving him a remedy by adding him to the roles and entering him into this fraudulent system. but then he goes on to say essentially look the only remedy here for giles and others like him is really political right you need to go to congress. you need to get remedy from the state. and so again, it's this remarkable moment where the court is essentially admitting that it's powerless to remedy this grievous wrong that's happening. so, what does that have to do with constitutional history and political history? well if we were if i were to only tell you the holding of that case i could pretty quickly summarize the holding by saying there's no equitable relief giles was seeking an injunction. i could say there's no equitable relief available for political rights. this is something that holmes said at the time it's not true today, but it would have been true under law at that time. no equitable relief available for political rights. and that would be the end of the conversation. that's what that case would stand for. but in fact the story is much more complicated and much more rich and we need to look to political history in order to understand the real significance and implications of that case. so here i'm drawing from the work of rick pilvis who was a law professor at nyu and he wrote a couple of really illuminating essays on giles and in doing so he relied on the historian morgan cowser. and what they found was that in fact politics was more fluid and it was more dynamic and it was more contestable in many places in the south at that time. i think they focused specifically on, north carolina. and cows are in pill to say in fact, there was this kind of ongoing political tension between an agrarian aristocratic sort of plantation class of democrats. they were not necessarily aligned with a more uneducated often illiterate populist group of white voters. also democrats. and before this time there had also been these interracial coalitions, which were very relevant and actually had the power to dictate electoral outcomes in certain places throughout the south. so it's not just the case that giles v harris sort of countenance mass discrimination that persisted up through 1965. it's that it actually undercut to some extent by saying that the federal courts have no business remedying the systemic political harms. it actually undermined this kind of ongoing political contestation that they argue in some cases mine have actually been dispositive. it's possible that the gubernatorial election in north carolina might have come out differently other elections throughout the south might have come out differently. so this is not to say that you know blacks would have been treated as political equals throughout the south had giles the harris come out differently. but it is to say that the political dynamics are varied from place to place. it's not a simple story of just saying that there was exclusion that was kind of monolithic and universal through 1965. some of these elections might have actually come out differently. and we know that through path dependence. this is how politics works maybe that would alter an impact the whole direction of politics in the south during the first half of the 20th century and even if black voters if it's inconceivable to us that may be black voters would have able to participate the jim crow laws the grandfather clauses the literacy test the poll taxes that were imposed during this time and following giles v harris. actually wound up discriminator disenfranchising more white voters than black voters. so even if you take black voters out of the out of the the picture. it's very possible. again. that southern politics might have looked very differently if the federal courts would have just in general been policing political rights. and so to me as we were thinking about this roundtable this case was just a real perfect illustration of how if we take a myopic approach and only think about constitutional law through a narrow lens again, i can summarize the case very simply no equitable rights for no equitable relief for political rights. but in fact the implications of the case are much richer are much more complicated and arguably impact again the entire kind of political history of the south. and that's precisely why i think as legal scholars, we should devote more time to looking at political history so we can unpack these dynamics and develop kind of richer understandings of the significance of of cases. thank you. thanks very much. i'm thrilled to be here have to have the chancellors of create conversations over the course of the two days including right now with this terrific panel of folks. i've been trying to keep my intervention in the front end at least sort of focused with a view to and hear i'll be loyally kind of clarifying terms or suggesting and clarification of terms that i think might help us engage with some of the conversation in most productive way. i think what i'm going to say is completely consistent with everything that my code panelists have said, but there is some time to slip or a conflation among what are really different things i think and talking about what it means to be politicized what it means for a lot of you political and so forth. i think it's worth trying to call out and want to do it is a sort of this is a very rough tentative framework. the categories are porous some of them inform the others that networks among them i think are. transparents i suggest them and i want to suggest how each one of the categories i'm calling out has examples or analogs both in the traditional legislative process political process proper and in the process of judicial action, including judicial politics, it's really important in this conversation to distinguish between policy. ideologies and partisanship in talking about why if we're going to focus on constitutional politics both in and out of the courts actors do something policy meaning at the most basic level certainly is when things about teaching a law school class. what is the better choice as to this relatively narrow decision about how to run things. what's the better rule ideology being a cluster of genuinely principled ideas, maybe in some particular case, they're invoked opportunistically, but genuinely principled ideas that often have a relationship in a mutually reinforcing and partisanship. having to do with allegiance to party in the political sense to club to team that has an emotive element certainly an instrumental element also, but an emotive element is much as as an intellectual one. so if you think about policy questions that are faced by the ordinary legislative administrative process i have in mind things like what's the right interest rate under the circumstances given the fact that inflation is out of control and gas is five dollars ought we descend arms of you do ukraine of what sort i think that they're pretty clearly questions that most lawyers and most legal historians would understand as being policy questions of this sort when it comes to judicial action. and of course judicial action is far from the only place where constitutional politics takes place, but you know, what should the standard of review be when a lower court reaches some factual finding this determinative of a constitutional case should the should the supreme court should be appeals court take a hard look at the fact. further with the lower court did that conversation is a policy question in sort of the narrowest sense of the term should horizontal boycott agreements be per se legal into the antitrust act, but these are sort of discrete particular questions about what rule makes the most sense. that's the least interesting thing. i'm necessarily at least i hope it is ideology and pardons the trip is where i want to insist that we really want to be careful about using our terminology, especially when it comes to judges and judicial action if i'm right very roughly speaking that you know for something to be ideology means that it's it's at least internally and often subjectively by those who espouse it a principled view that they are committed to for reasons of principle or understand themselves to be and i'm usually reinforcing in sort of cut a crop across a lot of issue areas across a lot of policy areas you think about ideologies that emerge, you know, ordinary regulatory legislative politics. yes, some of them have analogs in judicial action. let's say fair. white supremacy states' rights socialism these are ideologies that are going to play out an important ways, of course a range of policy issues. well, i think and here's the thing where maybe i have a little something to add because everything's super obvious so far that the ideologies that we need to keep in mind and distinguishing between ideology and partisanship when it comes especially but not only to judicial action, but generally speaking in a legal register about important policy issues is that there's a range of genuinely help principle legal ideologies, and everybody has one probably everybody has some a few it's not an unusual thing to have an ideology. it's a range of commitments. if internal to the system of being a lawyer and lawyering the guy how you think about what it is you're doing and what you ought to do over a range of cases in a way that kind of aligns you with what you're you know x auntie whatever principles are so things like i believe in judicial restraining and i do believe in judicial restraint. that's part of my ideology that is unideology of talking about a relationship between what courts do and the constitutional thinking that happens in the political branches proper originalism. is an ideology textualism is an ideology purposeivism is an ideology pluralism in terms of interpretive method is an india is an ideology. there's an ideology of federalism an ideology of the unitary executive all of these things have to do with a cluster of views about actually pretty complex legal questions that often don't facially so much to do with each other. but they drive the bus that all these issues are riding on because issues right on buses in the same in the same direction or or in a direction that is predictable over time and the bus driver to continue this awful metaphor that i wish i'd never started. it's steering the bus based on what the bus driver really believes in really thinks that this complex of xnt like ideological commitments doesn't necessarily an electably dictate. there was a result of any particular case but is going to predictably generate outcomes. all right. the last poem the zip over this because it's super obvious partisanship is like republicans and democrats or as we learned from the 19th century fluidity panel today, like 36 different parties at the same time, and there's lots of ways to think about partisanship. i'm not going to talk about any of that what i want to emphasize is there's absolutely cases in which certainly everyone suspect what's happening on the bench is partisan. i find it almost impossible to think about what happened in short versus gore. especially given the tradition of a federalist ideology that the majority in that case came out of is being anything. that's too harsh is not having a very substantial component. let's say that partisan politics in the minds of the judges who are voting as they were it was it was not behind a veil then you was going to happen when they voted as they did their guy was going to get in. and i really think it's important for us to granting moments like that one in granting that policy questions in the smallest. multiple depression should be very important right with the interest rate huge consequences, but policy questions are the narrowest sense. can often and do often infect affect? judicial decision making within a zone of permissible discretion. should i decide that you know the reference to workers in in commerce in the arbitration act refers to commerce in the broadest constitutional sense or commerce in the transportation center both the permissible choices the choice among those is inflected by policy, right? so, yes, there's some partisan decisions. yes, there's some but policy inflected decisions and i'm ending in the next 15 seconds. there are also a great many instances where judges. perhaps some of them disingenuously but a great many not and also interpreters outside of the judicial branch are committed in good safe to ideologies that have a range of policy consequences and are going to be predictably chosen by the parties that nominate them because they like those consequences, but that doesn't make the judges partisan and it's very dry. it's in that sense is a huge difference between hard partisanship and ideology when it comes to like 95% of the questions that much of conversation that happens. codes as partisan decisions. that's my main convention. okay, no small main contention there. thank you, julian. okay, i'd like to turn to the panelist now that everyone has spoken and ask you to generate a couple ideas based on what each other has said that perhaps we can use to move into audience discussion. i did write out another question that i think might touch on all four presentations and issue that i'm interested in is the methodological approaches and julian explicitly alluded to those as did everyone else implicitly or explicitly so as a historian how is it? that a legal scholar a political historian or a constitutional historian. how do we frame our initial research inquiries? and what are the differentiation of methods toward in julian? i think this goes to what you were saying toward the purpose of that inquiry. okay. so how does our research questions differ and what are the differentiation of methods toward? whatever the desired outcome the purpose of the question is. i want to turn that into a question for julian. let's go. let's go. so you talked about i liked your your trifecta policy ideology partisanship and i was taking notes and under ideology. we have cluster of principled ideas and then states rights originalism socialism judicial restraint. i feel like at least some of those are methodologies and so i'm curious to hear how you think ideology feeds methodology. it's a very simple story. really. yeah, that's such a good question. i'm going to pause and not to start talking. this is my this is my temptation. i mean i it is absolutely the case that at least some methodological questions internal to. legal conversations are ideologically and affected and ultimately an evaluate in like normative way because how you think about judges ought to interpret complex legal landscapes is going to flow from at least in part your views on how we allocate. decision power to multi-actor system where we have to think about, you know deferring to other people sometimes and taking initiative, right? those are really ideology-laden. questions. i'm pausing to think with the same question from the historical perspective because of course there's ideologies of history as well. i don't want to immediately speak to them, but i find myself thinking for example like if your sources are the published records it isn't availability question. i don't know. i will throw that back to some of the people on the piano. how do we think about this wonderful question when it comes to internal conversations within history some of the question is, what are your sources if you're looking at authoritative text, you're almost your your story is starting to be predetermined, right? so so part of the initial question how you frame your source base is inflected with questions about with the question that you want to answer. you have to define your question and how you're going to answer it and that starts to shape your story and whether that that's obviously a question of method, but you know, it is infused with ideology and you know the canonical story that everyone in the room probably it's familiar with is that nice talking about originalism right as the kind of method that's gonna conservatives are gonna champion is, you know, perhaps it blends your trifecta entirely policy ideology partnership right under the guides of a kind of method. so i think disentangling these different categories is very difficult because exactly all inform to various. you know, i am no psychologist, but i would suspect that sometimes when we approach our research questions. we are not aware of all of the different. causes an influences that are shaping our choices right one thing that occurs me immediately just very quickly is project choice and methodology choice are intertwined and one of the things i try to be transparent about in my long transition to being what i think it was more of a historian than somebody focused primarily on legal doctrine is to be transparent about the fact that the genesis of my research agenda is absolutely driven by the legal cash out in arguments that i was having under the bush administration about what the executive power was, but then to start thinking about what the right way to affect that conversation is i've gotten pulled more and more into 18th century 17th century sources trying to ask what i think of is not an ideological question, which is how did they think about the separation of powers? what was the range of frameworks? they used were the contested space? and so i mean i can sort of think of historical i mean hesitate to offer that up again i can imagine some but ways in which project selection in history at least sometimes ideological and like great, that's fantastic. but then once you're once you flip that switch. it's a different thing to be ideological how you approach the materials that you're actually engaging with. thank you. josh rob anything too i would just add. i mean it occurs to me. so we were discussing before we started yvonne just about our respective kind of approaches and you know as law professors we obviously are focused on the case method and just thinking about the opinions were likely to get in the next two three weeks from the supreme court, right? look at these topics. we have abortion we have gun rights second amendment case we have religious liberty church state issues. we have epa's power to address climate change right so i can tell you the kind of doctrine of underpinnings of each of those areas of law and i could even explain the case between those terms but do any of us really think that this isn't like the product of a decades-long kind of agenda that we could kind of trace back through political history to at least the reagan administration. i mean that story is like essential i think for adequately understanding the opinions. i suspect we're going to get and that's where i think the political history can like enliven and inform but also in some cases. almost like render legible what is happening? and that is where i think the methodological difference becomes important. so that's that's one thought. i had it doesn't speak to the ideological point, but this is something that it's hard to it's hard to get an answer. all right, what is informing a judge's decision and i'm reminded of you know judge posner writing about just the discretion that he had right and he was very open and honest about that and saying this is what judges do and i have this discretion and yes, i'm going to make a decision based on everything that i know that i think makes sense. and we shouldn't obscure that and think that there's some other. activity that's principled and based in reason and such that's going on. so, i don't know. maybe i'm hoping that we can have a kind of more clear-eyed view of the judiciary but also connect that with the kind of longer-term trends that we see that political history illuminates for us. so one thing that's happening here is that we're privileging the courts again. and we are making that same exact assumption that if it's if it's constitution, it's law it belongs to the courts and politics are really to the side of this. well, if we go back to the era that i was talking about in the antebellum area. the major constitutional issues and they are all argued in the political branches. so for instance james madison, one of the last things he does as president. is he vetoes an internal improvements bill? all right. so congress whether congress can actually go inside a state and dig a canal or build a road. that's a constitutional issue in james. madison says, no the constitution does not allow this james monroe who's coming into office says don't worry. i'm a friend of this, but he's vetoing them on constitutional grounds by the end of his presidency. and if and in case you haven't noticed the timeline here the missouri crisis intervenes and so what you have is all of these elements together, there's this massive political crisis going on and during the missouri crisis. the question comes up can congress place limits on a state when it comes into the union. can it require a state to emancipate or provide for gradual emancipation? can it make that conditional? that's a big constitutional issue. where is it decided it's decided in congress. and if congress has the power to to yoke the states with gradual emancipation statutes. it's not too far to have them start imposing a plan of gradual emancipation. so if you want to know why monroe then turns around and says congress doesn't have the power to go into a state and dig a canal or build a road. that's your answer. and by the way, he wrote that down so we don't have to we don't have to argue about it. but if you're not going to the archives, and if you're not looking at the political records, then this very important point about constitutional history just gets lost because you're reading court cases and you're wondering how politics impact that and certainly in this period that's just not the way the history works. thank you, and i think some of those points apply to prague as well. right? i mean, it's so hard to understand. i tried to teach pregnant my students as case law and it is one of the most confusing cases in the 19th century when it's located in the politics about which you're speaking it becomes much clearer how this can be such a contradictory opinion in terms of state and federal power. yes, so yeah a point well taken. um, i think this is the point where we shift the burden of discussion to the audience. i hope it's it's a gladly accepted burden. we have a microphone in the middle of the room. so if you have a question, please step up introduce yourself and any affiliation you might to mention and i will leave it to our panelists to take it from there. hi, i'm lindsay travinsky. i'm at the center for presidential history at southern methodist university and very grateful for this conversation. i wanted to pick up on a thread that has sort of been lurking in the background all weekend and see if maybe you guys can shed some light. the topic of conversation is who does the constitution belong to is does it belong to historians or just belong to lawyers? and i think we probably all agree given the diverse nature of this this particular room that there is some combination of shared ownership and there should be some and authority how do we encourage or should we encourage i guess but assuming we should encourage. how do we encourage? shared scholarship on this particularly contested legal and political document. how do we better bring together both pools of knowledge and reduce the gatekeeping that i think occurs on both sides. thank you. i feel like maybe we need a center. no, i think it's a hugely important question. it's why i went to law school and then there's like, i think i need to go back to school phd. i one informs the other i think, you know, we i think at this panel probably would all agree that. you cannot as rob was just telling us you cannot understand constitutional change without looking at what's going on outside the courts and in fact the way in which law schools teach doctrine is kind of determinatively a historical right? you kind of jump around as if to naturalize these doctrines that first year perplexed law students are learning so they seem kind of out of time right they are they are kind of transcendental truths that you learn as good law students that are removed from the mess of real life of politics and that's not how law actually evolves. that's not how constitutional meaning is formed and i i think it is critical to of undo whatever. barricades against that relationship that are imposed by at least kind of traditional legal training. i also think that historians i often go to panels and historians without gds will get up and say i'm not a lawyer and they'll kind of you know, say i don't really, you know, there's all of this kind of self-deprecation that goes on that i think is unwanted. you know, i do think that the constitution does not only belong to lawyers. i think there is you do not need jd training gives you certain insight into how lawyers are accustomed to arguing, but it doesn't give you kind of special inside knowledge into constitutional meaning the question reminds me of when i was doing my graduate work in the nine days. i think a lot of legal scholars were writing against that idea of law as semi-autonomous or even autonomous ideology or system of logic as opposed to what's going on down on the ground and that idea that comes to be in the historical scholarship at least kind of a constitutional culture. do we run into the same problems in terms of evidence and saying what is it that is constitutional culture even and here i think of another a goodie david wall stricker's book where he talks about the public action in the street as pushing forward and driving these and he's using something of a public sphere analysis defining a public sphere. but it seemed to me that. those arguments as much as they brought to the conversation eventually confronted some of the same problems in terms of how do we define our evidence? what counts as constitutional culture and what doesn't and i think i well my law school colleagues can correct me from wrong, but the legal or the constitutional scholar who made this was bruce ackerman, right? and and we the people to some extent where you talked about like the buildup and accretion so it's a worthy question. i want to some extent is our range of focus. just drifting rather than expanding and it's it's a method that that we need to look at. it's a great question others anyone else have. truly good book says there's nothing new under the sun one of the things i'm really struck by in this conversation in a whole bunch of different ways having to do with methodology and with who has possession of what everything we see everything through our own lens. i spent a bunch of time on the research front. most recently the last half year and mid 18th century parliamentary crown records where they're going back and forth about how best to understand various things. the crown is doing and is it okay and man there is exactly this trope back and forth about those westminster cobwebed lawyers are going to tell you this about the bill of rights nothing english constitution in the broadest sense, but like the actual bill of right that has words that have meaning on the one hand and on the other hand will everyone knows you have to understand the bill of rights is declaratory and refund and understanding about it based on the real spirit and english constitution, and that's that's quite literally debate about whether the english lawyers possess the english constitution or certain critical documents are not so one. i want to suggest is like this is a little bit about lawyers versus not versus. yeah versus to sometimes actually i like to think of it is not in circles that i'm moving but sometimes it is but it's also about different ways of thinking about what legal meaning even is and there's a lot of diversion among lawyers about that when i speak briefly about the ideology of purposivism or pluralism. i mean, that basically is to say that the historians get on the constitution too because one valid source of meaning is all the stuff the constitution outside of the court to help the cliche at this point in law schools is the low guy of discussion that are taking place all over the place and the official places. they're especially useful because they have really good records and they focus conversation in one place, but they're not the only place that it's relevant. and so it's just interesting to me. see this exactly culture of lawyers the little like doors right? i'm a dork and and the truth spirit of the thing or the trying to capture the full social reality of the thing on the other side. actually, i think both of those are as much a debate internal to law and how to do as they are. professional and people deploy boundary policing all over the place. of course they do because it's valuable tool to do but if you take it on the face of the thing, i think that debate is as much inside law as it is law versus anyone else whenever you're ready. okay, so i'm logan sawyer from the university of georgia this i i love this topic. i'm a historian i teach in a law school type encounter these things all the time. i appreciate the insight and kind of helping me think through this and i just kind of want to share where my thoughts are right now and get the thoughtful panelists to kind of respond to it. so on one hand, you know constitutional history is political history. i can't remember what the panel you guys, you know, like of course, that's right, right if we think about the way that the government is constituted it's more than it's just the document those additional forms like political parties and like like the filibuster or created by things not in the document. they're created by politics. of course, that's true. of course, there's these feedback effects. it seems where at least for me in my life being in a law school. the rubber really meets. the road is also kind of where it's kind of me being here. we've got kind of got well, we have one jd phd we get the lawyers on one side and the historians on the other is this idea about whether or not the discourse of lawyers is independent of politics. i take it. this is kind of where jul. but it was trying to create some separation there and mike, you know my feeling when i look at it. i it seems to me that there is at least some of that we can take the incorporation doctrine as something that the lawyers think is a important doctrine of the way you're supposed to apply the constitution and what that does. is it bundles together a bunch of things that people wouldn't otherwise bundle together. so it puts together free speech issues in criminal procedure issues and that's like crime and the new york times and lawyers think these things are inextricably intertwined because they're in a particular discourse politics would say those are two totally different questions. so in that way it's independent, right but these discourses of course right now. i'm gonna like go back to graduate school and like i'm gonna try to channel duncan kennedy. i'm gonna fail but you know, these discourses it exist in institutions of power and they are informed by power and they express power and they respond to power and that's politics right? and so, you know, the course that lawyers use to interpret the constitution changes as a result of political pressure and then it has these political effects and maybe to bring this back to like what we might sometime might be seeing with the decision and roe versus the overturning roe versus wade, you know on one hand that's you just can't understand that as jack james. yes. exactly. you always say you can't understand that without understanding this long campaign, but at the same time it was not a political act that they just snapped their fingers to say we want this to change they had to invest in all kinds of institutions that developed illegal discourse in ways, they could be effective so it could work in this different political culture so you can think of law this is i guess the final question you've had to think of legal discourse is separate from politics, or you can kind of also maybe think of it as politics that takes place in a different institutional and discursive context and maybe for our purposes where we're trying to have this group discussion. that's the best and most effective way think about it. question mark so let me tell another story. so it's 1855 and is we're going to fast forward 13 years from where i started but the important thing is is post kansas nebraska act. it is a moment when we are to fever pitch politically speaking and and in wisconsin there's this huge abolitionist meeting and they are getting together and deciding how they are going to put forward their their demands and they write out these resolutions and one of the resolutions is against the fugitive slave act of 1850 and it says no man can be made into a slave except by a jury of his peers and actually didn't say that it says nobody can be shipped back as a fugitive except by a jury of their peers and very famously the fugitive slave act of 1850 specifically said no jury trial, so they take away the jury trial and an abolitionist stands up who had arrived from massachusetts and he says i object to this no man can be made as slave by anything. no jury can make a man a safe. nobody can it's it's unconscionable. and then these anti-slavery lawyers stand up one named byron payne in particular. he stands up and he says we're not saying slavery is okay. we're not saying we're not saying that anybody can be made a slave what we're saying is that we live under a constitution and if we want to fight this battle we've got to do it on constitutional grounds, and then he makes the impassioned anti-slavery argument saying look if this is the best we can do in a jury says send that man back then hard as it is. we have to accept that. so the reason i tell this is because you do have politics going on you have a lawyer who actually will run for office. you've got all kinds of law and politics going on, but they are in conversation. they are always in conversation and that's constitutionalism. it's not law or politics. it's law and politics and law can shape the way politics works. i think giles expresses that more than any other case, right and at the same time we can't pretend that there's this hermetically sealed supreme court in a temple and they come up with decisions that are not influenced by what's going on around it. although maybe logan would say you're thinking, you know, there's a disciplining that's going on with your constitutional lawyers as you can't make that argument that argument will not be recognized in this particular discourse. so that's a discipline. that's a boundary policing and it's done for strategic ends. we want to win this battle in the courts. we want the courts to hear us. we can't argue over here. they don't recognize that argument. but at the same time it is a narrowing of possibility which has all sorts of kind of power implications right the kind of very institutional structuring of legitimate. discourse as logan was saying is itself a kind of hierarchy of power that yeah, i don't, you know andre sympathetic to the strategic argument. i did go to law school, right? i understand the value of winning in court, but at the same time i'm also i recognize that this is a kind of it chops. it locks off the ends of possibility right you kind of have a very narrowed. sear in which in which to argue? i would just add i mean all of that is true. i agree with that. there are people who are trying to push the boundaries and expand the range of what we're discussing in our kind of discursive possibilities of reading william four baths and joey fisherman's recent book anti. oligarchy constitution. this is largely what they're trying to do right is kind of restore more progressive vision that they say was lost and we've kind of become centered on what they would say is a crabbed circumscribed understanding of the constitution it limits the type of arguments you can make in court, but they're theorizing about alternatives so it might not be as broader range as we would like, but i mean, there's always work being done to try to maybe it's as a temporal question about the the horizon, but there's there's effort underway to get us to think more affirmatively about alternative visions and that's certainly, you know, presents the possibility of success. we've seen that work for the right and so i don't think it's there's no hope in that but i do think that in the short term right if i'm living getting a case. i'm not raising these kind of radical outlandish arguments and thinking they're going to gain traction. rachel sheldon penn state. thank you so much for this terrific discussion. i want to ask a question about sort of the word political because i wonder if part of the reason we're having this conversation is that politics is a dirty word now so, you know, rob is talking about how there were all these sort of political understandings of the constitution in the 19th century, and i i wonder if anyone in the 19th century would have thought that it was weird to say that constitutional history is political history, but now when we think about politics it sort of has this natural nastiness to it and maybe that's part of what julian was referring to all so in terms of like trying to separate ideology and partisanship, but if you make the comment that the court is political that immediately gets sort of you know thrown at you like, oh no they're doing things in the principled way. so maybe thinking through a little bit about what that word political means and how we can sort of reclaim it or think about it differently in terms of law. right. it's popular constitutionalism political constitutionalism by a different name but more palatable. yeah. yeah, i mean it's funny. it's politics a dirty word sure, but it's also i think there's such a primacy given to kind of conventional legal interpretation within the sphere of the court that i think if you said well the constitution is a social document or you know, i think they like what are you talking about? it's the legal document right? it's there is it is at least in the terms? courts are used to arguing in i think that there used to the constraints that little out politics but rule out all sorts of other characterizations as well. that said right saying that the court is political in going back to julian's trifecta. i think you'd have saying the court is kind of attending to policy or thinking about policy fine. the court is ideological not so good. the court is partisan boo, right? there's a kind of escalating level of badness in that trifecta which suggests that politics has some sort of particular toxic quality when it comes to kind of legal legitimacy. is that itself historically located? i think during of course the the new deal and roosevelt's plan to add extra justices that the court it's helped becomes it sure is prudence in some circles becomes a dirty word. and so historically it shifts in now politics are are the dirty word and looking to the court for what she trustis roberts is so concerned with is maintaining the respectability and integrity of the court in base of these political challenges right now. so there have been times when we've looked at the court as kind of the last we're cling to the rule of law, but then there's been other times when congress has been called upon civil rights act of 1964 congress has been called on to house legislation to counter something the court's son. i'm 1990 the smith case scalia's majority opinion in smith and resulted in the religious freedom restoration act which came to indiana at one point. so is this a question of historical moment? as well so i think clearly yes speaking descriptively about the path dependence phrase somebody else used about of politics and of how particular institutional settlements cash out. but then also the path dependence of the who's sitting on the court it again period of time policy in the sense that jane personal are using it. is pervasive you cannot avoid it unless you have a code that precisely spells out ahead of time every single application of how it's going to work to every conceivable person who could come into claim under it. there's going to be policy decision making that any decision makers going to have to apply be that somebody in an administrative agency or beat out of judge and at some level lawyers are at least sufficiently sophisticated lawyers, even though they there's a rhetoric you have to avoid. everyone knows this. there's not a way around it. it's not even controversial like of course there is and policy decisions over time are going to be downstairs at least to some extent of ideologies whether that's not the right word of clusters of views on how the world makes the most sense whether it's ideology of what it means to do judging ideology what it means to do administrative action ideology of how we think about freedom versus collective obligation, and then that's down the stream. a lot of the time of partisanship and of partisan decision making where the party that wins is going to get people with clusters of ideologies that it likes. i mean if i was in law and economics person i started talking about principal agent problems because they're gonna do in the run of cases the kind of things the line level was policy decision making that political party wants right. it's like it's a bet here by the time you get the time here with unknown policy issues you a through z the people who share your ideology is in you're choosing them for that reason are going to choose within the zone of discretion in a way that you as you move forward into the future. are also going to like i also have thoughts. i don't want to stop for now, but i have thoughts also on this exact question about the difference between like normal constitutional law and like watershed moments and constitutional law. they're two very different things and i think the former is policy normal constitutional law policy everywhere and even more so than normal law. the latter is is ideology and sometimes partisan. ship like the actual moments where suddenly a shorthanded like everything that's on the books is up for rewriting in a way vision necessarily be and that happens a lot like ackerman focuses on a few particular moments. i think he has like an agenda in mind about legitimating certain settlements, but like there's a bunch of cases across well every certainly across the field of constitutional law where you get like a 10 15 20 year period where everything that came before is crumpled up and thrown away for literally. no reason of any kind of change in the positive law if that's even the right way to put it in the legislative law in any event, but purely a function of who's making the decisions and that happens all the time. i mean historically speaking that happens all the time. are we there now? yes, exactly for sure. yes the crippling it all up. it's a disaster. so julie and i i think i i wonder and this is a question to everyone when you talk about it doesn't it doesn't make sense. how how does the system account for? historical contingency which has had some dramatic changes and i like i really appreciate the the divergent categories and they help me think about law. but there's no accounting for what we we historians, you know, really love to look at which is you know, contingency and uncertainty. so i think that's a question for for everyone who engages in these these interpretive methods that balance. so one of the reasons that political materials politics proper i'm doing getting it. i apologize as opposed to judicial decision making is some of the best stuff to work through whether it's public press or you know meeting notes from you know, this club or that club or legislative debates the field of what could be is like kaleidoscopic when you've got lots of people for lots of different reasons arguing different ways to get a thing. they want often motivated because they really want the thing. it's a huge incentive to be creative and the incentive right in other words to emphasize rather than hide the contingency that's behind all of this. whereas like it is the professional and you could i mean you can easily talk bad about it. you can also see the advantages of it, but it's the professional imperative or the professional impulse of lawyers, but specifically of judges to say this and this all makes sense because like it's one of the reasons why like lawyers lawyers like even if you're very liberal you admire john roberts as a lawyer and same thing for conservatives really kagan because both of those guys are really good at writing opinions where it's like and this all makes sense and always have even though they're actually reducing very large complexity down to a particular way of doing things. just did you wanna we can jump in? no. oh, please. yes by all means hi care of you. i'm from tcu and fort worth, and i'm i don't do political history. i don't do constitutional history. i'm i'm interested in particular case, but i'm really curious just hearing you all talk about how you balance your identities as historians as attorneys and as historical actors who have played parts in historical cases. alright, how do those three identities merge? not merge? scarce two of those three categories do not apply. historical actor and historical cases i i accept it as an interesting perspective on this. he thinks that it's unethical for me. he doesn't say a specifically about me. we've had a conversation about it in a very friendly way, but he thinks is unethical to represent people as a lawyer if you're it is not unethical as a matter of legal ethics. it's unethical as a matter of scholarly ethics to represent somebody in a case the way that i've handled that is that i take cases as counsel that are not in the areas that i write on and i will only write an amicus. this is a very loyally answer only right in amicus on i've only one endocus in the history of my entire life and that was on basically my law if you article except shorter, i will not write i will not write any other hand because we're fine it is because to be a zealous advocate you have to sometimes betray your scholarly intuitions is that i could see it going the other way. it's hard to be a zealous advocate if you your scholarly interest point in action it looks like i mean, i'm fascinated by the answer so part of it is is entirely on his entirely on praiseworthy. it's just risk avoidance. i don't want to write something in the course of writing a brief right like briefs if you're doing a good job, you're writing very very carefully, but it's simply not the same thing as writing an article. that you've been working or a book even working on for years, right? there's not the same time frame to get it. all right with every little every lawyer like knows like how i better that thing. it wasn't quite right and i wish i could squeeze my you still squint my eyes, and actually maybe i didn't quite get that wrong in a brief. i don't want that ever to happen of both. of course. it happens in scholarship too, but i just feel i part of it's nerve but part of it really is like i love litigating and i love litigating for costs that i care about and there's plenty of causes that i care about that don't even josh jefferson disagrees with me on this, but they don't even raise any questions about a conflict between what a case might call me to do and like my mission of the truth and the back of the chrome but it's not that's not only a lawyers question you guys that several of you guys are engaging public facing work of various kinds and it's it's not disorders question. how do you i mean, yeah not i mean not just a litigation question. i didn't mean motors question not just a litigation question. how do you guys think about that? well, okay, so i did sign on to several historical briefs when i was much younger and i don't think i'll do that again. i really was uncomfortable with it because advocacy is entirely different from scholarship and if i'm going to represent myself as a scholar, then i'm actually coming from a point of what i should be coming from a point of neutrality at least in terms of going to the evidence that i would not want to do if i was an advocate and and i think i think there's actually a problem there and frankly, i think historians haven't addressed this well enough they've done a lot of briefs recently. they've inserted themselves into a lot of political controversy and i think if we're gonna make a claim that that maybe this is what originalist want to do, right? they want to make the claim that it's it's the philosophy right that way you're outside of yourself. you don't have to actually bring your politics into your judicial decision making maybe the same thing is true of scholarship if we want this to represent represent something beyond ourselves, then we can't keep inserting our political opinions in it. and by the way, went to grad school in the 90s at ucla. so i'm well familiar with all the theories that say you can never do that. example i had not thought about this. through an ethical lens, which maybe that says something about me but i have been asked at various points to be an expert witness, and i think that that's raised similar questions in my mind because you know i teach and write an election law there are times when there's debates about whether it's sensible to bring a particular case and particularly now given the composition of the courts whether it might move the law in a yeah, a negative direction or you a bad direction? and so that has given me pause about whether it's something i want to participate in on the one hand. it's you know, these are kind of pro voting rights cases on the other hand. i have these kind of larger strategic concerns. and so that's kept me from kind of agreeing to do this a couple of times. so again, that's not about the ethics of it, but it's just kind of another consideration that i faced as a kind of lawyer and you know expert but i think that you know to the extent that you're writing and signing an animal crossing an amicus participating as an expert witness on something that draws from your expertise and that's kind of the extent of it. i don't i don't see a problem with that. i've signed on to a couple amicus briefs and yes, there's an advocacy aspect to it. but it also is essentially a kind of version of what i've written in scholarship. i know that was the case for you as well. so in circumstances like that, at least i don't think that it's too fraud of an ethical dilemma. is there anyone on the history side of this i would like to to speak on on this this question because i do think that there are some disciplinary divides even and even among historians about the about doing signing on to briefs. so is there anyone who would like to speak to this from the viewpoint of historical of the historical disciplines? i'm just interested that the and the does make me wonder i've done you know a few with the person. i co-wrote a report for the house elect committee of the attack on the capital and i've done one for the case the black lives matter pc brought on the meaning of the enforcement activating 71 and then won the capital officers brought and it's interesting to me that i am working. oh, i'm sorry. well, i just think about all i want to say is just it's interesting to me that the ethical frameworks that said over lawyers and my wife is one really shape, you know the sort of path the path that people follow because i was interested that none of the historians. you know, this is authoring not signing on to someone else but none of the historians that i reached out to for help had the kind of qualms that you all do and that may reflect poorly on us as a profession that we don't have the same kind of ethical, you know, sort of guardrails. but i don't know if i would cast it that way. i don't want. i statement to be read in that way. i think historians are eager to be relevant. and and that means by the way that when all of the sudden originalism is the ascendant philosophy, which is an historically based or at least purports to be a historically based philosophy about how we understand language and text in context then gee maybe historians ought to be the place where you look for that meeting the problem is of course that that historians look at everything and say ah contingency complexity difficulty multiple points of view. this doesn't win in court and it shouldn't win in court. i mean and and this is this is where the real problem is that when you are writing an actual argument and and you're participating that advocacy you want you want none of that nuance, none of it. you want it instead to be as persuasive as possible. by the way, this is exactly how originalism gets invented by james madison who understands this and and gene apps book all about how the petition is understood as this. oh, you know, it's just a guide. we'll see what goes on very quickly. it becomes something with fixed textual meaning and that very quick transition is is obvious if you think about it from a rhetorical standpoint because the argument of well, we're not sure what the constitution means does not succeed when the opposition says we know exactly what it means and it means this forever right? so there it is. i was just gonna say something that i'm not thinking do i want to say about say it. thank you. well, somebody said that's a certain preface, you you know, this isn't bad. this is one of the ways in which we have there's an idea international law international criminal on particular if inequality of arms, it may draw a civil law term. i don't know what it is, but the idea is basically two size litigating something don't have the same amount of firepower and you have to think about ways in which to make sure that their fire power is equalized. there's an equality of arms in the field of originalist-oriented litigation on most issues largely because of a land grab a phenomenon where earlier generations of originalist scholarship based on shockingly little source material sets out the ground lay state to a particular kind of claim. and then everyone at least in the circle repeats it to each other and repeats it to the judges and the judges hear it until that the truth and precisely because so much of the work is so i mean can't get away from it. it's conservative originalism so much of originalism in the project in service of the project of sort of conservative judicial ideology. legal ideology is really bad work taken as an effort to try to reconstruct the past with anything approaching sensitivity to nuance and contestation. it's really bad. it's immensely frustrating to talk to them and i feel like it's my it's my service to the world that i keep talking to them. he was i'm coming. i mean, what is it inequality of arms in the sense that historians with some common sense about like what it would mean to reduce. what they know to be true to the form of a brief in time to turn it around. to persuade the court. i think a summer rightly hesitant and b. it's not always clear in historians briefs that you read that the way they're formulating their hesitations and challenges to what the original espritation originalist articles who said are going to resonate with the original decision-making structure. there's like this mismatch of like this apparatus of stuff that was happening in the original space for literally decades where it's like, all right, you guys do that. i mean, okay, it's you know, it's a crazy way to think about what constitutional meaning would be from my perspective and it is from my perspective and the work doesn't seem very good. but i really care you just keep doing it and then all of a sudden they've been saying this to each other for 30 years 20 years, whatever the this is no relation to enforce civil rights enforcement powers delegation doctrine whole ring to doctrine and then like that's the thing that the judges and the ages have heard since they were baby lawyers and it's like it's it's the normalized baseline every effort. back on it. i think i'm renting i don't mean to no, i just mean to say that i think they're actually is precisely because of the historians appropriate attention to nuance and the absolutely enraging flattening and lazy. i didn't say that strike that this is the writing computer flattening of really complex questions. it's for decades of work within this space yields a place that there's not equal arms in terms of the information inputs for a court that only two prime to you know wreak havoc across. a whole range of things i did just ran. this is incredibly fraud and you know, it's not just that. there's the kind of difficulty of assembling a kind of a sophisticated, you know accurate historical record that could play in court or could be, you know time for for litigation, i sincerely doubt that a lot of the originalist judges even care. i mean, it just doesn't matter how the accuracy of the history i don't think matters which raises a whole another question about like how historical work can inform litigation and constitutional development in a kind of meaningful way. i mean, it's the my sense is this this is like the epitome of looking over the crowd and picking out your friends. it's like folks just right articles and then those get cited by federal judges because they're looking for some cover or justification for what they were going to do anyway, so i mean i i do think not to be extremely cynical. i do think it is that bad. and so i just don't know like how the veracity of the historical scholarship would even bear on this question of like what's happening in the courts. i mean jack raykov and others write these longer articles after an opinion and say this is all wrong. they this was incorrect you know, but it's after the fact and if all of that had been in a brief, i don't think heller's decided differently, you know. aaron hall university of minnesota so that last comment just is very striking to me and is like surely true. and given that at points to the existence of of essentially like two connected, but she able forms of politics one outside the court. or outside a legal community and one within it but within it is clearly politics, and so i'm not entirely convinced by that tripart version in which the the yearning for a separation of law and politics finds this middle ground of ideology and instead. i just wonder if in this in the example of originalism there isn't you know like an ethical issue that arises in continuing to produce honest original scholarship that is taking as true an assessment that like the workings of like inter jurist and legal community politics is so instrumental is so outcome driven and continuing to produce high quality like originalist on their own ground scholarship isn't you know continuing to perpetuate or seed like first order issues about legitimacy by essentially saying, yes, we can do this dance together. we are all in this legal community. we will through this exercise of assuming good faith, asymmetrically keep, you know, keep the mary go very ground going what i mean here is that there is like a linking between like a larger politics in which originalism seems legitimate and and political history can like look from without and see like, oh there are political decisions laundered to originalism while inside there's a much more like resilient less self-critical still wedded to separation of law and politics politics that raises ethical issues that that have come up. i hope that makes sense. i hear you're saying they're two challenges for someone who wants to rebut conservative originalism right on the one hand. there's the kind of one side fights in good faith. the other side doesn't the point that julian just made and the second is that even by entering the fray you are kind of seeding important territory by kind of by. by not by agreeing to fight on this term on these kind of originalist terms, which are not how you presumably think the constitution should be interpreted. is that fair? yeah, and just that there are larger effects in that from like without originalism is validated or like these internal legal politics by continuing to operate in this fashion are you know outside of the legal community seen as you know like a a wholesome and true and like authentic non-political process. so not only are you agreeing to find on a terrain that you kind of don't believe in methodologically but by doing so you're validating it and giving it legitimacy it gives it. hour, which gives it more political sway which entrenches it further, right? i'd be happy with with giving. originalism position of the judiciary including the supreme court, which would mean of course that we would be living in a world of judicial restraint where most of the constitution is liquidated by congress and by the states and by the political process about that. we should start a movement. i think we're starting the last words as we only have a few seconds left. so josh and julian, do you have any last remarks to share with us? nothing for me? just thanks so much for the chance to have this conversation with you guys. yeah, i very much appreciate these interdisciplinary events and always learn an enormous amount from my colleagues in history. so i would just encourage us to do more of these. thank you. okay, then i'd like to thank our panelists as well as our audience for such. resting and stimulating panel i hope we can continue these conversations. thank you. here you go at birdle. the wing is pretty lucky and these little ones have a good deal, too. here are a couple of boys who are really fixed for the winner. and this queen and her family have no housing problem. these fellas may be wondering about their next banana. but not about the price of a night's lodging. they've got a ceiling over there heads. and what about these fellas? they're sleeping was usually done without benefit of a ceiling rent or otherwise two million men of married since entering the service. and millions more were already married when they started packing packs or swinging sea bags. a lot of men are gone through this routine. sat through the last army lecture. signed the last navy pave voucher and come home to love and affection. and problems lots of problems. what do you want sergeant? a job you private. you want to know about school? or do you have a different kind of problem? having trouble finding an apartment. or a house this one all break six rooms oil burner near all churches and shopping convenient transportation how much rent for this house? or this couple together again after being separated by three and a half years of blue pacific water. well how much mr. agent? a little more than you expected wasn't. and you make a joke? go back home. sit down again with your pencil and paper and see if you can work it out. dotty's folks as well, but a fellow would like to spend a little time alone with his wife after three and a half years of community living in barracks and foxholes. joe may no longer be a private. his budget is one thing he'd like to keep that way. particularly when he sees stuff like this coming along. enjoy yours, isn't the only family doubling up. there are lots more like yours. what's more to come? nothing like a nice june wedding. orange blossoms bridesmaids and that very special ring. but today there's something you've got to take care of before choosing a ring. views can't change the fact that the situation today is tough. we've had a time with housing while you were gone. materialism labor went to war the materials. that should have gone gone into houses like this. going into houses like this. window glass roofing steel paint flooring a fellows are usually built these we're building these. there was practically no home building except in critical production centers were great war plants sprang up and far out stripped in areas housing facilities. this lack of building threatened to send the rents of houses and apartments skyrocketing. until the office of price administration stepped in to protect the people by holding the line not only on prices. but on rents as well. these men may not be able to define stabilization. rocketing rents are something they understand. a lot of subjects are being discussed in american town meetings these days. but one thing most people are agreed on is that rent control is a good thing. i think so. my name is johnson. i own a house over on sixth street that's rented full up has been for the past five years. sure. i'd like to get higher rents, but i guess if i got higher ran somebody else would be entitled to hire this and somebody else again would be entitled to hire that. before long at that rate we'd all be on a roller coaster. maintenance and repairs or a landlord's big problem today and view of materials and labor shortages. it might tenants are willing to understand some of my problems in that respect. i can get with rent control the way i figure what these country needs is a little more golden rule? and little less rule of gold how do my tenants like rent control? well, why don't you ask them? my name is catherine kelly. i live at 109 6th street. mr. kelly my husband works in the post office i guess he's what you'd call a salaried man. there's a lot to be said for being a salaried man, but i can tell you most of us never get rich at it. what about rent control i don't know much about it. except we were paying $39 a month rent before the war and we are still paying it. we just couldn't pay any more. clock james clark radio engineer i'm one of mr. johnson's tenants, too. what do i think of rent control? well, mr. i've got a family to support. and anything that keeps down the cost of living is alright with me. rent control isn't perfect. there are very few chizzlers and rent gouges who insist on bonus payments and fully tie in sales of furniture. but by the vigilance of cooperating landlords and other local citizens as well as government officials. the public is protected. this public and this product the shooting war is over. was still at war against inflationary prices and rents. is the largest item in our budget lifting rent controls while homes are still scarce would break all other price controls such a break of the line would be followed by skyrocketing prices and the kind of headache. we had after world war one which started when rents jumped 50% after armistice day. with this situation becomes of the utmost importance to hold the line break the line on rent by paying or charging illegal rent. and you could help start an inflation who is only result. would be the kind of deflation and depression that followed world war one. take the lid off rinse and you make it tough for this veteran of world war two coming on to the wife and baby. javi left. what's in store for him when the sun comes up tomorrow and he swings down to the station platform. he left four years ago. his future income of love and affection may be unlimited. but his financial income will be limited. remove rent ceilings and you deal a blow to the workers of our industrial army going back into the factories to finish their reconversion and keep us on the road to prosperous for production. the government has been aiding in all ways to stimulate the construction of new homes. building material prices of being controlled and building supplies are being channeled to where they will be of the greatest good. for the greatest number to the types of homes that most people need but demand still far exceeds supply and will for a long time to come. it'll be some time before there are enough of these. and these to satisfy adequately the tremendous pent-up demand of the war years years when we stood shoulder to shoulder against evil overseas, but all stand shoulder to shoulder in our own land to protect these men and millions like them in and out of uniform against the homegrown evil of overseeing rents. bribes bonuses and furniture rackets if you were threatened with an illegal eviction report it to the opa you'll get help. if you know of a rent violation report it to the opa they'll act on it. if you have a rent problem ask the opa about it, they can't find you a place to live, but they can give you all the answers to any questions on rent. we won the shooting war by working together. let's win the battle against skyrocketing rents and inflationary prices the same way. but these honored living were fought and worked. will not have thought and worked in vain. there's only coming here. margaret partner perfect, all right. we'll go as in. all right. good afternoon, everyone. it's great to see you. i'm margaret o'meara. i'm professor of history at the university of washington, and i'm really

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