00:00 -

00:02 - I am Jeffrey Rosen the president of this wonderful institution

00:06 - and I have a secret to tell you that this is the only

00:10 - institution in America chartered by Congress to disseminate

00:13 - information about the U.S. Constitution on a nonpartisan

00:17 - basis.

00:18 - What an exciting month of June.

00:20 - It is the month of June of course is constitutional ground

00:23 - zero because it's the month that the Supreme Court hands down a

00:27 - constitutional drumbeat of decisions leading up to historic

00:32 - opinions.

00:32 - At the end of the month involving the future of the

00:35 - Affordable Care Act and same sex marriage and every week we are

00:40 - hosting our great.

00:41 - We the People podcasts which review the decisions of the week

00:44 - and summon the top liberal and conservative scholars to give

00:47 - the best arguments on all sides of these constitutional

00:51 - questions.

00:52 - Next Tuesday in New York City at the University Club we are

00:57 - sponsoring the latest in our series of traveling town hall

01:00 - debates cosponsored by the Federalist Society and the

01:04 - American Constitution Society.

01:06 - And we will have General Michael Mukasey the former attorney

01:09 - general debating Deborah Pearlstein of Cardozo Law School

01:13 - about whether or not NSA surveillance is

01:16 - unconstitutional.

01:17 - We think that these spectacular bipartisan debates like the

01:21 - Lincoln Douglas debates will transform constitutional

01:24 - discourse in America.

01:26 - And then we've got a great series of panels coming up at

01:29 - the Constitution Center in June including on June 18th the

01:33 - historian David Sehat do the founding fathers have all the

01:36 - answers.

01:37 - And our Supreme Court review on July 8th with Erwin Chemerinsky

01:41 - and Fred Lawrence.

01:42 - We've also opened a new exhibit downstairs which I hope you'll

01:44 - see after the show.

01:46 - Speaking out for equality the Constitution gay rights and the

01:49 - Supreme Court.

01:50 - This is the first exhibit in America that reviews the

01:53 - constitutional evolution of gay rights in the courts.

01:57 - And it is opening just before the Supreme Court is about to

02:00 - hand down its decision.

02:02 - So all is well here in constitutional heaven.

02:06 - Ladies and gentlemen it's now my great pleasure to introduce

02:10 - Michael Stokes Paulson and Luke Palsson for a conversation about

02:13 - their new book The Constitution an introduction moderated by

02:17 - Michael Moreland and this is an exciting book and event on

02:22 - several counts.

02:24 - First of all Professor Paulson and Luke Paulson are a father

02:27 - and son team.

02:29 - The first I think pleasure.

02:30 - The first father and son scholars writing about the

02:34 - Constitution that I'm aware of.

02:35 - Or perhaps they will come up with other historic examples in

02:40 - the course of their discussion.

02:41 - And they're also the one of the few scholars to have elicited a

02:45 - rave review from Justice Samuel Alito who said the following

02:49 - about this book.

02:52 - Recently Justice Alito says a new book by Michael Stokes

02:55 - Paulson a distinguished constitutional scholar and his

02:58 - son Luke a recent college graduate fits the bill.

03:02 - It provides a solid intelligent reliable and interesting look at

03:05 - the origin of the Constitution its basic structure and its

03:09 - interpretation.

03:10 - Over the course of our country's history professor Paulson and

03:12 - his son began this collaboration when Luke was in high school and

03:16 - continued through his college years at Princeton.

03:18 - It's easy to imagine this process as a conversation

03:21 - between a father who's been immersed in the study of the

03:24 - constitution for his entire adult life and a bright son who

03:27 - brings a new perspective and challenges the father to explain

03:31 - in defense of what a great collaboration and how exciting

03:35 - it will be for you to hear about it.

03:38 - Let me now introduce them briefly Michael Stokes.

03:42 - Paulson is a distinguished university chair and professor

03:45 - at the University of St. Thomas School of Law.

03:49 - He's a graduate of Yale Law School and he joined the

03:51 - Department of Justice in the Criminal Division's honors

03:54 - program.

03:54 - He's also worked as an attorney general in the Office of Legal

03:57 - Counsel.

03:58 - The best constitutional job in government the office that

04:01 - advises the president on constitutional issues.

04:04 - And Luke Paulson is a graduate of Princeton University where he

04:07 - majored in computer science with minors in classics and the

04:10 - humanities what a great combination.

04:12 - He is currently working as a software engineer in Mountain

04:15 - View California which is definitely the place to be a

04:18 - software engineer and our moderator is extremely

04:22 - distinguished.

04:22 - I'm thrilled to welcome him to the Constitution Center for the

04:26 - first time.

04:27 - He joined the Villanova Law Faculty in 2006 and became vice

04:31 - dean in 2012.

04:33 - He is focused on torts bioethics and law and religion.

04:36 - He's a former clerk for the Honorable Paul J.

04:38 - Kelley of the U.S. Court of Appeals for the 10th Circuit and

04:41 - served as associate director for domestic policy at the White

04:44 - House under President George W. Bush.

04:47 - Ladies and gentlemen please join me in welcoming the Paulsons.

05:07 - Well welcome everyone.

05:09 - It's an honor to be here at the National Constitution Center

05:12 - discussing this important and interesting new book by the

05:16 - father and son of Paulson teams.

05:18 - One thing that we have in common is we're all Minnesotans and

05:22 - although we're talking about the constitution which was

05:26 - deliberated just a few yards from here Minnesota wasn't even

05:29 - a state that so make a move.

05:34 - Talk a little bit about how you came to write the book together

05:37 - and what the audience was.

05:39 - Sure I'll go ahead and start since I'm I'm probably the guy

05:43 - that started it.

05:44 - I was at an academic conference here out east and after the

05:50 - conference all the law professors and college

05:52 - professors get together and they have a dinner and around about

05:55 - the second bottle of wine an argument broke out between the

06:00 - college professors and the law professors about when students

06:04 - developed their totally misshapen ideas about the

06:08 - Constitution and the law professors were blaming the

06:10 - college professors.

06:11 - Why did.

06:12 - What did you do to them.

06:13 - You know how did they get all these the college professors.

06:15 - It wasn't our fault.

06:17 - Right.

06:17 - They came to us this way it's sort of deep in the culture.

06:20 - It's the way civics is taught high school it's the media and

06:24 - all that.

06:25 - And I spoke up foolishly and said Well somebody really ought

06:29 - to write a book that's not aimed at professor types.

06:32 - Right.

06:33 - But that's aimed at real people and students that tries to set

06:36 - stories straight and provides its clear and objective and

06:39 - lively and readable on account of the Constitution as can be.

06:46 - And they said well why did you write that instead of writing

06:48 - all your boring law review articles.

06:51 - So actually it started right here at Princeton and I was

06:56 - flying in and out of the Philly airport and I got bumped from my

06:59 - flight and I had three hours with nothing to do.

07:02 - So I sketched you know what would a book that was like just

07:05 - trying to lay it straight and give all the basics of the

07:08 - Constitution in like 10 chapters look like and I wrote it at a

07:12 - coffee shop in the Philadelphia airport and called home because

07:16 - I think Luke had to be then in charge of his little sister

07:20 - since I would be late.

07:21 - When she came home to meet meet her off the school bus and

07:24 - everything like that.

07:25 - And that night I told showed Luke the little 2 pages of legal

07:30 - pad and we came up with this idea.

07:33 - He was 13 at the time.

07:37 - It would be a summer job for him to be sort of an informal

07:40 - research assistant.

07:41 - And he had great ideas right away about how to make the book

07:43 - more interesting to make it tell a story to tell the stories of

07:49 - many of the personalities and characters who were involved in

07:53 - the formation of the Constitution.

07:54 - Some of the signal constitutional disputes.

07:57 - And by the end of the night you know this was sounded like a

08:01 - better summer job than the lawn mowing or flipping burgers.

08:04 - Right.

08:05 - And we made a deal that we would try to write a book together and

08:08 - we thought we'd do it in one summer.

08:10 - It took nine but we ended up doing it over the course of nine

08:14 - years as this fun evolving father son summer is only

08:20 - vacation project that we did on the side in between camping

08:24 - trips and Luke learning to drive and things like that.

08:27 - And the book took shape over the course of those nine years sort

08:33 - of unhurried and it became we think much more sophisticated

08:38 - over time.

08:40 - It was still trying to aim at General readers and all readers

08:45 - and I the tension we had was I would always push for a

08:50 - necessary level of sophistication and depth and

08:54 - detail.

08:55 - And Luke would rein me in if I ever started to suffer from

09:00 - "professor-itis" saying too much or getting too jargonistic or

09:04 - too legalistic and so the the writing team developed into this

09:08 - pull and tug of keeping the book smart and intelligent but

09:13 - without becoming a ponderous academic treatise The idea would

09:17 - be that it would be a book that everyone would read.

09:20 - So we did it over the course of nine summers and finally last

09:25 - summer we are working on the edits from our editors of Basic

09:28 - Books.

09:29 - And now now here it is.

09:33 - Luke, what was the experience like working with your father on

09:36 - a book about the Constitution on which he is one of America's

09:40 - great scholars.

09:43 - It was a treat as he said I was sort of in the business of

09:50 - curing him of professor-itis.

09:54 - But he he wrote the first draft because he's the one who's done

10:00 - decades of scholarship on this and he's also sort of informally

10:06 - been teaching me my whole life.

10:08 - He drove me to school off and and was warming up for his own

10:12 - classes.

10:14 - And so he would we would talk about the Constitution.

10:17 - There are worst forms of child abuse.

10:22 - And so I came into the project with a pretty good knowledge of

10:27 - what was going on and maybe a little bit of brainwashing.

10:33 - Good brainwashing.

10:34 - And so really what I brought to the project was an understanding

10:44 - of what we were originally aiming at a a high school

10:50 - audience for this book.

10:54 - For example high school government courses so that as

11:00 - you said students couldn't go into college and maybe

11:04 - eventually law school with better foundational ideas about

11:09 - the Constitution.

11:10 - And that was the one who is in high school at the time and I've

11:13 - had good experiences with my civics courses but I was maybe

11:18 - not satisfied with how they were treated in the Constitution.

11:23 - And so I was the one pushing for making it readable and

11:28 - accessible to anyone high school up on the wi.

11:33 - But by the time we were done it was.

11:36 - It's no longer textbook.

11:38 - I mean it could be used in college courses or in high

11:41 - school courses.

11:42 - But the idea is that it's a sort of book that that if you want to

11:47 - one book that was your entry into the Constitution that this

11:51 - would be a good place to start for everyone.

11:55 - We think we achieved the necessary level of

11:59 - sophistication.

12:02 - But we kept the whole time pushing for clarity and

12:06 - simplicity and readability that someone would actually pick up

12:11 - the book and read it for a friend of mine said Well how

12:14 - long is this book.

12:15 - And I said well it's just over 300 pages so it's reasonably

12:18 - short and he said short can you say that much about the

12:24 - Constitution for 300 pages.

12:27 - Look people write massive treatises.

12:30 - You know the Supreme Court seems to churn out thousands of pages

12:35 - of opinions every year 300 pages.

12:38 - Believe me it's short.

12:39 - That something that people can actually get inside of and get

12:42 - their heads around.

12:43 - And it's a lot of a long period of constitutional history to

12:48 - cover in 300 pages.

12:50 - So it wasn't tried to do was produce a book that's reasonably

12:53 - comprehensive it starts with the constitutional convention starts

12:56 - here in Philadelphia and then it proceeds to describing the

12:59 - Constitution's basic structure and its features and the powers

13:03 - of the various branches of government goes from there to

13:06 - discussion of slavery and how slavery was accommodated in some

13:11 - ways furthered by the Constitution that we rapidly go

13:15 - to the bill of rights.

13:17 - And that's the first five chapters a bill of rights sort

13:20 - of completes.

13:21 - We think the beginning of the Constitution Bill of Rights is

13:24 - kind of a second constitution.

13:26 - Or you could think of it as halftime right.

13:28 - It's the second half of the of the original Constitution

13:32 - completed the project and then the last five chapters cover the

13:35 - history of the document's interpretation from 1789 to 2014

13:43 - 2015 running through a series of controversies and so we cover

13:47 - about 228 years worth of what we think is the most important

13:51 - thing.

13:52 - So it really isn't a textbook and we really hope it reads at

13:59 - least for people who are interested in the Constitution.

14:03 - Like a novel about the Constitution tells a story about

14:06 - the Constitution.

14:06 - We hope it has all the basics that it's constitution 101.

14:11 - But it's of course that people would actually really want to

14:13 - take.

14:14 - You should buy a copy and take it to the beach take the take

14:18 - the book to the beach and everyone will think Wow you're a

14:21 - super intellectual.

14:24 - Well I just want to know something about the

14:26 - Constitution.

14:28 - I was interested in making it not a textbook.

14:32 - I read plenty of textbook.

14:35 - But yeah we spent a while giving it into the shape that it's in

14:39 - today.

14:39 - We went through maybe five or six passes before it got to the

14:45 - publisher.

14:47 - The book does have some very interesting and provocative

14:52 - arguments and one of them pertains to one of the most

14:57 - famous constitutional decisions Marbury vs. Madison from 1803

15:03 - and relatedly the view that you discuss it that every branch of

15:09 - government has a role to play in Constitutional interpretation.

15:13 - So a little bit of both.

15:14 - You want to start?

15:17 - Go ahead.

15:19 - Marbury vs. Madison is if it's actually I think Mark Twain's

15:23 - definition of a classic case that everybody praises but

15:27 - nobody actually read Marbury is a fascinating case that arose in

15:33 - this particular circumstance involving the midnight judges

15:37 - appointments by John Adams as he rushing out the door after

15:41 - having been defeated by Thomas Jefferson.

15:43 - The election of eighteen hundred and they failed to deliver the

15:46 - judicial commissions to some of the officers and it's actually a

15:50 - lawsuit for somebody to get his judgeship and they bring it

15:54 - straight to the Supreme Court and the Supreme Court uses that

15:59 - as the occasion to advance what's referred to as a doctrine

16:03 - of judicial review.

16:04 - And a lot of mythology has grown up around Marbury saying we

16:09 - will.

16:09 - We actually read.

16:10 - I think once in Luke's textbooks you know that in 1803 the

16:15 - Supreme Court created the doctrine of judicial review.

16:18 - What they didn't create it.

16:20 - It's actually a well recognized constitutional principle.

16:25 - It's been defended by Alexander Hamilton and the federalist

16:28 - papers back in 1788.

16:30 - It was very current that if the Constitution the fundamental law

16:34 - of the nation says one thing and an act of congress says

16:38 - something to the contrary the Constitution wins.

16:42 - It's really a basic principle that the Constitution is supreme

16:44 - law of the land and anything done by Congress.

16:48 - Anything done by the president anything done by the court that

16:52 - is contrary to the constitution is unconstitutional and should

16:57 - be void.

16:58 - Now part of the mythology that's grown up around Marbury versus

17:01 - Madison is that the Supreme Court not only invented the

17:04 - doctrine which is untrue but they proclaimed themselves to be

17:08 - the supreme interpreters of the Constitution and nothing at all

17:13 - like that actually happened in Marbury vs. Madison.

17:16 - The Supreme Court eventually got around to declaring itself the

17:19 - supreme branch but it actually didn't happen.

17:22 - We traced the history until 1958.

17:26 - Ok just a little bit before most of our lifetimes I was born in

17:30 - 1959 so I missed the great event in 1958 but it wasn't 1803 the

17:36 - original vision of that Marbury vs. Madison was constitutional

17:41 - supremacy.

17:42 - The Constitution beats anything that government does.

17:46 - That's contrary to the Constitution and if you think

17:49 - about it that means that anything that the courts do is

17:53 - contrary to the constitution is unconstitutional too.

17:57 - So actually the system that the framers devised was one where no

18:02 - one branch has the power of constitutional interpretation.

18:06 - Rather it's a function of the separation of powers.

18:09 - Each branch serves to try as a check on the misinterpretations

18:13 - of the others.

18:14 - The framers vision was not a Supreme Court in charge of

18:17 - everything.

18:18 - It was the three branches fighting it out and keeping each

18:22 - other in line.

18:24 - And I guess that is a theme that runs through the book because we

18:28 - see many instances in our constitutional history where the

18:31 - real important constitutional interpretation is the things

18:36 - that made a difference came from political actors actions of

18:39 - Congress actions of presidents.

18:42 - We have a whole chapter on Lincoln and the Civil War and

18:45 - the constitutional crisis there and a lot of that was reacting

18:49 - actually against things that the Supreme Court had decided.

18:52 - The infamous Dred Scott decision of 1857 which the Supreme Court

18:57 - said Congress could not prohibit the extension of slavery and

19:01 - that blacks had no rights whether citizens whether slaves

19:05 - or freed the civil.

19:09 - That was actually a large precipitating event leading to

19:13 - the chain of events culminating in the civil war and that not

19:18 - every judicial decision actually became the last word on the

19:22 - constitution.

19:23 - The last word on the meaning of the Constitution with respect to

19:26 - slavery came from we the people by adopting a constitutional

19:29 - amendment and the last word on the issues of secession and

19:34 - Civil War wasn't decided in any court.

19:37 - It was decided on the battlefields of the civil war.

19:41 - So we trace a lot through the book the various decisions of

19:46 - various constitutional actors and interpret the Constitution

19:50 - and sort of take on this gently as we can.

19:53 - This sort of myth of judicial supremacy that whatever the

19:57 - Supreme Court says establishes the rule for everybody.

20:02 - I talked long enough did I leave anything you to add me.

20:05 - You did.

20:06 - Ok.

20:07 - Because there's more yet to the story of Marbury versus Madison.

20:11 - It actually came out against the Supreme Court.

20:16 - In some sense because this was this was President Jefferson who

20:22 - was who had failed whose administration had failed to

20:26 - deliver the commission for what position was it Justice of the

20:30 - peace.

20:31 - It was just a justice of the peace for the District of

20:33 - Columbia.

20:34 - And so President Jefferson actually his secretary of state.

20:40 - No.

20:40 - Yes.

20:40 - Yes.

20:41 - Secretary of State James Madison was being sued for Mark.

20:46 - Mr. Marbury's commission.

20:48 - And so the Jefferson administration was putting a lot

20:53 - of political pressure on the court which was politically

20:57 - opposed to him to not deliver the Commission and the Supreme

21:03 - Court ended up agreeing it found using this method of judicial

21:08 - review that it did not have the power that Congress granted that

21:13 - to decide this kind of case.

21:16 - So it's another example of tension between the branches.

21:20 - Each branch with its own constitutional interpretation

21:24 - and it's not necessarily that the Supreme Court won it's just

21:29 - a balance of power between the president and Congress that made

21:33 - this law and the courts.

21:36 - Ironically Marbury versus Madison.

21:38 - Far from being an assertion of judicial supremacy what was kind

21:43 - of an act of judicial restraint they held against their own

21:46 - authority saying that the that the suit that the idea that the

21:51 - Supreme Court could award this commission to Marbury violated

21:56 - limitations on its own jurisdiction.

22:00 - You have as you mentioned in passing to know you have a

22:04 - wonderfully rich discussion of Abraham Lincoln and the civil

22:08 - war and its central importance in our constitutional

22:13 - understanding what what were the key decisions that Lincoln made

22:18 - that most contributed to his legacy as a constitutional

22:23 - figure.

22:25 - Oh I could go on.

22:26 - Talk about Abraham Lincoln for a whole hour.

22:29 - Will you stop me if I go on.

22:32 - This is the way it often works is I would go on and on.

22:34 - Luke would say that's enough.

22:36 - These are the key points.

22:38 - So channeling my best Luke retraint on his dad that the key

22:42 - points are that Lincoln was actually anti slavery moderate

22:48 - the Constitution protected slavery in certain ways and he

22:52 - didn't deny what the Constitution actually said but

22:57 - he drew the line at the authority of Congress to

23:00 - prohibit the extension of slavery into new territory.

23:04 - Now that was the big issue in the 18th 50s was the Wilmont

23:08 - proviso of the Compromise of 1850 Kansas Nebraska Act and

23:13 - Lincoln's stance was that Congress had the power to

23:16 - prohibit the extension of slavery into the territories

23:19 - because it wasn't forbidden to them by the Constitution.

23:23 - The Supreme Court struck down that view in the Dred Scott

23:26 - decision in 1857 and said slavery was a national

23:30 - constitutional right that the federal government couldn't

23:32 - limit in the territories.

23:35 - Lincoln sort of rose to prominence as a critic of the

23:38 - Supreme Court so that when he was elected president the South

23:43 - seceded in part on the theory that we've just elected.

23:47 - Oh you just elected this anti constitutional anti Supreme

23:52 - Court precedent.

23:54 - We're leaving right.

23:57 - Lincoln's first inaugural address is actually a brilliant

24:01 - lawyers brief for the correctness of his position on

24:05 - slavery.

24:06 - You know how it was really faithful to what the

24:08 - Constitution actually said the unconstitutionality of secession

24:13 - the permanence of the Union and the supremacy of the

24:16 - Constitution under that under the union and the obligation of

24:22 - the president to resist secession on the grounds of the

24:25 - executives responsibility to pass on the government as it had

24:29 - then and to faithfully execute the laws throughout the whole of

24:32 - the nation.

24:34 - So Lincoln really stuck to his position that lead led to the

24:38 - civil war although of a consequence of his adherence to

24:42 - what he thought the constitution said and his strong sense of

24:47 - moral and political obligation to enforce the Constitution

24:52 - exactly as written.

24:54 - So it's really not much of an exaggeration Michael to say that

24:58 - the Civil War was fought over questions of constitutional

25:02 - meaning and constitutional interpretation. Did I leave

25:08 - anything?

25:08 - Yes you do.

25:09 - Ok.

25:11 - So that was the first thing I had in mind was sticking to the

25:16 - Constitution defending the Constitution as against the

25:20 - Supreme Court decision.

25:23 - Then the other major thing that we talk about in that chapter of

25:27 - the book is Lincoln's use of war powers and presidential powers.

25:33 - And I think the best example of that would be the Emancipation

25:35 - Proclamation which is the 1863.

25:41 - I think a proclamation that it was a military order.

25:46 - It said union armies will liberate slaves.

25:53 - As as captured enemy property essentially which was a

25:59 - legitimate use of the war power and that was controversial at

26:06 - the time like can the President even to that?

26:08 - But that's what really killed slavery.

26:10 - That's what made it impossible to go back.

26:15 - If the professor can elaborate on it is really interesting.

26:21 - Lincoln did not think he had constitutional authority just to

26:24 - abolish slavery in the States.

26:26 - That would be the president making a law.

26:28 - But he thought he had authority as commander in chief military

26:32 - in a time of war to take military measures to subdue and

26:37 - overwhelmed an enemy force or power.

26:41 - And part of the traditional law of war is as Luke explained was

26:44 - you could have free and convert the enemy's slaves into your

26:49 - resources.

26:50 - So Lincoln's theory of the Emancipation Proclamation was a

26:53 - constitutional theory that the president's military power

26:58 - permitted him to seize enemy resources and convert it to

27:02 - union advantage by permanently freeing the slaves.

27:06 - As I think many of you know he could not free slaves in the

27:11 - slave states that remained in the union.

27:13 - And even in areas of the Confederacy that were not under

27:18 - that had come under Union control.

27:21 - It was always a measure you would take to conquer enemy

27:25 - resources.

27:27 - It is part of why of probably some of you and seen the movie

27:30 - Lincoln and he he's worried near the end of the war about whether

27:36 - the emancipation proclamation will continue to have legal

27:39 - force once the fighting has stopped.

27:41 - So that's why he pushed so hard for the 13th Amendment to the

27:44 - Constitution which is what really puts the nail in the

27:48 - coffin of slavery.

27:50 - If the Emancipation Proclamation killed slavery it's the 13th

27:54 - Amendment which abolishes it and puts that prohibition right

27:58 - there in the text of the Constitution.

28:00 - That really puts the last nails in the coffin of slavery.

28:03 - So as you can tell we get really enthusiastic about the

28:07 - constitutional issues surrounding the civil war.

28:09 - And the interesting thing is those weren't decisions reached

28:12 - by any court.

28:14 - They were decisions reached by presidents and Congresses and

28:17 - fought over in the battlefields.

28:21 - One of the best chapters in the book is filled with interesting

28:26 - discussion of constitutional text and history.

28:30 - Chapter 8 is on kind of a forgotten or maybe sometimes

28:35 - neglected period of constitutional history.

28:38 - Running from about reconstruction 1876 or so

28:41 - through the New Deal and you pull together a set of Supreme

28:46 - Court cases and cuts to full doctrines that period that were

28:50 - actually really bad were really bad development in American

28:54 - history and I think it's one of the most interesting parts of

28:58 - the book.

29:00 - That's Chapter 8.

29:01 - We give these chapters one word titles.

29:05 - And it's really hard to reduce whole periods of time to one.

29:09 - One word theme.

29:10 - But the period that we the word we used for that period was

29:13 - betrayal because it seemed that after the victories of the Civil

29:17 - War a lot of the decisions of the Supreme Court from 1876 to

29:21 - about 1936 abroad five six decade period seemed to slide

29:28 - back from the gains that had been made in the Constitution.

29:32 - And it was a period in which the Supreme Court held that women

29:36 - did not have equal constitutional rights under the

29:39 - Constitution.

29:40 - It denied one of the cases we we really railed against is a case

29:45 - called Bradwell versus Illinois which was a case involving an

29:52 - Illinois rule that forbade women or at least married women from

29:57 - becoming lawyers.

29:58 - I see some people shaking their heads in disgust here.

30:02 - We're totally with you on that.

30:04 - The Supreme Court is completely failed to address the fact that

30:11 - the equal protection of the laws means that you can't make a

30:14 - distinction that that's explicitly based on categories

30:19 - of people.

30:19 - Now what misled them a lot.

30:22 - And you see this throughout this period of history was they

30:26 - confused their own social understandings of good policy

30:31 - with what the Constitution must say and the thing is the

30:35 - Constitution sometimes says things that are different with

30:38 - our president from our present cultural understanding of what

30:42 - would be good policy.

30:43 - And so instead they wrote their policy into the constitution

30:48 - saying that the office of wife and mother was the duty of a

30:53 - woman and it was inappropriate for women under the laws of God

30:57 - and Nature to to be a lawyer.

31:01 - I hope my daughter isn't listening.

31:03 - I hope she is and takes the lesson that the Supreme Court

31:07 - sometimes just gets it flatly wrong.

31:09 - Then there are a series of other decisions Plessy vs. Ferguson

31:12 - the decision upholding separate but equal segregation came in

31:15 - this era.

31:16 - A case called Lochner versus New York was probably one of the

31:20 - most judicially activist decisions striking down

31:24 - regulatory and economic policies on the grounds that there was a

31:28 - sort of right to property and right to contract pure judicial

31:31 - activism.

31:32 - People talk about judicial activism today.

31:35 - But it's interesting to go back 100 years and see that this is a

31:38 - phenomenon that is just recurrent in the court's history

31:41 - where they take their own views of what would be good and right

31:44 - and pure and just and then try to bend the folds spindle and

31:47 - mutilate the constitution to get them to reach that result.

31:51 - There are many others.

31:53 - This was this was a period of the Constitution that is often

31:58 - ignored in the history books and in the in the law school

32:01 - textbooks as if nothing happened for 60 years.

32:05 - Plenty happened it's just sort of embarrassing stuff that

32:09 - happened during that time.

32:13 - Well once again you did leave something for me.

32:15 - Good one.

32:19 - I have in mind was on eugenics like the very best science of

32:26 - that day and age.

32:28 - But the court upheld the forced sterilization of the mentally

32:33 - ill and Oliver Wendell Holmes who was this famous and very

32:40 - learned and mostly -- what do we say -- mostly great or...

32:47 - We have disagreements as to whether Holmes was a great

32:50 - justice or not.

32:52 - A very famous justice.

32:54 - At any rate. Writes this disgusting opinion and there's

33:05 - completely fails to apply.

33:08 - It was the equal protection of a woman's right.

33:10 - That was at stake.

33:11 - Yes.

33:12 - See he was saying well this is sort of the last refuge of

33:16 - constitutional scoundrels.

33:17 - Everybody makes these arguments based on equal protection and

33:20 - gave it the back of his hand.

33:22 - Holmes was also not very good on First Amendment freedom of

33:25 - speech.

33:28 - There are many cases from that era in which the Supreme Court

33:32 - upheld the suppression of antiwar speech.

33:35 - That's actually the origins of Holmes's famous clear and

33:39 - present danger test.

33:40 - You might have heard that and the idea of not shouting fire in

33:45 - a crowded theater.

33:48 - And he used that sort of phrase it's he was a wonderfully gifted

33:51 - writer but he used these onerous phrases to reach results that

33:56 - actually were contrary to the Constitution's protections of

34:01 - free speech.

34:04 - So I tend to think he's very much overrated but that's easy

34:08 - to say from a vantage point of a hundred years later.

34:12 - You also at various points in the book talk about the

34:17 - recurring question of national and state power.

34:21 - And if I read you right you have a sympathy with the Alexander

34:27 - Hamilton inspired National Authority as part of our

34:33 - constitutional text structure.

34:36 - Yes.

34:39 - So our general position is that well I guess this requires a bit

34:43 - of historical background.

34:45 - So the reason for the adoption of the Constitution is the

34:49 - complete failure of the previous system of government for the

34:53 - United States the articles of confederation which did give

34:57 - each individual states clear sovereign power and it operated

35:02 - more along the lines of a treaty or the nations where the federal

35:06 - government has the authority to ask states for money for example

35:12 - or for troops for the armed forces.

35:14 - But the states were under no obligation really to give it and

35:19 - any changes require the approval of all 13 states at the time.

35:24 - So the constitution was in large part designed to produce a

35:29 - strong federal government that actually could hold the union

35:32 - together and govern effectively.

35:35 - And to that end they gave the government substantial power.

35:40 - Now they were very careful to limit those powers to specific

35:47 - areas the regulation of commerce the armed forces and so forth.

35:55 - But there are still very broad powers and there the

35:59 - Constitution doesn't really provide any reason to interpret

36:03 - them otherwise.

36:05 - Now the constitution does still guarantee a level of state

36:11 - sovereignty that states are sovereign over all areas in

36:16 - which the Constitution doesn't give power to the federal

36:18 - government.

36:20 - And that's where a lot of the controversy arises but our take

36:22 - generally is that we should interpret the Constitution's

36:27 - grant of power generously.

36:32 - Yeah I think that's right.

36:34 - When it has a constitution is immediately being implemented.

36:38 - Alexander Hamilton who was Washington's secretary of

36:42 - treasury adopted a broad view of national powers and James

36:46 - Madison one of his collaborators in writing Federalist Papers

36:50 - adopted a narrower view of constitutional powers and and

36:54 - Secretary of State Thomas Jefferson also opposed broad

36:58 - national power.

36:59 - So what we find interesting is a lot of today's debates over the

37:03 - scope of national Pilar's are actually replays of Alexander

37:09 - Hamilton versus Thomas Jefferson transposed and fast forwarded in

37:13 - some 225 years.

37:16 - We generally side with the Hamilton view not because we're

37:22 - politically disposed to broad national powers but really

37:27 - because that's what we think the Constitution actually says.

37:29 - And that's kind of a quest point we we're talking about just

37:32 - before coming out here as the Constitution doesn't map well

37:37 - onto any particular political agenda that actually faithful

37:41 - interpretation of the constitution will sometimes

37:43 - produce politically liberal results.

37:45 - And sometimes it will produce politically conservative results

37:49 - and the framers in drafting the constitution set out a broad

37:52 - charter of government didn't have today's politics

37:55 - specifically in mind.

37:56 - And actually we find that we found as we were writing that

38:00 - the book that turned out to be in some ways nonideological or

38:05 - sort of mixed ideological in that that the the way different

38:09 - controversies come out in different generations doesn't

38:13 - necessarily reflect any particular political view.

38:16 - Today you'll see a lot of people invoking the Constitution for

38:20 - political purposes today.

38:22 - But I would urge you that if the Constitution always agrees with

38:27 - your politics you're probably not reading the Constitution.

38:33 - You're probably reading your politics into the Constitution

38:36 - because that's so there some times we've gotten some

38:39 - criticism from reviewers or disagreement.

38:42 - Most people actually like the book but disagree with

38:45 - particular points and some of that disagreement comes from the

38:47 - political left and some of the disagreement comes from the

38:50 - political right which thinks leads us to think that we're

38:53 - probably hitting the middle and probably hitting it just right.

38:57 - Let's turn to some questions from the audience in the last 20

39:01 - minutes or so of our time together.

39:03 - Here's an interesting question.

39:05 - Are legal scholars a hundred years hence as likely to

39:09 - question today's rulings as you question the past rulings?

39:15 - Oh what a terrific question. You want to handle that?

39:18 - Go ahead.

39:19 - You're the legal scholar.

39:23 - Actually the reason that's so insightful is you know we see

39:28 - here as Monday morning quarterbacks looking back on

39:30 - things 100 years ago 150 years ago and we go you know we're

39:34 - hitting ourselves in the head like how could they have thought

39:36 - that.

39:37 - And it seemed that people were pretty convinced that those were

39:40 - the proper constitutional understanding of the time.

39:44 - I am convinced that 50 100 years from now ten years from now

39:48 - people will look back at some of what passes for constitutional

39:52 - interpretation today and go what were they thinking of court.

39:55 - I mean if you have a broad historical sense of looking at

39:58 - the way subsequent generations have viewed previous generations

40:03 - constitutional interpretations I think you have to come to the

40:08 - conclusion that there's a lot to be skeptical about today and

40:12 - that might not survive 30 40 50 years from now.

40:16 - The last chapter of the book covers the most recent

40:21 - constitutional period it's 1960 to 2015 it's ridiculous period

40:25 - of time try to cover it.

40:29 - in one chapter but the the one word title we use for that is

40:32 - controversy because the theme of the modern era has been sort of

40:37 - a resurgence of judicial activism where courts decide

40:40 - more and more issues of social and governmental policy.

40:44 - And in many ways I think it's entirely possible that when

40:49 - Luke's up here 40 years from now having this conversation with my

40:56 - grandson when they're doing the third edition of the book but it

41:02 - could.

41:03 - The Constitution world could look different and we could look

41:05 - back on the late 20th century as a period that's constitutionally

41:10 - questionable.

41:10 - It's certainly much debated right.

41:12 - Everything in the Supreme Court decides these days is a hot

41:16 - topic debate.

41:17 - And you know I think it's very plausible that we'll view the

41:21 - issues of today as one in which constitutional interpretation

41:26 - might in certain circumstances have gone awry.

41:30 - Do you agree.

41:32 - Yes partly I think controversy is a little bit of a copout

41:38 - because ever.

41:39 - Every generation has

41:40 - its controversies and the difference with the modern era

41:44 - is we're a little more careful about not taking a position on

41:49 - it because we aren't sure where it's going.

41:54 - A few questions about specific provisions I'll just go through

41:59 - a few of them.

42:00 - We have we have time was the second amendment essentially

42:03 - based on the founders fears of standing armies.

42:10 - Yes.

42:14 - Well we all know that limit.

42:16 - Me try and give the short version.

42:18 - The second amendment is a fascinating amendment.

42:21 - The political purpose of it was fear of a central national army.

42:25 - And they wanted to protect the people's right to bear arms and

42:29 - keep and bear arms in part as a military check on a national

42:33 - military something that from our modern standpoint we view it as

42:37 - wildly anachronistic.

42:39 - But the idea is we we fear the possibility of a national

42:44 - government holding all the guns the same way we would view the

42:47 - British having all the guns.

42:49 - So what they're thinking and protecting the right to keep and

42:52 - bear arms is Minutemen who could be someone to at a moment's

42:55 - notice to resist and overweening national government.

42:59 - Now that's probably the purpose and the historical background.

43:03 - But it's interesting the way they wrote the text of the

43:06 - Second Amendment they talked about the importance of a

43:09 - militia.

43:09 - And they gave that as sort of a little preamble and sort of an

43:12 - introductory phrase but then the content of the right is the

43:16 - right of the people to keep and bear arms shall not be

43:19 - infringed.

43:21 - So it's an interesting example that the content of the right

43:25 - that they wrote is actually broader than the historical

43:28 - purposes that led to it and this produces fascinating debates the

43:32 - Supreme Court has been divided very very closely on these

43:35 - issues.

43:36 - And you have one camp that says this clause this amendment is

43:40 - only about state militias and it's a dead letter and it

43:43 - doesn't apply to individual handgun ownership and another

43:47 - camp and this is the one that is narrowly prevailed.

43:49 - The Supreme Court in recent years is that we'll look at what

43:52 - they actually wrote the content of the right they wrote.

43:55 - Like it or not provides an individual right to personal

44:00 - firearms possession.

44:02 - And the Supreme Court is just now really working out the

44:07 - understandings of an amendment adopted in 1791.

44:11 - So it did have these historical purposes but when they write a

44:15 - constitutional text they write it to survive and endure over

44:21 - time the nature of the right they wrote was one that has

44:24 - broad implications for today that goes beyond their specific

44:27 - contemplation at the time.

44:30 - Other question about a specific provision in the Constitution.

44:34 - Please discuss the Founders intent regarding the Commerce

44:37 - Clause and the use and abuse of the Commerce Clause.

44:40 - Over the years would you like that one out.

44:47 - Oh I can give a little bit of background I guess so the

44:53 - Commerce Clause grants Congress the power to regulate commerce

45:00 - with foreign nations and between states and the first major

45:09 - controversy over this is the National Bank.

45:12 - So this was very early on and continued until the era of

45:17 - Andrew Jackson.

45:19 - Yes.

45:20 - It was the question of whether Congress has the authority to

45:24 - create a bank of the United States which today kind of

45:30 - exists as the Federal Reserve.

45:33 - But the question is is that really a regulation of commerce

45:38 - that doesn't do anything to directly regulate commerce.

45:41 - But then you have the necessary and proper clause which says OK

45:46 - Congress can make any law that is necessary and proper to carry

45:51 - out these powers that it's given including the commerce power.

45:57 - And this was another Hamilton versus Jefferson debate about OK

46:02 - what exactly does necessary and proper I mean does that just

46:06 - mean anything that strictly necessary for.

46:09 - Is that more broadly mean anything that reasonably serves

46:14 - the ends of for example regulating commerce and it took

46:19 - a while but Hamilton's view won out yeah.

46:24 - Today the Commerce Clause the power to regulate commerce when

46:28 - when you team it up with the necessary and proper clause sort

46:31 - of becomes the authority that's used to justify most federal

46:35 - government regulations of businesses economics and

46:39 - commercial matters.

46:41 - General I had a law professor in law school who used to tell the

46:48 - story the punchline of which is the commerce clause is something

46:52 - that we use for everything.

46:54 - You know it's ironic that a power.

46:57 - But I think the words actually sustain.

46:59 - That's when you get them necessary and proper clause.

47:02 - But the power that was designed primarily to regulate interstate

47:06 - relationships of commerce actually became something that

47:10 - Congress could leverage into a general economic policy argument

47:15 - when they concluded that regulating intra state within a

47:19 - state matters was necessary to accomplish an interstate

47:23 - commercial regulatory regime.

47:26 - And there hasn't been a case that struck down a statute

47:31 - Congress exercising the commerce power since 2012.

47:37 - I think it is the Obamacare case was one where actually the

47:41 - Supreme Court said you know imposing a mandate to purchase

47:46 - health insurance is not a regulation of commerce.

47:49 - It's a mandate of commerce.

47:51 - You can't get there under the Commerce Clause and the ground

47:54 - on which the Supreme Court sustained Congress's power to

47:58 - pass the Obamacare legislation was the taxing power because

48:04 - what happened under Obamacare is if you didn't purchase

48:08 - individual health insurance you were subject to a tax penalty.

48:12 - And so it was a taxing power.

48:14 - Another power that Hamilton and Madison debated furiously that

48:19 - became the basis for sustaining the patient protection and

48:24 - affordable care act just a few years ago.

48:27 - So it's interesting the arguments in 2012 are the same

48:31 - arguments as in 1789 they're just translated into different

48:34 - contexts and different characters and in 1930 like

48:38 - that's the other big era of commerce clause dispute is the

48:41 - new deal.

48:42 - And it's my this is my favorite example of like how far can you

48:47 - stretch the Commerce Clause power is OK and a farmer

48:52 - somewhere in the Midwest is producing wheat on his farm that

48:56 - he's consuming himself for using to feed his cattle or something.

49:01 - And New Deal era agriculture regulations say no we're going

49:05 - to limit the amount of wheat you can actually produce because

49:11 - that affects market prices and they say well producing wheat

49:16 - for one's own consumption also affects market prices.

49:20 - So it's a very tenuous connection to commerce in the

49:25 - normal understanding of the term.

49:28 - But they do uphold it.

49:29 - They did all the famous case called Wickard versus Filburn

49:33 - about farmer farmer Filburn in Ohio who was growing wheat on

49:38 - his own land and he said you can't regulate that.

49:40 - And the Supreme Court said I think that was unanimously.

49:45 - Yes we can.

49:47 - But few questions about the Founders intent.

49:52 - Good to read one which represents several others but

49:55 - many writers profess to understand the Founders intent

49:58 - of the Constitution but the founders were a very diverse

50:01 - bunch federalists edge federalists etc..

50:04 - Is there anything such as the Founders intent to guide us.

50:09 - Wow that's a great question in a debate over the ages actually.

50:16 - Let me take a slightly different take on it that there were many

50:20 - different purposes many different intentions and people

50:23 - came together and that's the reason why the debate culminates

50:28 - in a written text.

50:30 - One of the points we make early on in describing the

50:32 - Constitution as its central feature one of its core pillars

50:38 - is the fact that it is a written constitution which we're very

50:42 - familiar with it right.

50:43 - We see the document itself and read the parchment and look at

50:46 - it under glass at the National Archives or a copy of the bill

50:49 - of rights here.

50:51 - But at the time this was regarded as an innovation

50:54 - usually the term constitution referred to a nations governing

50:58 - practices.

50:59 - The American understanding of constitution is we wrote it

51:03 - down.

51:04 - What we have is an authoritative written text which declares

51:08 - itself to be supreme law of the land.

51:10 - Now the framers did not think that their private expectations

51:16 - or the subjective intentions were what counted what counted

51:20 - with the words they wrote down on paper and the meaning of

51:23 - those words.

51:24 - Now a lot of that is obviously affected by your understanding

51:28 - of history and the social context in which was written but

51:31 - one of the leading debates these days is whether the Constitution

51:36 - is interpreted as in accordance with the original meaning of its

51:41 - words or should it be the subjective intentions of its

51:45 - authors or another variation is.

51:49 - Some people argue that the meaning of the Constitution

51:52 - evolves over time.

51:54 - We tend to lean against the idea that the meaning of the words

51:57 - evolves fluidly.

52:00 - Rather the meaning of the words sometimes was a broad meaning

52:05 - that permits different generations to adopt different

52:08 - policies to democratic governance all consistent with

52:11 - the Constitution.

52:14 - So but that's that's a debate we sort of introduce and sketch out

52:20 - the various approaches to constitutional interpretation.

52:23 - There probably is no single framers intent our Founding

52:27 - Fathers intention.

52:29 - But there is a single document.

52:31 - And actually that's the enterprises to read and

52:34 - understand the meaning of the words of the document.

52:38 - Understand the context in which they were written and the ways

52:43 - in which they apply to different problems over different periods

52:47 - of time.

52:50 - This is the eight-hundredth anniversary of Magna Carta and

52:54 - we have a question that asks what influence did Magna Carta

52:58 - have on the U.S. Constitution.

53:00 - That's yours because I think you wrote that section. I think I

53:03 - wrote that paper and it literally is a page we have to

53:09 - use up pullout sections in the book that describe usually

53:13 - people who were important in the Constitution and history.

53:17 - But one of them is talking about the Magna Carta and the English

53:20 - Bill of Rights which are sort of the exceptions to what you just

53:24 - described that in England for example had an unwritten

53:30 - constitution in its constitution was just the way things were

53:35 - done.

53:36 - The established tradition of government practices and the

53:40 - precedence that its courts have handed down.

53:43 - But Magna Carta was specifically the rights of the people against

53:53 - the monarchy and the English Bill of Rights was similar and

53:59 - they were important influences for the constitution and also

54:04 - for the state constitutions.

54:06 - And before that I suppose the colonial charters that were

54:11 - written that sort of provided the basis for the Constitution

54:18 - the Constitution was not the first written constitution.

54:22 - It was adopting innovations from the states in the years before

54:26 - the years of the American Revolution.

54:30 - I have nothing to add.

54:32 - We don't have a lot of time remaining but this is a rich and

54:35 - interesting question which may be a nice way to close out.

54:41 - Do you believe the people have the ability to understand the

54:44 - Constitution and are capable of making legitimate Constitutional

54:48 - arguments.

54:49 - If so by what method are the people able to exert their

54:53 - interpretation of the Constitution.

54:55 - How are the people able to exercise their popular

54:57 - sovereignty.

54:59 - A lot of parts of the question but an interesting question

55:01 - about what role do we the people have in exercising our popular

55:05 - sovereign because this is a great question to end on.

55:11 - This is one of the things that I feel really strongly about

55:14 - relating to this book and I think in the end it's one of the

55:17 - reasons for us writing the book is to show anybody that the

55:25 - average citizen that yes what we think about the Constitution the

55:31 - way we debate about the Constitution does matter and

55:35 - it's part of that is pushing back against the trend in this

55:40 - latest era say starting with 1960 to consider the Supreme

55:45 - Court as the only branch of government that can interpret

55:50 - the Constitution in a way that vying for the other branches.

55:54 - And that's historically I think what we're trying to show is

55:59 - that's not really accurate.

56:01 - The president and Congress and sometimes even the states have

56:05 - played an important role in constitutional interpretation.

56:09 - And of course those are democratically elected directly

56:13 - elected branches of government.

56:16 - So really what popular sovereignty and constitutional

56:20 - interpretation means is that people care about what's being

56:25 - done with the Constitution and that comes out in elections.

56:30 - And so the basic message of this book.

56:33 - One of them.

56:34 - I mean I'm sure there are many and we're trying to educate to

56:37 - put the basic messages that people can and should care about

56:41 - what the Constitution means and what it does.

56:46 - That's terrific.

56:47 - If the professor can add just a word or two in part We want to

56:55 - demystify the Constitution.

56:57 - We don't think that the Constitution is a mystical

57:00 - mysterious document with obscure meanings that only lawyers

57:06 - educated at Harvard Yale and stand for and can understand and

57:11 - that they then proclaim it to the rest of us.

57:14 - We think that the meaning of the constitution provisions written

57:17 - in plain English were written for popular understanding and

57:21 - popular application.

57:23 - The first three words it's almost a cliche.

57:25 - We the people you know the Constitution was designed as a

57:28 - people's document establishing the fundamental law that governs

57:32 - the governor.

57:33 - Right.

57:34 - And that the people were responsible and that the

57:37 - ultimate interpreters of the Constitution are the people that

57:41 - it's a document designed for us and our posterity.

57:45 - I think those are the closing words of the preamble.

57:48 - So that's exactly right is part of what we wanted to do was

57:51 - write a book not just for lawyers or professors but write

57:54 - a book for the people that would reintroduce the people to their

57:59 - constitution and equip citizens of all different types for

58:06 - engagement on constitutional issues.

58:09 - And that's what we're hoping we've accomplished here in the

58:15 - Constitution an introduction by Michael Stokes Paulsen and Luke

58:18 - Paulsen.

58:19 - Congratulations on writing the book and publishing it.

58:22 - It is a fantastic book everyone should read it.

58:25 - As we just heard if you want to be an engaged and informed

58:31 - citizen under the Constitution.

58:34 - Thank you both.

58:35 - And this has been a delightful event and I believe there will

58:38 - afterwards be books available for purchase and signing by the

58:41 - authors.

58:42 - Thank you Mike.

58:42 - Lou.