Transcripts For CSPAN3 James Madison And The Constitution 20141005

Great issues forum has brought the campus noted thinkers. Elliot richardson, the former attorney general, known as a hero of watergate. David gergen, a retired associate justice of the Supreme Court sandra day oconnor. Tennis icon and humanitarian arthur ashe. Governor of new jersey and chairman of the 9 11 commission. So jack, you have got to live got a lot to live up to. Today i had the privilege of introducing our speaker jack rakove. An exceptional student and teacher of history, a Pulitzer Prizewinning author. He will share his insights on James Madisons ticklish experiment at constitution making. Will prompt us to question and reflect on the concept of polity, something we cherish at st. Johns. Is is the one you the William Robertson professor. At Stanford University where he has taught since 1980. He is also taught at Colgate University from 1975 to 1980 and has been a visiting professor at nyus school of law. He is a visionary scholar and author. His book, original meanings, politics and ideas and the making of the constitution won the put surprise in 1996. Won the Pulitzer Prize in 1996. His printable areas of research include the origins of the American Revolution and constitution, the political practice and theory of James Madison, and the role of historical knowledge in constitutional litigation. He is the author of six books, most recently revolutionaries, a new history of the invention of american, which was a finalist for the George Washington prize. Others include James Madison and the creation of the republic. Among others. He is a member of the American Academy of arts and sciences, and the past president of the society for the history of the early American Republic. Fromrned his b. A. Haverford college, his phd from harvard. Following his remarks, at approximately 3 00, i will come back up to welcome questions which he will then take from the audience. As you are think about those, you will also be wanted to think about making your way to the microphones, as this lecture and the questions rarae are being filmed for cspan. Please join me in welcoming jack rakove. [applause] well, it is a great pleasure for me to be able to speak in annapolis. I spent the night slipping around the corner from the site of what used to be george manns tavern. That is where madison and Alexander Hamilton, john dickinson, and 8 guys met in mid september in 1786. Mostly because they were, they not pursued with her business, they kid upon the idea of calling for a second confession to meet convention to meet in philadelphia. Me. As a treat for it is nice to be here at st. Johns. Because i have a university of chicago background. I was born at the ufc. I know a lot about the curriculum. When i was applying to college, st. Johns with the school always thought about i thought about. Its also nifty because the main text that they were discussing that i want to spend a little time referring to this afternoon was of course the federalists. In 85 essays they wrote 1787 to support the ratification of the constitution. So, that work is part of the whole great books curriculum at st. Johns. Been picking about the federalists for a long time. Thinking about the federalists for a long time. Are subjects are important to me individually but i also have some connection to both the institution and the city where we are meeting today. Let me start by saying something. But me start by saying something title. Ut the is theadison experiment problem of constitution making, or alternatively the role of the people in constitution division. I i want to spend this lecture discussing the nature of constitution making as a process. Our general project. I will refer to a couple of essays of the federalists. Let me start more generally. I will bet you the federalists in the audience, one would usually expect that if you had any acquaintance with it at all, the essays were remembered from ap u. S. History or lets say an introductory class in American Government in college. You probably know federalists first, i have to master this. This is the original version of federalist 10. 22, 1 ppeared november 787. If you go to the bottom of the second column from the left, that is where the federalist begins to appear. Like a lot of slides, it is indecipherable. Here for illustrative purposes. The federalists were the last century, going back to 1913. Tiit has dominated american discussion of the origins of the constitution. Makes hisehrhere madison famous arguments about the benefits of having a multiplicity of factions to reserve liberty, we cannot ascribe the same motives to every member of society. We have to assume that americans sizes, all shapes and with a variety of interests and commitments and attachments. What we want to do is figure out a way in which we can make republican government by taking advantage of that diversity. The basic argument, it will be easier to do that in the larger public, like the perspective United States will be, then in the smaller public as maryland was. In 1787. So there will be a real benefit to the nationalists. The interesting thing about its nott 10 is an analysis of the constitution. A larger public at large districts. Maybe the local demagogues will cancel each other out. It will be possible for men, madison was speaking of men. Of a more patriotic, more elevated disposition to get elected. It does not discuss the constitution. Ologue to the constitution itself. A, to talk about madison as constitutionalist, how he thought about constitution making, the process of adopting the constitution, however important federalist 10 is, we have to move on to other texts. Although, ining gather there is a lot of going back and forth from past and present, maybe a lot of time spent in the present but i think there are a couple of other places the federalists that one has to look to get a better sense of how madison thought. The place i want to start is with another federalists which is not federalist 37, which is not read nearly as often or as closely as federalist10. It is a curious fact that it is i didnt know until a few years ago, but it formed the second introduction. When the federalists was published in hard copy as a book federalist one was the first for volume one. Federalist 37 was the introductory essay for volume two. Hiftsderalist 37, madison s discussion of the constitutionalism the discussion that the federalist is putting forth from the general advantages of union which had been hamiltons subject to the specific dimensions of the constitution itself. To do isadison wants to refocus the attention of its audience his audience. Itse of us who still study can find is instructive. Madison wants to restate the problem, once you get his audience his own contemporaries to think more seriously about the business of constitutionmaking. What he does is quite interesting. Lets say a few words about it. It is going to relate things i will talk relate to things i will talk about as we move on. Yn effect, madison says, man allowances ought to be made for the difficulties inherent in the very nature of the undertaking referred to in the convention. What he wants citizens to think usut is he doesnt want judging the constitution on the base of any fixed axioms that we might have for which we might be committed as a matter of principle. If you want to judge the constitution fairly and accurately, or to use the phrase that hamilton wouldve liked, with moderation. Being a moderate it not mean being at a midpoint of some debate. It means adopting it reasonably, acting with moderation. Adopting a reasonable thinking openly and fairly. You can be a moderate and reach the wrong conclusions on one side or the other, but you have to reason with moderation. For madison reasoning with moderation means if you want to judge the constitution fairly accurately, you have to take into account the real difficulties that his framers would have faced. And he identifies four. An obviouss with one. There is a lack of precedents. No real experience. There was a statelevel. But there is no experience of creating a National Republic or written constitution. Some negative examples. Madison could identify those. But the number of successful cases, not few and far between, its a null set. There is nothing there you can look at. One, you have to take account of the lack of precedents. Realize these guys were not making it up, but they were on their own. Two, combine the requisite stability in energy of government with the inviolable attention due to liberty and the republican form. Ery enterprise of constitution making in the American Republic involved reconciling two main goals which are not compatible. Theres the desire for security and efficiency, the desire for strong, effective government. The desire to have a government that is capable of meeting the needs of the modern nationstate, which is going to have to compete in the world of nations with powers like france and britain and spain. Then in a state of decline. For the americans to compete, we need to have an effective government. Certainly the people around George Washington felt this very acutely. Americans are deeply committed to print tables of liberty. This is a great lesson to have in mind for our own times as we think about the constitution since 9 11. We think about the debates we have about how to balance liberty and security. We do not want another 9 11. But were not sure how far we want nsa to go. In terms of how much information they are going to collect. The very enterprise of constitution making involves reconciling principles that are not themselves compatible. That pull us in different directions. We are committed to both. If you are a member of the aclu, as i have been. Though i wax and wane. Im not crazy about having snowden as one of acluas current mascots. I have mixed feelings. We are committed to liberty and security. The framers have to work out some unsteady balance between the two of them. The third point is the most important, the most difficult. Making a proper line of ofrtition between levels branches of government. Those of you who read the seminar materials from this morning remember madison goes off into a reflection about the very difficulty of dividing powers and responsibilities among levels of government, nations, and state, and among branches of government. He does it interesting way and compares it to moral philosophy and the study of things that we find in nature. Where he says the divisions in nature are accurate but we lack the means to understand them fully. What happens when we have to talk about human institutions . It is the most important part of the essay. I wish i had more time to explain it. Madison reflects on the very uncertainty inherent in political discussion. Fors in some very his st. John students, some lessons from locke, writings on language. Why language is so beautiful that we cannot really, that letter which itself is probably there is a third problem. Then the fourth problem is the interfering pretensions of different interests. We have different kinds of states. Free slaves an free states and slave states. You have precommitments on the basis of who you are of where you are. Or to take this in terms of modern philosophy, there is no veil of ignorance behind which you can step. So you do not know what your computer condition will your f uture conditionwil will be. For all these reasons, madison says constitution making is an imperfect process. It is a very powerful essay. There is nothing like it in the 30 volumes we have on the gratification the gratification of the constitution. Ratification of the constitution. That is my first point of departure. The second has to do with the passage from federalist 49. Federalist 49 and federalist 50. I will summarize this quickly for those who were here this morning and those who are newcomers. So, these two essays. This is a long passage, which i had better read. Very curious part of the federalists where madison does something kind of funny. Hes in the process of discussing the separation of powers, how the framers what the framers have done will vary from what Many Americans thought mont montesquieu had said. Wheren has two essays he sets up the division. Then he has this curious diversion where he talks about jeffersons proposed revision of the virginia constitution. And jeffersons idea there was that when you have big controversies between the departments, the best way to so lve them would be to call a convention representing the people as the Political Authority and the delegates would come together and they would work out the issue. Maybe they reformulate the institutions. The people themselves, to use the phrase the framers like, the people themselves would become the constitutional mediators. Nobody was talking about this. Nobody was thinking about this. Nobody other than jefferson had proposed it. And nobody other than madison was really concerned about it. Its a curious question. Why would madison go out of his way to discuss it . What importance did he attach to it . He went out of his way discuss it because he wanted to say we cannot rely on the people that jefferson wants. We need to have some scheme of separation of powers to make this work. We cannot ask the people to be actively involved in the process of constitutional revision. As the outcomes of elections matter, we cannot expect the people to play a maintainingle in the constitution in this way, as jefferson had proposed. Telling passage because it provides me with my title. Let me read this. Notwithstanding the success which has attended the revisions of our various forms of government meaning the governments americans created 1777, which does so much honor to the virtue and intelligence of the people. It must be confessed that the experiments are up too ticklish a nature to be unnecessarily multiply. He says, we are to recollect that all of these constitutions are formed in the midst of a danger which repress the passions most unfriendly to order and conquered; of an enthusiastic confidence of the people in their patriotic leaders, which stifle the ordinary diversity of opinions on Great National questions; of a universal ardor for new opposite forms meaning opposite from monarchy. Produced by universal presentment resentment against the ancient government; partyilst no spirit or connected with the changes to be made or the abuses to be reform could mingle its leven in the operation. It was a very powerful way how americans felt about how to alter or abolish governments. We had a lot of success in creating new constitutions, of which we are proud, but we should not be too confident about the achievement we made. Why . Because we also have to appreciate that a number of exceptional circumstances will operate, that were conducive to a positive result. A revolution, we were all patriots reacting against monarchy. We had confidence in our leaders. Those conditions fit the atmosphere of the revolution a decade earlier, but you cannot assume there would be they would be the ordinary stuff of american politics thereafter. Was deeplyue contested, we may not have the same set of circumstances prevail in the future. So it might be better, it might make more sense to rely on separation of powers. So, these are two wonderful ways to kind of think about the essays. If you read and discussed them this morning. As an introduction to the larger problem of thinking about how well our constitution is operating today. Two deep reflections. Inc. About the inherent p think about the inherent pr ocess. Before you reach strong judgments, you have to think about the issues the decisionmakers have to deal with which are quite serious. The two, think about dangers of invoking popular authority, whether it might not the destructive to the overall authority of the regime. So thats a long introduction. What i want to do now is present the vices of american politics. Im going to throw out a few suggestions of my own. Themof you has to take seriously what i think might be wrong with american and every politics. Then im going to come back and talk in more detail about madison as a constitution maker. Chris, by the way, when you need to give me a hook, let me know. I do not have a watch. Were identifying i understand a whole array of topics came up this morning if i were to identify three that drive me nuts that i would want to change in two weeks if i had the authority, here are my favorites. One is i would absolutely get rid of the filibuster. Which i think is unconstitutional. For office. Ing let me make a quick argument about this. So, the filibuster might be acceptable, might, for lets say in the senate. If you really thought it was about rules of deliberation. The senate does not have to have the same rules as the house. You should have somewhat different rules from the house. But you can make a fairly good argument that it happened in the modern senate with a 60 vote requirement, that the rule of deliberation and the rule of decision have converged. It is not a rule of deliberation it is no longer about debate. If you cannot get closure on your motion, you cannot bring it to a decisive vote. That is a rule of decision. It is no longer about deliberation. The constitution is very specific about when we need super majorities. Members in both houses. For constitutional amendments. You need 2 3 in the senate for the ratification of treaties. 2 3 in the senate for the conviction of a president or somebody else on impeachment charges. 3 4 to approve constitutional amendments. So very wellknown rules. [speaking latin[ ] when the constitution is explicit about when super majorities are required, it is excluding other cases where they are not. On the face of it, and notwithstanding the fact that each house has independent authority to set its own rules, deeplyre some that are unconstitutional about that requirement. Ascourse, if you worry democrats there are a lot of advantages of saying that it might be wrong. Actually, i think we deserve majority government. If i had to identify then you pay the price of elections. If you get a majority, you should have the right to rule. Then you deal with the consequences. If good, the people we elect to. If not, some other party will come to power. I think that is a serious problem. I think we have the right to democratic government. The senate is bad enough because of the equal state vote. No reason why we should all wyoming should have two senators. In a sense, what has happened is the equal state vote rule, which said that is as far as we should go to protect minority interests thats one thing i would do away with. Secondly, i would have the National Popular vote for the president in which one vote would have the same vote as a vote in any other state. The states would have no role in president ial elections. A vote would be a vote. For a long time, since the 2000 election, i thought about this as a oneperson, one vote rule. Last couple years, i started to think there might be another reason, perhaps a better reason for making this change, which if you look at the current american presidency. Lets go back to bill clinton. And then george w. Bush. Then barack obama. All three president s for Different Reasons have office with a cloud of illegitimacycome. They weres believe going to control the presidency ever after. Because ross perot ran and messed up the election that george bush senior shouldve won reelection. Clinton had a cloud. Bush had the problem of florida and bush v. Gore, which for democrats was deeply problematic. The problem had to do with the persistence of racism in american political culture. Then it seems to me, the last few president s have had serious issues maintaining legitimacy of their elections. And i think the very way in which our elections are conducted with red states and blue states and that a ground states, has collocated things. Its has consultative things. It has taught us to think about the election for president as a big exercise in political maps. Big majority stays go to one side or the other, and there are eight or a dozen or 15 battleground states. Whole idea that we are contesting on a state by state is inimical that a National Election has produced a genuine victory. The presidency would be more legitimate with less controversy surrounding it. The third thing i would do tomorrow, i would get rid of life tenure for Supreme Court justices. Maybe not for federal justices. We know, one thing we know about the Supreme Court is that the politics of appointment have become highly politicized, probably back to 1969. The last 49 years. Lets go back to when knocked out. And warned berger became chief justice. Berger became chief justice. We know how deeply partisan the apartment process has been. Not in every case. We see lots and lots of cases in which how deeply partisan the appointment process is. See things that are predictable in terms of Party Affiliations and commitments. It is a little strange that justices should be able to time their appointments to affect the conditions under which they will be replaced. An incentive to stay in office to make sure they will be replaced in a sympathetic way. It seems to me that is the best way to do it, a system of rotation. It them 18 years, 20. It is a fair amount. Mandate retirement, so the system cannot be manipulated the same way. Three advices i turned out to meet the assignment and be provocative, to show i am not just an 18thcentury guy. Lets go back to the guy i sometimes call my alter ego, James Madison. These are my favorite arts. Did a lotlson field of work around here. This is medicine in the early 1790s, on the left, when he was about 40 years old. Not always dress in black, as people said during his presidency. He did have a knife or color. Has a bit of pumpkin and rust there. Color. Id have an eye for my favorite portrait is done at montpelier in 1829. I want everybody in the audience to visit it. A great historic site. We have trimmed the property back to what it looks like from medicines time. It is a great place, a fabulous view. You could do a tour of monticello one day. This is at montpelier by asher durand. I love the serious, and sometimes they say brooding, intelligence. I do not like to use the term brooding, although medicine was brooding a bit about where the union was going. I love what we see in medicine in this portrait. Man,on the animated young the member of the congress is in the 1790s. Madison the elder statesmen, reflecting deeply on what he had done. Let me Say Something about medicines mind, a subject which interests me a lot. I have quotations from two of my graduate school professors. Said this. If you are a historian, it is a great quote to use. Advantagetellectual i agree about 120 . Know . Nt they i would always like to say Everybody Knows that. That is not the case. Intellect. S a great it enabled him to penetrate to the logic of collective action, even when on the surface there seems to be nothing but random irrationality and partisan wrangling. Look below the nose. Try to identify the source of the notes. By reflecting upon previous occasions and experiences, he was always to see a pattern in the confusion of men and events. Medicine was trying to think, what are the underlying patterns of american politics . Not just to be upset about the dissonance. Maryland figures prominently in this story because of debates over paper money. Madison had a historians intelligence. This is history, not just random fact checking. In history, we try to explain why things happen. What are the causes. Breakdown. The second comes from my own mentor, bernard mailer. Contrast, on an essay in thomas payne, he says, spain was an ignoramus. Wasntays payne ignoramus. Ignoramus, both in ideas and the practice of politics. And then the sentence i really love. Apt of the challenge of constitution making. ,e had none of the hard quizzical, grainy quality of mind that led medicine to probe the deepest questions of republicanism not as an ideal contrast to monarchical corruption, but as an operating, practical, everyday process of government, able to contain within it the explosive forces of society. A great contrast. There was a history going back to machiavelli, a florentine politician, of thinking of the public as in opposition to monarchy. Mostly, republicanism was seen as a contrast to the existing regime. Mod he is over. It is a serious process. And two sketches. I want to focus on the document i know that best illustrates what medicines way of thinking was about. This was about the document the vices ofw as the political system of the United States. Orwas written mostly comprehensively in april 1787. I will Say Something more about this in a few minutes. City. N went to new York Congress could rarely muster a quorum. He had time to plan his agenda for philadelphia. Me time to look at it. I want to go back and look at the hardcopy of library of congress, which i wanted to do thursday. The lefthand side. The text is the righthand side. And withouthrough to belabor it i think of it as very much a working paper medicine has written himself. Had madison gone straight to the constitutional convention, he would never have written the federalist. They could not have recruited him. Medicine leaves places for further expansion. Seven, and then item nine, which starts here i have to point this out. , you seeghthand side the top seven or eight lines, and the bottom. A young colleague is finishing a mak called medicines disons hand. I find a theory provocative but so far do not accept that says that madison wrote the second part, beginning midway on the page, in the of 77, when he was at the convention. The argument we know best from federalist 10, about faction. If you are working a story, it is a somewhat interesting question. Example ofd of an medicine taking 12 items, with no text. I once asked my students to paragraph,isonian what the text might have been. Thee items illustrate really critical facets of medicines character. What i said this morning constitution making is an important enterprise. I think medicine was the one member not the only member, but one member of the convention who thought comprehensively about what the process would entail. For framing an agenda of deliberation, and everything that would take place. Greatestim the lawgiver in eternity is a title i feel fairly good about. A couple of things he didnt indicate the depth of his thinking. This is the paragraph, the , sanctions toaph the law and coercion to the government of the confederacy. Under the articles of confederation, the original 178789,ion, before four National Government to work, congress required voluntary compliance of the states. Tigress could issue recommendations, resolutions. The states were expected to implement. Say,were not expected to we like this one, not this one. The states were thought to be obliged to carry things out. But in the way most appropriate to their situation. Guys around them came to really dislike it. Federalism was voluntary compliance. It has no authority to coerce the states. What is, i think flip back here, if i can do this. Item seven. Up to the righthand side. It is a single paragraph addressing this question. This is the opening part. It says, a sanction is essential to the idea of the law. The literal system having the principles of a political constitution. There was an alliance between so many independent and sovereign states. Itn asked a question is a question. It is not rhetorical. For what cause could this omission have happened in the articles of confederation . Does the most concise and brilliant political analysis i think i have ever seen by anyone in a compressed space. Five points, and if you look at how he is reasoning, you see the way in which his mind worked, and what made him such a leading constitution writer. What did the framers of confederation get wrong . Why did they not anticipate this would be a problem . When theyanswer is, wrote those constitutions back in 1776, the passage from federalist 49 back then, we were all republicans. We all believed in government by the virtuous. We all believed in patriotic impulses. We deferred to our leaders and we reunited, rejecting monarchy. At the time, we just did not think it would be necessary to have some enforcement mechanism behind it. This reasoning he was reasoning like a historian. The reason i got it wrong was not some random decision. The real fact was that this actually fit the underlying assumptions we had. That is historical lesson number one. The second he says, what have we learned cents . , the systemwartime did not work, when we had an external threat that should have motivated us. This is a system that did not work very well. These types of force would work even less well. This is really a question. He says, how could it be otherwise . At this point, he shifts gears. Tell me in what way or in what in stamford, the count for a lot. What discipline is he reasoning now . Answers. As three first, he says, states have different interests. They are not equally committed. States are differently situated. They have different charter restricts. Second, within every state, you the popularity of running against washington the city, not the president. At every stage, you will find politicians who will want to criticize for their own partisan motives. Have aeven when we latent disposition to agree on measures, we have doubts about each others compliance. Even when we may agree in principle, these guys are not virginia is not certain maryland is going to comply. Are not certain about what your neighbor is going to do, why should you go first . If you think about this and you have any background in economics or political science, you realize what medicine is doing is engaging theoretically, the game of theoretical reason. Economists and political scientists do it now. The system of federalism, voluntary compliance, is a game. Agree to support it. Strategically, statebystate, there will be different incentives to comply. His conclusions if you think about his factors, he says this will never fail if we rely on a system of federal debates. Conditions. Ructural this is not just the lessons of history that madison has spoken about. These are Structural Conditions that always exist. They always persist, the federal system is not going to work effectively. What is the alternative . The alternative has to be that we need a National Government operating by law, not on the states but on the population. You have to cut the states out of the loop. It is a major transformation that sets up the agenda for the convention. We are not going to get compliance from the states from federal measures. We have to have the Legal Authority to do so. Think about that for a second while we take a short right. Thanks. I needed that. That is point number one. Point number two that i want to discuss comes up in item 11. That is where professor builder and i disagree. If she is right, it has really interesting implications. It is the major text for interpreting the federalist. Goingk to item 9 into the convention, medicine has his second major agenda. The first is, we have to change the nature of federalism. System based on law. We need a new set of institutions. We need a separate legislature, bicameral. We need an executive, independent judiciary, the full architecture of government. Madison introduces with item nine, continuing through items 11 and 12 he starts complaining about the states not as federal units, not in terms of their performance of natural Duty National duty he starts criticizing their internal government. He says there are three things wrong. The first two are right up in the first passage. The states are in i think too many laws. Madison was a bit of a libertarian in some ways. The passage of laws is coming at the expense of liberty. Too many laws are being passed, and are not being changed too often. The laws prove the want of wisdom. Justice betrays a defect still more alarming. Becauserming not merely it is a greater evil in itself, but because it brings to question the fundamental principles of republican government. They are the safer government guardians of public good and private rights. Public good means the collective welfare of the whole. Committed to individual liberal citizens. He asks, to what causes is this evil . The first is about institutions. To talk to the people themselves society this is a great passage. Powerfully, the guide had shifted. The problem of constitutionalism , with the framers of the constitution, was essentially a matter of giving the National Government adequate authority to do what it was supposed to do. This was primarily a National Security western. It was a matter of commerce and revenue. Require an openhanded grant of legislative power. Madison is adding a new element. There is a second set of problems, and not has to do with what is going on individually with the government within the states. Here, he has two concerns. One is, he is still concerned states will continue to have legislation that will try to interfere with national policy. The second concern, a radical breakthrough, is he says, we also need to protect the rights of minorities within the states, taken individually, against the rule. It should be a purpose of National Government from this point on not merely to be sufficient from its own purposes, but to be capable of protecting minorities within the states. Which of these minorities did medicine care about . Wealthy, the property, those with the largest estates, like George Madison senior, the largest landowner in his area of virginia. People like annapolis and carrollton. People of that stature. In a couple of places, medicine extends the case for slavery in an interesting way. He was never very public in his feelings about slavery, but there are interesting passages where he discusses it. The key thing is, there is a vision of National Constitution making. There is a vision which i think anticipates the civil war. The key thing that comes out of to give theion was National Government i will not say a veto, but a negative on state law. Felt to resolve what he called the discussed against State Government, what you wanted was to give congress the right to negative legislation. That would help the National Government protect itself against the states. We are in maryland. A great case is mccullough versus maryland, 1819, the bank case. That would be the classic example of the state interfering with national policy. Another example could be brown versus the board of education. Issues whereby minorities were permanently the ability of minorities to exercise their liberties would be permanently impacted because they were a suppressed minority. There is a very expansive vision here of the possibilities of National Government. This, to lead to the general set of conclusions i would like to reach let us up our durand portrait here, so you are suitably inspired by the gravitas. I spent a lot of time thinking about medicine, really the past 47 years. I have been working on the device in the political system since the early 1970s, the nixon years. While, the for a Vice President , whose name will not be mentioned here. Analysis i gave you it took me a long time to come around to reach that. Of time thinking about the genius of constitutionmaking. , number of colleagues who say not without reason, madison lost a lot of the things he cared about most. Amendment medicine lost that. He lost the equal pay vote. He was deeply depressed by the idea that rhode island, not to mention wyoming later, but have the same number of members of the senate as virginia and massachusetts. He lost another proposal to which he was deeply attached. He wanted a joint council that could review legislation. If enacted, he would deal with the consequences later. He did not like the idea of remedy by postoperative legislation. So he loses those points. Look at madisons batting average. His r. B. I. , onbase percentage, slugging percentage. Lets be a little careful about this father of the constitution stuff. Perhaps he was overrated. I never really agree with that. Constitutionmaking is not like baseball. Bad analogy. It is an entirely different enterprise. What i find really impressive about medicine is, you think seriously about his role at every point in the process of constitutional revision. Back to 1780. He did not sit in congress. Jefferson knew what was going on here. In thebout his role early congress, the virginia assembly, and annapolis, looking ahead to philadelphia, framing the agenda at philadelphia, in the ratification phase. Forcing his colleagues to take up what he called the nauseous process of amendments. He is involved in every phase of this whole project. In the whole ticklish experiment, he was involved at every point. His contributions were major contributions, which is why we are still reading him. I think reading medicine is ,reat, because he was powerful a truly powerful thinking. He did not see himself writing primarily for audiences. His beste gives thinking for himself. Thought his best statements, when you read them, they come in letters, memoranda. Youor two expressions, wish, why couldnt he have written a whole paragraph . It was a couple of pages to expand this. To take theou have odd sentence and run with it a long way. Years he had spent the 20 of his retirement writing his memoirs instead of just writing. Etters and a few odd memoranda make life a little easier for us. Andsense of engagement commitment, and really deep analysis of what is going on. That is why i find him a truly impressive character. I started this on a somewhat cautious note. With federalist 47 and federalist 39. He faced what i would call a madisoniann dilemma. Think about federalist 38. All the confederacies in the past had to be formed by a single lawgiver, who usually skipped town once his work was done. We have a process of collective deliberation, which is going to be different. It is a very interesting comparison. Lawgiver, we would have a filibuster rule tomorrow. We would give the Supreme Court and 18 or 20 year term. Backi could retire and go to california, where there is no humidity. The utilitye about side, but there is no humidity, so it is a great place. In any case, there is what i would like to call a kind of medicine madisonian dilemma. No one better illustrates the whole promise of the American Revolution then i think medicine. Maybe his sidekick, jefferson. These were guys who had deep confidence in the capacity to reason, to think about how you process oft the reforming governments. We owe a lot of them. Look around the world today, at missouri and failed transitions to democratic rule in so many other states. I do not we should take the success of the american founding for granted. That it was destined from on high by the powers that be. I do not think we should undervalue the significance of , at took place here perspective. It relied on having a lot of smart people engage in a committed way. Just like wyoming having two senators. That is not a crucial part of the story. On the other hand, there is a medicine who was a kind of reformer. He was also deeply conservative. Not about the costs, but the downside risks. Of thenot convinced capacity of ordinary citizens to exercise judgment. He was no democrat. He was the founder of the modern democratic party, along with jefferson, that he was no democrat, at least initially. He believed people had a right to rule, that people should have ultimate authority. But he was very diffident on a lot the particular applications. We have a kind of madisonian dilemma. We have to be nervous about consequences. I thank you a lot for the patience you have shown. Thank you. [applause] a very fine talk, and on occasion i think for questions. A reminder for people to come forward to the microphones on either side of the auditorium, and i will step out of the way. Thank you. I was struck by your recommendation, if you were rewriting the constitution and mending it, about Supreme Court justices. Termsou would limit their to 20 years, lets say. My question is really in three parts. One, i dont always agree with the Supreme Courts decisions. Think in the i last 10 years in particular, i think they are becoming politicized. Terms,you limit their would they not become more if that is the reason you are advocating a limit . If you have other reasons, i would like to hear them. Wo, would you extend the term limits to all of the federal judiciary, down to the Appellate Courts and the District Courts . Number three, i would like to hear you discuss putting term limits on senators in congress. Three good questions. , i hate to be so arbitrary and capricious here, i suppose. I dont think they should be politicized. That is how the appointment process operates now, and house, i think, for the last couple of decades, certainly back to the mid80s. If you go back further, you think about eisenhower appointed brandon, a democrat. What is the biggest change that has taken place in the Supreme Court in the last short period of years . This is a case made implicitly by journalists like marcia. It is the replacement of sandra day oconnor, a stanford grad whose son was my student, of which i am proud. It was basically a replacement of Justice Oconnor by justice alito. Changed what is possible in the court. That is what made it possible. Not sure how the court would take citizens united. Is more fromthat located. But basically the addition of alito to the court shifted the balance. Swingusly, there were two justices, kennedy and oconnor. Roberts, for his own reasons, functionand took that in the Affordable Care act. Nurtured,was a well federal society sort of conservative. And as soon as he was on the court, the emerging majority what might really be its agenda. There was a long body of decisions relating to campaign ,inance regulation and so on more or less the jim demint, some issues. Shifted, thevote court began fishing. The court indicated it was open to business on these issues. I am not sure it would make much of a difference. It is very hard to imagine how you get out of it. Awas thinking of giving deeper thought, which is to say, maybe we should not take constitutional law so seriously. Maybe the Supreme Court has just become a continuation of politics by other means. I dont think that would be a bad answer. If you look at the positions of the majority justices on the Affordable Care act i think the majority of constitutional is noholars said there constitutional question in the Affordable Care act. A new deal agriculture case from the 1940s, we cleared the way for that in terms of the authority of congress. And yet, justices were prepared to strike the act down, even though the act is a reform of an existing system. I do not know. I am skeptical about that. There is an age in terms of politicization. Term limits for all judges i am not so sure. I think a lot of judges in district court, the Appellate Court level, might consider giving up more positions to have that position. They are not the ultimate decisionmakers. Someone worries less about the responsibility. Is secondary. Sure. Ot we are not infallible because we are supreme. We are not infallible. I hope. Term limits on others that is a more complicated question. I wrote about this a long time ago, back in the 90s. Happy realizing our own members of congress. We want term limits for congress in general, but really for the people who we are individually happy to reelect. Americans have the right to elect whoever they want to be reelected. The first victim of term limits in American History, at least legislatively, was does anybody know . A trick question. We just heard a lot about him. It is actually medicine. Medicine was term limited with the Constitutional Congress the continental congress. He was term limited out and served three years. It is bad for medicine. I am not sure it is bad for the rest of us. There are so many concerns about congressional corruption. If you talk to people like my ,ormer colleague, larry lessig the congressional work week is short. It is about three. 5 days, if you want to be generous. It is fine that they go back to could spendbut they more time on the proper business and work out their problems in washington. What you say about citizens it is not clear. One thing i think we dont really know i dont get the idea that corporations would have rights of freedom of speech and freedom of religion. That is problematic to me. But you could spend lots and lots of money on advertising, unlimited amounts, and not get what you want. Have wastedthers tens of millions of dollars so far. That was one of the main outcomes. The lifespan of most dads is very short. They dont have much at all. You can have that kind of openended market of free speech in advertising and not affect very much. The decision may be bad, but it is not wholly clear how much damage it is doing. You are arguing against factions as an evil in itself, and then you are saying we should acknowledge a majority. Ote of the side the Electoral College assures the president is president of the whole country, and not just a region of the country. This does not look like a problem right now, since we have two strong parties. It is conceivable we could have four or five parties running, in which case the party which was a radical and active fraction could end up securing the presidency with 25 of the vote. Starters, if we have to ask about the vote, what rules do you want to have . I assume you want to get to de minimis 4045 . Without great difficulty, france and brazil would be able to figure out how to have a Runoff Election in weeks. I do not think that would strap us, for our ingenuity. Not opposed to a scheme that would allow a relatively small faction with a plurality to be elected. There are certainly aspects of that. I think a big part of the development of the twoparty system it is not clear we would have had the twoparty system without the presidency. They model of parliamentary democracy in its modern form was not really available to us in the 18th century. That is not something we fully appreciate. The king still played a role. The chief minister. You had to be able to amend the majority of the hapless of comments and have to have the favor of the king. The favor of the king could be erratic. Nobody who had written in the 18th century thought that elections would determine who would be able to form a government. Elections were a lot of small factions. You have the elections. They dont change very much. Different factions start negotiating. They start with each other in the king. The americans did not have a full model to look at, Something Like that available to them. I think historically, once we adopted the presidency had we not adopted the presidency, we could have developed a party system that would look much different. We had a party system from the late 18th century to the civil war era, which is very beautiful. First party system, parties forming, parties collapsing, parties reforming. Madene thing that really it work was to gain the presidency, you really had to cooperate on a party basis. I tend to think that if we had a National Popular vote does fighters would still work. I think the Coalition Forces would lead to two parties. Havenk three parties would the lackluster history they have always had. Occasionally, they might have some marginal effect on the outcome, but they have not had any lasting existence that has amounted to anything. One quick followup. If we had a Runoff Election, madison is worried about. About tyranny. He said if the government is in the hands of one group, that is the executive, judiciary, and the legislature in the hands of one selfappointed group. If we have a Runoff Election, those of us worried about the influence of money in politics would not further enhance money in politics by forcing more money to come forward, to be raised very quickly . To me,uld, it would seem privilege the person most favored by the wealthy. Toi think that comes back minor marks on citizens united. I think we need to have a lot whatinformation about effect does money actually have on the attitudes of ordinary voters. I am not convinced that the enormous sons sums of i think it remains to be demonstrated that the ofenditure of enormous sums money, which karl rove is helping distribute it is not clear how much effect it has. I think americans know who they want to vote for for president. Those impressions are pretty deeply embedded in the body politic. I sometimes wonder if money is more important in the primary election, for for a variety of reasons. I would be careful about overgeneralizing. I am not in favor of money in american politics. It does have all kinds of corrupting effects. Impacthink it is its on elections is more competent at. The last Runoff Election, i do not think it would be very important. By that point, the citizenry would be welleducated. The people you have to worry about are the moderates. Today, when we talk about moderates, we mean people who do not really know what they think. It is not the 18th century concept of moderation. It is not a way of reasoning. If you are in the middle, you do not know what you think, to be honest about it. Who could be a moderate today when the difference between the republicans and archives is so obvious . Do enough be a blithering idiot to be a moderate. Maybe that goes too far. How could you not make up your mind with the choices so blatant . You do worry that in some kinds of elections, if you have to appeal to that part of the body politic, god help us. God looks after. Our runners, and the United States of americans. Moderates, howut do you and how would madison feel about measures to eliminate gerrymandering . I think you would be all in favor. Again, you have to you get into the debate where it is hard to know what the effect actually is. It is easy to make fun of it and denounce it. It is not clear how much impact it actually has on a lot of this. , it isad a better system not clear it would make that much difference in the politics. , madison aid that there is in the constitution the time, place, and manner clause, which gives congress the authority to override state , in terms of setting the basic rules, selecting members of the house of representatives. Congress used that authority in 1840 or 1842, to pass districting. Down to that point, i think maryland made that decision. The government of the small members ofl elected the house at large, not by districts. Maryland had a system of dividing into district, that you would vote statewide for each district. There was a lot of experimentation, the very beginning, the first two federal elections. This is a good thing if you want to think about the mode of selection. I do not think he was in favor of statewide. Virginia used districts from the beginning. Massachusetts used districts from the beginning. Madison was in favor of having a but alsoperimentation, favor the idea there should be a congressional way to override rules adopted at the state level. One of the concerns he stated is 1987, 88,r written in may be at the convention. State legislatures might use their authority over districts would say, note one person, one vote way. Madison thought districts should be able to decide. He did not like the idea of what pened in american politics the original case of gerrymandering was a fairly narrow case involving an oddshaped district. America, the lead case comes out of tennessee. The state constitution required redistricting. Is basically farmers protecting themselves against the changing urbanization of america. Madison liked the idea and it would be consistent of his way of thinking. He thought state legislatures were the worst institutions in american politics, the ones he most wanted to correct. Electoral manipulation would be something he opposed. I feel good about that one. That becomes an appropriately given, because i am curious what position you think states have, both state legislatures and states as elements of the National Government, especially given your recommendations of illuminating the satyrs and having a more direct electoral affection. He discusses this may be in the report of 1800 or elsewhere. Clinton, bute bill it all depends what you mean by your state. That is a serious question. We might say a state is a territorial unit. The state is best defined as its government, as its institutions. The election of senators by the state legislature is to help coordinate in a general way between thetics State Government and the national. Sayink madison would also i think this is the logic of federalist 10. The state is nothing more than the conglomeration of interests. You have to know the social. Roupings it is one of the arguments you get against wyoming. Logic of the equal state , that sizein effect should be a factor over presentation if you dont have it. Meaning small states must have a special interest that somehow has to be protected. In terms of having equal state vote. If all states do not have a state vote, their basic interests are going to be dominated or overridden. The problem with that is, if you ever ask a question, what are the interests of small states, you cannot come up with an answer. Across the skepticism to the eastern shore. There are three states. I do not think there are that many differences. In the 18th century, one would have been a large state, virginia. One would have been a moderate state, and delaware was kind of a mistake detached from pennsylvania. Three counties detached and became a state for no obvious reason that makes much sense. I would assume that on the eastern shore, they all have a common interest in chicken farming, oysters, whatever. I was on an airplane with two people from congress who taught at the university of maryland on the eastern shore. They said, there are very different parts of the eastern shore. I am still not convinced. But at least i had to take a position. Size is not determined. Lets imagine your enthusiasm. Do you own a weapon . Do you pack it . Not currently. A very careful answer. Lets say you have a strong stake in the Second Amendment. You like to hunt or whatever. Does it matter whether you come from western pennsylvania and are a deer hunter, workingclass culture . We once used the phrase the venison belt to describe the area from western pennsylvania to michigan. Suppose you come from western pennsylvania. Suppose you come from wyoming. They would allow the Second Amendment rights to go down the tubes . Size is not a factor there. I do not care what variable you pick. Those are the interests that determine how we vote. Question wherea you ask, what is good for the small states and what is good for the large states . And that was how it was discussed in philadelphia. Pennsylvania, and massachusetts are large states. Massachusetts is about fish. Pennsylvania is about wheat. Virginia is about tobacco. And you have slavery. I think that is a powerful argument. The only time the size of the state you are in matters is when you are moaning about whether the size of the station matter. Seriously. Veil of ignorance behind which we can hide. You have a national incentive. You are taking sides to mean land rather than population . It really means population. Wyoming is big and delaware is small. So massachusetts is big . It is big. It is not that big, compared with california. I come from illinois. Nothing is big from california. Alaska, but nobody lives there. It is small. Have a Washington Monument and a Jefferson Memorial and a lincoln memorial. And we put Ulysses Grant and andrew jackson, and even Alexander Hamilton on our money. Why isnt James Madison more popular . What does that say about us . I guess there are two ways to answer that question. There is across from here the madison building, the library of congress. Building, madison which houses the manuscripts, the library of congress manuscript collection. You might say that madisons commitment to learning and to Higher Education is embodied in that building. There may not be a statue or monument. An appropriate tribute. And what he was doing i think the larger question you are asking is more biographical. Is, he madisons problem actually had a very charming personality as best i can tell. In his old age, he was a great storyteller. He loved to reflect on history and the events in which he participated. But he was very much a public man. If you compare him to those around him, what you say about jefferson you could write a series of books called jefferson number would not be infinite, but it would be fairly substantial. Hamilton, you had this impressive record as a state builder. Hamilton was a more adventurous guy. Hamilton is more of a risk taker. Often a risk badly taken. And john adams was a raving egomaniac. Distinctive these personalities. I think madison in some ways is more of the embodiment of a reasonable 18thcentury gentleman. Mary, reading her manuscript she described lots of adjectives to madisons reaction to events at the convention, and i am not persuaded by any of them. , iody had better experience think, before 1787, the madison did. Of adea that the outcome particular debate would upset him i mean, he was frustrated. Mercurialld have a position, beat up one day and down the next . I am pretty skeptical about that. You know politics. You know real politicians. The good ones they learn how to cope. Few, you, you win a lose a few, you get rained out. I think madison was that way. It is hard to distinguish him from his public role. Others all have other attributes to their personality. With madison, you really have to love the ideas. I love the ideas, so i find him a great guy to work with. To find out how he came to these ideas it was not just about because he was politically active and deeply respected. One more, if we have time. What do you think madison and yourself think about the solution of california to gerrymandering by having an open primary, where the two top go on to the election regardless of party . I dont have a strong opinion of this. I do not think we know enough about ourselves, because it has only operated for a couple of election cycles. It is not much evidence it has had much effect. Is, for thehappen system to work, arguably, you have to have somebody who is who can getological a decisive margin by appealing to the other party. I just dont know if that many cases where it has operated. California, in terms of state republicans made so many mistakes in california for the past 20 years. It is a solidly democratic state, which is why jerry brown has been so successful. The barriers which were put up are no longer effective. Its not clear theres much evidence it will have much of an effect at least not yet. We need a couple more elections to find that out. [applause] [captions Copyright National cable satellite corp. 2014] [captioning performed by national captioning institute] you are watching American History tv all weekend every weekend on cspan3. To join the conversation, like spanhistory. K at c next, we will hear from a panel about the personal and political consequences of Warren Hardings love affair. Surviving love letters detailing the relationship were until very recently kept under seal by the library of congress, which hosted this event. The former president s grandnephew explains why they insisted to keep the letters seal and how the family continues to deal with the fallout of the love affair. This is about two hours. My name is jim hudson, chief of the librarys manuscript division. On the stage with me, we have james, a distinguished trial attorney, partner in a cleveland firm. The author of two books, one about his grandfather greatgrandfather,