Constitutional Ethos: Liberal Equality for the Common Good
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Constitutional Ethos: Liberal Equality for the Common Good

September 14, 2019


>>David Ferriero: Good afternoon. I’m David Ferriero, the Archivist of the United
States, and it’s a pleasure to welcome you to the William G. McGowan Theater here at
the National Archives for: “Constitutional Ethos: Liberal Equality for the Common Good”
with our special guest, author Alexander Tsesis. Before we get started I want to tell you about
a few other programs coming up soon in the McGowan Theater. On Thursday October 5 at 7:00, a panel of
judges, lawyers and experts will explore the legacy of the four women who have served on,
and the 726 women who have argued before the U.S. Supreme Court. Panelists include Judge Patricia Millett,
Sarah Harrington. The program is presented in partnership with
the Constitutional sources project. Friday October 13 at noon we present James
Holland, the allies strike back. In his book Holland chronicles, Germany’s
invasion of Russia unfolding in the east. In the west Americans formally enter the war
and the bombing of Germany escalates. Mark your calendars for October 17 at 7:00
p.m. We’ll host our next Vietnam related program. Journalists and author Cokie Roberts will moderate
a discussion with Ken Burns and Lynn Novick. Directors of the PBS documentary, the Vietnam
War. This is one of a series of public discussions,
book lectures and other programs to be presented in conjunction with our upcoming exhibit “remembering
Vietnam” which opens November 10. Consult our monthly calendar of events online
at archives.gov. As you know the National Archives is the home
of the Declaration of Independence, the Constitution and the Bill of Rights collectively known
as the charters of freedom. It’s our pleasure to preserve and share these
founding documents that have guaranteed the rights and freedoms of Americans for over
230 years. Today’s program, “Constitutional Ethos” pervasively
demonstrates the relevance of the Declaration if Independence, the preamble to the Constitution and author Alexander Tsesis skillfully uses
history, doctrine and philosophical analysis to demonstrate contemporary issues from health
care to campaign financing and public accommodation law. Reviewing the book, the author of “Framed,”
says he develops this argument about America’s Constitution of ethos by paying much attention
to the much too ignored preamble of the Constitution. He consistently offers insights about the
merits of fully integrating the preamble into the way we think about the Constitution. The Raymond & Mary Simon Chair in Constitutional
Law and a Professor of Law at the Loyola University School of Law. He teaches Constitutional law First Amendment,
civil procedure and seminars devoted to civil rights issues and Constitutional interpretation. He’s a frequent presenter to law school faculties
nationwide on issues involving Constitutional law, free speech, and civil rights. And he’s an editor of the Cambridge university
press studies on civil rights and civil liberties. He’s been an expert witness for the Canadian
domestic Department of Justice. His articles have appeared in the Columbia
law review, Cornell law review, Minnesota law review, northern and Texas law review. And his books include “For Liberty and Equality”
the life and times of the Declaration of Independence, we shall overcome. The history of civil rights and had law. 13th amendment and American freedom. Legal history and destructive messages, how
hate speech paves the way for harmful social movements. He’s also the editor of promises of liberty,
the history and contemporary relevance of the 13th amendment and the author of “For
Liberty and Equality” and we shall overcome. Ladies and gentlemen, please welcome Alexander
Tsesis. [Applause]
>>Alexander Tsesis: Thank you so much. It’s an honor to be here. And I’m deeply grateful to the staff at the
National Archives and especially Doug Swanson who began work on this, David Ferriero for
coming today and Susan Clifton for hosting me as well. Thank you all for coming out on this beautiful,
hot afternoon. I don’t know if you were here for me or just
to get out of the heat, but it’s good to see you. I want to take a look at documents which this
institution is so critical in housing and bringing attention to. I’ve been here before where there’s a long
line out to the street with people curious about the document. But we know that what’s important is not the
physical manifestation of the document. Why do we have guards? The guards are not just here because of the
physical parchment, but because of the principles that parchment imparts on us as a nation. And the message also that it sends to the
world. Not only about who we are, but what we stood
for and what we’ve been able to overcome in our own national history, which has so many
faults. Over the last two and a half centuries, America’s
founding commitment to the preservation of inalienable rights to life, liberty and the
pursuit of happiness has influenced the development of law and culture. The Constitution set a framework for carrying
out the national mission to establish justice, ensure tranquility, promote the general welfare. Constitutional law has provided aspirational
goals and sovereign mandates as well as just basic structural mechanisms about achieving
a fair treatment for a better national community. What I want to do today is lay out some sort
of road map before launching into it. Is to first speak about the sources of Constitutional
theory, or to do a bit of introduction before that. And then to speak about the theory that I
have in this book, this “Constitutional Ethos” book, which is before you. Talk about the various competing theories
to try to place the argument within other scholars, as well as judicial interpretations
of the Constitution. And then finally discuss the contemporary
implications of what I’m trying to do. Before I get to the contemporary and the applicability,
I need to tell you about this methodology of trying to understand the Constitution. Which once I hit the theories, you’ll see
is unique and quite distinct from what the main trend was. I’ll tell you a bit of a curl. I don’t know how much of a secret of the book
it is. I was trying to get at the core principles
of the Constitution to give kind of an ah-huh. It’s always been there, but to see something
others had not polled, did not quite set. But for us as a people to say, oh, this really
appeals to me whether I’m liberal or whether I’m conservative. Because to take this document and give it
to only to the liberals or conservatives or moderates for that matter, would be holding
these documents and doctrines hostage to the political whims of the day. My book “Constitutional Ethos” develops an
understanding of Constitutional law that’s built on our government’s duty to set policies
beneficial for individuals and the general welfare. These things are typically separated. Typically, we have a liberal theory, which
is not liberal in the democratic party sort of sense. But liberal theory in the sense that it says
keep government off our back and protect individual rights. Or the Republican theory which has something
about general welfare and government has to act on behalf of society. And those are the two principle focuses. I think that’s a mistake. I think in reality, we have a Constitution
bound in two ways. The Declaration of Independence speaks about
inalienable rights of individuals. The preamble of Constitution speaks about
general welfare. There has to be a convergence of those two
things, which everybody for some reason misses. Not because of ignorance, because it isn’t
ignorance with the astute people. It’s because they don’t think these things
can work out together. That they cannot be synthesized. Whereas our Constitutional documents say in
fact it’s an article of faith that they must work out together and that all three branches
of government have to fulfill them. A pluralistic society like ours must respect
dignity and use its power for the entire body politic. This is an objective ideal because it is set
irrespective of legislative or judicial pronouncements. American history, running through all of the
injustice that have been committed, like slavery and Japanese internment and Indian removal. Just to give a kind of very maybe course contrast. Because if you think about something like
the Nuremberg laws, Germany, never created a society where it would retain its primary
documents and it would be just. It was built on an injustice. You could say that with the communist party
as well, where there’s a one-party rule with only one concept and you can’t break into
a pluralistic society of multiple ideas. The fundamental social ethos of human equality
and set the basic structure of governance. Discussions about the Constitution often put
individuals at logger heads with society. I think that human productivity can best flourish
in a society of equals where talents can be brought to bear in the betterment of self
and other members of the community. What’s the relevance of that? Because it sounds too philosophical. The relevance is quite simple. Typically, it’s thought if I get something
and my group gets something, the Democrats, the Republicans, the this race, the that race,
the whoever you’ve got. That’s going to be really good for us and
that’s what we want. We want that’s good, right? But ultimately, I think that amounts to something
ill and in fact, sometimes very, very evil. So that the white slave holders thought that
they were benefiting themselves and they were having a better life. They didn’t have to clean up. They didn’t have to cook. They could exploit this help, and yes, the
help was worse off, but there were numbers that were smaller. What wound up happening because of this thought? Us here and they get a small piece of the
pie. A greater happiness of us and therefore things
are better off, and that’s a good way of society. What happens? You get a Civil War, that’s what you get. The way to think of it is not that there is
us and there is them, but rather there’s just “us” and therefore where one is hurt, the
entire society is hurt. Because you get 100%. So, if you get harm to the one, then you get
a diminution of happiness for its entirety. So, it’s just us. That’s what we’ve got is us and beyond us
as a people as United States citizens, is we have the wealth of the human community. I believe that’s what Jefferson and the founding
founders and George Washington and Madison and all them. The way they envisioned it is they would create
a society of human rights of the world. They were hypocrites, no doubt. Not only slave owners but in their treatment
of Haiti when it sought independence, because it was black, not respected as an equal sovereign. But the ideal was there and the ideal stuck,
and the ideal was one that allowed then the reconstruction era and the radical Republicans
of the 1860s to speak in terms of fundamental values that existed in the declaration from
the beginning, were not followed. Truth be told, few academics and even fewer
courts rely on the Declaration of Independence and preamble of the Constitution to establish
firm ethical commitments of government. Unfortunately, nearly all Constitutional scholars
exclude them from discussions about how to interpret the Constitution, Bill of Rights
and other constitutional amendments. That’s true of the preamble. Speaking plural and I use the pronouns. It’s not just the declaration they exclude,
but the preamble itself which the Supreme Court has consistently said is not substantive. It’s like saying the equal protection clause
is not substantive. It’s never been used before. That was said at the early part of the twentieth
century until the court turned that around in brown versus Board of Education. So the Declaration of Independence and the
preamble at this point are almost ignored unfortunately. But they are key to the deliberative popular
dialogue about our representative government. Together they describe the purpose of government,
the sovereign rule of the people, the ideals of the United States and political representation. They render certain motives for laws that
say prejudice, hatred, bigotry, chauvinism, viewpoint discrimination, suppression, censorship,
to be illegitimate. The key point is that they are not illegitimate
solely because of those amendments, which often are so obscure. You take the First Amendment to free speech,
well, what about laws about antitrust? That’s a limitation of speech. Trademark law? What about securities transaction laws? Free speech. It’s absolute? No. Because we have certain principles about the
betterment of society that trusts and violations of securities laws. They protect and therefore it’s not absolute. So there’s something more core, more fundamental,
more at the base of our Constitutional ethos that is beyond, even more fundamental and
bedrock than those Constitutions amendments themselves. In a society of free and equal citizens, everyone
has his or her own priorities. Therefore, the preamble and the Constitution
direct the holding the reins of government, must seek the general welfare. Not any individual, not any group, but the
general welfare. The United States Constitution, like Constitutions
throughout the world, establishes a system of governance with structures, procedures,
and substantive norms. Its terms of broad enough to facilitate legal
development without having to ratify new versions that meet changing demands of modernity. The United States Constitution and Declaration
of Independence are ancient documents. Indeed, the national Constitution is the oldest
in the world. Their clauses were composed at a time when
the art of Constitution-making and popular sovereignty were little understood. Inevitably they are chock-full of ambiguities. What does the due process mean precisely and
what is the pursuit of happiness? How about how specifically should the government
provide for the safety and happiness of the people. What are the privileges or immunities of American
citizens? And by the way, what acts or high crimes or
misdemeanors. We just had that conversation fairly recently,
what constitutes a high crime and misdemeanor and what is good behavior in office? These are all ambiguous. These and a host of other questions do not
have simple answers in the text of the Constitution. It Constitution’s open-ended clauses and the
declarations aspirational statements about human rights, representative governance, equal
citizenship make them the best source for political debate and judicial decision-making. In the end, we are left with supreme legal
authority that remains stable but requires regular rethinking, reinterpreting and reunderstanding
within contemporary contexts. This is not just a matter of theory. Enforceable mechanisms are central to guarantee
individual rights for the whole body of our government. However, procedural restraint on government
are by themselves no guarantee without violation of rights. I’ll speak about that. I just — I’ll speak about that in a little
while. The procedures themselves are not enough to
protect our rights. Pursuit of happiness and inalienable rights
laws are also critical. The whole Constitutional system depends on
aspirational ideals, the Constitutional text must remain the source of authority. As opposed to Great Britain or Israel where
the Constitution is unwritten. And that’s fine for them, but our system we
have a written Constitution, so the text does matter. I’ve been speaking about aspirational ideals
so now I want to talk about the text. In addition to determining how the Constitution
applies to specific circumstances, there is something more that needs to be done. Courts typically look at doctrine, they look
at the text, or they look at what the courts have said in previous decisions. But I think even more important than that,
often are matters of culture, history, social conditions, and of course, the specific context
within which the dispute arose. Our history, the feminist movements, first
wave, second wave, and onto today, the reconstruction history. Reaganomics, what have you, they all play
into the way we think about our Constitution. I think it too limiting to base decisions
only on the perspective of the Constitution. Contemporary values of equality, liberty social
welfare are very important to make this ancient document relevant to our cyber times. But a stable foundation must remain. One that permanently respects human dignity,
while recognizing the value of history and ethical advancement. And I think that’s a lot of what goes into,
for example, the new recent case found that gay marriage is Constitutional. He read it in broad terms. Justice Scalia took him to task. Justice Kennedy had a deeper broader vision. Which is that marriage was about something
about — not only giving dignity to the couple, but to their children as well. That is an advancement in ethical thinking. It takes the core, it takes the original document,
but it takes a step beyond certainly what the framers of the 14th amendment could have
thought. While statutes can be changed to reflect political
preferences that emerge with each elections, a written Constitution sets expectations that
transcend political debates between parties and their leaders. The Constitution sets a skeletal structure
for the protection of the people’s will to enjoy their rights on an equal basis without
arbitrary restriction. Constitutional provisions like the Unenumerated
Rights Clause of the ninth amendment establish that an underlying ethos permeates the written
text. While it stabilizes legal institutions, the
Constitution’s wording is too much to lend one specific answer. And that’s why we debate and that’s why we
have the First Amendment, and that’s why deliberation and dialogue are so important to us as a people. The Supreme Court actually used the provisions
of things like the equal protection clause, believe it or not. And used the Declaration of Independence to
protect inequality. And this is to stress the importance of aspiration
and principle. Let me tell you what I mean. In Ferguson, a case that upheld segregation
on railroad lines, the U.S. Supreme Court said that the equal protection clause meant
that separate but equal was all that was necessary. And if you look at the text of the equal protection
clause, there’s nothing that says anything other. You have to go beyond it to look at something
else. Look at what? Well you could look at contemporary principles
of the day, and those were there, I believe. They had been planted by the reconstruction
and by the United States founding as well. But on a deeper level, they also come from
the Declaration of Independence. That which is why if you look at the debates
on the 14th amendment on the equal protection clause, they’re chalk full of references to
the Declaration of Independence. Some of it’s almost nonexistent amongst today’s
Congressmen. Based on these things we get the Warren court
with Chief Justice Earl saying in Brown Versus Board of Education, that couldn’t mean separate
but equal, because that would harm the dignity of individuals. And in brown versus Board of Education recapturing
what the idea of equality was, that we would all be integrated. That we would all be merged in a synthetic
general welfare. So that this misinterpretation of the equal
protection clause was based on a wrong textual reading, one that was not adequately principled
enough. When the ideals of the declaration were joined
with moral principles, that was when we understood. What about what I said about slavery? Well, Chief Justice Taney said in Dred Scott
that the Declaration of Independence must only apply to white men. Why only to white? Because they’re the ones who wrote the Declaration
of Independence, right? Of course he had forgotten the first to fight
on the Boston commons was a black man. Beyond that the Declaration of Independence
speaks about inalienable rights, the pursuit of happiness and it doesn’t anywhere mention
anything about race. So this ideal could be something that could
be born in the heart of abolitionists, in the hearts of slaves, in the hearts of free
blacks, and could embolden them and make them patriotic. Justice chief made a mistake that was not
only a mistake later at some time, but based on the principles on which the country was
built, was absolutely wrong. The Constitutional rights that I speak about
and the ideals in “Constitutional Ethos” demonstrate a stable principle of accountability that
is needed for maintaining Constitutional norms to deal with institutional, cultural and historical
changes. Constitutions theory must accurately describe
our country’s aspirations, criticize failures, clarify goals, and provide trajectories for
social improvements. As I indicated earlier, the principal comes
from the Declaration of Independence and the preamble has gone into all these different
amendments. The founding documents statements on government
are general enough to make broad ideals binding on government and all official actions, because
this ethos is Constitutional. It is obligatory on the president, executive,
legislature and judiciary. While I want to say something that says almost
like a truism, court almost use the declaration and it’s scarcely used and mentioned. Justice Roberts used it in a bankruptcy case
in passing to see the judiciary has to be independent. Why? Because king George III didn’t allow it to
be independent. It’s one of the paragraphs in the Constitution. So we can use it, but there’s lots more. There’s the prohibition against quartering
of soldiers which goes into the third amendment later on. And the preamble and the Declaration of Independence
are at the roots of this ethos. What I mean by Constitutional ethos, I imagine
that comes up in your mind. What I mean by that is a pithy statement. I was taught by a philosopher many years ago
that in order to have an idea, it has to be short — to be influential, it has to be short,
understandable and memorable. So this is what I come up with in the book
that I try to prove. The underlying purpose of government is secure
equal rights for the common good. It’s just that simple. And everything else stems from it. Provide equal justice for individuals for
the common good. A simple statement, but it’s the overall expectations
that people have to be treated justly. It’s value is both theoretical and to apply
to specific actions and for practical applications. Structural portion of the Constitution, those
granting powers, as well as assigning spheres of responsibility, and establishing methods
for deciding conflicts, all serve this normative goal. The state’s sovereign authority derives from
the will of the people, whose vital interests public officials are charged to safeguard. We see too much partisanship these days of
people trying to serve their respective political party rather than trying to serve the American
people as a whole. My formulation takes into account the intrinsic
value of each individual, but also the need for formal assessments of how law impacts
the relevant communities. The theory we’ll encounter — obviously, we’ll
encounter resistance. And I want to look at some of the ways that
these might come up. I’m skipping ahead in the interest of time. So first, before I move on to all the theories,
which I think are important to contrast and compare to the one I’ve set out. Let me just sum up first, what I’ve been talking
about. This book elaborates the foundational theory
of United States representative democracy. My principal focus is on Constitutional government,
unlike most studies of Constitutions theories which tend to focus only on adjudication. Almost all of our interpretations of the Constitution
comes from the courts. Ever since the early portion of the 19th century
when chief justice marshal said we say what the Constitution is, that’s the way it’s been
interpreted. I think that the preservation — it’s fascinating
because the court uses the declaration in the preamble so little, it’s left room for
the people to be able to voice their ideals to their representatives. Not to act on their own, because we’re still
a representative democracy, not a super majoritarianism, which might often spring into a tyranny. My principal focus is on — the statement
of national purpose must be general enough to enable government to advance policies and
safeguard individual rights and to exercise authority. And the people must benefit from the stable
government. So what are some of the theories that are
the most common that are opposed to this way of thought? One is, and perhaps the most obvious is textualism. It simply says we take the text of the Constitutions’
binding and the text doesn’t — there’s no other rights beyond the text. All that exists are laws that either are embodied
in statutes or specifically stated in the Constitution. And to that, I say again, that there’s just
too much ambiguity, too much uncertainty. There’s always been interpretation. Even something as core as what I mentioned,
Madison, a case that said the United States Supreme Court is the final arbiter, final
decider of what the Constitution means. Or even that the United States Supreme Court
can even examine whether or not the legislature, Congress, or administrative bodies under the
executive branch, have acted in violation of the Constitution. Even that’s not there. You don’t even have in there that the government
can make paper money. There’s a whole long debate at the end of
the 19th century. So that the textualist approach I think is
far too narrow. In fact, it often serves as a fall for modesty. A false type of modesty. Oh, you know, I’m giving you my opinion on
the text. I’m not giving you my own opinion. My opinion on the text is based on the text
and nothing more than the text. When you look at it, there’s often politics
involved, personal interpretation and subjectivity. Another method that’s used, and this one is
much less in the public eye as much as it’s extremely influential amongst political scientists,
legal historians. It’s something that hopefully many judges
would be well versed on. And that’s something called structuralism. This says that the function certainly at least
of the courts, is not to protect individual rights, per se, unless they’re specifically
listed. But the structure of the Constitution, and
this structure is one, that is for example, one of representative democracy. So if you don’t like an opinion, Herbert Rexler,
for example, a famous scholar, Harvard professor said in the 50s after brown versus Board of
Education came out and Judge Friendly, another major leading right circuit court judge said
Brown versus Board of Education was wrongly decided. Why? It’s not in the text. It should be decided based on structure. So structure has to do things like representative
democracy. So maybe you could have this statement against
segregation in schools, but it has to say that well, for democracy to function better,
there has to be desegregation. Something along those lines. Where I want to say no, there’s a fundamental
right of dignity involved. Chief Justice Warren got it right, that the
problem with black kids sitting in separate classrooms than white kids goes beyond our
whole system, but their individual rights and the fact that they’re thought they can’t
function well the of in a classroom where there’s students of other races. One of the leading acolytes, a brilliant man
named Phillip Bobbit, professor at the University of Texas. He has two appointments. He says what we really have a just a grammar. It’s not principle. It’s there’s a grammar. So if you use the right grammar or the right
semantics, then you speak correctly about the Constitution. He says the right grammar, the Constitutions
would be spoken of either as text, as history, as structure, as doctrine, which is court
created law. As what is accepted as social ethics. Not to say there’s any core ethic. What’s prudence, what’s pragmatically good? I think what’s missing in that interpretation
is anything about ideology. The reason why the Declaration of Independence
is read throughout the country on the Fourth of July is because we think there’s some sort
of an idealist. It’s not just let’s use language and if the
pursuit of happiness, will simply mean what Chief Justice Roger tawny said, just towards
white men. He’s used the language after all, right? That to me seems a very, very problematic
interpretation. That there has to be something that the country’s
committed to beyond, well, here’s the way we use the rhetoric of this. And the government’s requirement to secure
safety and happiness is not just a matter of some politician standing up and using the
right words so that we all feel good and the polls say to him, you can get the votes by
using those words. But rather, that this person seeks the actual
safety and happiness of the people. The Declaration of Independence and the Constitution
codified the political ethos, predicated on the people’s decision to enter a political
compact with the power to pass rules, maintain life, liberty and the pursuit of happiness. Another leading interpretation, and this is
one, again he’s are things I discuss in the book. But they could be very easily recognizable
to Constitutional scholars. One put forward by Robert Dvorak. He says there’s a correct answer to any question,
and the judges, not real judges but a hypothetical judge, Hercules, he’s going to be able to
say what’s the correct answer to any different question. Well I think that puts far too much credence
in the judiciary. I think it is almost naive to think there’s
going to be a correct answer. I think the function of our government is
to debate. Which is why Congress debates, right? And that’s a great thing. We have different point of view said, and
you convince me, you know? I wish it was less partisanship, but that’s
the function of it. And I also think what he’s missing is he doesn’t
say what the source of that ethos is. And there I think we’ve got to be anchored
in our formative documents. The final two theories I think will be easily
recognizable to anybody who reads newspapers on a regular basis. And those are originalism and moving Constitutionalism. The originalist theory is that interpret the
Constitution precisely the way the framers wanted it to be. Before moving on, this as it was originally
formulated has combusted. The original major thinking of it was Judge
Bork who was up for Supreme Court Justice and was never put on had court. The early interpretations by oh, not only
the justices, is what we have to look at is the original intent of the framers. This — there’s almost no originalist that
believes this. Legal originalists currently, Steven Kalbrazi
and others don’t believe this. First of all it was impossible to tell who
were these people, the original framers. Are they the people in the state ratify conventions? We don’t have enough to tell what that was. And they were the ones who ratified the Constitution
after all. Were they the people who were debating the
clauses of the Constitution? Not everybody spoke in Congress who debated
it. There were only a few leading people. And what were their original intents anyway? They said one thing in Congress just like
now, they say one thing in Congress and they have other things they are their concerns. Some people will speak less and some more. The current reading originalists the real
the unusual people currently — influential people currently, and people continue to be
tremendously influential are people who continue to believe in the original meaning, not original
intent. Original meaning or the original reasonable
interpretation. What does that mean? They say look, OK, it’s true we cannot tell
who was the original intent. Who can tell what the intent is. We can look at the dictionaries. We can look at what would the ordinary person
mean when he said free speech or due process. The things I mentioned before. That’s very problematic because dictionaries
say different things, newspapers say different things and you’re not really going to get
at what a common person thinks. People use words differently. Think about just basic terms we use on a daily
basis. Love
and friendship. Living Constitutionalism is the opposite way
of thinking, and that is one that Justice Brennan for example, espoused. This says that the Constitution is a living
document. That it has to be — it’s an arrogance to
think — to use originalism as Justice Brennan said, and that the Constitution has to be
thought of as living, evolving document in the development of ethos. I think the problem with that theory is it
doesn’t tether or anchor it to anything. How would we know whether the current ethics
of the day is the one that’s our Constitutions ethics. It has the opposite problem of originalism
I think. I think where we go is we have this core Constitutional
foundation that’s based on our preamble, based on our Declaration of Independence. And it evolves from these foundational documents,
takes into account our con temporary ethics, our culture, the specifics of the problem
of the day. But that isn’t just floating out there by
contemporary standards. Let me tell you how this applies to some recent
issues. Perhaps now I will go into something that
is the most controversial part of the presentation, because when we get to contemporary politics,
the issue gets much more strained. How would I think that the theory can be applied? One thing is to campaign finance reform. The court in cases is very famous, appears
throughout newspapers around the United States. Citizens united. Began unraveling some legal barriers against
political corruption when it found unconstitutional a key provision of the bipartisan, and I stress
bipartisan, campaign reform act. The court decided that for profit corporations
have the same political, the same political free speech rights as natural persons. And therefore, the federal law subjecting
corporations to special restrictions on their efforts to influence political campaigns violated
this entity, Citizens United’s First Amendment right to fund campaign speech. Citizens united was trying to get a movie
that was antagonistic to Hillary Clinton when she was running years ago. Not this campaign. Out there to the public. Maybe they should have been able to do that. The more difficult problem in my opinion is
the actual decision and the way this thing came out. Maybe the judgment was corrects. I’m not going to quibble about that. I’m happy to do it if a question and setting. But that a corporation has free speech rights
— campaign finance laws targeting corporations,
any meaningful consideration about the contrasting role between artificial, for profit persons
such as businesses and natural persons, ordinary citizens. Organizations voicing collective views of
natural persons. Citizens united, an association of citizens
or the — the pursuit of happiness and the inalienable rights
clause of the Declaration of Independence and the general welfare clause of the preamble
provide natural people to participate politically in their self-advancement and social wellbeing. For profit corporation on the other hand are
not formed to advance inalienable equal rights but commercial interests of their investments. Hence in the free speech realm, commercial
speech is not treated identically with political speech, but receives low level judicial scrutiny
because increasing profit margins are not the same thing as advancing representative
government. By definition, corporations and their officers
always have a profit making obligation. That’s their fiduciary duty. And their expressions for commercials go to
that. So I’m being told I’m running out of time. Let me rush through a couple more examples
then open it up to questions. Another issue I believe is judicial supremacy. The Supreme Court takes it upon itself to
be the sole interpreter of the Constitution and therefore has struck down United States
laws, congressional actions over and again. Bipartisan laws. For example, the violence against women act,
which was an incredible bipartisan act. Now limiting the Voting Rights Act of 65. These are bipartisan efforts. And yet the court time and again says that
we are supreme and we can interpret. But we the people seem to be sovereign. And that is through our representatives. I would say that where the court is protecting
rights, Congress cannot violate those. But where it is limiting Congress’ ability
to protect rights, there should be a supermajority such as a veto power. Make the majority what you will. There’s nothing in the Constitution that bars
it, to reconsider what the court has done. And I can speak about a couple other things. Maybe we’ll do it in question and answer. Let be stop now, and if you have any questions,
if you wouldn’t mind please going to the microphones. Thank you so much for your time. [Applause]
>>Thank you so much for your talk. I’ve never heard — I’ve been to many lectures
and many places about political theory. I’ve never heard such a succinct, inspirational
review of who and what we are.>>Alexander Tsesis: That’s very kind of you. Thank you.>>As Americans. Question. Of course, in today’s climate, political climate,
we’re far away from these ideals and governing principles that you speak of. How often in U.S. history have we been this
far away? I contrast that with my own youth years, which
are far in the past now for me. Of the 1960s, when there was fervor for these
principles. It was in the air. And I would have never predicted that 50 years
in the future, here we are. But how often have we been away from what
you speak of, not only in today’s world, but in U.S. history. If you have some sketch of that.>>Alexander Tsesis: Thank you so much that
question.>>Thank you.>>Alexander Tsesis: The unfortunate thing
is that American history has had times when we’ve deviated significantly from our aspirational
ideals. I’ve spoken about specifics, but let me speak
about times. The treatment of native Americans and the
decision to take them off of the land was certainly a horrible deviation. We still think of Jackson as being a hero. He’s on our $20 bill. But during his time, I must say, he had a
nickname, which was king Andrew. We forgotten that now. But if you look at the contemporary newspapers
of the day, they would say that often. So I think the times of Indian rule were certainly
that. I think that another time was when Pierce
was president, Buchanan was president, and Fillmore as well, during the 1850s, leading
into the Civil War, when there was a rolling over to southern interests in slavery. Was another time when we were very, very far
from the ideals and the principles for which this nation stands. But it goes much deeper. The nation’s treatment of women is how 50%
of the population, more than 50% of the population, how it couldn’t have been understood that
the pursuit of happiness could have meant half the population — not to mention, blacks,
and native Americans and those other cultures that were not respected is almost unfathomable. All men are created equal. That’s true, but the way that the feminists
understood it during the beginning of the 1830s with the Grimke sisters and Susan B.
Anthony and Lucy stone and the like was that men means humans. Well you might say they’re just interpreting,
but not really. The Constitution does not use male until the
[Away from mic] section. People understood men to mean humans. You may quibble with the words and say that
not a good word. It’s too ambiguous. Maybe it is. But there were other times. Another time I might say quickly is when Thomas
Jefferson was very — who is the author, of course, of the Declaration of Independence. Was deeply committed to antislavery. By 1820, by the compromise of 1820, which
separated slave states, regions from non-slave regions. He had really given in to saying there’s nothing
we can do about slavery, even though in his youth in the 1770s, it was a different story. I wanted to say everything is flowery and
great through history. I think these ideals that have carried us
until now, I would say we’re still on the horizon.>>A question about the write-up that introduces
you. It specifically says expert witness for the
Canadian Department of Justice. Could you elaborate on how that applies to
Constitutions law and how it’s interpreted by other countries. Perhaps Canada or others who have taken parts
of it and applied it to their own law.>>Alexander Tsesis: Thank you so much. I was witness to the Canadian Department of
Justice on the issue of hate speech. So it’s not particularly pertinent here, but
I’ll be glad to answer because you asked. United States laws on hate speech are much
more protective. What happened recently with Ku Klux Klan rally
is an example of what I believe is a problem with the way our First Amendment is interpreted. Whereas Canada and other countries believe
that dignity and democracy and pluralism sometimes trump free speech, and I believe that as well. Because the Nazis showed the power of speech
and those who supported Indian rule showed it as well. The Hutus did in Rwanda in calling the Tutsi
and Yensa cockroaches. So they had me come out and testify as an
expert. It’s actually things that were mentioned in
my first book. Mr. David Ferriero mentioned that book. Destructive messages. How hate speech paves the way. Terrorist speech can be limited without violating
the First Amendment. I continue to work in this area. But I think more pertinent to this particular
talk is the second parts of your question. And that’s how it compares to other countries. What interesting is that our declaration with
its statement of rights and its preamble is very unusual. Most Declaration of Independences, especially
of that time, Latin American Declaration of Independences for example did not have any
statements of right. They simply said why it is they deserve their
independence from the colonial power. So we have this unique — it’s not entirely
unique in today’s standards. There are now declarations of independence
that in fact do have human rights values. But the United States Declaration of Independence
— Haiti was another one that had a statement of rights. But almost nothing had them. Not Venezuela, not Colombia and other countries. Also, I guess I think beyond that, and this
is something that I need to bring more proof to, is that I think our declaration really
inspires people around the world. So I hope that answers your question. Maybe if not, you can follow up.>>Another question you talked about, interpretation
at such time and dictionary definitions of words used. We know of the Constitution trying to be amended
and continue trying to be amended. Other than equal rights for men, the Declaration
of Independence being a controversy as far as how it was written and language that’s
in it today. I’m just curious if there were points of interpretation
there or someone saying we need to amend this Declaration of Independence in a current time
or future time.>>Alexander Tsesis: You ask really profound
question. One is — I feel like I’m going to forget. Let me write a couple words here. So three things. One is that the amendment process is tremendously
difficult in the United States. Not so around the world, but because we need
such a supermajority. So I think principal and the reason why we’ve
been able to achieve such great strides is because of our ability to amend the Constitution’s
meaning without truly amending it. Through its formal processes. As to the controversy, the controversy was
to a clause that Thomas Jefferson sought to include, which was a statement against King
George for allowing the slave trade. Along the slave trade to exist in the colonies. That was the controversial statement. It was not a statement against slavery, but
against the slave trade. That’s a very unfortunate thing that was x’d
out. Because Jefferson wrote it in originally. But to placate — generally thought to be
the south, but in reality I think that the most convincing statements are that there
were only a couple of states in the south. I believe it was North Carolina and Georgia,
were the only ones who would not have signed this Declaration of Independence had not paragraph
not been in. A more controversial point. Here, who knows, maybe I just stand alone. I’m not sure. I don’t think the declaration is amendable. There’s no clause or provision in it, like
in our Constitutions says how to amend it. There’s no paragraph like that. So that means the only way you could amend
the Constitution is by a revolution. That would mean overturning an order in which
a government pursues happiness. Seeks the safety and welfare of its people. And protects inalienable rights. That would be catastrophic to me amending
that sort of ideal.>>Given today’s political climate, one major
deficit is in the politicization of congressional districts. It virtually renders the representatives of
Congress impossible to have thoughtful debate. How would you go about fixing today’s world? Your articulation of who and what we are,
I rarely hear that. I would hear it, I’m reminded of some very
famous speeches. But other than that, we don’t hear it. How would you go about fixing things? I mean that’s maybe over —
>>Alexander Tsesis: The Supreme Court is actually considering that in this term. I would hope that they will find that gerrymandering.>>That was the word I was looking for.>>Alexander Tsesis: I understood. The gerrymandering, when it’s done purely
for political reasons, is unconstitutional. And what the test will be, I’m not an expert
in it — and the Supreme Court has struggled with it, and it has not been able to come
up with a test. I hope this time it will. I agree. I think it’s critical for people to represent
everybody. Which is that people seek control and they
seek office. That’s just the reality of it. And I hope the court doesn’t– I hope it’s
not just something that favors parties. Thank you so much for coming. I’m deeply grateful to you for spending time
with me. [Applause]

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