Noah Feldman on ‘Madison and Frankfurter: Friends, Enemies, and the Meaning of the Constitution’
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Noah Feldman on ‘Madison and Frankfurter: Friends, Enemies, and the Meaning of the Constitution’

August 24, 2019


MARTHA MINOW: Good afternoon. I am Martha Minow, and
it is my great delight to welcome you all as we honor
Noah Feldman on his appointment as the Felix Frankfurter
Professor of Law. Applause is appropriate. [APPLAUSE] So Professor Feldman will
acknowledge in person some of the family and
friends who are here. I just want to
say how thrilled I am to see his parents,
who I’ve known a long time, his children,
and other close friends. And before I tell you
some more about Noah’s extraordinary background
and his career– and also just hint at the fact
that he did such a good job when we had a prior chair
lecture that I had to give him another chair so we’d
get another one– I do want to take a
moment to describe the wonderful story behind
the Felix Frankfurter Chair. So Felix Frankfurter moved to
New York City with his family in 1894 and entered the
public schools there. He received his
bachelor’s degree from the College of the
City of New York in 1902, and then he came to
Harvard Law School. And he was an editor
of the Law Review, and he was first in his
class, graduating in 1906. He practiced law
briefly in New York. Then he joined the US Attorney’s
Office as an assistant to Henry L. Stimson. President Taft appointed
Stimson to be Secretary of War, and Felix Frankfurter became
the Legal Officer of the Bureau of Insular Affairs. Felix Frankfurter went on to
argue cases before the United States Supreme Court. And he remained at
the War Department after Wilson became president. And then he accepted
an invitation in 1914 to join the Harvard Law
faculty as a full professor, becoming the first
Jewish professor at the Harvard Law School,
where he taught for 25 years. He then was nominated to the
United States Supreme Court in 1939, where he
spent 23 years. During his lifetime, he was
a leading civil libertarian. He was a defender of
Sacco and Vanzetti. He was, I think,
widely understood as one of the first
public intellectuals. You see there’s a kind of
match here between the chair and the person. On the occasion of
his 80th birthday, his sister Estelle
launched a fund that she hoped would
support a professorship in constitutional law to
be named in his honor. And ultimately,
that’s what happened. And it enabled, with
the contributions from other people, the
launch of this chair in 1983. And previous holders of
the Frankfurter Chair include professors
Abraham Chayes, Professor Alan Dershowitz,
and Professor Cass Sunstein. After he passed away in 1965,
after Frankfurter passed away, Dean Erwin Griswold
described him, and I quote, as “a man of great
vitality, physical and mental. He was always on the move. He was always stirring
up [? novel ?] ideas. He was a great
stimulator of students. He told them to do
things and then saw to it that they did them, and was
generous in sharing credit with them.” Do you see why this is
such a perfect match? Griswold’s description
of Frankfurter applies to Noah Feldman. Noah is a man of great vitality. He stirs up new ideas, and
he encourages students. The breadth of his scholarship
is nothing short of astounding. It stretches from American
constitutional law, the relationship between
law and religion, constitutional design, the
history of legal theory. And Noah is also a distinguished
scholar of Islamic studies and Islamic law. He served as Senior
Constitutional Adviser to the Coalition Provisional
Authority in Iraq and subsequently advised members
of the Iraqi Governing Council on the drafting of the
transitional administrative law, or its interim
constitution. Noah is a rare
kind of scholar who can influence law and policy
on the international stage while also writing for
a popular audience. He’s a prolific
columnist for Bloomberg, and his syndicated
columns on law explain the workings of the
United States Supreme Court in international law
to everyone while also speaking to experts
in those fields, often with a critical eye. His seven books bridge the gap
between theory and practice and between experts and
generalists as well. His 2010 book,
Scorpions, explores the history and legacies of
the United States Supreme Court justices appointed by
Franklin Delano Roosevelt, with insights for
scholars of the court, including members
of the court who have told me it’s
the best book they read in years about the court. One of the scorpions Noah
explores in that book is a man named
Felix Frankfurter. Noah showed
extraordinary promise in his early academic career. He attended high school
not far from here at Maimonides in Brookline. In his senior year,
he did something that few American high school
students have ever done. He won the US Chidon
Competition in Hebrew, which is like, I don’t know,
the Olympics on the Torah, on the Bible. An amazing kind of thing. But then he said,
I’m going to compete in the International Bible
Contest, the Chidon Ha-Tanach. And sometimes it’s
called Jeopardy for Jews. And it’s, of course, assumed
that the person who wins will be an Israeli, every year. But in 1988, Noah Feldman
and his co-American Jeremy Wieder, who’s now
Rabbinic Dean at Yeshiva University, defied
the odds, and they put the Americans on the map. And Weider won the
competition that year. And Noah, not too
shabby, came in fourth. In a newspaper interview
earlier this year, Noah described that
experience, and I quote him, as “one of the most important
educational experiences of his life, that
opened new worlds.” Harvard Law School reaps the
benefit of that high school year of study. And each year, Noah
teaches classes on Jewish law and legal theory. After high school, Noah came
to Harvard College, where he earned– I have to say
this– the highest GPA, I think, in the history–
anyway, certainly in his class. He graduated summa cum
laude with a degree in Near Eastern Languages
and Civilizations. He was selected as
a Rhodes scholar. He earned a DPhil in Oriental
Studies from Oxford University. And then he attended
Yale Law School. That happens to some people. And he served as book reviews
editor of the Law Journal. He also was a law clerk then
for First Chief Judge Harry Edwards on the US Court of
Appeals for the DC Circuit, and then for Justice David
Souter of the United States Supreme Court. He began his teaching
career at NYU, following his appointment as
a junior fellow at the Harvard Society of Fellows. And I’m thrilled to see people
from the Society of Fellows here today. He was offered a visiting
professorship at Harvard, and he then came as a permanent
member of our faculty. And he’s also now a senior
fellow at the Society of Fellows at Harvard. His many books cover
so many subjects, and I won’t be able to describe
them all, because I want to give him some time to speak. But it is noteworthy
that his work covers a range from
Islamic legal studies; the constitutional work
in transitional societies; and works on religion and
government; Scorpions, which I’ve already described, which
won the award from Scribes, the American Society
of Legal Writers; and received the Silver Gavel
Award from the American Bar Association. In 2013 he published
Cool War– The Future of Global Competition,
which examines the relationship between
the United States and China, and the evolving
power struggles. And last year he
co-edited, along with Kathleen Sullivan, the
case book Constitutional Law, 18th Edition,
the book that was launched initially by the
distinguished professor Gerry Gunther. Bloomberg magazine once
described Noah Feldman as the most beautiful brainiac. Esquire dubbed him one of
the 75 most important people of the 21st century. Men’s Vogue lauded his
sartorial sensibilities. Noah himself has described the
way that he dresses as think Yiddish, dress British. He’s appeared on
The Colbert Report. He’s explained concepts
there like Sharia law and US-China relations. And as our Class Day
Speaker last year, comic, actress, and
writer Mindy Kaling set the Twittersphere abuzz with
her repeated references to Noah in her speech, and her dreamy
prediction that one day they would fall in love. United States Supreme
Court Justice Elena Kagan, when she was dean,
called Noah Feldman, and I quote, “one of the
stars of his generation. A brilliant thinker
and writer who has produced a
remarkable body of work while still early in his career. From his on-the-ground
knowledge of lawmaking in Iraq to his historical
research on religious freedom in the United States, his
range is as wide as any in the Legal Academy.” Laurence Tribe, the Carl M.
Loeb University professor, said, “I’m not always
persuaded by Noah’s take on the global scene or
by his sense of what the Supreme Court is up to. But I never fail to learn
something new and intriguing from his eclectic
outpouring of legal and geopolitical insights. His brilliant study of Justices
Frankfurter, Black, Jackson, and Douglas, perfectly
titled Scorpions, is a splendid work of
scholarship that brings legal and political history to life
in a way I cannot imagine anyone else doing as well. More than just a jewel
in Harvard’s crown, Noah Feldman is an
international treasure.” And William Rubenstein, the
Sidley Austin Professor of Law said this– and I’m sorry,
I have to quote it all. It’s so good. “When Noah Feldman
opens his mouth, words flutter out like
butterflies loosed from a net. The effect is luminous,
but the substance concrete. Few people know as much
about as many things. Fewer still are able to
articulate their knowledge with the style,
insight, and passion that Noah, with little
apparent effort, commands. I once took Noah along on
a vacation with my family, so I wouldn’t have to work at
conversation with my sister and brother-in-law, with
whom I have little in common. All I had to do, all
anyone had to do, was to toss out a topic, any
topic– say, Jewish baseball players in 13th-century
Azerbaijan, and then sit back and enjoy. Noah’s brilliance
is often so dazzling that it risks masking
the remarkable person who lies behind– a teacher who
cares deeply about his students and inspires them, a
colleague generous with ideas and encouragement, a friend
always willing to lend an ear or even to go on someone
else’s family vacation to run interference,
and a parent with incomparable
energy, patience, love, and affection for his family. The glory of Noah’s artifice
persistently enchants. His presence in our community
is a great treat and honor.” I cannot say better than
that, other than to say it is my distinct honor to
be, not only dean, but also friend of Noah Feldman,
the Felix Frankfurter Professor of Law. Noah. [APPLAUSE] NOAH FELDMAN: Thank you
all very much for coming. Martha, thank you so much
for that much too generous introduction. Many of the things
that Martha mentioned were things that I could never
have done without Martha. Society of Fellows, the first
time coming to teach here. The only reason they let me
into the Society of Fellows the second time is that
Martha when on leave to do a little job called being dean. I am hugely grateful
to you, Martha, for all of those
things, and I really deeply appreciate your words. I’d also like to thank my
colleagues for being so kind. Larry, if we did agree
about those things, that would make me very nervous. And Bill, thank you very, very
much for saying what you said. It does set the
bar a little high. I’m not promising
anybody butterflies. And then if you want to talk
about Jewish baseball players, we have the capacity
for a real conversation. I would also just
like to acknowledge– alongside many, many very
close and wonderful friends who are here, and students,
and colleagues– my parents, who I’m very
grateful are here today; and my kids, who I’m very
grateful are here, too, and whom I will have occasion
to allude to perhaps a little bit later. And I’d also like to very much
thank my assistant, Shannon Whalen, who is spectacular,
stupendous, and without whom I could not do even a
quarter of the things that I’m lucky enough to
have the chance to do. So thank you, Shannon. What I would like to do in
the time that we have is offer you a talk that
will run in three acts. And in order to
set up those acts, I want to start with a
specific moment in time. A moment in January of
1939, which Martha already alluded to, when Felix
Frankfurter was at home on his house on Brattle
Street, and while– and I’m quoting
him– “in his BVDs,” received a phone call from the
president of the United States, informing him that
he was going to be appointed to the Supreme Court. This was the high point
of Frankfurter’s life. It was the absolute
height of his aspirations. He had made himself– and I
really mean “made himself”– into a protege, first
of Louis Brandeis, who then became a justice
of the Supreme Court; then of Oliver
Wendell Holmes, Jr., who was already a justice when
Frankfurter attached himself to them. He revered these men. He respected these men. He emulated these men. And he also used
these men in order to develop a theory of what he
called “judicial restraint,” that he almost exclusively
ascribed to them, as well as to Harvard Law
Professor James Bradley Thayer, whom, it sounded,
to listen to Frankfurter, like he had studied with. Although, in fact, Thayer had
died a year before Frankfurter came to Harvard Law School. And from their extraordinary
and extraordinarily disparate ideas, Frankfurter
had crafted a single theory, according to which, the
right thing for judges to do would be to hold
themselves back, to restrain themselves,
in his term, from using the Constitution
of the United States to strike down legislation–
generally progressive legislation, but
Frankfurter thought it applied to all legislation–
that those legislatures had enacted, that some judges and
justices believed violated the US Constitution. So just to be very
clear, this was the ultimate anti-judicial
activist theory. And it wasn’t a perfect fit
for any of these figures, in part because on some topics,
like the First Amendment, Holmes and Brandeis
were actually prepared to be somewhat activist
and certainly more activist than their peers. And their motives were all
very different in the sense that, for example, in
the case of Brandeis, Brandeis liked
progressive legislation, so he didn’t want conservative
courts to strike down that legislation. Holmes was a kind of a nihilist. And he thought that
if the people wanted to make the country into
a socialist dystopia, his job was to let them
do it, as he famously said on multiple occasions. Thayer was a
historian who wanted to make the argument
that judicial review was very rare in the
American history of constitutional analysis. So they had
different approaches, but Frankfurter made them into
a coherent theory, which, as I say, he attributed to them. And crucially,
Frankfurter believed, when he was named to
the Supreme Court, that he would have
the opportunity to make the doctrine
of judicial restraint into the dominant controlling
doctrine for the US Supreme Court. He would be able
then to reverse what had been several
decades of intermittent, but occasionally very
intense, judicial activism of a libertarian strain
that had struck down, in the name of the protection of
private property, wage and hour legislation and other kinds
of progressive legislation. Now, this was not an irrational
thought on Frankfurter’s part, because the same president
who had appointed him, Franklin Roosevelt, was in
the process of appointing many other justices. Ultimately, a grand
total of nine justices, including the transposition
of one justice from a sitting justice to the Chief Justice,
a dominance in appointments unmatched by anyone
since George Washington, who didn’t have to replace
anybody on the court because there was no court. So it was reasonable
for Frankfurter to believe that other Roosevelt
appointees would share his predilection for
judicial restraint, because he was, in fact, the
acknowledged intellectual leader of the progressive
wing of constitutional thought as it then existed. If you’d asked the other great
justices of that era, when they went on the court,
who was the most important constitutional
thinker alive, all would have said,
without a moment’s hesitation, Felix Frankfurter. And I include Frankfurter
in that assessment. In the very first weeks
that he was on the court, Frankfurter almost immediately
encountered an opportunity to test these theories in a
very important case involving Jehovah’s Witnesses, kids,
actually, who did not want to salute the flag and
recite the Pledge of Allegiance in the small coal mining town
where they were suddenly being required to do so as part of
the patriotic uprising that went on in the country
on the way to war. Frankfurter insisted that
although he personally thought that it
was a terrible idea to force young people to
salute the flag, nevertheless, it was necessary for the
judiciary to restrain itself, to hold itself back,
and not to strike down the act of the local
school board that required the children to
salute on pain of expulsion. For Frankfurter, this
was a perfect vehicle to express the
ideal of restraint, because he could
say, my entire life, I’ve been a civil libertarian. And sure enough, he had
been a founding member of the board of advisors,
as Martha mentioned, of the Civil Liberties Union. And he could say, you see, I
believe that this decision is substantively wrong. And yet, watch me–
and as it turned out, seven of the other justices
for a total of eight justices– restrain ourselves
from striking it down, just as we believe
the conservative property-protecting judges
should have been restraining themselves over the
previous decades when there was legislation in
play that they didn’t like. And this, for Frankfurter,
embodied the goals of judicial restraint. And it suggested he was
on a path to success, further confirming his joy
that he experienced on Brattle Street in his underwear. Within a couple of months, it
became clear that Frankfurter had overplayed his hand. Why? Well, there were a series
of attacks across the United States directed at
Jehovah’s Witnesses– kind of mini pogroms,
if you will– in which, actually, a Kingdom
Hall was burned and several people were
badly physically injured by angry mobs. And the other liberals on the
court reacted terribly to this. That is to say, they
reacted appropriately. They were incredibly
upset and they said, what have we done here? We had the votes to strike
down this enactment, and we didn’t do it. And several of them
began to send up smoke flares of the
kind that Larry, as such a genius at seeing
in the Supreme Court’s dense doctrine, hinting
that they wanted another case before the Supreme
Court with the exact same facts so that they could
reverse themselves. And just a few years later, a
little further into the war, they did exactly that. And Frankfurter was devastated. It appeared that the doctrine
of judicial restraint itself that he believed in and that
these other justices were supposed to believe in
was being repudiated before his very eyes. And he wrote an impassioned,
profound, remarkable descent that his colleagues
begged him not to publish in the form
in which he wrote it, in which he insisted
that, as a Jew, he knew what oppression was. He knew what it was
to be a minority. But that as a judge,
he said, as judges, we are neither Jew nor Gentile,
Protestant nor Catholic. This was his intentional and
self-conscious paraphrase of Saint Paul’s statement
that there is neither Jew nor Gentile,
nor male nor female. All are one in Christ Jesus. This was not a coincidence
for Frankfurter. This was a profession
of faith, and it was a very Frankfurtarian
profession of faith. He mentioned that he was
Jewish for the sole purpose of disclaiming any influence
of his Jewish identity on the decision. And simultaneously,
he substituted, again very
self-consciously, faith in American
constitutionalism, faith in a certain vision of the
meaning of the Constitution, for the content of
religious belief implicit in the
Pauline reference. So Frankfurter was saying,
there is a religion here. I have a religion. And that religion
is Americanism. And he frequently
said that in his life, although on one
or two occasions, he said that the
only institution that inspired any true
religious feeling in him was the Harvard Law School. And I think he meant it. Because he associated
the Harvard Law School with being
the place where this form of constitutional
values had been learned and, indeed, where, as a
result of Frankfurter’s influence and the appointment
over subsequent years of his students
to the faculty, it continued to be
taught much longer than at any other
comparable institution. Now, the consequences of the
split between Frankfurter and his liberal colleagues
are fairly well known, and I spend a lot
of time in the book that Martha mentioned
talking about them. So I won’t belabor
it for you now. But I’ll just say,
in a sentence, that the consequence
was, in fact, that Frankfurter’s great
liberal colleagues, who were Hugo Black, William O.
Douglas, and Robert Jackson, each felt the impulse to develop
his own grand theory of how the Constitution
should be interpreted. And they developed those views
through the personal vector of profound mutual detestation. So this group of friends
became bitter enemies, and I mean bitter. Frankfurter said to
somebody about Douglas that he was the only truly
evil man I have ever known. And at the height of
the war against Germany, Douglas nicknamed Felix
Frankfurter– who was 5′ 5″ in his shoes, not in
his stocking feet, and sometimes still spoke with
a Viennese accent– Der Fuhrer. So I’m not describing
a kind of mild dislike. I’m talking about
profound hatred. These men, who had been
allies, became enemies, and the form that
their hatred took grew out of and was nurtured
by their different views of what the Constitution
truly ought to mean. Act two. And here I’m transitioning
from material that I worked on in
Scorpions to material I’m working on now for what
I fervently pray will someday be a book about James Madison,
the Father of the Constitution, as he is often called. And I’m going to take a
specific day in Madison’s life, as I took a specific day
in Frankfurter’s life. And that’s the day in the
middle of December of 1788 when Madison was on top of
the world in much the same way that Frankfurter was
on top of the world when he was nominated
to the Supreme Court. So what did James
Madison’s world look like in December of 1788? Well, he had spent the
previous five years trying to convince people that
the Articles of Confederation needed to be replaced with
something new, a constitution. And it had taken a while
for him to convince people of the necessity of this. There was a first
failed convention in Annapolis, Maryland. Then a year later, the
Philadelphia Convention. At the Philadelphia Convention,
Madison had taken the lead. Through the mouth of his
Virginian colleague, Edmund Randolph, he had
proposed a plan that was a pure blueprint for how
the Constitution should look. They didn’t get everything they
wanted, not by a long shot, but they got most
of what they wanted. And in that sense, at least,
the Constitutional Convention was a product of
Madison’s initiative and Madison’s execution. That wasn’t all. That had ended the year
before, in September of 1787. Then it had become necessary
to argue for the ratification of the Constitution. And Madison had engaged
over the previous year in an intense
intellectual effort alongside Alexander
Hamilton, who had also been a delegate at the
Philadelphia Convention, in producing the
Federalist Papers, which, although not
originally published nationally– they were
originally published in the New York newspapers– very quickly
were collected and sent across the country,
and were intended to be and were understood
by contemporaries as a full-on philosophical
justification for the new
constitutional design that had come into existence. And they were full of
original new ideas, almost all of them developed by Madison
over the previous couple of years, and then reaching
fruition and development in the course of
their composition. So an extraordinary outpouring
of intellectual creativity, comparable, I
think, perhaps only, that I can think of, to Einstein
at the height of his powers, producing two of the most
important papers in the history of physics in a relatively
short span of just a little over a couple of years. This is comparable. If you’re a
constitutional lawyer, I think, Madison
is our Einstein. That wasn’t all that Madison
had done in the previous year. He had, last but not
least, had to have an actual, brutal, knock-down,
drag-out political fight in the Virginia Ratifying
Convention with Patrick Henry, the most powerful
politician in Virginia, the greatest rhetorical exemplar
of his age, called by everybody the greatest orator that
anybody had ever heard, who had fought tooth and
nail against ratification of the Constitution. And Madison was not a
great public speaker. He was almost exactly the
same height as Frankfurter. He lived in a time before
the wonders of microphones. His voice was high-pitched
to begin with. And when he spoke,
frequently, the reporter on the ratification
convention would write, I just couldn’t hear
the rest of this speech. That happened frequently. Some people think
that’s actually the reason that Madison himself
took notes in Philadelphia. He knew if somebody
else took notes, they wouldn’t get everything
that he had to say. And he wanted to make sure
that what he had to say made it front and center. Now, this was an
incredible victory, and it had been a
close-run thing. The politics of Virginia
we’re not at all clearly pro-constitutional. The tidewater liked the
Constitution and the backwater did not. And there are
interesting reasons for that, which I’m
happy to discuss if people are interested in
the questions and answers. So Madison conceived the
Constitution, executed the Constitution,
defended the Constitution in intellectual terms, and then,
in practical, political terms, won ratification. Pretty good. Then what happened? Well, Patrick Henry was not
so happy with his defeat. And he was still the
most powerful politician in the state. And he controlled the
state legislature. The state legislature was
supposed to elect the senators. Madison’s friends put him
forward for the Senate. It was obvious to them
that he would be elected. And he was not. Patrick Henry provided it
for two other candidates to beat him. Then Madison’s friends
said, no problem, we’ll just elect you to Congress. Seems like a nice,
neat solution. And Patrick Henry thought
about it and had a brainstorm. He decided that he would
first gerrymander– the word didn’t yet exist, although
Elbridge Gerry did– gerrymander the new electoral
districts for Congress, which were coming into
existence for the first time. So among other things,
I’m telling you that “gerrymander” is
even older than elections in the United States, in
congressional elections. To put Madison’s home district
in the same district as James Monroe, who was Madison’s–
one of his two or three closest friends in the world– whose
politics were almost identical to Madison’s. But– and this was the big
difference between them– had moderately opposed
ratification in the convention. Then he further arranged
that the district should include many
areas which were known to be against ratification. So if you think about
all the elements of that, he had set it up so that
not only would Madison not get elected to
Congress, but he would be beaten by one
of his closest friends, who he couldn’t really campaign
against very vociferously. And Madison remained
somewhat composed, but his original plan
had been to remain in New York, where the old
Articles of Confederation Congress was meeting. And he realized
he would probably have to come home now in order
to actually campaign, which he did. And in the bitter
cold of winter, he went head to head with
his very close friend over the question
of being elected. And I just noted it,
because it’s truly funny. An account that
Madison gave later of what it was like on
one particular meeting that they had, which took
place in a German church in Culpeper County. “Service was
performed,” he says, by which he means
religious service, “and then they had
music with two fiddles. They are remarkably
fond of music.” He’s talking about the
German religious enthusiasts. “When it was all over, we
addressed these people”– now, “we” is he and Monroe– “and
kept them standing in the snow listening to the discussion
of constitutional subjects. They stood it out
very patiently, seemed to consider
it a sort of fight of which they were
required to be spectators. I then had to ride in the
night 12 miles to quarters, got my nose frostbitten, of
which I bear the mark now.” And then, according to the
person who wrote this down, he touched his nose
on the left side, mentioning his scar of battle. Now, most people, faced with
one of their best friends in the world, trying to
stop them from getting elected to Congress,
and, thereby, essentially destroy their
political careers– and it would have destroyed
his political career, because this was on the heels
of this massive [INAUDIBLE] of ratification. If he’d immediately been
voted out of office, he might well have never
come back into politics. And by the way, he couldn’t just
go into the executive branch, because the executive
branch was going to consist of something like four people. And the jobs were spoken for. Hamilton was going to be
Secretary of Treasury. Knox was going to
be Secretary of War. And Jefferson, Madison’s
closest friend in the world, was going to be
Secretary of State. And it wasn’t clear if anyone
would work for these people at all. So he didn’t have a lot
of other good options. So most people under
these circumstances, when you throw in the cold, and
the frostbite, and the Germans, and the fiddles, would not have
been so happy about the fact that this was happening. Well, in the end, Madison won. He comfortably defeated Monroe. And he wrote the
following letter to Thomas Jefferson,
which I just find so extraordinary that,
again, I’m going to quote it. And this is all for
quotations, I promise. Now, remember,
Jefferson was in France. And Madison never told Jefferson
early on in the campaign that he was going to
run against Monroe. Monroe was also a
protege of Jefferson’s. And they were Jefferson’s
two closest proteges. In fact, Jefferson
repeatedly, in the years before this, and
even in the months running up to the election–
which he knew nothing about, he was in another
country– was writing both to Monroe and
Jefferson, urging them to buy property
near his Monticello so that they could all live
together in a kind of coterie, in which they would
be essentially his adoring, younger proteges. And they got along
with each other, although, apparently, there
was some competitive spirit. Otherwise, Monroe would
not have run for office. I think I neglected to mention
that Monroe was also lured to running by Patrick Henry. So he knew that Henry
was behind this. So I would have thought of this
as a great act of betrayal. And here is Madison’s
description after the fact. He writes to Jefferson,
“It was my misfortune to be thrown into a contest
with our friend Colonel Monroe.” Note the passive
voice, “to be thrown.” “The occasion produced
considerable efforts among our respective
friends,” which is a polite way of saying that
their various friends went to war with each other in order
to try to get each elected. The word “friends”
is interesting. Now he says,
“Between ourselves”– he means himself and Monroe–
“I have no reason to doubt that the distinction was duly
kept in mind between political and personal views. And that it has
saved our friendship from the smallest diminution. On one side, I am
sure it is the case.” Now, that’s an
extraordinary letter. Whether it was sincere or
not, it’s extraordinary. To say that we maintained
the distinction between our personal views,
and our personal feelings, and our political views was to
introduce a kind of utopian, I would say, distinction,
in which they could go on being close friends. And he was telling
Jefferson, whom he knew would tell Monroe,
that as far as I’m concerned, we’re still going
to be good friends. Even more extraordinarily,
they were still good friends. After just the slightest
lull in the frequency of their communications,
they start writing back to each other, and they don’t
stop for the next 25 years, until Madison gets
to be president and makes Monroe his Secretary
of State and then his heir. And Monroe becomes president
of the United States. So Madison was actually
walking the walk as well as talking the
talk of friendship. Now, there’s a
conception here that’s distinctive to small r
republican government ideas and as well to Madison’s
constitutional vision that I want to suggest. And that is the idea that a
well-drafted constitution– and this is the
belief that Madison held when he wrote
those words in 1788, ’89– where people of
good will remain friends even as they differ
on political topics, and the structure
of the Constitution solves the problem of faction. Faction is defined
as the efforts by any one group of people to
turn the state’s interests, the republic’s
interests, against that of the true interests
of the people. Obviously, you can
see there’s a question of whose interests those are. But if anyone tries to
do that, that’s faction. There’s a true public interest,
a true common interest, and you’re meant
to achieve that. And faction is anything
that deviates from that. And Madison had come to believe
that by expanding the republic famously to a broad
scale, he could solve the historical problem
of faction that had plagued republics by
creating a republic that would, almost by magic,
allow for disagreement without that disagreement
becoming faction. He would therefore
having invented– and he thought of
it as an invention or as a creation of his own–
a kind of transformative type of constitutional
government in which a republic could subsist without
breaking into partisan pieces. It was for this reason that
the great historian Richard Hofstadter, and social theorist,
said that Madison had created and believed he had created a
constitution against parties. The idea was to break the
possibility of parties, which are the engines of faction, and
to assure a world where we all would get along in just
the way that Madison was mapping in his
relationship with Monroe. They had disagreed
about ratification. They had disagreed
about the right way the country should go. But they did it mildly
and within the context of a more general agreement. And so therefore, they
could remain friends. Thus much Madison’s
worldview as of the spring. Then he went to the real
Congress, the new Congress, which was then in New York. It would be nice to say
he went to Washington, but it was in New
York at the time. And things almost immediately
got a lot more complicated. And they became complicated in
the person of his closest ally in the ratification process. That is Alexander Hamilton. Now, Hamilton and
Madison were not just colleagues, but friends. And they had collaborated in
a deep sense on the production of the Federalist Papers. And Madison believed that
although at the Constitutional Convention in
Philadelphia, Hamilton had said some shocking things–
I’ll mention one of them to you in a moment–
that nevertheless, he had changed his views and sort
of come along with Madison for purposes of ratification. He had been convinced. Now, the thing that
Hamilton had said that maybe should have given
Madison a hint that things were more complicated was that at
the Philadelphia Convention– which, as you know, was
secret among the members. They took an oath,
which they kept, not to reveal the proceedings. Hamilton said that
only a monarchy, a constitutional
monarchy, but a monarchy, could possibly hope to govern a
country as broad and disparate as the United States. And the other delegates
were pretty shocked. He was the only person at the
entire convention, 55 people, who ever openly spoke
in favor of monarchy. Others might have
secretly agreed, but he had no compunction
about saying it straight out. And he actually– in
the course of condemning the plan of the so-called
New Jersey Plan, which was a sort of continued
version of the Articles of Confederation, and also
Madison’s Virginia Plan– he concluded his long
speech on the topic, Hamilton did, by saying
that even the Virginia Plan was pork still but
with a different sauce. This was not meant to be praise. The idea was that they were
both some smelly old piece of pork, not a really true,
proper governmental system. But the sauce was
a little different. Namely, it was the sauce of
being a little bit more small r republican, a little bit
more nationally democratic, we would say, using
anachronistic terms. So that’s what
Hamilton had said, but Madison believed
Hamilton had changed. And Madison believed wrong. And in the first two
years of the Congress, Hamilton engaged in a series
of three proposals which were written into reports. They were called reports. They were 60-, 70-page
essays, which were made public and given to the Congress,
what was really a period of creativity on his
part, comparable, arguably, to what Madison had
done in the sphere of policy. And I won’t belabor it,
but essentially, the first proposed the creation
of a national debt, in part by the buying
up of state debts, with the goal of consolidating
the national economy and aligning the interest
of the bond markets with the interest
of the government, and thereby assuring a
commitment from capital to the continued
preservation of the republic. Madison thought this was the
worst idea he had ever heard, and he opposed it
tooth and nail. Ultimately, though,
a deal was struck between Madison and Hamilton,
with Jefferson presiding, in which Madison agreed
to vote for the bill, or simply not to object
to the bill, which created the assumption of state debts
by the federal government in exchange for
Hamilton agreeing to move the capital not to
New York, where he was from, or Philadelphia, which was
also close to the markets, but to a godforsaken
swampy sot spot on the banks of the Potomac. So Madison didn’t like it, but
he agreed to make the deal. Hamilton was just
getting started. Next, he proposed the creation
of a national bank, which would be able to
issue paper money, create liquidity, and
get the economy running. Madison thought it
was a terrible idea. But he didn’t stop there. Now Madison started to declare,
both in writing and in speeches in Congress, that Hamilton’s
plan violated the Constitution. Why? Well, the Constitution was a
constitution of limited powers, and there was no explicit power
to establish or incorporate a bank. I won’t get into the
details of who was right or who was wrong about this. It’s itself a very
complicated question. But suffice it to say that
it was a plausible argument that he was making. But notice that he wasn’t simply
anymore saying that Hamilton had a bad policy idea. He was saying that Hamilton’s
idea was out of court. It couldn’t be proposed
in the United States, because the United States
wasn’t the kind of republic where a bank was an option. There was yet a third component
of Hamilton’s plan, the last, which was to take an
agricultural republic and turn it into a modern
manufacturing industrial state. The Industrial Revolution
had begun in England, and he intended for it to
continue in the United States. And to do that, he proposed a
system of systematic tariffs and, more importantly,
subsidies for manufacturing. Now, Madison had imagined
an agrarian republic. What he was about to get,
according to Hamilton, was a debt-maintaining,
industrial trading state. Could not have been a
more different vision. And again, Madison
didn’t restrict himself to saying this was wrong. He said it was unconstitutional. Why? Again, the same argument. No authority for subsidies
anywhere in the Constitution. Over the course of the
increasingly brutal fights between Hamilton
and Madison, they, who had been friends and allies,
turned into enemies, a word that they themselves used. Each founded a newspaper. Each founded a political party. The man who had designed the
Constitution against parties created one of the first two
American political parties within three years of the
closing of the process of drafting that constitution. And they went to
war with each other. And in his writings in the
newspaper that he founded, Madison openly said, who are
the friends of the republic and who are the enemies
of the republic? And then he gave a
description that was obviously referring to Hamilton. So, a process had
happened whereby alliance and
friendship had turned into partisanship and enmity. Act three, in which I shall
try to compare these two processes and make some
more general suggestions about the structure
of meaning-making, and constitutional dispute,
and political enmity. Everything I’ve said to you
until now is more or less fact. Everything I’ll say to you
in the next few moments is more or less
interpretation and therefore open to contestation,
debate, and disagreement. I mean, you can argue
with the other stuff, too, but it’s a slightly
different type of argument. So what do these two
examples have in common? Superficially, there’s some
interesting points of contact. Two very small men with a very
great talent for friendship. Each with many,
many close friends. Each entering the
political sphere in an idealistic and
naive way, believing in the possibility of
concert and agreement within the sphere
of political life. Each having created
something remarkable. In Madison’s case,
it’s foundational. And in Frankfurter’s
case, interpretive. And each discovering that
that feeling of euphoria, when you think it’s
all going to work out, is not sustainable in the real
domain of actual politics. And each then
discovering that people whom he imagined to be his
friends could be his enemies. Well, there’s a simple
and, in my view, too simple theory that might account for
what each of them encountered. And I intended to allude to it
in the title of this lecture when I spoke about
friends and enemies. And that is the
famous definition of a concept of the
political provided by the German and Nazi
legal theorist Carl Schmitt, one of the most fascinating,
brilliant, and personally repugnant thinkers in our
canon, that’s assuming he’s in our canon. I the huge privilege
of teaching with one of my former teachers,
Joseph Koerner, a course on Schmitt a
couple of years ago. And I was thinking
a lot about Schmitt when I was starting to think
about the Madison Project. And I think we agreed
on very little, but we agreed that
Schmitt was a nasty fellow and that he was an
interesting person whose ideas were extremely valuable. Well, Schmitt says
that the political is the space for the distinction
between friend and enemy. That’s the constitutive feature
of the political for Schmitt. Friend is not just the people
you like to hang out with, and enemy is not just people
you don’t particularly care for. Your friend is someone who
participates jointly with you in the project of the
society, especially the political
projects of society. Your enemy is
someone who attempts to subvert that process
or who you believe may subvert that process. And what you do
with your enemy is you seek to destroy your enemy. You may seek to destroy
him politically, as, indeed, Madison
did seek to destroy the Federalist party created
by Hamilton, politically. Or you can seek to
destroy him literally, which was the interpretation
of Schmitt that was adopted by some
of his fellow members of the Nazi party. Now, you could apply
a Schmittian analysis to this picture. And I think if we had Carl
Schmitt here, like Marshall McLuhan, he would say, exactly. The naive liberal is he who
believes, as Frankfurter did and as Madison did
before him, that there can be conditions
of politics where we can all smile and get along. And that naive liberal
is quickly disabused of his ignorant position. What’s more, I
think Schmitt might be able to say, it
matters that we’re talking about constitutional
analysis here, because constitutional
analysis is about the most fundamental
political components– sorry– political commitments
that we have. You might be able to
disagree with someone without destroying him. In some form of politics,
that’s not truly political, because it’s too trivial. But when you get to
the heavy lifting, the big stuff, the
Constitution, it’s going to be about total victory. It’s going to be
about destruction. And it’s going to be that way,
because the stakes are so high. And I think when
I started writing, I don’t know if I would have
put it quite as bluntly as that, but I entertained the
thought that perhaps that was the right way to think about
the process of movement from a theory of friendship to
a reality of enmity in the lives of Frankfurter and Madison. And by extension, just to make
the obvious still more obvious, in a political entity
like the United States, in which every
generation bemoans the terrible partisanship
that appears to be unprecedented but never is. And our present
moment is obviously just another example of that. But I don’t think that
the Schmittian account is sufficient to explain either
the experiences of Frankfurter and Madison or the underlying
phenomenon of partisanship which we engage, or perhaps
even the distinctive features of constitutional debate. And one reason to think
that is an argument that my son [? Jamen ?]
was just making to me as we were coming up the
steps on the way in here when I was trying to
describe my argument, where he said that it can’t be
that constitutional debate is the only area where
there’s friends and enemies, because there are
all kinds of bitter and intense partisan political
debates that exist and take place outside
of constitutional debate. People are doing that in state
legislatures all the time, I think was the specific
example you gave, right? So, you know, that’s
a good argument. And it made me feel a
little nervous for myself, although, generally
positive for the future. And I think it’s
a good challenge for asking the question of
whether the constitutional context of these debates
that I’m describing might shed any light on why
Schmitt is not completely right, though I’m not going
to go so far as to say that he is completely wrong either. Instead, I’m going to
try to say that Schmitt is good to think with. So what’s the core of the claim? I think it has to
do with the way that constitutional
practice creates a series of political
discussions or discourses that allow us to act as
though the other side is our true enemy, without
actually transforming the other side into the
kind of enemy whom one would want to destroy absolutely. Even, I’m going to suggest,
in the content of his views. Not just physically, but even
in the content of his views. So let me just make sure
the hypothesis is clear, and then I’ll try to bear it out
for about two or three minutes. And then we can, with any luck,
have a conversation about it. And I see enough of my
students in the room that I know someone’s going
to tell me how wrong this is. So the argument
again is that there’s something distinctive about
defining a polity in terms of constitutional
commitments, arguing in terms of those constitutional
commitments, and sustaining the
structure of partisanship through those
constitutional commitments, that paradoxically,
at least for Schmitt, enables you to look on
somebody, call him your enemy, and have him not
really be your enemy. He’s sort of a
pseudo enemy to you. And that you may not
like what he says. You may even claim you want
his views to disappear, but in fact, you don’t fully
want his views to disappear. So what would that feature be? What would make constitutional
discourse able to do this? Well, here it’s useful to talk
about Madison’s experience, because Madison, first,
is the first person to frame a
constitutional structure and call it a constitution. And then he’s one
of the first groups of people, one of the
first groups of people, to use that
constitutional structure to argue for the wrongness
of the other side. That is to say,
having first framed this idea of a constitution,
he is then the first person to exploit, much against
his own expectations, the constitutional
structure to say that his political
enemies are not just wrong, but unconstitutional. They’re outside the bounds
of the Constitution. So what were the benefits
to him of doing this? What were the advantages
that grew out of it? And I don’t think he was fully
conscious of these, by the way. I’m not making a
claim that he– I’ve been so far inside the papers
that what I’m about to say is not something
that I think I could bear out by an account of his
conscious thinking process. I think the
advantage that he saw was that constitutional
discourse, when it had been backed up by broad
public acceptance, created a common rhetorical
frame of reference in which you could tell people that someone
whom you disagreed with was in fact disagreeing
with the overall consensus that everybody else had held. Now, that sounds,
on the surface, like a great recipe
for turning that person into a political enemy
whom you then destroy. Right? They’re outside the bounds. But it turns out that you
can make that argument even while you’re simultaneously
in the same legislature making policy
arguments against them, not constitutional
arguments, and saying they’re doing a terrible thing. That means you’re signaling
to everybody that it’s possible both to say
that somebody is wrong, and to keep on
arguing with them, and– here’s the punchline–
to be willing to accept defeat in the sphere of politics of
your constitutional arguments. Now, this is the part of the
argument that’s harder for us to realize, because we’re so
used to Frankfurter’s world, where there’s judicial review,
and you go to the Supreme Court, and you say,
my opponent’s view is violating the Constitution. And the court either
says yes or no. In Madison’s world,
the Supreme Court’s not engaging in judicial review. It’s barely even
appointed in this period. In fact, I think it’s not yet
fully appointed in this period. And it’s certainly
not going to engage in any serious judicial
review for a good, long while. And even then, only rarely. What Madison is
doing is that he’s in the legislature making the
argument that the other side is violating the Constitution. And then, three times
in a row, he loses. How does he lose? Through the same constitutional
structure that he himself created. Hamilton’s got more votes. And what does
Madison do each time? Does he declare the other
side to be the enemy? Well, he uses those words. Does he go to the streets? Nope. Does he try to shut
down the government? Nope. He just enables and allows the
entire constitutional structure to keep on running,
just as he designed it, with the small
footnote that it’s no longer the same
constitutional structure that it was previously. It’s not the same. It’s been changed. Hamilton says, it is
in the Constitution. There’s a general
welfare clause. It says Congress can tax
for the general welfare. He says it explicitly. Madison says, if that’s the
meaning of the Constitution, we don’t even have a
constitution anymore. Hamilton says, watch me. I have the votes. In that structural context,
you can declare the other side to be the enemy,
and you can keep on working within the system. You have a cover
that facilitates your continued
commitment to the system, even as you’re making this
incredibly, I would say, overwrought political
argument that the other side is outside the system. But you’re signaling
to everybody simultaneously that you don’t
really fully believe it. And that, [? Jamen ?], I think,
is part of the reason, I think, why you have people fighting,
fighting, fighting about things that are not
constitutional politics, and that’s totally a
normal part of politics. It’s also normal in the
constitutional debates. There’s always a
normal political part to the constitutional debate. You say that the Affordable
Care Act is terrible policy, and you say that it
violates the Constitution. And everyone knows
you’re saying both. They’re not exactly
interchangeable. They have different
implications. But they commit you to this
broader structure of argument in which you can use the
vocabulary of political hatred without engaging in
the practices that would actually cause you to
treat the enemy as an enemy. You’re not actually
treating the other side as your political enemy. The Republicans
of Madison’s world are not treating the
Federalists of Madison’s world as actual Schmittian enemies. They’re just speaking as
though they’re actual enemies. And key point, they’re using
the Constitution to enable them to talk that way, because
the Constitution lets you say, you, my friend, are outside
the structure of this polity. It turns out it’s great to
be able to call somebody your enemy, as long as
you don’t act on it. And in another sphere, once
you say they’re the enemy, someone will say to
you, well, if they’re your enemy, why aren’t you
doing anything about it? Madison could say,
well, the Constitution. That’s not a perfectly
consistent answer, notice. You could say,
well, no, you should be doing something about this. You say to Al Gore,
Bush v. Gore is a preposterously,
[? consternately ?] false decision. Obviously so. So let’s see how many people
in the army will listen to you. I mean, it’s funny, but the fact
that it’s funny is evidence. Right? The fact that that’s funny
is data for the observation that this constitutional
structure actually enables a certain
kind of masquerade of Schmittian politics. It’s a masquerade of
friends and enemies in which you treat
others as an enemy. You may even emotionally feel
that they’re your enemies. And believe me, there’s lots,
lots, lots in Madison’s papers and even in his
public writing saying that Hamilton wants to turn the
United States into a monarchy. So I want to close with an
interesting but, in a way, sad, but also, I think, in a
certain respect, heartwarming anecdote, about the very end
of Madison’s political dispute with Hamilton. Right when Hamilton
retired from office– and by this point, Madison
hated Hamilton so much, he was full of
paranoid fantasies about why Hamilton quit. Actually, Hamilton quit
because he was broke. The Republicans
imagined that Hamilton, who served the interest
of the financial markets, must’ve been terribly
corrupt and built up hundreds of thousands of dollars. One report said that he had
300,000 pounds sterling. In fact, he was very
close to bankruptcy. Whatever his flaws– and they
were many and extraordinary– Hamilton was actually
not dishonest, not on that dimension. So after Hamilton
disappeared from the scene, George Washington
was all that was left on the Federalist side. Now, Madison revered Washington. And he had used Washington
in much the same way that Frankfurter used
Brandeis and Holmes. He had convinced Washington,
along with Edmund Randolph, to attend the Philadelphia
Convention to draft the Constitution,
because he knew that if Washington, the most
respected man in America, was there, the whole
thing would not appear to be either
revolutionary or, in other ways, prohibited. So he had used him. And they were friends. And in the early years
of the administration, Washington used Madison back. Washington’s first
address to Congress, what we call today the
State of the Union speech, he asked Madison to draft
it, which Madison did. Then it was read
out to Congress. And then Madison drafted
the Congress’s response to the president. And then Washington asked
Madison to draft his response to his own response to
the speech he had written, and Madison did that, too. So this is a picture of close
political collaboration. By late in Washington’s second
term, that was all gone. That was all gone,
because Hamilton had forced Washington to
choose between him and Madison. And Washington had
gone with Hamilton. And it’s a story
for another day, but just there was not no
foreign policy in this speech, Hamilton and Washington
were pro-British. Jefferson and Madison
were pro-French. France and England went to war. They were constantly at war,
but there had been a lull. And the lull ended, and
they went back to war. And the United States
had to choose a position, and the United States
had a treaty with France, unsurprisingly,
because France had helped the United
States beat Britain in the Revolutionary War. And there was a treaty where the
United States was pretty much obligated to come to the
aid of France in case of war with England. And Washington decided he
didn’t want to follow that, and he issued unilaterally a
proclamation or declaration of neutrality, where
he said that the United States would be neutral. And Madison went ballistic. Now, he was upset in a
political way by the fact that Washington was siding with
England and not with France. Since, if you’re supposed to
join one side in the treaty fight and you instead
declare your neutrality, you’re essentially
joining the other side. So that was the ordinary
political side of it. But Madison wasn’t done. He had a new tool, which
he had honed in his battle with Hamilton. And the tool was the
argument– you guessed it– that the other side’s action
was also unconstitutional. And he started
writing and saying that George Washington had
violated the Constitution, because it wasn’t for
the executive branch to declare matters
of peace and war, it was for Congress to do that. Since Congress had the
power to declare war, Congress surely
must have the power to declare peace, or neutrality. Now, I don’t know if
this argument is quite as strong as the arguments
that he made about the bank, but nevertheless,
the point is that he made it and made it loudly. And George Washington– a man
so concerned with his honor that almost every private
letter that he ever wrote is full of requests for advice
about how he could act in such a way that he won’t
violate his honor– was enraged by the idea
that the Republicans and, in particular, Madison
would actively and openly accuse him of violating his oath
of office to the Constitution, drafted at a convention of which
he was the presiding figure. And he stopped
talking to Madison. And he cut him off. And one by one, he began to
pick off Madison’s friends and associates publicly. Monroe at the time was
ambassador to France. Washington had him publicly
recalled in humiliation. Edmund Randolph, another very
close friend of Madison’s, was attorney general. Washington accused him of
being in the pay of the French on the basis of
some iffy evidence from French dispatches that
had been stolen by the British and handed to the president. He never openly was able to
go after Madison in this way, probably because Madison lived
such a life of extreme probity, not to say altogether boredom. But Washington made it very
clear that Madison was now on the outside. He was out. Now, what are we
going to make of this? On the one hand, this
tool of the accusation of unconstitutionality
was being used in a way that would have made
George Washington the enemy, in just the same way that
Hamilton would be the enemy. Extremely powerful,
rhetorically. On the other hand,
George Washington was George Washington. I was referring to him
earlier in conversation with the kids as the first
president of the United States, and [? Mina ?] said
to me, uh, yeah, we know he’s the first president. So I won’t repeat that he’s the
first president a fourth time. But the fact is, his
status and his stature were unimaginable in
contemporary terms. I mean, there’s nobody
in our public life who comes anywhere
near the importance or the preeminence
of Washington, or his untouchability
in public life. And Madison was accusing him
of violating the Constitution. And we know that it was a
meaningful charge, because we know how Washington reacted. And yet, at the same
time, by this point, Madison knew that no
one in the country was going to start
treating George Washington like the enemy. And even he couldn’t really
bring himself to do it. Though, in his private letters,
he comes awfully close. And as soon as Washington’s
out of office and John Adams replaces him, Madison starts
saying publicly, oh, Adams is so much worse than Washington. Washington would never
have done this, that, or the other thing, which, in
every case, is not the case. Adams was actually much closer
to Madison than Washington was. But it’s almost
as though Madison can’t bring himself to fully
treat Washington as an enemy, because you couldn’t treat
the father of the country as the enemy. So I’m going to
suggest that this shows this masquerade in action. We have this tool of the
expression of politics, of the expression of
constitutional disagreement, which creates the
masquerade of the Schmittian political, while enabling
us to keep on operating. So the final conclusion
is an optimistic one. It’s that when you
look at our politics, and when you mourn and bemoan,
as we have to mourn and bemoan the unprecedented degree
of partisan hatred and the incapacity of anybody
to get anything done– and we’re going to hear a lot
of this over the next two years, even more than we’ve heard
over the last two years– just remember that this
structure, which, in our world today, still flows along
constitutional debate lines frequently– we’ve got our
originalists on one side, and we’ve got our living
constitutionalists on the other side. And sure enough, they
magically correspond to the Republican Party
and the Democratic Party 99% of the time. That practice is
actually not partisanship of the Schmittian enmity type. It is a masquerade
of partisanship, which enables us
to fight intensely, to argue, to condemn, to
express our political passions without actually treating
the people we call the enemy as an
actual enemy whom we would engage with as such. Thank you very much. And I hope to hear
refutations from the audience. [APPLAUSE] Sure. You know I’m not going to call
on anybody, but Martha, please. MARTHA MINOW: That was
fabulous, and it reminds me, in many ways, of a
teacher of music who begins with [? Shostakovich ?]
and then goes backwards. Because we see Madison
very differently after we start with
Frankfurter, through your eyes. My question is, if you’re right
about the masquerade theory, what is the status
of the inability now for compromise
to be [? valid? ?] Is that part of the masquerade? Because politics can’t
happen without compromise. NOAH FELDMAN: So I
think Martha’s asking, as she always does, the
most penetrating question. The problem with the valuing,
the public rhetorical valuing of compromise is that I think
that that formulation, which we all use and which
is, of course, true. I mean, you’re
saying something– it’s a true statement, that
without compromise, there can be no politics. Is that it tends to
identify a particular debate and imagine a middle ground in
that debate as the compromise, and call that compromise. But there’s another kind
of compromise in play also, and that’s the compromise on
the general political context in which everybody is operating. We might not be
able to compromise on this number in the
budget, but we so far have reached agreement or
compromise on not shutting down the government. We’ve come close a
few times, and we’ll probably come close again,
depending on how it polls. But there is still
remarkable consensus. Another way to
think about this is, if you compare us to politics
in some other places, you know, 20 years ago, when in
Europe, there was a real left, Europeans would say,
well, American politics isn’t politics at all. Your two political parties
are the same party. They’re both just center-right
political parties. And there are lots of
good examples of this. The Democratic Party’s turn to
regulatory reform in the 1970s is just the most prominent
and one associated with the Harvard Law School. And now European politics
is more like we are. Their left parties and
their right parties are probably actually
closer together even than our parties are. And the differences
in our political world are often differences,
not all, but often differences on questions
of cultural value, where some kind of cultural
compromise is reached even as
everybody loudly denies that there’s any compromise. And I think gay marriage
is a great example of that. Right now, there’s
still the vestiges of a real political debate. But in 10 years, it will be hard
to remember that there was ever a debate about this. There will be some
compromise in there. There are going to be
some compromises made to evangelicals with respect
to institutional obligations to respect gay marriage. And those will be
painful compromises, and it would be wonderful
to live in a world where they didn’t
have to be made. But they probably are
going to get made. They’re going to be called
constitutional doctrines so no one interest
group has to make them. But the system is going
to facilitate that. So sometimes we’re
in the midst of it, and it looks just so
brutal and uncompromising. But in fact, this structure
enables certain compromises to emerge, again, often
without acknowledging that they’re happening. Scott. SCOTT: What’s your
proof that it’s the Constitution per
se that’s actually creating this masquerade? You know, were all the fights
pre-Constitution true fights? NOAH FELDMAN: So great. I don’t think that
the– can everyone hear the question in the back? So I don’t think
that the Constitution as a political institution
is creating this compromise. I think that– let me say
two things about, first, what a constitution is
and then what it isn’t. I think a constitution
is a political agreement among elites where they agree
on a certain term of reference for subsequent
argumentative debate. And you can do that
without something called the
Constitution, but this is why constitutional scholars,
at least historically, looked at countries
that said they didn’t have written
constitutions and said, oh, no, there it is. Look, there’s the constitution. So on this view–
and this is more an Aristotelian picture–
every political society has something that is the small
c constitution of that country. So in that sense, I think
successful political societies that don’t fall apart– not
Iraq, for examplee– have small c constitutions
and, if they’re lucky, big C Constitutions that
are durable agreements between elites, durable
against a backdrop of continued ongoing
bargaining and negotiation. You know the
Constitution has failed when you have a civil war. Now, it’s worth
mentioning that, not only because of the reference
to Iraq, but also because Madison’s Constitution
only lasted 80-odd years, and then it failed. I mean, the definition
of constitutional failure is a civil war, in my view, and
the American Civil War came. And it’s very difficult, when
you’re writing about Madison, not to drop a footnote every
other paragraph, saying, hey, look at this, this
is exactly– here are the seeds of the Civil War. Here it is coming. Here’s Light-Horse Harry
Lee, Robert E. Lee’s father, writing a letter to
Madison about how if the North keeps doing this,
I’d rather not be in the polity at all. I mean, you want to just
keep on putting bold on it on the foreshadowing, but that
would be bad for the reader and it would be anachronistic
as a matter of historical work. But it’s hard to avoid
thinking that way. But the reason that it’s
not the right way to go is that it did work for
80-odd years, which, as constitutions
go, is a remarkably durable constitution. So all you can do then
is show the fault lines. Show the North-South
fault lines. Show the agricultural-commercial
fault lines. And most importantly, because
I hadn’t mentioned it before, show the fault lines of slavery. Madison himself was born
into the arms of a slave. His eyes were closed after
his death by a slave. He was never for
any day of his life not attended to by a slave. And I’ve got lots
and lots of writing– and it’d be a lecture
for another day– about the complex
worldview of a person who is, and unlike Jefferson,
not a structural racist, doesn’t actually believe that
people of African descent are inferior, and yet is
fully committed to slavery. He’s just as
committed to slavery as Jefferson is, while
constantly disagreeing with Jefferson’s biological
and cultural racism. So that’s itself a
complicated story, and it would be wrong to
give a lecture about Madison without at least
mentioning that picture. I guess the last
thought on that is that the rhetorical structure
of constitutionalism is the thing I’m
really focused on here. But I think that there
is a real structure underneath that enables–
so, OK, here’s the argument. I’m going to put it
as formally as I can. All states that have functioning
small c constitutions have some mechanism where
you don’t treat the other like a true Schmittian
enemy and destroying him. But big C
Constitutionalism, the kind where you call it a
Constitution and point to it and talk about it a lot,
offers one particular mode– not the only– but one
particular mode for discourse where you can play out a
lot of political enmity without actually
going over the edge. So thank you. That helped me
formulate that better. Yeah. Yaseen. YASEEN: Just based
on your description, it seemed as if adversity is
needed for the vocalization of some type of change. But what I didn’t
actually hear was your own personal perception
of the masquerade theory. Because in my opinion, I’m
thinking betrayal, deception, like even the little
game of Madison responding to
Washington’s address, and that kind of back-and-forth. As a member of the public
and citizen in this country, I look back at our
history, and I almost feel like I’m being orchestrated
by those kind of political [? stages ?]. So what is your personal opinion
of this masquerade theory, as it really isn’t just
a much ado about nothing? NOAH FELDMAN: Yeah, that’s
an amazing question, Yaseen. Thank you. That’s an amazing question. And it’s one that I had
hoped to avoid answering, so I appreciate your raising it. When I was a student,
one of the teachers I loved the most was the
late Isadore Twersky, who was a professor of
Jewish Studies, Littauer Professor of Jewish Studies
for many decades at Harvard. And he once wrote a book
review of a very famous essay by Leo Strauss, which
was purported to reveal a secret theory for reading
the works of Moses Maimonides. The theory is
called esotericism. It’s the idea that if you read
the text carefully enough, you can discover secrets
that are hidden in there. And Twersky said in this
review in the journal Speculum– I think I’ve got it
exactly right– that there are secrets in The Guide
for the Perplexed– which is Maimonides’s magnum
opus– a philosophy is certain. Their nature, however,
remains a mystery. So you kind of want to say in
response to Yaseen’s question, well, can’t we talk
about something else? But that wouldn’t be fair. So let me try. Political structures that
involve masquerade do have one important
elitist feature, and that is that some of
the people inside the game know that they’re a masquerade. Not everybody knows it all the
time, but some of the people know that they’re a masquerade. Right? On the other hand, a feature of
Constitutionalism with a big C is that everyone
in the polity can look at the original documents,
look at the original agreement, and see for himself or
herself how far we’ve gone from that original agreement. So I would defy any American
to read the Constitution, and look at our
government, and think, that that’s what we’re doing. Right? And when someone says,
look at the document, now look at what we’re
doing– I’m thinking here of Elaine Scarry, who’s
here, who’s just written– just published– well,
she’s wrote over time and has just published
a spectacular book called Thermonuclear Monarchy,
which everybody should read, which I heard her lecture
on when I was a law student. And the thrust of the book, if
I can grossly oversimplify it, is to say, look at our
constitutional structure, and look at the
republican values that give rise to our Constitution,
and now look at what we’ve got. It’s nothing like what’s
in the Constitution. What we have is a
monarchy, says Elaine. She says, Hamilton won. I mean, Elaine is completely
correct about this. But anyone who would read
it and read Elaine’s book would be able to see that. That’s public. That’s not a secret. So that means that the fact
that our system is, in fact, not driven by the structure of
the Constitution as written is an open secret. We all know it. And that makes it more
justifiable and less elitist. And it’s a reason to
feel less manipulated. Or maybe it’s a reason
to feel self-manipulated, which might be a worse feeling
rather than a better feeling. But it’s a different
kind of feeling at least. It’s a more agentic feeling. I hate that word, but
it’s a feeling that makes you feel like more of an agent. Because you’re
deceiving yourself. We’re all deceiving ourselves. Now, you might say
deceiving yourself is bad. I mean, that’s a hard question. Right, Hans? I mean, from a
psychoanalytic perspective, you need a little
self-deception. You don’t want to have
too much, but if you had no self-deception,
I mean, you’re finished. And Yaseen, you and
I have been working on this profound question
of what happened in Egypt over the last few years. And there you have
an instance where, at certain points
in public sphere, there’s no self-deception. There’s no masquerade. Right? No masquerade. People on the streets,
very primal form of political communication. And you have some elections,
and you have people trying to draft constitutions. And the people go back
to the street again. And there goes the government. No self-deception. Total disaster. They needed a little
self-deception. They needed people
to say, well, we’ve just elected this
government, and it’s enacted a constitution, and we
don’t like the constitution. So let’s go and tell
them that they’ve violated the constitution
and be really angry about it. And let’s go home, and hold
elections, and vote them out of office. Instead, the people got up and
said, you are illegitimate. It’s true you passed
a constitution, but we don’t care. You are the enemy. Off with you. Out you go. At which point,
the army was only too willing to come in
and say, good point. Let’s jail those people. Right? This comes back to
Scott’s point as well, about the nature
of the functional value of the masquerade. Now, I’m not claiming
that it’s the absence of constitutional
rhetoric that determines the outcome in Egypt. No, that’s the underlying
balance of power that determines it. But I’m noticing that
in a state where people are trying to achieve the
constitutional masquerade and failing, you’ve
lost a certain form of discursive rhetoric, where
you could call the other side the enemy and keep on going. In Tunisia, maybe
they’ve achieved that. They’ve just ratified
a constitution. And now they’re in
the process of– they just held the first election. They’re going to
hold another one. At least, they’re going to try
to run and effectuate politics using this discursive form. They think it’s worth
giving it a try. And you know, in
[INAUDIBLE], maybe they’ll have some luck with it. We know Egypt didn’t. So yeah, there’s
some deception, but I think my bottom
line is it’s more of a collective self-deception
than a deception by elites of citizens. And so it’s of a different
quality, a different character. Professor Charles Fried. CHARLES FRIED: What is–
or what was the small c constitution in our 1930s when
Roosevelt was being treated with the same epithets
that Madison was hurling, and yet we didn’t fall
apart, as compared to Germany in the
1930s, where they had no small c constitution? They had a big C
Constitution but no small c. What does this small c
constitution consist of? NOAH FELDMAN: Well, I think
that, as a general matter, before getting
into the comparison of the ’30s in Weimar and the
’30s in the United States, that the small c
constitution consists of the documents, the values,
the principles, the ideals, and the institutions that
together justify and provide the blueprint for the operation
of political authority. That’s not my definition;
that’s a loosely-tweaked version of Bolingbrook’s definition
of a small c constitution, writing in the 1730s. And I think it’s
pretty darn good. Notice that it includes the
actual exercise of power, but it also includes this
discursive component I’m talking about, the way
people talk about power, the way they express that
power, and most importantly, the way they legitimate
that form of power. Now to your example. There were moments, like the
first week of Roosevelt’s presidency, which, in March
of 1933, corresponded, and probably enough, to
Hitler’s rise to power within just a few weeks, in
which Roosevelt’s actions could have been perceived, and
were perceived by some, as comparably
extra-constitutional. Now, I’m thinking in particular
of the confiscation of gold in the United States and
the abrogation of contracts that private individuals had
made either with one another or with the government to avoid
precisely this scenario where gold was confiscated and the
gold standard was removed. And the Supreme Court– cough,
cough– ratifies these things. And the stock market liked them. I think, Jerry, there’s some
event studies suggesting this, that the market liked them. And from the bench,
Justice McReynolds, another nasty figure
of history, though, nowhere near as nasty as
Carl Schmitt– well, I don’t know about that– but
not as nasty as Carl Schmitt, said in the oral
argument from the bench that Roosevelt was Caesar. They subsequently
went and struck it from the written transcript,
so it’s a little hard to find, but there’s contemporary
newspaper evidence that he said it. And by calling him Caesar, he
was comparing him to Hitler and knew exactly that
that was the intent of what he was saying. And that view was not
crazy from a certain kind of constitutional standpoint. What was the difference? It would be easy
and too cheap to say that it was broad public support
for Roosevelt in the election, because Hitler had also
achieved broad public support in the election. To me, the crucial question is,
what constraints did Roosevelt believe he did operate under? We know what constrains he
didn’t think he operated under. He thought he could get away
with the gold confiscations, because he thought the
markets would back him. He thought he could get away
with the First New Deal, which he didn’t get away with and the
Supreme Court struck it down. But politically, he thought
he would get away with it, again, without destroying
the Republican Party. He believed that he needed
not the kind of consensus that would enable him to
block him from governing. He wanted to do that. But he thought he
needed enough consensus from the other political party
that their reaction would not be revolutionary. The other side accused
him of being– as I just said– of being Caesar. They talked the talk of enmity. They didn’t take the
actions that would have corresponded to that. Given that political
culture and given that context in
which Roosevelt knew he could keep the
opposition, he had no need, one might even say, to seek to
destroy the opposition utterly. Not so Hitler. Hitler had an opposition that
would have, on its far left, happily seen his destruction
and knew that he was the enemy. He had a weak liberal middle
that was unsure of how to act. And he judged that
he did not need to preserve the other side. In fact, he had the capacity,
the opportunity, and ultimately the desire to eliminate it. I think he read his political
situation correctly. Hitler read his political
situation correctly in that sense. The conditions for that kind
of constitutional consensus were not present. And so again, I would
never say that it was the US Constitution, big
C, that was the difference. And your question didn’t
imply that I would. I think that the
small c constitution, including the balance of
forces in the society, was the difference. It was Roosevelt’s
confidence that even his relatively radical
policies would not alienate the other
side so far that it would go outside the
political structure. And therefore, his capacity not
to seek to destroy it utterly. Again, thank you all very much. [APPLAUSE] MARTHA MINOW: I hope you will
all join us for a reception. But one more thing
needs to be done. Would you please sit? NOAH FELDMAN: I may
sit now, thank you. [APPLAUSE]

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