Jack Rakove’s class on the future of the Constitution
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Jack Rakove’s class on the future of the Constitution

October 13, 2019


We could have a short quiz. Has it ever happened
to you guys? You ever get a
spontaneous quiz in class? [INAUDIBLE] Yeah, there is a
philosopher’s joke about why you can’t have a quiz,
a surprise quiz, that involves the kind of game if you
work your way backward from the last day of class. You cannot have surprise
quiz on the last day. So you eliminate that day,
then the next to last– it makes a kind of
logical sense, even though you know it’s crazy. But it has its own logic. Jack, whenever you’re ready. OK, we’re ready? Well, OK, I think I’m ready. So I’d like to welcome
you to the last lecture of the class, which will
be very different from what we’ve done previously. I’ve also been asked to
welcome all our viewers out in webcast-land or
podcast-land where they exist, and to note that this talk
will be available on Stanford iTunes in a few weeks. I’m not sure when. So if you want your parents to
see it, or share among friends, that’ll be fine. So the title today– “Time
for a Ticklish Experiment, or Should We Celebrate
The Constitution’s Quarter Millennium”– 250th
anniversary in 2037, when I still hope to be here
at age 90– god willing. It’s meant to– the title, as
you know or I’ll remind you, comes from Madison’s
49th Federalist, which we read in some
detail early in a class. I’ll say a little bit
more about it as we go on. The whole idea of
Constitution making as being a ticklish
experiment, I think, was central to
Madison’s thinking. And I want to use that technique
this morning as we go along. And I’ll start the
lecture by explaining why. But as I do that, first
thing I want to do is to tell you a little homage
to a late colleague of mine, Carl Degler who died
right after Christmas, two days after Christmas– my
closest friend in the History Department. I’m sure a number of
people out in webcast-land will remember him
as a professor. We had a little memorial
service for Carl on Sunday at the Faculty Club. And one of the
motifs that came up, I think my colleague Estelle
Freedman and others mentioned that Carl would
tell his colleagues, “Write what you teach.” And as far as this
course goes, I think that’s become
my intention. Because I now have the idea
of doing at least two books that would be kind of
constitutional histories. What I’ve thought of
doing, I would like to call a ticklish experiment. And like this
course, it would be a course that emphasizes the
history of the Constitution as a set of
institutions, rather than the history of constitutional
law as a set of decisions. So that motif that I’ve tried to
stress throughout this course, that when we think
about the Constitution, we’re thinking about a set
of governing arrangements. In some cases,
they’re important. But we don’t really
care all that much about judicial doctrine. So to write that
kind of history, I think would be kind of fun. And then the second
thing I want to do is– and I think I
may do this one first, though I need to wait at least
until the 2016 election– is to do a book that I’d like to
call Vices of our Political System. And the inspiration for
this would be the document that I hope you guys
remember very well, especially since it may or may
not appear on the final exam– Madison’s famous Vices of the
Political System of the United States, which I think is
just a wonderful document to work with as a historian. Because as I try to
suggest and remind you now, it’s an example of a
politician thinking in the active
sense of the term– not publishing his thoughts
to persuade others, but thinking
analytically for purposes of trying to figure
out what form an experiment in constitutional
reform should take. So the idea of doing a
book called The Vices of Our Political System at
a moment in American history where it seems to
me we are vexed with some quite disturbing
vices in terms of how we think our political and social
systems are operating– I think that would be a lot of fun. For a historian, it’s kind of
a curious endeavour to engage in, to kind of comment on
current events in that kind of way. It’s not exactly what
historians as supposed to do, but I feel my age, I have
First Amendment rights to say pretty much
whatever I think. And it might be fun
to try to do that. And when I do that, one
thing I want to make clear– and I couldn’t resist
putting this quotation up– Sai Prakash is a professional
colleague of mine who used to teach at the
University of San Diego Law School. He’s now at UVA Law School. He did a review of my
book some years ago, my book, Original
Meaning, I think 1997, ’98, in which at the start he
says, “In reality, Racove’s problems–” I may
have many problems, but I had to realize
this is one of them. “In reality, Racove’s problems
lie with the Constitution and the very concept of law. Whether he knows
it or not, Racove does not think much
of our constitution.” Nothing could be more false. I love our Constitution. It’s been good to me. I’m trying to reciprocate. It was good to my grandparents. If you look at my annotated
edition of the Constitution, it’s dedicated to the
memory of my grandparents, who whom I’m eternally grateful
that they came to United States about 110 years ago,
give or take, rather than staying in czarist Russia. I think that was a great
step forward for our family. So I love the Constitution
in lots of ways. But loving it is not the same
thing as taking uncritically about its properties. So what I want to do in the
balance of time remaining to me this morning is to
talk a bit about the American Constitutional experiment. I’m going to try to frame this
in somewhat historical terms at the outset. I want to talk at the
start about what I call two Madisonian
dilemmas, and the exercise I want to perform in the rest
of time remaining to me. But I want to start off
on a historical note. And then you can
see from the outline that I have three
examples of what I call here Racovian vices. This is not based on the
Racovian catechism, which appears in Socinian theology. We’ll put that to one side–
just my own assessment of things I’d like to change
about our Constitution. So let’s start with
this famous statement from Alexander Hamilton,
which appears in the opening paragraph of The Federalist. And I’m fairly sure I quoted
this earlier in the course. It’s been frequently
remarked that it seems to have been reserved to
the people of this country–“” I love the
“frequently remarked.” It implies that I think what
had been a revelation in 1776, by ’77 had become
something of a commonplace. Anyhow, “It’s been
frequently remarked that it seems to
have been reserved for the people of this country,
by their conduct and example, to decide the important question
whether society’s men are really capable or
not of establishing good government from
reflection and choice, or whether they are
forever destined to depend for their
political constitutions on accident and force. So this kind of remarkable
self-appraisal, which I think became very– as Hamilton
implies or says– really became kind
of a commonplace for the Revolutionary
generation– that what they were doing, the
experiment in which they were engaged, was a true novelty,
for which there really was no satisfactory adequate
precedent or antecedent. The whole idea that a
society could convene under the right
sets of conditions, and think rationally about the
form of government under which it wanted to live, rather than
to be governed by accident– which I think is a
code word for monarchy, because genetics always has an
accidental component if you’re living in a monarchical system–
or force, which of course means conquest. I think that’s a
remarkable revelation. And Madison picks up on this a
few essays later in Federalist 14, where I think he expresses
his own deep confidence in the idea that Constitutional
deliberation is something we are capable of doing. It’s not something
we’ve just inherited. It’s something that
any generation– particularly that generation–
was capable of doing. So if you look at this
quotation– “Is it not the glory the
people of America that whilst they have paid a
decent regard to the opinions of former times
and other nations, they have not suffered a blind
veneration for antiquity, for custom, or for
names to overrule the suggestions of
their own good sense, the knowledge of
their own situation, and the lessons of
their own experience? To this manly spirit”– I have
to apologize for the gendered nature of the remark, but that’s
how they spoke in those days– “To this manly spirit,
posterity will be indebted for the possession, and
the world for the example, of the numerous innovations
displayed on the American theater in favor of private
rights and public happiness.” You guys should remember
that Madison’s dual criteria of the public good consists of
protecting rights and pursuing public happiness,
or the public good. So in a sense, this is Madison
endorsing Hamilton’s position. It’s essentially the same point. We don’t need a
lot of veneration for the past, a kind of
slavish sense of deference to blind us to
the lessons we can draw through the force
of our reasoning. So this is Madison, I think,
speaking very confidently again for the experience of
the whole generation about the possibility of
Constitutional change. But on the other hand,
Madison would not be Madison if he didn’t want
to qualify those remarks, if he didn’t want to be
somewhat more– be more aware of the
trade-offs or be more open to the kinds of problems,
the kinds of difficulties, that you would entail. So of the text which I think
you guys remember fairly well, this is from
Federalist 49, which is the first of the two essays
you will recall where Madison goes out of his way
in the Federalist to criticize Thomas Jefferson’s
proposal for a allowing popularly elected conventions to
resolve constitutional disputes among the departments, which
I think is really a deep, very powerful meditation on the
dangers of allowing people to speak too often,
or perhaps too loudly in some matters
of public affairs. So what doe Madison say here? He says, “The
danger of disturbing the public tranquility by
interesting too strongly the public passions is a
still more serious objection against a frequent reference
of constitutional questions to the decision
the whole society. Notwithstanding the
success which has attended the revisions of our
established forms of government, and which does so much honor
to the virtue”– remember, virtue was a key term in 18th
century political discourse– “which does so much honor to
the virtue and intelligence of the people of America,
it must be confessed that the experiments are of too
ticklish of nature to be unnecessarily multiplied.” And obviously, you
can tell I love the idea of constitutionalism
as a ticklish experiment. Ticklish is a kind
of funny adjective to invoke in this context. It’s the kind of word we
come alive to when we see it. So I thought it would–
I put a lot emphasis in terms of coming up with
good titles for my book, so the idea of a book called
Ticklish Experiments strikes me as being kind of fun. But of course, the
argument can’t really inhere in the title. It has to rest on
something else. So this is my
point of departure. If we want to think,
as I try to do throughout this course in what
I call quasi- crypto- proto- Madisonian terms, try to think
like a Madisonian, whatever that may mean, thinking
about the trade-offs, thinking about what you want
to gain on the one hand, but the risks you might
run, is a helpful way to frame the problem. Might well be the case. In fact, you could make a
perfectly powerful argument and say it’s a very
strong case that however many vices or imperfections we
could identify in our existing constitutional
system, we don’t want to take the risk of
putting it all in jeopardy. Or maybe we just have a
deep enough commitment to the stability of our regime,
that the marginal advantages we might gain in
terms of improving the operations of
institutions aren’t really worth the transaction costs. They aren’t really worth the
instability you might risk. And also, as many social
scientists would say, we always have the doctrine
of unintended consequences. We don’t fully anticipate what
the outcome of events will be. There was a really interesting
constitutional experiment took place in Israel,
since Israelis have their election next week. But I think back in late ’90s
or the early part of the aughts, the Israelis went to a system
where you could actually vote outright for
the premiership, and then go ahead and vote
for your slate in the Knesset, in the Israeli
National Assembly. And what happened was, it
turned out to be a bad decision, because the appeal of being
able to vote for one of the two or three leading
contenders to be Premier had the collateral effect
of making it easier to vote for the smaller parties. in your second
vote, the vote cast not for the main leadership,
but just for representation in the Knesset. It had the effect of kind
of further multiplying the divisions within the
Israeli political system, which went to make coalition politics
all the more difficult. It was something– I think
some political scientists– I’ve heard from Israeli
scholars– anticipated this. The lawyers who were
involved in this didn’t really weigh the
political consequences the same way. After a couple of cycle
or two of the Israelis abandoned and went back to the
system they’re using this week. So we never know about
unintended consequences. And if you’re a historian,
which I’ve been trained to be, worrying about
unintended consequences is something
historians are supposed to be good at reminding other
disciplines of the danger of. So that’s one
trade-off, I think, in Madisonian terms–
pride in our capacity. We should be able to
reason by ourselves on the basis of evidence,
through deliberation. We should be able to
make improvements– a term they used– improvements
in the science of government on the one hand, versus a
real concern about transaction costs. Maybe we have an inherent
stake in stability that we don’t want
to jeopardize. That’s trade-off number one. Second trade-off I just
want to mention briefly– and actually, I have a
little illustration for this. So somewhere, I think,
out in the audience is a good friend of mine, a
guy named Sandy Levinson, who teaches law at the
University of Texas, and is a major recurring
critic of the Constitution. And this book, Our
Undemocratic Constitution– you might notice it goes
very well with my tie. We have the standard
illustration here. So Sandy is a strong critic
of all the multiple decision points that our Constitution
creates, and therefore all the barriers our Constitution
creates to having efficacious political action. And he attributes
a lot of the force of this to the
Constitution itself– to that 18th century notion of
divided government, balanced government, separation of
powers, checks and balances, and so on. He may be right, may be wrong. I happen to think– and this
is a kind of Madison exercise– that the boundary between
how many of our problems are determined by the structure
of the Constitution versus how many of them are determined by
the character of our politics– that’s a very tricky enterprise. How much this really reflects
the constitutional structure within which we operate, the
design of the institutions, the design the electoral
system on the one hand, versus what are the
political passions– or what I call on the
outline the life force, or in Madisonian language,
the interests, passions, and opinions that are coursing
through the body politic. That’s a real tough exercise. If you think back
to Federalist 37, that essay we also
paid some attention to at the start of course, where
Madison forces us to ask, what are the
difficulties of reasoning about political phenomenon? Where do you draw the boundary
between what’s constitutional and what’s political, where
these areas are permeable? So you can’t really be sure
is it a constitutional source or political source that’s
the source of your problem. That’s another issue I think
we have to keep in mind. OK, so those are two background
Madisonian observations here. In the balance the
time remaining, I want to spend some time
talking about my short list of Racovian vices. I really want to talk
about three issues. I’ll say up front what
they are, time permitting. It’s unlikely at the end of
the course, but you never know. I might try to squeeze in one or
two others by way of commentary at the end. But the three I want to talk
about– I want to talk first about the Senate
filibuster, and why I consider that so deeply
problematic in a fundamental constitutional sense. I want to talk about the
electoral college, which we spent a little time
about on Monday, when we discussed Bush v Gore. But I want to come back
and raise some issues about how that system works. And I want to say something
about judicial appointments, which we also discussed
briefly on Monday, and I want to come back and
try to say a bit more about this morning. So those are the three examples
of Racovian vices juxtaposed to Madisonian vices that I
wanted to discuss this morning. I see it’s only
about 10:15, so I feel I’m actually–
somewhat out of habit– I’m actually in
fairly good position to try to get through
most of these. From this point on,
the illustrations are all just meant
as visual diversions and won’t have any
substance value. This, of course, is a famous
slide from what great movie? Mr. Smith Goes to Washington. I think the last time I saw it
was at the Stanford Theatre, with Jimmy Stewart
who really, really, I think, one of the great
figures in American film history– a real hero. If you know anything
about his war service, unlike a lot of other
poseurs during World War II, he was the real thing. He was a bomber pilot, became,
I think, a wing commander. He wasn’t just a handsome
guy with the genial manner that he displayed on stage. So this, of course,
is the famous scene where Jimmy– I forgot what
the name of his character is in the movie– but where he’s
staging his famous filibuster. This is the scene where he
gets all the kind of letters that have been mailed in
by the machine bosses. I always thought it
was probably Missouri. I can’t remember was it
Missouri he’s come from? Whatever, someplace
out of the Midwest, which the machine has
kind of been cranking in to try to undercut his position. So this is the classic
depiction of a filibuster. OK, so let’s talk
about the filibuster. I may oversimplify a bit. It may be that the filibuster,
and the modern closure rules– the idea that in order
to close debate in the Senate, you need to have 60 votes. It used to be two-thirds when
the filibuster was primarily designed to protect the
South, or was primarily used to protect the South
against anything smacking of civil rights legislation. But remember, we talked briefly
about the Civil Rights Acts of 1957 and 1960,
which would up being too trivial, that one
commentator noted they weren’t even worth a filibuster,
because they weren’t going to do anything significant to
really affect, at that point, really affect the
South’s dominance. So my opening
proposition here is that the closer the
deliberation rules of the Senate come to a rule of decision,
the more the American people are deprived of their
fundamental right to be governed by majority rule. So that’s the basic
argument I want to make. So I want to try
to distinguish two modes of senatorial procedure. One is we want to
have rules of debate. And the others we want to
have rules of decision. So one is, under what
kind of procedures should the Senate
be allowed to act the role it’s supposed to
act, the role Madison actually talks about very
positively in Federalist 62 and 63 that serve as a restraint
on impulsive legislation, or legislation that’s being
formed too hastily or too impulsively in the lower House. So we have rules
of deliberation. We also have rules of decision. This basic point
I want to make is, if the rules of deliberation
and the rules of decision converge, so the
distinction between them is virtually
evaporated, 40 Senators, if they choose to do so, can
effectively block decisions on any matter of state. A minority can
outweigh a majority. If the distinction between a
rule of deliberation and rule of decision has evaporated,
we as American citizens, or the American body politic,
the people of the United States– we, the people,
as noted on the [INAUDIBLE] are being deprived
of what should be a fundamental right of
majority government, which is to be governed by– excuse
me, a fundamental right of Republican
government, which is to be governed by majority rule. You guys with me on this? OK. So here’s the argument
I want to make. First off, I have to concede
at the outset this is not an issue one could
ever litigate. Each House of Congress has
Constitutional authority to make its own
rules or proceedings. So if the convention– if in
one sense, one chamber feels we might allow unending
debate to go on, it’s really a decision
that’s non-justiciable. It would fall pretty readily
under the Political Question Doctrine, an area where the
course just can’t intervene. On what basis could the
judiciary department tell another
institution, this is how I think you ought to
conduct your deliberations? That seems to be a fairly
straightforward position. So if we want to think about
Constitutionalism in the highly legalized sense– could
you sue to kind of overcome this barrier– that’s
kind of a non-starter. That falls into the famous
niche-niche category of analysis, which I hope
you guys have incorporated over the course of the term. So you can’t litigate it. But I also happen to think it
remains unconstitutional, not just problematic. I would argue it
remains unconstitutional in a basic normative sense–
maybe not in a legal sense, not something you could
bring to court. You couldn’t get an
injunction to force a vote. But I happen to think
that, on the merits– again, if we think
constitutionally, not simply in terms
of litigation, but in terms of what are
the values, under what norms should the Constitution
operate, I happen to think it’s unconstitutional. I’ll start with a kind of
textual argument about this. I think I used this once before. And Habib, I think you can
probably do the translation, because this one’s
fairly straightforward. So there is a well-known rule
of legal interpretation– so actually, this is
a legalistic argument, but I think it relates
to the Constitution as a written document– which
says, “expressio unius est exclusio alterius”. The expression, one is the
exclusion of the other. Right, so this actually–
and almost everybody, not just Habib, everybody should
be able to translate this, basically. The expression of one is
the exclusion of the other. If you have a legal document
which explicitly identifies cases where
super-majorities apply, by default what’s
not expressed has to fall under some other rule. So there are four cases
where the Constitution does require super-majorities. I hope to get these all right–
but ratification of treaties– of course, you think
about that in terms our current Iran
debate– the approval of constitutional amendments,
overriding the presidential veto, and anybody
remember the fourth case? Relating to the
Senate– impeachment. Very good, yeah, so it
last figured in 1998, 1999– 1999 is when the
impeachment trial of Bill Clinton actually took place. So I think this is actually
a pretty powerful rule. The framers of the Constitution
were very self-conscious. A, the existence of rule
is a well-known canon of construction. B, they did spend a
lot of time thinking about when super-majorities
were and were not necessary. A good example of
this is that there’s a lot of discussion about
how big a veto would you want to have. Madison actually wanted to, I
think, at one point proposed us having a seven-eighths
super-majority to override a veto, which is a bit on the
high side– go 0.67 to 0.75. That’s a nontrivial increment. There was a lot of debate
that comes actually from George Mason
of Virginia, arguing that to protect the regional
interests of the South you ought to have two-thirds
majorities for what were called navigation
acts, what we would call uses of the commerce clause. So the framers– there
are some other examples that super-majorities
were discussed. So at the outside, I would want
to say that in normative terms, if not even in
justiciable terms, there is something that’s deeply
problematic about the idea of in effect having
a three-fifths rule for legislation to be effective. A different way to
think about this– I didn’t put this on the
outline, but it’s worth discussing– if you just
think about the composition of the Senate. So as you guys well know, I
would abolish equal state vote in the Senate tomorrow. I think it’s outrageous. I think it’s wholly unwarranted. I don’t think citizens
in small states have interests that are
different from citizens in large states. If the Second Amendment
is your big issue, it doesn’t matter whether you
live in Michigan or Wyoming. If you’re deeply evangelical,
that defines your politics, it doesn’t matter whether you
live in Texas or in whatever, Idaho– or usually Wyoming
is my favorite example here for small states. So in that sense, I find
the whole notion kind of problematic. But what’s interesting is when
the framers of the Constitution adopted what I
think was mistakenly called the Great Compromise,
or the Connecticut Compromise, that was as far as many
of them felt one should go to protect minority interests. In other words, people like
Madison, James Wilson, Rufus King, Governor Morris,
Alexander Hamilton– people who were strong
advocates of having some rule of
proportionality apply to both houses of
Congress– they reluctantly accepted what was actually
a very narrow decision within the Convention to give
the states an equal vote. They felt that went far enough. To say that instead
of going far enough, that’s just the foundation for
introducing other minoritarian checks on majority
rule would strike them as being outrageous. In other words, you’re
making one exception, but that exception should,
by itself, e been sufficient. You should not have needed
to say, OK, here’s one basis. Now let’s think of
all the different ways in which we can compound that. So I think there’s
another normative level, a deeply principled
level, at which this is deeply problematic. OK so that’s my argument. If you think
constitutionally, juxtapose the political questions
doctrine, which I think makes a non-justiciable,
with, however, I think a normative claim
based on essential principles of constitutional rule, I
think you would come out saying that in fact, there is
something truly problematic– I would say unconstitutional–
about a procedure where the rule of deliberation
and rule of decision have effectively
converged, so that it’s very hard to distinguish
one from the other. I’m not saying the Senate
should have the same rules of deliberation as the House. That would be, seems to
me that would be improper, and would kind of undermine
its basic purpose. But it’s not really a
rule of deliberation to say we’re not going to vote. That’s essentially a
rule of obstruction. Rules of deliberations are
meant to improve deliberation. Once deliberation
has ceased, you want to get a decision
one way or the other. And the procedure
rule should not be the default barrier to an
actual delivery of decision taken on the merits. But let’s go back to what
I tried to say earlier. So when we think about
this in– as I said, my second part of the
Madisonian dilemma is, how do we juxtapose
constitutional concerns with political concerns? So try to work that out. So this is an
interesting question. So it doesn’t bother
me, particularly after this goofy letter from
47 Republican senators, which really is a constitutional
novelty of the first order of magnitude. Anyhow, is I say, putting
that little quibble aside, it doesn’t bother
me at the moment that there are more than
40 Democratic senators, and I think Republican
action, both in terms of receiving Bibi Netanyahu and
then with this recent letter, are more likely to ratchet up
democratic loyalty to Obama than to work the other way. So it doesn’t bother me
politically that at the moment, in the current set
of circumstances, it’s hard to see how the
Republicans would ever get 60 votes or 70 votes
in terms of veto override, because they’ve kind of
gone out of their way to offend the Democrats
as best they could. So it might well be
that we just want to reason on expedient
grounds, whatever I say in principle,
when push comes to shove or is a matter of
implementation, remember, my general
argument that most of our constitutional
arguments are inherently instrumental in nature. It’s hard for us to
adopt abstract positions. What we really prefer
in any given controversy are the outcomes. We prefer mechanisms of
constitutional decision making that are most likely to
produce the outcomes that we individually prefer. So maybe I should just be just
remain a Cook County Democrat and say, actually the
Democrats have more than 40, and I’m a Cook County
Democrat by birth. Maybe this is not
such a bad rule. But I don’t really
want to follow that logic, because I think
what I really want to say is the corresponding point here. I think a better system
is we are a democracy. We want to be governed
by democratic principles, to be a member of democracy. We protect minority rights
in lots of ways, particularly through a bold protection
of civil rights, which is why I like the Warren
Court so much, in terms of its pursuing the incorporation
doctrine fairly rigorously. But in the end, we
want to be governed by a system of elections. We want to be popular
constitutionalists in the same way that Larry
Kramer would use that term. Namely, if we have
constitutional disputes, or we have big
political disputes that have constitutional
implications, in the end, it seems to me elections rather
than rules ought to govern. So we ought to allow
majorities to govern. I mean, it’s hard enough to
form a majority in any case in the American system. We want to have
majorities govern, and then we can deal
with the consequences. As opposed to having
a system where we’re doing our best to paralyze
to capacity of majorities to govern. Don’t we want to
encourage action, and then try to make
sense of what’s been done? Now, Kramer may not
like this position, because it’s
anti-libertarian, right? I mean, I said I want
government to act. That’s my expectation. That’s why we created
the damn thing. It wasn’t for inaction. It was for action. Decisions have
consequences, and that’s what elections should
be designed to measure. So that’s my argument
about the Senate. I’d also get rid of
equal state vote, but as you remember from
the great opening line you can always use
at a mixer– what’s the only clause of
the Constitution not subject to Article
Five Amendment? No stake in– Habib? [INAUDIBLE] Right, no state can be deprived
of its equal vote in the Senate without its consent. So that deals with–
let’s check the time here. 10:30– this is good. I’m actually on schedule,
more or less– losing one. This would be a big
revelation in podcast-land if they had the bitter
experience of my trying to finish a lecture. Lilly, you want
to say something? I’ve just been wondering
for a couple lectures, what the normative value of the
political question doctrine is. It seems really obvious
that there’s just no incentives for the
legislative branches to check themselves, but
there’s huge constitutional consequences. So wouldn’t a third party
have to step in for anything to change? So I just don’t
understand why defaulting to the political question
doctrine makes sense. I think– so Lilly, who’s my
TA– she’s having problems grappling with the significance
of the political question doctrine, which is the
basis on which course, if they want to stay away
from something, can do so. Let’s see, I’m going to
save that one for now, because– but it’s
a good question. I may get, with a little bit of
luck, and favor from the powers above, I might be able to
reach it towards the end. I could tell you were looking
a little perturbed there. Second proposition–
the persistence of the state-based system
for presidential elections not only violates
the basic principle of one person, one vote. It also leads to
the deligitimation– I think that’s the proper
word– to the delegitimation or delegitimization–
delegitimation I like– of presidential power. So this picks up a bit on
our discussion from Monday about Bush v Gore and
the 2000 election. So this slide here– this,
of course, what we really know about Obama beyond
the fact that he’s a Kenyan anti-colonialist
and all– whatever– is that even though he
taught constitutional law in my birthplace,
University of Chicago, his whole purpose in life is
to tear up the Constitution. That’s the whole– it’s
really the secret mission he’s been pursuing. And we have to deal
with the consequences. This slide– and
you can find lots more like this, and many of
a much viler character, all protected by the
First Amendment. This comes from patriot post us. I have no idea what
this website is. It’s down at the very
bottom of the slide. Anyhow, so let’s talk a bit
about the electoral college– something I’ve been agonizing
a lot since 2000 election. I explained on Monday, when
we talk about Bush v Gore, that my original source
of concern– something to do with the idea
of why should we have a winner-take-all
rule for the states, if six million voters
in the State of Florida were maybe 1,000 votes apart,
depending on how you treat the West Palm Beach vote and the
Jacksonville vote, and so on. Isn’t there something
kind of silly about having a
winner-take-all rule that goes to a nominal majority? But there’s a certain
logic to the [INAUDIBLE]. Anyhow, for a long
time, I had a concern with the federal problem of the
way in which the construction of the electoral college
violates the one person– what I think it’s become, ever
since Baker versus Carr, ever since the Great
Reapportionment decisions, which were
a case when putting the political questions
doctrine aside would up, I think a, to be proper
and b, to work very well. My original concern
had to do, though, with the way in which, because
the so-called senatorial bump, the value of an individual vote
varies from state to state. Now of course, you have to
work out to many decimal points what that really means. I don’t know that you
should feel it personally when you go home after
casting your ballot. But it is true that votes
have very different weights. And the senatorial bump
is a significant way of ratcheting up the vote. If you look at the 2000
election, as I noted, there are 51 electoral units. Gore carried, I think, 21 for,
what, 267 electoral votes, so basically about 13 votes
of pop per electoral unit, per state or DC. Bush carried 30 for 272,
271– nine votes a pop. Bush carries the 20
smallest units 13 to 7, and the electoral margin between
them was four votes coming out, and then one DC electorate
threw her vote away. So you might say, to talk
about the various injustices of the 2000 election, that
the simple construction of the electoral college
was an obvious factor there. It’s a pretty
straightforward argument. And it’s not the one I
really wanted to belabor. I’ve gotten much
more interested, I think, really watching
the Obama presidency. And I’m a much
bigger fan of Obama now than I was, a think,
when he took office– for reasons I won’t get into. But there’s some things
I really like about how he’s conducted himself. I’ve started worrying
a lot about what seems to me is a kind
of disturbing tendency in American politics, which
is the extent to which the last three presidencies
have been marked, I think, by a concerted delegitimation
of the nature of the presidency. And I’ll say something
about this in a minute. So let’s just start with the
a couple starting points here. So one strong position
I’d have as a basic matter of democratic theory is we
have only one truly national political office, right? That is the presidency. Depending on how you think
about it, the Vice President, but that’s just–
ever since 1800, that issue hasn’t been
all that important. It seems to me, if it is a
truly national office, then to follow the one vote,
one person rule out to its logical conclusion, all
votes should count equally. A vote cast in California
should have the same value as a vote cast in Wyoming, just
as a fundamental democratic value. Votes in one state should
not count for more, even if we have to multiply out
to x number of decimal places based on the accident
of geography. So that’s a kind of
starting position based on equal protection. I don’t think that really
needs much defense. I think that one’s
fairly straightforward. What I think is more
important, and actually a point that I didn’t really put
in here, but I want to stress now is, really,
next point is, if we think about the nature of
presidential elections– this has become
more and more clear with each passing election. I mentioned the other day that
Richard Nixon, back in 1960, did this crazy thing of he vowed
to campaign in all 50 states. He banged up his knee. He lost two or three
weeks of the campaign because he had an infection,
and he had to recover. At that point, he should
have forfeited the promise. He didn’t have to
go to all 50 states. He would have known which
states he certainly was going to carry, and which ones not. So Nixon kind of [INAUDIBLE]. But our ability to predict
how states vote now is vastly more sophisticated,
because the increasing refinement of polling
techniques than it would have been 50 some
years ago, 54, 55 years ago. So now we have this
interesting map. We know as a matter of
course that the preponderance of states– what
are the red states and what are the blue states? And then we identify
the battleground states. And they can be a
relatively small number. They can be a
relatively large number. There’s nothing special about
being in a battleground state. Battleground states
are not different. Their voters do not
have preferences that are different from
the voters in other states. I mean, they’ll have
somewhat different premises based on the composition
of their population. But it’s not that
there’s anything special about the states, except
that the political forces within them are
relatively equal balance. That’s to say if you think
the demography– which I think is true in my capacity
as a political scientist– if you think the
demography– our very social characteristics– religion,
ethnicity, occupation, education, and so
on– if those are the real determinants of
political behavior, what happens in battleground states
is just the distribution works out so that those states
turn out to be competitive. The result of this
is we have this kind of crazy presidential election. We all care passionately
about the outcome. We’re all deeply
interested in it. But then the reality of
presidential elections is, if you live in a
battleground state, it must actually be
an awful experience. I mean, how would I know? I’ve lived in California
the last 35 years. But in presidential
elections, to be subjected to all those advertisements,
hour to hour, day in, day out, whereas the rest of us
have to read a newspaper to know that a political
campaign’s going on. So I think you
might say in terms of fostering democratic
culture, there is something fundamentally wrong, or
skewed might be a better way to put it, about the
way in which our ability to measure the political loyalty
of states in so refined a way really operates. So you might say that derogates
for the care of the election. But I think having
made that point, which I think is a
fairly obvious one, let me make two additional
points to develop this. The first thing that I see,
the real advantage to having– if you had a
national population, there would be
one constituency– let’s think of a name. We’ll call it the United
States of America. There’d be one constituency. You would not vote as
a member of a state. A vote would count the
same wherever it was. In response to the
current problem we have, which is states
have the incentive to turn out their voters only in
battleground states, excuse me, the parties have the incentive
to turn out their voters only in competitive states, only
in battleground states, I happen to think
the parties would discover a strong
incentive to turn out their voters everywhere. It’s not just that
candidates would spend all their time
in New York and LA or the Bay Area or Chicago, and
leave the rest of the country aside. It’s a big country. There are lots of
voters out there. And if a vote is a
vote is a vote wherever it is cast– all
votes count equally– the parties would develop
technologies, mechanisms, to turn out their
vote everywhere. Now, there would be
different strategies. I have no idea how this
would affect media buys. I mean, media buys– that’s a
complicated question of where you invest your resources. But if a vote is
a vote is a vote, and if you’re moving towards
a competitive election– which is not clear how competitive
Republicans are going to be with Democrats
anymore– but they would actually– Republicans would
probably actually do better in a national
political election, because they may come
up with candidates who are more attractive
nationally than their party strength in the electoral map. Republicans have a real
struggle now to get to 270. They really have
to go uphill to try to get a presidential majority. That’s been fairly clear from
last few elections, I think. So I think a, we’d incentivize. But b, the issue that really
concerns me more, which I think goes to the nature
of our constitutional system, is it seems to me as I
reflect on the last three presidencies– Obama
here happily turning up the Constitution, Bush who
comes to office under the cloud of Bush v Gore, having
lost the popular vote, and then Bill Clinton,
who was Bill Clinton, and attracted– it was kind
of the Slick Willie thing. And I think the fact that the
Republicans were really peeved, because they thought or
worried that Ross Perot– the third party
candidate for Texas, whose prosperity basically
depended on getting contracts with the government. It wasn’t as if he’s the
greatest entrepreneur out there in the world. Anyhow, the Republicans
felt that they had a right to the
presidency, which had somehow been denied by Ross
Perot, and they would up with Slick Willie,
this kind of wily, highly charged candidate from
Ar-Kansas, or Arkansas, or whatever. It seems to me if you reflect
on the last three presidencies, and if you think
about the way in which the idea that the
country’s divided into red and blue states with a
handful of oddball battleground states– it seems to me in some
sense that has been derogatory. It has disparaged the
authority of the presidency. There are different
explanations. I mean, I think in
Obama’s case, to be honest– I won’t say
raw racism, but a kind of strong, latent
racism, sometimes bursting into raw
racism in some moments. I think that’s certainly
been a factor here. I happen to think–
I just through this out as hypothesis– I’ve thought
a lot about the one person, one vote issue ever since 2000. But now I think actually there’s
a deeper argument to be made, which is that the presidency
is the linchpin of decision making in our government. To have a system where the
election was truly national, where it’s not imagined
as a set of red states versus blue states with the
battleground states hanging in the balance, I think that
would be healthy for us. I think it would promote
the political health of the presidency. I mean, we all have the
same First Amendment rights, so we’d all be free to attack
presidents on whatever grounds you do. But I think actually shifting
the basis of election in addition to solving the
one person, one vote problem– which I think is a fundamental
democratic issue– would also have that advantage. So I’ll let you
guys think about it. I think this is an issue
that’s going to recur. The third one I want to
make– and we kind of picked up a bit on this
on Monday as well– and I should tell
the podcast audience, or whatever– the title of
Monday’s lecture was It’s the “Constitutional
Law of Farce,” for which Bush v Gore stood
as the leading example– so just picking up on that. I’m deeply disturbed,
and I think many of us are, about the whole nature
of the judicial appointments process– seven minutes. We had a bit of a debate
and discussion a week or two ago– when
exactly did it begin? Some people argue
with the nomination of Robert Bork, which led
eventually to the nomination and appointment of
Anthony Kennedy– that was the true point of departure. I’m not so sure about that. I think it went back
to 1969, and look at the way in which
Gerald Ford led the effort to prevent Abe Fortis
from succeeding Earl Ward. And then if you look at the
controversy over Richard Nixon’s southern appointments–
the Haynesworth to Carswell to Lewis Powell trilogy that
wound up with Lewis Powell being appointed– it
could be, as I tried to suggest the other day, that
the appointment system which we now operate makes
independent tenure the dominant
independent variable, in the real dependent
variable arguably– or as the lawyers
say, arguendo– is actually the political
dependence of the judiciary. Now, it’s not perfect. You can make mistakes. You could appoint David
Souter without realizing he was a liberal,
so that’s a tribute to John Sununu’s political
genius as a New Hampshire Republican. Justice Stevens,
appointed by Gerald Ford, I think was your kind of
classic Republican moderate. And Ford was not a
strong ideologue. So he didn’t really have
a dog in that fight. So it’s not that every
appointment works out exactly as you wished it would. But I think it’s
fairly evident, if you look at the current court, we
need another slide up here. Here’s our current court. I actually find
the photography– make sure you get
this– this one– I’m a little nervous about the
body language of the four conservatives. I mean, Alito looks OK in the
back, but there’s something. I mean, Thomas looks angry. Scalia looks distracted. Roberts is glancing to the
side, and Kennedy’s off in his own little world. And I’m not– I’m
not quite sure. Of course, this is just
random photography, right? It probably doesn’t
mean anything. But it’s kind of fun to look at. But you realize how petite
Justice Ginsburg, who my class is going to visit. Either she’s going
to visit us, or we’ll see her in her chambers,
I think on May the 3nd. The first Tuesday in May,
my class next quarter in Washington is going to have
a little visit with Justice Ginsburg. The people standing up
look a lot happier– three liberals and
Alito, who I describe on the outline as
a shape-shifter. So maybe this is Alito doing
a bit of shape shifting, trying to appear
like a nice guy. So here’s our current court. So as I said the
other day, it’s not that every decision is five
to four in a predictable way. And I think the Kane
versus Burwell decision is going to be really interesting. I’m predicting six versus three,
with Roberts and Kennedy voting with the liberals. But historians should
never predict anything, so my predictions are wholly
meaningless and probably wrong. But I have started– the
judicial appointments process now operates to produce
politically reliable judges, turning jurisprudence into
a continuation of politics by other means. That’s a play on the famous
statement by Carl Von Clausewitz, the great Prussian
military strategist– that war is a continuation
of politics or policy by other means. This doesn’t work
perfectly, but it works well enough that we
ought to be disturbed by it. So my alternative
proposal is why not limit– I don’t care
about federal judges. I think lifetime for
federal judges is fine. But maybe more rotation
on the Supreme Court, the ultimate decision maker,
would not be a bad idea. So I kind of like
the idea of having 18-year terms or 22-year terms. There’s a bit of
numerology going on here. Anybody guess why
I would like 18? Alison, you know this one? Uh, [INAUDIBLE]. Now, it has nothing
to do with multiples. It’s the 18th letter of the– No, no, it has to
do with numerology. It has to do with
the idea of gematria, that Hebrew letters
have numerical values. [HEBREW] is the word life. So you were about to say that. I’m sorry, Alison. And so that’s why we often
give prizes in multiples of 18. It’s a little bit
of superstition. That’s 18. Habib, you remember
why I like 22? Oh, is that the number that
you dropped on the Aberdeen? No, that’s the number of
points I got against Aberdeen in the second round
of the Scottish cup, when I was an all-Scottish
universities basketball player in 1967. I got 22 against Aberdeen. So these are two
numbers to which I personally– if it
was Sesame Street, these would be my
favorite numbers. [LAUGHTER] If I were Kermit the Frog–
so I like 18, I like 22. That’s a long period. 18 years, that’s a lot of years. You know, 22 years
ago, I was still playing basketball, something
I haven’t done since 1994. So that’s that. These are not bad numbers. I’ve started to think that,
in part, maybe having terms. I mean, I ask the question,
why should justices– it doesn’t work in every case. Sometimes you die in office. But justices have the
option of deciding when they’re going to retire. And they can do they can
do that on the basis, in terms of political
preferences. There’s been a lot of
speculation about Justice Ginsburg, who
actually, according to my students
clerking for her now, she’s actually tough as nails. Her physical trainer’s quite
impressed with her workouts. She looks petite, but she
can do push-ups and the like. And her jurisprudences, from
my point of view, is fabulous. So I think she should
stay in the court. But whether we’re
well served by having a court of this nature,
when it seems to me you could make such
a strong argument that political preferences are
the dominant variable driving judicial behavior– to me, it’s
a really interesting question. It’s also worth noting–
I think, actually, Amy, it was your mom
sent in a question on this having to do– I’ll
have to answer privately– Citizens United. One the interesting
things about the court, if you read the recent books
about the court– Marcia Coyle’s book and I think Jeff
Toobin’s book on the Roberts Court, it’s clear that much of
the agenda of the current court since the middle
of the last decade has been driven by
Alito’s appointment. So Alito, who’s a
dyed-in-the-wool conservative, as is Thomas, as is Scalia. And these guys appear in Federal
Society regularly and so on. It’s clear that the replacement
of a true swing voter, Sandra Day O’Connor, the
last person on the court to have any elective experience
in a political office– it’s clear that Alito’s presence
shifted the margins. And the justices knew it. I mean, a lot of the
litigation driving the erosion of any kind
of contribution barriers in the realm of campaign
finance is clearly driven by Alito’s presence. So that means actually–
and the court signals this. I mean the court kind of
invites that bring me your poor, your huddled masses. Bring me some contrived
case, because I’m ready to rule on it
in a way that’s going to alter the jurisprudence. So you have to ask the question. This is not– I mean, we
talked last class about it. It is important in
the American system to understand how
ordinary cases can develop into constitutional issues. And that’s fine. But when it’s being driven
in this way, when these are the parameters of how these
discussions evolve, that, I think, should be disturbing. And I think Justice
Alito– I don’t think he’s actually a shape
shifter in his private life, whatever that means. But it’s clear that
his appointment, that the changing political
balance on the court was what has shifted
its jurisprudence. And finally the last
point, and this one’s made recently by a well-known
political theorist– I’m going to try to wrap this
up in the next 90 seconds. So just sit still. Finally, there’s a kind of much
deeper theoretical question. A guy named Jeremy
Walters has been writing a lot as a [INAUDIBLE] review
raises a really interesting argument saying that it
might well be the case that you need strong
constitutional courts in emerging democracies. You need to have an institution
with independent authority, that’s capable of ruling
on a whole range of issues as part of a process
of transition, so that whoever
occupies power first will not use that original
position to corrupt advantage. So having a strong
Constitutional Court to enforce constitutional
norms, in order to build up mechanisms
of a democratic country, maybe that’s really valuable. But we’ve been around as a
constitutional republic not quite a quarter millennium,
but we’re getting in striking distance of that. We’re actually two and
a quarter, 225 years, give or take, as of this year. This is– putting
the Civil War aside– another one of my
little quibbles– this is a strongly established
constitutional democracy. Why do we think that the
court is better qualified to resolve fundamental
questions of policy? Think about the
Obamacare litigation. Think about it in the light
of Wickard versus Filburn, the famous New Deal
case or how you measure the commercial nexus. It’s a real troubling question. But do we really need a court
as strong or as assertive as the one we have now is? What value is a pursuing,
again, if we make those political assumptions? So I’m going to wrap it up. So I’ll just make
two last points here. Each of the points
I’ve raised seems to me to represent a strong
democratic value. So a rethinking of these
issues would force us, I think, to think in more
robust terms about what is the nature of the
constitutional democracy– not so much a republic
any more, but what is the nature of the
constitutional democracy that we want to have. That’s point number one. Point number two– go back
to my original quotations from Madison. Is there not something
absurd about saying that just because Article
Five is difficult, or it creates high hurdles,
we should never talk about constitutional change again? Should we go back to the opening
paragraph of Federalist 1 or Madison sentiments
in Federalist 14 and say, we are
capable of reasoning about the nature of
political phenomena? We have a political system which
is deteriorating into a mess, for a variety of reasons. Should we not be able
to think rationally through some processes of
collective deliberation about what a different
system should look like? So that’s my course. And we’ll see you
guys on the final. And goodbye to those of you
in podcast-land or whatever. I hope you found the last
15 minutes enjoyable. Thanks a lot. [APPLAUSE]

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  1. This is revolting! all this intellect directed at a time when America got a Hip-Hop president with no understanding of a democracy or caring to learn. Shame on Stanford

  2. You joke about it being "Obama's secret mission to tear up the constitution", but how would you characterize blatantly unconstitutional mass spying on the American public and the world, keeping Gitmo open, assassinating American citizens like Anwar Al-Awlaki with drones and then bragging about it, committing the US into war in Libya for more than 100 days in violation of the war powers act, failing to punish torturers and keeping sergeant Manning in conditions a UN special envoy called torture for more than a year without charging him with anything? I guess none of those violate the US constitution.

  3. Through technology we can create the freest society humanity has ever known. We no longer have to be subjects of these systems of social slavery. Governments and corporations have collaberated and conspired against us leaving unsustainable debt to income ratios. The technologist have awaken.

  4. "…when we think about the Constitution, we're thinking about a set of governing arrangements, in some cases are important, but we don't really care all that much about judicial doctrine…."  Unbelievable: the Constitution is the supreme law of the land and the only reason anyone is allowed a trial by jury and representation, free speech, a warrant to search required and safety in your own home, yet it is only important in some cases? This is what is being taught in schools?

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