Not highlighted on your map, but it is building number 30. It is very easy. Battlefield tours this afternoon i know your schedule says that we will depart at 2 15. Dont worry, we will likely hold the buses until 2 30. Keep that in mind. Also note that we are loading the buses behind us, a little different from previous years. You will not be able to miss it. We have seven charter coaches waiting for you back there at 2 30. You will return to campus around 5 30. Anyone who is a participant in one of the diamonds, there are about 40 of you, we will be directing you to dinner from a slightly different doorway. You will see stuff, we will grab you, and they lead you to the dining hall. Keep that in mind. I believe that is everything for me. Enjoy your lunch. Thank you for the attention. We will come back to Gettysburg College for more of the conference on the end of the civil war at 1 00 eastern. During the lunch break, we will hear a discussion called how president s interpreted the constitution. Then, we will come back to the conference for a discussion of the medical crisis. American history tv, harold bru ff. He examines and contrast how president s interpreted the constitution while in office. This is hosted by the National Constitutional center. This event is about 50 minutes. It is my great pleasure to introduce harold bruff. You are in luck because these are scholars are as good as they come. Harold bruff served on the law faculties of Arizona State university, university of texas, and Gw Law School where he left the year before i came. We just missed each other. Im so glad, we have you in person. It is so great to welcome you. He has been a senior attorney in the u. S. Department of justice. You know the olc that provides constitutional advice to the president , the most important constitutional body in the Justice Department. He testified before congress and he is here today to discuss his new book untrodden ground how president s interpret the constitution. And as our moderator, it is a thrill to welcome my old friend peter spiro. He is the Charles Weiner chair in International Law at temple universitys Beasley School of law. He was rusk professor at the university of georgia law school. He is a former law clerk to david souter. He specializes in International Immigration and constitutional law and is the author of beyond citizenship, american identity after globalization. Join me in welcoming harold bruff and peter spiro. [applause] peter thanks, jeff, very much for that gracious introduction. It is really a thrill to have jeff here doing so many wonderful things at the National Constitution center. It really is a huge asset to philadelphia. Thanks also to all of you for coming today. It is really a delight and a pleasure to engage mry old friend hal bruff in a conversation about his very excellent book, which is a real tour de force. I should mention before i forget that hal will be doing a book signing downstairs after our conversation, but hal and i go way back. He was a mentor to me when i was starting out studying the things he is one of the real leaders in constitutional law. In the field. So, we are going to have a conversation. Then ill prompt hal with some questions, and then we will take some questions from the audience. And so, looking forward to a really terrific hour with you. So, the first question for hal really is, for you, is why you wrote this book. The conventional understanding of constitutional law is that its responsibility of the courts to tell us what the law is. What room is there to talk about president s and their interpretation of the constitution . Hal thank you all for coming. No audience, no talk, no book sales. Jeff was talking about the Supreme Court. Its enough of that, ok . We are not going to talk about the Supreme Court in this hour. If you have a system of three separated branches, each of them will interpret the constitution for itself every day. I knew that for years working on these issues. What struck me about executive interpretation as i want to look is no matter how many lawyers there were advising president s the way president s interpret the constitution is very personal to them. If flows out of their personality, the events of the day, and it proceeds from their overall view of the constitution and works down from that towards particular issues. So, what really matters in president ial interpretation of the constitution is the president himself or herself. And thats what drives it. The book is about that. Peter so the book goes through the full horizon of American History and how each of the president s approached constitutional interpretation. What role does personality play in constitutional interpretation, and you give us and can you give us some examples . Is there a difference between being a good president and being a good president constitutionally speaking, or are the two coextensive . Hal i think there is a great deal of overlap between being a good president and being a good president ial constitutional interpreter. Largely because when you reach this level, the boundary between politics and law becomes indistinct. What the greatest president s have done is to reconstitute american politics. With it, they hauled our views of the constitution along. Jefferson did that, jackson, lincoln, fdr, reagan. So, president ial Political Action is eventually constitutional change. That means the one to have been effective at the one have been effective at the other. And those who have not been effective as president s have typically had low impact on constitutional law. Some from time to time. But not as much. Peter so, is there a difference between long politics . So, the line is not as distinct as you have with judicial institutions, but are there some things where the president s are clearly engaging in constitutional interpretation an d other areas where it is just politics and how3 do the two sort of intersect . Hal the boundaries a pretty clear. Some things are daily politics is some things are technical constitutional interpretation. What president s do is they look at the constitution. Is they are very interested in what the president s their predecessors have done. Those are the only people ever sat in that seat. What the Supreme Court has said. They want to fit themselves into the tradition. This means that when president s interpret the constitution for lawyers in the room, it is like generation of the common law. That is customs starts to build, precedent starts to build. Pretty soon we start thinking, this is no longer just a custom. It is constitutional law. An example wellknown to peter is that early president s started the precedent of deciding who is the correct governmental foreign power. There is nothing in the constitution on this. So, when we recognize a new government after a revolution, that is a president ial action because George Washington started doing that, and president s have occupied that constitutional ground. Peter you have other examples some of them are historically prominent, i guess, when it comes to issues such as war power and other National Security questions. Others are nonobvious, but very interesting demonstrations of the role president s play in constitutional interpretation. So, issues relating to president ial succession, veto power, the power to appoint and remove executive branch officials. These are fascinating samples, even though they are not the headliners. Hal let me mention a couple of them. President ial succession. When the first president ial to die in office did, William Henry harrison, john tyler came in and took the oath of office. The question was was he acting president or was he president . If you are acting anything, you do not have much power. So tyler said, the constitution does not say, so i am the president. He took the oath, he made congress and the executive branch believe him. And now he insisted basically. Now everybody thinks of the president dies, the next person is president right then. You have to take the oath. So, that is a precedent that stuck. What was the second one . Peter veto power. Hal the early president s, the founding generation that you see all around this national park, thought the veto should be used only for statuestes that were on constitutional. Andy jackson said i will veto anything i do not like. The vetoed the bill to reconstitute the national bank. Here is the conjunction of long politics. He was democratizing the country. And having a president ial field veto that could stop congress for political reasons was a real empowerment of the president. That view is the one we have today. The president can veto a bill for any reason he or she cares to. So there again, it is simply a change in practice that is hardened into constitutional law. Peter then with respect to the appointment and removal of executive branch officials, i know that the founding there was a question about whether the attorney general was going to be really on the president s side or whether she was going to occupy some sort of intermediate space between the presidency and the legislative branch. Hal and George Washington decided how that should be done. The statute creating the attorney general is the one that created the Supreme Court. It simply said there should be appointed an attorney general. It did not say who would do it. Washington said that would be me. He appointed his personal attorney. Many president s have done that. The attorney general moved close to the president , because of this practice. The attorney general has been at the president s side ever sense. This mean the president ge ts sympathetic legal advice from somebodyts who could have been a semiautonomous judge within the executive branch sort of thing. You know what wouldve happened . President s would have found somebody else to ask. Peter on some of these things from our perspective, it looks like that is the way it has to be. I guess the press the president seems to line up with what makes sense. It did not necessarily have to end up that way. Are there precedents, are there episodes in which president s have tried to establish precedents that did not stick . Are there some practices that had to be circumvented to other practices . Hal the most famous example ever of a practice that did not stick was the Court Packing attempt by fdr. There is one that demonstrates one of the real chekcs cks on president ial interpretation. He thought he could transform the Supreme Court in short order. Both parties rose up against it. The people do not like it, either. Subsequent president s have not thought that was a road they could go down. Earlier president s have added one here or there. It was a practice that ended with fdrs mistakes. Overreaching is the thing to be avoided there. Peter so, just taking the proposition on its face that president s can engage in constitutional interpretation does raise the question of what does constrain them in the way t hey interpret the constitution. It is not just something they can do unilaterally. So, what are some of the mechanisms by which they are brought in to check . Hal it is really a question of anticipated reaction. That is, president s will have referred interpretations referred interpretations they would like to run with. If they have any sense, they are thinking carefully about what the reactions will be in congress, in the courts, if it is the kind of issue the courts will take on, among the people. And its that political construct that also constrains constitutional development. And i think in a way that is very good news because the whole system is moving along in this precedential way, and it is a way we update our constitution. We cannot really amend it with any ease. It takes 3 4 of the states. That is one reason why the Supreme Court is so active. You cannot change the text ever. You need some sort of bipartisan thing like should 18yearolds vote . Peter that points to your rejection to originalist approach is to the constitution. There are many who believe that all we need to get our constitutional answers is the text of the constitution itself and implicitly exquisitely reject that method of interpretation. Maybe you can elaborate on it. Hal although, after this talk i am going to go down and get among the statutes of the framers and see if peter the peter the oracle. Hal sometimes i think i can hear them anyway. But one of things that both madison and hamilton said in the federalist papers is to see how this new construct is going to work, we have to work it for a while. We have to run the machine. Then we will know how it works out. So, they thought we would have to adapt to this thing they had built, that they could only imperfectly predict. And generally teaching constitutional law, i do not like original sin because i do not think we can go back. And i will tell you, my book demonstrates beyond all doubt, that president s are not originalists. They, when they can will cite, the framers and so on. They are very interested in the predecessors in office. They are interested in what its become. They use mostly strategically things that were said at the time. Lincoln did a lot of this. Reach right past this to the declaration of independence. Lincoln did that because they were such defects in the original constitution which he was having a war over. He wanted to go back to the founding values of liberty and equality. President s who reconstruct american politics and affect the constitution very often reach way back to what they sell to the people as original values. Ronald reagan is probably the most recent president who has done that effectively. Again, they look back to basic values but not technical originalists. Peter so, theres a kind of moral perspective that comes into play . Or is it a story of continuity and legitimation that president s turn to in basically selling what they are doing today . Or it just a fine with they are doing today . Hal yes. I think that Teddy Roosevelts bully pupllpit notion undersells it. I do not think the moral dimension of the office can ever be separated from it in terms of effectiveness and of constitutional development. I think of both lincoln with his greatness of bringing the country to a new birht ofth of freedom, and to the president s before and after who lacked any kind of moral vision because they both saw the country as it had been in 1840 and wanted in many ways to head there. So, vision for the United States looks back for basics values and forward to what the country is supposed to be. That is what is affected. That plus pragmatism on means. To be effective as a president has to be willing to find a way through. Peter we can name some names. Best president s from this perspective . Maybe those who were some that were more flawed in examples on how their interpretation of the constitution did not fly or was misdirected . Hal as i researched this book what i wanted to do was to look back at the history. I did that. It took a liong time. Instead of imposing a theory on history. As i went along, some people surprised me. I had revered lincoln. This only deepened because i saw fact hungering us. President s who lose touch with those become far less effective. A great difficulty george w. Bush had was he was not as interested in the facts on the ground in say the middle east as he should have been. Fact hungriness matters a lot. Rigidity and means. Woodrow wilson lost a lot of effectiveness because he just did not have the kind of subtlety about working his program through that lincoln had superbly, that a Ronald Reagan did well. So, it is along these kinds of lines that they develop. I wound up liking wilson a good bit less. I wound up admiring Lyndon Johnson for histamine stick side his domestic side. He brought the civil rights bill through, knowing it would impact his party. He thought it was the right thing to do. His tragedy in vietnam wrecked his reputation but there is a side of it that should be alive. Peter so, lincoln, he may have been very careful with the facts but he was also, of course somebody who could put expository eloquence to work. I found very interesting a phrase that you use that he used with respect to this kind of practice, precedential, this continuity to the founders. The mystic chords of memory, which i thought very powerful. Encapsulation of what you are talking about here. At the same time, you also have a label for this interpretation by the president s of departmental is him. I wonder if you could sort of elaborate on those two strands and what they reflect. Hal departmentalism is a term i would never use in the book unless everyone else was using it. All it means is the phenomenon that each of the three branches interprets the constitution in its own way reflecting its function. The courts are different from the executive branch. Departmentalism, each of the three branches looks at it different. So i thread that through because im looking at one of these threads. The mystic chords of memory is intrinsic to the way the executive branch does it because you have a string of single individuals at the apex who can try to relate in as systematic fashion as the politics allowed to everything that has gone before. What strikes me very much reading about all the president s, everybody down to barack obama is like this, they are forever talking about what their predecessors have done. They are deeply interested in their legacy, and they tried to connect it up to the grander figures of the past. Nobody is looking to be the next buchanan. [laughter] some of them are really mystic because they are in avlues and visions for the country and values. Peter maybe bringing the story closer to the present day, how would you compare the personalities, the styles of of george w. Bush and barack obama in terms of their, their approach to constitutional interpretation, and which of t heir predecessors to they most resemble in their constitutional style . Hal how are they like and who are they like and unlike . Start with barack obama. I think the highest compliment i can give him, the one he would like most, is i do consider them to be fact hungry like lincoln. This was a problem for George W Bus