Larry Kramer, Tuesday, April 7, 2015
Articles,  Blog

Larry Kramer, Tuesday, April 7, 2015


– Good evening and welcome to the Marian Miner Cook Athenaeum. My name is Dante Toppo and I’m one of our two student fellows, this year. And, despite recent appearances, the American political system is, in fact, founded on compromise and consensus. The Constitution itself was a product of contentious debate between our nation’s Founders. It, furthermore, wasn’t even the first choice, but rather a ground-up revision of the failed Articles of Confederation, marking one of the few times when a sequel was better than the original. This process of compromise feels foreign to observers of contemporary American politics. So, tonight, we are fortunate to have our guest to remind us of the underlying character of the American system. Larry Kramer is the President of the William and Flora Hewlett Foundation in Menlo Park, one of the largest philanthropic organizations in the country, with total assets nearing $9 billion, but before joining the foundation in September 2012, Mr. Kramer served from 2004 to 2012 as the Richard E. Lang Professor of Law and Dean of Stanford Law School. During his tenure as Dean, he spearheaded significant educational reforms, pioneering a new model of multidisciplinary legal studies, enlarging the Clinical Education program, revamping to foster a public service ethos and developing the International Law program to support a growing emphasis on globalization in legal practice. Just prior to his academic career, Mr. Kramer served as a Law Clerk to the US Court of Appeals Judge Henry J. Friendly of the Second Circuit and, then, the US Supreme Court Justice William J. Brennan, Jr. He then served as Professor of Law at the University of Chicago, the University of Michigan and New York University, where he also served as an Associate Dean for Research and Academics until his appointment as Dean of Stanford Law School. Mr. Kramer is a Fellow of the American Academy of Arts and Sciences and a member of the American Philosophical Society and the American Law Institute. He serves on the board of a number of non-profit organizations, including ClimateWorks Foundation, the National Constitution Center and Independent Sector. A graduate of Brown University and the University of Chicago Law School, Mr. Kramer is the author of numerous articles and books, including The People Themselves: Popular Constitutionalism and Judicial Review. So, as always, audio and visual recording is strictly prohibited and please join me in welcoming Mr. Larry Kramer to the Athenaeum. (audience applauding) – So, thank you, it’s really a pleasure and an honor to be here. I want to thank the Gillis family for actually coming up with this idea and arranging for me to come here. This is my first visit down here and more than worth it. As I said to couple people, I have to bring my daughter back down here because I want to see if I can get her interested. Now, before I start, I do have to say by way of sequels, Godfather II, Empire Strikes Back, (audience laughing) but other than that, you’re basically right. Okay, so this will mostly be a history talk. I was a little, I, for some reason, in my head, I didn’t imagine this. I thought this was gonna be me sitting in a room with like 10 students talking, so this is sort of in the way of remarks and I do want to use history, really, to make a point about core values for making republican government, generally, but particularly in the United States, work. So, let’s start with just the following notion, one of the really remarkable things about the American Revolution was the way in which it forged a distinct American identity. We tend to sort of assume that and sort of think of the Colonial period as driving inexorably toward, you know, the creation of a single nation and that actually wasn’t true at all. The Americans in the Colonial period really had no identity as Americans, as such. They viewed themselves primarily as Englishmen, or women, as the case my be, and they took great pride in that. But, you know, someone from Virginia has no more reason to identify with someone from New York or Pennsylvania than they did with somebody from Barbados or Newfoundland. There was no sense, that is, of a distinctly American identity, as such. Now, in the 1760s, you know, something obviously happened and some new British policies in the wake of the Seven Years’ War kind of intersected with various conditions of colonial life to bring to the surface tensions that had long been latent and to create a conflict. And, because these new British policies affected all of the colonies equally, they provided the first impetus for them to act in a united way, not that the colonists set out self-consciously to create an American identity. They initially, really, were thinking of nothing more than the need to unite politically in order, first, to fend off the British and then, subsequent to that, in order to ensure their survival collectively or individually, rather, against the European powers. But, having formed this government, and here I don’t mean the Constitution, I just mean the original, you know, say the Continental Congress, having united as a group, a profound transformation did take place and it took place with astonishing rapidity, so that, say, by the time the time the War of 1812 is over, the disparate British colonies of the 1760s, which really were like foreign nations to each other, had become a people, had become We the People of the United States. Normally, when I do this, there’s this great scene in, I don’t know how many of you have ever read Benjamin Franklin’s autobiography, he actually wrote an autobiography, there’s this great scene in it when he first arrives in Pennsylvania. You know, he leaves Boston to get away from his brother and goes, first, to New York looking for work, can’t find any work, ends up in Philadelphia, arrives early in the morning and he describes this scene, you know, where he’s hungry, he sees some kid, he says, eating bread. “Where did you get the bread?” The kid tells him where a baker is, he goes. He asks the baker, he asks for a biscuit, he says. The baker has no idea what he’s talking about; they don’t use that language, so they go, but he says, “Well, how about giving me this amount,” and the baker has no idea what he’s talking about because the money has different value. So, he just gives him what he’s got and he gets these three huge puffy rolls, he describes them as and puts one under each arm and munches on the third one walking down the street and everybody’s looking at him, like, you know, he looks like an idiot. His clothes are weird, he has no idea where he’s going. The reason I always liked that scene is it’s so familiar, right? It’s exactly, I’m sure, how everybody felt the first time they went to a foreign country and that’s really the point. You know, at that point in Colonial America, these are like foreign countries to each other. So, it’s a really remarkable thing that happens during the American Revolution to create an American identity and it’s quite unusual. All right, typically, national identity is something that forms slowly and over time through shared cultural, economic, political experience, whereas, here, you have this very rapid thing that is itself a product of the creation of a political system together. And, you know, Tocqueville, when he’s writing about this in the 1830s is really struck by this; he marvels at it. I’ll just read a, this is a quote from a letter. This is a letter he wrote to a friend describing the puzzle that was gonna frame his analysis of America. He says, “Picture to yourself, if you can, a society “which comprises all the nations of the world, “people differing from one another “in language, in beliefs, in opinions, “in a word, a society possessing no roots, no memories, “no prejudices, no routine, no common ideas, “no national character, yet with a happiness “100 times greater than our own. “This, then, is our starting point. “What is the connecting element “between these so-different elements? “How are they welded into one people?” And, they answer, of course, as Tocqueville well-understood, is that Americans built a new identity around two related cornerstones. First, their commitment to an idea, the idea of republicanism, right, the idea that motivated the American Revolution, and then, second, a system they built in order to operationalize that idea in day-to-day, in the practical reality of day-to-day governance; that’s the US Constitution. So, these two things, really, became the foundation for expressing who we are as a people and what unites us as a nation. They’re the phenomena that defined and I think, still today, define America and Americans uniquely in the world and in world history. And, if you have any doubt about this, I invite you, next time you’re in Washington, D.C., to go to the National Archives. How many of you have been to the National Archives? Right, you go in there, it’s like a, it’s, there is the Constitution and Declaration and it’s like an altar, right, I mean, this is the civic religion of the United States and that’s the only way to think about it. I mean, we may, you know, share nothing other than commitment to this ideal, to these two ideas, and still be Americans, right? We can worship different gods, or no god. We can enjoy, we eat different foods, we can enjoy different activities, we can want different things for ourselves or for our children. What we all share in common is our commitment to this system of republicanism, of self-government and Constitutional government and, really, I want to just start by saying, I think that is what it means to be an American. Now, it’s worth taking a few minutes, and I do want to spend some time to recall just why this idea of republicanism had such power for the nation’s founding generation and still does for us today. We tend to think of the Founders as like the solemn old men they eventually became, as I should say sadly, we all do, I’ll just tell you now. Some day you’re gonna,
(audience laughing) I remember going to my 10th law school reunion, no, no, it was when I was in law school, first, and somebody else was having their 10th reunion and you’d look in the back of the class and think, god, who are those old people? Then I went to my reunion and it’s like, oh my god, I’m those old people. (audience laughing) And, you know, most of the pictures you see of the Founders are of them as old men and so that’s how we tend to picture them in our head, but, in fact, they were young men, in their 20s and 30s, when the American Revolution began, which is to say they were still trying on identities as you are, right, and trying to decide who they were or who they were gonna be and it was the Revolution that provided their answer, shaped their lives, turned them into radicals and revolutionaries in the fullest sense of the words. The events of the 1760s and 1770s really galvanized them, not just intellectually, but emotionally, as well, and it provided them with a purpose and a set of ideals that motivated them for the rest of their lives. Now, I will talk a lot about Madison, ’cause he’s, I think, the best person to use to understand, sort of the best version of all this. One of the really interesting things about Madison, so he grew up in Virginia, he was the son of the wealthiest land owner in his county, he did something unusual which is, all the other kids went, the children of the wealthy, went off to William and Mary and for whatever reason, he went to the College of New Jersey which is now Princeton and while he was there he discovered this whole new world and graduated in three years and his dad was like, “Come home,” and he didn’t want to come home, so he feigned an illness. He said, “I’ve got to stay here, I’m still sick.” We know it was feigned because we have records of what he was doing during that year which was having fun. He was going to the races, writing dirty poetry and there’s all sorts of stuff, basically being a college kid, having a great time. After a year, his dad said, “You have to come home,” right, “you have to come home “and if you don’t, I’m cutting you off.” So, he went home and he gets home and his dad is still young enough to be running the plantation, so he has nothing to do. He’s tutoring his younger brothers and sisters, and he goes into this massive depression and he’s writing these letters to all his friends who are still in New Jersey or now they’re in Philadelphia if they’ve graduated, you know, and they’re just classics: I’m gonna die young, I’m never gonna do anything at all. This should feel familiar or if it doesn’t, it might in a year or two.
(audience laughing) I mean, that’s what, what I always love about it, you know. And then, the Revolution comes along and you see the change in his letters, right. Suddenly, he has a cause that he thinks can give his life meaning and purpose and that’s very typical for all of the Founders, so, and the purpose, the thing that grabbed them was the idea that we could create a republican nation, right, that that is what provided, as Gordon Wood has put it, “the deeply felt meaning of the Revolution.” Now, a lot of ink has been spilled by a lot of historians, trying to define just what Americans meant and understood by the term republican and there’s still disagreement today about what that means. There was actually disagreement even at the time. John Adams once wrote a letter to, I think it was, Mercy Otis, he said, “I never understood what republicanism meant,” and then, I’ve got the quote here, “No man ever did or will because the term may signify “everything or nothing.” For our purpose, though, as well as in truth, the purpose of most Americans at the time, the idea of republicanism simply meant popular government as opposed to monarchy or mixed government, right. It meant a government that was created and operated, based explicitly on the consent of its people and a government whose whole authority derived from that consent, without hereditary rulers or orders or anything like that. Now, bear in mind that building a system of government wholly on popular authority is a political heresy in the 1780s. You’ve got, you know, essentially, 2,000 years of wisdom that tells you that this won’t work, right, that republican government is unworkable in large diverse societies. And, I think we tend, today, to forget just what a risky gamble the Revolution, we don’t think of the American Revolution as all that revolutionary, but it really was in context. Again, Wood wrote a book, it has a great title, The Radicalism of the American Revolution and this is really the point. They were taking a huge gamble on something that everybody told them could not be done and they were dedicated to doing it. And, I should say, Americans at the time understood this fully well. St. George Tucker boasted in 1803, how the American Revolution had, quote, “reduced to practice what before had been supposed to exist “only in the visionary speculation of theoretical writers.” Washington Irving agreed with this. This is a sentiment that was widely shared among Americans, describing the American Revolution and the Constitution as, “one of the greatest political experiments “in the history of the world.” And, like radicals and idealists in other ages and at other times, the cause the Founders fought for, then, and this is what infused meaning into their lives and they were determined to see it through. So, making popular government is the reason for the triumph of the American Revolution and it’s the object for which Americans, to use a common quote, “stake their lives, their fortunes and their sacred honor.” Unfortunately, they learned pretty quickly that achieving that objective was a lot trickier and more complicated than they had originally thought. So, there is a whole complicated story about how the early state constitutions and Articles of Confederation failed. It’s fairly well known. I don’t want to go through the details of it here, other than just to note that in the first flush of excitement after the Declaration, they wrote constitutions, this is at the state level, that really incorporated a whole lot of radical democratic innovations that had been theorized all through the 18th century, in England, mostly. The Americans were really familiar with this radical Whig literature and about how to do this, so they had, you know, annual elections and unicameral legislatures and weak executives and weak judiciaries, Councils of Revision, Councils of Censor, all this stuff, the key being, though, that what they did, what all the states did, no matter how far they went, was essentially put their faith, and so most of government’s authority in powerful legislatures, in a kind of optimistic belief that the republican virtue of the legislators and the citizenry would be sufficient to ensure good government. And, the results were not pretty, right, and by the mid-1780s, many Americans had begun to fear that the Revolution was failing, that their situation was, quote, “critical and dangerous,” that they were fast heading toward, quote, “national ruin,” that things were not working out. James Madison wrote this famous memorandum on the Vices of the Political System of the United States in which he said, you know, “the state legislatures have been incredibly irresponsible.” They’re passing too many laws, they keep changing them all the time, it creates instability, unsettles expectations, but, worst of all, much of the state legislation, Madison said, it’s foolish and unjust, quote, “a defect still more alarming “because it brings into question “the fundamental principle of republican government, “that the majority, who rule in such governments, are “the safest guardians both of public rights, public goods, “and of private rights.” That’s at the state level. Of course, matters at the national level weren’t much better, although the problem at the national level was too little rather than too much activity, but the Continental Congress proved itself rather quickly just incapable of dealing with any of the new nation’s problems. Now, there is a conventional wisdom. I’m gonna mention this just for those of you who have been studying government because you’ve probably been exposed to it, there’s a conventional wisdom that the move to adopt a new constitution at the federal level, as opposed to just following Congress’ directions just to amend the Articles of Confederation, that that was motivated chiefly by a desire to address these problems in the state government. So, I think it’s pretty clear, and I’m happy to talk about why if anybody’s interested, that that’s wrong, that the national government’s own failures under the Articles were more than sufficient reasons and were the reasons for creating a new national government, but what is true is that the Framers of the Constitution sought to learn from what wasn’t working in the states, that they wanted to create a national government that would improve on that based on what hadn’t worked and that there, and with the object of and, again, just quoting from Madison in Federalist 10, “that we could create a national government “that would secure the public good and private rights “and, at the same time, preserve the spirit and the form “of popular government.” And, I want to emphasize that quote because both things are true, so the object of the government is not just to secure the public good and private rights, although that is an object, if it doesn’t do that, it’s failing, but you have to do that while preserving the spirit and the form of popular government. That’s the key, here. So, the task of the men who met in Philadelphia was, you know, to devise a better system, to learn from their experiences of what hadn’t worked in the states and find a structure that would secure the republican fruits of the Revolution and they succeeded. Now, they succeeded, actually, beyond even their own hopes and expectations, at least insofar as their fellow countrymen were concerned. So, it it true, the battle for ratification was hard-fought and, at times, pretty ugly. The Anti-Federalists, who were opposed, often employed pretty extreme rhetoric, but one of the really remarkable things is that once ratification was secured, opposition to the new government disappeared really, really fast and that’s a phenomenon quite without parallel in history, the speed with which sort of the entire country came around. So, it’s not that there weren’t disagreements, fierce disagreements persisted. The 1790s are, you know, if not, well, not the most, the 1850s have to, you know, get, 1850s, 1860s, okay, that’s the most acrimonious period. After that though, it’s really the 1790s, even more so than today. So, there’s really fierce disagreement and political contention, but, you know, as early as 1791, when you’re around to the next set of elections, the Constitution has been accepted on all sides as the starting point for further debates, so we may disagree about what to do, but we’ve all accepted the Constitution is our framework. And, you see this reflected, that is to say, the Constitution establishes itself in the minds of that generation as the quintessence of American republicanism. Jefferson, at the end of his first Inaugural, called it, “The touchstone by which “to try the services of those we trust,” and if you look at schoolbooks of the era, they talk about the Constitution as divinely inspired and, you know, revered, glorious, sacred. Okay, so now the question that I want to put out there is if acceptance and commitment to our republican Constitution defines what it means to be an American, that’s really the core point here, then we have to ask, okay, what does the Constitution stand for, right, or, more accurately, what does it require of us? Okay, now, I suspect each of you will have answers to that question. I suspect most of them are gonna point towards values like equality, free speech, due process, privacy, property rights and so forth, all of which are unquestionably important, although I do think it’s worth noting that most of them come from the later-added Bill of Rights as opposed to the Constitution itself. In any event, I’m thinking of something different because at its heart, our Constitution is about realizing and implementing democratic self-government and the question we really need to ask is what does the Constitution require of us to make that work? And, the answer, interestingly enough, is not something typically highlighted or even mentioned in most discussions of our Constitution system, yet it’s essential, it is a set of core values, maybe the core values needed to make republicanism work and I mean as the title of this talk suggests a willingness to deliberate, to negotiate and, ultimately to compromise with others who disagree. So that, I want to say, is a fundamental obligation and responsibility of both citizens and their representatives in government and a necessary condition for republican rule and one of the central principles on which our Constitution and Constitutional system rests. So, I don’t know if that claim comes as a surprise or sounds strange. It might, it should, it does, usually to lawyers and law students because deliberation has always attracted some attention in discussions about the Constitution, but hardly anyone ever highlights or draws attention specifically to negotiation and compromise as themselves being Constitutional values embedded in the system, much less core Constitutional values, which is my claim. I’m not sure why that’s so. I’d like to think it’s because their importance is so obvious it’s been taken for granted or maybe it’s because their legitimacy has actually seldom been questioned, until today. Whatever the reason, it’s, I think, a relatively straightforward, but important, exercise to demonstrate the significance and centrality of negotiation and compromise in our Constitutional scheme. So, this is the detailed historical part. So, we start with a reminder that the heart of republicanism and republican government is popular control, right, the idea that, again, most, I’ll use mostly Madison’s words. “Power is in the people over the government “and not in the government over the people “and that public opinion is the real sovereign “in every free government.” Okay, that much I think is uncontroversial. Less obvious, but equally important, is the proposition that popular control means majority rule, that our Constitution is a majoritarian Constitution, not a counter-majoritarian Constitution, that to be republican requires that the will of the majority govern and this is a point, it’s a point that is like completely, and certainly in law schools, lost or rejected more often. I mean, we were taught it’s counter-majoritarian, the Constitution, language itself coming from the 1950s or so. But, in fact, if you go back and you look, the idea that republican government meant majority rule, it’s something that is stated over and over and over again by all of the Founders. Madison wrote in the Vices Memo, for example, that, “In a republic, not only does the majority, “however composed, ultimately give the law, “but this indeed is the fundamental principle “of republican government,” and that, of course, gives rise to the problem, right, or what I think you can say is the problem because of the sad lesson of the 1780s, was that popular majorities were often unjust and unreasonable. And yet, and that, people are really willing to accept that, yeah, God, majority rule, what a nightmare, right? And yet, you know, the people who fought the Revolution hadn’t dedicated their lives to the cause of republicanism without regard for its quality or content. So, to be republican, it had to rest on majority rule and, of course, a republican government could be just but it didn’t have to be and an unjust government, even if republican, wouldn’t be worth serving or preserving. So, while republicanism meant subjecting the will of the government to the will of society, meaning the will of the majority, that alone wasn’t enough, right; it was necessary, as well, to subject the will of the society to the reason of the society. In promoting the authority of public opinion, in other words, Madison is preaching majority rule, but not simple majoritarianism. Majority opinion, would hold sway, but the majority opinion that should hold sway has to be more than the unreflective reactions of a transient majority of the citizens. It has to reflect the true interests of the society. Jefferson makes the same point as well, again, quoting from his first Inaugural address, he says, “Americans should bear in mind the sacred principle “that though the will of the majority is “in all cases to prevail, “that will, to be rightful, must be reasonable.” Okay, of course, that is, there is the real problem, right, ’cause ensuring that the will of the majority is gonna be reasonable is not an easy task. How do you do that, right? How do you keep, again, both sides visible? How do you ensure the protection of public good and private right while, at the same time, ensuring that you preserve the spirit and reality of popular government? How do you, in other words, the way I always like to, how do you make democratic constitutionalism or constitutional democracy not an oxymoron? Now, you start with, well, let’s start with one point which is there’s no surefire way to guarantee that every decision the government makes is gonna meet that standard, that every time the government acts, it’s going to be something that is, in fact, reflects the true interests of the society. But, you know, that’s going to be true for any system of governance, right? Now to say, the most we can ever do is build a system we think likely to achieve such outcomes as often as possible and in the American context, it’s we need to build a system that’s likely to achieve those outcomes as often as possible and that is republican and that’s the task Madison and the other Framers set for themselves in Philadelphia. So, how do you do that? Okay, first principle, one Madison gleaned from his own study of history, is that popular government will succeed only if decision-making is mediated and refined through a system of accountable representation. Okay, now, that was a given, right, though, to say that law-making would be done by representative legislatures was never in question, if only because, you know, more direct forms of democracy were impractical on the national level or even on the state level. There were, however, at the time, very different views about how to think about the role of a representative body that is, to say how we should constitute it and how expect it to operate. So, a lot of Anti-Federalists and even some Federalists viewed representation as an inferior second-best to direct democracy; direct democracy is our ideal. We may be forced by circumstances to use representatives, but given that direct democracy is our ideal, the representatives should, and I’m just gonna quote someone here, this is Theophilus Parsons, “that the representative body “should be an exact miniature of their constituents,” in other words, representatives are literally meant to re-present whatever their constituents would want. Madison and most of the Federalists viewed representation differently. They saw the Representative Assembly as a filtering device, a device that could, if properly constituted, improve the quality of legislation and legislative decision-making through thoughtful deliberation. Again, quoting Madison from Federalist 10, “Representation made it possible,” and, by the way, I assume most of you will be familiar with this stuff. If not, you should definitely, you know, you shouldn’t graduate college without reading The Federalists Papers,
(audience laughing) maybe not all of them, but some of the basic ones. Representation made it possible to, quote, “to refine and enlarge the public views “by passing them through the medium “of a chosen body of citizens whose wisdom may best discern “the true interest of their country “and whose patriotism and love of justice “will be least likely to sacrifice it “to temporary or partial consideration. “Under such a regulation, “it may well happen that the public voice “pronounced by the representatives of the people will be “more consonant to the public good “than if pronounced by the people themselves, “convened for the purpose.” So, elected representatives are not supposed to be, you know, mere ciphers for their constituents. They’re not supposed to just mechanically reflect the views of what their constituents want; rather, they have an important role shaping policy and shaping public opinion. And, it’s with this in mind, Madison, at different points, emphasizes, for instance, “how critical it is “for representatives to go from and return among “every part of the nation,” that that’s essential to secure republican liberty. In fact, that’s the sort of back and forth with representatives communicating to their constituents is, “is a safeguard whose importance is matched only “by a circulation of newspapers “through the entire body of the people.” And so, there’s this notion of educative leadership, but it’s a kind of educative leadership that’s gonna be effective only if you have proper leaders in place and that’s one of the reasons Madison is so excited when he realizes how a large Republic, which is what the United States will be, can foster, quote, “a process of elections, as will most certainly extract “from the mass from the mass of the society “the purest and noblest characters which it contains.” Now, understand, you know, he, there’s a degree of hyperbole here, so, but you get the, because it’s like, oh really, you think our representatives in Congress are the purest and noblest characters in the society? Of course not and Madison didn’t think that either, but this is relative, relative terms, that you will get purer and nobler characters than you will get with a small republic. Now, note, Madison’s objective was not to select an elite that is gonna deliberate for the public, which is the way it’s sometimes caricatured, nor is it to replace, to place that elite at, like, such a remove from the people, that it can work free from their interference, which is another caricature. Instead, Madison wanted the ablest statesmen and the soundest republicans to seek positions of leadership so they could teach and inform the public, to they can elevate the discussion, so they can fend off local prejudices and improve the citizens’ minds and morals. Those in office, whoever they are, are gonna necessarily know more about public affairs than ordinary citizens. It’s their job to know and what they’re spending their time on, as opposed to the rest of us who have other jobs and other things occupying our life and time. For those in government, this is what they’re gonna spend their time learning about, so public officials are in the best position to provide the public the kind of civic education that’s essential to guide thinking, but to play their part well, these public officials, they need to understand that they have a responsibility to use their superior knowledge and position to move public opinion in the direction of reason, moderation and justice, so that’s one purpose of the extended republic. There’s a second purpose that’s critical in Madison’s scheme because, okay, we want to generate a kind of reasonable and reasoned public debate and public opinion, but that takes time and it requires a proper forum for deliberation to take place and, here, we mean not Congress, not deliberation among the representatives, but for the public at large and that’s really difficult to achieve in a small republic because the limited range of competing interests that exist in a small republic can form a majority really quickly and then they act and, oftentimes, they act for bad reasons. That was the experience of the 1780s. Now, in theory, virtuous leaders could prevent that, but, in practice, and here I’m gonna quote Madison, “It is vain to say that enlightened statesmen will be able “to adjust these clashing interests “and render them all subservient to the public good, “why, because enlightened statesmen “will not always be at the helm,” so we need added safeguards to kind of blunt the process of majority formation, to slow it down long enough for the country to have a proper public debate and among the best ways to slow that debate down, is simply to make, again, to make the republic larger. “Extend the sphere,” Madison says, “and you take in a greater variety of parties and interests. “You make it less probable that a majority of the whole “will have a common motive “to invade the rights of other citizens “or if such a common motive exists, “it will be more difficult for all who feel it “to discover their own strength “and to act in unison with each other.” This is undoubtedly true, right, it’s just so we’re gonna slow the process down because it’s gonna take longer to get that majority together when there’s so many more interests that need to be comprehended in whatever majority exists and the difficulty of forming such majorities would, in turn, create the time and the space for the kind of public deliberation and discussion that’s necessary to refine popular opinion and help it coalesce around a just and reasonable decision. Now, note, again, for those of you who’ve studied this, note how that description of the effect of enlarging the republic, how it differs from the usual understanding of Madison’s famous argument, here. The usual assumption is that because Madison feared legislators who would be too responsive to majorities, he wanted to prevent majorities from forming and, in that way, to leave officials free to craft solutions that satisfied some independent and objective notion of the public good. That’s the way this is typically taught, today; that’s the way it was taught to me, too. But, you know, one of the points I was trying to make with all the earlier stuff is just to underscore the extent to which Madison was committed to the idea of majority rule and believed in the sovereignty of public opinion. His actual concern was more focused. It wasn’t majorities that Madison feared; it was unreflective factious majorities. It was the kind of majorities that he thought could form too quickly in a small republic, like at the state level, so the benefit of extensive size was that by making it more difficult for majorities to form, a large republic would give reasoned argument a chance to prevail so that whatever coalition of a majority of the whole society eventually emerged, could seldom take place on any other principles than those of justice and the general good. Now, again, not that it always would, there’s, once again, the degree of hyperbole here, but recall the point at the start: no system will do that all of the time. The goal, here, is to create a system that is more likely to do it while still preserving the spirit of popular government. So, at the risk of oversimplifying, I think you can characterize the process Madison is, and, here, I’m using him as a stand-in for the Founders, generally, or at least the Federalists, you can characterize that process as a conversation, right. It’s a conversation in which elected officials deliberate collectively and lead, by persuasion, an electorate that is actively engaged in making its own judgements and decisions. So, what can with say about the nature of that conversation? I think we can, you know, actually pretty quickly put aside the two most common interpretations of Madison’s thinking. First, there’s the old pluralist notion; this is usually associated with Martin Diamond. The pluralist idea assumes that representatives are supposed to be brokers for the interests of their constituents, right, that they’re gonna engage in a process of horsetrading and log rolling to achieve legislative outcomes. Okay, that, absolutely not would anyone in the Founding generation would have thought, right. That’s a 1950s conception of democratic politics and one that was completely alien to the Founding generation, you know, which viewed interest groups as inevitable but as an evil to be overcome, that is, to say the idea of the political system is to transcend self-interest, not to give it free play. The same scholars, by the way, who have sort of repudiated the pluralist vision of Madison offer the alternative reading, the one that is, I think, predominant today and also problematic. This is the so-called civic-humanist alternative. According to this, Congress was designed to secure power for, you know, a virtuous elite of disinterested gentlemen. Freed from the corrupting pressures of politics by size and distance, you’d have a batch of noble patricians who could serve as, quote, “proper guardians of the public wheel.” Now, I think there’s a number of problems with that interpretation of Madison, which, as I say, is the predominant one today. First, it’s way too anti-democratic. There’s no question that Madison had anxiety about the risks of popular government and there’s no question that he saw certain forms of it as noxious or unjust and he believed it was possible to engineer the structure of government to minimize those risks, but it’s, he was really clear. “The structural innovations in the government are “auxiliary precautions,” that’s his language, right, that, “the more basic and primary dependence on the people,” again his language, is what we’re trying to secure. Madison’s whole purpose was to make democratic politics work, not to minimize the extent to which it would interfere with the ruling elite. Madison was, above all, like all of the Founders, a committed republican who believed in popular government and believed that the people had to control the government and the laws at all times. Now, that’s not true of all of the Founders. In the 1790s, the split between Federalists and Republicans, the Madisonian and Jeffersonian Party, is over that, “at all times.” The Federalist view is, sovereignty is in the people on election day and then you revert to subjects and you’re supposed to be obedient to what the government does, until the next election, when sovereignty comes back to you and if you don’t like what they’ve done, you can dump them and that’s because we want to secure order. The Jeffersonian-Madisonian view is, no, the idea of republican government is the people are in control at all times and that’s why they disagree in that period over things like the role of newspapers, the Democratic-Republican debating societies. The Federalist view is, these things are illegitimate; the Republican view is these things are more than legitimate, they are essential and many of the battles during the 1790s, really, are resting on this difference. But, the core idea, still, however you want to think about it is, it is popular control that we are trying to secure and so the idea that Congress is meant to be immune from that is alien, at least to Madison’s view. I should say, beyond that, the civic humanist reading always struck me as wildly unrealistic, you know, to the extent it kind of imagines, like, this disinterested elite coming together and engaging in a kind of dispassioned debate in order to decide what the real public good is, it really seems, like, it’s incredibly naive, if you think about it and James Madison was definitely not naive. And, I’m not, I don’t, I’m not being anachronistic, here. This isn’t, like, me putting my view, I do think it’s naive, into Madison’s mind. I doubt that Madison would have believed this, just because nothing in his experience would have justified that belief, right. I mean, remember, Madison was a Representative in the Continental Congress as well as the Virginia Assembly. He was a Representative at the Annapolis Convention, the Mt. Vernon Convention, the Philadelphia Convention. None of those looked or acted remotely in the way that scholars imagine Madison expected Congress to act, so why would you think he would expect that? I mean, there’s no way Madison would have thought that a new Congress was gonna operate better than the Philadelphia Convention had operated. It was not gonna have people of the same, he hoped it would have people of the same quality; they weren’t gonna be better. Actually, there’s all these letters he writes home after he gets, he gets to the Congress, he’s Speaker of the House, and he writes home all these letters. He’s so disappointed in the quality of the Representatives; it’s so much less than he hoped. In any rate, you know, he had been at the Philadelphia Convention and, you know, the Convention was filled with disagreement and self-interest and the grudging resolution of real controversy by close votes after angry debates, right, I mean, so, in fact, were it not for the willingness of the delegates in Philadelphia to compromise, even on matters of high principle, like slavery and representation, there would have been no Constitution to ratify, so it just doesn’t make sense that Madison would have thought that Congress would operate differently, particularly given that Congress wouldn’t be able to operate in secret the way the Convention had and they were gonna be exposed to their constituents at all times. So, you know, Madison is a realist and someone who learned from experience and by 1787, he had a lot of experience with legislative assemblies at the best and at their worst and that had to have informed his understanding and expectations for the new Federal Congress. So, how did he expect Congress to work? I think Madison scholars are clearly right to reject the pluralist view, but the alternative to pluralism doesn’t have to be some idealized philosopher’s club or debating society. Yes, Madison believed that with time and proper encouragement, representatives and constituents could rise above self-interest and think about the greater public good, but he understood that how people saw the public good would differ and it would differ depending on who they were, on where they came from and on who they were accountable to. How people saw the public good, in other words, would inevitably be shaped by their situation and by their self-interests and the whole point in extending the Republic was to encompass people from a wider variety of situations and so take in a greater number of interests and the resulting diversity of viewpoints was itself something that would both slow down and improve the process of majority formation, precisely because it would require a complex process of negotiation and compromise, the same process Madison had witnessed in Philadelphia, although, again, more complicated because the members of Congress couldn’t work in secret. Nor is size the only way the Constitution ensures discussion and deliberation, producing the need for compromise, the risk that enlightened statesmen won’t always be at the helm required, in addition, that power be divided, right, as Madison explained in Federalist 51. We would divide it, first, between two distinct governments, state government and Federal Governments, and then the portion allotted to each of those levels would be subdivided among distinct and separate departments. So, all these different branches and departments of government, governors, houses of representatives, senates, at the different levels and so on, could then use their powers to impede actions by the others if they disagreed with them. Of course, the object there wasn’t to end, but to begin the debate, right. That’s part of what would force the kind of public debate that was necessary for the reason of the society to emerge and coalesce. And, this is also, let me take a second important point to emphasize. The House passes a bill. They say, it’s a good law; it’s a constitutional law. Okay, the Senate disagrees, so now it doesn’t become a law. The way this is often taught is, yeah, so there’s the institutional check. Okay, there’s so many things wring with that argument. First of all, we know for sure that members of, politicians are perfectly willing to trade off the interests of their institution for their political interests, so the idea that this is what protects the branches of the government against each other doesn’t make sense. We see this all the time, right? If you have a democratic Congress, they will give the President all sorts of powers, even if it weakens the power of Congress and that’s just common. That’s what you can count on politicians to do. What Madison is thinking is, the interests, what he says in Federalist 51, “the interests of the man should be united “with the Constitutional powers of the department.” The interests of the man are political interests. So, the way this works, the House passes this law, the Senate disagrees. The members of the House are gonna go back to their constituents and say, “This is a good law, “it’s constitutional law. “Put pressure on them to pass it,” and the Senators aren’t sitting passively doing nothing, so they’re going back to the same constituents, making the same arguments and, at some point, the public is gonna come down on one side or the other and the only assumption Madison and the other Framers are making is that whichever side the public comes down on, the branch that’s on the opposite side of that will relent and that actually tends to be true. And so, the idea with all this checking and balancing is, is it forces a public debate, so we have politicians in all sorts of different positions and at different levels of government who, by virtue of those differences, have different political interests. So, if they all agree that a law is okay, either because they like it and/or because they have no good argument against it, that’s as good a check as you can get, that this is the kind of law that we’re after and if there are reasons to object to it, there’s gonna be somebody in this system with a political interest to object and their objection will force that back to the public. And so, we get the kind of debate that we need in order to secure republican government. So, these structural innovations in the forms of Federalism and separation of powers are kind of the final elements of the Constitutional design, a means of further ensuring public deliberation, negotiation and, eventually, the compromise that’s necessary to advance the cause of republican liberty, which brings me back to the main point, that the law-making process envisioned by the Constitution could work, was intended to work, only if the participants understood and acknowledged that they were part of an extensive republic, that that republic was comprised of people whose views about the public good would necessarily differ and were willing to contribute in good faith to the inevitable process of deliberation, negotiation and compromise needed to secure that public good while, at the same time, preserving the spirit and the form of popular government. So, that process of negotiation and compromise is desirable. It’s the heart of what Madison himself affirmed with pride at the end of Federalist 10, is, “a republican remedy “for the diseases most incident to republican government.” I love that, that phrase. People today tend to focus on the last part, “the diseases most incident to republican government,” which is, oh my god, the horrors of majority rule and, yes, that is the concern, but the point is the remedy to it has to be republican remedy. It’s not enough that it be a remedy. I used to do this talk mostly in the context of judicial supremacy and why I think it’s such a bad idea, because it’s not a republican remedy to the problem. Madison and most of the Founders would have and did, in fact, reject that idea, but here, just thinking about this, the whole structure of the government is designed to secure republican rule, which brings me to today, of course, because we seem to be losing sight of the importance of these core values as critical features of our Constitutional system. If anything plagues the inability of Congress to fulfill its basic functions, it’s the increasing unwillingness of its members to compromise and their apparent increasing belief that they cannot and should not do so. Why that matters, I think, should be evident. The American Constitutional system is built on an idea of negotiation and compromise among people with different passions, interests and beliefs and if, I’d say, that’s the reason I started out with this notion of an American identity is if embrace of our Constitutional system is what it means to be an American, and I believe that, an embrace of negotiation and compromise is an essential part of what it means to embrace that system. Then, the repudiation of compromise as a value is a repudiation of our core identity. So, I’m loathe to use a term like un-American, you know, given the sorry history of those kinds of charges. When I do this talk, I used to put up first the picture of Joe McCarthy and then the picture of Sarah Palin, right, who made the same charges,
(audience laughing) but if anyone is gonna be accused of being un-American, it’s the people who repudiate the value and importance of compromising. They’re the ones who are denying the essence of what defines our democracy. Now, I want to hasten to add, here, I’m not saying that there are no matters of principle on which we shouldn’t compromise, of course there are, like slavery being the most obvious example from American history, but what I do want to say is this: God save us from the people for whom every issue and every disagreement is a matter of high principle, equivalent to opposition to slavery in the 19th century. It’s just preposterous to treat the difference between a 36% and a 39% marginal tax rate as if it were the difference between oligarchy and socialism, right. It’s idiotic to treat the modest Affordable Care Act as tantamount to slavery, just as it’s idiotic to treat Paul Ryan’s notion of premium support under Medicare as equivalent to telling, you know, elderly people to eat cake. What we’re talking about here is political culture, right. These are matters of attitudes and expectations. There is a world of difference between assuming that we can and should compromise over our differences subject to rare exceptions for matters of particular importance and shunning compromise unless, you know, like an existential crisis for the country is at hand. Hard choices are always gonna need to be made, but our attitude in approaching them needs to be one of respect for disagreement and openness to accommodation. We should be able to disagree about a policy without labeling our political opponents illegitimate or refusing to work with them on any terms short of their complete capitulation to what we want and if we can’t do that, if we can’t restore the ability of elected officials to reach sensible accommodations around such differences, if we can’t make and get behind the decisions needed to govern a complex society and economy in a post-industrial world, and by get behind, I mean once they’re made, accept them and move on, then it’s not clear that our Constitutional system has much of a future. Now, I don’t want to sound melodramatic, but you should not assume that the American republic is permanent and can’t fail. If history teaches us anything, it’s that all human institutions can fail, so we, but honestly, especially you, as the next generation of leaders in this country, have a responsibility to make this system work and to revitalize and restore the political culture that’s necessary to keep republican government alive and functioning. I usually finish this with a different Ben Franklin story, one that I think is pretty well-known. The Convention finished and the people knew it was the last day and so a big crowd gathered outside the Philadelphia State House, which is Independence Hall today, and as they’re walking out a woman in the crowd named Mrs. Powell says to Franklin, you know, to Franklin, and says, “What form of government have you given us?” And, Franklin’s answer, very famous, is, “A republic, if you can keep it.” Now, I read that story years ago and, at the time, I remember I was just getting deeply into history. I read it with a lot of pride, right, pride at how tenuous the American experiment really was at the beginning and how far we seemed from that tenuousness, today. So, I actually don’t feel that way anymore, right. It doesn’t seem so solid and secure as it did and the warning that Franklin gave seems to me, actually, every bit as applicable today as it was in 1789. That’s all, thank you. (audience applauding) – We will now have time for questions. As always, first priority goes to students. If you have a question, please raise your hand and either Ben or I will come by with a microphone. – [Student] Hi, thank you so much for your talk. So, I want to ask about something that you said towards the end of your talk about how judicial supremacy isn’t at the core of republicanism. I’m wondering if you could speak a little bit more about that. I don’t have, necessarily, a direct question about it. I was just wondering if you could talk about that more. – So, more? Yeah, yeah, yeah. That’s like another 45 minute talk. (audience laughing) Let me try and do this. Actually, I had a true, but the question was whether to give that talk or this one, they both build on the same history. Hiram suggested doing this one, and I’m glad I did. I think this is the more important one for you guys. The talk about judicial supremacy, the normative case is the one that was just made here, right, which is the idea of judicial supremacy is, itself, deeply inconsistent with the idea of republican government. The historical part is that, in fact, if you trace the growth an idea of judicial review, it did not entail supremacy at all. So, in a nutshell, the idea of judicial review as it emerged rested on popular sovereignty and the community at large and the idea was we delegate power out into the government to do things for us, but the government as our agents. Okay, so the argument against judicial review altogether went something like this. Suppose I have a house and I have a gardener to take care of my garden and I’ve got a cook to cook the meals and the gardener keeps coming into the kitchen and telling the cook how to do this and I would say to the gardener, you know, “Your job is to be in the garden. “Stay out there and take care of the garden. “If there’s a problem with the cook, I will deal with it.” And, the argument against judicial review was exactly that, which is if the legislature is doing something wrong, it’s between the people and the legislature; the Court has no business getting involved. The argument for judicial review was, “We agree with that, “but the fact is the delegated authority to us “is to decide the cases that are brought before us,” or, in the 18th century parlance, “to say what the law is.” And, if in the course of saying what the law is, a question comes up about whether a particular law is constitutional, we have to decide that as part of our delegated authority and that makes sense. Now, note, though, that that justification for judicial review, then, there’s nothing, it doesn’t say the Court has a special role and the Court’s interpretations are not superior to the other branches and they’re all subordinate to the primary, to the principle, the people themselves and they had a whole system that existed at the time for enforcing all that. That’s a much longer part of the speech. The notion that there’s a special role for the judiciary emerges first in the 1790s out of the Federalists who are freaking out about the French Revolution and looking across a whole array of ways in which to dampen all this democratic politics, which they’re scared of and one of the places in which they looks is control over the Constitution. And so, they first begin to articulate this notion of a special role and that actually comes to a head in the election of 1800, around, so again, just very quickly, it’s really hard to do this quickly, (audience laughing) you know, we get into a quasi-war with France, Congress passes the Alien and the Sedition Acts, Madison and Jefferson, who think they’re unconstitutional, follow the script that Madison lays out in Federalist 45 and 46. They go to the State Legislatures, in this case, Virginia and Kentucky where their party is in control and they issue these resolutions which they send to the other states saying, you know, “let’s all get together, this is unconstitutional, “we should pressure Congress to repeal these laws.” Now, there are 14 other states. Four of them are closely divided; they just ignore the letters. The other 10 are controlled by Federalists and they send back letters saying, “No, you’re wrong. “That is not our job; this is for the Supreme Court. “The Court says what the Constitution means “and we’re all, all of us, subject to that.” And, as I said, that becomes an issue, really, the central issue, in the election of 1800 and, of course, the Federalists get trounced. It’s one of the largest electoral losses in American history and it is understood as an explicit repudiation of this notion of judicial supremacy, so when Marbury is decided in 1803, three years later, if you actually read the opinion in context, not only does it not articulate the idea of judicial supremacy, it repudiates it. How do we know it repudiates it? Because there were two ways in which the argument was made. There was the Jeffersonian-Madisonian way of making the argument, by which, I mean the language they used and the arguments they used. And then, there was the Federalist argument for judicial supremacy and that had a different language and Marshall is really careful in his opinion to use none of the Federalist language and, in fact, the core argument in Marbury is lifted out of opinions by Spencer Roane and St. George Tucker who are Jeffersonian judges in Virginia. So, the reason Jefferson has nothing to say about the judicial review part of Marbury v. Madison isn’t because Marshall boxed him into a corner, by, you know, like striking the law down while not doing anything, I mean, Jefferson wasn’t stupid. He could see that, if the Court was exerting some grand new power and he had plenty of ways to punish the Court. It was because Jefferson won on that point. It was because that was his theory of judicial review that the Court is explicitly embracing and it was understood that way at the time. There was, Jefferson was really angry about Marbury, but not about that part; that was his victory. He was angry about the other part, where Marshall said, “You violated the law, “but I can’t, but we don’t have jurisdiction.” And so, first, that was dictum; you’re not supposed to say that once you’ve said you have no jurisdiction. Second, Marshall was completely wrong on the law, like completely wrong, and he only did that to give a sop to Federalist newspapers who then took it and used it to beat on Jefferson for everything illegally. So, Jefferson was plenty angry about that part, but the judicial review part, he was happy with and the truth is, again, now, the idea of judicial supremacy doesn’t just go away. So, over the next 150 years, mostly, you don’t see it there because the Court is being restrained. Every once in a while it pops up and every time it does, you get the same outcome as you did in 1800 and 1832 and 1856 around the Progressive Era through the New Deal which is it is squashed in popular politics, until the 1960s. What happens in the 1960s? It starts with Brown in the 1950s, but, and really isn’t established until the 1980s, what happens is, the way this debate was always framed, it was always conservatives who supported the idea of judicial supremacy and always, I’m gonna call them Progressives, who opposed it. Now, understand, those terms do not mean the same thing that they mean today, right. At the time, the Jacksonians, who we would regard as the conservatives, today, and the Whigs as the liberals, at the time, the Jacksonians are the liberals and the Whigs are the conservatives and it’s really who supports popular government and who supports controls on popular government, wherever that is. That was always the fight. What happens in the 1960s is the left flips, because for the first and only time in American history, you’ve got an activist liberal Supreme Court and they love it, not the old liberals, by the way, the older ones are really troubled, but the new young ones, the Ronnie Dworkins and Bob Gordons of the period, and so they embrace it. And, the conservatives don’t abandon the Court. They continue to embrace the idea of judicial supremacy, so the debate shifts. Whereas across most of American history, the debate was who should interpret the Constitution, suddenly you have a consensus that it’s the Court and the debate becomes, how do you interpret the Constitution? And, that’s where the left and the right continue to disagree today and that itself is just an artifact of the acceptance of judicial supremacy. Now, that doesn’t happen in a day and it never happens clearly. The Court makes its first claim for it in Cooper v. Aaron in 1957. It is not accepted at that point, but, you know, to me this sort of slowly seeps into the American political culture. I actually think the reason the Bork confirmation is important is because that, if there is a moment when this crystallizes for the public in an explicit way, it’s around the Bork confirmation because what’s at, the reason it’s such a big deal is what’s at stake for the first time is, oh my God, whoever we put on the Supreme Court is gonna tell us what the Constitution means or, in context, is gonna tell us whether Roe v. Wade stays or goes, right. And so, that’s the moment and, you know, I mean, I always think it’s the, Steve, I don’t know if you remember it the same way, when I was in law school, when we were taught Con Law, we had David Curry, did you, were you in my, yeah, for Con Law 1 and he pushed the idea of judicial supremacy on us and I remember the class pushing back, not everybody, but a lot of us pushed back pretty hard. It didn’t make sense to us, although, eventually, he beat us down because he was way smarter than we were. When I teach Con Law now, it’s just the opposite. I have to fight hard to get my students to think that judicial supremacy is anything other than normal and natural. That’s a big shift in political culture. My point is just that it’s very recent, it’s not necessary, it’s inconsistent with the core idea of the Constitution. So, that was moderately short. (audience laughing)
Sorry. – [Student] Thank you for the talk. So, I was wondering, at the beginning of your talk, you were talking about how strange it was that over a very short period of time, everyone accepted the Constitution and, like, used that as the basis for how they talked about how the government should work and I was wondering why you thought people accepted it so quickly. – Ha, you know, so I guess I’ll say this, I don’t know that I can answer that. There’s actually a whole large literature about that. The best book I’ve seen is one that argues that it’s an accident that the political interests if the different factions in the 1789 to 1791 period sort of, by coincidence, are all aligned so that for each of them, although for different reasons, it makes sense to embrace the Constitution, that they think that they can advance their political ends more effectively by embracing the Constitution and arguing within it than otherwise and then, once it’s across the political culture, it establishes quickly ’cause the public finds that amenable, but I don’t know that there’s an answer. As I say, it’s really an exceptional thing, particularly given how fierce the battle over the Constitution was. So, that’s the best I can do. If you’re interested, I can point you to some of the books. – [Student] Hi, I just wanted to thank you for your talk today and I had a quick question. So, in your talk that you gave, you spoke about a group of the Founders that felt like direct democracy was, like, the most virtuous form of government and that’s what should be upheld, but do you think that this group of Founders really anticipated the effects of direct democracy in its most raw forms such as the initiative process in California where the voters will, you know, enact laws that the California State Legislature has gone against or will enact things that are unconstitutional? – Well, so, I’m sure they didn’t anticipate the initiative process. I think, again, the thing you need to remember is everybody in this period is operating with very little experience of how democratic politics is actually going to work, so that, you know, so in theory, direct democracy, actually, if you’re really a committed republican and you believe that that’s where all power emanates from, then it makes sense that it should be direct and perhaps, you know, in some places, you’ve experienced it and is seems to work tolerably well, like in the New England town meeting and so on, although, it’s interesting, most of the strong Anti-Federalists are in the South, on this, so it’s a theoretical argument that makes sense ’cause you have very little experience and there are different interpretations, at that time, of what the experience teaches. Everybody agrees that direct democracy, at the national level, is impractical. There is no, not only is there no idea of referendum, there’s not really, yet, even an idea of national elections which doesn’t seem like much of a stretch. So, in the debate over the Presidency, there’s no real discussion of why not just have a national election for the President; that’s not within their sort of intellectual frame yet. So, I think that would be my answer which is there’s just a you can imagine people arrayed across a spectrum, since I have my own biases here, from very naive (laughs) to very pragmatic, so the people at the very naive end have this idea that direct democracy is the way to go and we should minimize the departures from it to the extent possible. People like Madison and many of the other Framers who are, I think, just are a little more sophisticated in understanding why things aren’t working at the time understand the need to use a filtering device. Before you ask that question, I want to say, by the way, that lesson needs to keep being relearned. So, the Progressives at the end of the 19th and the beginning of the 20th century are, again, looking at the system and saying, oh my God, all this mediation, in particular, these political parties have corrupted this whole thing; we need to put power back to the people and most, the referendum emerges in that period along with the primary election, all sorts of other reforms that have not played out particularly well and are really a root for the cause, a root cause of most of the problems we have today. – [Student] Hi, thank you, again, for your talk. I’m curious, a lot of people, it seems like, in sort of popular discussion of the Constitution, today, seem to conceptualize the Constitution and the Founders as having created a document that was very, like, solid and immutable and they expect it to last for a long time and my understanding is that’s not entirely sort of what their expectation was and I’m curious if you could speak a little bit to the way that they sort of expected or did not expect the Constitution to last or to evolve, I mean, particularly, sort of the way you ended your talk with that sort of idea that if you can keep it, you know, that it’s good, so sort of, I was wondering if you could speak to – Sure.
– sort of their expectations with that regard.
– Sure. So, first, I’ve got to preface this with, again, and I feel subject to this in my own talk ’cause it’s hard to do a talk otherwise. You have to remember there’s never a view; there’s always a range of views and it’s a spectrum that moves over time, so anything I say here is not gonna, or nevertheless, I think the dominant view would be, so first, they, we do expect this thing to last a long time, but one of the reasons we expect it to last a long time is because it is quite mutable. Now, mutability, again, the conception, say, of an Originalist today is, sure, there’s a mutability; that’s why they put the amendment process in there. It was enacted at a point in time, that is what the law is; if you don’t like it, you have to change it. Whatever you think about that, I can say to a fair degree of certainty, that was not the Founding understanding. One of the reasons is, again, they’re coming out of this background of popular constitutionalism. They were familiar with constitutions. They lived within a constitutional system, always, right? I mean, the idea of a constitution predates the colonies and so, they always understood themselves as living within a constitutional system. Why did they write their constitutions down? They wrote their constitutions because when we declared independence from England, portions, there was a customary, it was a customary constitution. By declaring independence from England, portions of it were abrogated, so now, we did, there was not legitimate legal basis for our legislatures, for our governors, for our judiciaries, the institutions of government. Okay, now, we could let them evolve like they did the first time and, you know, just suffer with a lot of uncertainty, but why do that? So, instead, they came up with a way, we’ll write them down. Remember, the customary constitution wasn’t all customary law; it had lots of texts, the Magna Carta, various treatises, all sorts of texts to look at. So, they created a text to fill in the gaps that were created by the Declaration of Independence. And, again, one of the things to note is they didn’t need a new constitution for their rights, so most of the states, when they wrote their constitutions, they filled in the gaps that needed to be filled and restructured the institutions of government. They didn’t do bills of rights or declarations of rights ’cause those rights existed and had never depended on the crown for their authority. They were never abrogated. They were still part of the constitution and you could still make argument by reference to the old customary constitution. In two of the states, Rhode Island and Connecticut. They didn’t even write new constitutions because their constitutions already rested on popular authority and not the crown, so they didn’t need them. They didn’t do that until well into the 19th century. Okay, so you need to understand, when the Founders do this, they’re working within a system of customary constitutions. Why do they put the amendment provision in there? They put the amendment provision in there because they are trying all these new innovations and they don’t know that they’ll all work. Again, although they can be changed through the sort of traditional process of popular pressure, this is convenient, so we’ll put this in there to make it clear, okay, but they also understand the distinction between making new constitutional law and interpreting existing constitutional law and their understanding is the authority to do both rests in the community at large. So, the mutability comes from the fact that it is the people themselves, that’s why it’s the name of the book, the people themselves who are interpreting the Constitution and making it fit their changing circumstances as it goes along and have the capacity to change it by whatever means they choose, although they can use this amendment process if they want. So, I often give a talk, I gave a talk at the Federalist Society once where one of my faculty members who was a Federalist Society member came up to me afterwards and said, “Everybody wanted to know what it’s like “to be on the faculty with a crazy person for a Dean.” (audience laughing) The talk was essentially that the only way to be an Originalist is to now know too much history (audience chuckling) because the more you know, the more untenable the premises of Originalism become and that, this is a big part of the reason why, so the reason they, and that, the only reason we’re still here is because, thank God, the Founding generation itself, they weren’t Originalists because if they had been, this country would have collapsed because one of the things, they theorized this all in the 1780s and when they got around to putting it in operation in the 1790s, they discovered that everything they thought was wrong. Nothing worked the way they expected it to. The President was way more powerful than anybody thought. The Congress worked completely different than they expected. Federalism didn’t operate at all the way they thought and they adjusted all around this and made all sorts of changes, you know, from what they had expected, from what we know of what they expected, at the time they wrote the Constitution and we’ve been doing that ever since. So, the answer is, the reason I think the text still works is because it has been something that we, as a people, have been remaking all along, from the very beginning and will continue, hopefully, to do so. – [Dante] Our last question. – [Student] Hi, thanks again for your talk. So, John Alber, just recently did a segment on elected judges and the Supreme Court’s actually hearing a case on it, right now, coming out of Florida, so, I think there’s something like 39 states that currently have elected judges in some form, so I was–
– I think it’s 42. – 42 now?
– Yeah, I think so. – [Student] So, I was curious what your thoughts are on the trend of that, if that’s gonna continue or fade away, end up, to some extent and how you reconcile that with the idea that the Constitution’s grounded majoritarian rule? – Sure, okay, so and this’ll, again, these are, I should say, great questions. You guys, like, got, my law students have nothing any of you, so quick, little quick bit of history, okay, the Jacksonians emerge, right, in the 1820’s as a political power and force and one of the, oh, let me back up even a little more. The Federalists have control of the government for the first decade. They, then, get trounced by the Jeffersonians and essentially put into exile. The only move they have left is to try and do what they can to control the courts and the law and that’s a lot of what Marbury was about, but forget, you know, they lost that fight, too, but there are a lot of Federalist judges and they actually undertake a concerted, thought-out, self-conscious effort to wrest control of the law and they do that through a series of devices that include articulating the idea that law is like a complicate science that requires special treatment so that the people have no business doing it and it’s in this period that all sorts of changes are made to the trial system to take popular control of the law away and give it to judges and lawyers and that includes everything from no longer letting juries decide the law to making so that judges don’t have to ride around anymore in hearing cases and have a place were they can sit so there can be a library so they can write opinions, all sorts of changes, okay. By the time the Jacksonians are on, they don’t like this. They want to take control back and give it back to the people. Their first move is through codification, right, what we need to do is replace the common law, which judges control, with laws enacted by the legislatures, so now we have popular control of the law. They don’t get very far on that for all sorts of complicated reasons, so their next move is to make the judiciary elected, so that’s where the idea of judicial elections comes from. It’s a way to subject judges to the popular control of the people and it actually works quite well, at first. Now, one of the interesting things about this is this is where judicial review becomes a widely-accepted practice, so they do it at the federal level in 1803. There’s a fair amount of it in the 1790s and then you get Marbury in 1803 where, and then it really disappears from federal courts for a long time, but where it grows is in the state courts in the 1840s and 50s, after the judges are elected, because they feel really comfortable now, exercising the power, because they have electoral accountability, but that’s not the explicit justification and so it gets picked up. Now, it’s an established practice that has wide acceptance and the federal courts pick it back up again in the late 19th century, which is just an interesting irony. My own view is there are lots of ways to subject the judiciary to appropriate control by the people. So, take Europe, please, no (laughs). (imitating drum rhythm)
(audience laughing) The European, the modern European constitutions are all written after World War II, where they have lots of experience, including ours, but also their own and they come up with a really smart way to provide strong support for judicial independence with judicial review, even judicial supremacy, but have courts that are not gonna veer too far from where the political system goes and they do that by structuring their judiciary appropriately. The structure of the judiciary will be things like, first, we recognize that we have special constitutional courts, right, so most of our courts are civil service, but constitutional law, that’s political, so we pull it out, we put it in a special constitutional court and unlike the judges in the regular system who are civil service appointees, these judges require appointment through a political process. Second, we require, we require super-majorities to get those appointments through the legislature, so that we’re gonna force to the middle. Third, we make the judges have limited terms that are staggered, so there’s a constant regular turnover. Fourth, we make our constitutions easier to amend. So, that set of things enables you to have a strong independent judiciary, but always have sufficient control so that, you know, you won’t have someone who was appointed 30 or 40 years ago deciding cases for you, now, okay. Now, our Constitution doesn’t do that. Our Constitution doesn’t do that because, at the time they wrote Article III, no one was imagining the judicial review in anything remotely like what it has become. There are some people who have a vision of it, but it’s in that mild version of, the departmental version. Most of them aren’t thinking about it at all. The independence of the judiciary is drawn from English common law practice in the colonial period where what they were worried about was direct interference in particular cases, so you needed to make the judges independent so that the governor or President or legislature couldn’t say, “I know he’s innocent. “I want I’m convicted anyway and if you don’t do it, “I’m gonna throw you out of your job or cut your salary.” So, we made this very independent court. Now, judicial review emerges and it’s like, oh my God, what are we gonna do? How are we gonna control the Court? We know how we can control the other branches, we can vote them out, but what can we do about the judges? And so, we cobbled together a system in practice using things that are, probably weren’t thought of as having this purpose, but that are legitimate. You can cut the Court’s budget, you can slash its jurisdiction, you can pack the Court, you can refuse to enforce its judgments and so on. Okay, so those are the devices that we use to control our judiciary. Now, I think, if I were starting over, I would actually restructure Article III along the lines of the modern European constitutions. Barring that, since it’s really difficult to do, I think we’re okay with that system which worked for us really well through most of American history and the reason it worked really well is once those powers are available, and known to be available, you seldom need to use them because Courts are pretty respectful, nor is it easy to use them if you’re an executive, but they have been used, right. Jefferson redid the rules in order to make it miserable, the job of being a Supreme Court Justice. He threatened not to enforce the judgments. Jackson threatened not to enforce judgments. Lincoln refused to enforce judgments; he just ignored Dred Scott and did all sorts of things, you know, before it was formally overturned. They, Congress, the Reconstruction Congress slashed the jurisdiction. Teddy Roosevelt and Franklin Roosevelt, both, did all sorts of similar things. Roosevelt, in the end, he didn’t need to pack the Court, because he got what he wanted, but he engaged in Court-packing. What judicial supremacy has been, has been the delegitimation of those devices. So, what judicial supremacy means in practice is that when the Supreme Court decides, you can protest. Nobody said you can’t disagree with them. You can protest all you want, but the only way you can change it is either to get them to change their minds or wait for some of them to die or get tired of the job and, hopefully, replace them with people more to your liking. Those other devices which were the other forms of push-back from the political system, judicial independence says, “Oh my God, those are violations of a Constitutional norm “and we delegitimated them.” Even though, I should say, before you say, “Yeah, of course that’s illegitimate,” so the Presidents who did this were, let me see if I got this again, Jefferson, Jackson, Lincoln, Teddy Roosevelt, Franklin Roosevelt, the Reconstruction Congress, not exactly a rogues gallery. Okay, so, now, I come back to judicial elections. In theory and at the time the Jacksonians did them, I think they were a reasonably effective way of finding the right balance; they worked pretty well. Over time, you gotta say that just is not the case. The reason that’s not the case is because the same forces which have completely wrecked political campaigns in the political domain have also affected judicial elections, so, now, that’s, it’s not a good device. It’s really hard to defend. I would get rid of it, but not in order to install a judiciary that was completely free from accountability to the society. You just need some, some way to balance independent judges with a dependent judiciary. – Unfortunately, that is all the time we have. Please join me in thanking Professor Larry Kramer. (audience applauding) – Thank you.

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