The Constitution: An Introduction
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The Constitution: An Introduction

October 9, 2019

>>Doug Swanson: Good afternoon, everybody.
I’d like to welcome you to the McGowan Theater located in the National Archives building
in Washington, D.C. I’m Doug Swanson, Visitor Services Manager for the National Archives
Museum as well as the Producer for these noon time lectures.
I have a couple of brief announcements before we bring today’s author on stage. This evening,
September 30, at 7:00 p.m., Tim Gunn of “Project Runway” will moderate a discussion and fashion
show, “1920s Style: ProhibitionEra Fashion.” If you plan on attending, you’re invited to
dress in 1920’s period style clothing but it’s not required.
On Friday, October 2, at noon, historian Erika Lee will return to the National Archives for
a talk on her latest book, “The Making of Asian America: A History.” And also on October
2 but at 7:00 p.m. we’ll be screening a film about a dark and littleknown chapter of America’s
recent political past, “Uniquely Nasty: The U.S. Government’s War on Gays.”
To find out more about these and our other programs and exhibits, take one of our monthly
event calendars, in the theater lobby, or visit our website,
Our topic for today is “The Constitution: An Introduction” by Michael Paulsen. Michael
Paulsen is the distinguished University Chair and Professor of Law at the University of
Saint Thomas where he’s taught since 2007. Professor Paulsen was previously the McKnight
Presidential Professor of Law and Public Policy and Associate Dean at the University of Minnesota
Law School where he taught from 1991 to 2007. He is a graduate of Northwestern University
and Yale Law School and has served as a federal prosecutor, as attorney advisor in the Office
of Legal Counsel of the U.S. Department of Justice, and as Counsel for the Center for
Law and Religious Freedom. Professor Paulsen is the author of more than
nine scholarly authors and book chapters on a wide variety of constitutional law topics.
In addition to “The Constitution: An Introduction,” coauthored with Luke Paulsen, Professor Paulsen
is coauthor of the book, The Constitution of the United States along with Steve Calabresi,
Michael McConnell and Samuel Bray and editor of “Our Constitution, Landmark Interpretations
of America’s Governing Document.” Please join me in welcoming Michael Paulsen
to the National Archives. [Applause]
>>Michael Paulsen: Thank you all very much. It is an honor and pleasure to be here. Coming
back to Washington, D.C. is like coming home for me. This is a homecoming. In fact, this
morning a drove by my wife’s and my old apartment in Arlington just to walk through the grounds
one more time. I lived here from 1985 to 1991. One of my colleagues at the U.S. Department
of Justice is lurking in the audience there with you right now.
DC is a special place for me. It’s where I met my wife, just actually a few steps away
from here, in the summer of 1984. Yes! It was just I think it was 9th and Constitution.
So this is a special place for us. I left in 1991. My kids are Minnesotans. They think
Minnesota is the center of the universe. I try to remind them now and then that there
are other places to live and to work. It’s a pleasure to be here. I’m especially
honored to be able to appear at the National Archives. It’s a really special place. They
do great programs. I thank Doug and the others so much for their hospitality. Truly grateful
for this opportunity. As Doug mentioned, I’m one half of the coauthor
team of this book, “The Constitution: An Introduction.” The other half is my son, Luke, who is 23
years old and a software engineer in Silicon Valley, California. We’ve given a version
of this presentation at Stanford University on the West Coast. He has a real day job.
I’m just a law professor. I can show up wherever I want. So he was unable to come here. But
I really want to give him full credit. It is really an absolute team effort, genuinely
coauthored book. I kind of want to just tell the story of how
it came to be. It started about, oh, 10 years ago. I was at an academic conference. And
after academic presentations, everybody gets together, the professors and their sponsors
and everything. They have a dinner or something like that. Around about the second bottle
of wine an argument broke out between the college professors who were there and the
law professors as to when their students had developed such misshapen ideas about the Constitution.
Where did they get all of these wrongheaded ideas?
And the law professors, of course, blamed the college professors. What are you teaching
these kids? And the college professors said, no, no, not our fault, don’t blame us; they
come to us this way with ideas that have come to them through textbooks, through popular
media. It’s sort of pervasive in the culture and undoing and untangling these mistaken
ideas is not a day’s work and can’t be accomplished in a single semester. It’s not our fault.
It’s not our fault. I said, Well, somebody really ought to write
a book that’s aimed at real people. They said, Well, why don’t you do that instead of writing
all of your boring Law Review articles?>>[Laughter]
>>Michael Paulsen: This was out in New Jersey. I was flying in and out of Philadelphia which
seems an appropriate place to get an idea about a book on the Constitution. And the
next day flying home, I was bumped from my flight in Philadelphia. I had about three
hours extra time sitting around the airport with a yellow legal pad. I just went to a
coffee shop and said, well, if you were trying to write a straightahead simple, straight
forward book on the Constitution and make it short and concise and clear, what would
be its essential elements? I actually found this yesterday before flying
here, the two sheets of legal pad paper in which this is the outline of the book, the
whole book right here written in the Philadelphia Airport. And the general scheme was that it
would be 10 chapters. The first chapters on the origins and basic contents of the Constitution.
And it’s pretty much the way the book spun out. Chapter 1 is on the Constitutional Convention,
the forces that fled to the creation of the Constitution and how it came to be. Chapter
2 is sort of on the great themes of the Constitution, the idea that takes written constitution,
ideas of separation of powers and federalism and the Republican government. We have Chapter
3 on the powers of the national government, Chapter 4 on slavery. You can’t talk about
the original Constitution without talking about slavery. And Chapter 5 is on the Bill
of Rights which we said was sort of the second half of the original Constitution or the completion
of the original Constitution. The bill of rights, as you probably well know,
was adopted fast on the heels of the Constitution as a necessary corrective of some of the concerns
about an over broad, national government and how it could intrude on individual rights,
and also as a way of assuring those who dissented from the Constitution that their concerns
were going to be taken into account and embodied in the original Constitution.
So that’s our first half of the book, just laying out the Constitution’s origins, purpose,
provisions, and basic content. Then the second half of the book, we have five more chapters
dealing with the history of the Constitution’s interpretation from its early implementation
in 1789 up until 2015. The book went to bed in January or February 2015 when it went to
the printer. So we have a chapter on the early controversies of the Constitution, Chapter
6. And a lot of what I’ll be talking about today is from Chapter 6. Chapter 7 is on Lincoln,
the Civil War and the crisis over constitutional interpretation that produced the Civil War
and resulted from the Civil War. Chapter 8 is covering a broad spectrum of time from
the end of reconstruction to the middle of the 20th Century, a period we call Betrayal
because it seems like the Supreme Court didn’t get much of anything right between 1870 and
mid 1930’s. A few things but there’s really a bad period in constitutional interpretation.
Chapter 9 covers the middle of the 20th Century. We call that chapter Restoration. And Chapter
10 is this hugely ambitious attempt to distill everything that’s happened in constitutional
law from 1960 to 2015, the modern era. And we call that Controversy which is appropriate
because the Constitution has been for the past 50, 60 years a source of enduring modern
controversies. So that was the outline of the book. It actually
still really continues to hold true to that form. I brought that outline home that night.
I was a little late getting home. So Luke, who was 13 at the time, had to be responsible
for babysitting his sister who was 7 at the time. But that night I showed Luke the outline.
He was interested in constitutional law because for many years well, when driving him and
his sister to school, he would warm me up for teaching. You know, Daddy. what are you
teaching about today? I hope it isn’t a form of child abuse but by age 14 he could tell
you about the legal doctrine of offensive nonmutual collateral estoppel. Child protective
services was never summoned. He actually developed an interest in these sort of things so that
by the time he got to eighth grade and his civics books, he could spot the flaws. He’d
say, Dad, look at this. They say the Supreme Court created the doctrine of judicial review
and the Constitution is whatever the Supreme Court says it is. We’d share a good nerdy
belly laugh together about these sorts of things. He was able to spot some of the conventional
myths really early on. So I presented this idea to him and said,
Would you like to work together with me on it? You know, maybe we’ll write a simple book
in one summer that will be the corrective to everything that’s taught wrong in junior
high and high school and it will be for general readers, too. He said, Sure. So he’s 13 at
the time. We thought it would be a one-summer project and that it would be a better way
of giving him a summer job than mowing lawns or flipping burgers. We actually struck a
deal that we would share any royalties 50/50. We’ve stuck to it. He doesn’t need it now.
He’s a software engineer and a Princeton University graduate. He’s making an honest living. But
we had no idea that it would become a nine year odyssey. We thought it would be a one summer
project. But we weren’t done. We put it away when the school year started.
We were both too busy to keep going forward with these sorts of things. We started returning
to it each summer. Where was it we left off? Oh, we’re on Chapter 3 now. And over time
the book took shape, became gradually more and more sophisticated, but we were still
trying to hue closely to this idea of it being readable, accessible for general readers.
He worked really hard and I think successfully to cure me of professoritis, the tendency
to go on and on and get too jargonistic or too technical, lawyery. By the time we were
finished, it was genuinely coauthored because we had each rewritten each other’s work so
many times. And the book is interspersed with little portrayals
of some of the important figures in our nation’s constitutional history, everything from Alexander
Hamilton to Frederick Douglass to the real Jane Roe to Richard Nixon. Many of these controversial
stories attached to them. Luke was responsible for writing the initial first drafts of those.
So what we ended up with is something sort of like what we started to do. Our humble
hope is that it would really serve as kind of the definitive introduction, the first
book that you recommend to someone. You know, if someone was interested in the Constitution,
doesn’t have a background in it, this would be a good place to start.
There are many, many books on the constitution. We don’t purport for this to be the last word
or the ultimate answer to everything but it is an attempt to introduce many of the debates,
many of the controversies. We take some positions but where it differs from the conventional,
we sort of lay that out and leave it for readers to judge for themselves.
So that’s enough of a commercial for the book. I guess it’s going to be available for purchase
and signing. In fact, when we were conceding of this book, I said, Here’s the test. We’re
trying to figure out who this book is for. I said, Someday I want to see this book in
the bookstore of the National Archives. That’s the test. So this is exactly living out the
goal perfectly. I had distributed a handout to sort of a rough
outline because trying to figure out exactly how to talk about these things in an engaging
way when I talk with students about constitutional history, they often tend to go: Yeah, yeah,
yeah, that was a couple hundred years ago; how does it affect anything today? My title
for this talk is “All This Has Happened Before” with the subtitle “The Supreme Court’s 2015
Landmark Cases in Historical Perspective.” The idea is that many of the controversies
that so preoccupy our nation today in terms of constitutional interpretation, rehashes
or reprises or echoes of controversies that have come long before.
You could have titled this a number of things. For those who like the book of Ecclesiastes,
you might have said there’s nothing new under the sun. Well, that’s not quite accurate.
These are sort of new versions of old controversies. For the baseball fans or devotees of the late
Yogi Berra, would say this is deja vu all over again. Right? But basically the idea
is that what we see today in some of these hot controversies are things that can be better
understood if you understand the Constitutional path. You can see, oh, this is just like Alexander
Hamilton and Thomas Jefferson arguing over whether the government has the power to create
a National Bank. So that’s my theme today. I’m going to tell
three sets of stories. And the old versions of the stories all come from Chapter 6. And
the new versions that parallel these stories come from some of the most recent and interesting
Supreme Court controversies including a couple from just this past year. So there will be
three broad stories. The first is about an issue that is of enduring
significance, the scope of national legislative powers. How broad are the powers of Congress
visavis the powers of the state? And my pairing there is Hamilton versus Jefferson advising
President Washington over the bank of the United States and then the modern echo of
it is one you may have heard of, Obamacare. The second story will be about the battle
between Congress and the president over who has constitutional primacy in the area of
foreign affairs. And then finally I’ll conclude with a couple of stories about the First Amendment,
freedom of speech and the press, an issue that continues to be a vital importance to
Americans interested in their freedom. And it’s as alive today as it was in the 1780s
and 1790s. So those are my three stories. The first concerns the scope of national legislative
power. My pairing is Alexander Hamilton and Thomas Jefferson in 1789 with Obamacare. Let
me set the stage. It’s the Washington Administration and Washington’s very enthusiastic, energetic
Secretary of Treasury is the young Alexander Hamilton who is just head strong, wicked smart,
and a firm defender of national government power in order to create a unified nation.
Washington’s Secretary of State is the states rights’ oriented Thomas Jefferson. Hamilton,
as Secretary of Treasury, comes up with certain plans to put the finances of the United States
on a secure basis. And a way of accomplishing that, he said, is we need to create a bank
of the United States with lending power as a means of collecting the debts of the means
of paying the debts and levying taxes. We’re going to create a bank of the United States.
The question immediately arose: Can Congress do that? Can Congress create a National Bank?
There’s no specific National Bank clause power in Congress’s list of enumerated powers.
And immediately the interpretation of the Constitution in 1789, like right away after
it’s been ratified and before the Bill of Rights has even become part of the Constitution,
there’s this big debate over how broad are the powers of the national government.
On the one hand, it is a government of limited enumerated powers. Right? That’s still true.
Article 1, Section 8 of the Constitution lists Congress’ power. And the Congress, in theory,
can’t just do anything it wants. It has to be implementing some power on the list. So
it is a government of limited powers. That’s sort of the Jeffersonian perspective. At the
same time, those powers are limited but often written in broadsweeping language, expansive
terms that enable a lot of room for interpretation and application. That was the Hamiltonian
position. It’s a government of limited powers but look
at how broad these powers are, power to regulate states, commerce among the states, and with
foreign nations. A Necessary and Proper Clause power to carry into execution all of the foregoing
powers which imply that Congress has a substantial discretion over the choice of means of accomplishing
its ends. And in a famous pairing of opinions that are presented to President Washington
— I put these in the Constitutional law case books that law students read, too — these
arguments are laid out. The thing is they’re both right. It is a government
of limited powers. And the powers that are limited are written in broad, expansive terms.
Washington sides with the Hamilton view and approves and signs the bill establishing the
bank of the United States. So the Hamilton view, early on, wins out in terms of the scope
of the government’s broad, national power. Now, it’s not a win that is like a forever
win. Right? These arguments about the scope of national powers have emerged and continued
throughout our nation’s history. And that brings us up to the present day. Just a few
years ago in 2012 there was this enormous constitutional decision by the Supreme Court
in what’s called the Obamacare case. The case name is NFIB, National Federation of Independent
Business v. Sebelius, Secretary of Health and Human Services, and it involved the question
of whether Congress could, pursuant to its commerce power, its taxing power, and the
Necessary and Proper Clause power, create an individual mandate that everybody purchase
health insurance. I’m talking to you like you don’t know you’re
not familiar with this. I’m sure most people are familiar with this controversy. It’s hard
to avoid it at the time. But the question was whether Congress actually had the power
to compel people to purchase a product on pain of paying a penalty or fine to the IRS
as part of their taxes if they didn’t do it. The Supreme Court in that case basically echoed
the arguments of Hamilton versus Madison on the scope of national powers. It came up with
this interesting split. A majority of five justices said the Commerce Clause power could
not give Congress the authority to require people to engage in commerce or else it would
become just total circular bootstrap and Congress could justify anything it wanted to adopt.
Similarly, the Necessary and Proper Clause couldn’t be used to get around the intrinsic
limits to the commerce power. So the actual part of the holding of that case is that Obamacare
could not be justified as a regulation that Congress could just impose. It did not have
power to just directly require. But, the Obamacare requirement was styled as if you do not purchase
health insurance, you are subject to a penalty which is payable to the IRS as part of your
taxes. In a different 54 majority, the Supreme Court said, you know, you can actually sustain
the exercise of this individual mandate requirement as an exercise of the taxing power.
Yes, the politicians scrupulously avoided calling it a tax. They called it a penalty.
But political false advertising can’t take away a true constitutional power and so this
was actually within Congress’ constitutional power to enact. The interesting thing, I think,
is that this is a recreation in slightly different forms, a modern version of the Hamilton versus
Jefferson debate. Now, the court had another Obamacare decision
this past term and it’s not nearly as interesting. There’s a question of interpretation of the
statute. What is an insurance exchange established by the state? Interestingly enough, and highly
controversial, the Supreme Court said that an exchange established by a state includes
an exchange not established by a state but established by a federal government. And on
that interesting and admittedly somewhat convoluted argument turned billions of dollars of financial
federal financial assistance. That’s the Burwell the King v. Burwell case decision from last
term. Enough of that controversy. The second pairing
that I want to talk about for a few minutes concerns the division of power between Congress
and the president over the foreign affairs. This is a pairing of Washington’s neutrality
proclamation. You all remember that? No. Probably not a prominent some do remember it from their
history books. With a Supreme Court decision this past term
called Zivotofsky v. Kerry. Menachem Binyamin Zivotofsky is the name of the plaintiff, a
13yearold boy who was born to U.S. citizens but while living in Jerusalem. The specific
issue in the case was whether Congress could require that a passport issued to a U.S. citizen
born in Jerusalem say Jerusalem, Israel, as opposed to just saying Jerusalem which was
what the presidential administrations wanted because the presidential administrations wanted
to straddle the issue and avoid being direct about the question of who has sovereignty
over Jerusalem because it was a controversial hotbutton issue in the Middle East.
And so like all good politicians, the way to avoid a difficult issue to try to take
an ambiguous stand on it. So they said we wanted the passport to just say Jerusalem,
it’s a passport. Ok? But Congress passed this statute saying if you’re a U.S. citizen born
in Jerusalem, you’re entitled to have the word Israel put on it. It’s kind of Congress
taking a side on the position of Israel’s sovereignty and sort of doing it with what
powers they had overpass port regulation. Well, of course the issue that this reminds
me of is Washington’s neutrality proclamation which is the instance early in our nation’s
history that involved the first big dispute over the question of who has the foreign affairs
power and how far does it go and when does a president infringe upon Congress’ powers
when the president exercises a foreign affairs policy decision.
So here’s what happened. It’s 1793. France and Britain are at war again. It’s like the
third time in 30 years that France and Britain are at war. And President Washington, first
in war, wants to be first in peace. He thinks it’s a really bad idea for the United States
to get involved in this foreign war. We’ll get our butts kicked. It won’t be good for
the nation. Peace. Let’s stay out of this. The problem is, we had a treaty that appeared
to be a mutual defense treaty with France dating to the days of the American Revolutionary
war. Benjamin Franklin had gone over to France and wined and dined the French nobility and
kings and basically produced a treaty of amity and friendship and mutual defense that was
instrumental in American independence when France, with its Naval power, came to our
aid and helped us win independence. Now, it’s a number of years later. There’s
been a change in the French regime. A few heads have rolled, literally. And it’s a different
situation. And the question is: Are we bound by our mutual defense treaty with France to
come to its aid now in a new war with Britain? Washington determined that it was going to
be the policy of the United States to stay out of the war. He issued a neutrality edict.
This was controversial with Congress. What gives the president to do that? We thought
we had the power to declare war. The power to declare war means we get to decide whether
we’re going to war or not. You can’t just, on your own, Mr. President, make a foreign
policy decision as to the meaning and effect of a treaty and whether you would adhere to
it, whether you would construe it narrowly, whether you will terminate the treaty. You
can’t just go off and do that. Again, it’s Alexander Hamilton that provides
the legal analysis, the Constitutional analysis, for President Washington. It’s an early and
very instructive and very influential defense of what Washington’s done. He publishes it
under the pseudonym PUBLEUS in a series of newspaper editorials, newspaper columns.
Hamilton’s position is basically this. The president is given the executive power. The
executive power was always understood to include not just execution of laws but the power to
formulate, devise and carry out the nation’s external relationships in all matter.
Now, traditionally, the executive power over foreign affairs was a power of the king and
included the power to declare war and to raise armies. Those powers were specifically relocated
to Congress under the Constitution. There were certain foreign affairs powers we took
away from the president but then provisions put in to clarify the president retained the
executive power and retained essentially the traditional executive power over foreign affairs
except where it had been removed. Highly influential position. Hamilton’s position,
of course, buttressed Washington’s. And that’s the policy implemented.
Fast forward to today and the Zivotofsky passport case. I think the right answer is that the
president has the power over foreign affairs as an aspect of the original meaning of the
executive power. And to the extent that is the President’s power, Congress may not, through
the exercise of any of its other collateral powers, infringe upon the President’s power
in foreign affairs other than the areas where it is explicitly removed and put in Congress’
hands. Now, the right answer to the Zivotofsky case
is I think it is actually unconstitutional for Congress to require the executive, in
effect, to take a position on the sovereignty of Jerusalem, whether it’s Israel or not,
that the president does not wish to do. That is the result of the majority opinion of the
Supreme Court written by Justice Kennedy. Though I kind of think he botched the legal
analysis. The legal analysis is all over the place, confusing and convoluted. There’s a
concurring opinion by Justice Thomas which is, I think, the only opinion that gets the
Constitutional analysis just about perfectly right and it tracks almost letter by letter
Alexander Hamilton’s analysis as PUBLEUS did in 1973. The ultimate vote is five justices,
Kennedy writing for himself and the more liberal wing of the court, which is an interesting
development we’ll talk about that in a second Justice Clarence Thomas concurring and the
three more conservative justices other than Thomas, Justices Roberts, Scalia, Alito, holding
that an act of Congress actually can meddle with executive foreign affairs powers.
Now, this is odd and weird to my sensibilities in that traditionally it seems, at least in
more recent years, that the pro presidential power position has been one that’s been advanced
by the more conservative wing of the court. Certainly it was in all of these Bush Administration
era decisions about Guantanamo, military commissions, Commander In Chief Clause power. And the liberal
position, who is usually more Congress has a role in this, Congress can do things, the
president can act alone. In the Zivotofsky case, the positions are just about exactly
reversed. Now, depending on how cynical you’re inclined
to be, you would say: Well, what accounts for this? It might be that the justices’ votes
in this case tend to line up for their political preferences for the present day disputes.
I hesitate to be too cynical. I’m always looking for an honest explanation. But it seems like
the liberal wing of the court wished to uphold the views of the Obama Administration and
the conservative wing of the court didn’t. And it didn’t track their usual views of the
Constitutional provisions at issue. It’s interesting. The Zivotofsky case was
argued in March of last year at about the same time that there was this dustup over
Netanyahu’s visits. Some of you Washington insiders remember. Congress invited him and
the president didn’t invite him. And there’s this continuous pull and tug between Congress
and the Executive Branch over who has what powers in the area of foreign affairs.
My short take on it is that Zivotofsky is a pale echo, a quaint case, of a controversy
we’ve had since 1793 and that George Washington and Alexander Hamilton had it figured out
a lot better than the Supreme Court did in 2015.
My third controversy. May I take a sip of coffee? Oh, you’re not supposed to bring drinks
in here.>>[Laughter]
>>Michael Paulsen: I won’t tell but I guess this is on the internet livestreamed.
The third controversy involves the freedom of speech in the press and the Alien and Sedition
Acts of 1798. This is a continuation of the history that followed our not coming to France’s
side in the wars with Britain in the early part in 1793 and 1794. By the time President
Washington leaves office and President Adams, the second president, takes office, our relationships
with France have deteriorated to the point that we’re essentially about ready to go to
war with revolutionary France. And Congress passes a series of acts putting the nation
essentially on a war footing including acts authorizing the president to kick out members
of foreign nations who he thinks are disloyal and adds the Sedition Act which makes it a
crime to publish false, scandalous, or malicious writings tending to excite the hatred of the
good people of the United States against the government.
Now, I’m pairing that with a case from 2015 called Walker v. Texas Division Sons of Confederate
Veterans because they both involve issues of First Amendment freedom of speech. But
the big deal case was in 1798 and 1799. The Sedition Act, making it a crime basically
to publish critical commentary of your government, is about as clear a violation of the First
Amendment freedom of speech and press as is possible to get. And everybody I think today,
I think essentially everybody, would agree with it. The core of the First Amendment,
freedom of speech, that government may not punish, prohibit, or penalize the expression
of view that it disagrees with. It may not discriminate against views, may not impose
special burden on views. People get to say what they want to say absent a few exceptional
circumstances and exceptional categories. It’s hard to think of a more clear violation
of that principle than the Alien and Sedition Acts of 1798. And interestingly enough, the
Sedition Act resulted in a number of prosecutions and punishments. We tell these stories — and
it’s all in Chapter 6. There’s a lot of you should buy the book just for the purpose of
Chapter 6, if you like. They prosecute newspapers, pamphleteers, a cranky congressman, and satirists,
some of whom good nothing much more than call President Adams a fat, pompous jerk. Ok? And
these convictions are almost all upheld. And there’s a constitutional challenge that is
raised and argued in these situations but the federal courts consistently get it wrong.
Now, there’s an interesting side issue to this, too. Who gets to interpret the Constitution?
We modern day Americans are so used to thinking of the Constitution as something the Supreme
Court interprets. And that’s true but it is not only for the Supreme Court to interpret.
And the Sedition Act controversy raises the interesting problem of what do you do if Congress
passes an unconstitutional law? The executive enforces and prosecutes and punishes under
unconstitutional law and the federal judiciary consistently upholds, wrongly, the constitutionality
of this unconstitutional law. Who checks the position of the national government when the
national government gets it all wrong? And part of the interesting history was that it
was resistance by state officials and resistance by the people in the electoral process that
changed the governing interpretation of the Constitution.
By this time, Thomas Jefferson is Adams’ Vice President. They’re not really on the same
page, if you know what I mean. Jefferson ghost writes for the Kentucky legislature a resolution
where the Kentucky legislature purports to declare unconstitutional the Sedition Act
and to nullify them and to refuse to comply with an unconstitutional action by all three
branches of the national government. Highly interesting situation.
Jefferson’s buddy, James Madison, writes a similar resolution for the Virginia legislature
defending the proprietary of Virginia interposing its state authority to resist unconstitutional
acts. This is highly interesting because there are parallels even this past month in the
actions of some Kentucky government official resisting what that official thought to be
the wrongful actions of the Government of the United States. Ok?
Highly interesting question. The ultimate resolution of the Sedition Act controversies
did not come by the Supreme Court overruling itself. It came in the election of 1800 where
one of the issues was the constitutionality of these enactments and the people through
the Electoral College sided with Thomas Jefferson who won election over Adams reversing the
outcome from the 1796 presidential election. And then Jefferson as president says I’m interpreting
the Constitution in a way differently from how Congress had from how my predecessor had,
how the courts had, and I’m going to refuse to execute what I think is an unconstitutional
statute ending in grant pardons under it, setting an early precedent for independent
presidential interpretation of the Constitution. Fast forward briefly to today’s controversy.
I just love this Sons of Confederate Veterans case. The Sons of Confederate Veterans case
involves a Texas state specialty license plate program. Now, in a nutshell, Texas permits
private groups, clubs, businesses, individuals, to design their own specialty license plates
for a price. It actually costs you like $8,000 and then your members buy these plates and
they cost a lot more. It’s a big money raiser for the state of Texas. Some states have their
license plate slogans but Texas has basically turned its license plate program into selling
advertising space for your particular organization. So they have over 350 different types of license
plates in Texas. How do you know if something’s actually a Texas car? It does say Texas on
it but then none of the license plates look alike. So there are license plates promoting
golfing, 4H clubs, mothers against drunk driving, football teams. My favorite illustration is
this Texas license place that says, “Go Oklahoma sooners.”
>>[Laughter]>>Michael Paulsen: There’s a Dr Pepper license
plate, a hamburger stand license plate. So along come the Sons of Confederate Veterans.
They say: We want something honoring our veterans. We’re the descendants of people who fought
on the wrong side of the Civil War. A tiny confederate battle flag at part of their emblem.
This one the Supreme Court says, oh first of all, the Texas commission says we won’t
approve that because we’re offended by what you’re saying. Ok? Very small ball version
of the same issue presented by the Alien and Sedition Acts. Government is taking action
against your expression because they don’t like what you have to say. The stakes are
perhaps a little bit lower. And definitely a little less sympathetic in this situation.
But it’s kind of the same principle. It goes up to the U.S. Supreme Court. The
U.S. Supreme Court 54 upholds what Texas has done, said Texas gets to exclude from its
specialty license plate program the Sons of Confederate Veterans battle flag specialty
designer plate. And the reasoning, they say, is that the Texas license plates are Texas’
speech. This is Texas talking. This isn’t your own freedom of expression.
It’s actually interesting. Government within the context of its own programs gets to communicate
and express its views. And that’s actually a correct principle that when government speaks.
That’s not necessarily an interference with yours and my freedom of speech. But it becomes
a little dangerous if everything that the government touches, owns, manages, curates
— National Archives — edits, teaches, or controls in any way somehow automatically
everything that occurs in it becomes government speech.
I am speaking at the National Archives, but I assure you I am not speaking for the views
necessarily of the Government of the United States. It’s a dangerous principle that if
government speech applies every time the government is involved, then the scope of the freedom
of speech contracts as government power expands. And that, I think, is a disturbing principle.
Now, there’s always linedrawing questions but it seems to me that when Texas has 350
plates, has never rejected any of them and you can’t plausibly say I’d Rather Be Golfing
is Texas’ desired message to the rest of its citizens or “Go Oklahoma sooners.” At some
point there Texas crossed the line and really was not engaging in Texas’ speech but it was
selling really, really expensive license plates or really, really expensive bumper stickers
where people could put their own messages on.
The lesson from the Alien and Sedition Acts controversy and some of the other controversies
we discuss in Chapter 6 is that the Constitution is not the exclusive problems of the courts
and the courts don’t always necessarily get everything right. Right? The Constitutional
interpretation is a game best not played alone. And it’s sometimes the corrective for wrong
constitutional actions of any of the branches of the national government is counteraction
by one of the other branches or even by actions of the state government. The correct interpretation
of the Constitution emerges as a result of the separation of powers and the pull and
tug of competing views, including citizens’ views. What overturned the Sedition Act was
the election of 1800 and the replacement of one political party by another political party.
That’s a theme we carry through in our analysis of a lot of the controversies dating from
1789 to 2015, that the Constitution is ultimately a document that belongs to us, the people,
or you might say we the people are the owners of the Constitution. And it’s part of the
mission of what we’re trying to accomplish through this book, is that the Constitution
is not the exclusive province of the lawyers, is not the exclusive province of the courts,
but it’s ultimately something that belongs to all of us as citizens and that we can all
benefit from a knowledge and understanding of the Constitution’s provisions and appreciation
of its rich and deep history. So, thank you very much. I hope I’ve left
15 minutes or so for questions. [Applause]
Yes, sir?>>I’m not an attorney or constitutional scholar
but>>Michael Paulsen: Good for you. I’ve heard
it said Washington has more lawyers than people.>>[Laughter]
>>That’s my wife. It’s not me. But I’m wondering if some Supreme Court decision that has the
fourth of law don’t have the heft of other laws that are passed by the Congress. Roe
v. Wade, it wasn’t passed by Congress. It says that abortion is legal. But it doesn’t
seem to have I mean, it keeps getting attacked. It seems to be much more vulnerable than laws
that may have been passed by Congress.>>Michael Paulsen: Yes. That’s an excellent
point. Let me start by trying to frame a way of describing the issue.
When the Supreme Court issues a constitutional decision, it is not passing a law in the same
sense that Congress is. It is purporting to interpret the text of the Constitution and
it is saying the text of the Constitution trumps any law that’s contrary to it. So Roe
v. Wade and many other controversial Supreme Court decisions is the Supreme Court declaring
the Constitution says a particular thing and using to invalidate what legislatures have
done. Congress might have some abortion regulations. It does have some now. Roe v. Wade invalidated
abortion restrictions or regulations of every state in the union and it did so based upon
a purported interpretation of the Constitution, an interrogation that has remained I think
correctly, highly controversial. Roe v. Wade is kind of your paradigm case of a judicial
activism. You know, whether you like the result, you hate the result, it is an illustration
of the court’s aggressively interpreting the Constitution in a way not really supported
by its text and not really supported by its history or structure or even very well at
all by its precedence. This becomes really sensitive when we go through
the modern era in our last chapter of the book. Because so much of the modern era has
been characterized, at least in its noteworthy constitutional decisions by instances of activist
judicial interpretations of the Constitution. Some of those interpretations are popular.
Others are very divisive. I think it is justifiably controversial because when the Supreme Court
what do you do if the Supreme Court has said something is in the Constitution that isn’t?
Right? It’s very, very difficult to amend the Constitution. And why should you have
to change the text of the Constitution if the Supreme Court has misinterpreted the Constitution
in the first instance? You hear this now with the samesex marriage
decision. You hear it perennially with many other decisions. Is it appropriate for the
political branches and for the public and for the states to push back in various ways
at what they think are the wrong decisions of the Supreme Court? Because when the Supreme
Court reaches a constitutional decision, it is not the same thing as passing a law. It
is purporting to be an interpretation of the document. And many of the courts’ interpretations
over the time, and we go through the whole history, they don’t always get it right. For
many years, Plessy v. Ferguson was the law of the land. Dred Scott was probably the most
notoriously wrong Supreme Court decision in history and spurred in significant measure
the rush to Civil War. Other questions? Are you afraid of being filibustered
by the professor? We have one here. Could you go to a microphone?
>>I’m not sure that I can state this correctly but it has to do with the discussion in the
democratic debates recently, how often they brought up states’ rights. Is this enough
related to the Constitution? Ok. Ok. It seems like states’ rights were very popular
on issues that they wanted to put in the hands of state government but at the same time there
were other things that they didn’t think should be left to the states that actually are.
What I’m thinking of we’re all from Washington State. We have marijuana approval. We have
a situation right now>>Michael Paulsen: I do remember this from
the debates. I caught that portion. Go ahead.>>Ok. Where it was passed in the state of
Washington and then individual counties, you know, sort of came in with their ideas. We’re
in Douglas County, which is on the east side of the state, on the Columbia. And we have
three representatives that about a week ago decided that Douglas County was not getting
enough benefit out of producing 8% of the marijuana in the nation — I’m not sure if
that’s true but that’s what they say — and only getting 1% back in the way of restitution
from the state. No excise tax is given back to it. It was a majority decision of the three
state representatives. How can they do that? How can they they put
what do you call it? Moratorium. They just decided they were going to put a sixmonth
moratorium on any more production selling, shops, whatever, of marijuana in Douglas County.
>>Michael Paulsen: Let me try to disentangle that a little bit and only speak to things
that I know anything about. Because I don’t really know anything about Washington State’s
particular laws. But let me speak generally. You made a couple of observations. One, I
think this is a universal observation. The Constitution is invoked selectively for political
purposes. Right? And it’s done by both sides. And sometimes their arguments are right and
sometimes their arguments are wrong. A faithful interpretation of the Constitution probably
doesn’t map on to any particular political agenda very well. Right?
I sometimes tell my students, if your interpretation of the Constitution produces results that
track exactly your political preferences, you’re probably not interpreting the Constitution.
You’re interpreting your political preferences. So without speaking to what the politicians
might necessarily have been doing is often the case that people reverse their positions
on the Constitutional issue when the political view doesn’t line up with theirs. So there’s
nothing too surprising about that. It’s actually a common observation.
The question the states’ rights in particular is just a version of this Hamilton versus
Jefferson debate over the scope of national power. Where the national government has power
and enacts a rule, it trumps any state rule to the contrary. There has to be a national
power. And if so, that ousts what the state has done to the extent it’s contrary to the
national rule. It’s part of a provision of the Constitution called the Supremacy Clause.
This Constitution and the laws of the United States passed and treaties shall be the supreme
law of the land, anything in the laws of the states or the state constitution to the contrary
notwithstanding. So federal law wins. Ok? Now, what’s interesting about the marijuana
controversy is the federal government’s administration right now, the Obama Administration, has declined
to enforce federal law where a state has said we don’t want you to. And that’s really a
highly unusual and peculiar situation but they’ve kind of given states an exemption
from the application of federal law. And what I heard some of the Republican candidates
talk about was debating whether or not that was proper. As president, will you enforce
the national laws? As president, do you believe in states’ rights? They went at each other,
back and forth. As to what the state representatives are doing and 8% of the revenue, I don’t know
a thing about it so I can’t comment on it. It’s a highly interesting question.
>>Could you go over a little bit of what your chapter on Civil War says?
>>Michael Paulsen: Do you have another hour for me to talk about the Civil War? Chapter
7 is my favorite chapter of the book. I’m a huge Lincoln fan. I’m coming I’m only in
Washington for a couple of days but I have to make my pilgrimage to the Lincoln Memorial.
I’m hoping that one of my next books is on Lincoln and the Constitution. I’ve been teaching
a seminar for a number of years on Lincoln, the Civil War and the Constitution.
Let me give you the briefest. The Civil War, Luke and I argue in the book, was fought over
grand questions of constitutional interpretation and is probably the most single important
event of constitutional interpretation in our nation’s history.
Now, the Civil War was much else in between but it was a war fought over constitutional
meaning. What is the status of slavery under the Constitution? Who gets to determine that
status? Can slavery be extended to the territories? Must it be, as the Supreme Court held? What
is the authority of a clearly wrong and abusive Supreme Court decision like the Dred Scott
decision? Lincoln rose to prominence as a critic of
the Supreme Court calling for resistance to what he thought was a flagrantly wrong Supreme
Court decision. His opponent in 1858, the Illinois Senate race, Stephen Douglas, who
was saying if you oppose the Supreme Court’s decisions, you are opposed to the Constitution.
Lincoln said, nothing of the kind, the Constitution permits the Supreme Court to decide cases
but it doesn’t permit it to decide national issues for everyone else. Lincoln said that?
Ok. Lincoln is eventually elected president. And
the South secedes in part because it thinks it has lost the political battle and in part
because it thinks it is outrageous to have such an anticonstitutional, antiDred Scott
president. The South secedes and the great issue is does a state have a constitutional
freedom to secede. And that grand issue is decided not in any court because you don’t
want the Supreme Court that decided Dred Scott to decide that the South can leave in order
to preserve slavery. Instead that great constitutional issue is decided on the battlefields. It’s
not a Supreme Court case. It’s the case of Grant versus Lee settled at the Appomattox
Courthouse, Virginia. And then the Civil War produces in its wake three great constitutional
amendments, the 13th Amendment, abolishing slavery, the 14th Amendment, protecting national
civil rights from state interference and giving Congress power to enforce it, and the 15th
Amendment, banning racial discrimination in voting. It really transformed fundamentally
the nature of our Constitution. Hear me getting excited about this chapter?
I’ve given a presentation someplace in New York, essentially on Chapter 7, on Lincoln
and the Constitution. But I think Lincoln, as president, was the nation’s single most
important constitutional interpreter and the Civil War, not any Supreme Court decision,
was the nation’s single most important act of constitutional interpretation.
Thank you so much for your question. I love that question.
And thank you very much for being a wonderful audience. It’s been great to be here.
[Applause] 1

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